
    The State of Ohio v. French.
    
      Protection of fish — Legislature may provide for — Nets may he destroyed — Section 6968-2, Revised Statutes — Act of April 26, 1898 — Valid—Rights of property — Constitutional law.
    
    The legislature may provide for the protection of fish and to that end may declare nets set or used contrary to law a public nuisance and that they may he destroyed by wardens and other executive officers, and section 6968-2 of the Revised Statutes, as amended April 26, 1898 (93 O. L., 303), is not in that respect unconstitutional on the ground that it deprives the citizen of his property without due process of
    (No. 9038
    Decided January 3, 1905.)
    Error to the Circuit Court of Ottawa county.
    In November, 1898, certain fish nets, the property of the defendant, set in one of the bays or estuaries of Lake Erie in this state, were destroyed.
    On May 10, 1902, the general assembly passed an act entitled “An act to authorize claimants for damages and rebate of license fees under an act passed April 26, 1898, entitled ‘An act for the further and better protection of fish and game’ (O. L., v. 93, 303-307), to sue the state of Ohio.” (95 O. L., 498.) The act authorized a suit against the state by any resident whose nets had been destroyed under authority of the act of April 26,1898, entitled “An act for the further and better protection of fish and game” (93 O. L., 303), for such damages as he may have sustained not exceeding the value of the property destroyed providing the act (last referred to) should be declared in violation either of the constitution of Ohio or of the United States.
    The defendant brought suit averring the summary destruction of his nets by a deputy fish and game warden under said act of 1898 and that said- act is void because in contravention of the constitution of Ohio and of the constitution of the United States in that it authorized the taking of property without due process of law.
    The act of April 26, 1898, entitled “An act for the further and better protection of fish and game” (93 O. L., 303), among other matters provides, “Any net, or any other means or device whatever for taking or capturing fish, or whereby they may be taken or captured, located, set, put, floated, had, found or maintained, in or upon any of the water or streams of this state, or upon any boat engaged in fishing in any waters of this state, in violation of any law enacted for the protection of fish, is hereby declared to be, and is, a public nuisance, and may be abated and summarily destroyed by any person. And it shall be the duty of every game warden, deputy game warden, sheriff, constable, or other police officer, to seize and remove, and forthwith destroy the same; and no action for damages shall lie or be maintained against any person for or on account of any such seizure or destruction. ’ ’
    The state filed an answer containing two defenses: First, that the act of 1902 was unconstitutional; and second, a general denial.
    The trial court held the act of 1898 unconstitutional, and French recovered a judgment for the value of his nets. The circuit court affirmed the judgment and error is prosecuted to this court.
    
      Wade II. Ellis, attorney general, and J. M. Sheets, for plaintiff in error.
    (1) There is no evidence to support the verdict of the jury and the judgment thereon.
    
      (2) The act of May 10,1902 (95 O. L., 408), is an unconstitutional enactment.
    This act, which purports to confer upon residents, of the state of Ohio the right to sue the state to recover for loss of nets or for license fees paid, is in conflict with the provisions of article 1, section 2, article 1, section 16 and article 2, section 28 of the constitution of Ohio; also is in conflict with the provisions of article 4, section 2 of the constitution of the United States; and is in conflict with section 1 of the fourteenth amendment to the constitution of the United States.
    These several provisions guarantee to all persons equal protection of the laws, and the same right to' appeal to the courts for redress of grievances. Hence the act of May 10, 1902, which limits the benefits of its provisions to residents of the state of Ohio, is in conflict with these constitutional guarantees. Cooley,. “Principles of Constitutional Law,” 187; Story on the Constitution, sec. 1806.
    Counsel for defendant in error sought in the courts, below to answer these arguments by drawing a distinction between the word “citizen” and “resident,” for the reason that article 4, section 2 of the constitution of the United States uses the word “citizen” while the statute in question uses the word “resident.”
    In a great majority of instances this is a distinction without a difference. A citizen of another state is in almost every instance a nonresident of Ohio. If then, counsel is right in his contention that using the word “resident” in the statute instead of the word “citizen” frees it from constitutional objection, all a state seeking to deny the right of citizens of other states to appeal to her courts for redress of griev.anees, would be to enact a law to the effect that its •courts should be open to nobody but residents of the estate for redress of grievances.
    The act of May 10, 1902, is retroactive, consequently in conflict with article 2, section 28 of the constitution of Ohio, which provides that “the general .assembly shall have no power to pass retroactive laws. ’ ’
    It is needless to say that the state is as much protected by the provisions of the constitution as are the people, and that the act in question is a clear effort to create an obligation against the state where none existed before. Rairden v. Holden, 15 Ohio St., 207; Railway Co. v. Commissioners, 35 Ohio St., 1; Cooley’s Constitutional Limitations, 528
    "VVe deem it unnecessary to accumulate authorities upon the subject for the reason that the proposition is too well settled.
    Take then the act under review; the state of Ohio was under no obligation either legally or equitably to pay fishermen for nets destroyed by the game wardens and their deputies. If the law authorizing the game wardens and their deputies to destroy nets found in illegal fishing were held by the courts to be unconstitutional, the only remedy of the fishermen, whose nets were destroyed, would be an action for damages against the wardens and their deputies: The state of Ohio is a stranger to the transaction. With as much propriety could the legislature undertake to pass a law authorizing those who sustained such damages to sue Ottawa county as to sue the state of Ohio. As well might the legislature have passed an act authorizing all residents of the state ■of Ohio, who had sustained losses in some particular railroad wreck to sue the state for the losses thus-sustained.
    In answer to these arguments it was claimed in the-courts below that as the legislature1 might have appropriated money to pay the claims of any or all of the persons whose nets were destroyed, the power to-authorize these same persons to sue the state for these claims can not be questioned. But has the legislature the constitutional power to appropriate the general revenues of the state to such purpose? - In other words, has the legislature the power to make a. donation of the revenues of the state?
    We think these questions are answered in article 1,. section 2 and article 12, sections 4 and 5 of the-constitution.
    If government is instituted for the ‘ ‘ equal protection and benefit” of the people as is provided in article 1, section 2, then the legislature cannot enforce contributions from the people in the form of taxes to be used in making donations to the persons-it may select as the recipients of its bounty.
    The power of the legislature over the revenues of the state is further limited by the provisions of article 4, section 5, of the constitution, which provides that, “No tax shall be levied except pursuant to law; and every law imposing tax shall state distinctly the object of the same, to which only, it shall be applied.” Debald v. Trust Co., 1 Ohio St., 563.
    These principles are elementary and need no-' elaboration. Hence it follows as a necessary conclusion that as the legislature is limited in its power of taxation to “raising sufficient revenue to defray the expenses of the state, ” so it is limited in its power of appropriating revenues to paying the expenses of the state.
    
      The act of April 26, 1898 (93 O. L., 303), is a constitutional and valid enactment.
    The only part of this act which has been assailed and held to be unconstitutional by the lower courts is the provision declaring nets used in illegal fishing to (be a public nuisance and authorizing the abatement of the nuisance by a destruction of the nets. This provision is contained in section 6968-2, Revised Statutes.
    It is claimed by counsel for defendant in error that there is no material difference between this act and section 6968 as amended February 17,1892 (89 O. L., 26), which was declared unconstitutional in the case of Edson v. Crangle, 62 Ohio St., 49.
    In our view of the case there is a very material difference between the two acts. The act of April 26, 1898, declares nets used in illegal fishing to be public nuisances and authorizes their abatement by destruction, while the act of February 17, 1892, provided that nets used in illegal fishing “shall be confiscated wherever found and the same shall be sold to. the highest bidder at public outcry and the proceeds derived from such sale shall be placed to the credit of the fish and game fund;” but made no provision for condemnation proceedings.
    The act declaring nets used in illegal fishing to be a public nuisance and authorizing the summary abatement of the nuisance by a destruction of the nets so used, is but the application of the principles of the common law to a new subject. It is an elementary principle of the common law that a public nuisance may be summarily abated. And in abating such nuisance it may be done in such manner as is most convenient, even by a destruction of the property causing the nuisance.
    
      It will be observed that the statute in question is almost a literal copy of the statute of New" York on the same subject, which was held in the case of Lawton v. Steele, 119 N. Y., 226, to be a constitutional and valid enactment. That case was taken to the Supreme Court of the United States where the judgment of the court of appeals was affirmed. Lawton v. Steele, 152 U. S., 133; Bittenhaus v. Johnston, 92 Wis., 588; 2 Tiedeman’s Police Power, 761.
    
      Mr. George A. True, for defendant in error.
    The defendant in error contends:
    First: There is evidence to support the verdict of the jury and the judgment rendered thereon.
    Second: That the act of May 10, 1902 (95 O. L., 498), which provides that any resident of the state of Ohio, whose fishing devices were seized and destroyed by virtue of the act of April 26, 1898, etc., may sue the state of Ohio in its courts, etc., is a constitutional and valid enactment.
    Third: The act of April 26,'1898 (93 O. L., 303), which provides for the summary destruction of fishing nets is unconstitutional and void, being in conflict with section 16, article 1 of the constitution of this state and with article 5 of the amendments to the constitution of the United States.
    The act of May 10, 1902 (95 O. L., 498), is a constitutional and valid enactment.
    Briefly stated, the act provides that any resident of the state' of Ohio, whose fishing devices were seized, etc., may sue the staté of Ohio, in its courts * * * for the recovery of damages which resulted from any seizure, injury or destruction of any fishing devices, etc. No damages shall be included in the verdict or judgment to exceed thé' value of the property destroyed, etc., and it is made the duty of the attorney general of the state and the prosecuting attorney of the county to attend to all such suits on behalf of the state.
    This act is not in conflict with article 1, section 2, or article 1, section 16, and article 2, section 28, of the constitution of Ohio, nor is it in conflict with article 4, section 2 of the constitution of the United States, nor section 1 of the fourteenth amendment of the constitution of the United States.
    Since the adoption of the eleventh amendment to the constitution of the United States, a state of the Union cannot be sued by any private person without the consent of the state. Black’s Constitutional Law, 130. The same rule applies to the United States, which cannot be sued without its own consent. Black’s Constitutional Law, 129.
    The right to sue the state is not one of the privileges and immunities granted to the citizens of the several states by the federal constitution nor does it deny to any person within the jurisdiction of the state the equal protection of the laws, but is a mere consent or privilege which a sovereign state may give to an individual.' A state may waive this privilege and permit an individual to sue it and may prescribe the terms and conditions on which it consents to be sued and the manner in which the suit shall be conducted and may withdraw its consent whenever it may suppose that justice requires it. The state may give this consent to whomsoever it sees fit without violating any provisions of the constitution of the state or of the United States. Beers v. Arkansas, 61 U. S. (20 How.), 527; Ex parte State, 52 Ala., 235; Warder v. Commissioners, 38 Ohio St., 639.
    
      The state may grant to its own citizens the exclusive fishing privilege in the waters of the state and prohibit, under penalty, their use for fishing purposes by citizens of another state. McCready v. Virginia, 94 U. S. (4 Otto), 391.
    A state may prevent a citizen of another state from taking fish in the waters of the state. Massachusetts v. Manchester, 9 L. R. A., 236; Welsh v. Indiana, 9 L. R. A., 664; Blair v. Kilpatrick, 40 Ind., 315; Robinson v. Navigation Company, 2 L. R. A., 636.
    In this state we have various statutory provisions which discriminate between residents and nonresidents. Section 5441 provides that residents of the state may take advantage of the exemption of $500 in lieu of a homestead. Plaintiff in a divorce case must have been a resident of the state for at least one year. Marriage licenses are governed by residence. Statutes requiring nonresidents to give security for costs, compelling nonresidents to pay a license fee to take game in the state, statutes discriminating between resident and nonresident corporations, election laws, school laws, service by publication upon nonresidents, issuing attachments against nonresidents, etc.
    One cannot complain that a statute is not constitutional as being a denial of the equal protection of the law unless he belongs to one of the classes discriminated against. As a matter of fact there are no nonresidents of the state who had any fishing nets destroyed or paid the illegal license fees and there is, therefore, no one to be discriminated against. France v. State, 57 Ohio St., 1.
    The fact is that in this case there are no persons other than residents of the state who have had their fishing nets confiscated and destroyed and there are therefore no persons who can raise this question. Kansas City v. Railroad Co., 53 Pac. Rep., 468; Antoni v. Wright, 22 Grat., 833; Coffin v. Portland, 27 Fed., 412; State v. Snow, 3 R. I., 64.
    Said act of May 10, 1902 (95 O. L., 498), which authorizes this action against the state is not retroactive and is not in conflict with article 2, section 28 of the constitution of Ohio, which provides that “The general assembly shall have no power to pass retroactive laws.”
    This act does not create a liability but merely prescribes the mode of finding the amount due the claimant and prescribes the manner of allowing the claim. It requires another act of the legislature to appropriate money for the payment of the claims, by a two-thirds vote of the general assembly. Fordyce v. Godman, 20 Ohio St., 1 (Morgan Raid Case); State ex rel. Bates v. The Trustees, and State ex rel. Boyer v. Circleville, 20 Ohio St., 362.
    The inhibition contained in section 28, against the passing of retroactive laws, is absolute. “The general assembly shall have no power to pass retroactive laws. ” Yet, notwithstanding this denial of power to pass retroactive laws, the power of the legislature to pass laws to provide for and pay claims which have no legal foundation, is clearly recognized in section 29; provided such laws receive the assent of the requisite number of members of the legislative body.
    Article 2, section 29- of the constitution of Ohio provides “nor shall any money be paid or any claim the .subject-matter of which shall not have been provided for by pre-existing laws, unless such compensation or claim be allowed by two-thirds of the members elected to each branch of the general assembly.” 
      State ex rel. v. Hoffman, Auditor, 35 Ohio St., 435; New Orleans v. Clark, 5 Otto, 644; Warder v. Commissioners, 38 Ohio St., 643; State ex rel. v. Hoffman, 35 Ohio St., 435; State ex rel. v. Trustees, 20 Ohio St., 362; Board of Education v. McLandsborough, 36 Ohio St., 227; People ex rel. v. Burr, 13 Cal., 343; Beals v. Amador County, 35 Cal., 625.
    This act authorizing suit against the state places it with the judiciary to determine the extent and amount of the claim against the state. Board of Education v. State, 51 Ohio St., 531.
    We do not deny the power of the general assembly to inquire into the merits of any claim sought to be asserted through its agency, before granting relief to the claimant by legislative action. Not only has it such authority, but its exercise should be carefully and rigidly observed.
    Such investigation, subsequent determination and resulting action, however, do not estop the parties from appealing to those judicial tribunals of the country that have been established under our constitution and by it vested with judicial power of the state, and by our laws provided with an appropriate procedure to conduct such inquiries. Cooley’s Constitutional Limitations, 115, and cases cited; 3 Am. & Eng. Eney. Law, 681.
    If, in the case under consideration, the relator paid out money for the benefit of the respondent, for which, by some mistake, accident or error, he has never received credit, it is morally bound to make it good and this moral obligationils sufficient to support the statute in question. Lewis, Trustee, v. McElvain, 16 Ohio, 355; Trustees v. McCaughey et al., 2 Ohio St., 152; Burgett et al. v. Norris, 25 Ohio St., 308; Rairden et al. v. Holden, Admr., 15 Ohio St., 207; 
      Cass Township v. Dillon, 16 Ohio St., 38; State ex rel. Anderson v. Commissioners, 17 Ohio St., 608; Board of Education v. McLandsborough, 36 Ohio St., 227; Cooley on Taxation, 127-8; Cooley’s Constitutional Limitations, 283.
    Where, however, the facts out of which a moral (or legal) obligation is claimed to rise, are disputed, the contention falls within the province of the courts, under the distribution of government powers prescribed by our constitution. Section 1 of article 4 of the constitution of 1851.
    The claim of the defendant in error is founded in justice and the state is morally bound to pay the claim.
    The fish and game wardens pretending to act under the unconstitutional act of April 26, 1898, confiscated and destroyed the property of the defendant in error of the value of $930.00. The nets were being fished in a lawful place and he should have had his day in court to determine this fact before losing his property. All of these constitutional guaranties were denied him. The persons who destroyed the nets are insolvent and irresponsible and were pretending to act under said act of April 26,1898, which authorizes the summary destruction of fishing nets and further provided that no action for damages shall lie or be maintained against any person for or on account of any such seizure or destruction.
    This is therefore clearly a case where the claim is founded in justice and there is at least a moral obligation on the part of the state to provide for the allowance of the claims in the first instance and the payment of the claim by an act hereafter to be passed.
    In the case of Commissioners v. Rosche Bros., 50 Ohio St., 103, which appears to be the authority relied upon by plaintiff in error, tbe court very clearly makes a distinction as to a statute enacted in tbe furtherance of natural justice and tbe court recognize the principle laid down in tbe case of' tbe Board of Education v. State, 51 Ohio St., 531, supra, and tbe long list of authorities just given and merely bolds that tbe claim under consideration in that case was not founded in justice. State ex rel. et al. v. Gibson, Treasurer, 15 Dec. 73 (affirmed by tbe circuit court, 26 O. C. C., 784, wherein tbe above case was reviewed and followed).
    Tbe act of April 26,1898 (93 O. L., 303), being section 6968-2 of tbe Revised Statutes of Obio, is unconstitutional and void, being in conflict with section 16, article 1 of tbe constitution of this state, for tbe reason that it confiscates property without due process of law, and it is also in conflict with tbe amendments to the federal constitution.
    This act has been held unconstitutional in the case of Yensen v. State, 9 Ohio Dec., 168; 7 N. P., 18; and in the case of French v. Shirley et al. and Snyder v. Shirley et al., 9 Ohio Dec., 181; 7 N. P., 26. Although these decisions are by courts of common pleas, they are worthy of consideration by reason of tbe care and time devoted to them by the able trial judges. This court in tbe case of Faloon et al. v. Snyder, 65 Ohio St., 560, held tbe law of 1896 (92 O. L., 385), which was a similar statute to tbe one in question in this case to be unconstitutional and void.
    Tbe court will observe that tbe act of 1896 was very similar to the act of 1898 and provided that all such nets and other devices for catching fish was thereby declared a public nuisance and shall be forfeited to the state. These were cases brought by fishermen against tbe state fish and game commissioners and state wardens, personally, for seizing and carrying away fishing nets. The trial court charged the jury that the act above referred to (92 O. L., 385) was unconstitutional and void because it deprived the plaintiffs of their property, without due process of law. The cases resulted in a judgment for plaintiffs for the value of their nets and of the fish liberated. The defendant commissioners and state warden prosecuted error to the circuit court and Supreme Court. The principal ground of error was that the statute was constitutional and not unconstitutional, and counsel for plaintiffs in error in those cases relied upon the same authorities relied upon by plaintiff in error in this case, and particularly the case of Lawton v. Steele, 119 N. Y., 226; Lawton v. Steele, 152 U. S., 133. This court affirmed the judgment in both of these eases.
    In the case of Edson et al. v. Crangle et al., 62 Ohio St., 49, the court held a similar statute to be unconstitutional.
    Such statutes to be constitutional should not only provide the right of confiscation, but should also provide the remedy, and then such remedy would be exclusive. Commissioners v. Bank, 32 Ohio St., 194.
    In this case the counsel for plaintiff in error relied upon the case of Lawton v. Steele, supra. This court refused to follow the same.
    Plaintiff in error concedes that Mr. French had his right of action to determine whether the nets were or were not in such unlawful use. In this case Mr. French’s nets were destroyed before he had had any day in court. He was afterwards arrested for illegal fishing and the court of common pleas held that he was fishing in a legal manner and in a lawful place, and discharged him. The statute in question does not give .a person any opportunity to determine whether the nets were or were not used unlawfully. The court in the case of Bittenhaus v. Johnston, 92 Wis., 588, holds that .the plaintiff had his right of action to determine whether the nets were or were not in such unlawful use. Deck v. Anderson, 57 Col., 251; 40 Am. Rep., 115.
   Summers, J.

That part of the act of 1898 above quoted is copied almost literally from the act of the legislature of New York and, but that it is thought proper to point out the difference between the statute under consideration and the statute passed upon in Edson et al. v. Crangle et al., 62 Ohio St., 49, its validity might be rested, without more, upon the authority of Lawton v. Steele, 119 N. Y., 226; Lawton v. Steele, 152 U. S., 133.

In the ease in the Supreme Court of the United States it is decided: “It is within the power of a state to preserve from extinction fisheries in waters within its jurisdiction, by prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish.

“The provision in the statutes of New York, c. 591 of the laws of 1880, as amended by c. 317 of the laws of 1883, that nets set or maintained upon waters of the state, or on the shores of our islands in such waters, in violation of the statutes of the state enacted for the protection of fish, may be summarily destroyed by any person, and that it shall be the duty of certain officers to abate, remove, and forthwith destroy them, and that no action for damage shall lie or be maintained against any person for or on account of such seizure or destruction, is a lawful exercise of the police power of the state, and does not deprive the citizen of his property without due-process of law, in violation of the provision of the-constitution of the United States.”

This disposes of the contention that the act violates the constitution of the United States on the-ground that it deprives a citizen of his property without due process of law; and also of the same contention respecting the constitution of Ohio, unless there-is a difference, and there is not (Cooley’s Constitutional Limitations, 47, 431) in the two instruments, respecting due process of law.

What is said in Railroad Co. v. Keith et al., 67 Ohio St., 279, to the effect that the provision of our hill of rights respecting due course of law was-adopted to get rid of the imperfections and injustice-of the common law, seems to have been said inadvertently. In Weimer v. Bunbury, 30 Mich., 201, Cooley, J., says: ‘ ‘ The truth is that hills of rights-in the American constitutions have not been drafted for the introduction of new law, hut to secure old principles against abrogation or violation. They are conservatory instruments rather than reformatory. ”

And in Lawton v. Steele, 119 N. Y., 226, 237, Andrews, J., says: “These authorities sufficiently establish the- proposition that the constitutional guaranty does not take away the common law right of abatement of nuisances by summary proceedings, without judicial trial or process.” Again on page 238 he says: “But as the legislature may declare nuisances, it may also, where the nuisance is physical and tangible, direct its summary abatement.by executive officers,, without the intervention of judicial proceedings, in cases analogous to those where-the remedy by summary abatement existed at common law. ’ ’

The criticism of the opinion in Lawton v. Steele, 152 U. S., 133, that it upholds a statute admittedly violative of the constitution by applying the maxim iíDe minimis non curat lex” is, it seems to me, based entirely upon a misconception. The learned justice says the constitutionality of the legislation was sustained by the court of appeals of New York upon the ground of its being a lawful exercise of the police power of the state, and. speaking of the exercise of the power, he says: “To justify the state in thus interposing its authority in behalf of the public, it must appear, first that the interests of the public generally,'as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals;” and having shown that the preservation of game and fish is within the police power he proceeds to- consider whether the act, in that it provided that nets used in violation of its provisions are public nuisances and may be summarily destroyed by any person, will bear the test of the second rule, namely, “that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.” In the determination of that question the value of the property was a very proper matter for consideration.

In Edson et al. v. Crangle et al., 62 Ohio St., 49, the statute under consideration provided that any nets set in violation of its provisions should be confiscated wherever found and sold to the highest bidder and the proceeds placed to the credit of the fish and :game fund. The statute provided for a seizure and -an appropriation of the nets, hut failed to provide any legal procedure whereby they might he adjudged to be confiscated and on that ground the statute was held void as not providing due process of law, and the judge writing the opinion expressly pointed out that the statute did not declare the nets a public nuisance to he summarily abated.

Being of the opinion that the act of 1898 is not unconstitutional on the grounds upon which the ■question is raised it is unnecessary to consider the ■constitutionality of the act of 1902, or the other ■ questions raised by the answer.

Judgment reversed and judgment for plaintiff in ■error.

Spear, C. J., Davis, Shauck and Crew, JJ., concur.  