Sandusky Common Pleas. noxious, unwholesome and impure, to the great damage, prejudice and common nuisance of the citizens of Sandusky county, and of the state of Ohio, there being and abiding, contrary to the form of the statute," etc. In the motion (without intending to enter an appearance): "Defendant states that the said court has no jurisdiction herein, either of the subject-matter or of the person of the defendant. "Wherefore the defendant prays judgment." The indictment was framed under Secs. 6920 and 6921 Rev. Stat., which provide: Section 6921. "Whoever erects, continues, uses, or maintains, any building, structure, or place for the exercise of any trade, employment or business, * * which, by occasioning noxious exhalations, or noisome or offensive smells, becomes injurious to the health, comfort, or property of individuals, or the public, *** or corrupts or renders unwholesome or impure any watercourse, stream or water, * * * to the injury or prejudice of others, * * * shall be fined not more than five hundred dollars." Section 6920. "An offense charged" under Section 6921, "shall be construed and held to have been committed in any county whose inhabitants are or have been injured or aggrieved thereby." In support of the motion, it is contended that the indictment is without force or effect, because: 1. It shows the offense charged to have been committed in the county of Seneca, and not in the county of Sandusky. 2. Section 6920 Rev. Stat., passed April 22, 1865, contradicts Sec. 7263 Rev. Stat., passed May 6, 1869, and effect should be given to the last rather than the first enactment. 3. Section 6920 Rev. Stat. is special legislation, while Sec. 7263 is a law of a general na ure. 4. Being an indictment for an offense committed in Seneca county, Sec. 6920 Rev. Stat. is contrary to Sec. 10 of the bill of rights. Some references were made as to the defendant, its history and rights, but as these matters pertain more particularly to evidence, they will not be considered further. It may be well to say that the points indicated were the only ones argued upon the hearing of the motion, and upon which a decision is desired, so no attempt will be made to discuss any other matters connected with the case. One of the first questions to be decided is, is the premise of the first proposition correct? It is argued that the Strawboard Company, in carrying on its business at Tiffin, in the county of Seneca, poured the refuse from its mill into the Sandusky river, at its mill in Seneca county, and as it is not charged that the company was actually in or actually did the acts com State v. Strawboard Co. plained of in Sandusky county, the offense, if any, was committed in Seneca county. In this, the inception and not the local effect of an act is considered. "It is the place where the nuisance is caused, and not the place where the act is done causing the nuisance, that determines the venue." 2 McClain Cr. Law, Sec. 1177; also, State v. Lord, 16 N. H. 357. "And where offensive matter is discharged into a stream in one county which renders impure the water of such stream as it flows through another county, the offense is one partly committed in each county. 2 McClain Crim. Law, Sec. 1177, citing, State v. Smith, 48 N. W. Rep. 727 [82 Ia. 423]. The principle is further illustrated in other cases; as in homicide, where the more common opinion is, that at common law, the accused was indictable in the county where the act resulting fatally was done. 21 Am. & Eng. Enc. Law (2 ed.) 128. In State v. Hall, 19 S. E. Rep. 602, 603 [114 N. C. 909; 28 L. R. A. 59; 41 Am. St. Rep. 822], Shepherd, C. J., delivering the opinion of the court, reviewed the decisions and points out the distinctions, and quoting from Simpson v. State, 17 S. E. Rep. 984 [92 Ga. 41; 22 L. R. A. 248; 44 Am. St. Rep. 75]: "Of course the presence of the accused within this state is essential to make his act one which is done in this state. But the presence need not be actual; it may be constructive. The well-established theory of the law is that, where one puts in force an agency for the commission of a crime, he in legal contemplation, accompanies the same to a point where it becomes effectual.' * * * In speaking of a crime committed by one out of the state, through an innocent agent, Judge Royer says, 'In such case, the innocent person in the state is the means used to perpetrate the crime therein, just as if a person who shoots out of a state across the line into another state and therein intentionally kills another person, is in such case guilty of committing the criminal act within the state, without himself being at the time therein.' Royer Interstate Law 326." And quoting from Wharton Cr. Law, Sec. 287, note: "The place of residence where the offense is started has jurisdiction over the attempt or conspiracy as the case may be. The place of consummation has jurisdiction of the offense consummated on its soil." So in case of poison, where poison is given in one county, and taken in another county, in accordance with instructions, the crime is held to have been committed in the latter county. Robbins v. State, 8 Ohio St. 131. But it is claimed that the case of Gravatt v. State, 25 Ohio St. 162, is contrary to these decisions. That was a case of embezzlement, charged to have been committed in Montgomery county, and evidence was pre Sandusky Common Pleas. sumably introduced tending to prove that the accused collected money for another in Montgomery county, but made up his mind to appropriate it to his own use in Preble county, and the court was asked to charge that if that was so, the accused should be acquitted. The court refused to so charge, and the Supreme Court held the refusal proper. White, J., saying, p. 168. "If he knowingly converted the money to his own use, under the circumstances prescribed in the statute, the offense was complete." Of course, in case of nuisance, the question of intent is immaterial. The question is only whether the acts or conduct have caused injury or prejudice to the inhabitants of Sandusky county, as prescribed by the statutes. 2 McClain Cr. Law, Sec. 1176; Sec. 1169 et seq. Again, if the statute did change the common law rule, yet it was within the province of the legislature to give jurisdiction in the county where the cause took effect, and such have been held constitutional. 21 Am. & Eng. Enc. Law, (2 ed.) 128. State v. Hall, supra; State v. Hogan, 63 Ohio St. 202 [58 N. E. Rep. 572]. The first proposition then, proceeds upon a wrong premise, and the proposition is not correct. As to the second proposition, viz., that Sec. 6920 Rev. Stat. contradicts Sec. 7263. Section 7263 provides: ་་ "All criminal cases shall be tried in the county where the offense was committed," and recurring to Sec. 6920 Rev. Stat., it will be observed that it provides, "An offense" under Sec. 6921, "shall be construed and held to have been committed in any county whose inhabitants are or have been injured or aggrieved." It is argued that Sec. 6920 Rev. Stat. permits an indictment against the Strawboard Company for the same offense in any of the five counties through which the Sandusky river flows, thereby rendering the company liable to be twice vexed for one and the same offense, and citing, State v. Behimer, 20 Ohio St. 572. That was a case, in which a man on trial for murder, was found guilty of a lower degree of homicide. A new trial was granted, and the court held, that "the effect of granting a new trial is to set aside the whole verdict, and leave the case for retrial upon the same issues as on the first trial." And the constitutional provision, no person shall "be twice put in jeopardy, for the same offense," did not apply. The act only gives the right of the injured or aggrieved inhabitants of a county, the right to prosecute the action in the county in which the injury has been committed. This does not necessarily authorize the finding of an indictment by the grand jury of Seneca county, for injuries committed in Sandusky county, to inhabitants of Sandusky county; but even if it did, the jurisdiction would only be concurrent, and if a trial was had in one county, the result of that trial would be conclusive as to all other trials, in accord State v. Strawboard Co. ance with the constitutional limitations last mentioned. McGehan, Ex parte, 22 Ohio St. 442, 445. Statutes should be construed liberally to avoid constitutional infirmities. Gilpin v. Williams, 25 Ohio St. 283, 294. So the cases cited to the effect that in case of conflict, the later statute shall apply, is not in point, viz., State v. Shelby Co. (Comrs.), 36 Ohio St. 326; State v. Halliday, 63 Ohio St. 165 [57 N. E. Rep. 1097]; 2 Bates Digest 2158-9. As to the third point, that Sec. 6920 Rev. Stat. is special legislation, while Sec. 7263 Rev. Stat. is a law of a general nature, it will be observed that Sec. 6920 Rev. Stat. applies to any place in the state in which the facts specified may exist. Crime, by whatever nature it may be called or however it may be defined, by an act of the general assembly, will be the same nature in every part of the state. An act, without words of limitation, defining and punishing a designated crime or misdemeanor, would necessarily be a law of a general nature, applicable to the designated crime or offense, wheresoever within the state it may have been committed. Van Hagan, Ex parte, 25 Ohio St. 426, 431; Driggs v. State, 52 Ohio St. 37 [38 N. E. Rep. 882]; Hinds v. Sells, 63 Ohio St. 328 [58 N. E. Rep. 800]; State v. Hogan, 63 Ohio St. 202, 210 [58 N. E. Rep. 572]; also, see cases cited above. It is, therefore, a law of a general nature, having a uniform operation throughout the state. And the cases cited, viz. Kelley v. State, 6 Ohio St. 269; State v. Ferris, 53 Ohio St. 314 [41 N. E. Rep. 579], do not conflict with this principle. As to the fourth point, that the statute is unconstitutional, being contrary to Sec. 10 of the bill of rights, which provides the "accused shall be allowed, * * * a speedy public trial, by an impartial jury of the county or district in which the offense is alleged to have been committed." Having determined that the crime may be considered as having been committed in Sandusky county, the constitutional privilege has not been violated. State v. Hogan, supra. The motion will, therefore, be overruled. Superior Court of Cincinnati. PRACTICE-CURATIVE ACT. [Superior Court of Cincinnati, Special Term, 1902.] THEODORE HORSTMAN, ON BEHALF OF CINCINNATI, V. CINCINNATI STREET RY. Co. 1. Demurrer to Pleading and Motion to STRIKE From Files at Same Time IS BAD PRACTICE. It is not good practice in this state to file a demurrer and a motion to strike a pleading from the files at the same time, and where this is done the court wil overrule the motion, reserving the right to permit of its being refiled after the decision on the demurrer. 2. RESERVAtion to Genekal Term. The superior court in general term having held a law conferring corporate power unconstitutional. Sec. 2505d Rev. Stat., to cure which the legislature has passed certain curative provisions, Secs. 31 and 137, 96 O. L. 18, the operatior and effect of which is put in issue in a subsequent action directly connected with the former action, the special term will reserve the determination thereof to the general term. 3. CURATIVE PROVISIONS, When Operative. Whether the provision of the new municipal code, Sec. 231, 96 O. L. 96, that the act for some purposes shall take effect from and after November 15, 1902, and for others the first Monday in May, 1903, applies to the curative provisions, Secs. 31 and 137 thereof, quaere. Theodore Horstman, for plaintiff. E. W. Kittredge and John W. Warrington, contra. SMITH, J. This case comes before me on a motion to set the case for hearing at the present term. The issues made in the case, its history and present status may be briefly stated as follows: In January, 1901, Theodore Horstman, as a taxpayer, on behalf of the city of Cincinnati, filed the original petition in the case under Secs. 1777 and 1778 Rev. Stat. The petition was subsequently amended. By the action it was sought to have declared invalid the resolution passed August, 1896, by the board of administration in this city. by which resolution the grant of the defendant company of what is popularly known as the "John Street Route" was extended for a period of fifty years, including the unexpired term of the grant. The ground upon which the plaintiff relied was that the law passed. April 22, 1836, and popularly known as the "Rogers Law," which conferred upon the board of administration the power to make such extension of the grant of the defendant company, was unconstitutional and void. The defendant having answered, the plaintiff demurred to the answer and the demurrer was reserved to the general term. In August, 1902, the general term handed down its decision (see Horstman v. Street Ry. Co., 12 Dec. 756) sustaining the demurrer to the |