
    CONSTITUTIONAL LAW — HIGHWAYS.
    [Cuyahoga (8th) Circuit Court,
    October 26, 1908.]
    Marvin, Winch and Henry, JJ.
    
      W. U. Noble v. Frank Clark.
    1. General Statute Requiring Labor on Highways not Rendered Unconstitutional by Special Act Exempting Certain Counties from its Operation.
    Act 98 O. L. 327 (Gen. Code 3375 et seq.), requiring labor on highways, is not rendered in contravention of Art. 2, Sec. 23, of the constitution, prescribing uniform operation for general laws, by act 95 O. L. 104 purporting to exempt certain counties from its uniform operation.
    2. Averring Nonattendance at Road Work Equivalent to Averment of Nonattendance of Defendant or Substitute.
    A petition in an action to recover a penalty prescribed by act 98 Ó. L. 329 (Gen. Code 3378) for failure of defendant to attend by .himself or substitute when notified to perform work on the highway, that avers his nonappearance when summoned, is sufficient and covers his delinquency both as to failing to attend himself and failing to send a substitute.
    3. Road Superintendent Proper Party to Sue for Penalties under Road Labor Act.
    A road superintendent under act 98 O. L. 330 (Gen. Code 3383, 3384) is the proper party to bring an action to recover penalties prescribed by that act.
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Error to common pleas court.
    
      E. E. Reinhardt and H. A. Eauxhurst, for plaintiff in error.
    
      Hart, Canfield & Croke, for defendant in error.
    
      
       Affirmed, no op., Noble v. Clark, 83 O. S. 515.
    
   HENRY, J.

The action below resulted in judgment for the defendant, upon demurrer sustained to .the petition. It is founded upon the act of April 16, 1906, 98 O. L. 327, requiring labor upon highways. It is claimed that this act is unconstitutional, because it is a law of a general nature, not of uniform operation throughout the state, in violation of the constitution of Ohio, Art. 2, Sec. 26, in that Cuyahoga and Hamilton counties are, by reason of another law, specially applicable to them, exempted from its operation; and furthermore, because it infringes the inviolability of private property, guaranteed by Sec. 19 of the bill of rights, and denies the equal protection of the law, by allowing road superintendents to require persons summoned for labor upon the highways to bring teams of horses, if they have them.

Having recently upheld the constitutionality of this law in Lorain county, and having regard also to the case of Dennis v. Simon, 51 Ohio St. 233 [36 N. E. Rep. 832], in which the old law, R. S. 4717, which provided for two days’ labor on the public highways of this state, was held not to be in conflict with the constitution, and to be a valid law, we shall not discuss this question further than to say that the alleged exemption of Cuyahoga and Hamilton counties from the operation of the, present law, is not in accordance with the construction which we place upon.it, namely, that it is of uniform operation throughout the state and the act of April 4, 1902, 95 O. L. 104, purporting to exempt Cuyahoga and Hamilton counties and to repeal previous legislation, cannot be effective to prevent such uniform operation.

It is further contended that the petition is defective because it fails to allege that the defendant not only did not appear himself, but that he made no appearance l>y substitute, when summoned to perform labor upon the highway.

The language of the statute is that any such person shall appear “by himself or substitute,” whereas the petition does not expressly deny that he appeared by substitute. We think, however, that the averment of the defendant’s nonappearance, when summoned, is broad enough to cover his delinquency in both respects. If he failed to appear at all it is clear that he failed to appear either by himself or substitute.

It is urged in the third place that the road superintendent is not the proper party to maintain an action to recover the amount provided to be paid under the statute by any person who fails to respond to proper notice for the performance of labor on tbe highways; but Sees. 12 and 13 of the act seem clearly to authorize him to prosecute such action.

"We think that the petition below states a cause of action and that the demurrer thereto should not have been sustained.

For error in sustaining the demurrer the° judgment below is reversed and the cause remanded.

Marvin and Winch, JJ., concur.  