(First Circuit — Hamilton Co.,O., Circuit Court

Jan. Term, 1898.)

Before Cox, Swing ond Smith, JJ.

#### CHARLES B. SNELL v. THE CINCINNATI STREET RAILWAY COMPANY.

*Change of venue*— Application *under sec. 5033, R. 8.*— Error *to he prosecuted in six*months—

(1.) An application,under sec. 5033, R. S.,for a change of venue to an adioining county, on the ground that the opposite party is a corporation having more than fifty stockholders in the county, is a special proceeding, and a refusal to grant such an order affects a substantial right, and error thereto must be prosecuted within six months.

*Constitutionality of see. 5033, R. S.*

(2.) In the opinion of a minority of the court, section 5033, providing for a change of venue in a suit against a corporation having more than fifty stocknolders in the county, is unconstitutional.

Error to the Court of Common Pleas of Hamilton county-

The plaintiff in error in this case asked that the judgment of the common pleas court in favor of the defendant in error be reversed for error in refusing a change of venue to an adjoining county, pursuant to the provisions of section 5033 of the Revised Satutes of Ohio. At the first trial of the case in the common pleas there was an instructed verdict for the defendant. Error was prosecuted, and the circuit court reversed the common pleas, and the supreme court affirmed the circuit court. At the second trial in the common pleas there was a hung jury, and the plaintiff thereupon filed his motion and affidavits, under section 5033, for a change of venue, which motion was denied. The trial again proceeded, and there was a verdict for the defendant. From the final judgment thus obtained by the defendant, error was prosecuted by the plaintiff on the sole ground that the common pleas court erred in denying the plaintiff in erorr a change of venue.

Swing, J.

Judges Cox and Swing are of the opinion that the provision of the statute by which it was sought to change the venue ,in this case, is a special proceeding within the meaning of section 6707, R. S., and that the judgment or order *634of the court in refusing to grant the change of venue was an order affecting a substantial right in said special proceedings, and therefore proceedings in error could only be prosecuted within six months from the rendition of said judgment, and the proceedings in this court having been brought long after six months from the rendition of the judgment, this court is without jurisdiction, and therefore the petition in error must be stricken from the docket.

*John W. Wolfe*and *Thomas L, Michie,*for Plaintiff in. Error.

*Paxton, Warrington & Boutet,*contra.

Cox, J.

1. The first motion having been overruled,and no exception taken or filed within the time allowed by law, was decisive of the case, and the second motion being for substantially the same reasons as the first, should have been stricken from the docket.

2. Said law is in my opinion unconstitutional in that it does not afford equal protection to all, as required by 2d section, Bill of Rights, and 1st section, 14th Amendment to United States constitution. I think it comes within the principle laid down in the case of State ex rel. v. Ferris, 53^ Ohio St., 814. It provides that the venue can be changed on application of the opposite side when the corporation has fifty stockholders resident in the county. But if a corporation has only forty-nine stockholders,- it is not subject to the law. There seems to me to be no reason for this-discrimination.