text:
    The Mahoning Valley Railway Co. v. DePascale.

      Words of provocation — May mitigate punitive but not compensatory damages — Wrongful ejection from car of passenger by conductor — Action for tort — Liability of principal for act of agent — Question of error in charge to jury — Law of damages.

    1. Words of provocation may be considered in mitigation of punitive, but not compensatory damages.
    2. In an action for personal tort, the “compensatory damages” which may be recovered from the principal for the wrongful and unlawful act of its agent, are not subject to mitigation, nor is the liability of the principal for such damages defeated, by proof that the act which caused the injury was provoked or induced by abusive language used by the plaintiff to such agent.
    3. Where in such action the jury, by the direction and instruction of the court, is restricted to the allowance of compensatory damages only, it is not error to refuse to charge: "that in determining the question of compensatory damages to the plaintiff, they may consider in mitigation thereof, the provocation brought about by the insulting words used by the plaintiff to defendant, if they find ¡such words were used.”
    (No. 8772
    Decided June 7, 1904.)

      Error to the Circuit Court of Mahoning county. .

      Messrs. Arrel, McVey & Tayler, for plaintiff in error,
    cited and commented upon the following authorities :
    2 Sedgwick on Damages (7 ed.), 521; 1 Sutherland, 229; 2 Greenleaf on Evidence (8 ed.), par. 93; Black v. Mogle, 5 C. C. R., 51; affirmed 51 Ohio St., 582; Barholt v. Wright, 45 Ohio St., 177; Goldsmith v. Joy, 4 L. R. A., 500; Fraser v. Berkley, 7 Car. & P., 621; Perkins v. Vaughn, 5 Scott N. R., 881; Burke v. Melvin, 45 Conn., 243; Bartram v. Stone, 31 Conn., 159; Robison v. Rupert, 23 Pa. St., 523; Kiff v. Youmans, 86 N. Y., 324; 40 Am. Rep., 543; Mowry v. Smith, 9 Allen, 67; Tyson v. Booth, 100 Mass., 259; Bonino v. Caledonio, 144 Mass., 299; 3 New England Reporter, 918; Aldrich v. Harvey, 50 Vt., 162; 28 Am. Rep., 501; Peavy v. Railroad & Banking Co., 8 S. E. Rep., 70; Harrison v. Fink, 42 Fed. Rep., 787; Railroad Co. v. Wetmore, 19 Ohio St., 110; Catering Co. v. Coit, 55 Ohio St., 398; Business College v. Lloyd, 60 Ohio St., 448.

      Mr. Ensign N. Brown, for defendant in error,
    cited and commented upon the following authorities:

      Railroad Co. v. Wetmore, 19 Ohio St., 110; Catering Co. v. Coit, 55 Ohio St., 398; Business College v. Lloyd, 60 Ohio St., 448; Railway Co. v. Valleley, 32 Ohio St., 345; Railroad Co. v. Skillman, 39 Ohio St., 444; Coleman v. Railway Co., 106 Mass., 160; Railway Co. v. Marsh, 9 Circ. Dec., 548; 17 C. C. R., 379; Railway Co. v. Boyer, 10 Circ. Dec., 199; 18 C. C. R., 327; Railway Co. v. Boucsein, 66 Ohio St., 682; Burke v. Melvin, 45 Conn., 243; Tyson v. Booth, 100 Mass., 258; Bonino v.

      Caledonio, 144 Mass., 299; Aldrich v. Harvey, 50 Vt., 162; 28 Am. Rep., 501; Kiff v. Youmans, 86 N. Y., 324; 40 Am. Rep., 543; Robison v. Rupert, 23. Pa. St., 523; Mowry v. Smith, 9 Allen, 67; Bartram v. Stone, 31 Conn., 159; Mogle v. Black, 3 Circ. Dec., 27; 5 C. C. R., 51; Harrison v. Fink, 42 Fed. Rep., 787; Peavy v. Railroad & Banking Co., 8 S. E. Rep., 70; 81 Ga., 485; Barholt v. Wright, 45 Ohio St., 177; Railroad Co. v. Berger, 64 Ark., 613; Fenelon v. Butts, 53 Wis., 344; Corcoran v. Harran, 55 Wis., 120; Donnelly v. Harris et al., 41 Ill., 126; Ogden v. Claycomb, 52 Ill., 365; Gizler v. Witzel, 82 Ill., 322; Norris v. Casel, 90 Ind., 143; Johnson v. McKee, 27 Mich., 471; Jacobs et al. v. Hoover, 9 Minn., 204; Prentiss v. Shaw, 56 Me., 427; Goldsmith’s Admr. v. Joy, 61 Vt., 488; Willey v. Carpenter, 15 L. R. A., 853; Railroad Co. v. Barger, 26 L. R. A., 220; secs. 3434, 3436, 6983, Rev. Stat.
    The facts in this case, so far as they are necessary to a- proper understanding of the questions decided, are stated in the opinion.
   Crew, J.

This was an action by the defendant in error, Vincenzo DePascale, to recover damages for . personal injuries alleged to have been sustained by him in consequence of his having been wrongfully and forcibly ejected from a car of the plaintiff in. error while traveling thereon as a passenger. Upon the trial of this cause to a jury, a verdict was returned for DePascale for $450. A motion for-new-trial was overruled and judgment entered on said verdict by the court of common pleas. This judgment was affirmed by the circuit court. On the trial of',the;canse in the court of common pleas, Charles Lyttle, who was the conductor on duty and in .charge. of the car from which DePascale was ejected, was called as a witness on behalf of the railway company, and testified as follows:

DIRECT EXAMINATION.
££Q. Mr. Lyttle, what is your fuil name? A. C. L. Lyttle.
££Q. "What is your occupation? A. Street car-ring.
“Q. Conductor upon the street car last July? A. I was.
“Q. Were you acting as conductor on the morning of July 8th? A. I was.
££Q. Did you see this plaintiff, Mr. Pascale, that morning? A. Yes, sir.
££Q. Where did you first see him? A. Duesing’s store.
££Q. Where was it? A. At Duesing’s store.
££Q. Did he board your car there? A. Yes, sir..
£ £ Q. Tell the jury just what way that was done-how he got on the car. A. The car was stopped, and a passenger got off, and I gave the bell a pull to start the car, and Pascale was up along the car, and boarded the car while it was moving; as soon as he got on, he asked me what I started the car for before he got on; I told him I did not see him; he was not .at the place he said he was, and began arguing with me, swore he could break my face, and all such stuff, ;and finally called me a damned bastard and a s— of .a b — , and I took him by the coat and threw him off the car.
££Q. Did he swear any there? A. He did.
££Q. Were there any ladies on that car? A. There were ladies on the front of the car.
“Q. What did you do to him? A. Pushed him off the ear.
‘ ‘ Q. How did you take a hold of him ? A. Took him by, I think, the front of the coat.
‘ ‘ Q. And then where did your car go ? A. Passed on, never stopped.
Q. Oh, I guess that is all. ’ ’

There was some conflict in the evidence as to just what was said Jby DePascale to Lyttle. Two witnesses say that the language testified to by Lyttle wqs used by DePascale. DePascale himself denies having used any such language towards Lyttle, and in this he is corroborated by the testimony — negative in form — of at least two witnesses who were at the time, passengers on said car and heard the altercation between DePascale and the conductor Lyttle. At the conclusion of the evidence, and before argument, counsel for the railway company submitted to the court the following request:

“Defendant requests the court to instruct the jury, that in determining the question of compensatory damages to this plaintiff, they may consider, in mitigation thereof, the provocation brought about by the insulting words used by the plaintiff to defendant, the conductor, if they find such words were used. ’ ’

The court refused to give this instruction, and thereafter in its general charge, having theretofore withdrawn from the consideration of the jury the question of allowing exemplary damages, instructed the jury in part as follows:

“If this plaintiff used the words that are claimed here by the witnesses who have testified as to them, in relation to the names he called the conductor, it is no justification of the defendant railway company for' any injury to Ms person that may have accrued to the plaintiff by reason of being forcibly ejected from a moving carl It may have been a perfectly natural thing on the part of the conductor to have done it, in-ca§e these words were used, but under our law words of that Mnd are never a justification, conclusively, as to damages that may result from an assault . and battery following. * * * If this man, the. plaintiff, used the words attributed to him,, on the car, the conductor had the right to do either' one- of two things; one to arrest him and deliver Mm to the police authorities, or he had the right to eject, him from the car, but in ejecting he must first stop the ear, and then use only the necessary force to remove him; it would not justify him in causing the-injury to. the plaintiff, by removing him therefrom when the car was running, if the effect of that forcible ejection was to so injure him.”

To the refusal to charge as requested, and to the-charge as given, counsel for the railway company, at. the time excepted, and now assigns the action of the-court in that behalf, as error. The theory of the instruction asked by counsel for the railway company is, that in an action for personal tort, words of provocation spoken by the plaintiff should be taken and considered by the jury in mitigation of actual or compensatory damages, as well as in mitigation of exemplary or punitive damages. Whether or not. they may properly be so taken and considered and such effect' be given them, is the question here presented by this request to charge.' On this proposition the authorities are not in entire harmony. While, in perfect accord upon the proposition that mere oral provocation or.abusive language, is not a defense and will not of itself justify the offended party in assaulting, or in inflicting injury upon the person so offending, there is some conflict and contradiction in the decisions of the courts of last resort on the question whether mere provocative language can have the effect to mitigate or reduce compensatory damages, or whether it is to be limited in its office and effect to the mitigation and reduction of punitive damages, in those cases where punitive damages may be properly awarded. We think, that the better rule and the clear weight of authority, is in favor of the proposition that actual or compensatory damages, are not in any case, subject to mitigation, by proof of mere provocation. The malice of the defendant can never have the effect to increase the damages which a plaintiff may recover for actual pecuniary loss or injury, but such damages are wholly unaffected by either the presence or absence of malice on the part of the defendant. How then, or upon what principle can it reasonably be held that provocation on the part of the plaintiff, which does not in law amount to a justification, may mitigate such damages. To so hold would, in effect, be to allow such provocation to be used as a defense, and to thus permit by indirection that which could not be done directly. A leading case on this subject is Goldsmith v. Joy, 61 Vt., 488, in which numerous authorities, both English and American, are collected and reviewed. The learned judge who delivered the opinion in that case, in discussing the question whether words of provocation could properly be held to mitigate compensatory damages, says :

“If provocative words may mitigate, it follows that they may reduce the damages to a mere nominal sum and thus practically justify an assault and battery. But why under this rule may they not fully justify? If in one case, the provocation is so great that the jury may award only nominal damages, why, in another, in which the provocation is far greater, should they not be permitted to acquit the defendant and thus overturn the well settled rule of law, that words cannot justify an assault. On the other hand if words cannot justify they should not mitigate. A defendant should not be heard to say that the plaintiff was first in the wrong by abusing him with insulting words, and therefore, though he struck and injured the plaintiff, he was only partly in the wrong and should pay only part of the actual damages. ’ ’

The court in this case held that words of provocation would not justify an assault, nor could they be given or considered in mitigation of actual or compensatory damages. To the same effect are the following authorities: Osler v. Walton, 67 N. J. Law, 63; Prentiss v. Shaw, 56 Me., 427; Railroad Co. v. Barger, 26 L. R. A., 220; Wilson v. Young, 31 Wis., 574; Mangold v. Oft, 63 Neb., 397; Johnson v. McKee, 27 Mich., 471; Donnelly v. Harris et al., 41 Ill., 126.

Of the cases cited in the brief of counsel for plaintiff in error, which it is claimed hold a contrary doctrine, we need, only notice the case of Robison v. Rupert, 23 Pa. St., 523, inasmuch as the principle which governed the determination of that case, seems to have been the same that controlled the decisions in the other cases cited. That principle is this: that the doctrine of punitive damages should be mutual and reciprocal, and that because in cases of assault, punitive damages are recoverable from malicious defendants, that like treatment, by way of punishment, should be meted out to a plaintiff who provokes an assault upon himself, hy giving him, in damages, less than will compensate him for the actual loss or injury he has suffered. However much of reason there may he in this in good morals, we submit it is not good law. It is a recognized and established principle of the law of torts, founded as we think in sound reason, that the compensation awarded to one who is injured, either in person or property, hy the wrongful and unlawful act of another, shall at least be equivalent to, and should in all cases be commensurate with, the loss or injury actually sustained. It may not, therefore, properly he said, in any case where the law awards or permits the recovery of damages, that the damages recovered as compensation shall be for a part only of the loss or injury sustained by the plaintiff. Yet such would necessarily he the effect and result of the adoption of a rule that would permit mere provocation, which in law is neither a justification nor defense, to mitigate and reduce the amount of recovery to a sum less than full compensation. Certainly that which will not justify or warrant an assault, cannot in law, excuse the making of full compensation for the injury actually inflicted by such assault. In this case the jury was informed by the court, “that under the circumstances of the case he would not submit to them any question of punitive damages, or any question of damages in favor of the plaintiff for humiliation in being ejected from the car.” And in the charge as given, on the matter of damages, he submitted to the jury only the question of allowing to plaintiff his actual or compensatory damages. Inasmuch then as the plaintiff, if entitled to recover at all, was entitled to recover full compensation for the injury actually sustained by him, the instruction requested by the plaintiff in error was not a proper instruction and the refusal to-give it was not error. Neither do we think that in. the charge as given there was anything of which the plaintiff in error'may rightfully he heard to complain, for it would seem to us, upon the undisputed facts of this case, that the charge was quite as favorable to the railway company as it had the right to ask. It is further suggested in this case, although not very strenuously contended for or insisted upon by counsel for plaintiff in error, that DePascale was. without right to recover against the railway company, because the act of its conductor, which caused the injury complained of, was not within the scope of his employment. As to such claim, it is enough to-say, that it finds no warrant in the testimony in this-case, and if it did, such claim is fully met and answered, against the contention of plaintiff in error,, by the decisions of this court in the cases of Catering Co. v. Coit, 55 Ohio St., 398, and Business College Co. v. Lloyd, 60 Ohio St., 448. We find no error in this, record to the prejudice of the plaintiff in error and. the judgment of the circuit court is therefore

Affirmed.

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

Davis, J., dissents.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Hart v. Manahan.

      Personal judgment — Against married woman — Action on promissory note given under coverture with no separate estate — Effect of failure of record — Judgment voidable, when — Enforcement of judgment will not be enjoined, when — Court proceedings.

    A personal judgment against a married woman rendered in an action on her promissory note, executed and delivered in the year 1879, in which action she answered and plead her coverture, and that she owned no separate estate when the note was executed, the latter fact being traversed by reply, is not void because the record thereof fails to show that the court passed on the issue thus made, but such judgment is voidable merely; and if it has not been reversed or modified, but remains in full force and unsatisfied, its enforcement in any proper action or proceeding, or by any lawful process will not be enjoined, unless some equitable grounds of relief be shown, such as fraud, collusion, or coercion. McCurdy v. Baughman, 43 Ohio St., 78, approved and followed.
    (No. 8418
    Decided June 7, 1904.)
    Error to the Circuit Court of Erie county.
    The defendant in error brought suit in the court of common pleas of Erie county to enjoin the plaintiff in error from enforcing by civil action, a personal judgment which he recovered against her in the court of common pleas of Lucas county, Ohio, at its September term, in A. D. 1897, in the sum of $3,199.26 and costs of that action. The plaintiff in error joined issue on the petition for injunction, and on hearing of the case thus brought, the court of common pleas found for Hart, plaintiff in error, except as to a certain amount of interest, claimed to he due on the judgment, and dissolved the temporary injunction against enforcing the same except as to said interest. The plaintiff below, now defendant in error, appealed to the circuit court, and there obtained leave to file an amendment to the original petition and also what the pleader calls a supplemental petition. The substance of the petition as thus amended and supplemented, is, that on the fourteenth day of April, 1879, she, the plaintiff, executed and delivered to the defendant her promissory note for $986.47, payable three years after date with eight per cent, interest, payable annually, and that when the note was executed and delivered, she was a married woman, resident of Ohio, and that her coverture continued until the death of her husband in the year 1901; that on the nineteenth day of March, 1897, the defendant filed his petition against her, in the court of common pleas of Lucas county, Ohio, alleging therein the execution and delivery of said note, and praying for judgment thereon; that she answered the petition on the eleventh day of June, 1897, alleging that at the date of the note, she was a married woman" possessed of no separate estate, except what was then invested in a certain partnership, / all of which property had been sold by order of the court at about the date of the note, and the proceeds of the sale applied in payment of partnership debts, and that since that time, she has not been the owner of any separate estate, and prayed for a dismissal of the petition; and further that the defendant Hart, replied to the answer, denying its allegations, and also alleging that when the note was executed, she, Mrs. Manahan, was the owner of a separate estate, and that the note was given for the benefit of the same, and for the payment of which she intended to charge her separate property. She further alleged that at the September term of the Lucas county court, in September, 1897, tbe cause was tried on these issues, and that Hart recovered a judgment against her for the sum of $3,199.26 and costs of the action.
    The petition in this case, further alleges, that prior to the death of her husband in 1901, she owned no property, real or personal, which grew out of any separate estate at any time owned by her, but that at the death' of her husband and by his last will, she acquired certain property, which the judgment creditor, Hart, is seeking to subject to the payment of his judgment, in the supreme court of New York, in New York county, and also in Essex county, New Jersey, where he has brought suits for that purpose. A mistake in the computation of the interest entering into the original judgment in Lucas county, is alleged, and the further fact that the plaintiff, Mrs. Manahan, though formerly a resident of Lucas county, Ohio, where the judgment was obtained, is now a resident of East Orange, New Jersey, and that Hart, the judgment creditor, is a resident of Erie county, Ohio.
    It is further alleged that she cannot obtain full relief in the action brought against her in the supreme court of New York, because if she filed a cross-petition therein against Hart, she 'could not get service of legal process on him, and that as to the action pending against her in New Jersey, where she resides, she could only obtain relief sought by filing a bill in a court of equity and obtaining service of process on Hart; moreover, that if it were possible for her to obtain the desired relief in those courts, it would be at much expense in proving the laws of Ohio and otherwise establishing her defenses against the Ohio judgment. The plaintiff says she offers to pay Hart any amount the court may find justly due on the judgment.
    The prayer of the petition is for a finding of the true amount due on the judgment, and for a perpetual injunction against the further prosecution of the actions pending in the supreme court of New York, and in the circuit court of Essex county, New Jersey.
    Defendant Hart, in answer to the original petition, •denies that any mistake occurred in computing the amount of the judgment herein, but accepted “the offer to. pay any amount the court may find to be .justly due” on the judgment, and asks the court, to require the plaintiff to pay such sum into court, in •default of which, the petition be dismissed'. The answer denies that plaintiff was not the owner of separate estate when the note was executed and since, and denies the impracticability of obtaining adequate relief in the actions pending in the courts of New York and New Jersey. Other averments of the petition as amended and supplemented are denied, not necessary to be repeated here.
    For reply Mrs. Manahan points out the mistake in calculating the interest which entered into the judgment, and then says the amount she is willing to pay and offers to pay on the same is $25 as the value of her separate estate when the note was executed April 14, 1879.
    The circuit court made findings of fact which in the main, consist in copies of the record of the original action between the parties on the note in the court of common pleas of Lucas county, and which will be noticed in the opinion. ' The circuit court found for Mrs. Manahan and granted a perpetual injunction against Hart further proceeding in his actions in New York and New Jersey. The cáse is here on error to the judgment of the circuit court.

      Mr. Theodore Alvord and Messrs. Kelly & Merrill, for plaintiff in error,
    cited and commented upon the following authorities:

      Shelton v. Gill, 11 Ohio, 417; Rains v. Scott, 13 Ohio, 107; Fraser v. Seibern, 16 Ohio St., 624; Edwards v. Morris, 1 Ohio, 524; 11 Am. & Eng. Pl. & Pr., 1214, and cases cited in note 5; 1 High on Inj., sec. 138; Spelling on Ex. Relief, secs. 169-172; Monnett v. Sturges, 25 Ohio St., 384; Dunlap v. Wiseman, 13 Re., 244; 2 Disn., 398; Cramer v. Lepper, 26 Ohio St., 59; Darby v. Carson, 9 Ohio, 150; Coke Lit., 154, 289; 14 Am. & Eng. Enc. Law, 661; McCurdy v. Baughman, 43 Ohio St., 78; 63 O. L., 47; act of March 30, 1874; Ankeney v. Hannon, 147 U. S., 118; Morgan v. Perhamus, 36 Ohio St., 517; 1 Spelling on Ex. Relief, 38; 1 High on Inj., 47; Snook v. Snetzer, 25 Ohio St., 517; Pomeroy’s Remedies, secs. 18, 322, 452, 453; 1 Freeman on Executions, secs. 22, 128; Smith v. Frame, 2 Circ. Dec., 339; 3 C. C. R., 587; Phillips v. Graves, 20 Ohio St., 371; Levi v. Earl, 30 Ohio St., 147; Patrick v. Littell, 36 Ohio St., 79; Hill v. Myers, 46 Ohio St., 183; Society of Friends v. Haines, 47 Ohio St., 423; Card Fabrique Co. v. Stanage, 50 Ohio St., 417; Avery v. Vansickle, 35 Ohio St., 270; Cook v. Courtright, 40 Ohio St., 248; Campbell, Admx. v. Campbell, 2 Circ. Dec., 256; 3 C. C. R., 449; Dole v. Wilson, 39 Minn., 330; Bridge v. Samuelson, 73 Tex., 522; Marietta Iron Works v. Lottimer, 25 Ohio St., 621; Hydraulic Co. v. Chatfield, 38 Ohio St., 575; Story Eq. Juris., 899-900; Burlington, etc., Ry. Co. v. Thompson, 31 Kan., 180; Wilson v. Jo
      seph, 107 Ind., 490; Cole v. Cunningham, 133 U. S., 107; Thorndike v. Thorndike, 142 Ill., 450; Carson v. Dunham, 149 Mass., 52; Cole v. Young, 24 Kan., 435; Griffith v. Langsdale, 53 Ark., 71; Carroll v. F. & M. Bank, Harr. (Mich.), 197; Lockwood v. Nye, 15 Am. Dec., 76; Mead v. Merritt, 2 Paige, 402; Williams v. Ayrault, 31 Barb., 364; Burgess v. Smith, 2 Barb. Ch., 276; Dempsey v. Bush, 18 Ohio St., 376; Fort v. Litmer, 31 Ohio St., 217; Cincinnati v. Hafer, 49 Ohio St., 68; Rankin v. Hanna, 37 Ohio St., 117; Lockwood v. Barefield, 7 Ga., 393; Noble v. Merrill, 48 Me., 140; Lawton v. Perry, 40 S. C., 255; Harris v. Pullman, 84 Ill., 20; secs. 4959, 5372, 5374, Rev. Stat.

      Messrs. Marshall & Fraser, for defendant in error, and Mr. Edmund B. King, of counsel,
    cited and. commented upon the following authorities:

      Kocher v. Cornell, 59 Neb., 315; Filler v. Tyler, 91 Va., 458, 472; Crockett v. Doriot, 85 Va., 240; Pike v. Fitzgibbon, L. R. 17 Ch. Div., 454; Deakin v. Lakin, L. R. 30 Ch. Div., 169; King v. Lucas, L. R., 23 Ch. Div., 712; Roberts v. Watkins, 46 L. J. Q. B., 552; Pickens v. Kniseley, 36 W. Va., 794-801; Lee v. Cohick, 39 Mo. App., 672; Martin v. Roney, 41 Ohio St., 141; Bell v. McColloch, 31 Ohio St., 397; Hurlbut v. Wade, 40 Ohio St., 603; Ashley v. Rockwell, 43 Ohio St., 386; McConville v. Lee, 31 Ohio St., 447; Simmons v. Moore, 13-23 O. C. C., 11; Swan’s Pl. & Pr., 406; Groene v. Frondhof, 12 Re., 760; 1 Disn., 504; Schlemmer v. Rossler, 59 Ind., 326; (Law in England) Scott v. Morley, L. R., 20 Q. B. Div.; Drake v. Birdsall, 10 Re., 56; 18 W. L. B., 243; Edwards v. Edwards, 24 Ohio St., 402; Levi v. Earl, 30 Ohio St., 147; Phillips v. Graves, 20 Ohio St., 371; Cincinnati v. Cameron, 7 Re., 584; 4 W. L. B., 75; Cincinnati v. Frost, 8 Re., 107; 5 W. L. B., 684; Cramer v. Moore, 36 Ohio St., 347; Crofton v. Board of Education, 26 Ohio St., 571; Coe v. Railroad, 10 Ohio St., 372, 403; Carey v. Railroad, 2 Re., 85; 1 W. L. M., 338; Williams v. Urmston, 35 Ohio St., 296; Fallis v. Keys, 35 Ohio St., 265; Logan v. Thrift, 20 Ohio St., 62; State ex rel. v. McLain, 58 Ohio St., 313; Dunn v. Kanmacher, 26 Ohio St., 497; Darling v. Peck, 15 Ohio, 65, 71; Jenz v. Gugel, 26 Ohio St., 527; Allison v. Porter, 29 Ohio St., 136; Alexander v. Morgan, 31 Ohio St., 546; Avery v. Vansickle, 35 Ohio St., 270; Patrick v. Littell, 36 Ohio St., 79; Payne v. Thompson, 44 Ohio St., 192; Alsdorf v. Reed, 45 Ohio St., 653; Hill v. Myers, 46 Ohio St., 183; Society of Friends v. Haines, 47 Ohio St., 423; State ex rel. v. Trustees, 24 Ohio St., 603; Shuman v. Drayton, 8 Circ. Dec., 12; 14 O. C. C., 328; Norton v. Trustees, 4 Circ. Dec., 422; 8 O. C. C., 335; Petersine v. Thomas, 28 Ohio St., 596; Covington Bridge Co. v. Sargent, 27 Ohio St., 233; Babcock v. Camp, 12 Ohio St., 11; Hubbard v. Bugbee, 55 Vt., 506; Cleland v. Low, 32 Ga., 458; Condon v. Barr, 49 N. J. Law, 53; Sherwin v. Sanders, 59 Vt., 499; Craft v. Rolland, 37 Conn., 491; Snook v. Snetzer, 25 Ohio St., 516; Wilson v. Joseph, 107 Ind., 490; Keyser v. Rice, 47 Md., 203; Moton v. Hull, 77 Tex., 80; Teager v. Landsley, 69 Ia., 725; Hager v. Adams, 70 Ia., 746; Lore v. Truman, 10 Ohio St., 45, 54; Porter v. Wagner, 36 Ohio St., 471; Railroad Co. v. Hoffhines, 46 Ohio St., 643; Cleveland Ry. Co. v. Reid, 4 N. P., 127, 141; Maher v. Martin, 43 Ind., 314; Lackey v. Boruff, 152 Ind., 371; Thomas v. Passage, 54 Ind., 106; Putnam v. Tennyson, 50 Ind., 456; Austin v.
      Davis, 128 Ind., 472; Candy v. Coppock, 85 Ind., 594; Long v. Brown, 66 Ind., 160; Hetherington v. Hixon, 46 Ala., 297; Musick v. Dodson, 76 Mo., 624; Hayward v. Barker, 52 Vt., 429; Howard v. Simpkins, 70 Ga., 322; Wilcox v. Arnold, 116 N. C., 708; Kent v. Rand, 64 N. H., 45; Valentine v. Bell, 66 Vt., 280; Waters v. Bean, 15 Ga., 358; Watson v. Dunlap, 2 Cranch C. C., 14; Hickle v. Hickle, 3 Circ. Dec., 552; 6 C. C. R., 490; Buning v. Berterling, 7 Dec., 129; 5 N. P., 167; Raymond v. Breckenridge, 5 Dec., 156; 7 N. P., 377; Cook v. Spencer, 5 Re., 331; 4 Am. Law Rec., 665; 1 W. L. B., 73; Kurtz v. Murray, 7 Re., 330; 2 W. L. B., 122; Hinman v. Williams, 7 Re., 709; 4 W. L. B., 1079; Schultz v. Meyer, 6 Re., 1086; 10 Am. Law Rec., 312; 6 W. L. B., 674; Mathers v. Hewitt, 8 Re., 616; 9 W. L. B., 63; Westlake v. Youngstown, 62 Ohio St., 249; Ham v. Kunzi, 56 Ohio St., 531; Yocum v. Allen, 58 Ohio St., 280; Elliott v. Lawhead, 43 Ohio St., 171; Hershizer v. Florence, 39 Ohio St., 516; Logan v. Thrift, 20 Ohio St., 62; Ankeney v. Hannon, 147 U. S., 118; Quigley v. Graham, 18 Ohio St., 42; Glidden v. Taylor, 16 Ohio St., 509; Clark v. Clark, 20 Ohio St., 128; Koch v. Seifert, 9 Re., 411; 13 W. L. B., 15; Rogers v. Lynch, 44 W. Va., 94; Rood v. Willey, 58 Vt., 474; Walker’s Am. Law, sec. 104; act of April 3, 1861, 58 O. L., 54; act of March 23, 1866, 63 O. L., 47; act of March 30, 1871, 68 O. L., 48; Machir v. Burroughs, 14 Ohio St., 519; Tolman v. Hyndman Co., 9 Dec., 501; 6 N. P., 467; Hart v. Gregg, 32 Ohio St., 502; Sticken v. Schmidt, 64 Ohio St., 354; Code (1853), sec. 28; act of April 18, 1870, sec. 28, 67 O. L., 111; act of March 30, 1874, sec. 28, 71 O. L., 47; act of May 14, 1878, sec. 28, 75 O, L., 606, 667; act of January 21, 1879, sec. 28, 76 O. L., 3; secs. 4996, 4997, 5319, Rev. Stat. of 1880; act of March 20, 1884, 81 O. L., 65; Card Fabrique Co. v. Stanage, 50 Ohio St., 417; Dunkham v. Bruce, 9 Re., 682; 16 W. L. B., 291; Zanesville v. Fannan, 53 Ohio St., 605; Baldwin v. Kimmel, 16 Abb. Pr. Rep., 353; Thompson v. Sargent, 15 Abb. Pr. Rep., 452; Dickerman v. Abrahams, 21 Barb., 551; Mallett v. Parliom, 42 Miss., 921; Clinkscales v. Hall, 15 S. C., 602; Spearman v. Ward, 114 Pa. St., 634; Railroad Co. v. Hedges, 63 Ohio St., 339; Wilson v. Herbert, 41 N. J. Law, 454; Raymond v. Railway Co., 57 Ohio St., 271; Chapman v. Lee, 45 Ohio St., 356; Munger v. Jeffries, 10 Dec., 12; 7 N. P., 55; Smith v. Frame, 2 Circ. Dec., 339; 3 C. C. R., 587; Kilbreth v. Fosdick, 9 Re., 398; 12 W. L. B., 306; Fosdick v. Kilbreth, 13 W. L. B., 298; Railroad Co. v. Smith, 54 Ohio St., 562; Miehle Printing Press & Mfg. Co. v. Andrews-Jones Printing Co., 10 Circ. Dec., 1; 18 C. C. R., 158; Porterfield v. Butler, 47 Miss., 165; Spoors v. Coen, 44 Ohio St., 497; Trepagnier v. Williams, 4 La., 100; Copley v. Robertson, 6 La. An., 181; Peniston v. Somers, 15 La. An., 679; Long v. Brown, 66 Ind., 160; Hetherington v. Hixon, 46 Ala., 297; Musick v. Dodson, 76 Mo., 624; Story’s Eq. Jur., sec. 899; Pomeroy’s Eq. Jur., sec. 1371; Hawkins v. Ireland, 64 Minn., 344; Dinsmore v. Neresheimer, 32 Hun, 204; Dehon v. Foster, 4 Allen, 545; State v. Tiedemann, 69 Mo., 306; Darst v. Phillips, 41 Ohio St., 514; Thompson’s Appeal, 107 Pa. St., 559; Bushby v. Munday, 5 Madd. Rep., 297; Carron Iron Co. v. Maclaren, 35 Eng. L. & Eq. Rep., 37; Spelling on Inj., sec. 144; Stanton v. Embry, 46 Conn., 595; Cole v. Cunningham, 133 U. S., 107; Shourds v. Allison, 7 Dec., 25; 5 N. P., 54; sec. 79, Rev. Stat.
   Price, J.

We learn from the record that, when Mrs. Manahan commenced her suit for injunction in Erie county, there were two actions instituted by Hart pending against her, one in the supreme court of New York county, New York, and the other in the circuit court of Essex county, in the state of New Jersey. These actions were based on the judgment Hart had obtained against her in the court of common pleas of Lucas county, Ohio, which appears in the statement of the case. In connection with the actions on the judgment, attachment and garnishee proceedings were instituted by Hart to reach the proceeds of certain life insurance policies on the life of the husband of Mrs. Manahan, payable to her on his death, which occurred in New Jersey, their place of residence, in the month of November, 1901. The courts in which these actions are pending obtained jurisdiction in conformity to the law of the forum, as we may assume, but Mrs. Manahan, not desiring to litigate her rights in those jurisdictions, has called upon the courts of this state to administer relief on the grounds stated in her petition. And it must be observed that she has not chosen the court in Ohio, where the judgment was recovered and is of record, nor has she ever attempted to open up or modify the judgment on any; ground, but has entered a court of equity in another county, to enjoin the judgment creditor, Hart, from further prosecuting his suits in the eastern courts, within the jurisdiction of one which she now resides. She does not aver that she cannot be heard in those courts, but, that because Hart is a resident of Ohio she would be unable to obtain service on him, if she filed a cross-petition in the New York court, and would likewise fail of service, if she entered a court of •equity in Essex county, New Jersey, to enjoin the prosecution of the suit there.

"We are not required to inquire into the facilities which' the laws of either state afford to obtain service of process, on nonresidents, and we do not determine now, whether any such facilities exist. But our knowledge of the general rules of practice •obtaining in all courts of civil jurisdiction, leads us to believe, that in either of the eastern courts named, where the actions are pending, it is entirely practicable for the defendant in error, to plead the laws of Ohio in force when the note was executed and judgment thereon rendered, and that she was not, at •either date possessed of any separate estate, and ask the protection of those courts against the pursuing creditor, and thus make by way of defense a statement of the same material facts which she has made in the ease at bar, except perhaps the averment that the judgment on the note is excessive on account of a mistake in computing interest thereon. "What the holdings of those tribunals would be on such facts, we do not forecast or prejudge, but we have no doubt she can be heard there. And if, in the administration of the laws of those states, it shall seem that there is merit in her claims that should be recognized and protected, it may be done. It is for those courts to say. It is not a sufficient excuse to say that it is more convenient and less expensive for her to come to Ohio courts to make her contest. The suits brought by Hart against her in the eastern courts are based on the personal judgment rendered in Lucas county in 1897, upon which he may be asking new judgments accompanied by the attachment and garnishee proceedings. The circuit court has not found that there was any mistake .in the amount for which judgment was rendered on the note, and as that fact was sharply in issue, we must assume that, she failed to establish that part of her case. Hence, we see, .that aside from the question of mistake alleged in the case at bar, she is seeking to.relitigate the same issue made on the note in the original action in the court of common pleas of Lucas county, for there, the petition of Hart, in the usual short form provided by the code, set out her liability on the note. This was answered by Mrs. Manahan, setting up her coverture and the absence of separate estate when she gave the note and also at the time of pleading, and that therefore she was not liable. This was traversed by reply, except that she was a married woman, and it was charged therein that she not only had separate estate at those times, but that the obligation of the note related to the betterment or improvement of such separate estate. The parties went to trial on these issues in the Lucas county court, and the following is a copy of its judgment as contained in the findings of the circuit court in this case:

“This cause now coming on for hearing and a jury having been waived, was submitted to the court upon the petition of the plaintiff, and answer of Julia S. Manahan, and the reply of the plaintiff and the evidence; on consideration thereof the court finds on the issues joined for the plaintiff, and that the defendants Julia S. Manahan and Betsey M. Russell, are indebted to the plaintiff in the sum of $3,199.26, with interest thereon from the thirteenth day of September, 1897, at the rate of eight per cent, per annum. .
“It is therefore considered by the court, that the said William T. Hart recover from the said Julia S. Manaban and Betsey Russell, said sum of $3,199:26 and interest thereon from the thirteenth day of September, 1897, first day of term, at the rate of eight per cent, per annum.”

There is also a judgment for costs. The motion of Mrs. Manaban for new trial was overruled and she excepted. That court, in its judgment, it seems, ignore'd the issue as to the existence of a separate estate and its liability for the debt, and as shown, rendered a personal judgment in the usual form. It is a final judgment, and as found by the court below, is alive, in full force and unsatisfied. If error was ever prosecuted to reverse or modify it, the prosecution must have faile^Pfor it is not claimed that the judgment has been reversed or modified. Nor is it claimed that any payments have been made thereon.

In her suit to enjoin which we have under consideration, the judgment debtor attempts to collaterally impeach the judgment. No fraud or collusion in obtaining it is alleged, and as before stated, the question of excess through mistake, failed of proof in the court below. So if we concede that the proper judgment was not rendered on the note, yea, more, that it was error to render it, can the judgment debtor cure the error by this collateral attack? We think not. The judgment may be erroneous, but it is not void. To this effect is Callen v. Ellison, 13 Ohio St., 446.

The defendant in error had her day in court on the note, and if she did not obtain the judgment to which she was entitled on the issues, error, and not injunction, was her remedy.

It is claimed, however, that as to subsequently acquired property, such as the insurance money in this case, she may, by injunction, prevent the judgment creditor from subjecting it to the payment of this judgment. That depends upon the legal effect which attaches to a personal judgment. If its legal force is that it may be enforced by execution or proceedings in aid thereof, as such judgment could be enforced against a man or unmarried woman, then actions and proceedings in the eastern courts to reach the property of the judgment debtor cannot be legally enjoined, because such property, whenever and wherever acquired, is liable to be seized to satisfy the debt.

Counsel for defendant in error cite and comment on many cases to sustain his contentions, as to subsequently acquired property, many of which were cases where the judgments of courts against married women were under review in direct proceedings for their reversal, and are not authority to support a collateral attack.

The case most confidently relied on by defendant in error.is Ankeney v. Hannon, 147 U. S., 118. An examination of this case will serve as an answer to many other cases cited in the same subject. The action was commenced in the circuit court of the United States for the southern district of Ohio, and reached the Supreme Court of the United States by appeal. The suit was in equity to charge the separate estate of Mrs. Hannon, a married woman, with the payment of certain notes of which her husband was one of the makers, such estate having been acquired subsequently to their execution. At the time the notes were signed by her and her husband, she possessed a small separate estate, and in each of the notes she inserted the words: “Mrs. Clara M. Hannon signs this note with the intention of charging her separate estate, hoth real and personal.” The separate estate being of small value when the notes were executed, counsel for Ankeney desired to present by an amendment of the bill, bis right to ■charge after acquired property which she had inherited from her father, valued at $200,000. The court sustained a demurrer to the bill and the judgment was affirmed by the Supreme Court in Ankeney v. Hannon, supra. The substance of the holding relevant to the ease at bar, is, that in Ohio, the ■separate property of a married woman is not -charged either in law or equity, by her contracts executed previous to its existence.

In the case before us, Hart has a personal judgment, which he uses as a foundation for new actions against a debtor who is no longer a married woman and who therefore cannot be regarded as owning a separate estate, and while the property attached or g’arnisheed in the eastern courts has been acquired long subsequent to the execution of the note on which the personal judgment was rendered, it is her general estate.

Moreover, Hart’s actions which were enjoined in "the lower court, are not actions to charge the separate estate of Mrs. Manahan as in Ankeney v. Hannon, but actions at law proceeding against her as a feme sole, owning general estate, and for the purpose of obtaining satisfaction of such judgments as may be rendered on the Ohio personal judgment.

A further review of the numerous cases cited, we think unnecessary, for we have a direct precedent in our jOwn state, where this court decided the precise ■question we have here — McCurdy v. Baughman, 43 Ohio St., 78. A brief restatement of the facts of .that case is appropriate. Jno. Baughman and his wife, in January, 1871, executed and delivered to McCurdy a promissory note, payable to his order for $99.50, due one day after date, with interest. At the time the note was executed, and also when suit was brought and judgment entered, Mrs. Baughman was the wife of John Baughman, the other maker. Judgment by default was obtainedj against the makers before a justice of the peace. The husband died insolvent March 4, 1873. The coverture of Mrs. Baughman did not appear in the record in any form. In November, 1878, a transcript of the judgment was filed in the court of common pleas, by the judgment creditor and the clerk having issued an execution thereon, the sheriff levied the same upon the real estate of Mrs. Baughman. She thereupon commenced an action to enjoin the enforcement of such levy, execution and judgment. In her petition she alleged the foregoing facts which were admitted, and further that the debt for which the note was executed was the individual debt of her husband, and that she signed as his surety, that she was not indebted to McCurdy, nor was she the owner of any property, nor was she engaged as partner or otherwise in any mercantile business. * * * and that the real estate levied upon came to her since the death of her husband as heir of her father, and that she was ignorant of what she was signing when the note was given, and therefore the judgment and execution were void, and prayed for a perpetual injunction. The court of common pleas overruled a demurrer to the petition, and the defendant answered, denying, that the note was given for the individual debt of the husband, and denied 'that Mrs. Baughman signed as surety. The court heard the case on the petition and answer without evidence, and granted the injunction prayed for. This judgment was affirmed in the district court. The case was brought to this court on error, and on page 82 of the opinion, Okey, J., says: “The first question, namely, whether such judgment is void, is very distinctly answered in the negative by Callen v. Ellison, 13 Ohio St., 446;” and on page 85 it is said: “The judgment of the justice of the peace not being void, not having been set aside, and not having been reversed on error coram nobis, as it might have been, is, so long as its enforcement remains unrestrained, as valid and effectual as any other judgment whatever, and the real estate of Mrs. Baughman, inherited from her father since coverture ceased, must be subjected to its payment, unless the sale be enjoined on the sole ground that she was a married woman when'the judgment was rendered. But such fact of itself, under the circumstances of this case as we must now regard them, affords no ground of equitable interference; nor will a court of' equity interfere unless the facts bring the case within such ground of relief as fraud, collusion, or coercion. * * #.”

The only substantial point of difference between, the facts of that case and the case at bar, is, that in the suit on the note against Mrs. Manahan, she disclosed by answer that she was a married woman without a separate estate when the note was executed and also when she answered.

In McCurdy v. Baughman the record of the justice was silent upon the subject. But the fact that Mrs. Manahan was a married woman without estate, did not render a judgment void which ignored the marriage relation and absence of a separate estate. At most, such judgment was voidable. Hence,, the force of McCurdy v. Baughman, supra, as authority in the case before us.

Shortly after the rendition of the judgment assailed, Mrs. Manahan and her husband left Lucas, county and removed to Essex county, New Jersey. She left behind her an unsatisfied personal judgment against her. By the death of her husband she-became entitled to insurance money in a large-amount, which Hart seeks to subject to the payment-of his claim. It is not unlawful for him to pursue-his rights in the eastern courts, and we perceive no sound reason to prohibit it on a suit instituted by her in the courts of this state.

In the brief of counsel for defendant in error,, much care and learning have been devoted to a review of the changes in our statutes relating to the rights of married women, and the adjudications thereunder. But they are only important to indicate what judgment should have been rendered on. the note, and if this was a proceeding in error to reverse that judgment, the authorities would be-forcible. But we have no such case, but rather an attempt to collaterally impeach and destroy all value of the judgment. The integrity of judgments, should not be regarded so lightly.

We are unable to find any equity in her case, and. on the facts found by the circuit court, we reverse-the judgment and dismiss the petition.

Judgment reversed. -

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


author: Shauck, J.

text:
    Miller et al. v. Crawford et al.

      Prevention of fraud in purchase and sale of merchandise — Discrimination among creditors — Invalidity of act of April 4, 1902 — Constitutional law.

    The act of April 4, 1902, entitled, “An act to prevent fraud in the purchase, disposition or sale of merchandise” (95 O. L., 96), is repugnant to the first article of the constitution because it places an unwarrantable restriction upon the right of the individual to acquire and possess property, and because it contains a forbidden discrimination in favor of a limited class of creditors.
    (No. 8706
    Decided June 7, 1904.)
    Error to the Circuit Court of Stark county.
    Plaintiffs in error filed their petition in the court of common pleas, alleging that Tilton had sold and Crawford purchased, in bulk, a stock of merchandise, without conforming to the requirements of the act of April 4, 1902, entitled, “An act to prevent fraud in the purchase, disposition or sale of merchandise.” (95 O. L., 96.)
    By the plaintiffs in error it is admitted that the petition did not state a cause of action independently of the provisions of that act. By the defendants in error it is admitted that a cause of action was stated if that act is valid. The act provides as follows:
    “Section 1. A sale, or other disposition of an entire stock of merchandise in bulk, or any portion of a stock of merchandise, otherwise than in the ordinary course of trade, and in the regular and usual prosecution of the seller’s business, shall be fraudulent and void as against the creditors of the seller unless the seller at least six days before such a sale, or other disposition shall:

      “First. Deliver to the purchaser a full and correct statement of the names and places of residence, or places of business of each of his creditors.

      “Second. The amount due each.

      “Third. Also deliver to the purchaser true and correct books, or original invoices from which the cost price of the merchandise sold can be ascertained.

      “Fourth. And also unless the seller and the purchaser together, at least six days before the sale, or other disposition make a .full detailed inventory, showing the quantity and the cost price to the seller of each article to be included in the sale, or other disposition.

      “Fifth. And unless such list of creditors, books, invoices and inventory be retained by the purchaser for at least six months after the sale, or other disposition, and be exhibited on demand to each creditor of said seller.

      “Sixth. And unless the purchaser shall at least five days before the sale, or other disposition, in gopd faith, give notice of such proposed sale, or other disposition and said cost price of the merchandise proposed to be sold, or otherwise disposed of, and the price to be paid therefor by the purchaser to each of the seller’s creditors of whom the purchaser obtains the knowledge by the list aforesaid, or can, by the exercise of reasonable diligence gain knowledge — such notice to be given either personally or by registered letter, properly stamped, directed and • mailed. ’ ’
    Section 2 prescribes penalties against the seller for non-compliance with the provisions of the first ■ section. Section 3 prescribes like penalties against the purchaser for such non-compliance;
    In the court of common pleas a general demurrer' to the petition was sustained, and a final judgment was rendered for the defendants. That judgment was affirmed in the circuit court.

      Messrs. Clark & Clark; Messrs. Shields S Pome■rene and Messrs. White, Johnson, McCaslin & Cannon, for plaintiff in error,
    cited and commented upon the following authorities:
    Louisiana, 1896, Acts, No. 94, p. 137; Minnesota, 1899, Gen. Laws, c. 291, p. 357; Oregon, 1899, B. & C. Ann. Codes & Statutes, c. VII.; Maryland, 1900, Laws, c. 579, p. 907; Indiana, 1901, Acts, c. 220, p. 505; 1903, Amended Acts, c. 153, p. 276; Washington, 1901, Laws, c. 109, p. 222; Wisconsin, 1901, Laws, c. 463, p. 684; Tennessee, 1901, Acts, c. 133, p. 234; Utah, 1901, Laws, c. 67, p. 67; New York, 1902, Session Laws, vol. ii. c. 528, p. 1249; Massachusetts, 1903, Acts, c. 415, p. 389; California, 1903, Stat. & Amend, to Codes, c. 100; Colorado, 1903, Session Laws, c. 110, p. 225; Connecticut, 1903, Pub. Acts, c. 72, p. 49; Delaware, 1903, Laws, c. 387, p. 748; Georgia, 1903, Laws, c. 457, p. 92; Virginia, 1903, Acts, c. 304, p. 518; Idaho, 1903, Session Laws, H. B. 18, p. 11; Oklahoma, 1903, Session Laws, c. 30, p. 249; McDaniels v. Shoe Co., 30 Wash., 549; Matter of Farrell, 9 Am. Bank. Rep., 341; In re Davis & Co., 10 Am. Bank. Rep., 189; State v. Artus, 34 So. Rep. (La.), 596; Hart v. Raney, 93 Md., 432; Fisher v. Herrmann, 95 N. W. Rep. (Wis.), 392; Neas v. Borches, 109 Tenn., 398; Senior v. Ratterman, 44 Ohio St., 677; Probasco v. Raine, Auditor, 50 Ohio St., 378; State ex rel. v. McCann, 21 Ohio St., 198; Cooley Const. Lim. (7 ed.), 184; Id., 236; Powell v. Pennsylvania, 127 U. S., 678; State v. Hogan, 63 Ohio St., 202; Pacific Expo. Co. v. Seibert, 142 U. S., 339; Soo Hing v. Crowley, 113 U. S., 703; Barbier v. Connolly, 113 U. S., 27; Railway Co. v. Mackay, 127 U. S., 205; McAunick v. Railroad Co., 20 Ia., 338; State v. Loomis, 115 Mo., 307; Railway Co. v. Ellis, 165 U. S., 150; Orient Ins. Co. v. Daggs, 172 U. S., 557; Nicol v. Ames, 173 U. S., 509; Am. Sugar Ref. Co. v. Louisiana, 179 U. S., 89; Railroad Co. v. Matthews, 174 U. S., 96; State v. Broadbelt, 89 Md., 565; art 1, sec. 20, Const. Ore.; In re Oberg, 21 Ore., 406; Clark’s Est., 195 Pa. St., 520; State v. Wagner, 77 Minn., 483; Va. Devel. Co. v. Crozer I. Co., 90 Va., 126; Gano v. Railway Co., 114 Ia., 713; Demoville v. Davidson Co., 87 Tenn., 214; Anderson v. Brewster, 44 Ohio St., 584; Thorpe v. Railroad Co., 27 Vt., 140; Railroad Co. v. Sullivan, 32 Ohio St., 158; Marmet v. State, 45 Ohio St., 70; 1 Tiedeman Police Pow., 263; Dent v. West Virginia, 129 U. S., 114; Yick Wo v. Hopkins, 118 U. S., 356; Frisbie v. United States, 157 U. S., 160; Lowell v. Boston, 111 Mass., 454; Commonwealth v. Intox. Liquors, 115 Mass., 153; Commonwealth v. Bearse, 132 Mass., 542; People v. West, 106 N. Y., 293; Wynhamer v. People, 20 Barb., 567; Mangan v. State, 76 Ala., 60; Harbison v. Knoxville Iron Co., 103 Tenn., 421; Knoxville Iron Co. v. Harbison, 183 U. S., 13; Beer Co. v. Massachusetts, 97 U. S., 25; Holden v. Hardy, 169 U. S., 366; Munn v. Illinois, 94 U. S., 113; Bertholf v. O’Reilly, 74 N. Y., 509; 4 Black. Com., 162; Miller v. State, 3 Ohio St., 475; National Ins. Co. v. Brobst, 56 Ohio St., 728; Life Ins. Co. v. Warren, 59 Ohio St., 45; Insurance Co. v. Leslie, 47 Ohio St., 409; State v. Gardner, 58 Ohio St., 599; Sanders v. Keber, 28 Ohio St., 630; Weil v. State, 46 Ohio St., 450; 1 Tiedeman Police Pow., 260; Freeman’s note, 25 Am. St. Rep., 887; Patterson v. Kentucky, 97 U. S., 506; Turner v. Maryland, 107 U. S., 38; Gibbons v. Ogden, 9 Wheat., 119, note; Emert v. Missouri, 156 U. S., 296; Railroad Co. v. Patterson Tobacco Co., 169 U. S., 311; Plumley v. Massachusetts, 155 U. S., 461; Capital City Dairy Co. v. Ohio, 183 U. S., 238; Crowley v. Christensen, 137 U. S., 86; Gundling v. Chicago, 177 U. S., 183; State ex rel. v. Capital City Dairy Co., 62 Ohio St., 350; State v. Moore, 104 N. C., 714; Truss v. State, 13 Lea (Tenn.), 311; Leep v. Railway Co., 58 Ark., 407; Brechbill v. Randall, 102 Ind., 528; Hawthorne v. People, 109 Ill., 302; Opinion of the Justices, 163 Mass., 589; Eaton v. Kegan, 114 Mass., 433; People v. Wagner, 86 Mich., 594; State v. Wagener, 77 Minn., 483; Commonwealth v. Vrooman, 164 Pa. St., 306; State ex rel. v. Ackerman, 51 Ohio St., 163; Dugger v. Insurance Co., 95 Tenn., 245; People v. Cannon, 139 N. Y., 32; Ex parte Byrd, 84 Ala., 17; New Orleans v. Stafford, 27 La. An., 417; Slaughter House Cases, 16 Wall., 36; Cincinnati v. Steinkamp, 54 Ohio St., 284; Salem v. Maynes, 123 Mass., 372; State v. Johnson, 114 N. C., 846; Considine v. Insurance Co., 165 Mass., 462; Attorney General v. Williams, 174 Mass., 476; People v. Arensberg, 105 N. Y., 123; People v. Hawkins, 157 N. Y., 1; Powell v. Commonwealth, 114 Pa. St., 265; State v. Addington, 12 Mo. App., 214; s. c. 77 Mo., 110; McAllister v. State, 72 Md., 390; Pierce v. State, 63 Md., 592; Waterbury v. Newton, 50 N. J. Law, 534; State v. Marshall, 64 N. H., 549; Butler v. Chambers, 36 Minn., 69; Weideman v. State, 56 N. W. Rep., 688; Commonwealth v. Seiler, 20 Pa. Sup. Ct., 260; Weller v. State, 53 Ohio St., 77; People v. Girard, 145 N. Y., 105; People v. Cipperly, 37 Hun, 319; aff., 101 N. Y., 634;
      Commonwealth v. Waite, 93 Mass., 264; Commonwealth v. Farren, 91 Mass., 489; Health Dept. v. The Rector, 145 N. Y., 32; Titusville v. Brennan, 143 Pa. St., 642; Levy v. State, 68 N. E., 172; Railway Co. v. Solan, 169 U. S., 133; Railroad Co. v. Haber, 169 U. S., 613; Railroad Co. v. McCann, 174 U. S., 580; Railroad Co. v. Fuller, 17 Wall., 560; Cobble v. Farmers’ Bank, 63 Ohio St., 528; State v. Dreher, 55 Ohio St., 115.

      'Mr. James A. Rice, for Walter J. Crawford, one of the defendants in error,
    cited and commented npon the following authorities:

      McDaniels v. Connelly Shoe Co., 71 Pac. Rep. (Wash.), 37; Prentice on Police Powers, 10; Henderson v. Mayor, 92 U. S., 259; Chy Lung v. Freeman, 92 U. S., 275; People v. Comp., Gen., Transatlantique, 107 U. S., 59; 2 Kent, 338; 22 Am. & Eng. Ency. Law (2 ed.), 938; People v. Arensberg, 103 N. Y., 399; Forster v. Scott, 136 N. Y., 577; 1 Tiedeman, 8; Id., 13; Lawton v. Steele, 152 U. S., 133; Mugler v. Kansas, 123 U. S., 623; Scott v. Donald, 165 U. S., 91; Smyth v. Ames, 169 U. S., 527; Henderson v. New York, 92 U. S., 259; Railroad Co. v. Husen, 95 U. S., 465; N. O. Gas Light Co. v. Light & Heat, etc., Co., 115 U. S., 650; Walling v. Michigan, 116 U. S., 446; State v. Railway Co., 68 Minn., 381; Wis. Keeley Inst. Co. v. Milwaukee Co., 95 Wis., 153; Ex parte Jentzsch, 112 Cal., 468; 1 Tiedeman, 521; Cooley Const. Lim. (6th ed.), 704; Austin v. Murray, 16 Pick., 121; Colon v. Lisk, 153 N. Y., 188; People v. Warden, 157 N. Y., 116; Ruhstrat v. People, 185 Ill., 133; Pumpelly v. Green Bay etc., Co., 13 Wall., 166; 10 Am. & Eng. Ency. Law (2 ed.), 299; Hutton v. City of Camden,
      39 N. J. Law, 122; Frorer v. People, 141 Ill., 171; St. Louis v. Hill, 116 Mo., 527; In re Jacobs, 98 N. Y., 98; Janesville v. Carpenter, 77 Wis., 288; State v. Julow, 129 Mo., 163; People v. Otis, 90 N. Y., 48; St. Louis v. Dorr, 136 Mo., 370; People v. Hawkins, 157 N. Y., 1; Palmer & Crawford v. Tingle, 55 Ohio St., 423; Pritchard v. Norton, 106 U. S., 124; Pennsylvania Co. v. McCann, 54 Ohio St., 10; Templeton v. Kraner, 24 Ohio St., 554; Cooley Const. Lim. (5 ed.), 430; 10 Am. & Eng. Ency. Law (2 ed.), 293; East Kingston v. Towle, 48 N. H., 57; Railroad Co. v. Payne, 33 Ark., 816; Risser v. Hoyt, 53 Mich., 185; State v. Billings, 55 Minn., 467; Zeigler v. Railroad Co., 58 Ala., 594; State v. Beswick, 13 R. I., 211; Cooley (5 ed.), 453; Potter’s Dwarris, 472; Railroad Co. v. Simonson, 57 L. R. A. (Kan.), 765; Ervine’s Appeal, 16 Pa. St., 256; In re Davis & Co., 13 O. F. D., 563; O. L. Rep., vol. 1, No. 14, p. 193; 10 Am. Bank. Rep., 189.
   Shauck, J.

The judgment of the circuit court is said to he correct in view of the constitutional guaranties of the right of the individual to acquire, possess and enjoy property with all of its incidents and attributes, and the duty of the judicial department to shield the right from legislative encroachment. By counsel for the plaintiff in error it is said to be erroneous because it denies effect to a legitimate exercise of the police power by the legislature. The principles to be applied to the subject have been often stated with clearness and authority, whatever difficulty may be experienced in their application to particular acts of legislation. To those principles it is necessary to recur, since legislation of the character of that which is here questioned is of recent origin and the acts considered in the cases to which our attention has been called and the constitutional provisions involved present substantial differences from those which are involved in the present inquiry. Originality in the statement of those principles would neither serve convenience nor promote accuracy. One of the guaranties invoked and its only limitation are concisely stated in the nineteenth section of the bill of rights: “Private property shall ever be held inviolate but subservient to the public welfare. ’ ’ Attention is also invited, and it is due, to the familiar provisions of the first and second sections of the bill of rights confirming the right of “acquiring, possessing and protecting property,” and declaring the equal protection and benefit of government to be one of the purposes for which it is instituted. The terms of the instrument compel the conclusion often stated that the holding of private property, its acquisition and its use are subservient only to the welfare of the public. While it is not required that every act which restricts the enjoyment of property must affect every member of society, it is required that every such act must be founded upon a reason of a public nature and that the act must affect all who are within the reason for its enactment. The conception that the legislature has creative power, by whose general ■exercise it may confer rights upon some without ■despoiling others, being without foundation in reason, is without rational limitation. That conception appears as the prompting of all legislation which is solicited and obtained by classes to aid them in the rivalries of business. Whatever may be thought of some legislation in which there is general acquiescence, no one would considerately say that these provisions of the constitution permit legislative participation in such rivalries. It would be difficult, it might he impossible, to reconcile all the reported cases concerning the extent to which the sufficiency of reasons for legislative discrimination may be reviewed by the courts, but from numerous discussions of the subject some propositions may be deduced with confidence. For every restriction upon the enjoyment and use of property there must be substantial reason of a public character, and in order that the provisions of the constitution may have their intended operation, the conclusion of the general assembly in that regard is subject to review by the courts. If a restriction is placed upon the alienation of property, it must be for the benefit of either the entire body of the people, or, at least, of all who are within the reason of the restriction. A distinction-sometimes thought important between property in lands and in chattels upon the ground that the former is derived from the state, will at least justify the conclusion that legislative control over chattels is not greater than over lands. The express limitations which the constitution imposes upon the legislature apply to the exercise of powers which are truly legislative in character, and since none but legislative power is committed to it, the exercise of that power is also confined within all the limitations which are suggested by its nature. That this act is in conflict with some of these assurances to the owners of property will become obvious upon analysis of its provisions. It in terms makes every sale in bulk of stocks of merchandise absolutely void, unless the parties to the transaction comply with every one of the requirements stated severally in the six subdivisions of the first section. Even those requirements which are made of the seller are impossible of performance in every instance when he does not know who are all of his creditors and the precise amount of his indebtedness to them. The act by its terms took effect upon its passage and it applies to every stock of merchandise however long it or any portion of it may have been in the seller’s possession. And. the third subdivision requires of him the delivery to-the purchaser of correct books or original invoices-from which the cost price of the merchandise soletean'be ascertained, although he may have neither’ data nor recollection to make compliance practicable.. The fourth subdivision assumes to impose upon both the seller and the purchaser the indispensable duty of making “a full .detailed inventory, showing the-quantity and the cost price to the seller of each article to be included in the sale, or other disposition.” Circumstances which would frequently render it impossible for the seller to comply with this, requirement in cost price have already been suggested, and nothing more than a suggestion can be-necessary. As to the purchaser it is quite obvious that he would not, in any case, have or be able to-gain the knowledge which would be indispensable to-compliance on his part with this requirement. Nor is the act relieved by the sixth subdivision which requires that the purchaser shall at least five days before the sale give notice of such proposed sale, or other disposition, and the cost price and the price to be paid therefor by the purchaser, to each of the seller’s creditors of whom the purchaser obtains the-knowledge by the list furnished by the seller, or can, by the exercise of reasonable diligence, gain knowledge Grammatically construed, this subdivision requires the purchaser to give notice to creditors of the seller of whom he can gain knowledge by the exercise of reasonable diligence, though they may not. be named in tbe list furnished. It does not abate the' force of the previous requirement that the list of the seller’s creditors must be complete, and when it is-observed that the act makes all such sales fraudulent- and void unless all of the six requirements are met, it becomes obvious that compliance with the -sixth requirement would not cure a failure to comply with any of the others.

Applying the familiar and unquestioned rule that-the validity of an act is to be determined by its practical operation and not by its title or declared purpose, this act, under the guise of preventing fraud in such sales, prohibits them altogether, and thus places, upon the enjoyment of property an important restriction which no public interest requires and which the constitution therefore forbids. One who challenges the soundness of this conclusion should be prepared to maintain the validity of an act expressly forbidding sales of stocks of merchandise .in bulk. By the act the legislature has attempted to discriminate unwarrantably among debtors and creditors. It does, in terms, apply to sales in bulk by wholesale as well as by retail dealers in merchandise. But conceding, for present purposes, that when reasons for legislative discrimination exist, their sufficiency is to-be determined finally by the legislature, no reason is-suggested by counsel, nor does any occur to us for a legal discrimination in the relation of debtor and creditor between those who come into that relation with respect to the purchase and sale of merchandise and those between whom it exists with respect to chattels in general. Although the act applies to all the creditors of the seller it applies to those only who are creditors of the owner of a stock of merchandise, and thus an unreasonable burden is imposed upon a limited class of debtors for the supposed benefit of a limited class wbo are their creditors. The fact that within six years the legislatures of twenty states have passed acts upon this subject is urged by counsel for the plaintiff as indicative of unusual and increasing frauds in sales of this character. If inquiry into the genesis of this legislation were practicable, it' might show that it has resulted from the activity of a class of creditors to secure advantages not offered by the law to creditors generally because not thought to be consistent with the public interests. The course of adjudication and legislation upon the subject indicates that the vendor’s lien upon lands though existing in favor of all vendors, is no longer regarded with favor because of its tendency to mislead general creditors of the purchaser with respect to his solvency. The present act, considering that the benefited creditors are chiefly those from whom the seller has purchased, in effect creates a vendor’s lien upon a limited class of chattels without any public reason for the discrimination.

A conclusion in favor of the validity of the act is not aided by suggested analogies. The act requires no notice to be lodged with a public officer by the creditor of the seller, stating the amount of the claim and requiring that a proposed purchaser shall b,e charged with constructive knowledge of notice so given. The purpose in view of the enactment of this statute bears no resemblance to that of statutes upheld in numerous cases decided in this court forbidding the use of ingredients in articles of food which are used for the sole purpose of deceiving the public as to their true character, nor to those statutes which utterly interdict the use of that whose sole purpose may be the accomplishment of fraud.

If the reasoning of the courts in the cases cited, affirming the validity of statutes upon this genera! subject, were accepted as sound, the cases would be plainly distinguishable by essential differences in the provisions of the statutes, and, in one instance at least, by a difference in the constitutional provisions involved. In addition to these differences there appears, in at least one of the cases cited, a concession to the view that constitutional limitations are but admonitions to the legislative department. That upas was cut down a century ago, but now and then a sprout rises from its ancient root. Consideration of other objections to the act does not appear to be necessary.

Judgment affirmed.

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


author: Davis, J.

text:
    Martin v. The State of Ohio.

      Discharge of fire-arms and unintentional hilling — Not manslaughter, when — Section 6962, Revised Statutes.

    1. One who discharges fire-arms on his own premises is not guilty of a violation of section 6962, Revised Statutes.
    2. One who unintentionally shoots and kills another by discharging fire-arms on his own premises is not thereby guilty of manslaughter.
    (No. 8346
    Decided June 7, 1904.)
    Error to the Circuit Court of Jackson county.
    The plaintiff in error was indicted and tried in the court of common pleas for murder in the second degree and was convicted of manslaughter. On the-trial the evidence tended to show that on the night prior to the alleged murder some boys were making' a noise with tin cans through the bottom of which a string had been run and then resined. It was in the woods near the house where the plaintiff in error-lived. He and his father, not knowing what the-noise was, went in that direction taking their gun with them. The boys ran away, and in a conversation that evening, the plaintiff in error, being-laughed at for taking his gun and going out after a noise made by a lot of boys, stated that if the boys-did not have any more sense than to make such a noise in the night, he did not have any more sense-than to shoot, or words similar to those. The next-night, to-wit, the twenty-seventh of August, 1902,. about half past seven o ’clock standard time, the deceased and another boy took a can and went to the top of a hill immediately south of where the plaintiff' in error lived, but had made no noise before the time the shot was fired. Two other boys were making a noise with cans in another direction from the-house of Martin, when the defendant stepped into the house and procured a rifle, and as he stepped out. his father said to him, in substance, be careful, you might shoot some one. Martin answered that he would shoot into the tree tops. He stepped out into-the yard, and for the purpose of frightening the perpetrators of the noises, held the gun up in the air- and fired it toward the hill top, and the ball struck and killed Heber Farrar, at a distance of about two ' hundred yards. Afterwards, when Martin learned that Farrar had been shot, he went to where he was, took his head in his arms, and admitted that he fired the shot that killed him. There never had been any trouble between them. There was no moonlight, but ■starlight. There was no dwelling house in the direction in which the shot was fired, although there were three dwelling houses in other directions within gun shot of the point where Martin stood when he fired. The circuit court affirmed the judgment of the court of common pleas.

      Mr. Elmer C. Powell and Mr. R. R. Lively, for ■plaintiff in error.
    We insist:—

      First. That under the provisions of this statute Martin is not guilty of manslaughter simply because he discharged a fire-arm in his own door yard and thereby accidentally killed Heber Farrar.

      Second. That the statute as originally enacted, 71 O. L., 148, sec. 4, did not make the discharge of fire-arms upon a man’s own premises penal.

      Third. That it was not the intention of the codifying commission appointed to revise the statutes, to give a different meaning to the statute by changing the language, or by transposing the words.

      Fourth. That if the commission did so intend and the statute must be construed as claimed by the state, it is unconstitutional because in conflict with ■sections 1 and 4 of the bill of rights, if it is not un■constitutional giving it the construction we claim for it. Johnson v. State, 66 Ohio St., 59.
    Though penal statutes are strictly construed, yet legal words are used in their recognized legal sense, and the adoption in a statute of a common law definition is with its settled construction. Turner v. State, 1 Ohio St., 422; Mitchell v. State, 42 Ohio St., 383.
    It is apparent that the codifiers understood that these grounds if appurtenant to, were a part of the messuage; and in fact, in law a part of the dwelling house.
    If this statute can be so construed as to avoid absurdities, injustice and great inconvenience, such construction must be given. Railway v. Jump, 50 Ohio St., 651; Moore v. Given, 39 Ohio St., 661; Black Interp. of Laws, 100, 102, 103; Burgett v. Burgett, 1 Ohio, 469; Moore v. Vance, 1 Ohio, 1; Hutcheson v. McNutt, 1 Ohio, 16; Wilber v. Paine, 1 Ohio, 251; Spiedel Grocery Co. v. Armstrong, 4 Circ. Dec., 498; 8 C. C. R., 489; Black Interp. Laws, p. 170.
    Let us grant for the sake of argument that the words “any other ground” are not qualified by the words “the property of another.” What does the word “ground” mean when taken in connection with the specific and particular grounds mentioned in the statute? The rule is that when general words follow specific words, they are to be restricted in their meaning to the same kind or class as are the specific words. Endlich on Interp. Stat., sec. 405; Black Interp. of Laws, sec. 63; Rutherfoord v. Railroad, 35 Ohio St., 559; Lane v. State, 39 Ohio St., 312; Myers v. Seaberger, 45 Ohio St., 234; Shultz v. Cambridge, 38 Ohio St., 659; State v. Liffring, 61 Ohio St., 39.
    If, in construing this statute, the general rule is to be applied, then the words “any other ground” must mean any other ground of the same general kind and character as those specifically mentioned. It is conceded that the ground upon which Martin stood was his own door yard, and hence, could not be in any sense, appurtenant to the dwelling house of another person, nor was it of the same character, as the grounds mentioned in the act.
    Looking then to the title, ánd to the original act itself, we find that it was passed for the purpose of protecting landowners from the trespasses of others upon their enclosed lands. State v. Kelly, 54 Ohio St., 166.
    Punctuation should he considered when other means of construction fail. Albright v. Payne, 43 Ohio St., 8; Trustees v. White, 48 Ohio St., 577. It is apparent that if the words, “property of another” had been intended to qualify and limit “dwelling house ’ ’ alone, there would have been no comma after the words “dwelling house.” Conger v. Barker, 11 Ohio St., 1; 44 Ohio St., 249; Black Interp. of Laws, p. 368.
    The original statute may be examined to ascertain the intention when a statute is susceptible of two constructions. Black on Interp. of Laws, 365; Heck v. State, 44 Ohio St., 536.
    It will be observed that the penalty is the same now as in the original. An intended change in meaning would probably have required a change in penalty. . .
    Assuming, as is claimed, that the codifying commission has undertaken to change the intent and meaning of this statute, .we maintain that the legislature gave it no power so to do.
    An examination of the statute giving it authority to codify the laws will at once reveal this fact. State v. Stout, 49 Ohio St., 270.
    If the statute is to receive the construction claimed by the state such construction makes it clearly unconstitutional, because in conflict with the rights guaranteed by sections 1 and 4 of the bill of rights.

      Mr. A. E. Jacobs, prosecuting attorney, for defendant in error.

      It is the claim of the defendant in error in this ■case:

      First. That the testimony in the case discloses that the plaintiff in error, William Martin, should be held responsible to the state of Ohio for the commission of the crime of murder in the second degree, as charged in the indictment.

      Second. The testimony of the state discloses that within gunshot of the point where William Martin stood when he discharged the fire-arm which killed Heber Farrar, there were three or more occupied dwelling houses, the property of persons other than the said William Martin, and under the charge of the court which recognized the law set forth in section 6962, Revised Statutes. There can be no escape from the crime of manslaughter of which the jury found the plaintiff in error guilty in this case.
    This statute protects human life from the indiscretion of one who recklessly discharges a fire-arm without just cause or excuse at a place which would necessarily jeopardize that human life. It would indeed be a drawn interpretation of this statute to contend for a moment that it would be a crime to discharge a fire-arm in an orchard within gunshot of an occupied dwelling house, and at the same time excuse the.culprit for the discharge of the same firearm in a wheat field the same distance away on the opposite side of the same dwelling house.
    This is in conformity with the constitution of the state of Ohio, article 1, section 1:
    It is apparent that “the property of another” modifies “dwelling house,” the object in the statute being to protect the L ome and the lives in the dwelling house, regardless of where the culprit may stand when the overt act is committed.

      It would indeed be a waste of legislative ammunition to say that the home shall be protected from gunshots fired from lawns, pleasure grounds and orchards belonging to some person other than the culprit, and permit the same act from the same man on the opposite side of the same dwelling house in a cornfield, or excuse the same act on the same lawn a like distance from the same dwelling house (the property óf another) committed by the owner of that lawn. Collins, Executor, v. Millen et al., 57 Ohio St., 296.
   Davis, J.

The contention of the plaintiff in error arises upon the following instruction to the jury: “If you find that the defendant killed Heber Farrar and that such killing was not intentional but was accidental, then you must determine whether such killing occurred as the result of an act prohibited by statute. * * * The statutes of this state prohibit the discharge of any fire-arm on any ground appurtenant to or within gunshot of any occupied dwelling house, the property of another. If the evidence shows beyond a reasonable doubt that at the time the defendant' fired the rifle, if he fired it, he stood on the ground appurtenant to, or within gunshot of an occupied dwelling house, other than the one in which he lived, and such occupied dwelling house was the property of another, and he knew those facts, then the firing of that rifle, under such circumstances was prohibited by statute, and unlawful; and if the shot so fired killed Heber Farrar, the defendant would be guilty of manslaughter.”

The plaintiff in error maintains that the instruction was prejudicial error because it was an instruction that even if the defendant stood upon ground appurtenant to his own dwelling, which was the fact, in this case, and accidentally or otherwise discharged a fire-arm thereby accidentally killing the-decedent, he would nevertheless be guilty of manslaughter because he caused the death of the deceased, while he, the defendant, was engaged in an unlawful act. The plaintiff in error insists that this, is a misinterpretation of section 6962, Revised Statutes, and that the circuit court erred in affirming the-judgment of the court of common pleas. The same-question is raised by the refusal of the trial judge to give to the jury certain instructions requested by the defendant.

Section 6962 reads as follows:

“Whoever discharges any fire-arms on any lawn,, park, pleasure ground, orchard, or any other ground directly appurtenant to, or within gunshot of, any-occupied dwelling house, the property of another, or any charitable institution, shall be fined not more-than twenty nor less than five dollars, or imprisoned not more than thirty days, or both.”

The prosecution contends that if the defendant discharged a gun within gunshot of a dwelling house, other than the one in which he lived, although at the time he may have stood on ground appurtenant to-the dwelling in which he lived, he was guilty of a violation of the statute and consequently guilty of manslaughter regardless of his intention. It can hardly be assumed without better evidence than appears in the language of this statute that the legislature intended to make it a crime for a man to discharge fire-arms within his own house for the protection of his fireside or outside of his house and upon his own premises in defense of his property, his family or his own person. On the contrary, we are of the opinion that the natural and appropriate com struction of this section and the true legislative intention are found by placing the phrase “the prop: erty of another” in relation to and as qualifying the words “lawn,” “park,” “pleasure ground,” “orchard or other ground” and “dwelling house.” That is to say, the correct and natural reading is, “Whoever discharges any fire-arms on any lawn or park, the property of another, or on any pleasure ground,. the property of another, or on any orchard or other ground, the property of another, directly appurtenant to or within gunshot of any occupied dwelling house, the property of another,” etc. It is an established rule of construction in this state that where the language of a revised statute is so far ambiguous as to call for construction, it is proper to refer to the statutes from which the revision was made. This rule would be strongly reinforced when, as in this case, the original act was not repealed by the act of revision and still remains unrepealed; because the two acts being in pari materia must be made to stand together, that is, to harmonize. The original act was not expressly repealed by the act of revision, nor by any later statute. It cannot be impliedly repealed unless it be irreconcilably in conflict with the revision. The section from which the revised section is for the most part taken is found in 71 O. L., 148. It is section 4 of “An act to protect certain birds and game, and to protect landowners and punish trespassing upon improved and enclosed land, and to repeal certain statutes therein named.” The title expresses the whole scope and purpose of the act. This section 4 is as follows:

“No person, when shooting on the land of another, shall discharge any fire-arms on any lawn, pleasure ground, orchard or other ground, which is directly appurtenant to or within gunshot of an occupied dwelling house. The penalty for violating this section shall be a fine of not less than five nor more than twenty dollars, or be imprisoned not more than thirty days, or both, at the discretion of the court, and pay the costs of prosecution.”

The clause in the original section, “when shooting on the land of another,” which qualifies every other part of the section, is not dropped out of the •revised section. It is preserved in the phrase, “the property of another;” and when the revised section is read as we construe it, it harmonizes completely with the original section, and not otherwise. In this view of section 6962 of the Bevised Statutes its scope differs from that of the original section only in that it extends the inhibition so as to protect charitable institutions also. The charge to the jury was there-' fore erroneous and the judgment of the circuit court and that of the court of common pleas are

' Reversed.

Spear, O. J., Shauck, Price, Crew and Summers, JJ., concur.