text:
    Paulin v. Sparrow. Paulin v. Sparrow.

      Jurisdiction — Lawful exercise presumed, when — Service of summons — Defective return — Jurisdiction of parties not defeated, when — Return may be amended, when — Judgment as to amendment final, when — Evidence and collateral suit.

    1. Where it does not otherwise affirmatively appear from the record, it will he presumed that a court of general jurisdiction regularly acquired and lawfully exercised its jurisdiction over the parties.
    2. Where a defendant has been duly and legally served with summons, a defective return by the officer making the service does not defeat the jurisdiction of the court over the person of a defendant legally served with process.
    3. A court has the authority to order the return of process amended in accordance with the facts relating to such service either before judgment or at any time after judgment that the evidence is available to establish the facts upon which the judgment of the court ordering the return amended is predicated.
    4. Where a defendant seeks to amend the return of the officer serving the process by striking out Certain matters and things stated therein in relation to the/ service thereof, and the court upon the evidence offered finds against the defendant and refuses to order the amendment, such judgment is final and conclusive upon the defendant until reversed, vacated or set aside by a court of competent jurisdiction, and the defendant cannot introduce evidence upon that issue or relitigate that question in a collateral suit.
    (Nos. 14277 and 14278 —
    Decided February 23, 1915.)
    Error to the Court of Appeals of Mahoning county.
    On the 13th day of May, 1885, Charles Davidson filed a petition in the common pleas court of Mahoning county against Mary J. Davidson and Emma S. Davidson, a minor, being cause No. 13818 on the civil docket of that court, averring among other things that he and William Davidson, late of Boardman township, Mahoning county, were brothers; that William Davidson died on the 26th day of December, 1884; that Mary J. Davidson is the widow of William Davidson and Emma S. Davidson, a minor, is the only child of said William Davidson, and that she has no duly appointed guardian; that on the 27th day of April, 1864, the plaintiff and William Davidson were seized in fee simple of certain tracts of land described in the petition and situated in Mahoning county, Ohio, each having an undivided one-half interest therein; that William Davidson entered into an agreement with the plaintiff to sell to the plaintiff the undivided one-half of the lands described in the petition for the sum of $1,360, which plaintiff paid in full; that William Davidson delivered the possession of said premises to plaintiff on the day and date of making this contract, and that the plaintiff has ever since remained in the quiet and peaceable possession of the premises as the owner thereof; that long after said William Davidson had sold these lands to plaintiff he married the defendant, Mary J. Davidson; that plaintiff has been in the actual possession of the real estate described and has occupied the same as owner thereof for more than twenty-one years last passed; that the defendants claim an estate or interest in said real estate adverse to plaintiff’s right, and prayed that his title might be quieted in and to real estate described in the petition as against the claims of said defendants or either of them.
    Mary J. Davidson, widow of William Davidson, waived the issuing and service of summons and entered her voluntary appearance, but filed no answer or other pleading. On the 7th day of September, 1885, summons issued, upon the precipe of plaintiff, for Emma S. Davidson, a minor, the sheriff making the following return thereof:
    “The State of Ohio, Mahoning County, ss.
    “Received this writ Sept. 7th, A. D. 1885, and pursuant to its command on the 7th day of Sept., A. D. 1885, I personally served the within named defendant, Emma S. Davidson by delivering to her a true and certified copy thereof with endorsements thereon. I also left a like copy with Mary J. Davidson with whom the minor child resides * * *.
    “Eli B. Walker, Sheriff,

    “By W. P. Prindle, Deputy Sheriff.” ■

    On the 16th day of February, 1912, Margaret Sparrow, who had succeeded to the interest of Charles Davidson in the land described in his petition, filed a motion in this cause to amend the sheriff’s return by adding thereto the following: “The said Mary J. Davidson being the mother of said defendant, Emma S. Davidson and the person having the care and control of said infant; diligent search having first been made by me, and no guardian or father of the said Emma S. Davidson being found, the father of the said Emma S. Davidson being deceased and there being no guardian.”
    Notice of this motion was served upon Emma S. Davidson, now Emma D. Paulin, the plaintiff in error in this action. Upon the hearing of the motion it was admitted by Emma D. Paulin, nee Emma S. Davidson, that at the time of the commencement of this action her father was dead, that she had no guardian and that she resided with her mother, Mary J. Davidson, but she denied the right of the court to amend the process of the sheriff as asked for in the motion and objected to the introduction of any evidence or admissions in support of the motion. Her objections were overruled and exceptions noted. Emma D. Paulin offered in her own behalf the affidavit of Mary J. Davidson. Objections were made to the introduction of this affidavit, but no ruling was made thereon by the trial judge. Mary J. Davidson, however, was then called as a witness and testified orally that she is the mother of Emma S. Davidson, now Emma D. Paulin; that as such mother she had the care, custody and control of Emma S. Davidson at the time service of summons in this action was purported to have been made upon her; that Emma S. Davidson was then a minor under the age of fourteen years; that her father was .dead; that no legal guardian had ever been appointed for her; that she then resided with her mother, the witness, in Mahoning county, Ohio, and that no service of any summons was ever made upon Emma S. Davidson or upon her as mother of said minor defendant. To the introduction of this evidence Margaret Sparrow objected. The objections were overruled and exceptions noted. No other or further evidence was offered and the court refused to amend the return in conformity to the testimony of Mary J. Davidson, but found the motion of Margaret Sparrow well taken and sustained the same and ordered the return of the sheriff amended in manner and form as stated in the motion, to which judgment Emma D. Paulin, nee Emma S. Davidson, excepted and filed a motion for a new trial, which motion was overruled. The court of appeals affirmed this judgment, and this proceeding in error (cause No. 14277) is now prosecuted to reverse the judgment of the court of appeals affirming the judgment of the common pleas court sustaining the motion to amend the sheriff’s return on the summons issued in said action, and refusing to further amend the return in conformity with the evidence ■ of Mary J. Davidson.
    On the 25th day of March, 1911, Emma D. Paulin, nee Emma S. Davidson, filed her petition in the common pleas court of Mahoning county against Margaret Sparrow, averring that she has a legal estate in and is entitled to the possession of the undivided one-half of certain real estate described in her petition (which is the same real estate described in the petition of Charles Davidson against Mary J. Davidson and Emma S. Davidson, filed in that court May 13, 1885). She avers that the defendant, Margaret Sparrow, unlawfully keeps her out of possession of said real estate and denies her right in and to said premises, and prays judgment for the possession of said premises against the defendant and for costs.
    To this petition Margaret Sparrow filed an answer, averring in her first defense that she is the sole owner of the premises described in plaintiff’s petition and denies that plaintiff has any interest therein and denies each and every allegation, statement and averment in the petition not expressly admitted to be true. For a second defense, she avers that the plaintiff’s cause of action, if any she has, arose more than twenty-one years before the commencement of the action and is barred by the statute of limitations. For a third defense she avers that she and those under whom she claims have been in open, notorious and adverse possession of this property for more than twenty-one years prior to the commencement of the action, and for a fourth defense she avers that on the 13th day of May, 1885, Charles Davidson, who was her predecessor in title and who was then the owner of all of the premises described in plaintiff’s petition, filed in the common pleas court of Mahoning county his petition against this plaintiff and her mother, Mary J. Davidson, to quiet his title to said premises, the same being cause No. 13818 in said court and being fully recorded in volume 69, page 475, of the records of said court. She further avers that such proceedings were had that a judgment was entered by the court quieting the title of Charles Davidson in and to this property as against the claims of Emma S. Davidson, now Emma D. Paulin, and the said Mary J. Davidson, and enjoining them and each of them from setting up any claim to said premises or any part thereof adverse to the title or possession of the said Charles Davidson.
    To this answer the plaintiff filed a reply, averring among other things that in the action in which the judgment pleaded in the defendant’s fourth defense was entered the court attempting to render that judgment had no jurisdiction of the' person of plaintiff; that she was never served with process in that action; that no answer in her behalf was filed in said cause by any one legally authorized so to do; that at the time said cause was pending and said pretended judgment and decree rendered therein by said court she was a minor under the age of fourteen years.
    The parties having waived a jury, this cause was submitted to the court upon the pleadings and the evidence. The defendant offered in evidence a transcript of the proceedings in the case of Charles Davidson against Mary J. Davidson and Emma S. Davidson, being cause No. 13818 on the civil docket of the common pleas court of Mahoning county, together with all the files and pleadings and all the proceedings had in that action, including the motion and proceedings thereon to amend the sheriff’s return, to all of which the plaintiff objected. The objections were overruled and her exceptions noted. The court on the issue joined found for the defendant and dismissed the plaintiff’s petition with costs. The court of appeals of Mahoning county affirmed this judgment of the common pleas court, and this proceeding in error (No. 14278) is prosecuted in this court to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming the same.

      Mr. Charles Koonce, Jr., and Mr. William Z. Davis, for plaintiffs in error.

      Messrs. Hine, Kennedy & Manchester, for defendants in error.
   Donahue, J.

The plaintiff in error contends

that the original return of the officer serving the summons upon her in cause No. 13818 on the civil docket of the common pleas court of Ma-honing county is fatally defective, that the decree of court purporting to determine her rights in the property described in her petition is void as to her, and that that court had no jurisdiction to order an amendment of the return of the officer to conform to the admitted facts. Counsel for defendant in error concedes that unless plaintiff in error was duly and legally served with summons in that action the judgment in that case would be void as to plaintiff in error and no bar to a recovery in the second action.

There is a substantial difference between defective service and defective return of service. If the service is defective the court acquires no jurisdiction over the person of the defendant and no jurisdiction to make or enter any order, judgment or decree binding upon a defendant defectively served with process, but if the service was in fact duly and legally made, as directed by the statutes of this state, the court has jurisdiction under the provisions of Section 11363, General Code, to order the return of the officer amended to speak the truth. Where it affirmatively appears from the record of a court of general jurisdiction that the defendant has not been legally served with process, a decree purporting to determine the rights of such defendant is void. If, however, the record is silent on the subject of service or upon any question material to the service it will be presumed that notwithstanding the silence of the . record the court had obtained jurisdiction over the person of the defendant. Lessee of Moore et al. v. Starks, 1 Ohio St., 369. The rule is well stated by Williams, J., in the case of Kingsborough v. Tousley et al., 56 Ohio St., 450, in this language: “The rule generally prevails, and is nowhere more firmly established than in this state, that when it does not otherwise affirmatively appear from the record, it will be conclusively presumed, whenever a domestic judgment of a court of general jurisdiction is drawn in question in any collateral way, that the court regularly acquired and lawfully exercised its jurisdiction over the parties.”

The original return of the sheriff in this case does not affirmatively show that the minor defendant was not legally served with process, but it does fail to state sufficient facts to show that the service was made in manner and form as the statute directs. The statute in force at the time of the' purported service of this summons provided that “When a defendant is under the age of fourteen years, the service must be upon him, and also upon his guardian, or his father; or, if neither his guardian nor his father can be found, then upon his mother, or the person having the care of such infant, or with whom he lives * * * (Section 5047, Revised Statutes of 1880.)

The petition in this action averred that Emma S. Davidson was a minor, that her father, William Davidson, was dead and that she had no duly appointed guardian. These facts should have been noted in or upon the summons as a guide to the sheriff in making the service. It does not appear, however, that anything was noted in or on the summons except that she was a minor. The return upon the summons is as follows: “* * * I personally served the with in named defendant, Emma S. Davidson by delivering to her a true and certified copy thereof with endorsements thereon. I also left a like copy with Mary J. Davidson with whom the minor child resides. * * This service of the summons in this case upon the minor defendant Emma S. Davidson, was in direct conformity with the statute providing for service of summons upon minors under fourteen years of age, but the return of the officer serving the process, taken alone, does not affirmatively show that fact. This return was defective in that it failed to state the facts, now admitted to be true, to-wit, that the father was dead and that no legal guardian had been appointed for the defendant, but in so far as the return states any facts that it was the legal duty of the sheriff to state in relation to the manner of service of summons it does not affirmatively show that the service was not properly made.

Upon the hearing of the motion to amend the return of the sheriff it was admitted by plaintiff in error that her father was then dead, that she had no legal guardian at the time and that she then resided with her mother, Mary J. Davidson, in Mahoning county, Ohio. These admissions, taken in connection with the return of the sheriff, show a valid and legal service of summons in that action, vesting jurisdiction in the court, not only to make and enter the decree against this defendant quieting the plaintiff’s title in the lands described in his petition but also to order the return to be amended by stating these facts therein, not for the purpose of conferring, by ex post facto amendment of the return, jurisdiction upon the court to render a valid judgment, for that judgment was either valid or invalid at the time it was rendered and the subsequent amendment could not change that fact, but rather for the purpose of affirmatively showing upon the record that the court had acquired jurisdiction by process over the person of the defendant and perpetuating the evidence of that fact.

The important question is not whether the return of service is defective, but rather, was the defendant in fact duly and legally served with process ? . So far as this defect in the return of the sheriff is concerned, the defendant is not now contending that she was not duly and legally served with summons. Her contention is that the original return does not fully show that fact. It is true that she disputes the facts stated in the return, but conceding for the present that the facts stated in the return are true and binding upon' her, then the only question is, Will a defective return which does not affirmatively show upon its face that no service was in fact made upon defendant defeat the- jurisdiction of a court over a defendant who was in fact legally served with process? If this defendant had come into court before judgment and moved to quash the service, and these further facts that are not stated in the return of the officer were admitted or proved, the court would have promptly overruled the motion to quash and ordered the return of the sheriff amended to speak the truth. If at any time after the rendition of this judgment, this plaintiff had made a direct attack upon it and it had been admitted or made to appear by the evidence that she had been duly and legally served with summons, but that the return of the sheriff was defective in that it did not show the facts authorizing the service of a copy of the summons to be made upon Mary J. Davidson, her petition would have been promptly dismissed.

It would be a strange construction of the law that would permit a defendant to admit that he had been duly and legally served with summons and yet deny the jurisdiction of the court to render a valid judgment against him merely because the return of the officer serving the process is defective.

Upon the hearing of the motion of Margaret Sparrow to order the return of the sheriff amended, the plaintiff in error denied the truth of the matters and things stated in the return of the officer in relation to the manner of service upon her. In support of this contention she offered as a witness Mary J. Davidson, who testified that at the time of the purported service the father of Rmma S. Davidson was dead, that she had no legal guardian, that she was then a minor under fourteen years of age and resided with the witness, who is her mother, in Mahoning county, Ohio, that no copy of summons was left with the witness and no copy of the summons was served upon this plaintiff in error. This was a question of fact for the court, to be determined as any other question of fact in the case. True, the plaintiff in error did not file a formal written motion to amend the sheriff’s return in conformity with this evidence, but that was the only purpose for which this evidence could be received. It was not pertinent to the questions raised by the motion of Margaret Sparrow. The court found that this evidence was not sufficient to contradict the return made by a sworn officer of the law; that the transaction to which this evidence related occurred so many years prior to the time the witness testified that the facts might have escaped her memory, notwithstanding she was testifying to the truth as- she now remembered it. That issue having been presented to the court in that case, its judgment thereon was final and conclusive upon the parties thereto until vacated or reversed by a court of competent jurisdiction, and she is not now entitled to relitigate the question or offer evidence touching the same issue in a collateral action.

The plaintiff in error prosecuted error to this judgment of the common pleas court, both as to its order sustaining the motion of Margaret Sparrow and ordering the return amended as therein requested and its refusal to further amend the return in conformity with the evidence of Mary J. Davidson. The second assignment of error in the petition in error complains of the exclusion of evidence. The affidavit of Mary J. Davidson was offered, objections made, but no ruling made by the court. Then Mary J. Davidson was called and testified orally as to all the matters and things contained in the affidavit. Even if the court had refused to receive the affidavit in evidence and its refusal to do so was erroneous, the error would be cured by the admission of the oral evidence of the same witness covering the same facts covered by the affidavit, and, therefore, the exclusion of the affidavit of that witness would not be prejudicial to plaintiff in error. The third assignment of error presents in effect the question of the weight of the evidence upon this issue. The court of appeals found that no error intervened to the prejudice of plaintiff in error and affirmed the judgment. This court will not review the judgment of the court of appeals upon the weight of the evidence.

“An official return duly made upon process by a sworn officer, in relation to facts which it is his legal duty to state in it, is, as between the parties and privies to the suit * * * conclusive of the facts stated therein, until vacated or set aside by due course of law.” Phillips v. Elwell et al., 14 Ohio St., 240.

The foregoing doctrine as announced in the case of Phillips v. Elwell et al., supra, has been materially modified by this court in the case of Kings-borough v. Tousley et al., supra, in which case it was held that, notwithstanding the rule as to legal presumption that obtains in favor of jurisdiction, “In an action on a personal judgment, whether rendered by a court of this state or elsewhere, it is competent to plead and prove in defense, though it be in contradiction of the record, that the defendant was not served with process, nor jurisdiction of his person otherwise obtained by the court rendering the judgment.”

The court in that case distinguished between an action in rem and one “that involves merely a determination of the personal liability of the defendant.” But that distinction is not here important for the reason that this plaintiff in error elected to proceed under the statute to obtain relief by an amendment of the return of the sheriff of service of summons in that case and prosecuted that form of relief to final judgment in the common pleas court and upon error in the court of appeals, and is now prosecuting error in this court to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming the same. Having elected her remedy she is concluded by the judgment unless this court in this error proceeding reverses that judgment and the judgment of the court of appeals affirming the same.

It therefore follows that the trial court properly-rejected evidence upon the same issue in the collateral suit.

It also appears from this record that a guardian ad litem was appointed for this minor defendant before she was duly and legally served with summons in this case. This would not effect the appearance of the minor nor give the court jurisdiction of her person. The appointment of a guardian ad litem is for the purpose of defense after appearance has been effected by service of process on infants. Lessee of Moore et al. v. Starks, supra. This guardian ad litem, however, did not file an answer until after legal process was complete. His appointment before service of process was irregular, and had she come into court in obedience to the summons legally served upon her she could have caused his removal and secured the appointment of another in his place, had she desired that to be done, but in view of the fact that at the time the answer of this guardian ad litem was filed she had been duly and legally served with process and made no objection whatever to the premature appointment of this guardian ad litem, or to his filing an answer in that capacity, she cannot now be heard to complain. The return as amended shows that the plaintiff in error was duly and legally served with process in the action of Charles Davidson against herself and Mary J. Davidson in cause No. 13818 on the civil docket of that court, and the fact that this return was not ordered amended prior to the judgment, or the next day or the next week or the next month after the judgment had actually been entered, is of no importance. The statute authorizing the court to order such an amendment does not limit the time in which such order may be made. It follows, therefore, that the only limitation of time that could apply would be the time in which evidence is available to establish the facts upon which the order of the court must be predicated. It is undoubtedly true that after a long lapse of time a court would be disposed to demand clear and convincing proofs before ordering the amendment of the return of process, particularly in contradiction of the facts stated therein, but in the particulars in which this return was ordered to be amended there is absolutely no conflict of evidence and no contradiction of the original return. The amendment ordered is merely supplementary thereto. The judgment in that case must be affirmed. The affirmance of this judgment practically determines the other case. While the record in that case presents other and further questions upon which either party might prevail in the absence of the former adjudication of the rights of the parties in this property, yet the fact that the judgment of the common pleas court in action No. 13818 on the civil docket of that court, quieting the title of Charles Davidson in and to these premises as against the claims of this plaintiff in error, is a valid and subsisting judgment, binding on the plaintiff in error and conclusive of her rights in the property described in the petition, necessarily disposes of the second case regardless of the other questions presented therein, and the judgment in that case is also affirmed.

Judgments affirmed.

Nichols, C. J., Johnson, Wanamaker, Newman, Jones and Matthias, JJ., concur.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    Castle v. Mason.

      Constitutional law — Operative effect of law determinative, when— Oil inspection — Lawful exercise of police power, when — Ohio inspection act unconstitutional — Clause 2, Section 10, Article I, U. S. Constitution — Interstate commerce.

    1. The constitutionality of a law may be determined by its operative effect, though on its face it may be apparently valid.
    2. The state has full power to enact proper laws for the inspection of oils, gasoline, petroleum-ether and like substances; and legislation relating to such inspection, if otherwise valid, is not void as an unlawful exercise of its police power.
    3. The Ohio inspection act, in so far as the same affects interstate commerce, contravenes clause 2, Section 10, Article I of the Federal Constitution and is unconstitutional and void for the reason that it imposes a burden on such commerce, by way of fees, largely in excess of the expenses necessary for executing the inspection law.
    (No. 14637 —
    Decided March 2, 1915.)
    Error to the Court of Appeals of Franklin county.
    This action was originally begun by the plaintiff in error in the court of common pleas and appealed to the court of appeals of Franklin county. In the latter court the defendant below, the defendant in error here, demurred to the amended petition for the reasons: (1) The plaintiff had no legal capacity to sue; (2) the amended petition did not state a cause of action. The court of appeals sustained the demurrer and dismissed the amended petition. From that judgment error is prosecuted to the supreme court.
    The amended petition states that Castle is engaged in the manufacture and sale of oils and other petroleum products at Cleveland, Ohio, under the name of the Commercial Oil Company, states in detail the character of property and equipment used in a long-established commercial ’ trade involving the purchase and sale of those products; that he “buys large quantities of petroleum oils, gasoline and naphtha from refineries in the state of Pennsylvania and elsewhere and has contracts and arrangements for such supplies which he is bound to consummate and can only do so through his established business without great loss.” It further alleges that the defendant, as state inspector of oils,, and his predecessors in office, have enforced an act passed by the general assembly on May 9, 1908, entitled, “An act to provide for the inspection of oils, gasoline and naphtha,” now found in Sections 844-871 of the General Code; that the act is not a proper exercise of the state’s police power for the reason that danger to life and property, through the proper use of those products as now manufactured, cannot exist; that the act is revenue producing in character, and that the total amount of fees and revenues collected and the actual, necessary expense disbursed under the provisions of the law from the years 1907 to 1913, both inclusive, are as follows:
    Year. Receipts. Disbursements. Revenue.
    1907 ........ $33=o66 $18,615 $14=45!
    1908 ........ 55=8i5 21,706 34,109
    1909 ........ 88,037 36,999 51,038
    1910 ........ 99=523 39=548 59,975
    1911 ........ 107,972 40,835 . 67,137
    1912 ........ 123,693 '42,576 81,117
    1913 ........ 130=607 42,558 88,049
    Totals ... 638,713 242,837 395=876
    It is further alleged that the present inspection law, adopted in 1908, ratably increased the general fees for oil inspection and the incidental salaries and expenses beyond the fees, salaries and expenses theretofore paid, and statements from the reports of the inspectors are pleaded tending to show that the department regarded the operation of the law as a revenue producer, and that the receipts were largely in excess of inspection requirements. The pleading further alleges that the law, particularly Section 850, General Code, and the imposition of the tax thereunder, violates the spirit and letter of the Fourteenth Amendment and of clause 2, Section 10, Article I of the Federal Constitution; that it violates the various sections of the Ohio Bill of ■ Rights, and particularly Sections 2 and 5 of Article XII of the Constitution of Ohio, in that the inspection fees charged are excessive and were intended for revenue purposes. It is also alleged that, because of the imposition of such inspection fees upon him as dealer in illuminating oils, he is unable to sell these products to railroad companies and paint and varnish makers for their own consumption for the reason that the latter may import these products from other states without the payment of inspection fees, and that thereby the plaintiff is denied the privileges of equal protection guaranteed by the fourteenth amendment of the federal constitution; that the defendant threatens to enforce the civil and criminal features of the act against him unless restrained by the courts, and he prays generally for relief against such enforcement and that the act be declared unconstitutional and void.

      Mr. C. D. Chamberlin and Messrs. Wilson & Rector, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general; Mr. James I. Boulger and Mr. Clarence D. Laylin, for defendant in error.
   Jones, J.

The question involved here is whether the provisions of the oil-inspection law contravene either the federal or state constitutions. The provisions of that act, so far as they may be germane to the determination of this question, are as follows: Section 850 of the General Code requires each owner of oil inspected to pay certain fees, graduated according to the amount inspected, ranging from a fee of fifty cents for single packages or barrels to seven cents per barrel of fifty gallons in lots exceeding fifty barrels.

Section 853 requires the inspector to pay into the state treasury the moneys received after payment of salaries of himself and deputies and such .other expenses incident to the conduct of his office. The inspector and stenographer are paid stated salaries and the deputies fees of three cents for each barrel inspected, but not to exceed $1,200 per annum for each deputy in any one year.

Sections 854 and 865 provide that, before being offered for sale to customers for illuminating purposes, petroleum oils or products of which petroleum is a constituent element shall be inspected, whether manufactured in this state or not. Likewise gasoline, petroleum-ether and like substances having a lower flash test than illuminating oils must be inspected whether manufactured within or without the state, for which the same fees are charged as for the inspection of oils and which are likewise paid into the state treasury. The statutory test for oils, gasoline, etc., is a flashing test of 120 degrees Fahrenheit.

Other sections of the act provide for the inspection of oils shipped in tank cars, which may be inspected either at the refinery where manufactured, if within the state, or at the distributing station where shipped, at the discretion of the inspector.' Other sections of the act provide penalties for violations of its provisions.

Assuming that the inspection act violates either the federal or state constitutions, the plaintiff, under the allegations of this amended petition, would be entitled to relief. He states that he is engaged at Cleveland, Ohio, in dealing commercially in petroleum oil and its products, and buys large quantities of such oils, gasoline and naphtha from the refineries in Pennsylvania and elsewhere, and that the defendant has charged arbitrarily large fees grossly in excess of the expense of the inspection. The plaintiff is seeking relief against the defendant as a ministerial officer of the state, whom he claims is acting under an unconstitutional law to the detriment of his business.

That a complainant may have relief by injunction in such a case against an officer of the' state has been repeatedly decided. Louisiana v. Jumel, 107 U. S., 711, 758; In re Tyler, 149 U. S., 164; Smyth v. Ames, 169 U. S., 466.

It is contended by plaintiff that the enactment of the oil-inspection law was not a valid exercise of the police power, and that it contravenes the fourteenth amendment of the federal constitution. That state legislatures may enact laws for inspection or regulation, in relation to petroleum oils or its products, is not now open to question. So long as congress has not invaded the field of regulation or inspection this power is reserved in the state. It has the exclusive right to determine the necessity, policy and wisdom of requiring inspection in the interest of public safety. That kerosene oil, as now manufactured, may be nonexplosive is not vital. The fact that such may or can be manufactured or sold in dangerous forms is vital. For the same reason there is no force in the allegation of the amended petition that it is not a proper exercise of the police power for the reason that danger to life and property from the proper use of illuminating oils, gasoline and naphtha has not existed for years. The legislature had a right to consider the fact that there might be danger from improper use. Substantially similar reasons were plead in the bill filed in the case of Red “C” Oil Mfg. Co. v. Bd. of Agriculture of North Carolina, 222 U. S., 380, 383, but the law was upheld there as a proper exercise of the police power (s. c. 172 Fed. Rep., 695).

The amended petition discloses that, especially in the later reports of the state inspector, the fees for gasoline inspected were largely in excess of the fees collected from the inspection of oils; that without the gasoline inspection features, in such an event, there would be no appreciable excess of revenue over the expense of operation, in the inspection of petroleum oil products. Counsel for the inspector therefore intimate that the sections of the law relating to oils and gasoline are separate and distinct, and that therefore the oil-inspection receipts would substantially equalize the expense of the inspection department, and thus would be a valid enactment.

The adoption of this view, of course, would nullify that part of the act relating to the inspection of gasoline, petroleum-ether and like products for the obvious reason that the treasurer would thus receive about $320,000 for gasoline receipts without a dollar’s outlay for expense, which, in such view, would be charged entirely to oil inspection.

This view of the law cannot be maintained. While the legislative history relating to inspection does not show that originally the inspection of oils was provided for, on May 9, 1908, the general assembly revised its entire inspection laws on the subject, providing for the inspection of petroleum and gasoline in the same act. No separation of those products was made, but each was made subject to the same laws, charged with the same fees, and the commingled receipts required to be paid into the state treasury. It is impossible, therefore, to regard the act as a separate and distinct act and severable, and the inspection features must either fall or stand as a single pronouncement of legislative intent.

The allegations of the amended petition disclose an increasing yearly net revenue in the operative effect of the inspection law. A law may be within the pale of constitutional authority when originally passed, yet because of its future operations it may directly contravene the organic law. As stated by Mr. Justice Harlan, in Minnesota v. Barber, 136 U. S., 313, 319, “There may be no purpose upon the part of a legislature to violate the provisions of that instrument, and yet a statute enacted by it, under the forms of law, may, by its necessary operation, be destructive of rights granted or secured by the constitution. In such cases, the courts must sustain the supreme law of the land by declaring the statute unconstitutional and void.” To the same effect are Brimmer v. Rebman, 138 U. S., 78, and Poindexter v. Greenhow, Treas., 114 U. S., 270.

Article I, Section 10, clause 2, of the Federal Constitution provides: “No state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.”

As heretofore stated, the facts admitted by the demurrer are that the receipts from inspection have been more than double the necessary disbursements for costs and expenses from 1907 to the present year. In that time the excess in receipts over disbursements has been $395,876, and the yearly net revenues are continually increasing. Though not a part of the record, I may be permitted to add that the report of the state inspector for the current year of 1914, just filed, shows a net surplus of $99,444.08 under this act. Under these circumstances the court feels warranted in holding that the resultant operation of the law is in direct and flagrant conflict with the federal constitution. We are not unmindful of the fact that if properly exercised the legislative purpose, in laying inspection duties, cannot be inquired into, and that, ordinarily, the amount of the inspection fee is not a judicial question; but it may be subject to judicial attack if the inspection charges are so unreasonable and disproportionate to the service rendered as challenge the good faith of the law, or where it is made clearly to appear that they are obviously and largely beyond what is needed to pay for the cost of inspection. D. E. Foote & Co. v. Stanley, Comp, of the State of Maryland, 232 U. S., 494; New Mexico, ex rel., v. Denver & Rio Grande Rd. Co., 203 U. S., 38.

It is not necessary that the legislature determine with exact nicety the amount of the inspection charges required to carry its purpose into execution. This is manifestly impossible owing to the varying fluctuations of trade. Mere excess in net surplus revenues is of itself no warrant in disturbing the law, nor would we feel disposed to hold that a flagrant excess in a single year over the expenses would invalidate it. What we do hold is, that under the facts disclosed here, where it appears that the fees are not only excessive but are being continued, yielding each and every year increasing net revenues, the natural operative effect of the inspection act thus shown is in direct violation of Article I, Section 10, of the United States Constitution, and consequently void. D. E. Foote & Co. v. Stanley, Comp. of the State of Maryland, supra.

The majority members of the court of appeals, in sustaining the demurrer to the amended petition, relied chiefly upon the case of Red “C” Oil Mfg. Co. v. Bd. of Agriculture of North Carolina, supra. In that case Chief Justice White quoted a dictum in Patapsco Guano Co. v. North Carolina Bd. of Agriculture, 171 U. S., 345, 354, as follows: “If the receipts are found to average largely more than enough to pay the expenses, the presumption would be that the legislature would moderate the charge.”

Both cases are easily distinguishable from the present one. In the Red "C” Oil Mfg. Co. case the complaining party filed his bill two days after the inspection law took effect, and while the bill alleged that the tax was more than double the cost of inspection, the complaint was purely speculative. The defense of the board of agriculture, as disclosed by the answer in that case, was that the complaint was premature and that one year’s test of the law would show the exact amount of receipts and cost of- operation. It was upon these features of the case that the dictum named was based.

The defendant attempts to escape the effect of D. E. Foote & Co. v. Stanley, Comp, of the State of Maryland, supra, by the claim that the Ohio act does not interfere with interstate commerce; that the act imposes a charge upon oils, etc., that are sold in this state only, ,and that after products have been imported into Ohio by tank cars or otherwise they have then assumed a state of rest as intrastate commerce and may be taxed without violation of the federal provision. This is too narrow a construction of the facts pleaded and of the scope of the Ohio act. The act is not in terms made to apply to intrastate products, but applies generally to any and all oils, gasoline, etc., “whether manufactured in this state or not.” The language employed would require inspection of products shipped into the state, and the features of the inspection would necessarily, though indirectly, impose a burden upon interstate commerce. The amended petition alleges that the plaintiff, though a dealer in Cleveland, Ohio, buys large quantities of those products in Pennsylvania and elsewhere, and has contracts and arrangements for such supplies. The general language used in the Ohio act is substantially similar to the North Carolina act in the Red “C” Oil Mfg. Co. case, supra, and to the Maryland inspection law, declared void in D. E. Foote & Co. v. Stanley, Comp, of the State of Maryland, supra. That inspection laws of this character impose a burden on commerce from other states, see Brimmer v. Rebman, supra.

Neither can the claim be sustained, under the allegations of the amended petition, that the products inspected under the act could be considered as having been incorporated with the general mass of property in the state and thus have lost their distinctive character as imports, and so become products of intrastate commerce. The fact is that Castle, at Cleveland, Ohio, was dealing directly with shipments .of oil from Pennsylvania, and the products he received as such purchaser must, of necessity, have been shipped to him in original packages, which were required to be inspected before sale. So that neither the amended petition nor the inspection act can be susceptible to such a construction as would apply its provisions to packages which had become intrastate. May & Co. v. New Orleans, 178 U. S., 496.

We are, therefore, constrained to hold that the inspection act necessarily operates and imposes a burden upon commerce from other states, and that in so far as the same affects such commerce it violates the federal constitution and is unconstitutional and void for the reason that it imposes a burden on such commerce largely in excess of the expense necessary for inspection.

In view of the conclusions which we have reached, we do not regard it necessary to pass upon the other questions presented.

Judgment of the court of appeals reversed, and 'cause remanded to that court with instructions to overrule the demurrer to the amended petition, and for further proceedings according to law.

Judgment reversed, and cause remanded.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Matthias, JJ., concur.


author: Newman, J.

text:
    In re Contest of the Special Election at Village of Chagrin Falls.

      Elections — Opening and closing polls — Statutory provisions directory — Keeping polls open after statutory hours — Does not invalidate election, when.

    1. The provision of the statute fixing the time for opening and closing the polls at an election is directory and not mandatory. (Fry v. Booth, 19 Ohio St., 25, approved and followed.)
    2. An election will not be invalidated by reason of the fact that the election officers, instead of closing the polls at 5 :30 p. m. as directed by statute, kept the same open until 6:00 o’clock p. m., where there was no fraud or collusion and where there were not illegal votes cast after the time fixed by statute for closing sufficient to change the result of the election.
    (No. 14636 —
    Decided March 2, 1915.)
    Error to the Court of Appeals of Cuyahoga county.
    Facts are stated in opinion.

      Messrs. Spear, Mills, Knight & Godfrey, for plaintiff in error.

      Messrs. David & Heald, for defendant in error.
   Newman, J.

The only question for determination in this case arises upon a demurrer to the petition filed in an election contest proceeding begun in the probate court of Cuyahoga county. The demurrer filed by the mayor of the village of Chagrin Falls was sustained by the probate court and the contestant not desiring to amend or plead further judgment was rendered against him. Error was prosecuted to the court of common pleas and the judgment of the probate court there affirmed. This judgment of the court of common pleas was reversed by the court of appeals and the cause remanded to the probate court with instructions to overrule the demurrer and for further proceedings according to law. The mayor of the village has filed a petition in error in this court and seeks a reversal of the judgment of the court of appeals.

An election was duly and legally called to be held in the village of Chagrin Falls on August 2, 1913. The mayor in his proclamation, published according to law, notified the voters of the village to meet at the usual places of voting, two in number, on Saturday, August 2, 1913, between the hours of 5 :30 o’clock a. m. and 5 :30 o’clock p. m., central standard time, to vote upon the question as to whether the sale of intoxicating- liquors should be prohibited in the village. On the day of the election a cloth banner was displayed in each of the polling places containing in large black type the following: “Special Election to-day, Polls open from 5:30 a. m. to 5:30 p. m.”

The above facts appear in the petition and then follow these allegations:

“Your petitioner further represents to the court that the duly appointed judges of said special election, or one of them, caused to be erased on said printed banner, the printed figures 5:30, and under said figures in lead pencil, marked 6:00, so as to make said banner- read as follows: ‘5:30 A. m. to 6:00 p. m/

“Your petitioner further represents to the court that when the votes cast at said special election were counted, it was found and determined by the officers canvassing the votes of said special election, that the sale of intoxicating liquors as a beverage in said village was prohibited by a majority of two votes.

“Your petitioner further represents that the judges and clerks of said election, contrary to law, and in violation thereof, and contrary to the mayor’s published proclamation of said special election, and contrary to the printed banners required to be displayed on each polling place, kept the polls open thirty (30) minutes longer than is provided by law, and as provided for and published in said proclamation, and on said printed banners.

“Your petitioner further represents to the court that after 5:30 p. m., central standard time, being the time fixed by law, by said proclamation and by said printed banners, a large number of votes were cast by the legally qualified voters of said village in favor of prohibiting the sale of intoxicating liquors as a beverage, in said village, which said votes so received by the election officers, after the lawful time for closing said polls, changed the result of said election; and had the law been observed and the polls closed at the time provided by law, by said proclamation and by said printed banners, the result of said special election would have been different than now appears upon the face of the poll books of said special election, and the sale of intoxicating liquors as a beverage in said village would not have been prohibited at said special election.”

The petition prayed that notice be given to the mayor of the village of the pendency of the action and that on final hearing the court declare the election to be void and the returns certified by the election officers to be of no force and effect.

The sufficiency of the petition was challenged because of the failure to allege the presence of fraud or deception, that any legal voters were deprived of the opportunity to vote or that illegal voters were permitted to vote.

It is the contention of counsel for the contestant, the defendant in error here, that if, after the legal time for closing the polls, enough votes were cast to make different the result of the election from that result as computed from the votes cast at the hour the polls should have been closed according to law, then the election was void. It is alleged in the petition that had the polls been closed at 5:30 p. m. the sale of intoxicating liquors would not have been prohibited at said election.

This election was held under the Beal local-option law, in which it is provided that the election shall be conducted as provided by law for the election of members of council of the municipal corporation where the local-option election is held.

Section 5056, General Code, as amended February 6, 1913 (103 O. L., 21), reads: “The polls shall be open at five thirty o’clock forenoon and kept open up to, and closed at, five thirty o’clock, central standard time, in the afternoon of the same day.” Prior to the amendment the time of closing the polls was fixed by the statute at 6 o’clock.

There are certain provisions of law relating to elections and the conduct thereof which are mandatory, but those fixing the time for the opening and closing of the polls have been held uniformly to be directory merely, unless such provisions are declared to be essential by the statute itself. Fry v. Booth, 19 Ohio St., 25; Montgomery v. Henry, 144 Ala., 629, 1 L. R. A., N. S., 656, and the cases cited.

The purpose of a popular election is to ascertain the will of the electors as to a given proposition submitted to them or as to who shall serve them as officers. Where there is a fair and honest expression of the will of the electors and where there is no fraud and where no substantial right is violated, an election will not be invalidated by reason of a failure to follow directory provisions of the law. In the instant case it is not claimed that any votes were cast after the legal time for closing the polls which were not entitled to be cast had they been cast within the hours fixed by statute. It is conceded that the polls were not kept open by the election officers after the time fixed by law for the purpose of altering, changing or affecting in any way the result of the election, nor was there any fraud or collusion. It was simply'an innocent noncompliance on their part with the directory provision of the statute relating to the closing of the polls, unaware, perhaps, of the fact that Section 5056 had been amended.

Was the purpose of this election — the securing of a fair and honest expression of the will of the electors as to whether intoxicating liquors should be sold as a beverage in the village — interfered with? From aught that appears in the petition every elector in the village voted. No one was deprived of his vote. No illegal vote was cast. There was no impediment or obstruction to a fair expression of the will of the electors.

In Fry v. Booth, supra, where the polls were closed “for the hour spent at dinner,” the court say that a departure from a strict observance of the provisions of the statute as to keeping open the polls does not necessarily invalidate the election where it appears that no fraud has been practiced and no substantial right violated.

Were the polls closed at a time earlier than that fixed by law and qualified voters were thereby prevented from voting, and it could be shown that the result of the election would have been materially changed had the polls been kept open up to the time fixed by law, then it might be said that there was an interference with the free and full expression of the majority. But keeping, open the polls after the time fixed by law and permitting no one to vote except qualified voters does not have that effect.

The failure of the election officers to observe this directory provision of the statute did not render the votes of qualified electors cast after the time fixed by law illegal. Those cast after the time fixed by law were as expressive of the will of the electors as those cast before.

It not appearing in the petition that there was fraud, or that illegal votes were cast after the time fixed by law for closing the polls, or that any substantial right was violated, or that there was any interference with a fair and honest expression of the will of the electors, a cause of action is not stated. The probate court was correct in sustaining the demurrer, and the judgment of the court of appeals is therefore reversed and that of the common pleas affirmed.

Judgment of the court of appeals reversed and that of the court of common pleas affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Jones and Matthias, JJ., concur.


text:
    In re Harry Allen.

      Repeal and amendment of statutes — Provisions continuous and undisturbed, when — Section 16, Article II, Constitution — Section 12672, General Code — Unlawful sale of cocaine — Penalty for second offense — Definite term and indeterminate sentence— Habeas corpus — Validity of indeterminate-sentence law cannot be raised, how.

    1. Where there is reenacted in an amendatory act provisions of the original statute in the same or substantially the same language and the original statute is repealed in compliance with Section 16, Article II of the Constitution, such provisions will not be considered as repealed and again reenacted, but will be regarded as having been continuous and undisturbed by the amendatory act.
    2. The provision of Section 12672, General Code, as amended April 21, 1910, that where a person has been convicted of a second offense he shall be imprisoned in the penitentiary is not ex post facto or retroactive when applied to a case where the second offense was committed after the enactment of the provision for the punishment of the second offense although the first offense was committed prior to the enactment of such provision.
    3. Where a person who is convicted of a crime under a statute prescribing punishment by imprisonment in the penitentiary for a definite number of years is given an indeterminate sentence the question of the validity of the statute authorizing such indeterminate sentence cannot be raised in a proceeding in habeas corpus.

    (No. 14687 —
    Decided March 2, 1915.)
    Application for Writ of Habeas Corpus.

    This is a proceeding in habeas corpus originating in this court. The petitioner, Harry Allen, represents that he is unlawfully restrained of his liberty by P. E. Thomas, warden of the Ohio penitentiary. A copy of the commitment is attached to the petition as an exhibit. The petitioner says that he is confined in said institution by reason of a sentence imposed on October 31, 1911, by the court of common pleas of Lucas county, Ohio, for the confessed illegal sale of cocaine, which offense was committed on March 9, 1911, the same being the first offense of said nature committed by him after the amendment of Section 12672, General Code, April 21, 1910 (101 O. L., 132). He admits that he had committed a like offense prior to April 21, 1910, and had been prosecuted and punished therefor.
    He says that the court sentenced him to serve in the penitentiary “until released according to law,” whereas the penalty for a first offense under Section 12672 was a fine of not less than fifty dollars nor more than five hundred dollars, and for each subsequent offense imprisonment in the penitentiary for a period of not less than one year nor more than five years.
    He says that the sentence imposed upon him, under which he is confined in the penitentiary, was illegal and utterly void for the reasons that said offense being the first committed by him after the amendment of Section 12672, April 25, 1910, the court was without jurisdiction to impose a prison sentence and should have imposed a fine of not less than fifty dollars nor more than five hundred dollars, and because the sentence imposed by the court was an indefinite sentence and one which the court was without power to impose for the reason that that part of the law, Section 7388-6, Revised Statutes, empowering the court to impose an indefinite sentence, was repealed February 14, 1910, upon the adoption of the General Code, and further, if the court should hold said repeal not effective, then Section 7388-6 was unconstitutional and void, the same being in contravention of Section 11 of Article III and Section 1 of Article IV of the Constitution of Ohio, and did not confer upon the court any lawful authority to impose an indefinite sentence of imprisonment in the Ohio penitentiary, and, finally, because if said court had any power to pronounce a prison sentence upon him, then, under the mandatory provisions of Section 12374, General Code, said sentence should have been for a definite term of not less than one year nor more than five years, as provided in Section 12672, which minimum term of one year, the only one which this court can be absolutely certain would have been legally imposed by the court of common pleas as a definite sentence, has been long since served and completed.
    The petitioner prays that a writ of habeas corpus be issued to said P. E. Thomas as warden, and that petitioner may be discharged from such illegal imprisonment and restraint.
    P. E. Thomas, warden of the Ohio penitentiary, in his answer and return, admits that the petitioner is confined in the penitentiary and deprived of his liberty, but denies that he is unlawfully or wrongfully detained or held therein.

      Mr. William K. Williams, for petitioner.

      Mr. Timothy S. Hogan, attorney general; Mr. Walter L. Connors and Mr. James I. Boulger, for P. E. Thomas, warden of the Ohio penitentiary.
   Newman, J.

The petitioner was indicted under Section 12672, General Code, charged with the illegal sale of cocaine, the offense having been committed on March 9, 1911. He entered a plea of guilty and was sentenced indeterminately to a term of from one to five years in the penitentiary under the provisions of what is known as the old indeterminate-sentence law, Section 7388-6, Revised Statutes, and under this sentence he is now confined in the penitentiary.

Section 12672, as amended April 21, 1910, reads as follows: “Whoever sells, barters, furnishes or gives away any quantity of cocaine, alpha or beta eucaine or alypin, or any of their salts or compounds, or any preparation or mixture containing any of the aforesaid drugs or their salts or compounds of any of the combinations, of the same, * * * shall be fined not less than fifty dollars, nor more than five hundred dollars, for the first offense, and for each subsequent offense shall be imprisoned not less than one year nor more than five years in the penitentiary.”

The petitioner had been convicted and punished for an illegal sale of cocaine made on May 19, 1909.. The statute under which he was then convicted did not contain the following language which appears in the amended statute: “for th§ first offense, and for each subsequent offense shall be imprisoned not less than one year nor more than five years in the penitentiary.”

The provisions of the statute under which petitioner was first convicted were substantially reenacted in the amended statute. In the latter the sale of additional drugs named therein is made criminal, the sale of cocaine, however, being prohibited both before and after the amendment. The principal difference is the provision for punishment of subsequent offenses by imprisonment in the penitentiary.

One of the grounds upon which petitioner predicates his right to a writ of habeas corpus is that the offense for which he is now serving sentence was his first offense under the amended statute, and he should therefore have been sentenced as a first offender notwithstanding'his prior conviction under the statute before its amendment.

If the amendment to the statute abrogates and repeals the original law as to those parts which have not been altered in the amending act, then his contention is well founded, but not so if the amendment is simply a continuance thereof in so far as the language of both are identical or substantially so.

By the act of April 21, 1910; when this statute was amended, the original statute was repealed. This was done under the requirements of Section 16 of Article II of the Constitution as follows: “No law shall be revived, or amended unless the new act contains the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.”

As was said in State, ex rel. Durr, v. Speigel, ante, 19, in reference to this constitutional provision: “The obvious purpose of this provision of the constitution was to avoid the confusion caused by the distribution of different parts of the same section in different enactments; but there was no intention to change the operation of the original section as to provisions which are not changed.”

In Eli et al. v. Holton, 15 N. Y., 595, it is held that the effect of the amendment of a statute made by enacting that the statute “is amended, so as to read as follows,” and then incorporating the changes or additions with so much of the former statute as is retained, is not that the portions of the amended statute which are merely kept without change are to be considered as having been repealed and again reenacted, nor that the new provisions or changed portion should be deemed to have been the law at any time prior to the passage of the amended act. The part which remains unchanged is to be considered as having continued the law from the time of its original enactment, and the new or changed portion to have become the law only at and subsequent to the passage of the amendment. To the same effect is the holding in Moore v. Mausert et al., 49 N. Y., 332.

“When a statute amends a former statute ‘so as to read as follows;’ it operates as a repeal by implication of inconsistent provisions in the former law and of provisions therein omitted in the latter. When the amendatory act reenacts provisions in the former law, either ipsissimis verbis or by the use of equivalent though different words, the law will be regarded as having been continuous, and the new enactment, as to such parts, will not operate as a repeal, so as to affect a duty accrued under the prior law, although, as to all new transactions, the later law will be referred to as the ground of obligation.” In the Matter of the Estate of Prime, 136 N: Y., 347.

In these New York cases it does not appear that in the amendatory statute there was an express repeal of an existing statute as there was in the statute in the case at bar, but the intention manifested in each instance by the legislature is the same. As is stated in Sutherland on Statutory Construction (2 ed.), section 238, where there is an express repeal of an existing statute and a reenactment. of a portion of it, the reenactment neutralizes the repeal so far as the old law is continued in force. The intention manifested is the same as in an amendment enacted in the form “amended so as to read as follows,” and where there is no express repeal. This author, in section 237, lays down the rule that the provisions of the amended sections which are merely kept without change are not to be considered as repealed and again reenacted but to have been the law all along.

In State, ex rel. Durr, v. Speigel, ante, 22, it is said: “The presumption is that when the legislature adopts an amendment it intends to make some change in the statute amended, and when it reenacts the original statute as amended it has then made the only change it desires to make, leaving the rest of the provisions undisturbed.”

This seems to be the general rule of statutory construction, and, applying it here, the provision of the statute making it an offense to sell, cocaine otherwise than as pointed out by the statute was continued in force and was undisturbed by the amendment, the conviction of Allen for the offense committed March -11, 1911, was a second conviction under the statute and the provision for the punishment of subsequent offenses applied.

This statute was amended prior to the commission of the second offense. It does not provide additional punishment for an' offense committed before its passage nor does it in any way affect previous crimes. It is applicable to crimes committed after its passage only, and affects all persons similarly situated.

In Blackburn v. State, 50 Ohio St., 428, the court had before it what was known as the habitual-criminal act (82 O. L., 237), which imposed life imprisonment upon one who had been previously twice convicted, etc. It was held that that statute in its operation did not conflict with Section 10 of Article I of the Constitution of the United States prohibiting ex post facto laws, nor with Section 28, Article II of the Constitution of this state, prohibiting retroactive laws, although one or both of the previous felonies charged against the accused had been committed and the imprisonment on account thereof inflicted before the statute in question was enacted.

What was said by the court in that case is pertinent here: “A law cannot properly be considered retroactive when it apprises one who has established, by previous unlawful acts, a criminal character, that if he perpetrates further crimes, the penalty denounced by the law will be heavier than upon one less hardened in crime. In such case the party is informed before he commits the subsequent offense of the full measure of the liability he will incur by its perpetration, and therefore does not fall within the class that is entitled to the protection afforded by the constitutional guaranty ag'ainst the enactment of ex post facto, or retroactive laws, for the object sought by those guaranties, in respect to this kind of legislation, is that no transgressor of a penal statute, shall be subjected by subsequent legislation, to any penalty, liability or consequence, that was not attached to the transgression when it occurred.”

Judge Cooley, in his work on Constitutional Limitations (7 ed.), page 382, says: “And a law is not objectionable as ex post facto which, in providing for the punishment of future offenses, authorizes the offender’s conduct in the past to be taken into account, and the punishment to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offense than for the first; and it has not been deemed objectionable that, in providing for such heavier penalties, the prior conviction authorized to be taken into the account may have taken place before the law was passed. In such case, it is the second or subsequent offense that is punished, not the first.”

See McDonald v. Massachusetts, 180 U. S., 311, and Carlesi v. New York, 233 U. S., 51.

The amended statute under consideration here did not have an unconstitutional operation as to the petitioner. It was not an ex post facto or retroactive law as to him. The court, under this statute, was authorized to impose a prison sentence.

It is the further claim of the petitioner that he should have had a definite sentence for a term of not less than one year nor more than five years, but the court, acting under Section 7388-6, Revised Statutes, imposed an indeterminate sentence. This, the petitioner contends, was without authority for the reason that Section 7388-6 was repealed and was not in existence at the time the sentence was imposed. Even if this be not true, it is urged that the indeterminate-sentence law was unconstitutional, being violative of Section 11 of Article III of the Constitution of Ohio, which vests the pardoning power in the governor, etc., and of Section 1 of Article IV, which vests the judicial power of the state in the courts. Whether the section was repealed or whether it was unconstitutional if not repealed, is unimportant, and it is wholly unnecessary to pass upon these questions in deciding this case.

This is a proceeding in habeas corpus. A person unlawfully restrained of his liberty may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment, but Section 12165, General Code, reads: “If it appears that the person alleged to have been restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or, if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order.”

The trial court in the instant case had jurisdiction of the person of the petitioner. It had jurisdiction to try him for the offense charged and to sentence him to a term in the penitentiary under Section 12672. Instead there was an indeterminate sentence imposed of which the petitioner complains. If this were erroneous, the error committed by the court related to the sentence and punishment only and was not a jurisdictional one. The court merely entered and enforced a wrong judgment. Admitting then, for the purpose of this case, that there was no authority to impose the sentence, either by reason of the repeal of the indeterminate-sentence law or its unconstitutionality, the punishment inflicted was erroneous and voidable but not void. The sentence and punishment could have been corrected in a proceeding in error challenging the judgment of the court. The petitioner had ample opportunity to avail himself of the objections as to the sentence which he attempts to make here. A habeas corpus proceeding cannot perform the functions of a writ of error.

Judge Swan, in Ex parte Shaw, 7 Ohio St., 81, says: “The writ of error and habeas corpus have each their separate offices. There are ample remedies provided for the correction of irregularities and errors in proceedings which result in conviction and in sentences, by writ of error. For errors and irregularities in such cases, the summary remedy by habeas corpus cannot be had.”

In Ex parte Van Hagan, 25 Ohio St., 426, the petitioner had been sentenced under a statute not in force, although another statute covered the offense. The punishment inflicted was an imprisonment for a term longer than that authorized by the then existing statute. It was held: “Habeas corpus is not the proper mode of redress, where the relator has been convicted of a criminal offense, and sentenced to imprisonment therefor * * *; if errors or. irregularities have occurred in the proceedings or sentence, a writ of error is the proper remedy.” The court in that case say: “The punishment inflicted by the sentence, in excess of that prescribed by the law in force, was erroneous and voidable, but not absolutely void. It follows that a writ of error to reverse the proceedings or sentence is the remedy that the relator should have resorted to in order to obtain a discharge from illegal imprisonment, and not habeas corpus, which is not the proper mode of redress where the relator was convicted of a criminal offense and erroneously sentenced to excessive imprisonment therefor by a court of competent jurisdiction.” In re Lincoln, 202 U. S, 178; In re Bishop, 172 Mass, 35; In re Stalker, 167 Mass, 11; Ex parte Spencer, 228 U. S, 652.

The fact that the minimum term of imprisonment for which petitioner could have been sentenced under Section 12672 has expired does not affect the rule. In re Schuster, 82 Wis, 610, 52 N. W. Rep, 757; In re Shinski, 125 Wis, 280, 104 N. W. Rep, 86.

For the reasons we have given there was authority to impose a penitentiary sentence on the petitioner. If the indeterminate-sentence law was inapplicable for any reason and the sentence was not in accordance with the provisions of Section 12672, those questions could have been presented in an error proceeding. Carey v. State, 70 Ohio St, 121. They cannot be raised here and the errors complained of reviewed upon habeas corpus.

The prayer of the petitioner is therefore denied and the writ refused.

Writ refused'.

Nichols, C. J, Johnson, Donahue, Wanamaker, Jones and Matthias, JJ, concur.


author: By the Court.

text:
    In re George Winslow.

      Criminal law — Conviction for burglary — Indeterminate sentence to penitentiary — Claim of illegal detention — Application for habeas corpus — Sentence erroneous but not void, when — Sections 2166, 12374, 12438 and 13767, General Code — Section 7388-6, Revised Statutes.

    (No. 14688 —
    Decided March 2, 1915.)
    Application for Writ of Habeas Corpus.

      Mr. William K. Williams and Mr. Louis B. Houck, for petitioner.

      Mr. Timothy S. Hogan, attorney general; Mr. Walter L. Connors and Mr. James I. Boulger, for P. E. Thomas, warden of the Ohio penitentiary.
   By the Court.

George Winslow, who is confined in the Ohio penitentiary under an indeterminate sentence imposed on him June 11, 1913, by the court of common pleas of Licking county, for burglary committed February 8, 1913, files an application in this court for a writ of habeas corpus. He asks that the same be issued to P. E. Thomas as warden of the Ohio penitentiary, by whom he claims to be unlawfully restrained of his liberty. He was sentenced to remain in the penitentiary “until discharged by due process of .law.” He says that his sentence should have been for a definite term, in accordance with the provisions of Section 12374, General Code, and should have been for not less than one year nor 'more than fifteen years under Section 12438.

His contention is that the sentence under which he is now confined in the penitentiary was and is illegal and utterly void in law. He says the only acts of the legislature empowering courts to impose indeterminate sentences were Section 7388-6, Revised Statutes, and Section 2166, General Code, as amended February 13, 1913, effective May 13, 1913.

He insists that Section 7388-6, Revised Statutes, was repealed February 14, 1910, upon the adoption of the General Code, the repealing section being 13767; that if it were not repealed, it was ineffective as to him, as he had previously served a term in a penal institution.

He further claims that both Section 7388-6, Revised Statutes, and Section 2166, General Code, are in contravention of Section 11 of Article III and Section 1 of Article IV of the Constitution of Ohio, the former vesting the pardoning power in the governor and the latter the judicial power in the courts of the state, and finally that Section 2166, which did not become effective until May 13, 1913, conferred no authority upon the court to impose an indeterminate sentence upon him for a crime committed February 8, 1913, for the reason that said statute, if applied to his case, would in its operation contravene the provision of Section 10 of Article I of the Constitution of the United States prohibiting the enactment of an ex post facto law.

It is unnecessary in determining whether the relief sought here should be granted to consider the constitutionality of the indeterminate-sentence laws or whether either of them was effective as to the petitioner. He was indicted, tried and convicted under the burglary statute, Section 12438, General Code. The punishment therein prescribed is imprisonment in the penitentiary not less than one year nor more than fifteen years, and the trial court had authority to impose a prison sentence. If the court in sentencing him did not act under this statute, but sentenced him under another statute, which for the purposes of this case may be conceded to have been invalid, the sentence was erroneous' and voidable but not void. The error was not a jurisdictional one and it cannot be reviewed in a proceeding in habeas corpus. This is in accordance with our holding in In re Allen, ante, 315.

The writ, therefore, must be denied and the prayer of the petition refused.

Writ refused.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


author: Matthias, J.

text:
    The City of Cincinnati v. The Public Utilities Commission.

      Public utilities commission — Powers and duties — Municipal ordinance directing extension of street railway lines — Section 614-51, General Code — Commission may relieve company of ordinance obligations, when — Order of commission will not be reversed by supreme court, when. .

    1. The requirements of a city ordinance, directing a street railway company to construct extensions of its lines, are subject to review by the public utilities commission, which is authorized, upon hearing, to determine whether the requirements of such ordinance are just and reasonable.
    2. Under the provisions of Section 614-51, General Code, the public utilities commission may determine the practicability of additions and extensions of street railway lines required by a city ordinance. In reaching such determination the commission may consider the physical conditions of the proposed route as well as the necessary plan of operation of cars thereover. If upon such hearing the commission finds that operation of cars over the proposed route would entail unusual and unwarranted dangers and jeopardize the lives of passengers, it is authorized to relieve the street railway company from the obligations • sought to be imposed by the ordinance complained of. Such order of the commission will not be reversed upon review by this court when it does not appear from a consideration of the record that it is unlawful or unreasonable.
    (No. 14691 —
    Decided March 9, 1915.)
    Error to the Public Utilities Commission of Ohio.
    On December 16, 1913, the council of the city of Cincinnati passed an ordinance, No. 701, 1913, which, in substance, directed The Cincinnati Street Railway Company and The Cincinnati Traction Company within seventy days after the passage of the ordinance to construct a double-track extension over the so-called Warsaw avenue route from the intersection of Glenway avenue and Wilder avenue northwestwardly and westwardly over Glenway avenue to the intersection of Glenway and Seton avenues.
    The companies named filed their complaint with the public utilities commission under Sections 614-44 and 614-46 of the General Code. They contend that such ordinance should not be enforced against them for the reason that the requirements of the ordinance are unjust and unreasonable; that thereby said companies are required to construct and maintain a street railway line over Glenway avenue, which is unstable and unsafe, due to the sliding character of the ground and extreme grade; that the construction of the Glenway avenue route as proposed involves unusual operating difficulties with.respect to grades, curves and otherwise, and that operation thereon would jeopardize the lives of passengers.
    To the complaint of said companies the city of Cincinnati filed its answer before the commission in which it insists that the ordinance in question is just and reasonable in its requirements, and denies that the portion of Glenway avenue over which the ordinance directs the construction and operation of said street railway line is unstable or is of extreme grade, or that its operation would jeopardize the lives and limbs of passengers.
    Upon the issues thus made the case was heard by the public utilities commission, at the conclusion of which hearing the commission found that the additions and extensions required by said ordinance were not practicable and ordered that said The Cincinnati Street Railway Company and The Cincinnati Traction Company be relieved from any and all obligations imposed by said ordinance and that said ordinance be held for naught.
    Thereupon the city of Cincinnati filed in this court its petition in error, seeking to have this court set aside and reverse the order made by the public utilities commission and order a dismissal of the appeal of The Cincinnati Street Railway Company and The Cincinnati Traction Company.
    • Mr. Walter M. Schoenle, city solicitor, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general, and Mr. Joseph McGhee, for public utilities commission ; Mr. Joseph Wilby and Mr. Ellis G. Kinkead, for defendant in error.
   Matthias, J.

The ordinance in question was passed under authority of Section 614-51, General Code. That section also provides that the requirements and orders of the city council, respecting additions and extensions by public utilities, shall be subject to review by the public utilities commission.

Upon the hearing of this matter considerable evidence was adduced before the commission, and it viewed the territory and inspected the proposed route and also observed the operation of cars over the Warsaw avenue route.

This proceeding comes into this court by virtue of Section 544, General Code, which provides that “A final order made by the commission shall be reversed, vacated or modified by the supreme court, on a petition in error, if upon consideration of the record such court is of the opinion that such order was unlawful and unreasonable.”

Under Section 542 of the General Code such order of the commission must be regarded as prima facie reasonable. It is to be borne in mind then, at the threshold of our consideration of this case, that the presumption obtains of regularity of the proceedings of the public utilities commission, and that its conclusions were fully justified by the evidence before it. If, therefore, it does not appear from the record that the order made herein by the public utilities commission was an unlawful and an unreasonable one it is the duty of this court to affirm its action.

Apparently there is no contention before the commission as to the real necessity for the provision of additional service to meet the demands of passenger traffic to and from Price Hill, a residence section of the city of Cincinnati. Efforts had been made, both by the city authorities and these companies, to provide some additional service over what is known as the Warsaw-Elberon avenue route, which would require an extension of the Elberon avenue line, now in operation, from Eighth street to Warsaw avenue; but it was impossible to procure the necessary consent of property owners along that section of Elberon avenue. Hence the relief sought could not be obtained over that route.

In the hearing before the commission apparently all questions were eliminated save that of danger growing out of the operation of the proposed line from Wilder avenue to Seton avenue. Two elements of danger of operation were presented to •and considered by the commission. The evidence shows that Glenway avenue for a distance of fifteen hundred feet above its intersection with Wilder avenue has a nine per cent, grade, and that portions thereof have been built upon filled ground, by reason of which condition slides have become apparent. Skilled experts, who had examined and investigated the conditions with care, testified that if the proposed double-track line be constructed the added weight would inevitably make such sliding of the street more frequent and more pronounced, and would render the operation of cars thereon dangerous.

The other element of difficulty and danger arises from the necessary operation of the proposed line over the “balloon loop,” an ingenious combination of tracks of balloon shape at the intersection of Glenway avenue and Wilder avenue where the Warsaw avenue line makes such a sharp turn that this arrangement of tracks is required.

The operation of the proposed Glenway avenue line would require that the outgoing cars cross the “balloon loop” at two intersections and, under the proposed method of operation, the inbound cars would take their course over what is now a part of this “balloon loop” track. Then all cars over the proposed line, as well as those over the Warsaw avenue line, would pass either over or through the “balloon loop.”

Under the present operation, during the best weather conditions, the number of cars passing through the “balloon loop” and which must use the same piece of track, is from sixty to seventy per hour, which the evidence shows is as many as may safely be operated under present conditions.

The proposed line would not afford any relief unless more cars be used than are now employed. If more cars cannot be safely used through the loop it seems clear that the danger would be augmented somewhat by taking cars across the loop, and at the same time continue the required operation of cars over the Warsaw avenue line.

The record shows that the proposed Glenway avenue line would strike the “balloon loop” at a grade of nine per cent, and that such grade extends fifteen hundred feet above the loop. From the evidence before them, and actual inspection of the situation, the members of the commission found the conditions at that point to be such that an order that would cause further congestion would entail a hazard that should not be imposed.

It was contended by the city that the dangers of operation on account of the steep grade could be obviated, or at least minimized, by placing a derailing switch four hundred feet above the “balloon loop.” If that be done there would still be a nine per cent, grade extending to the “balloon loop.” It was found by the commission that in most of this distance of four hundred feet it would not be possible for the motorman to see far across the “balloon loop” and up the other side and observe Warsaw avenue cars coming down.

There was evidence that the sliding of Glenway avenue could be prevented by the erection of retaining walls, and it is contended that the commission should have entered a decree approving the ordinance upon the condition that the city construct the necessary retaining walls. The record does not disclose evidence from which the commission could have determined the character, size or location of retaining walls necessary to prevent sliding of the street. It was suggested during the hearing that such requirement be made of the city, but the statute authorizing a review of such ordinance by the public utilities commission does not confer upon the commission any power to legislate for the city or to require the municipal authorities to construct any improvement or exact the performance of any duty by them. Jurisdiction is conferred upon the commission to hear and determine whether the requirements and orders of the council, as to additions and extensions by public utilities, are unjust and unreasonable. These requirements were embraced in the ordinance and were brought into question by the complaint of the street railway companies. Under its terms, plans of construction of these extensions are required to be submitted by the companies within seventy days and the work of construction to begin within forty days after the approval of such plans. When the issue was made before the commission it was authorized to inquire into conditions affecting* the matter of the proposed extension and pass upon the justness and reasonableness of the requirements of the ordinance. It had no other duty and can exercise no further power in relation to such matter. It is authorized only to pass upon conditions presented by the evidence and to determine whether or not such ordinance is, in its requirements, just and reasonable, and whether it should be enforced against such public service companies.

It is urged too that the court may, and should, modify the order of the commission in the regard stated, but there is no evidence in the record upon which, if authorized, the commission or this court could base such conditional decree approving said ordinance. Furthermore, the erection of retaining walls would not meet the second serious element of danger found by the commission rendering the proposed extension impracticable — the increased operation of cars through the “balloon loop.”

From a consideration of the record it cannot be concluded that the order of the commission is unjust or unreasonable. It is, therefore, affirmed.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Jones, JJ., concur.