
    Shultz v. Cambridge.
    1. Where an act is made punishable by fine and imprisonment, the words in which the offense is defined and punishment prescribed must be strictly construed, whether they are found in a statute, or an ordinance or by-law.
    2. General words, following particular and specific words, must, as a general rule, be confined to things of the same kind as those specified.
    3. In an ordinance prohibiting saloon-keepers from permitting at, in or about the doors, windows, openings, or in the interior of their saloons, “ any blind, 'screen, painted or frosted glass, shade, curtain or other device,” the words “other device” do not embrace a board partition between different rooms of a building, such partition extending from floor to ceiling, fastened in the usual manner, and intended by the owner, when he placed it in the building, as a permanent accession to the realty.
    
      Error to tbe District Court of Guernsey county.
    By an order of tbe town council of tbe incorporated village of Cambridge, adopted May 6, 1878, and which took effect .on the same day, it was ordained, “ that it shall be unlawful for any person or persons, the owner or owners, agent or agents, occupant or occupants of any house, shop, room, booth, arbor, cellar, or place, where ale, beer, or porter is sold or furnished to be drank, or any place of habitual resort for tippling or intemperance, or where intoxicating liquors are sold or furnished for such tippling or intemperance, to permit at, in or about the doors, windows or other openings of said premises, or in the interior of any house, shop, room, booth, arbor, cellar or place where intoxicating liquors are sold or drank, any blind, screen, painted or frosted glass, shade, curtains or other device, to prevent a free and unobstructed view from the outside of said premises of the interior of the same.”
    The marshal of the village was made an informer as to violations of the ordinance, and fine and imprisonment were the prescribed punishments.
    The ordinance was passed, it is claimed, under authority of the municipal code, amended 72 Ohio L. 107, which conferred on the village power “ to regulate ale, beer and porter houses or shops,” by ordinance, and enforce such ordinance by fine and imprisonment. 66 Ohio L. 167; 75 Ohio L. 198, 233; Rev. Stats. §§ 1692,1861-1869 ; 78 Ohio L. 254.
    Herman Shultz was ax-rested June 13, 1878, on a wax-i-ant issued on an affidavit which, omitting caption, signature of affiant, and jux-at, was as follows :
    
      “ Befox-e me, William M. Farrar, mayor of said incorporated village, pex-sonally carne E. M. Stottlemire, who being duly swox-n according to law, deposeth axxd saith, that Herman Shultz, late of the incorpox-ated village of Cambx-idge, on or about the 13th day of June in the year of our Lord one thoxxsand eight hundred and seventy-eight, at the incox-porated village of Cambridge, aforesaid, did unlawfully, a.t and in the interior of a certain x-oom within the incox-poi-ated village of Cambridge, Ohio, where ale, beer and porter, and other kinds of intoxicating liquors are sold and furnished to bo drunk, permit a certain device, called a partition, to be and remain so as to prevent a free and unobstructed view from the outside of said premises of the interior of the same, contrary to the provisions of the ordinance of May 6, 1878, and this deponent doth verily believe that the said Herman Shultz is guilty of the fact charged, and further this deponent saith not.”
    Shultz pleaded not guilty, and on the trial the facts were shown to be as follows :
    ££ The complainant, to maintain the issue on its part, introduced testimony showing that before and since the passage of said ordinance the defendant with his family resided in a building owned by his wife, situated on the north-east corner of Main and Walnut streets, in said village of Cambridge; that said building is a one-story frame with south end facing on Main street, and extending back north upon Walnut street about forty feet. The end fronting upon Main street consists principally of glass doors and windows, the interior being divided into several rooms by partitions, the said rooms being twelve, thirteen and fifteen feet square respectively. The first and second rooms are occupied as a beer saloon, carried on by defendant and his wife, and where ale, beer and native wines are sold by them, and one or more rooms back of these are used as lunch and dining rooms. A counter runs from the front window on the east side of the front room back into the next room, with a- space between this counter and the east wall of the building, a partition made of boards extending from the west wall to and covering the counter, and is built from the floor to the ceiling, with a door near the center by which to pass from the front to the next room. The beer and other liquors are kept in the front room, behind the counter, and are sold and drank sometimes at the counter in the front room, and sometimes carried to customers in the second and third rooms, where tables and chairs are provided for their use, and where the beer and other liquors provided are drank, and which rooms are more frequently used for that purpose than the front room, access being had to said second and thii’d rooms either from the front room or from Walnut street by a door leading into the second room, and there is one in that room facing on Walnut street without a blind; that prior to the passage of said ordinance a lai’ge screen was kept in the front room which obstructed the view from Main street to the place where customers stood in drinking at the counter; and blinds were used at the front windows for the same object, all of which have been removed since its passage. That the partition, running from the west side of the front room to and over the counter, is the partition named in the affidavit under which the prosecution was instituted. That the pavement in front of the building on Main street is much more frequently used by persons passing and repassing than the pavement on Walnut street, and that the defendant has been engaged in selling beer, ale and native wines in said rooms, as herein before described, since-the passage of said ordinance, and'refuses to remove the said partition ; and the defendant, to maintain the issue on his part, offered evidence and testified showing that he and his family have occupied the building described some time prior to the passage of said ordinance, and since and during said time have used portions of the same as a beer saloon and eating house, the beer, etc., being kept in the front room behind the counter and sold and drank there; and also often drank by customers in the second and third rooms where it was carried to them. That the building had formerly been used as a grocery, and when taken possession of by defendant and his wife consisted of one entire room, but was by them divided into separate apartments by partitions, the first and second from the front being made of boards, extending from the floor to the ceiling, but permanently attached to the floor, ceiling and wall. That said first partition, extending from the west wall to and over the counter, was not originally put there for the purpose of obstructing the view from the front, but to divide the room, and as a fixture, as the other partitions were. That he had kept a large screen ¿ear the front door, and had blinds to the front windows to obstruct the view from Main street, up to the passage of said ordinance, and until he had notice from the marshal to remove the same; and they were then removed. That persons passing along the pavement on Walnut street can see into the second room through the window, the door leading into that room from Walnut street not having any window or lights in it, and the window not having any blind or anything to obstruct the view.”
    The mayor, on these facts, found Shultz guilty, and assessed a fine, and ordered him to stand committed until such fine and the costs should be paid.
    The judgment was affirmed in the court of common pleas and district court, and this petition in error is filed to reverse the several judgments.
    
      J. II. Collins, for plaintiff in error:
    1. The ordinance is not only unreasonable, but it is in conflict with the policy of the state on the subject. Canton v. Nist, 9 Ohio St. 439; Thomson v. Mt. Vernon, 11 Ohio St. 688; Burckholter v. McConelsville, 20 Ohio St. 308.
    2. The ordinance does not extend to a partition. Sug. Real Prop. 220; Clement v. Hamilton Co., 2 Am. L. Rec. 729; Merchants’ Bank v. Trust Co., 1 Disney, 469, 476.
    
      W. M. Fa/rrar, for defendant in error.
   Okey, J.

Where an act is made punishable by fine and imprisonment, the words in which the offense is defined and punishment prescribed must be strictly construed, whether they are found in a statute or in an ordinance or by-law. And general words following particular and specific words, must, ordinarily, be confined to things of the same kind as those specified. Bishop’s Written Laws, §§ 245, 246 ; Hai’d. Const. Stats. 83 ; Maxw. Int. Stats. 297; Denbow v. The State, 18 Ohio, 11. Thus, in R. v. Cleworth, 4 B. & S. (116 E. C. L.) 927, Coekburn, C. J., said : “ There is a general expression, ‘ other person whatsoever ;’ but, according to a well established rule in the construction of statutes, general terms following particular ones apply only to such persons or things as are ejusd,em generis with those comprehended in the language of the legislature.” True, this rule is not to be employed in any case to defeat the plain intent of the general assembly (Woodworth v. The State, 26 Ohio St. 196; R. v. Edmundson, 28 L. J. 213, M. C.), but tbe rule seems to be strictly applicable here. And, according to a general rule equally applicable, sucb general words, following particular descriptive words, do not include such a partition, for the further reason that it is of a more permanent and important character than the things specifically mentioned. Ib.; Canterbury's case, 2 Coke, 46 b. Obviously, if the partition had been placed in the building at the time it was erected, an attempt to punish Shultz for failing to remove such part of his house, would have been mere usurpation of power; and we are unable to see that the case supposed is materially different from the case presented. We are perfectly clear that the words, “blind, screen, painted or frosted glass, shade, curtain, or other device,” do not embrace such a partition. The further question presented,— that is, whether the ordinance is reasonable and consistent with the policy of the state as declared in the statutes, — we need not determine.

Judgment reversed.  