
    ATTACHMENT — STATUTES.
    [Lucas (6th) Circuit Court,
    September Term, 1901.]
    Haynes, Hull an Parker, JJ.
    Edward V. Collins v. Bingham Brothers.
    1. Courts will not Pass upon Constitutionality of Laws Unless Necessary.
    Courts will not"pass upon the constitutionality of laws unless necessary to do so in the decision of cases before them. Therefore, the circuit court will refuse in this case to pass upon the constitutionality of Secs. 582,583 and 584, Rev. Stat., as amended April 19, 1898, 93 O. L. 316, relating to the subject of attachments, in a county otner than Cuyahoga or Franklin.
    
      . Repealing Clause Falls with Amendment.
    Where au act repealing another act and providing a substitute therefor is found invalid, the repealing clause must also be found invalid, unless it shall appear that the legislature would have passed the repealing clause in any event. The legislature bj' the act of April 19, 1898, 93 O. L. 316, amending Sec. 384, Rev. Stat., relating to attachments before justices by limiting the jurisdiction of justices in certain counties named without otherwise changing the law, did not intend to destroy the law upon such subject, consequently, the repealing clause of the act in question would be invalid if ■ the law were held unconstitutional.
    Claim eor Coal is eor Necessaries.
    A claim for coal used for domestic purposes is within the term “ necessaries,” as used in Sec. 6489, Rev. Stat., authorizing attachment in such cases.
    4. Presumption that Coal was eor Domestic Purposes.
    Where the affidavit for attachment states that the claim was for coal sold and delivered, and also states that it was for necessaries, and no statement, affidavit or finding appears denying the same or in contradiction thereof, judgment will not be reversed upon the statement of counsel to the court on review that the coal was for fuel for a boiler belonging to the equipment of an oil lease. Unless it otherwise appears in the record, it will be presumed that the coal was furnished for domestic purposes.
    5. Discharge oe Attachment — No Presumption oe Fraud, etc.
    The mere fact that an attachment before a justice of the peace was voluntarily discharged on motion of the plaintiff does not authorize a reviewing court to assume that the order was obtained fraudulently or not in good iaith and that the affidavit was insufficient and untrue, so as to deprive the justice of jurisdiction to proceed to judgment therein.
    6. Jurisdiction oe Justices in Attachment.
    Under paragraph 7, Sec. 853, Rev. Stat., where, in a civil action before a justice of the peace, brought in the county but not in the township of the defendant’s residence, the summons is accompanied by an order of attachment sued out and issued in good faith upon any ground authorizing an attachment against a resident of the county, and the summons is duly served, such justice thereby obtains jurisdiction over the person of the defendant, and may proceed to personal judgment against him, though no property is seized or held under the attachment.
    Heard on Error.
    
      T. W. Brake and J. G. Adams, for plaintiff in error.
    
      Geo. B. Orwig, for defendant in error.
   Parker, J.

Defendants in error, the Bingham Bros., on November 24, 1900, instituted a suit against Edward V. Collins before William R. LefLet, a ustice of the peace in and for Washington township, in Rucas county, Ohio. At the same time he filed an affidavit for attachment, in which he stated, amongst other things, that his claim was for coal sold and delivered to the defendant, and that it was for necessaries. Under Sec. 5489, Rev. Stat., as amended on April 26, 1898, 98 O. R. 316, the fact that the claim sued on is for necessaries is made a ground of attachment. An order of attachment was issued with the summons, and both were duly served upon the defendant and property was seized.

Subsequently the defendant came into court, and by his affidavit.-' made it appear that he was a resident of Port Rawrence township, in Rucas county, and he contended that because of that fact the attachment had been wrongfully obtained and issued; that the justice of the. peace, under the law, had no jurisdiction to issue ah attachment against a resident of another township of the same county on the simple ground that the claim was for necessaries; that he had no right to exercise jurisdiction in the case ; and the defendant asked that the attachment be discharged, and the suit dismissed.

It appears that when the matter came up for hearing the plaintiff voluntarily abandoned his attachment, and on his own motion the attachment was discharged; but the justice óf the peace proceeded with the case, and on the day set for the hearing, the claim being properly established by the plaintiff, judgment went against the defendant. To obtain a reversal of that judgment the defendant, Edward V. Collins, filed a petition in error in the court of common pleas of this county. That court affirmed the judgment of the justice; and to obtain a reversal of that judgment as well as that of the justice of the peace, this proceeding in error is brought here.

The contention of the plaintiff in error that the justice of the peace was without jurisdiction in the premises is based upon the claim that the section of the statute purporting to give him jurisdiction and authority in such cases, to-wit: Sec. 583, Rev. Stat., is unconstitutional and void, and this is urged upon the ground that it is legislation of a general nature; that the subject matter is general, but the law is in fact special in its application because the jurisdiction to issue attachment in such cases is not conferred upon all justices of the peace of the state by the section.

The last amendment of the section is found in 93 Ohio Raws, 146, in an act which was passed upon April 19, 1898, and which amends not only Sec. 583, but also Secs. 582 and 584, Rev. Stat. Section 583, Rev, Stat., as amended, reads:

“Justices of the peace within and coextensive with their respective counties shall have jurisdiction and authority:
“1. To administer an oath, authorized or required by law to be administered.”

Then follows several other paragraphs, numbered consecutively, down to 7, which reads:

“ To issue attachments and proceed against the goods and effects of debtors in certain cases, except in counties containing a city of the second grade of the first class, or of the first grade, second class, the jurisdiction and authority in such cases is coextensive only with the township for which the justice was elected, but when said justice has jurisdiction of the defendant because he resides in the township for which said justice was elected or otherwise as provided in Sec. 584, Rev. Stat., the jurisdiction of the justice in attachment shall be coextensive with the county.”

The exception is of counties containing the cities of Cleveland and Columbus, i. e., Franklin and Cuyahoga counties. It is said that since this provision authorizing an attachment to issue in cases like the one at bar may be applied to but eighty-six of the eighty-eight counties of the state, the legislation has a special character.

It is a rule constantly observed by the courts that they will not consider or pass upon the constitutionality of laws unless it becomes necessary to do so in the decision of cases before them. We do not find it necessary to pass upon this question presented here for argument, for this reason : As I have said, this act of April 19, 1898, provides for the amendment of Secs. 582, 583, and 584, Rev. Stat. It re-enacts them in amended form, and repeals the original sections of those numbers theretofore found in the Revised Statutes of Ohio. If we should hold this section to be unconstitutional, we must, under well settled rules, hold that the repealing provision also fails; so that the effect would be to leave in force Sec. 583, Rev. Stat., as it stood before this amendment was made. The general rule is, that where an act repealing another act and providing a substitute thereior is found invalid, the repealing clause must also be held to be invalid, unless it shall appear that the legislature would have passed the repealing clause even if it had not provided a substitute for the act repealed. We had occasion to apply’’ this principle in Whitney v. Gill, 8 Circ. Dec. 450 (15 R. 648), and there we cited authorities in support of the proposition. The same principle was applied by’ the circuit court of the eighth circuit in State v. Buckley, 9 Circ. Dec. 341, 342 (17 R. 86). In that case the fifth clause of the syllabus reads as follows :

“It is not reasonable to conclude that the state legislature meant to repeal all laws regulating elections in this state, and this being true there was no intent to repeal the law of 1890, 87 O. L. 359, by the law of 1896, 92 O. B. 166, for any other purpose than to give effect and operation to the latter law, and the law of 1896 being unconstitutional, the legislature must have intended that if that act should prove unconstitutional, then the law of 1890 should remain in full force and effect; this intent existed, and the purpose of putting in the repealing clause being as above stated, it follows that the repealing clause falls within the law itself, and the act of 1890 remains as the law governing elections.”

In the case we have before us, the repeal of Secs. 582, 583 and 584, Rev. Stat., would totally destroy the law upon the subject of attachments before justices of the peace, and it cannot be thought for a moment that it was the purpose of the legislature to repeal these sections except in the course of the amendment thereof by the substitution of the amended sections found in the act of April 19,1898. Sec. 583, Rev. Stat., as it stood before this amendment, authorized justices of the peace of all the counties of the state to proceed as the justice proceeded in this case. It did not contain this exception of the counties of Franklin and Cuyahoga; so that if this act were held to be unconstitutional, it would result in leaving the section as it then stood in full force, and in leaving the justice of the peace with jurisdiction in this case.

For these reasons we decline to consider the question whether the act of April 19, 1889, is or is not constitutional.

It is also contended by plaintiff m error that a justice may not proceed to judgment in such cases, unless the summons is accompanied by an order of attachment which has been obtained and issued lawfully, regularly and in good faith. It was contended in the case of Kelly v. Flanagan, 11 Circ. Dec. 111 (20 R. 391), that the justice could not proceed to judgment unless property was seized and held under the writ of attachment; and we held in that case as follows :

“ Where in a civil action before a justice of the peace, brought in the county but not in the township of the defendant’s residence, the summons is accompanied by an order of attachment sued out and issued in good faith upon any ground authorizing an attachment against a resident of the county, and the summons is duly served, such justice thereby obtains jurisdiction over the person of the defendant, and may proceed to personal judgment against him, though no property is seized or held under the attachment.”

We based our decision upon what we regarded as the plain unequivocal provisions of the statute upon the subject. In the course of the opinion, on page 114, this language is used:

“ What might be done in a case where one procures an attachment to be issued fraudulently, for the purpose of giving a justice jurisdiction where he ought not to exercise it, or in a case where the affidavit should be insufficient, or the like, we do not undertake to say. In this case it does not appear but that the attachment was sued out and issued regularly and in entire good faith; and that part of the object of plaintiff’s proceeding failed through his misfortune, but not through his fault; we therefore hold that the justice might rightfully proceed to judgment against the plaintiff in error, as he did.”

The plaintiff in error undertakes to distinguish this case from the case of Kelly v. Flanagan, supra. He says that the affidavit in this case was not sufficient, and was not true, and that the attachment was not obtained in good faith. We cannot discover that this is disclosed by the record. From the mere fact that the attachment was voluntarily discharged on the motion of the plaintiff, we are not authorized to assume that it was obtained fraudulently or not in good faith. Various considerations may have moved the plaintiff in the action before the justice to discharge the attachment. He may not have cared to prosecute that part of his suit or remedy. It is said in argument that the ground stated in the record for the attachment, viz: that the claim was for necessaries did not exist. The affidavit discloses that the claim was for coal sold and delivered to the defendant. The affidavit further states distinctly that it was for necessaries, viz : that the coal. was necessary. We can see that coal might be as necessary to preserve the life of the defendant, to promote his comfort or health and that of his family, as bread or meat. It is said that this coal, however, was for fuel for a boiler located out in the country somewhere, as a part of the equipment of an oil lease. That fact the record does not disclose; we must take the record as we find it. The simple statement is that the claim was for coal, and that the claim was for necessaries. These averments in the affidavit stand uncontradicted in the record. We find no statement, or affidavit, or finding, to the effect that the coal was not for a use that would make it “necessaries” within the meaning of this provision. The plaintiff in error, when before the justice of the peace, seem to have placed his whole reliance upon the contention that the act under which the justice was proceeding to exercise jurisdiction was unconstitutional.

We find no error in this record, and the judgment of the court of common pleas will be affirmed.  