Oshe v. State 37 Ohio St. 494

Oshe v. The State. Cain v. The State.

1. The act to revise and consolidate the general statutes of the state, embodied in the Revised Statutes, is not void as being in conflict with section 16, article 2, of the constitution.

2. The offense defined in section 6942 of the Revised Statutes, consists in the Iceeping of a place, where the business of the unlawful sale of liquor is carried on; and the section is not unconstitutional in not requiring such place to be one of public resort.

3. In an indictment under said section, it is a sufficient description of the unlawful sales to aver that they were made “ in violation of section sixty-nine hundred and forty-one, of the Revised Statutes of Ohio;” and the reference to the section must be understood as referring to the section then in force.

Motions for leave to file petitions in error to reverse the judgments of the District Court of Muskingum County;

The plaintiffs in error, Charles Oshe and Terrence Cain, were severally indicted, under section 6942 of the Revised Statutes, as keepers of places where intoxicating liquors-were sold in violation of law. The indictments were severally demurred to. The demurrers having been overruled, Oshe pleaded guilty, and was sentenced by the court; and Cain, on a plea of not guilty, was convicted.and sentenced.

*495On error, the district court affirmed the sentence in each case.

Leave is now asked to file petitions in error, in this court, to reverse the judgments of the courts below. The cases are submitted together.

G. L. Phillips, and Hollingsworth & McDermott, for Cain; Southard & Southard, and C. A. Beard, for Oshe:

I. The objection is to the validity of the statute, rather than to the sufficiency of the indictment. . Of course, “the facts stated in the indictment do not constitute an offense,” unless the indictment rests upon a valid statute, creating and defining such offense.

Section 6942 is substantially a rescript of section 4 of the former statute, S. & 0. 1431, and is intended to define the same offense.

But the revising commission, in its zeal for condensity and expurgation, has eliminated from this statute the limiting phrase, “of public resort.” By this omission, I claim, the statute has lost its validity—is unconstitutional and void.

Our present system of liquor laws was first enacted in 1854. Swan’s Rev. Stat. 898. The system then formulated, and which has been retained to this day, defines and punishes two classes of agencies: First. It defines unlawful selling, and punishes the act. Second. It defines and punishes the maintenance of a common nuisance, and provides for its abatement.

Sections 1, 2, 3, having their punitive element in section 8, inhibit and punish the act of selling: First, to be drank where sold ; second, to minors; third, to .drunkards.

Section 4, with its punitive element in section 8 also, defines a common nuisance, punishes its maintenance, and provides for its suppression.

When our statutes came from the hands of the commission, these sections, 1, 2, 3, 4, were embodied in sections 6941, 6942. These sections preserve the same system, and, were it not' for the lapsus complained of, are of precisely the same import and effect as the said sections of the former statute,

*496Section 6941, as did sections 1, 2,3, defines unlawful selling, and fixes its punishment; while section 6942, as did section 1, punishes, not the act of selling, but the keeping of a place. Therefore, there must bo that in the character of the place and practice interdicted which will authorize the state to interfere. And the statute must plainly limit its operation to such places as are constitutionally liable to the legislative power of the state. The state may not enact and enforce a statute so uncertain in its terms, that in one case, the act punished may be entirely different in kind from that punished, under the same law, in another case.

Section 4 has been uniformly construed as defining a public nuisance, punishing its maintenance, and suppressing the business which created the public annoyance. It has been sustained on the ground that it “ is authorized by the express grant of power in section 18 of the schedule of the constitution.” Miller v. State, 3 Ohio St. 486.

Tho adjudicated cases show that the use of the phrase in question gave to said section'its character and its validity.

These adjudications show that the offense defined and punished by said section 4, is the maintenance of a common nuisance ; and that the phrase in question has been uniformity held to import and embody the very gist and essence of the offense.

If it was the legislative intent to define the same offense in the revised as in the former statute, the revision must be fairly susceptible of the construction placed upon the former. This could only be effected by making the revised section legally equivalent to the former; that is, in legal effect, the two sections must be equal.

It is an axiom, that things which are equal to the same thing are equal to each other. Now, under the former statute, an indictment, wanting the element in question, was bad, because its terms were not equal to those of the statute. Then, by parity of reason, the revised statute, also wanting this element, is not equal to tho former statute, and does not describe the offense it seeks to define.

The legislature, while they intended to perpetuate this law, *497have really stricken, ont its vital part, and have completely emasculated it.

But, if I am wrong in the opinion that the legislative intent was simply to perpetuate the old law; if the lapsus complained of cannot be attributed to accident, and if the intent was to create and define a new offense, then I submit that the law is in excess of the legislative power. Const, art. 1, § 19; Const, art. 12, § 1.

The claim' in brief is this: Can the legislature punish, severally, a series of sales, because they violate' a certain statute, and then punish the keeping of the place where these sales were made, because they violated the same statute, and regardless of the character of the place kepi ?

It there is nothing in the character of the place to give to the traffic some kind of turpitude, different from or in addition to, the unlawfulness already punished, then it is double punishment. It is punishing the same violations severally, and then in groups.

If the only “ evil ” provided against by section 6942, is an aggregation of evils otherwise punished, it is cumulative and duplex.

Mr. Train finds the legislative authority for this enactment in section 1, article 2, of the constitution. We think the only authority is in section 18 of the schedule. The power delegated by section 1, article 2, is all the legislative power of the state, less the inhibitions. It could not be enlarged by further express grant. Hence section 18, schedule, can operate only as a qualification or limitation. It must be construed as limiting the legislative power to such enactments as it authorizes; that is, to “provide against evils resulting from the traffic.”

But the only “evil” provided against in section 6942 is the repeated violation of other laws having their own penalties. There being no other “ evil ” described in the section, it imposes a second punishment for the same offense.

II. Sections 6941 and 6942 of the Revised Statutes, under which the indictment was drawn, are unconstitutional and void because the act to consolidate the general statutes of Ohio is so, *498for the reason that is in contravention of article 2. section 16, of the constitution.

A. W. Train, for the state:

The vital question in the case is one of legislative power. The question may be stated in this form: Has the legislature power to punish the keeping of a place—any place where intoxicating liquors are habitually sold in violation of law ?

The power of the people of the state, except "as limited by federal law, is,. like the power of the British parliament, omnipotent. All governmental functions are either legislative, judicial or executive. The people, by the constitution, have delegated the legislative power of the state to the general assembly. All the limitations to this grant are to be found in the constitution itself. The items of legislative power granted :are not specifically enumerated in the constitution. “ This,” «ays Ranney, J., in 1 Ohio St. 85, “ must therefore always be (determined from the nature of the power exercised. Tf found it® fall within the general terms of the grant, we can only look £® ábe other parts of the constitution for limitations upon it; if none .are there found, none exist.” See State v. Covington, 29 Ohi. St. 77; Lehman v. McBride, 15 Ohio St. 591, 592.

That the nature of the power here exercised falls within the general .terms of the grant, cannot be questioned; and it follows that the act in question is within the power delegated to the general assembly, unless there is something in the constitution prohibiting it. The only section of the constitution claimed to be violated is section 19 of article 1. The act does not interfere with private property. The traffic in intoxicating liquors may be legitimate ; with such traffic, the act does not interfere. It is not the legal, but the illegal, traffic that the law abates. It does not interfere with the property of the guilty party, it only compels him to shut up his illegal business. I do not desire to discuss the question whether a conviction under section 6942 is double punishment. This court has already decided that punishment for keeping a-place is not punishment for an illegal sale; and that a conviction under one is no bar to a prosecution under the other. Miller v. State, 3 Ohio St. 475.

*499That the legislature has the authority to punish any person who keeps any place where intoxicating liquors are habitually sold, in violation of the law, we have already shown.

May the legislature also provide, that upon the conviction of the keeper of such a place, the place may be abated ? I know of no such limitation on the legislative power, contained in the constitution, that the legislature may not do this unless the place is a place of public resort.

This court decided, Morgan v. Nolte, 37 Ohio St. 23, that the only limitation to the creation of offenses,- by the general assembly, are the guaranties contained in the bill of rights. The power of the legislature to make it an ofíense- to maintain a place where law is habitually violated, is ample, whether the place be a public or a private one.

Under section 18 of the schedule, it is claimed, that because no mode of interference with the traffic has been prescribed, the power delegated can be exercised only by such modes as are recognized and authorized by the settled rules of law. This proposition is wholly untenable. The mode of providing against the evils, what results amount to evils to be provided against, and the extent of the provisions against the evils, are all, by the constitution, left to the discretion of the legislature. This court has never intimated that the act of May, 1854, was the full measure of the legislative power conferred by said schedule 18.

This court will not undertake to say, against the judgment of the legislature, that if any one keeps a private room where certain designated persons only can come, and there habitually sells intoxicating liquors to be there drunk, that no evils result from such traffic, against which the legislature may constitutionally provide. To limit the power of the legislature to the abatement of places of public resort, would encourage secret tippling that would be as injurious to the public health and the public morals, as the maintenance of open and notorious tippling-houses. Whether the evils resulting from the one or the other, or both, shall be provided against, the legislature, and not this court, must decide.