author: Summers, J.

text:
    Roth v. Siefert.

      Application to establish lost will — Appeal from probate to common pleas court lies, when — Error cannot be prosecuted to circuit court, when — Court procedure.

    1. An appeal lies to the court of common pleas from an order of the orobate court overruling an application to find and establish the contents of a lost will.
    2. An order of the court of common pleas finding and establishing the contents of a lost will is not reviewable upon petition in error.
    (No. 10402
    Decided January 21, 1908.)
    Error to the Circuit Court of Wyandot County.
    September 3, 1903, Mary Roth died leaving Adam Roth, her widower, and ten children her only heirs at law.
    July 7, 1905, Adam Roth made application to the probate court of Wyandot county to admit to probate the last will and testament of said Mary Roth, which he represented' she had left at the time of her decease, and that the same subsequently thereto had been lost or destroyed.
    To this application he attached what he averred was a copy of the will, and concluded his application as follows: “Your petitioner offers said
    will for .probate and prays that a time may be fixed for the proving of the same, and that said above named persons resident in this state may be notified according to law of the pendency of said proceedings.”
    On the same day the probate court ordered a copy of the will to be filed and fixed the 17th day of July for the hearing of the application, and ordered that due notice be given to the widower and next of kin of the testatrix, resident of the state of Ohio.
    July 17, 1905, the probate court examined the witnesses that appeared and reduced their testimony to writing and filed it, and found that the testimony failed to show that the will was lost or destroyed, and that there was no testimony to show the contents of the will and refused to admit the same to probate.
    Adam Roth gave notice of appeal, and on July 31, 1905, filed in the court of common pleas the transcript of the proceedings before the probate court and the original papers.
    October 16, 1905, the court of common pleas overruled the motion, filed by two of the heirs, to dismiss the appeal.
    October 30, 1905, the following entry appears on the records of the court of common pleas:

      “In the matter of the application to admit to probate the last will and testament of Mary Roth, deceased.
    “Adam Roth came this day before this court for the purpose of proving the execution and contents of the last will and testament of Mary Roth, late of Wyandot county, deceased; and it appearing to the court that due notice has been given all persons interested in said will, thereupon Bernice B. Stutz and Arthur A. Stutz, subscribing witnesses to said will, and also Adam Roth, appeared in open court and were duly sworn and examined touching the execution and contents of said will, and their testimony thereon was reduced to writing and filed.
    “And the court being satisfied from the testimony so taken that the said Mary Roth did, in the year of 1900 or 1901, duly execute her last will and testament, in the mode provided by the law in force at the time of its execution, and that said will was not revoked by said testatrix, but that it has been lost subsequent to the death of said testatrix, the court finds and does hereby establish the contents of said will to have been, as near as can be ascertained, as follows:
    Tn the name of the Benevolent Father of all, I, Mary Roth, of Upper Sandusky, Wyandot County and State of Ohio, being of sound and disposing mind and memory, considering the uncertainty of the continuance in life, and desiring to make such disposition of my worldly estate as I deem best to make, publish this and declare this to be my last will and testament, hereby revoking all former wills by me made.

      ‘Item 1st. It is my will and desire that all my funeral expenses be paid out of my estate.
    ‘Item 2d. I will and bequeath to my beloved husband, Adam Roth, all my estate both real and personal.
    ‘Should my husband, Adam Roth, die before my demise, it is my will and desire that my estate shall be divided share and share alike between my sons, Adam Roth, Charles Roth, Christ Roth, George Roth, William Roth, John Roth, Henry Roth and Frederick Roth and my daughter, Mary Roth, wife of Jacob Siefert.
    ■ ‘My son, Jacob Roth, to have one ($1.00) dollar as his share in my estate in the event that my beloved husband, Adam Roth, • dies before- my death.
    . ‘Item 3d. ' I hereby maintain and appoint my beloved husband, Adam Roth, executor of this my ■last will and testament, and desire that he shall not be required to give bond as such executor, and that the court of probate direct the omission of the same in pursuance of the statute.
    ‘In testimony. whereof I have hereunto set my hand and seal this .... day of........, 1900 or 1901.
    : ‘Mary Roth.
    ‘Signed and acknowledged by the said Mary Roth, as her last will and testament in our presence, and subscribed and attested by. us as witnesses in her presence and at her request.
    ‘Bernice B. Stutz, (Seal).
    ‘Arthur A. Stütz, (Seal).’
    • “And it is further, ordered that the clerk of this court certify to the probate court the final order of this court, together with the will and testimony so taken, the will, order and testimony shall be recorded in the probate court as in the case of other wills admitted to probate. .
    “To all of which Mary Siefert and Jacob Roth, severally except.
    “This day this matter came on to be heard on motion of Mary Siefert and Jacob Roth for a rehearing of said matter, on consideration said motion is overruled, to which said Mary Siefert and Jacob Roth except.”
    February 20, 1906, petition in error and bill of exceptions were filed in the circuit court.
    October 12, 1906, the circuit court found that there was error,' “in this, to-wit: in refusing to allow cross-examination of witnesses called by defendant in error and because the alleged will submitted to and passed upon by the court of common pleas was not the same alleged will that was submitted to and passed upon by the probate court, and the court finds no qther error,” and reversed the judgment and remanded the case to the court of common pleas for a new trial and other proceedings according to law.
    Error is prosecuted in this court.

      Messrs. Meek & Stalter, for plaintiff in error.

      Messrs. Carter & Goodrich and Mr. Thomas Beer, for defendants in error.
   Summers, J.

It may be that in a proceeding to establish a lost will it is error to refuse permission to persons whose interest it may be to resist the probate, to cross-examine witnesses. In the Missionary Society of the M. E. Church v. Ely et al., 56 Ohio St., 405-409, the judge writing the opinion says, respecting the statutes relating to the probate of wills, that they provide for bringing in the interested parties who are permitted to cross-examine the witnesses. But that question is not presented by the record. It was decided in Hollrah v. Lasance et al., 63 Ohio St., 58, that: “An order of the probate court admitting a paper to probate as a last will and testament is not reviewable on petition in error, though an order refusing to admit such paper to probate is reviewable.” If the court of common pleas acquired jurisdiction by; the appeal, its order finding and establishing the lost will was not reviewable upon petition in error in the circuit court. If the court of common pleas did not have jurisdiction upon appeal, then it was error in that court to find and establish the lost will, and the circuit court on petition in error would have jurisdiction to reverse the order of probate and to dismiss the appeal, so that the only question presented is whether an appeal lies to the court of common pleas from an order of the probate court refusing to find and establish a lost will in a proceeding pending before it for that purpose.

Section 5944 of the Revised Statutes is as follows: “The probate court shall have full power and authority to admit to probate, any last will and testament which such court may be satisfied was duly executed according to the provisions of the law upon the subject in force at the time of the execution of such last will and testament, and not revoked at the death of the testator, when such original will has been lost, spoliated, or destroyed, subsequent to the death of such testator, or after the testator has become incapable of making a will-by reason of insanity, and it can not be produced in court in as full, ample, and complete a manner as such court now admits to probate last wills and testaments, the originals of which are actually produced -in court for probate.”

Section 5945 provides for notice; Section 5946 provides what and how testimony shall be taken, and Section 5947 provides: “If the court, upon such proof, shall be satisfied that such last will and testament was duly executed in the mode provided by the law in force at the time of its execution; that the contents thereof are substantially proved, and that the same was unrevoked at the death of the testator, and has been lost, spoliated or destroyed subsequent to the death of such testator, or his becoming incapable, as aforesaid, such court shall find and establish the contents of such will as near as the same can be ascertained, and cause the same and the testimony taken in the case to be recorded in said court,” and Section 5948 provides that the same effect shall be given to the will so established as would have been given to the original will when admitted to probate and record.

These sections of the Revised Statutes are derived from the wills act of 1852, 50 O. L., 297, Sections 47-51, and contain substantially the same provisions. These provisions, were first enacted in 1848, 46 O. L., 66, and then conferred the power upon the, court of common pleas. The constitution of 1851. directed that there should be established in each county in the state a probate court, and that it should have jurisdiction in probate and testamentary matters. The act of 1852 necessarily placed the original jurisdiction in such matters in the probate court.

Section 4 of the act of 1852, 50 O. L., 84, defining the jurisdiction and regulating the practice of probate courts, provided, “That in case the judge of probate shall refuse to admit any will of a deceased person to probate, the person or persons presenting the same for probate shall have the right to appeal from such decision to the court of common pleas of the proper county; and in all cases where any will of a deceased person shall be regularly admitted to probate, any persons shall have the right to contest the validity of said will, by filing his or her petition for that purpose in the court of common pleas of the proper county.” This act was repealed in 1853, 51 O. L., 167, by an act defining the jurisdiction and regulating the practice of probate courts. Section 22 of this act is as follows: “In case of the refusal to admit a will to probate, any person aggrieved thereby may appeal from such decision to the next term of the court of common pleas, by filing notice of his intention to appeal within ten days.” Section 23 • is as follows: “The person appealing shall procure and file in the court of common pleas a certified copy of the order of said probate court rejecting the will, and thereupon said appeal shall be deemed perfected.” These sections are incorporated in the Revised Statutes as Sections 5934 and 5935 and read as follows: “Sec. 5934. In case of the refusal to admit a will to probate, any person aggrieved thereby may appeal from such decision to the next term of the court of common pleas, by filing notice of his intention to appeal within ten days.”

“Sec. 5935. The person appealing shall procure and file in the court of common pleas a certified cop}r of the order of said probate court, rejecting the will, together with the will, and thereupon said appeal shall be deemed perfected; and the court of common pleas, on the hearing, shall take testimony touching the execution of such will, and have the same reduced to writing; and the final order of the court of common pleas shall, together with the will and testimony so taken, be certified by the clerk to the probate court; and if by such order the will is admitted to probate, the will, order, and testimony shall be recorded in the probate court.”

It is contended that an appeal does not lie in the case of a lost will because the statute provides that the person appealing shall procure and file the will in the court of common pleas, and this is impossible where the will is lost or destroyed and where the probate court refuses to find and establish the same.

This requirement did not appear in the statutes until the revision in 1880. Before the establishment of the probate court the court of common pleas had jurisdiction to find and establish the contents of a lost will, as well as to admit a will to probate, and we are of opinion that the statutes prior to 1880 gave the right of appeal, when the probate court refused to find and establish a lost or spoliated will, • as well as when it refused to admit an existing will to probate. No reason is suggested and none occurs to us why the legislature should make the discrimination, and if such had been its intention, it is hardly conceivable that it should be manifested only by a direction to file the will with the certified copy of the order of the probate court. That requirement must be interpreted as limited to cases in which a will is in existence. In Hollrah v. Lasance et al., 63 Ohio St., 58, supra, it is held, when the probate court found and established the contents of a lost will, that error did not lie, because the remedy is by contest, but if counsel’s contention is sound there could in such case be no contest, because it is impossible for the probate court to transmit the will to the common pleas court as Section 5936 directs.

The circuit court was without jurisdiction to reverse the judgment of the'court of common pleas, and its judgment is reversed and the petition in error in that court dismissed.

Reversed.

Si-iaucic, C. J., Price, Crew, Spear and Davis, JJ., concur.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    Lemmon v. The State of Ohio. Beard v. The State of Ohio. Miller v. The State of Ohio.

      Valentine Anti-Trust law — Section 4427-1 to 4*127-12, Revised Statutes — When imprisonment is part of penalty — Sentence must be to county jail and not to workhouse■ — Criminal law.

      A defendant convicted in Lucas county of violating the provisions of the Valentine Anti-Trust law, Section 4427-1 to 4427-12, Revised Statutes, must, if imprisonment is part of the penalty imposed by the court, be sentenced to the county jail and not to the Toledo workhouse.
    (Nos. 10404, 10405, 10406
    Decided January 21, 1908).
    Error to the Circuit Court of Lucas County.
    The facts in the above cases, so far as pertinent to the present inquiry, are as follows: On May 18th, 1906, plaintiffs in error in the above entitled cases were, with others, jointly indicted by the grand jury of Lucas county, Ohio, for alleged conspiracy against trade, “in unlawfully increasing the price of, and preventing competition in the sale of, certain commodities intended for sale and consumption in the state of Ohio, to-wit: natural and artificial ice,” contrary to, and in violation of the provisions' of Chapter 19a, Revised Statutes, familiarly known as the “Valentine Anti-Trust law.” Each of the above named, having entered a plea of “not guilty” to said indictment, Joseph A. Miller demanded a separate trial, which was allowed by the court. Reuben C. Lemmon and Roland A. Beard elected to be tried together. Miller was the first of the accused to be put upon trial and a verdict of guilty was returned against him by the jury on June 7th, 1906. June 8th, 1906, Miller filed a motion for new trial and also his separate motion in arrest of judgment. The trial of Reuben C. Lemmon and Roland A. Beard was commenced on Saturday, June 9th, 1906, and a jury partly impanneled, but there not being present a sufficient number of regular jurors to complete the panel, the defendants, Lemmon and Beard, requested the court to issue a special venire which was accordingly done, and thereupon the trial was adjourned until Monday morning, June nth, 1906. On Monday, June nth, and before the impanneling of said jury had been completed, the defendants, Lemmon and Beard, by leave of court, withdrew their pleas of “not guilty,” and each severally entered his plea of “guilty” to said indictment. On June 21st, 1906, Joseph A. Miller withdrew both his motion for a new trial and his motion in arrest óf judgment, theretofore filed by him on June 8th, 1906. Thereafter on June 25th, 1906, said Reuben C. Lemmon, Roland A. Beard and Joseph A. Miller were sentenced by the court of common pleas, “to be imprisoned in the Toledo workhouse at Toledo, Ohio, at labor for the term of one (1) year and pay a fine of five thousand ($5,000.00) dollars and the costs of prosecution, and that they and each of them stand committed to the said Toledo workhouse until the amount of said fine and costs respectively shall be paid or discharged according to law.” On June 28th, 1906, on the application of Lemmon, Beard and Miller, this sentence was modified as to each of said defendants and the following entry was made upon the journal of the court:
    “This day came on to be heard - applications of Reuben C. Lemmon, Roland A. Beard and Joseph A. Miller, respectively, for a suspension of the execution of the sentence heretofore on the. 25th day of June, 1906, pronounced against them and each of them in this case. And the court being fully advised in the premises, does hereby suspend indefinitely the execution of one-half of said sentence in each case, to-wit, one-half of the sentence with respect to both fine and imprisonment, and it is hereby ordered that when said defendants respectively, shall have been imprisoned in the Toledo workhouse for a period of six months, and shall have paid the remaining one-half of the fine, to-wit: twenty-five hundred dollars respectively and the costs of prosecution respectively, the same shall be a full and complete satisfaction of the sentence imposed June 25th, 1906, against said defendants respectively as aforesaid. Approved.
    “R. R. Kinkade, Judge.”
    On June 29th,' 1906, Beard and Lemmon filed a motion asking for the vacation of the sentences pronounced against them respectively, and asking that they be permitted to -withdraw their pleas of “guilty” and be allowed to enter in their stead pleas of “not guilty.” Joseph A. Miller, on June 30th, 1906, filed a like motion asking the vacation of the sentence pronounced against him, and for an order reinstating his motion for new trial and his motion in arrest of judgment. In support of these motions it was, among other things, .alleged and claimed that the trial judge by words, promises and conduct misled the defendants, Reuben C. Lemmon and Roland A. Beard, into withdrawing their pleas of “not guilty” and entering pleas of “guilty,” by exciting in their minds the hope and expectation that bjr so doing they would each receive a light sentence, and that for like reason the defendant, Joseph A. Miller, was induced 'to withdraw' his motions for a new trial and in arrest of judgment. By order of the court each of these’ motions was stricken from the files for the alleged reason that the same was filed without leave of court, and that each contained “insulting, scurrilous, untrue and contemptuous matter fully known by the court to be untrue.” Thereafter, to-wit: on July 24th, 1906, the common pleas court, during- the same term of court at which the former orders had been made striking said motions from the files, caused to be made and spread upon the journal the following entry: r .
    “Whereas, Heretofore, on the 29th day of June, 1906, an order was entered in this case, striking from the files the motion of the defendants, Roland A. Beard and Reuben Compton Lemmon, to set aside the sentences and for leave to withdraw their pleas of guilty and to enter pleas of not guilty, on the ground that said motions contained insulting, scurrilous, contemptuous and false matter; and on the 2d day of July, 1906, a like order was made on the same grounds on a motion filed by the defendant, Joseph A. Miller, for leave to restore his motions for a new trial and in arrest of judgment, and there are now pending in the circuit court of this county, petitions in error to reverse the action of this court in striking said motions from the files; and
    “Whereas, On the 2d day of July, 1906, the attorneys for said defendants, to-wit: Thomas H. Tracy, Clarence Brown and Alexander L. Smith were adjudged guilty of contempt of filing, pressing for hearing and offering to maintain said motions in open court; and thereafter proceedings in error were had in said matter in the circuit court of Lucas county, Ohio, which court, on the 21st day of July, 1906, held that said motions should have been heard in this court. And it now being apparent to the court that upon the hearing of said error proceedings said circuit court will hold that said motions should not have been stricken from the files, but heard and said circuit court having, on July 23d, 1906, adjourned to the 17th day of September, 1906;

      “Now, therefore, And in order that the hearing of said motions may be expedited and the same disposed of without further delay, it is hereby ordered and adjudged that said former orders of the court, striking said motions from the files be and they are hereby vacated and set aside, and said motions are hereby restored to the files of this court; and it is further ordered that said three motions so hereby restored to the files be and they are hereby set down for hearing in Court Room No. 1 at ten o’clock a. m. Thursday,- July 26th, 1906.
    “July 24, 1906. Approved:
    “R. R. Kinkade, Judge.” .
    ' On August 3d, 1906, said motions were heard, upon evidence, by the court of common pleas— Judge William A. Babcock presiding — and were each and all of them overruled. Thereupon a bill of exceptions was duly taken and error was prosecuted to the circuit court of Lucas county, where the proceedings, judgment and sentence of the court of common pleas was affirmed. To reverse this judgment of the circuit court, Reuben C. Lemmon, Roland A. Beard and Joseph A. Miller each prosecutes error to this court. The assignments and grounds of error alleged by each in his petition in error, are the same.

      Messrs. King & Tracy; Messrs. Brown, Geddes, Schmettau & Williams; Messrs. Smith & Beckzvith; Mr. Frank H. Geer and Mr. E; M. Beard, for plaintiffs in error.

      Mr. Henry W. Seney; Mr. Lyman W. Wachenheimer, prosecuting attorney, and Mr. Ralph Emery, assistant prosecuting attorney, for defendant in error.’
   Crew, J.

It is urged against the validity of the judgment and sentence in each of the above cases, that the statute under which plaintiffs in error' were indicted and sentenced, commonly known as the Valentine Anti-Trust law, is unconstitutional. Inasmuch as the constitutionality of this statute, in so far as upon this record its provisions, are involved in the present cases, was upon full and careful consideration thereof, affirmed by this court in State, ex rel. Monnett, v. The Buckeye Pipe Line Company, 61 Ohio St., 520, and State v. Gage, 72 Ohio St., 210, we deem it unnecessary in this opinion to reopen and reargue that question; or to say more, at this time, touching the constitutionality of this statute than that we are all agreed, the question of its constitutionality was correctly determined by this court in the above cases, and we adhere to the conclusions there reached. It is further urged by counsel for plaintiffs in error, that the court of common pleas erred in overruling the motions of Lemmon and Beard asking for a vacation of the sentence pronounced against each of them, and for leave to withdraw their pleas of guilty and to enter pleas of not guilty; and erred in overruling the motion of defendant Miller asking an order vacating the sentence' against him, and for the reinstatement of the motions for new trial and in arrest of judgment, which he had theretofore filed but which, subsequently and before sentence he withdrew. The grounds alleged in these several motions were substantially the same, and of such a nature as required that they should be supported and established by evidence. Upon the ■ hearing of said motions, affidavits and oral testimony in support thereof were introduced on behalf of the defendants, plaintiffs in error here, and evidence tending to disprove the truth of the matters in said motions alleged, was introduced on behalf of the state. Upon consideration of this evidence the court of common pleas found and adjudged that the grounds alleged in said motions were not sustained by the evidence, and thereupon overruled the same. Thereafter, the circuit court upon consideration of the same evidence, embodied in a bill of exceptions presented to that court on proceedings in error, affirmed the finding and judgment of the court of common pleas. This judgment of the circuit court, involving as it necessarily did a weighing of the evidence, is final and conclusive; that court in criminal, as well as civil cases, being the court of last resort, for the determination of questions as to the weight or probative force of evidence, Section 7356, Revised Statutes. Hence, the judgments of the courts below upon these motions will not be reviewed by this court. The further contention is here made that the sentence of the court in the above cases, in so far as it directs and requires the imprisonment of the plaintiffs in error in the Toledo workhouse was and is, unauthorized and illegal. This specific objection was not made in the courts below, but is now presented in this case for the first time in this court. However, if the point is well taken, and the court of common pleas was wholly without authority in law, to impose such sentence, the objection is not too late. Without undertaking to review in detail the various statutes and legislation authorizing the establishment and maintenance of municipal workhouses or corporation prisons, county workhouses, joint county and municipal workhouses,- and district workhouses, and providing who may be sentenced to, and confined therein, it may be said, that if the right exists in the above cases, to sentence to the Toledo workhouse, persons convicted in Lucas county of violating the provisions of the so-called Valentine Anti-Trust law, such right is not to be found in the terms of that law itself, but must be parsed out of the provisions of Section 1536-369, Revised Statutes, which section reads as follows: “When a person over sixteen years of age is convicted of an offense, under the law of the state or an ordinance of a municipal corporation, and the tribunal before which the conviction is had is directed by law to commit the offender to the county jail or corporation prison, the court, mayor, or justice of the peace, as the case may be, shall sentence'the offender to the workhouse, if there is such house in the county.” It will be observed from the language of this section, that it does not purport to authorize or require a workhouse sentence except in cases where, “the tribunal before which the conviction is had is directed by law to commit the offender to the county jail or corporation prison.” No such direction is anywhere to be found in the provisions of the Valentine law. Section 4 of that law, which is the section that prescribes the penalty for a violation of said act, while it permits, neither enjoins nor directs imprisonment, as a necessary part of the penalty for such violation, nor does it designate the place of imprisonment in the event imprisonment shall be imposed as part of the sentence. The section provides that for “Any violation of either or all of the provisions of this act * * * (the offender) shall be punished by a fine of not less than fifty ($50) dollars nor more than five thousand ($5,000) dollars, or be imprisoned not less than'six months nor more than one year, or by both such fine and imprisonment.” Turning to Section 6794 of Part Fourth, Revised Statutes, we find it there provided that: “the word ‘imprisoned’, when the context does not otherwise require, shall be construed to mean imprisoned in the county jail.” Inasmuch, then, as Section 4 of the Valentine law does not direct and require imprisonment as a part of the penalty for a violation of said law, no warrant can be found, in the language or provisions of Section 1536-369 for the claim that the latter section either requires or permits imprisonment in the workhouse as part of the punishment for a violation of said law. Counsel for defendant in error cites, as supporting their claim that the sentences in the present cases were authorized by Section 1536-369, the case of Kimbleawecs v. State, 51 Ohio St., 228, in which case said section was construed by this court. That was a case in which K., the plaintiff in error, was convicted for keeping a saloon open on Sunday, and upon conviction was sentenced to the Cleveland workhouse. The statute under which the conviction was had, provided,' in express terms, that for such offense the accused upon conviction, “shall be fined in any sum not exceeding one hundred dollars, and not less than twenty-five dollars, and be imprisoned in the county jail or city prison not less than ten days and not exceeding thirty days.” Thus it will be seen that by the express terms of the statute itself, the court was enjoined and directed by lazv to imprison the accused in the county jail or city prison; hence the provisions of Section 1536-369 became and were expressly applicable in that case, and not only permitted but required, that defendant be sentenced to the workhouse, and the court very properly- held in that case that such sentence was authorized. But b}^ the statute here under consideration, while the court is permitted to imprison, it is not directed by lazv so to do, and the provisions of Section 1536-369 are not therefore applicable. There were at the time of the enactment of this section, and now are, many statutes upon our statute books which in terms require and direct imprisonment as a part of the sentence, but leave to the discretion of the court whether that imprisonment shall- be in the jail or workhouse, and it is to such cases that the provisions of Section 1536-369 apply. To adopt the interpretation of this section contended for by counsel for .defendant in error, would not only require that we ignore the plain language of the statute itself, but that by construction we so extend and enlarge its provisions that they shall include all cases of conviction for a misdemeanor that may be punished by imprisonment, even though imprisonment be not directed by law as an essential part of the penalty to be imposed. Such certainly is not the language of the section, nor do we think such was the purpose or intent of the legislature. But, however this may be, the language employed in the act-being plain and unambiguous, as said by this court in Slingluff et al. v. Weaver et al., 66 Ohio St., 621: “The question is not what did the general assembly intend, to enact, but what is the meaning of that which it did enact. That body should be. held to mean what it has plainly expressed, and hence no room is left for construction.” We are unanimously of the opinion that the sentences imposed in the above cases, in so far as they direct and require the imprisonment of plaintiffs in error in the Toledo workhouse, were and are, to that extent, unauthorized and illeg'al, and should be set aside. Other assignments of error were urged and all were fully considered, but we find no other prejudicial error in this record.

The judgments of the circuit court and the court of common pleas, as to the sentence pronounced in each of 'the above cases reversed, and cases remanded to the court of common pleas for resentence; in all other particulars said judgments are affirmed.

Shauck, C. J., Price, Summers and Davis, JJ., concur.


author: Price, J.

text:
    The State of Ohio v. Schmuck.

      Possession of bottles — Sections 4364-42 to 4364-45, Revised Statutes, invalid — Conñict zvith Sections 1, 14 and IQ, Article I of Ohio Constitution — Criminal law.

    Sections 4364-42, 4364-43, 4364-44 and 4364-45, Revised Statutes, making it a crime to have in possession for use or sale certain bottles or other vessels without the written consent of the owner, and providing for search warrant to seize and restore such property to the owner, are invalid, being in conflict with Sections 1, 14 and 19 of Article I of the Constitution of Ohio.
    (No. 10673
    Decided January 21, 1908.)
    Exceptions by the Prosecuting Attorney to the decisions of the Court of Common Pleas of Cuyahoga County.
    At the April term of the court of common pleas of Cuyahoga county for the year 1905, George Schmuck was indicted by the grand jury for violating the provisions of Sections 4364-42 and 4364-45, inclusive, Revised Statutes of Ohio. The following is a copy of the charge made in said indictment :
    “That George Schmuck, late of the county aforesaid, on or about the first day of September in the year of our Lord one thousand nine hundred and four, in the county aforesaid, without the written consent of the rightful owner or owners, unlawfully did then and there receive with the intent then and there to use and sell the same, seventy stamped and designated bottles and stoppers and ten stamped designated syphons and boxes of the personal property of the Cleveland Liquor League Bottling Works, a corporation; twenty stamped and designated bottles and stoppers and five stamped and designated syphons and boxes of the personal property of the Brough Mineral Water Company, a copartnership; twenty-five stamped and designated bottles and stoppers of the personal property of The Sacks Kirkpatrick Co., a corporation; twenty-five stamped and designated bottles and stoppers, and eight stamped and designated syphons and boxes of the personal property of The Cleveland Consolidated Bottling Company, a corporation; ten stamped and designated bottles and stoppers, two stamped and designated syphons and boxes of the personal property of the East End Bottling Works, a copartnership; ten stamped and designated bottles and stoppers of the personal property of Chas. H. DeWald, doing business as The Eagle Bottling Works; fifty stamped and designated bottles and stoppers of the personal property of William Dooley, doing business as The Star Bottling Works; all of the said stamped and designated, bottles, stoppers, .syphons and boxes being so stamped and designated with the names and other marks of ownership of the aforesaid owner or owners, respectively, in the order alleged aforesaid, in accordance with the provisions of Section 4364-42 of the Revised Statutes of the State of Ohio, each one of the said owner or owners having theretofore been and then being engaged in selling beverages in said bottles, syphons and boxes and in using said bottles, syphons and boxes or the handling and transportation óf said beverages and each of said owner or owners having theretofore filed in the office of the secretary, of state a copy and de'scription of said name and marks of ownership so stamped and designated on said bottles, stoppers, syphons and boxes as -aforesaid and each of said owner or owners having theretofore caused a copy of such filing to be published once a week for four successive weeks in a newspaper • printed in the English language in said county and also a newspaper printed in the German language in the said county.
    “Contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Ohio.
    “(Signed) Harvey R. Keeler,
    “Prosecuting Attorney.”
    To this indictment the accused plead not guilty, and the case came on for trial at the April term of said court of the year 1907, and the state first offered in evidence a certified copy of the certificate filed in the office of the secretary of the state of Ohio by the Brough Mineral Water Company, of which the following is a copy:
    “Cleveland, Ohio, Oct. 9th, 1902.
    “Secretary of State,
    “Columbus, Ohio,
    “Sir:
    “The Brough Mineral Water Company being engaged in the selling of merchandise, food and beverages in bottles and other vessels, and having a name or names or other marks of ownership stamped or in other manner designated upon such bottles or vessels, and upon covers and stoppers and other attachments of the same and upon boxes and receptacles used for the handling or transportation of the same, hereby, in accordance with Section 4364-42 of the Revised Statutes of Ohio, files a copy or description of such name.or names or marks of ownership so used by it, to-wit:
    “Upon soda faucets, the letters ‘BMW Co’
    “Upon gas drums, the letters ‘B M W Co’
    “Upon soda tanks, the letters ‘BMW Co’
    “Upon barrels and kegs, the letters ‘BMW Co’
    “Upon boxes, the letters ‘B M W Co’
    “Upon syphons of one class, the letter and words ‘The Brough M W Co. Cleveland, O’ and ‘Trade Mark’ and ‘The B. M. Water Co.’
    “Upon syphons of another class, the letters and words ‘The Brough Mineral Water Co. Cleveland, O’ and ‘B. M. Water Company’ and a monogram ‘T.B.M.W.C.’
    “Upon bottles of one class, the letters and words ‘Brough Mineral Water Co Cleveland O’ and ‘B’
    “Upon bottles of another class, the letters and words ‘Brough Mineral Water Company Cleveland Ohio’ and ‘Trade Mark’ ‘B’
    “The Brough Mineral Water Co.
    “The United States of America,
    “State of Ohio, ss.
    “Office of ti-ie Secretary of State.
    “I, Lewis C. Laylin,- Secretary of State of the State of Ohio, do hereby certify that the annexed instrument is a true copy of a certificate filed in this office by The Brough Mineral Water Company on the 14th day of October, A. D. 1902, pursuant to an act of the general assembly of the State of Ohio, entitled ‘An act to amend Sections 4364-42, 4364-43* 4-364-44, and 4364-45 of the Revised Statutes of Ohio,’ passed April 23, 1902.
    “Witness my hand and official seal, at Columbus, Ohio, this 14th day of October, A. D. 1902.
    “(Signed) Lewis C. Laylin,
    “(SEAL) “Secretary of State.”
    The accused objected to the introduction of this certificate and of any testimony on behalf of the state for the. reasons:
    (1) That said sections of the Revised Statutes are unconstitutional.
    (2) The indictment does not set forth facts sufficient to constitute an offense under said statutes.
    The court sustained the objection and discharged the prisoner, to which the state by the prosecuting attorney excepted, and having obtained leave for that purpose, a bill of exceptions containing the indictment, and some of the evidence offered at the trial, and the - ruling of the court thereon, is filed in this court in order to obtain its judgment as to the questions of law involved.

      Mr. Sylvester V. McMahon and Mr. P. L. A. Leighley, prosecuting attorneys, and Messrs. Klein & Harris, of counsel, for plaintiff in error.
    Touching the necessity for such laws as Sections 4364-42 to 4364-45, Revised Statutes, it suffices to say that nearly every state in the Union has in the past twenty years enacted similar provisions and in no states except Massachusetts, New York and Illinois has the constitutionality of the laws been attacked. The following is a partial list of such statutes:
    Arizona, Kirby’s Digest of Statutes, 1904, Sections of 7969 to 7975; California, Civil Code, 1906, p. 775, which was amended into its existing form in the statutes of 1903, p. 83; Colorado, Mills’ Annotated Statutes (Revised Supplement 1891-1905), Vol. 3, pp. 814, 815, 816, Sections 2985g, h, i, j, k, l; Connecticut, general statutes revision, 1902, Sections 8913 to 8919; South Dakota, Hippie’s Revised Code, 1903, Section 428, et seq., p. 1145; Indiana, Burns’ Statutes, 1901, Section 8678, et seq.; Iowa, Code of 1895, Section 5052, et seq.; Kentucky, Carroll’s Statutes, 1903, Section 1279, et seq.; Michigan, Compiled Laws, 1897, Sections 5676, et seq., 'amended 1901 and 1905; Missouri, Annotated Statutes, 1906, Sections 2270 to 2275; Maine, Revised Statutes, 1903, p. 399, Section 37, et seq.; Pennsylvania, Pepper & Lewis Digest, 1700-1894, Vol. 1, p. 434; Virginia, Pollard Code Annotations, 1904, Section 1906a, present act passed 1891-1892, Va. Laws, p. 326; West Virginia, Annotated Code, 1906, Section 2875, et seq.; Wisconsin, S. & S. Annotations of Wisconsin Supplement, 1899-1906, Vol. 3, Section 1747a, et seq., p. 818.
    In 1891 the Supreme Court of Missouri was called upon to pass upon one phase of its statute on a demurrer to an indictment therein, but did not hold the law unconstitutional, although it sustained a demurrer on another ground. State v. Dinnisse, 109 Mo., 434.
    Statutes similar to the Ohio acts, enacted in New York and Massachusetts, have been held constitutional. People v. Cannon, 63 Hun, 306; People v. Cannon, 139 N. Y., 32; Commonwealth v. Anselvich, 186 Mass., 376.
    Statutes having some of the features of this act as to the protection of trade marks have been upheld. Commonwealth v. Rosen, 176 Mass., 129; Tracy v. Banker, 170 Mass., 266; Gilman v. Hunnewell, 122 Mass., 139; Lawrence Mfg. Co. v. Lowell Hosiery Mills Co., 129 Mass., 325.
    Touching the argument that the so-called search warrant rule of this statute found in Section 4364-44 violates Article 1, Section XIV, of the constitution, and even though that portion of the act were unconstitutional, it is not such an essential inducement to the passage of the entire act as to render the other sections unconstitutional.

      Mr. P. H. Kaiser, for defendant in error.
    Viewed in its most general aspect, the subject-matter of this legislation is protection from loss of property. This feature, therefore, at once shows that the act does 'not belong to that class of legislation which provides for the exercise of what is called the police power of the state, i. e.,- power to promote the public welfare by preventing drunkenness, vice, disease, adulteration of foods and drinks, and the like. Horwich v. Walker-Gordon Laboratory Co., 205 Ill., 497.
    This statute undertakes to confer rights and privileges upon the owners of a very limited class of personal property, which are not afforded to the owners of personal property generally, and thus violates Sec. 1, Art. I of the Ohio Constitution. State, ex rel., v. Ferris,. 53 Ohio St., 314.
    The offense defined in this act is committed, if One fills or causes to be filled, or uses, buys, or sells or receives stamped or designated bottles or vessels with the intent to use or sell them or their contents, even though the owner orally consents thereto. If such consent is written, no offense is committed; but if the consent is oral, an offense is committed. This is a restriction upon the right to acquire and possess property, which is in violation of section 1 of article I of the constitution, which provides as follows: “All men * * * have certain inalienable rights among which are those of * * * acquiring, possessing * * * property.”
    Protection of the public is no part of the object of this provision; for written consent would not protect the public against deception as to. the ownership of the bottle or its contents any more than oral consent would. Private interests only are protected. In re Preston, 63 Ohio St., 438; Miller et al. v. Crawford et al., 70 Ohio St., 207.

      Again, the provision in Section 4364-43 of the statute that requiring, taking or accepting a deposit for the return of or. accepting compensation for the non-return of such property as is described in the statute, shall not be deemed a sale thereof under this statute, restricts the right of private contract, and is also class legislation.
    Again, this statute, 4364-44, provides for the issuing of a search warrant upon an affidavit of the owner or his agent “that affiant has reason to believe and does believe” that the offense defined in the statute has been committed, and that the accused has the property in his possession on premises occupied by him.
    Such an affidavit sets forth no fact showing “probable cause,” and, hence the provision is in violation of Section 14 of Art. I of the constitution. Truesdell v. Combs, 33 Ohio St., 186.
    In the following cases it is held that an affidavit on belief merely will not sustain an attachment. Dunlevy & Co. v. Schartz, 17 Ohio St., 640; Garner v. White, 33 Ohio St., 192; Endel v. Leibrock, 33 Ohio St., 254.
    As noted above, the purpose of this legislation is not to promote the public welfare, but merely to protect private rights and interests. Compelling persons to pay fines is taking their private property without their consent. This statute is, therefore, in violation of Section 19, Article I, of the • constitution.
    Private property can not be taken’for a private purpose without the owner’s consent. Shaver v. Starrett, 4 Ohio St., 494; Reeves v. Treasurer, 8 Ohio St., 333; Railroad Co. v. Keith, 67 Ohio St., 279; Cooley on Constitutional Limitations, 837.
    The Supreme Court of Illinois has twice considered legislation of the character now in question, and has pronounced it unconstitutional. Lippman v. People, 175 Ill., 101; Horwich v. Laboratory Co., 205 Ill., 497.
    The Illinois statutes were held to be unconstitutional upon the following grounds: (1) because they were special, granting exclusive privileges, and (2) because, under cover of the police power, the legislature cannot make it a crime to buy a marked or stamped bottle or box without written consent of the owner, (3) because making possession by a junk dealer prima facie evidence of guilt, creates an unwarranted distinction between junk dealers and other persons, (4) because “belief” is not sufficient to establish “probable cause” under the search and seizure provision of the constitution.
    Upon these matters the Illinois and Ohio constitutions are essentially alike.
    The protection of the owners of personal property from the loss of their marked or designated property is capable of being provided for by a general statute, and, therefore, no valid special statute can be enacted upon that subject. State, ex rel. v. Spellmire, 67 Ohio St., 77.
   Price, J.

On the 9th day of April, 1880, the general assembly of the state of Ohio, passed an act entitled: “An act to protect manufacturers, bottlers and dealers in ginger ale, seltzer-water, mineral water, and other beverages, from the loss of their bottles and boxes.” See 77 O. L., 140. The first section of the act provided that all persons engaged in the manufacture, bottling or selling of ginger ale, seltzer water, soda water, mineral water, or other beverages, in bottles or boxes, with the name or names, or initials of the owner or owners thereof blown, stamped, or marked thereon, may file in the office of the secretary of state and also in the office of the county clerk of the county in which such, articles are manufactured, bottled or sold, the name or names or initials so used by them, and cause the same to be printed for six successive weeks in a weekly newspaper printed in the English language, in counties where no daily newspaper is printed or published; and in counties where a daily newspaper is printed and published, the same shall also be published in a daily newspaper of general circulation printed in the English language, six times a week for six consecutive weeks, in counties where such articles are manufactured, bottled or sold.

The second section made it unlawful for one to use srtch bottles, etc., without the written consent of the owners thereof and a penalty was prescribed for a violation of the section. The third section provided for the issuing of a search warrant to search premises for the discovery of bottles used in the violation of the act, etc. The foregoing act became a part of the Revised Statutes, and on the 23d day of April, 1902, an act was passed to “amend Sections 4364-42, 4364-43, 4364-44 and 4364-45.” This sectional numbering was made a part of the amending act, and by if they became a part of the Revised Statutes, and the original sections were repealed. See 95 O. L., 248.

The first section of the act as amended, or Section 4364-42, now reads:

“Section 4364-42. Any person or persons engaged in the selling of any merchandise, food or beverage in bottles or other vessels, and having a name or names, or other marks of ownership stamped or in any manner designated upon such bottles or vessels,- or upon covers or stoppers or other attachments of the same, or upon boxes or receptacles used for the handling or transportation of the same, may file in the office of Secretary of State a copy or description of such name or names or marks of ownership so used by them, and cause a certified copy of such filing to be published once a week for four successive weeks in a newspaper printed in the English language in the county wherein their principal place of'business is located, and if this be a county where a German newspaper is printed, also in a newspaper printed' in the German language, or if there be no such principal place of business in the state, then in a newspaper printed in the English language and in a newspaper printed in the German language in any county in the state.
“Séction 4364-43. It shall hereafter be unlawful for any person or persons without the written consent of the owner or owners thereof, to fill or cause to be filled any such stamped or designated bottle or vessel, with intent to use or sell the same or contents thereof, or to use, buy, sell or wantonly destroy, or to receive with intent to use or - sell any such stamped or designated bottle or vessel, whether filled or not, or the stamped or designated •cover or stopper or other attachment belonging thereto, or any such stamped or designated box or receptacle used for handling or transportation of such bottles or vessels, or to cause the same to be so used, bought, sold, wantonly destroyed or received. The using, buying, or selling by any person or persons, or the possession by any person or persons without the written consent of the rightful owner, of any such stamped or designated bottle or vessel, or stamped or designated cover or stopper or attachment belonging thereto or of any such stamped or designated box or receptacle used for handling or transportation of such stamped or designated bottles or vessels, shall be prima facie evidence of the unlawful use and receiving thereof as prohibited in this act.
“The requiring, taking or accepting of any deposit for the return of any such stamped or designated bottle or vessel, or cover or stopper or attachment belonging to same, or box or receptacle used for handling or transportation of same, or the demanding or accepting of any compensation for the non-return, of any such property shall not be deemed a sale of such property, either optional or otherwise, in any proceeding under this act.
“Any person or persons violating the provisions of this act shall be guilty of a misdemeanor and shall' be punished before any court of competent jurisdiction, for the first offense by a fine of fifty cents for each and every such bottle or vessel so filled, or each and every bottlé, vessel, stopper, attachment, box or receptacle, so used, bought, sold, destroyed or received, or caused to be sold, used, bought, destroyed or received, contrary to the provisions of this act, or by imprisonment not less than ten days nor more than thirty days or by. both such fine and imprisonment, and for each subsequent offense by a fine of not less than one dollar nor more than five dollars for each and every such bottle or vessel so filled Or caused to be filled, or each and every bottle, vessel, cover, stopper or attachment, box or receptacle so used, bought, sold, destroyed or received, or caused to be sold, used, bought, destroyed, or received, contrary to the provisions of this act, or by imprisonment not less than twenty days nor more than sixty days, or by both such fine and imprisonment.
“Section 4364-44. In case the owner or owners, having complied with the provisions of Section 4364-42 of the Revised Statutes of Ohio, or the agent of such owner or owners, shall make oath in writing before any justice of the peace or police judge, that affiant has reason to believe and does believe that any person or persons, are using in any manner declared unlawful by this act, any such marked or designated bottle or vessel, or marked or designated cover or stopper or attachment belonging thereto, or any such marked or designated box or receptacle used for handling or transportation of said bottles and vessels, the property of such owner or owners, or have the same in possession on premises occupied, used or controlled by such person or persons, the said justice of the peace or police judge shall issue his search-warrant and cause the premises designated to be searched, and thereafter such proceedings shall be had as now are provided by law in other cases where such warrants are issued.”

The next section in substance provides that any person or persons who have heretofore filed in the office of the secretary of state a description of their property and caused the same to be published according to the law then existing, shall be required to again file and publish in' accordance with Section 4364-42, etc.

Section 4364-4.5 provides that all costs incurred in the enforcement of provisions of this act shall be assessed and collected in the same manner as in criminal cases ; and all fines collected by virtue of this act shall be disposed of as in cases of assault and battery.

While the foregoing sections are amendatory of the original act, they may be considered as under its title as first adopted, to-wit: “An act to protect manufacturers, bottlers and dealers in ginger ale, soda water, seltzer water, and other beverages, from the loss of their bottles and boxes;” because in the interpretation of an amending act, not only the original but its title may be looked to in aid of interpretation. The statute as amended uses broader terms than found in the original, and instead of “ginger ale, seltzer water, soda water, mineral water or other beverages,” as the subject of manufacture, bottling and sale, the present provision is, that “any person or persons engaged in the selling of any merchandise, food or beverages in bottles or other vessels, and having a name or names, or other marks of ownership stamped, or in any manner designated upon such bottles or vessels, or upon covers or stoppers or other attachments of the same, or upon boxes or receptacles used for handling or transportation of the same, may file in the office of the secretary of state a copy or description of such name or names or marks of ownership so used by them,” etc. To the beverages named in the first act, “merchandise and food” are now added, and there are some other terms of description of the offense and .of limitation on the use of bottles, or other vessels mentioned in the act, which prohibited use is penalized as a misdemeanor, and the possession of. such articles by anyone “without the written consent of the rightful owner” shall be “prima facie evidence of the unlawful use and receiving thereof as prohibited in this act.”

There is provision for search warrant and seizure of property under certain circumstances, and in many respects, the provisions of the act are rigid and severe. On conviction, the property taken on the search warrant is tó be restored to the rightful' owner.

In the statement of the case is a copy of the indictment found against Schmuck, in which he is charged with having received, without the written consent of the rightful owner, seventy stamped and designated bottles and stoppers, and ten stamped and designated syphons and boxes, the personal property of the Cleveland Liquor League Bottling Works, with intent to use and sell the same. Other property belonging to other owners is also set out as the subject-matter of the defendant’s unlawful acts, and that said stamped and designated bottles, stoppers, syphons and boxes were stamped with the names and other marks of ownership of said several owners, in accordance with Section 4364-42, Revised Statutes, each of said owners having therétofore been and then being engaged in selling beverages in said bottles,' syphons and boxes, and in using the same, and that each of the owners so described had filed with the secretary of state a copy and description of said names and marks of ownership, a copy of which filing was published as required by the statute, etc.

In short, Schmuck was accused of receiving the articles described, without the written consent of the owners, with intent to use and sell the same.

It is manifest that the general public has not been offended by the commission of the acts alleged in the indictment, nor does the statute ' in question make criminal any act in which the general public is concerned. Section 4364-43 makes it “unlawful for any person or persons, without the written consent of the owner or owners” of such bottles, boxes or other vessels, to fill or cause to be filled any such stamped or designated bottle or vessel with intent to use or sell the same or contents thereof, or to use, buy, sell or wantonly destroy, or to receive with intent to use or sell any such stamped or designated bottle or vessel, whether filled or not. By further language of the section, the possession of such articles by any one, or the using or buying and selling the same without the written consent of the owner or owners, shall be prima facie evidence of the unlawful use and receiving prohibited by the.act.

The statute is not aimed at the adulteration of any merchandise, food or beverage, nor does it appear from its terms that a compliance with it will tend to prevent adulteration, or secure to the public pure “merchandise,” pure “food,” or pure “beverages.” Its sole purpose seems to be the protection of the owners of certain described articles of personal property, who are engaged in a limited line of business, and the a.ct might well be entitled: “An act to protect persons engaged in the selling of any merchandise, food or beverages in bottles or other vessels from the loss of their bottles or other vessels.” This purpose pervades every line of the statute, including the provision for search and seizure, and it is given criminal caste in order to secure to such owners a better protection than is or perhaps can be afforded to owners of any other class of property. As to the recovery of other hinds of property by the lawful owner, he must rely on proceedings in a civil action; but here the state of Ohio is to become the plaintiff and in a drastic criminal procedure, not only “get at” the property for the owner and restore it, but to punish by fine or imprisonment, or both, the person who has trespassed upon the title or possession of the owner. To aid in the work of prosecution, the premises of the accused may be searched on a warrant for that purpose, and the entire machinery of this statute exalts this species of property above all others. The owners of such bottles, vessels and their contents, mostly various kinds of beverages, are not left to civil remedies to which owners of other goods must resort in order to maintain their rights, but they may invoke the sovereign power of the state and its most commanding processes to save them from loss of bottle and box.

It is difficult to conceive of a clearer case of class legislation in favor of certain dealers who have the ordinary means of reclaiming their property available to other citizens plus the criminal procedure of the state to not only reclaim but to punish. We have not yet fully stated the entire character of this legislation. It is part of Section 4364-43, that “the requiring-, taking or accepting of any deposit for the return of any such stamped or designated bottle or vessel, or cover or stopper or attachment belonging to same, or box or receptacle used for handling or transportation of same, or the demanding- or accepting- of any compensation for the non-return of any such property shall not be deemed a sale of such property, either optional or otherwise, in any proceeding under this act.” - Therefore, the owner who sells food or beverages in bottles or other vessels, may take a deposit to secure the return of his bottle or vessel, or he may demand and accept compensation for their non-return, yet he still owns the property, for such acceptance shall not be deemed a sale either optional or otherwise. In other words, the owner may demand and accept a sufficient deposit to secure him, or he may demand and accept full compensation for the non-return of his bottles or other vessels, yet he still owns them and may prosecute the party found in possession, through-sale or otherwise, without the written consent of the owner. The possession with the verbal consent of the owner will not protect, for a written consent must be shown.

A careful examination of this statute warrants the statement that innocent persons may come into possession of such articles — persons out of the county where the publication prescribed has been made and who had no knowledge thereof, and yet his premises may be searched on warrant, property seized and such person, by fact of such possession confronted with a prima facie case against him. The possession without the written consent of the owner becomes a crime if„a prescribed publication is made. If no publication, no crime. The state .has not convinced us that such a statute should be upheld.

We are told in the brief that several states of the Union have enacted similar laws, and that in two or more such states the law .has been held valid by the courts of last resort. We have not the space for a comparison of the statutes of the various states named in the brief. It would surprise us somewhat if any state has enacted a law containing all the characteristics of the one before us. If precisely such legislation is found elsewhere, it tends to prove the assiduity of persons who. are engaged in similar occupations, in those jurisdictions.

Two cases are cited and relied on by the state as leading cases to sustain the legislation involved, and we have carefully examined them. One is People v. Cannon, 139 N. Y., 32. The prosecution in that case was grounded on Chapter 377 of the laws of New York for 1887, as amended by Chapter 181 of the laws of 1888. The - principal act is found in Laws of New York, 1887. The court of appeals of that state in the above case held the act to be constitutional. In many respects that statute is similar to ours, but in other respects of importance it is different. It comprehends the manufacturer as well as the bottler, and its provisions embrace a greater number and variety of beverages. In its second section, after making the written consent of the owner necessary to legalize the use or sale of the enumerated articles by one not the owner, it is said, “unless the same shall have been purchased from the person or persons, corporation or corporations, whose mark or device shall be or shall -have been in or upon the bottles, box, syphon,” etc. No such language is found in our statute, and it appears that the quoted clause was considered of importance by the court, for Peck-ham, J., delivering the opinion of the court, and in answering one of the criticisms of the statute, made this statement on page 39: “It is a fact which everyone knows, that large amounts of the liquors originally put up in these bottles are sold by the manufacturers to the retail dealers, who sell-them to the customers, who.take them away in the original bottles in which the manufacturers delivered them to the retail dealers, and it can not be contended with any degree of plausibility, as it seems to us, that there is anything in the language of the statute, properly construed, which prohibits such a dealing in and delivery of the liquors by anyone into whose possession and ownership they have lawfully come.” And this, because of the foregoing clause of their statute, which is absent from ours. Our statute 'forbids the very thing permitted there. There are other points of difference not so material.

The other case relied upon is Commonwealth v. Anselvich, 186 Mass., 376. The prosecution was founded on Chapter 72, Revised Laws of Massachusetts, Vol. 1, 619 (Laws of 1902). Again we find both similarities and dissimilarities when compared with our statute. The search warrant provision was part of the statute of New York, as well as that of Massachusetts, at the dates of the two prosecutions referred to. Not much stress was laid on the provision in the New York case, and the court did not pass upon it. It was raised in the above Massachusetts case, but not decided, the court taking the view that if that section is unconstitutional, it would not invalidate the entire act. We are not satisfied with the reasoning in either of the cases, and prefer the doctrine of Lippman v. The People, 175 Ill., 101; and Horwich et al. v. The Walker-Gordon Laboratory Co., 205 Ill., 497. As compared with our statute, the laws of Illinois involved in each of these cases, has many things in common. It contained a provision for search and seizure which was held invalid in the' Lippman case. Speaking of that provision, the court, in the opinion on page 106, makes the following comment: “It confers upon them the power to call upon the state and its officers and judiciary to act as collectors of their bottles, kegs and boxes which they have voluntarily scattered over the state among their customers. It attempts to place at their disposal the extraordinary right of the search warrant, by which they arm a constable or other officer with process to intrude upon the premises or home of any citizen to recover their bottles, kegs, and the like * * The court proceeds to say that the persons to be protected by the statute substitute the search warrant for a writ of replevin, and are thus made favorites over their fellows.

The statute of Illinois, pronounced bad in Lippman v. People, supra, was afterwards amended, no doubt to obviate objections pointed out by the court. But the amended act came before the same court in Horwich v. The Walker-Gordon Laboratory Co., supra, and the court again went over the whole subject and condemned the act. The action by the company was for an injunction to restrain Horwich et al. from buying, selling or keeping for sale,.etc., any of the bottles of such company. The court, through Justice Scott, on pages 503-505, clearly expresses our views of such legislation. Speaking of the class favored by the act, the court says, on page 509: “They stand on the same footing as other owners of personal property, and any law favoring them above others, for the reason alone that they own personal property of the kind specified in this act, is a special law, within the meaning of our constitution.”

So in the case at bar. The protection of the public against impure food or beverages is- not hinted at, and the entire scope of the statute is directed to aiding the owners of the bottles and other vessels in reclaiming property which they have once delivered to various persons at both near and remote points in the community. It is-against the genius of our constitution and especially forbidden by Sections 1-14 and 19 of Article I of the constitution of this state.

As to the sufficiency of the indictment, it. is enough to say that is is good enough for a bad law. It is exceedingly difficult to frame a good indictment found under the provisions of an invalid statute.’

The exceptions are not well taken and are overruled.

Exceptions overruled.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.


author: Shauck, C. J.

text:
    The State of Ohio v. Johnson.

      Endeavoring to influence officers of court — By written communications — What constitutes endeavor — Section 6907, Revised Statutes — Indictment thereunder — Requisites and sufficiency.

    1. One who addresses a communication to the judges of a court for the purpose of influencing their decision in a case pending therein by disparaging one of the parties or the relator in a suit brought by the state, corruptly endeavors to influence officers of a court in the discharge of their duties within the meaning of Section 6907, Revised Statutes.
    2. An indictment under that section is not defective because it does not charge that the court was in session when the communication was sent or received, nor because the communication does not comment upon the merits of the case, nor because the act charged may be punished as a contempt of court.
    (No. 10662
    Decided January 21, 1908.)
    Exception to a ruling of the Court of Common Pleas of Franklin County.
    At the January term, 1907, of the court of common pleas of Franklin county, the following indictment was returned:

      “Indictment
    “For Endeavoring to Influence Officers in a “Court.
    “The State of Ohio, Franklin County, ss.:
    “In the Court of Common Pleas, Franklin county, Ohio, of the Term of January, in the year of our Lord one thousand nine hundred and seven.
    “The jurors of the grand jury of the State of Ohio, duly elected, impaneled, sworn and charged to inquire of crimes and offenses, committed within the body of Franklin county, in the State of Ohio, in the name and by the authority of the State of Ohio, upon their oaths, do find and present that the Circuit Court of Franklin county, Ohio, is a court in the State of Ohio; that said court is presided over by Judge Harrison Wilson, Judge Charles W. Dustin and Judge Theodore Sullivan; that said Plarrison Wilson, Charles W. Dustin and Theodore Sullivan, and each of them are judges and officers in said court; that in said court and before said judges there was pending and there coming on to be heard a certain cause styled, ‘The State of Ohio on the relation of Mark Slater against John W. Johnson,’ and numbered 2449 on the docket of said court; and that on or about the twenty-eighth day of September in the year of our Lord one thousand nine hundred and six, at the county of Franklin aforesaid, while said ' cause was then and there pending and coming on to be heard, before said judges and officers of said court as aforesaid, the said John W. Johnson, then and there knowing said cause to be pending and coming on to be heard before said judges and officers as afore1'aid, did then and there in the county of Franklin aforesaid, corruptly endeavor to influence said judges and officers of said court in the discharge of their duty in the decision in said cause by divers written words and discourse to the disparagement of the said Mark Slater, plaintiff in said cause, which said written words and discourse were then and there addressed and delivered to said judges and officers in said court in the language following, to-wit:
    ‘Columbus, O., 9-28, 1906.
    ‘Judges Wilson, Dustin and Sullivan, Circuit Court, Columbus, O.:
    ‘Dear Sirs: — I note by the papers that Slater v. Johnson case is up to you. I am a Republican, as you gentlemen are, and I hope I am a good citizen and I would not even suggest to you that you should in any manner violate your oaths of office or in any manner stultify yourselves in this or any cause of action that comes before you. But I would suggest that it is your duty to search very diligently to find a lawful reason to prevent such a man as Mark Slater going back into the office he has abused and disgraced — from which there is not the least doubt in the world he has stolen thousands of dollars. The man has no moral perception and seems to believe that he had a perfect right to graft all he might on the side.
    ‘The Republican party, as you are well aware, has load enough to carry for the present without loading up again with a Slater.
    ‘Yours Resp’y,
    ‘E. T. Ryan,
    ‘Columbus, O.’

      “To which above said divers, written words and discourse the said John W. Johnson to conceal his identity or the author of such writing signed the said name ‘E. T. Ryan/ contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Ohio.”
    To that indictment a demurrer was filed upon the ground that “said indictment did not state facts sufficient to constitute an offense under the laws of Ohio.” The demurrer was sustained and counsel for the state excepted.

      Messrs. Webber, McCoy, King & Game, prosecuting attorneys, for plaintiff in error.
    At common law, he who attempted to influence the judge would be punished, no matter whether he succeeded or not. 1 Bishop on Criminal Law, Section 468. This thought is well expressed by Chief Justice Lawrence in People v. Wilson, 64 Ill., 214.
    By the commonly accepted doctrine, any publication, whether by parties or strangers, relating to a cause in court, tending to prejudice the party as to its merits, and to corrupt or embarrass the administration of justice, or any publication reflecting upon the tribunal or its proceedings, or on the parties, jurors, witnesses, or the counsel, may be vested as for a contempt; and it makes no difference that the author of the article disclaims such a purpose, or that in fact it has not wrought out its natural results, if it have an evil tendency. Henry v. Ellis, 49 Ia., 205; People v. Wilson, 64 Ill., 195; Myers v. State, 46 Ohio St., 473; Republica v. Oswald, 1 Dallas, 343; 2 Bishop on Criminal Law, Section 259.
    The principle that the statutory provision in Ohio found in Section 6907 is merely cumulative to summary proceedings for contempt is firmly established by the Supreme Court of Ohio in the case of Hale v. State, 55 Ohio St., 210; 9 Cyc., 32.
    And the converse of the proposition would be equally true — that the power to punish for contempt does not destroy the right to proceed against the person by information or indictment. Steube v. State, 3 O. C. C., 383; Cartwright’s Case; 114 Mass., 230; State, ex rel., v. District Court, 52 Minn., 283.
    The fact that the act may be indictable or punished in some other way does not deprive the court of the essential power to punish it as a contempt. Am. & Eng. Ency. of Law, Vol. 7, 66; United States v. Debs et al., 64 Fed. Rep., 724: Pledger v. State, 77 Ga., 242.
    A conviction on an indictment will not purge a contempt — nor a conviction for a contempt be a bar to an indictment. Yates v. Lansing, 9 Johns. (N. Y.), 417.
    “Corruption” defined. Worsham, Admr., v. Murchison, 66 Ga., 715; Webster’s Dictionary.
    To “endeavor” simply means “to direct, to strive, to attempt to do” any certain thing. Words and Phrases Judicially Defined, Vol. 3, 2388. And to “influence” is merely “to use a party’s endeavor, though he may riot be able to carry it out.” Words and Phrases Judicially Defined, Vol. 4, 3584. '

      Messrs. Marriott, Belcher & Connor, for defendant in error, cited and commented upon the following authorities: Hale v. State, 55 Ohio St., 210; Pettibone v. United States, 148 U. S., 206; Rapalje on Contempt, p. 25, Sec. 21; Dunham v. State, 6 Ia., 245; Neel v. State, 9 Ark., 259; Section 5399, Revised Statutes of United States; Sections 5639, 5640 and 6907, Revised Statutes.
   Shauck, C. J.

The indictment was returned under Section 6907, whose pertinent provisions are, “Whoever, corruptly * * * endeavors to influence * * * any juror, witness or officer in any court of this state in the discharge of his duty * * * shall be fined not more than one hundred dollars or imprisoned not more than twenty days, or both.” The opinion of the court below is presented to us by counsel for the defendant as presenting a concise statement of the reasons which induced that court to sustain the demurrer. It may be conceded that the words written in disparagement of Slater are the matter written with the corrupt purpose of influencing the judges of the circuit court to a decision adverse to him of the cause there pending, that Slater was not a private party to said suit, but was the relator in a suit brought in the name of the state, and that the delivery to the judges of that court of the letter set out in the indictment was a contempt of court. That the delivery of the letter to the judges was a contempt of court is wholly immaterial, for the same act may be both an indictable offense and a contempt of court. Nor is it important to know whether the judges to whom the communication was addressed dealt with the offender for his contempt or not. We have only to inquire' whether the general assembly has made the act an offense against the public. The scope of the act is indicated by the phrase, “Whoever corruptly endeavors to influence any officer in any court of this state in the discharge of his duty.” Its terms do not permit importance to be attached to the considerations that the court may not have been in session when the communication was delivered, or that Slater was not the plaintiff, or that the attempt to influence the decision of the court was very stupid, or that it was ineffectual. Although the things said in disparagement of Slater constituted the consideration which, it was hoped, would move the circuit court, it does not by any means eliminate the other portion of the communication, for that shows unmistakably that the purpose for which the communication was sent and the disparaging things said obviously was to induce the court to render a decision against Slater. It is of no importance whatever that the representation did not concern the merits of the case. Indeed, that the defendant “corruptly endeavored to influence” the judges of the circuit court is made more apparent by the fact that he presented considerations for a determination of the cause which were entirely apart from its merits. In enacting this section of the statute the legislature must have been prompted by a desire to promote decency and propriety in all things pertaining to the administration of justice, for they used, to qualify the endeavoring, the most comprehensive of adverbs. It is quite in accord with the views of all the lexicographers to say “corruptly imports a wrongful design to acquire or cause some pecuniary or other advantage to the person guilty of the act or to some other person.” The act charged in the indictment is plainly within the terms of the statute.

Exception sustained.

Price, Crew, Summers, Spear and Davis, JJ., concur.


author: Davis, J.

text:
    Williams v. The State of Ohio.

      False representation as to value — Will sustain conviction — For obtaining money by false pretense, when — Whether representation is opinion or statement — Question for jury.

    1. When one makes a representation of value as an existing fact, knowing it to be false and intending it to influence another to part with money or property and the other party relying upon such representation is thereby induced to part with money or property to the one making the false representation of value, such facts are sufficient to sustain a conviction for obtaining money or property by false pretense. .
    2. Whether the representation of value is intended to be merely an expression of opinion or whether it was made as a statement of an existing fact which the speaker intends to be an inducement to the other party and which -he knows to be false, is a question of fact to be determined by the jury.
    (No. 10779
    Decided February 11, 1908.)
    Error to the Circuit Court of Montgomery county.
    The plaintiff in error was indicted for obtaining money and property by certain false pretenses, to-wit: that certain real estate situate in Benton township, Pike county, being one hundred and ten acres in quantity, was then and there of the value of $11,000, and that one Martha M. Williams, then and there believing said representation of value to be true, and relying and acting upon that belief, was induced to and did purchase from the plaintiff in error, the said real estate, and accepted his deed therefor, and gave to him and one Neal Overholser in payment therefor, money and property to the amount and value of $7,700, whereas, in iact, the said real estate was not then and there of the value of $11,000, and was of the value not to exceed three dollars per acre, that is, $330 in all; and that the plaintiff in error then and there knew that the value of said real estate did not exceed the sum of $330, and knew at the time he so falsely represented the value of said real estate that the same was false. To this indictment the plaintiff in error filed a motion to quash and also a demurrer, which were both overruled; and the case coming on for trial, at the close of the evidence introduced by the state, a motion was made by the defendant to instruct the jury to return a verdict of acquittal, which was overruled; and the court thereupon charged the jury, among other things, as follows: “But where the buyer relies entirely upon the representations of the seller and the seller knows that ■the properety he is describing is of such, small value as to be practically worthless, and nevertheless represents it to be worth a specified sum of great amount, and the discrepancy between the real and the represented value is so enormous as to shock the conscience; when the representation is so grossly untrue that it could not be made upon any possible foundation of belief; and when it appears that the seller was plainly seeking by means of such statement to obtain the property of the buyer and practically return no equivalent therefor, the court takes the responsibility of saying to you that you have the right, if your judgment of evidence so convinces you, to regard such representations as one of fact rather than mere opinion.” The jury found the defendant guilty and judgment was rendered accordingly, which judgment was affirmed by the circuit court, and this proceeding in error is to reverse that judgment.

      Mr. E. Thompson and Mr. Charles H. Kumler, for plaintiff in error,
    cited and commented upon the following authorities: Dillingham v. State, 5 Ohio St., 280; Smith v. Patterson, 33 Ohio St., 70; State v. Webb, 26 Ia., 262; People v. Gibbs, 98 Cal., 661; State v. Paul, 69 Maine, 215; Commonwealth v. Wood, 142 Mass., 459; Leigh & Caves’ Crown Cases, 425; Bates v. State, 124 Wis., 612.

      Mr. Robert R. Nevin, prosecuting attorney; Mr. E. G. Denlinger and Mr. Harry N. Routzohn, assistants, for defendant in error,
    cited and commented upon the following authorities: State v. Paul, 69 Me., 215; State v. Webb, 26 Ia., 262; Wharton on Criminal Law, Section 2102; Bishop on Criminal Law, Vol. 2, Section 454; Commonwealth v. Stone, 4 Metc., 43; People v. Jordan, 66 Cal., 10; Savings Bank Co. v. Miller et al., 14 C. D., 198; Simar et al. v. Canaday, 53 N. Y., 298; Dillingham v. State, 5 Ohio St., 280; Smith v. Patterson, 33 Ohio St., 70; State v. Thaden, 43 Minn., 325; Hughes on Criminal Law, Section 604; Underhill on Criminal Law, Section 414; Commonwealth v. Wallace, 114 Pa. St., 405; Hochheimer’s Criminal Law, 354; People v. Bryant, 119 Cal., 598.
   Davis, J.

A statement of value may be given either as an opinion or as a statement of fact. All the authorities agree that if a statement of value is given as an opinion merely it cannot be regarded as a foundation for an indictment. But if the statement is made as an existing fact, when the accused knows it to be false and intends it to be an inducement to the other party, and it is so understood and relied upon by the other party, then it becomes a false representation of a material fact for which the party making the representation is indictable. Whether the representation of value is intended as an expression of opinion, or whether it was made as a statement of an existing fact which the speaker intends to be an inducement to the other party, is therefore a material question of fact to be determined by the jury.

There is no novelty in this view of the law. In Reg v. Evans, 8 Cox, C. C., 257, it was said by Pollock, C. B.: “As my brother, Crowder, J., has suggested, if the prisoner had represented the note to be of the value of £5 when she knew it was not of that value, she might have been guilty of false pretenses.” In People v. Peckens, 153 N. Y., 576, 591, the court say: “It is insisted that many of the representations to the complainant and her husband, which induced the making and delivery of her deed, were expressions of opinion, and although false and known to be so, no liability resulted. As a general rule, the mere expression of an opinion, which is understood to be only an opinion, does not render a person expressing it liable for fraud. But, where the statements are as to value or quality, and are made by a person knowing them to be untrue, with an intent to deceive and mislead the one to whom they are .made, and he is thus induced to forbear making inquiries which he otherwise would, -that may amount to an affirmation of fact rendering him liable therefor. In such a case, whether a representation is an expression of an opinion or an affirmation of a fact is a question for the jury. The rule that no one is liable for an expression of an opinion is applicable only when the opinion stands by itself as a distinct thing. If it is given in bad faith, with knowledge of it untruthfulness, to defraud others, the person making it is liable, especially when it is as to a fact affecting quality or value and is peculiarly within the knowledge of the person making it. (Watson v. People, 87 N. Y., 561; Simar v. Canaday, 53 N. Y., 298; Hickey v. Morrell, 102 N. Y., 454, 463; Schumacher v. Mather, 133 N. Y., 390, 595.)” The same view of the question is presented in Holton v. State, 109 Ga., 127, 130; and also in People v. Jordan, 66 Cal., 10, 13, 14.

Simar v. Canaday, 53 N. Y., 298, was a civil action for damages for an alleged fraud in inducing the plaintiffs to convey certain premises. The court, at page 306, said: “The defendant contends that the representations alleged to have been made by the defendant were not such as to afford a ground for an action. It is first insisted that the statements as to the value of the lands and of the mortgages thereon were mere matter of opinion and belief, and that no action could be maintained upon them if false. If they were such, no liability is created by the utterance of them; but all statements as to the value of property sold are not such. They may be, under certain circumstances, affirmation of fact. When known to the utterer to be untrue, if made with the intention of misleading the vendee, if he does rely upon them and is misled to his injury, they avoid the contract. (Stebbins v. Eddy, 4 Mason, 414-423.) And where they are fraudulently .made of particulars in relation to the estate which the vendee has not equal means of knowing, and where he is induced to forbear inquiries which he would otherwise have made, and damage ensues, the party guilty of the fraud should be liable for the damage sustained. (Medbury v. Watson, 6 Metc., 246, per Hubbard, J.; and see McClellan v. Scott, 24 Wis., 81.)” More recently the cases of Coulter v. Minion, 139 Mich., 200, and Scott v. Burnight, 131 Ia., 507, are to the same effect.

These considerations determine every question raised upon the record and therefore the judgment of the circuit court is

Affirmed.

Price, Crew, Summers and Spear, JJ., concur.


author: Spear, J.

text:
    In the Matter of the Guardianship of Oliver, An Imbecile.

      Appointment of guardian — Application in probate court — Appeal to common pleas court — Latter may appoint, when — Section 6302, Revised. Statutes — Original jurisdiction to remove guardian, where — Section 524, Revised Statutes — Not error for court to sustain general demurrer.

    1. The appeal to the court of common pleas from the judgment and order of the probate court refusing to appoint a guardian for one alleged to be an imbecile and dismissing the application for such appointment, authorized by section 6302, Revised Statutes, transfers to the court of common pleas the entire cause, and empowers that court, upon finding the person to be an imbecile and that a guardian is needed, to appoint a guardian.
    2. Upon such appointment being made it is the duty of the clerk of the court of common pleas to certify, by a duly authenticated transcript, the order, judgment and proceedings to the probate court.
    3. Exclusive original jurisdiction to remove a guardian being, by section 524, Revised Statutes, vested in the probate court, the court of common pleas is without original jurisdiction to entertain an application to remove a guardian.
    4. Where an application for such removal is made in the first instance to the court of common pleas, it is not error for that court to sustain a general demurrer to such application and dismiss the proceeding.
    (No. 10814
    -Decided February 11, 1908.)
    Error to the Circuit Court of Ashland county.
    The controversy out of which this error proceeding arises originated in the common pleas of Ash-land, by the filing in that court, January 20, 1906, by one Alonzo Shambaugh, of an application for the removal of one E. F. Shelley as guardian of Paul Oliver, an imbecile, and for an order enjoining him as such guardian from the further transaction of any business pertaining to the property of the ward. It was alleged in the application, among other things,, that on or about October 3, 1904, there was pending in the common pleas of Ashland, on appeal from the probate court, a proceeding in which it was sought by one Albert W. Martin to have Paul Oliver declared an imbecile and the appointment of a guardian of the property of said Oliver, on the hearing whereof the court of common pleas assumed to and did exercise jurisdiction of both of the questions set out in the application and therein found and held the said Oliver to be an imbecile and incapable of caring for his property, and proceeded, unlawfully and without authority, to appoint E. F. Shelley as guardian, and unlawfully approved an alleged bond given by Shelley, and otherwise unlawfully assumed jurisdiction in making an attempted and pretended appointment of guardian for the estate of said Oliver, contrary to the statute in such case made and provided. Said Shelley thereupon assuming to act as guardian under said illegal appointment, has grossly mis-managed the property of the ward in divers and sundry particulars set out in the application, and will if not removed or enjoined, continue to waste and misapply the funds and property of the estate to the irreparable injury of the interests and rights of the ward.
    To this application a demurrer was sustained by the common pleas on the ground that it failed to state a cause of action. The circuit court made a like ruling on the demurrer to the application and the applicant, Alonzo Shambaugh, brings error.

      Mr. C. H. Workman; Mr. S. M. Douglass and Mr. W. G. Weirick, for Shambaugh, plaintiff in error.

      Mr. ■John W. Jenner; Mr. H. L. McCray and Mr. F. N. Patterson, for Shelley, defendant in error.
   Spear, J.

From the foregoing statement it is apparent that the question on the surface is as to the jurisdiction of the court of common pleas to entertain the application, and involved in that inquiry, at least in one aspect of it, the further question as to the jurisdiction of the common pleas in the appealed case to make the appointment of a guardian complained of. It is not claimed that the appointment is invalid because of any mere informality in the steps taken by the court of common pleas in respect to such attempted appointment, but simply and only that that court was restricted to a finding whether or not Oliver was an imbecile, and whether or not a guardian was needed, and was. wholly without power to do other upon a finding in the affirmative upon these questions than to certify the matter to the probate court for its action as to an appointment.

The argument of counsel centers principally around the question whether or not the common pleas had jurisdiction to make any appointment of a guardian, the claim of counsel for plaintiff in error being that the jurisdiction to appoint guardians for imbeciles is exclusively vested (in the absence of disability on the part of the probate judge) in the probate court, and that jurisdiction having properly attached by the application for that purpose by proper parties to the probate court of Ashland county, such jurisdiction could not be divested by an appeal, and such jurisdiction to appoint should have been exercised by the probate court so soon as the question of the imbecility, and the need of a guardian, had been determined by the common pleas, whenever that might be.

By the constitution, section 8 of article IV, the probate court is given jurisdiction in the appointment of guardians. But this jurisdiction is not by this provision made exclusive, and so we go to the statute law for an answer to the question raised.

Section 524 of the Revised Statutes, the statute chiefly relied upon by counsel for plaintiff in error, provides as to guardians, that “The probate court shall have exclusive jurisdiction, except as hereinafter provided: * * * Fourth, to appoint and remove guardians, to direct and control their conduct, and to settle their accounts.” Further provision in respect to such appointments is made by section 6302, which is that: “The probate court, upon satisfactory proof that- any person resident of the county * * * is an imbecile * * * shall appoint a guardian for such person.” But the section which is made more particularly the subject of inquiry in this case is section 6407, relating to appeals from the probate court to the common pleas. The pertinent provisions of that section are: “In addition to cases specially provided for, appeals may be taken to' the court of common pleas from any order, decision or judgment of the probate court in settling the accounts of * * * a guardian; from an order removing or‘ refusing to remove * * * a guardian * * *; and in proceedings to appoint guardians for * * * imbeciles * * * by any person against whom such order, decision or decree shall be made, or who may be affected thereby; and the cause so appealed shall be tried, heard, and decided in the court of common pleas in the same manner as though the said court of common pleas had original jurisdiction thereof.” Following this (sections 6408 and 6409) there are provisions for the giving. of bond, for the making out and transmission to the clerk of the common pleas of an authenticated transcript of the docket or journal entries and of the order, decision or decree appealed from, and upon compliance with this section, “the appeal shall thereupon be considered perfected.” Then by section 6410 it is provided: “Upon the decision of any cause appealed to the court of common pleas, the clerk of said court shall make out an authenticated transcript of the order, judgment and proceedings of 'said court therein, and shall file the same with the probate judge, who shall record the same and the proceedings thereafter shall be the same as if such order, judgment and proceedings had been had in the probate court.” The foregoing seem to be all the legislation that has been had bearing upon the question involved in the contention, and the question is, does it give to the common pleas on appeal the entire matter that was presented to the probate court, or only that part of it which relates to the finding respecting the imbecility of the person, the subject of inquiry and the necessity for a guardian.

It is not questioned that, by virtue of the statutes, exclusive original jurisdiction to appoint guardians for imbeciles is vested in the probate court. But that concession does not materially aid in a determination of the controversy here because the common pleas, in the appointment of Shelley did not undertake to exercise original, but strictly appellate, jurisdiction. So that the question is determined by the section respecting appeals from the probate to the common pleas, and we are of opinion that it is not difficult of solution. The section in terms provides that the appeal may be taken from the order, decree or judgment. The application to the probate court was not simply to procure a finding that Oliver was an imbecile. Such finding would have been entirely useless unless followed by an appointment. So that the gist and purpose of the application was to procure the appointment, and the order and judgment of the probate court appealed from was the order refusing the appointment and the judgment dismissing the proceeding. This appeal by clear intendment carried to the common pleas the whole controversy. Such is the plain import of the language of the section. The cause is appealed; not a part of it, but all of it. The word cause is defined as a suit or action. Action is the formal demand of one’s right from or upon another made in a court of justice. Suit is a more general term denoting any legal proceeding of a civil kind. It is the action, the cause therefore, which is appealed. And, as if to make the purpose plainer, the section closes with the provision that the cause shall be tried, heard and decided as though the common pleas had original jurisdiction. Is it conceivable that the general assembly could have had in mind the enactment of a statute giving to the common pleas in a proceeding of this kind original jurisdiction to merely find a person an imbecile and then rest? We think not. And yet such would be the natural inference if the position of the plaintiff in error is correct.

We are of opinion that when the cause was appealed the entire case went up and the.common pleas had all the power that was lodged in. the probate court originally, and that this necessarily included the power to appoint a guardian. So that in that particular there was no sufficient ground presented to the court of common pleas in the application made to that court to remove Shelley. And inasmuch as the probate court, by section 524, has exclusive original jurisdiction in the matter of the removal of guardians, the common pleas can have no original jurisdiction in such matter, and it follows necessarily that the probate court is the court to which application to remove should in the first instance be made. The common pleas, therefore, for this additional reason had no jurisdiction to entertain the application to remove Shelley and the sustaining of the demurrer to the application and dismissal of the proceeding was the proper finding to make and judgment to render.

Judgment affirmed.

Shauck, C. J., Price, Crew and Summers, JJ., concur.