City of Toledo v. Weber.

[Vol. III, N. S.

plaintiff, who went into possession of the property. It appeared that at the time Mr. Weber purchased from Forbes there was some balance still due to Mr. Ketcham, and Mr. Weber made payment or payments and received the title, not from Forbes, but direct from Mr. Ketcham, the deed having been dated in 1878.

The court charged in regard to the matter, and directed the jury that the dedication of the plat signed by Ketcham was binding upon the plaintiff, and she could not recover for the $87; and in that we think the court erred. Now, as I have said, Mr. Forbes was in possession of the property, claiming to be the owner, and we believe that was prima facie evidence that he was the owner. He continued in that possession, and seeras to have been in possession at the time proceedings were filed in 1875. The city of Toledo in filing a petition reciting the necessity of opening the street, etc., says: "The following described parcels of real estate are owned by the parties hereinafter named." In the third paragraph it says: "The northerly thirty feet of the N. E. one-half of lot 223 Stickney's addition, which lies within the proposed line of Niagara street and owned by W. G. Forbes,"

The statute under which they proceeded requires them to give notice to the owners; and Section 2245, Revised Statutes, provides:

"The assessment shall be in writing, signed by the jury, and shall be so made that the amount payable to each owner may be ascertained either by allotting it to each owner by name, or on each lot or parcel of land."

When the jury came to make their assessment they assessed to W. G. Forbes $87.50. It was said that Mr. Ketcham was a party to this suit; and that was true, but he was not named as the owner of this portion of lot No. 223, but Forbes was named as the owner; and Ketcham was named as to another portion of the lot which was alleged to be owned by V. H. Ketcham and Jerome Wellman, and that is the only place in which Mr. Ketcham is named, and when it came to that particular portion, they awarded to Ketcham and Wellman $87.50,

and the city ascertained then that the ownership was in Forbes. Forbes, as the testimony showed, purchased this property prior to the date of the dedication and was in possession prior to that time and did not sign the articles of dedication. Mr. Ketcham, when he signed, signed generally, without naming any specific portion of the property, but simply signed his name.

We think the city is bound by this record in regard to the $87.50. It ascertained that Forbes was the owner and caused an award to be made to Forbes as the owner, and to no other person, and we think it is too late for the city to come in now and say that Mr. Ketcham was the party who owned the property and that he is entitled to the money, and that the judgment of appropriation should be in his favor, or that the articles of dedication would bind Mr. Weber. We think there can be no question under the law, as we have stated it heretofore, that Mr. Weber, when he purchased this property and took this deed, took the whole title to the property and succeeded to the right of Forbes in the property and that he is entitled to this $87.50.

It is said in the petition that the city had not made any payments, but the city nowhere claims to have made any payment to Forbes or to anybody else for that property; it seems to have just cut the matter, so far as payments are concerned, when it came to open the street and claimed the whole property. In that view of the case we think the court erred in holding that these plaintiffs were not entitled to this money. The case has been tried and we think we have all the evidence before us. With the evidence as it stands, we will reverse so much of the judgment as finds in favor of the city in regard to the $87.50 and render such judgment as the court of common pleas should have rendered, and give judgment for Mrs. Weber for that sum of money. The details can be drawn out in the journal entry. The interest may be computed the same as in the other case, and it may be so far modified as to include it all in one judgment.

M. R. Brailey and John P. Manton, for plaintiff in error. T. L. Gifford, for defendant in error.

Lloyd v.

Dollisin, Sheriff.

[Vol. III, N. S.

THE BEAL LAW CONSTITUTIONAL.

[Before Judge John M. Cook, sitting in Guernsey County.]*

JOHN LLOYD V. JOSEPH B. DOLLISIN, SHERIFF.

Decided, 1902.

The Beal Law-Not in Conflict with Section 26 of Article II, or Section 18 of Article I, or Section 11 of Article III of the ConstitutionContains no Unlawful Discrimination—The Feature as to Sale by "Wholesale"-Jurors Taken from the Whole County-What Shall Constitute Prima Facie Evidence of Legal Election-Distribution of Fines.

1. The provisions of Section 26 of Article II of the Ohio Constitution, that general laws shall have a uniform operation throughout the state, does not make it necessary that the law shall operate uniformly upon every person and every foot of territory within the state; and the fact that Sections 4364-20, et seq., known as the Beal Law, have no application to those portions of the state not within the limits of municipalities, does not bring them within this constitutional prohibition.

2. Nor does the provision of the Beal Law, which permits of a resubmission after two years of the question of the sale of intoxicating liquors in a municipality, render it possible to suspend the law within the meaning of Section 18 of Article I of the Constitution, which provides that the Legislature alone can suspend laws. 3. Nor is there an attempt to grant the pardoning power to the people, in contravention of Section 11 of Article III, by the permitting of a second election, for the fact that the second election was in favor of "the sale" would not absolve from an offense committed while the sale was prohibited.

4. Nor is there any violation of Sections 1 and 2 of the Bill of Rights or of the Fourteenth Amendment of the Federal Constitution in the discrimination that is made between persons living within and without municipalities, and between manufacturers selling at wholesale and dealers; and the provision as to sales by wholesale incapable of execution because of its indefiniteness.

5. There is no violation of the rights of one being prosecuted under this law in that he must be tried before a jury selected from the whole county, rather than from the municipality within which the offense was committed.

6. It is clearly within the power of the Legislature to provide as to

*Judge Cook was the only judge sitting at the hearing of this case.

what shall constitute prima facie evidence that the election under this law was legally held.

7. The disposition to be made of fines imposed has always been provided for by the General Assembly, as was done in connection with the Beal Law, and is a matter of no concern to one charged with violation of that law.

COOK, J.

In habeas corpus.

The objection made to the detention of plaintiff by the sheriff of Guernsey county is that the court has no jurisdiction for the reason that the act of the General Assembly by favor of which the affidavit was made is unconstitutional and that it is too indefinite and vague to be enforced. The act was passed April 3, 1902 (95 O. L., 87), and purports to take effect from the date of its passage and is known as the Beal Municipal Local Option Law.

A large number of objections are made by plaintiff: That it contravenes Section 26, Article II of the Constitution; that it contravenes Section 1, Article II; that it contravenes Section 18, Article I; that it contravenes Section 10, Article I; that it contravenes Sections 1 and 2 of the Bill of Rights; that the word "wholesale" is indefinite and vague; that the fines are improperly disposed of; and other objections that will be noted.

The questions made principally respect the Constitution of our own state and must therefore be considered and determined in the light of the decisions of our own state, and but little assistance can be derived from the decisions of other states, as the Constitutions of the different states differ very materially in their provisions upon the questions involved.

The first two objections may be considered together. Section 26, Article II, provides:

"All laws of a general nature shall have a uniform operation throughout the state; nor shall any act, except such as relate to public schools, be passed, to take effect upon the approval of any other authority than the General Assembly, except, as otherwise provided in this Constitution."

Section 1, Article II, provides:

"The legislative power of this state shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives."

Lloyd v. Dollisin, Sheriff.

[Vol. III, N. S.

Sections 4364-20a and 4364-20b, Revised Statutes (95 O. L., 87), are the sections of the Beal Law in controversy and provide as follows:

"Section 4364-20a. That whenever forty per cent. of the qualified electors of any municipal corporation shall petition council thereof for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such municipal corporation, such council shall order a special election to be held in not less than twenty nor more than thirty days from the filing of such petition with the mayor of the municipal corporation or from the presentation of such petition to said council, which said petition shall be filed as a public document with the clerk of the municipality, and preserved for reference and inspection and which election shall be held at the usual place or places for holding municipal elections, and notice shall be given and the election conducted in all respects as provided by law for the election of members of the council of the corporation, so far as said law may be applicable. The result of such election shall forthwith be entered upon the record of the proceedings of the council of the corporation by the clerk thereof, and in all trials for violation of this act, the original entry of the record, or a copy thereof certified by the clerk of the corporation; provided that said record shows that a majority of the votes cast at said election was against the sale of intoxicating liquors as a beverage, shall be prima facie evidence that the selling, furnishing or giving away of intoxicating liquors as a beverage or the keeping of a place where such liquors are sold, kept for sale, given away or furnished, if such selling, furnishing or giving away or keeping such place occurred after thirty days from the day of holding the election, was then and there prohibited and unlawful.

"Section 4364-20b. And if a majority of the votes cast at such election shall be in favor of prohibiting the sale of intoxicating liquors as a beverage, then from and after thirty days from the date of holding said election it shall be unlawful for any person, personally or by agent, within the limits of such municipal corporation to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away or furnished, for beverage purposes, and whoever from and after the thirty days aforesaid in any manner directly or indirectly, sells, furnishes, or gives .away, or otherwise deals in any intoxicating liquors as a beverage, or keeps or uses a place, structure or vehicle, either permanent or transient for such selling, furnishing or giving away or in which or from which intoxicating liquors are sold, given away