The Ashland union. [volume] (Ashland, Ashland County, Ohio) 1854-1868, 1855-01-31


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SATuRDAY, January 20, 1855.
Present-THuRMAN. Chief Justice,
and RANNEY, BARTLEY, WARDEN, and
KEENoN, Judges.
State. In error to the Probate Court
of Clermont county.
No. 179. Levin Gibson v. The State.
In error to the Probate Court of Union
county.
The plaintiffs in error were prosecu-
ted for violations of the 4th section of
the act of May /, 1854, entitled, "An
act to provide against the evils resulting
from the sale of Intoxicating Liquors
in the State of Ohio T" which section
provides: "That all places where in
toxicating liquors are sold IN violation
of this act, shall be taken, held, and de-
clared to be common nuisances and all
rooms, t~aFerns, eating houses, bazaars,
restaurants, groceries, coffee-houses, eel
lars, or other places of public resort,
whore intoxicating liquors are sold in
violation of this act, shall be shut up
and abatsd as public ~nuisances, upon
the conviction of the keeper thereof, who
shall Be punished as hereinafter provi-
ded."
Being convicted, they were, respective
ly, sentenced to pay fines and be impris-
oaed and orders made that the rooms
by them kept should be shut up until
bond and security should be given pur-
suant to the 9Th section Of sail act. To
reverse which sentences and orders these
Writs were brought.
THURMAN, @. j., delivered tho opin-
ion efthe Court. Held
/. That, for aught that appears in
the journals ofthe Senate and House OF
Representatives of the General Assem-
bly,, the act of May 1, 1854, entitled,
"An act to- provide against the evils
resulting from the sale Of Intoxicating
Liquors in the State of Ohio" was con-
stitutionalIy enacted.
2. That the provision of the Constitu-
ton fart. 2, sec. ICY 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 shall dispense
with this rule" dose not require that
every amendment to q bill shall be read
three times.
8. Every reasonable intendment is to
be made in favor Of the proceedings Of
The Legislature. It is not to be prcsum-
ed that the Assembly, or either House
of It, has violated the Constitution
When, therefore, it appears by the
Journals, that a bill was amended by
striking out all after the enac,ing clause
and inserting a "new bill" so called, it
cannot be presumed that the matter in
serted Was upon q different subject from
that striker out especially when the
matter inserted is consistent with the
title borne by the bill before such amend
ment This is the more obvious since
che Constitution provides that, No bill
shall contain more than one subject,
which shall be clearly expressed in its
title" (Art. 2, sec. I6.) Nor does
The fact that the inserted matter is call
Cd . "nev bill " prove that it was not
an amendment.
4. No bill can become a law without
receiving the number of votes required
by the Constitution, and if it was found.
by an inspection of the Legislative
journals, that what purports to be q
law upon the statute book was not pass
ed By the requisite number of votes, it
might, possible, be the duty of the Courts
to treat It as q nulity. But it does not
follow that an act that was passed by a
constitutional majority is invalid, be-
cause, in its consideration, the Assembly
did not strictly observe the mode of
procedure prescribed by the Constitu-
ton There are provisions in that in
strument that + 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
supervisory power Of the Courts.
8. Neither the LIST, I'd, Sd, 4th or
9th sections of the act under considera.
tion, properly construed, is repugnant to
the Constitution. In saying this we do
not mean to affirm that the Legislature
has the power to wholly prohibit the
traffic In intoxicating liquors in this
State. Without deciding whether the
Assembly has any power vel this sub
ject IN virtue of the general grant of leg
i~slatiye power in sec. l of art. 2 of the
Constitution, We hold that the enactment
of said sections of the law is authorized
by the express grant Of power in sec. 16
Of art. l6, In these works; mo license
60 traffic in intoxicating liquors shall
hereafter be granted in this State, but
the General Assembly may, BY law, pro-
side against evils resoluting therefrom.n
6. A violation of either Of the LIST, I'd
or Sd sections of the act, subjects the
offender to the penalties mentioned in
che first clause of sec. 8. It is not nee
essary, in order to incur these penalties,
that all three sections be violated.
r. If a sale violate all three sections,
the offender may be prosecuted under
either of them and his conviction, or
acquittal, will bar q prosecution, for the
same sale, under either Of the two sec
tions.
g. But a conviction, or acquittal, un-
der the LIST, I'd or Sd sections is no bar
20 q prosecution under the 4th.
9. To convict for a violation of the
I'd section, it is necessary to yer in the
information, and prove on the trial, that
the seller knew thebuyer to be a minor
and to convict for a violation of the Sd
section it is necessary to aver and prove,
in like manner, that the seller knew the
buyer 10 be intoxicated; or in the habit
of getting intoxicated. (Birney's case,
8 D. R, 237, followed and %approved.)
10. To convict for a violation of the
4th section, it is necessary to aver in the
information, and prove on the trial, that
the place where the liquor was sold, was
1Lnce of pHbAc resort. And the