
    The Board of Commissioners of Champaign County, Ohio, Etc., v. Church, Etc., Admr. Caldwell v. The Board of Commissioners of Cuyahoga County.
    
      Suppression of mob violence — Validity of act of April 10, 1896 — - Power of legislature to provide recovery for death and injury — Such legislation not exercise of judicial power — Nor right of trial by jury — Penalty for lynching — Nature of mob — Constitutional law.
    
    
      1. The act of the legislature of Ohio, entitled “An act for the Suppression of Mob Violence,” passed April 10, 189C (92 O. L., 136), is constitutional.
    2. The recovery authorized by said act is penal in its nature, and it is within the legislative power to provide therefor. Such legislation is not an exercise of judicial power; nor is it a violation of the right of trial by jury.
    
      3. . Such recovery, and the tax levy authorized and required by said act, are within the general powers of the legislature, and the provisions of section 7 of article 10 of the constitution; and such recovery and levy are not in contravention of section 19 of article 1 of the constitution.
    
      4. In an action brought under such statute, to recover the penalty of five thousand dollars, for the death of a person caused by lynching, it is error for the court to charge the jury to the effect that if the collection of individuals, who lynched the deceased, had assembled without any unlawful purpose, and after-wards committed the acts of violence which resulted in the death of such person, the plaintiff could not recover, and that the verdict should be for the defendant.
    5. In an action, brought under such statute, to recover the penalty for an injury caused by lynching, where it is sufficiently alleged in the petition that the plaintiff had suffered a lynching at the hands of a mob composed of a collection of individuals, who had assembled for an unlawful purpose, and attempted to exercise correctional power over the plaintiff and his fellows, the allegations in the petition are not negatived by the specific averments, also contained in the petition, that the plaintiff was struck by “a heavy glass insulator thrown at him by one of the mob,” and that he was “shot through the leg with a leaden bullet fired from a revolver in the hands of some of the mob.”
    (Decided April 10, 1900.)
    Error to the Circuit Court of Champaign County.
    Error to the Circuit Court of Cuyahoga County.
    Benjamin F. Church, as the administrator of Chas. W. Mitchell, deceased, filed a petition against the Board of Commissioners of Champaign county, under the “Act for the Suppression of Mob Violence,” passed April 10,1896 (92 O. L., 136), to recover five thousand dollars for the lynching of said Mitchell, at Urbana, in said county. Defendant demurred to the petition and the demurrer .was sustained by the court of common pleas and the petition dismissed. The circuit court reversed the judgment of the court of common pleas and the defendant then answered.
    The first defense contained in the answer of the defendant is a general denial, and the second defense alleges that the said act is repugnant to the constitution of Ohio. A demurrer to the second defense of the answer was sustained; and on the trial of the case, the court gave to the jury the following special charge upon the request of the defendant: “The jury is charged, as a matter of law, that although you may find and believe from the evidence before you in this case, that said Charles W. Mitchell, referred to in the petition, suffered death at the hands of a collection of individuals in Champaign county, Ohio, on or about the 4th day of June, 1897; if you further find from the evidence that said collection of individuals did not assemble for any unlawful purpose, and did not intend to do damage or injury to any one, and did not pretend to exercise correctional power over other persons by violence, and without authority of law, at the time of assembling, but was or were, attracted and induced through motives of curiosity, and the events that had transpired around the court house yard and jail during the night and morning preceding, to meet and assemble together; and being thus assembled, without any unlawful purpose and not intending to do damage, or injury, to any one, or pretending to exercise correctional power over any other person or persons by violence and without authority of law, afterwards, committed the acts of violence resulting in the death of said Charles W. Mitchell, then the plaintiff in this case cannot recover, and your verdict should be for the defendant.” And afterwards, in the general charge, the court instructed the jury, in part as follows: “Much has been said concerning the meaning of special charge No. 5, given on behalf of the defendant, and the court therefore deems it proper to instruct the jury that the meaning which you are to give to that charge is that, and I give it in the words of the charge itself, omitting the first introductory sentences, if, after being assembled, the collection of individuals referred to before, without any unlawful purpose having been formed and not intending to do damage or injury to any person, or pretending to exercise correctional power over any other person; committed the acts oí 
      violence which resulted in the death of Charles W. Mitchell, then the plaintiff cannot recover.”
    “The special charges given you before the argument began are as much the charge of the court as are these general instructions, and so far as it treats of the same subjects, the general charge is to be received in addition to and as explanatory of the special charges.” The verdict was for the defendant and on petition in error the circuit court reversed the judgment of the court of common pleas, for error in the charge of the court.
    J. W. Caldwell brought his action, under the same statute, against the Board of County Commissioners of Cuyahoga County, to recover the sum of one thousand dollars for an injury which he alleged that he had received at the hands of a mob in that county, A demurrer to the petition, on the ground that the petition does not state facts sufficient to constitute a cause of action, and that said act is unconstitutional, was sustained by the court of common pleas, and the judgment of the court of common pleas was affirmed by the circuit court.
    These cases came up on petitions in error to reverse the respective judgments of the circuit court.
    
      T. J. Frank; E. P. Middleton and 8. 8. Deaton, for the Board of Commissioners of Champaign county, plaintiff in error.
    What is the true construction of the “Act for the Suppression of Mob Violence” involved in this case, Ohio Laws, Vol. 92, page 136, passed April 10, 1896? And what is a mob and what constitutes a lynching within the meaning of said act?
    No such liability against a county as is provided for in this statute existed at'common law. College of Medicine v. Cleveland, 12 Ohio St., 375; Robinson v. Greenville, 42 Ohio St., 625; Gianfortone v. New Or
      
      leans, 61 (Fed. Rep.) 64 L. R. A., vol. 24, page 592, notes and cases cited; 31 Ill., 543; Schuyler Co. v. Mercer, 4 Gilm. Ill., 20.
    This statute is in derogation of the common law and common law right, and if it be claimed that it is penal in its nature, and is intended to operate in the nature of a penalty and punishment upon each individual tax payer in the county, then it must be interpreted and construed according to the rules for the construction of penal statutes and statutes in derogation of common law rights. 38 Ohio St., 659; 44 Ohio St., 347.
    Also statutes passed in exercise of the police power of the state are to be strictly construed. Am. and Eng. Enel, of Law, Vol. 23, page 348 to 388, notes 1,2 and 3.
    It has been held if the language of a statute is unambiguous there is no rule for construction even though the objects of the act are defeated. McCormick v. Alexander, 2 Ohio, 95; Brunner v. Briggs, 39 Ohio St., 478.
    Nor can plain and explicit language be construed contrary to the express words of the statute on conjecture. 41 Ohio St., 383; 41 Ohio St., 47 to 52.
    This statute, .for the purpose of this case, defines a mob and says, that any collection of individuals assembled for any unlawful purpose, intending to do damage or injury to any one, or pretending to exercise correctional power over other persons by violence, and without authority of law, shall be regarded as a mob.
    Would a collection of individuals, whose assembling together was innocent and for a lawful purpose, not intending to do damage to any one, or pretending to exercise correctional power over other persons by violence, if, after being so assembled, some of them should suddenly, from some unexpected cause or provocation, beat, injure or kill some one, constitute a mob and render the county liable for the consequence of such acts under the provisions of the statute? We think not. State v. Kemp, 26 Mo., 429.
    It follows, if our contention as to the construction of this statute is right, that the court correctly stated the law to the jury in said special charge No. 5 and if the court erred in its modification of said special charge in the general charge, it was error to the prejudice of the plaintiff in error therein, and not the defendant in error.
    The act is unconstitutional and void and in controvention of the following provisions of the Constitution of the State of Ohio. Article 1, Section 1. Bill of Rights. Article I, Section 5. Article II, Section 32. Article I, Section 16. Article I, Section 19. Article IV, Section 1. Article XII, Section 5.
    And is repugnant to Article 14, Section 1 of the amendment to the constitution of the United States.
    This was the first and only statute ever enacted by the legislature of Ohio prescribing a minimum amount of damages to be recovered, and no court in America, except the circuit court of Champaign county, Ohio, has ever yet held such a statute to be constitutional or valid. This statute also differs from all statutes of a similar nature passed in other states in many essential particulars.
    The statute of April 10, 1896, is in violation of Article 1, Section 5 of the constitution. (Trial by Jury.) “The right of trial by jury shall be inviolate.” This right of trial by jury is beyond the power of the general assembly to impair or. to materially change its character. 2 Ohio St., 297.
    The constitutional limitation as to trial by jury, is on the power to abridge, and not on thé power to extend. The right may be extended, but not abridged. Gunsaulus v. Petitt., Admrx., 46 Ohio St., 28; Turn Pike v. Parks et al., 50 Ohio St., 578.
    The right to retain property already in possession is: as sacred as the right to-recover it when dispossessed. The right to defend against the action to recovar money is as necessary as the right to defend one brought to recover specific real or personal property. Coal Co. v. Rosser, 53 Ohio St., 24.
    Deprivation of a remedy is equivalent to the deprivation of the right, which it is intended to vindicate, unless another remedy exists or is substituted for that which is taken away.
    My property is as much imperiled by an action against me for money, as it is by an action against me for my lands or my goods. Board of Education v. Blodgette, 155 Ill., 441.
    All courts shall be open and every person, for an injury done him and his lands, goods, etc., shall have remedy by due course of law. People ex rel v. Supervisors, 74 N. Y., 234; Clark v. Mitchell, 64 Mo., 578; People v. Smith, 25 N. Y., 529; Risser v. Hoyt, 53 Mich., 201; Ziegler v. Ry. Co., 58 Ala., 528; Dartmouth College v. Woodward, 4 Wheat., 518; Bank v. Okley, 4 Wheat. (U. S.), 244.
    This statute is also in violation of Article 2, Section 32 of the state constitution. “The general assembly shall grant no divorce, nor exercise any judicial power not herein expressly conferred.”
    What constitutes judicial power, within the meaning of the constitution, is to be determined in the light of the common law, and of the history of our institutions, as they existed anterior to and at the time of the adoption of the constitution. State ex rel. v. Harmon, 31 Ohio St., 250; Decamp v. Archibald, 50 Ohio St., 625.
    That is not legislative which adjudicates in a particular case — prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than any other attribute of government. Erwin’s Appeal, 16 Pa. St., 256; A. & E. Ency. of Law, Yol. 13, page 223 and note; A. & E. Ency of Law, Yol. 19, page 454 and note 3.
    An act of the legislature which undertakes to determine questions of fact and law affecting the rights of persons and property is judicial in its nature and character, and is therefore not a rightful subject of legislation. Powder v. Graham, 4 Fla., 23; Ayers v. Perry, et al., 10 Yerg Tenn., 59; 9 A. M. R., 662; 11 A. M. R., 528; 6 Mich., 193; 26 Cal., 135; 32 Wisc., 406; 3 Scam., 238; Article 1, Section 5; Article 4, Section 1; Article 2, Section 32, State Constitution of Ohio.
    Ascertainment of indebtedness from one to another and a direction for payment are judicial acts which cannot be performed by the legislature. Lane v. Dorman, 4 Ill., 238; Railway Co. v. Gallatin, 99 U. S. R., 761.
    The encroachment of one of the three several departments is Avatched with jealous care and is generally promptly resisted, for the observance of this fundamental law is essential to the maintenance of ■ republican form of government. Longdenberg v. Decker, 16 L. R. A., 112; Harvey v. State, 127 Ind., 588; State v. Noble, 118 Ind., 350; Janesville v. Carpenter, 8 L. R. A., 808.
    The statute involved in this case, by fixing the minimum damages at $5,000.00, is nothing more or less than a legislative judgment, a judicial decree, handed down by the legislature to the court to be carried into effect. Holtz v. Commissioners, 41 Ohio St., 435.
    This statute is unconstitutional for the reason that it is an encroachment of the legislative upon the judicial branch of government, and by its terms necessarily deprives the defendant of any right of trial as to material and disputed facts and subjects the taxpayers of the county to the loss of property without due course of law. Hanson v. Vernon, 27 Iowa, 28; Board of Education v. State, 51 Ohio St., 539; Powder v. Graham, 4 Fla., 23; Caldwell v. Commissioners, 15 Ohio C. C. Rep., 167; 8 C.D., 56.
    The validity of a statute must be determined, not by its form, but by its substance and practical operation. State ex rel. v. Barger et al., 53 Ohio St., 109.
    The constitutionality of a law depends upon its effect and not upon its form. State v. Kipp., 38 Ohio St., 199.
    An act violating the intent and spirit of the constitution is void, though within its strict letter. 34 Ohio St., 431.
    There is another rule of construction of statutes not to be’forgotten in this connection, and that is that statutes in .derogation of common law and delegating the power to levy taxes or assessments must be strictly construed. Enel, of Law., Vol. 23, pages 383 and 395, note 3.
    The Ohio statute is violative of Article 1, Section 19 of the Bill of Rights of the state constitution. This clause of the constitution prohibits the taking of private property for private use. 25 Ohio St., 81; Weismer v. Village of Douglas, 64 N. Y., 99.
    In Western Union Telegraph Co. v. Meyer, Treas., 28 Ohio St., 521, it is decided that the provisions of article XII of the constitution of Ohio, though they relate to finance and taxation, are limitations upon, rather than grants of power of taxation. f
    
    It is also decided in Ohio where the facts, out of which a moral (or legal) obligation is claimed to arise, are disputed, the contention falls within the province of the courts, under the distribution of governmental powers ascribed by our constitution. Sec. 1, of article IV of the Constitution of 1851.
    Private property, except when taken for public purpose or by legitimate taxation, is as inviolable as personal liberty. Taylor v. Commissioners, 23 Ohio St., 84.
    The statute in question authorizes the taking of private property for private use. The amount of the recovery is not a tax. It does not go into any public fund of the state or county. It is not a fund to be applied to any governmental expense which the state, in the exercise of its police powers, may authorize. Hanson v. Vernon, 1 AM. R., page 215; Palairet’s Appeal, 67 Penn. St., 479; 5 Am. R., 450; 1 Ohio St., 273; 28 Ohio St., 521; 23 Ohio St., 84; 9 Am. R., 622.
    The power of the legislature to impose taxes is not unlimited. It is within the province of the courts to determine in particular cases whether the extreme boundary of legislative power has been reached and passed. 28 Ohio St., 521; 35 Ohio St., 468; 27 Iowa, 28; 19 Wisc., 64; 25 A. & E. Ency. of Law, 74, note 5, cases cited.
    While it is true that, under our constitution, in the apportionment of the governmental powers, the authority to tax necessarily falls to the legislative, yet the legislature cannot confer any greater power than the state itself possesses, and it must observe the restrictions and limitations of the organic law and constitution of the state. Railway v. Commissioners, 1 Ohio St., 77; Dillon Munc. and Cor., Sec. 740.
    Taxation having for its only legitimate object the raising of money for public purposes, and the proper needs of government, the exaction of money from the citizens for other purposes is not a proper exercise of the power, and must therefore be unauthorized. Cooley Constitutional Limitations, 487; I Am. R., page 228; Sharpless case, 21 Penn. St., 167; Prey v. N. Lib., 31 Penn St., 69; New Ency., Vol. 15, p. 307; Cooley on Const. Lim., 479; 4 Wheat., 421; Wilkinson v. Lelan, 2 Peters, 657.
    The act in question presents the case for the levy of a tax for a specific, designated purpose, and from the language of the statute this purpose is private. It is an illegal exaction under the name and guise of a tax.
    It seems to us that the guarantees with which the constitution has invested private property, in this state, prohibit such legislation. Bill of Rights, sections 1 and 19; 23 Ohio St., 84; Telegraph Co. v. Meyer, 28 Ohio St., 521; 34 Ohio St., 440; State ex rel. v. Commissioners, 35 Ohio St., 468; 19 Wis., 64; 1 Am. Rep., 215 to 238; 5 Am. Rep., 452; Caldwell v. Commissioners, C. C. R., Vol. 15, page 267; 25 Ohio St., 91; Ohio Legal News, Vol. 5, number 20, pages 56-59.
    The police power is fettered by limitation. There are limitations upon the police power. The legislative judgment is not always conclusive. Statute passed in the exercise of police power must not be in conflict within any of the provisions of the state or federal constitutions. They must not, under the pretense of regulation, take from the citizen any of the essential rights and privileges which the constitution confers. Cooley’s Const. Lim., 6 Ed., 710; Dillon Munc. Corp. (4 Ed.), Sec. 142; In re Jacobs, 98 N. Y., 50 Am. E., 636, 643.
    The same doctrine was laid down in the case of People v. Gillson, 109 N. Y., 389; Hares Am. Const. Law, 618; 16 Wallace, 36; 20 Wallace, 655.
    It is the business of courts to ascertain and decide whether a constitutional provision is violated under the pretense of exercising police power. The legislature cannot make that a legislative question which is a judicial one. The power to adjudicate where adjudication is necessary is judicial and not legislative. Taylor v. Porter, 4 Hill, 140; Norman v. Heist, 5 Watts & S., 161; Hoke v. Henderson, 4 Dev. (N. C.), 1; Dash v. Van Kleek, 7 Jackson, 477; Goshen v. Stonington, 4 Conn., 209; Fletch v. Peck, 6 Cranch, 87; Trustee, etc. v. Bailey, 10 Fla., 239; Taylor v. Place, 4 R. I., 324; Greenough v. Greenough, 11 Pa. St., 489; People v. Board of Supervisors, 16 N. Y., 424; Railway Co. v. Commissioners, 1 Ohio St., 77; Merrill v. Sherburne, 1 N. H., 199; 9 Am. Rep., 622; 50 Ohio St., 557; State ex rel. v. Tappen, etc., 29 Wis., 664.
    This act is in conflict with the provision of the constitution of our state, which prohibits the legislature from exercising judicial functions and it also controvenes the provision that no person can be deprived of his property without due process of law. Pryor v. Downey, 50 Cal., 388; Ratcliff v. Anderson (31 Graft, 105); State v. Walsh, 136 Mo.; State v. Julo, 129 Mo., 163.
    Finally we submit that the act is repugnant to sections 1, 16 and 19 of the bill of rights, because it denies to the plaintiff in error the right of trial and defense as to material facts, and deprives it of any remedy by due course of law, as provided in section 16; because it provides for the taking of private property for private use in violation of section 19 of the bill of rights, and prevents the tax payers and property owners of the county from protecting their property by due process of laAV.
    It is repugnant to section 5 of the bill of rights, because it denies to the plaintiff in error the right of trial by jury.
    It is repugnant to article 2, section 32 of the state constitution because it is an attempted exercise of judicial power by the legislature. 50 Cal., 388 ; Ratiff v. Anderson, 31 Grat., 105; Howell v. Fry, 19 Ohio St., 559; Turnpike Co. v. Park et al., 50 Ohio St., 557; 169 L. R. A., 112; State v. Tappan, 9 A. M. R., 622.
    It is repugnant to article 14, section 1 of the amendment to the constitution of the United States because it abridges the privileges and immunities of the citizens and deprives them of property without due process of law.
    This statute ex vi termini manifests the legislative intent to compensate the injrued parties in proportion to the damages sustained whether slight, serious or resulting in permanent disability to earn a livelihood by manual labor. The amount of recovery is made to depend upon the extent of the injury received. And by fixing the amount of damages, if the injury be slight, in the sum of $500, or if serious in the sum of $1,000, or if resulting in permanent disability to earn a livelihood by manual labor in the sum of $5,-000, the legislature has left no room for construction or judicial interpretation of the statute. It has by plain and unambiguous language made the statute compensatory and measured the amount of recovery in damages in proportion to the injury received.
    Our contention is strengthened by reference to sections 3 and 5 of the act, in both of which the amount of recovery is denominated “damages.”
    In the construction of this statute the familiar maxim “expressio unkis est exclusio alterius ” or as otherwise expressed, “expressum facit taciturn,” applies with all its force. This well settled rule of interpretation of statutes has been applied in the following cases: 51 Ohio St., 255; 6 Ohio St., 292; 15 Ohio St., 142; 32 Ohio St., 451; 11 Ohio St., 246; 15 Ohio Rep., 452; 28 Ohio St., 515; 18 Ohio St., 452.
    We again assert that the character of the statute as to whether it is compensatory or penal does not depend upon the purpose to be subserved by its enactment, but upon its form, the terms, provisions and words of the act. If this statute is penal it does not appear from the words of the act, they express an intent quite to the contrary. Waller v. Harries, 20 Wend., 562; State v. Heman, 70 Mo., 441; Sutherland Stat. Constr., 235.
    It is the duty of courts to interpret words in their ordinary and natural sense, although the result may conflict with the court’s idea of public policy. 18 Ohio St., 456; 41 Ohio St., 52; Darlington v. Mayor. etc., 31 N. Y., 187.
    Is the act to amend and change the statute under consideration, passed April 21st, 1898, Ohio Laws, Vol. 93, page 161, of an expository nature?
    We think it is, and that the original act, passed April 10th, 1896, 92 O. L., 136, and the amendatory act should be construed together, and that the amended act may be looked to to ascertain the meaning of the original act of April 10th, 1896, and the inferences to he drawn from its terms. A declaratory act in effect expounds the true meaning and intention of a prior legislative act on the same subject. Boom Co. v. Dodge, 31 Pa. St., 285; Washington A. & Gr. Co. v. Martin, 7 D. C., 120; State v. Trustees, 37 Ohio St., 275.
    The amendatory act of April 20th, 1898, Ohio Laws, volume 93, page 161, is purely and absolutely compensatory, and if considered in connection with the original act, the two acts when read and construed together, manifest a legislative intent to make the original act compensatory. The amendatory act has the same effect upon the original act as if the amended statute had been embodied in the original act of April 10th, 1896, at the time of its passage. 37- Ohio St., 275.
    Statutes in pari materia are to be construed together, each legislative act is to be interpreted with reference to other acts relating to the same matter or subject. Black on Interpretation of Laws, 204; U. S. v. Freeman, 3 Howard, 556; Vane v. Lucond, 132 U. S., 220; Leroy v. Chakbolla, 2 Abb. U. S., 448; Fed. Cas., 6267; Grant v. Cook, 7 D. C., 165; Church v. Crocker, 3 Mass., 17; State v. Babcock, 21 Neb., 599; 33 N. W. Rep., 247; Kollenberger v. People, 9 Colo., 233; Billingslea v. Baldwin, 23 Md., 85; Green v. Com., 12 Allen, 155; Hendrix v. Riema, 6 Neb., 516; Ferguson v. Supervisors, 71 Miss., 524; Perkins v. Perkins, 52 Barber, 531.
    Statutes in pari materia passed after the law in question, as well as those enacted before it, may be considered in its interpretation. Chase v. Lord, 77 N. Y., 1; Smith v. People, 47 N. Y., 330; U. S. v. Freeman, 3 Howard, 556 ; Conn. v. Miller, 5 Dana, 320; Railway Co. v. Railway Co., 53 Pa. St., pages 26 to 60; Penitentiary Co. v. Nelms, 65 Ga., 67; Montville v. Houghton, 7 Conn., 543.
    The statement made by defendant in error in his brief, that we claim this act to be penal, for the purpose of strict construction, is not correct. What we did and do claim is that statutes in derogation of the common law and of common law right; statutes imposing taxes, spoliating and confiscating property, and civil damage acts, must receive, a strict construction and will not be extended by construction further than is indicated by the express terms of the law; statutes in modification or derogation of the common law will not be presumed to alter it further than is expressly declared. Howe v. Newcombe, 146 Mass., 76; Dean v. Railway, 199 N. Y., 540; Esterly’s Appeal, 54 Pa. St., 192; State v. Jaeger, 63 Mo., 403; Hines v. Railway Co., 95 N. Car., 439; Wall v. Dovey, 60 Pa. St., 212; Van Norman v. Circuit Judge, 45 Mich., 204; Whitney v. Barnett, 15 Wis., 61; Meidel v. Anthis, 71 Ill., 241; Feutz v. Meadows, 72 Ill., 540; 11 Ohio St., 223.
    Where a statute abrogates a common law right or introduces a right not vested by the common law, it should not be so construed as to go beyond the letter, or even to that extent, unless it appears to the court to be within the spirit and intent of the act. Dewey v. Goodenough, 56 Barb., 54; Sharp v. Spiers, 4 Hill (N. Y.), 76; Dwelly v. Dwelly, 46 Ohio St., 377; Holman v. Bennett, 44 Miss., 323; Shaw v. R. R. Co., 101 U. S., 557; Cook v. Meyer, 73 Ala., 508.
    
      Charles H. Rosier and George M. Eichelberger, for Church., Adm., defendant in error.
    The authority of the legislature to enact such a statute is clear. It exists under the general grant of legislative power in article II, section 1 of the constitution. This power can be limited only by express prohibition in the constitution. Baker v. Cincinnati, 11 Ohio St., 534; Lehman v. McBride, 15 Ohio St., 573; Cincinnati v. McCann, 21 Ohio St., 198; Cass v. Dillon, 2 Ohio St., 607; Evans v. Dud
      
      ley, 1 Ohio St., 437; Darlington v. Mayor, etc., 31 New York, 187.
    In the statute called Articula super cartam, Anno 28, Edward I., which confirmed the Great Charter and the Charter of the Forest, and directed that the same should be firmly observed “in every part and article,” it was directed in terms that the statute of Winchester, which gave a remedy against the hundred, for robberies committed in it, should be sent again into every county to be read and published four times a year, and kept in “every point as strictly as the two Great Charters, upon the pains therein limited.” (Reeve, vol. 2, p. 340; Coke, 2 Inst., ch. 17, p. 369.)
    Similar statutes for the payment by cities, towns and counties, of property destroyed by mobs, have been upheld in many states. They have received elaborate judicial examination, and have been sustained as important and beneficial police regulations, based upon the theory that, with proper vigilance on the part of the local authorities, the disorder and injury might and ought to have been prevented. Donoghue v. Philadelphia, 2 Pa. St., 230; Commissioners v. Phila., 13 Pa. St., 76; Allegheny Co. v. Gibson, 90 Pa. St., 397; Allegheny Co v. Gibson, 35 Am. Rep., 670; Darlington v. New York, 31 N. Y., 164; Darlington v. New York, 88 Am. Dec., 248; Ely v. Niagara Co., 36 N. Y., 297; Folsom v. New Orleans, 28 La. Ann., 936; Luke v. Brooklyn, 43 Barb., 54; Searles v. New York, 47 Barb., 447; Wolfe v. Richmond Suprs., 11 Abb. Pr., 270; Wolfe v. Richmond Suprs., 19 How Pr., 370; Bank v. Shaber, 55 Cal., 322; Water Works Co. v. Lake Co., 45 Cal., 90; Street v. New Orleans, 32 La. Ann., 577; Palmer v. Concord, 48 N. H., 211; Palmer v. Concord, 97 Am. Dec., 605; Underhill v. Manchester, 45 N. H., 214; Chadbourne v. New Castle, 48 N. H., 196; Williams v. New Orleans, 23 La. Ann., 507; Granfortone v. New Orleans, Law Rep. Ann., 24, 592.
    Similar laws in regard to human life have been passed in Kansas, Alabama, and other states. The Alabama statute is almost identical with ours. Atchison v. Twine, 9 Kan., 356; Dale County v. Gunter, 46 Ala., 118; Luke v. Calhoun County, 52 Ala., 115.
    The particular objections made by the defense to the statute are:
    
      (a) That it fixes an absolute amount to be recovered and thus takes away from the county the right of trial by jury.
    (5) That the method of raising the amount of verdict by taxation is unlawful as taking private property for other than public purposes.
    In the first of these objections, the plaintiffs in error insist that this is not a penal statute, and at the same time they insist upon its penal character for the purpose of strict construction.
    Our claim is, that the amount fixed by the statute is not to be considered as exclusively compensatory, but as a penalty as well.
    The very fact that the legislature made the amount a fixed and absolute sum, in itself proves that the recovery was not designated as compensatory or as damages. What would be compensation in one case would not apply in another.
    Therefore, the legislature did not design that there should be any inquiry as to damages, but fixed an amount as absolute regardless of whether the next of kin were pecuniarily injured or not. The penalty had to be disposed of in some way, and the legislature saw fit to cast it as set forth in the act.
    . The Alabama statute, which is. almost identical with ours, 46 Ala., 137.
    The fact that the recovery of the penalty is provided for in a proceeding in its nature civil, does not prevent the act from being a penal act. Nor does the fact that the words “fine,” “forfeiture” or “penalty” do not appear in the act prove that it is not a penal act. It is the purpose and evident intent for which the act was passed that controls this ques tion. Endlich on Interpretation of Statutes, Sec. 331; Aichternacht v. Watmough, 8 Watts and S. (Pa.), 162.
    We believe the right of the legislature to enact a statute giving a private person the right to recover in a civil action a fixed amount of damages is well settled in Railway Co. v. Cook, 37 Ohio St., 265.
    It Avill be observed further that all qui tam actions are practically in the same line with this statute. Bouvier’s Law Dictionary. Qui Tam Actions.
    The statute giving an action for wrongful death (Sec. 6135, Rev. Stat. of Ohio) fixes the maximum amount of recovery, thus limiting the jury to a fixed amount, even should the actual pecuniary damage be greater. The statute, hoAvever, is without question constitutional. Steel v. Kurts, 28 Ohio St., 191.
    A county is a mere subdivision of a state, and has only such powers and rights as the legislature sees fit to confer upon it. Borough of Dinsmore’s Appeal, 52 Pa. St., 374.
    The provision in section 7 of the act making an order to the commissioners to include the recovery in the next tax lei^y a part of the judgment in the case is not unconstitutional. Cooley on Taxation, 480 (1st Ed.); Guilford v. Supervisors, 13 N. Y., 143; Cooley on Taxation, 74; Cooley on Cons. Lira., 598.
    Our OAvn state has approved this principle in the decisions of the supreme court in cases brought to test the validity of the acts to pay bounties to volunteers, on the ground of the acts being promotive of the public welfare and for a public purpose. Cass Tp. v. Dillon, 16 Ohio St., 38; State v. Harris, 17 Ohio St., 608; State v. Wilkesville Tp., 20 Ohio St., 288; State v. Richland Tp., 20 Ohio St., 288; State v. Circleville, 20 Ohio St., 362.
    Courts approach the question of unconstitutionality of legislative enactments with great caution. They are to be held valid unless there is a clear violation of the constitution. The legislature has all power that is not expressly denied it under the constitution. People v. Mahaney, 13 Mich., 481; Cooley Cons. Lim., 200; License Tax Cases, 5 Wall., 462; Perry, v. Keene. N. H., 514; Attorney Gen’l v. Railway Co., 35 Wis., 425.
    The circuit court reversed the court of common pleas for error in giving special charge No. 5, as asked by the defendant in error below and for error of the court of common pleas in its general charge to the jury.
    The effect of that charge in brief was this: That if the persons who lynched Mitchell had come together in the first instance Avithout any intent to commit an unlaAvful act, and being assembled peaceably, afterwards committed the acts of violence complained of, the plaintiff could not recover. Section 1, of the Act of April 10, 1896, 92 O, L., 136.
    The claim of the defendant in error below was, that the intent to do injury or damage must have been formed previous to the assembling; that they must have come together in the first instance with the design already formed, and Avhatever may have been said in the general charge after the arguments, this was the point pressed upon the jury, under charge 5.
    Their claim Aims that this act, being in its nature penal (as they then admitted for the purpose of their claim), was in derogation of the common law, and therefore is to be strictly construed.
    There are no cases in which acts similar to this one have been construed. We, therefore, cite the court to decisions construing the acts in AAdiich mobs and riots are referred to and construed in their common Iuav meaning. United States v. McFarland, 1 Cranch., C. Ct., 140; United States v. Dun, 1 Cranch, C. Ct., 165; State v. Snow, 18 Maine., 346; 1 Campbell, 328; 2 Russel on Crimes, 250; Solomon v. Kingston, N. Y. S. C. R., 562; 24 Hunn., 562; United States v. Stockwell, 4 Cranch, C. Ct., 671.
    It is urged, however, by counsel for plaintiff in error, that even if charge No. 5 was erroneous, that error is cured by the general charge of the court. This we do not concede. Whilst a considerable part of the general charge of the court we admit is unobjectionable, that charge, in express terms, made charge No. 5 a part of the general charge. If it be a part of the general charge, it is plainly contradictory to all the propositions in the general charge, on the subject of what constitutes unlawful assemblages. If contradictory, it was erroneous. If misleading, and it surely is, it was erroneous. Railway Co. v. Terry, 8 Ohio St., 570; Railway Co. v. Krouse, 30 Ohio St., 222; Ins. Co. v. Reed, 33 Ohio St., 283; Avery v. House, 2 C. C., 246; 1 C. D., 468; Mut. Ins. Co. v. Mer., etc. Ins. Co., 5 Ohio St., 450; White v. Thomas, 12 Ohio St., 312; Railway v. Wetmore, 19 Ohio, 110; Railway v. Picksley, 24 Ohio St., 54,
    If charge No. 5 influenced the verdict, and if its meaning is or was uncertain, the plaintiff is thereby prejudiced.
    If charge No. 5 is erroneous, and the court in its general charge afterwards qualified it and gave the true rule, if it be uncertain which rule was intended, it is error, as the jury may have been misled. Railway Co. v. Stallman, 22 Ohio St., 1.
    The rule is, that error in the charge of a trial court to a jury is presumed to be prejudicial unless the record shows that it was not prejudicial. Baldwin v. Bank, 1 Ohio St., 141; Jones v. Bangs, 40 Ohio St., 139.
    If, therefore, as contended by counsel for plaintiff in error, the circuit court did not have all the record before it, and if there was error in the charge of the court, the evident effect was that there was no record to show that that error was not prejudicial. Elster v. Springfield, 49 Ohio St., 82; Harman v. Kelly et al., 14 Ohio St., 502.
    The only effect, as is well established by this court. of the failure to show that the bill of exceptions contained all the evidence, would be to have prevented the circuit court from reversing the common pleas court, on the ground that the verdict was contrary to the weight of the evidence. Mack, Stadler & Co. v. The Great Western Dispatch, 3 C. C., 36; 2 C. D., 22.
    We respectfully submit to the court, however, that were it necessary for the disposition of the questions involved to have a bill of exceptions containing all the evidence, this court can decide whether the bill does affirmatively or by necessary implication show that it contains all the evidence. Railway Co. v. Probst. 30 Ohio St., 104; Cantwell v. State, 18 Ohio St., 477; Ide v. Churchill, 14 Ohio St., 372; Eastman v. White, 4 Ohio St., 156.
    
      Willis Vickery, for J. W. Caldwell, plaintiff in error.
    Does the petition state facts sufficient to constitute a cause of action against the „defendants in favor of the plaintiff? Can the legislature pass an act making the county responsible for damages done by a mob, that is, damages by way of injury to a person or an individual. ;
    The United States government is a government of limited powers, and has only such powers as have been expressly granted by the people; that is, all the powers that congress has under the constitution are clearly marked out in the constitution itself, and the powers are known either as enumerated powers or incidental powers, and outside of these congress will have no power to act.
    On the other hand, the constitution of the state of Ohio provides for a government of unlimited powers, and whatever is not prohibited by the constitution is reserved to the people thereof, and what is not prohibited in so many words by the constitution of the state of Ohio can be legislated upon by the legislature. People v. Draper, 15 N. Y. St. Rep., 543.
    
      The wisdom of the law is not a subject for the court to consider; the court cannot declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions or because it is supposed to violate the natural, social or political rights of a citizen unless it can be shown that such injustice is prohibited or such rights guaranteed or protected by the constitution. Cooley on Const. Lim., 202, 204.
    It is a well established rule that judges will always lean in favor of the validity of a legislative act; that, if there be a reasonable doubt as to the constitutionality of a statute, they will solve the doubt in favor of the statute. Brice’s American Commonwealth, Vol. 1, page 430; Cooley’s Const., Lim., 195; Second Bay (S. C.), 61; Insker v. Carver, 16 Mich., 1844; Newland v. March, 19 Ill., 376; Roosevelt v. Godard, 52 Barber, 583; Parsons v. Bedford, 3 Peters, 433; Granada v. Brockdon, 112 U. S., 261.
    The courts have nothing to do with the policy, expediency or propriety of the acts of the legislature; such matters are questions for legislative determination, but do not apply to the judiciary. Angle v. Reading Co., 151 U. S., 1; Barb Wire Co. v. Brown, 64 Iowa, 175; North West Reporter, 434; People v. Rochester, 50 N. Y., 525; Sears v. Caldwell, 5 Mich., 251; People v. Draper, 15 N. Y., 532.
    When can a statute be declared invalid because it is opposed to the principles of natural justice or the supposed spirit of the constitution? Loan Ass’n. v. Opeka, 20 Wallace, 655; Home v. McClure, 1 Bay (S. C.), 93, 98; People v. Salem, 20 Mich., 452; Sharpless v. Mayor, 21 Pa. St., 147; Adler v. Whitbach, 44 Ohio St., 562; Morgan v. Nolte, 37 Ohio St., 23; Fletcher v. Beck, 6 Crunch., 87; Reddrick v. State, 101 Ind., 147.
    It has been a uniform rule in this court when the constitutionality of a statute has been under consideration to so construe and interpret its provisions is possible as to sustain and not defeat the law. 81 Ind., 327; 102 Ind., 319.
    This is not a new question which is now for the first time before the courts even in the form of providing compensation to the person. It is as old as English law and it is said that Canute the Dane brought the law into England from Denmark, and we find it laid down in English law that the Hundred was made responsible to the extent of forty marks for the death of any person happening within the boundaries of the ville. Reeve’s History of English Law, page 17.
    And this provision Avas carried into English statutes in some modified form doAvn to the reign of George the Fourth, and as the Hundreds were not corporations, all action was to be brought against the High Constable; and on judgment being rendered the sheriff was to write his warrant on the county treasury for the amount of the recovery. The money was to be collected by local taxation and the Hundred made liable. This provision has no direct bearing on the present case except to show that the policy is coeval with the laws of England and one Avhich has been constantly acted on in England. 31 N. Y. Rep., 189.
    It will be argued that in the 12 Ohio St. the case of the Western Medical College against the city of Cleveland, decided that the municipality could not be held accountable. That case is an authority that Avhere a statute had been passed either a municipality or a county might be made responsible. We take this statute to be in the form of a remedial statute passed for the purpose of providing a remedy where none had before existed.
    The case of Darlington against Mayos is again reported in 88 American Decisions, and at a note at the end of that case there is a collection of authorities bearing upon this class of cases.
    
      
      P. H. Kaiser, County Solicitor, and T. L. Taft, Asst. County Solicitor, for Board of Commissioners of .Cuyahoga county, defendants in error.
    There are fatal defects in the statute other than such as arise from its unconstitutionality.
    This statute is void, because the language employed therein is so indefinite that the intent of the legislature is not ascertainable, and therefore, the enforcement of the statute is impossible. What, for instance, is the meaning of the phrase, “to exercise correctional power,” as found in section 1 ? What is the meaning and scope of the phrase, “any act of violence,” in that section? Is a man “lynched” when a mob merely unlawfully touches him, and is one thus merely unlawfully touched by a mob to recover $500 under section 4? What is the meaning of the phrase “temporarily disabling,” in section 2 ? Does it mean disabling for the period of one hour, or one day, or for one, two or five years? And is it a disability of such uncertain and indefinite duration for which section 4 confers the right to recover of a county a thousand dollars? What is the meaning of the phrase, “by voilence,” as used in section 1? How much violence does that phrase imply? Are all degrees of violence equally “lynching,” for which under section 4, a party may recover from $500 to $5000? This statute is punitive and penal in its character. The sums recoverable therein are absolutely forfeited, if the conditions of recovery exist. Neither more nor less than the amount stated in the statute can be recovered. Such a notion as that of the measure of damages has no place whatever in this statute. A statute which imposes a forfeiture must be clear, and the intention manifest. Bond v. Swearinger, 1 Ohio, 395; State ex rel. Brickman, 7 C. C., 165; 3 C. D., 710.
    The provisions of the act under consideration are incompatible with the provisions of other related legislation which this act does not purport to either repeal, amend or supplement, and, therefore, it is unenforceable. Section 2828 fixes the maximum rate of taxation for county purposes, beyond which county commissioners may not go in the levying of taxes; but section 7 of the act in question provides that “an order to the commissioners of any county against which such recovery may be made, to include the same, with cost of action, in the next succeeding tax levy for said county, shall form a part of the judgment in every such case.” There is no provision for paying the amount of these recoveries by installments, but the entire aggregate the statute requires to be put into the next succeeding tax levy.
    The statute in question may become unenforceable by reason of the aggregate amounts of recoveries against a county equalling or exceeding the entire tax duplicate of the county.
    This statute opens a wide door for the perpetration of frauds upon the counties of this state and is, therefore, against public policy and void.
    Under this legislation by conspiracy three or more persons (“a collection of individuals”) might assemble for the unlawful purpose of making an assault upon one of their own number, in order that the injured party might maintain an action against the county for $500 or $1000, as the case may be, and then divide the spoils among the conspirators, it being practically impossible to ever discover the fact of the conspiracy.
    Sections 3 and 4 provide for the recovery of certain fixed and definite sums for the injuries therein mentioned, and that too without any reference whatsoever to the actual damages sustained, The statute contemplate no such idea as that of the measure. Taxation is a mode of taking private property. Section 19 of the bill of rights provides that, “Private property shall ever be held inviolate, but subservient to the public welfare.” This statute takes private property and makes it subservient to private welfare. Weismer v. Village of Douglas, 64 N. Y., 99.
    The legislature cannot authorize private property to be taken for private use. 1 Ohio St., 617.
    Section 3 of this act in effect provides for the recovery of $1000 for a mere assault. If this sum is to be regarded as a fine upon the county, it is grossly excessive, and hence, in violation of Sec. 9, Art. 1 of the Ohio constitution.
    Section 8 of the act is a section which defines a crime, but omits to fix any penalty, whatsoever, leaving the matter of penalty wholly to the discretion of the court. Such legislation is clearly unconstitutional for several reasons. 1st. It is an attempt to clothe a court with legislative power, that is power to fix penalties for crimes, which is contrary to article 2, section 1 of the Ohio constitution, which provides as follows: Legislative power cannot be delegated. Railroad Company v. Commissioners, 1 Ohio St., 77; 14 Amendment, Fed. Const., and 10 Met, (Mass.), 26; 4 Ohio N. P. Reports, 251; 6 Dec., 367.
    At common laiv a county cannot be held liable for the negligence or other wrongful acts of its officers. Commissioners v. Mighels, 7 Ohio St., 110; Western College, etc., v. City of Cleveland, 12 Ohio St., 377.
   Davis, J.

These cases require a decision of the question whether “An act for the Suppression of Mob Violence,” passed April 10,1896 (92 O. L., 136), is constitutional.

It is argued that the provisions of this statute contravene article one of the fourteenth amendment to the constitution of the United States, and are also repugnant to the constitution of Ohio; because they violate the right of trial by jury, because they authorize the taking of property without due process of law, because they are a violation of private rights, of property, because they are an exercise of judicial functions by the legislature, and because the object and purposes of the statute are not within the taxing power.

In the ardor of attack, it seems to have been overlooked that the constitution extends its protection over individuals, as well as counties and municipal corporations. Even a criminal has some rights which cannot be forfeited. Every person who is accused of crime, is guaranteed a fair trial; and he cannot be deprived of life or liberty without due process of law. The faith of the body politic is pledged to make good the constitutional guarantees to the individual. To the counties and municipal corporations are delegated, in large measure, the duties of local administration. Within their jurisdiction they stand in the place of the state, in enforcing the laws, and in protecting the life, the liberty and the property of the citizen. If a large number of the people of any county become imbued with the lynching spirit, or negligent and indifferent to the due and orderly enforcement of the laws, so that lawless men may act with impunity, then there is no course for the state to take, other than to intervene and directly protect the individual, as well as to enforce upon the community the observance of good order/

The power of the state to do this cannot well be questioned. What is known as the police power is based on the public safety, the public health and morals, and the general welfare; and it is, therefore, as broad as these conditions may require. In this respect, as in other respects, the power of the legislative branch of the state government is plenary, except as it may be specifically and clearly limited in the constitution. Within these limitations the legislature may prescribe such laws, sanctioned by fines, penalties, forfeitures or damages, as will enforce the observance of the peace and dignity of the state, and compensate the injured party; for, unfortunately the public conscience is oftentimes more easily quickened in this way than by teaching and persuasion.

Now as to the alleged violation of the right of trial by jury, it may well be doubted whether counties and municipalities have any such absolute right of trial by jury that they may complain of its infringement by the legislature. They are creatures of constitutional and legislative enactment. They have only such powers and privileges as are given them, and these powers and privileges may, in general, be modified or taken away.

But cases like these need not be disposed of on that ground. The contention is that the statute deprives the defendant of the right to have the amount to be paid assessed by a jnry as damages. A county or municipality can no more complain of this statute as an infringement npon the right of trial by jury, than the man who has been tried by a jury and found guilty of a crime, can complain that the law under which he is tried does not provide that the jury shall assess the amount of his fine, or adjudge the extent of his imprisonment. The primary purpose of the legislature was punishment and correction. The expressed object of the law is “the suppression of mob violence.” That the legislature might, in the exercise of the police power, fix the amount of a penalty without the intervention of a jury was lo.ng ago decided by this court in Cincinnati, Sandusky and Cleveland Railroad Company v. Cook, 37 Ohio St., 265. And this being so, it is of no concern to the party paying the penalty, to whom the state, in its sovereignty, may pay it. It may well, as under this statute, turn the money over to those who suffer by the act of lynching. In this respect, it makes no difference whether in the statute it be called penalty, or compensation, or damages. Nor does it alter the case that the amount is fixed, that is, determined by the statute, as in this case; or Oiat it is to be found by a jury. Nor yet does it matter that it is declared to be “for the suppression of mob violence,” as in this case, or “for compensating parties whose property may be destroyed in consequence of mobs or riots,” as in the statute which was upheld in Darlington v. The Mayor, etc., 31 N. Y.. 187; because the imposition of any amount by authority of the state is, in either case, essentially penal and corrective in its nature. The party paying the money so recovered, that is, as a penalty, has no right to complain that the sovereign pays it over to the person injured, or pays it for the benefit of the minor children of a person suffering death by lynching, or to the next of kin of such person; nor that the sovereign provides that “such recovery shall not be regarded' as a part of the estate of the person lynched, nor be subject to any of his liabilities.” Nor is it a matter which can be put in issue for trial by jury; for the legislature does not authorize, nor attempt, a compensation of the injury according to the measure of the injury, to be settled on an inquirj of damages.

We have dwelt on this phase of the law more than we have thought necessary, because it is the source of the main contention in these cases. We shall very briefly advert to the remaining questions presented for our consideration.

In the nature of things, the limitations of the taxing power are not ordinarily, nor necessarily, limitations on the police power; but the matter is set at rest for the cases at bar, by the constitution itself, which provides as follows: “The commissioners of counties, the trustees of townships, and of other similar boards, shall have such power of local taxation, for police purposes, as may be prescribed by law.” Const., Art. x, See. 7. This court held in Sessions v. Crunkilton et al., 20 Ohio St., 349, 358, that when local taxation is exercised for purposes which are demanded by, or are conducive to, public health, convenience, or welfare, it is within the constitutional meaning of “police purposes.”

From what has been said, it will appear that this statute does not authorize, nor attempt, the taking of private property for a private use, nor even the taking of private property for a public use in the exercise of the right of eminent domain. It authorizes the recovery of a penalty against the county, and authorizes an order to be made on the commissioners of the county, to include the same in the next succeeding tax levy. This, as we have seen, the legislature has power to enact, under the general police power, the general taxing power, and Sec. 7, Art x, of the constitution. Hence section 19 of article. 1 of the constitution does not apply.

Again, this legislation is not an exercise of judicial power; because it does not adjudicate any transaction, case, or controversy, which arose before its enactment, and of which the judicial tribunals might have been cognizant. It provides what shall be the law, binding upon the judicial department, after its enactment; and is not, in any sense, a trespass upon the province of the courts.

Having disposed of the foregoing objections to the statute, Ave assume that the contention that it provides for the taking of property without due process of laAV, is already sufficiently answered. Many other questions have been raised and discussed. They are all such as might well have been addressed to the legislature; but they cannot be considered here. We conclude that the act is constitutional.

On the trial of the case of Church, Adm., etc., v. The Commissioners of Champaign County, in the common pleas court, the court charged the jury in substance, that if the collection of persons who lynched Mitchell, had assembled without any unlawful purpose, and afterwards committed the acts of violence Avhich resulted in the death of Mitchell, the plaintiff could not recover, and the verdict should be for the defendant.

The court afterwards made an explanation of this instruction; but the explanation did not explain, especially since the court instructed the jury that such unlawful purpose or design may be formed either before or at the time of assembling, “or it may be formed with the agreement of mutual assistance after they have assembled,” and that, “no formal or express agreement need be proved to establish such unlawful purpose, but it may be inferred from all the facts and circumstances proved in the case and its existence and the time of its formation are questions of fact for the jury.” And the court not only refused to instruct the jury, as requested by the plaintiff, that the fact that Mitchell was lynched was evidence that the individuals who lynched him intended to lynch him; but instead, the court charged the jury that the lynching of Mitchell might be considered as evidence of the unlawful intent; and also charged that such lynching did not raise a presumption of law that they assembled with that intent. The charge when all taken together, seems, very plainly, to have told the jury that if the crowd came together with an innocent purpose, and afterwards lynched Mitchell, they would not be a mob unless they had specifically agreed to be' a mob, after they had assembled. This charge is not merely seriously misleading. It is erroneous. It is an ancient doctrine in the criminal law, as old as Hale’s Pleas of the Crown, at least, that, although the assembly was lawful, the persons assembled might unite in unlawful conduct and thus become rioters.

In Caldwell v. Commissioners of Cuyahoga County, a demurrer to the petition was sustained in the court of common pleas, and the petition was dismissed. This judgment was affirmed by the circuit court. Besides the constitutional objections which we have already considered, the counsel for the commissioners urge that the petition is defective, because the plaintiff therein avers that he was struck by “a heavy glass insulator thrown at him by one of the mob,” and was “short through the leg with a leaden bullet, fired from a revolver in the hands of some of the mob.” It is argued that as the shooting was done by a, pistol in the hands of one person, and as the glass insulator was thrown by one person, it does not appear that the specific acts which occasioned the plaintiff’s injuries were the acts of a “collection of individuals” or a “mob.”

We do not think that there is much force in this argument. It is clearly alleged in the petition that the plaintiff and his fellow workmen were assaulted by a collection of individual's, who had assembled‘/or an unlawful purpose, and tried to exercise correctional power over the plaintiff and his fellows, without any authority of law; and that thus and thereby the plaintiff suffered a lynching at the hands of said mob.

The petition contains a sufficient statement of a cause of action against the county, under the statute in question; and the details which are set forth in the petition are not inconsistent with the more general averments contained therein. The demurrer should have been overruled. We have carefully considered all of the arguments and authorities which counsel have submitted, and we are thoroughly satisfied with the foregoing conclusions.

In Commissioners v. Church, administrator of Mitchell, the judgment of the circuit court is

Affirmed.

In Caldwell v. Commissioners, the judgment of the circuit court and the judgment of the court of common pleas, are Reversed.  