
    The Iroquois Company v. Meyer.
    
      Definition of "owner” in section 4275, Revised Statutes — Includes lessee, zvhen — Gambling lazsis.
    
    The word “owner” in section 4275, Revised Statutes, relating to gaming, includes one who is a lessee as well as the owner of the fee. Hence the interest of a lessee of premises who sublets the same to one who, with the knowledge and permission of such lessee, uses the same for gaming purposes, may be subjected to the satisfaction of a judgment recovered against such sub-lessee for money lost therein at gaming.
    (No. 10979
    Decided June 25, 1909.)
    Error to the Circuit Court of Franklin county.
    The defendant in error, Nathan Meyer, brought action in the common pleas of Franklin against the plaintiff in error The Iroquois Company and one Leslie H. Webb to recover for money lost at gambling. His petition in substance averred the recovery, at the June term, 1905 of said court, of a judgment for $1,001.36 against a firm known as Killits & Co. under the gambling statutes of the state for money lost by him and paid to them, during a period from April 1, 1902, to October 1, 1902, at and in a certain building' then owned by Webb and in the possession of The Iroquois Company under a lease from Webb which stands on certain real estate owned by defendants as lessor and lessee aforesaid respectively, giving description of same.
    “At the time of said transactions and stakings of said money and losing and paying of the same to said firm, the defendants herein each knowingly permitted the room in said building in which said money was so lost to be used- for gaming purposes.”
    Thereupon each defendant interposed a motion to strike from the petition the last foregoing paragraph, the one given above in quotation marks.
    This motion was sustained by the common pleas, and, the plaintiff not desiring to further plead, the petition was dismissed and judgment- for costs rendered against plaintiff.
    On error to the circuit court that judgment was reversed, and The Iroquois Company brings error in this court.
    
      Mr. James A. Allen and Mr. Herbert M. Myers, for plaintiff in error.
    Section 4275 and the other sections in Chapter 5, are in derogation of the common law and must be construed strictly. Kahn, Jr., v. Walton, 46 Ohio St., 210; Hooker v. DePalos, 28 Ohio St., 261. The statute is in the nature of a penalty or forfeiture Avithin the meaning of the code. Cooper ■v. Rozvley, 29 Ohio St., 547. This section must be-read with a close adherence to the literal meaning óf the words. No word shall be given an extended meaning by implication beyond the sense which Avas obviously intended by the legislature. Sutherland on Statutory Construction, sections 349, 350; Felix v. Griffiths, 56 Ohio St., 39.
    In view of the strict and conservative interpretation of the language of this statute we cannot read into it the Avord lessée and mean the same as OAvner of the building and the real estate upon which it stands. The interest of the lessee of property is not the same as that of the owner of the property. The former interest is a chattel, while the latter interest is realty. A permanent leasehold estate renewable forever is realty and is subject to all the laws and rules which attach to land and a judgment lien attaches. Section 5374, Revised Statutes,; Loring v. Melendy, 11 Ohio, 358. A determinate leasehold estate is a chattel, and a judgment at law would not have a lien upon such an interest. Buckingham’s Exrs. v. Reeve, 19 Ohio, 405. A levy must be made and sold upon execution the same as any other chattel. Acklin v. Waltermier, 19 C. C, 372.
    We should construe the language of sections 4275 and 4276 together, because these sections are in pari materia. Under section 4276, the legislature expressly addresses its attention to leases and lessees, and it is therein provided that the premises which are occupied for gaming and lottery purposes shall be surrendered to the lessor, and the lease or agreement under which they are so occupied shall be absolutely void.
    It is evident, when we regard the provisions of section 4276, we can only give a meaning of the word “owner” in section 4275, as one who has the actual and absolute ownership of the soil and the building upon it, because if we construe it to mean lessee, or owner having a determinate interest, and becoming null and void by virtue of section 4276, we have the anomaly of a statute containing provisions absent of vitality. In other words, a section of the laws, enacted for the prevention of an evil, prescribes the punishment, and another section of the same laws prescribes a means of obviating that punishment without affecting the evil.
    
      The terms “owner” and “owning” depend somewhat for their signification upon the connection in which they are used. In the construction of statutes to ascertain the proper meaning of such terms, regard must be had to their various provisions, and such effect given as these provisions clearly indicate they were intended to have, and as will render the statute operative. Railroad Co. v. Walker, 45 Ohio St., 585; Chotean v. Thompson, 2 Ohio St., 114; Dutro v. Wilson, 4 Ohio St., 101.
    We adopt this rule as our guide in interpreting the word “owner” as used in the gambling statutes. It is evident that if we wish to render section 4275 operative, and give it such effect as its provisions, as well as its spirit and purpose clearly indicate, a determinate leasehold interest would not avail, as no judgment lien would attach to it as a matter of law, and especially, would this be true if this interest was subject to forfeiture as provided in section 4276.
    The gambling statutes declare a penalty or forfeiture against the owner of the building and land for allowing such conditions to exist, and in. construing these statutes, no person is to be made subject to them by implication and all doubts concerning their interpretation are to be preponderate in favor of the accused. State, ex rel., v. Boyce, 43 Ohio St., 50.
    The courts apply the law with great strictness where forfeitures are claimed. They are odious in law because they necessarily work a sacrifice of the rights of the party whose estate is forfeited. 'Mathers v. Bull, 6 N. R, 43.
    ■ The law governing mechanics’ liens, assessment statutes, and other laws of a like nature, are remedial in character and should be given a liberal construction. Bullock v. Horn, 44 Ohio St., 420; Hubble v. Renick, 1 Ohio St., 171; Azierbach & Co. v. Szvadner, 18 C. C., 389.
    The word “owner” means the person who holds the freehold interest in the property and not the lessee. Davis v. Cincinnati, 36 Ohio St., 24.
    
      Messrs. Bates & Meyer and Mr. Elmer E. Murphy, for defendant in error.
    In the time of Charles II it was held that a gambling statute, being to suppress the use of excessive gaming, should be construed in the most extensive manner that could be to answer that end. Edgebury v. Rosindale, 2 Levinz, 94.
    The statute in question is a remedial statute and is to be liberally construed in furtherance of its apparent object. Grace v. M’Elroy, 1 Allen, 563.
    It was held to be a remedial and not a penal statute in Wall v. Stock Exchange, -168 Mass., 282; Mendosa v. Levy, 98 App. Div., 326, 90 N. Y. Supp., 748; O’Keefe v. Weber, 14 Ore., 55; except when the action is by a stranger or informer. Jacob v. Clark, 115 Ky., 255. •
    We submit then when the action is by the person ag'grieved and not by an informed it is not penal in the sense that it is to be construed as if punishing a crime, but at most it is a new cause of action unknown to the common law and as such is doubtless not to be enlarged by construction, but on the other hand its purpose is not to be frustrated by a narrow or technical reading.
    The following authorities on the so-called civil damage laws in intoxicating liquor acts bear out the same rule: Mead v. Stratton, 87 N. Y., 493, •41 Am. Rep., 386; Gardner v. Day, 95 Me., 558, 50 Atl. Rep., 892; Schroder v. Crawford, 94 111., 357, '34 Am. Rep., 236; Reinhardt v. Fritzsche, 69 Hun, 565, 23 N. Y. Supp., 958.
    It is simply an action of tort founded on the statute, Campbell v. Harmon, 96 Me., 87, 51 Atl. Rep., 801, and should be liberally construed to effect the beneficent purpose for which it was enacted. Currier v. McKee, 99 Me., 364, 59 Atl. Rep., 442.
    It follows from the above that the word owner in the statute need not to be narrowed to one having a fee simple title, but means the one having the control of the occupancy, and this is borne out by the language of the last half of the next section, section 4276.
    Besides the interpretation of “owner” in Railroad Co. v. .Walker, 45 Ohio St., 577, it was construed to cover a lessee in Hemm v. Williamson, 47 Ohio St., 493.
    And also held of owner of a factory in fire-escape laws. Lee v. Smith, 42 Ohio St., 458; Schott v. Harvey, 105 Pa. St., 222.
    So where an action is given against the owner of a dog for damages means against one who possesses or harbors it.. Schultz v. Griffith, 103 la., 150.
    So where a statute makes the driver of a vehicle, who fails to turn out to the right and collides with another vehicle and injures its owner, liable to the latter in treble damages, owner was held to include one who hired the injured vehicle. Camp v. Rogers, 44 Conn., 291.
    The similar section under the liquor laws was held constitutional in Mullen v. Peck, 49 Ohio St, 447.
    
      Our theory is that “owner of the building” in section 4275 means the one in whose control it is for the time being, although he is owner only for years or life or other interest less than'a fee, and his interest can be subjected if he knowingly permits his sub-lessee to gamble, thus restraining the words “and the real estate upon which it stands” to his interest in such real estate.
   Spear, J.

The question involved is a simple one and depends upon the proper construction of section 4275, Revised Statutes. That section is as follows: “The property, both real and personal, of a defendant, against whom a judgment is rendered under this chapter, either for fines, costs, or to recover money, or other thing of value, lost or paid, shall be liable therefor, without exemption, and such judgment shall be a lien thereon until paid; if the owner of the building in which the money was lost knowingly permits it to be used for gaming purposes, such building, and the real estate upon which it stands, shall be liable therefor in the same manner; and the guardian or trustee of a minor, insane person, or idiot, who permits any property under his charge to be used for gaming purposes, and the same becomes liable on account thereof, shall be liable to his ward for the amount thereof.”

The concrete question relates to the word “owner.” Does it embrace, within the meaning of this section, one who is a lessee of the building? It was the judgment of the learned judge of the court of common pleas that such lessee is not an “owner” and hence not affected by the statute, and of the learned circuit court that the lessee is, within the meaning of this statute, an “owner.” We are of opinion that the judgment of the circuit, court gives the proper construction to this statute.

One ground urged in support of the action of the trial court upon the motion to strike out is that the statute being in its nature one for a penalty, and being in derogation of the common law, should receive a strict construction. It is not doubted that, as held in Felix v. Griffiths, 56 Ohio St., 39, where by legislation a well established rule of the common law is attempted to be modified or abrogated, the scope should not be extended beyond the plain' import of the words used if reasonable effect can otherwise be given to it. But it is equally well settled, we suppose, that where a statute is designed to give a substantial remedy for an admitted evil, the language should be given a fair construction in order to advance the remedy and correct the evil sought to be abated. That our gambling statutes are of the character above indicated there can be no question, for, by the holding of all the courts which have had the duty imposed to consider the subject for many years gambling has been regarded as a vice to be prevented and suppressed in the interest of the public morals and the public welfare. Nor is there any doubt that the owner of a building in which gambling with his knowledge and acquiescence is carried on may be reached by making his property liable. But the matter of a liberal construction on the one hand or a strict construction on the other does not seem to us as of very great importance in the present case because by either the result would we think be the same. Any intelligent construction of the word “owner” embraces one who is in possession of property by right with the power of control. As given by Bouvier’s Law Dictionary, an owner is one “who has dominion of a thing, real or personal, corporeal. or incorporeal, which he has a right to enjoy and do with as he pleases.” The distinction is recognized that while there can be but one absolute owner of a thing there may be qualified ownership of the same thing, and attention is called to Ohio decisions relating to our mechanic’s lien laws to the effect that the word “owner” includes the possessor of the leasehold as well as the owner of the fee on the ground that any other construction would be subversive of the policy and intent of the act and in a great degree render it useless. See Choteau et al. v. Thompson et al., 2 Ohio St., 114, and Dutro v. Wilson, 4 Ohio St., 101. Like construction was given regarding the .statute as to grade crossings of railroads, where the term “owning the tracks” occurs, in B. & O. Rd. Co. v. Walker, 45 Ohio St., 577. This conception of the substantial meaning of the word “owner” is illustrated in the case of Hemm v. Williamson, 47 Ohio St., 493, where it is applied to our watercraft law. This construction is consistent also with the decision of this court in Mullen v. Peck, 49 Ohio St., 447, and with other adjudications involving our liquor statutes.

It is further contended that the word “owner” in section 4275 should be held to mean only one who has absolute ownership because section 4276 gives to the absolute owner the power to abrogate a lease where the lessee permits gambling. If the word be used to include a lessee, it is insisted, we would, have'a section enacted for the prevention of an evil and another section of the same law prescribing a means of obviating the punishment without affecting the evil. This means only that circumstances might arise where the aggrieved party might be deprived of a substantial remedy. If the supposition be correct, it would, we think, still fail as an argument. Because under some circumstances there might be a failure of remedy-hardly affords a reason for depriving the injured party of a right to recover under circumstances which do afford a remedy.

It is urged, also, that a lessee cannot be held an owner because his interest being but a chattel interest cannot be the subject of a lien. The trouble with this objection is that the section does not undertake to create a lien on the leasehold interest. It but authorizes the interest to he subjected to payment of the judgment by proper proceeding.

The suggestion that to hold the lessee would be to deprive him of his property without due process of law is sufficiently answered by Mullen v. Peck, supra.

In the present case, Webb leased the building to The Iroquois Company. That company leased a room in the building to Killits & Company. In that room Killits & Company conducted a gambling establishment at which the plaintiff below, Meyer, lost his money at gambling. If the averment of the petition ordered stricken out is true the interest of The Iroquois Company is liable to be subjected to the judgment as well as that of Webb.

Judgment affirmed.

Crew, C. J., Summers, Davis, Shauck and Price, JJ., concur.  