text:
    Senior v. Ratterman.

      Constitutional law — Act of May 14, 1886 — JDow law — Application to wholesale liquor dealers.

    1. Section 18 of the schedule to the constitution, which provides that “ no license to traffic in intoxicating liquors shall hereafter be granted in this state; but the general assembly may, by law, provide against evils resulting therefrom,” applies as well to the wholesale as to the retail traffic in intoxicating liquors.
    2. "Wholesale dealers in intoxicating liquors, who are not manufacturers, are within the terms of the act of the general assembly passed May 14, 1886, entitled “An act to provide against the evils resulting from the traffic in intoxicating liquors,” and are liable to the tax therein imposed.
    3. Said act, as applied to wholesale dealers in such liquors, is not in conflict with section 2, of article 12, of the constitution, which provides that “ laws shall be passed taxing by a uniform rule all moneys,” etc., nor with section 26, of article 2, of the constitution, which provides that “ all laws of a general nature shall have a uniform operation throughout the state.”

      Motion for leave to file petition in error to the Superior Court of Cincinnati.

      Follett, Hyman § Kelly, for the motion.
    I. Wholesale dealers are not included in the provisions of the Dow law.
    By the application of any fair rules of construction the term “ traffic in intoxicating liquors/’ as used in section 18 of the schedule to the constitution, does not embrace wholesale dealers in intoxicating liquors. Regulation of the traffic can, in no proper sense, be held to apply to sales in large quantities.
    The evils contemplated, arid against which the legislature may by law provide, are the evils consequent upon the retail trade, the sale of intoxicating liquors as a beverage, and to be drank on the premises where sold. Judge McUvaine, in announcing the opinion of a majority of the court in The State v. Frame, 39 Ohio St. 399, 410, used the following language: “ Undoubtedly the evils contemplated by the constitution, as resulting from the traffic in intoxicating liquors, are those which result from the sale and use of such liquor as a beverage.”
    The sale and use as a beverage, it must be admitted, is selling at retail, by the drink, and to be drank where sold.
    “ The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it.” Cooley Const. Lim. 68.
    The history of the legislation of this state, both before and since the adoption of the present constitution, prior to the year 1882, shows conclusively that the iutont of the people in adopting section 18 of the schedule was to apply its operations to the retail trade. No attempt prior to that time had ever been made to license, restrict, restraiu, control, or in any way regulate the wholesale trade. Upon this proposition the reasoning of Judge Okey, in his dissenting opinion in State v. Frame, supra, 421, is unanswerable: “ The evil supposed to exist, and against which the constitutional provision was directed, was the sale; by any person, of spirituous liquors by the drink, for that was the license, and all there was of it — that was the privilege, and the only privilege with respect to liquors, secured by such license. And this being true, it is too clear for argument that if it was sought by such constitutional provision to cut off such privilege to the few, much more was it intended to absolutely deny it to the many.” And again, on page 422, in considering “the condition of the statutes in relation to the traffic in liquors, in force in 1883,” he said: “ The leading and far most important statutory inhibition then in force was the provision which was directed against the sale of spirituous liquors by the drink. By force of that provision, which had retained substantially the same form during our entire existence as a state, and a portion of our existence as a territory — a period, indeed, of more than ninety years —it was a crime, and punishable as such, for any one not licensed to sell spirituous liquors by the drink.”
    “ In construing a statute, aid may be derived from attention to the state of things as it appeared to the legislature when the statute was enacted.” Platt v. Union Pacific R. Co., 99 U. S. 48.
    “ That construction of a statute should be adopted which, without doing violence to the fair meaning of the words used, brings it into harmony with the constitution.” Grenada County Supervisors v. Brogden, 112 U. S. 261; Bloodgood v. M. & H. R. Co., 18 Wend. 9; Bailey v. Railroad Co., 4 Harrington, 389.
    Adopting familiar and well established rules for the construction of statutes, and for the purpose of bringing this statute into harmony with the constitution, it is necessary to read the last part of section 8, as follows: “ But such phrase does not include the manufacturing of intoxicating liquors from the raw material, or the sale thereof in quantities of one gallon or more at any one time.”
    So read and construed, the statute accomplishes the purposes designated by its title, to wit, “to provide against the evils resulting from the traffic in intoxicating liquors,” as such evils were defined by this court-, as known and understood by the legislature at the time it was passed ; relieves it of its unjust and unconstitutional discrimination and want of Uniformity ; does no violence to the language used; effectuates the intention of the legislature as gathered from the act, and brings it into harmony with the constitution. Thus read the legislature is relieved of the absurd position that there is no evil in manufacturing intoxicating liquors from the raw material, and none in the sale of the same by the manufacturer in quantities of one gallon or more at any one time, but that a sale in like quantity by any one other than the manufacturer is an evil.
    The meaning of the legislature may be extended beyond the precise words used in the law, from the reason or motive upon which the legislature proceeded, from the end in view, or the purpose which was designed. A statute is to be interpreted, not only by its exact words, but' also by its apparent general purpose. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. United States v. Freeman, 3 How. 556; United States v. Kirby, 7 Wall. 482; United States v. Saunders, 22 Wall. 492; Preston v. Drew, 33 Me. 558; Henderson v. Mayor, 92 U. S. 259; Burgett v. Burgett, 1 Ohio, 479; Corwin v. Benham, 2 Ohio St. 36; Stetson v. City Bank, 2 Ohio St. 167; Rezner v. Hatch, 2 Handy, 42; Medical College v. Zeigler, 17 Ohio St. 52; 48 Am. Dec. 573.
    The evils against which the general assembly intended to provide was the sale of intoxicating liquors in quantities of less than one gallon, as is clearly shown by the act itself, and especially by section 11.
    II. The act is unconstitutional so far as the same relates to wholesale liquor dealers.
    1. Section 18 of the schedule to the constitution contains the only grant of power in the constitution to legislate upon the subject of the liquor traffic, since the grant of specific power in that section is exclusive. The evils contemplated by that section are such as result from tbe sale and use of such liquors as a beverage, and at retail.
    2. It is in violation of section 2, article 12, of the constitution. It is apparent from the act that the only object that can be attained by imposing burdens on wholesale dealers is revenue, inasmuch as the exemption in favor of manufacturers who sell in quantities of one gallon or more at any one time is evidence conclusive of the fact that such sales were not regarded by the legislature as an evil.
    No distinction can be made among those who sell in the same way and in the same quantities. The taxation must be uniform and levied by a uniform rule.
    “A statute would not be constitutional which should select particular individuals from a class or locality, and subject them to peculiar rules, or impose upon them special obligations or burdens from which others in the same locality or class are exempt.” Cooley Const. Lim. 489-490.
    If real or personal property is to be taxed it must be by a uniform rulo ; if a license fee or a burden be imposed upon business which is in its nature injurious to the public welfare, the same uniformity must apply. Equality of burden 'is the principle of the constitution. Persons in the same class and property of the same kind must be subjected to the same burden. Fields v. Commissioners, 36 Ohio St. 481; Exchange Bank v. Hines, 3 Ohio St. 43; City of Lexington v. McQuillan, 6 Dana, 513; St. Louis v. Spiegel, 75 Mo. 145; Cummings v. National Bank, 101 U. S. 153; Knowlton v. Supervisors, 9 Wis. 410.
    3. The law is one of a general nature and, as to wholesale dealers, is not of uniform operation throughout the state, and is therefore repugnant to section 26, article 2, of the constitution.
    The uniformity of operation required applies as well to individuals and occupations as to geographical limits. The principle of selection is just as reprehensible in the one case as in the other and just as violative of this provision. Kelley v. State, 6 Ohio St. 269; State v. Powers, 38 Ohio St. 54; Falk, Exp., 42 Ohio St. 638.

      4. If wholesale dealers are .held to be embraced within the provisions of the How law and subject to the burden imposed by it, the dealers in this state who may sell their goods by sample or otherwise, and if they have no place of business in the state, are not taxed. The dealer residing here, and having his place of business here, pays taxes as other merchants do, and then must pay this tax in addition, while the dealer residing outside pays nothing. The-effect must necessarily be to drive dealers across the border where trade can be as advantageously prosecuted and no burdens imposed.

      Rufus B. Smith and Wm. H. Taft, county solicitors, and Edward, Barton, contra.
    1. If the claim made by counsel for plaintiff in error, to the effect that the phrase “traffic in intoxicating liquors,” as used in section 18 of the schedule to the constitution, applies only to the retail traffic, be sound, then, by parity of reasoning, the general assembly is only prohibited from licensing the retail traffic and might enact a license law, provided it was confined to the wholesale trade. Such a conclusion is unsound, in law; but as it logically results from the proposition claimed that the evils against which the general assembly may provide are those which result from the retail trade only, it is clear that the proposition is itself unsound upon which the conclusion is based.
    The word “traffic” is used in its ordinary sense, and means “ to pass goods and commodities from one person to another, for an equivalent in goods or money.” Webster. The word certainly applies to every form of buying and selling intoxicants.
    The mistake of plaintiffs is in assuming that liquor can not be sold and used as a beverage unless it is drank where sold, as in the case of a single drink. But if liquor is sold at wholesale, and is not to be used for “ mechanical, pharmaceutical, or sacramental purposes,” to what use is it to be put except that of a beverage?
    2. The claim that the act is unconstitutional because of the exemption from assessments in favor of manufacturers from the raw material, who sell in quantities of one gallon or more at any one time, and therefore an unjust discrimination, is unsound. The contention of plaintiffs is that “equality of burden is the'principle of the constitution” in the levying of taxes, and that the Dow law violates this rule of uniformity in taxing wholesale dealers and exempting manufacturers; and hence in conflict with section 2, article 12, of the constitution. This section furnishes the governing principle for all laws levying taxes upon property for general revenue. But this being a tax upon business, and levied for the purpose of' “ providing against the evils resulting from the traffic in intoxicating liquors,” and not for revenue, the section is not applicable to it. The uniformity there enjoined does not apply to taxes upou licenses, occupations, or business. West. Union Tel. Co. v. Mayer, 28 Ohio St. 536; Mays v. Cincinnati, 1 Ohio St. 268; Baker v. Cincinnati, 11 Ohio St. 534; State v. Frame, 39 Ohio St. 399.
    3. The tax is not void for want of uniformity, because its burdeu rests uniformly upon all the classes upon which it is imposed, and thus answers the .only requirement of uniformity that the law demands from a tax upon business or even upon property, when levied for police purposes.
    The legislature has the right to tax at will different occupations and kinds of business, and different classes of occupations, and the tax can not be regarded as unjust because discriminations appear to be made in favor of or against particular trades or business, provided the tax reaches all in the particular occupations or business, or in the particular class of the occupations or business which have been selected. Cooley Taxation, 125,129.
    The right to. tax different trades, occupations, and kinds of business necessarily involves the right to so tax without reference to the discriminations which necessarily appear to be made against other trades, occupations, and business. Such discriminations are from the very nature of such a tax inevitable. For it always happens that the business taxed has characteristics in common with some other business exempted. But this does not make the classification unjust or the tax illegal. Eor there may have been reasons satisfactory to the legislature for taxing the former and exempting the latter, and the investiture of them with such a discretion has always been regarded as wise. This running into and overlapping of different classes is readily seen.
    Class is defined by Webster to be “ a group of individuals ranked together as possessing common characteristics.” Things and men may be differently classified according to the characteristic chosen as the type. The elementary text-books used in schools enumerate among other general divisions or classes of occupation, agriculture, mining, fishing, manufacturing, and commerce. Political economy divides men into buyers and sellers, producers and consumers. But the farmer who sells a bushel of wheat is, while in the act of selling, engaged in commerce, and the same is true of the fisherman selling his fish, the miner selling his ores, and the manufacturer selling his wares. The buyer is at times a seller, the producer a consumer. The farmer is still a farmer and not a trader, even though he sells his wheat; and the manufacturer does not cease to be a manufacturer, because he takes on at times some of the characteristics of a trader.
    Thus we see the fallacy of the plaintiff’s claim that wholesale dealers who do not sell less than one gallon or more at any one time, and manufacturers from the raw material who do not sell in quantities less than one gallon or more at any one time, belong to the same class. The latter makes the liquor while the former does not; an important difference, and one that fixes them as members of a different class.
    The following citations of authorities strongly sustain the general assembly in its right to classify and tax as may to it seem best. Gatlin v. Tarboro, 78 N. C. 119; State v. Chadbourn, 80 N. C. 479; New Orleans v. Kaufman, 29 La. Ann. 283; State v. Lathrop, 10 La. Ann. 398; Kenny v. Har

      well, 42 Ga. 416; Davis v. Macon, 64 Ga. 128, 132; 1 Desty Tax. 309, 311; Cooly Tax. 179, n. 6; State v. West, 34 Mo. 424; State v. Whittaker, 33 Mo. 457; Barton v. Morris, 10 Phila. 360; Norris v. Commonwealth, 27 Pa. St. 494; Commonwealth v. Campbell, 33 Pa. St. 380.
    Our own statutes have for years afforded us an illustration of taxation of this kind in which the general assembly has in its discretion selected certain kinds of business for taxation, discriminating against them, as plaintiffs would say, in favor of other business.
    The statutes referred to are sections 2669, 2670, 2672, 4222, 4226, 4388, 4397 to 4402, of the Revised Statutes.
    These statutes provide for the imposition of license fees upon various trades and occupations, such as exhibitors of shows, peddlers, auctioneers, venders of gunpowder, hucksters in the public streets, and pawnbrokers.
    These taxes have been sustained by our courts on the ground that they were laid by the general assembly in the exercise of the police power for the purpose of regulating trade. Mays v. Cincinnati, 1 Ohio St. 268; Baker v. Cincinnati, 11 Ohio St. 534.
    And yet there is greater discrimination made here than that which is said to exist in the Dow law.
    Classification analogous to this has been made in Texas, in the liquor law of that state, and the propriety of it was not questioned in the supreme court of the United States. Tiernen v. Rinker, 102 U. S. 123; and in State v. Brewster, 39 Ohio St. 653, 658, this court say, in speaking of the classification of cities: “It is no sufficient objection to this classification that it is illusory.”
    But granting, for the sake of argument, that plaintiffs are right in the position they take, that there is a discrimination against wholesale dealers, which is unjust and illegal, nevertheless it is not possible to so change the act by construction that it will exempt wholesale dealers together with manufacturers. The provision is that all the traffickers shall be taxed'except certain manufacturers. If the exception is void because it does not include other classes of dealers, it is void and falls ; the act stands without it; and all traffickers, except those selling for medicinal, mechanical, or pharmaceutical purposes will be taxed. Cooley Const. Lim. *178; City of St. Louis v. St. Louis Railway Co., 14 Mo. App. 221; Tillman v. Cocke, 9 Bax. 429. In this last case an exception to a law was embodied in a separate section. Part of the exception was void. It was contended that the exception must stand or fall as a whole. It was held that the exception might stand in part and fall in part. See also Tierner v. Rinker, 102 U. S. 123; State v. Amery, 12 R. I. 64. These two cases are liquor cases, and the first is' a high authority, and directly ip point. See also Little Miami R. Co. v. Commissioners, 31 Ohio St. 338, 344; Gilpin v. Williams, 25 Ohio St. 283; Gibbons v. Catholic Institute, 34 Ohio St. 289; Bowles v. State, 37 Ohio St. 36, 44.
   Spear, J.

The question involved in the case is whether wholesale dealers in intoxicating liquors are subject to the tax imposed “ upon the business of trafficking in spirituous, vinous, malt, or any intoxicating liquors,” by the act of the general assembly passed May 14, 1886, entitled “An act providing against the evils resulting from the traffic in intoxicating liquors ” ? Section 8 of the act, the section more particulaidy involved in this inquiry, reads as follows : “ The phrase ‘ trafficking in intoxicating liquors/ as used in this act, means the buying or procuring and selling of intoxicating liquors otherwise than upon prescriptions issued in good faith by reputable physicians in active practice, or for exclusively known mechanical, pharmaceutical, or sacramental purposes, but such phrase does not include the manufacturing of intoxicating liquor from the raw material, and the sale thereof by the manufacturer of the same in quantities of one gallon or more at any one time.”

Counsel for plaintiffs insist that this question must be answered in the negative, and urge in support of this claim:

1. That wholesale dealers can not be included, because the phrase, “traffic in intoxicating liquors,” as used in section 18 of the schedule to the constitution, does not embrace such dealers, but applies only to the retail traffic; and if 'the terms of the law compel a construction including wholesale dealers, then, as to them, it is unconstitutional, being repugnant to the section of the schedule referred to, which reads as follows: “ No license to traffic in intoxicating liquors shall hereafter be granted in this state; but the general assembly may, by law, provide against evils resulting therefrom.”

2. The provisions of the law, so far as they may be held to apply to wholesale dealers, are in violation of section 2 of article 12 of the constitution, because the object of the act in imposing burdens upon them is revenue only, and the burdens are not uniformly imposed in that there is an unjust discrimination against the wholesale dealer and in favor of the holder of other classes of property and against the former, and in favor of the manufacturer.

8. The law is of a general nature, and, as to wholesale dealers, is not of uniform operation throughout the state, and is, therefore, repugnant to section 26 of article 2 of the constitution.

4. If wholesale dealers are held to be within the provisions of the law, the dealers of this state will be put to great disadvantage in competition with dealers from without who sell by sample, and the effect must necessarily be to drive home dealers beyond the limits of the state.

The legal propositions are all disputed by counsel for defendant, who contend that the act applies to wholesale dealers, and is a constitutional and valid law. These contrary views are enforced and illustrated by very able and ingenious arguments on the part of the respective counsel, which will be found epitomized in the pi-eceding pages, and need not be repeated.

We do not feel called'upon to enter at large into a discussion of the law. Save as to a feature not involved in the controversy here, it is the same in its provisions as the act of April 17, 1888, popularly known as the Scott law. That enactment was subjected to a critical examination by this court in the case of The State v. Frame, 39 Ohio St. 199. The present law was very fully examined in the cases of Adler v. Whitbeck and of Anderson v. Brewster, disposed of and reported at the last term, ante, pp. 539, 576. The conclusions reached by'the court in those cases, so far as they affect questions involved here, are satisfactory, and, where applicable to this case, control it. We have no disposition to unnecessarily swell the already plethoric volume of literature upon the general subject embraced in the diseussions'in the various cases arising under the liquor taxing laws, and will endeavor to dispose of the case at bar as briefly as may be.

It is contended that section 8 of the statute should be construed to read as follows: “But such phrase does not include the manufacturing of intoxicating liquors from the raw material, or the sale thereof in quantities of one gallon or more at any one time.” The language of the section appears to be plain, and to admit of but one meaning. It seems to explain and construe itself, and, when this is the case, the task of the interpreter can hardly be said to arise; nor, as we think, does anything in the context have the effect to render its meaning questionable. To adopt the foregoing would be to strike out and insert, a process common in legislative bodies, but unusual in courts of justice. It is our duty to give effect to what the law-makers have put in the law, and to all of it, not to repeal and substitute. In terms the section says that selling at wholesale by the manufacturer is not the form of traffic included in the law, and specifies no other form of wholesaling as not included. It follows, therefore, necessarily, as we think, that selling at wholesale by others than the manufacturers is included within the terms of the law.

The proposition that the phrase “traffic in intoxicating liquors,” used in section 18 of the-schedule, applies only to the retail traffic, we are of opinion is not sound. The language of the section is clear and unambiguous, nor is there any other clause or section of the constitution which serves in the least to throw doubt upon the meaning of the words used. Words so employed maybe taken in their plain, ordinary sen.se, unless a different meaning is required in order to give effect to some other portion of the instrument, or unless they are varied by the language of some other portion, or the consequences following such construction would be plainly contrary to the legislative intent. No different construction is required in order to adapt the language used to the particular subject-matter, for there can be no question but that the mischiefs sought to be remedied were those arising from the improper use of intoxicating liquors, and the means intended to be legalized were legislative enactments providing against the sale or furnishing of liquor in any form that would be productive of evil. The word “traffic” has always had a well understood meaning in the popular sense. It is the passing ‘of goods or commodities from one person to another for an equivalent in goods or money; and a trafficker is one who traffics — a trader, a merchant. No limit as to amount is fixed in the section, and it is plainly as much traffic to deal in a given commodity by the wholesale as at retail. The two forms of traffic were in existence at the time of the framing and adoption of the constitution as they now are, and it would be strange indeed if the very intelligent body of gentlemen who drafted that instrument used language naturally including both forms if it was meant to include only one. The phrase referred to had not obtained a technical meaning; hence, it is proper to attach the popular meaning, especially as neither the context nor a consideration of the consequences which would result from a literal interpretation, furnish any ground for departure from such construction. The business of the interpreter is not to improve the language in question;.it is to expound it. The question for him is not so much what the law-makers meant, but what their language means. And yet, if wo were at liberty to regard the history and external circumstances which led to the adoption of the section in question, and by putting ourselves in the position of those whose words we are. to interpret, seek in that way to ascertain what those words relate to, the same result would follow, for the general scope of the subject is clearly indicated by the petitions presented and the comments of the members thereon.

Those petitions varied in form. Some prayed the adoption of a clause preventing the legislature “ from passing any act authorizing the retail of intoxicating liquors; ” others, a clause forbidding the legislature passing any law “whereby the sale of spirituous liquors may be granted to any one, or the traffic therein in any manner legalized ; ” others, a provision “prohibiting the sale of ardent spirits ; ” others, a clause “ prohibiting traffid in intoxicating liquors; ” and others that “ an excise be laid on every gallon of liquor manufactured sufficient to prevent the distillation.” These several phases of the question were matters of discussion, and there was no manifest haste or want of consideration in the formulating of the language of this section. On the contrary, the debates of the convention show that the section was the subject of much criticism; and while it is true that the evils which its advocates urged as most demanding correction were those of the retail traffic (the only form theretofore .sought to be regulated by license),-and while it is possible that some may not have realized the fullest effect of the language employed, yet the debates show beyond question that the meaning and possible effects of the proposed section were discussed, not only as affecting the retail trade, but the manufacture and all commercial dealings in liquors.

The adoption of the section was urged by some members with the avowed purpose of enabling the general assembly to provide against evils arising from any and all forms of the traffic. One member, responding to another who had advocated the adoption of the section, used this language : “ The gentleman supposes that if we insert this provision into the constitution, taking away from the general assembly the power of authorizing by license the traffic in spirituous liquors, that such a provision, together with the existing laws upon the subject, would have the effect to prevent the manufacture of and all commercial dealings in those articles. I understand that to be the substance of the gentleman’s legal opinion.” To this the other assented. Another member used language of this import: “I am opposed to the traffic in ardent spirits. I desire to cut it up by the roots, and drive it out,of the state.” Another, commenting upon the diverse views of those who. had spoken upon.the subject, and the possibility of the language used not conveying to the people and' the general assembly the meaning intended by the framers, expressed himself in this way : “ But the gentlemen should remember that our individual designs and intentions can not affect the proper and legitimate meaning of the words which we employ in this article.”

The addition of a single word would have confined the effect of the section to the retail traffic. The convention chose not to insert such word, but submitted the section as we have it, and as it was adopted by the people. They used general language, and whatever naturally falls within its ordinary meaning must, in view not only of the obvious import of the words used, but of the circumstances which led to its adoption, be held to have been intended.

To the point that the language itself is controlling, may be cited the following from the opinion of Gholson, J., in Goshorn v. Purcell, 11 Ohio St. 649: “Particular cases or instances lead to the adoption of general rules or principles-Many- of the general rules of law are thus deduced from the decision of particular cases. . . . But when particular instances lead to the adoption of a general rule, in the shape of a legislative or constitutional provision, the authority for the rule has no such limit. The rule is to be interpreted by the language employed in its enunciation, and that language, when clear and comprehensive, is not to be limited in view of the particular instances which may be supposed to have led to the adoption of the rule.”

There is, too, much significance in the point made by defendant’s counsel in their brief that the mode of submission throws light upon the understanding of the people as well as of the convention as to the meaning of the section. In voting, those who favored it voted a ballot having on it: “ License to sell intoxicating liquors, no;” while those who were opposed voted a ticket having on it: “ License to sell intoxicating liquors, yes.” The people who voted the former ticket cau not have supposed that when they voted “ no-” on the proposition to license the sale of intoxicating liquors, they were voting “ yes ” as to the wholesale trade, or leaving the question of license or no license as to that form of traffic an open one for legislative discretion. Yet this result would follow if the construction claimed by plaintiffs is the true one. It is clear that the word “ therefrom ” in the second clause refers to the phrase traffic in intoxicating liquors” in the first clause, and if the word “ therefrom” is confined to the retail traffic then it follows that the same construction must be given its equivalent in the first clause.

But even if it should be admitted that the evils contemplated by section eighteen are those of the retail traffic alone, still it would not follow that the act, in the particular complained of, is unconstitutional, for power to legislate generally upon the subject is conferred by section one of article 2 of the constitution. That section provides that “ the legislative power of this state shall be vested in a general assembly.” This essential power may be exercised upon all subjects to which it is applicable to such extent as the government may see fit to carry it, and unless restrained by other sections it is clearly within legislative competency to select this object of 'taxation, and place upon it such burdens as in the discretion of the law-making power may be wise and expedient. It does not now admit of controversy in Ohio that the power to levy taxes is a part of this legislative authority, and that, except so far as restrained by other provisions, the power is unlimited, and may be exercised for the accomplishment of lawful objects in regard to any property or business within the state.

The second proposition of plaintiff’s counsel implies that section 2 of article 12 of the ^constitution affords a limitation upon that power, and that the provisions of the law in question, as to wholesale dealers, are in violation of that section, because, while the section requires that laws shall be passed taxing property by a uniform rule, this law, so far as wholesale dealers are concerned,-is for revenue only, and unjustly discriminates between the wholesale dealer and the manufacturer, and betweeu the wholesale dealer as to his property and the holder of other kinds of property, inasmuch as the former is required to pay a tax under this law and general taxes under the general tax law in addition. To this it may be answered that the law does not purport to be for revenue, but to provide against evils, and, to construe it as a revenue law it must be shown that there are no evils incident to the wholesale traffic, and, in contemplation of law, that none can arise, a proposition which, we think, can not be maintained.

The first liquor law enacted under the present constitution made it an offense to sell intoxicating liquor to a person intoxicated, to one in the habit of becoming intoxicated, or to a minor, and these provisions have been in force ever since. True, the evils here sought to be guarded against sprang chiefly from sales in small quantities. But will any one say that evils are likely to arise from the sale to such a person of a drink of liquor, and none likely to follow the sale to the same person of a gallon ? "We assume not. And of all evils, and how they may be provided against, the general assembly is, by the constitution, made the judge. The whole field of choice is left to that body, and so long as it keeps within constitutional limits, no supervising power exists in the courts to say that the choice has not been wisely made. This law, as to its taxing features, operates upon a business and not upon property within the meaning of the section referred to, and hence is not required to be uniform in its application to all forms of the traffic or to all classes. We need not enlarge upon this. The opinions and holdings of this court in Adler v. Whitbeck, supra, and Anderson v. Brewster, supra, treat at length of the question and dispose of the proposition.

Nor is the proposition tenable that the law being of a general nature is not of uniform operation throughout the state, and for that reason repugnant to section 26 of article 2 of the constitution. True, the law is of a general nature and does discriminate between the general dealer and the manufacturer. It requires one to pay, and the other, where the sales are of one gallon and over, is exempted. This implies a division of the two into separate classes, but does not show that because of that fact the law is not of uniform operation. The principle of uniform operation requires simply that the law shall bear equally in its burdens Upon persons standing in the same category. A law is uniform in its operation where every person who is brought within the relation and circumstances provided for is alike affected by the law. It must have a uniform operation upon all those included within the class upon which it purports to operate. It is not claimed that the law does not purport to operate equally upon all wholesalers who are not manufacturers. As between the wholesale dealer and the manufacturer there is manifestly a real, taugible difference, though they have characteristics in common. The general assembly has chosen to classify and to discriminate accordingly. If the classification is proper the discrimination can not be objected to. Ve are not prepared to say that the classification is not warranted. The question in its general aspects is fully discussed and disposed of satisfactorily in the opinion in Adler v. Whitbeck, supra, and, we think, the argument of defendant’s counsel in this case will be found to amply meet the special phase of the question presented by the record.

Respecting the claim that if the law is held to apply to wholesale dealers they will be put to great disadvantage and driven from the state, it is enough to say that the consideration relates to the wisdom of the law, and not, in any sense, to its validity, and is addressed wholly to the general assembly. The court has no concern with it.

Motion overruled.

Owen, O. J., dissents.


source: Caselaw Access Project

author: Owen, C. J.

license: Public Domain

text:
    Benedict v. The State.

      Oriminal law — Failure of jury to agree — Discharge—Omission to show reason of discharge in journal entry — Correction at subsequent term by order nunc pro tunc — Attorney—Privileged communications.

    1. After the submission of a criminal case to a jury, their retirement to their room for deliberation, and their failure to agree upon a verdict, they were discharged by the court. The following entry was thereupon made by the court upon the trial docket: Jury impaneled and sworn. Trial had. Jury discharged for the reason that there was no probability of jurors agreeing. Recognizance fixed at $1,000. Continued.” At the second term of the court thereafter the defendant was again put upon his trial to a jury upon the same indictment. He moved the court to discharge him from further prosecution, offering in evidence in support of his motion the journal entry of the proceedings at the former trial, from which had been omitted the recital from the court docket of the reason of the discharge of the jury. Thereupon the state moved the court to supply such omission by an order nunc pro tunc, which was done, the motion to discharge the defendant overruled, and the trial allowed to proceed. Held, there was no error in such action of the court.
    2. The statements of one accused of crime made to one whose regular employment is, and for many years has been, practicing law before justices of the peace, an'd whose aid and counsel is sought as such attorney or counselor, such statements being made in answer to the inquiries of such adviser as to what the facts concerning the alleged offense were, are privileged communications, and it is error to allow such adviser to testify, upon the trial of the accused, to the statements so made, although the witness had not been admitted to practice in the courts of record of the state.
    Error to the Court of Common Pleas of Meigs county.
    At the January term of the court of common pleas of Meigs county, 1886, the plaintiff in error, Arthur E. Benedict, was put upon his trial to a jury upon an indictment charging him with procuring an abortion upon one Maggie Rathburn. After the submission of the case to the jury, and after they had been for some time in their room, they came into court and reported that they could not agree upon a verdict. The court being satisfied that there was no probability of an agreement, discharged the jury, and made an entry upon the court docket in the following words : “ Jury impaneled and sworn. Trial
      bad. Jury discharged for the reason that there was no probability of jurors agreeing. Recognizance fixed at $1,000. Recognizance with sureties entered into. Continued.”
    The clerk of the court, in making up the journal, by inadvertence omitted to journalize the statement from the court docket that there was no probability of the jurors agreeing. No exception to the action of the court in discharging the jury was made or taken by the prisoner.
    At the September term of the court, 1886, being the second term after the discharge of the jury, the prisoner was again put upon his trial, upon the same indictment, when, after the jury was sworn, the prisoner moved the court in writing to discharge him from further prosecution in the case for the alleged reason that, at the January term of the court, 1886, a jury was duly impaneled and sworn in the case, and, after hearing the testimony, arguments of counsel, and charge of the court, retired to their room to consider of their verdict, and afterward returned into court without delivering any verdict, and that thereupon the court, without consent of the defendant, discharged the jury from further consideration of the case, without stating upon the journal of the court any reason for so doing. The only evidence offered to sustain this motion was the journal entry of the order above mentioned discharging the jury, from which was omitted the statement that there was no probability of the jurors agreeing. Thereupon the state moved the court for a nunc pro tunc order to be entered as of the January term, 1886, reciting that the jury was discharged at that term for the reason that there was no probability of the jurors agreeing. The only evidence offered in support of this motion was the entry made by the presiding judge on the court docket at the January term, 1886, which is given above. The motion to enter the nunc pro tunc order was sustained, to which the prisoner excepted. Thereupon the coui’t overruled the motion to discharge the prisoner, to which, also, he excepted.
    Upon the trial, the state gave evidence tending to prove that.the prisoner committed the offense charged against him on the 12th of June, 1884; and there was no evidence tending to prove any attempt to commit it on any other day. The prisoner offered himself as a witness in his own behalf to testify, among other things, that several days after the 12th of June, 1884, Maggie Rathburn told him that nothing came of the attempted abortion, and that she was still pregnant; and requested him to continue his attempts at abortion. The objection of the state to the testimony so offered was sustained by the court, to which the prisoner excepted.
    Thereupon the prisoner offered as a witness one Clara Benedict, by whom he offered to prove that Maggie Rathburn had said to her on the 2d of July, 1884, that she, Maggie, was still pregnant, and that she stood up and pointed to her person, saying: “ Put your hand on me there and you will discover that I am still in the family-way.” The objection of the state to this testimony was sustained by the court, to which the prisoner excepted. Thereupon the prisoner offered in evidence two letters of Maggie Rathburn, one addressed to the prisoner and one tó Clara Benedict, both written after the 12th of June, 1884, and also separate paragraphs of each, as distinct propositions, but what párticular paragraphs were so offered is not disclosed by the bill of exceptions. Much of the matter contained in each letter is clearly irrelevant to the issue. The objection of the state to their admission in evidence was sustained by the court, to which the prisoner excepted.
    Upon the trial the state offered as a witness one James Petty, who was asked if at any'time in 1884, after the 12th of June, he had any conversation with the prisoner concerning his relations with Maggie Rathburn. He answered that he had. Thereupon, by leave of the'court, the counsel for the prisoner asked the witness if he was not an attorney at law and if the conversation was not one between him and the prisoner in his relation to the latter as such attorney. The answer of the witness was that he followed the business of practicing law before justices of the peace, and had done so for many years, but that he had not been admitted to the bar. He also said that the prisoner sought his aid and advice in his capacity as such counselor or attorney. The prisoner’s objection to the testimony of the witness concerning any admissions made by the prisoner to him was overruled by the court, to which exceptions were duly taken. The witness then testified that in a conversation which he had with the prisoner after the 12th of June, 1884, the latter admitted to the witness that he had attempted to procure an abortion upon Maggie Rathburn on June 12, 1884, at the time and place named in the indictment. On further cross-examination the witness said that the prisoner had come to him at the time of the conversation and asked his advice as an attorney and adviser, and that the admissions were made in reply to the question of witness as to what the facts were. The court overruled the motion of the prisoner to rule out the testimony of the witness relating to the alleged admissions, to which exceptions were taken.
    The prisoner was convicted; a new trial was refused, and to reverse the judgment of conviction the present proceeding in error is prosecuted. The errors assigned and relied upon for a reversal of the judgment below are the several rulings which are recited in the foregoing statement of facts.

      C. S. Grosvenor and John S. Giles, for plaintiff in error.
    The discharge of the jury was. equivalent to an acquittal. Hines v. State, 24 Ohio St. 134; Mitchell v. State, 42 Ohio St. 383; Adams v. State, 99 Ind. 244; Powell v. State, 17 Tex. App. 345; Whitten v. State, 61 Miss. 717; Maden v. Emmons, 83 Ind. 331; State v. Connor, 5 Cold. 311; Stewart v. State, 15 Ohio St. 155; Dobbins v. State, 14 Ohio St. 493; Wright v. State, 5 Ind. 290; Poage v. State, 3 Ohio St. 229; State v. Walker, 26 Ind. 346; Rulo v. State, 19 Ind. 298; Grant v. People, 4 Parker Cr. Rep. N. Y. 527; McCorkle v. State, 14 Ind. 39.
    The court had no jurisdiction of the case after the January term, 1886, and the entry nunc pro tunc, made at the second term thereafter, was coram non judice and void. Ludlow v Johnston, 3 Ohio 575; Markward v. Doriat, 21 Ohio St. 637; 1 Bish. Crim. Proc., secs. 1296, 1342.
    The minutes of the court on the trial docket, the only testimony offered, was parol evidence and inadmissible. Ludlow v. Johnston, 3 Ohio 579.

      There was error in admitting the testimony of Petty. The statutory privilege should be liberally construed. Parker v. Carter, 4 Munf. 273; Jackson v. French, 3 Wend. 339.
    J. A. Kohler, attorney-general, and J. H. Lockari, prosecuting attorney, for the state.
    The motion of the plaintiff in error to be discharged in the court of common pleas was properly overruled, because :
    1. The jury had been impaneled and sworn and the accused stood upon the general,issue of “ not guilty.” In support of this see Harris’ Crim. Law, 306, 307; Nicholls v. State, 2 South, 539; Rev. Stat., secs. 7253-7256.
    2. The motion did not answer the purpose of a plea in bar autrefois acquit. 1 Bish. Or. Proc., secs. 810, 812, 813, 814, 816; Harris’ Crim. Law, 304, 309; Rev. Stats., secs. 7257-7260.
    The court had authority to make the entry nunc pro tunc. 1 Bish. Crim. Proc., secs. 1156, 1160; Freem. Judg., sec. 63; Dobbins v. State, 14 Ohio St. 493.
   Owen, C. J.

It is contended by the plaintiff in error that upon the record of the court as it existed at the time he was put upon his trial at the September term, 1886, he was entitled to his discharge, and that it was not in the power of the court'to abridge or take away that right by so amending the record as to make it appear that the jury, at the former trial, was discharged upon sufficient ground. It is well established that the discharge of a jury in a criminal case without the consent of the defendant, after it has been duly impaneled and sworn, but before verdict, is -equivalent to a verdict of acquittal, unless the discharge was ordered in consequence of such necessity as the law regards as imperative, and that in such case the record must show the existence of the necessity which required such discharge, otherwise the defendant will be exonerated from the liability of further answering'to the indictment. Hines v. The State, 24 Ohio St. 134.

Section '7313, Revised Statutes, as amended 78 Ohio L. 89, provides that “ the court may discharge a jury, Avithout prejudice to the prosecution, for the sickness of a juror, the corruption of a juror, or other accident or calamity, or because there is no probability of the jurors agreeing, and the reason for the discharge shall be entered on the journal.” It is maintained by the plaintiff in error that the discharge of the jury at the January term of the court without the consent of the defendant, and without entering upon the journal some lawful ground for the discharge, was equivalent to an acquittal, and that the court was without jurisdiction to make the nuno pro tune order. Ludlow v. Johnston, 3 Ohio, 575, is cited in support of this proposition. The two propositions upon which that case proceeded are: 1. “An order of court, authorizing an executor or administrator to sell decedent’s lands, made when the power of the court had ceased, can not be made valid by entering it nune pro tune as of a preceding term.” 2. “An order nune pro tunc can not be founded upon mere parol proof of what was ordered to bo done at a previous term, where there is no written minute to sustain it.”

In that case the jurisdiction of the court over the subject-matter of the order made at the prior term had been taken away by legislation, and the evidence relied upon to sustain the order nune pro tune was exclusively parol. Without discussing the soundness of the propositions above quoted, it is enough to say that the facts of the case at bar fail to bring it within either of them. To sustain the assumption of counsel that the court was without jurisdiction to make the order nune pro tune it is necessary to assume (1) that the jury was discharged, at the former term, without sufficient cause, or (2) that if it was not there was no power in the court to make tho order showing that the discharge was upon sufficient ground.

The first assumption is unwarranted and against the real facts, while the second is an assumption of the soundness of tho very proposition in controversy — that the court was without power to make its records show what had been done by it at a former term, but by inadvertence omitted from the journal. The principle is fundamental that every court has a right to judge of its own records and minutes; and if it appear satisfactorily to it that an order ivas actually made at a former term and omitted to be entered by the clerk, it may at any time direct such order to be entered upon the records, as of the term when it was made. State v. McAlpin, 4 Iredell Law, 140; Ludlow v. Johnston, supra, 575; Bothe v. Railway Co., 37 Ohio St. 149; In re Estate of Jarrett, 42 Ohio St. 194; Elliott v. Plattor, 43 Ohio St. 205; Burnett v. The State, 14 Tex. 455; Freeman Judgments, secs. 56 to 68. This power may be exercised in criminal prosecutions as well as in civil cases. Exp. Beard, 41 Tex. 234; Smith v. State, 1 Tex. App. 408; Exp. Jones, 61 Ala. 399. In the case last cited the supreme court sustained an order nune pro tunc of the trial court made at a term subsequent to the trial, showing the number of days hard labor to which the defandant was sentenced, which had been left blank at the trial term. Nor are we able to find any adjudicated cases in which the time for the exercise of this power has been limited. In Massachusetts the record of a judgment was completed, by a nunc pro tune order, after the lapse of twenty years. Rugg v. Parker, 7 Gray, 172. Freeman Judgment, sec. 56. That the evidence upon which the court acted was ample to authorize the order, if there was power to make it, will not be seriously questioned. Metcalf v. Metcalf, 19 Ala. 319; Hegeler v. Henckell, 27 Cal. 491; Freeman Judgments, sec. 61.

In the case at bar the jury was in fact discharged for the reason that there was no probability of the jurors agreeing. This was one of the grounds which authorized' a discharge of a jury in a criminal- case without prejudice to future prosecution upon the same indictment. The fact and reason of the action of the court were duly entered upon the court docket, and all that the court could do wa_g done. Judicial action ivas taken, but there was failure so to make up the journal as to show such action. There was no time.during that term of the court when the prisoner could have availed himself of the discharge of the jury. There was no legal objection to the impaneling of another jury for his trial at the same term. Had this been done he surely could not have urged that he had been virtually acquitted by the discharge of a former jury, without his consent and upon unauthorized grounds; for he certainly could not have resisted, with any show of seriousness, the completion of the record entry of the action of the court at any time during the term. This serves to illustrate that in fact there was nothing in the proceedings of the court which, in legal effect, worked his discharge. Let it be supposed that at that January term the prisoner had been tried and acquitted, and the cleric had failed to enter upon the journal the fact that a jury had been impaneled, a trial had, and .the prisoner acquitted. Would it be claimed, in case of his being put upon his trial at a subsequent term, that there was no power in the court to direct that a nunc pro tuna order be made.to show what action had been in fact taken by the court and jury ? As no rights of third parties could have intervened in either case, it is not easy to see how the two cases can be distinguished. In either case the question resolves itself into one of the power of the court to make its records speak the truth and cause that to appear upon the journal which in fact had transpired in the course of judicial proceedings at a'former term. It is maintained, however, that the case of Markward v. Doriat, 21 Ohio St. 637, is decisive of the case at bar. In that case the defeated party gave notice of his demand of a second trial, which the court minuted upon the court docket. It was not carried into the journal. It was held that the omission to journalize the notice could not be supplied by an order made at a subsequent term. The statute provided (S. & C. 1155, sec. 11) that the party desiring a second trial should, at the term of the court at which judgment was rendered, enter on the records of the court notice of his demand for such second trial.” The court simply say in the opinion: “ The plaintiff did not, at the term of the court at which judgment was rendered, enter on the records of the court notice of his demand for such second tidal ’ as provided by statute. The proceedings at the subsequent term to supply this omission could not have that effect. It was too late.”

It is clear that by plain provision of the statute it was an indispensable prerequisite to the right to a second trial that the party demanding it should enter on the records of the court notice of his demand at the trial term. The party was required to see to it that the entry was made. True, in the case at bar, the statute required that in case of the discharge of the jury before a verdict, the reason for the discharge shall be entered on the journal.” This can mean no more than that the record shall plainly exhibit the true ground upon which the discharge of the jury is ordered. The requirement that the entry shall be made at the term at which the order is made is no more • emphatic than the general requirement that all orders of court not otherwise regulated by statute shall be made to appear of record at the time, or at least at the term at which they are made. It will not be denied that it is of importance, and within the contemplation of the law, that all the proceedings of a court shall be promptly recorded. It is to provide against the contingencies of omission to do this either by accident, inadvertence, or other cause, that the power to supply such omission by orders made nunc pro tunchas been recognized from a very early day. The distinction between the statutory requirement in the case of demand for second trial and that concerning the discharge of a jury is too apparent to call upon us to give the case last cited controlling-effect in the present case. The views we have here expressed lead us to the conclusion that the action of the court below in supplying the omission to enter upon the journal of the court the reasons for the discharge of the jury by a nunc pro tunc order, and in refusing the application of the prisoner to be discharged from further prosecution, was authorized.

That there was no error in rejecting the letters offered in evidence is apparent from what appears in the statement of facts upon this branch of the case.

The statements of Maggie Rathburn, which the defense offered to prove were made to the prisoner and to Miss Benedict, are claimed to have been admissible upon the principle that wherever the bodily or mental feelings of an individual are material to be proved the usual expressions of such feelings, made at the time in question, are original evidence. A thoughtful consideration of the proposed testimony will make it quite apparent that the statements offered relate rather to the opinion .of Miss Rathburn concerning her condition than to an expression of any particular bodily feeling or sensation. There was no error in excluding them.

The action of the court below in permitting the witness, Petty, to testify to the admissions of the prisoner concerning the offense with which he stood charged presents a question of much difficulty.

It may be conceded that the most commonly accepted wiew of the profession is that the privilege which was asserted in the trial below is confined to communications made to an attorney who has authority to practice his profession in courts of record.

It is equally true that there is a growing tendency in the courts to extend the rule of privilege to cases which, though not within the letter, are within the manifest spirit of the rule as it is generally understood. Counsel have assumed that the rule which our civil code prescribes applies as well in criminal proceedings. This has been determined differently by this court in Steen v. The State, 20 Ohio St. 333, and in Schultz v. The State, 32 Ohio St. 280, where it is held that the rules of evidence contained in the code of civil procedure apply only to civil actions and proceedings. This calls upon us to look to the common law and to the reason and logic of the question to determine the rules which are to prevail in the trial of criminal causes. It appears by the bill of exceptions’in this case that Petty had for many years followed the business of practicing law before justices of the peace, but had not been admitted to the bar. It was in his capacity as such attorney that the prisoner sought his 'aid and advice. The admissions made to the witness were so made in reply to the latter’s question as to what the facts were. So far as the record discloses the witness was entirely reputable in his community, and was deemed thoroughly trustworthy. This must be presumed in his favor. He had for many years practiced law in justices’ courts as a regular employment. It was very natural that the prisoner, charged with a grave offense, should seek his aid and counsel. It was, too, most natural, that the prisoner, in answer to his adviser’s question, should freely confide to him the secrets which he would repose in no one who did not sustain toward him the relation of legal adviser. The record discloses that the prisoner was not seeking, simply, the solace of some confidential friend in whom he might confide in the hour of his extremity. On the contrary, it Avas the counsel of some one of superior legal learning and experience he Avas seeking, and it Avas for the purpose of putting his 'legal adviser in possession of the facts AA'hich Avould enable him to give intelligent and valuable legal counsel that the confidence was reposed. Indeed, there was present every element which Avould invoke the application of the general rule upon this subject except the mere form of the admission of the adviser to practice in courts of record. Every consideration of reason, justice, logic, and fair-play would seem to demand that the mere artificial distinction which the state calls upon us to enforce should be made to yield to the modern tendency to apply the reason and spirit of the rule instead of adhering rigidly and sullenly to its letter. The privilege has been held to include scriveners and conveyancers as well as general counsel. 1 Wharton’s Ev., sec. 581; Knight v. Turquand, 2 M. & W. 100; Carpmael v. Powis, 1 Phil. (Eng. Ch.) 687.

In People v. Barker, 59 Mich., s. c., 27 N. W. Rep. 546, it was held that, “ confidential communications made in reliance upon the supposed relation of attorney and client, whether the party assupaing to act as such is an attorney or not, are excluded upon the plainest principles of justice.”

While we find much conflict in the authorities upon this •question, Ave have no disposition to attempt to harmonize them, but prefer to place our solution of it, as applied to this case, upon the vieAvs already expressed, and hold that the witness, Petty, should not have been permitted to testify to the admissions made to him by the prisoner.

We are not called upon to declare the comprehensive rule that all statements made to persons who practice in justices’ courts, during the course of consultation upon legal controversies, are privileged. We simply declare that the peculiar facts of this case called upon the court, below to reject the tesimony of the Avitness, Petty, and in admitting it there was error, for which the

Judgment below is reversed.


author: Minshali, J.

text:
    Bell v. Brewster.

      Evidence — Handwriting—Experts—Ancient documents.

    1. A family resemblance between tbe handwriting upon one paper and that upon another tends to prove that both were written by the same person. Hence, where the identity of a person is in issue, it is competent to introduce letters or receipts claimed to be in his handwriting, for the purpose of comparison with other writings, admitted or clearly proven to have been written by him; and such comparison may be made, and an opinion expressed, by experts in handwriting.
    2. It is not necessary to the admission of the papers claimed to be in the handwriting of the person whose identity is involved that they should be clearly proven to have been written by him. Any uncertainty as to this will affect the weight, but not the competency, of the evidence.
    3. A letter purporting to have been written more than thirty years ago belongs to the class of instruments known as ancient documents; and, where produced from the family papers of the person to whom it had been addressed, is presumed to have been written by the person by whom it purports to have been written; and the writer and the person addressed being dead, is admissible in evidence without further proof of its authenticity. And so as to a pay-roll of a military company in the war of 1812, on which is what purports to be the signature of a soldier to a receipt for pay due him, produced from the archives of the government in the war department at Washington city.
    4. The proper repository of an ancient document is the place where papers of its kind are usually deposited.
    Error to the District Court of Union county.
    The original action was a suit by the plaintiffs below to quiet their title to certain lands situate in Union county, and which they claimed as the heirs at law of the person last seized. He died in that county on September 11, 1873, and was then known by the name of Robson L. Broome. The plaintiffs, however, claimed that his right name was Levi Brewster ; that he was a son of Seabury Brewster, late of Norwich, Connecticut; that he intermarried with Lucy Waterman on March 13,1820, by whom he had two sons, Richard Brewster, a plaintiff, and Sherman Brewster, deceased, whose widow and children were the other plaintiffs ; that he afterward abandoned his family, assumed the name of Robspn L. Broome, removed to Union county and there resided to the time of his death, and was possessed of a large amount of real and personal property, the subject of controversy. A number of rival claims were set up to that of the plaintiffs; in one that his right name was Elisha Case, and in another that it was George Washington Broome; and the heirs of these persons were made parties defendant.
    An appeal was taken from the judgment of the common pleas to the district court of the county, where judgment was rendered in favor of the plaintiffs below. The defendants took a bill of exceptions to the admission of certain evidence upon the trial. The admission of this evidence against the objection of the plaintiffs in error is the only error assigned upon the record. The bill, omitting the style of the case, is as follows :

      “ Be it remembered that ... on the trial of said cause it became and was material for said plaintiffs to show that Robson L. Broome, the decedent in the pleadings named, was not in fact Robson L. Broome, but that he was in fact, and that his true name was Levi Brewster, and that he was the son of one Seabury Brewster, late of Norwich, in the state of Connecticut ; that for the purpose of establishing that fact said plaintiffs put in evidence certain books and writings, which were either admitted or duly proven to have been in the genuine handwriting of the decedent, and written by him while living at Marysville, Union county, Ohio, under the name of Robson Lovett Broome ; that to further maintain the issue on their part said plaintiffs offered, and, against the objection of said answering defendants, were permitted to put in evidence certain writings purporting to have been written by Levi Brewster, viz: A letter purporting to have been written from an academy in Plainfield, Connecticut, to one Elisha Brewster in Vermont, in the year of our Lord, 1810, and purporting to have been written by Levi Brewster, but without further proof of its genuineness as his writing than testimony tending to show that it was found in its proper place among the family papers of the Elisha Brewster, to whom it was addressed, and showing that said Elisha Brewster now deceased, was a brother of the Levi Brewster whose writing the letter purported to be ; and also at the same time produced and offered, and, against the objection of the said defendants, were permitted to introduce in evidence a certain ‘ pay-roll’ of .the war of 1812, found in the archives at Washington, which purported to bear the signature of Levi Brewster as receipting for pay due him as a soldier in said service, without other proof of its genuineness as his signature than some evidence tending to show that said Levi Brewster-was engaged in said service, in the company of which said paper purported to be the ‘ pay-roll,’ and evidence showing that said pay-roll was found in its proper place, and in the proper custody, among the archives of the government of the United States in the war departmental Washington, D. O.
    “And also, as tending to show the connection of said R. L. Broome with said pay-roll, said plaintiffs gave in evidence handbooks in the admitted handwriting of said R. L. Broome, giving the number of the' regiment and the officers thereof and the company officers, which are named as the company officers of the company in which Levi Brewster was a soldier, corresponding with the pay-roll, to the admission of which letter and payroll said defendants at the time excepted.”
    It then shows that experts in handwriting were introduced and permitted, against the objection of the plaintiffs in error, to express an opinion that, on a comparison of hands, the said genuine writings of Robson L. Broome and the said letter and signature to pay-roll were in the same handwriting.
    It then adds exhibits of the different writings; states the making and overruling of a motion for a new trial; the reservation of exceptions, and the order of the court making it a part of the record; and is duly signed and sealed by the judges comprising the court.

      W. B. Loomis and G. H. Grosvenor for plaintiffs in error.

      J. W. Robinson for defendants in error.
   Minshali, J.

The .principal issue of fact in tho case was, whether Levi Brewster, the ancestor of the plaintiffs, was the same person who was known in Union county by the name of Robson L. Broome, and died possessed of the property in controversy. As tending to support the issue on their part, the plaintiffs introduced (1) a letter purporting to have been written by Levi Brewster in the year 1810 from an academy in Connecticut, addressed to Elisha Brewster, as his brother. No other evidence was introduced that it had been so written than that it had been obtained from the family papers of Elisha Brewster, then deceased, who was the brother of Levi. Also (2) a pay-roll of 7th company, 20th regiment, in the war of 1812, on which one Levi Brewster appears as receipting for pay as a private in said company,' with evidence tending to show that he had been a private in the same; but no evidence was introduced to show that he in fact signed the roll, other than that it was produced from the archives of the government in the war department at Washington city.

As standards of comparison they also introduced (3) certain books and writings, admitted or duly proven to be in the genuine handwriting of the decedent, written by him while living at Marysville, in Union county, under the name of Robson L. Broome.

Experts were then called who, upon a comparison of the writings, testified that, in their opinions, the letter and the signature to the pay-roll were in the same handwriting as were the books and writings that had been introduced as standards of comparison.

Two objections are made to the admissibility of this evidence : (1) That it is not shown that the letter was written, nor that the pay-roll was signed, by the Levi Brewster whom the plaintiffs claim to have been their ancestor. (2) That proof of handwriting by comparison of hands is not competent for the purpose of proving the identity of a person.

We do not understand from the bill of exceptions that there was any serious controversy in the case as to the name of the ancestor of the plaintiffs, or as to who were his relatives. These facts we may assume were reduced to reasonable, if not absolute certainty. So that this objection must be understood as applying to the introduction of the letter and pay-roll for comparison with the admitted writings of Broome, without other evidence that the letter had been written or the pay-roll signed by Levi Brewster, the ancestor of the plaintiffs, than as before stated.

It is true there was no direct evidence as to who wrote the letter, or as to who signed the pay-roll. The letter was written in 1810, and the pay-roll was signed in 1814. It would have been difficult, if not impossible, to show the fact by direct testimony after such a lapse of time. But more or less credit has always been attached to ancient documents without other proof of their authenticity than that of their production from' proper depositories. Where any document purporting or proved to be thirty years old is produced from its proper custody, it is presumed that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person’s handwriting. Steph. Dig. Ev. 156; Whart. Ev., § 194, et seq.; id., § 703.

This exception to the general rules of evidence rests upon a conceded necessity, (Tay. Ev., § 1874) and applies not only to such instruments as are of a formal character, such as wills, bonds, and other deeds, but also to receipts, letters, entries, and all other ancient writings. 2 Phil. Ev. (10 Eng. 4 Am. ed.) 481.

Thus in Bere v. Ward, on the trial of an issue as to the legitimacy of a particular person, a very old letter, purporting to bear the signature of the head of the family, and brought from among the title deeds kept at the family seat, was admitted as genuine, without further proof of handwriting, by Dallas, C. J., and also by Lord Tenterden on a second trial. 2 Phil. Ev., supra, note 4. This ruling was followed in Doe d. Thomas v. Beynon, 12 A. & E. 431 where certain old letters were admitted in evidence upon the issue in the case, whether the person claiming as devisee of the writer was the person intended. They were admitted without proof of handwriting or other proof of their genuineness than that they were found among the papers of the person to whom they had been addressed, at the time of her death. In Bertie v. Beaumont, 2 Price, 307, an old receipt, produced by the defendant, was admitted as evidence, tending to prove a modus without proof of handwriting. There was some question made as to the custody of it, having been given to a person other than the one who produced it. Upon this the chief baron observed: “ It was not given to this Mr. Beaumont, but to another person of the same name, and who, of course, occupied lands in Buckland, for none but an occupier could have acquired such a receipt. That person being of the same name with the defendant, there is reasonable inference that they were so connected as to make this the proper custody; and reasonable .evidence of proper custody is all that can bo required, and is sufficient.” . In Fenwick v. Reed, 6 Mad. 7, it was ruled: “ That a letter, appearing upon the face of it to be written by the defendant’s ancestor, upon the subject of the suit, and coming out of the custody of the representative of his attorney, and dated in 1748, .was admissable without proof of handwriting — the contents of the letter, like the contents of a deed, affording intrinsic evidence in its favor..” The case was determined in 1821. And in Wynne v. Tyrwhitt, 4 B. & Ald. 876, it was said by the court: “The rule is not confined to deeds or wills, but extends to letters and other written documents coming from the proper custody. It is founded on the antiquity of the instrument, and the great difficulty, nay, impossibility, of proving the handwriting of the party after such a lapse of time.”

It is true that the admission of written instruments, without other proof of their genuineness than that which arises from their age and custody, opens the door to error and fraud. But this is no more so, when they are. introduced for the purpose of establishing the identity of a person by a comparison of hands, than when introduced for any other purpose. In commenting on the possibility of error and fraud attending the admission of ancient documents as evidence Prof. Wharton says: “No doubt ancient documents, as well as modern, may be forged.” To this he makes two replies: “ In the first place, while documents attested by witnesses since deceased have been forged, the fact that there is a possibility of such falsification is an objection to credibility, but not to competency. In the second place, by requiring that the document should be taken from the proper depository, the probability of falsification is greatly diminished.” 1 Wliart. Ev.,, § 194. This has been regarded as an adequate ground for the admission of such documents in evidence without further proofs of their authenticity by most writers on evidence. 2 Phil. Ev., supra, 480. No evidence is entirely free from infirmities of some kind. An honest witness may err- in his recollection of what he has seen or heard, or his own senses may have been deceived in what passed under his observation; or, on the other hand, the witness may be dishonest, and not tell the truth. But the possibility of error is not a ground for rejection of evidence in any case. It goes to its weight, and is to be considered by the jury or the court trying the case.

It is a well settled rule in this state that, where the genuineness of handwriting is involved, well attested standards-of the hand of the person whose writing is in question may be introduced for the purpose of comparison with that which is disputed; and that this comparison may be made, not only by persons who have seen, the -party write, or have acquired a knowledge of his hand by corresponding or transacting business with him, but also by persons skilled in handwriting, such as are usually called experts. Bragg v. Colwell, 19 Ohio St. 407; Pavey v. Pavey, 30 Ohio St. 600; Calkins v. State, 14 Ohio St. 222.

While this is not controverted, it'is argued that the letter and pay-roll should not have been admitted for the purpose-of comparison with the admitted writings of Broome upon any evidence less certain than that required in the case of standards. This is illogical. The fallacy consists in assuming tat the letter and pay-roll are the standards, or else that the-writing in dispute shall be ascertained with as much certainty as that with which it is compared, before the comparison is made. But neither assumption is true. The matter to be determined by a comparison of hands was whether the deceased, Broome, had written the letter or not, and so as to the payroll. And to require the same certainty as to who wrote the letter or signed the pay-roll, as is required as to the standards-of the party’s hand in question, would in no way aid the inquiry, as neither could under such a rule be introduced until such conditions had been complied with as would render the introduction of either wholly unnecessary. This is inconsistent with the principle upon which such evidence is introduced; which is to determine the authorship of that which is unknown and disputed by comparison with that which is known and undisputed. Here the known factors in the case, as presented by the bill of exceptions, were the writings of the deceased, Broome, introduced as standards. Whether he had written the letter or signed the pay-roll was a fact to be proved; and a comparison of hands would tend, at least, to solve the question, and might reduce it to reasonable certainty. For it is self-evident that proof that two writings are in the same hand is evidence that they were written by the same person.

The uncertainty that may have arisen upon a mere corn-comparison of hands, as to whether Broome wrote the letter or signed the pay-roll, is not, on the competency of the evidence, to be confused with the uncertainty that may have-existed as to whether the one had been written and the other signed by the ancestor of the plaintiffs. It is true that on a question of proof; that is to say, the weight of the evidence, the one is connected with and depends upon the other; but on a question of competency, each is separate and independent; the admissibility of the letter and pay-roll rest upon their antiquity and the custody from which each was produced; the comparison of hands upon the credence which is in general attached to such evidence. We are not now considering the weight of the evidence; the only question presented by the record is the admissibility of that which was received and objected to, as shown by the bill of exceptions.

The spirit of the law of evidence permits a resort to every reasonable source of information upon a disputed question of fact arising in a case. Unless excluded by some positive exception, every thing relative to the issue is regarded as admissible ; and this is extended to every hypothesis pertinent to the issue. 1 Whart. Ev., § 20. Here the hypothesis proposed by the plaintiffs below was that the letter written from the academy by a Levi Brewster, and the signature of a pei> son of the same name to the pay-roll, were in the same handwriting as were the writings introduced as standards, and admitted to be in that of the decedent. The pertinency of this hypothesis is apparent: If the fact were established, it would only remain to the plaintiffs, in order to make out their case, to shoAV that the Levi Brewster who wrote the letter or signed the pay-roll was their ancestor. Hence, upon principle, the competency of the evidence seems very plain.

But it is argued that no instance of a case can be produced where a comparison of hands was resorted to for the purpose of proving the identity of a person, except in what is claimed to be a very questionable one — the Tichborne case. In the first place, the case just referred to' is not regarded as one of questionable authority by writers on the law of evidence. 1 Whart. Ev., § 9, et seq. In the next place, many instances may be produced, other than that of the Queen v. Castro, in which a comparison of hands has been resorted to for this purpose.

In Commonwealth v. Webster, 5 Cush. 295, such evidence was introduced for the purpose of showing that certain anonymous letters, written in a disguised hand, addressed to the city marshal of Boston between the disappearance of the deceased and the arrest of the defendant, containing various suggestions calculated to mislead the officers of the law, had been written by the defendant. The object was to incriminate the accused by identifying him with the person who wrote the anonymous letters.

Such evidence has been received as competent for the purpose of identifying the defendant in prosecutions for sending-threatening letters and in arson. Also, for a like purpose, in suits for libel. Commonwealth v. Webster, supra, p. 301. 2 Greenlf. Ev., § 416.

Among the various circumstances relied on as tending to show that Sir Philip Francis was the author of Junius, wore, as enumerated by Prof. Wharton, that his handwriting had certain marked peculiarities. 1 Whart. Ev., § 23. This, however, could only be determined by a comparison instituted between the writings of the supposed and the manuscript of the real author.

Again, it is resorted to in a large class of cases where there is a question as to whether the party sued is the person who signed the intstrument on which the suit is brought. 1 Grreenlf. Ev., § 575. In all such cases, it will be observed, the question is not as to the genuineness of the paper, but as to the identity of the party Rued, with the person who signed, and is liable upon it.

The object of offering such evidence may arise in a variety o-f forms. A writing may be in a disguised hand, as in the Webster case, or it may have been intended as an imitation of that of some third person, as in the case of a forgery, or it may be neither disguised nor imitated, as is assumed in this case. Now, it is evident that in either of the first two instances the liability to error in forming an opinion, even by experts, will be greater than in the last one; because in both of the first two instances the writing is executed for the express purpose of deceiving, while in the latter there has been neither dissimilation nor forgery, and one specimen of genuine writing is simply compared with another. So that, on principle, there is less room for questioning the propriety of a resort to a comparison of hands in the latter, than in either of the two former instances.

The value of such evidence on a question of personal identity is strikingly illustrated in the case above referred to as that of Tichborne’s. A comparison of the writings introduced in the case would convince any intelligent person that there was no truth whatever in the claim of the defendant. It disproves his identity with the real Sir Robert Tichborne. What was true in that case must be true to a greater or less extent in every instance where a case of personal identity is involved. Judicial proof is not a matter of mere arbitrary rules. Its principles are drawn from the experience and observation of men, and should be applied as they are by men in general. Every lawyer and judge of experience will confirm what is said by Mr. Philips in his work on evidence : It may be laid down as a first principle that exclusion is generally an evil, and admission generally safe and wise.” To .which he adds : “ It is certain the administration of justice in our courts has suffered, not from too free admission of evidence, hut from too rigid exclusion.” 2 Phil. Ev. (Edward’s ed). 628.

Judgment affirmed.