text:
    No. 13097.
    Marriott et al. v. Sinks, Exr., et al.
    Decided January 16, 1912.
    Error to Circuit Court of Franklin county.

      Mr. Fred C. Rector; Mr. T. E. Powell and Messrs. Stewart & Stewart, for plaintiffs in error.

      Mr. J. F. Rogers; Mr. Frederick N. Sinks; Mr. Theodore Leonard and Mr. W. 0. Henderson, for defendants in error.
   Judgment affirmed.

Davis, C. J., Price and Donahue,-JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    No. 13098.
    Marriott et al. v. Hoover, Exr., et al.
    Decided January 16, 1912.
    Error to Circuit Court of Franklin county.

      Mr. Fred C. Rector; Mr. T. E. Powell and Messrs. Stewart & Stewart, for plaintiffs in error.

      Mr. Frederick N. Sinks; Mr. J. F. Rogers; Mr. Theodore Leonard and Mr. W. O. Henderson, for defendants in error.
   Judgment affirmed.

Davis, C. J., Price and Donahue, JJ., concur.


text:
    No. 13301.
    Gruner, Auditor, v. The Defiance Home Savings & Loan Assn.
    Decided January 16, 1912.
    Error to Circuit Court of Defiance county.

      Mr. Timothy S. Flogan, attorney general; Mr. J. M. McGillivray and Mr. Clarence D. Layin, for plaintiff in error.

      Messrs. Vorys, Safer, Seymour & Pease and Mr. F. L. Hay, for defendant in error.
   Judgment affirmed. Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of said circuit court be, and the same hereby is, affirmed, upon the ground that a building and loan association is not required to separately list its surplus and profits for taxation, but the real estate owned by a building and loan association is subject to the laws relating to the taxation of real property, whether purchased by surplus and profits or not.

Davis, C. J., Spear, Shauck, Price, Johnson and Donai-iue, JJ., concur.


text:
    No. 12165.
    Holland v. Lincoln.
    Decided January 23, 1912.
    Error to Circuit Court of Madison county.

      Messrs. Murray & Emery and Mr. Leo Holland, for plaintiff in error.

      Mr. R. H. McCloud; Mr. John F. Locke and Mr. John A. Lincoln, for defendant in error;
   Judgment affirmed.

Davis, C. J., Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12232.
    Caraway et al. v. Robinson et al.
    Decided January 23, 1912.
    Error to Circuit Court of Scioto county.

      Messrs. Milner, Milner & Searl and Mr. James S. Thomas, for plaintiffs in error.

      Mr. T. C. Anderson, for defendants in error.
   Judgment reversed and judgment for plaintiffs in error. Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed. And this court proceeding to render the judgment which said circuit court should have rendered, it is considered and adjudged that the said sum of one hundred and fifty-two and seventeen hundredths ($152.17) dollars so expended by said Robert F. Caraway in payment of the debts of the decedent, be allowed as an offset against the claim of the administratrix against him, and that she is entitled to a judgment for the balance. It is ordered that this cause be remanded to said circuit court to enter a decree accordingly.

Davis, C. J., Spear, Sliauck, Johnson and Donahue, JJ., concur.


text:
    No. 12251.
    The Dayton & Troy Electric Ry. Co. v. Myers.
    Decided January 23, 1912.
    Error to Circuit Court of Miami county.

      Messrs. Broomhall & Broomhall and Messrs E. H. & R. A. Kerr, for plaintiff in error.

      Messrs. Kerr & Kerr, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price and Donahue, JJ., concur.


text:
    No. 12265.
    Gordon, Executor, v. Gordon et al.
    Decided January 23, 1912.
    Error to Circuit Court of Ottawa county.

      Mr. William Gordon, for plaintiff in error.

      Mr. Charles H. Graves and Mr. Scott Stahl, for defendants in error.
   Judgment affirmed.

Davis, C. J., Price and Donahue, JJ., concur.


text:
    No. 12292.
    Myers v. Clement.
    Decided January 23, 1912.
    Error to Circuit Court of Defiance county.

      Mr. E. W. Costello and Messrs. Harris & Shaw, for plaintiff in error.

      Mr. J. H. Hock-man and Messrs. Winn & Hay, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12293.
    Myers v. Clement.
    Decided January 23, 1912.
    Error to Circuit Court of Defiance county.

      Mr. E. W. Costello and Messrs. Harris

      & Shaw, for plaintiff in error.

      Mr. J. H. Hock-man and Messrs. Winn & Hay, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12297.
    Moore v. Moore.
    Decided January 23, 1912.
    Error to Circuit Court of Gallia county.

      Messrs. Sherman & Sherman, for plaintiff in error.

      Mr. Hollis C. Johnston; Mr. Roscoe J. Mauck and Mr. Evan D. Davis, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price and Donahue, JJ., concur.


text:
    No. 12302.
    Gist v. Lucas et al.
    Decided January 23, 1912.
    Error to Circuit Court of Muskingum county.

      Messrs. Winn & Bassett, for plaintiff in error.

      Mr. E. F. O’Neal, for defendants in error.
   Judgment affirmed as to the eighty-two and ninety-two hundredths (82.92) acre tract on authority of Executors of Swartz v. Leist, 13 Ohio St., 419. Judgment modified as to the city property. Ground stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is, hereby affirmed as to the eighty-two and ninety-two one-hundredths acre tract of land. As to the city property, known as parts of lots eighty-two, eighty-three and eighty-four of Russell’s subdivision, it is considered and adjudged that the said judgment be modified. And it is further considered and adjudged that this cause be remanded to the circuit court of Muskingum county with direction to enter decree of foreclosure of said last-named property.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12303.
    Moore v. Moore.
    Decided January 23, 1912.
    Error to Circuit Court of Gallia county.

      Messrs. Sherman & Sherman, for plaintiff in error.

      Mr. Hollis C. Johnston; Mr. E. D. Davis and Mr. Roscoe J. Mauck, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price and Donahue, JJ., concur.


text:
    No. 12315.
    The Southard Novelty Co. v. The Colonial Bank of New York.
    Decided January 23, 1912.
    Error to Circuit Court of Franklin county.

      Mr. H. C. Moore, for plaintiff in error.

      Messrs. Gumble & Gumble, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price and Donahue,. JJ., concur.


text:
    No. 12321.
    Smith v. The People's Gas Light Co. et al.
    Decided January 23, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. H. L. Peeke, for plaintiff in error.

      Messrs. Squire, Sanders & Dempsey, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12976.
    McKinley et al. v. Barber et al.
    Decided January 23, 1912.
    Error to Circuit Court of Stark county.

      Messrs. Weed, Miller & Rothenberg and Mr. Atlee Pomerene, for plaintiffs in error.

      Messrs. Gouldner, Day, White & Garry and Messrs. Lynch & Day, for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 13175.
    The State of Ohio v. Riolo.
    Decided January 23, 1912.
    Exceptions to Common Pleas Court of Cuyahoga county.

      Mr. John A. Cline, prosecuting attorney, and Mr. C. H. Olds, Mr. Ezra. Brudno, Mr. T. E. Green and Mr. W. E. Minshall, assistants, for the exceptions.

      Mr. W. H. McMorris, against the exceptions.
   Exceptions overruled.

Davis, C. J., Spear, Price and Donahue, JJ., concur.


text:
    No. 13179.
    Simpson, alias Kelly, v. The State of Ohio.
    Decided January 23, 1912.
    Error to Circuit Court of Fulton county.

      Messrs. Files & Pax son and Mr. Frank S. Ham, for plaintiff in error.

      Mr. J. B. Templeton, prosecuting attorney; Mr. H. H. Ham and Mr. F. H. Wolf, for defendant in error.
   Judgment affirmed.

.Davis, C. J., Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 13180.
    Ralph v. The State of Ohio.
    Decided January 23, 1912.
    Error to Circuit Court of Fulton county.

      Messrs. Files & Paxson and Mr. Prank S. Ham, for plaintiff in error.

      Mr. J. B. Templeton, prosecuting attorney; Mr. H. H. Ham and Mr. F. JJ. Wolf, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12299.
    Wageman et al., Partners as J. Wageman & Sons, v. Stevens et al.
    Decided January 30, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. George C. Hañey, for plaintiffs in error.

      Messrs. Carpenter, Young & Stocker and Messrs. Humphrey & Taylor, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12324.
    Sears v. Walker et al.
    Decided January 30, 1912.
    Error to Circuit Court of Crawford county.

      Mr. R. V. Sears and Mr. Benjamin Meek, for plaintiff in error.

      Messrs. Finley & Gallinger; Mr. L. C. Feighner and Mr. Anson Wickham, for defendants in error.
    [Reporter’s note. — The following modified journal entry was made and entered March 12, 1912.]
   Judgment reversed and judgment for plaintiff in error.

Davis, C. J., - Spear, Shauck, Price, Johnson and Donahue, JJ., concur.

The journal entry heretofore made and entered in this cause is hereby modified so as to read as follows, to-wit:

This cause came on to be heard upon the transcript of the record of the circuit court of Crawford county, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court that the judgment of the said circuit court be, and the same hereby is, reversed for error of the circuit court in its conclusion of law that the judgment of the common pleas court of Crawford county in cause No. 9364, setting aside the last will and testament of L. L. Walker, deceased, is null and void as to the parties to that suit, and in adjudging that said will is in full force and effect in so far as it affects the rights and interests of the parties thereto, and in its holding that this action in partition was prematurely brought. And it appearing from the record and by consent of counsel in open court that $1,080.30 of the money borrowed by Sarah L. Walker from Frederick Gehret was applied by said Sarah L. Walker to the payment of a ditch assessment duly levied by the commissioners of Crawford county against the real estate described in the petition, and that said assessment was a valid and subsisting lien against said real estate, and therefore the judgment of the circuit court in favor of said Mary Gehret, as administratrix of the estate of Frederick Gehret, deceased, to the extent of $1,080.30 with interest thereon from the 21st day of December, 1906, and that the same is a first and best lien upon said portion of the premises described in said answer and cross-petition of Frederick Gehret is affirmed, and all the rest and residue of said judgment of the circuit court for the errors above stated is reversed and vacated, and said cause is remanded to said circuit court for further proceedings according to law.


text:
    No. 12332.
    Feckter, a Taxpayer, etc., v. The City of Cincinnati, et al.
    Decided January 30, 1912.
    Error to Circuit Court of Hamilton county.

      Mr. C. B. Matthews, for plaintiff in error.

      Mr. Edward M. Ballard, city solicitor; Mr.

      T aylor C. Greenwald, assistant city solicitor; Messrs. Boyd & Slutes and Messrs. Harper, Allen & Curts, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12358.
    Shallenberger v. The Scripps Publishing Co.
    Decided January 30, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews and Messrs. Gage & Wilbur, for plaintiff in error.

      Messrs. M. B. & H. H. Johnson; Messrs. Harper, Allen & Curts and Mr. T. H. Hogsett, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Joi-inson, JJ., concur.


text:
    No. 12359.
    Bushnell v. The Scripps Publishing Co.
    Decided January 30, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews and Messrs. Gage & Wilbur, for plaintiff in error.

      Messrs. M. B. & H. H. Johnson; Messrs. Harper, Allen & Curts and Mr. T. H. Hogsett, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Joi-inson, JJ., concur.


text:
    No. 12360.
    Harlow, Guardian, v. Beckenbach.
    Decided January 30, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. Berkeley Pearce, for plaintiff in error.

      Messrs. Halle & Butler, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12364.
    Ingersoll, Trustee, v. Gerlach, Administrator, et al.
    Decided January 30, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. T. H. Johnson; Mr. William Howell and Mr. C. W. Dille, for plaintiff in error.

      Messrs. Gris-wold & White; Mr. Newton D. Baker; Mr. W. D. Wilkin; Messrs. Goulder, Holding & Masten and Messrs. Kline, Tolies & Morley, for defendants in error.
   Judgment affirmed, by agreement of counsel.

Davis, C. J., Price and Donahue, JJ., concur.


text:
    No. 12387.
    Miller v. The State, ex rel. Dye.
    Decided January 30, 1912.
    Error to Circuit Court of Henry county.

      Mr. A. A. Slaybaugh and Messrs. Bailey & Le asure, for plaintiff in error.

      Mr. L. E. Long and Mr. W. W. Sutton, for defendant in error.
   Judgment reversed on authority of Devinney v. State, Wright, 564.

Davis, C. J., Spear, Shaucic, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12383.
    McCombs v. The Clear Fork Oil Co.
    Decided January 30, 1912.
    Error to Circuit Court of Harrison county.

      Mr. D. M. Gruber and Messrs. Perry & Rotvland, for plaintiff in error.

      Messrs. Hollingsworth & Worley, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12390.
    The Starr Piano Co. v. Stock.
    Decided January 30, 1912.
    Error to Circuit Court of Lucas county.

      Mr. Eugene Rheinfrank,
      for plaintiff in error.

      Messrs. Kohn & Northup and Mr. Lewis W. Morgan, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12798.
    Ervin et al. v. Flood et al.
    Decided January 30, 1912.
    Error to Circuit Court of Fayette county.

      Mr. Humphrey Jones, for plaintiffs in error.

      Mr. John Logan, for defendants in error.
   Judgment affirmed.

Davis, C. J., Price and Donahue, JJ., concur.


text:
    No. 12870.
    Smallwood v. The Brown Clutch Co.
    Decided January 30, 1912.
    Error to Circuit Court of Lorain county.

      Mr. T. A. Conway, for plaintiff in error.

      Mr. Anthony Neiding and Mr. Roy H. Williams, for defendant in error.
   Judgment affirmed.

Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 13252.
    The State, ex rel. Hartshorn, v. Voorhees et al.
    Decided January 30, 1912.
    In mandamus.

      Mr. George E. Hartshorn and Messrs. Flory & Flory, for relator.

      Mr. John M. Swartz and Messrs. Smythe & Smythe, for respondents.
   Issues found for respondents and petition dismissed.

Davis, C. J., Shauck, Johnson and Donahue, JJ. concur.


text:
    No. 13282.
    Anna Hawley, Ex Parte.
    Decided January 30, 1912.
    Error to Common Pleas Court of Franklin county.

      Mr. J. L. Hampton and
      Messrs. Sheets, West & Sheets, for petitioner.

      Mr. Timothy S. Hogan, attorney general; Mr. Clarence D. Laylin and Mr. Louis D. Brandéis, contra.

   Judgment affirmed on the grounds stated by Dillon, J., in the opinion of Hawley, ex parte, 12 O. N. P., N. S., 1, 22 Dec., 39, and upon the reasoning of Justice Brewer in Muller v. Oregon, 208 U. S., 412.

Spear, Price, Johnson and Donahue, JJ., concur.


text:
    No. 12196.
    The German-American Publishing Co. v. The State, ex rel. Webber, Prosecuting Attorney.
    Decided February 6, 1912.
    Error to Circuit Court of Franklin county.

      Mr. Matthew L. Bigger and Mr. James M. Butler, for plaintiff in error.

      Messrs. Webber, McCoy, King & Game, for defendant in error.
   Judgment affirmed.

Shauck, Price and Donahue, JJ., concur.


text:
    No. 12386.
    Frazier v. Palmer et al.
    Decided February 6, 1912.
    Error to Circuit Court of Seneca county.

      Messrs. McCauley & Weller and Messrs. Royer & Spitler, for plaintiff in error.

      Messrs. Dore & Dore; Mr. Harry P. Black and Mr. Alex. Kiskadden, for defendants in error.
   Judgment affirmed.

Davis, C. J., Price and Donahue, JJ., concur.


text:
    No. 12391.
    Taplin, Rice & Co. v. McKeefrey & Co.
    Decided February 6, 1912.
    Error to Circuit Court of Summit county.

      Messrs. Allen,

      Waters, Young & Andress and Messrs. Slabaugh, Seiberling & Huber, for plaintiff in error.

      Messrs. Prank & Ream, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12403.
    Jamison v. Simpkins et al.
    Decided February 6, 1912.
    Error to Circuit Court of Ross county.

      Mr. John Logan, for plaintiff in error.

      Mr. Luther B. Yaple and Mr. George B. Bitzer, for defendants in error.
   Judgment affirmed.

Spear, Spiauck and Johnson, JJ., concur.


text:
    No. 12407.
    Plettner et al. v. Reif.
    Decided February 6, 1912.
    Error to Circuit Court of Hamilton county.

      Messrs. Closs & Luebbert; Messrs. Dempsey & Nieberding; Messrs. Powell & Smiley and Mr. Fred Bertram, for plaintiffs in error.

      Messrs. Burch & Johnson, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12410.
    Reifel v. Welch.
    Decided February 6, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. A. A. & A. H. Bemis, for plaintiff in error.

      Mr. P. H. Kiser and Messrs. Poran & Powell, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12456.
    The National Land & Investment Co. v. Fenneberg.
    Decided February 6, 1912.
    Error to Circuit Court of Lucas County.

      Messrs. King, Tracy, Chapman & Welles, for plaintiff in error.

      Mr. Frederick J. Flagg and Mr. Fordyce Belford, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12775.
    Huston et al. v. Huston et al.
    Decided February 6, 1912.
    Error to Circuit Court of Hamilton county.

      Mr. Charles W. Baker and Mr. Thorne Baker, for plaintiffs in error.

      Mr. Thomas H. Kelley; Mr. Charles B. Wilby and Mr. David H. Pottenger, for defendants in error.
   Judgment affirmed.

Davis, C. J., Price and Donahue, JJ., concur.


text:
    No. 12342.
    Beebe et al. v. Watson.
    Decided February 13, 1912.
    Error to Circuit Court of Adams county.

      Mr. S. L. Patterson and Messrs. Stephens & Mahaffey, for plaintiffs in error.

      Messrs. Young & Barnes, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12374.
    Dickson v. Healy et al.
    Decided February 13, 1912.
    Error to Circuit Court of Hamilton county.

      Mr. Frank F. Dinsmore, for plaintiff in error.

      Mr. C. W. Baker; Mr. Thorne Baker and Messrs. Healy, Ferris & McAvoy, for defendants in error.
   Judgment reversed on authority of Smith v. Folsom et al., Receivers, 80 Ohio St., 218.

Spear, Shauck, Price and Johnson, JJ., concur.


text:
    No. 12375.
    Dickson v. Healy et al.
    Decided February 13, 1912.
    Error to Circuit Court of Hamilton county.

      Mr. Frank F. Dinsmore, for plaintiff in error.

      Mr. C. W. Baker; Mr. Thorne Baker and Messrs. Healy, Ferris & McAvoy, for defendants in error.
   Judgment reversed on authority of Smith v. Folsom et al., Receivers, 80 Ohio St., 218.

Spear, Shauck, Price and Johnson, JJ., concur.


text:
    No. 12423.
    Serrick et al. v. Meyer et al.
    Decided February 13, 1912.
    Error to Circuit Court of Fulton county.

      Mr. A. W. Eckert and Messrs. Files & Pax son, for plaintiffs in error.

      Messrs. Handy & Wolf, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Price, JJ., concur.


text:
    No. 12424.
    Serrick et al. v. Edgar et al.
    Decided February 13, 1912.
    Error to Circuit Court of Fulton county.

      Mr. A. W. Eckert and Messrs. Files & Paxson, for plaintiffs in error.

      Messrs. Handy & Wolf, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Price, JJ., concur.


text:
    No. 12491.
    The Tracy & Avery Co. v. Davidson.
    Decided February 13, 1912.
    Error to Circuit Court of Richland county.

      Mr. John H. Coss, for plaintiff in error.

      Mr. H. B. Dirlam, for defendant in error.
   Judgment affirmed on authority of Miller et al., Exrs., v. Kyle, ante, 186.

Spear, Shauck, Price and Johnson, JJ., concur. Donapiue, J., not participating.


text:
    No. 12500.
    The Hettrick Brothers Co. v. Siek.
    Decided February 13, 1912.
    Error to Circuit Court of Lucas county.

      Mr. H. J. Chittenden, for plaintiff in error.

      Mr. Orville S. Brumback, for defendant in error.
   Judgment affirmed.

Spear, Si-iauck and Johnson, JJ., concur.


text:
    No. 12514.
    Johnston et al. v. Tweedy et al.
    Decided February 13, 1912.
    Error to Circuit Court of Jefferson county.

      Mr. Ernest L. Finley, for plaintiffs in error.

      Messrs. Erskine & Smith, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Johnson, JJ., concur.


text:
    No. 12985.
    Cook, Administratrix, v. The Columbus Public Service Co.
    Decided February 13, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Marriott, Belcher & Connor, for plaintiff in error.

      Messrs. Arnold & Game, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Spear, Price, Johnson and Donapiue, JJ., concur.


text:
    No. 13028.
    The State, ex rel. Courtright, Prosecuting Attorney, v. The Chesapeake & Ohio Railway Co.
    Decided February 13, 1912.

      Error to Circuit Court of Fairfield county.

      Mr. Thurman T. Courtright, prosecuting attorney, and Mr. M. A. Daugherty, for plaintiff in error.

      Messrs. Brown, Geddes, Schmettau & Williams, for defendant in error.
   Judgment of the circuit court reversed and cause remanded with directions to overrule the motion and for further proceedings.

Spear, Price, Johnson and Donahue, JJ., concur.


author: Donahue, J.

text:
    . Hon. WILLIAM Z. DAVIS, Chief Justice. Hon. WILLIAM T. SPEAR, Hon. JOHN A. SHAUCK, PIon. JAMES G. JOHNSON, Js., Hon. MAURICE H. DONAHUE, Hon. JOSEPH W. O’HARA

    The State Board of Health et al. v. The City of Greenville et al.

      Authority of State Board, of Health — To require purification op sewage, etc. — Validity of act of April 7, 1908 — Section 1249, et seq., General Code — Constitutional-law.
    The act .of the general assembly passed April 7, 1908, entitled: “An act to authorize the state board of health to require the purification of sewage and public water supplies and protect streams against pollution” now being Section 1249, et seq., of the General Code of Ohio, is a valid and constitutional exercise of the police power of the state.
    No. 13080
    Decided April 2, 1912.)
    Error to the Circuit Court of Darke county.

      The city of Greenville, Ohio, by its city solicitor, filed a petition in the court of common pleas of Darke county, averring in substance that the city of Greenville is a municipal corporation in the state of Ohio; that it brings this suit by its city solicitor; that certain of the defendants are members of the State Board of Health of the state of Ohio, and that the other defendants are members of the city council of Greenville, the president of council and the mayor of that city; that in 1890, the city of Greenville constructed a sanitary and sub-drainage sewerage system with outlet into Greenville creek at a point in the open country a considerable distance beyond the extreme eastwardly limits of the city; that Greenville creek has a deep, strong and rapidly flowing perennial current with a drainage area of about 140 square miles, and also fed by innumerable perennial springs, and that the natural volume of water is augmented by about sixty-five thousand gallons of water daily at the sewer outlet from the flushing tanks of the sewerage system; that connected with this sewerage system are about nine hundred sanitary closets with an average use of not over four persons to each closet; that the rest of the inhabitants of the city dispose of their fecal matter by means of privy vaults required to be cleaned annually and the contents disposed of without the municipal limits in a sanitary manner; that for a distance of ten miles below this outlet there are no cities, towns or villages along or adjacent to the creek; that this outlet of the sewer into this creek does not create a public nuisance detrimental to ■public health or comfort; that on or about the 16th day of September, 1908, the- defendant, the State Board of Health of the state of Ohio, having under consideration the conditions existing in and adjacent to the city of Greenville, upon complaint in writing by the trustees of the township in which said city is situated, and having theretofore investigated the conditions complained of, found that the city of Greenville was discharging and permitting to be discharged, sewage and other waste into Greenville creek, and had thereby corrupted said creek so as to give rise to foul and noxious odors, creating conditions detrimental to the comfort of ■the citizens of Greenville township residing in the vicinity thereof; said State Board of Health notified said city authorities of the complaint filed, and its investigation and finding in reference thereto, and that on the 23d day of September, 1908, an opportunity would be given to said city to show cause, if any, why it should not be required to install satisfactory works or means of purifying its sewage on or before October 1',. 1909, and on the 23d day of September, 1908, said board of health found and determined as follows, to-wit: “That the city of Greenville should be required to purify its sewage in a manner satisfactory to the State Board of Health, on or before October 1, 1909,” and having certified its said report and findings to the governor and attorney general of the state of Ohio, the same were by them approved on the 4th day of January, 1909.
    Said plaintiff further averred that the cost of a plant that would meet the approval of the State Board of Health would be about $35,000; that it would cost $3,000 per year to operate and maintain the same, that when completed and in operation such plant would perpetuate foul and noxious odors detrimental to public health and comfort and would amount to a public nuisance; that the population of said city of Greenville is about eight thousand; that its indebtedness, bonded and otherwise, is $324,246.99; that the valuation of the current tax duplicate is $4,068,900.00, and the present tax levy is 33 mills; that plaintiff has no funds to comply with the orders of defendant, and that to borrow money and issue bonds would create additional debt, and would interfere with, delay and prevent other improvements, which, in the opinion of city officials, are more important and necessary than the erection of a sanitary disposal plant; that therefore the city officials did not proceed to carry into effect the order of said board of health, nor did they make any effort whatever to do so until after the 31st day of October, 1909, when they were notified by the defendant, the State Board of Health, that they must proceed to construct such plant, otherwise the State Board of Health would cause to be imposed and enforced against such officers, the penalties and forfeitures provided by law; and thereupon being so intimidated by said board of health, and not because they considered such findings and orders just and reasonable or warranted by existing conditions, passed and adopted the necessary resolutions to proceed and carry out said findings, and will, unless restrained by the court, issue the bonds of said city in the sum of $35,000, and with the means thus provided purchase the site selected by the board of health and erect and operate a disposal plant thereon at an annual cost of maintenance of - $3,000, and plaintiffs allege that said findings of the defendant board of health are insufficient to warrant said orders; that the outlet of said sewer into said creek does not create the condition found by defendant, and upon which its orders are based; that such outlet does not create a public nuisance detrimental to health or comfort; that the act of the general assembly under which the State Board of Health made such finding and order is unconstitutional and .void for various reasons set forth in the petition, and praying that a temporary injunction might issue enjoining the members of the city council, and other city officials, and their successors in office, from issuing and selling the bonds of said city for the purposes aforesaid, and that the Staté Board of Health may be enjoined from taking any steps or proceedings to enforce its said findings and orders, and from imposing or enforcing, or causing to be enforced, the fines, forfeitures and penalties provided by said act against the city officials for failure to comply therewith.
    To this petition a motion was filed by the State Board of Health to require the plaintiff to separately state and number its causes of action, and on the 20th day of May, 1910, an amended petition was filed setting forth three several causes of action,- reciting the foregoing facts in detail and praying for the same relief as prayed for in the original petition.
    To this amended petition a demurrer was filed by the State Board of Health, which demurrer was sustained by the common pleas court and the petition of the plaintiff dismissed, from this judgment the plaintiff appealed to the circuit court, and that court overruled the demurrer to the amended petition. The defendants not desiring to plead further, a perpetual injunction was allowed, and this proceeding in error is now prosecuted to reverse that judgment of the circuit court.

      Mr. Timothy S. Hogan, attorney general; Mr. Charles C. Marshall and Mr. Prank Davis, Jr., for plaintiffs in error.
    Since the case of Marbury v. Madison, 1 Cranch, 137, the question of the presumption in favor of the constitutionality of a statute duly enacted by the legislature has been generally looked upon as settled. C. W. & Z. Rd. Co. v. Commissioners, 1 Ohio St., 83; Walker v. Cincinnati, 21 Ohio St., 39; Monroe v. Collins, 17 Ohio St., 666.
    Where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record presents some other and clear ground upon which the court may rest their judgment and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of the constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it and when, consequently, a decision upon such question is unavoidable. State, ex rel., v. Price, 8 C. C, 30, 4 O. C. D., 296; Collins v. Bingham, 22 C. C, 533; Board of Education v. Sawyer, 7 N. P., N. S., 401.
    The first cause of action, as alleged in said amended petition, is based upon the fact that the orders of the said plaintiffs in error, the State Board of Health; are null and void because said act of the general assembly being of a general nature does not have uniform operation throughout the state. This cause of action is the one upon which counsel for the defendant in error, the city of Greenville, rely with most confidence, and base their contention upon the fact that while section 1 of the act is sweeping and applies to every city or village and every portion of the state, it is provided by way of a proviso in section 1 that “no city or village that is now discharging sewage into any river which separates the state of Ohio from another state shall be required to install sewage purification works as long as the unpurified sewage of cities or villages in any other state is discharged into said river above said Ohio city or village.”
    In the first place, it would seem that counsel are unmindful of the fact that the state of Ohio does not own any part of the Ohio river. This being so, much of the arguments and substantially all the cases cited by counsel in the arguments below are not helpful in the determination of this case. In the case of Handly’s Lessee v. Anthony et al., 5 Wheat., 374, 5 L. Ed., 113, Chief Justice Marshall defined the boundary between the old Dominion Virginia and.the Northwest Territory which was ceded to-the government.
    So we say with reasonable assurance that this law, if it is of a general nature, as counsel claim, has uniform operation throughout the state in so far as the state controls the stream to which the act applies. Therefore, the contention of counsel cannot be well taken; but even if this proviso in the section were faulty, it, and it only, would fall before the constitution and leave the statute valid. Burk v. Rattle, 31 Ohio St., 116.
    It is admitted, and the courts below took judicial knowledge of the fact, that the Ohio is the only river to which the foregoing exception applies. It therefore becomes necessary, first of all, to ascertain the rights of the respective states in this stream. Booth v. Shepherd, 8 Ohio St., 244; Indiana v. Kentucky, 136 U. S., 479, 34 L. Ed., 329.
    It is also, we think, an undisputed proposition that a state is the absolute owner of all navigable waters within the territorial limits. Mobile v. Eslava, 9 Port. (Ala.), 577; Stevens v. Railroad Co., 34 N. J. L., 532; Monongahela Bridge Co. v. Kirk, 46 Pa. St, 112.
    And further, that statutes have no extra-territorial force. Booth v. Shepherd, 8 Ohio St., 244. . But there is a presumption that the Ohio legislature did not intend to stretch its authority over other states; that it was providing against the pollution only of streams within its jurisdiction— which the Ohio river is not; and the proviso would therefore be properly regarded as a mere precautionary direction, that municipalities along the Ohio were not within the scope of the act.
    In the case of navigable streams, many authorities hold that the riparian owner has no private rights: Wood on Nuisances (1 ed.), 592; Tomlin v. Railroad Co., 32 la., 106; Railroad Co. v. Railroad Co., 12 Cush., 605; Fay v. Aqueduct Co., 111 Mass., 27; Thayer v. Railroad Co., 125 Mass., 253;
      State v. Dam Co., 70 N. H., 458; Railroad Co. v. Railroad Co., 23 N. J. Eq., 157; Amos v. Norcross, 58 N. J. Eq., 256; Atlantic City v. Pier Co., 63 N. J. Eq., 644; Canal Commissioners v. People, 5 Wend., 423; People v. Canal Appraisers, 33 N. Y., 461; Gould v. Railroad Co., 12 Barb., 616; Getty v. Railway Co., 21 Barb., 617; McKeen v. Canal Co., 49 Pa. St., 424; Eisenbach v. Hatfield, .2 Wash., 236; Stimson Mill Co. v. Commissioners, 29 Pac. Rep., 938; Railway Co. v. State, 7 Wash., 150; Yesler v. Commissioners, 146 U. S., 646; Prosser v. Railroad Co., 152 U. S., 59.
    And taking a concrete case of pollution of public or navigable waters, it is held in Sayre v. Newark, 60 N. J. Eq., 361, that there was no liability therefor to riparian proprietors.
    Those who live on the banks of a river lying wholly within another state cannot expect or require the same protection by the state of Ohio from the pollution of that river, that would be accorded to those on a stream lying within the borders of Ohio. Railway Co. v. Miller, 112 Pa. St., 34.
    But this would not be the case with a stream within the borders of this state. State, ex rel., v. Ferris, 53 Ohio St., 314.
    The act does not seek to affect local self-government, except when localities fail and refuse to make and maintain proper safeguards for the safety, health and comfort of the citizens of a given community, and then surely the state has a right to step in and protect that community which is a part of the state itself. Board of Park Commissioners v. Common Council, 28 Mich., 228.

      It is so well settled in so many cases that a municipality carries to itself the obligation to enforce sanitary laws and to meet the expense incident thereto, that it seems like surplusage to enter into a lengthy discussion of that subject. There is no exclusive right of local self-government in matters affecting the general public. We feel that the act under consideration is not an infringement on the well established rule holding to the salutary right of local self-government. Sanning v. City, 81 Ohio St, 157; Bacon v. Walker, 204 U. S., 311; Camfield v. United States, 167 U. S., 518, 42 L. Ed., 260; Jones v. Brim, 165 U. S., 180, 41 L. Ed., 677; Mugler v. Kansas, 123 U. S., 623; Barbier v. Connolly, 113 U. S., 27; State v. Allen et al., 3 N. P., 201; Tiedeman’s Lim. of Police Power, 3; Marion Tp. v. Columbus, 12 O. D., N. P., 555.
    Counsel for the city argue that the act in question is invalid because it violates the Fourteenth Amendment because of the severity of the pains and penalties provided in case the city fails to obey the orders of the board of health, and cite Ex parte Young, 209 U. S., 123, to sustain said contention.
    We suggest that the contention of the plaintiffs in error, that the act deprives the city of the right to resort to the courts for remedy, is carefully considered and decided in accordance with our contention in the case of Board of Education v. Sawyer, 7 N. P., N. S., 407, and also in the case of Union Bridge Co. v. United States, 204 U. S., 364.
    This brief would be quite incomplete without a reference to the principle construed in the case of Mansfield v. Balliett, 65 Ohio St., 451.

      Mr. J. C. Elliott, city solicitor, and Mr. D. W. Bowman, for defendants in error.
    We are not willing to adopt the English rule of construction, for there, in the language of a remark attributed to Lord Hobart in the time of Charles II: “A statute is like a tyrant; when he comes, he makes all void.” Maleverer v. Redshaw, 1 Mod., 35.
    If a statute conflicts with the constitution, it is the duty of the court to so declare it. Questions of expediency or propriety should not be considered. It is one of power only. McGill v. State, 34 Ohio St., 228; Williams & Thomas Co. v. Preslo, 84 Ohio St., 328.
    No appeal to the courts from the findings and orders of the State Board of Health is anywhere provided in this act. The findings and orders of the state board are final, conclusive and binding upon the city unless set aside upon appeal to the judgment of two sanitary engineers, who are to select a third, if unable to agree, and the vote of the majority of such sanitary engineers shall be final and binding. This would exclude all appeal from their judgment.
    There is no such thing as compulsory arbitration. Section 19, Article IV, of the constitution authorizes the general assembly to establish courts of conciliation and prescribes their powers and duties, but expressly provides that submission of matters in dispute must be purely voluntary and based upon their agreement to abide such judgment. Railway Co. v. Garrett, 50 Ohio St., 415; B. & O. Rd. Co. v. Stankard, 56 Ohio St., 224;
      Tilden v. Bernhard, 12 C. C, N. S., 193; Jenifer v. Commissioners, 2 Dis., 189, 13 O. Dec., 116.
    This rule is recognized in the workmen’s compensation act, recently enacted by the general assembly (102 O. L., 524), as its provisions are voluntary and not compulsory on either employer or employe so far as it waives the common law right of action for damages, etc.
    The amended petition discloses that because of the severity of the penalty, the council of said city was intimidated and terrorized, and because thereof were coerced into carrying out the orders of the state board contrary to their own judgment and discretion. Failure on their part to successfully establish the unconstitutionality of the act makes them liable for the penalty. They are compelled therefore, to follow the orders of the state board and not risk the hazards of the decision of the court on the constitutionality of the act.
    This would deny to the members of the city council the equal protection of the laws guaranteed them by Section 1, Article XIV, U. S. Constitution. Ex parte Young, 209 U. S., 123; Cotting v. Stock Yards Co., 183 U. S., 79; Mercantile Trust Co. v. Texas, etc., Ry. Co., 51 Fed. Rep., 543; Consolidated Gas Co. v. Mayer, 146 Fed. Rep., 153.
    The taxing power is a legislative power delegated by the state to the council of the city. It involves the exercise of judgment and discretion.
    We may concede, that the performance of a ministerial act by a public officer may be enforced, and that a failure or refusal to perform may be made a criminal offense and punished as a misdemeanor. State v. Coit, 8 O. Dec., 62; People v.
      Meakim, 133 N. Y., 214; State v. Baldwin, 39 Tex., 156; Commonwealth v. Coyle, 160 Pa. St, 36.
    We have yet to learn, however, that the action of a public officer, acting judicially or in the exercise of a discretion invested in him by law, can be thus made criminal, at least in the absence of fraud or abuse of such discretion. Mechem on Public Offices, Sec. 1022; State v. Kern, 51 N. J. L., 259; People v. Norton, 7 Barb., 477; People v. Stocking, 32 How. Pr., 48; Garnett ,v. Ferrand, 6 Barn. & Cress., 626, 13 E. C. L., 283; Rex v. Young, 1 Burr., 560; Rex v. Williams, 3 Burr., 1317; Alter v. Cincinnati, 4 N. P., 427.
    That the question is a local affair, is, we think, conceded. That the State Board of Health did not in the language of said act find, that the discharge of sewage, by the city' into said creek “created a public nuisance detrimental to health or comfort, or is polluting the source of any public water supply.”
    It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities, and general affairs by the same central authority. Stoutenburgh v. Hennick, 129 U. S., 147; Greenville v. Demorest, 14 C. C., N. S., 113.
    We insist that it is a delegation of the taxing power pure and simple, and to attempt to do so is a clear, plain and palpable violation of Section 2, Article XII, of the Ohio Constitution, providing for taxation by uniform rule; and Section 5, Article XII, providing that no taxes shall be levied, except in pursuance of law. Gray on Lim. of Taxing Power, Sec. 534.

      In this state, the legislative power is vested in the general assembly. Article II, Section 1. It can neither be surrendered nor delegated by the general assembly. C. W. & Z. Rd. Co. v. Commissioners, etc., 1 Ohio St., 87; State v. Mayor, 103 la., 76; Township v. Allen, 61 N. J. L., 228; McCabe v. Carpenter, 102 Cal., 472; State v. Land Co., 75 Minn., 465; People v. Mayor, 51 Ill., 17; People v. Chicago, 51 Ill., 58; Commissioners v. Abbott, 52 Kans., 158; Parks v. Commissioners, 61 Fed. Rep., 439; Taylor v. Smith, 50 N. J. L., 106; State, ex rel., v. Denny, 118 Ind., 449.
    The power to create a debt and to discharge it are the same thing. Lovingston v. Wider, 53 Ill., 302.
    Necessity has always been the favorite plea to sustain an unconstitutional act and as to the police power, it is enough to say that it is not beyond the power of the legislature to delegate and limit the same, nor is the extent of the grant and the reasonableness of its exercise beyond the control of the courts. Mirick v. Gims, 79 Ohio St., 179.
    Said act is of a general nature and does not have uniform operation throughout the state. Said act would have such operation were it not for the fact that section 1 of said act, now Section 1251, General Code, provides an exception in a river which separates the state of Ohio from another state, etc.
    We insist that this exception is in clear conflict with Section 26, Article II, Ohio Constitution.
    That this section of the constitution is not directory but mandatory, and that a statute in violation thereof is void, see Falk, ex parte, 42 Ohio St., 638; State, ex rel., v. Spellmire, 67 Ohio St., 81; Cincinnati v. Steinkamp, 54 Ohio St., 292.
    Being of a general nature, it must have a uniform operation. The phrase “uniform operation” has reference to territory. It must take in the whole state. Not a foot of its territory must be exempt from its provisions. State, ex rel., v. Spellmire, 67 Ohio St., 77.
    There must be no exception as to individuals of the samé' class. It means universal operation as to all persons and things in the same condition or category. Its operation must be co-extensive with the whole state as territory, and co-extensive with every class or condition, brought within the provisions thereof. Platt v. Craig et al., 66 Ohio St., 80; State, ex rel., v. Buckley, 60 Ohio St., 273; State, ex rel., v. Bargus, 53 Ohio St., 109; State v. Nelson, 52 Ohio St., 99.
    Now the effect of this exception is to withdraw from the operation of said act more than one hundred cities and villages on the Ohio river, including the populous cities of Cincinnati, Ripley, Higgins-port, Ironton, Portsmouth, Pomeroy, Gallipolis, Bellaire, Martin’s Ferry, Bridgeport, Mingo Junction, Steubenville, Wellsville, Middleport, Marietta, Hannibal, Manchester, New Richmond, and East Liverpool, with a population of-more than 650,000 inhabitants in the state of Ohio.
    In other words, these cities and villages upon the Ohio river, and a hundred more yet unborn, are made to constitute a class separate from the other cities and villages of the state. The act is therefore restricted to certain parts of the state, and makes a classification of cities and villages that is colorable, arbitrary and not founded upon any reasonable distinction.
    That the subject-matter of the act is of general nature is conceded.
    It is well settled that the test to be applied is, whether the law is of a general nature. Cincinnati v. Steinkamp, 54 Ohio St., 284; Costello v. Wyoming, 49 Ohio St., 202; Gentsch v. State, 71 Ohio St., 151; Greenville v. Demorest, 14 C. C., N. S., 113.
    We venture the further suggestion, that the mere fact that the Ohio river was polluted by the sewage of cities and villages situate in Pennsylvania, West Virginia or Kentucky did not justify a classification that would leave the Ohio cities and villages upon the river unprotected. While a state bordering upon a navigable river has no authority to interfere by legislation with the opposite shore, or with the common right of navigation, it may, by legislation protect its own shores. Rutz v. St. Louis, 2 M’Crary, 344. To this extent at least the state has riparian rights.
    Without this exemption clause the act is of uniform operation. And the Ohio cities and villages could have been prevented from dumping their sewage into the Ohio river, and. required to purify the same, and thus to that extent protect the river along its shores from pollution. If the cities and villages in the other states persisted in polluting the river by dumping their sewage therein, and the legislatures of those states had taken no steps to prevent them from so doing, the state of Ohio could have, by injunction, prevented them from so doing. Missouri v. Illinois, etc., 180 U. S., 208; Missouri v. Illinois, etc., 200 U. S., 496.
    There was, therefore, neither reason nor necessity for said exemption clause in said act, and we repeat, the classification thereby created is unnecessary, unreasonable, arbitrary and fictitious.
    The purpose of the clause was to exempt them from its operation, and was an inducement or compensation to the enactment of the act. Like a proviso, it restrains the enacting clause, and excepts therefrom something which would otherwise have been within it. Wayman v. Southard, 10 Wheat., 30; Ryan v. Carter, 93 U. S., 83; Deitch v. Staub, 115 Fed. Rep., 309; Selma, etc., Rd. Co. v. United States, 139 U. S., 566; Chicago v. Insurance Co., 126 Ill., 276; Gaither v. Wilson, 164 Ill., 548.
    To ignore this clause, would therefore leave the Ohio river cities and villages exempt from its operation, for the court could not extend it there as that would be prejudicial legislation. Kelley v. State, 6 Ohio St, 275; State, ex rel., v. Buckley, 60 Ohio St., 273; State, ex rel., v. Lewis, 74 Ohio St., 403; Friend v. Levy, 76 Ohio St., 26; Burt v. Rattle, 31 Ohio St, 116.

       Appointed April 17, 1912, by Governor Judson Harmon, to fill vacancy caused by death of Judge James L. Price, March 11, 1912.

   Donahue, J.

By mutual consent of the parties

to this controversy, the only question submitted to this court for determination is the question of the constitutionality of an act of the general assembly of Ohio passed April 7, 1908, entitled: “An act to authorize the state board of health to require the purification of sewage, public water supplies and to protect streams against pollution,” which act is now Section 1249, et seq., General Code. This act, in substance, provides that whenever complaint in writing is made to the State Board of Health that a city, village, corporation or person is discharging, or permitting to be discharged, sewage, or other waste into a stream, water-course, lake or pond, and thereby creating a public nuisance detrimental to health or comfort, that it shall be the duty of such board of health to forthwith inquire into and investigate the conditions complained of; if upon such investigation the complaint is found to be true, that it thereupon notify such city, village, corporation or person causing the contamination or pollution of the stream, water-course, lake or pond, and give it or •him an opportunity to be heard; if after such hearing, the State Board of Health shall determine that improvements or changes are necessary and should be made, it is its duty to report its finding to the governor and attorney general, and upon their approval notify the city, village, corporation or person to install works or means satisfactory to the State Board of Health for purifying, or otherwise disposing of its sewage, or to change or enlarge existing works in a manner satisfactory to said board, and to fix a time at which the same must be completed, which time shall also be subject to the approval of the governor and attorney gen-' eral. It is further provided in section 4 of the act, that when such order so approved is not acceptable to any city, village, corporation or owner affected thereby, it or he shall have the right to appeal the question of the necessity and reasonableness of such order to two reputable and experienced sanitary engineers, one to be chosen by the city, village, corporation or owner, the other to be chosen by the State Board of Health, but the person so chosen shall not be a regular employe of said board, and if these engineers are not able to agree, then they shall chose a third engineer of like standing. The engineers constituting such board of reference shall have power to affirm, modify or reject the order of the State Board of Health submitted to them, and their decision shall be final.

It is further provided that no city or village that is now discharging sewage into any river which separates the state of Ohio from another state, shall be required to install sewage purification works as long as the unpurified sewage of cities or villages of any other state is discharged into the river above said Ohio city or village. In Section ■1251, General Code, which contains this provision, the word “now” before the word “discharging” is omitted.

The constitutionality of this act is assailed by the defendant in error upon the following grounds:

1. It provides for compulsory arbitration, and therefore in conflict with Sections 5 and 16 of Article I of the Constitution of the State of Ohio;
2. It coerces city officials into compliance with the orders of the State Board of Health, and controls their discretion by severity of penalty, and therefore in conflict with Section 1 of Article XIV of the Constitution of the United States;
3. It delegates the taxing power of said city to the State Board of Health, and therefore in conflict with Sections 2 and 5 of Article XII of the Constitution of the State of Ohio;
4. The act being a law of a general nature does not have uniform operation throughout the state, and is, therefore, in conflict with Section 26 of Article II of the Constitution of the State of Ohio.

Before discussing these several objections in detail, it is well to give some attention to the general principles applicable to all of them. A court is not authorized to adjudge a statute unconstitutional where the question of its constitutionality is at all doubtful. The question of the constitutionality of every law being first determined by the legislature, every presumption is in favor of its constitutionality. It must, therefore, clearly appear that the law is in direct conflict with inhibitions of the constitution before a court will declare it unconstitutional. Nor has the question of the wisdom of the legislation anything to do with determining its constitutionality. That question is for the legislature, and whether the court agrees with it in that particular or not is of no consequence. It is solely a question of power. If the legislature has the constitutional power to enact a law, no matter whether the law be wise or otherwise it is no concern of the court. If the legislature had not the constitutional power to enact the law, it is not important how wise, necessary or beneficent the legislation may be, it is necessarily void as being in conflict with the organic law of the state.

The court will not measure its opinion with the opinion of the legislative branch of the government upon questions of the expediency, justice or necessity of a law. In the case of Lindsay et al. v. Commissioners, 2 Bay (S. Car.), 61, the court used this language: “In exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the legislature is held void, it is not because the judges have any control over the legislative powér, but because the act is forbidden by the constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law.”

This particular legislation now under consideration is designed to preserve and protect the public health and comfort, and, therefore, falls directly within the police power of the state. This power includes anything which is reasonable and necessary to secure the peace, safety, health, morals and best interests of the public. It is now the settled law that the legislature of the state possesses plenary power to deal with these subjects so long as it does not contravene the Constitution of the United States of infringe upon any right granted or secured thereby, or is not in direct conflict with any of the provisions of the Constitution of this state, and is not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression. The right of a court to interfere with the legislature of a state in the exercise of police power is very clearly expressed by Mr. Justice Harlan in the case of Jacobsen v. Massachusetts, 197 U. S., 11: “If there is any such power in the judiciary to review legislative action in' respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that if a statute purporting to have been enacted, to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” This doctrine has also been declared in the case of Mugler v. Kansas, 123 U. S., 623; Minnesota v. Barber, 136 U. S., 313, 320; Atkin v. Kansas, 191 U. S., 207, 223. The possession and enjoyment of all rights guaranteed to the citizen under .the constitutions of the United States and the state of Ohio are subject to such reasonable conditions as may be deemed by the governing authority of the state essential to the safety, health, peace, good order and morals of the community. It is said by Mr. Justice Field in the case of Crowley v. Christensen, 137 U. S., 86, that: “Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others.” In the case of Holden v. Hardy, 169 U. S., 366, it was held that: “It is as much for the interest of the state that the public health should be preserved as that life should be made secure. With ■ this end in view quarantine laws have been enacted in most if not all of the states; insane asylums, public hospitals and institutions for the care and education of the blind established, and special measures taken for the exclusion of infected cattle, rags and decayed fruit. In other states laws have been enacted limiting the hours during which women and children shall be employed in factories; and while their constitutionality, at least as applied to women, has been doubted in some of the states, they have been generally upheld.” In this state the authority of the general assembly to exercise the police power of the state is no longer an open question. It has been settled by numerous adjudications that such power may be exercised by the general assembly of the state according to their judgment and discretion in any manner not inconsistent with or repugnant to provisions of the state or federal constitutions. Commissioners of Champaign County v. Church, Admr., 62 Ohio St., 344; Cincinnati, Sandusky & Cleveland Rd. Co. v. Cook, 37 Ohio St., 265; C. H. & D. Rd. Co. v. Sullivan, 32 Ohio St, 152; L. S. & M. S. Ry. Co. v. C. S. & C. Ry. Co., 30 Ohio St., 604; C. H. & D. Ry. Co. v. City of Troy, 68 Ohio St., 510.

It is true that the mere assertion by the legislature that a statute relates to the public health, safety or welfare, does not bring that statute within the police power of a state. It must appear from the statute itself that its real intent and purpose is the conservation and preservation of public health, public safety or public morals, and when this fully and- clearly appears, then the doctrine announced in the case of Jacobsen v. Massachusetts, supra, applies, and a court will then only inquire whether such legislation is “beyond all question a plain, palpable invasion of rights secured by the fundamental law.” The legislation we are considering admits of no doubt as to the purposes to be sub-served thereby. It is clearly an effort on the part of the legislature of the state to preserve and protect the public health and comfort, and the only remaining question for this court is, whether it clearly appears that this legislation is in conflict with organic law.

The first contention of counsel for defendant in error is that it provides for compulsory arbitration, and is, therefore, in conflict with Sections 5 and 16 of Article I of the Constitution of the State of Ohio. Section 5 of Article I provides that: “The right of trial by jury shall be inviolate.” Section 16 provides that: “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law; and justice administered without denial or delay.” If this objection were sustained it would by no means invalidate the whole statute, but, in so far as this defendant in error is concerned, there is in this provision no violation of its constitutional rights. The powers of a municipal corporation are delegated powers. It is a creature of statute over which the general assembly of Ohio has as sovereign control as it has over any other part of the territory embraced within the state limits, and the municipal legislature has such power only as the legislature of the state confers upon it, and it may grant or withhold at pleasure. A municipality is at best but a mere agency of the state, and its right to control its own local affairs rests wholly on the general grant of powers by the general assembly of the state. The state is still the sovereign and may extend, limit or revoke these powers at will. In granting to a municipality certain powers to be exercised for the benefit of the public health of that municipality the state has not relinquished its authority and control in this important particular over any of the territory comprised within the limits of the state. The duties and powers of the State. Board of Health extend throughout the state irrespective of political divisions or territories embraced within municipalities. Section 1237, General Code, provides that: “The state board of health shall have supervision of all matters relating to the preservation of life and health of the people and have supreme authority in matters of quarantine, which it may declare and enforce, when none exists, and modify, relax or abolish, when it has been established. It may make special or standing orders or regulations for preventing the spread of contagious or infectious diseases, for governing the receipt and conveyance of remains of deceased persons, and for such other sanitary matters as it deems best to control by a general rule.” Section 1238 provides that: “Local boards of health, health authorities and officials, officers of state institutions,police officers, sheriffs, constables and other officers and employes of the state or any county, city or township, shall enforce the quarantine and sanitary rules and regulations adopted by the state board of health.” These general provisions for the preservation of the life and health of the people of this state are no more suspended in the territory comprised within a municipality than are the criminal laws of the state, and the case now under consideration would illustrate the folly of a state delegating to any municipality full and complete control of matters pertaining to the public health. A municipality might then in the preservation of sanitary conditions in its own territory work incalculable mischief to the health and comfort of people living in adjacent territory. To prevent this being done, it is primarily necessary that there should be one central authority clothed with the power of affording equal protection to all. The provision in this legislation by which a municipality may challenge the judgment of a state board of health and submit the question to a board of arbitration composed of men skilled in sanitary work is a most liberal provision so far as municipalities are concerned, and far more liberal than many of the statutes relating to the powers of a state board of health. There is no theory upon which a mere agency of the state has a right to litigate the right of the state to enforce, through any agency it pleases, sanitary rules and regulations for the preservation of the health and comfort of all the people of the state.

The second ground urged against the constitutionality of this act is that it coerces city officials in the compliance with the orders of the State Board of Health and controls their discretion by severity of penalty, and is therefore in conflict with Section 1 of Article XIV of the Constitution of the United States which provides: “No state shall make or enforce any law which shall abridge the privileges or immunities of. citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

What has been said with reference to the first objection to the constitutionality of this legislation, as well as what further may be said with reference to the third objection, applies, equally to this contention. The state does not seek to control the discretion of the municipal authorities in this matter, but on the contrary refuses to commit to them any discretion touching the particular matters committed to the care and control of the state board of health. In so far as they are charged with any duty in reference to the carrying out of the orders and directions of the State Board of Health they are ministerial officers only, and it is fully settled that a public officer may be required to perform a ministerial act, and that a failure or refusal by such officer to perform a ministerial act may be made a criminal offense and punished as a misdemeanor. The question whether he is guilty of this misdemeanor is a proper question for judicial inquiry, and, if he be innocent of any dereliction, neglect or refusal on his part, the courts will protect him. The law in this respect does not seek to deprive him of liberty or property without due process of law, nor does it deny to him equal protection of the laws. In our system of government there is nothing anomalous in the fact that án officer that is vested with official discretion in many matters and things pertaining to his office may nevertheless be required to perform certain ministerial duties. In so far as official discretion is concerned, courts will not interfere unless he is guilty of a plain abuse of discretion, but ministerial acts may always be enforced and there is no constitutional objection to imposing upon him, for failure to perform ministerial duties, a fixed penalty or a penalty within fixed limits to be imposed by the tribunal authorized to determine his guilt or innocence.

Far more difficult is the question of the right of the legislature to compel the local taxing power to act in a ministerial capacity, if it has this right then nothing further need be said touching the second ground urged by the defendant in error, for if in this respect the municipal authorities are lawfully and properly shorn of discretion and are performing merely a ministerial duty in levying the taxes necessary to comply with the order of the State Board of Health, then the provision for penalties for failure to do this is clearly constitutional. This brings us to the consideration of the third contention, that the legislation is unconstitutional because it delegates the taxing power of the city to the State Board of Health, and for this reason is in conflict with Sections 2 and 5 of Article XII of the Constitution of the State of Ohio. Section 2 provides for taxing, by a uniform rule, of moneys, credits, investments in bonds, stocks, joint stock companies or otherwise; and also of real and personal property according to its true value in money, except as to certain bonds, burying grounds, schoolhouses, churches and institutions of purely public charity and property used exclusively for any public purpose, and certain exemptions for each individual. Clearly this law is not in conflict with this provision of the constitution, for all property within the city is to be equally taxed and the only question that could arise is as to whether the improvement ordered is particularly required by the people of the city, and is so exclusively for their benefit that the city alone should bear the entire cost. About this question there can be but little doubt. If the city possessed the absolute right to discharge its sewage into a living stream of water, thereby polluting the same and destroying all riparian rights below and creating a menace to the health and comfort of those living on the banks of this stream below the point of discharge, then it might be said that any change in the manner of sewage disposal would not be for the benefit of the city, but for those citizens of the state residing below the outlet of the city sewers. But the city has no such absolute right, and whenever this condition of affairs exists it is right and proper for the state to interfere and prevent it from a further continuance of this nuisance, and the city then having no other means for the disposal of its sewage, it is primarily for its benefit that such disposal plant must be established. While it then becomes largely a local improvement, yet it is not one that the state has delegated to the municipal authorities complete and absolute control thereof. The health of the inhabitants of the city is still a matter of concern to the state, and of such vital concern that the general assembly has not thought proper to commit it exclusively to the control and discretion of men who may or may not have any particular ability or experience in sanitary affairs. The loss of a single life is a direct economic loss to the state, and, therefore it wisely refrains from committing to inexperienced people final discretion as to the means and methods of preserving the life and health of its citizens, but aside from the concern of the state for the health and comfort of the residents of any one city; its vigilance seeks to serve a larger purpose. Cities are no longer enclosed by stone walls and separate and apart from the balance of the state. The sanitary condition existing in any one city of the state is of vast importance to all the people of the state, for if one city is permitted to maintain unsanitary conditions that will breed contagious and infectious diseases, its business and social relation with all other parts of the state will necessarily expose other citizens to the same diseases. With the wisdom or folly of withholding from the local authorities'final discretion over these matters, we are not concerned. It is beyond question the right of the general assembly to do so, and the court need not, and ought not to, inquire what motives moved it in withholding such power.

The disposal plant is for the benefit of the residents of the city. It is the primary duty of the city to provide for sanitary disposal of its sewage, and it is not in violation of any provision of the constitution that it should bear the entire cost of erecting and maintaining a purification plant and to require it to do so is not an arbitrary, unreasonable or unfair exercise of the police power of the state. State, ex rel., v. Freeman, 61 Kans., 90; State, ex rel. Bulkeley, v. Williams, 68 Conn., 131.

Section 5 of Article XII provides that no tax shall be levied except in pursuance of law and every law imposing a tax shall state distinctly the object of the same to which only it shall be applied. It is difficult to see how this legislation offends against this provision of the constitution. It is clear that this tax is to be levied in pursuance of law, and the object of the taxation is distinctly-stated, and there is no intention or effort to apply the money raised thereby to any other purpose, so that every condition required by the constitution in this respect would appear to be fully complied with, but the contention that the power to levy this tax is taken from the taxing authority of the city and conferred upon the State Board of Health is not so easily disposed of. Section 6 of Article XIII provides that the general assembly shall provide for the organization of cities and incorporated villages by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credits so as to prevent the abuse of such power. By this provision it will be seen that municipal corporations have not plenary power to levy taxes, but are subject in that behalf entirely to the will of the general assembly of Ohio as expressed in the statutory laws of this state. This law does not pretend to clothe the State Board of Health with the power to levy taxes, but it does confer on that board the power, subject to the right of appeal to a board of arbitrators, as therein provided, to require the city to install works or means satisfactory to the board for purifying, or otherwise disposing of its sewage, and leaves to the municipal authorities -the duty of complying with this order and of providing by taxation the means with which to comply therewith. This legislation does not differ in any particular with many other provisions relating to the power of the State Board of Health. We must not overlook the fact that the general assembly is sovereign. It creates this state board of health as an agency to assist it in that important function of government looking to the preservation of public health and comfort, and authorizes it to determine what will best conduce to such ends, and then it directs other agencies of the government to carry into effect the orders and directions of that board. It could do all this without the aid of any agency. The fact that a principal employs an agent in the conduct of his business in no way curtails the power and authority of the principal. This provision in Section 6 of Article XIII of the constitution is not unlike the provisions contained in Section 7 of Article X relating to counties and townships.

In the cases of the Board of Commissioners of Champaign County v. Church, and Caldwell v. The Board of Commissioners of Cuyahoga County, 62 Ohio St., 318, practically the same question was raised. These were actions to recover damages from the county for injuries alleged to have been received at the hands of a mob. Among other things, the statute provided that where a recovery was had that an order should be entered directing the commissioners of the county to include the same in the next succeeding tax levy. This law left the taxing authority, to-wit, the commissioners of the county, wholly without discretion in the matter. They were required at all events to provide for the payment of the penalty recovered by the plaintiff, if any, and, therefore, the claim was made that it was a delegation of taxing power to the court, and that it and not the commissioners made the levy of taxes to provide for the payment of this penalty. ■ This court held that act constitutional, and in paragraph 3 of the syllabus declared that: “Such recovery, and the tax levy authorized and required by said act,. are within the general powers of 'the legislature, and the provisions of Section 7 of Article X of the constitution; and such recovery and levy 'are not in contravention of Section 19 of Article I of the constitution.” This case does not differ in principle from these two cases. There the taxing authorities of the county made the levy just the same as the taxing authorities of the city of Greenville are to make this levy. There the commissioners were deprived of all discretion, although the constitution expressly provided that they should have “the power of local taxation, for police purposes, as. may be prescribed by law.” Yet, so far as this levy is concerned, they had no discretion whatever. They were required to make it as an agency of the governmental powers of the state, without regard to their official judgment as to its necessity.

In the case of State v. Freeman, 61 Kans., 90, it was held that: “The act of the legislature in arbitrarily establishing a high school and requiring its maintenance by the people of a county is not an unconstitutional interference with the rights of local self-government.”

In the case of State, ex rel. Bulkeley et al., v. Williams, Treasurer, 68 Conn., 131, it was held that the legislature could impose on territorial subdivisions of the state the burden of constructing and maintaining highways and bridges. The court in disposing of that question said: “If an absolute right in the inhabitants of our towns to regulate their town finances and affairs superior to all legislative control ever existed, it was certainly not such a right as survived the adoption of our constitution.”

The Constitution of the State of Illinois provides that the corporate authorities of cities may be invested with the power to assess and collect taxes for corporate purposes.

In the case of People, ex rel., v. Mayor, 51 Ill., 17, while holding that the park commissioners created by an act of the legislature of that state could not be delegated the power to levy and collect taxes or compel the city to incur debts without the consent of the municipal authority, yet the fourth paragraph of the syllabus in that case is as follows: “To what extent this constitutional provision is a limitation upon the power of local taxation directly by the legislature itself, is not a question in this case, but it seems there may be cases where the legislature, without the consent of the corporate authorities, might impose taxes, local in their character, if required by the general good government of the state, because such taxes would not be merely and only for corporate purposes.”

In this case it is apparent that the tax is levied for governmental purposes clearly within the control of the general assembly, notwithstanding it is especially for the needs and the benefits of the city of Greenville and is primarily for the corporate purposes of the city of Greenville. This fully appearing, it is not arbitrary or unfair to require the city to bear the burden and to conform to the orders and requirements of the State Board of Health by discontinuing the discharge of its sewage into a living stream and providing a proper disposal plant, so that the health of not only the citizens of the state residing in that city shall be preserved and protected, but of all the people in the state coming in business or social relation with them. The state would be powerless to perform this important function of government if the local officers were permitted to exercise their discretion in levying or refusing to levy a tax for that purpose.

The fourth objection to this act of the general assembly, urged by counsel for plaintiff in error, in their printed briefs is as follows: “Said act being of a general nature, does not have uniform operation throughout the state, and is, therefore, in conflict with Section 26 of Article II of the 'Constitution of the State ofs Ohio.” That portion of the act said to violate this provision of the constitution is as follows: “Provided that no city or village that is now discharging sewage into any river which separates the state of Ohio from another state shall be required to install sewage purification works as long as the unpurified sewage of cities or villages in any other state is discharged into said river above said Ohio city or village.”

This contention presents the most difficult question in this case. The act under consideration is beyond all question a law of a general nature, and therefore, is clearly subject to the prohibition of this section of the constitution. It is suggested that if this exception, classification, or whatever it may be called should be found to be unconstitutional, that portion alone of the statute should be declared void and the balance permitted to stand, but that cannot be done, for the reason that the statute would then apply to the municipalities now excluded from its operation. A court may sometimes hold a portion of the statute- unconstitutional and the balance of the statute valid, when the result would be to relieve persons or territory from the provisions of the statute, but it can never do this when the result would be to extend the law to additional persons or territory. To do this would be invading the province of the general assembly, and would be legislating for territory never included by the general assembly in the operation of the statute. There is a provision, however, in this exception as found in the original enactment, that a court might hold to be invalid and still sustain the residue óf the original act, and that is in reference to cities that might hereafter come within the same class and condition as those now discharging sewage into the river. But whether it should do so or not with this particular act is now unimportant. In the General Code of Ohio, the language of this section has been changed and it now reads: “But no city or village discharging sewage into a river which separates the state of Ohio from another state,” etc. Therefore, the statute as it now reads exempts all cities that may now, or hereafter, discharge sewage into a river which separates the state of Ohio from another state so long as the unpuriñed sewage of cities or villages of another state is discharged into the river above such village or city of this state and we take it that counsel are more particularly interested in having the constitutionality of the present law determined than in having this court answer a moot question.

The question then presented is whether the general assembly of Ohio has attempted a classification or an exception which is a false, unnecessary and arbitrary one, or whether it be reasonable, just and necessary. This court has repeatedly held that classification is often proper and sometimes necessary in legislation in order to define the objects on which the general law is to take effect, but has taken equally as firm a stand against any arbitrary, vicious or faulty classification used to evade this constitutional limitatidn. Gentsch v. State, 71 Ohio St., 151. We take judicial notice of the fact that the Ohio River is the only river that comes within the terms of this exception. This river separates the state of Ohio from the states of Kentucky, West Virginia and Pennsylvania. This court held in the case of Booth v. Shepherd, 8 Ohio St., 243, that: “The territorial limits of the State of Ohio extend on the southeast at least to the line of ordinary low-wrater mark on the- northwest side of the Ohio River.” The Northwest Territory was described in the cession by the states to the general government as “territory situate, lying and being to the northwest of the Ohio River,” and it was held in the case of Handly’s Lessee v. Anthony, 5 Wheat., 374, that where “one state is the original proprietor and grants the territory on one side onfy, it retains the river within its own domain, and the newly created state extends to the river only.” Neither of the states being a party to that litigation this would not be a final adjudication with reference to their proprietary rights, but if the Ohio River is without the boundary of the state of Ohio and territory over which the general assembly has no control, as these adjudications would indicate, any attempt to legislate in reference thereto would necessarily be futile.

We are not concerned with the riparian rights of lower proprietors on the Ohio side of the Ohio River, nor with the remedy they may have for any private wrongs to these rights. In this inquiry we are only concerned with the authority of the state to extend its jurisdiction over the territory occupied by the Ohio River, and if that territory is not a part of the territory of Ohio, this exception, whether written into the law or not, must necessarily obtain, for even if the act by its terms included the Ohio River and that river is not a part of Ohio it would be extra-territorial and impossible of enforcement over that territory. This act in its title declares, among other things, that it is an act “to protect streams against pollution.” This certainly refers to streams within and not without Ohio, and could not by any liberality of construction be held to include rivers beyond the state’s territorial limits.

This is too important a question to determine in a cause where it arises only incidentally to the main issue in the case, especially when it is not necessary to the disposition of the case at bar, for if it be conceded that the territorial limit of the state extended to the center of the Ohio River, the objection would not necessarily be well taken. Every law is supposed to serve some purpose, and it would be absurd to impose burdens upon persons, corporations, villages and cities that could not possibly work to the public good or operate to public advantage or the protection of private rights. One of the evident purposes of this act, and so declared in its title, is to prevent the pollution of streams, and where it is apparent that the state is powerless to prevent this pollution by reason of the control and authority of states bordering the opposite bank of a river, it would not only be folly but unjust and arbitrary to compel the citizens of this state to do or refrain from doing any act, the doing of which,"or the- refraining from which, would operate to no good purpose, either public or private.

It has been repeatedly held by this court that where a law is available in every part of the state as to all persons and things in the same condition or category, it is of uniform operation throughout the state. State, ex rel., v. Spellmire, 67 Ohio St., 77; Cincinnati v. Steinkamp, 54 Ohio St., 284; McGill v. State, 34 Ohio St., 228; State, ex rel., v. Bargus, 53 Ohio St., 94.

This law does operate uniformly in every part of the state upon all persons and things in the same condition or category. ' There is a substantial reason for excluding from the operation of this statute those persons, corporations, villages and cities located on the banks of a stream that separates Ohio from another state. It is not an attempt by the general assembly of Ohio to avoid the limitation of this provision of the constitution by a false, or faulty, classification, but on the contrary is a fair and honest effort to legislate for all the people of the state without unjust or arbitrary discrimination in favor of one class to the advantage of another. To compel those persons, corporations, villages and cities bordering upon the Ohio River to refrain from discharging sewage into the Ohio River, while the cities on the opposite banks are so doing would serve no purpose and accomplish no good results. It would be an absurdity to impose useless burdens upon them, and the purposes of the statute would be no nearer accomplished than by excluding them from' the operation of the law. It would be so unjust and arbitrary as to shock the public conscience. The fact that it would be productive of no good results is sufficient reason for the classification, and for exempting them from the provisions 'of this law. The strongest argument that can be made against this classification is that the law divides the people and cities of the state into two classes, distinguishable only by the condition surrounding each. One class is compelled to do and refrain from doing certain things because the doing or refraining from doing will operate to the substantial benefit of all the people of the state. The other class is exempted from doing and refraining to do the same things because their doing or refraining from doing these things would operate 'to nobody’s advantage. It would seem that it would not require a Solomon to determine that this is not an unjust or unfair discrimination, or false or faulty classification, and that notwithstanding this exception the law does operate uniformly as to all persons and things in the same condition or category. Classification is not only proper, but sometimes absolutely necessary in legislation. It is only when there is no substantial reason for the classification when it clearly appears that there is no real difference existing and that classification has been resorted to by the general assembly merely for the purpose of avoiding and escaping the constitutional limitation that a court will declare a statute unconstitutional for this reason.

The only other question in the record is the one arising upon the demurrer to the third cause of action. Counsel have not discussed this question in either of the printed briefs filed in this cause, yet it is referred to in the brief filed by the defendant in error. In this third cause of action the further question is sought to be raised as to abuse of discretion on the part of the State Board of Health, and as to the insufficiency of its findings to warrant the orders made. It avers all the facts hereinbefore recited and further avers that the findings are insufficient to warrant the orders made; that the outlet of the city sewers into Green-ville Creek does not create the conditions, but only contributes to the conditions found by the State Board of Health, and that this outlet into said creek does not create a public nuisance detrimental to health or comfort; that the' application of the funds of the city to the construction and maintenance of a purification plant would be wrongful, unnecessary and an abuse of corporate powers to the great and irreparable loss, damage and injury to the city, its residents and taxpayers, for which neither have an adequate remedy at law. There is, however, no averment in this cause of action, nor in any part of the petition, that the city authorities have availed themselves of the remedy by appeal provided by the statute itself, and, therefore, it is apparent that the city has not exhausted its legal remedy, and at this point in the proceedings a court of equity would not be justified in interfering. Really the sole question in this record is the question of the constitutionality of this act, for if this act is constitutional it is evident that so long as it affords a further remedy, of which the plaintiff below has not availed itself, then a court of equity must deny relief, until all legal remedies are exhausted, and will not inquire whether a board or officer clothed with discretion in determining the matter at issue has abused this discretion or exercised it fraudulently and corruptly, for resort to the remedy provided by the statute might make such inquiry entirely unnecessary and useless.

The judgment of the circuit court is reversed for error in overruling the defendant’s demurrer to the amended petition and this cause is remanded to the circuit court of Darke county with directions to sustain this demurrer.

Judgment reversed.

Davis, C. J., Spear, Shauck and Johnson, JJ., concur.


author: Johnson, J.

text:
    Crawford v. Turnbaugh, Trustee.

      Endorser or guarantor — Against whom judgment is rendered — Not regarded as surety or hail, when — Section 11713, General Code.

    An endorser or guarantor, liable by endorsement on an instrument of writing, against whom judgment is rendered in a court of record in this state, in a suit on the instrument, is not surety or bail within the meaning of Section 11713, General Code, so as to entitle such endorser or guarantor to be certified in the record of the judgment as surety or bail.
    No. 12494
    Decided April 2, 1912.
    Error to the Circuit Court of Guernsey county.
    The action was originally brought in the common pleas court of Guernsey county upon three promissory notes for $666.67 each, payable to the plaintiff in error, George W. Crawford, signed by a number of parties who were sued with him in the case. The notes were, before maturity, sold by the payee to the defendant in error, and the following endorsement made on the back at the time, “Pay to the order of Charles H. Turnbaugh, Trustee. Payment guaranteed. G. W. Crawford.”
    The plaintiff in error answered alleging that the other defendants were the principal debtors on the notes sued on and that he, Crawford, was bail thereon and asked the court to certify that the other defendants were the principal debtors and to certify Crawford as bail.
    The plaintiff replied denying that Crawford was bail and on the trial the court found that said Crawford was not bail or surety and entered judgment against all of the defendants, including Crawford, and refused- to certify the said Crawford as bail or surety. This judgment was affirmed in the circuit court and this proceeding is brought to reverse the judgment of the courts below.

      Mr. I. B. Ferguson and Messrs. Kibler & Montgomery, for plaintiff in error.

      Messrs. Turnbaugh & Eagleson, for defendant in error.
   Johnson, J.

Plaintiff in error claims that under Section 11713, General Code, he was entitled to be certified in the entry of the judgment in the trial court, as bail for the other defendants in the case.

Pertinent parts of that section are as follows:

“When judgment is rendered in a court of record within this state, upon an instrument of writing in which two or more persons are jointly or severally bound, and it is made to appear to the court, by parol or other testimony, that one or more of the persons so bound signed the same as surety or bail for his or . their co-defendant, the clerk of such court, in recording the judgment thereon, shall certify which of the defendants is principal debtor, and which surety or bail.”

Did Crawford sustain such relation to the note and to the proceedings as brings him within the provisions of that section? Was he surety or bail? He did not sign the note originally as “surety or bail for his co-defendant” for he was the original payee of the note. He became guarantor to his transferee, the plaintiff below, by his endorsement on the back of the note.

Strictly speaking he was not “jointly or severally bound by the instrument” itself, but after-wards became bound by the terms of his endorsement, the guaranty of payment signed by him at a time subsequent to the date of the note;

Plaintiff in error, however, in his answer sets up and now insists that in legal effect he was bail on the notes.

The term bail, from inappropriate and colloquial use, has come to have a somewhat indefinite meaning. But the statute from which the above section was taken is old, and the term had a definite and accepted meaning when originally used, and included in the law. Bouvier defines the noun to mean: “Sureties who bind themselves either to satisfy the plaintiff his debt and costs, or to surrender the defendant into custody provided judgment be against him in the action and he fails to do so.”

The term surety really includes the term bail, but bail was a name given to a surety who becomes such in a legal proceeding, criminal or civil, and as used in the above section the term relates to, and was intended to protect a surety who had signed a bond in some legal proceeding.

It is contended substantially, that although the above Section 11713, does not by its terms include a guarantor, yet it includes persons whose liábility is prior to and greater than that of a guarantor, and that the reasonable construction of the statute is, that its benefits should apply to all parties who are secondarily liable, or at least to persons less liable than those whom it specifically designates. It is urged that under Section 3178a of the Negotiable Instruments Code, being Section 8296, General Code, plaintiff in error is such a party and has such relation to the notes sued on in' this case, as entitles him to the benefit of the certificate provided for by Section 11713, General Code, above quoted.

Section 8296, General Code, is as follows: “The person ‘primarily’ liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All other parties are secondarily liable.”

Under that section a guarantor is secondarily liable, but that does not assist plaintiff in error in his contention here, or bring him into the class of surety or bail under Section 11713, or entitle him to the certificate provided for by that section, because under the section just quoted (8296) a surety is not secondarily but is primarily liable on the note.

In Richards v. Bank Co., 81 Ohio St., 348, it is held that under the Negotiable Instruments Code passed April 17, 1902, Vol. 95, p. 196, the former rule as to release of surety by extension of time without his consent, and other variation of the contract has been abrogated, and that one who signs a note on the face thereof and who in that way becomes a surety for the principal maker is by force of Section 3178a, Revised Statutes, primarily liable for the payment of such note.

The rights and liabilities of a surety and those of a guarantor are different in many respects.

The surety as shown is primarily liable. He is not entitled to presentment, demand or notice of non-payment, he is jointly and severally bound only by the terms of the instrument and not by a special contract endorsed on the instrument as in the case of guarantor. And yet the surety may at all times show “by parol or other testimony” that he was surety only.

When the plaintiff in error, Crawford, the payee of the note, negotiated and endorsed the note he became liable as endorser, entitled to the rights of an endorser and in addition to that he took on the obligation of guarantor by the words “Payment guaranteed.” And it is only because of the provisions of the code that he can be sued together with the other parties to the note. Of course, the holder of the note might by suing the surety alone .avoid the right of the surety to be certified as such and thus avoid being compelled to exhaust the principal debtor first, because it is only where one is able to show by parol or other testimony that he signed as surety for his “co-defendant” that the statute applies.

In such case it is not competent for the surety by cross-petition, or otherwise, to bring in his principal for the purpose of having the relation of principal and surety certified, although the holder knew of such relation. Wilkins v. Bank, 31 Ohio St, 565.

Nevertheless a guarantor or a surety, who is not so certified, who pays the judgment has the right to be subrogated to the place of the judgment creditor against the principal and all others standing in his shoes. This right is not affected by the statutes providing for the certificate of surety-ship. The statutes are merely in addition to those equitable rights. Hill v. King, Exr., 48 Ohio St, 75.

Crawford did not move for execution first against those primarily liable, and his right to do so is not a question made here. We think it clear that plaintiff in error, Crawford, bound as he was by his contract of guaranty endorsed on the note was not surety or bail for his co-defendants within the terms of this statute.

His was not the same contract as theirs. The secondary character of his liability appeared at once on the pleadings, by the copy of the note and the endorsement on its back. This cannot be said of the surety whose name appears on the face as a maker, and this statute gives an opportunity to a surety to make that appear which otherwise would not. The court cannot read into the statute provisions not within its terms.

For these reasons the judgments below will be affirmed.

Judgments affirmed.

Davis, C. J., Spear, Shauck and Donahue, JJ., concur.