Tbe plaintiff seeks to' recover damages claimed to have been sustained and occasioned by the negligence of the defendant in the operation, control and management of his automobile, in the sum of $117.75.
Summons was issued to the sheriff of the county of Montgomery, and service duly made upon the defendant in said Montgomery county, as provided for in Section 33 of an act to provide for the registration, identification and regulation of motor vehicles. (99 O. L., page 538.)
*271The defendant now comes, without entering his appearance in this action, and without submitting himself to the jurisdiction of this court, but appearing for the purpose of his motion only, and moves the court to set aside the service of summons because the court has no jurisdiction over the person of the defendant.
The motion to vacate the summons is based upon two grounds:
First. That the case pleaded does not come within the act.
Second. That the act is unconstitutional.
As to the first ground the reason stated is, in effect, a demurrer to the petition. Whether or not the petition is open to a motion to make more definite and certain need not here be determined. The merits of the case on the petition could only be considered, after the defendant has come into court, and whether or not that would be too late to raise- the question of jurisdiction is one of the complications that arises by reason of this peculiar provision of the law. It would probably be the -duty of the court if, upon the final determination of the case, the fact of the negligence of the defendant was not established, so as to bring the ease within the 'provisions of Section 33, to direct a verdict for the defendant, if the defendant had continued to protest the jurisdiction of the court.
The motion on the first ground claimed should be overruled,
The determination of whether or not the second ground — that is, that-the act is unconstitutional under which this case is brought — is more difficult of satisfactory solution.
It is claimed by the plaintiff that the question as to the court’s jurisdiction can not be raised on motion to set aside the service, but should be raised on answer or demurrer.
“Tn order to enable the defendant to object to the jurisdiction of the court over his person, the objection must be made at the earliest opportunity of the party.” (57 O. S., 348.)
The question sought to be raised by the defendant, by his motion, is the constitutionality of the section which permits service of summons to be made in another county, and while possibly the question of the constitutionality of Section 33 should be raised by overruling the motion to set aside service *272of summons, and the defendant submitting a general demurrer upon the ground that the court has no jurisdiction over the person of the defendant, yet, for the purposes of this case the court- will undertake to determine this question as to the constitutionality óf that act upon the motion under consideration.
A statute that imposes a restriction on one citizen, or class of citizens only, denies to him, or them, the equal protection of the law. (53 O. S., 23.)
This proposition might be stated in another form- — that a statute which creates a burden and subjects one citizen, or, class of citizens only, to certain liabilities and requirements, to respond to a suit in any county in a state, which is required of no -other class, is a denial to them of the equal protection of the law.
If Section 33 had provided that all persons operating motor Vehicles should be liable to a suit in any county in the state where the injured party might reside, as defined by Section 1, then it would be to determine whether from the exeptions made in Section 1, -there was an arbitrary and unjust discrimination. But .Section 33 provides that the owner of an automobile only may be subject to a suit for negligence in any county within the state where the injured party might happen to reside.
That the owner of one kind of motor vehicle should be held to respond for damages different from that of the owner of another kind of motor vehicle, seems to be an unjust discrimination without any reason or basis. And the argument might be carried further. Why should one party, injured by a motor driven vehicle, through the' negligence of the owner, have any greater privilege in enforcing his action for damages than- if he were injured on the highway by .a horse .and buggy, or wagon or any other vehicle driven by motor power, or horse' power, which has an equal right upon the public highway. There would be just as much reason to say that a man who was injured by a two horse carriage should have certain rights of action for damages in case .of injury from negligence, that would not be given to a one horse buggy, through an accident of the same character.
*273It seems to me that the proposition is determined in Coal Co. v. Rosser, 53 Ohio State, 24:
“We do not think the General Assembly has power to discriminate between persons, or classes, respecting the right to invoke the arbitrament of the courts in the adjustment of their respective rights.”
It is my judgment that the classification and discrimination made by the provisions of Section 33 as regards the proceedings against the owner of any automobile for negligence, is arbitrary and unjust, and is a classification which is not founded upon good reason.
Any unjust and arbitrary classification in legislation which imposes an unjust burden upon any single class of citizens is a depriving of them of due process of law under the Gonstitution, and the same is not the law of the land, and the Legislature was without power to enact such legislation, and the same is unconstitutional and void.
And it being my opinion that the provisions of Section 33 of the motor vehicle act is unconstitutional and void, and said section being the section which provides for the summoning of the defendant in this action to answer in a county other than the county of his residence, the motion to set aside the service in this case should be sustained.