Beamer v. Ohio.

Chas. J. Fitzgerald, for plaintiff in error, cited:

Exercise of power: Cooley on Const. Lim. (6 ed.), 704, et seq.; Sec. 2, Art. 1, bill of rights.

Humane Societies-Granting special privileges: Dartmouth College v. Woodward, 17 U. S. 4 [Wheat.], 518; State v. Haff, 52 Ohio St., 375 [40 N. E. Rep., 720]; State v. Ferris, 53 Ohio S., 314 [41 N. E. Rep., 579].

Section 19, Art. 1, bill of rights: L. S. & M. S. Ry. Co. v. Smith, 173 U. S., 684, 695; Chicago, etc., Ry. Co. v. Chicago, 166 U.S., 226, 236, 237; Missouri Pac. Ry. Co. v. Nebraska, 164 U. S., 403. McCoy v. Grandy, 3 Ohio St., 463; Phila. Assn. v. Wood, 39 Pa. St., 73; Turner v. Althaus, 6 Neb., 54, 71; Loan Assn. v. Topeka, 87 U. S. [20 Wall], 655; State v. Guilbert, 56 Ohio St., 575, 624, 625, 626 [47 N. E. Rep., 551]; Marsh v. Poston, 54 Ohio St., 681 [47 N. E. Rep., 1114].

Laws of a General Nature-Limited Application: Kelley v. State, 6 Ohio St., 270; State v. Ellet, 47 Ohio St., 90, 94 [23 N. E. Rep.. 931]; State v. Somers, 11 Dec. [Re.], 311; Commissioners v. Rosche, 50 Ohio St., 103 [33 N. E. Rep., 408]; Cincinnati v. Steinkamp, 44 Ohio St., 284 [43 N. E. Rep., 490].

Act defining and punishing crime necessarily a law of a general nature: Ex parte Van Hagan, 25 Ohio St., 426, 431. Sec. 20, Art. 4, Const.; Fagin v. Humane Society, 9 Dec., 341 [6 N. P., 357].

No authority to tax to pay debts of private corporation: Phila. Assn. v. Wood, 39 Pa. St., 73, 82; Allen v. Jay, 60 Me. [11 Am. Rep., 185 and note], Lowell v. Boston, 111 Mass, 454; Cooley v. Granville, 10 Cush. 26; McConnell v. Hamm, 15 Kan., 228; Taylor v. Commissioners, 23 Ohio St., 22.

Attempt to constitute state and county officers: State v. Lewis, 5 Dec., 371 [5 N. P., 394]; Fagin v. Humane Society, 9 Dec., 341 [6 N. P., 357].

Special act, conferring corporate power: Atkinson v. Railroad Co., 15 Ohio St., 21; Merrill v. Toledo, 3 Circ. Dec., 524 [6 R., 430]; Maraenty Priv. Cor., 86; San Francisco v. Water Works, 48 Cal., 493. Ex parte Pretz, 9 Iowa, 30; Atkinson v. Railroad Co., 15 Ohio St., 21; Ellis B. Gregg, for defendant in error, cited,

No law should be declared unconstitutional unless clearly in conflict with the constitution: Marmet v. State, 45 Ohio St., 63, 64, 67 [12 N. E. Rep.] 463]; Cincinnati, W. & J. R. R. Co. v. Clinton Co., 1 Ohio St., 77, 83; State v. Cincinnati, 20 Ohio St., 18, 33; State v. Hipp, 38 Ohio St., 199, 219;

May be valid in part: Treasurer v. Bank, 47 Ohio St., 503 [25 N. E. Rep., 697].

JELKE, J.:

The plaintiff in error was tried and convicted before a magistrate on the charge of cruelly beating a horse. The case was affirmed in the court of common pleas, to which judgment proceedings in error are brought in this court.

The prosecution was conducted under and by virtue of Secs. 3714, 3718, 3718a and 6951, Rev. Stat.

Counsel for plaintiff in error contends that Sec. 6951, Rev. Stat., contravenes Secs. 1 and 2, Art. 1, of the bill of rights.

Hamilton Circuit Court.

At common law cruelty to animals was not an indictable offense unless it partook of the nature of a trespass or a nuisance. Such cruelty has in many of the United States, been made a misdemeanor, subject to punishment by fine and imprisonment by statutory enactment.

These statutes, which are similar in their terms and of which Sec. 6951, Rev. Stat., is a fair example, are passed by the legislature in the exercise of the police power of the state.

Judge Cooley in his Constitutional Limitations, chapter 16, page 704, says:

The police power of a state, in a comprehensive sense, embraces its whole system of internal regulation, by which the state seeks not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others."

Blackstone defines the public police and economy as

"The due regulation and domestic order of the kingdom, whereby the inhabitants of a state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious and inoffensive in their respective stations." 4 Bl. Com., 162.

Chief Justice Shaw said in Commonwealth v. Ager, 7 Cush.:

"The power we allude to is rather the police power; the power vested in the legislature by the constitution to make, ordain and estab lish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise."

The court said, in Commonwealth v. Turner, 14 N. E. Rep., 130, [145 Mass., 296, 300], in regard to a similar law :

The statute does not define an offense against the rights of property in animals or against the rights of the animals that are in a sense protected by it. The offense is against the public morals, which the commission of cruel and barbarous acts tends to corrupt."

See also, Commonwealth v. Tilton, 8 Metc., 232; State v. Porter, [112 N. C., 887] 16 S. E, 915; Bishop on Statutory Crimes, Sec. 1103.

Section 6951, Rev. Stat., therefore, is not in conflict with Sec. 1, Art. 1, of the bill of righ's as an unwarranted and unreasonable restriction of the use of one's own property and in being for the protection of animals, not human beings, and is in accord with Sec. 2, Art. 1, of said bill, in that it seeks to afford equal protection to all citizens from immoral conditions.

Counsel contend that Sec. 2, Art. 1, of the bill of rights, is violated in giving to the humane society the right to receive the fines imposed for offenses under this law.

If this objection is sound it can not be raised in this action.

If the definition of the misdemeanor and the imposition of a fine is a valid exercise of the police power, it does not lie in the mouth of a convicted defendant to question the application made by the state of the

Beamer v. Ohio.

money when the fine is paid. If this objection were sound, it could only be raised by a taxpayer in a proper suit for that purpose.

Counsel for plaintiff in error says the cruelty to animals law is in conflict with Sec. 19, Art. 1, of the bill of rights, and the fifth and fourteenth amendments to the constitution of the United States, in attempting to take the property of the accused the amount of the fine and transfer it to a private corporation without the consent of the accused.

These provisions of the state and federal constitutions refer to the right of eminent domain; and have nothing to do with the imposition of a fine by virtue of the police power.

Sections 6951, 3714, 3718 and 3718a, Rev. Stat., to the extent that they define an offense and affix a penalty, are laws of a general nature and of uniform operation throughout the state, and not in conflict with Sec. 26, Art. 2, of the constitution. There is nothing limiting their operation to Hamilton county or to the humane society.

There is nothing in the record of this case to show that this prosecution was not carried on in the name and by the authority of the state of Ohio in violation of Sec. 20, Art. 4, of the Constitution.

Counsel for plaintiff in error contends that these several statutory provisions are in conflict with Secs. 1, 2, 3, 4, 5 and 6, Art. 8, Secs. 1 and 2, Art. 10, Sec. 1, Art. 13, of the constitution of the state of Ohio. Suffice it to say here that all these legislative acts are presumed to be constitutional, and this court having found that the plaintiff in error was duly and legally convicted of an offense under a constitutional provisions of the statutes in an action prosecuted in the name and under the authority of the state of Ohio, we are of opinion that the questions raised by the plaintiff in error as to the organization and powers of the humane society and the disposition of fines can not be raised in a criminal action of this nature, and are not pertinent to this inquiry, and hence express no opinion on these points. Judgment affirmed.

MALICIOUS PROSECUTION.

[Cuyahoga Circuit Court, January Term, 1895.]

Caldwell, Hale and Marvin, JJ.

MILES V. SALISBURY.

1. WIFE Cannot Render HUSBAND LIable for MaLICIOUS PROSECUTION. A wife, in the absence of her husband, having charge of the home and general management of affairs, is not by virtue of that relation, and without any knowledge on his part whatever, authorized in his name to institute a criminal prosecution and thereby render him liable for damages for malicious prosecution.

2. PROBABLe Cause-MEANING OF.

Probable cause is defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged. Therefore, in determining whether one who instituted a criminal prosecution had reasonable ground or probable cause, the surroundings, exactly as they were at the time, should be considered. If the person believed the facts as charged, and from the information he then had it was reasonable for him to rely thereon, he was authorized to institute the proceedings without making further inquiry.

Cuyahoga Circuit Court.

8. CHARGE Requiring FurTHER INQUIRY MISLEADING.

In determining whether a party had reasonable cause for the institution of criminal proceedings the inquiry should be what did he know or believe at the time thereof, and was it sufficient to sustain such a belief, and a charge requiring such additional knowledge as might be ascertained by the exercise of ordinary care in inquiring into and investigating the truth of the charge made, is misleading.

▲ ERRONEOUS Charge aS TO PUNITIVve Damages.

In an action for malicious prosecution, a charge that "if in your judgment you think it to be a suitable case for inflicting punishment upon the defendant, you may add to it what is known as punitive damages, and assess such a sum against the defendant as you may find would be suitable punishment under the circumstances for causing the arrest of the plaintiff," thereby leaving to the jury the whole subject of determining whether punitive damages should be allowed at all, and, if so, without any instructions or limitations as to the extent, is improper.

5. EVIDENCE OF CHARACter of PersON ACCUSED.

In an action for damages for malicious prosecution, as bearing upon the question of probable cause for the institution of criminal proceedings, evidence of facts relating to the character and standing of the person accused, which had come to the knowledge of the party making the charge, is competent.

6. SAME.

Evidence of the general reputation of a person accused of a crime in the neighborhood in which both parties reside, is competent as tending to establish knowledge of his character and standing on the part of the accuser, to show malice in the latter in an action for damages therefor.

7. EVIDENCE of Good Character of Accuser.

The plaintiff in an action for malicious prosecution has the right to introduce proof of his good character as evidence in chief.

W. C. McFarland and J. M. Jones, for plaintiff in error.

J. N. Armor and W. S. Kerruish, for defendant in error.

HALE, J.

This case is pending in this court on proceedings wherein it is sought to reverse the judgment of the court of common pleas. The judgment was rendered in favor of the defendant in error against the plaintiff in error in an action for a malicious prosecution. It is not claimed that the plaintiff in error in any way expressly authorized the institution of the criminal proceeding which it is now claimed to have been malicious. During the whole period over which the transaction extended, the plaintiff in error resided in the state of New York, or was in the city of New York, and had no knowledge whatever of the prosecution until after it had terminated. The responsibility of the plaintiff was maintained upon the ground that his wife, who was in charge of the home and the farm in the absence of the husband, and who did in fact institute this criminal proceeding, acted as agent of her husband, and by reason of such agency the husband was responsible for the prosecution. The vital questions in the case arise upon the charge of the court and the effect of the testimony upon the question of the agency of the wife.

After as careful review as we have been able to make, we find and hold that the court below erred in the charge given to the jury upon the effect to be given to the testimony tending to establish the agency of the wite, and also in refusing to charge request three upon the same subject. It simply presents this question, as to whether or not the wife, in the absence of the husband, having charge of the farm or home, having the

Miles v. Salisbury.

general management of affairs in the absence of the husband, is by virtue of that relation, authorized in his name to institute a criminal prosecution and make him thereby liable for such prosecution; and while the question may be debatable, we differ with the court upon that question. We think that no such liability can be inferred simply from such relation, and nothing further was shown in the case.

Again, that part of the charge that I will now read is certainly open to criticism. We adopt the definition of "probable cause" given by the court in Ash v. Marlow, 20 Ohio, 119: "A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged," that is, a belief in the truth of the charge, founded upon a reasonable ground to support that belief, is sufficient.

So that I suppose, in determining whether one who instituted a criminal prosecution had reasonable ground or probable cause to institute such proceedings, we consider the surroundings of that individual exactly as they were at the time, and if he really did believe in the fact as charged, and from the information he then had it was reasonable for him to rely upon those facts, he might institute the proceedings without making further inquiry. But the court said: But the court said: "You are to determine as to whether or not Mrs. Salisbury acted maliciously in thus instituting this criminal proceeding by the facts and circumstances known to her and the surroundings at the time of the arrest, and in determining both of these questions (that is, probable cause and malice) you have a right to take into consideration and charge Mrs. Salisbury with knowing, not only such facts as she actually knew, but such facts as she might by the exercise of ordinary care have ascertained by way of an investigation of the matter, and so in determining malice you are to take into consideration the facts and circumstances known to her, and such facts as she might have ascertained by the exercise of ordinary care in inquiring into and investigating the subject or truth of the charge which she made against the plaintiff, and from these facts and circumstances say as to whether she acted maliciously, and acted without probable cause.'

In determining whether the party had probable cause, the inquiry should be, what did she know at the time, and what did she know or believe, and was it sufficient to sustain such a belief. We hold that this part of the charge was misleading.

Again, after giving to the jury the rule for the assessment of compensatory damages, with which no fault is found, the court said this: "And, if in your judgment you think it to be a suitable case for inflicting punishment upon the defendant, you may add to it what is known as punitive damages, and assess such a sum against the defendant as you may find would be suitable punishment under the circumstances for causing the arrest of the plaintiff." Without any explanation of the class or kind of cases in which punitive damages may be awarded, without any statement of the rules of law by which the jury were to be governed in the assessment of such damages in a proper case, and without any explanation to the jury of the grounds upon which punitive damages could be awarded in this case, the court left to the jury the whole subject of determining whether punitive damages should be allowed at all, and if so, to what extent, without any limitations whatever. This we think was error. We think it cannot be justly claimed that the jury received proper instructions upon this branch of the case.