
    SALES OF LIQUOR ON THE OHIO RIVER TO RESIDENTS OF A DRY COUNTY.
    Common Pleas Court of Adams County.
    The State of Ohio v. Frank Kendle.
    Decided, January, 1909.
    
      Liquor Laws — Jurisdiction of Offenses Against, Committed on the Ohio River — Effect of a Government License — Meaning of the Phrase “Within the Limits of’ as Applied to Criminal Procedure — .9.9 O. L. 85.
    
    1. Tlie courts of Ohio have jurisdiction of crime's and offenses committed on the Ohio river opposite its shores, and this is so although the statute defining the offense makes it unlawful to do the act "within the limits” of any county where prohibited.
    
      2. A receipt from the United States Government for the tax levied upon the retailer of intoxicating liquors does not authorize the owner to violate any of the laws of the state where issued, nor to sell intoxicating liquors at retail in any county where the sale is prohibited by law.
    
      C. G. W. Naylor, Prosecuting Attorney, for the State.
    
      W. P. Stephenson and W, 8. Foster, for defendant.
    At the January term, 1909, of the Court of Common Pleas of Adams County, Ohio, the grand jury returned an indictment against the defendant, Frank Kendle, charging a violation of the Rose law. The facts sufficiently appear from the following agreed statement of facts:
    ‘■‘It is agreed by and between the parties to this action, the State, represented by C. C. W. Naylor, prosecuting attorney, and the defendant in person and by. his counsel, W. P. Stephenson and W. S. Foster, that the following are the agreed facts in this case:
    “First. That-on the 29th day of September, 1908, at an election duly called and held under what is known as the Rose County Local-Option law, a majority of the votes cast at said election were in favor of prohibiting the sale of intoxicating liquors within the limits of Adams county, Ohio, and that within the limits of said Adams county, Ohio, the sale of intoxicating liquors- as a beverage is prohibited and unlawful, and has been from and after thirty days from said 29th day of September, 1908.
    . “Second. That the defendant, Frank Kendle, on the 13th day of December, 1908, sold to John Harris, the person named in the indictment, intoxicating liquor, to-wit, whiskey, to be used as a beverage; -that said John Harris was at the time a citizen and resident of Adams county, Ohio.
    ‘ ‘ Third. That the said Frank Kendle was not then and there a regular druggist, and said sale was not for exclusively known medicinal, pharmaceutical, scientific, mechanical, or sacramental purposes, nor was said sale made in good faith upon a written prescription signed and dated in good faith by a reputable physician in active practice. .
    “Fourth. That said sale was made by the said Frank Kendle on board the steamer Bertha Sahúmate while said steamer was-moored in the Ohio river, opposite the shores of Adams county, Ohio, and beyond the low water mark on the Ohio side of the river and about fifty yards from the Ohio shore, said steamer being at the time on the Ohio river between the upper and lower boundaries of Adams county, Ohio, that is to say, that if the upper and lower boundaries of said Adams county, Ohio, were extended into the Ohio river said steamer would be between said lines.
    “Fifth. It is also admitted, if the same is competent in this case, that said defendant, Frank Kendle, at the time and place of this sale had in his possession the following Government receipt, namely:
    “$16.67 No. 113645
    “Series of 1908. ' Series of 1908.
    “United States Stamp for Speoial Tax.
    “Internal Revenue.
    “Act of October 1, 1890.
    “Received from Sahúmate and Kendle the sum of sixteen 67.100 dollars for special tax on the business of retail liquor dealer at Steamer Bertha Schumate, Ohio river, state of Ohio, for the period represented by the coupon or coupons hereto attached.
    “Dated at Cincinnati, November 13, 1908.
    “B. Bettmann, Collector 1st Dist., State of Ohio.
    “$25 per year.
    “Severe penalties are imposed for neglect or refusal to place and keep this stamp conspicuously in your establishment or place of business.
    ‘ ‘ This stamp is simply a receipt for a tax due the Government, and does not exempt the holder from any penalty or punishment provided by the law of any state for carrying on the said business within such state, and does not authorize the commencement nor the continuance of such business contrary to the laws of such state, or in place prohibited by municipal law. See Section 3243, Revised Statutes, U. S.
    “There arc attached to said receipt the following coupons:
    ‘ ‘ Coupon for retail liquor dealer’s special tax for Nov., 1908.
    ‘ ‘ Coupon for retail liquor dealer’s special tax for Dec., 1908.
    ‘ ‘ Coupon for retail liquor dealer’s special tax for Jan., 1909.
    “Coupon for retail liquor dealer’s special tax for Feb., 1909.
    “Coupon for retail liquor dealer’s special tax for March, 1909.
    “Coupon for retail liquor dealer’s special tax for April, 1909,
    
      “Coupon for retail liquor dealer’s special tax for May, 1909.
    “Coupon for retail liquor dealer’s special tax for June, 1909.
    “It is further agreed by the parties that a jury be waived and the 'Cause submitted to the court without the intervention of a jury upon the foregoing agreed statement of facts.
    “O. C. W. Naylor, Prosecuting Attorney, on behalf of the State.
    “Frank Kendle, defendant.
    “Will P. Stephenson and W. S. Foster, attorneys for defendant.”
   CORN, J. (orally).

This case is submitted to the court upon an agreed statement of facts and the determination of it hinges largely, if not wholly, upon the question of the jurisdiction of courts of common pleas of crimes and offenses Committed upon the Ohio river beyond low water mark.

■ It is practically conceded by the .arguments of counsel- that this court does have jurisdiction of crimes and offenses committed on the Ohio river opposite the shores of Adams, county, as I understand the arguments of counsel, but they maintain that in order ’to exercise that jurisdiction or invoke that jurisdiction and have it properly exercised, it must be alleged or set out in the indictment.

That, so far as this court is concerned, is a new question. I have never had that question raised before, but I do not regard it as serious.

This case is a ease of considerable importance. It creates a question which in all probability would not have been raised, if it had not been for the passage of the Rose County Option law and the advantage taken of it by the counties bordering on the Ohio river to declare that the sale of intoxicating liquors as a beverage should be prohibited in the various counties, I believe beginning with Hamilton, county. Above Hamilton county— fjrom that county on up the river practically .to the Pennsylvania line — Is a strip of dry territory.

If the contention of the defendant is correct, that under and by virtue of his government license he could ply the Ohio river and sell intoxicating liquors as a beverage to the citizens residing in these dry counties, then so far as the Rose County Local Option law is concerned in counties bordering on the Ohio river, it amounts to nothing. It permits a person to sell intoxicating liquors in those counties without enabling the county to control the sale of it, and without 'enabling municipalities along the river to control the sale of it, and at the same time depriving the counties and the municipalities along the Ohio river of the Aiken tax which is imposed by the state upon .the retailer of intoxicating liquors.

Now, if the contention of the defendant is valid, let us see where this would end. A man could take an ordinary family boat, as it is called, moor it in the Ohio river opposite any municipal corporation in this state, and, so long as outside of low water mark, could .«ell intoxicating liquors at his pleasure.. If one man could dp thisr a hundred or .any number could-.do it. And by means of skiff a number of what might practically bé termed saloons could exist opposite and along the shores of the Ohio river, and the courts would be powerless to reach and control cases of that.kind.

Now that ma.y be the law in Ohio; that may be the law under the Rose County Local Option law; that may be the right of the defendant in this case; but if it is, some other court than this' must declare it to be the law. I am going to decide this question in favor of the enforcement of the law; I am going to decide it so as to give effect to this Rose County Local Option law. The jurisdiction of the courts of this state extends to all crimes and offenses committed 'on the Ohio river anywhere, and I do not believe that the use of the terms “within the limits” of any county affects the case, .any more than the terms used in any of the other statutes of the requirements of-criminal procedure, that an offense charged must be shown to have been committed within the county in which it is alleged or in which the prosecution is being had.

I do not believe that, if this defendant, instead of selling intoxicating liquors in violation of the law on board his little boat, had committed an assault upon one of Ohio’s citizens or a citizen, of .another state, or had committed a homicide upon his boat, that he would escape trial and punishment by the court, saying that it occurred on the Ohio river beyond the limits of low water mark. I think that either the state of Kentucky or the state of Ohio, whichever assumes the jurisdiction and obtains custody of the defendant first, would have full and complete jurisdiction to hear and determine the case and inflict punishment.

I am aware'of one decision of the circuit court of this circuit, which might tend to limit the jurisdiction to the Ohio side of the thread of the stream. We had a case in Lawrence county of a number of persons who had caught logs adrift upon the Ohio river when the price for catching logs was different in Ohio and in West Virginia. The logs belonged to Orane & Company. It was' claimed by them that the persons who had caught' the logs had feaught them beyond the thread of the stream, nearer the West Virginia than the Ohio shore, and landed them temporarily upon the Virginia shore, because they were nearer to that shore, and after the river receded towed the logs to the Ohio shore in order to collect the greater price for taking up and securing logs. These persons claimed to have a right to retain possession of the logs until the charges were paid and demanded the Ohio price. Crane & Company tendered the West Virginia price for catching logs, and being refused instituted an action in replevin. The 'common pleas court, Judge Codings sitting, I think, decided in favor of the Ohio price. The circuit court reversed the decision, holding that logs caught on the Ohio side of the thread or middle of the stream could be charged for at the Ohio price, but if caught beyond the thread or middle of the stream on the West Virginia side, then the taker up could not collect more than the charge fixed by West Virginia statute. ■

Out of consideration of public policy I do not believe that the court in a case like this, or in any criminal case, ought to be bound by that decision. I have already indicated to counsel the effect of granting the claims of the defendant in this ease, that he is beyond and without the jurisdiction of this court. It is very far reaching in its results; of very great interest to the state as well as to the defendant. As I have already said, so far as I am concerned, I think this case ought to be decided in the interest of upholding the law in the state of Ohio, and avoiding the injurious effects and results that might come from failure to do so.

In preparing the charge in this ease, among other things I had prepared to say to the jury was, “the fourth element which the State is required to make out beyond a reasonable doubt is that, such unlawful sale, if one was made, occurred within the limits of Adams county, Ohio. ’ ’ I had prepared the charge as follows:

“On this branch of the case I charge you that if it appears from the evidence that the defendant made the sale, if one was made, on or from a boat moored in the Ohio river, or floating or running on the Ohio river, opposite any part uf Adams county, that is, between the upper and lower boundaries of the county on the river, that would be within Adams county,' within the meaning of the law, and would make the defendant amenable to the laws of Ohio, and bring him within the jurisdiction of this court. ’ ’

Counsel can readily see if the case had gone to the jury and had I charged the jury in that way I would have followed, so far as applicable to this case, the language of Judge Belden in Ohio v. Stevens and Everett, 2 W. L. J., 66, which I think substantially states the law, if for no other reason, by reason of the Virginia Compact at the time of the cession of the territory.

I take this view for another reason, namely: That that particular case went to the Supreme Court, and while it was reversed, it was not reversed upon that branch of the charge, although that was one of the assignments of error. I am aware that the Supreme Court dismissed the question with the statement that there was no evidence showing the charge to be material to the facts in the case, and so far as disclosed by the bill of exceptions was an abstract proposition of law. Stevens & Everett v. Ohio, 14 Ohio, 386.

But the Supreme Court would not do a vain thing, and I feel sure that if the Supreme Court believed that that charge did not correctly state the law applicable to such eases, in sending the case back for a new trial, that court would certainly have said that the trial court erred in charging the jury in that manner ; otherwise the same error would have occurred again. The attention of counsel is directed to the following as bearing upon the territorial boundaries of Ohio, and upon the question of the criminal and civil jurisdiction of the courts of Ohio:

Act of Congress, approved April 30, 1802, 1 Chase, 70; Constitution of 1802, Article VII, Section 6; Eckerts v. Colvin, 1 West Law Jour., 54; 4 Western Law Journal, 145-164; 5 Western Law Journal, 433-437; 3 Western Law Journal, 310, 337; McCullock v. Aten, 2 Ohio, 308; Benner v. Platter, 6 Ohio, 505; Blanchard v. Porter, 11 Ohio, 138; Booth v. Hubbard, 8 O. S., 243, 245; Handly’s Lessee v. Anthony, 5 Wheat., 374.

The statement in the agreed statement of facts that the defendant had in his possession a receipt for the'' special- tax levied by .the United States government upon the sale,.of intoxicating liquors at retail constitutes no defense to this prosecution, nor is such receipt a warrant or authority for the defendant to vior late the laws of Ohio, nor to sell intoxicating liquors in a territory where by the laws, of such territory the selling is prohibited and unlawful. The government does not authorize the doing of an unlawful act,-and'this receipt specifically so states.

. So that, upon the agreed statement of facts, I find and adjudge that the defendant is guilty in manner and form as he stands charged in the indictment.  