
    In the Matter of the Application of Henry H. Steube for a Writ of Habeas Corpus.
    
      Constitutional law — Weights and measures act — Section 6418-1, General Code (103 O. L., 136), unconstitutional — Section 1, Article I, Constitution — Habeas corpus. ........
    Section 6418-1, General Code, as amended February 27, 1913 (103 O. L., 136), is repugnant to Section 1, Article I of the Constitution of Ohio and is invalid.
    (No. 14508 —
    Decided December 1, 1914.)
    Error to the Court of Appeals of Franklin county.
    Hilton R. Diegle, an inspector of the Ohio dairy and food department, filed an affidavit with T. H. Hennessey, a justice of the peace in and for Montgomery township, Franklin county, in which he charged that Henry H. Steube, on July 17, 1913, in the,-’county of Franklin,- unlawfully sold to him a ^certain quantity of Irish potatoes, • to-wit, about one-fourth peck. It was alleged in the affidavit that the potatoes were not sold by avoirdupois weight, nor by numerical count, nor in a sealed package, nor was there an agreement in writing by and between the said parties to sell the potatoes by measure.
    Steube was found guilty as charged in the affidavit and ordered to pay a fine of $10 and costs, or to be imprisoned in the jail of Franklin county until the fine and costs were paid or he was discharged by due course of law.
    Steube thereupon filed a petition in the common pleas court of Franklin county for a writ of habeas corpus. In his petition he alleged that he was unlawfully imprisoned, detained, confined and restrained of his liberty by the sheriff of Franklin county in the county jail; that said confinement was, by virtue of said order of the justice of the peace, made upon said affidavit charging him with the alleged violation of the provisions of Section 6418-1, General Code of Ohio, as amended by the act of February 27, 1913; that said act is in conflict with the constitution of the United States and the constitution of the state of Ohio, and Is therefore void and of no effect.
    A writ was granted as prayed for in the petition, directed to the sheriff of Franklin county. The sheriff made a return as required by law in which he stated that he had in his custody the said Steube and that he held the said Steube by virtue of the writ issued by the justice of the peace. A copy of the writ was attached to and made a part of the sheriff’s return.
    
      The matter was heard in the common pleas court upon the petition of plaintiff and the return of the sheriff, and the court found that the petitioner was unlawfully detained in the custody of the sheriff and ordered his discharge and rendered judgment against the sheriff for costs.
    In a proceeding in error instituted in the court of appeals by the sheriff the judgment of the common pleas court was affirmed, and the sheriff has filed a petition in this court asking for a reversal of the judgment of the court of common pleas and that Steube be required to carry out the terms of the judgment of conviction rendered against him by the justice of the peace.
    
      Mr. Timothy S. Hogan, attorney general, and Mr. John A. Smith, for plaintiff in error.
    
      Messrs. Williams, Williams, Taylor & Nash, for defendant in error.
   By the Court.

This case involves the constitutionality of Section 6418-1, General Code, as amended February 27, 1913 (103 O. L., 136), which is as follows:

“All articles hereinafter mentioned, when sold, shall be sold by avoirdupois weight or numerical count, unless by agreement in writing of all contracting parties, viz.: apples, grapes, peaches, pears, plums, quinces, cranberries, prunes, raisins, dates, figs, dried apples, dried peaches, apricots, rice, beans, green beans, carrots, onions, parsnips, Irish potatoes, sweet potatoes, tomatoes, turnips, beets, sugar beets, peas, green peas, cabbage, cauliflower, endive, lettuce, spinach, sauerkraut, barley, bran, buckwheat, corn in ear, shelled corn, wheat, rye, oats, sweet corn in ear, shelled sweet corn, hominy, dried sweet corn, popcorn in ear, shelled popcorn, bluegrass seed, broom corn seed, canary seed, cotton seed, castor oil bean, pine tree products and vegetable oils, clover seed, timothy seed, hemp seed, Hungarian grass seed, malt, millet, onion sets, orchard grass seed, rape seed, red top seed, English walnuts, black walnuts, hickory nuts, Brazil nuts, pecans, almonds, filberts, ice, coal, coke, lime, salt, sugar, tea, coffee, bulk spices, cheese, butter, oleomargarine, lard, fresh and salt meats, fish, game, fowls, flour, corn meal, chopped feed, pepper in bulk, and candy in bulk. Nothing in this section shall apply to seeds and other articles in sealed packages. Whoever sells or offers for sale any article in this section enumerated, in any other manner than herein specified, shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be fined not less than ten dollars nor more than one hundred dollars for the first offense, and not less than twenty-five dollars nor more than two hundred dollars for the second offense, or imprisoned not more than three months, or both.”

Its constitutionality is challenged for the reason that it is in conflict with certain provisions of the federal constitution and with Section 1, Article I of the Bill of Rights of the Constitution of Ohio. There is the further claim that it is in conflict with Section 26, Article II of the Constitution of Ohio, relating to the uniform operation of general laws.

The statute was held invalid by the court of common pleas for the reason stated in its opinion that it was repugnant to and in violation of Section 1, Article I of the Constitution of Ohio. The court of appeals was in harmony with the view entertained by the court of common pleas and was of the opinion that the statute was likewise in violation of Section 1, Article XIV of the Constitution of the United States. The petitioner was arrested and convicted under this statute, the charge being that he sold a certain quantity of Irish potatoes, viz., about one-fourth peck, that the same were not sold by avoirdupois weight, or by numerical count, or in a sealed package, and that the petitioner and purchaser made no agreement in writing to sell the potatoes by measure.

Section 1, Article I of the Constitution of Ohio, is as follows: “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”

The right to contract is recognized as a property right essential to the acquisition, possession and protection of property. The right to the use of measures as a means of trade and commerce has long been established, and the custom of buying and selling by these means the articles enumerated in the act under consideration is one of long standing. Under the provisions of this act, however, unless an agreement in writing is made by all of the contracting parties, whoever sells or offers to sell these articles by measure is guilty of a crime and subject to fine and imprisonment. To require the vendor and purchaser of the articles covered by the act to enter into an agreement in writing each time a sale is made by measure, that the sale may be lawful, conflicts with the right to make contracts. As we view this statute, then, it is clearly an invasion of the property rights guaranteed by our constitution.

But it is claimed in support of the constitutionality of the act that the legislature in the exercise of its police power has authority to enact such a law. While it is within the power of the state to guard the public morals, the public safety and the public health, as well as to promote the public convenience and the common good, yet in devising means for such purpose the provisions made must be reasonable. In our opinion this act places an unreasonable and burdensome obligation upon persons engaged in a lawful business and is an unwarranted exercise of the police power. The lower courts were correct in holding this law unconstitutional.

Judgment affirmed.

Shauck, Johnson, Donahue and Newman, JJ., concur.

Wanamaker, J., dissents.  