
    John Bowers v. Mary A. Pomeroy et al.
    
    1. Justices of the peace, under the 7th section of the act of May 1, 1854, entitled “an act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” as amended April 18, 1870, (67 O. L. 102) have no jurisdiction of an action against the owner or lessee of premises, who knowingly permits intoxicating liquors to be sold thereon by any other person not the agent of such owner or lessee, in violation of law.
    2. Such jurisdiction is inhibited by the sixth clause of section 10 of the act of March 14, 1853, S. & O. 772, the action being one in which the title to real estate is drawn in question.
    Error to the court of common pleas of Summit county. Reserved in the district court.
    On the 7th day of January, 1871, the defendant in error Mary A. Pomeroy commenced an action under the seventh section of the act of May 1, 1854, entitled “an act to provide against the evils resulting from the sale of intoxicating" liquors in the. State of Ohio,” as amended April 18, 1870, before a justice of the peace, against the plaintiff iu error, and James Martin, Frank Peterman, and John Don hauser, claiming $300 damages, for injuries sustained by her m her means of support, in consequence of the intoxication of her husband, George ~W. Pomeroy.
    Judgment was demanded against James Martin and Frank Peterman, upon the ground that the intoxication of her husband had been caused by intoxicating liquors sold by them to him at divers times between the 1st of December, 1870, and the 3d of January, 1871; and against John Don hauser, upon the ground that he was the owner of the premises upon which the liquor was sold to her husband by Martin and Peterman, and that he knowingly permitted, intoxicating liquors to be sold upon his premises in violation of law, during said period; and against John Bowers, plaintiff in error, upon the ground that he was lessee of said premises, under Donhauser for a term of years, including said period, and had sublet the premises to Peterman for the purpose of selling intoxicating liquors thereon in violation of law, and that he knowingly permitted Martin and Peterman to sell intoxicating liquors on said premises, to her husband, during said period, contrary to law.
    On the 28th of January, 1871, trial was had before a jury, upon a plea of not guilty, and a verdict and judgment rendered against all the defendants jointly, for the amount claimed, and costs.
    It appears from the record that upon the trial, the plaintiff, to maintain the issue upon her part, offered evidence tending to prove, among other things, that the defendant John Donhauser was the owner of the premises upon which unlawful sales of liquor were made by Martin and Peterman, to her husband, and that on the 17th day of March, 1870, Donhauser leased the premises to Bowers for the term of two years from and after the 5th day of April, 1870. That Bowers went into possession under the lease, and afteiward, on the 1st day of October, 1870, sublet the same to defendant, Peterman, who went into possession and occupied the same as a saloon, during the period of said unlawful sales.
    It also appears that on the trial the defendants Donhauser and Bowers moved the court to dismiss the action as against them, “ because the court has no jurisdiction to try said cause of action against them, in this, to wit, that the action is one in which the title to real estate may be drawn in question, and is not an action for trespass ;” which motion was overruled and defendants excepted.
    The defendant Douhauser also moved the court, after the plaintiff had rested her case, to dismiss the action as to him, because the date of his letting to Bowers was before the amended act of April, 18, 1870, took effect; which motion was overruled and defendant excepted.
    Other questions were made during the trial before the justice, which are omitted here, as they are not considered in the opinion of the court.
    Donhauser and Bowers afterward filed a petition in error in the court of common pleas of Summit county to reverse the judgment of the justice, assigning for error, among other things, want of jurisdiction in the justice. Upon hearing, the court of common pleas reversed the judgment as to Don hauser, but affirmed it as to Bowers.
    Afterward on the 7th of September, 1871, Bowers hied his petition in error in the district court of Summit county to reverse the judgment of the common pleas affirming the judgment of the j ustice as to him. This petition in error was reserved in the district court for decision here.
    
      A. O. Vo7'is (for Voris & Green) for plaintiff in error :
    The justice of the peace had no jurisdiction to try the action against the plaintiff in error.
    The act of April 18th, 1870, amending the act “provid- “ ing against the evils resulting from the sale of intoxica- “ ting liquors in the State of Ohio,” does not attempt to confer jurisdiction upon any of the courts of the State to try causes of action arising under the act. It simply provides that “ all suits for damages under this act shall be by civil action in any of the cou7'ts of the State havi7ig jurisdiction thereof ” (67 O. L. 102.) This clearly leaves the matter of jurisdiction to the statutes already in force at the time said amended act became a law, and wholly dependent on them for its exercise.
    The jurisdiction of justices of the peace is not general, but limited, and depends wholly upon the statute creating it for its exercise, and may not be enlarged by judicial construction. Harrington v. Heath, 15 Ohio, 483.
    The statute provides that “justices shall not have cognizance of any action * * * in which the title to real estate * * * may be drawn in question, except actions of trespass,” &c. S. & C. 772, sec. 10.
    Eor a construction of this statute, see Bridgman v. Wells, 13 Ohio, 46 ; Nichol v. Patterson, 4 Ohio, 200 ; Caldwell v. Donshee, 15 Ohio, 488 ; Harringion v. Heath, 15 Ohio, 483.
    This action was one in which the title to real estate was drawn in question — the question whether Donhauser was the owner of the building and premises ; whether he leased the same to the plaintiff in error ; whether the latter went into possession under the lease, and sublet to Peterman, &c.
    The plaintiff below could not have maintained her action against the plaintiff in error without proving, as part of her case, title to real estate in him — the right to the possession and control of the “ buildings and premises ” where the liquor was sold, which is essentially title to real estate.
    “ Buildings and premises,” ex vi termini, import real estate. 1 Bouv. Law Die. 195 “ Building; ” 2 Id. 370 “Premises ;” 2 Id. 589, “ Title.”
    
      JST. W Goodhue, also, for plaintiff in error.
    
      JST. JD. Tibbals (for McKinney & Tibbals) for defendant in error:
    The action before the justice of the peace does not come within the statute (section 10, S. & C. 772) providing that justices of the peace shall not have cognizance of any action “ in which title to real estate is sought to be recovered, or may be drawn in question, except actions of trespass,” <fcc.
    This statute intended to exclude jurisdiction where the naked legal title in its technical sense might be drawn in controversy for the purposes of adjudication, where the action related to real estate — where the proof necessary to sustain the action depended upon record evidence of title technically understood, not where the party sought to be made personally liable sustained the relation of owner, or, as in our case, lessee.
    
    The plaintiff below could have maintained her action without proof of title to real estate in Bowers, in the sense the law uses those terms. She had not, necessarily, anything to do with either the title or the real estate. The proceeding under section 7 of the act of 1870, was a personal action against the persons sustaining any of the three relations to the “ building or premises,” where the liquor was sold, the seller the owner, the lessee. Nothing is said in section 7 about real estate, or subjecting the premises to the payment of the judgment. If the construction contended for by counsel for plaintiff in error be correct, it is singular that the legislature should make use of the terms “ building or premises ” in section 7 in connection with the personal liability of the classes of persons named, and provide, in section 10, that the real estate should be liable for the payment of the personal judgment. The use of the terms “ building or premises” in one section, and real estate, on which the damages are made a lien, in the other, indicates a design to exclude the whole matter of real estate, or the question of title, in the action permitted to be brought under the 7th section. Besides, section 10 expressly provides for proceedings in the court of common pleas to subject the building or premises to the payment of the judgment, and then and there all questions of title are to be determined, and the lien declared.
    The plaintiff below had nothing to do with the right of the landlord to avoid his lease ; nor with the fact whether he rightfully leased to the seller ; nor whether he legally had a title to the building ; but simply with the fact that he did lease to the party who inflicted the injury, with knowledge, &c. This may be proved by parol.
    
      The terms “building or premises,” as used in the statute, do not, necessarily, import real estate. They are not used interchangeably with, real estate. Nor do they necessarily mean real estate. One person may own the land and another the building. The owner of the land would not be a lessor of the building, so as to be liable under the statute, but the owner of the building would. Title to real estate would not be involved in such a case. Manifestly the legislature used the words “building or premises” to avoid questions of title to real estate, and to give justices of the peace jurisdiction.
   McIlvaine, J.

We propose to consider but a single question, in this case, viz: Has a justice of the peace, under the provisions of the seventh section of the act of May 1,1854, as amended April, 18, 1870, entitled “an act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” jurisdiction in an action against the owner or lessee of premises, who knowingly permits intoxicating liquor to be sold thereon in violation of said act, whereby intoxication and consequent injury results for which the action is authorized.

It will be observed .that jurisdiction of the action authorized by section seven is not thereby conferred upon any court by name. The provision is, that “ all suits for damages under this act shall be by a civil action, in any of the courts of this State having jurisdiction thereof.” (67 O. L. 102.)

The powers and duties of justices of the peace in this State are regulated solely by statute. Const. art 4, sec. 9 ; McCleary v. McLean, 2 Ohio St. 368 ; McKibben v. Lester, 9 Ohio St. 627. By section seven there is no enlargement of jurisdictional power granted to any court. Existing jurisdiction in civil actions is recognized, in the court and the suit therein authorized is declared to be a civil action in contradistinction to criminal proceedings. In civil actions the general grant of jurisdiction is conferred upon justices of the peace, by section 4, of the act of March, 14 1853, as amended, May 1, 1854, as follows : “ Under the restrictions and limitations herein provided, justices of the peace shall have exclusive original jurisdiction of any sutn not exceeding one hundred dollars, and concurrent jurisdiction with the court of common pleas, in any sum over one hundred dollars, and not exceeding- three hundred dollars.” (S. & C. 770.) One of the restrictions upon this jurisdiction is contained in the 6th clause of section 10 of that act. (S. & C. 772). Justices of the peace shall not have cognizance of any action “ in which the title to real estate is sought to be recovered, or may be drawn in question, except actions of trespass,” &c. See McKibben v. Lester, 9 Ohio St. 627.

In construing this clause we approve and adopt the rule laid down by the court in Bridgman v. Wells, 13 Ohio, 43. The court say, “Where the plaintiff, in order to sustain his case, is compelled, in the first instance, to prove certain facts, or disprove them, and those facts, or either of them, is title to lands or tenements, the jurisdiction of the justice is excluded, except in trespass,” &c.

In order to sustain her action against the plaintiff in error the defendant in error was compelled to prove, in the first instance, that he was lessee for a term of years under Donhauser, the owner of the premises, and that he had sublet his term to Peterman, and knowingly permitted Martin and Peterman to sell intoxicating liquors upon the leased premises, in violation of law. Title to the premises, and power of control over them, lay at the foundation of the liability of the plaintiff in error.

This brings us to the conclusion that the justice had no jurisdiction of the original action as against the plaintiff in error, unless, as is claimed hi argument, the word ‘1 premises,” as used in this statute, does not necessarily mean real estate, or unless a leasehold for a term of years is not a title to real estate, within the meaning of the 6th clause of sec-' tion 10 of the act of 1853, above quoted.

As to the first quere, we are of opinion that the word “ premises” was used in the statute as the very synonim of lands and tenements. It was undoubtedly the intention of the legislature to make the owners and lessees of real estate liable for knowingly permitting their lands and tenements to become a locus for crime. And as to the second, we need only to say, that although a leasehold for years is regarded for some purposes as a chattel, and subject to the laws relating to personal property, it is nevertheless a chattel real— an estate in lands and tenements, the title to which, when made a primary question in a case, is beyond the jurisdiction of a justice of the peace, except in special cases expressly provided for by the statute.

Judgment reversed.

Welch, C. J., and White, Day and West, JJ., concurred.  