author: Dickman, J.

text:
    Grady v. Gosline & Barbour.

      Service on partnership — Usual place of doing business.

    1. The sheriff’s service of a summons upon the defendant, may, for good cause, be set aside on motion supported by affidavit. If the summons is served by leaving a copy thereof at the wrong place, the defendant, on motion to set the service aside made before answering to the merits of the action, may be allowed to disprove the officer’s return.
    2. Where the defendant is a partnership sued by its company name, the summons may be served by leaving a copy thereof with the indorsements thereon, 'at the defendant’s usual place of doing business within the county where the action is commenced.
    (Decided December 15, 1891.)
    Error to the Circuit Court of Perry county.
    The case is stated in the opinion.

      Donahue $ Donahue, Friesner Miles, for plaintiff in error.

      Butler § Cochran, for defendants in error.
   Dickman, J.

The original action was brought by Owen Grady, the plaintiff, against the defendants Gosline &-Barbour, a partnership sued by its company’s name, to recover for injuries alleged to have been received by the plaintiff, through the carelessness of the defendants in neglecting to securely prop the roof of their coal mine, in which the plaintiff was employed as a miner. Summons was issued, directed to the sheriff of Perry county, was served by him in that county, and was duly returned by him, indorsed as follows: “ Received this writ January 21, 1890, at 5 o’clock P. M., and pursuant to its command, I did, on the twenty-fifth day of January, A. D. 1890, summon the within named defendants, Gosline & Barbour, by leaving at their usual place of business, and with J. H. Powell — he being the general manager of the above named defendants — a true and certified copy of this writ, with all indorsements thereon.”

A motion was filed by the defendants to quash the service of the summons, for the alleged reasons: First — That the defendants are a partnership formed for the purpose of doing business in Ohio, and actually doing business therein in mining and shipping and vending coal; that the residence of the partnership, and its only usual place of doing business in this state, is in Toledo, in Lucas county; and that the defendants, partners, are each residents of Toledo, and are sued by the partnership name. Second — That the court had no jurisdiction in the premises, and acquired none by the “ pretended service of summons ” in the action.

The motion was heard upon affidavit and oral testimony, embodied in a bill of exceptions and made part of the record, and the service of the summons was set aside; to which finding and ruling of the court, the plaintiff excepted, and prosecuted a petition in error in the circuit court, which affirmed the judgment of the coifrt of common pleas. This proceeding is instituted to reverse the judgment of the circuit court.

The only testimony offered by the defendants in support of their motion, was their own affidavit, in which they set forth, substantial^ as in their motion, no other facts than that they are a partnership formed for the purpose of doing business in Ohio, and actually doing business therein in mining, shipping and vending coal in large quantities, and from many different points ; that they and each of them reside in the city of Toledo, and have their office at No. 422 Madison street, in that city; and that their office in Toledo is their only usual place of doing business.

As undisputed facts disclosed in the record, the defendants, at the time of the commencement of the original action, were operating a coal mine at Shawnee, in Perry county. They had there a general manager and superintendent of their business, who, with his assistants, hired men for driving entry and mining coal, and who, in fact, exercised complete control of the business. They there sold coal to their miners; made purchases of lumber for the mine ; had an office for the superintendent, and kept a book of accounts, in which were entered the coal mined by each man, and the number of days each laborer worked; paid the miners, shipped coal, and sold surface land; transacted business at the general store near by, where their employees presented orders from the superintendent and obtained supplies ; and in general, did whatever was necessary in' mining and shipping coal. This was the only place where the defendants transacted any business in Perry county, and it was here that a copy of the summons was left, as the usual place of doing business in Perry county.

It is contended in behalf of the plaintiff, that the court erred in admitting in evidence the affidavit of the defendants. Where there has been an irregularity in the service of the original summons, through which the court has failed to get jurisdiction over the party defendant, it is competent, on motion, before answering to the merits of the action, to have the service of summons set aside, and in support of the motion affidavits may be used. It is said by Mr. Nash (1 PL & Pr. 75) that, “ the service of the original summons will be set aside on motion, if served on a wrong person, or the copy is not left at the right place. The existence of any fact showing that the service is not correct, may be set up to vacate it. The motion should state the grounds on which the party relies as showing the service had.”

It is an established rule, that an official return duly made upon process by a sworn officer, in relation to facts which it is his legal duty to state in it, is, as between the parties and privies to the suit and others whose rights are necessarily dependent upon it, conclusive of the facts stated therein, until vacated or set aside by due course of law. But, as to the course to be pursued in vacating and setting aside the officer’s return, it might well be urged, that it would in many cases work injustice, to hold the return of an original summons conclusive — to compel, it might be, a waiver of the irregularity by appearance — and to drive the defendant to an action against the officer for a false return. It was accordingly held, in Van Rensselaer v. Chadwick, 7 How. Pr. 297, that the return of a sheriff, or an affidavit of a person acting in his place, of the service of a summons, is not conclusive upon the defendant, and that he may be allowed to disprove it on a motion to set the proceedings aside. See also, Nones v. Life Insurance Co., 5 How. Pr. 96; Wallis v. Lott, 15 How. Pr. 567; 1 Yaple’s Code Pr., 395.

By the act of February 12, 1879, (76 O. L. 15), it was provided, “ That'when a partnership carrying on a trade or business in this state, or holding property therein is sued by the usual or ordinary name which it has assumed, or by which it is known, process may be served against such company or firm by a copy left at its usual place of doing business within the county I

Section 5052 of the Revised Statutes, regulating the manner of service and return of the summons, provides that, “ The service shall be by delivering, at any time before the return day, a copy of the summons, with the indorsements thereon, to the defendant personally, or by leaving a copy at his usual place of residence, or, if the defendant is a partnership sued by its company name, by leaving a copy at its usual place of doing business.” The provisions of the act of February 12, 1879, are thus substantially continued in section 5052 of the Revised Statutes, with the omission of the words, “ within the county.”

The chief question, therefore, for consideration in the case at bar is, whether the original summons was served upon the defendant partnership at its usual place of doing business, within the meaning and requirement of the statute. The obvious meaning of the act of 1879 was, that a partnership might be sued by its firm name in any county within which it had a usual place of doing business. Such partnership might have such a place of business in any county in the state where its interests would be promoted by establishing itself; and it might prove difficult to determine, in many instances, in what county, if any, its principal place of business was located. The language, “ within the county,” would seem to recognize the fact, that the usual place of business within the county where the action was commenced was not the only place where the company usually transacted the kind of business in which it was engaged.

The effect of omitting from the statute the words “ within the county ” is not, we think, to limit the right of suing the partnership to one county, notwithstanding it might have a usual place of doing business, in the true sense, in several counties. If such is its effect, at which one of such usual places is a copy of the summons to be left by the officer, for the purpose of serving process? Is it to be the principal place among those designated as usual places of doing business ? If it is, by what safe rule is the officer to be guided in making service so as not to jeopardize the plaintiff’s rights ?

The words “within the county,” might well have been omitted because deemed unnecessary after the words, “its usual place of business,” as they would be after the words, “ at his usual place of residence,” when service is made on an individual. The authority of a sheriff is confined within the .territorial limits of his county. He cannot execute any kind of process except within it, and such illegal action, whether proceeding, from mistake or perversity, is void. When, .therefore, a summons is directed to a sheriff, for service upon a partnership by its firm name, the statute contemplates that he will leave a copy thereof at the company’s usual place of doing business within his bailiwick or county, if such a place can be found therein, as he would make service on an individual by leaving a copy at his usual place of residence. If, as a fact, there is a usual place of doing business within the county, and a copy of the.summons is there left by the officer, the service of process will be in compliance with the statute.

But conceding that it devolved on the plaintiff, if he would maintain his action, to determine in the first instance, whether the defendants’ usual place of doing business, within the statutory meaning, was in the county of Lucas or in Perry county, we are not prepared to say, that such usual place of business, was not in Perry county, where the suit was instituted. The business of the partnership was mining and shipping coal, and it was in that county that the company had invested its capital, and there expected to realize its profit and advantage. The defendants set forth in their affidavit, that they and each of them reside in the city of Toledo, in Lucas county, but this court has said in Smith v. Hoover, 39 Ohio St. 249, “ It is the clear intention of the legislature that actions against companies in the firm name should be prosecuted only in the county in which its usual place of business may be situated, without regard to the residence of the firm.” The statute gives to the partnership thus sued a status in court as an artificial or ideal person, irrespective of the residence of those who compose it. And the statement by the defendants that their usual and only usual place of doing business is at their office- in the city of Toledo, cannot avail, because not authorized by the facts set forth in their affidavit. It cannot be legally inferred, because they respectively reside in Toledo, and are a partnership actually doing business in Ohio in mining, shipping and vending coal in large quantities, and from many different points, that their usual place of doing business is in Lucas and not in Perry county.

Judgment of the circuit court and the court of common fleas reversed, and cause remanded for further froceedings.


source: Caselaw Access Project

author: Spear, J. Williams, C. J.,

license: Public Domain

text:
    Henry v. Trustees.

      Statutory construction — Cemeteries—Powers of township trustees in relation to establishment of — Section 1464, Revised Statutes, construed,

    1. In the construction of a statute, it is, as a general rule, reasonable to presume that the same meaning is intended for the same expression in every part of the act. But the presumption is not controlling, and where it appears that by giving it effect an unreasonable result will follow, and the manifest object of the statute be defeated, a court is at liberty to disregard the presumption, and attach a meaning to the words in question, which will make the act consistent with itself, and carry out the true purpose and intent of the law makers.
    2. Under section 1464, Revised Statutes, which authorizes township trustees to acquire by purchase or appropriation, lands for cemetery purposes, such trustees are prohibited from establishing a cemetery nearer than two hundred yards from a dwelling-house, without the consent of the owner, whether the land is acquired by an appropriation proceeding or by purchase. And when trustees are endeavoring to so establish a cemetery in violation of the section, they may be enjoined in a suit by the owner of a dwelling-house within the limit.
    Error to the Circuit Court of Shelby county.
    The action below'was brought by the plaintiff in error against the defendants in error to enjoin them from establishing a township cemetery. The material allegations of the petition are that the plaintiff is a resident tax-payer in Perry township, Shelby county, and seized of a life estate in a parcel of land situate therein; that the defendants as township trustees, have undertaken to purchase and accept of one Win. R. Reed a conveyance for cemetery purposes of a tract of ten acres of land, all of which was done- without plaintiff’s knowledge or consent; that the ten acres is within sixty feet of the dwelling-house of plaintiff situate on his land, and a large portion of the ten acres drains towards plaintiff’s dwelling-house and his well, situate near, so as to allow the drainage from the cemetery grounds, if so established, to flow easily into said well; that the defendants, unless restrained, will proceed to lay out and establish a cemetery and burial grounds on said tract bordering within sixty feet of and draining towards plaintiff’s dwelling-house and well, and .will proceed to pay out the moneys of the township in the attempted purchase and improvement of such cemetery without authority of law, all of which will result in great and irreparable injury to the plaintiff. A temporary injunction, to be made perpetual on final hearing, was prayed for.
    Answer was filed by the trustees as follows:
    “Defendants admit the purchase of the ground of W. R. Reed, as in the petition averred, but say that prior to the purchase of said land and the location of a cemetery thereon, that said defendants made an order that the question of cemetery or no cemetery should be submitted to the electors of said township, and was so submitted according to law at the spring or April election of 1880, to the decision of the electors of said township, and that of the electors who voted upon said proposition, 118 voted in favor thereof and 39 against. That in pursuance of said election and majority, they proceeded to and did levy a tax upon the taxable property of said township to defray the expenses thereof, which said tax was duly collected, and that said money so collected was expended on the purchase of said grounds and laying out and beautifying the same. Defendants deny that said proposed cemetery grounds are within 60 feet of said house and well, or either of them; but say that said grounds are separated from the premises of the plaintiff by a turnpike road 60 feet wide, and the nearest part of said ground devoted for burial purposes is distant from said dwelling-house and well about 170 feet, and that the house and well of plaintiff are distant from the nearest point of said cemetery grounds about 120 feet.' Defendants further deny that there is any drainage from said cemetery grounds to the house and well of the plaintiff, but that, on the contrary, the drainage is from said premises of plaintiff. Defendants deny that the location of said cemetery will be any injury or damage to premises of the plaintiff.”
    In the common pleas a trial was had which resulted in a judgment making the temporary injunction before granted perpetual. On appeal the circuit court overruled plaintiff’s demurrer to the answer, and, on trial, dissolved the injunction and rendered judgment for the defendants.
    The case is here to obtain a reversal of the judgment of the circuit court.

      Carper £ Van Deman, for plaintiff in error.

      W. D. Davies, for defendants in error.
   Spear, J.

The contention of the plaintiff is that there was no power in the township trustees to acquire the lands for cemetery purposes within two hundred yards of plaintiff’s dwelling-house without his consent, and that the establishment of a cemetery as contemplated would be unlawful, and hence a nuisance per se, and that, this appearing, the plaintiff was entitled to an injunction; while the defendant claims that the question having been submitted to the voters, as required by section 1465, Revised Statutes, and a majority voting in favor of the project, the purchase was lawful; that the use proposed was authorized by statute, and that plaintiff could not have relief without showing, by proof, that the cemetery, as proposed, would work special damage to his property. In overruling the demurrer to the answer, the circuit court held the law as claimed by the defendants.

In our judgment the determination of the questions depend upon a proper construction of section 1464, Revised Statutes. That section reads as follows:

“ Sec. 1464. The trustees may accept a conveyance of, or purchase, and inclose, improve, and protect such lands, in one or more places within the township, as they deem necessary and proper for cemetery purposes ; and if suitable lands cannot be procured by contract on reasonable terms, they may appropriate lands therefor, not exceeding ten acres, by proceedings in accordance with the provisions of law regulating the appropriation of private property by municipal corporations ; but no such appropriation shall be made, until the court is satisfied that such lands cannot be obtained by contract on reasonable terms, nor shall any lands be so appropriated on which there is any house, barn, stable, or other building, or any orchard, nursery, medicinal, or mineral spring, or well yielding oil or salt water ; nor shall anjr land be so appropriated within two hundred yards of a dwelling-house.”

As the foregoing section gives all the authority possessed by township trustees to obtain land for cemetery purposes, we must look to it to ascertain the extent of that authority, and the limitations upon it. It will be specially noted, that, by the language of the last clause, no lands can be appropriated by the trustees for the purpose of a cemetery within two hundred yards of a dwelling-house. May the trustees in any way lawfully acquire land for that use within that distance from a dwelling-house without the consent of the owner thereof ? This raises the question as to what import is to be given to the words “so appropriated” as last, used in the section.

The manifest purpose of the act is to provide a way by which a public necessity in every inhabited township may be supplied, and at the same time no injury result to the inhabitants by too close proximity to their dwelling. The design of the clause in question is to guard the comfort, the health, and the lives of the people. Per se, a cemetery is not a nuisance, but this act carries the implication that, in the judgment of its framers, the locating of a cemetery, nearer than two hundred yards from a dwelling-house, is a thing to be prohibited. The tendency to injure the value of the property, and to impair the health of the inmates, if placed too near, is matter of common knowledge. Not that, in all cases and under all circumstances, it would necessarily have that result, but the extreme probability of such effect was a sufficient cause to induce the legislature to enact the prohibition. No question is made but that the section absolutely prohibits the establishment of a cemetery within the limit where an appropriation proceeding has to be resorted to in order to obtain the land. The contention in support of the judgment below, is, that if the land can be purchased then the location may be made nearer than the distance named. If this is a correct interpretation of the act, the result is a singular one. We have the legislature, in one clause of the section, providing that the township may not obtain land for a cemetery within the prescribed distance, and in another clause providing that it may do so, and yet there is no perceptible reason for a difference. The object of the prohibition, as we have seen, is to protect the owner of a dwelling-house and his property from the probable effect of a location of a cemetery too near the property, and yet, while two modes of acquiring land are provided for, one of them, if resorted to, will afford that protection, and the other will absolutely defeat it. No possible harm could come to the owner of such dwelling-house from the acquisition of land by an appropriation proceeding, which would not follow the acquisition by purchase, and the construction claimed, to every intent, defeats the object of the clause referred to. The legislature could never have intended this. That body would not knowingly provide against an evil if brought about in one way, and at the same time, and by the same section, permit it to be accomplished in another way, when the objection did not lie to the manner of doing the thing, but to the result after it was done. A construction producing so inconsistent a result, should not be adopted if any other is practicable.

Nor, as it seems to us, is a construction which will give effect to the manifest intent of the legislature, difficult. The entire strength of the defendant’s ease rests upon the claim that the term “ any lands be so appropriated,” in the last clause, refers only to lands which may have been acquired by an appropriation proceeding, which is its evident meaning in the sentence preceding. A literal first blush interpretation would, perhaps, warrant that conclusion, but we are “ bound not to stick in the mere letter of a law, but rather seek for its reason and spirit, in the mischief that required a remedy and the general scope of the legislation designed to effect it.” Tracy v. Card, 2 Ohio St. 431.

We are, it is true, to gather the intent from the language used, but we are also to ascertain that intent from a proper interpretation of the language, though this may require a departure from the literal meaning of words. “ A strict and literal interpretation is not always to be adhered to, and where the ease is brought within the intention of the makers of the statute, it is within the statute, although by a technical interpretation it is not within its letter.” People v. Lacombe, 99 N. Y. 49. The true meaning is to be arrived at by taking a view of the whole act, so as to understand its real object. If the apparent meaning of the words, at first blush, would lead to a manifest contradiction of the purpose of the enactment, it is the duty of the court to seek some. other meaning which will be in accord with that purpose. It is said by Brinkerhoee, J., in Terrill v. Auchauer, 14 Ohio St. 87: “ if the statute be fairly susceptible of two different constructions, we are at liberty to choose that one which, while it remedies the mischief aimed at, avoids the absurd or unjust consequences which would flow from the other.”

The ascertainment of the true intention, says Mr. Endlich in his work on the Interpretation of Statutes, sec. 295, “ is the cardinal rule, or rather the end and object, of all construction ; and where the real design of the legislature in ordaining a statute, although it be not precisely expressed, is yet plainly perceivable, or ascertained with reasonable certainty, the language of the statute must be given such a construction as will Garry that design into effect, even though, in so doing, the exact letter of the law be sacrificed, or though the. construction be, indeed, contrary to the letter.” He cites in support People v. Weston, 3 Neb. 312; Hunt v. Railroad Co., 112 Ind. 69; Brown v. Barry, 3 Dal. 365; Minor v. Michigan Bank, 1 Pet. 46, and a number of other cases, and we do not doubt that the text properly states the rule on the subject. This same author (sec. 387) remarks that as a general rule, it is reasonable to presume that the same meaning is intended for the same expression, in every part of the act, and the interpreter is bound, in general, not to assign different meanings to the same words on the ground of a supposed intention of the legislature, but adds that, “ the presumption is not of much weight,” and cites to this last point U. S. v. Palmer, 3 Wheat. 631; R. v. Lewis, Dears, C. & B. 182; R. v. Allen, L. R., 1 C. C. 367, and Bones v. Booth, 2 W. Bl. 1226.

There is no question but that the section treats of appropriation proceedings, and has in contemplation that lands may be acquired in that way, nor that the purpose of the inhibition against the appropriation of lands on which there is any house, barn, etc., is to make it impossible for the trustees to compel an owner to part with such property, against his will, even though a compensation should in the same proceeding be awarded. Why is it not reasonable to presume that, with like regard for the rights of the citizen, the purpose of the clause following is to make it impossible for the trustees to indict damage upon the owner of a dwelling-house by a location within the prescribed distance ?

It follows that if a meaning other than one implying a reference to lands acquired by an appropriation proceeding, one which will be in accord with the manifest purpose of the act, can be given to the term “ be so appropriated,” in the last clause of the act, the court is not only at liberty to adopt it, but it is its duty to do so. One dednition of the term “ to appropriate ” is to consign to some particular purpose or use; to set apart for some use. In this sense, therefore, “ to be appropriated ” is to be devoted to some purpose or use, and we think it not violative of the canons of construction, to give to the term that meaning in this connection. The clause under this interpretation means the same as though it had been written: Nor shall any land be devoted to cemetery purposes lying within two hundred yards of a dwelling-house. This construction makes the several parts of the law consistent with each other, is in the line of the object to be subserved, and suppresses the mischief which the legislature evidently had in mind in passing the act, while the construction claimed by the defendants renders the section self-contradictory, and results in a nullidcation of the policy of the enactment.

It is not questioned that the owner of a dwelling-house may sell to the trustees lands for cemetery purposes within two hundred yards of his house, and thus estop himself from claiming the protection of the law, bnt the owner of land desired for that purpose, cannot, by selling, impair the right of his neighbor to that protection.

If our conclusion as to the proper construction of the clause in question is correct, it follows that the plaintiff is entitled to a- perpetual injunction. The law does not permit the injurious act to be done, and leave the owner of the dwelling-house to an award of damages ; it prohibits the injurious act itself. And upon showing that he is of the class coming within the protection of the law, the plaintiff is entitled to have the prohibitory provision enforced by the court.

We are not called upon to determine what the rights of the parties would have been had the facts shown that the portion of the grounds to be devoted to burial purposes is two hundred yards distant from the plaintiff’s dwelling-house. No such case is made. The answer itself avers that the part of the grounds devoted to burial purposes is distant from the house one hundred and seventy feet, and there is nothing in the record to show that any portion of the land purchased is farther away than two hundred yards.

Judgment of the circuit court reversed, demurrer to answer sustained, and judgment for plaintiff.

Williams, C. J.,

(dissenting.) I am unable to concur in the foregoing decision.

The argument of the majority opinion culminates in the conclusion that the last clause of section 1464, of the Revised Statutes, must be read- as follows: “ nor shall any land be devoted to cemetery purposes lying within two hundred yards of a dwelling-house.” This reading of the statute, not only ignores a part of its language, but is at variance with its plain terms. The section expressly provides two modes of acquiring lands, by the trustees of a township, for cemetery purposes; one by purchase or donation, and the other by-appropriation proceedings. The former is accomplished with the consent of the owner, the latter without his consent. The power of the trustees to acquire lands’for such purpose, by purchase or donation, is conferred by the first clause of the section, in the following language: “ The trustees may accept a conveyance of, or purchase, inclose, improve, and protect such lands, in one or more places within the township, as they deem necessary and proper for cemetery purposes.” It will be noticed that there is no limitation upon the power of the trustees, under this clause, to purchase, or accept a conveyance of such lands, either as to the quantity of the land, or as to its condition, location or situation, except that it must be within the township. In the purchase of lands for cemetery purposes, as well as in the acceptance of a conveyance of land for such purpose, within their township, the trustees are left to the free exercise of their best judgment, concerning the quantity necessary and proper, and the location and situation thereof. They are authorized, in the language of the statute, to thus acquire “ such lands in one or more places within the township, as they deem necessary and proper.” It is evident that the remainder of the section, that is, all of it except the first clause, relates entirely to the appropriation of private property, for cemetery purposes, by legal proceedings on the part of the trustees. Its language is, “ and if suitable lands cannot be procured by contract on reasonable terms, they (the trustees) may appropriate lands therefor, not exceeding ten acres, by proceedings in accordance with the provisions of law regulating the appropriation of private property by municipal corporations; but no such appropriation shall be made until the court is satisfied that such lands cannot be obtained by contract on reasonable terms, nor shall any lands be-so appropriated on which there is any house, barn, stable or other building, or any orchard, nursery, medicinal or mineral spring, or well yielding oil or salt water; nor shall any land be so appropriated within two hundred yards of a dwelling-house.”

The power of appropriation by legal proceedings, conferred on the trustees by this section, is subject to three clearly defined restrictions or qualifications; one of which, limits the quantity of land that may be so appropriated, to ten acres; another, exempts from such appropriation, lands on which there is a house, barn, stable, or other building, or an orchard, nursery, medicinal or mineral spring, or well yielding oil or salt water; and the only other one, is that contained in the last clause of the section, which prohibits the taking of lands by such an appropriation, which lie within two hundred yards of a dwelling-house. All of them, it is manifest upon the reading of the section, are merely limitations upon the exercise, by the trustees, of the power of eminent domain. They neither have any application to the first clause of the section, nor in any way limit, or affect the authority conferred by it on the township trustees, to “ accept a conveyance of, or purchase, inclose, improve and protect such lands, in one or more places within the township, as they deem necessary and proper ” for cemetery purposes. It is not claimed that the trustees may not, in the proper exercise of the power conferred on them by the first clause of the section, purchase and use for a cemetery, more than ten acres of ground; and it is conceded that they may so acquire and use any lands on which there is a house, or other building, orchard, nursery, spring, or well yielding oil or salt water. To sustain the decision announced in the case, it becomes necessary, therefore, to hold that the phrase “so ■appropriated,” in the last clause of the section, means “ devoted to the uses of a cemetery,” and does not refer to an appropriation by legal proceedings. In my opinion, the reading of the section shows, that this is a strained and far fetched conclusion. I do not doubt that the word “appropriate,” when used in certain connections, may mean “to apply or devote to ; ” but obviously it was not used in that .sense in the clause under consideration. It is there qualified by the word “so,” and the phrase “so appropriated,” refers to a mode or manner of appropriation previously specified or described; and by reference to a previous clause of the same section, it will be seen, that there, a particular mode of appropriation is specified, namely, an appropriation of private property for a public use by proceedings in accordance with the provisions of law regulating the appropriation of private property by municipal corporations. In the subsequent clauses of the section, instead of repeating specifically the character or manner of the appropriation, it is referred to by the phrase “ so appropriated.” It is admitted that this is so, in the clause next preceding the last one in the section. That clause reads, “ nor shall any lands be so appropriated on which there is any house,” etc. There can be no question that the phrase “ so appropriated,” in that clause, refers to the appropriation by legal proceedings as specified in the preceding clause. That it does so, the learned judge who wrote the majority opinion, admits. And jret, it no more certainly refers to the appropriation by legal proceedings, specified in the previous clause of the section, than does the same phrase, “ so appropriated,” in the last clause of the section. There is nothing in the context, which gives to the same phrase in the different clauses of the same section, different meanings. If the legislature had intended to prohibit the use, for a cemetery, of lands acquired by the trustees under the first clause- of the section, that were within two hundred yards of a dwelling-house, it was easy to express that intention in plain terms. But no such intention is expressed. In the enactment' of the section, the legislature had before it the subject of the appropriation of private property for the public use of a cemetery, by legal proceedings, as distinguished from the acquisition of property for such a purpose by purchase or donation; and by the section, the authority to appropriate lands for such purpose, by the exercise of the power of eminent domain, is conferred on the township trustees, subject to certain limitations therein prescribed, one of which, as before stated, is that lands shall not be “ so appropriated ” within two hundred yards of a dwelling-house. It is difficult to see how clearer, or more apt language, could have been employed to express that legislative intent. It could not have been more clearly and certainly expressed, if, instead of the words “ so appropriated,” the language in the last clause had been, “ appropriated as aforesaid,” or “ appropriated in the manner aforesaid,” or “ appropriated by proceedings in accordance with the provisions of law, regulating the appropriation of private property' by municipal corporations.” The phrase “so appropriated,” is equivalent to a repetition of the previously specified manner of appropriation, and excludes the meaning attempted to be given to it by the majority opinion, which seems to overlook, or disregards the effect of the qualifying word “ so,” in that phrase. This appears so obvious that it is sought to justify the conclusion of the majority of the court, that the phrase in question should be read as if it were written, “ nor shall any land be devoted to cemetery purposes lying within two hundred yards of a dwelling-house,” upon the supposition, that to give effect to the clear and unambiguous language of the section, makes the act inconsistent, unreasonable, and in conflict with its object 'and policy; while the language which the majority would substitute for that contained in the section, it is claimed, makes the statute harmonious, and conforms it to the intention of the legislature in enacting it.

Speculations may be indulged in, like those advanced in the majority opinion, concerning a supposed legislative intention which is not expressed in the statute; but they are mere conjectures which, in order to sustain them, or give them plausibility, require the radical change in the language of the section, already referred to. This is not construction, but reconstruction, which is the province of the law-making power, and not of the courts. It is undoubtedly true, that if the language of a statute is fairly susceptible of more than one interpretation, that construction will be given it which will best effectuate the intention and purpose of its enactment, as ascertained from the whole statute. But courts “ must not, even in order to give effect to what they may suppose to be the intention of the legislature, put upon the provision of a statute a construction not supported by its words, even although the consequences should be to defeat the object of the act.” Smith on Statutory Construction, sec. 714. “ Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction.” Sedgwick on Statutory and Constitutional Law, 195. Story, J., in Gardner v. Collins, 2 Peters R. 93, states the rule which should guide in the construction of statutes as follows:

“ What the legislative intent was, can be derived only from the words they have used; and we cannot speculate beyond the reasonable import of these words. The spirit of the act must be extracted from the words of the act, and not from conjectui’e.”

In the Last Will of Hathaway, 4 Ohio St. 385, it is said, “ a court is not allowed to make an interpretation contrary to the plain and express letter of the law.” And this court held, in Woodbury v. Berry, 18 Ohio St., 456, that “ Where the words of a statute are plain, explicit and unequivocal, a court is not warranted in departing from their obvious meaning, although from considerations arising outside of the language of the statute, it may be convinced that the legislature intended to enact something different from what it did in fact enact.”

The argument in support of the conclusion arrived at by the majority opinion is, that it was the purpose of the act to prohibit the location of a cemetery nearer to a dwelling-house than two hundred yards, because the last clause of the section prohibits the trustees from condemning property for such purpose, which lies within that distance of such a house, which, it is contended, is inconsistent with the power to acquire lands for a cemetery that are within two hundred yards of a dwelling, when the trustees are acting under their general authority, conferred by the first clause of the section, to accept a conveyance of, or purchase such land as they deem necessary and proper for such purpose. The argument admits that the appropriation referred to in the last clause, is an appropriation by condemnation proceedings; and that meaning is relied on to raise the supposed inconsistency in the statute; and then, the inconsistency, so raised, is used to show that the language of that clause should not receive that, but an entirely different meaning. But, if because the trustees are prohibited from condemning lands within the specified distance of a dwelling, they are also prohibited from locating a cemetery within that distance, it must follow, that since they are authorized to condemn immediately outside of such limit, they are also authorized to locate a cemetery there ; and if so authorized, however injurious it may be, or become, to the owner of the dwelling, or its occupants, neither would have any remedy to prevent it. It may occur, that owing to the condition and location of the land used for cemetery purposes, and that of the dwelling, the cemetery, though more than two hundred yards from the house, would produce great injury to the owner, while a situation might easily be selected which, though within less than the distance named of the house, would cause no damage or injury whatever. Under the construction given the clause, to prevent the act which causes no injury, the owner of the dwelling may have an injunction ; but to prevent the one which does him real injury, he may have none. The truth is, the section does not attempt to prescribe where the trustees may, or may not locate a cemetery within their township, or control their action in that respect, when acting under the first clause, but it does place limitations upon their power to condemn property for cemetery purposes, by legal proceedings, when acting under the subsequent clauses; neither of which clauses makes it unlawful for them to acquire by purchase or donation, land for such purpose, though a dwelling-house may be within two hundred yards of it.

Regarding the clause in question as simply a limitation on the exercise by the trustees of the power of eminent domain, and allowing the language to have effect according to its plain terms and import, protection from actual injury will be fully afforded the owners of property lying adjacent to lands selected for cemetery purposes. In the case before us, the circuit court heard the evidence, and found, that in view of the condition and location of the land which the defendants in error had obtained for the cemetery, and the location of the house of the plaintiff in error with respect to it, no injury could result to the plaintiff from the location of the cemetery as made; and to that finding he took no exception, and makes no complaint conceiming it, here; so that, the judgment of this court, reversing that of the circuit court, amounts to this; that the plaintiff in error, though sustaining no injury whatever, may by injunction prevent the use of the cemetery, located by the defendants in error, merely because some one of its boundary lines is, at some point, nearer than two hundred yards to the dwelling on his land; and he may do this, not because such use is a violation of the terms of the statute, but of a supposed legislative intention not expressed.


author: MiNSHAil, J.

text:
    Pennsylvania Company v. Lombardo.
    Champerty— When does not affect plaintiff.

    Whilst a champertous agreement between a plaintiff and his attorney for the prosecution of a certain suit, is against public policy and void, it does not affect the right of the plaintiff to prosecute his action against the defendent in the suit, for the prosecution of which, the champertous agreement was made.
    (Decided January 19, 1892.)
    Error to tbe Circuit Court of Mahoning county.

      J. R. Cary and W. C. Boyle, for plaintiff in error.
    1. There is no statute against the offense of champerty in this state. Nor is the common law in relation to the punishment of crimes and misdemeanors in force here. But our Supreme Court has always held that such contracts are against public justice, and injurious to the peace and happiness of the community, and, for these reasons, void. The punishment meted out to the champertor is the denial of relief under the illegal contract. Key v. Vattier, 1 Ohio, 58; Weakly, etc., v. Hall, etc., 13 Ohio, 167; Stewart v. Welch, 41 Ohio St., 483.
    But we here raise a different, and, so far as this state is concerned, a new question. The plaintiff sues on a tort, and it is discovered, incidentally, in the midst of the trial, that the case is being prosecuted under and in pursuance of a champertous contract between the plaintiff and his attorney. The court is at once asked to punish the champertous act by dismissing the action.
    Did the facts in this case show champerty? 4 Blackstone’s Com. 135; Keys}. Vattier, 1 Ohio, 60; Weakly, etc., v. Hall, etc., 13 Ohio, 167; Scobey v. Ross, 13 Ind., 117; Quigley v. Thompson, 53 Ind., 317; Thurston v. Percival, 1 Pick., 415; Byrd v. Odem, 9 Ala., 755; Lathrop v. Amherst Bank, 9 Met., 489; Backus v. Byron, 4 Mich., 535; Martin v. Clarke, 8 R. I., 489.
    2. As to the policy of punishment, there c.an be no doubt. But the duty of the court is only half accomplished by confining the punishment to suits brought on champertous contracts. It is just as much an offense against justice; just as much contempt of court, where it appears in the prosecution of a suit not based upon such a contract. If such acts are encouraged, and greater opportunities thereby given to the unscrupulous attorney, the courts will be clogged with suits which are brought for no other purpose than extortion. The disposition to settle controversies will be thwarted. There will be two claimants to satisfy instead of one, and the champertor the greedier of the two. The old-fashioned honor and dignity of the profession will be cast aside, and he will go forth to solicit business. Purity in the administration of justice requires that such acts be punished, whenever and however discovered. Stewart v. Welch, 41 Ohio St. 483; Greenman v. Cohee, 61, Ind., 201; Barker v. Barker, 14 Wis.,.142; 29 Wis. 502; Hunt v. Lyle, et al, 8 Yerg., 142;
      Webb v. Armstrong, 5 Hump. (Tenn.) 379; Morrison v. Deaclerick, 10 Humph., 342.

      Geo. F. Arrel, Frank Jacobs and W. S. Anderson, for defendant in error.
    The plaintiff only complains pf the refusal of the trial court to dismiss the action on the ground of champerty, and of the refusal of the trial court to charge its 5th request. The motion to dismiss was addressed to the court, and unless the court was satisfied from the evidence that the alleged champertous contract was made out, the court was not required, in any event, to dismiss .the action. The question as to whether or not the alleged champertous contract was made, was a question of fact, to be determined in the first instance by the trial court, and the evidence failed to satisfy that court that such contract was in fact made, and the evidence failed to satisfy the circuit court that .such contract was made, or at least the circuit court was not satisfied that the common pleas committed manifest error in refusing to dismiss the action on that ground. As we understand the rule, this court will not look into the record with a view of determining any disputed question of fact from the evidence.
    Therefore, We insist that, upon the ground stated, the judgments of the courts below shall not be disturbed by this court.
    But how stands the evidence on the question as to whether or not a champertous contract was made by the attorney with his client? The evidence is that Jacobs was to receive one-half of the amount recovered. This does not establish such contract; it only shows an agreement on the part of the client to pay his attorney a contingent fee, and hence falls short of showing a champertous contract.
    In order to render a contract champertous it .must contain a stipulation on the part of the attorney to carry on, or pay the expenses of the litigation.
    Again, it is claimed that the contract between Eombardo and his attorney was champterous because the attorney in his affidavit for the arrest of his client states that Eombardo bound himself not to settle except through his attorney, assuming that the law would hold a contract containing such stipulation champertous.
    The proceeding which resulted in the arrest of Eombardo may have been and was ill-advised, but it certainly should not be permitted to defeat him in his efforts to collect a claim, which is now substantially conceded to be just, against the plaintiff in error.
   MiNSHAil, J.

It appears from a bill of exceptions, taken at the trial, that, during its progress, it was developed by an examination of the plaintiff, that the cause was being prosecuted by him under an agreement with his attorney, whereby the latter was to have one-half of the recovery as a compensation for his services; and that evidence was also offered by the defendant tending to prove, that the attorney was to pay all costs and expenses, and that no settlement or compromise should be made by the plaintiff without his consent. .Thereupon the defendant moved the court to dismiss the action on the ground that it was being prosecuted under a champer-tous agreement between the plaintiff and his attorney. The motion was overruled and exception taken.

Exceptions were also taken to the rulings of the court on the admission and rejection of testimony, and to certain parts of its charge, and its refusal to charge as requested; but as the assignments based on these rulings are not relied on in argument, no further notice need be taken of them, than to say, they show no grounds for a reversal of the judgment.

The principal question argued to the court, and the one we propose to notice, is that raised by the motion to dismiss the action, on the ground that the- evidence disclosed, that the action was being prosecuted under a champertous contract between the plaintiff and his attorney.

It seems well settled by the previous decisions of this court, that a contract between an attorney and client by which the former is to prosecute the action at his own expense, and receive for his compensation a part of the recovery, is against public policy, and cannot be enforced; and it seems that this would be the case in a contract by which the attorney is simply to receive a part, coupled with a stipulation that no compromise or settlement is to be made without his consent. Key v. Vattier, 1 Ohio, 132; Weakley v. Hall, 13 Ohio, 167, and Stewart v. Welch, 41 Ohio St., 483. In all the cases in which the question has heretofore arisen in this state, an illegal or champertous agreement was sought to be enforced or relied on for relief. Thus in Key v. Vat-tier, a recovery was sought for a breach of the covenants of a champertous agreement; in Weakly v. Hall, to a plea of release since the last continuance, the terms of such an agreement were interposed by a reply in avoidance of the plea; and in Stewart v. Welch, the plaintiff’s title to the chose and his right to maintain the action, rested upon his agreement with the assignor, which the court found and held to be champertous: The plaintiff, Welch, was to prosecute the suit in his own name and at his own expense, and account to the assignor for a definite part of the recovery. But, in the case under review, the facts are wholly different in this regard. It is not based upon any agreement between the attorney and the client in regard to compensation'of the, attorney for his services. It is a suit to recover damages resulting to the plaintiff from the the tort of the company, and the agreement between the plaintiff and his attorney is wholly extraneous to its prosecution and is in no way relied upon for relief. The question as now presented, is a new one in this state, as counsel for the plaintiff in error, is frank enough to admit. It is, whether the courts should not merely defeat any claim based upon the illegal agreement, but should go further, and by way of, punishment, also defeat the right of the plaintiff to recover in the action, touching the prosecution of which he has made a champertous agreement with his attorney? Some cases are cited in support of this view; but they are contrary to the greater weight of authority, and seem unsupported by satisfactory reasons. It would seem that the law, on grounds of public policy, goes quite far enough, when it defeats any advantage that may be sought by an enforcement of the agreement, without visiting upon the plaintiff a forfeiture of his right of action in the suit, for the prosecution of which, the attorney has been employed. This is in analogy, to our law in regard to usurious contracts, which simply defeats the usurious agreement, without affecting the right of the usurer to recover the,principal loaned with interest at the legal rate — champerty, like usury, not being an offense punishable by indictment in this state.

It is stated by the author of a well written article on the subject, contained in 3 American and English Encyclopaedia of Law, 68, 86, that, “The better opinion would appear to be that the defense of champerty can only be set up when the. champertous contract itself is sought to be enforced, and that the existence of a champertous agreement between the plaintiff and his attorney, or the fact that the plaintiff is prosecuting the case upon a contingent interest in the sub-, ject-matter of the litigation dependent upon success, is no defense to the action against the defendant.” An examination of the citations fully sustains the statement. . In one of the cases cited, Hilton v. Woods, L. R. 4 Eq. Cas. 432, Malins, V. C. said: “I have carefully examined all the authorities referred to in support of this argument (.that the agreement between the plaintiff and his attorney being champer-tous, required the suit to be dismissed), and they clearly establish that whenever the right of the plaintiff, in respect of which he sues, is derived under a title founded on champerty or maintenance, his suit will on that account necessarily fail. But no authority was cited, nor have I met with any, which goes the length of deciding that when a plaintiff has an original and good title to property, .he becomes disqualified to sue for it by having entered into an improper bargain with his solicitor, as to the mode, of remunerating him for his professional services in the suit, or otherwise.”

So that it is immaterial whether a champertous contract was shown by the evidence or not; for, admitting the agreement between Rombardo and his attorney to have been as claimed by counsel for the defendent, it whs not sought in the action against the company to enforce it, or derive any benefit from it.

Judgment affirmed.


author: DickmaN J. Bradbury, J.,

text:
    Alliance v. Joyce.

      Sale of intoxicating liquors at retail — Construction of. section 1862, Revised Statutes.

    By virtue of the 11th section of the act of March 14, 1886 (83 Ohio Laws, 157), known as the’“Dow Law,” the council of the city of Alliance, in July, 1888, passed an ordinance, to prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail. Section 3 of the ordinance provided as follows :
    “Any person, or persons, violating any of the provisions of this ordinance, shall, upon conviction thereof, be fined for the first offense, not less than fifty dollars nor more than two hundred dollars, and for each subsequent offense, not less than two hundred dollars nor more than five hundred dollars.” Held:

    1. That the above section of the ordinance is not in conflict with section 1862 of the Revised Statutes.
    2. That under section 1862 of the Revised Statutes, a fine prescribed in a municipal ordinance, of more than fifty dollars for any specific offense, or more than double that sum for each repetition of such offense, is not to be deemed in all cases unreasonable; but, the ordinance may, in some cases, be enforced by a fine greater than is specified in section 1862, it being lawful for the court or magistrate, in any suit or prosecution for the recovery of the increased fine, to reduce the same to such amount as may be deemed reasonable and proper by the court or magistrate.
    (Decided January 2, 1892.)
    Error to the Circuit Court of Stark county.
    On the 19th day of July, A. D. 1888, an ordinance was passed by the council of the city of Alliance, in Stark county, a true copy of which is as follows, to-wit:
    “AN ORDINANCE.
    “To prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail.
    “Section 1 — Be it ordained and enacted, That it shall be unlawful for any person, or persons, to keep within the limits of said city, any ale, beer or porter house.
    “Sec. 2 — Be it further ordained and enacted, That it shall be unlawful for any person, or persons, to keep any place within the limits of the city of Alliance where intoxicating liquors are sold at retail, for any purpose, or in any quantity, otherwise than upon prescription issued in good faith by a reputable physician or physicians, in active practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes. But nothing herein contained shall prevent the manufacturing of intoxicating liquors from the raw material, and the sale thereof at the manufactory by the manufacturer of the same, in quantities of one gallon or more, at any one time.
    “Sec. 3.- — -Any person, or persons, violating any of the provisions of this ordinance, shall, upon conviction thereof, be fined for the first offense, not less than fifty dollars ($50) nor more than two hundred dollars ($200), and for each subsequent offense, not less than two hundred dollars ($200), nor more than five hundred dollars ($500).

      “Sec. 4 — That an ordinance entitled, “An ordinance to prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail,” passed October 6th, 1886, and an ordinance entitled, “An ordinance to amend section 3 of an ordinance, entitled, An ordinance to prohibit, ale, beer and porter houses, and. other places where intoxicating liquors are sold at retail,” passed June 4th, 1888, be, and the same are hereby repealed.
    “Sec. 5 — This ordinance shall take effect, and be in force when ten days shall have elapsed, after its passage and due publication.”
    Under this ordinance, the defendant in error, Robert Joyce, was arrested on the 29th day of September, A. D. 1888, upon a warrant issued by the Mayor of the city of Alliance, for unlawfully keeping within the limits of that city, a place where intoxicating liquors were sold, at retail, in quantities of less than one gallon, otherwise than upon prescription, issued in good faith by a reputable physician or physicians, in active practice, or for known mechanical, pharmaceutical or sacramental purposes, the said Robert Joyce not being a manufacturer of the liquors so sold.
    On the 2d day of October, A. D. 1888, he was tried and found guilty as charged, and the following sentence was pronounced upon him by the Mayor's court, to-wit: “It is the sentence of the court that the defendent, Robert Joyce, pay a fine of two hundred dollars and the costs of the prosecution, and that he stand committed to the Cleveland Workhouse, of Cleveland, Ohio, until the fine and costs are paid, or secured to be paid, or until he be otherwise discharged according to law.”
    The defendant thereupon moved the court for a new trial, which motion was overruled, and a bill of exceptions taken upon the trial of the case, was prepared and filed.
    A petition in error was then filed in the court of common pleas by the defendant in error, and on the 9th day of January, A. D. 1889, the judgment of the Mayor’s court was affirmed.
    A petition in error was thereupon filed in the circuit court of Stark county, to reverse the judgment of the court of common pleas, and on the 11th day of October, A. D. 1890, the circuit court heard the petition in error, and in consideration thereof, found that there was error in the proceedings in this, to-wit: “That the court of common pleas erred in affirming the judgment of the Mayor’s court of the city of Alliance, for that there is error apparent upon the record of the proceedings of the Mayor’s court, to the prejudice of the plaintiff in error, in this, to-wit: in the assessment of the fine of two hundred dollars and committing plaintiff in error to the Cleveland Workhouse until said fine and costs of prosecution were paid. It is therefore considered by the court that the judgment of the court of common pleas, and of said Mayor’s court be reversed and held for naught at the costs of the defendant in error, assessed at $-, for which judgment against defendent in error is rendered. It is further ordered that this cause he remanded to the Mayor’s court of the city of Alliance for execution, and that a special mandate be sent to said court to carry this judgment into execution.”
    The plaintiff in error in this proceeding, The.City of Alliance, seeks to reverse the judgment of the circuit court, and to have the judgment of the court of common pleas of Stark county affirmed.

      Powell, Owen, Ricketts & Black, for plaintiff in error.
    Full power is given to municipal corporations to pass ordinances such as the one under consideration in this case, and authority to enforce them by the imposition of fines, penalties, and forfeitures, by Section 1861 of the Revised Statutes of Ohio.
    There is no limitation upon the power of municipal corporations to impose fines, forfeitures, and penalties for the violation of an ordinance. in Section 1861, or in Section 1862; but, if the fine, penalty, or forfeiture exceeds the sum of fifty dollars, a discretionary power is vested in the court, or magistrate trying the case, to reduce the fine or penalty to such amount as may be deemed reasonable, provided the reduction is not below fifty dollars, which is declared by the statute to be a reasonable fine in any case. The discretionary power to reduce the fine or penalty is vested in the trial court and not in the reviewing court. Whenever the trial court has exercised its discretion, and imposed such a fine as may be deemed reasonable, there is no discretion vested in any other court to review the decision of the trial court, at least so far as the amount of the fine is concerned. In this case the trial court deemed two hundred dollars and costs to be a reasonable fine, and we claim that the court, having exercised its discretion, the judgment is not reviewable in error.
    The claim of the defendent that our legislature intended to provide, by Section 1862, that municipal councils should not impose a fine exceeding fifty dollars for a first offense, and one hundred dollars for a repetition of the offense, cannot be maintainéd. Such a construction would defeat the evident purpose of the statute and prevent the court from exercising any discretion in any case as to the amount of fine imposed. Such a construction would render the statute so inconsistent and contradictory as to not onl}- defeat the object of it, but render it absolutely void.
    The ordinance in this case was passed “to prohibit ale, beer, and porter houses,” and not to regulate them. The object of the ordinance was to make such places unlawful and prevent their existence.
    To carry out this purpose it became necessary to impose such penalties as would prevent frequent or continuous violations of the ordinance.
    It is evident to everyone that to prohibit the sale of intoxicating liquors larger penalties must be imposed in some places than in others, and that which would drive one man out of the business would entirely fail in the case of another.
    It will be observed that the statute does not require a court, in any case, to reduce the fine or penalty which has been imposed; nor does the statute confer upon the accused, in any-case, the right to demand a reduction of a fine imposed by the ordinance. It only confers upon the court authority to exercise such power, in case the court sees proper. In other words, the authority conferred upon 'the trial court is a matter of discretion entirely, and the refusal of the court to exercise such discretion cannot be reviewed, nor can the judgment which the court imposes, in its discretion, be reviewed upon procedings in error. In other words, we claim that the fine or penalty imposed by the statute shall be the judgment rendered by the trial court, unless such court sees proper to reduce it; and if the trial court sees proper to permit a recovery for the entire fine, such judgment is final and not the subject of review. Goldsmith v. Hand, 26 Ohio St., 108; Legg v. Drake, 1 Ohio St., 286; People v. N. Y. C. R. C., 29 N. Y., 431.
    It will be seen that there is nothing in the record of this case to indicate that the court did not exercise its discretion, and did not think that, in its judgment, a fine of $200 was reasonable.
    If, therefore, it comes within the rule that where a power to exercise a discretion on the part of the court is admitted, and the question raised as on the propriety of the exercise of the discretion upon the facts of the particular case, it cannot be reviewed upon error. Powell on Appelate Proceedings, 164, 165, 197.
    Again, we claim that if the judgment of the trial court in fixing the amount of the fine is subject to be reviewed upon error, the reviewing court cannot reduce the fine below the amount fixed by the statute, to-wit: fifty dollars. In this case the trial court, if it had thought proper, could have reduced the fine to fifty dollars, but not below that amount. Of course the reviewing court would have no more power upon this point than the trial court, and, therefore, when the circuit court set aside the entire fine instead of reducing it to fifty dollars, error was undoubtedly committed.

      Wm. C. Pippitt, for defendant in error.
    There is no better established legal proposition than that municipal corporations have such rights, powers and privileges, only, as are conferred upon them by law. The charter, or the general law under which they exercise their powers, is their constitution, in which they must show authority for the acts they assume to perform. They have no inherent jurisdiction to make laws or adopt regulations of government; they are governments of enumerated and circumscribed powers, acting by a delegated authority, and while the state legislature may exercise such powers of government, coming within the designation of legislative power, as are not expressly or impliedly prohibited by the organic law of the state, the councils of the municipalities can exercise those only which are expressly or impliedly conferred by statute, and then only subject to such regulations and restrictions as are imposed by the statute delegating the authority; they cannot define for themselves their own rights, privileges and powers, they must look to the state for such charters of government as the legislature shall see fit to provide, and they cannot prescribe for themselves the details.' Municipal' ordinances must be consistent with the act or charter of incorporation, not conflicting with it, either in letter or manifest intention. They must also be harmonious with the general statutory and common law of the state which they cannot, without express authority in the act of incorporation, supercede. Bishop on Statutory Crimes, Sec., 22; Dillon on Munic. Corp./Sec. 300; Cooley’s Const. Dim., 191; City of Canton v. Nisi, 9 Ohio St., 439; Thompson v. City of Mt. Vernon, 11 Ohio St., 688; Booth v. Town of Woodbury, 32 Conn., 118; Allen v. Inhabitants of Edgewood, 53 Me., 446; Leavenworth v. Norton, 1 Kansas, 432; Kyle v. Malm, 8 Ind., 34; Bill of Rights, Section 9.
    Thus we have our legislature, in harmony with its constitutional restrictions, providing in plain and unambiguous words, by the provisions of section 1862, fifty dollars as the sum beyond which municipal councils cannot go, in providing a penalty for a first offense, and one hundred dollars as a limit to the penalty on repetition of the offense.
    But should the reasons already given for the construction of Section 1862, claimed on behalf of defendant in error, lack conclusiveness in the estimation of any, for the benefit of such I call attention to the rules of construction applicable herein, and of these: The rule that penal laws are to be construed strictly, has been said to be not much less old than construction itself. Bishop’s Crim. Daw, Vol. 1, Secs. 224, 225, 249, 250; United States v. Wittberger, 5 Wheat. 75, 95, 96; State v. Stephenson, 2 Bailey, 334; State v. Mc-Omber, 6 Vt., 215; Leonard v. Bosworth, 4 Conn., 421; United States v. Wigglesworth, 2 Story, 369; The People v. Howell, 4 Johns, 229.
    Again, the legislature having provided, in said Section 1862, that a fine, for a first offense, in any sum from fifty dollars, down the pathway of mercy to a nominal fine, shall be deemed reasonable, have designated that range as the realm of reasonability, and thus circumscribed the power of municipal councils, in the imposition of penalties, to its domain. And this becomes more apparant when we apply the familiar maxim to its interpretation, that “ Exprés sio unius est, exclusio alterius,” or in other words, the express mention of one thing implies the exclusion of another. Broom’s Regal Maxims, 592, 593; Head v. I?isu7rance Company, 2 Cranch (U. S.,) 127; Dillon on Municipal Corp. Secs. 278, 274, 275, 277; Grand Rapids v. Hughes, 15 Mich., 54; Hart v. Mayor, 9 Wend., 571; Courson's Executors v. Courson, 19 Ohio St., 454.
    Another rule of construction requires all legislation in derogation of the common law to be strictly construed. Hobb, 298; Plowd., 206, b; Kent’s Com., Vol. 1, 467, n b.
    The foregoing principles are applicable to this case, for the acts with which defendant in error stands charged, are criminal, neither by the common law nor the statutory laws of Ohio, and become criminal in character, only when the municipal council of the City of Alliance have lawfully exercised- the power delegated to them by the eleventh section of the Dow Raw, by which they may make them malum pro-hibitum, and provide a penalty thereto, in the manner and within the limits prescribed by sections 1861 and'1862 of Revised Statutes.
    By the passage of section 3 of the ordinance, the council of the City of Alliance, has attempted to adopt an entire new measure of penalties, from the one handed down and delegated to them by the legislature of the State of Ohio, in section 1862, of the Revised ¿Statutes.

      It can not be said that fines in excess of fifty dollars, for the first offense, and one hundred dollars for the second offense, may be reasonable also; for if so, then the mention of fifty dollars in the one case, and one hundred dollars in the other, is a mere idle use of words, a thing not to be attributed to the legislature, and especially not, in criminal legislation.
    We cannot go to the common law and derive authority to impose a penalty in this case for the very good reason, that the penalty at common law for misdemeanors was fine or imprisonment, or either of them, and if such be the penalty, to be administered within the discretion of the court, then imprisonment being a part of the penalty liable to be imposed, the defendant in error would be entitled to a constitutional trial by jury, unless waived in writing. The record shows no such waiver and such trial, hence, any conviction without the intervention of a jury, or a waiver thereof, would forbid basing the penalty on the usages and customs of the common law.
    View the situation from whatever standpoint we may, the conclusion is irresistable, that the germ of the principle that actuated the legislature in designating the sum of fifty dollars in the one case, and double that sum in the other, is to be found in section 9 of our state constitution which forbids the imposing of excessive fines, that their object and intent was to guard against the imposition of excessive fines by municipal corporations, and not a restriction on mercy and leniency, as the council of the City of Alliance seems to have supposed. Bishop on Statutory Crimes sec. 21; Bishop’s Criminal Raw sec. 719; Smith v. State, 12 Ohio St., 469.
    It is also to be observed that the fine of two hundred dollars imposed on defendant iñ error, by the Mayor’s Court of the City of Alliance, was for a first offense. Bishop’s Statutory Crimes, sec. 240-981; Bishop’s Criminal Procedure Vol. 1, sec.293; Commonwealthsr.Miller, 8 Gray (Mass.) 484.
    The action of the municipal court can not be sustained, upon the ground that the amount of the fine was a matter resting within its discretion, and therefore not reviewable on error, for the very good reason that that which affects injuriously a right of a party, is never the subject-matter of discretion, and this infringes the constitutional right to acquire and hold property. Segg v. Drake, 1 Ohio St., 289.
    That the judgment rendered against the defendant in error is erroneous and voidable, will appear by reference to the holding of this court in the case of Exparte, Van Hagan, 25 Ohio St., 432; Shepherd v. The People, 25 N. Y., 407.
    Eet us now turn to the last clause of section 1862 of the Revised Statutes of Ohio.
    Here we see that the legislature has come to the assistance of the court and vested it with authority, pointed out its pathway and defined its duty, in cases where the municipal council have exceeded their authority, and in the language of the statute imposed a greater fine “than as above specified,” or in other words, have imposed'a greater fine than fifty dollars for the first offense. Alderman Blackwell’s case, 1 Vem., 152; King v. Barlow, 2 Salk., 609; King v. Inhabitants of Derby, Skinner, 370; 'King v. Mayor of Hastings, 1 Dowl., and Ry., 148; Newburg Turnpike Co. v. Miller, 5 Johns’ Ch., 113.
    Now, inasmuch as fines for a first offense, that do not exceed the sum of $50, are the only ones that are undoubtedly and beyond a peradventure within the haven of safety, established by the legislaüire, and the only ones which at all hazards, must be deemed reasonable, and undoubtedly free from the imputation of being unreasonable, it was the duty of the mayor’s court of the city of Alliance to keep within said limit and not venture beyond the jurisdiction conferred. Bell Center v. Welsh, Cincinnati Raw Bulletin, Vol. 24, 177.
    The duty of reviewing courts, in cases like unto this, is very clearly portrayed by the action of the circuit, and the Su-pregie Court of Illinois. Petersburg v. Metzgar, 21 Ill., 204.
   DickmaN J.

On the 19th day of July, 1888, the council of the city of Alliance, passed an ordinance, to prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail. The defendant in error, Robert Joyce, in October, 1888, was convicted of violating the provisions of that ordinance, and was sentenced by the Mayor’s court to pay a fine of two hundred dollars and the costs of the prosecution, and to stand committed to the Cleveland Workhouse, until the fine and costs were paid, or secured to be paid. The question arises, whether the council had authority,- under the'statute law of the state, to enforce its ordinance by the imposition of a fine to that amount.

The authority to pass an ordinance prohibiting places where intoxicating liquors are sold at retail, was derivable from section 11 of the act passed May 14, 1886 (83 Ohio Raws 157), entitled “An act providing against the evils resulting from the traffic in intoxicating liquors,” and known as the “ Dow Raw.” That section provides that, “Any municipal corporation shall have full power to regulate, restrain and prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail for any purpose, or in any quantity,’’.otherwise than upon prescription issued in good faith by reputable physicians in active practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes, or at the manufactory by the manufacturer of the same.

Such general power vested in the municipality to prohibit places where intoxicating liquors are sold at retail, is, in itself, sufficient to authorize the adoption of an ordinance adequate to the object proposed. As an ordinance without a penalty would be nugatory, municipal coporations have an implied power to provide for their enforcement by reasonable and proper fines against those who violate them. Fisher v. Harrisburg, 2 Grant (Pa.) cas. 291; Barter v. Commonwealth, 3 Pa. (Pen. & W.) 253; Trigally v. Memphis, 6 Coldw. (Tenn.) 382.

But such power does not rest in implication alone. By Section 1861, of the Revised Statutes, it is provided as follows: “By-laws and ordinances of municipal corporations may be enforced by the imposition of fines, forfeitures, and penalties, on any person offending against any such by-law or- ordinance; and the fine, penalty, or forfeiture may be prescribed in each particular by-law or ordinance, or by a general by-law or ordinance made for that purpose; and municipal corporations shall have power to provide, in like manner, for the prosecution, recovery, and collection of such fines, penalties, and forfeitures.”

Standing alone, this section imposes no limitation upon a municipal corporation’s passing an ordinance making the fine for an offense discretionary within fixed reasonable limits, whereby, the tribunal might be enabled to adjust the fines to the circumstances of the particular case. And the section, taken by itself, would be no barrier, to the passage of an ordinance like that of the city of Alliance, imposing a fine, upon conviction, of not less than fifty dollars, nor more than two hundred dollars for the first offense.

But, it is urged, that the legislature, by the provisions of Section 1862 of the Revised Statutes, has established the sum of fifty dollars as the maximum, beyond which municipal councils cannot go, in fixing a pecuniary punishment for a first offense.

That section reads as follows: “Fines, penalties, and forfeitures which do not exceed the sum of fifty dollars for any specified offense, or violation of the by-law or ordinance, or double that sum for each repetition of such offense or violation, or which do not exceed ten dollars for each day where the thing prohibited .or rendered unlawful is, in its nature, continuous in respect to time, shall not be deemed unreasonable; but where in any by-law or ordinance a greater fine, penalty, or forfeiture is imposed than as above specified, it shall be lawful for the court or magistrate, in any suit or prosecution for the recovery thereof, to reduce the same to such amount as may be deemed reasonable and proper, and to permit a recovery or render judgment accordingly.”

The interpretation sought to be given this section would make it provide, that no city council shall impose a fine of more than fifty dollars for the first violation of an ordinance; but, if a greater fine should be imposed by the council, the court or magistrate may, in the exercise of a discretionary power, reduce the same to such amount as may be deemed reasonable — an enactment inconsistent and anomalous.

Upon the reading of this section it will occur, that there is a class of minor offenses, coming within the domain of municipal legislation, for which, a fine of fifty dollars, and much less, would be deemed amply sufficient; while, there are offenses against public morals and good government, prohibited bjr city ordinances, for the' enforcement of which a maximum punishment by fine beyond fifty dollars would be altogether proper and expedient. Thus, it is the common experience, that a law to prohibit places where intoxi-icating liquors are retailed, cannot be made effective without a stringent penalty for its violation. And hence, the legislature has provided by section 2 of the “Focal Option” law, passed March 3, 1888 (85 Ohio Raws, 55), that if at any election held under the provisions of the act, a majority of the votes cast by the qualified electors of any township, shall be against the sale of intoxicating liquors as a beverage, “it shall be unlawful for any person within the limits of such township * * * to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away or furnished; and whoever sells, furnishes or gives away any intoxicating liquors as a beverage, or keeps a place where such liquors are kept for sale, given away or furnished, shall be fined not more than five hundred dollars, nor less than fifty dollars, and imprisoned in the county jail not exceeding six months.”

Under section 1862, fines may be imposed within fixed limits, as for example, between one dollar 'and fifty dollars, for minor offenses, or for violations of municipal ordinances concerning local affairs in respect of matters not criminal in their nature. And between such limits, an ordinance may leave it discretionary with the court or magistrate, to impose a fine of not less than a designated minimum, and not more than a designated maximum sum. If the fine does not exceed the sum of fifty dollars for any specified offense or violation of the ordinance, in the language of the statute, “ it shall not be deemed unreasonable.” But, the section of the statute under consideration, contains no words forbidding the enforcement of an ordinance by a fine in excess of fifty dollars for the first offense. On the contrary, the reference to an imposition of a greater fine would indicate, that in some instances, it might become proper and necessary for municipal councils to attach a severer punishment than a fine of fifty dollars, as in the case at bar, in which the ordinance provides, that any person violating any of its provisions, shall, upon conviction thereof, be fined for the first offense, not less than fifty dollars nor more than two hundred dollars. And where it is provided in the statute, that a fine not exceeding fifty dollars “shall not be deemed unreasonable,” it would not follow, that a fine greater than that sum for an offense of a serious nature, would be deemed unreasonable for the enforcement of a municipal ordinance.

It would seem, that by reason of the probable need of an hncreased fine in certain cases, the legislature incorporated in section 1862 the provision we have before cited, that, “where in any by-law or ordinance a greater fine, penalty, or forfeiture is imposed than as above specified, it shall be lawful for the court or magistrate, in any suit or prosecution for the recovery thereof, to reduce the same to such amount as may be deemed reasonable and proper.”

But to what amount shall such reduction be made? If in the ordinance a fine of two hundred dollars for the first offense is imposed, it is not required that the fine shall be reduced to fifty dollars, as a reasonable or proper amount, but it will be within the meaning of the statute, if the court or magistrate either inflicts the full penalty, or reduces it to an3' um between fifty dollars and the maximum of two hundred dollars.

A reduction of the fine is not made compulsory, but is left entirely to the discretion of the court or magistrate. The statute declares that it shall be lawful to reduce the same to such amount as may be deemed reasonable and proper. That is, there will be no legal obstacle or objection to the reduction if it shall be deemed advisable; and it will not be unlawful if the court or magistrate shall decline to reduce, and enforces the ordinance by the highest fine thereby imposed. The discretion vested in the court or magistrate to thus reduce the fine would preclude the idea of requiring a reduction to a particular sum, or of establishing any other standard of what would be deemed reasonable and proper, than the judgment and discretion of the court or magistrate. Where a greater fine is imposed than that specified in section Í862, the statute does not determine what shall or shall not be considered unreasonable, but confides in the judicial tribunal to mitigate the punishment or not, as wisdom and justice may dictate.

It is contended in behalf of. the defendant in error, that in enacting that a fine not in excess of fifty dollars for any violation of an ordinance shall not be deemed unreasonable, it was the design of the statute to establish a criterion of what would be reasonable, and to place a check upon municipal legislation, and restrain municipal corporations from violating the constitutional inhibition against imposing excessive fines. And section 3 of the ordinance under consideration is pronounced invalid, and a fine of two hundred dollars for the first offense, it is claimed, is unreasonable and unauthorized by the statute. An irreducible fine above fifty dollars might, in some instances, prove unreasonable. But where a discretion is lodged in the court, in the light of all extenuating circumstances, if any, to reduce the penalty to a sum commensurate with the offense, the offender is not without protection against the excessive fines forbidden by the constitution. As said by Judge Cooley on the constitutional requirement, “Within such bounds as may be prescribed by law, the question what fine shall be imposed is one addressed to the discretion of the court.” Con. Rim. 6th Ed. 401. It is a discretion to be judicially exercised; and while cases may occur in which the punishment would be unreasonable, though not beyond any limit fixed by statute, in contemplation of law, a just mitigation of the penalty may safely be left to the sound discretion of the judge. The Mayor’s court sentenced the defendent in error to pay a fine of two hundred dollars, and the costs of the prosecution — the highest fine for a first violation of the provisions of the ordinance. But it is to be presumed that the court, actuated by a sense of justice, under the guidance of its best judgment, and in the exercise of the discretion reposed in it by the legislature, regarded a fine of two hundred dollars as not disproportioned to the offense. Municipal councils, as wé have seen, not being limited by section 1862 of the Revised Statutes, to the imposition of fines which shall not exceed fifty dollars for the first offense, and the court or magistrate being clothed with power to reduce the same- to an amount that may be deemed reasonable and proper, we cannot hold the penal section of the ordinance of July 19, 1888, to be without statutory authority and invalid.

The corpus delicti having been proved, and the Mayor’s court having, in the light of what was just and proper under the circumstances, and in the exercise of its plain discretionary power, fixed the amount of the fine to be paid by the defendant in error at two hundred dollars, we find no error in the action of the court in that regard, and we discover in the record no good ground for the circuit court’s reversing the judgment of the court of common pleas and of the mayor’s court. In settling the amount of the fine, there was no abuse of discretion on the part of the mayor’s court which was reviewable on error. “The exercise of an honest judgment, however erroneous it may seem to be, is not an abuse of discretion. Abuse of discretion, and especially gross and palpable abuse of discretion, which are the terms ordinarily employed to justify an interference with the exercise of discretionary power, implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.” Hogeboom, J. in The People v. The N. Y. C. R. R. Co., 29 N. Y. 431. For aught that is shown to the contrary in the record, the peace and order, and moral welfare of the community demanded that the court should impose the highest fine prescribed by the ordinance, in order to stop the sale of intoxicating iiquors at retail, at the place kept by the defendant in error. Judgment’s of courts oí competent jurisdiction are presumed to be well founded, and judges are presumed to do nothing cause-lessly or maliciously. Best Pres. 68; Sutton v. Johnstone, 1 T. R. 503. It is stated by Mr. FREEMAN in his treatise on Judgments (§272), as the generally recognized rule at the present day, that in the conclusive effect of every final adjudication is included every matter material to the disposition of the controversy, as made by the pleadings, when the cause is submitted for decision. It does not appear to the contrary iñ the record, and it is to be presumed in favor of the judgment against the defendant in error, that all the facts existed necessary and material to support it.

In our opinion, the judgment of the circuit court should be reversed, and the judgment of the court of common pleas affirmed.

Judgment accordingly.

Bradbury, J.,

(dissenting):

I do not concur in the construction given to section 1862, Revised Statutes, by a majority of the court.

The object of this section, it seems to me, was to place within well defined limits the power of municipal corporations to impose fines for violations of its ordinances. By the settled rules of the common law, such corporations can only impose reasonable fines. The constitution of the state, article 1, section 9, also prohibits the imposition of excessive fines by any authority. The common law, however, affords no certain rule, and tlje constitution none whatever, by which to determine in any given case, whether a fine is unreasonable or excessive or not. This mischief is cured by the construction I would give to that section, which reads as follows:

“Section 1862 — Fines, penalties, and forfeitures which do not exceed the sum of fifty dollars for any specified offense, or violation of the by-law or ordinance, or double that. sum for each repetition of such offence or violation, or which do not exceed ten dollars for each day where the thing prohibited or rendered unlawful is, in its nature, continuous in respect to time, shall not be deemed unreasonable; but where in any by-law or ordinance a greater fine, penalty, or forfeiture is imposed than as above specified, it shall be lawful for the court or magistrate, in any suit or prosecution for the recovery thereof, to reduce the same to such amount as may be deemed reasonable and proper, and to permit a recovery or render judgment accordingly.”

Tbe minuteness and evident care with which this section prescribes what fines shall not be deemed unreasonable, go far to show that any sums in excess of them should be deemed unreasonable.

A statute should not be construed so as to annul it; this is practically done by the construction which the majority of the court place upon the section now under consideration.

The power of municipalities and their magistrates to impose fines under that construction of the section is as ill-defined, uncertain and unlimited as if the statute did not exist.

A correct construction of this section would limit the power of municipal corporations, in imposing fines, to such amounts as the legislature has declared not unreasonable. The legislative purpose was to prescribe a rule of conduct to municipal authorities, not to declare a fact, and when it said that, up to certain sums carefully adjusted to varying circumstances, fines should not be deemed unreasonable, it should be held to intend to limit fines within those sums.

The subsequent provision is to guard against the escape of the guilty where the council, through inadvertence or otherwise, in adopting an ordinance, has prescribed a greater penalty than allowed by law. In such case the magistrate, or court before whom the trial is had, may reduce the fine to such amount as may be deemed reasonable, not in the unlimited discretion of such magistrate or court, but by the law as declared by the legislature in the section under consideration; thus substituting the certain rule of the statute for the arbitrary will 'of the magistrate or court.

AViixiams, C. J., concurs in this dissenting opinion.