Opinion of the Court. But coming home to our own state, we find at least one case which supports the judgment under review: Beaumont et al. v. Herrick, 24 Ohio St., 445. It was there held: (3) "Where a case is submitted to the court on a demurrer to the answer, the ground of the demurrer being that the answer does not contain a defense, and the demurrer is overruled, the plaintiff cannot, without the leave of the court, dismiss his action without prejudice. The submission of the case on the demurrer is a final submission of the case within the meaning of Section 372 of the code, unless leave is obtained to reply or amend. (4) Whether, in such case, after the overruling of the demurrer, the plaintiff should have leave to reply, or to amend his petition, is a matter resting in the sound discretion of the court. If the exercise of such discretion is reviewable on error in any case, it can only be where the record shows, in view of all the circumstances under which the court acted, an abuse of discretion, resulting in a denial to the party of a fair trial." Omitting the long statement of that case, it is sufficient to say here, that the original petition was filed in the court of common pleas, and afterwards a demurrer was sustained to an amended petition on the ground that it did not show a cause of action, and the petition was dismissed. The case was taken on appeal to the district court, and there another amended petition was filed. The defendant answered and plaintiff demurred to the answer. The demurrer was overruled and the petition dismissed. On overruling of the demurrer, application was made to amend the petition by setting up addi Opinion of the Court. tional matter. The court refused the leave asked. Plaintiff's counsel then represented to the court that the demurrer to the answer was filed in good faith and asked leave to reply to the answer. This was refused. Thereupon plaintiff asked leave to dismiss the action without prejudice which was also refused. Error was prosecuted in this court to reverse the judgment dismissing the petition. On that branch of the case, White, J., on page 457, says: "We see no error in this refusal of the court. The submission of the case on the demurrer was a final submission of the case within the meaning of Section 372 (old number) of the code, unless leave was obtained to reply or amend. Without additional pleading, the legal consequence of the overruling of the demurrer was a judgment of dismissal." The court then discusses the action of the court in refusing leave to amend or reply, and found no error. To recognize in our practice the claim that is made by plaintiff in error, would give a plaintiff the right, when he fails to make a case, and it is so decided, to thwart the contest on his own evidence, dismiss without prejudice, and again bring the defendant into some court to answer a similar demand, with all the attendant costs; and if it can be done once, it may be done a second or third time, thus prolonging the expensive and annoying litigation. This system of practice should not be encouraged and we therefore think it our duty to affirm the judgment of the circuit court. Judgment affirmed. SHAUCK, SUMMERS, SPEAR and DAVIS, JJ., con cur. Statement of the Case. MIRICK V. GIMS, TREASURER, ETC. SUNDAY CREEK COMPANY 7. WOODWORTH, Section 2833, Revised Statutes, as amended April 4, 1906-Makes dog tax lien on real estate-In part unreasonable and unconstitutional-Constitutional law. Section 2833, Revised Statutes, as amended and took effect April 4, 1906 (98 O. L., 87), so far as it requires the levy of the per capita tax on dogs upon the real estate upon which the dogs may have been kept and harbored, and the collection thereof as other taxes upon real estate, notwithstanding the owner of such real estate had no knowledge that the dogs had been harbored thereon and was not consenting thereto, is an arbitrary and unreasonable exercise of police power not required by the general welfare and therefore unconstitutional and void. (Nos. 11329 and 11576-Decided December 22, 1908.) ERROR to the Circuit Court of Scioto county. Mirick, who is a non-resident owner of land situate in Scioto county and who alleges that he has continuously resided in Washington, D. C., ever since he acquired title to such land, brought suit in the Court of Common Pleas of Scioto county to enjoin the collection of a tax assessed against his real estate for three dogs charged against him upon the tax duplicate. He averred that he was not the owner of any dogs in Scioto county; did not harbor any dogs on his said real estate; did not permit or suffer any one else to do so; and did not know of any dogs being kept on said premises until his tax bill was presented; and denied that Statement of the Case. any dogs were kept on his premises. He averred that when said tax was assessed upon his real estate, the said premises were in possession and under the control of one McCall his lessee and that he did not make or change the lease of said land since the passage of the statute under which said tax was assessed. A demurrer to the petition was overruled and after an answer by defendant, alleging that the tax was levied upon a certain three dogs kept and harbored on the estate, a trial was had in the court of common pleas and that court dismissed the plaintiff's petition and rendered judgment against him for costs. This judgment was subsequently affirmed by the circuit court. The Sunday Creek Company, which is a corporation engaged in the business of mining, shipping and selling coal, filed its petition in the Court of Common Pleas of Athens county to restrain the collection of a tax for dogs assessed upon its lands and amounting to $336. It alleged that such tax was assessed under and by virtue of Section 2833, Revised Statutes of Ohio; that it is the owner of about three hundred dwellings on its premises, which are rented to miners and others in its employ and with express notice and orders that no dogs shall be kept or harbored thereon, or on the close adjacent thereto, or elsewhere on plaintiff's premises; and that if any dogs have been kept or harbored on said premises by any of its tenants, the same has been done without the knowledge or consent of the plaintiff and against its orders and protest. It alleged that it was not the owner of any dogs listed for taxation, Argument for Defendant in Error. nor that it had ever had any interest in any of them. A demurrer to the petition was sustained and the plaintiff not electing to plead further the petition was dismissed at plaintiff's costs. On appeal to the circuit court the demurrer was sustained and the same judgment rendered. Messrs. Evans & Crawford, for Mirick, plaintiff in error, cited and commented upon the following authorities: Holst v. Roe, 39 Ohio St., 340; Plessy v. Ferguson, 163 U. S., 550; Mugler v. Kansas, 123 U. S., 623; Lawton v. Steele, 152 U. S., 133; Holden v. Hardy, 169 U. S., 366; Reduction Co. v. Sanitary Works, 199 U. S., 306; In re Jacobs, 98 N. Y., 98; Connolly v. Sewer Pipe Co., 184 U. S., 540; McGehee on Due Process of Law, 217, 218, 228, 235, 252; Railway Co. v. New York, 199 U. S., 16; Monroe v. Collins, 17 Ohio St., 666; Wasson v. Commissioners, 49 Ohio St., 623; Bank v. Hines, 3 Ohio St., 1; Hill v. Higdon, 5 Ohio St., 246; Anderson v. Brewster, 44 Ohio St., 576; Zanesville v. Richards, 5 Ohio St., 590; Dagett v. Hudson, 43 Ohio St., 548; Mullen v. Peck ̧ 49 Ohio St., 447; Freund on Police Power, Section 434; Section 2, Article XII, Constitution of Ohio; Section 10, Bill of Rights; Amendment 5 to Constitution of United States; Section 1, Amendment 15 to Constitution of United States: Article II, Ordinance of 1787. Mr. Harry W. Miller, prosecuting attorney, for Gims, Treasurer, defendant in error, cited and commented upon the following authorities: |