author: Wanamaker, J.

text:
    Ransom, Admr., v. The New York, Chicago & St. Louis Railway Co.

      Actions — Damages for wrongful death — Right of adopting parents — Sections 8029, 8030 and 10772, General Coda — 35 U. S. Stats, at Large, 65 — Rule of statutory construction.

    1. Under the federal statute for the recovery of damages for wrongful death by personal representatives, and also the'Ohio •statute to the same effect, the words “parents” and “children” are used without limit or qualification, and include adopting parents and adopted children as well as natural parents and natural children.
    2. In applying these statutes the courts should give effect to -the sound and wholesome humanitarian policies designed to be promoted by their enactment.
    (No. 14867
    Decided December 11, 1915.)
    Error to the Court of Appeals of Ashtabula county.
    Fred C. Fassett was the son of Henry P. Fassett. At the age of twenty-two months he was legally adopted as the child and son of Emory Ransom and wife by order and judgment of the probate court of Ashtabula county, Ohio, one of the grounds of which adoption was that the Fassetts were not proper persons to have the custody of their said son.
    From said time of adoption until his death said Fred Fassett (Fred Ransom) made his home with the'Ransoms and conducted himself in all respects as their own natural child. Shortly prior to his death he was employed by The New York, Chicago & St. Louis Railway Company as an extra brakeman, earning $2.40 per day during the three months he was so employed. He was killed in a collision between two trains of said railway company. Both trains were then engaged in interstate commerce, and, therefore, it is agreed that the federal statute of 1908 controls.
    At the close of the plaintiff’s evidence both sides rested. The case was submitted to the jury and a verdict of $4,500 was by them returned. A motion for a new trial was duly overruled and the railroad company prosecuted error to the court of appeals. Said court of appeals reversed the judgment of the court of common pleas upon the ground that the trial judge had charged the jury that the adopting parents not only could recover damages for the wrongful killing of the adopted son, but also that the natural parent, Henry P. Fassett, who was also represented at the trial and was shown by the pleadings to be said natural parent, was excluded from any recovery in whole or in part for the wrongful killing of said Fred Ransom.

      Messrs. Anderson & Lamb, for plaintiff in error.

      Messrs. Lawyer &. Marvin, for defendant in error.

      Mr. J. B. Pilmer and Mr. C. W. Dille, for Henry P. Fassett.
   Wanamaker, J.

It is admitted in this case that if Fred Ransom were the natural child of said Emery Ransom and wife the judgment of the court of common pleas would be valid, but owing to the fact that he was the adopted son it is urged that the adopting parents had no right under the federal or state statutes to recover damages through the personal representatives for wrongful death.

The federal statute in question, so far as pertinent, reads as follows:

“In case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee.” 35 U. S. Stats, at Large, 65, C. 149; passed April 22, 1908.

It is quite evident that much depends upon the construction of the words “parents” and “children.” There is no limitation or qualification of the words under the federal statute. The rule followed by federal courts in construing the statute, however, has been to attach to it the meaning given by the state of the forum in which the employe resided, and therefore we shall have to look to the Ohio statute to determine what is meant by the word “parents.”

The Ohio statute, Section 10772, General Code, prior to the amendment of February 27, 1913 (103 O. L., 116), read as follows:

“Such action shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person.whose death was so caused: It must be brought in the name of the personal representative of the deceased person; and * * * the jury may give such damages, not exceeding in any case ten thousand dollars, * * * as the jury may think proportioned to the pecuniary injury resulting from such death, to the persons respectively for whose benefit the action was brought,” etc.

It will be observed here that the same words, “parents” and “children,” are used without limitation or qualification as are used in the federal . statute.

Another Ohio statute, however, which may be known as the adopting statute of Ohio, reads as follows:

“Sec. 8029. When the foregoing provisions are complied with,- if the court is satisfied of the ability of the petitioner to bring up and educate the child properly, having reference to the degree and condition of its parents, and the fitness and propriety of such adoption, it shall make an order setting forth the facts, and declaring that, from that date, to all legal intents and purposes, -such child is the child of the petitioner, and that its name is thereby changed.”

Then follows Section 8030, General Code, to the effect:

“The natural parents, * * ' * by such order shall be divested of all legal rights and obligations in respect to the child, and it be free from all legal obligations of obedience and maintenance in respect to them. Such child shall be the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges and subject to all the obligations of a child of such person begotten in lawful wedlock,” etc.

It is, therefore, contended by the plaintiff in error that the word “parent,” as used in the foregoing statutes, includes adopting parent as well as natural parent.

These sections of the statutes (Sections 8029 and 8030, General Code) are so plain and palpable that they need no construction. They are their own interpreters. Thousands of children who otherwise, through some misfortune denying them proper natural parentage, have been by the law of the land, the adoption statutes, provided with comfortable homes and legal parents. . Certainly, where statutes are so simple and so certain of their purpose and provisions as the statutes in question, no court should pervert or divert their terms so as to defeat the sound and wholesome public policy announced in these most humanitarian laws, providing as they do children for childless parents and parents for parentless children.

When Section 8029 provides that upon such adoption such child is the child of the adopters “to all legal intents and purposes” it is difficult to understand by what process of legal logic the rights shall be cut down or impaired from the rights it would have as a child born in lawful wedlock. And if such child shall have all the legal rights of a natural child, the statute wisely provided that such adopting parent should have all the legal rights of a natural parent save those expressly excepted.

Lest there be any possible mistake as'to the force of said Section 8029, General Code, Section 8030, General Code, above quoted, again uses similar language, as follows:

“Such child shall be the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges and subject to all the obligations of a child of such person begotten in lawful wedlock.”

And further provides that “The natural parents * * * by such order shall be divested 'of all legal rights and obligations in respect to the child,” etc.

This language is not only clear but convincing and conclusive as to the purpose and spirit of the statute.

Additional force is given to these provisions of the foregoing statutes by the last four lines of Section 8030, which read:

“But on the decease of such person and the subsequent decease of such adopted child without issue, the property of such adopting parent shall descend to his or her next kin, and not to the next kin of such adopted child.”

Here is the sole and only exception to the general, sweeping, omnibus provisions putting the adopted child and adopting parent in the shoes of the natural child and natural parent respectively.

The old familiar rule that the expression of one exception excludes all other exceptions clearly and conclusively applies in favor of the natural parent.

But for the adoption said Henry Fassett, the natural parent, would be the sole beneficiary in an action for the recovery of damages for the wrongful death of his son.

But if the statute in question means anything at all he was “divested of all legal rights,” one of which is the right to recover through the personal representative for damages for the wrongful death of his son.

In this view of the case the judgment of the court of appeals is reversed and the judgment of the court of common pleas affirmed.

Judgment reversed.

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


source: Caselaw Access Project

author: Newman, J.

license: Public Domain

text:
    In re Application of George Hesse for Writ of Habeas Corpus.

      Jurisdiction — Justices of the peace and municipal courts — Sections 1558-41 and 13423, General Code (103 O. L., 290, 539) — Repeals by implication.

    Section 41 (Section 1558-41, General Code) of the act establishing a municipal court in the city of Cincinnati, limiting the jurisdiction of a justice of the peace in any township of Hamilton county other than Cincinnati township in criminal matters, was not repealed by the act passed April 28, 1913 (103 O. L., 539), amending Section 13423, • General Code.
    (No. 14910
    Decided December 11, 1915.)
    Error to the Court of Appeals of Hamilton county.
    George Hesse, a citizen and resident of Cincinnati township, Hamilton county, was arrested in that township by Charles L. Timberlake, a constable for Millcreek township in that county. The misdemeanor for which he was arrested was cruelty to animals and was alleged to have been committed in Cincinnati township. The affidavit for the warrant under which he was arrested was filed with the duly elected and acting justice of the peace in and for Millcreek township, by whom the warrant was issued. Hesse thereupon filed a petition in the court of common pleas of Hamilton county for a writ of habeas corpus, charging that he was “illegally restrained and deprived of his liberty, without any legal authority,” by the constable. Upon the hearing of the case on the pleadings and evidence the court found in favor of the petitioner, and he was discharged from custody upon the ground that the justice of the peace had no authority to issue the warrant for arrest and no jurisdiction over the alleged offense. The judgment of the court of common pleas was affirmed by the court of appeals.

      Mr. H. C. Bolsinger; Messrs. Pogue, Hoffheimer & Pogue and Mr. Walter W. Helmholz, for respondent.

      Mr. Max Levy, for. petitioner.
   Newman, J.

The office of justice of the peace on January 1, 1913, ceased to be a constitutional office. Acting under the authority conferred upon it by Section 1, Article IV of the Constitution, as amended in 1912, the general assembly, by an act filed in the office of the secretary of state April 30, 1913 (103 O. L., 214), established the office of justice of the peace in each of the several townships in the different counties of the state, excepting townships in which a court other than a mayor’s court then existed or might thereafter be created having jurisdiction of all cases of which justices of the peace had or might have jurisdiction. The jurisdiction, powers and duties of the office under that act are the same as were provided by the laws in force on September 3, 1912, among which was Section 13423, General Code, which reads in part: “Justices of the peace, police judges and mayors of cities and villages shall have jurisdiction, within their respective counties, in all cases of violation of any law relating to * * Then are enumerated in this section thirteen classes of cases, including the following: “2. The prevention of cruelty to animals and children.” On May 2, 1913 (103 O. L., 279), there was filed in the office of the secretary of state an act establishing a municipal court in the city of Cincinnati, effective ninety days thereafter. Section 41 of the act (Section 1558-41, General Code) in part provides that no justice of the peace in any township-in Hamilton county, other than in Cincinnati township, nor the mayor of any village or city, shall have jurisdiction in any criminal proceeding in which a warrant or order of arrest or other process, except subpena for witnesses, shall have been served upon a citizen or resident of Cincinnati, unless such service be actually made by personal service within the township, village or city in which said proceedings may have been instituted, or jurisdiction in a criminal matter, unless the offense charged in the warrant or order of arrest shall have been committed within said township, village or city. Section 43 provides that no justice of the peace in and for Cincinnati township shall have jurisdiction to issue any warrant or order of arrest or other criminal process. By force of these provisions the jurisdiction of justices of the peace outside of Cincinnati township, over criminal matters, is limited to offenses committed within their respective townships, while a justice of the peace in Cincinnati township has no jurisdiction whatsoever over criminal matters. There can be no objection to the constitutional validity of these provisions. Although Section 26 of Article II of the Constitution imposes a limitation upon the legislative power in requiring all laws of a general nature to have uniform operation throughout the state, yet it seems to be settled that, Section 1, Article IV, authorizing the establishment of inferior courts, being a special grant of legislative power upon a particular subject, the general assembly is vested with full power to determine what other courts it will establish, local if deemed proper, either for separate counties or districts, and to define their jurisdiction, and power. The State, ex rel., v. Bloch, 65 Ohio St., 370; State, ex rel., v. Yeatman, 89 Ohio St., 44. It is to be observed that the jurisdiction of no constitutional court is invaded by the sections of the municipal court act under consideration. They abridge and limit the jurisdiction of a statutory court only.

But Section 13423, supra, was amended by an act (103 O. L., 539) filed in the office of the secretary of state May 9, 1913, effective ninety days thereafter, or seven days subsequent to the taking effect of the municipal court act. The provisions of Section 13423 in force when the municipal court act became effective, were carried into the section as amended in identical language, and there are added two classes of misdemeanors.

It is the contention of counsel for respondent that this section, as amended, takes precedence over and repeals the provisions of the municipal court act in so far as they are in conflict with the section as amended; that the provisions of the municipal court act denying to a justice of the peace outside of Cincinnati township in Hamilton county jurisdiction over offenses committed in Cincinnati township, are therefore repealed, and that these justices of the peace have concurrent jurisdiction, at least, with the municipal court.

It is settled that where there are contradictory provisions in statutes and both are susceptible of a reasonable construction which will not nullify either, it is the duty of the court to give such construction, and further, that where two affirmative statutes exist one is not to be construed to repeal the other by implication, unless they can be reconciled by no mode of interpretation.

Section 16, Article II of the Constitution, requires that where a law is amended, the new act shall contain the section or sections amended, and the section or sections so amended shall be repealed. In compliance with this the general assembly, when it amended Section 13423, did repeal the section as it existed prior thereto. It is to be remembered that the only change made in the statute was the addition of two classes of misdemeanors. The provisions contained in the act as amended which- were in the original act are not considered as repealed and again reenacted, but are regarded as having been continuous and undisturbed by the amendatory act. In re Allen, 91 Ohio St., 315. The amendment was not with respect to the feature of the section which confers jurisdiction on justices of the peace within their respective counties in cases pertaining to the violation of a law relating to the prevention of cruelty to animals and children and the other twelve classes of cases; that remained in legal effect as first enacted, and it is not correct to assume that it is in that respect a new statute or a later statute than the sections of the municipal court act which we are considering. These two sections of the municipal court act were intended by the general assembly as an exception to the general provisions of Section 13423. That body, it must be assumed, had knowledge of the provisions of the municipal court act, and if it had intended that amended Section 13423 should repeal them, it would have been easy, in unequivocal language, to make that provision plain. The State v. Borham, 72 Ohio St., 358; Henderson v. City of Cincinnati, 81 Ohio St., 27. Another fact strengthens this conclusion. In 1914 (104 O. L., 187) certain sections of the municipal court act were amended, among which was Section 43, supra. The provisions in the amendment are unimportant so far as the consideration of this case is concerned, but the amending of this section at all and the repealing of it as contained in the original municipal court act, seem conclusive that the general assembly recognized the existence of Section 43 and did not consider it as repealed by Section 13423 when that section was amended. This would be equally true as to Section 41.

We conclude, therefore, that Section 41 of the municipal court act has not been repealed, but is in full force and effect, and that the justice of the peace in the case at bar had no jurisdiction to issue a warrant for the arrest of the petitioner nor jurisdiction over the alleged offense'.

Judgment affirmed.

Johnson, Donahue, Jones and Matthias, JJ., concur.


author: Johnson, J.

text:
    Dravo-Doyle Co. v. Village of Orrville.

      Municipal corporations — Ownership of public utilities — Section 4, Article XVIII, Constitution, 1912 — Purchase of existing plant — Section 3990, General Code, unconstitutional ■ — Franchise or contract rights unaffected, — By constitutional or statutory amendment, when.

    1. Section 4, Article XVIII of the Constitution, confers plenary power on “any municipality” to acquire, construct, own, lease and operate any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and to contract with others for any such product or service.
    2. Section 3990,-General Code, which authorizes the council-of a municipality, when it is deemed expedient and for the public good, to erect gas works or electric works at the expense of the corporation, or to purchase any gas or electric works already erected therein, with the proviso that in villages where gas works or electrical works have already been erected by any person, company of persons, or corporation, to whom a franchise to erect and operate gas works or electric works has been granted, and such franchise has not yet expired, the council shall, with the consent of the owner or owners, purchase such gas works or electric works already erected therein, is unconstitutional and void so far as the proviso is concerned, because it is an unauthorized limitation of the powers granted in Section 4, Article XVIII of the Constitution, and inconsistent therewith.
    3. Such franchise or contract rights acquired prior to the adoption of Section 4, Article XVIII of the Constitution, and while the proviso in Section 3990, General Code, was in force, were not abrogated or affected by the subsequent adoption of the constitutional provision referred to, and contracts made subsequent to the adoption of the constitutional provision are controlled thereby and are enforceable.
    (No. 14917
    Decided December 11, 1915.)
    Error to the Court of- Appeals of Wayne county.
    The Dravo-Doyle Company brought suit in the common pleas of Wayne against the village of Orrville to recover the balance due on a contract between the parties for furnishing to the village an engine and certain appliances and erecting them in connection with an electric lighting plant erected by the village. The petition sets forth in detail the taking of all the necessary steps by the board of trustees of public affairs previous to the making of the contract, and the full performance by the plaintiff of all the terms and conditions of the contract on its part.
    The plaintiff admits the payment of a portion of the contract price and prays judgment for the balance.
    The answer of the defendant sets out the steps taken by the council of the village, beginning in July, 1913, for the issuing and sale of bonds, advertising for bids for the building referred to and the making of the contract set out in the petition.
    It further averred that in March, 1914, The Massillon Electric & Gas Company brought suit in the common pleas of Wayne against the village and others to enjoin the erection of the lighting plant on the ground that it owned and operated such a plant under an existing franchise granted before any of the steps above referred to; that the village had not offered to buy it as required by Section 3990, General Code; that a temporary restraining order was granted in said case, which, on final hearing, was dissolved and the petition dismissed; that on appeal the court of appeals enjoined the village from all of the things as prayed for by the Electric & Gas Company.

      It was further alleged that the Electric & Gas Company brought suit as a taxpayer and that in that proceeding an injunction was also decreed.
    The village further alleged that the resolution of July 21, 1913, and the ordinance providing for the bonds were published in but one paper and that no further notice or publication of the passage' of said resolution or ordinance was given.
    In its reply the plaintiff alleged that it had not been made a party to any of the suits or proceedings by the Electric & Gas Coriipany and denied that it had knowledge or notice of the pendency of the suits.
    It further averred that Section 3990, General Code, is unconstitutional and void because in conflict with Article XVIII of the Constitution, and for the reason that the same was repealed and annulled by the general schedule attached to the amendments of the Constitution adopted in 1912.
    On the trial of the case a jury was waived and the cause submitted to the court on an agreed statement of facts. By this statement it is shown that the council of the village passed the resolution declaring it necessary to issue the bonds in the sum of $41,000 for the purpose of erecting the lighting plant and providing for the submission of the question to the voters; the publication of notice of the resolution and the notice of the election in The Orr-ville Courier-Crescent; that at the election the proposition carried by an affirmative vote of more than two-thirds of the votes cast at the election; that in November, 1913, the council passed an ordinance providing for the issue of the bonds; that the ordinance was published in the same paper for two consecutive weeks and that no other notice of the passage of the ordinance was given; that notice of the sale of the bonds was given by publication in the same paper and in The Wooster Daily Republican for four weeks, and that on December 24 bids were received and the bonds sold; that in January, 1914, the board of trustees of public affairs advertised for bids for furnishing material and machinery for the construction of the plant, in The Orrville Courier-Crescent, for two weeks, and that the plaintiff submitted the bid to furnish the materials referred to in its petition, which was accepted, and that on February 15, 1914, the contract referred to in the petition was entered into; that in accordance with the contract the plaintiff delivered to the defendant in July the machinery and material mentioned in the contract and performed all of the other obligations on its part to be performed by said contract; “that there is due the plaintiff from the defendant the sum of $1313.34 upon its said contract, which the defendant is ready and willing to pay but for the fact that it is restrained from so doing by reason of the restraining order and injunction mentioned in the answer and hereafter in these findings of fact;” that on July 21, 1913, and prior thereto The Massillon Electric & Gas Company, an Ohio corporation, owned an electric lighting plant in the village and was furnishing electricity to said village and the inhabitants thereof, for both public and private lighting, under a franchise granted by said village in 1892, and the said franchise has not yet expired; that the mayor of the village, in October, 1913, wrote to the Electric & Gas Company asking a plan or plans whereby the city might take over the property of the light company; that said letter was not authorized by the village council; that some subsequent correspondence was had, but no other effort made; that on March 12, 1914, the Electric & Gas Company brought suit to enjoin the erection of the plant or the making of a contract for the same; that a temporary restraining order was granted in April, 1914; that on May 21 it was dissolved and the petition dismissed by the common pleas court; that on May 26 the Electric & Gas Company perfected an appeal to the court of appeals of each of its cases; that on the 25th of September the court of appeals entered a final decree enjoining all of the acts complained of; that on May 26 there was paid by the defendant to the plaintiff the sum of $1,290 and that no other payments have been made; that on the......day of March, 1914, the clerk of the village board of public affairs notified plaintiff of the suits by the Electric & Gas Company and of the granting of the temporary restraining orders; that on February 10, 1914, the clerk of the village certified to the council and board of trustees that the money required for the contract was in the treasury to the credit of the electric light fund not appropriated for any other purpose; that the judgment, order and decree of the said court of .appeals are in full force and effect and no proceedings have been instituted to reverse the same; that there is but one newspaper published in the village of Orrville, The Orrville Courier-Crescent, which is independent in politics; that the bond issue was not offered to the state liability board of awards prior to being advertised for sale, but that after the sale of the bonds that board stated in writing that if the bonds had been offered to it they would have been refused; that the plaintiff was not a party in any manner to the suits brought in the court of common pleas by the Electric & Gas Company or in the court of appeals; that on May 21 the plaintiff was notified by the defendant that the temporary restraining order theretofore granted was dissolved and it was instructed to proceed with its contract.
    In the court of common pleas judgment was entered for the defendant. This judgment was affirmed by the court of appeals, and this proceeding is brought to reverse the judgments of the courts below.

      Messrs. Taggart, Weygandt & Ross and Mr. S. G. Rogers, for plaintiff in error.

      Mr. Alton H. Riling; Mr. Clyde Merchant and Mr. G. A. Siam, for defendant in error.
   Johnson, J.

The decisive question is whether Section 3990 of the General Code, in so far as the requirements therein, which defendant claims were not complied with, are concerned, is invalid because inconsistent with Sections 4 and 5 of Article XVIII of the Constitution as amended in 1912. The pertinent portion of Section 3990, General Code, is as follows:

“The council of a municipality may, when it is deemed expedient and for the public good, erect gas works or electric works at the expense of the corporation, or purchase any gas or electric works already erected therein, but in villages where gas works or electrical works have already been erected by any person, company of persons, or corporation, to whom a franchise to erect and operate gas works or electric works has been granted, and such franchise has not yet expired, the council shall, with the consent- of the owner or owners, purchase such gas works or electric works already erected therein. If the council and owner or owners of such gas or electric works are unable to agree upon the compensation to be paid therefor, the council may file in the probate court of the county where such gas works or electric works are located, a petition to appropriate such gas works or electric works, and thereupon the same proceedings of appropriation shall be had as is provided for the appropriation of private property by a municipal corporation.”

The constitutional convention was not content to leave the subject of the public utilities of the cities and villages of the state entirely to legislation. It wrote into Article XVIII — the home-rule amendment — specific provisions touching that subject, including authority to acquire and operate such utilities, and a specific and independent clause securing the referendum and defining the mode of its exercise.

Section 4 of that article reads:

“Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for. any such product or service. The acquisition of any such public utility may be by condemnation or otherwise, and a municipality may acquire thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or its inhabitants the service or product of any such utility.”

The provisions of Section 5 of that article prescribe the manner in which the municipality may exercise the power conferred and contains a special provision for a referendum. These provisions are explicit and they confer plenary power upon the municipality to deal with the subject-matter involved in this controversy.

It is provided in the schedule to the constitution, as amended in 1912, that all laws then in force not inconsistent therewith shall continue in force until amended or repealed; and it is familiar doctrine, well settled, that all repugnant statutes are repealed by implication. All laws then in force which were inconsistent with the new constitution fell because they were inconsistent.

Section 3990, General Code, was passed by the legislature in May, 1902, and was in force when the above amendment to the constitution was adopted. The first clause of the section confers authority upon the council of a municipality to erect gas works or electric works at the expense of the corporation or to purchase any gas or electric works already erected therein. It applies to every municipality in the state, and the powers it confers are similar to those referred to in Section 4, Article XVIII. Then follows a limitation upon the authority of villages where gas works or electric works have already been erected by any person, company or persons to whom a franchise to operate 'gas works or electric works has been granted. This limitation is wholly inconsistent with the plenary grant of power contained in the article of the constitution referred to, and the statute, so far as this inconsistent provision is concerned, fell simply because it was inconsistent. Authority given by the constitution cannot, be lessened by statute. There is no equivalent for a constitutional provision.

The franchise was granted in 1892 and fixed the contractual rights and duties of the parties. The statute then in force provided that the council of any city or incorporated village should have power “whenever it may be deemed expedient and for the public good, to erect gas-works at the expense of the corporation, or to purchase any gas-works already erected therein.”

It will be observed, therefore, that the statute in force at the time the franchise was granted, and which the parties must be presumed to have had in contemplation when they made the franchise contract, did not contain the proviso afterwards included in the amendment adopted by the legislature. There is, therefore, no impairment of contract obligations by the action of the village under Section 4, Article XVIII of the Constitution. Rights acquired under a franchise or contract prior to the adoption of Section 4, Article XVIII, and while the proviso in Section 3990, General Code, was in force, would not be abrogated or affected by the subsequent adoption of the constitutional provision referred to.

The plaintiff in error was not a party to either of the injunction proceedings brought against the village in the common pleas of Wayne county by The' Massillon Electric & Gas Company and its rights were not in anywise adjudicated in those proceedings.

The contention with reference to the publication of the resolutions and ordinances in but one newspaper has been disposed of by the case of Village of Elmwood Place v. Schanzle, 91 Ohio St., 354.

We think the village was authorized to make the contract with the plaintiff which was set up in its petition, and it being conceded that the plaintiff has fully complied with its terms on its part, it is entitled to recover the balance due on its contract.

The judgments of the courts below will be reversed and the cause remanded for further proceedings according to law.

Judgments reversed.

Nichols, C. J., Newman, Jones and Matthias, JJ-, concur.

Donahue and Wanamaker, JJ., concur in the judgment and in the first and second propositions of the syllabus.


author: Nichols, C. J.

text:
    Ritzman v. Campbell et al.

      Acts of general assembly — Enrolled bill may be impeached, when — Legislative journals conclusive evidence, when — Effect of attestation of presiding officers — Civil service act — Amended Sections 486-1 to 486-31, General Code (106 O. L., 400).

    1. A duly enrolled bill, although publicly signed by the presiding officer of each house, in the presence of the house over which he presides, while the same was in session and capable of doing business, and afterward approved by the governor and filed by him with the secretary of state, may be impeached on the ground that it has not received a constitutional majority of the members elect of both branches of the general assembly, and upon this question the legislative journals must provide the appropriate as well as the conclusive evidence.
    2. Such enrolled bill, so authenticated, is conclusive upon the courts as to the contents thereof, since the attestation of the presiding officers of the general assembly is a solemn declaration of a coordinate branch of the state government that the bill as enrolled was duly enacted by the legislature.
    (No. 15009
    Decided December 11, 1915.)
    Error to the Court of Appeals of Franklin county.
    The petition sets forth that the defendants, Z. B. Campbell and Samuel D. Webb, are assuming to act as and discharge the duties of the state civil service commission by virtue of their appointment as such by the governor of Ohio under the provisions of an act to amend Sections 486-1 to 486-31, inclusive, relating to the civil service of the state of Ohio and the several counties, cities and city school districts thereof (see 106 O. L., 400 et seq.), it being asserted that said pretended act did not receive the concurrence of a majority of the members elected to each house of the general assembly as required by Section 9 of Article II of the Ohio Constitution, and was not in fact the legislative act of said general assembly and as a legislative act was nonexistent, null and void.
    Finally injunction is asked to prevent defendants from proceeding to put into' operation and effect any of the provisions of said pretended act and from in any manner discharging the functions of such state civil service commission.,
    The defendants answering admit that they are attempting to carry into effect the provisions of the aforementioned act and deny each and every other allegation in the petition set forth.
    The court of common pleas of Franklin county heard the case. An agreed statement, of facts was had in that court, wherein was set forth a full recital of all the proceedings of both houses with relation to the bill in question, as shown by the original journals of both the senate and house.
    Right was reserved by both parties to object to the competency and relevancy of any part thereof.
    The court of common pleas determined the issues in favor of the defendants and refused the injunction.
    The court of appeals rendered like judgment.
    The supreme court admitted the case on the ground that it was a case of public as well as great general interest.

      Mr. Timothy S. Hogan; Mr. George B. Okey and Mr. Peter E. Dempsey, for plaintiff in error.

      Mr. Edward C. Turner, attorney general; Mr. William H. Middleton and Mr. A. M. Calland, for defendants in error.
   Nichols, C. J.

There is no question involved here of the constitutionality of the act, the defect, alleged being that the enrolled bill as filed in the office of the secretary of state, though duly signed by the president of the senate and the speaker of the house in the manner and form required by the constitution, and approved by the governor, is not in words and figures the identical bill passed by both houses of the general assembly.

It appears that the enrolled bill differs in one respect only from the bill shown by an examination of the journals of both houses to have been passed. The difference is to be found in subdivision (a) 3 of Section 486-8, the enrolled bill reading: “The members of all boards and commissions and heads of principal departments, boards and commission appointed by the governor, or by and with his consent;” while the journals of the two bodies show that this paragraph should have read: “The members of all boards and commissions and heads of principal departments, and bureaus appointed by the governor or by and with his consent.” For some unexplained reason the word “bureaus,” which had been substituted for the words “boards and commission” by the action of both houses, was not inserted in the enrolled copy of the bill, and as both the president of the senate and speaker of the house, as well as the governor, signed the enrolled bill, the actual law as it appears in Volume 106, page 404, Ohio Laws, varies from the bill as actually passed both houses, as appears from their respective journals as above set forth.

This court having disposed of this case on other grounds, will give but little consideration to the question as to whether the admitted variance between the enrolled bill and the bill as actually passed is of that substantial nature requiring'the holding that the law as signed by the presiding officers and the executive and filed with the secretary of state was null and void. Were it necessary to consider this phase of the case at length it may be said that this court would be loath indeed to invalidate a law covering twenty pages of a volume of the session laws for the reason that a discrepancy existed as to one word of one clause of one sentence of one paragraph of one division of one section of a long and involved bill; for it appears that if the one word “bureaus” had been substituted by the enrolling - clerk for the words “boards and commission” there would have been no variance.

This is especially true since the failure to make the substitution in noway affected the integrity, object or scope of the bill.

The utmost that could be claimed for the substitution is that it would take out from the operation of the civil service law the heads of a few of the state bureaus, whereas it is not at all illogical to contend that the language of the paragraph of the section in question contained in the bill as signed by the governor does exempt the so-called heads of “bureaus.”

The provisions of the constitution pertinent to this inquiry are found in Article II. Section 9 thereof declares that each house shall keep a correct journal of its proceedings. At the desire of any two members, the yeas and nays shall be entered upon the journal; and, on the passage of every bill, in either house, the vote shall be taken by yeas and nays, and 'entered upon the journal; and no law shall be passed in either house without the concurrence of a majority of all the members elected thereto.

Section 17 thereof is as follows: “The presiding officer of each house shall sign, publicly in the presence of the house over which he presides, while the same is in session, and capable of transacting busi-. ness, all bills and joint resolutions passed by the general assembly.”

Section 16 provides:

“Every bill shall be fully and distinctly read on three different days, unless in case of urgency three-fourths of the house in which it shall be pending, shall dispense with the rule. No bill shall contain more than one subject, which shall be clearly expressed in its title, and 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. Every bill passed by the general assembly shall, before it becomes a law, be presented to the governor for his approval. If he approves, he shall sign it and thereupon it shall become a law and be filed with the secretary of state. If he does not approve it, he shall return it with his objections in writing, to the house in which it originated, which shall enter the objections at large upon its journal, and may-then reconsider the vote on its passage. If three-fifths of the members elected to that house vote to repass the bill, it shall be sent, with the objections of the governor, to the other house, which may also reconsider the vote on its passage. If three-fifths of the members elected to that house vote to repass it, it shall become a law notwithstanding the objections of the governor, except that in no case shall a bill be repassed by a smaller vote than is required by the constitution on its original passage. In all such cases the vote of each house shall be determined by yeas and nays and the names of the members voting for and against' the bill shall be entered upon the journal. If a bill shall not be returned by the governor within ten days, Sundays excepted, after being presented to him, it shall become a law in like manner as if he had signed it, unless the general assembly by adjournment prevents its return; in which case, it shall become a law unless, within ten days after such adjournment, it shall be filed by him, with his objections in writing, in the office of the secretary of state. The governor may disapprove any item or items in any bill making an appropriation of money and the item or items, so disapproved, shall be void, unless repassed in the manner herein prescribed for the repassage of a bill.”

Just a cursory examination of these constitutional provisions will indicate that some are directory merely, others plainly mandatory.

Failure to follow these mandatory provisions must invalidate acts so passed, and there being no other available tribunal, resort must be had to the courts of the state to determine the validity thereof.

The provisions clearly mandatory are those to the effect that no law shall be passed without the concurrence of a majority of all the members elected to each house of the general assembly; that the presiding officer of each house shall sign all bills, publicly in the presence of the house over which he presides, while the same is in session and capable of transacting business; that each house shall keep a journal and that on the passage of a bill the vote shall be taken by yeas and nays and entered thereon ; and that every bill, before it becomes a law, shall be presented to the governor for his approval.

The important question in the instant case is whether the court will look beyond the enrolled bill to ascertain, first, if it has been enacted in strict accord to constitutional requirements; second, if the contents or subject-matter of the bill, as duly authenticated and signed by the proper officers, may be disputed by the journals of either or both branches of the general assembly.

There is a wide range of disagreement among the courts on both of these questions. There is a concurrence of the authorities to the effect that a bill when signed as required by the constitution by the presiding officers of both houses of the general assembly, approved by the governor and deposited in the archives of the state, is prima facie evidence at least of the validity of its enactment. Some authorities are to the effect that the power to determine whether these requirements have been complied with is necessarily vested in the legislature itself, and when the authentication and promulgation of the legislative department has been had in conformity to the constitution, then this prima facie evidence ripens into a conclusive presumption of validity and the courts are without power to inquire into the matter. In other words, the bill-so authenticated and promulgated imports absolute verity. This; indeed, is the attitude of the supreme court of the United States with reference to acts of congress, as announced in the case of Field v. Clark, 143 U. S., 649.

Still other authorities hold that it is within the jurisdiction of the courts to go behind the enrolled bill and consult the journals of the general assembly, not only to ascertain whether the bill in question received a constitutional majority of the enacting body, but also to determine whether the bill so constitutionally authenticated is in like words with the bill as shown by the journals, and indeed to examine and consider other evidence on the subject, with the important qualification, however, that before a bill otherwise validly enacted will be held a nullity there must be a material difference between the enrolled bill and the bill as passed by the two houses. In this line of authorities the holding is that the whole act falls whenever a material variance is discovered between the bill as passed and the bill as authenticated and approved.

The present-day authorities are pretty evenly divided on the question. Fifty years ago,- or even thirty years back, there was a predominance of authority to the effect that the journals of the enacting body prevailed, over the authentication and approval, and where a material discrepancy existed the enrolled, authenticated and approved bill must give way to the bill as shown by the journals; but after the decision of the supreme court of the United States in Field v. Clark, supra, the current of authority commenced to run decidedly in the other direction.

Omitting Ohio for the moment, the present line-up would seem to be about as follows:

Enrolled bill controlling — the United States, California, Connecticut, Indiana, Iowa, Louisiana,. Maine, Mississippi, Nevada, New Jersey, New York, North Carolina, Pennsylvania, Montana, Georgia, Kentucky, Utah, Oklahoma, South Carolina, Texas, North Dakota and South Dakota.

Journals controlling — Alabama, Arkansas, Colorado, Florida, Illinois, Kansas, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, Oregon, Tennessee, Virginia, Washington, West Virginia, Wisconsin and Wyoming.

In the list of states given as holding that the enrolled bill controls over the journals, the authorities do not all go to the limit of the holding of the supreme court of the United States, that the enrolled bill is absolutely unimpeachable, but they do go so far as to hold that the contents or subject-matter of the enrolled bill cannot be impeached by anything appearing on the journals.

There has been no citation of cases from Arizona, Delaware, Idaho, New Mexico, Massachusetts, Rhode Island and Vermont.

The leading case on the subject is that of Field v. Clark, supra. In that case it was held that it was not competent to show from the journals of the United States senate and the house of representatives, from the reports of committees, or from other documents printed by authority of congress, that enrolled bill designated H. R. 9416, as finally passed, contained a section that did not appear in the enrolled act in the custody of the state department, the first proposition of the syllabus of that case reading: “The signing by the speaker of the house of representatives and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress; and when the bill thus attested receives the approval of the president, and is deposited in the department of state according to law, its authentication as a bill that has passed congress is complete and unimpeachable.”

It will be thus noted that the supreme court of the United States attaches to a bill thus authenticated absolute verity and puts it beyond the pale of dispute or attack from any source whatever.

Eminent counsel representing the plaintiff in-error, while admitting that the authority outside our own state is hopelessly divided, contend with earnestness that Ohio, by virtue of its prior decisions, is entitled to rank with the journal-controlled states. They have cited five decisions of the supreme court of Ohio, commencing with the case of The State, ex rel., v. Moffitt, 5 Ohio, 358, continuing with Miller v. The State, 3 Ohio St., 475; Fordyce v. Godman, Auditor, 20 Ohio St., 1; The State, ex rel. Herron, v. Smith, 44 Ohio St., 348; and Beyer et al. v. Burress, 67 Ohio St., 500.

An examination of these several cases justifies the contention at once that Ohio is not to be classed with the supreme court of the United States, nor with the several states that have gone so far as to hold that the authentication of a bill in constitutional form renders a bill immune from any and all attacks, but it does not justify the assertion that Ohio is to be ranked with those other states that have held that the journals of the two houses of the general assembly control .in all respects, nor that the contents of a bill so duly authenticated can be brought into question by the mere disclosure from the journals of some difference in language even of a substantial nature.

The oldest case, decided in 1832, Hitchcock, J., writing the opinion, was that of The State, ex rel., v. Moffitt, supra. Here Lemuel Moffitt was assuming to discharge the duties of an- associate judge of the county of Ashtabula, claiming to have been elected as such by the general assembly in 1831. It appeared from an examination of the journals of •the house and senate that one of them showed the election of Lemuel Moffitt to this position and the other showed the election of Samuel Moffitt. The error was not corrected, and there was therefore no concurrence of action by the two bodies. Neither one of the presiding officers signed the certificate of election to the governor and no commission was issued by the governor. Lemuel Moffitt was therefore acting without commission, and there was not involved in the case any question as. to the supreme authority as between the act of the general assembly on the one hand and the authentication by its presiding officers and the approval by the governor on the other hand.

The court held that under the then existing statute it was the duty of the governor to have issued a commission upon the production of a certificate, and that without it the governor did not possess the power to act. This particular case cannot, therefore, be urged as authority to the effect that the journals control as against the due authentication and approval of an act of the general assembly. The court held, and rightly held, that the journals of the general assembly could appropriately be inspected, since the occupant of the position rested his title wholly on an alleged election by the general assembly, without any commission or other authentication, and he himself relied on the journals as a warrant for his exercising the functions of his office. Under such circumstances an inspection of the legislative journals was not only justified but necessary. Here there was no other source to prove or disprove the claim of the respondent, nor was there any conflict whatever between the general assembly on the one hand and its presiding officers and the governor on the other. The only conflict was between the journal of the house and that of the senate.

In the case of Miller v. The State, supra, the question arose over the fact that the journal of the senate did not affirmatively show that the bill under consideration was read on three different days or even read three different times, although such readings were not dispensed with by a three-fourths vote as required by the constitution. Thurman, J., in the opinion, says, at page 482:

“A statute may, upon its face, be repugnant to the constitution, and therefore void, no matter how regular may have been the steps by which it was enacted. And although the power was at one time very seriously denied, yet it is no longer to b¿ doubted that the courts are bound to treat such a statute as a mere nullity.

“But the case is quite different where no such repugnancy appears in the act itself, and its validity is assailed upon the ground that it was not passed in the mode prescribed by the constitution. By the term ‘mode/ I do not mean to include the authority in which the lawmaking power resides, or the number of votes a bill must receive to become a law. That the power to make laws is vested in the assembly alone, and that no act has any force that was not passed by the number of votes required by the constitution, are nearly, or quite, self-evident propositions. These essentials relate to the authority by which, rather than to the mode in which, laws are to be made.”

Following the suggestion in the opinion of the eminent jurist just quoted, the court incorporated in the fourth paragraph of the syllabus the following language: “No bill can become a law without receiving the number of votes required by the constitution, and if it were found, by an inspection of the legislative journals, that what purports to be a law upon the statute book was not passed by the requisite number of votes, it might possibly be the duty of the courts to treat it as a nullity.”

It will readily be seen, therefore, that this case cannot be urged as authority for the proposition that courts will inspect legislative journals to ascertain if there be minor or even substantial discrepancy between an enrolled act duly authenticated and the act as it would appear from an inspection of the journals only.

The case of Fordyce v. Godman, Auditor, supra, presents the question in but little different aspect from that of Miller v. The State, supra. Here the court held, in effect, that the courts would inspect the journals of the general assembly to ascertain if certain claims purporting to have been allowed by the general assembly received the concurrent votes of two-thirds of the members elected to each branch of the general assembly. There is certainly nothing in the syllabus of that case, nor for that matter in the opinion of Scott, J., that warrants the claim that the courts are authorized to inspect these same journals to ascertain if there be difference between the enrolled bill duly authenticated and approved and the bill as it might be made to appear from the journals.

The case of The State, ex rel. Herron, v. Smith, supra, falls far short of the mark of aligning Ohio with the states that rest everything on the journals of the lawmaking body. The question involved arose out of a claim that a certain bill had not received a constitutional majority of the members elected to the senate, it being urged that four of the votes required to' furnish this constitutional majority were not cast by de'jure members of that body.

The court refused to entertain the claim that it could or would inspect the legislative journals for the indirect purpose of trying the title to de facto members of the state senate.

The court did hold in the first proposition of the syllabus that where the journal of each house of the general assembly shows that a law received the concurrence of the number of members required by the constitution for its adoption and that it was publicly signed in the presence of each house by its presiding officer, as required by Section 17, Article II of the Constitution, its authenticity cannot be impeached by parol evidence that one or more of the members in either house recorded as concurring in its adoption had, prior thereto, been seated, upon the determination of a contested election, by less than a constitutional majority, although the concurrence of such member or members was necessary to the number of votes required by the constitution for the passage of the law.

The last of the Ohio authorities is the case of Beyer et al. v. Burress, supra.

In that case, as may be ascertained from the record, the court inspected the legislative journals, which disclosed the fact that after a bill had passed both branches of the general assembly a motion to reconsider was carried in the house of representatives and that the bill remained on the calendar unacted on until adjournment sine die was had.

Finding such to be the fact the court held that the bill, although enrolled, signed by the presiding officers of the two branches of the general assembly, delivered to the secretary of state and published in Volume 95, Ohio Laws, page 557, was nevertheless not a valid enactment.

This holding was manifestly proper, since the parliamentary effect of a reconsideration of the passage of a bill is to effectually undo everything that had been done before.

Here, however, as in the other Ohio cases, there was no issue of fact raised as to the contents of a duly enrolled bill and the bill as it might appear from a judicial inspection of the legislative journals. It is only in line with the Ohio doctrine that the courts will consult as appropriate evidence the legislative journals whenever an issue of fact is raised as to any certain bill having received a constitutional majority of both branches of the general assembly.

From the doctrine thus established in Ohio the court is not now disposed to depart; indeed, it is quite willing to reiterate it as in all respects proper and in line with public policy. The court, however, ✓ will not extend the matter of the inspection of the legislative journals to the extént asked in the instant case for the purpose of establishing the fact that a discrepancy of a material nature exists between the enrolled bill so duly authenticated and approved and the bill as it might appear to be on such inspection of the journals.

The court is moved to this conclusion from the fact, first, that the discrepancy alleged is not of that substantial and material character that would justify any such enlargement of the doctrine of inspection; second, that the Ohio authorities cited do not warrant or suggest any such enlargement; third, that an extension of the privilege of inspection of the legislative journals would manifestly operate to produce confusion and uncertainty, without any consequent benefit, and would be clearly against public policy.

Consideration of weight must be givyn to the general knowledge of the inevitable tendency of all legislative bodies of these modern days to put off final action on more important measures until the closing days of the session.

At this time differences of long standing are being ironed out by conference committees, and an examination of the volumes of our session laws will disclose the fact that in these last days bills to the number of a hundred or more are finally enacted into law.

The joint enrolling committees of the general assembly and the clerical forces of both bodies are fairly overrun with bills, and must of necessity labor to the point of exhaustion.

The wonder is not that some mistakes creep into our laws, but rather that more serious and blundering errors are not to be found. It is really a tribute to the efficiency of the clerical forces of the general assembly that so much o°f certainty and correctness is had.

If we are to submit every law to the rigid pound-of-flesh exaction of inspection and comparison that is suggested by the plaintiff in error, public security and safety would in a short time require the abolition of the present bicameral system of representative government and the substitution of one small body of legislative experts, who, with the exactitude and certainty of scientists, would write, enact and repeal our laws.

Meanwhile an enrolled bill bearing the solemn attestation that it was signed by the presiding officers of each house, while the same was in session and capable of doing business, and which thereafter was presented to and signed by the governor and by him filed with the secretary of state, must, if the legislative journals show it to have received the necessary constitutional majority, be considered to be what it purports to be, and not under any circumstances subject to impeachment as to its contents or the mode of- its passage.

Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    The State, ex rel. Nolan, v. ClenDening et al.

      Writ of prohibition — Purpose and scope — Ultra vires jurisdiction —Removal for misconduct in office• — Participation in referendum.

    1. Under the Ohio constitution of 1912 the writ of prohibition was added to the original jurisdiction of the supreme court.
    2. The writ of prohibition is a high prerogative writ, to be used with great caution in the furtherance of justice and only where there is no other regular, ordinary and adequate remedy.
    3. The writ may be invoked against inferior courts or inferior tribunals, ministerial or otherwise, that possess incidentally judicial or quasi-judicial powers, to keep such courts or tribunals within the limits of their own jurisdiction.
    4. If such inferior courts or tribunals, in attempting to exercise judicial or quasi-judicial power, are proceeding in a matter wholly or partly outside of their jurisdiction, such inferior courts or tribunals are amenable to the writ of prohibition as to such ultra vires jurisdiction.
    5. Where inferior courts or tribunals are vested with power to remove public officials upon the ground of misconduct in office and written charges are filed before them declaring and defining such misconduct, if such charges do not constitute misconduct in office under the constitution of Ohio or the statutes of the state in such case made and provided, such inferior courts or tribunals are exceeding their jurisdiction in that behalf and may be enjoined by such writ of prohibition, if there be no other adequate remedy.
    6. In the case at bar none of the charges presented constitutes a legal charge of misconduct in office as known under the laws of Ohio, and by reason thereof the defendant board was without jurisdiction to hear and determine the same.
    (No. 15038
    Decided December 11, 1915.)
    In Prohibition.
    This is an action for a writ of prohibition brought by John F. Nolan, as relator, against the defendants, Byron M. ClenDening, M. M. Rose and Frank Hay, as the state liquor licensing board of the state of Ohio.
    Said relator was, on July 22, 1914, duly appointed as a commissioner on the Jefferson county liquor licensing board for a period of four years. He duly qualified for such position, assumed the duties of the same and was, at the time of the commencement of the suit, acting as such county commissioner.
    On September 23, 1915, certain charges were filed before the state liquor licensing board of Ohio against said John F. Nolan and others, as follows:
    “No. One —
    “That John F. Nolan, being then and there a duly qualified and acting member of said county liquor licensing board, was then and there at the times mentioned, guilty of misconduct in office in taking part, other than by voting, in an election involving the prohibition and numerical limitation of saloons.
    “No. Two —
    “That the said John F. Nolan, on or about the twentieth day of August, 1915, and at divers times since said date, being a duly qualified and acting member of the county liquor licensing board of Jefferson county, in the state of Ohio, was then and there guilty of misconduct in office by reason of his acts and conduct as follows, to-wit:
    “That he then and there engaged actively with divers other persons, many of whom were either liquor licensing officials under the laws of Ohio, or licensees engaged in the saloon business in said state, in the distribution and circulation of referendum petitions among the voters, and that he counseled and advised and requested licensees engaged in the saloon business in said county to circulate petitions and procure signatures of voters thereto for the purpose of calling a referendum election on what is known as the McDermott liquor licensing law, found in Vol. 106, Ohio Laws, page 560, which act amends the liquor licensing laws of Ohio under which his said office was held; that by reason of his influence of his office as such licensing official and by his counsel and request said petitions were placed in the hands of many licensees who were induced to procure signatures thereto, and the same were filed as provided by law with the secretary of state, causing such referendum election to become a part of the' regular or general election in the state of Ohio to be held November 2, 1915; that said referendum election on said Mc-Dermott law and said regular or general election then and there involve the prohibition of the liquor traffic and the numerical limitation of saloons in Ohio; that said McDermott law, together with the liquor licensing laws which were amended by the enactment of the same, provides for the regulation of the liquor business and the licensing thereof in Ohio, and for the limitation of saloons, and the prohibition of saloons in certain territory; and that at said regular election and as a part thereof, the question of adopting an amendment to the constitution prohibiting saloons and the selling of intoxicating liquors in Ohio is to be voted on by the electors, which said proposed amendment was duly initiated as provided by law prior to the acts herein complained of.
    “No. Three —
    “That John F. Nolan, being then and there a duly qualified and acting member of the county liquor licensing board of Jefferson county, Ohio, on or about the twentieth day of August, 1915, and at divers times thereafter was guilty of misconduct in office as such licensing official in that he unlawfully in pursuance of an arrangement and agreement with a member of the state liquor licensing board, and in pursuance of a common purpose and design with other licensing officials of the state of Ohio, then and there actively engaged in advising and counseling and procuring referendum petitions to be circulated by licensees engaged in the saloon business and other persons, for the purpose of securing a referendum election to be held on November 2, 1915, on what is known as the McDermott liquor licensing law passed by the eighty-first general assembly of Ohio, Vok 106, Ohio Laws, page 560, and did in pursuance of such efforts in connection with such other licensing officials and licensees cause said petitions to be circulated and signed by a sufficient number of voters to bring about such referendum election, with the agreement, understanding and purpose of suspending and defeating such McDermott law and of procuring employment thereafter through the mutual aid and influence of such licensing officials as a member of the licensing board of said county; and in devoting the time of his said office and its influence in behalf of procuring such referendum he incurred expense and paid money, the amount of which is unknown, for the purpose of procuring such petitions to' be circulated and such referendum to be secured, and caused licensees engaged in the saloon business to become interested, along with himself, in bringing about such referendum, and that by such agreement, understanding and common design thus created between such licensees and such liquor licensing officials, the said John F. Nolan is incapacitated to perform the duties of his said office impartially and without prejudice in carrying into effect the letter and spirit of the liquor licensing system of Ohio.
    “This twenty-third day of September, 1915.
    “C. A. Reid.”
    By agreement of the parties an amendment was made to specification No. One in- the following language:
    “To-wit: A referendum election upon the Mc-Dermott law to be held at the coming state election in November, and being the same law and the same election referred to in the other specifications herein, and being the regular election to be held on November 2, 1915, at which said McDermott law is to be submitted.”
    While said charges were pending before the state liquor licensing board the petition in this case was filed alleging that said board had set October 25, 1915, at ten o’clock for a hearing of said charges against said relator; that he had received due notice of such fact; that said state liquor licensing board was without authority of law to hear said charges; that said charges were insufficient in law and unauthorized by the statute; that each and all of said charges constitute no ground upon which the relator may be removed from office as a member of the Jefferson county liquor licensing board, and that neither of said charges constitutes misconduct in office, bribery, incompetency, gross neglect of duty or gross immorality; that said charges, and each of them, are insufficient in law, and that said state liquor licensing board is without jurisdiction to hear and determine the same; that there was no legal remedy provided for reviewing the action of the state liquor licensing board under the revisory jurisdiction of the supreme court, and, therefore, no adequate remedy at law. Wherefore, the relator prays for the issuing of the writ of prohibition, forbidding and restraining the defendants from hearing and determining said charges so filed before said state board.

      Mr. T. S. Hogan and Messrs. McGhee, Davis & Boulger, for relator.

      Mr. Edward C. Turner, attorney general, and Mr. A. O. Dickey, for respondents.
   Wanamaker, J.

The writ of prohibition is a writ new to Ohio jurisprudence. It was adopted in 1912 as a part of the judicial article and is found in Section 2, Article IV of the Constitution, in the following language:

“It [the supreme court] shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in all cases involving questions arising under the constitution of the United States or of this state, in cases of felony on leave first obtained, and in cases which originated in the courts of appeals, and such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law.”

The definition generally recognized in those jurisdictions in which this writ has long been in use is as follows:

“The writ of prohibition, is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior tribunal properly and technically denominated such, or to an inferior ministerial tribunal possessing incidentally judicial powers and known as a quasi-judicial tribunal, or even in extreme cases to a purely ministerial body, commanding it to cease abusing or usurping judicial functions. A writ of prohibition is a prerogative writ to be used with great caution and forbearance for the furtherance of justice, and for securing order and regularity in all the tribunals where there is no other regular and ordinary remedy. The legitimate scope and purpose of the writ is to keep inferior courts within the limits of their own jurisdiction, and to prevent them from encroaching upon the jurisdiction of other tribunals.” (32 Cyc., 598). “This writ is of English origin, being one of the great common-law prerogative writs long in use.” (/&., note 2),

High, in his excellent work Extraordinary Legal Remedies, clearly states the prevailing doctrine, wherever the.writ is in general use, and enumerates three conditions necessary to warrant the granting of relief through the writ of prohibition. They are as follows:

“1. That the court, officer or person against whom it is sought is about to exercise judicial or quasi-judicial power.

“2. That the exercise of such power is unauthorized by law;

“3. That it will result in injury for which no other adequate remedy exists.” (Section 764a).

In the same section High also announces the doctrine —

“And the remedy may be invoked against any body of persons or officers assuming to exercise judicial or quasi-judicial powers, although not strictly or technically a court.”

“The province of the writ is not necessarily confined to cases where the subordinate court is absolutely devoid of jurisdiction, but it is extended to cases where such tribunal, although rightfully entertaining jurisdiction of the subject-matter in controversy, has exceeded its legitimate powers.” (Section 781).

The first question that naturally arises is this: Was the defendant, the state liquor licensing board, “about to exercise judicial or quasi-judicial power,” “although not strictly or technically a court?”

It is conceded by both sides of this case that charges of misconduct in office had been presented and filed with the defendant board against the relator; that a trial was to be had and that a judgment was to be entered, which, according to the' statute, was to be final, and that such judgment might be an ouster or removal from office.

In this view of the case it would seem almost absurd to contend that the defendant board was not about to exercise “quasi-judicial power,” and, though not a court, it was such an inferior tribunal or body as rendered it subject to the writ of prohibition if a proper case had been presented to such board, as to matters of jurisdiction.

It has already appeared from the language quoted from the constitution that the general assembly is vested with power to confer revisory jurisdiction upon the supreme court as to the action of administrative heads or boards, such as the state liquor licensing board, and it is conceded upon all hands that no such provision has been made. It is, therefore, contended that the legislature’s failure in this behalf renders the action of the board exclusive and final.

The effect of this contention, however, would be to deny to the supreme court the original jurisdiction conferred in the constitution with reference to the writ of prohibition. The failure of the legislature to provide revisory jurisdiction, which is in its very nature akin to appellate jurisdiction, can scarcely be claimed to nullify the original jurisdiction conferred upon the supreme court by the constitution. Of course, had such revisory jurisdiction been conferred, the relator would have been required to avail himself of such remedy, providing that the same was adequate.

We come now to consider the question as to whether or not the inferior tribunal named — that is, the State liquor licensing board — was about to exercise powers outside of its jurisdiction, or to exceed its powers in a matter in which it has certain particular jurisdiction.

Certain written charges were filed against the relator, Nolan, before the state liquor licensing board. Those charges fully appear in the statement. Boiled down they are as follows:

1. “Guilty of misconduct in office in taking part, other than by voting in an election involving the prohibition and numerical limitation of saloons.”

2. Guilty of misconduct in office by reason of his distributing and circulating referendum petitions among the voters on the McDermott liquor licensing law.

3. Misconduct in office by reason of distributing and circulating said petitions on said McDermott liquor licensing law with the agreement, understanding and purpose “of procuring employment thereafter through the mutual aid and influence of such licensing officials as a member of the licensing board of said county.”

There are other charges suggested or winked at, but by reason of their indefiniteness and want of particularity they do not merit discussion in this opinion.

It is nowhere charged in the several complaints against the relator that he was guilty of “bribery,” “incompetency,” any “gross neglect of duty” or “gross immorality.” It is claimed, however, that he was guilty of “misconduct in office” in certain respects detailed at some length in the several written charges.

Upon the general subject of “misconduct in office” the Constitution of Ohio, as adopted in 1912, Article II, Section 38, provides as follows:

“Laws shall be passed providing for the prompt removal from office, upon complaint and hearing, of all officers, including state officers, judges and members of the general assembly, for any misconduct involving moral turpitude or for other cause provided by law,” etc.

It is not claimed in this case that there is any wilful or corrupt act or purpose charged against the relator under the constitutional provision, and it is conceded that if any of the above charges constitute misconduct in office, it must be by virtue of a violation of Section 3 of the liquor licensing act (Section 1261-18, General Code; 103 O. L., 216), or a violation of a certain section of the corrupt practices act, which will be subsequently referred to.

Said Section 3 reads as follows:

“No member or employe of a state or county licensing board shall take any part, except to vote, in any election involving the prohibition or numerical limitation of saloons; and any violation of this provision shall be deemed misconduct in office and such member of such board may be removed therefor by the appointing power.”

Did the McDermott bill, upon which a referendum was sought by said Nolan, as charged, involve “the prohibition or numerical limitation of saloons ?”

The McDermott bill in its gist merely has to do with the administration of the license system, as is admitted by defendants in their brief, as follows:

“It is sufficient to say here that the sole power, authority and function of the state liquor licensing board is the administration of the system of licensing the trafficking in intoxicating liquors * ■* * That is to say, that board has no power, duty or function other than the administration and enforcement of the laws of the state pertaining to the licensing of the trafficking in intoxicating liquors, and in the very nature of things are only an administrative branch of the executive department of the state government, wholly divorced from both the legislative and judicial departments thereof in a most complete sense. In other words, the state board viewed from every conceivable angle can be said to be no more nor less than a purely administrative agency.”

As is the case in most administrative bodies, they exercise certain "quasi-judicial” functions, and in the case at bar the state liquor licensing board was about to exercise such “qMcm'-judicial” power and, therefore, was amenable to the writ of prohibition, providing a cause of action is stated by the relator in his - petition against said defendant board.

Plainly the McDermott bill in itself, by its own terms and provisions, in nowise affected the question of prohibition; it was a legislative provision, to the contrary, providing for a license system and defining the machinery for its administration. Neither were there any terms or provisions in said McDermott law in anywise expressly limiting the number of saloons other than they were already limited under the Greenlund law.

The mere fact that the McDermott referendum was to be had upon the same day as the referendum upon the proposed prohibition amendment to the constitution does not make the McDermott referendum to involve the “prohibition or numerical limitation of saloons.”

It is urged, however, that by reason of a provision of the McDermott bill whereby licenses are granted for a period of two years instead of one year, as under the Greenlund law, that fact brings the McDermott bill within the provision for “numerical limitation of saloons.”

We cannot agree with counsel in this contention. The inclusion is too remote and too technical.

If the McDermott bill had changed the ratio of population as the basis for determining the number of saloons we would have an entirely different case. But it does not do so. Neither has it anything to do with the taking of a census nor as to when a census shall be taken. The question of the number of saloons per population is a matter wholly within the discretion of the legislature, save as limited by the constitutional provision. But the legislature did not undertake to in anywise modify or amend the ratio fixed in the Greenlund law.

Therefore, as to Charge One we find there is no misconduct in office charged against the relator, and as to that charge the state liquor licensing board had no jurisdiction.

As to Charge Two the question in substance is this: Was John F, Nolan, by reason of circulating referendum petitions on the McDermott liquor licensing law, either by himself or with other members of county boards or licensed saloon-keepers, guilty of misconduct in office for which he might be tried and removed from office by the state liquor licensing board ?

Counsel on both sides concede that there is no statute particularly defining the aforesaid acts as misconduct in office. Manifestly, therefore, misconduct in office must be determined from the constitutional reference aforesaid, to-wit, misconduct in office involving moral turpitude, and such interpretations as courts of last resort have given that phrase touching the administration of public office.

Now, the people’s right to the use of the initiative and referendum is one of- the most essential safeguards to representative government. The enemies of the “I. & R.” persistently misrepresent it as destroying representative government, but it is not so. It is rather a guaranty or safeguard to preserve representative government. It is only when government ceases to be representative of the public welfare that the “I. & R.” can be successfully invoked. If the people get real representative government there is no occasion for the “I. & R.” The potential virtue of the “I. & R.”'does not reside in the good statutes and good constitutional amendments initiated, nor in the bad statutes and bad proposed constitutional amendments that are killed. Rather, the greatest efficiency of the “I. & R.” rests in the wholesome restraint imposed automatically upon the general assembly and the governor and the possibilities of that latent power when called into action by the voters.

There is nothing new or novel about this power so far as basic principles are involved. It has for more than a century been exercised with reference to constitutions, all of which, before their adoption as the organic law of the state, must first be approved, by a vote of the people.

The “I. & R.,” as to-day understood, simply extends the referendum on constitutions and constitutional amendments to statutes enacted by the state legislature. If the right of referendum is a safe and sane power as to constitutions, it requires more than the ordinary imagination and legal legerdemain to conceive how such right of referendum can be dangerous as to statutes.

In 1912 the people of Ohio adopted the “I. & R.” amendment to their constitution by a majority of more than eighty thousand.

The particular parts in said constitution referring to such right of referendum are as follows:

“Article II. Legislative.

“Sec. 1. The legislative power of the state shall be vested in a general assembly consisting of a senate and house of representatives but the people reserve to themselves the power to propose to the general assembly laws and amendments to the constitution, and to adopt ór reject the same at the polls on a referendum vote as hereinafter provided,” etc. .

“Sec. le. The second aforestated power reserved by the people is designated the referendum, and the signatures of six per centum of the electors shall be required upon a petition to order the submission to the electors of the state for their approval or rejection, of any law, section of any law or any item in any law appropriating money passed by the general assembly. No law passed by the general assembly shall go into effect until ninety days after it shall have been filed by the governor in the office of the secretary of state, except as herein provided,” etc.

An examination of the various provisions of the ■constitution shows with what painstaking care the right of referendum was safeguarded, and that provision was made in the constitution expressly denying to the legislature any impairment of the right of referendum in the following words:

“Laws may be passed to facilitate their operation, but in no way limiting or restricting either such provisions or the powers herein reserved.”

Now, the proposition, boiled down, is this: Is it misconduct in office involving moral turpitude for a public officer to circulate petitions, or to engage others to circulate petitions, or to pay out of his own pocket the necessary expense of the same, in order to give to the people of the state of Ohio the right to a referendum vote upon an act passed by the general assembly of Ohio ?

It is nowhere claimed in any charge that this was corruptly done, or that the relator was guilty of bribery, as known in our statutes, or that there was a violation of any other criminal statute in the doing of the matters set forth in Charge Two.

The question itself seems to furnish its own answer. Can it be possible that when a public officer aids the people in the preparation and circulation of petitions for a referendum, which they have reserved to themselves in their own constitution, such public officer is guilty of misconduct' in office by reason thereof for which he may be removed from office ?

The people have undertaken by statutes to declare that certain .acts denying the people their political rights were crimes, but it would be most extraordinary to find a statute declaring an act to be a crime which facilitated, promoted and protected the people in their right to a vote upon an act of the general assembly under the constitutional referendum.

To deprive one of a right would be a wrong, but to secure or protect one in a right — how can this be said to be a wrong, unless expressly so provided by statute?

Charge Three is substantially the same as the second, with the exception that there is added thereto certain general and more or less vague allegations as to an “agreement, understanding and purpose of suspending and defeating such McDermott law and of procuring employment thereafter through the mutual aid and influence of such licensing officials as a member of the licensing board of said county.”

In view of the fact that the statute itself requires that charges in writing shall be preferred, it only emphasizes the necessity of having such charges reasonably definite and certain.

As to just what is meant by the word “employment” in Charge,Three, it is difficult to determine. Nolan was, at the time, a member of a county liquor licensing board; that is, he held a public office. His term would not expire until the second Wednesday of August, 1917, if the Greenlund law should continue to be the licensing machinery of the state. Taking the charge as a whole, the probable intention and connection of the word “employment” in its relation to the context, “an agreement, understanding and purpose of suspending and defeating such McDermott law,” it is reasonably probable that the employment referred to would be such continued holding of public office as a member of the county licensing board as would naturally and necessarily follow from the defeat of the McDermott law. If the McDermott law were upheld at the referendum, clearly Nolan’s employment, or rather, holding office, as such county liquor license commissioner, would be at an end. If the McDermott law were defeated, he would be continued, at least until the end of his term, under the Greenlund law.

“Employment” of this character is clearly -not within the terms or contemplation of the statute; but wholly aside from such statute, would it be seriously contended that a county officer who endeavors to get a referendum that will bring about an extension of his term, or an administrative officer under some taxing system who interests himself against a referendum, the success of which would terminate the office he was then holding — could it be believed that such public officer, by being so engaged with reference to such referendum, would be guilty of misconduct in office involving moral turpitude, as required by the constitution, because the result upon such referendum, would affect his “employment” or continuance in office? The mere statement of this question suggests its own answer.

The protection and promotion of popular rights have not yet become the basis of private prosecutions.

It is contended in the brief for the defendants that the employment promised in Charge Three violates subdivision 3 of Section 5175-29w, General Code (104 O. L., 122), which reads as follows:

“Whoever, directly or indirectly * * * (3) Promises to help another to obtain appointment to any office provided for by the constitution or laws of Ohio or any municipality therein as a consideration for. obtaining or preventing signatures to an initiative, supplementary or referendum petition; * ■ * * is guilty of corrupt practice.”

As we have already noted, there is no promise pleaded in this charge of appointment or reappointment of said Nolan. The language of the charge is “employment.” But even if it were “appointment,” it would need to be charged that said Nolan was to help “another” to obtain appointment, and clearly, under the conceded facts of this case, that is impossible under the charge.

The mere incidental fact that if the McDermott bill were beaten the Greenlund law would be continued upon the statute books, and that under that law Nolan would continue to hold public office or employment, is clearly and conclusively not within the corrupt practices mentioned in said section, and the brief passing notice given to this contention by counsel for the defendants clearly indicates that it is not seriously relied on.

The chief complaint the defendants relied on throughout the charges is that of distributing and circulating referendum petitions on the McDermott law by relator and through his influence and direction as such county liquor licensing commissioner in conjunction with other license commissioners and their licensees.

An.examination of the license system,, as provided in the Greenlund law and in the McDermott law, furnishes abundance of opportunity for honest, patriotic difference of opinion as to the best method of dealing with the licensing of saloons, and the mere fact that one might favor the McDermott bill as against the Greenlund law, or vice versa, does not furnish any satisfactory evidence of either person being wanting in his ideas or ideals of good government, or that he is “wet” or “dry,” for the saloon or against the saloon.

Innocence, honesty of intention, patriotic purpose, may be as well attributed to a person who favors one law as to the person who favors the other law, and it certainly could not be seriously claimed that either position as to either law would be one involving moral turpitude, whether the person favoring or opposing be private citizen or public officer.

The charges are insufficient in law and in fact under the constitution and statutes of the state of Ohio. ,By reason thereof the defendant state liquor licensing board was without authority to hear and determine whether or not said Nolan was guilty of misconduct in office, and the writ of prohibition was available to the relator to prevent a hearing and determination upon such illegal and insufficient charges, said board being without jurisdiction to hear and determine the same.

The writ is accordingly allowed.

Writ allowed.

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