
    ELECTIONS — INTOXICATING LIQUORS — EVIDENCE — CRIMINAL LAW.
    [Wood (6th) Circuit Court,
    April Term, 1904.]
    Hull and Haynes, JJ. Parker, J., not sitting.
    Frank Dalrymple v. State of Ohio.
    1. Beal Law Election May be Peoved Other Than as Provided by Sec. 4364-20a Rev. Stat.
    The fact that an election was held under the Beal local option law, and! also the result thereof, may he established by evidence other than the original entry on the records of the municipal council, or a copy thereof certified by the corporation clerk as provided by Sec. 4364-20a Rev. Stat. which makes such record or certified copy prima facie evidence of such facts. Hence, the failure of the clerk to record, in the proper way and place, the result as reported to him, does not invalidate the election, if an election and the result thereof can be clearly established, by other evidence.
    2. Presumption is That Legal Bodies Acted Lawfully, etc.
    Where a duly and legally constituted legal body, such as a city or village council, has acted, the presumption is, in the absence of evidence to the contrary, that it has acted lawfully, and had before it sufficient facts to warrant it in acting. This presumption is in the nature of evidence, and until overcome by other evidence, it stands as proof of the fact in question. ■
    3. Presumption That Proper Petition was Piled for Beal Law Election When Election Ordered by Council.
    The presumption is that a petition for an election under the Beal local option law, in due and legal form and signed by 40 per cent of the qualified electors of the municipality, was presented to council as required by Sec. 4364-20a Rev. Stat., when it appears from the council record that a petition was presented asking for an election, that it was duly acted upon, and that an election was ordered on a certain date.
    4. Names of Buyers not Material in Affidavit Charging Keeping Place for Sale of Liquors, etc.
    The names of persons to whom liquors were sold need not be set forth in an affidavit charging the offense of keeping a place for the sale of. intoxicating liquors, in violation of the Beal local option law.
    5. Pine of $300 Under Beal Law for First Offense Excessive.
    A fine of $100 on each count of an affidavit charging three separata ' offenses of keeping a place for the sale of intoxicating liquors, in violation of the Beal local option law, or $300 in the aggregate, is excessive,, when there is no charge or claim that defendant had ever been previously convicted of a violation of said law. In such case the entire charge must be treated as charging a first offense, the maximum fine for which, is $200. \
    
    S. Cause only Remanded for Resentence When Judgment Reversed for Excessive Sentence. s
    Where the judgment of a lower court in a criminal prosecution is reversed’ on error because of the imposition of an excessive sentence, the case; will’be remanded for proper sentence only.
    
      Erkok to Wood common pleas court.
    Benj. F. James and Shefler & Campbell, for plaintiff m error.
    E. G. McClelland, prosecuting attorney, and W. B. Wheeler, for defendant in error.
   HULL, J.

This case, by consent of parties, was heard before two judges, Judge Haynes and myself.

The plaintiff in error, Frank Dalrymple, prosecutes error to reverse the judgment of the court of common pleas and the mayor’s court of the village of Rising Sun, in this county.

He was tried before the mayor of the village of Rising Sun for violating the “Beal Law,” so-called, or certain provisions of that law, the charge being that under an election duly held in that village, the sale of intoxicating liquors and the beeping of places for the sale of intoxicating liquors had been prohibited, and that the defendant kept and was keeping, on the different dates named in the affidavit, a place for the sale of intoxicating liquors.

There were three counts in the affidavit, charging the keeping of a place for the sale of intoxicating liquors on different dates or different periods, in one or two of the counts the period set forth covering more than one day. The defendant was found guilty by the mayor on each one of the three counts; a motion for a new trial was overruled and he was sentenced to pay a fine of $100 on each count, making $300 in all.

The plaintiff in error complains that the record does not show that any legal election had been held in the municipality, prohibiting the sale of intoxicating liquors, the chief ground of that complaint being that no evidence was offered that a petition containing 40 per cent of the voters of the municipality had ever been presented to the council praying for an election, and it is claimed that there was no proper evidence before the mayor that any.election had been held, or, if there was any election, no proper evidence as to the result of that election.

Section 4364-20a Rev. Stat. provides that whenever 40 per cent of the qualified electors of any municipal corporation shall petition the council thereof for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such municipal corporation, such council shall order a special election to be held, and that the result of the election shall forthwith be entered upon the record of the proceedings of the council; and provides that, in all trials for the violation of this act, the original entry of the record, or a copy thereof certified by the clerk of the corporation, provided that said record shows that a majority of the votes cast at said election was against the sale of intoxicating liquors as a beverage, shall be prima facie evidence that tbe selling, furnishing or giving away of intoxicating liquors as a beverage, or the keeping of a place where such liquors are sold, kept for sale, given away or furnished, if such selling, furnishing or giving away or keeping such place occurred after thirty days from the day of holding the election, was then and there prohibited and unlawful.

The clerk of the village,' Mr. Parmalee, was called as a witness, and it appeared from his testimony that a report was made to him of the election and that he entered the result of the election in a book; that it was not the record of the proceedings of the council but a book that had been kept and used for the purpose of entering elections of this kind at former times, during the terms of his predecessors. This book he could not find, and it was not produced. The clerk testified however that an election was held, that the report was made to him in proper form, and that the vote stood eighty against the sale of intoxicating liquors and seventy-four in its favor, making a majority of. six.

The records of a meeting of the council were put in evidence showing that a petition was presented to the council, asking for an election. No certificate of the record showing the result of the election was produced at the trial except one that the clerk prepared about the time of the trial, from the tally sheet or poll book. This certificate was offered in evidence and is attached to the bill of exceptions.

We are of the opinion that while the statute makes the certificate, or what is contained in the records of the proceedings of the council, prima facie evidence of the election, that is not the only way that an election and its results may be proven; that if the clerk fails to record the result as reported to him in the proper book or any book, it does not invalidate the election, if it can be proven clearly by other evidence that an election was held and what the result of that election was. And in this case, the tally sheet or poll book was offered in evidence and is attached to the bill of exceptions, and the clerk testified as to the result of ■ that election as reported to him.

The evidence shows that an election was in fact held and that ’it was conducted by the regular election officers — all of this being shown affirmatively. The mere fact that the clerk does not make a certificate in proper form, or that he has not recorded the result of the election in the proper boqk as he was required to do by statute, does not invalidate the election. It requires more than the negligence, carelessness, or dereliction of duty of such an officer as a clerk of a municipality, to invalidate an election which has been duly and regularly held.

It is urged, however, that there is nothing in this record to show that the council had any authority to order an election, for the reason that there is nothing to show that a petition signed by 40 per cent of the «lectors was ever presented to the council asking for such election, and that raises an important question. There being no certificate presented! in this case, of the council records, showing an election, it was probably incumbent upon the state to show that an election had been held, and that', it had been duly authorized and that the council had taken the proper-steps.

If there had been a proper certificate as the statute directs, that would have made a prima facie case in itself. The records of the council of June 2, 1902, when this matter was considered, and which were offered in evidence show that under the head of new business, a petition was presented praying for an election under the Beal local option law, and after due consideration it was moved and seconded that the council order an election held in the corporation June 30, 1902, and then follows the vote on the motion, on call of roll, showing all the votes in the affirmative.

It is said there is nothing in the record showing that this petition was in fact signed by 40 per cent of the qualified electors of the- municipality, and it is true that this does not appear affirmatively from this record. It does appear however that a petition was presented to the council praying the council to call an election under the Beal local option law.

The Beal law provides that when 40 per cent of the qualified electors of any municipality shall petition the council thereof for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such municipal corporation, such council shall order a special election to be held, etc., and it appears from this record of the council that the council did act upon this petition which was presented, and they acted in accordance with the provisions and terms of the Beal law and ordered an election on the thirtieth of June following; and we are of the opinion that, the council having acted, as the record shows it did, hy ordering this election, thé presumption is that the petition was in due and legal form; and that it was signed by the requisite percentage of the qualified electors of the municipality, and in the absence of any evidence- to the contrary, that presumption is sufficient. A presumption is in the nature of evidence, and until it is overcome by other evidence, it stands as proof of the fact in question. We think the general rule is that where a duly and legally constituted legal body has acted, that the presumption is, in the absence of any evidence to the- contrary, that it acted lawfully, and that it had before it sufficient facts to warrant it in acting.

This record shows that this petition was presented to the council praying that the council ñx a time for an election, and the council acting upon that petition, upon motion duly seconded, and on call of the roll, duly passed the resolution fixing the time, and ■ the presumption is, that that petition was in accordance with the statute. Coombs v. Lane, 4 Ohio St. 112, is in point upon this general question. The first paragi aph of the syllabus is:

“In respect to all official acts, the law will presume all to have been rightfully done, unless the circumstances of the ease overturn this presumption; and, consequently, acts done which presuppose the- existence of other acts to make- them legally operative, are presumptive proof of the latter.”

The opinion was delivered by Judge Thurman,. then chief justice, .and he says, page 148:

“In Ward v. Barrows, 2 Ohio St. 241, 246, this court, speaking of 'official acts, said: ‘The law will presume all to have been rightfully done, unless the circumstances of the case overturn this presumption, and, consequently, as stated by the Supreme Court of the United States, in Bank of The United States v. Dandridge, 25 U. S. (12 Wheat.) 64, 70, acts done which presuppose the, existence of other acts to make them legally operative, are presumptive proof of the latter.’
“And, again: ‘Facts presumed are as effectually established as facts proved, where no presumption is allowed; and hence in accordance with this long-established rule of evidence, the court in Winder v. Starling, 7 Ohio (pt. 2) 190, were entirely justified in saying that the act of' the auditor in allowing the credit, and making the certificate, which could only lawfully be done after the delinquent list had been verified by the collector, was presumptive proof that the oath had been administered.’ ”

The court say the law will presume all to have been^ rightfully done unless the circumstances of the case overturn this presumption, and consequently acts done which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter ; and it seems to us, where the records of the council show that a petition was presented to the council praying it to call an election under the Beal local option law, and that • the council considered the petition, and that after due consideration it.was moved that the election be held upon a certain date, and carried unanimously, that this raises a presumption that all had been done that was necessary to authorize the council to order this election; tbat it raises a presumption that the petition that was presented was sufficient under the law to warrant the action of the •council; and, there being no evidence to the contrary, no evidence offered by the defendant that this petition was not according to law, that it stands as proved by reason of this presumption.

Another ease in point is Reynolds v. Schweinefus, 27 Ohio St. 311, 312. The court say in the third paragraph of the syllabus:

“Where it appears by the proceedings of the city council that a xeport and recommendation of the board of city improvements had been made to it, and that thereupon the city council proceeded to make the improvement so recommended, it will be presumed, until the contrary is «hown, that such report and .recommendation of the board of city improvements was duly and properly made.”

It was necessary here that this report should be made in a certain ■manner, but the council having acted upon the report, the Supreme Court says it will be presumed, until the contrary is shown, that such report and recommendation of the board of city improvements was duly and properly made.

The court say, in the opinion on page 319:

“From these proven facts we are authorized to infer as a fact that a recommendation of the board of city improvements was for this work made at a regular meeting of the board,- and that such recommendation was reported to the city council in sufficient form, thereby making a prima facie case in favor of the jurisdiction of the city council over the subject-matter. This being the effect of the record evidence, the burden of proof is shifted upon the defendant to make manifest a want of jurisdiction.”

In the absence of any evidence to the -Contrary, it will be presumed that the council had jurisdiction to act, when it ordered this election.

A case was cited by plaintiff in error entitled Huntsville Local Option Election, In re, 25 O. C. C. 535. This was an election contest. The judge delivering the opinion states that it is necessary that it-affirmatively appear that 40 per cent of the qualified electors signed the petition; that that will not be presumed from the action of the council, but the opinion shows that in that ease this matter was referred to a committee and it reported to the council that 40 per cent of the qualified electors had signed the petition, and the report was accepted and acted upon by the council by unanimous vote, and the court held, that was sufficient. So that the question we have here was not squarely before that court, and the remarks of the learned judge delivering the opinion may have been made without full consideration of the question. After a careful examination of the subject and of the authorities, we are satisfied that the record of the proceedings of the council in this case, is-sufficient in the absence of anything to the contrary to show that the-council had jurisdiction to act.

It is alleged that the affidavit is insufficient for the reason that it. does not set forth to whom the liquors were sold.

The charge in this case was not for selling liquor to any specified person, but the charge was the keeping of a place for the sale of intoxicating liquors, and it was not necessary in such a case to set . forth to whom the liquor was sold. The question was, whether defendant kept a place for the sale of intoxicating liquor. He-may have sold to one or more persons, and it was not necessary to state in the affidavit who they were. It has been held that where the charge was the sale to some specific person, that it was necessary to set forth the name of the person to whom the sale was made, but there is a difference of opinion between courts as to whether it is necessary in such cases to set forth the name or names of the persons to whom the sale or-sales were made.

The defendant was fined $300; $100 on each count in the affidavit,, and this is claimed to have been erroneous. The statute provides for a fine of not more than $200 nor less than $50 for the first offense, and for the second offense not more than $500 nor less than $100, and for any subsequent offense a fine not less than $200 and imprisonment of not more than sixty days and not less than ten days.

There were three counts in this affidavit, charging the defendant with the keeping of a place for the sale of intoxicating-liquors on different dates. There was no charge or claim that he had ever been before convicted of a violation of this act; no allegation of that kind was in the affidavit; and following a recent decision of' the Supreme Court, in the case of Carey v. State, 70 Ohio St. 121, we are of the opinion that the mayor erred in imposing the sentence of a fine of $300.; $100 upon each count. The last two paragraphs of the syllabus of the case above cited are as follows:

“The term, ‘offense,’ as used in the last named section, is the equivalent of conviction. Hence, an affidavit for prosecution under said act, which charges three separate sales to different persons on the same day,, but does not allege a previous conviction, is in legal effect a charge of a first offense only, and the party so charged is hot entitled to be tried by a jury.
“The maximum fine provided by the act for the first offense being. .$200 only, a fine of $300 is, in such case, excessive and erroneous.”
“Judgments of the circuit court and the court of common pleas, and of the mayor’s court, reversed and the cause remanded to the latter court for sentence.”

There being no allegation in the affidavit here of any previous conviction, it seems to us as said by the Supreme Court that this entire charge must be treated as a charge of a first offense, and the maximum fine for the first offense being only $200, it was error for the mayor to impose a fine of $300.

It does not vary the rule that the charges were put in the affidavit under separate counts. The judgment of the court of common pleas and of the mayor’s court, will be reversed on account of the-error in the sentence imposed by the mayor and the case remanded to the mayor for sentence.

The effect of this, of course, is, that while the'judgment is reversed, and the ease remanded, the only thing to be done by the mayor is to re-sentence the defendant in accordance with this opinion and not to impose a fine in excess of $200. In all other things, the effect of this judgment is to affirm the judgments of the mayor and of the court of common pleas. This reversal will be at the costs of the defendant in error.

Haynes, J., concurs.  