The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-11-25
LYNCHING REMEDY.
The Ohio Law Held Constitutional by
a Circuit judge.

The Iynching of negro at Urbana last
year resulted in a suit under the anti-lynch
law of Ohio, by the administrators of the
victim, against the Champaign County Com
missioners, to recover $1,000 for the next of
kin. The Court of Common Pleas held the
law unconstitutional and the case was car
ried to the Circuit Court, which, sitting at
Urbana at the October term, reversed the
first decision. Judge Wilson, of Sidney,
who rendered the opinion, in passing upon
the case, said in part as follows:
This is an action under the recent stat
ute authorizing suit to be brought by the
next of kin to recover the sum of 5000 for
the death of a person occasioned by mob
violence. The court has been slow to reach
a conclusion. because of the Importance of
the case, and because it has been necessary
to examine numerous authorities. 1t has
also felt constrained to align ITSELF if pos
sible with the decisions of the other courts
Of the State upon the same question.
1.-THE Common Pleas Court of Cuyahoga
county and the Circuit Court of the Sixth
circuit, as we'll as the court which passed
upon this case, have held the statute under
which the case was brought to be unconsti-
tutional. The grounds upon which 1t has
been so held are:
"EirSt-BecauSe 1t is the exercise OF judi
cial power by the Legislature
''Second-It is the taking OF private prop
erty without due process of law
In the Cleveland cases 1t was also heio
to be the use of the taxing power for private
emolument. Whether or not the statute is
subject to any of these constitutional in
f1rmities depends upon the purpose INTENDED
to be subserved by its enactment. III IL SIM
ply undertakes to give to private persons
a right to recover for the pecuniary injury
they may suffer by reason of the death OF
relative from mob violence, the statute fix
ing the amount of the recovery, and That
being. the sole purpose OF the statue ~
that it determines without the Intervention
of a jury the extent of the injury and the
amount in damages; and 1t would be open 10
the other objections as we'll. If. however,
it be not the main purpose of the act TO
give the right and fix the amount of re-
soyery to private person s MN s snGh coIecf
a penalty from a community which mas
failed to prevent mob violence, 1t subServes
a public purpose-the preservation ana pro-
lection of life and property, to which end all
laws are enacted-and would be an exercise
of the police power of the government, not
''The court below on passing upon the de-
murrer to the petition, which was sus-
tanned, seems to have taken for granted
that this legislation was of the former class,
providing private remedy and subscribing
no public end, and that the recovery Is in
damages not in the nature of penalty.
Of course, having that view of the law, the
conclusion of the court below would be cor
rect: but the real question is whether or not
that is the view to be taken of this act,
looking to the evil which the Legislature
sought to remedy, and the end to be ac-
complished"
After citing a number of authorities at
length on the subject, Judge Wilson con-
cluded:
Legislation of this nature, whether. it
fixes a right to recover for the destruction
of property or injury to the person or for
the death of a person occasioned by mob,
is not enacted for the sole purpose or CIV
.~srrI h &c II
ages, but is primarily the assessment of a
fine upon political subdivision of the State,
such as a county, for It's failure in the ex-
ercise of the duties of good citizenship to
prevent riot and suppress mob violence. The
object OF the statute in question is to sub
serve such public end, and is the exercise
which is wholly within the province of the
LEGISLATURE. The amount fixed by the
statute as being recoverable by the admin
istrator of the deceased party for the next
of kin is not damages but a penalty, the
extent of which the Legislature in its wis
dom may determine. There Is no occasion
for an inquiry of damages. 1t must be pre-
sumed that the Legislature has fixed upon
such amount as it deemed sufficient to make
vigilant in the enforcement of the law and
in the detection and prevention of crime.
Under the right provided for the recovery
of damages for death caused by negligence
reason for an inquiry of damages. The
parties can recover only to the extent of
tnelr pecunldry INJURY, put unuer TINS
statute fixed amount is made payable to
the next of kin regardless of whether they
are pecuniarily injured or not. 1t IS not
because they are damaged that they receive
it, but because this penalty which the
statute places upon the community must be
disposed of in some way, and the Legisla-
ture has seen fit to cast 1t upon the next of
kin.
1T would be anomalous to say that the
county has the right to be heard on the
question of damages. A jury from the COM
munity which tolerated the mob would be
apt to find the life which was taken worth
less, and Ii would follow that pecuniarily
worthless life could be taken by mob with
impunity. This would defeat the object of
the law and render life cheaper than prop
erty.
For these reasons we hold the statute
to be constitutional, and the demurrer will
be overruled."