
    Driggs v. State.
    
      ConstiUitional law — Section 6946a, Revised Statutes — Sale of intoxicating liquors within one and one-half miles of a National Home for disabled volunteer soldiers — Laws of a general nature and uniform operation — Act of April 6, 1893 ( 90 Ohio Laws, 143). '
    
    1. Act of April 6, 1893 (90 Ohio Paws, 143). The act, entitled “ An act to amend supplementary section 6946a of the Revised Statutes of Ohio, passed April 12,1888, and amended April 12, 1892, and to further supplement original section 6946, of the Revised Statutes,” passed April 6,1893 (90 Ohio Paws, 143), is not in conflict with the first branch of section 26, article II of the constitution of Ohio, which ordains that “All laws, of a general nature, shall have a uniform operation throughout the state,” and is a valid law.
    2. Where one was indicted under the above entitled act, for selling intoxicating liquors at a place within one and one-half miles outside of the boundary line of the lands occupied by a National Home for disabled volunteer soldiers, it was not error in the trial court to admit the parol evidence of an officer and of one of the managers of the institution, to prove the existence of such National Home, its occupation by disabled volunteer soldiers of the United States, and the boundary line of-its lands.
    (Decided October 16, 1894.)
    
      Error to the. Circuit Court of. Montgomery county. . ,
    On April 6, 1893 (Ohio Laws, 143), an act of the General Assembly was passed, which reads as follows:
    “Section 1. Be it enacted by the General Assembly of the State of Ohio, That supplementary section 6946a, of the Revised Statutes of Ohio, passed April 12, 1888, and amended April 12, 1892, be amended; and original section 6946, of the Revised Statutes, be further supplemented so as to read as follows:
    “Sec. 6946a. Whoever sells or gives away any ale, beer, wine, cider or other intoxicating liquors at any place within one and one-half miles outside of the boundary line of the lands occupied by any home, retreat or asylum for disabled volunteer Soldiers, or soldiers and sailors, which has been or may hereafter be established by the government of the United States shall be fined upon conviction not more than one hundred dollars nor less than twenty-five dollars, and imprisoned thirty days; and on conviction of the owner or keeper thereof, the place wherein such intoxicating liquor shall have been sold or given away shall be, by the order of the court wherein such conviction is made, within ten days thereafter, shut up and abated as a nuisance.. And it is hereby made the duty of the prosecuting attorney of the county in which any such institution is or may be located to prosecute all offenders ag’ainst the provisions of this act.
    “Sec.-69465. Whoever sells or gives away any ale, beer, wine, cider or other intoxicating liquors at any place within one mile outside of the boundary line of the lands occupied by any home, retreat, or asylum for disabled volunteer soldiers, or soldiers and sailors, which has been or may hereafter be established by the state of Ohio, shall be fined upon. conviction not more than one hundred dollars nor less than twenty-five dollars, and imprisoned thirty days ; and on conviction of the owner or keeper thereof the place wherein such intoxicating liquor shall, have been sold or given away shall be, by order of the court wherein such .conviction is made, within ten days thereafter, shut up and abated as a nuisance. And it is hereby made, the duty of the prosecuting attorney of the county in which any such. institution is or may be located to prosecute all offenders against the provisions of this act.
    “Section 2. That said supplementary section 6946a of the Revised Statutes, passed April 12, 1888, and amended April 12, 1892, be and the same is hereby repealed, and this act shall take effect and be in force from and after its passag’e.”
    At the May term, 1894, of the court of common pleas, an indictment -was found against Nelson Driggs, the plaintiff in error, charging: ‘‘That Nelson Driggs, on the 15th day of May, in the year one thousand eight hundred and ninety-four, in the county of Montgomery aforesaid, at a place within one and • one-half miles outside of the boundary line of the lands occupied by a home for disabled volunteer soldiers, to-wit: Central Branch National Home for Disabled Volunteer Soldiers, which has been established by the government of the United States, did unlawfully sell to John R. Carrington certain intoxicating liquor, to wit: two glasses of beer, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Ohio.”
    The accused filed a demurrer to the indictment, alleging, that the same did not state facts constituting a crime against the laws of the state of Ohio, and that the court had no jurisdiction of the cause.
    Upon the trial of the cause, a verdict of guilty was rendered. A motion for a new trial was overruled, which ruling was excepted to at the time; and the defendant below was adjudged to pay a fine of fifty dollars, and to be imprisoned in the jail of said county thirty days, and to pay the costs of prosecution.
    The plaintiff in error filed in the circuit court his petition in error, and upon hearing, the circuit court affirmed the judgment of the court of common pleas.
    To reverse the judgement of the circuit court, this proceeding in error is instituted.
    
      Harrison, Olds & Henderson, Emanuel c& Dwyer and W. A. Hallanan, for plaintiff in error.
    The grounds upon which we maintain the judgments below should be reversed are: Fvrst—
    That the act under which the defendant below was indicted is unconstitutional and void. Second ■ — That the trial court erred in the admission of incompetent evidence. Third — That the court erred in the charge to the jury.
    I. - The act of the General Assembly, under color of which the indictment upon which the defendant below was sentenced is in conflict with the first branch of section 26, article II of the constitution of this commonwealth.
    The origin of this section is perfectly well known. The legislature had often made it a crime to do in one county or even township what it was perfectly lawful to do elsewhere, and had provided that acts even for the punishment of offenses should be enforced or not, in certain localities, as the electors thereof respectively might decide. It was to remedy this evil and prevent its recurrence that this section was framed. Cass v. Dillon, 2 Ohio St., 617.
    Under the former constitution, laws having a general subject matter and therefore of a general nature, were frequently limited expressly in their operation to one or more counties to the exclusion of other portions of the state. To arrest and for the future prevent this evil, the provision in question was inserted in the present constitution. Lehman v. McBride, 15 Ohio St., 605; McGill v. State, 34 Ohio St., 228, State ex rel. v. Ellet, 47 Ohio St., 93.
    This act is a statute regulating the sale or gift of intoxicating liquors — a subject which does not relate to private matters, but which concerns the public at large. The character of a law, whether of a special or general nature, is in the law itself; that is, the subject-matter of the law. Some laws, general in form, are necessarily purely local or special in their nature; but all laws general in their nature, such as define and punish offenses against the public, of which the law in question is an example, or such as provide for the descent and distribution of intestate estates, or regulate domestic relations, or prescribe the rate of interest on money loaned, etc., cannot be local or special in form but must be general, having a uniform operation throughout the state. Statutes which may be termed local in a certain sense, may nevertheless be laws of a general nature; and, therefore, it is not essential to render a statute affecting the interests of the public, a general act, that its provisions should actually be equally and directly operative upon all persons and all places in the state. Pearce v. Kimberle, 9 Me., 54.
    The word general comes from genus, and relates to a whole genus or kind, or, in other words, to a whole class or order. Hence a law which affects a class of persons ■ or things, less than all may be a general law. Brooks v. Hyde, 37 Cal., 366.
    The terms general law does not import universality in the subject or operation of such law. Van Riper v. Parsons, 40 N. J. L., 1.
    The statutes of Ohio, making railroad companies liable for damages for stock killed in consequence of their failure to erect and maintain fences, is a law of a general nature, because it applies to all railroad companies within the state. Humes v. M. R. Co., 82 Mo., 221.
    The extent of the operation of a really general law is not determined by arbitrary limitations imposed by the legislature, but by the existence of the conditions on which • the law is -to operate. Randolf v. Wood, 49 N. J. L., 85.
    If the statute affects public interests, it will be held general; that is, it will be held to be “a law of a. general nature.” Burnham v. Webster, 5 Mass., 266; Commonwealth v. McCurdy, 5 Mass., 324; Ferguson v. Ross, 66 S. C. N. Y., 207.
    The principle for • which we . contend was laid down and applied in Commissioners v. Rosche Bros., 50 Ohio St., 103.
    All statutes which are of a penal nature are public laws, although they may be limited in their operation and effects, to particular localities or parts of the state. Burnam v. Acton, 4 Abbott’s Pr., N. S., 1.
    A clause substantially the same as the first branch of the section of the constitution of Ohio under consideration was held to make unconstitutional an act making embezzlement by employes of a certain named bank a felony. Bude v. The State, 3 Humph. , 483.
    In The State v. Powers, 38 Ohio St., 54, it was held that under section 26, article II, and section 2, article VI, of the constitution, laws, regulating the organization and management of common schools must have a uniform operation throughout the state. The principle of that case applies to the case in hand. State v. Winch, 45 Ohio St., 663; Heck v. The State, 44 Ohio St., 536.
    The occupants of the homes described in both sections of the act are disabled volunteer soldiers, or soldiers and sailors. Yet the first section provides for the punishment of a sale or gift of any intoxicating liquors within one and one-half miles outside of the lands occupied by any such home established by the United States, whereas the second section provides for the punishment of such a sale or gift within one mile only of the lands occupied by any such home established by the state of Ohio. In short, the discrimination is founded solely upon the single fact that some of the homes are owned by the United States and some by the state of Ohio. In view of the object and purpose of the statute, the difference in the ownership of the homes, each of them being homes for disabled volunteer soldiers, or soldiers and sailors, is not a difference of such a nature as to call for and demand a separate and different' statutory provision defining and punishing sales or gifts of intoxicating liquors within a prescribed distance of such homes. If public policy requires that such sales and gifts shall be punished when made within one mile of such homes established by the state, the demand is equally imperative if the homes be established by the United States.
    It follows that this act does not furnish a proper classification for the purpose of legislation of a general nature designed to have the uniform operation throughout the state; and whether or not a classification is authorized by the constitution is for the courts to determine. Costelo v. Wyoming, 49 Ohio St., 202; Nichols v. Walter, 37 Minn., 264; State v. Hammer, 42 N. J. L., 435; Bronson v. Oberlin, 41 Ohio St., 476; Van Riper v. Parsons, 40 N. J. L., 1.
    Whatever legislation, therefore, is enacted for a class, must apply to it in respect to certain common characteristics of its members, and must be, in itself, such as it would be inexpedient to enact for other persons or things, not possessing those characteristics. Otherwise the legislation would be local or special, not general. A general law, as applied.to the subject of classification, is a law for a class requiring- legislation peculiar to itself in the matter covered by the law. Miller v. People, 100 Mo., 439; Ayars Appeal, 102 Pa. St., 266; State v. Rammer, 42 N. J. L., 436.
    II. The trial court erred in admitting parol evidence to prove the establishment by the government of the United States, of a home for disabled volunteer soldiers, in the county of Montgomery.
    The board of managers of the National Home for Disabled Volunteer Soldiers, is either a public corporation or a. boa,rd of public agents of the United States. According to the doctrine laid down in.the case of Neil v. Board of Trustees, etc., 31 Ohio St., 15, the latter is its legal status. The act of Congress creating the hoard, is found in U. S. Revised Statutes, page 943, commencing with section 4825.
    The best evidence of the acts of the board, whether it be a board of public agents or a public corporation, consists of the records of its proceedings. The presumption is that such record has been kept, and perfectly kept, so as to show the associated or corporate action of the board. Dillon’s Mun. Corp. (3d Ed.), sections 300, 301, and notes.
    No evidence was offered to show action of the board in establishing a home in Montgomery county.'
    III. In that part of the charge to the jury to which exceptions were taken, the ruling during the trial as to the competency of parol testimony to prove (1), that the board of managers of The National Home for Disabled Volunteer Soldiers selected a site for a soldiers’ home in Montgomery county, and (2), acquired a title to lands for such home, and (3), the precise location of the boundary lines thereof, was followed. In this we maintain, for the reasons stated in the argument of our second proposition, there was error to the prejudice of the accused.
    
      C. H. Kumler, Prosecuting Attorney, J. C. Patterson and J. D. Clark, for defendant in error.
    We claim, First — That the legislature not only had the right to recognize homes established by the government of the United States as a separate and distinct class, but that it would have had no right to ignore the fact that in'the state of Ohio there exists two classes of homes for disabled, volunteer soldiers.
    
      Second — The legislature was compelled to'recognize homes established and- hereafter to be established by the state of Ohio as constituting a separate and distinct class It'is claimed by the plaintiff in error that the difference in the ownership of the homes (each of them being homes- for disabled volunteer soldiers, or soldiers and sailors) is not a difference of such a nature as to call for and demand a separate and different statutory provision defining and punishing sales or gifts of intoxicating liquors within a prescribed distance of such'homes.
    The - difference in the ownership of the homes may not of itself be such a difference as to call for and demand separate and different legislation, but the fact of the actual and complete control of the state over admission to the state homes, and the regulations thereof; and the entire absence of such control over national homes is a substantial difference, such as justifies the difference-in legislation. ■ ■
    
      Thvrd — An act of the general assembly • is always presumed to be constitutional until the contrary is clearly shown. -4'Dallas R., 14;'10 Ohio St., 23; 15 Ohio St., 591. -
    
      Fourth — The uniformity required by article II, section 26, is uniformity touching the subject matter of the law. The-constitutionality of'an act is to be determined by its operation-and not the mere form which it may be made to assume. “21 Ohio St., 11. Section 6946, as 'amended April’ 6,' Í893, recognizes- two classes of homes, -and-from‘state-ment of differences in the -establishment, management and control of the two classes of homes, as shown above, we claim that homes established by the government of the United States are as different from homes established by the state of Ohio as are, banks chartered by the government of the United States from state banks.
    
      Fifth — The law - is- general and uniform, and applies to all persons or things coming within its provision throughout the state. - Its uniformity consists in the fact- that no person or thing affected by it is exempt from its operation.- 44 Ohio St., 536; 48 Ohio St., 509.
    
      Sixths — The case of the Commissioners v. Rosche Bros., 50 Ohio St., 103, cited by counsel for plaintiff in error does -not • touch the question in this case in this, that said act while general in its nature as found by court was in reality only a local law, as' it could not have applied to any county other than. Hamilton-county. Section 6946, as amended April 6, 1893, applies to all-homes established anywhere by the government of the United States in the state of Ohio. It is general in form.
    
      Seventh — Section 18 of the schedule of the constitution provides that the general assembly may, by law, provide against the evils resulting from the sale of intoxicating liquors; • The authority of the legislature to provide protection for certain institutions seems to be settled by the holding of this court 'on the questions of the constitutionality of section 6946 of the Revised Statutes as amended May 2,- 1885, the legislature having the power to protect those who attend, - take part in or' live within two miles of any place where any- agricultural-fair-is being held, why may -not the legislature have authority conferred upon it by section 18 of the constitution to protect the inmates of homes established by a liberal and appreciative government.
    
      Eighth — We admit the proposition that all statutes which are of a penal nature are public laws, although they may be limited in their operation and effects to particular localities or parts of the state. Burrows v. Acton, 4 Abbott’s Pr., N.
    
      Ninth — In State v. Winch, 44 Ohio St., 663, the question involved in that case is nowhere present in this, for, while admitting this to be a general law, the act passed April 12, 1876, to prevent gambling and the sale of intoxicating liquors on or within the distance of two miles from Chippewa Lake, county of Medina, bore on its very face its own evidence of being but a local law.
    
      ■Tenth — As to the claim of error in admitting parol evidence to prove the establishment by the government of the United States, of a home for disabled volunteer soldiers in the county of Montgomery by the procurement of the board of managers of a site for such home and the acquisition by title of lands for that purpose and the precise boundary of such lands, we deny that there was any such error.
    We claim that the establishment of this home by the government of the United States is recognized by the legislature of the state of Ohio in the enactment of section 10,157 by the Revised Statutes. We claim that the establishment of the Central Branch National Military Home can be proven like the incorporation and establishment of any other incorporated institution.
    In the case of Calkins v. The State, 18 Ohio St., 366, this court holds that the corporate existence of a company is sufficiently established by proving that it assumed to be, and notoriously exercised the franchises of, a railroad corporation.
    . If the corporate existence of a company is thus sufficiently proven, why may not the acts of a corporate body, such as the establishment of the National Military Home by the managers thereof, be proven in the same manner as was done in the trial of this case in the common pleas court ? 18 Ohio St., 366; 13 Ohio, 453; 15 Ohio, 218.
   Dickman, C. J.

The first question that claims our consideration is, whether the act of the gen-, eral assembly under which the defendant below was indicted is unconstitutional and void. The act, it is contended, is of a general nature without having a uniform operation throughout the state, and is therefore in conflict with section 26, article II of the constitution of Ohio. That the act is ■ general in its nature within the meaning of the constitution, and subject to the constitutional requirement as to uniformity of operation, will be apparent, we think, upon examination. It is a law of general interest to all the inhabitants of this state, and its penal sanctions extend to all persons within the borders of the state who violate its provisions. Its subject matter is of a general nature, inasmuch as it concerns the public at large that the evils resulting from the sale of intoxicating liquors within the limits of the state should be suppressed. And section 18 of the schedule of the constitution, in ordaining that no license to traffic in intoxicating liquors shall hereafter be granted in this state, and that the general assembly “may by law provide against the evils resulting therefrom, ” virtually declares that the regulation of such traffic is one of a general nature and pertains to the public welfare.

It is urged, however, that while the law is thus general and not special in its character, it does not operate uniformly throughout the state, within the requirements of the constitution. The act contains two sections. One section imposes a penalty for selling or giving away intoxicating liquors, at any placé within one and one-half miles outside the boundary line of the lands occupied by any home for disabled volunteer soldiers established by the government of the United States; and one imposes the same penalty for committing the same offense at any place within one mile outside of the boundary line of' the lands occupied by any home for disabled volunteer soldiers established by the state of Ohio. Both sections are in pari materia, so far as they relate to the selling or giving away of intoxicating liquors near homes for disabled volunteer soldiers; but while the first section refers to national military homes, the second has reference to soldiers’ homes established by the state of Ohio.

It will be conceded that if the act embraced only the first section relating to national military homes, it would not be open to the constitutional objection of not being uniform in its operation throughout the state. In Heck v. The State, 44 Ohio St., 536, it was held, that the clause “whoever sells intoxicating liquors within two miles of a place where an agricultural fair is being held •x * -x siian he fined,” etc., contained in section 6946, of the Revised Statutes, as amended May 2, 1885, is not in conflict with any provision of the constitution, and is a valid law. . “A law is general and uniform,” say the court, “that applies to all persons and things coming within its provisions throughout the state. Its uniformity consists in the fact that no person or thing, of the description of any person or thing affected by it, is exempt from its operation.” The rule as to uniformity of operation requires that the law; shall have a uniform operation upon the persons or things of any class upon whom or which it purports to take effect; that it shall bear equally in its burdens and benefits upon persons and things standing in the same category. Smith v. Judge, 17 Cal., 554; French v. Teschemaker, 24 Cal., 544; Brooks v. Hyde, 37 Cal., 375.

But it is urged in behalf of the plaintiff in error that the homes for disabled volunteer soldiers contemplated in the statute, together constitute one class of such common characteristics, that the same penalty cannot be enforced against selling or giving away intoxicating liquors at a different distance from the national and Ohio soldiers’ homes respectively, without depriving the law, which is general in its nature, of a uniform operation, and giving to it a distinct, special and unlike application to the several members of the class. In view of the object and purpose of the statute, it is claimed that there is not a sufficient dissimilarity between such homes, as to call for and demand a separate and different statutory provision, defining and punishing sales or gifts of intoxicating liquors within a prescribed distance of their boundaries.

The National Home for Disabled Volunteer Soldiers at Dayton, in Ohio, referred to in the indictment of the plaintiff in error, was established by the government of the United States, under .sundry acts of congress now embodied in sections 4825 to 4837, inclusive, of the Consolidated and Revised' Statutes of the United States (1878). Under those sections it is provided that there shall be a board of twelve managers of the National Home, of which the' president, secretary of war, and'chief justice shall be members, who are to have perpetual succession, with powers to take hold, and convey real and personal property, establish a common seal, to sue and be sued in courts of . law and equity, to make by-laws, rules and regulations, not inconsistent with law, for carrying on the business and government of the home, and to affix penalties thereto. The persons entitled to the benefits of the home, and who may be admitted thereto, are all officers and soldiers who-served in the late war for the suppression of the rebellion, and the volunteer soldiers and sailors of the war of eighteen hundred and twelve, and of the Mexican war, and not provided for by existing laws, who have been or may be disabled by wounds received or .sickness contracted in the line of their duty. All inmates of the National Home -are made subject to the rules and articles of war, and in the same manner as if they were in the army.

Provision is made for the purchase of sites for homes, and for the erection of buildings. By section 4830, “The board of managers shall have authority to procure from time to time,'at suitable places, sites for military homes for all persons serving in the army of the United States at any time in' the war of the rebellion, not otherwise provided for, who have been or may be disqualified for procuring their own support, by reason of wounds received or- sickness contracted while in the line of their duty during the rebellion; and to have the necessary buildings erected, having due regard to the health of locality, facility of. access, and capacity to accommodate the persons entitled to the. benefits thereof. ”

By section 1 of an act to provide for the establishment and maintenance of a.home for disabled and indigent ex-soldiers, sailors and marines of Ohio, passed April 30; 1886 (83 Ohio Laws, 107), it is enacted: “That there shall be established in this state an institution under the name of ‘The Ohio Soldiers’ and Sailors’ Home.”.’ By section 2 of the act, it.is enacted: “All honorably discharged soldiers, sailors and marines, who have 'served the United States government in any of its wars, and who are citizens of Ohio at. the date of the passage of. this act, and all soldiers of the national guard of Ohio, who have heretofore lost,..or may hereafter lose an arm, or leg, or his sight, while in the line and discharge of duty, who are not able to support themselves, .and are not entitled to admission to the national military homes, or cannot gain admission thereto, may be admitted to the home named in the preceding section, under such rules and regulations as may be adopted by the board of trustees hereinafter provided for. ’ ’

The independent management of the National Home at Dayton through agents of the United States — the provision made by law for the establishment of . similar institutions — the congregating at those institutions of the greater number .of disabled soldiers from all parts of the country, and the consequent increased tendency to social abandon, to give up to- natural impulses, and to seek release from artificial restraint — the fact that all the inmates are made subject to the rules and articles of war the same as if they were in the army — and other marked characteristics of national homes readily suggested upon a consideration of their purpose, organization and management, will furnish a sufficient basis for making such national homes a class by themselves, and fixing upon one and one-half miles, instead of one mile outside of the boundary lines of their lands, as the limit within which it is made penal by the act to sell or give away at any place intoxicating liquors. Such a classification, in our judgment, would not be unjust or unreasonable, and would be founded upon adequate distinctions and differences between the two kinds of homes for disabled volunteer soldier® designated in the statute.

The statute operates uniformly upon the class of national homes for disabled volunteer soldiers. The constitution of Iowa provides, that all laws of a general nature shall have a uniform operation; and that the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens. A statute of Iowa divided the railroads of the state into classes, according. to business, and established a maximum of rates for each of the classes. In Railroad Company v. Iowa, 94 U. S., 155, it was said by Waite, C. J.: “ The statute operates uniformly on each class, and this is all the constitution requires. This act does not grant to any railroad company privileges or immunities which, upon the same terms, do not equally belong to every other railroad company. Whenever a company comes into any class, it has all the ‘privileges and immunities’ that have been granted by the statute to any other company in that class.”

It is argued in behalf of the plaintiff in error that the trial court erred in admitting parol evi-’ dence to prove that the National Home, at Dayton, was established and is recognized as a home for disabled volunteer soldiers of the United States, and is occupied by soldiers of that class ; and that the court further erred in permitting the treasurer and one of the board of managers of that institution to testify as to where the eastern line of the lands under the control of that National Home is located. We find no error in the admission of the testimony. The court below could properly take judicial notice of the act of April 13, 1867 (64 Ohio Laws, 149), ceding to the United States jurisdiction over certain lands and their appurtenances of the National Asylum for disabled volunteer soldiers within the state of Ohio (Brown v. State of Ohio, 11 Ohio, 280); and by such act the general assembly recognized the establishment and existence of that institution.

In determining the eastern line of the lands of the National Home, it was not a question of private boundary, involving title of a private right or estate, but rather of quasi public right. But on questions of public right, respecting the existence of a boundary between counties, parishes, or manors, the limits of a town or street, common reputation is admissible in evidence. And besides, where it is a question of private right, parol evidence is competent to prove possession of land within certain designated boundaries, and the person so proved to be in possession will prima facie, be presumed to be seized in fee.

Judgment affi/rmed.  