author: Follett, J.

text:
      In re Estate of Jarrett.
    Where a party to an action dies after trial and submission to the court, but before a decision is announced, tire court has jurisdiction, and, in • furtherance of justice, may enter judgment nunc pro tuna as of the day of submission.
    Motion for leave to file a petition in error to the District Court of Belmont county.
    Jolm McKisson was tlie executor of the estate of Isaac Jarrett. His first settlement of account was passed upon by tlie probate judge July 26, 1867; and bis second settlement account was passed upon February 1, 1878.
    On July 29, 1879, tlie lieirs-at-law of Isaac Jarrett filed a motion in the probate court to open up, examine and correct both of the settlement accounts, for the reason that, in both the executor had fraudulently omitted to charge himself with the proceeds of 6721 pounds of tobacco -purchased from the testator, in his lifetime, b}7 one Charles R. Wilson at the price of $11.25 per hundred pounds, and paid for by Wilson to the executor about April 1, 1866.
    Testimony showed that Wilson had paid about $200, on the claim to the testator in his lifetime.
    Oh September 11, 1879, the executor made a motion to quash the proceedings, which motion the probate court overruled ; and on November 10,1879, the court, after hearing testimony and arguments of counsel, corrected the errors in the accounts and held the executor to account for $539.10, the price of the tobacco not accounted for by him in the former accounts, and the court rendered judgment against the executor individually for the costs of the proceeding. Appeal was taken to the court of common pleas.
    After full hearing in the court of common pleas the matter was submitted to the court April 13,1881, and while said executor, John McKisson, was in full life. The court reserved the matter for determination, and before final decision, and while the court so held the same under advisement, the executor, McKisson, died; and on Arpil 20, 1881, during the same term of court, when the court came to decide the case, it was announced in open court that John McKisson was dead, and upon that suggestion the court deferred entering judgment. At the next term of court, the court upon its finding rendered judgment, as of the day of submission, nunc pro tunc, against the executor, correcting the error in the accounts and charging the executor personally with the costs of proceeding. There were proceedings in error in the district court of Belmont county, where the judgment was affirmed. Now the administrator of John McKisson asks leave to file a petition in error in this court to reverse the judgments below.

      L. Danford and O. W. Gonnell, for McKisson.

      J. W. Shannon, for Jarrett’s estate.
   Follett, J.

The only question presented is, whether or not the court of common pleas erred in entering judgment after the death of John McKisson, nunc pro tuno, as of the day when the cause was submitted and he was alive.

It is well established, that to prevent injustice and to promote justice, judgments may be entered nunc pro tunc. This power has been exercised by courts from the earliest times. Mayor of Norwich v. Berry, 4 Burr. 2277; Tooker v. Duke of Beaufort, 1 Burr. 146; Freeman on Judgments, § 56, and cases cited.

In Dial v. Hotter, 6 Ohio St. 228, this court said: “ Where a defendant in an action for libel and slander, after the finding of a verdict against him in the court of common pleas, files, during the same term, and in compliance with the rules of the court, motions for a new trial and in arrest of judgment, and afterward dies, and the motions are continued to another term for hearing, the court may, if such motions be overruled, enter a judgment nuno pro tunc upon the verdict, as of the term in which it was found.”

In this case the parties had done all they could, the case was fully heard and submitted to the court and should abide _ the decision of the court.

In Perry v. Wilson, 7 Mass. 393-395, the court say : “ Where an action is delayed for the convenience of the court, they will take care that no party suffers by such delay.” Therefore, where, after a continuance by order of the court for advisement, the defendant in the action died, judgment was entered as of a former term.

This position is supported by numerous decisions. Bank U. S. v. Weiseger, 2 Pet. 481; Clay v. Smith, 3 Pet. 411; Griswold v. Hill, 1 Paine 484; Gray v. Prignardello, 1 Wall. 636; Campbell v. Mesier, 4 Johns. Ch. 342; Freeman on Judg. § 57.

In Turner v. London and South Western Ry. Co., 17 Law Rep. Eq. Cas. 561, 565, Sir Charles Hall, V. C., examines Collins v. Lister, 20 Beav. 355, and Troup v. Troup, 16 W. R. 573, and states the law to be, that, “ Where a plaintiff dies after hearing but before judgment, the court has jurisdiction to date the judgment as of the date of the hearing.” And in Chitty’s Archbold’s Practice, Queen’s Bench (12 Ed. p. 1572), the rule at law is stated thus: “ The court will in general permit a judgment to be entered nune pro tuno, where the signing of it has been delayed by the act of the court. Therefore, if a party die after a special verdict, or after a special case has been stated for the opinion of the court, or after a motion in arrest of judgment, or for a new trial, or after a demurrer set down for argument, and pending the time taken for judgment, or whilst, the court are considering their judgment, the court will allow judgment to be entered up after the death nuno pro tunc, in order that a party may not be prejudiced by a delay arising from the act of the court.”

We think the action of the courts below is sustained by reason, and the great weight of authority, and the motion is overruled and the judgment is affirmed.

Judgment accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    McQuillen v. Hatton.
    The facts being ascertained, the question whether or not a ditch will conduce to the public health, convenience or welfare, within the meaning of Revised Statutes § 4511, so that it will be of public use, is a question of law ; and the mere fact that larger and better crops may be raised on two farms sought to be drained, does not authorize the establishment of the ditch.
    EititoB to the District Court of Brown county.
    Proceedings were bad under section 4511 of the Revised Statutes, which provides that, “The trustees of any township may, whenever in their opinion the same will be conducive to the public health, convenience or welfare, cause to be established, located, and constructed, as hereinafter provided, any ditch, within such township.”
    The original action was by M. Hatton and Isabella Hatton against A. McQuillen before the trustees of Perry township, Brown county. M. Hatton and Isabella Hatton are husband and wife, and were the only petitioners for the proposed ditch. Isabella and McQuillen are the owners of the land adjoining the line of the proposed ditch. Since the commencement of these proceedings A. McQuillen has deceased, and his executrix was made a party.
    The proceedings were regular, and the trustees located and established the ditch partly on the lands of Isabella Hatton and partly on the lands of McQuillen. McQuillen appealed to the probate court, and a jury tidal was had there, under the provisions of Revised Statutes, section 4533 and following, and the jury found in favor of the establishment of the ditch. McQuillen moved for a new trial, which motion was overruled, and entry made establishing the ditch.
    On the trial, some of the witnesses on behalf of Hatton testified that, in their opinion, the proposed ditch would be conducive to public health, convenience and welfare ; and on cross-examination they assigned as a reason for such opinions, that the proposed drain would enable Hatton and McQuillen to raise larger crops and that these larger crops would be a public benefit, and in this way only would the proposed ditch be conducive to public health, convenience and welfare.
    Thereupon McQuillen asked the court to charge the jury some thirteen propositions, which the court refused to give and to Which refusal McQuillen excepted, and took a bill of exceptions. The last part of the ninth proposition is as follows, to wit: “ The mere fact that the ditch in question might enable Mr. Hatton or Mr. McQuillen to raise more corn or other grain does not authorize you to return a verdict in favor of the establishment of the ditch.”
    And the tenth is, — “ The fact that the ditch in question might enable the petitioner to raise larger crops is a fact going to show that they would be privately benefited, but it requires more than this to authorize you to find a verdict showing that it would be conducive to public health, convenience or welfare to locate the ditch.
    “ If you find that the petitioners, M. Hatton and Isabella Hatton and the appellant A. McQuillen are the only persons in any way interested in the location of the ditch, and that it would not be conducive to public health convenience or welfare to locate the ditch in question, then, and in that case, you should return your verdict against the proposed ditch.” The latter part qf the tenth was given, the rest was refused. The proceedings were taken on error to the court of common pleas, where the judgment of the probate court was affirmed; and the district court affirmed the judgment of the court of common pleas. McQuillen is now here seeking to reverse the judgment of the district court.

      W. W. McKnight, for plaintiff in error

      Thompson c& Fite, for defendant in error.
   Follett, J.

The charge as given and the refusal to charge as requested, in effect, told the jury, that the mere fact that the ditch would enable Hatton and McQuillen to raise larger crops, would authorize a verdict in favor of establishing the ditch.

Article I, section 19 of the constitution provides that, ‘private property shall ever be held inviolate, but subservient to the public welfarethus placing beyond question, that private property cannot bo taken for amere private use. McArthur v. Kelley, 5 Ohio, 139; Shaver v. Starrett, 4 Ohio St. 498; Reeves v. Treasurer Wood Co., 8 Ohio St. 345.

Two petitioners are sufficient, and one petitioner is all the law requires; and the land through which the ditch is to pass need not be owned by more than two persons, and if owned by one person only the ditch may be made. Reeves v. Treasurer Wood Co., 8 Ohio St. 333; Kent v. Perkins, 36 Ohio St. 639. Whether or not the use.for which property is proposed to be taken is a public use, is a question of law, to be settled by the judicial power. Costar v. Tide Water Co., 18 N. J. Eq. 55; Tyler v. Beacher, 44 Vt. 648; Parham v. Justices, 9 Geo. 341; Anderson v. Turbeville, 6 Coldw. 150; Channel Co. v. Railroad, 51 Cal. 269. The use-must be for the public, at large. Memphis Freight Co. v. Mayor, 4 Coldw. 419. The use that will justify the taking of private property by the power of eminent domain, is the use by or for the government, the general public or some portion of it; and not the use by or for particular individuals, or for the benefit of certain estates. The use may be limited to the inhabitants of a small locality, but the benefit must bo in common and not to a very few persons or estates. Costar v. Tide Water Co., supra; Talbot v. Hudson, 16 Gray, 417, 424; Gilmer v. Lime Point, 18 Cal. 229.

The prosperity of each individual conduces, in a certain sense, to the public welfare, but this fact is not a sufficient reason for taking other private property to increase the prosperity of individual men.

The draining of marshes and ponds may be for the promotion of the public health and so become a public object; but the draining of farms to render them more productive, is not such an object. Anderson v. Kerns Draining Co., 14 Ind. 199.

The other errors complained of refer to the question whether or not the proposed ditch would be a public benefit or only a private benefit.

"We tbinlc the mere fact that the proposed ditch would enable the parties to raise more corn and larger crops, did not authorize a verdict in favor of establishing the ditch; and that the probate court erred in refusing to charge the jury all the ninth and tenth propositions requested by McQuillen.

The motion to file petition is granted, and, all the judges concurring, the judgments are reversed, and the cause is remanded to the probate court for further proceedings.


author: Owen, J.

text:
    Fribly v. The State.
    In prosecutions under section 6901 of the Revised Statutes, for compounding or abandoning, or agreeing to compound or abandon criminal prosecutions, threatened or commenced, it is not necessary to aver in the indictment, or prove on the trial, that a crime had been actually committed by the person so prosecuted.
    MotioN for leave to file petition in error to the District Court of Trumbull county.

      Thayer c& Gilson, for the motion.

      James Lawrence, attorney general, and Washington Hyde prosecuting attorney, contra. .
   Owen, J.

The plaintiffs in error were tried and convicted in the court below upon an indictment presented against them under section 6901 of the Revised Statutes, which provides that: Whoever either directly or indirectly demands or receives any money, or other thing of value, for compounding or abandoning, or agreeing to abandon any prosecution threatened or commenced for any crime or misdemeanor, shall be fined, etc.”

The indictment shows that a prosecution for an alleged crime had been commenced, and that while it was pending, the defendants below received from the accused a note and a sum of money in consideration of the compounding and agreement to abandon such criminal prosecution.

The plaintiffs in error maintain that the conviction was unwarranted for that the indictment against them failed to aver that a crime had been in fact committed by the person against whom the prosecution had been commenced.

Was it incumbent on the state to aver and prove the actual commission’of a crime by the party prosecuted?

If it was, it would have been equally essential to a successful prosecution of the indictment that such crime be proved beyond a reasonable doubt. Adam v. State, 31 Ohio St. 462.

This would impose upon the state a double burden, making conviction difficult if not impossible, and -in most cases require the injured parties, and those most likely to be interested in prosecuting offenses against section 6901, to establish their own guilt of the crime charged in the prosecution compounded.

The plain purpose of the statute is not only to prevent the suppression of prosecutions for actual crimes by private barter, but to prevent or punish the prostitution of the criminal processes of the law to purposes of private gain by groundless prosecutions. It is necessary to aver and prove that the prosecution was for what appeared by the charge to be a crime, but it is not necessary that the actual commission of such crime be either averred or proved. The indictment is sufficient.

The other assignments of error are not well taken.

Motion overruled.

JOHNSON, C. J., was not present when this case was considered.


author: Okey, J.

text:
    Johnson v. The State.
    1. The court of common pleas being a tribunal of superior jurisdiction, its records import absolute .verity, and where a criminal cause is continued without disclosing the ground, the: court will presume the continuance was upon sufficient ground, in the absence of anything in the record to the contrary, notwithstanding the provisions of Rev. Stats. §§ 7309, 7311, and the fact' that the cause had already been continued three times on motion of the state.

      2. Where the defendant is in jail under indictment, and the cause is continued under Rev. Stats. § 7309, on motion of the state, at the second term after such imprisonment, because of the absence of material witnesses, and the cause cannot be tried at the succeeding term for want of time, the court is not deprived of power to continue the cause again, notwithstanding the defendant asks to be discharged under that section and section 7311, the amendment to the latter section, as originally enacted in 1869, simply denying power to grant to the state two continuances by reason of the absence of witnesses.
    MotioN for leave to file a petition in error to reverse the judgment of the Court of Common Pleas of Hamilton county.

      J. JP. Murphy, for the motion.

      J. Lawrence, attorney-general, and W. IL. Pugh, prosecuting attorney, contra.
   Okey, J.

Harry Johnson having, in March, 1884, at the January term of that year, been convicted in the court of common pleas of Hamilton county, of grand larceny,' was at the same term (April 4, 1884) sentenced to imprisonment in the penitentiary. He now asks leave to file in this court a petition in error to reverse the judgment, not for the reason that he is or claims to be innocent of the crime, or because he was deprived of a fair trial, but solely upon the ground that, under the provisions of the statute, he was entitled to, but denied a discharge at that or a previous term, for the reason that the cause had not been brought to trial within the time specified in those provisions.

The terms of the court of common pleas of that county commenced in 1882, 1883 and 1884, on the first Monday of January, the second Monday of May, and the first Monday of November, and each term lasts, substantially, until a new term begins. This indictment was found October 1G, 1882, which was during the May term, the defendant then being in jail, and the cause was continued generally at that term and at November term, 1882. At the January term, 1883, the defendant moved that he be discharged because he had not been brought to trial as required by the statute, but the cause was continued until the next term, “ the court being satisfied that there is material evidence for the state which could not be had at this time, that reasonable exertion had been made to procure the same, and that there is just ground to believe that such evidence can be had at the next term.” This was expressly authorized by Rev. Stats. § 7311. On the last day of May term, 1883 (November 3, 1883), the court ordered that “ this cause is now continued to the next term for want of time to try the same at this term»” As to the power, thus to continue the cause and to take the steps which followed, I will speak hereafter. On the first day of November term, 1883 (November 5, 1883), before the criminal calendar had been made up, the defendant moved for his discharge. That motion was overruled on the last day of the term (January 5, 1884), and after exception by the defendant, the cause was continued. At the January term, 1884, the defendant asked to be discharged, and excepted to the order of the court placing him on trial, but, as already stated, he was tried, convicted and sentenced to the penitentiary.

In former times, persons were, in many instances, confined in prison for years, under various pretexts, without being brought to trial. Nothing could be more subversive of liberty. To prevent such abuse in this country, it is ordained in our constitutions, federal and state, that the accused shall be entitled to a speedy public trial, and statutory provisions have been enacted (Rev. Stats. §§ 7309, 7310, 7311) in aid of that clause of our state constitution. JBut it was not the purpose of the constitution or the statute to screen guilty men from punishment, or to require of courts or officers things physically impossible. Of course, when it appears that the statute bas been disregarded, the accused is entitled to a discharge. But it must be remembered that tbe discharge is equivalent to a verdict of acquittal with judgment thereon (Exp. McGehan, 22 Ohio St. 442; Erwin v. State, 29 Ohio St. 186). Again, the court of common pleas is a tribunal of superior jurisdiction, its record importing absolute verity, and the orders made in a cause pending in that court are, in the absence of anything appearing to the contrary, presumed to have been rightly and properly made. And, besides, an error in refusing to discharge for such cause can never be properly presented in this court until there has been a conviction (Exp. McGehan, supra); and here it is admitted that, aside from this alleged error, the prisoner was properly convicted. For these reasons, we are clear that in order to authorize this court to reverse a conviction on such ground, and order a discharge, the accused must come prepared to show that his case is plainly within the terms of the statute.

We have seen that the cause was properly continued at January term, 1883, because of the absence, of witnesses. The statute authorized the continuance. Then the cause was continued on the last day of the hiay. term, 1883, for want of time to try it. This the prisoner’s counsel claims could not be done under the statute. True, section 163 of the act of 1869 (66 Ohio L. 311), was amended in 1877 (74 Ohio L. 351), by the addition of the words: and if he be not brought to trial at the next term, he shall then be discharged and the section thus amended was carried into the revision (Rev. Stats. § 7311); but the evident meaning is that a continuance shall not be twice granted to the state for the absence of witnesses. This, we think, left the court clothed with power to continuó the cause, under the statute, on application of the state,, where the term was near its close, and it had become apparent that it was impracticable to try the cause at that time; for, independently of the statute, the court is clearly vested with authority to continue for such cause, and we are of opinion that by the statutory provisions referred to the power has not been denied. Nor in so holding do we take an unwarranted liberty with the language of the statute. As Burnet, J., remarked in Burgett v. Burgett, 1 Ohio, 469, 479 (approved in Tracy v. Card, 2 Ohio St. 431, 441), “it frequently becomes the duty of courts, in order to give effect to the manifest intention of the statute, to restrain or qualify or enlarge the ordinary meaning of the words that are used.” No better illustration of the principle need be sought than Burgett v. Burgett furnishes. There the court had under consideration the second section of the statute of frauds, which declares, among other things, that conveyances to defraud creditors “shall be deemed utterly void and of no effect.” The provisions in the Stats, of Eliz. confining their operation to creditors, and saving the rights of Iona fide purchasers, are omitted from our statute; but the court, nevertheless, looking to the evident object of our statute, construed it as though it contained those provisions. And see Slater v. Gave, 3 Ohio St. 80; State v. Harmon, 31 Ohio St. 250, 264.

As the court was vested with discretion to continue the cause for want of time to try it, and exercised the power on November 3, 1883, being the last day of the May term, we are clear that the motion to dismiss on November 5, 1883, being the first day of the November term, and before the calendar for that term had been prepared, was unreasonable, and might have been properly overruled at that time ; and if it would have been proper to have overruled it when it was filled, it was equally proper to do so on a subsequent day of the term. And as the record is silent, we may well say that the state was ready for trial during the whole of the November term, and that the cause was not tried at that term, not only because of the pendency of the motion, but for the reason that the cause could not be reached. And the state being ready at the January term, 1884, the court properly overruled the motion to dismiss at that time (Erwin v. State, supra), and tried the cause. Although Erwin?s case arose under another provision, in view of the construction we place on sections 7309 and 7311, the case is applicable here.'

We would not be warranted in saying that the prisoner has been deprived of any constitutional or statutory right, or that lie has any just cause of complaint; and this conclusion has been reached after an examination of the cases upon the subject cited in 1 Bishop’s Cr. Bro. § 951 f, n. 8; Whart. Or. PI. & Pr. §§ 328, 583; Cooley’s Con. L. (5th ed.) 379.

Motion overruled.

JOHNSON, C. J., was absent when this cause was considered.


text:
    Keyes v. Gore.
    In an action to recover real property, in which the plaintiffs relied upon a deed claimed to have been made to their father, since deceased, where the question was whether the deed had in fact been executed and delivered, the widow of the decedent, not being a party, is a competent witness to prove such execution and delivery, notwithstanding the last clause of Rev. Stats. § 5243 ; and the fact that her right to dower in the premises may depend on the validity of the deed, will make no difference.
    Motion for leave to file a petition in error to reverse ■ the judgment of the District Court of .Lawrence county.
    William Gore, sen., owner of a tract of land in Lawrence county, conveyed it in 1858 to his son, Madison Gore, who died in 1864, seized thereof, leaving to survive him his widow Elizabeth and three children, Delilah Keyes, Tabitha Mitchell and James M. Gore. This is the claim made by Delilah, Tabitha and James M., in the action which they prosecuted in the court of common pleas of Lawrence county, against Joseph Gore and others, to recover possession of the lands;- The defendants claimed under William Gore, sen., common source of title, who died in 1881, and the rights of the parties in the action depended on the question whether such deed had in fact been executed and delivered to Madison Gore.' To prove such execution and delivery, the plaintiffs called their mother, Elizabeth, but the defendants objected to her testimony on that subject, on the ground that as the widow of Madison Gore she would be entitled to dower in the premises, if such deed was executed and delivered, and consequently slie was not a competent witness for such purpose. The court sustained the objection and the plaintiffs excepted, and a verdict having been rendered for the defendants, judgment was rendered thereon, which judgment was affirmed in the district court, and now the plaintiffs ask leave to file in this court a petition in error to reverse both judgments.

      O. F. Moore and W. H. Enochs, for the motion.

      JR. Leeie, contra.
   Okey, J.

There was error in rejecting the testimony. As Elizabeth, the widow, was not a party, there was no statutory provision which in terms excluded the testimony, however largely the witness may have been interested in the result of the suit. Nor was the evidence excluded by the concluding clause of Rev. Stats. § 5242, providing that “ when a case is plainly within the reason and spirit of the last three sections, thougli not within the strict letter, their principles shall be applied.” Not only was she not a party, but a judgment in favor of the plaintiffs would not have determined her right to dower in any action she might prosecute therefor. We need not determine what the effect would be as to the admissibility of her testimony, if a judgment in favor of the plaintiffs would be conclusive in her favor on the question of dower. The proper interpretation of the provision in question was considered to some extent in Cochran v. Almach, 39 Ohio St. 314. I was unable to concur in that decision for reasons there stated ; but the question in this case is different, and without entering further into the question of the proper construction of that provision, we all unite in holding that the testimony of the witness was competent, notwithstanding such provision, and hence that the court erred. The only objection to the testimony was to its weight, not its competency.

Leave granted to file petition in error, judgment reversed and cause remanded for a new trial.


author: McIlvaine, J.

text:
    Brewing Co. v. Archer.
    Under section 585 of Kevised Statutes, which provides “ under the restrictions and limitations herein provided, justices of the peace shall have exclusive original jurisdiction of any sum not exceeding one hundred dollars, and concurrent jurisdiction with the court of common pleas in any sum over one hundred dollars and not exceeding three hundred,” jurisdiction is conferred on justices in an action for the recovery of damages for trespass upon the person of another ; and section 591 does not restrict or limit such jurisdiction, unless the trespass complained of constitutes the offense of assault and battery.
    Motion for leave to file a petition in error to District Court of Belmont county.
    The original action was brought by Elizabeth Archer against Schmulbach Brewing Co., before a justice of the peace of Belmont county, to recover damages in the sum of $300, for that “ on June 23, 1883, while crossing a public alley in the city of Bellaire, she was, by reason of negligence and reckless and careless driving by the agent and servant of the defendant, struck and run over by a beer wagon of the defendant, thereby injuring her greatly and permanently, and causing her much physical suffering and pain, loss of time and expense, to her damage, in the sum of $300, for which sum she asks judgment.”
    The defendant objected to the jurisdiction of the justice of the peace, but his objection was overruled, and upon trial, judgment was rendered against the defendant for $300 and costs.
    This judgment on petition in error to the court of common pleas was affirmed, and the like in the district court.

      I. Danforcl and J. Id. Gusiin, for the motion.

      J. O. Tollmen, contra.
   McIlvaine, J.

The justice of the peace assumed jurisdiction in the original action under section 585 of Revised Statutes, which reads, “under the restrictions and limitations herein provided, justices of the, peace shall have exclusive original jurisdiction of any sum not exceeding $100, and concurrent jurisdiction with .the court of common pleas in any sum over $100, and not exceeding $300.” In the absence of restrictions or limitations, this grant would embrace actions for injuries to the person, where the amount of damages claimed does not exceed $300.

The sole objection urged against the jurisdiction of the justice in this case, is founded on section 591 of Revised Statutes, which provides, “Justices shall not have cognizance of any action to recover damages for an assault, or an assault and battery.”

It will be observed that no wrongful act was charged against the defendant. Under the doctrine of respondeat superior the plaintiff sought to recover for the wrongful act of defendant’s agent or servant. The wrongful act complained of was negligence and reckless and careless driving of defendant’s wagon, whereby the plaintiff was run over and injured. This wrong was a mere trespass upon the person of the jjlaintiff and not an assault and battery.' No intention to run over or injure the plaintiff is alleged. True, every battery includes a trespass, but every trespass does not constitute a battery.

It is contended in behalf of plaintiff in error, that in the section of the statute above quoted assault and battery was intended to include every trespass vi ei armis against the person of another. To this proposition we cannot assent. We think that assault and battery as used in this section must be understood in a technical sense, and does not exclude from the jurisdiction of justices actions toyecover damages for trespass on the person of another unless such trespass constitutes the offense of assault and battery.

Motion overruled.


author: Johnson, C. J.

text:
    Dutten v. Village of Hanover.
    .1. In mandamus in the court of common pleas to compel the council of an incorporated village to order an election on the question of a surrender of its municipal powers, under the provisions of the Kevised Statutes, sections 163S to 1647, the issue was whether the requisite number of qualified petitioners had petitioned the council therefor. Held: That this was an issue not of right triable by a jury, and either party might appeal from the judgment of the common pleas thereon.
    2. Upon the presentation of a petition to the council for such an election, it is the duty of the council, before taking action thereon, to satisfy itself that it contains the requisite number of qualified petitioners, and for that purpose may refer the same to a committee to make the necessary examination.
    3. While such petition is under consideration and before action thereon by the council, signers thereof may withdraw their names from such petition, and if thereby the number of names is reduced below the requisite number, it is the duty of the council to refuse to order such election.
    MotioN for leave to file petition in, error to the District Coutt of Columbiana county.
    This was a petition in the common pleas against the village council of Hanover, to compel that body to order an election as required by sections 1633 to 1647 of the Revised Statutes on the question of the surrender of its municipal powers. It is alleged that on the 2nd of October 18S2, fifty-five electors of said village, which was more than a majority, petitioned the council to order such election, that this petition was referred to a committee, who reported the same back at the next regular meeting, with several names stricken off by the petitioners, at the solicitation of the committee, leaving less than fifty petitioners, and less than a majority of the electors, and thereupon the council refused to 'order such election. The prayer is for a peremptory mandamus to compel the council to order such an election.
    Issue was joined on the material allegations of the petition, and a trial had upon evidence. The common pleas adjudged in favor of said relator and ordered such election to be held.

      The defendant appealed to the district court.
    A motion to dismiss the appeal was overruled, and exception taken.
    On a trial the district court found that the number of electors required by the statute, had signed said petition before it was presented and referred to' the committee, but that while the matter was in the hands of the committee, a number of signers, sufficient to reduce the petitioners to less than the required number, had, with the consent of the committee, withdrawn their names, so that at the next regular meeting of the council* when it refused to order the election, there were a less number of petitioners than required by statute.
    There is nothing in the record to impeach the good faith of the council, or its committee to whom the petition was referred.

      Clarke <& Me Vieker, for the motion.

      J.W. <& H. Morrison, contra.
   Johnson, C. J.

The Revised Statutes sections 1633 to 1647, provide the mode by which cities, villages and hamlets may surrender their municipal powers. By section 1644, the number signing a petition for an election to be ordered, is prescribed in case of an incorporated village. By section 1635, it is made the duty of the council, when a petition is presented for such an election, to order such election, and fix the time for holding the same.

Two questions are made on this motion for leave to file a petition in error: 1st, was the case one that could be appealed ; and 2nd, did the district court err in upholding the action of the village council in refusing to order an election ?

1st. Was this case one for an appeal ?

The issue made by the pleadings was of mixed law and fact. While it is the imperative duty of council (section 1635) to order an election, yet as an essential requisite to this duty, there must be a petition therefor, signed by a sufficient number of electors of the village.

In this case these petitioners must be electors, and this fact must be determined by the council. Before the council can be required to order an election, that fact, must be made to appear. It is a condition precedent to making such order. On mandamus to compel the council to order an election, the court must be satisfied that it was the duty of the council to make the order. The issue was, therefore, as to this fact, was that a fact triable by a jury, as of right? The court might order a jury to try it under proper instruction ; but was it bound to do so? For the purposes of this case, we assume, without deciding, that mandamus is the proper- proceeding against the council for refusing the prayer of petitioners.

This proceeding can only be resorted to, where there is not a plain and adequate remedy otherwise provided. Under our statute, the return to the alternative writ may be controverted. In this case it was controverted, and the question was, whether there was the required number of qualified petitioners. To determine this, the court must ascertain the number of electors in the village, the number of genuine signatures that were electors and the right of signers to withdraw their names.

To determine these questions in mandamus, neither party could demand a jury. Castle v. Lawlor, 47 Conn. 342; Chumasero v. Potts, 2 Montana, 242; High on Extra. Rem. § 30 c.

2d. Did the district court err in holding that persons who signed the petition, could withdraw their names therefrom before action had thereon ?

¥e think not. When the petition was presented it was the duty of the council to take proper steps to ascertain if the signatures were bona fide, and if it contained the requisite number who were electors? For that purpose the same might be referred to a committee and postpone action until time for such examination. Between the time the petition was presented and the next regular meeting, at which action was had thereon, several signers withdrew their names. This they had the right to do, the council not having acted thereon. Hayes v. Jones, 27 Ohio St. 218.

If the council had ordered the election, it may be that petitioners could not thereafter defeat an election, nor authorize the council to rescind its order, by withdrawal of their names. It was held, they could not do this in a road case, after the petition for a road had been acted on, and a report of the viewers made. Grinnell v. Adams, 34 Ohio St. 44.

Be this as it may, we think there was no error by the district court in holding, that the action of the council in referring the petition to a committee until the next regular meeting, and in refusing to order the election on its then appearing that by voluntary withdrawals, the number of petitioners had been reduced below the required number.

Motion overruled.


author: Follett, J. JOHNSON, C. J.,

text:
    King v. Cappellar.
    K.,-engaged in the traffic in liquors on the premises occupied by him as a tenant, made to the assessor the returns provided in the act commonly known as the Scott law (80 Ohio L. 164), and on May 5, 1883, commenced suit against the county auditor and county treasurer, for the purpose, it is claimed, of restraining the levy and collection of the assessment, and also filed a motion, accompanied with affidavit for an injunction, hut such motion was never submitted to or decided by the court. Subsequently to the time provided for the collection of the assessment, the auditor and .treasurer demurred to the petition, at which time, consistently with the record, the tax may have been voluntarily paid: Held :

    1. Even if the petition is sufficient, a reviewing court cannot say, in the circumstances, there was error to the plaintiff’s prejudice in sustaining the demurrer and dismissing the petition.
    3. Where a petition for such a purpose is not only general, hut vague and • indefinite in its allegations and object, it is to be regarded as insufficient in substance and not merely in form.
    3. Assuming, without deciding, that the Scott law, so called, is unconstitutional in all respects, still, the petition in this case does not state facts sufficient to constitute a cause of action, and hence there is no error.
    Error to tbe District Court of Hamilton county.

      Paxton & Warrington, Stallo, Kittredge dk Wilhy, E. M. Johnson, and E. G. R&witt, for plaintiff in error.

      W. JJ. West and T. M. MoDougall, for defendants in error.
   Follett, J.

On May 3, 1883, W. B. King commenced an action in the superior court of Cincinnati, against "W. S. Cappellar, auditor of Hamilton county, and C. A. Miller, treasurer of that county, with a view to an injunction against an assessment under the act of 1883, relating to the traffic in liquors, commonly known as the Scott law, 80 Ohio L. 164. At the same time he filed a motion and an affidavit for an injunction, but, so' far as the record discloses, he never submitted the motion to the court or invoked the action of. the court upon it in any way. The time elapsed when it was the duty of the auditor to complete the special tax list provided for in the act, and to deliver a duplicate thereof to the county treasurer, and when it was the duty of the treasurer to collect the assessment, without any further action on the part of King or his counsel. As the auditor and treasurer were not restrained, it is fair to presume that they performed the duties required of them by the act; and, indeed, for aught that appears in the record, King abandoned his motion for an injunction and voluntarily paid the assessment.

On October 20, 1883, after the assessment, according to the terms of the act, should have been collected, the defendants filed a demurrer to the petition, which demurrer was sustained, and King not desiring leave to amend, the court dismissed the petition. For the reason stated, we would not be authorized to say that it appears that the superior court erred to the prejudice of the plaintiff, even if the petition contained facts sufficient to constitute a cause of action ; and, placing the case on that ground, we would not be warranted in saying that the district court erred in affirming the judgment of the superior court.

But in fact the petition is wholly insufficient. Omitting caption, signature of counsel, and verification, it is as follows.

“ Plaintiff says that he is, and for some time has been, -engaged in the business and occupation of trafficking in intoxicating liquors, at a place known as 189 Yine street between Fourth and Fifth streets, in the city of Cincinnati; that while so engaged, on or about the thirtieth day of April, 1883, one Martin Mullen, the then assessor of the Eighth ward, of said city, in the performance of his duties as required by a certain act passed by the general assembly of the state of Ohio, on the seventeenth day or April, 1883, entitled, £ An act further providing against the evils resulting from the traffic in intoxicating liquors,’ demanded of this plaintiff a brief and accurate description of the premises where he conducted said business, by whom owned, and whether such business was confined exclusively to the traffic in malt or vinous liquors, or both, which statement and description was duly made, signed and verified by this plaintiff under protest, and the same was returned by said assessor to the defendant, W. S. Cappeller, auditor of Hamilton county;.that the intent and purpose of such statement is that his business may be assessed in the sum of $200, and that the same attach and operate as a lien upon the premises, where this plaintiff carries on his business ; the plaintiff further says that the defendant, W. S. Cappeller, as auditor of Hamilton county, has or is about to make out a duplicate of such assessment, which shall show the time and amount of such assessment and the premises whereon the same is a lien, and to make and deliver a copy of such duplicate to the defendant, Chas. A. Miller, treasurer of Hamilton county, for the purpose of having the assessment of $200 collected ; that the acts of said assessor in demanding such return, and of the defendant, W. S. Cappeller, auditor of Hamilton county, in making a duplicate thereof, and of the defendant, Chas. A. Miller, treasurer of Hamilton county, in collecting the assessment, are illegal, unlawful and wrong, and to the prejudice and damage of the plaintiff, and to allow such acts to be done would produce great and irreparable injury to the plaintiff, and that he is without any adequate remedy at law.

“ Wherefore plaintiff prays that a restraining order issue against W. S. Cappeller, auditor aforesaid, restraining him from placing such assessment and the premises returned upon tlie duplicate of Hamilton county, or making a duplicate thereof, and that Chas. A. Miller, treasurer aforesaid, be restrained from collecting said assessment, and that upon the final hearing of the cause, a perpetual injunction be made restraining the said auditor from placing said assessment on the premises upon the duplicate of Hamilton county, or making a duplicate therefor, and that said treasurer be perpetually enjoined from collecting the assessment, and for such other and further relief as the equity of the "case demands.”,

This, it will be seen, is not an action to recover back money illegally exacted, nor an action by an owner of property to prevent a cloud thereon, nor an action to prevent a multiplicity of suits, nor an action prosecuted by an owner of property on behalf of himself and others in like situation, to restrain an unlawful tax. The petition is that of a single individual. It fails to show whether or not the levy had been placed on the tax list; it fails to show whether King was an owner or tenant, though if we could look into his affidavit we should discover that he is a tenant; it does not aver that the act in question is unconstitutional; nor does it even aver, unless in-, ferentially, that the assessment is illegal; nor does it aver that Miller is about to resort to any extraordinary remedy to collect the assessment, or indeed to' any remedy except to proceed against 'the premises; nor- is any person or corporation for whose benefit the assessment is made, or the owner of the property, a party to the action.

It is very clearly settled in the well considered case of Stephan v. Daniels, 27 Ohio St. 527, 538-5, that, however it may be elsewhere, in this state equity affords no remedy in cases of this class, independently of the statute; and it is equally clear to us that the statute (Rev. Stats. §§ 5848-5851) has provided no remedy in a case like this, upon the allegations here made. Conceding that an auditor may, upon a proper, petition, be restrained from placing an illegal assessment upon the special tax list, we cannot say from the vague, indefinite allegations of this petition, that we have any such case before us.

It is the province of thiscom’t to decide causes, not abstract questions ; and as the whole question here, in this view of the case, is whether the petition shows a case requiring the court to grant equitable relief byway of injunction, we are clear that it is our duty to declare that it presents no such case; for it is not one of defective, but wholly insufficient statement. Van Wert v. Webster, 31 Ohio St. 420. And this view has been adopted after every member of the court has had full opportunity to express his opinion upon it.

On important questions involving the constitutionality of the acts of a co-ordinate branch of the state government, or the soundness of a former decision of this court in relation to such statute, we are unwilling to speak,-nor is it our duty to speak, except as required by the record before us (Ireland v. Turnpike Co., 19 Ohio St. 369, 373); and in this case it is our duty, even sua sponte, to determine whether the petition contains facts sufficient to constitute a cause of action, whatever may be the correct view as to the validity of the act in question.

We therefore hold, first, even assuming that the petition is sufficient, it does not appear, nor, in the circumstances, would we be justified in assuming, that there was prejudice in dismissing the suit or in affirming the dismissal; and, secondly, that assuming, without deciding, that the Scott law, so called, is wholly unconstitutional, still, in view of the vague, uncertain and insufficient allegations of the petition, no ground of relief is stated. Judgment affirmed.

JOHNSON, C. J.,

and McIlvaiNE, J. We concur in affirming this judgment on the ground that the act in question is constitutional. On the point made by the majority, for uniting in affirming this judgment, we express no opinion.

It is a.point not made at bar, nor was it argued or relied on, nor has it been considered by the court, nor was the attention of the court called to it until a vote was being taken in the case. This .is of. itself a sufficient reason for not expressing any opinion on this point.

This case was admitted upon the docket for the sole purpose of again considering the validity of the Scott law, and that was the only question argued by counsel, and we think it due the plaintiff in error, as well as the public, that this question, fairly made, should have been met and decided.


author: Owen, J. JOHNSON, C. J. McIlvaine, J.,

text:
    Butzman v. Whitbeck.
    1. Whether a statute is in effect a license law, and therefore in conflict with the eighteenth section of the schedule to the constitution of 1851, must be determined from the operation and effect of the statute, and not from the form it may he made to assume. State v. Hipp, 38 Ohio St. 199, followed and approved.
    2. The act of 1883, commonly called the Scott law (80 Ohio Laws, 164), so far as it provides for a lien on real estate occupied by a tenant who isa dealer in liquors, is, in effect, such license law, and therefore unconstitutional, whether the lease be executed before or after the passage of the act, and it will make no difference that the owner, in any case, has consented in writing to such traffic.
    3. Whether the act known as the Scott law, is in any other respect unconstitutional, is a question not presented by the record in this case, and it is therefore not decided.
    ERROR to tbe district court of Cuyalioga county.

      Forcm & Dawley and 8. Burke, for plaintiff in error.

      R. P. Ranney, Oarlos M. ¡Stone and Alex. Hadden, for defendant in error.
   Owen, J.

On December 29, 1883, H. N. Whitbeck, treasurer of Cuyahoga county, commenced an action against William Butzman and Jacob Mueller, to obtain an order for the sale of premises in Cleveland, owned by Mueller, to satisfy an assessment of $200, with 20 per cent, penalty thereon for non-payment, levied pursuant to the act of April 17, 1883, better known as the Scott law (80 O. L. 164), which assessment was upon the business of Butzman as a dealer in intoxicating liquors on the premises, for one year ending on the second Monday of April 1884. Butzman has occupied the premises since April 20, 1883, as the tenant of Mueller, and with his consent that the business should' be carried on upon the premises. The petition also contains two supposed causes of action and a prayer for personal judgment against Butzman. The demurrers of Butzman and Mueller were overruled and judgment was rendered against Butzman as prayed, and an order was made that in default of payment of the judgment within ten days the premises should be sold to satisfy the same. The district court dismissed a petition in error to reverse the judgment, and Butzman and Mueller prosecute this petition in error to reverse the order of dismissal and also the judgment and order of the court of common pleas.

The act in question provides: Section 1. That upon the business of trafficking in intoxicating liquors there shall be assessed, yearly, and shall be paid into the county treasury, by every person engaged therein the sum of $200.”

If the traffic is exclusively in malt and vinous liquors the assessment is but $100. Section 2 provides: That said assessments, together with any increase thereof, as penalty thereon, shall attach and operate as a lien upon the real property on and in which such business is conducted. . . . and that whoever shall engage or continue in the business aforesaid of selling intoxicating liquors in or upon land or premises not owned by him, and without the written consent of the owner thereof, shall be held guilty of a misdemeanor,” and liable to be fined or imprisoned or both; and each day’s continuance upon such premises shall be an additional offense.

Section 5 provides: That the county treasurer shall collect and receipt for all assessments so returned to him. And if any assessment shall not be paid when due, he shall forthwith proceed as provided by section one thousand one hundred and four (1104) of the Revised Statutes, to enforce the lien for the same and penalty ; and the provisions of said section -and any other provisions of the law of this state relative to the collection of taxes or assessments are hereby made applicable to the enforcement of such liens and the collection of such assessments and penalties. . .”

Section 1104 of the Revised Statutes' above referred to, provides that, the treasurer, in addition to all other-remedies provided by law, may enforce the lien for such taxes and assessments by a civil action in his own name as treasurer, for the sale of the premises, in the court of common pleas in the same way as mortgage liens are enforced. This section provides that judgment shall be rendered for the taxes or assessment, penalty and costs, and that the premises shall he sold to pay the same, &c. The proceeding below was clearly under this section and for the sale of Mueller’s property to pay an alleged debt of Butzman. If Butzman was a proper party it was merely with reference to the amount due, and possibly his interest as lessee in the premises, and a careful examination of the provisions of section 11C4, makes it clear that no personal judgment against Butzman was authorized in such action, whatever remedies the treasurer may have under other provisions of the statute.

The treasurer evidently obeyed the direction of section 5 to “ proceed forthwith as provided by section 1104 of the Revised Statute to enforce tht lien for the same and penalty.”

While section 1104 provides for a judgment, that a judgment against any other party than the owner of the land is not contemplated is apparent from this language : and the owner or owners of such property shall not be entitled to any exemption as against such judgment.”

The proceeding is plainly stamped as one to effectuate the lien for the assessment.

If, therefore, no lien attached to the property of Mueller, the proceeding must fall.

The act in question assumes to attach a lien for the assessments and penalties upon the premises, whereon the traffic in liquors is prosecuted, without regard to the question whether the person so engaged is owner or tenant; and then the act further provides (section 2) that “whoever shall engage or continue in the business aforesaid of selling intoxicating liquors in or upon land or premises not owned by him, and without the written consent of the owner thereof shall be held guilty of a misdemeanor, and each days continuance is made an additional offense.

Does this provision authorize a license and therefore contravene the first clause of the 18th section of the schedule to the constitution which ordains that: “No license to traffic in intoxicating liquors shall hereafter be granted in this state; but the general assembly may by law provide against evils resulting therefrom.”

It has been assumed by counsel that this question has been adjudicated by this court in the cases of State v. Frame and Fenner v. Bauder, 39 Ohio St. 398, known as the Scott law cases, and that we are called upon either to approve or overrule those cases. It will be seen that the question involved in these eases was simply whether the Scott law, so far as it authorized assessments upon the business of trafficking in intoxicating liquors was a valid and constitutional enactment, with perhaps the other incidental question, whether section 2 could be stricken from the act and leave it capable of enforcement according to the legislative intent. The question of lien or license was not necessarily involved in either case. After holding the assessment features valid and that the act could be enforced without the penalty clause of the second section, the opinion proceeds:

“ Upon this view, further consideration of this question might be, with propriety, omitted from .this opinion, as the cases before us do not depend upon the validity or invalidity of the second section of the statute.
But inasmuch as the validity of this clause of the statute has been fully and ably discussed by counsel, and a large number of the citizens of the state are personally interested in the question, I have concluded to state the views entertained by a majority of the court, after full consideration.”

There is nothing in the present case which calls upon us to reconsider either of the questions, actually before the court and adjudicated in those cases. So much of the opinion as follows the above quotation, being that of. a majority of the eminent judges who composed this court at that time, comes to us with much force and weight, and is entitled to that high consideration and respect which is freely accorded it by the writer of the present opinion. But being an opinion upon questions not necessary to a determination of the cases then under consideration, its examination by this court is comparatively free from the embarrassment and delicacy which must attend a reconsideration of a question necessarily adjudicated by the court.

Not unmindful of the grave responsibility assumed in considering the validity of a legislative enactment, and fully aware that only a fixed conviction after the fullest consideration, and that, beyond every substantial doubt, will justify this court in declaring such an act unconstitutional, we proceed to inquire : 1. Does the penal clause of section 2, which declares it a misdemeanor to engage in the liquor traffic upon the premises of another without the written consent of the owner, authorize a license to traffic in intoxicating liquors? Fortunately, the field of inquiry is narrowed by the previous discussions of the license question by the members of this court, and by the court itself. In the State v. Hipp, 38 Ohio St. 199. (the Pond Law case), license, in a general sense was said to be permission granted by competent authority to do an act which without such permission would be illegal.” In the Frame case, Mellvaine, J. says : “A license is essentially the granting of a special privilege to one or more persons, not enjojmd by citizens generally, or, at least not enjoyed by a class of citizens to which the licensee belongs.” Cooley, J., in Youngblood v. Sexton, 32 Mich. 419, says : “ The popular understanding of the word license undoubtedly is, a permission to do something which without the license would not be allow, able. This we are to suppose was the sense in which it was made use of in the constitution. But this is also the legal meaning.”

Applying these definitions of a license to the Scott law the opinion in the Frame case proceeds : “No citizen or class of citizens is required by this statute to perform any condition before the right to traffic shall vest in him.”

Let us see. This act found three classes of traffickers in intoxicating liquors. (1) Those who prosecuted the traffic upon their own premises; (2) the class of dealers who carry on the traffic upon the numerous watercrafts floating upon the waters within the jurisdiction of the courts of the state; and (3) those who carry on the traffic upon lands owned by others.

Just how numerous the latter class may be we may not know. We see, however, that they were sufficiently numerous to justify the general assembly, in its wisdom, in making them the subject of special legislation.

We can suppose that when this law took effect, very few of them were equipped with what legalized their business— tlxe written consent of the owners of the premises occupied. As to all of this class who were not thus supplied, the act was a prohibitory law. Their business was illegalized, and severe penalties were denounced against it; and each day’s continuance of the traffic scored against them a distinct offense. The law prescribed just one condition upon which their traffic could be rendered as lawful as that of those against whom no penalties were denounced, and upon whom no conditions were imposed. It said to the dealer upon another’s premises: Procure the written consent of the owner of the lands you occupy or bow to the penalties denounced against you. .Without such writing the dealer is a criminal. Armed with it, and his business (if he avoid the special offense defined in the act) is as lawful as the traffic in dry goods. But eminent counsel contend that the offense here created is that of occupying the premises of another without his written consent. This argument is conclusively answered by the language of the act itself: Whoever shall engage or continue in the business aforesaid of selling intoxicating liquors in or upon land or premises not owned by him, and without the written consent of the owner thereof, shall be held guilty of a misdemeanor.”

Counsel' illustrate this argument by asking us to suppose that our statutes had provided that whoever shall carry on the business of bread-making or brick-making upon the lands of another without his written consent shall be held guilty of a misdemeanor, and an imposing array of eminent counsel submit this test as decisive of this question. But to keep the analogy good, we are to supplement the illustration with the further supposition that the constitutional convention had been foolish enough to submit, and the people thoughtless enough to adopt, a provision ordaining that: “No license to carry on the business of brick-making or bread-making shall be granted in this state; .but the general assembly may, by law, provide against evils resulting therefrom.”

With the analogy complete the argument fails. In the opinion of the majority in State v. Frame, this argument is urged:

“We think this statute is no more a license law than was section two of the liquor law of 1854, which provided, ‘ That it shall be unlawful for any person or persons, by agent or otherwise, to sell intoxicating liquors to minors, unless upon the written order of their parents, guardians, or family physician.’ Surely, it cannot be contended that that section granted a license to traffic in intoxicating liquors with minors.”

With great respect it is submitted that this argument is conclusively answered in the dissenting opinion in that case, as follows:

The difference is very marked. The requirement that a sale could only be made to a minor on such order was a mere regulation, which left in the dealer the right to traffic in liquors; but one who- is not the owner of real estate is absolutely prohibited from dealing in liquors in any way, without the written consent of the owner of the property in which he proposes to carry on the business. There is no analogy between the cases.”

It may be added that upon the slightest reflection, it will be seen that to keep the analogy good the argument must assume that a doctors .or parents’ written order for liquor for a minor, addressed to a liquor dealer, is a written consent to carry on the business of trafficking in intoxicating liquors; for this is what the “ written consent of the owner ” contemplates.

But it is maintained that the definition of license contemplates that it shall be issued by authority, whereas the written consent provided for in this act is a mere private permit. Such a construction requires that we utterly ignore the operation and effect of the act and regard only its form and letter. It is settled in State v. Hipp, that the constitutionality of a statute depends upon its operation and effect, and not upon the form it may be made to assume. Upon this subject, it was said by White, C. J. in the District Court Cases, 34 Ohio St. 431: “ An act violating the true intent and meaning of the constitution, although it may not be within the letter, is as much within the purview and effect of a prohibition as if within the strict letter ; and an act in evasion of the terms of the constitution, as properly interpreted and understood, and frustrating its general and clearly expressed or necessarily implied purpose, is as clearly void as if in terms forbidden:” The act provides that whoever engages in the liquor traffic upon premises not owned by him, and without the written consent of the owner tlierof shall be guilty of a misdemeanor, &c.

Stripped of the weak disguise with which a cunning phrase has invested it, this provision plainly confides to the owner the authority to say whether the dealer occupying his premises shall stand as a criminal before the law, or whether his business shall be entirely lawful. Suppose the act had provided that: “ Whoever shall engage in the liquor traffic upon premises not owned by him without the written permission of the probate judge of his county, who is hereby authorized, in his discretion, to grant such permission, shall be guilty of a misdemeanor,” &c. Would the judge be in a more emphatic sense clothed with authority to issue such permission than the owner now is? Is the owner any the less authorized to legalize the business of his tenant than if he were a public officer? And is not this authority derived from, the state through this act ? If the tenant be put upon his trial for a violation of this provision is not his acquittal as abundantly assured by exhibiting the written consent of the owner as if it bore the seal of a commissioned, sworn and salaried officer ?

The Pond law said to the dealer : Procure a bond signed by two sureties or stand condemned before the law. The Scott law says to the dealer upon anothers premises : Procure the written consent of the owner of your place of business or suffer the penalties denounced against you. Nor does the analogy fail because the tax is not the price of the license.

“ There is no necessary connection between them. A business may be licensed and yet not taxed, or it may be taxed and yet not licensed.” Per Cooley, J., in Youngblood v. Sexton, 32 Mich. 425.

The state has plainly invested the owner with the vast discretion of determining whether the dealer upon his premises shall prosecute bis business as a lawful traffic, or whether he shall remain under the condemnation of the law ; and to say that this is a mere private permit — that there is no element of public authority in it, is to allow a principle of government which the people have ordained as a feature of their organic law to be subverted by mere subterfuge. If the dealer fails to procure the written license of the only person anthorized to issue it, the owner, he continues a daily transgressor against the law. If he procure it, his business is as lawful as that of the dealer who owns his business place, or the dealer upon a watercraft against whom neither penalties nor lien are provided ; for, “said assessment shall attach and operate as a lien upon the real •property on, and in which such business is conducted.” Here is discrimination between classes. Here, under the definition of license in State v. Hipp, is -permission granted by authority to do an act which without such permission would be illegal. Here, by the definition of license in State v. Frame, is “ The granting of a special privilege to one or more persons .... not enjoyed by a class of citizens to which the licensee belongs.”

Does not this act clearly and negatively answer the proposition that, “No citizen or class of citizens is required by this statute to perform any condition before the right to so traffic shall vest in him ?”

The “ condition ” required in the Pond law wras to procure a bond. The “ condition ” required by the Scott law is to procure the written consent from the owner. The failure to comply with either condition alike invoked the penalties of fine or imprisonment or both.

Whether this provision was intended to cause the lien to attach, or to protect the owner by enabling him to invoke its penalties against the tenant, avc need not say. This provision and that concerning the lien upon the owner’s premises of the assessment against the business of the tenant, so depend upon each other in the general scheme and purpose of section 2, that both are involved in a common infirmity and must fall together.

These provisions, in our opinion, upon the authority of State v. Hipp, constituted the act a license law, so far as the act attempts to secure a lien upon real estate occupied bj tenants, whether the lease be executed before or after the passage of the act; and the provisions being unconstitutional it is obviously immaterial whether the owner has or has not consented either verbally or in writing, to the prosecution of the traffic.

We are prompted by considerations which seem urgent, to confine our discussions and determination to the questions necessary to a disposition of the case before us. Upon a well established principle, it is the duty of this court, if there is other clear ground upon which to rest its judgment, to leave the question of the constitutionality of a legislative enactment for consideration until a case arises which cannot be disposed of, without considering it, and when a decision upon such question will be unavoidable. Cooley’s Const. Lim. 199 ; Ireland v. Turnpike Co., 19 Ohio. St. 373. Stability of judicial decision of a court of last resort upon all questions, especially upon questions of great public concern, is one of the safeguards of popular government. It is essential to such stability that the questions determined here are those actually before ns and necessary to the determination of the case under consideration.

Whether the Scott law is in any other respect unconstitutional and how far the rule of stare decisis, should control are questions not presented by the record in this case, and therefore they are not decided.

Judgment reversed and action dismissed.

JOHNSON, C. J.

For reasons given in former cases involving the same question, I do not assent to the second point of the syllabus, which in substance, holds that the written consent of the landlord to his tenant to engage in the traffic in intoxicating liquors on his property, given after the act in question took effect, is a license.

The re-arguments of this question, and further reflection have confirmed the views heretofore expressed, as to the legal signification of the 18th section of the schedule.

I also dissent from the statement in the 3d point of the syllabus, to the effect that the validity of the “ other provisions,” of the Scott law, “ is a question not presented by the record.”

This is a question of fact, rather than of law, to be determined by an inspection of the record.

Learned counsel who represented the plaintiffs in error, in oral as well as written argument made no such claim. They asked us to review the decision of the common pleas and district courts, which, following this court had held, these “ other provisions,” were valid. For that purpose we allowed a petition in error to be filed and upon that single question the case was ably argued at great length, but the majority have sua sponte, disposed of the case on the ground that the question is not made in the record.

That this position is untenable will appear from a statement of the issues presented by the pleadings. It will be seen by an inspection of this record, that the validity of the first section of the law, as well as the landlord clause of the second section, was directly involved, and that there was no way of avoiding a decision of it. The petition contains two causes of action: th e first, against Butzman, to recover a, personal judgment for the tax and penalty under section 1 of the act; the second, against Butzman as tenant and Mueller as landlord, to enforce a specific lien created by statute on the premises owned by Mueller, and to sell the same to pay such judgment. In view of this fact, the statement that this is an action to enforce the lien merely, is a clear misapprehension of the pleadings.

In the-first cause of action, after stating the facts constituting a personal liability of Butzman under section 1, for the tax and penalty, it concludes as follows:

“ Wherefore he (the plaintiff), prays judgment against said William Butzman for the sum of $240.”

Standing alone, this would have been a civil action under Revised Statutes, § 2859 to recover a personal judgment, on which execution could issue.

The second cause of action is to enforce against the real estate, the lien authorized by section 2 of the act. Its allegations are against Mueller as landlord, and Butzman as tenant. If this clause is valid, it is conceded these allegations are sufficient to entitle the plaintiff to a decree for the sale of the property.

The prayer to this cause of action is :

“ Wherefore this plaintiff prays for a judgment against said defendant, William Butzman, for the sum of $240, that the court may take an account of the amount of assessments with the penalties thereon against said real estate, and declare the same a lien thereon, and order such real estate sold for the payment of said assessments and penalties and the costs of this action, and for such other and further relief as he is entitled to by reason of the premises.”

The defendants, Butzman and Mueller filed separate demurrers — that of Butzman alleging that the petition did not state a cause of action against him, and that of Mueller, that as to him, there was no cause of action, that is no ground to enforce a lien on his property.

These demurrers were separately submitted to the court, and separately decided. Thereupon, on submission and proof, a personal judgment was rendered against Butzman for the assessment and penalty, $240, and a decree for the sale of the real estate to pay the same, was entered on the second cause of action.

This judgment and order of sale were affirmed by the district court, that court holding, that neither of these demurrers was well taken.

This statement taken from the record clearly shows that two distinct questions of law were before the courts below and are now before us for review, namely; was there a good cause of action against Butzman for a personal judgment and second, was there a good cause of action to enforce the lien against the property of Mueller 1

Either cause of action might have been brought without joining the other. Mueller’s demurrer would be well taken if the opinion of the majority be correct and a good cause of action would still remain against Butzman. The decision of the majority holding that the lien cannot bo enforced disposes of the second cause of action against the property but leaves the first cause of action undisposed of. That this is so, is too apparent to admit of question. The statement therefore that there is practically one cause of action and that to enforce the lien merely is manifestly at variance with the record.

But it may be claimed that these two causes of action cannot be united in a single petition; and it is claimed, erroneously as we have shown, that this is merely a proceeding to enforce a lien. That neither of these grounds is tenable will appear from a summary statement of the statutes on the subject.

Section 1 of the Scott law, assesses upon the business of trafficking in intoxicating liquors, a specific sum of money yearly, which “ shall be paid by every person engaged therein.” This created a statutory liability against Butzman wholly independent of the second section of said act.

Section 2 provides that said assessment, &e. shall attach and operate as a lien on the real property on which said business is conducted. By the latter clause of said section it is made a misdemeanor for one to engage in such business on land owned by another without his written consent. Section 3 provides for a return by the assessors of the places where such business 'is carried on.

Section 4 makes it the duty of the county auditors to make out a duplicate of such assessments and to deliver the same to the county treasurers, for collection.

Section 5 specifically provides for the collection of these assessments.

If they are not paid by the persons carrying on the business when due the treasurer shall forthwith proceed as provided by Rev. Stats. § 1104. “ To enforce the lien for the same and penalty and the provisions of said section, and any other provisions of the law of this state relative to the collection of taxes or assessments are hereby made applicable to the enforcement of such liens and the collection of such assessments and penalties.”

It is thus made clear by this section that the treasurer is not only clothed wdth power to enforce the lien but is further invested with power to resort to “ any other provisions of law, relative to the collection of taxes and assessments.” By section 1104: the treasurer “in addition to all other remedies provided by law,” may enforce by civil action the lien for taxes “ in the same way as mortgaged liens are enforced.”

Among the “ other remedies provided by law,” are to be found the general provision for the collection of taxes. Revised Statutes, §§ 2838 to 2863.

Section 2859 provides “in addition to other remedies provided by law” for the collection oí personal taxes, for a cvoil action. This action is to be brought in the name of the treasurer against the person whose duty it is to pay;

A personal judgment may be rendered against him, and he shall riot be entitled to the benefit of the laws for the stay of execution or exemption of homestead, or any other property from levy or sale or execution in the enforcement of any such judgment, By section 2860, the term personal taxes includes all taxes “ except only tax on real estate as such.”

This provision of law authorizing a civil action arid a personal judgment, has, inadvertently as we suppose, been overlooked by the majority, or else it has been wholly ignored.

Upon this section, 2859, rests the first cause of action against Butzman for a personal judgment.

The second cause of action to enforce the lien against the property, is founded upon provisions contained in section 1104. The right to join these separate causes of action is clearly authorized by section 5021 Revised Statutes.

Section 1104 authorizes the enforcement of the statutory lieu of taxes and assessments on real estate “in the same way as mortgaged liens are enforced.” Section 5021 provides that “ in an action to foreclose a mortgage given to secure the payment of money, or to enforce a specific lien for money, the plaintiff may also ask in his petition for a judgment for the money claimed to be due; and such proceedings shall be had thereon, as in a civil action for the recovery of money only.”

The plaintiff is strictly within the terms of these several statutes. Under section 2859 he has a civil action for money only on which he is entitled to a personal judgment. JBy section 1104, he has an action in equity to enforce a specific lien on real estate. By section 5021, plaintiff may ask for a personal judgment as well as for the enforcement of the specific lien, “ and such proceedings shall be had as if it were a civil action for money only.”

If therefore it be assumed that the action to enforce the specific lien fails by reason of the invalidity of the last clause of section 2, the first cause of action against Butzman stands untouched and unaffected.

This presents for the consideration of this court the validity “ of the other provisions,” of the Scott law.

If it be claimeql these two causes of action cannot be joined in a single petition, inasmuch as they each do not affect all the parties to the action the reply is that that question is res adjudicata. That was, perhaps, the law prior to the amendment of the code in 1864, which is now section 5021 R. S.

In McCarthy v. Garrahty, 10 Ohio St. 438, the court expressed a doubt of the joinder of two causes of action, one on a note and the other on a mortgage, but held that as no objection for misjoinder was made in the court below, it could not be taken advantage of in this court. In consequence of that doubt, the act of 1864 (now section 5021) was passed. Malcomb v. Marshall, 29 Ohio St. 616. Soon after this act was passed it received an authoritative construction by this court, which has ever since been followed.

In King v. Safford, 19 Ohio St. 587, it was held that the holder of a note secured by mortgage may in a single action demand arid have a judgment against all .the makers of the note, although the mortgage is- executed only by fart of the inakers of the note?

The fact, therefore, that one cause of action was against Butzman, and the other to enforce the lien against him and Mueller, is no ground for claiming a misjoinder since the act of 1864 ; nor was it prior to that act, where, as in this case, no objection was made to such joinder in the court below.

The validity of the first section of the Scott law was, therefore, directly involved in the first cause of action. The courts below either erred, or they did not, in overruling .Butzman’s demurrer.

That the majority have doubts as to the correctness of their conclusion, is manifest from the final judgment rendered. If there was but a single cause of action, to enforce a lien, then as they held the lien invalid a judgment against plaintiff, should have been rendered, that would lar a future action.

Instead of such a judgment, the journal entry, after dismissing the action against both defandants adds : “ And it is ordered and adjudged that the action be and the same is hereby dismissed, lut without prejudice to the defendant in error to proceed against said Butzman in sxioh m anner as the law may warrant.”

This leaves the whole question as to the personal liability of Butzman open to future litigation.

We know of no reason why his liability to a personal judgment should not have been decided in this case.

Every consideration of public policy seems to have demanded that this vexed question so fairly made should be settled at the earliest practicable period. Such was the desire of both parties evidenced by their pleadings and arguments, and such appears to be in the plain path of judicial duty. These views are expressed with all proper respect for the majority.

McIlvaine, J.,

concurs in the foregoing dissent, and refers to his opinion in the Frame case, for his views on the second point of the syllabus.