Fremont journal. [volume] (Fremont, Sandusky County [Ohio]) 1853-1866, 1855-01-26

NolamOus, Jan. 20.
Preseut-Thurnan, Chief Justice, and
Ranney. BARLEY, Warden, and Kennon,
Judges. -1i2 - 40.
: No. las. Frederick Miller v. TIE STATE.
40 error TO the Probate Court of Clermont
county.
= No'lz9. Esvia Gibson v. The State. In
error to tie Probate Court of Union Co.
goThe plaintiffs 10 error were prosecuted
fer violations of the 4th section of the act of
May l. 1854. entitled, IAN Act to provide
against the evils resulting from the the sale
OF intoxicating liquors in The State of Ohio p
which section provides: "Tbat all places
where Intoxicating liquors are sold in vio-
latlon OF this act. shall be taken, held and
declared to be common nuisanees, and all
rooms, tayerns, eating houses, bazzars, res
tsurants, groceries, coffee houses, cellars, or
other places of public resort, where intoxi-
eatlng liquors are sold in violation of this
aet. shall be shut up and abated as public
nuisances. dpen the conviction of the keep
er thereof who shall be punished as here
matter provided H .,-r
Beng convicted. they were respectively,
sentenced 10 pay fines and be imprisoned
and'orders made that the rooms by them
.kept should be shut up until bond and Sc
curity should begiVen pursuant to the sih
section Of said act. To reverse which SEN
tences and orders these writs we're brought.
Thurman, @. j, delivered the opinion Of
the Court Held
l. That, for ought that appears in the
journals of she Senate and House of Rep
resentatives of the General Assembly, The
act Of May /, 1854, entitled, San Act to
provide against the evils resulting from the
sale of Intoxicating liquors in the State Of
Ohio" was constitntionally enacted
2 That the provision of the Constitution
TART l, Sec. l6.) that, "Every bill shall be
fully and distinctly read On three different
days unless in case of urgency, three
fonrths of the House in which it shall dis
pense with this rule" does not require that
every amendment TO bill shall be read
three times
8. Every reasonable iDtendment is to be
made 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 Constitution. When therefore,
il apears by the journals that a bill Was
amended by striking out all after the enac-
ting clause and inserting a "new Bill" so
called, it cannot be presumed that the mat
ter inserted was Hpon 7 different subject
from that stricken out; especially when the
matter inserted is consistent with the title
borne BIZ she bill before such amendment.
This is the more obvious since the Consti-
tuition provides that, "No bill shall contain
more than one subject which shall be clear
ly expressedlnits tide" [Art 2, Sec Ie)
Nor does the fact that the inserted matter
is called q aneW Bill'' prove that it vas not
40 amendment.
4. No bill can become a law without re-
ceiving the number ofvotes require d by the
Constitution. and if it was found, by an in-
spection Of the Legislative journals, tha:
what purports to be law upen the Stat
nte book was not passed by the requisite
number of votes, il might, possibly, be the
duty Of the Courts TO treat il as a nuliity.
But It does not follow that an act that was
passed BY constitutional majority is inval-
ID, because, in its consideration, the Assem-.
bly, did not strictly observe the mode of pro-
Oedure prescribed by the Constitution
There are provisions in that instrument that
are directory in their character, the observ-
ance Of which by the Assembly is secured
by their sense of duty. and official oaths,
and no! BY any supervisory power of the
courts. -a
5. Neither the 1st, I'd, Sd, 4th or sth
sections of the act undeI consideration,
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 traffic in intoxica-
ting liquors in this Stale. Without deciding
whether the Assembly has any power over
this subject in virtue of the general grant
Of legislative power in Sec. Of Ask 2, of
the Constitution, ne hold that the enact.
ment Of said sections Of the law is authoriz.
ed by the express grant Of power in Sec
l60f Ara 1e. IN these words: mo licence
70 traffic in Intoxicating liquors shall here
after be granted in this State, but the Gen
sFal Assembly may, by law, provide against
evils resulting therefrom."
O. A violation of either of the Ist, I'd or
Sd, sections of the act subjects the offend
eF to the penalties mentioned in the first
clause of Sec 8. 1t is not necessary in or
der to incur these penalties, that all three
sections be violated
~. If a sale violate all three sections, she
offender may be prosecuted under either of
them; and bis conviction, or acquital, will
bar prosecution, for the same rule, under
either of the other two sections.
8. But conviction, or acquittal, under
the 1st, I'd or 81 sections is no bar TO
prosecution under the 4th.
Q. To convict for a violation of the 2d
section, it is necessary TO aver in the infor-
NATION, and prove on the trial, that the sci
Ter knew the buyer TO be minor; and to-
convict for violation Of the 81 section il is
necessary to aver and prove 10 like manner
that the seller knew The buyer to be intox
icated, or. in the habit Of getting intoxicat
ed. (Burney's case, OR. 237, fOlloSed
and approved
TO- To convict FOR violation Of the 4lh
seetien, it is. necessary 10 aver in the iDfdr-
matioa, and prove on the trial, that lie
place where the liquor was sold. vas n
place oFPa5iic reFoFt Aud the proof must
also show that it was place where liquors
were ka6itaally sold in violation of the act
A single sale does not make the place a
i5,ssiaanea. or tba eallar a sh hnzpnr vSifhin