author: Minshall, J.

text:
    State v. Powell.

      Exhibitions on Sunday — Section 7082a, Revised Statutes — Not in conflict with section 7, Bill of Rights — Power of legislature to adopt laws for well-being of society — Constitutional law.

    1. Section 7032a, Rev. Stat., making it, among other things, an offense punishable by fine and imprisonment ior any one on the first day of the week commonly called Sunday, to play base ball or exhibit “any base ball playing,” neither requires nor prohibits any religious observance, and does not, therefore, violate the right of conscience in matters of religion secured to the individual by the seventh section of our bill of rights.
    2. It is competent to the general assembly in the exercise of its legislative power to adopt all such wholesome laws as may be necessary to promote the peace, health and well-being of society; laws fixing regularly recurring days of rest from all secular pursuits, such as our Sunday laws, are of this character, and do not violate the personal liberty of the individual, secured by the first section of o.ur bill of rights.
    (Decided April 19, 1898.)

      Exceptions of the prosecuting attorney to the rulings of the Court of Common Pleas of Cuyahoga county.

      T. L. Strimple, prosecuting* attorney; Harvey JR. Keeler; Cha/rles W. Snider and J. K. Ingersoll, for plaintiff in error.
    I. The power of the legislature in Ohio in the enactment of laws is unlimited, except as limits are to be found in the constitution of the state or of the United States.
    The present constitution, which was adopted in 1851, defines the domain of legislative power and authority in language which is very broad and comprehensive. Article 2, section 1, Baker v. City of Cincinnati, 11 Ohio St., 534.
    Since the adoption of the present constitution containing the same grant of legislative power, interpretations to the same effect are contained in Lehman v. McBride, 15 Ohio St., 591; State ex rel. Games v. McCann, 21 Ohio St., 207; Bloom v. Xenia, 32 Ohio St., 464; Me Gill v. State, 34 Ohio St., 244; Peters v. McWilliams, 36 Ohio St., 161; Bronson v. Oberlin 41 Ohio St., 480; Sharpless v. The Mayor of Philadelphia, 21 Pa. St., 147.
    II. When the present constitution was adopted, the power to enact laws enforcing the observance of Sunday as a day of rest, had been fully recog*nized by both the legislature and the judiciary as a constitutional exercise of legislative power, and in adopting the present constitution the people adopted with it such interpretation.
    In Swan’s Statutes, p. 255; 29 O. L., (1831) p. 161, was a statute embracing substantially the same matters prohibited to be done on Sunday as are now contained, in Revised Statutes, sections 7032 and 7033.
    Section 7032 embraces those acts ending with the word ‘ ‘ shooting, ” while section 7033 embraces substantially the remainder of the statute of 1831 above quoted.
    We make this quotation as showing- that the legislature in its exercise of legislative power, preceding and at the time of the adoption of our present constitution, was assuming jurisdiction over the subject of enforcing Sunday rest upon the citizens of the state.
    The Supreme Court up to that time upheld such exercise of legislative power as being plainly within its legitimate province.
    Wright’s Rep., p. 754, Swisher's Lessee v. Williams' Sews, (decided in 1834) is the first recorded opinion of the Supreme Court regarding the law of Sunday observances, which was the law of 1831.
    The next utterance of the Supreme Court involving this law of 1831 is found in Cincinnati v. Bice, 15 Ohio St., 225.
    So that the chief contention in the Supreme Court came to be whether or not the words which by the ordinance had been added to the statute were embraced in the words “common labor,” which the statute contained; for if they were so embraced, then the second section of the ordinance, which contained the same provision of exemption from its punitive power to all who conscientiously observe the seventh day of the week as the Sabbath, would sustain the judgment of the common pleas and warrant the discharge of the defendant.
    We will very briefly ask the attention of the court to the next case in the Supreme Court involving the subject of Sunday observance, determined prior to the adoption of the present constitution.
    In Sellers v. Dugan, 18 Ohio, 489, the statute of 1831 came before the Supreme Court of Ohio for construction upon the point whether or not a single act of contracting for the purchase of corn was included within the words “common labor.”
    The next case in order before the Supreme Court of Ohio, in 2 Ohio St., 387, was decided after the adoption of the present constitution, to-wit: at December Term, 1853; Specht v. Commonwealth,, 8 Pa. St., 312; City Council of Charleston v. Benjamin, 2 Strobh, S. C. Law Rep., 508; Cooley’s Constitutional Limitations, p. 67; Wolfv. State, 19 Ohio St., 255.
    III. The bill of rights in our present constitution, especially in the guaranty of liberty of conscience and freedom from religious tests, does not impose such restraint upon the legislative power as to prohibit the enactment of the law in question: Article 1, section 7.
    Statutes designed to secure rest from labor, on grounds of pure political economy, were in force in most of the states when this constitution was adopted. This statute under discussion does not forbid or interfere with any one in the “worship of Almighty God according to the dictates of his own conscience.”
    We have never heard the contention, and do not expect to hear it, that playing base ball is an act of worship, which the conscience of any one requires to be performed on Sunday; and until such senseless contention is made, there is no ground for the further contention that a law forbidding the playing on Sunday is an interference with the rights of conscience in worship. In McGatrick v. Wason, 4 Ohio St., 566, the Supreme Court had occasion to pronounce the validity of the Sunday law, the .same law of 1831 given above.
    These doctrines are affirmed by the Supreme Court in Canton City v. Christ, 9 Ohio St., 439; Board of Education v. Minor, 23 Ohio St., 211; Biligheimer v. State, 32 Ohio St., 435; Hastings v. Columbus, 42 Ohio St., 585.
    IV. There is no rational or legal ground for objection to the statute in question in the contention by defendant that it is in conflict with the spiritand genius of our free institutions. 20 Ohio Appendix, 8; Griffith v. Comrs. of Crawford Co., 20 Ohio, 609; Walkers. Cincinnati, 21 Ohio St., 14; The Btateexrel, Herrons. Smith, 44 Ohio St., 374; Probascos. Panne, AudÁtor, 50 Ohio St., 390.
    The authorities are numerous in the reports of other states supporting this principle of construction. States. Wheeler, 29 Conn., 297; Sharpless s. Mayor, etc., 8 Pa., St., 160 ; State s. Blotter, 33Ind., 410; Borman s. State, 34 Ala., 235; Sioan s. Swan, 21 Fed. Rep., 299 ; Tiedeman’s Lim’s of Police Powers, section 2; Cooley’s Cons. Lim’s, p. *72; Vol..21 Am. & Eng’. Ene., p. 530.
    V. The statute in question, prohibiting the playing of base ball upon Sunday, lies plainly within that domain of legislative power commonly called the police power. 18 Am. & Eng. Enc., 739 ; Tiedeman’s Lim’s of Police Power, section 1; Stone v. Mississippi, 101 U. S., 818; Mayor of N. Y. s. Miln, 11 Peters, 139; Railroad Co. s.Husen, 95 U. S., 470; Beer Co. s. Massachusetts, 97 U. S., 25; States. Hoyes, 47 Me., 211; Lakeview s. Rosehill Cemetery Co., 70 111., 192; Commonwealths. Alger, 7 Cush., 85; People s. King, 110 N. Y., 423.
    VI. We advance from the principles previously contended for, to another principle which is properly a corollary to the proposition last above argued; viz. :
    The police power can only be exercised by legislative enactment, and it rests solely within legislative discretion to determine when the public welfare or safety requires its exercise. Tiedeman Lim. of Police Power, section 2.
    It is not essential to the exercise of the police power by the legislature, that the matter in respect to which it is exercised must be in its nature injurious ; or as the court below is reported to have expressed it, a matter malum in se.

    The cases reported as court decisions are numerous in which the courts sustain the exercise of the police power by legislatures in restraint of natural right, when the object to be gained concerns the protection of the public or security of its welfare.
    In cases of wager upon the result of an election.
    See numerous cases cited in notes on p. 996 of 8 Am. & Eng. Encyclopedia.
    In cases of contract for sale of grain or other personal property when the intent exists not to deliver the property. 8 Am. & Eng Encyc., 997, and cases cited in note 2; 8 Am. & Eng. Encyc., p. 1006 and cases cited in note 1 and p. 1015, note 1.
    In cases of adulteration of food or drugs': Oleomargarine, for butter. 1 Am. & Eng. Encyc., p. 740, note 1.
    Milk, when containing less than a certain per cent, of solids. State v. Smyth, 14 R. I., 100; Polinsky v. People, 73 N. Y., 65; Commonwealth v. Shaffner, 146 Mass., 512; State v. Campbell, 61 N. H., 404; 1 Am. & Eng. Encyc., p. 743, note 1, showing states which have laws on these subjects.

      In cases which, in the discretion of the legislature affect the health of the people.
    Putting limits within which the slaughtering of cattle shall be forbidden. 16 Wal., U. S., 36, Slaughter house cases.
    Protecting the water supply of cities. 1 Dillon Munic. Corp., section 146; Livingston v. Pippin, 31 Ala., 542; Pome v. (Jabot, 28 Ga., 50; LLale v. Houghton, 8 Mich., 458. Fixing qualifications of doctors and surgeons. Eastman v. State, 109 Ind., 278; PichaA'dson v. State, 47 Ark., 562; Robinson v. Hamilton, 60 Iowa, 134.
    Regulating location of cemeteries. 18 Am. & Eng. Encyc., p. 749, note 3.
    Compelling drainage or filling of stagnant waters. Winsloio v. Winslow, 95 N. Car., 25; Donelly v. Decker, 58 Wis., 461; Kennedy v. Board of Health, 2 Pa. St., 366.
    Forbidding smoking upon street cars. State v. Heidenhain, 42 La. Ann., 483.
    Forbidding- the growing of certain crops or keeping certain animals within a city. Green v. Mayor, etc., 6 Ga., 1.
    Regulating the rate of charges for services rendered by one who serves the public as by a railroad or warehouse. Munn v. 111., 94 U. S., 113.
    In cases concerning the preservation of public morals, prohibiting lotteries. Moore v. State, 48 Miss., 147; Stone v. Miss., 101 U. S., 814; Nolin v. Mayor, etc., 5 Yerger (Tenn.), 163.
    Prohibiting’ gambling or gaming-. Waugh v. Beck, 114 Pa. St., 422; Peoples. Weithoff, 51 Mich., 203; Gamer on v. State, 15 Ala., 383; Torney v. State, 13 Mo., 155.
    Restricting sales of intoxicating liquors. Tiedeman’s Lim’s of Police Power, section 103; Mugler
      v. Kansas, 123 U. S., 623; State v. Donehey, 8 Iowa, 39&•, Lincoln Y. Smith, 27 Vt., 328; State y. Robinson, 33 Me., 568.
    Restraints on games and amusements. Tanner v. Albion, 5 Hill, 121; Commonwealth v. Colton8 Gray, (Mass.), 488 ; /Stoic v. Hoy, 29 Maine, 457; /Stoic v. Freeman, 38 N. H., 426; Walloch y. Mayor, eto., 3 Hun. (N. Y.), 87.
    Though the illustrations above cited give some intimation of the extent and variety of subjects upon which the police power is exercised by the legislature, yet they by no means cover the entire field. We beg from this court a brief attention to some of the subjects in which the exercise of the police power has been under their consideration. Buck v. State, 1 Ohio St., 61; Bliss v. Keans, 16 Ohio St., 54; Call v. Cincinnati, 18 Ohio St., 563; Bainbridge v. State, 30 Ohio St., 264; Palmer v. State, 39 Ohio St., 236; Anderson v. Brewster, 44 Ohio St., 576; Weller v. State, 53 Ohio St., 77; /Stoic v. Kelly, 54 Ohio St., 166.
    We contend that all these eases cited from Ohio Supreme Court decisions deny the principle which was assumed as the basis of the opinion given in the ease at bar by the court of common pleas, to-wit: That the police power could only be exercised on things immoral, or as it was also expressed, things mala in se.

    Aside from the many illustrations above given, which show the police power to extend to matters harmless in themselves, we beg to refer to the doctrine of crime in Ohio. FoutSY. State, 8 Ohio St., 111.
    VIII. The law forbidding the playing of base ball on Sunday should not be pronounced unconstitutional unless it can be shown to be plainly and without doubt repugnant to the constitution.

      In 21 Pa. St., 147, this principle is asserted by judges of every grade, both in the Federal and in the state courts, and by some of them it is expressed with much solemnity of language. 6 Cranch, 87.
    To the same effect is the doctrine stated in 6 Am. & Eng. Encyc., (2nd Ed.), p. 1085,. paragraph (bb) and note 6; Cass v. Dillon, 2 Ohio St., 607; Goshorn v. Purcell, 11 Ohio St., 653; Lehman v. McBride,, 15 Ohio St., 591; State v. Keridle, 50 Ohio St., 355.
    Solders, Jlogsett d? Tilden, for defendant in error.
    Brief of G. B. Solders.

    We shall seek to maintain:
    That said act, section 7032does not create an offense.
    Said act is in conflict with section 1 of the Bill of Rights as restricting and interfering with the inalienable right of a human being to enjoy life, to seek and obtain happiness.
    Said act is in conflict with section 7 of the Bill of Rights as being an act in aid of and seeking to enforce the observance of the first day of the week on religions grounds, and preferring the Christian religion.
    Said act is void in not containing the exception mentioned in section 7033 in favor of those who conscientiously observe the seventh day as therein mentioned.
    Said act cannot be justified as an exercise of police power.
    Of these claims in their order:

      First — It is in the nature of an. eos post facto law, in that it makes an act done, which when done is innocent, not prohibited, not criminal. Chitty’s Blackstone, Vol. 1, page 31; Blackstone’s Commentaries, 5.
    Section 7032a, does not declare any base ball playing an offense, because the will of the sovereign power does not indicate this. An offense or crime must be such at the time it was committed, because the sovereign power has declared that the act shall not be done, or has commanded that the act be done, in default either way, punishable. Any base ball playing on the first day of the week would become an offense, depending entirely upon the views of the various localities and counties of the state — lawful if the liberal sentiment of the community will tolerate it, and unlawful if the religious sentiment of the community disapproves. It is in the nature of an act depending’ entirely upon the popular will find not upon the will of the sovereign power in declaring’ the act to be an offense.
    Sections 7031, 7032, 7032a and 7033, which touch human conduct upon the first day of the week, contain the clause, “on complaint made within” the time stated, ten days in sections 7031, 7032 and 7033, and twenty days in section 7032a. All other sections of crimes and offenses in the state of Ohio fail to show this peculiar clause as to time.
    Second and Third Claims involve a constitutional question, an argument involving the relations of church and state, and the character which is sought by the advocates of Sunday laws, (the union of church and state,) to be given through secular power, to the day which they observe as a sacred day; not so much in obedience to the common labor statute as to the religious sentiments maintained by them as to how the day shall be devoted and to what purposes.

      Let us note, at the outset, what are the constitutional provisions bearing upon the question. Revised Statutes, Vol. 2, page 3209.
    Bill of Rights, section 1 : “All men are by nature free and independent and have certain inalienable rights, among which are those of enjoying and defending life and property, acquiring, possessing and protecting property and seeking and obtaining happiness and safety.” Anderson v. Poindexter, 6 Ohio St., 622; Morgan v. JSTolte, 37 Ohio St., 23.
    Those who have advocated Sunday laws, so-called, have shown an inclination to treat constitutional limitations lightly. Story on the Consti-' tution, Vol. 2.
    When human conduct is controlled upon one day in a manner different from other days, excepting the common labor statute, and regulates human action upon one day by prohibiting an act, which is not deemed by the state prejudicial to it or to its citizens upon other days, which Sunday laws do, such legislation is in furtherance of religious ascendancy over the human mind.
    “Webster on the Independence of the Judiciary,” Vol. 3, page29; 15 Pa. St., 18; 15 N.Y., 558; Cooley’s Con. Lim., 43 ; 1 Ohio St., 81.
    The first Sunday law was in the time of Constantine, March 7, A. D. 321, Neander, Church History, 300; see Carthage Convention year, 401; Schaff’s Church History, Vol. 2, section 27.
    History records the fact that after the doctrine of Christ became recognized in the Roman empire and thereafter spread to other portions of the then partially civilized countries, that in time the Papacy subordinated the civil power and continued to enforce the religious views of Sunday, not prohibiting common labor on the first day of the week on the basis of sanitary regulations, but entirely upon the basis of the religious views of the day.
    The first Brownist Sunday law, so-called, was passed in England in 1623.
    The next thing was a law aimed at traveling. In 1632, nine years after the first Sunday act, the law forbade “worldly work. ” A century and a half elapsed after this first Brownist Sunday law, so-called, before any work, (that is, one’s ordinary calling with the exceptions of works of necessity and charity) was forbidden on Sunday.
    The combined prohibition of work and play is found in the statutes of many states, as to the first day of the week, not necessarily in the same act prohibiting common labor, but in separate acts.
    We shall attempt to support the claim that all legislation from the earliest dawn of civilization are based upon the historic truth that Sunday laws represent and embody union of church and state. This, in tiie early decisions was ignored by the courts, as for instance, the celebrated case of Lindmuller v. The People, 33 Barber, N. Y., 548, relied upon so much as the main case in the state of New York, said latter case holding the contrary doctrine of Bloom v. Richards 2 Ohio St., 387, cited in said case which clearly declares and recognizes that there is no union of church and state in Ohio.
    In 1803 Georgia enacted a Sunday law requiring all persons to attend public worship. The Georgia statute is based upon the principle that Sunday is a holy day. Weldon’s case, 62 Ga., 449.
    The Iowa statute set Sunday apart as sacred. Davis v. Fish, 1 Green, 400.
    In New York, it seems to have been consecrated by the statute. 8 Johns, 290; Johnson’s case, 22 Pa. St., 102; Stockton’s case, 18 Ark., 186; North Carolina and. Tennessee had similar laws. Also South Carolina. State v. Ambs, 20 Mo., 314; 35 Neb., 614; Goursey v. Bath, 35 N. H., 530; Varney v. French, 19 N. H., 245; Moore v. Hagan, 2 Duv., Ky., 437; Davis v. Somerville, 128 Mass., 594.
    This indicates beyond all question that the main idea underlying such legislation is the religious view maintained as to how the day shall be utilized.
    The very object of the constitutional guarantees, “is to limit the power of the majority; to enumerated points which they shall not be permitted to decide.” 2 Ohio St., 387.
    Suppose the Israelites, Seventh-day Adventists and Baptists, under this sound constitutional principle of protection to the minority, should go to the legislature asking for protection in the same way that the advocates of Sunday laws ask, to enact a law compelling all people to abstain from the innocent acts prohibited in sections 7032 and 7032-a, in order to protect them in their rights in observing Saturday as their Sunday. What would be thought of that? Cooley, Con. Lim., 476.
    But it will be said that the Ohio labor statutes excepts those who observe the seventh day. Excepts them from what ? Section 7033 prohibits “common labor on Sunday” and then makes an exception in favor of those who conscientiously observe the seventh day of the week as Sabbath. The face of this statute indicates religious basis and religious views.
    The language of most Sunday laws is so general as to strongly support the idea that spiritual betterment of the abstainer from physical work is -what the state is aiming at, although it is sought to justify Sunday legislation on other grounds that is, sanitary benefits.
    Many American eases take this view, spiritual benefit, which is the established rule in England. Fenmueller v. Ridley, 5 B. •& C., 406.
    Another class of cases, while holding to the view that Sunday laws are essential religious regulations, 3et reason that their design is not to improve the spiritual condition of man, but to enforce rest upon him in order to prevent him from interfering with measures taken by other people for their own spiritual improvement. These cases may contend that the object of Sunday laws is to preserve good order and peace. 20 Howard Pr., 76. And that these laws are passed in order that religious exercise may be performed without interruption. Pierce v. Atwood, 13 Mass., 324. And to prevent the disturbance of our citizens in their religious devotions. Adams v. Gray, 19 Vt., 358. And to prevent the religion of the community from unseemly hindrance. Smith v. Wilcox, 24 N. H., 353.
    Williams case, 4 Tre., 400; The People v. Eavenor, 149 N. Y., 203; Lindmuellm' v. The People, 33 Barber, 548; 69 N. Y., 557 ; 140 N. Y., 514; People v. Gillson, 109 N. Y., 389; Cooley Con. Lim., 467; Tiedeman on Pol. Power, section 76.
    Article IV of the constitution of the United States says: “No religious test shall ever be required as a qualification for office of public trust under the United States.” By an' amendment: “Congress shall make no laws respecting the establishment of religion or promoting the free exercise. In 1796 a treaty was made with Tripoli in. which it was declared (Art. 11.) that: “The government of the United States of America is not in any sense founded upon the Christian religion.”
    Certainly the fathers of the constitution, the public men then (1796) representing the affairs of the infant nation .were competent to construe and know the meaning of constitutional provisions. This was the view that the fathers then maintained. Note how this is in conflict with the case of Lindmueller v. The People, in 33 Barber, 548.
    The inhibition in section 7033 is simply of common labor as distinguished from intellectual. Those then that observe the seventh day of the week as a religious day are exempt from said statute. Exempt from what? From the prohibition as to common labor? If this be true, then the first day of the week, as to the people who fall within this statute, observing the seventh day, is the same to them, and ought to be as a matter of right so far as civil power is concerned, as Monday, Tuesday or any other day of the week.
    If this be true, then why should the provisions of sections 7032 and 7032 «, so far as it relates to human conduct which is not of itself a breach of the peace, like rioting and quarreling, be binding upon them when the provisions in these two sections are not binding upon the Christians so far as the seventh day of the week is concerned.
    It seems that the legislature entertained like views, as evidenced by the act passed February 17, 1831, Vol. 29, page 161, and found in S. and C., Vol. 1, page 447, entitled, “An act for the prevention of .certain immoral practices. ” Cincinnati v. Bice, 15 Ohio, 225; Canton v. JVist, 9 Ohio St., 439; Thompson v. Vernon, 11 Ohio St., 688.
   Minshall, J.

John Powell, with others, was prosecuted in the police court of the city of Cleveland, on an information charging him in one count, with having on Sunday, May 16, 1897, participated in playing baseball, and, in a second count, with having exhibited a game of baseball playing, on certain grounds in the city — a charge for admittance having been made. The case was tried to a jury on a plea of not guilty. He was found guilty on both counts ; and, after a motion for a new trial made and overruled, was sentenced to pay a fine and costs of prosecution. The case was then taken to the court of common pleas on error, where the judgment was reversed and the defendant discharged on the ground that the section of the Revised Statutes, 7032«, under which the conviction was had, is unconstitutional. This section, among other things, makes it an offense, punishable by fine and imprisonment, for any one on the first day of the week commonly called Sunday, to participate in, or exhibit to the public in any “building” or on any “ground” in this state, “any baseball playing. ”

A bill of exceptions was taken by the prosecuting attorney to the ruling of the judge, and, on application, leave was given by this court to file the same.

The question presented by the bill is the validity of our Sunday laws. After so many years of acquiescence in their adoption, and, I might say, of almost unquestioned validity, these laws are now assailed on the ground that they violate the guaranties of personal and religious liberty contained in the'^rsTand seventh sections of our bill of rights. JEhese-questions may he better considered in their reverse order.

The seventh section secures to every citizen of the state the fullest liberty of conscience in matters of religion: No one can be compelled to support or observe any form of worship against his consent. If the observance of Sunday as a day of rest and abstinence from all secular pursuits, had for its object the enforcement of a religious requirement, there are few lawyers or judges that would undertake to sustain the statute as a valid enactment. It would clearly contravene the section of the bill of rights just referred to. But that they are secular in purpose and not made to enforce any particular form of religious observance is sustained by a consensus of opinion in the decisions of the courts of this country, rarely found upon any other subject. Indeed there is not to be found a decision of a court of last resort to the contrary, except that of the state of California, which has since been overruled by the same court. Ex parte Newman, 9 Cal., 502, overruled in Ex parte Andrews, 18 Cal., 679. And though the day adopted for the observance of rest may coincide with the religious persuasion of a large part of the people, though not with all, is not' regarded as infringing upon the rights of the latter, since no religious observance of any kind is enjoined. Those who desire can devote the day to religious observances ; others may do as they see fit, so that they do not engage in such secular pursuits as, in accordance with the policy of the law, are prohibited. The policy of Sunday laws is based upon the observed fact, derived from long experience and the custom of all nations, that periods of rest from ordinary pursuits are requisite to the well-being, morally and physically, of a people. If there were no such regularly recurring periods, there is reason to believe, that the masses would, become morbid in body and mind, crime would multiply, and degeneracy likely ensue. Rest recuperates the mind and body, gives new life and hope to the people, and cheerfulness and health attend renewed labor; and, as has been well observed, more, UDder these circumstances, can be accomplished in six days, than would otherwise be accomplished in seven. This is the foundation and policy of all statutes regulating the observance of a day of rest; and whether the day selected is one consonant to the religious views of a portion of the people or not, does not affect the validity of the regulation, where no religious observance is enjoined. Religious liberty does not consist in the right of any sect to oppose its views to the policy of a government. Such a claim would end in simple intolerance of all not in accord with the sentiments of the particular sect. Those who, as a matter of religious faith, observe the seventh day of the week are not prohibited from doing so; but they cannot insist that others shall do so, nor refuse to observe the day fixed by the state for secular reasons. There are sects who believe in polygamy, and adopt it as a part of their religion. But, however, conscientious they may be in entertaining such notions, if one of them should come into Ohio, and bring with him his wives, his religious scruples would not protect him on an indictment for bigamy.

The question however, is not an open one in this state. In Bloom v. Richards, 2 Ohio St. 387, decided in 1853, the whole subject was fully considered. Whilst holding that the making of a contract is not within the meaning of the term “common labor,” the statute as thus construed, was sustained as a secular regulation, that in no way interferes with any one’s rights of conscience. Thurman, J., in delivering the opinion said that “Acts evil in their nature, or dangerous to the public welfare, may be forbidden and punished, though sanctioned by one religion and prohibited by another; but this creates no preference whatever, for they would be equally forbidden and punished if all religions permitted them. Thus, no plea of religion could shield a murderer, ravisher, or bigamist; for community would be at the mercy of superstition, if such crimes as these could be committed with impunity, because sanctioned by some religious delusion. ” “We are then, ’ ’ he said, ‘ To regard the statute under consideration as a mere municipal, or police regulation, whose validity is neither strengthened or weakened by the fact that the day of rest it enjoins is the Sabbath day. Wisdom requires that men should refrain from labor at least one day in seven, and the advantages of having the day of rest fixed, and so fixed as to happen at regularly recurring intervals, are too obvious to be overlooked. It was within the constitutional competency of the General Assembly to require the. cessation of labor, and to. name the day of rest. It did so by the act referred to, and, in accordance with the feelings of a majority of the people, the Christian Sabbath was very properly selected. But, regarded merely as an exertion' of legislative authority, the act would have had neither more nor less validity had any other day been adopted. ’ ’ He then cites a number of cases, particularly Specht v. The Commonwealth, 8 Ban., 312, and Charlston v. Benjamin, 2 Strobh, 508, which fully support his opinion as to the secular character of Sunday laws and the policy on which they rest.

Among the eases that may be cited, sustaining the enactment of Sunday laws, in addition to those already referred to, are the following: Watts v. Van Ness, 1 Hill, 76; Shover v. State, 5 Eng., 259; State v. Elmer, 20 Mo., 214; Hall v. State, 3 Kelly, 18; Bode v. State, 7 Gill, 326; Jones v. People, 14 Ill., 196; Story v. Elliott, 8 Conn., 27; Commonwealth v. Har, 122 Mass., 40; People v. Havnor, 149 N. Y., 195; Hennington v. State, 90 Ga., 396, affirmed by the Supreme Court of the United States, 163 U. S. 299. They are also fully collected and well considered in the opinion of Fisher, J., in State v. Goode, 5 Nisi Prius Rep., 179. And it is proper to call attention to the able dissenting opinion of Field, J., in Ex Parte Newman, 9 Cal., 518, since the decision of the majority in this ease was overruled by an unanimous decision in the subsequent case of Ex Parte Andrews, 18 Cal., 679; and the law of that State “ for the better observance of the Sabbath,” sustained, though the same Constitutional objections were urged against it, that are made in this case, the provisions of their bill of rights being in this regard substantially the same as our own.

But it is further claimed that the statute violates the guaranty of personal liberty contained in the first section of the bill of rights. This, though one of the great maxims of our form of government, has never been regarded as limiting the power of the legislature in the enactment of such good and wholesome laws as are required to secure the peace, health and good order of society The learned Sedgwick in his work on Statutory and Constitutional Construction, 153, commenting on the provisions usually contained in the bill of rights of our American Constitutions says: “They are of no little value as safeguards against error and injustice; but I think they must be regard ed rather as guides for the political conscience of the legislature, than as texts of judicial duty. Important as they are, still they are expressed in such general terms as necessarily to admit of great and prominent exceptions. As to the enjoyment of life and liberty, property, and the pursuit of happiness, all these rights are daily interfered with by the legislature, without scruple for the common welfare. I suppose it be must admitted that, in a judicial sense, these clauses could not easily be made available.” Liberty, as understood in this country, is not license, but liberty regulated by law. The personal liberty of every man is subject to such reasonable regulations as, in the wisdom of the legislature, are regarded necessary to promote, not only the peace and good order of society, but its well-being. This objection to the law is well answered in the clear and forcible language of Justice Field, in the dissenting- opinion before referred to. “If,” he says, “it be admitted that the legislature possesses the right to restrain each one in his freedom of conduct only so far as is necessary to secure protection to all others, from every species of danger to person, health, and property, .no inference can be drawn against the validity of the act under consideration. The character and mode of protection, and what is dangerous to the person, or to health and property, must necessarily be left to its determination, and in the first section of the Constitution no inhibition to the exercise of its power in this respect can be found. The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical well-being of society promoted. The legislature has so considered it, and the judiciary cannot say that the legislature was mistaken, and, therefore, the act is unconstitutional, without passing out of its legitimate sphere, and assuming a right to supervise the exercise of legislative discretion in matters of mere expediency,” and which he proceeds to say cannot be done.

We have carefully considered the able argument of counsel for the Judge whose ruling is under review. The gist of his argument is that the purpose of the act is to enforce the observance of Sunday as a religious requirement; and calls attention to the claims and views of those most zealous in its enforcement. No doubt, many who advocate Sunday observance, particularly the'Christian ministry, do so from the persuasion that our Sunday laws are designed as religious observances only, and insist that they should be more rigidly enforced that the people may be more accessible to the influences of the Christian pulpit. However desirable this may be from the Christian standpoint, it is certain that it is not in the power of the legislature to accomplish this by any direct legislation, so long as religious liberty is guaranteed, as it is, in our bill of rights. This was settled by the case of Bloom v. Richards, supra. The fact, however, that such views are entertained of the purpose of the law and may have controlled the votes of many who supported it in the legislature, cannot affect its real character and proper construction. The purpose and object of a law are to be determined by the language applicable to its subject-matter. Speaking to the same point, Baldwin, J., in Ex parte Andrews, 18 Cal., 685, said: “The act itself in the body of it explains in what manner the day was to be observed, and shows that the object of it was only to require duties purely civic or secular.” A law enacted for sufficient reasons of a secular nature — as the public health, cannot be held invalid, because there is a variety of religious notions upon the subject. Nor can the state be prevented from adopting certain civil regulations, recommended by a wise public policy, simply because found to be in accord with the teaching of some religion. There is probably no religious observance that could not be enforced as a secular duty, without violating the guaranty of religious liberty, where there are sufficient secular reasons for doing so, independent of what is ordained as a matter of religion. In general, where there are secular and religious reasons for the same observance or law, the observance or law may be adopted as a civil regulation by the legislature for the attainment of the secular purposes; and when enforced for these purposes alone, no one can complain of it, simply because the observance or law finds support in the precepts of some religion. It is enjoined for secular and not religious reasons. It might be questioned whether the Jewish Sabbath was prescribed purely as a religious observance and without any regard to the temporal welfare of the people. It must be remembered that the Jewish government was in the nature of a theocracy, and its precepts were given without much regard to what was of a spiritual nature, and what was secular and related to the temporal government of the people alone.

Exceptions sustained.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    The First National Bank of Findlay v. John S. Trout, Laura D. Trout et al.

      Promissory note — Warrant of attorney to confess judgment— Faihire to fill blanks in confession clause — Jurisdiction of persons.

    A promissory note with warrant of attorney to confess judgment thereon should be so interpreted as to give effect to the intention of the parties ; and a judgment thereon confessed against the makers is not void for want o'f jurisdiction of their persons if the terms of the warrant indicate an intention to authorize it, notwithstanding a failure to fill blanks intended to be filled with words giving fuller expression to that intention.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Hancock county.
    The Farmers NationaLBank of Findlay brought suit in the court of common pleas to subject real estate of J. S. Trout in Hancock county to the payment of liens. The cause was appealed to the circuit court where it was tried upon issues joined by the several pleadings of the plaintiff in error and Laura D. Trout.
    In its cross-petition the plaintiff in error asserted the lien of two judgments rendered by the common pleas court of said county in its favor and against John S. Trout and one I. N. Smith on the 15th day of June, 1893, each for the sum of $216.00 and costs, and of another judgment rendered by said court in its favor and against J. S. Trout, Dec. 18,1893, for $288.00 and costs.
    Laura D. Trout asserted the lien of a mortgage executed to her by J. S. Trout, Sept. 23, 1893, to secure the payment of a promissory note of that date for $1,872.00, and she denied the validity of the judgments in favor of the plaintiff in error because they were rendered without jurisdiction of the person of J. S. Trout.
    The only evidence offered upon the trial was the complete records of the causes in which the two judgments of June 15,1893, were rendered. From the records it appears that the judgments were rendered upon confession by an attorney acting upon warrants attached to the notes, the following being a copy of the notes and warrants:
    ‘ ‘$200.00 Findlay, Ohio, June 11, 1892.
    One year after date for value received I promise to pay to the order of Will E. Heck, Two Hundred Dollars with interest at the rate of eight per centum per annum at..............................and.............................hereby authorize any attorney at law to appear in any court of record in the United States after the above obligation becomes due, and waive the issuing and service of process and confess a judgment against ..........................., in favor of the holder hereof, for the amount then appearing due, together with costs of suit, and thereupon to release all errors and waive all right of appeal.
    I. N. Smith,
    J. S. Tbout.
    Waiving demand and notice,
    Will E. Heck.”
    Upon this evidence the circuit court found that the judgments were not valid liens upon the premises and ordered distribution of the proceeds of sale to the mortgagee.

      J. A. <& K V. Hope, for plaintiff in error.
    By reference to the notes, correct exhibits of which are given as above stated, it will be noticed that the notes were joint and several promissory notes, dated at Findlay, Ohio, June 11,1892, signed by I. N. Smith and J. S- Trout to the order of Will. E. Heck, and by him indorsed in blank to the Bank, warrant of attorney authorizing any attorney at law to appear in any court of record in the United States and waive the issuing and service of process and confess a judgment in favor of the holder of the note to the amount then appearing to be due. And being indorsed by the payee takes the case out of the case of Spence v. Emerine, 46 Ohio St., 433; Freeman on Judgments, 4th Ed., Volume 2, section 545, pages 941 and 942; Mason v. Smith, 8 Ind., 73; Gambia v. Howe, 8 Black-ford, 133; Sweezey v. Kitchen, 80Penna. State, 160; Osgood v. Blackmore, 59 Ills., 261; Packer v. Roberts, 140 111., 9.
    There is a difference between a total want of jurisdiction and jurisdiction defectively acquired. In the former case a judgment is void; in the latter it may be voidable, but not void, and the only remedy to get rid of the judgment is by proceedings in the court in which the judgment was rendered, or by error to the appellate court. Freeman on Judgments, Volume 1, section 126.
    It seems to us, and we confidently claim that the common pleas court of Hancock county had jurisdiction of the subject matter. Clearly and unquestionably the court had jurisdiction to render a judgment upon a promissory note.
    It also had jurisdiction of the person because John S. Trout was a resident of the county, and while summons was not issued in the case, his appearance was entered by an attorney of the court by virtue of the warrant of attorney. Section 118, Volume I, Freeman on Judgments, 4th Ed.
    Thus we have the finding of the court of the appearance of the defendants by their attorney, the execution by defendants of the note and warrant, the appearance of defendant waiving the issuing and service of process and the confession of the judgment. These are facts found by the court, jurisdictional in their very nature on confession of the judgment.
    Even if the jurisdiction was defectively acquired, still this judgment, which we claim to be absolute and valid, if held by the court that the jurisdiction was defectively acquired cannot be held void, but only voidable and the only remedy by proceedings in the trial court for error to appellate court. Callemv. Ellison, 13 Ohio St., 446; Mg Curdy v. Baughman, 43 Ohio St., 79; Wehrle v. Wehrle, 39 Ohio St., 366; /Spoors v. Coen, 44 Ohio St., .502.
    In the 23rd American State, pages 103 to 119 in notes to the case of Morrill v. Morrill, authorities are collected and the doctrine here contended for fully sustained. Freeman on Judgments, Volume 1, section 131; Volume 2, Freeman on Judgments, 4th Ed., section 558.
    A subsequent mortgagee cannot question the validity of a judgment confessed by the mortgagor, .which constitutes a lien upon the mortgaged premises, on the ground of the illegality of the consideration of the indebtedness upon which such judgment is founded where the mortgagor himself could not. file a bill to set aside the judgment. Bhufelt v. Bhufelt, 37 Am. Dec., 381, 9 Paige’s Chancery, 137; 384 Am. Dec., Walworth, Chancellor, citing French v. Shotwell, 5 Johns Ch., 567.

      John Poe, for defendants in error.
    It will be seen that from these pretended warrants of attorney that there is no authority to confess judgment against the makers or against any person. It is signed by Smith and by Trout. It cannot be extended in its scope or effect by construction nor by an insertion of a word which it does not contain. 19 Ohio St., 536; Spence v. JEmerine, 46 Ohio St., 433.
    Observe the reading of these warrants of attorney. The first purports to authorize any attorney at law in any court of record * * * and waive the issuing and service of process and confess a judgment against................................
    Here is no authority given the attorney to appear in court for the maker, but only if he should be in court he might confess a judgment.
    The second authorizes the attorney to .appear in court but does not say for whom he shall appear. In neither is anyone mentioned or suggested whose appearance the attorney is to enter, and no one is mentioned or suggested against whom the judgment is to be confessed.
    These notes are both written, ‘ ‘I promise to pay, ’ ’ and are joint as well as several. 21 Ohio St., 163. And in the light of this circumstance the blanks in the instrument become more significant.
    It is said the first blank means nothing.
    Observe: If we follow the form of the note this power should read, “and I authorize attorney to appear for me and to confess a judgment against me. ’ ’ If we call the note a joint note and make the power conform to this idea, then it would read, ‘ ‘and we authorize attorney to appear for us and confess a judgment against us.”
    Three things are necessary to a valid judgment:
    1st. A court.
    2d. ■ A plaintiff in court in whose favor the court may render judgment; and

      3d. A defendant in court against whom, the judgment in favor of the plaintiff is to be rendered.
    We have in this case:
    1st. A court.,
    2d. A plaintiff in court.
    But that is all; we have no defendant in court.
    It is admitted that there was no jurisdiction unless derived through this power of attorney. This is not a power of attorney to appear for anybody nor to confess judgment against anybody.
    A judgment note is a dangerous weapon at best, and the courts will not permit it to be fired “in a crowd” but the party to be the victim must be specifically singled out by the agreeement so no random shots shall be fired which might injure some one who never agreed to “face it.” Sheldon’s Lessee v. Oren Neioton, 3 Ohio St., 494; Spoors v. Com, 44 Ohio St., 497.
    This record shows that by virtue of this power only of the attorney entered appearance, confessed, etc. But the power on which this was done is- itself part of the record and is inconsistent with the claim that the finding of the court is sufficient to give or show jurisdiction in the court.
    Besides, there is no finding by the court that it had jurisdiction, but the finding is that by virtue of this power only the attorney came in. If then the power is invalid of course there was no jurisdiction. Suppose the court journal recited that the attorney appeared and confessed judgment by virtue of the note and it had no power at all attached and made all the finding's here made, would all such findings show jurisdiction?
   Shauck, J.

Upon the question presented no consideration is due the suggestion of counsel for the mortgagee that judgment notes are dangerous instruments. Their use in this state is inveterate, and it is not to be discontinued by violence to the rules of interpretation. Does the language used in these instruments show that the makers intended to authorize an attorney to appear for them, waive summons and confess judgment against them and in favor of the holder of the note? That the power was to be exercised in favor of the holder of the note could not have been made clearer.

Notwithstanding the use of the singular pronoun in the obligatory part of the instrument, it is settled that it is the promise of both makers, their obligation being several as well as joint. Wallace v. Jewell, 21 Ohio St., 163. No reason appears why the use of that number should limit the aüthority conferred by the warrant any more than the obligation to pay. Nor does any substantial defect in the warrant result from the omission to fill the blanks. By the terms of the instrument the makers of the note are the donors of the power which is conferred. Their relation to the instrument and the use of the copulative conjunction sufficiently indicated the persons against whom judgment should be rendered. The instruments as executed express elliptically what would have been expressed more fully if the blanks had been filled. The language actually employed in the power suggests “we” and “us” as the only words which could, with propriety, be inserted in the blanks. Sweesey v. Kitchen et al., 80 Pa. St., 160; Packer v. Roberts, 140 Ill., 9.

Judgment of the circuit court reversed and judgment for plaintiff in error.


author: Bradbury, J.

text:
    Moss v. The Board of Education.

      School districts — Creation of subdistricts — Sections 3946-3948,Revised Statutes — Duty of commissioners appointed by probate court— Action by taxpayer enjoining erection of school building, etc.

    1. Where, pursuant to sections 3946, 3947 and 3948, Revised Statutes, a petition praying for the creation of a subdistrict for school purposes is filed with a probate judge, and commissioners are appointed by him to determine the expediency of establishing a subdistrict, it is the duty of such commissioners, if they report in favor of establishing the sub-district and there is no suitable schoolhouse therein, to select a site for a schoolhouse. Their action in this respect is final and conclusive ; and if thereafter, the board of education elected within such subdistrict, attempts to abandon the site thus selected, and selects and purchases another site, and proceeds to erect a schoolhouse thereon, such action is unauthorized and void.
    2. Where in such case an action is brought by a resident taxpayer, on behalf of himself and others, to enjoin the erection of a schoolhouse on the constituted site, the negotiation of bonds to provide funds therefor, the paying out of funds already provided, the levying and collection of a tax therefor, and also asking for general relief, such action is not barred, because, having been commenced after the substituted site had been selected and the erection of a schoolhouse thereon begun, the board of education, disregarding the pendency of such action, proceeded to erect and complete'the schoolhouse. In such case a court of equity should afford the plaintiff and those he represents all the relief to which they are entitled, ■ and which under the circumstances can be decreed against any of the parties to the action.
    (Decided April 19, 1898.)
    Error to the Circuit court of Geauga county.
    The facts will he stated in the opinion of the court.

      N. H. Bostwick and J. E. Stephenson, for plaintiff in error.

      Metcalf <& King, for defendants in error.
   Bradbury, J.

The plaintiff in error on behalf-of himself and others began an action in the court of common pleas of Geauga county, against the Board of Education of Special School District No. 1 of Huntsburg township of that county, to prevent the board of education from erecting a schoolhouse on a site thereon, which he contends had not been lawfully selected. The petition set forth the following facts bearing upon the manner in which the special school district was established and the schoolhouse site selected: That about

June 14, 1895, such proceedings were had that the probate court of said county appointed three commissioners under section 3938, Revised Statutes, to consider and determine whether a special school district should be created in said township of Huntsburg according to the prayer of a petition then pending before said judge; that said commissioners duly qualified and entered upon their duties, and found in favor of creating a special school district, and also selected a site whereon to erect a schoolhouse, and made a written report to the probate judge of the county establishing the special school district in question and designating a site thereon describing the same, upon which a schoolhouse should be erected, which report was confirmed by the probate judge; that thereafter said board of education was duly elected, organized-and entered upon its duties ; that on July 20, 1895, the board caused an election tobe held to determine whether six thousand dollars should be raised by taxation on the property within the district to purchase a site and build a schoolhouse thereon, which proposition the board afterwards declared to have been carried, authorizing a tax not exceeding six hundred dollars per year for the purposes of buying such site and erecting said schoolhouse; that after said proposition had been declared carried, the board of education .purchased a schoolhouse site other than the one designated by the commissioners appointed by the probate court, and began the erection of a schoolhouse thereon. Afterwards by a supplemental petition the plaintiff brought in the following parties : R. N. Ford, and George H. Ford, partners as Boughton, Ford & Co., Boughton, Ford & Co., Charles J. Scott, Harley Barnes, and the Realty Title and Investment Co., a corporation, alleging them to' have been connected with the sale of the bonds and the custody of their proceeds that the special school district issued to provide funds for purchasing the schoolhouse site and erecting the schoolhouse, also J. F. Rose and Theodore Curtiss who had contracted to erect the building. The prayer of the petition and supplemental petition is to the effect that the board of education be enjoined from purchasing any other site than the one designated by the commissioners appointed by the probate court, from erecting a schoolhouse on any other site, from levying a tax selling bonds or paying out the funds of the special district therefor; that the contract for erecting the schoolhouse be rescinded and for general relief.

The board of education by its answer admits “that it is causing to be erected a schoolhouse upon a site other and different from that designated by said commission,” but that in doing so it was acting in good faith believing the substituted site would better accommodate the pupils of the district, and that the new site was selected at the request of a majority of the citizens, taxpayers and electors of the district.

The action was tried in the court of common pleas and judgment rendered for the defendants ; the plaintiff appealed the cause to the circuit court where also the defendants prevailed. The circuit court found as a matter of fact: “1st, that the commission sent out by the probate court to establish said special school district, located a site for said schoolhouse within said district. 2nd, that the defendant board did not build a schoolhouse upon said site nor procure nor take any steps to procure the title thereto. 3d, that the defendant board did purchase a site for a schoolhouse different from that selected by said commission and began the erection of a school building thereon before the commencement of this suit, and completed the same about the 1st day of December, 1895. And thereupon the court find the issues joined between the parties in favor of the defendant, and that the plaintiff is not entitled to the relief prayed for in the petition and amended petition, and it is ordered that said petition and, amended petition and that the defendant recover their costs of the plaintiff.”

The first question that arises concerns the power of the board of education to abandon the site selected by the commissioners appointed by the probate court and then proceed to select a new site, purchase the same and erect a schoolhouse thereon. An examination of the statutes discloses no such authority.

Counsel for defendant sug’gestthat the provision for- filing a petition with the probate judge applies only where it is sought to unite in a special school district territory lying indifferent townships or counties. And as the territory that comprises the school district involved here, all lay in one township those provisions did not apply. If that were so, it would not help the cause of the defendants. If, because the territory all lay in one township, the probate judge had no jurisdiction of the matter, the entire procedure was void, and there would be neither a school district, nor a board of education, created thereby, and therefore the action of the board of education would be a mere nullity imposing no obligation on any inhabitant or taxpayer within the territory, and the plaintiff’s right to relief against their imposition of a tax on his property would be clear. Section 3934, Revised Statutes, which, in certain cases, authorizes a petition to be filed with the probate judge for creating a special school district doubtless is primarily applicable where it is proposed to erect into a special district territory that is situated in different townships. Section 3948, Revised Statues, however, authorizes a petition to be filed with the probate judge in certain cases, where the object is to create a special district composed of territory all of which lies within the same township ; and when the petition is filed with the probate judge, “ thereafter such proceedings may be had therein, and they shall have the same effect as is herein provided for the formation of joint subdistricts.” Therefore, when the circumstances authorized the filing with the probate judge of a petition to create a subdistrict, these words of the statute expressly declare that whether the district to be created is a joint subdistrict, that is composed of territory situate in different townships or simply a special subdistrict composed of territory, all of which is located in the same township, the proceedings and the effect thereof shall be the same. The proceedings that the statute thus refers to are found in sections 3934 to 3945, inclusive, Revised Statutes.

Upon the filing of the petition praying for the creation of a special subdistrict, section 3938 makes it the duty of the probate judge to appoint £ £ three judicious, disinterested men of the county, ” etc., to act in the premises. Section 3939 requires them to take an oath binding them to a faithful dischargeof theirduties, and to meet at a timeand place to be named in a notice published for that purpose, and authorizes them to examine witnesses under oath. Section 3941 requires them to report in writing to the probate judge, 1st, “whether or not a joint subdistrict ought to be appointed and their reasons therefor. 2d. If they find in favor of the establishment of a joint sub-district, they shall give the lines and a plat thereof; they may also change the lines of the subdistrict proposed in the position (petition) by including therein other territory, or excluding territory included therein or both; and if there is no suitable schoolhouse within such boundaries, or, if there is one, but it is not suitably located, they shall designate a site whereon to erect such building, provided, that, if said commissioners shall have located, or shall hereafter locate a site upon a township or county line and embracing territory in different townships, then the school building shall be erected on said site but in that township having the largest number of children of school age who live in said joint subdistrict. ’ ’

Section 3941c», Revised Statutes makes it the duty of the proper board of education to purchase the site thus designated by the commissioners.

The statute thus provides for a disinterested and impartial commission, and enjoins upon it, among- other duties, that of designating a site upon which to erect a schoolhouse in case they find in favor of the creation of the special subdistriet. This is a matter of very little less importance to the inhabitants of the territory than the determination of the question of the creation of the district itself. This method of selecting a site for a schoolhouse by submitting its determination to a disinterested commission is likely to secure one that will best accommodate the school children within the special subdistrict, and we think was designed by the general assembly to conclusively determine the location of the schoolhouse therein.

The effect of the proviso in section 3941 that, where the site selected by the commission shall be upon a township or county line and embraces territory in different townships, the school building shall be erected on said site but in that township having the largest number of children of school age who live in said joint subdistrict, is simply intended to require the schoolhouse, in the case therein provided for, to be built in the township there designated, and should not be construed to limit the power of the commissions to select schoolhouse sites to that particular territorial condition. The selection of a schoolhouse site is just as important and difficult, whether or not it is located on a county or township line ; the power of the commission to act upon the matter is not limited to instances where the site selected is on such line, but is general. And whether the site selected by them is located on a township or county line or not, the duty of selecting one is enjoined upon them by the statute, they act under oath, and report their determination in writing to the probate judge of the proper county. The character or nature of this duty is such that it should be presumed that the legislature intended to make the determination of the commission in this respect final and conclusive. Thereafter in determining any question that may be submitted to them respecting the amount to be expended in erecting a schoolhouse, the inhabitants may rely upon the determination of the commissions as to the' site on which it shall be placed. The board of education, therefore, had no power to purchase another site or to erect a schoolhouse thereon.

2. The circuit court on the trial of the cause found that a schoolhouse site had been selected by the commission, but that the board of education had, before the commencement of this action, purchased another site and had begun the erection of a schoolhouse thereon, which was completed before the cause was tried in the circuit court.

It thus appears that without authority of law, regardless of the action pending to restrain them and in violation of the rights of the plaintiff and those he represents, the board of education proceeded to construct and finish the schoolhouse on the site selected by them. The rights of the plaintiff, and those he represents, in the premises should not be unnecessarily affected by this unlawful course of procedure pursued by the board of education and those acting with them.

We pass by any consideration of the rights that bona fide purchasers of the bonds may have, and proceed to a brief consideration of the relative rights of the parties to the action as they are set forth in the pleadings.

If the averments of the amended and supplemental petition are true it is manifest that not only did the purchasers of the schoolhouse bonds have notice of the pendency of this action, but that the greater part of the proceeds arising1 from the sale of the bonds was in the hands of Boughton, Ford & Co., at the time they were made parties to the action. It is also clear, that in so far as the rights of the parties to the action are concerned, the board of education can be enjoined’ from levying or collecting- taxes for these bonds, leaving the holders of the bond if they have passed] into the hands of tona fide holders for value without notice to assert in a separate action such right as the rules of law accord in such cases.

The plaintiff is entitled to whatever relief a court of equity, with its comprehensive powers in that respect, can afford him, and to which the facts to be ascertained upon a trial of the action may entitle him.

Judgment reversed.


author: Spear, C. J.

text:
    The P., C., C. & St.L. Ry. Co. v. Volkert et al.

      Contract for legal services — Promise to perform further services for assignment of one-half of judgment — Contract not champertous —Rights of such assignee.

    1. Legal services rendered by an attorney in the prosecution of a suit to judgment in tbe court of common pleas, and a promise to perform further services if error proceedings should be instituted in the circuit or supreme court, constitute a valid consideration for an assignment of one-half of such judgment, and the contract is not champertous.
    2. Such assignment will convey to the assignee a property right in the judgment. This right is not enforceable in a suit at law at the instance of the assignee against the judgment debtor only, but may be enforced in equity.
    3. It is not in the power of the judgment debtor, after knowledge of such assignment, to compromise the debt with the assignor alone, and thus defeat the claim of the assignee to recover one-half of the proceeds of the judgment.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Hamilton county.
    The action in which the judgment was rendered which it is now sought to reverse, was commenced in the court of common pleas by the filing of a petition by one Elizabeth Furst against Herman Muller, Phillip Volkert and Frederick Quatkemeyer, to recover a judgment against Muller and to reach certain choses in action claimed to be in the possession of Volkert and Quatkemeyer which they had received from Muller, and held in trust for the plaintiff.
    Quatkemeyer answered denying any right of the plaintiff as against him, and disclosing that the real controversy was as to the right of the parties to the proceeds of a judgment recovered by him October 4, 1893, in the superior court of Cincinnati, against The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, for personal injuries.
    Volkert answered, denying the allegations of plaintiff’s petition; setting up a debt upon an account stated against Muller for $4,019; averring that Muller, upon the consideration of legal services rendered and to be rendered to Quatkemeyer in and about his litigation with the Railway Company, received from him December 16, 1893, an assignment of one-half of the judgment against the company, and that on the same day, in consideration of his debt to Volkert, and in part payment thereof, Muller assigned all his interest in the judgment and in the assignment thereof to him from Quatkemeyer, to this defendant, of which assignments the defendant company had full knowledge, and to which it consented. He prayed the court to decree to him the amount to which he is entitled, and due from the company on the judgment, and for other relief.
    The Company being made party defendant, answered, admitting the recovery of the judgment as alleged, and averring that if any assignments of any part thereof had been made to any of the parties they were not made with knowledge or consent of the Company and were void as to it, and further averring that the judgment had been fully satisfied, and praying that the assignments, if any are found to exist, be declared void and be cancelled, and for all proper and necessary relief.
    Volkert replied to the cross-petition of the Company, denying- the new matter therein.
    The trial resulted in a decree and judgment in favor of Volkert and against the Company, from which the company appealed to the circuit court, where a like decree and judgment was rendered, which is the judgment now sought to be reversed.

      Ramsey, Maxwell de Ramsey, for plaintiff in error.
    The general proposition that the assignment of a part of a debt is void unless assented to by the debtor was laid down as early as the case of Mandeville v. Welch, 5 Wheat., 277.
    This ruléis now too well established to be considered fairly debatable. Tiernan et cd. v. Jackson, 5 Pet., 580; Gibson v. Cooke, 20 Pick., 15; Upjohn v. Etoing et al., 2 Ohio St., 14; Stanbevry v. Smythe, 13 Ohio St., 495.
    The principle is applicable to the partial assignment of judgments. Love v. Fairfield, 13 Mo., 300.

      Such, assignments are not enforcible either in law or in equity. Loomis v. Bobinson, 76 Mo., 488.
    This was a proceeding in equity like the case at bar.
    The case of Beece v. Kyle, 49 Ohio St., 475, is relied upon by the other side as holding that such an agreement between attorney and client does not contravene the policy of the law of this state. It would probably be conceded that under the earlier decisions of this court the agreement would be void. Key v. Yattier, 1 Ohio, 132; Weakly v. Kail, 13 Ohio, 168; Lewis v. .Lewis, 15 Ohio, 715; Stewart v. Welch, 41 Ohio St., 483; Penn. Go. v. Lombardo, 49 Ohio St., 1.

      J. Shroder and Goebel & Bettinger, for defendants in error.
    It is argued that the contract between Muller and Quatkemeyer is void because ehampertous. Quatkemeyer does not set up this defense. This point is only advanced by the railway company, having, very likely, been suggested by remarks of the court in Love v. Fairfield, 13 Missouri, 300. In the light of the decision of Beece v. Kyle, 49 Ohio St., 475, one can not imagine on what ground this proposition can rest in this case, where the attorney was to.make no outlays for either costs or other expenses towards the maintenance of the action, nor to control its course other than as an attorney. Harvard Law Review, Volume XI, page 192.
    The plaintiff in error further contends that the partial assignment of the judgment is invalid and void. At law, the fractional assignment would not be recognized. • In equity, the court does not encounter any difficulty in enforcing such an assignment. The objection, based upon the policy of shielding the debtor against the vexatious multiplicity of lawsuits that might be brought by each partial assignee, does not arise in equity where the court is able in one suit to determine the rights of all interested parties. Another ground for the rule at law is suggested in Pollock’s First Principles of Jurisprudence (page 196), where the rule is traced to Roman law.
    In equity, partial assignments are recognized and enforced.
    In support of the judgment below, enforcing the partial assignment of Volkert’s, we present the following: Stanberry v. Smythe, 13 Ohio St., 501; Superintendent and Trustees of Public Schools v. Ileath, 22 N. J. Eq., 22; Exchange Bankv. McLoon, 73 Maine, 505; Whittemore v. J. L. <& S. 0. Go., 124 N. Y., 577; Garrett v. Harshue, 53 Ohio St., 482; Phelps v. Edsall, 127 111., 535; Pomeroy v. Manhattan Life Ins. Co., 40 111., 398; Grain v. Aldrich, 38 Cal., 514; Fourth National Bank v. Yardley, 165 U. S., 635; Peughy. Porter, 112U. S., 737; The Elmbank, 72 Fed., 610; Gamble v. Carlisle, 3 Ohio N. P., 279; 6 Dec., 48.
    In further support of our contention we cite: III Pomeroy’s Equity Jurisp., section 1280; O'1 Dougherty v. Remington Paper Co., 81 N. Y., 496, Fieldy. The Mayor of N. Y., 6 N. Y., 179; Donnat v. Comptroller)-of N. Y., 77 N. Y., 45; Scotty. Searles, 7 S. & M., 498; McDaniel v. Maxwell, 21 Oregon, 202; Shilling v. Mullen, 55 Minn., 122.
   Spear, C. J.

The controversy in this court is wholly between the Railway Company and Volkert. No other parties contested, the case in the circuit court, and the Railway Company alone brings the case to this court. The essential facts are these: Muller agreed with Quatkemeyer to act as his attorney in his case against the Railway Company for one-half of any judgment which might be obtained. Before any legal interest had vested in him, Muller assigned his fees in the case to Volkert. The judgment of Quatkemeyer against the Railway Company was for $3,500, and was rendered October 4, 1893. On December 16, 1893, Quatkemeyer made an assignment in writing to Muller of a half interest in the judgment, and on the same day and upon the same piece of paper, Muller made an assignment of the interest thus acquired to Volkert. The assignments respectively are as follows:

“Cincinnati, O., Dec. 16, 1893.

“In consideration of services performed by Herman Muller, as an attorney at law in behalf of Frederick Quatkemeyer against the P., C., C. & St. L. Ry. Co., in a suit pending in the superior court of Cincinnati, and in consideration of services still to be performed by him until the final determination of said cause in the circuit court or supreme court, which services said Muller agrees to perform as part of the consideration hereof, I hereby assign, transfer and set over to him one-half of the judgment recovered against said Railway Company in said superior court, case No. —.

F. Quatkemeyer.”

Attest: Albert Bettinger.

“For value received I hereoy assign, transfer and set over to Phillip Volkert all my right, title and interest in and to the above assignment of one-half of judgmentin case of Quatkemeyer v. P, C., C. d¿ /St. L. By. Oo. Herman Muller.”

Attest: Albert Bettinger.

The assignment from Muller to Volkert was with Quatkemeyer’s knowledge and full consent. The legal services named in the assignment to be performed by Muller, in the prosecution of the claim against the Railway Company, were performed in part by Muller, and in part by other attorneys, but to the entire satisfaction of Quatkemeyer.

On January 5, 1894, both assignments were entered on the appearance docket in the case of Quatkemeyer against the Railway Company, and were deposited with the clerk of the court. On August 1, 1894, the Railway Company received actual knowledge of these assignments.

The Railway Company prosecuted error to the circuit court and there, on August 4,1894, the judgment of the court of common pleas was affirmed.

The Railway Company then prosecutederror from the judgment of the circuit court to this court and on January 29, 1895, the judgment of the circuit court was affirmed. On the same day, a written agreement was made and signed by the parties, Quatkemeyer and the Railway Company, by which the Company and Quatkemeyer undertook to compromise the case; to settle it in all of its aspects for one thousand dollars in case the judgment of the circuit court should be reversed, and to settle it for two thousand dollars, so far as the parties to this agreement could accomplish that end, if the judgment should be affirmed. This agreement • was made without the knowledge of Volkert, although with full knowledge on the part of the Railway Company, as well as of Quatkemeyer, of the existing rights of Volkert, whatever they might be.

The plaintiff in error rests its contention on three propositions:

1. The Quatkemeyer judgment was a unit, and could not be assigned in part without the judgment debtor’s consent.

2. His agreement with his attorney was champertous, and therefore void.

3. He could not, by any act of his, impair the judgment debtor’s right to compromise; and persons claiming through him by assignment are bound by the settlement which he has made.

I. It is conceded that an assignment of a part of a debt cannot be enforced at law unless assented to by the debtor. This principle is held in Mandeville v. Welch, 5 Wheat., 277, opinion by Mr. Justice Story. The reason is that it might subject the debtor to a multiplicity of suits at the instance of each assignee of separate portions of the debt; and as the original creditor would be no party to those suits, and might thereafter, upon an action for the whole debt, deny the assignments, it would be impossible in a court of law, to protect the rights of all the parties. The principle is universally recognized, and has been applied in many adjudicated cases.

But the question here is not whether such an assignment can be recognized and enforced at law, but whether it can be made the basis of a proceeding- in equity. The supreme court of Missouri in Love v. Fairfield, 13 Mo., 300, held, apparently upon the authority of Mandeville v. Welch, that such assignments are not enforceable either at law or in equity, and the rule seems to have been followed by that court in Burnett v. Crandall, 63 Mo., 410, in Beardslee v. Morgner, 73 Mo., 22, and in Loomis v. Robinson, 76 Mo., 488. Our research has not discovered any other case in which the rule first cited is held to apply in a proceeding in equity. The case below was a proceeding in equity. It was brought to subject the proceeds of a judgment against the Railway Company, upon which admittedly there was a large sum due, to the claims of the respective parties, and was treated from the inception to the conclusion of the case, not only by the claimants, as a proceeding of that character, but by the Railway Company itself, as shown by the fact of its appeal of the case from the court of common pleas to the circuit court. The objection that the debtor would be inconvenienced by partial assignments, while apparent if he could be pursued by each assignee separately upon his portion of the claim, is entirely wanting when the parties may all be brought before the court in one proceeding and their rights all settled by one decree. The principle suggested will be found present in many of our different kinds of legal proceedings, as for instance the process of attachment and garnishment, and it could hardly be said that the policy of the law which would permit a debtor to be subjected to the inconvenience of garnishee process would not with equal propriety authorize an assignment of that which might be reached by attachment. Again, the same principle applies in a stronger sense to the remedy given to laborers and material men under our mechanic’s lien laws. There the amount due from the owner to the principal contractor may be reached by the subcontractors who have contributed to the common purpose, to-wit: the erection of the structure, by either their labor or their material. Other instances might easily by cited, but it cannot be necessary. The rule announced by Mr. Justice Story in Mandeville v. Welch, was given in a suit at law; lie did not intend to be understood that it would apply to a suit in equity, and this is apparent from his remarks in II. Story’s Equity Jurisprudence, section 1044, to the purport following:

“But,” (speaking of the effect of an assignment) ‘ ‘in cases of this sort the transaction will have a very different operation in equity. Thus for instance if A, having a debt due to him from B, should order it to be paid to C, the order would amount in equity to an assignment of the debt and would be enforced in equity although the debtor had not assented thereto. The same principle would apply to the case of an assignment of part of a debt. In each case a trust would be created in favor of the equitable assignee on the fund, and would constitute an equitable lien upon it.”

By other of the authorities such transfer is said to create an interest in the fund in the nature of an equitable property; by others it is denominated an equitable assignment. But, whatever term is applied to it by way of description, the result reached is to give to the assignee a property right in the thing assigned, a right which is cognizable by and enforceable in a court of equity.

Authorities in support of the proposition here advanced are so abundant that one is at a loss which to select. The following will be found, as we think, conclusive upon the subject: Supt., etc. v. Heath, 15 N. J. E., 22; Field v. The Mayor, 6 N. Y., 179; The People v. Comptroller, 77 N. Y., 45; Whittemore, Admr., v. Oil Co., 124 N. Y., 565; Grain v. Aldrich, 38 Cal., 514; Bank v. Kimberlands, 16 W. Va., 555; Phillips v. Edsall, 127 Ill., 535; Bank v. Yardley, 165 U. S., 634; Price v. The Elmbank, 72 Fed. Rep., 610; Exchange Bank v. McLoon, 73 Me., 498; 2 Freeman on Judgments, section 426. See also, Stanbery v. Smythe, 13 Ohio St., 501; Gamble v. Carlisle, 3 N. P., 279, opinion by Smith, J., and. authorities there cited.

II. It is stated by text writers, and the proposition is accepted by a number of decisions, that there are three elements to constitute the offense of champerty: “1st. And this is common to all forms of maintenance, the absence of any other interest in the case on the part of the champertor than that arising from his champertous contract. 2d. The assumption by the champertor of all expenses in conducting the case. 3d. A previous agreement for his remuneration from the proceeds of the suit.” It is believed that the above is as severe as any of the tests given in the books. The proposition is stated in a recent ease (Ry. Co. v. Brady, 39 Neb., 27) in these words: “In order to constitute champerty the contract between the attorney and his client must not only provide that the attorney shall have a part of the money or thing received in the action, but it must also provide that the attorney shall, at his own expense, support the suit, be responsible for the costs, and take all the risks of the litigation.” If this rule were applied, it would not destroy the contract between Muller and Quatkemeyer, for Muller made no agreement with respect to any of the expenses of the suit. It is believed that this contract is not condemned by any of the cases in Ohio bearing upon the subject, and certainly it is not objectionable if tested either by the syllabus or by the reasoning of the opinion in the reaent case of Reece v. Kyle, 49 Ohio State, 475. The services had been rendered at the time of the assignment to the extent of the recovery of the judgment against the Company. That judgment was a lien upon the Company’s property. Any further effort by the Company to avoid liability would be in the nature of a new action wherein the Company would be the plaintiff and Quatkemeyer the defendant. The judgment, therefore, was an ascertained debt then due from the Company to Quatkemeyer. Quatkemeyer owed Muller and by his arrangement with him .was equitably bound to recompense him from the proceeds of the judgment. That is all that he undertook to do by the assignment. Quatkemeyer, it must be borne in mind, is not here contesting the fairness of his agreement with Muller, nor is anybody pretending that the contract between Muller and Quatkemeyer was one which was inequitable in itself. It is more than probable that compensation to the attorney in the case could not be made except from the proceeds of the judgment, and there is no rule of law or of common fairness between man and man, which makes it improper for an attorney to be paid for his labor and skill in prosecuting to final judgment a claim against a railway company for personal injuries to a party, from the amount recovered. Nor can we assume, without proof, that the amount stipulated for was not fairly earned in the ease. It is common knowledge that suits of this character involve elements of marked uncertainty, often beyond the ordinary; that usually they are defended by lawyers of exceptional ability; and that it is usual, and hence to be expected, that the company will do, as it did in this ease, carry the controversy to the last tribunal which may have cognizance of it. The attorney, like any other laborer, is worthy of his hire. Of course we are speaking of meritorious and useful legal services by lawyers, and not of pretended or fictitious services by shysters. We do not think the contract was champertous. Whether, if it were, the Railway Company could take advantage of it, we need not inquire.

III. The debtor’s right to compromise. The right of the debtor to compromise with his creditor is not disputed, but it is not a right of so high character as to override every other right which courts respect. The books are full of cases holding that where a debt has been assigned, and a debtor has knowledge of the assignment, any attempt to settle the case with the assignor and ignore the claims of the assignee, will be held to be futile so far as the rights of the latter are concerned. Harris County v. Campbell, 2 Am. St. Rep., 472, and note; Field v. The Mayor, supra; Brill v. Tuttle, 81 N. Y., 454; McDaniel v. Maxwell, 21 Ore., 202; Schilling v. Mullen, 55 Minn., 122; 3 Pom. Eq., section 1280; Hughes v. Trahern, 64 Ill., 48; Ullman v. Kline, 87 Ill., 268; Stoddard, Treas., v. Benton, 6 Col., 508. This necessarily follows if it be once determined that the assignment, and the contract which supports it, are valid. We have found that the contract between Quatkemeyer and Muller is valid, and that, in equity, such an assignment, although of but a portion of the claim, will be maintained. It thus appears that the right of a debtor to compromise, means only that his right to compromise will be preserved as respects his dealing with the real parties in interest of whose claims he has knowledge; and if this be so, the release by one of the parties in interest cannot affect the portion of the debt belonging to another. As held in Upjohn v. Ewing, 2 Ohio St., 13: “One or more of several joint creditors between whom no partnership exists, cannot release the common debtor, so as to conclude their co-creditors who do not assent to such release.”

It is urged that a denial of the right of the Company to compromise the judgment with Quatkemeyer alone would be inconsistent with the principle announced in Weakly for the use of Bell v. Hall, 13 Ohio, 168, and especially with the spirit of the opinion in that case and in Key v. Vattier, 1 Ohio Rep., 132. It is to be borne in mind, however, that those cases were decided at a time when the trend of judicial opinion and utterance on the general subject was essentially different from the current of belief and opinion in later times. Also, that in each of those cases the court was dealing with a contract which they had found to be void on the ground of champerty, the one because the contract engaged the assignee of the chose in action (Bell) to employ counsel, to prosecute the action in the name of Weakly for his use, to advance money, procure the necessary bail for the prosecution of the suit, reimburse himself from the proceeds, and receive a portion of the avails for his compensation, thus giving to Bell entire control of the case, although Weakly continued to have an interest in the subject matter; and the other because the contract in terms prevented the party from compromising and settling the matters in controversy without the concurrence of the attorney. We have already found that the contract in the present ease is not open to either of these objections, and that the thing in part assigned was a final judgment.

The declaration of the opinion in Weakly v. Hall, is: ‘ ‘That the law of Ohio will tolerate no lien in or out of the profession, as a general rule, which will prevent litigants from compromising, or settling their controversies, or which, in its tendencies encourages, promotes, or extends litigation.” But the point really decided was that there could be no recovery against Hall, in the interest of Bell (the assignee of the chose in action) in any forum, because of the champertous character of the contract upon which Bell, in the name of Weakly, was undertaking to obtain judgment, and that Weakly, notwithstanding the contract with Bell, had power to release the debt, and the release was therefore effectual. The language quoted is but a dictum at best, is announced only as a general rule, and should not be taken literally, but should be restrained in its application to the precise matter in hand. It is, in legal effect, saying that the law will tolerate no lien growing out of such a contract. It illustrates the temper of the judge, but is not a binding declaration of law farther than is indicated above.

A hasty reading of one of the head-notes (by the reporter) might seem to suggest a holding that a release by one of several tenants in common of a chose in action, will in law, discharge the cause of action. But this is probably not the meaning of the paragraph, and it certainly was not intended by the court. The opinion is to the effect that there not being an absolute transfer of the entire interest in the chose in action to Bell, Weakly and Bell were, as between themselves, tenants in common, each having a distinct interest. There was, therefore, something which Hall’s release could operate upon and discharge, and Bell could no longer pursue Hall at law, in Weakly’s name for Weakly’s rights were discharged by the release. He could not sue at law in his own name, because the chose in action is not negotiable, and his remedy, if any, must be in equity. A clear recognition of the proposition that had Bell’s right been acquired by a contract not open to the taint of champerty or other weakness, he could have enforced his claim on the equity side of the court.

The duty of the court to protect the interest of an assignee of a chose in action is elsewhere in the opinion recognized in these words: “It is by no means our intention to shake the well-established principle that a court of law will protect the interest of the tona fide assignee of a chose in action, after notice to the debtor of the assignment. The rule is convenient, and necessary in the administration of justice, to secure parties against fraud and circumvention.” How could parties be secured against “circumvention” if the rule were established that, although a judgment-debtor have full knowledge of an assignment of part of a judgment to a third person, yet he may, without the knowledge and behind the back of that assignee, negotiate an alleged compromise with the original creditor which will discharge the entire debt? It is confidently submitted that neither by any process of right reasoning, nor upon any respectable authority, can such a proposition be maintained.

It results in this case that the Railway Company, while it had a full right to compromise, was simply required to deal with all parties in interest, including those holding a valid property interest in the judgment and entitled to a portion of the proceeds. It is- not, therefore, any hardship upon the Company to say that it shalL not have, as against Volkert, the advantage of a contract surreptitiously entered into with Quatkemeyer, having the effect to prevent the attorneys who had been instrumental in recovering the judgment from receiving the benefit of their assignment. The Company simply failed, to deal with the right parties. The effect of their ag’reement was to compromise one-half of the judgment, leaving the interest of Volkert intact.

Judgment affirmed.