The Belmont chronicle, and farmers, mechanics and manufacturers advocate. [volume] (St. Clairsville, Ohio) 1848-1855, 1855-02-01
SUPREME COURT OF OHIO.
JAs. II. SMITH, OFFICIAL RIpoarEH |
SATURDAY, January 20, 1855.

Judges.
! No. las. Frederick Miilar y. The Stale.
In error to the Probate Court Of Clermont
county.
I No l79. Leri GibssA u TIE State. In
Error to the Probate Court of Union county.
/ The plaintiffs in error were prosecuted for
violations of the 4th section OF the act Of
May ], 1854, entitled, IAN act to provide
against TIE evils resulting from the sale Of
intoxicating Liquors in the State Of Ohio"
which section provides: THAT all places
where intoxicating liquors are sold in viola.
! tion Of this act, shalt be taken, held, and de-.
clared t. be common nuissnces, aud slI
rooms, taverns, eating houses, bazaars, res
taurants, groceries, coffee-houses, cellars, or
other places Of public resort, where inioxica-
! ting liquors are sold in violation of this act,
shall be shut up and abated as public nuis.
ances, upon the conviction OF the keeper
thereof, who shall be punished as herei natter
( provided"
Being convicted they were, respectively
sentenced to pay fines and Oe imprisoned, ),
and orders made that the rooms by them kept
should be shut up until bond and security
should oe given pursuant TO the 9Th section
of said act. To reverse which sentences
and orders these writ were brought.
THURMAN, C.J., delivered the opinion Of
the Court. Held
l. That for aught that appears in the
ournals OF the Senate and House OF Repre-
sentatves Of the General Assembly, the &C,
, of May /, 1854, entitled, "An Act to pro-
vide against the evils resulting from the
sale of Intoxicating liquors in the State Of
| Ohio,', was csnstiintionaly enacted.
2. That the provision Of the Constitution
(Art. 2. Sec. lO0 that, Every bill shall be
fully and distinctly read on three different
days, unless, in case Of urgency, three fourths
OF the House in which it shall be pending
81 all dispense with the rule does not require
that every amendment to a bill shall be read
three times.
s. Every reasonable intendment is to be
in favor OF the proceedings of the Legislature.
1t is not to be presumed that the Assembly,
! or either House of it, has violated the Consti-
tuition. When, therefore, it appears by the
journals, that bill was amended by striking
cut all after the enacting clause and insert
ing "new Bill" SO called, it cannot be pre-.
numed that the matter inserted was upon a
different subject from that stricken out; espe-
cially when the matter inserted is consistent
with the title borne by the bill before such
ame ndment. This is the more obvious since
the Constitute IN provides that, "No bill shall
contain more shan one subject which shall
be early expressed in its title. (Art. 2, Sec.
fo.) Nor does the fact thst the inserted
matter is called "new Bill" prove that it
was not an amendment.
4. No bill can become law without re-
ceiving the number Of votes required by the
Constitution, and if it was found, by an in
spection Of the Legislative journals. that
what purports to be law upon the Statute
book was not passed by the requisite number
Of votes, it might, possibly, be the duty of the
Courts to treat it as nullity. But it does
not follow that an act tina: was passed by a
constitutional majority is invalid, because,
in its consl lerution, ,he Assembly did no!
strictly observe the mode Of pro csdure pre-
scribed by the Constitution. There are pro-
visions in that instrument that are directory
in their character, the observance Of which
by the Assembly is secured by their sense Of
duty and official oaths, and not by any SUPER
visory power of the courts.
| 5. Neither the lst, Cd, Sd, 4th or 9th sec.
tions of the act under consideration, proper
ly construed, is repugnant to the Constitu-
ton. In saying this, we do not mean to af-
firm that the legislature has the power to
wholly prohibit traffic in intoxicating liquors
in this State. Without deciding whether
the Assembly has any power over this sub
ject in virtue of the general grant OF legisla-
tive power in Sec l Of Art. 2, Of the Con-
stitution, we hole that the enactment Of said
sections Of the law lie authorized by the ex-
press grant &C power in Sec. lS Of Art. Is,
| in these words: "No license to traffic in in
toxicating liquors shall hereafter be granted
in this State. but the General Assembly may
by law. provide against evils resulting there
from"
6. A violation ,of either of the lst, I'd or
3D., sections Of the act, subjects the offender
to the penalties mentioned in the first clause
of Sec. 8. 1t is not necessary, in order to
incur these penalties, that all three sections
| be violated.
7. If sale violate ali three sections, the
offender may be prosecuted under either Of
them; and his conviction. or acqutta, will
bar a prosecution, for the same sale, under
either of the other two sections.
| 8. But a convction,or acquittal, under the
! Ist, 80 or cd sections Is no bar to a prosecu-
tion under the 4th.
! 9. To convict for a violation Of the I'd
section, it is ne cessary to aver in the infor-
nation, and prove on the trial, that the seller
knew the buyer to be a minor; and to con-
vict for a violation Of the Sd section it is ne
cessary to aver and provo in like manner F.,
that the seller knew the buyer to be intoxi-
Gated, or in the habit Of getting intoxicated.
lBirney's case, so. R aa7, followed and
approved)
10. To convict for violation Of the 9Th
section, it is necessary t, aver in tie in for
! nation, and prove on the trial, that the place
where the liquor was sold, was place o.
public resort. And the proof must also show
that it was place where liquors were hab
{ ually sold in violation OF the act. A sin
gle sale does not make the place nuisance
or the seller "keeper," within the mean
ing of the act. A series Of sales is necessa