
    Burgunder et al. v. Weil et al.
    
      Fraud in sales of wearing apparel — By itinerant vendors — Act of April US, 1894 — Interpretation of law.
    
    Section 9 of the act of April 23, 1894 (91 O. L., 173), entitled “ An act to prevent and punish fraud in sales of wearing- apparel at public or private sale by itinerant vendors, and to regulate all such sales,” does not apply to the claim of a wholesale dealer arising out of a sale of goods to a licensee to be by the latter resold in the course of the business licensed under the act, and no right to, or lien on the deposit of $500 required by the act to be placed with the secretary of state, can be asserted under that section in behalf of such claim, the claim not being one that arose 1 ‘ in connection with the business done in this state,” within the meaning of that section.
    (Decided April 25, 1899.)
    Error to the Circuit Court of Franklin county.
    This action was brought to determine the rights of different claimants of a fund deposited with the secretary of state under the act of April 23, 1894, (91 O. L., 173) entitled “An act to prevent and punish fraud in sales of wearing apparel at public or private sale by itinerant vendors, and to regulate all such sales.” After the cause had been tried in the court of common pleas it was appealed to the circuit court and there again tried upon its merits, and the fund awarded to the defendants in error, whereupon proceedings were brought in this court to reverse the judgment of the circuit court. The facts will be stated in the opinion of the court.
    Booth, EeoMng <& Peten'S, for plaintiffs in error.
    The court will bear in mind in considering this alleged assignment to Henry Giershofer & Company and its legal effect, that the claim of that company is not of the class of claims covered by the statute. That is, it does not appear by the agreed statement of facts as contained in the bill of exceptions, that their claim was incurred by Weil & Gugenheim in connection with their business of itinerant vendors within the state of Ohio. The existence of this fact is necessary before_ they can claim any rights under the statute. It is only this kind of a claim that can be liquidated in the manner described in section 9 of this act.
    Does the statute under consideration include a claim for goods sold to an itinerant vendor, to be by him used in his business in this state? Counsel for the contesting defendant will contend that it does not, and a majority of the circuit court seemed to. be of the same opinion. Their contention in the court below was, that the provisions of the statute only extend to claims which arose from a purchase of g-oods from the itinerant vendor, and did not include claim sarising out of a sale of goods to the itinerant vendor.
    The court will observe that no such limitation as is contended for by the other side is found in the language used by the legislature. The wording of the statute is broad and comprehensive, and includes all claims which arose in connection with the business of the itinerant vendor transacted within the state. The terms used are so clear and unambiguous that there is no room for construction.
    The constitutional rule “that no bill shall contain more than one subject, which shall be clearly expressed in its title,” is only a permanent rule of the legislature, and is only applicable to bills on their passage, and has no application in determining the validity of the enactment. Pim v. Nicholson, 6 Ohio St., 176; State ex rel. v. Covington, 29 Ohio St., 102; Seeley v. Thomas, 31 Ohio St., 304; Weil v. The State, 46 Ohio St., 450. The ordinary and natural import of words consistent with the common sense of the community, is to be adopted in arriving at the legislative intent in construing statutes. Allen v. Little, 5 Ohio, 71; State v. Peck, 25 Ohio St., 28. Plain and explicit language cannot be construed contrary to the express words, on conjecture. Last will, etc., of Hathaway, 4 Ohio St., 385; Smith Bridge Co. v. Bowman, 41 Ohio St., 37. Nor can the obvious meaning of a statute be abandoned or disregarded though the court is convinced the legislature intended differently, and omitted words by mistake. Woodbury v. Berry, 18 Ohio St., 456. Words or phrases that have acquired a fixed meaning, are presumed to be used- in the legal sense. Turney v. Yoeman, 14 Ohio, 218; Grogan v. Garrison, 27 Ohio St., 63; Gray v. Askew, 3 Ohio, 480. The title of an act, though no part of it, may be considered to explain its object and solve what is doubtful. Burgett v. Burgett, 1 Ohio, 480. The title of an act will not limit its scope or operation if the language used in the act is clear, unambiguous and comprehensive. Seeley v. Thomas, 31 Ohio St., 301. Neither the title, nor the preamble are part of the statute, and cannot be resorted to when the act itself is clear and comprehensive in its terms, but only to remove ambiguities where the intent is not plain. LaFayette Society v. Lewis, 7 Ohio, part 1, 86.
    
      Qumble da Qumble, for defendants in error.
    The whole claim of plaintiffs in error in this case is based upon section 9 of said act and we are content to submit this case upon the construction and interpretation of said section in its relation to the remainder of the act, for upon the construction and interpretation of the whole act rests the legal •status of both plaintiffs and defendants in error.
    The legislature passed an act (91 O. L., p. 173), which clearly and unmistakably was intended as a protection for persons who were deceived by making purchases from such vendors.
    The title of said act should be first looked to as to what the legislature intended to do.
    In this connection we desire to call the attention of the court to the rule that in determining what a law is and what its purpose, the very first thing to do is to look at and examine its title. Bates v. Nelson, 49 Mich., 455.
    True the title of an act does not constitute any part of the act itself; but it must be referred to in order to explain what is doubtful in the body of the act. Southerland on Statutory Construction, section 87; State ex rel. Belford v. Hueston, 44 Ohio St., 5.
    "We cite the foregoing because plaintiffs in error insist that the word “creditor, ” as used in one section of the statute, is intended to govern the whole act in so far as to persons who are to receive the benefits of the act.
    This court will certainly look to the causes that without doubt moved the legislature in enacting the law in question and upon the slightest reflection must conclude that it was the innocent public who patronized these traveling fire-sale merchants that the law-making body were attempting to give .some remedy. Medical College of Ohio v. Ziegler et al., 17 Ohio St., 65.
    The act itself does not in any manner infer that business men who sell goods to itinerant vendors should be protected, because it is a well known fact that persons that sell their goods and wares to itinerant vendors do so with the full knowledge and understanding of their transactions. In many instances these vendors are provided with goods to be used by them in such advertised sales, etc., and surely there could be no fraud or deceit whereby the seller to the itinerant vendor could be jeopardized.
    Could it he successfully maintained that because an itinerant vendor was unfortunate in not being able to meet his obligations that he was practicing fraud? If such was the judicial determination many an unfortunate honest man would he branded a fraud. The fraud that the legislature had in mind was the fraudulent representations made by the vendor in the sales of his merchandise, etc.; and if this court concludes that such was and is the purpose of the act, then as Burgunder Bros. & Co. admit that they sold their goods to Weil & Gugenheim to he used in such sales as said Weil & Gugenheim were engaged in, therefore could hardly come under the head of defrauded and deceived persons. Beaver & Butt v. Trustees, 19 Ohio St., 108; Doyle v. Doyle, 50 Ohio St., 341.
    If the legislature intended to protect such persons as sold goods and merchandise to itinerant vendors they could very easily have expressed such intention in plain and clear language.
    This act in question was declared constitutional by the circuit court of Hancock county, Ohio, as appears in volume 8 O. C. C. R., 324; 4 Circ. Dec., 82.
    The court is certainly of the opinion in that case that the act is to protect unsuspecting purchasers from such sellers and not the keen, shrewd and adroit seller to such itinerant vendors. Could an itinerant vendor deceive or defraud in the general acceptation of such terms, men who sell the vendor Ms goods for the purpose of his smoke, fire and clearance sales? Most assuredly not. And the legislature never intended that they should be considered in the enforcement of this .law. 3 Ohio, 107; 2 Ohio St., 431.
    While in the body of the statute in question the word “creditors” is used in several instances to make clear the class of persons that are to be protected, still in looking- to the meaning of the word in connection with the law in which it appears, recourse should be had to the true intent of the legislature. 48 Ohio St., 671; 31 Ohio St., 201; 34 Ohio St., 280; 2 Ohio, 74; 1 Ohio, 469.
    It is true that remedial statutes are to be so construed as to embrace all cases that come within the letter, provided that such construction and interpretation does no violence to the true intention of the legislature. Wilbur v. Paine, 1 Ohio, 265; Burgett v. Burgett, 1 Ohio, 469; Southerland on Statutory Construction at section 411.
   By the Court.

On May 16, 1895, Max Gugenheim obtained from the secretary of state a license to enter upon the business of an itinerant vendor of wearing apparel in the state of Ohio; and pursuant to the statute (91 Ohio Laws, 173) which provides for licensing that occupation, defendant deposited with the secretary of state the sum of five hundred dollars. Thereupon Gugenheim and his partner, Weil, entered upon the business, for conducting which the license was obtained, and conducted it until July 25, 1895, a period of about two months, when on the last named day he executed and delivered to Henry Giershofer & Go., defendant in error, the following instrument:

“Columbus, Ohio, July 29, 1895.
“I, Max M. Gugenheim, o.f the firm of Weil & Gugenheim, do hereby assign the within license to Henry Giershofer & Co. of Cincinnati, Ohio, in payment of debt, and do authorize the said Henry Giershofer & Co. to draw the amount deposited with the secretary of State, as set forth in said license after the expiration of sixty days from date, as authorized by law.
Max M. Gugenheim, of Weil & Gugenheim.
Jacob Weil,
Weil & Gugenheim. ”,

On the third day following they voluntarily surrendered to the secretary of state the license in question. Afterwards 'on August 29th following, the plaintiffs in error obtained a judgment against Weil & Gugenheim, the licensees, for $1,334.98, which judgment was founded on a claim for goods sold to the licensees to be again sold by them in the course of the business which they were conducting under the license. On the day the judgment was recovered the judgment creditors caused an execution to issue thereon which was at once levied on the $500 that had been deposited with the secretary of state when the license was obtained. Prom some other source the sum of $525 on September 1, 1895,. was paid on this judgment, and thereupon the judgment creditors brought an action to have the $500 so deposited with the secretary of state applied in payment of the balance due thereon. Henry Giershofer & Co., to whom the deposit had been assigned by the instrument before set forth, were made parties and set up by way of answer and cross petition a claim to the fund by virtue of that instrument. The assignment is inartificially drawn, but as it discloses that the intention of the parties, was to transfer to Henry Giershofer & Go. the fund in question in payment of a debt it is sufficient to accomplish that purpose and should be deemed to have transferred to the assignee whatever interest the assignors had in the fund. This assignment was made before the execution in question was issued, and even before the judgment itself had been recovered— and thus being prior in time to the claim made under the execution and levy it should prevail unless the plaintiffs in error can show that they had some claim or lien against the deposit to which the assignment at the time it was made was subject. It is at this point that the vital contention between the claimants arose. The plaintiff in error contends that section 9 of the act “to prevent and punish fraud in the sale of wearing apparel, etc.” before referred to, made the deposit subject to their judgment, because that judgment was on a claim for goods sold to the licensees to be by them re-sold in the business they were licensed to conduct. That section reads as follows:

“Section 9. Each deposit made with the secretary of state shall be subject, so long as it remains in his hands, to attachment and execution in behalf of creditors whose claims arise in connection with business done in the state, and to the payment of any and all fines and penalties incurred by the license through violation of this act. Claims under civil process shall be enforced against the secretary of state as garnishee or trustee by action in the usual form, and claims for satisfaction of fines and penalties shall be enforced by the prosecuting attorney serving notice of pendency of action (and judgment when obtained) upon the secretary of state. All claims upon each deposit shall be satisfied after judgment in the order in which notice of the claim is received by the secretary of state, until all such claims are satisfied, or the deposit exhausted;-but notices filed after the expiration of the sixty days’ limit aforesaid shall be valid. No deposits shall be paid over by the secretary of state to licensees so long as there are any outstanding claims or notices of claims against them respectively, unless he shall find that there is unreasonable delay in enforcing the same.”

We think the contention of plaintiff in error cannot be maintained. To afford a remedy to persons who should supply by sale to licensees goods to be used by the latter in their business is not an object contemplated by the act in question. On ■ the contrary, we think the deposit is required for the purpose of protecting such persons as may have claims that arise out of the particular business licensed, that is, out of the business the licensees themselves are- conducting. This construction is strongly supported by the title of the act. Doubtless the statute would include rents of the premises in which the business was conducted, wages of clerks and salesmen, claims for damages growing out of misrepresentation of the quality of the goods sold, etc. If the wholesale dealers or jobbers who furnish such licensees goods for carrying on the business licensed should be deemed to be within the statute, a deposit of only $500 would be wholly inadequate to attain the end intended. That is demonstrated by the fact that in the case before us the aggregate amount of the claims of the two firms now contending over the deposit in question exceed $8,000, or more than sixteen fold greater than the deposit. If the legislature had intended to protect wholesale dealers who furnish goods to the licensees to be sold by them, the deposit required would have been much greater.

The circuit court adopted this view awarded the fund to the firm to which it had been assigned; its judgment will be affirmed. There is no inteñtion to deny to any creditor of a licensee the right to proceed against the deposit of such licensee, but simply to deny to wholesale dealers who sell to licensees goods to be re-sold and to other general creditors of the licensees the protection of a statute that we think is designed to protect a special class of the creditors of such licensees, i. e. those whose claims arise out of the local business conducted by them under the licensees.

Judgment affi/rmed.  