author: Burkett, J.

text:
    Edson et al. v. Crangle et al.

      Catching fish with prohibited devices — Section 6968 Rev. Stat.— In conflict with Section 16, Article 1, of Ohio constitution — Constitutional law.

    1. The boundary line between the United States and Canada through Lake Erie is the northern boundary of this state, and its jurisdiction extends to that line.

      2. Section 6968, Revised Statutes, as amended February 17, 1892, 89 O. L., 26, is in conflict with section 16, article 1 of the constitution of this state, and is therefore void, for the reason that it confiscates property without due course of law.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    The defendants in error had a large number of fish nets situated in Lake Erie, some ten miles out in the lake, northeast of Cleveland, and L. K. Burton, chief game and fish warden, hired E. R. Edson, owner of the tug “Harrow,” and proceeded with the tug and a force of men July 21, 1895, to where the nets were located, and seized and carried away the nets, under the claim that they were used at the time in violation of section 6968, Revised Statutes. What finally became of the nets does not appear, but there is no showing that they were sold as the statute provides. Thereupon the defendants in error brought an action in replevin against the game and fish warden and the owner of the tug for the recovery of the nets or their value, and they recovered judgment in the court of common pleas for the value of the nets, $464.00.
    The circuit court affirmed the judgment, both courts holding that said section 6968 is uncqnstitutionaL Thereupon the plaintiffs in error filed their petition in this court, seeking to reverse the judgments of the courts below.

      F, 8. Monnett, Attorney General, and George G. Blankner, Assistant Attorney General, for plaintiffs.
    It may not be improper for us, before entering upon a dicussion of the merits of the case at bar, to call the court’s attention to some decisions that have been rendered relative to the right of the legislature to enact laws regulating fishing. 5 Mass., 266; Gould on Waters, Sec. 189; 85 Mich., 105; People v. Brooks, 101 Mich.; Sloan, v. Biemiller, 81 Ohio St., 511.
    While the constitutionality of the law creating the Ohio Fish and Game Commission has never been before your honorable body for consideration and decision, yet similar laws have been attacked and successfully defended in the supreme court of other states and of the United States. Osborn v. Charlevoix (Michigan), Detroit Legal News, p. 731, issue of November 20, 1897; Bittenhaus v. Johnson et al., 92 Wis., 588; 12 N. J. L., 311; Lawton v. Steele, 19 N. Y., 226; 152 U. S. R., 133.
    At the outset we stated that the validity of the fish and game laws had never been decided in this state. We find, however, upon a more minute examination of the authorities, a case styled Roth v. The State, 7 C. C., 62; 3 Circ. Dec., 663. This case was taken to the Supreme Court of Ohio and there decided constitutional. 51 Ohio St., 209; San Mates v. Railway, 8 Am. & Eng. Railroad cases, p. 27; Mugler v. Kansas, 123 U. S., 623; 47 Barb., 65.

      J. M. Sheets, Attorney General, and S. W. Bennett, of counsel for relator.
    We present here the propositions:
    First: Can the legislature, by an act, declare anything used for an unlawful purpose to be a public nuisance?

      Second: Having so declared a net, means or device used in unlawfully taking fish a public nuisance, can it be summarily abated, and the net or other means destroyed without trial or other process of law?
    The first proposition above has been sustained in a large class of cases from diverse standpoints. Various considerations have been urged by high judicial authorities as reasons for the exercise of this power, each and all of such authorities claiming that the power is a valid exercise of the police power inherent in each civilized community, and can be exercised over various classes of subjects as follows: (a) Such as are lawful subjects of property unlawfully used; (5) Such as are not subjects of property; (c) Such as are lawful subjects of property, but declared nuisances upon grounds of public necessity. Blair v. Forehand, 100 Mass., 136; State v. Topeka, 36 Kansas, 76; Morey v. Brown, 42 N. H., 373; Washington v. Meigs, 1 McArthur, 53; Exparte Cooper, 30 Am. Rep., 152; Cooley’s Constitutional Lim., top paging, 740, 741; Miller v. Craig, 11 N. J. Eq., 175; Weeks v. Milwaukee, 10 Wis., 242; Watertown v. Mayo, 109 Mass., 315; McCullough v. Maryland, 4 Wheat., U. S., 316; Lawton v. Steel, 119 N. Y., 226; Mugler v: Kansas, 123 U. S., 661; Fisher v. McGirr, 1 Grey (Mass.) 1; Wyanhamer v. People, 13 N. Y., 378; Coe v. Schultz, 47 Barb., 65; Matter of Jacobs, 98 N. Y., 108; McLaughlin v. State, 45 Ind., 338; Monroe v. Grespach, 33 La. Ann., 1011; State v. Fowler, 13 R. I., 661; Miller v. New York, 109 U. S., 385; Babcock v. Buffalo, 56 N. Y., 268; Hart v. Albany, 3 Paige, 213; Kellogg v. Thompson, 66 N. Y., 88.
    The true rule, as we conceive it to be, is that any use of property not injurious to the health, welfare and morals of the community, or which does not obstruct or interefere with public interests or a public right, cannot be declared to be a nuisance, and under the authorities above cited we are certain that no exception can be taken to the proposition as stated, that tbe legislature has the power or right to declare by proper enactment what may be conceded a public nuisance.
    It was in the 'exercise of such power that the legislature of Ohio declared the unlawful use of nets or other means or device for taking or capturing fish to be a public nuisance and authorized a summary abatement. This power has been exercised with regard to various subjects in Ohio, to be found within the following sections of the statute: 6923», 6922, 6924, 6927, 6946, 6921, 6858», 7025, and many other sections of the statute, and we deem that there is no longer any question of the power of the legislature to so declare.
    Second: The power of the legislature to declare what constitutes a public nuisance is beyond question, but having so declared, can such public nuisance be summarily abated, and the net constituting the nuisance “be seized or removed and forthwith destroyed?”
    We wish here to call the attention of the court to the unreported decisions of Judge Wildman and Judge Hall upon this question.
    In both of those cases the portion of the act in question was held to be unconstitutional. The one before Judge Wildman was the case of John T. French v. Frank B. Shirley, No. 4910 in the common pleas court of Ottawa county. The other the case of John Yensen, v. The State of Ohio, court of common pleas of Ottawa county.
    These opinions in so far as they pertain to the question here at issue, show that the different judges who have passed upon this question have not used the same process of reasoning, but have arrived at the same result, viz: In holding that that part of Sec. 6968-2 is unconstitutional. We rely mainly upon the case of Lawton v. Steele, 152 U. S. Rep., 133, and it lias all along been the purpose of both counsel and the nisi prius judges before whom these cases have been heard, to refuse to adopt the reasoning in that case, and to hold the same as not being obligatory upon them. The statute in question herein is much more perfectly worded than was the statute of New York, which was considered in the case of Lawton v. Steele, supra. In the case at bar all of the sections of the statute must be read together as an entirety, and it will be observed that certain waters are prohibited and certain methods of fishing are prohibited.
    Now it is a conceded fact, as we understand it, that the nets and devices of the defendants in error were seized under the direction of the fish and game commission, while they were in such unlawful use as was prohibited by section 6968-1-2, etc. This being true, and the statute being a public statute and advising the defendants in error that the waters in. which they had placed their nets were prohibited waters, and further that the nets so placed were prohibited nets or devices, and they having in the face of the statute, and the notice thus given them by law, volunarily put the nets to an unlawful use, which made them public nuisances under the statute, are they now in any position to assert that the act which so notifies them, and which by its violation, deprives them of their property is not due process of law, as guaranted by the constitution of Ohio and of the United States. Kidd v. Pierson, 128 U. S., 1.

      John L. Lott, of counsel, for the commissioners of fish and game.
    1. By the decision of the commissioners on July 18, 1822, appointed in pursuance of article 6, of the Treaty of Ghent, the boundary line between the United States and Canada, so far as it relates to Lake Erie, was fixed along the middle of the lake (8 Stats, at Large, 274, 276).

      The act of June 15, 1836, to establish the northern boundary line of the state of Ohio (5 Stats, at Large, 49), declared that the line between the United States and Canada through Lake Erie should be the northern line of the State of Ohio.
    2. That this court will take judicial notice of the location, size and contour of Lake Erie, is a proposition which will hardly be seriously disputed. Coffee v. Groover, 123 U. S., 11; Jones v. U. S., 137 U. S., 202; Brown v. Piper, 91 U. S., 42; Nicol v. Ames, 173 U. S., 517; U. S. v. Irrigation Co., 174 U. S., 697; People v. Lumber Co., 116 Cal., 397; Jamison v. Gas Co., 128 Ind., 574; People v. Brooks, 101 Mich., 98; Jacobs v. New York, 98 N. Y., 113; State v. Moore, 104 N. C., 714; Greenleaf on Evidence, Secs. 4, 5 and 6.
    3. It is the settled law of this country that the states hold the title to, and dominion over, the lands under the navigable waters of the Great Lakes, within their limits.
    The jurisdiction which the states bordering on the Great Lakes possess over the waters within their limits, is a question, the final determination of which, •rests in the federal courts. That jurisdiction is no longer in doubt. Railway Co. v. Illinois, 146 U. S., 387; Shively v. Bowlby, 152 U. S., 1; Revell v. People, 177 Ill., 468; Sloan v. Biemiller, 34 Ohio St., 492; Bodi v. Shooting Club, 57 Ohio St., 226; Gould on Waters, Sec. 82a.

    4. In the exercise of its police power, the state has the undoubted right to regulate the taking of fish; and this right is as complete and unlimited as that of the federal government in matters affecting the general welfare. Gibbon v. Ogden, 9 Wheat., 1.
    («). The state has the undoubted right to regulate the taking of fish, and this right is as complete and unlimited as that of the federal government in matters affecting the general welfare. Smith v. Maryland, 18 Howard, 71; McCready v. Virginia, 94 U. S., 391; Holyoke Company v. Lyman, 15 Wall., 500; Manchester v. Massachusetts, 139 U. S., 240; Hardin v. Jordan, 140 U. S., 371.
    The latest and most far reaching decision of the federal courts upon the right of the state to regulate the taking of fish, is the case of Lawton v. Steele, 152 U. S., 133.
    This power of the state is also sustained by the decisions in State v. Shannon, 36 Ohio St., 423; Roth v. State, 51 Ohio St., 209; State v. Harrub, 95 Ala., 176; People v. Truckee Lumber Co., 116 Cal., 397; Bristol v. Ousatonic Water Co., 42 Conn., 403; Blydenburgh v. Miles, 39 Conn., 484; Town of Clinton v. Bacon, 56 Conn., 508; White v. Petty, 57 Conn., 576; State v. Geer, 61 Conn., 144; Wagner v. People, 97 Ill., 320; American Express Co. v. People, 133 Ill., 649; People v. Bridges, 142 Ill., 30; Parker v. Illinois, 111 Ill., 581; Gentile v. State, 29 Ind., 409; Stuttsman v. State, 57 Ind., 119; State v. Lewis, 134 Ind., 250; Moulton v. Libbey, 37 Me., 472; State v. Beal, 75 Me., 289; Maine v. Craig, 80 Me., 86; Durham v. Lamphere, 3 Gray 268; Commonwealth v. Chapin, 5 Pick., 199; Commonwealth v. Essex Company, 13 Gray, 239; Commissioners v. Holyoke Water Power Co., 104 Mass., 446; Com. v. Perley, 130 Mass., 469; Com. v. Manchester, 152 Mass., 230; and Com. v. Gilbert, 160 Mass., 157; People v. Kirsch, 67 Mich., 539; People v. Collison, 85 Mich, 105; People v. Brooks, 101 Mich., 98; Minnesota v. Mrozinski et al., 59 Minn., 465; Blount, 85 Mo., 543; State v. Randolph, 1 Mo. App., 15; State v. Roberts, 59 N. H., 256; Beach v. Morgan, 67 N. H., 529; Doughty v. Conover, 42 N. J. L., 193; State v. Snover, 42 N. J. L., 341; Phelps v. Racey, 60 N. Y., 10; In re Jacobs, 98 N. Y., 98; State v. Norton, 45 Vt., 258; Drew v. Hilliker, 56 Vt., 641; State v. Theriault, 70 Vt., 617; McLennan v. Prentice, 85 Wis., 427; State v. DeLano, 80 Wis., 259; Bittenhaus v. Johnson, 92 Wis., 588;
      Boggs v. Commonwealth, 76 Va., 989; Willow River Club v. Wade, 100 Wis., 86.
    (5) Possessing the power to regulate the taking of fish, the state may adopt such regulations, and provide such penalties, as it deems proper and needful.
    It is a settled principle of law that where a subject is within the police power of a state, the question as to what regulations are proper and needful, is one for legislative decision. That discretion can not be controlled by judicial decision, save where exercised in direct conflict with a constitutional provision. McCullough v. Maryland, 4 Wheat., 421; Legal Tender Case, 110 U. S., 441; Nicol v. Ames, 173 U. S., 524; A. & Eng. Ency. of Law, Vol. 18, pp. 746, 747; State v. Aiken, 42 Ohio St., 222; Jamison v. Cas Co., 128 Ind., 555; Terre Haute v. Kolsem, 130 Ind., 434; State v. Lewis, 134 Ind., 250; Thorpe v. R. R. Co., 27 Vt., 140; Bancroft v. Cambridge, 126 Mass., 438.
    (c) In the exercise of its discretion, the state may declare to be a public nuisance all nets and devices used for the illegal taking of fish, and authorize their confiscation and summary destruction. Barbier v. Connolly, 113 U. S., 31; Mugler v. Kansas, 123 U. S., 663; Powell v. Penna, 127 U. S., 683; In re Kemmler, 136 U. S., 449; In re Converse, 137 U. S., 632; Holden v. Hardy, 169 U. S., 385; San Diego Land Co. v. National City, 174 U. S., 739; Smith v. Maryland, 18 How., 71; Mugler v. Kansas, 123 U. S., 623; McCready v. Virginia, 94 U. S., 391; Patterson v. Ky., 97 U. S., 501; Kidd v. Pearson, 128 U. S., 26; Normand v. Steam Tug Harrow (No. 2,122, in Admiralty), U. S. Dist. Court of Ohio; Bittenhaus v. Johnson, 92 Wis., 588; Willow River Club v. Wade, 100 Wis., 86; Osborn v. Charlevoix, 114 Mich., 655; State v. Snover, 42 New Jersey Law, 341.
    The state may summarily destroy property used in a lawful manner, and when the owner is in no manner, at fault, when the public necessities require (Cooley’s Const. Lim., 6th Ed., p. 739; Lawton v. Steele, 152 U. S., 136); and so the state may with greater freedom destroy property unlawfully used, when the necessities require (Cooley’s Const. Lim., p. 745); and the courts will not declare such a law invalid until it is shown that it was not passed for the actual good of the public, but that, under that guise, it was enacted for another purpose, and that such a law was unnecessary and oppressive (Cooley’s Const. Lim., p. 247); Tiedman’s Lim. of Police Power, pp. 440, 441.
    It certainly is unnecessary to refer to the many decisions of this court sustaining laws passed in the exercise of the police power. It may be appropriate, however, to refer to sections 1920-1923, R. S., which require the summary destruction of gambling devices; and to section 4275, which makes the owner of the property liable for money lost in gambling, when he permits it within or upon his premises. Binder v. Finkbone, 25 Ohio St., 103; State v. Nelson, 52 Ohio St., 102.
    5. Sections 405 to 409, Revised Statutes, are valid enactments.
    In the exercise of its police power, the legislature, by sections 405 to 409, has provided for the appointment of commissioners of fish and game, who are given authority to appoint state, special and county wardens, whose duty it is to enforce the laws relating to fish and game.
    Will it be contended for a moment that the legislature, under the broad power conferred by section 27 of article 2, of the constitution, has not the power to create such additional offices as it deems necessary? In the early case of State v. Kennon, 7 Ohio, St., 546, that power seems not to have been disputed. State ex rel v. Covington, 29 Ohio St., 102.
    It certainly will be conceded that in enacting these sections, the legislature intended to create a board for the purpose of exercising general police powers. Their powers are limited to the protection, preservation and propagation of fish and game. They exercise no other powers. It is therefore solely the exercise of a police power. They possess jurisdiction over the entire state, they are chosen for a definite term, they give a bond, make reports to the governor, and their expenses are paid by legislative appropriation. They are, therefore] state officers. State v. Wilson 29 Ohio St., 347. By section 409 the chief warden is given jurisdiction of the entire state. State v. Ken-non, 7 Ohio St., 557; State v. Brennan, 49 Ohio St., 33; Ritchie v. People, 155 Ill., 98; State ex rel v. Hyde, 121 Ind., 20, 38; Moore v. Board of Auditors, 90 Mich., 269.

      White, Johnson, McCaslin & Gannon, for defendant in error.
    The record presents three questions, two of which only are argued by the learned attorney general:
    First — Is the statute constitutional under which the nets are claimed to have been seized?
    This question was decided in our favor by both the common pleas and circuit courts.
    Second — Had the state of Ohio jurisdiction of the locus in quo, the seizure occurred?
    This question was decided against us by both the inferior courts.
    Third — Assuming that the statute is constitutional, and that the state had jurisdiction of the locus in quo, did defendants so conduct themselves that they can defend under the statute, or did they so act as to make themselves tresspassers ah initio?
    The statutes under which plaintiffs in error attempted to defend is unconstitutional.
    We find, in the Bill of Rights of our constitution, certain fundamental provisions which seem to us clearly violated by the statute in question. Article l1, sections 5, 10, 14 and 19.

      Until very recently the proposition that a state of the Union might constitutionally provide for a seizure of private property by executive officers, and a confiscation thereof to the use of the state without notice and without previous or subsequent judicial inquiry, found no warrant in any American court or text-book writer, and was repeatedly denied by the supreme courts of many states, and by the most authoritative text-book writers. Colon v. Lisk, 153 N. Y., 188; Hibbard v. People, 4 Mich., 125.
    While a seizure and destruction of property may, in some cases, where necessity requires, be permitted, any statute permitting seizure, and confiscation of private property without notice, or judicial investigation, or order, is unconstitutional. Cotter v. Doty, 5 Ohio, 393; Archer v. Baertschi, 8 O. C. C., 12; State v. Owen, 3 N. P., 181; Bogg v. Com., 76 Va., 989; Lowry v. Rainwater, 70 Mo., 152; S. C. 35 Am. R., 420; People v. Copeley, 4 Criminal Law Magazine, 187, 191, 192; Clark v. Mitchell, 64 Mo., 564; Donovan v. Vicksburg, 29 Miss., 247; Portland v. Bangor, 65 Me., 120; Varden v. Mount, 78 Ky., 86;. S. C. 39 Am. R., 208; Fisher v. McGirr, 1 Gray, 1; Crown v. Perkins, 12 Gray, 89; Green v. James, 2 Curt. C. C., 187; People v. Moore, 62 Mich., 496; Parsons v. Russell, 11 Mich., 113; Ames v. Port Huron Co., 11 Mich., 139; Van Horne v. Dorrance, 2 Dall., 304; Craig v. Werthmueller, 78 Ia., 598; Ieek v. Anderson, 57 Cal., 251; S. C. 40 Am. R., 115; Darst v. People, 51 Ill., 286; S. C. Am. R. 2, 301; Detroit v. Roads Co., 43 Mich., 140; Dunn v. Burleigh, 62 Me., 24; King v. Hayes, 80 Me., 206; Gray v. Kimball, 42 Me., 299; State v. Robbins, 124 Ind., 308; S. C. 8 L. R. A., 438; Lanfear v. Mayor. 4 La., 97; Pomeroy Constitutional Law, 156; Cool'ey Constitutional Limitations, 6 Ed., 444, 445, 429, 430.
    Until now, no officer of a municipality or of the state has been found hardy enough to assert, in this court, a right to seize and convert to his own use, without judicial process, without judicial investigation, the property of a citizen. State v. Robbins, 124 Ind., 308; Clark v. Mitchell, 64 Mo., 564; Donovan v. Vicksburg, 29 Miss., 247; Poppen v. Homes, 44 Ill., 362; Heis v. Columbia, 6 Rich., 40; Gray v. Kimball, 42 Me., 299; Dunn v. Burleigh, 62 Me., 24; King v. Hayes, 80 Me., 206; Lanfear v. Mayor, 4 La., 97; Parsons v. Russell, 11 Mich.,. 113; Detroit v. Railway Co., 43 Mich., 140; Craig v. Wertheimer, 78 Ind., 598; Cooley Const. Lim., 6th Ed., 429, 445 and 719; Lawton v. Steele, 119 N. Y., 226.
    From the latter remarkable decision, three justices of the supreme court, Mr. Chief Justice Fuller, Justice Field and Justice Brewer dissent, and the dissent is put upon the precise grounds which we have argued. Lawton v. Steele, 152 U. S., 133.
    This decision of the supreme court, it may be further said, is absolutely inconsistent with earlier decisions rendered by former judges of that court. Green v. Famee, 2 Curt., C. C., 187; Van Horne’s Lessee v. Dorrance, 2 Dall., 304; People v. Gibson, 109 N. Y., 389; In re Jacobs, 98 N. Y., 98.
    These nets, being set more than a marine league from the shore of Lake Erie, and more than a marine league outside of any line connecting headland with headland, were on the high seas, and hence,
    First. The state had no criminal jurisdiction at that point, and therefore its officers could not seize the nets.
    Second, The statute could not regulate the fisheries at that point. The Eagle, 8 Walk, 15; Tennessee Chief Case, 12 Howard, 443; U. S. v. Bogers, 150 U. S., 249.
    While by the constitution, the treaties made by the United States are the supreme law of the land, we think it will be conceded that congress cannot, by treaty, exercise authority not conferred by the constitution. The United States cannot, by force of a treaty with Great Britain, change the nature of the federal government from one of special limited powers to one of general unrestricted powers. They can not, by treaty, amend the constitution, and.it seems to us, to say the least, extremely doubtful, if the state of Ohio has jurisdiction in Lake Erie, outside of a marine league, to regulate the fisheries, whether she can be deprived of this power by a treaty between the United States and Great Britain. Gould the United States, by such a treaty, take upon itself the regulation of fish or game in the regions within the limits of the state or upon the territory of the state, could it, by dint of treaty, regulate matters within the limits of the state of Ohio, a right to regulate which is not offered by the constitution?
    Can it by treaty take from the state of Ohio, the right to regulate fish and game within its borders, a branch of the police power, which police power is by the federal constitution reserved to the several states. Either then such a convention will be void or the Great Lakes are within the federal and not within the state jurisdiction.
    That the result of this decision in the United States v. Rogers is, so far as concerns those lakes through which the international boundary runs, to deprive the states of jurisdiction, seems to be recognized in Bigelow v. Nickerson, 70 Fed., 113; Lord v. Steamship Co., 102 U. S., 541.
    Have not plaintiffs in error forfeited any protection from the statute.
    By not following the law as to the disposition of the nets, by thus taking the nets the plaintiffs in error became tresspassers ab initio, and a recovery may be had against them by the owners of the nets, notwithstanding they were set in violation of law, and notwithstanding the nets might have been legally confiscated and lost to the owner had the law been pursued. Russell v. Hanscomb, 15 Gray, 166; Averill v. Chadwick, 153 Mass., 171; McCough v. Wellington, 6 Allen, 505.

      If officers deal with property taken by them in a manner different from what the law directs, they thereby become trespassers ab initio and can not protect themselves under the statute. Bracket v. Vining, 49 Me., 357; Bond v. Wilder, 16 Vt., 393; Pierce v. Benjamin, 14 Pick., 356; Backrider v. McDonald, 10 Johns., 253; Burton v. Calloway, 20 Ind., 469; Wilson v. Ellis, 28 Pa. St., 238; Barrett v. White, 14 Am. Dec. 368, note; 1 Hilliard Torts, 106; 2 Idem, 232; Everett v. Herrin, 48 Me., 537; Brackett v. Vining, 49 Me., 356; Smith v. Gates, 21 Pick., 55; Barrett v. Lightfoot, 1 T. B. Monroe, 241; Averill v. Chadwick, 53 Mass., 17; McGough v. Wellington, 6 Allen, 505.
   Burkett, J.

It is contended by counsel for defendants in error, that the place in the lake where the nets were located is not within the jurisdiction of this state, but is part of what is usually known as the high seas. The contention is not sound. The northern boundary of the state is the line between the United States and Canada, as fixed by treaty and established by act of congress. 5 U. S., Statutes at Large, 49; 8 U. S. Statutes at Large, 274-276.

The extension of admiralty jurisdiction to the Great Lakes by a judicial change of construction by the supreme court of the United States, did not have the legal effect to change the northern boundary of this state as theretofore fixed and established by congress. As to change of construction, see Waring v. Clarke, 5 Howard, 441; Propeller Genesee Chief v. Fitzhugh, 12 Howard, 443.

The nets in question are claimed to have been seized by authority of section 6968, Revised Statutes, as amended February 17, 1892, 89 O. L., 26. So much of that section as is applicable to Lake Erie is as follows :

“No person shall draw, set, place, locate or maintain any pound-net, seine, trap or fish net in Lake Erie, * * * from the fifteenth day of June to the tenth day of September, inclusive. No person shall set, place, locate or maintain, or catch fish with a gill-net in any of the waters of the state, except in Lake Erie. No person shall set, place, locate or maintain any fish-net on any of the reefs in Lake Erie. No person shall set, place, locate or maintain in Lake Erie any portable fish-net within one-half mile of any stationary fish-net or lead thereof. No person shall set, place, locate or maintain any net whatever within one-half mile of the mouth of any river or creek flowing into Lake Erie. * * * No person shall draw, set, place, locate or maintain any fish trap, pound-net, seine of any device, for catching fish as in this section forbidden; and any nets, seines, pound-nets or other devices for catching fish, set, placed, located or maintained in violation of the provisions of this section, shall be confiscated wherever found, and the same shall be sold to the highest bidder, at public outcry, at a place to be selected by the fish commissioners, and the proceeds derived from such sale shall be placed to the credit of the fish and game fund, and subject to the warrant of such commissioners. * * * Any person convicted of a violation of any of the provisions of this act shall be fined for the first offense not less than twenty-five dollars nor more than one hundred dollars, and in case of neglect or refusal to pay said fine, be imprisoned in the county jail not less than thirty days; and for the second or any subsequent violation of this act, shall be fined not less than fifty dollars nor more than five hundred dollars, and in default of payment of fine and costs shall be imprisoned in the county jail not less than sixty days; and all fines collected under this act shall go to the county fish and game fund in the county wherein the offense was committed, unless otherwise directed and ordered by the fish and game commissioners of this state. And it is hereby made the duty of the wardens and assistant wardens of this state to prosecute all violations of this act in connection with- the prosecuting attorneys of the counties wherein such offense shall have been committed, and such prosecuting attorney shall be entitled to the same fees as are now allowed by law for the collection of forfeited bonds. * * *”

This section was again amended and supplemented by the acts of April 27, 1896, 92 O. L., 332 and 384, but as the nets in question were seized in July, 1895, this case must be determined by the statute as it then stood.

It will be noticed that the act as it then stood does not declare nets used in violation of it a public nuisance, to be abated and destroyed wherever found, nor words to that effect. The provision of the act is as follows: “And any nets, seines, pound-nets or other devices for catching fish, set, placed, located or maintained in violation of the provisions of this section, shall be confiscated wherever found, and the same shall be sold to the highest bidder at public outcry at a place to be selected by the fish commissioners, and the proceeds derived from such sale shall be placed to the credit of the fish and game fund and subject to the warrant of such commissioners.”

While the act provides that the nets shall be confiscated wherever found, it fails to provide expressly who shall confiscate them, and fails to provide any legal proceedings for their confiscation. The prosecution provided for in the section is against those who violate the provisions of the act, and provides for their punishment by fine and imprisonment, but nothing is provided as to adjudging the confiscation of the nets. The intent of the general assembly seems to have been that the fish commissioner should seize and confiscate such nets wherever found, without any legal proceedings whatever; and that he should sell the same at public outcry at such place as he should select, and place the proceeds to the credit of the fish and game fund.

Confiscation implies a seizure, with or without legal process in the first instance, followed by a legal proceeding in a court of competent jurisdiction wherein the parties interested may be heard and have an opportunity to defend, and wherein the property is adjudged to be confiscated and ordered to be sold according to law.

While the seizure may be made in the first instance by an officer of the law doing no unnecessary damage, the confiscation must be made by the judgment of a court having jurisdiction of the subject matter.

This section gives the right of confiscation, but fails to provide a legal proceeding by which the confiscation may be adjudged, and there being no other statute providing a proceeding in such cases, it attempts to take and sell private property and place the proceeds in the public treasury without any process of law. The section is therefore in conflict with article 1, section 16, of our constitution, which provides as follows: “All courts shall be open, and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law; and justice adminstered without denial or delay.”

To confiscate is to seize and appropriate to the use of the state. It is also defined as follows: “To appropriate private property as forfeited to the public use or treasury, especially because of the wrong-doing of the owner.” In this sense it is in the nature of a fine imposed upon an offender, which cannot be done without due process of law. It is, in legal effect, taking private property for the use of the public without compensation and without process of law.

The confiscation act of congress, passed July 17, 1862, 12 U. S. Statutes at Large, 589, provides for proper proceedings in a court of competent jurisdiction to adjudge and order the confiscation and sale of the property seized. So in confiscations for violations of the revenue laws, there is a provision for legal proceedings.

Proper legal proceedings are always necessary to adjudge a forfeiture or confiscation, and to permit officers or private persons to seize, sell or appropriate private property without legal proceedings, under a claim of confiscation, would be inconsistent with the principles of constitutional government, and would .soon lead to fraud, corruption, oppression and extortion.

Such statutes to be constitutional should not only provide the right of confiscation, but should also provide the remedy, and then such remedy would be exclusive. Commissioners v. Bank, 32 Ohio St., 194.

The act being unconstitutional, it can afford no protection to the fish commissioner and owner of the tug for seizing and taking away the nets. They were wrong-doers from the beginning, the same as if the act had never been passed, and they were liable to the owners of the nets for their value, and the judgment against them is right.

Judgment affirmed.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    Greene v. The Woodland Avenue and West Side Street Railroad Co. and the Cleveland City Railway Co.

      Street railway company — Action against in justice of peace court— Section 6478 Rev. Stat. not applicable to street railways — Filing of motion to vacate judgment does not enter appearance to the action when — Reversal of jtidgment for want of service of summons — Attempt to enforce void judgment — Corporation formed of two or more companies' — Holds property in its own right not in trust.

    1. Section 6478, Revised Statutes, is not applicable to street railroad companies,
    2. The filing of a motion to set aside and vacate a judgment rendered without service of summons or other legal notice, the appearance being for the purpose of such motion only, does not enter an appearance to the action.
    3. A judgment on the docket of a justice of the peace which is void for want of service of summons, does not become valid by the reversal by the circuit court of' a judgment of the court of common pleas enjoining collection of such void judgment. In legal effect such reversal left the matter just as it was before the judgment was rendered by the common pleas.
    4. Where an attempt is made to enforce payment of a void judgment, it may be adjudged invalid without showing a defense to the action.
    5- A corporation formed by the consolidation of two or more companies holds its property acquired by such consolidation in its own right, and not in trust for the constituent companies.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Cuyahoga County.
    The plaintiff in error, also plaintiff below, brought his action in the court of common pleas against the Woodland Avenue and West Side Street Railroad Company and the Cleveland City Railway Company for the. collection of a judgment which plaintiff averred in his petition that he had recovered on the docket of a justice of the peace in and for Brooklyn township, on the 21st day of August, 1893, against said Woodland Avenue and West Side Street Railroad Company for a sum less than one hundred dollars, upon a cause of action which accrued on the 17th day of April, 1893, for damages to his horse, wagon and harness.
    The petition averred that said Woodland Avenue, and West Side Street Railroad Company was not then the owner of any property upon which a levy could be made sufficient to satisfy such judgment; that after said cause of action accrued said street railroad company consolidated with other companies and thereby transferred all its property to the Cleveland City Railway Company without valuable consideration, in trust for the payment of all then existing liabilities of said Woodland Avenue Company, including the said judgment of said plaintiff, and prayed that sufficient of said property so conveyed and transferred in trust as aforesaid to pay said judgment, be sold and the proceeds applied to the payment thereof.
    The Cleveland City Railway Company by its answer admitted that it was a corporation duly incorporated; that it was formed by the consolidation of the Woodland Avenue and West Side Street Railroad Company and the Cleveland City Cable Railway'Company; that all the property of said companies became vested in it by said consolidation, and denied each and all other allegations of the petition.
    The cause was appealed to the circuit court, and that court heard the same upon the pleadings and evidence, and decided the case in favor of the defendants in error, also defendants below. Upon request the court found and stated its conclusions of fact separate from its conclusions of law as follows :

      “First — That the defendant, The Woodland Avenue and West Side Street Railroad Company, was, on the 17th day of April, 1893, and for some time subsequent thereto, a corporation organized and existing under the laws of Ohio, and managed and operated a line of street railroad in Cleveland and Brooklyn township, Cuyahoga county, Ohio; that the principal business office of the defendant, The Woodland Avenue and West Side Street Eailroad Company, was not, at any time herein named, kept within the township of Brooklyn, Cuyahoga county, Ohio; that J. C. Poe was at all said times the duly elected, qualified and acting Justice of the Peace in and for said Brooklyn township.

      “Second — That, some time subsequent to the said 17th day of April, 1893, and prior to the 10th day of August, 1893, the defendant, the Cleveland City Eailway Company, one of the defendants herein, was formed under and by virtue of the laws of Ohio, by the consolidation of the Cleveland City Cable Eailway Company and the Woodland Avenue and West Side Street Eailway Company, the other defendant herein, and that it owns and operates the lines of the constituent companies.

      “Third — That on the 10th day of August, 1893, plaintiff brought suit against defendants, The Woodland Avenue and West Side Street Eailroad Company, and The Cleveland City Eailway Company, before said J. C. Poe in said Brooklyn township, for alleged injury to plaintiff’s horse, harness, and wagon, caused by one of the motor cars managed and operated by said Woodland Avenue and West Side Street Eailroad Company, coming in contact with said horse and wagon on said 17th day of April, 1893; that on the 17th day of August, 1893, said J. C. Poe issued a summons against the defendants in said action, returnable August 21st, 1893, at 2 o’clock p. m.; that the same was delivered to G-. S. Barnett, constable, who returned the same, endorsed as follows: “Eeceived August 17,1893, and served the same by leaving a true and certified copy thereof at the office of the president of the Woodland Avenue and West Side Street Railroad Company, M. A. Hanna, August IStli, 1893.” That the president and other officers of said Woodland Avenue and West Side Street Railway Company were residents of Cleveland township, Cuyahoga county, Ohio, and that said president and other officers’ place ®f business was also in said township and county at all the times herein named; that on the return day of said summons at the hour set for hearing of said cause, the said justice, in the absence of defendants and on the testimony offered by the ■plaintiff, gave judgment in favor of the plaintiff and against the defendant in • the sum of $87.00; that thereafter, on the 10th day of October, 1893, defendants filed a motion in said justice court, appearing only for the purpose of said motion, and not entering their appearance in said cause, to set aside and vacate the judgment heretofore given, on the ground that no valid service had been had on defendants; that on the 13th day of the same month said motion was argued, and on the 16th day of October, 1893, said justice overruled said motion, and that no appeal or error proceedings were taken from said order or findings.

      “Fourth — That on or about the 21th day of October, 1893, the defendant, The Cleveland City Railway Company, began an injunction proceeding against the plaintiff, J. C. Poe, Justice of the Peace, and G. S. Barnett in the Court of Common Pleas of Cuyahoga County, wherein said Cleveland City Railway Company prayed that said judgment rendered against it and the Woodland Avenue and West Side Street Railroad Company in favor of R. É. Green before J. C. Poe, J. P., be declared wholly nuU and void, and that said defendants be perpetually enjoined from taking any steps whatever to collect said judgment; that on the 28th day of October, 1893, said injunction and relief was granted as prayed for, the order of the court of common pleas being as follows: “By agreement of parties this cause came on for'final hearing upon the petition, testimony and argument of counsel, and after due consideration the court finds that the plaintiff is entitled to the relief prayed for, and that the allegations of the petition are true. Wherefore said judgment set forth in said petition is hereby declared to be illegal and void, and that the defendants herein are perpetually enjoined from collecting or taking any steps whatever to collect said judgment in the petition.”

      “Fifth — That afterwards on error proceedings in this court, said decree of the common pleas court granting said injunction was reversed so far as it prohibited this plaintiff from collecting the judgment from the defendant, the Woodland Avenue and West Side Street Railroad Company, the order of this court being as follows: “This cause came on -to be heard upon petition in error, bill of exceptions, original papers and pleadings, a transcript of the record in the court of common pleas, and was argued by counsel. In consideration whereof, the judgment of said court of common pleas in so far as it enjoins the plaintiff in error from collecting against The Woodland' Avenue and West Side Street Railway Company the alleged judgment by J. C. Poe, is reversed. In all other respects said judgment of the common pleas court is affirmed.”

      “Sixth — This court finds as conclusions of law that the provisions of section 6478 of the Revised Statutes of Ohio do not apply in actions against street railroad companies and that service of summons as provided in that section is not proper service, and gives the justice no jurisdiction of the defendant company; that the defendant, The Woodland Avenue and West Side Street Railroad Company, was served with summons as provided by said section 6478 of the Revised Statutes of Ohio in the said action before the said justice of the peace, and no jurisdiction was acquired of said defendants by said service, and the said judgment against it was void. The court further finds that the defendants by filing said motion in said justice court to have the said judgment set aside and vacated, did not submit themselves to the jurisdiction of the said justice, and were not bound by any judgment or final order which the justice was required to make in disposing of that motion and that at no time were they properly made parties in said cause.

      “Seventh — The court further finds that the defendants are not bound to show a meritorious defense to said action of plaintiff, against them before the said justice of the peace before the said judgment will be declared to be invalid upon the ground of want of service of legal notice to them of the pendency of said action.”
    A motion for a new trial having been made and overruled, plaintiff filed his petition in error in this court, seeking to reverse the judgment of the circuit court.
    IF. H. Polhamus, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendants in error.
   Burket, J.

There was no pretense of service of summons upon the Cleveland City Railway Company in the action before the justice of the peace, and. it is too clear for argument that the judgment against that company was and is void and of no effect, and the collection of that judgment was very properly forever enjoined by the court of common pleas, and that judgment affirmed by the circuit court.

The circuit court held as matter of law in the case at bar, that the service of summons upon the Woodland Avenue and West Side Street Railroad Company was not sufficient to give the justice of the peace jurisdiction; that section 6478, Revised Statutes, does not apply to service of summons upon street railroads; that said judgment against said last named company was therefore void; that said defendants did not submit themselves to the jurisdiction of the justice of the peace by making said motion to vacate said judgment, and that said defendants are not bound to show a meritorious defense to the action, before the justice of the peace, before having said judgment decreed invalid upon the ground of want of service of summons.

The correctness of these holdings of the circuit court is challenged by the plaintiff in error. It does not appear in the proceedings before the justice of the peace, nor in the petition of the plaintiff, nor in the finding of facts, nor elsewhere in the record that the Woodland Avenue and West Side Street Railroad Company was a company formed by consolidation with any other company, or that it was what is usually known as a consolidated company. There is an intimation to that effect in the brief of the plaintiff in error, but there is nothing in the record to that effect. The Cleveland City Railway Company was, at the commencement of the action before the justice of the peace, a consolidated company into which the Woodland Avenue and West Side Street Railroad Company had become merged, but there was no attempt to serve a summons upon that consolidated company, and therefore no question arises in this case as to the manner of serving summons upon a consolidated street railroad company, nor as to the effect or construction of section 2505b.

It is urged by counsel for plaintiff in error that the manner of service of summons as provided for railroads in section 6478, Revised Statutes, is applicable to street railroads. That section is as follows:

'"Suit may be brought before a justice of the peace against any railroad company, in the township in which the president of the company may reside, or in any township into or through which the road owned or leased by said company may be located, whether such company be foreign or created under the laws of this state, and whether the charter thereof prescribes the place where suit must be brought against it, or the manner or place of service of process thereon; and if the principal business office of the company is not kept in the township in which any such suit may be brought, it shall be the duty of the justice of the peace to issue a writ of summons against said company, directed to any constable in the toAvnship in which said suit may be brought. The constable shall, on receipt of such summons, forthwith serve the same personally upon the president of such company, if he be a resident of the county in which suit is brought, or by leaving a certified copy at his place of business, if the same be within such county; provided, that if the president of any such company shall not be a resident of, or have a place of business within, the county in which such suit shall be brought, it shall be lawful for the constable having such summons, to serve the same personally upon the person having charge of a ticket office, or on the person having charge of a freight depot, owned by or under the control of such company, if such ticket office or freight depot be situated within the county where such suit shall be brought; and, provided, further, that when such summons shall be served on either of such last described persons, it shall be done at least eight days prior to trial; but when served upon the president, as aforesaid, it may be served in accordance with the law for serving summons issued by justices of the peace; provided, that when the president of such company does not reside, and there is no such officer or depot in said county, then it shall be the duty of the justice of the peace to issue a writ of summons directed to the sheriff of the county where the principal business office of the company is located, with an endorsement on the back of the writ, of the name of the post office to which said writ shall be returned; and the sheriff, upon the receipt of said writ, shall forthwith serve the same personally upon the president, if found, or by leaving a copy at the business office of said company Avith the person having charge thereof, and immediately return the said writ to the justice of the peace issuing the same, by mail, directed to the post office named on the back of the writ.”

This statute was first enacted in substantially its present form in the year 1850 before street railroads had an existence. It was amended by the act of March 31, 1866, 63 O. L., 63, and was carried into the Revised Statutes of 1880 with a slight addition from section 66 of the Code, as amended April 30, 1868, 65 O. L., 116, and made section 6178 of the revision. As the statute stood from its enactment in 1850 to the time when street railroads were first authorized by act of April 10, 1861, 58 O. L., 66, it could apply to railroads only, and there is no change in the act by the amendment of 1866, nor by the Revised Statutes indicating an intention to extend the act to street railroads, and the wording of the section shows that it was intended to apply to railroads only, and not to street railroads. Both the history of the section and the wording thereof induce us to hold that it has no application to street railroads.

It follows that the service of summons made under this section on the Woodland Avenue and West Side Street Railroad Company was void, and gave the justice of the peace no jurisdiction, and that the judgment rendered by him was without jurisdiction and void.

The filing of the motion to set aside and vacate this void judgment, the appearance being for- the purpose of the motion only, did not have the effect to render the void judgment valid. The appearance was only for the purpose of calling the attention of the justice of the peace to the fact that he had not acquired jurisdiction, and not for the purpose of submitting to his jurisdiction. Freeman on Judgments, 193; Lutes v. Perkins, 6 Mo., 57.

It is also contended by counsel for plaintiff in error, that when the court of common pleas enjoined the collection of this judgment., and the circuit court reversed that judgment, the question of the validity of the judgment was thereby adjudicated, and cannot now be again called in question. This contention is not sound. The reversal of the judgment did not conclude the matter. The judgment of the circuit court acted only upon the judgment of the court of common pleas and reversed and vacated that judgment and the injunction thereby awarded, but it could add no life or vigor to the judgment rendered by the justice of the peace. And as it was void and of no force when the action was begun in the court of common pleas, it remained void after the judgment of the court was reversed, because the reversal left the matter standing the same as if no action had been prosecuted in either the court of common pleas or the circuit court.

It is further contended by counsel for plaintiff in error that the defendant cannot have said judgment before the justice of the peace decreed invalid, when an effort is made to enforce it by means of a creditor’s bill, until it is made to appear that there exists a valid defense to the action. This contention is not well taken. The cases in which a valid defense must first be shown, are those in which it is sought to open up a judgment after the term at which it was rendered, as provided in sections 5354 and 5360, Revised Statutes, or where an attack is made in equity upon a judgment for the purpose of setting it aside, or removing the lien thereof from real or personal property. This is not such a case. This is not for the purpose of opening up a judgment or making an attack thereon, but it is defending against the enforcement of a judgment rendered without legal service of summons upon the defendant. The service of summons having been made outside of the jurisdiction of the justice of the peace, was void, and therefore the judgment was void. It is urged that as the defendant might have waived the illegal service and entered its appearance, the judgment was only voidable. But such entry of appearance would not have been by virtue of any validity in the service. Appearance might have been entered without the issuing or service of any summons whatever.

But it is said that even though the service was void, it gave notice in fact to the defendant that an action was pending against it, and that where a defendant has knowledge of the action the judgment will not be set aside until it appears that there is a good defense to the action, and Gifford v. Morrison, 37 Ohio St., 502, is cited and relied upon.

In that case the service was within the jurisdiction of the justice of the peace, and while it was irregular, such irregularity did not appear upon the copy of the summons served upon the defendant, and he allowed judgment to be taken by default, supposing the proceedings to be regular. A transcript was filed and a lien thereby obtained upon real estate; and after the real estate had been sold and conveyed, the grantee filed a petition to quiet her title and to have the judgment lien removed from the premises. She thereby actively attacked the validity of the judgment, and in so doing she assumed the burden, in equity, of showing not only that the judgment was invalid, but that there was a good defense to the action. If the parties had shifted, and the judgment creditor had instituted proceedings to enforce his judgment, in which proceeding he would have been compelled to produce a valid judgment as the foundation of his action, the judgment debtor might in defense have challenged the validity of the judgment without showing a valid defense to the original action. When the invalidity of the judgment is used as an instrument of attack, it must appear that there is a valid defense; but when such invalidity is used as a defense — a shield — it need not appear that there is a valid defense to the original action. This distinction was made in Allen v. Everly, 24 Ohio St., 97, as to the application of the statute of limitations. The third subdivision of the syllabus is as follows: “A party invoking affirmative relief based on the alleged payment of a debt, must establish the fact of payment; such relief will not be granted upon a presumption of payment arising alone from lapse of time. Though such presumption may be successfully used as a shield, it is not equally available as a weapon of attack.” The following appears in the opinion on page 111: “It is to be borne in mind that the plaintiffs are not defending against the enforcement of the mortgage, or the decree rendered thereon against them, but are invoking affirmative relief. But relief cannot be granted upon principles of equity until the party affirmatively establishes facts which entitle him thereto. Unless that be done, equity leaves the parties where it found them. While, on the one hand, it refuses relief, oh the other it does not debar them from any defense either may be entitled to when, aggressively attacked.”

The principle of that case is applicable here and is consistent with the case of Gifford v. Morrison, supra.

When the validity of a judgment is attacked, and an effort made to have it set aside and vacated, or the lien thereof removed, it is proper to compel the plaintiff to show, not only that the judgment is invalid, but that there is a good defense to the action in which the judgment was obtained; but when the holder of the judgment attempts to enforce it in a legal proceeding in which he can succeed only by showing a valid judgment, the invalidity of the judgment may be shown as a defense without going further and assuming the additional 'burden of showing that there is a good defense to the action. If it were otherwise an action might be brought in one county and summons issued to any other county and judgment entered, and then before the judgment could be resisted, when attempted to be enforced, a good defense to the cause of action would have to be shown. Such a burden is inconsistent with our statutes on the subject of venue, and should not be laid upon a defendant when an illegal service of summons is made outside of the jurisdiction of the court. It was therefore not necessary for the defendant to show a good defense to the cause of action before having said judgment held invalid.

The petition avers that the property of the Woodland Avenue and West Side Street Railroad Company was transferred by consolidation to the Cleveland City Railway Company, and that the latter company holds it in trust for the payment of the debts of the former company. Legally speaking this can not be true. The consolidated company holds the property which it acquired by consolidation, as its own, and not in trust. The liability of the constituent companies attaches to the consolidated company by virtue of the statute, and not by virtue of the law of trusts. In such cases the consolidated company becomes liable for the debts of the constituent companies, and may be compelled to pay them the same as its own debts, by judgment and execution. There is therefore no room for a creditor’s bill, because the consolidated company does not hold any property for the constituent companies, but for itself. The finding of facts shows that the Cleveland City Railway Company had no property in its possession or under its control belonging to the Woodland Avenue and West Side Street Railroad Company, and therefore, even conceding the validity of the judgment before the justice of the peace, the judgment of the circuit court was right upon the merits.

General creditors do not have a lien upon the property of constituent compapies before consolidation, nor afterward, unless such lien is established by judgment and execution according to law. There being no lien, and no rights in action or property to be reached by a creditor’s bill, the cause was properly decided in favor of the defendants. The action could not be sustained as one at law for damages against the consolidated company because the amount claimed is less than one hundred dollars, and for that reason the judgment in favor of the defendant was right.

There are some other matters urged by counsel for plaintiff in error as to which it is sufficient to say that they are not of sufficient weight to reverse the judgment.

•Judgment affirmed.


author: By the Court :

text:
    City of Findlay v. Pendleton and Whitely, Partners, Etc.

      Municipality contract with attorneys for legal service — Must conform to section 2702 Rev. Stat. — Invalidity of act of May 21, i8q2 — Authorizing certain cities to purchase real estate, etc.— Constitutional law.

    1. A contract made by a municipality with attorneys for legal services is void, unless the auditor or clerk first files and records a certificate, as required by section 2702, Revised Statutes.
    2. The act of May 21, 1892, 89 O. L., 168, being unconstitutional, the “Board of City Improvement Fund,” created by that act, never had power to make a contract binding the city for the employment of counsel to defend actions growing out of said act.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Hancock county.
    On May 2nd, 1898, George F. Pendleton and Fred P. Whiteley filed their petition in the court of common pleas against the City of Findlay as follows:
    “The said plaintiffs say that they are duly authorized and empowered to practice law in any court in the State of Ohio.

      That the City of Findlay is a municipal corporation duly incorporated under the laws of Ohio.
    That in the seventieth General Assembly of the State of Ohio there was passed a bill known as “Senate Bill No. 80,” and entitled “An act to authorize cities having a population at the last federal census of 18,553, or that may hereafter have such population, to issue and sell bonds of such city to purchase real estate and construct buildings thereon, and to own and control, lease and sell the same.”
    Among other things said act provided for the appointment of a board of city improvement fund, which board was to act in behalf of said city. Said board was authorized to take charge of all improvement bonds, sell the same and the money to be deposited with the city treasurer. Said board was also authorized to sue and be sued.
    That said City of Findlay, acting under said act hereinbefore set forth, and having the required population of 18,553, after complying with all the terms of said act, proceeded and organized said board of city improvement fund.
    That afterward, David Joy, W. B. Ely, L. 0. Glessner, C. D. Swalley and Ancil E. Marvin were duly appointed and qualified as members of said board of city improvement fund and entered upon their duties and did so act as said board.
    That while acting in the capacity of said board of city improvement fund there was sold city bonds to the amount of $15,000.00, the proceeds of said sale being placed in the custody of the city treasurer to the credit of said city improvement fund and there was afterward paid out of said fund upon contracts made by said board, the sum of $12,700.00, leaving a balance in the hands of said treasurer in the sum of $1,300.00, which amount has always remained in the custody of said treasurer, and is still in his custody.
    That afterward, to-wit, on the 29th day of March, 1895, one James T. Adams commenced an action in the court of common pleas against the City of Findlay and said board to restrain the issuing of another series of city bonds. That said board, acting under authority given them by said act, and acting on behalf of said city, the matter having been referred to said board by the council of said city, employed and retained said plaintiffs to defend said suit for said city, and’at the same time agreed to pay said plaintiffs the sum of three hundred and fifty dollars ($350) for their services in defending said action out of said fund of $1,300.00 now in the hands of said treasurer.
    Plaintiffs say that they defended said case, that a hearing was had in the common pleas and circuit courts of Hancock county and in the supreme court of Ohio. That said plaintiffs were at their own expense compelled to and did make several trips to Columbus, Ohio, to appear before the supreme court, and did prepare and have printed for use in said supreme court a brief for which they have never been reimbursed, said expense incurred by said plaintiff amounting in all to the sum of $22.75.
    That said city through its council has been requested to pay said plaintiffs plaintiffs’ claim, but that said council refused and still refuses so to do although said fund is in custody of the city treasurer to pay the same.
    Plaintiffs say that there is now due them from the City of Findlay the sum of $372.75 with interest from 22d day of December, 1896.
    Wherefore plaintiffs pray judgment against said defendant in the sum of $372.75 with interest from 22d day of December, 1896.
    To this petition the city of Findlay demurred, upon the ground that the said petition did not state facts sufficient to constitute a cause of action against the city.
    The demurrer was overruled and exceptions taken. The city then answered as follows:
    “First cause for defense: Now comes the eity of Findlay and for answer herein admits that plaintiffs are duly authorized and empowered to practice law in the state of Ohio, but denies each and every other allegation made in the petition except as herein specifically admitted.
    “Second cause for defense: The defendant for its second defense says, that the “Senate Bill No. 80,” in the petition referred to, is in controvention of the constitution of Ohio, and the same has been so held by the supreme court of Ohio, and that the same delegated no power to nor created any “board of city improvement fund,” and that said pretended board did not, and was not authorized by said act, or otherwise, to employ plaintiffs, nor to make the expense in traveling and printing as alleged in the petition.
    “Third cause for defense: The defendant for its third defense says that the pretended employment of plaintiffs was not authorized by any ordinance or resolution of the council of said city, or otherwise, and the clerk of said city did not then certify, nor has he since certified, that the money was in the city treasury of the city sufficient to meet such an expenditure or to pay such an obligation, in compliance with the statute in such case made and provided.”
    To the second and third defenses of this answer the plaintiffs duly filed a general denial.
    A jury was waived and the cause was heard by the court upon the pleadings, evidence and arguments of counsel, and was decided in favor of the city. A motion for a new trial was filed and overruled and exceptions taken, and a bill of exceptions was allowed and filed, and upon petition in error the circuit court reversed the judgment of the common pleas, and the controlling facts being conceded, the circuit court rendered judgment in favor of plaintiffs below for the full amount claimed in the petition.
    Thereupon the city filed its petition in error in this court, seeking to reverse the judgment of the circuit court, and for an affirmance of the court of common pleas.
    Upon the trial, as appears from the record, the controlling facts were conceded, and there was no conflict of evidence. The facts stated in the petition are conceded to be true, except the slight intimation that the attorneys were employed by the city council. It was conceded on the trial that the only employment was by the “board of city improvement fund.” The facts stated in the second and third grounds of defense were conceded to be true, but the conclusions of law therein were controverted. It was conceded that the clerk of the city, there being no city auditor, on each meeting night of the council made a full financial statement of the finances of the city, showing the status of each fund at the close of business on the previous meeting.

      Wm. F. Duncan, for plaintiff in error,
    This act was declared to be unconstitutional in the case in which the contract of employment of defendants in error is claimed, and on account of which this suit was brought. Adams v. Nemeyer, Mayor, 54 Ohio St., 614.
    An unconstitutional law creates no power to contract and even less “when a legislative enactment proves to be invalid it is for all legal purposes as if it had never been. Cooley’s Constitutional Law — Angell’s 2nd. Ed., p. 161; Norton v. Shelby County, 118 U. S., 425.
    When a municipal corporation acquires legal services, the obligation thus arising as a contract is no greater than where money is obtained by it upon an issue of bonds. One is as much a contract as the other, and their binding force is determined by the same rules. The holder of the bonds would be in the better situation, if there is any difference, especially if he were a bona fide holder for value before maturity, but even in this latter case, recovery cannot be had, where, as in the case at bar, there was no authority to make the contract. Parkersburg v. Brown, 106 U. S., 487; Hayes v. Holly Springs, 114 U. S., 120.
    There is a distinction between irregularities in the exercise of the power conferred and the total want of power to do the act, the distinction being between questions of fact and questions of law. The question made here is “want of power,” and is one of law. Beach on Public Corporations, Section 614; Brenham v. Bank, 144 U. S., 173; East Oakland v. Skinner, 94 U. S.,255; Supervisors v. Cook, 38 Ill., 44; 87 Am. Dec., 282; Bissell v. Kankakee, 64 Ill., 251; Rochester v. Bank, 13 Wis., 432, 80; Am. Dec., 746.
    It has been held in this state that an issue of bonds under an unconstitutional act may be enjoined at the suit of a tax payer. Simpkinson v. Bd. Pub. Wks., 13 Bull, 614; Gen. Term. Supr. Court, Cin.
    And that levy of a tax to pay the interest on bonds issued under an unconstitutional act may be enjoined at the suit of a tax payer. Counterman v. Dublin Township, 38 Ohio St., 515.

      Pendleton & Whiteley and John Poe, for defendants in error.
    At the time of the retainer the city and its said board, prima facie had such powers under this law, and they were then in the full exercise and enjoyment of the same. If the act conferred corporate power, it carried with it the usual authority to protect the property and funds in its possession from all attacks, and to retain attorneys to assist it if need be. It would seem to us that the power to employ servants, and to constitute such help and agencies as were apparently Avithin the scope of such power, is within the purview of the statute.
    The statute made it the duty of the city and its said board to perform the duties required by such act. Neither the city, its board nor its servants or retained attorneys could set up their private judgment against this law, or for that matter against any law passed by the.legislature. Neither could they ignore the law while being challenged in the courts. The decision ultimately given in the common pleas questioned its constitutionality. The decision in the circuit court sustained the law, or at least untied the city and its board and left the law as at first. When this court finally passed upon the law and pronounced it invalid, such decision bound everybody, for thereafter such decision would be read into every subsequent contract, and every subsequent retainer made under such void law. But such decision had no retroactive effect. Douglass v. County of Pike, 101 U. S., 677; Loeb v. Trustees, 6 U. S. Cir.; 41 Bull. 38, No. 3 Jan. 16, 1899.
    And every citizen of the state was bound to respect and obey said law the same as any and every other law until the constitutionality thereof was finally settled by this court. Its officers were clothed for the time being with all the powers given by the act and were bound to perform all the duties required by. it. State v. Gardner, 54 Ohio St., 24.
    .Shorn of circumlocution the common sense of the situation seems to be this: A law passed by the legislature of the state binds all its citizens in their public and private capacities, and they must regulate their conduct in conformity thereto, and unless the act attempts to deprive the citizen of some natural right, or some right reserved to him by the federal constitution, the statute is the law of the land until abrogated by judicial decree. The adverse view tends to anarchy and the dethronement of all law and order.
    But of course acts wholly unauthorized by any statute are void and vest thereunder no right nor title. Markley v. Mineral City, 58 Ohio St., 430.
    Here the retainer was made by its proper board and agent, and with its full knowledge and previously expressed request. It with full knowledge of every step taken in its behalf acquiesced therein and allowed without question of dissent the act intended for its sole benefit to be litigated in its name and behalf without dissent or disapprobation.
    Having thus accepted the benefits and full performance from the attorneys another principle of law governs the case.
    It is this in substance. Where a void or voidable contract not declared so by statute has been fully performed by one party and nothing remains for the other party to do but to pay the price agreed on, the courts will not permit the party who received the benefits to hold them and repudiate the obligation to the injury of the other party. Bank v. Chillicothe, 7 Ohio, part 2, p. 31; Weeden v. Railway Co., 14 Ohio, 564; Larwell v. Savings Society, 40 Ohio St., 274; Towsley v. Moore, 30 Ohio St., 184; Vanatta v. State Bank, 9 Ohio St., 27; Packet Company v. Shaw, 37 Wis., 655; Arms Co. v. Barlow, 63 N. Y., 62; S. C. 20 Am. Rep., 504; Cer. Cong. v. Stegner, 21 Ohio St., 488; Norton v. Blinn, 39 Ohio St., 145; Coodall v. Brewing Co., 56 Ohio St., 257.
    It seems to us to'be a novel view that when a municipal corporation is sued and the object of that suit is to restrain some disposition it may be about to make of its funds and property, and when common prudence requires it to act at once, that yet it cannot retain counsel to defend it because forsooth the very act creating the fund may be ultimately declared unconstitutionah
   By the Court :

The controlling facts in the case are conceded, and that leaves only a question of law to be determined, namely: Was the right judgment rendered upon the conceded facts? . Minnear v. Holloway, 56 Ohio St., 148.

The financial statement made each meeting night to the council by the city clerk as to the status of each fund, was not the equivalent of the certificate required by section 2702, Revised Statutes. The presence of the $1,300 in the treasury did not in legal effect dispense with such certificate. The object of that section is not only to show the presence in the treasury of sufficient funds unappropriated to meet the contract, but also to prevent such funds from being taken out of the treasury for any other purpose. That section provides that no contract or agreement involving the expenditure of money, shall be entered into, unless the clerk of the corporation shall first certify that the money required for the contract or agreement is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose, which certificate shall be filed and immediately recorded; and the sum so certified shall not thereafter be considered unappropriated until the corporation is discharged from the contract or agreement. * * * And that all contracts or agreements entered into contrary to the provisions of that section shall be void.

With the financial statement of the clerk, and the presence of the $1,300 in the treasury, there was still nothing to prevent the city authorities from using the money so in the treasury for other purposes, and then be compelled to make a levy on the general tax list to pay those attorneys’ fees. The filing of the proper certificate would have tied up the money in the treasury to be used only for the payment of those fees.

The act in question was declared unconstitutional and therefore void. Adams v. Nemeyer, 54 Ohio St., 614. It was void not only from the time it was declared unconstitutional, but it never had any validity, and could not be invoked as a foundation of a right to be enforced in a court of justice. Liabilities are occasionally enforced against parties growing out of proceedings under an unconstitutional act, as in Tone v. Columbus, 39 Ohio St., 281, and Mott v. Hubbard, 59 Ohio St., 199, hut such enforcement is not by virtue of the unconstitutional act, but by virtue of the acts of the parties whereby they have become estopped from contesting the liability against them.

Usually courts will leave the parties to a contract founded upon an unconstitutional act where they have placed themselves, and it will never invoke such act to aid in the enforcement of such contract when unexecuted, unless the parties have relied upon a previous judicial determination of a court of competent and final jurisdiction holding such act valid. Bader v. C. P. & V. Ry. Co., 61 Ohio St., 471.

The authorities cited by counsel do not conflict with these conclusions. The judgment of the circuit court will be reversed, and that of the common pleas affirmed.

Judgment of the cirouit court reversed, and that of the common pleas affirmed.