and effect of the provisions of the section amended, and to the especial character of the amendments made, we think it clear that the Legislature by the adoption of amended section 6134a undertook, and intended thereby, to limit and restrict the right to recover in the courts of this state, for a wrongful death occurring in another state, to those cases where the person killed was, at the time of his death, a citizen of Ohio. But it is contended in argument by counsel for defendant in error that such construction and interpretation of this statute renders it unconstitutional, by putting it in conflict with section 2, art. 4, of the federal Constitution, which provides that: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." But the contrary is now too well established to be disputed. This constitutional provision applies to fundamental and universal rights, not to special privileges. Minor's Conflict of Laws, 15. Furthermore, under this statute, nonresident next of kin have equal rights, and our courts are equally open to them as to resident next of kin, provided, only, that the person whose wrongful death is the subject of the action was at the time of his death a citizen of Ohio. It is also suggested by counsel for defendant in error that if the courts of this state will not permit the enforcement therein of actions for wrongful death occurring in other states, without reference to the citizenship of the person killed, that in many cases the right of recovery will be wholly lost. This does not follow, for in all cases of diverse citizenship the federal courts are given jurisdiction, and the wrongdoer may be followed to any state into which he may go, and the right given by the state where the death occurred may there be enforced against him in the courts of the United States.

From a consideration of the statutes hereinbefore referred to and the former decisions of this court, we think it must now be held to be the recognized policy and established law of this state that an action for wrongful death occurring in another state will not be enforced in the courts of this state, except where the person killed was, at the time of his death, a citizen of Ohio. And we think the case at bar aptly and forcibly illustrates the wisdom of such a policy. In the present case the plaintiff below, Elizabeth M. Chambers, resides in, and is a citizen of, the state of Pennsylvania. Her husband, Harry E. Chambers, at the time of his injury and death, resided in and was a citizen of the state of Pennsylvania. The alleged wrongful act occurred, and the cause of action arose, in the state of Pennsylvania. Defendant below, the Baltimore & Ohio Railroad Company, then operated, and now operates, its line of railroad in said state, and could have been as easily sued in that state as in Ohio. But for some reason, which we may

guess, but which the record does not affirmatively disclose, plaintiff elected to bring her action in this jurisdiction as a matter of convenience, and not from necessity. To open our courts in such cases, and under these circumstances, for the adjustment and settlement of the rights of the parties, is to extend an invitation to all such persons, who may, for whatsoever reason, prefer to resort to our tribunals to seek the courts of this state to enforce their claims. Thus we should greatly add to the already overburdened condition of the dockets in all our courts, and thereby make the settlement of rights originating outside the state between citizens of other states a charge and burden upon the people of our own state. The Legislature of Ohio has, we think, by the foregoing legislation, manifestly declared that such is not the policy of this state.

It follows, therefore, that the judgment of the circuit court must be reversed and judgment entered for plaintiff in error upon the conceded facts.

In prosecutions founded on affidavit, information, or indictment for selling intoxicating liquors to be used as a beverage, in violation of sections 4364-20b and 4364-20c, Rev. St. 1903, it is necessary to a sufficient charge against the accused that the affidavit, information, or indictment, as the case may be, allege the name of the purchaser of such intoxicating liquors, or that his name is to the affiant, informant, or grand jury unknown.

[Ed. Note.-For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, § 238.] (Syllabus by the Court.)

Error to Circuit Court, Greene County. One Ridgway was convicted of selling liquor, which conviction was reversed on appeal to the circuit court, and the state brings error. Affirmed.

The defendant in error was prosecuted before the mayor of Jamestown, Greene county, Ohio, on an affidavit which charged him with having sold liquor in another municipal corporation in that county contrary to law. The trial before the mayor resulted in conviction, and he was duly sentenced to pay a fine and the costs of the prosecution. The case was taken on error to the court of common pleas, where the judgment of the mayor was affirmed. Ridgway prosecuted error in the circuit court, and that court, on consideration of the record, reversed the judgments of the court of common pleas and mayor on the ground that the affidavit upon which Ridgway was tried

and convicted by the mayor was defective in not stating the name of the party to whom the liquor was sold; but the circuit court affirmed the judgment of the common pleas on all other questions raised. The case was remanded to the mayor of Jamestown, with an order that it be dismissed. The state prosecutes error in this court to reverse the judgment of the circuit court.

M. R. Snodgrass and W. B. Wheeler, for the State. Roy G. Fitzgerald, for defendant in error.

PRICE, J. (after stating the facts). We have been somewhat embarrassed in the preparation of this opinion by loss from the files of some of the original papers, including the affidavit and bill of exceptions. It is believed that the absence of these documents is not the fault of either party, and we proceed to an examination of the only question presented to us in the briefs of counsel and such record as we find at hand. It seems to be agreed between counsel for the respective parties to this proceeding that the affidavit before the mayor charged Ridgway with the violation of sections 4364-20a-4364-20c, Rev. St. 1903, which sections are a part of what is commonly known as the "Beal Law." Section 436420a provides when a petition of electors of a municipal corporation may be filed with the council, asking the privilege of determining by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within such corporation, and fixes the number of petitioners necessary to give the council authority to act. It also provides for the calling of the election on such petition, the notice therefor, the manner of holding and conducting the election, and the mode of ascertaining and recording the result.

Section 4364-20b prescribes the form of the ballot to be cast at the election, and further provides that, "if a majority of the votes cast at such election shall be in favor of prohibiting the sale of intoxicating liquors as a beverage, then from and after thirty days from the date of holding said election, it shall be unlawful for any person, personally or by agent, within the limits of such municipal corporation, to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away, or furnished for beverage purposes; and whoever, from and after the thirty days aforesaid in any manner directly or indirectly sells, furnishes, or gives away, or otherwise deals in any intoxicating liquors as a beverage, shall be guilty of a misdemeanor, and shall, on conviction thereof, be fined not more than two hundred dollars, nor less than fifty dollars for the first offense. It is also provided in the same section that manufacturers of

*

We must assume, for the purposes of this proceeding, that a petition had been presented to the council of the municipal corporation, signed by the requisite number of electors; that an election was held as required by the statute, and that it resulted in a majority of votes being cast in favor of prohibition of the sale of intoxicating liquors within the corporate limits, and that its results were made a matter of record as the law directs. When all these steps have been taken, it became unlawful for any one, after the expiration of 30 days from the holding of such election, to sell intoxicating liquors within the corporate limits as a beverage, save under the circumstances made exceptions by the latter clause of section 4364-20b and the provision of section 4364-20c above quoted. The charge before the mayor against Ridgway, as we gather from the record and briefs before us, was not for keeping a place, structure, etc., in which or from which intoxicating liquors were unlawfully sold, but that he unlawfully sold intoxicating liquors within the corporate limits at a certain time, to be used as a beverage, without alleging the name of the purchaser. On account of this omission, the circuit court held the affidavit fatally de fective. In so holding did that court err?

In answering this question, we are justified in a retrospect of some of the temperance legislation of the state and the practice thereunder, because, if the question we are considering could or did arise under former statutes regulating the sale of intoxicating liquors, the judicial decisions, if any, and the settled practice under the former statutes on the same subject, ought to be of assistance in the present controversy. It has been truly said that this court has never had occasion to decide this precise question, and we think the reason can be found in the fact that the uniform practice seems to have been to allege in the affidavit, information, or indictment the name of the purchaser when the seller was charged with a single sale. We have no doubt that so general and uniform was this practice that no occasion was afforded to raise the question in this court, although many other controversies arose over other phases of the legislation. That we may be clearly understood, let us turn to the act of May 1, 1854.

Swan & C. Rev. St. vol. 2, p. 1431. The act is entitled "An act to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio." Section 1 provided "that it shall be unlawful for any person or persons by agent or otherwise, to sell in any quantity, intoxicating liquors, to be drank in, upon, or about the building or premises where sold.

The second section prohibited the sale of such liquors to minors, unless upon the written order of their parents, guardian, or family physician. The third section made it unlawful to sell such liquors to persons intoxicated or who are in the habit of getting intoxicated. The fourth section provided that all places where intoxicating liquors are sold in violation of this act shall be taken, held, and declared to be common nuisances. The fifth section made it unlawful for any person to get intoxicated. These were the penal sections of the act. As a part of the act (section 12, p. 1435), the Legislature prescribed a form of complaint, which it declared to be sufficient in criminal proceedings under that act before justices of the peace and mayors, and the form is: "The State of Ohio, County, ss. Before me, A. B. (a justice of the peace of said county, or mayor, etc., as the case may be), personally came C. D., who, being duly sworn according to law, deposeth and saith, that on or about the day of -, in the year → at the county of aforesaid, E. F. did sell intoxicating liquors to one G. H. to be drank in the place where sold (or to G. H., a minor, etc., or to a person intoxicated, or in the habit of getting intoxicated, as the case may be, or is the keeper of a room or tavern, as the case may be, where intoxicating liquors are sold in violation of law), and further deponent saith not. C. D.

"Sworn to and subscribed," etc.

Section 13, on same page, provided that "in all prosecutions under this act, by indictment or otherwise, it shall not be necessary to state the kind of liquors sold, or to describe the place where sold, and for any violation of the fourth section (keeping a place, etc.), it shall not be necessary to state the name of any person to whom sold.

It need not be said that the above form was intended to be exclusive, but as deemed sufficient, and it must be noted that the form suggests, at least, that a charge of violating either the first, second, or third sections of that act should contain the name of the purchaser of the liquors.

The first case that reached this court for a construction of the act of May 1, 1854, is reported as Miller & Gibson v. State, 3 Ohio St. 476. While the question we are to decide was not involved in that case, the points settled shed some light upon it. It was there held, among other things, that, to convict for a violation of the second section, it was necessary to aver in the in76 N.E.-7

formation (in probate court) and prove on the trial that the seller knew the buyer to be a minor; and, to convict for a violation of the third section, it was necessary tó aver and prove in like manner that the seller knew the buyer to be intoxicated or in the habit of getting intoxicated. It seems that the controversy in that case did not involve the first section, for the prosecution was not under that section. This pioneer case has never been questioned, and it shows how the elements of the above form prescribed by the Legislature were considered in arriving at the conclusions so announced. Then, when section 13 of the old statute provided that “in all prosecutions under this act [May 1, 1854] by indictment or otherwise, it shall not be necessary to state the kind of liquors sold, or describe the place where sold; and that for a violation of the fourth section [keeping a place where sold-a nuisance] it shall not be necessary to state the name of any person to whom sold," we think it a fair inference that for a violation of the first section (selling to be drank where sold) the name of the buyer should be alleged in the affidavit, information, or indictment as the case may be, or an allegation excusing the giving of the name, to the effect that it was unknown to the affiant, informant, or grand jury. We are satisfied that an examination of every case that arose under this former act, involving a conviction under the first, second, or third sections thereof, and which reached this court for decision, contained a charge containing the name of the buyer of the liquors. The form prescribed by the statute became a precedent that was universally observed, so far as our recollection and research extend, and hence we say it became the settled practice throughout the state to allege the name of the buyer, if known, in prosecutions for violation of the first, second, and third sections.

A long-established and uniform practice is an authority of but little, if any, less weight than an adjudication to the same effect. So we find in Manor's Criminal Law, an Ohio authority published in 1857, and then of great value, on page 370, a form for a charge of selling liquors to be drank where sold, and the name of the buyer is deemed a necessary part of the charge. In 1857 another Ohio authority (Ohio Criminal Law, by Warren) was published and became of general use in the state. It was revised in later editions. On page 649 of the edition of 1870 is found his form for a charge for illegally selling intoxicating liquors. The directions of these Ohio authors are not judicial decisions, but they show how the practice about which we have been speaking was moulded, and that the form prescribed by the Legislature in that act has been observed uniformly, so long as its provisions were in force. Hence it is that this court was never called upon to decide whether it is

necessary that a charge for illegally selling intoxicating liquors should contain the name of the purchaser, or a valid excuse be given for not alleging it. The first section of the act of 1854, afterwards known as section 6941, Rev. St. 1903, was repealed April 17, 1883 (80 Ohio Laws, p. 167), and in an act passed May 14, 1886 (83 Ohio Laws, p. 161), the same section is again declared to be repealed. The other sections of the old act have in their substance been retained, and additional legislation, from time to time, in regulation and restraint of the traffic has been enacted, and numerous limitations have been placed upon it. But we think that, where the sale of intoxicating liquors as a beverage is made unlawful under the present law, the same rule of practice still obtains. The general provisions now regulating the traffic in intoxicating liquors are found in sections 6940 to 69501, inclusive, of the Revised Statutes of 1903. In addition to these are the statutes providing for municipal and township local option, wherein the electors within such jurisdictions may, by a majority vote, prohibit the sale of liquors therein, except in certain excepted cases for certain excepted purposes named in the statute. In the case before us the vote of the majority has made the territory within the corporate limits prohibition territory, within which it was and is unlawful to sell intoxicating liquors to be used as a beverage. The charge is not that Ridgway kept a place where intoxicating liquors were being sold in violation of law, but that he sold intoxicating liquors within the corporate limits to be used as a beverage, without alleging the name of the buyer or facts excusing the giving of such name. Thirty days after the election it became unlawful to sell for beverage purposes. If Ridgway made such a sale, he had a buyer, and, if his name was known to the complaining party, it was not only proper, but we think necessary, to allege it in the affidavit. For the first offense, at least, it seems the mayor has final jurisdiction, and the offense charged should be described with reasonable certainty. The rule of practice under the old statute, as we have found it, applies to its kindred provision of the present law as to single sales, which it declares to be unlawful.

Section 7222, Rev. St. 1903, entitled "What are sufficient allegations in an indictment for unlawfully selling liquor?" provides that "in an indictment under sections 6941, 6942, 6943, 6944, 6945, 6946, 6947 and 6948, it shall not be necessary to allege the kind of liquor sold, nor to describe the place where sold, and in an indictment under said section 6942 [keeping a place, etc.], it shall not be necessary to allege the name of the person to whom intoxicating liquor was sold." This section is now part of the Criminal Code, but it had its root in old section 13 of the act of May 1, 1854, already quoted. Why did not the Legislature include in section 7222 the offense under consideration, if the rule of

pleading was to be changed? It will be observed that the sections under which this prosecution was instituted (4364-20b and 4364-20c) is not named therein, and if, before its passage, it was good pleading to allege the name of the buyer, as well as the seller, of intoxicating liquors, the rule still remains. This must have been in the mind of the court when Gordon v. State, 46 Ohio St. 607, 23 N. E. 63, 6 L. R. A. 749, was decided. That was a local option case, under the township local option statute passed March 3, 1888. A motion was made to quash the indictment on the ground (1) that it did not set forth the name or names of any person or persons to whom the sale of intoxicating liquors was made, and (2) that it was objectionable for duplicity. The indictment alleged that the accused unlawfully sold intoxicating liquors as a beverage to divers persons, whose names to the jurors were unknown. Dickman, J., said for the court, on page 625 of 46 Ohio St., page 64 of 23 N. E. (6 L. R. A. 749): "This we deem sufficient. In those cases in which the names of third persons cannot be ascertained they may be thus designated, in the usual form, 'as persons whose names are to the jurors unknown.' Thus an indictment for harboring thieves unknown is sufficient, from the necessity of the case, upon the fair presumption that the names cannot be discovered. And in indictments for assault and the like the person injured or killed may be mentioned as unknown, if such is the fact." We think this statement of the law of criminal pleading is authority here, because if, in sales of liquor for use as a beverage, it is not necessary to allege the name of the buyer, it would have been so declared as a much shorter answer to the contention in that case. It held that the indictment was good without naming the buyer, if his name is unknown, and it is so alleged.

Counsel for the state, in the able brief filed, cite a number of decisions made by the courts of other states, and we have examined them. There is one remark that is common to a majority of them, and it is, that they are cases where sales of intoxicating liquors were made without a license or permit. State v. Schweiter, 27 Kan. 499, and State v. Moseli, 49 Kan. 142, 30 Pac. 189, are of this character, and so with many other cases cited in behalf of the plaintiff in error. A few are not of that character. They did not decide the question we have, for there is a distinction between the acts involved in those cases where sales were made without a license or permit and the act of selling where no license or permit can be issued in order to legalize the sale. In the states where the decisions referred to were made, if the state or other proper authority granted a license for the sale of liquor, such license would be a defense, no matter as to the name of the purchaser. Selling without license constituted the gravamen of the offense, and the name of the person to whom

sales were made was not material. Hence the difference in the decisions.

There is another observation worthy of note in this case. It is said that Ridgway is a druggist, and was a druggist when he committed the offense. If he was a regular druggist and sold intoxicating liquors, he is protected, if he complied with the rule prescribed in section 4364-20c, and made the sale exclusively for known medicinal, pharmaceutical, scientific, mechanical, or sacramental purposes. If the sale was made for medicinal purposes, in good faith, upon the written prescription issued, signed, and dated in good faith by a reputable physician in active practice, and used but once, the sale was not unlawful. If Ridgway was a druggist, as seems to be conceded, there is additional force in the claim that the name of the buyer should appear in the charge against him. A druggist is supposed, if not required, to file and preserve prescriptions which he has filled. When he is confronted with a charge of unlawfully selling intoxicating liquors to one named in the charge, he is able to speedily ascertain whether he made the sale on the requisite prescription. If the name of the buyer is not alleged, the making of his defense is more difficult. This reason seems to be a very plain and reasonable one. It has received the sanction of two Missouri cases. In State v. Cassity, 49 Mo. App. 300, on page 301, the court says: "The indictment does not in either count state the name of the person to whom the liquor was sold. We held, in State v. Martin, 44 Mo. App. 45, that an information against a druggist, under section 4621 of the Revised Statutes, which fails to state the name of the person to whom the liquor was sold by him, is subject to be quashed on the defendant's motion. We held this on the ground that in the case of a sale the druggist must rest his defense, if he has any, upon a prescription or prescriptions issued by a regularly registered physician of the state; and, if the purchaser of the liquor is not named in the indictment, that defense becomes practically unavailable to him. That view was approved by the Supreme Court, to which we certified the case for its final determination. * The Supreme Court of Missouri reviewed the case of State v. Martin, supra, in 108 Mo. 117, 18 S. W. 1005, and held the same doctrine. For a clear and vigorous statement of the reasons for the rule, we refer to the opinion of that court by Thomas, J., on pages 119 and 120 of 108 Mo., page 1006 of 18 S. W. They can be adopted here as entirely appropriate. A brief quotation here is sufficient. "The statute contemplates that intoxicating liquors may be prescribed by physicians and used for medicinal purposes. Hence the law authorizes their sale by all licensed druggists, provided the purchaser shall first procure a prescription therefor from a registered physician. When a druggist is indicted for a

violation of this statute, he must rest his defense, if he has any, upon a prescription or prescriptions issued by a regular registered physician of the state. If the purchaser of the liquor is not named in the indictment, how can such a defense be made available to the accused? Until the defendant is thus advised, how can he make his plea? How can he prepare for trial? Under what circumstances can he safely announce himself ready for trial? With no knowledge of the evidence upon which the state relies for a conviction, must he take with him to the trial all prescriptions filed during the year next preceding the indictment? And must he al so prepare himself with the necessary proof that each prescription was signed by a regis tered physician? He may have prescriptions given by physicians in different and distant parts of the state. These are practical questions," etc.

Counsel for the state cite and rely on Carper v. State, 27 Ohio St. 572, and Roberts v. The State, 32 Ohio St. 171. The decision in the latter case is based on the reasoning of the court in the former case. Both cases arose on charges of violating the gaming statutes. A careful reading of Carper v. State, supra, will show that the construction there given of the law against gaming for money should not be applied as authority in the present case.

We conclude that the circuit court did not err in its judgment, and that judgment is affirmed.

Affirmed.

DAVIS, C. J., and CREW, SUMMERS, and SPEAR, JJ., concur.

(165 Ind. 490)

SUMME v. BROWNE. (No. 20,570.) (Supreme Court of Indiana. Nov. 28, 1905.) 1. COUNTIES-BOARD OF COMMISSIONERS-DECISIONS APPEAL.

While Burns' Ann. St. 1901, §§ 6318, 7859 (Rev. St. 1881, §§ 4762, 5772; Horner's Ann. St. 1901, §§ 4762, 5772), provide that an appeal may be taken from any decision of the board of county commissioners, the decision must be final.

2. SAME-PRACTICE BEFORE BOARD.

Under Burns' Ann. St. 1901, § 6317 (Rev. St. 1881, § 4761; Horner's Ann. St. 1901, § 4761), providing that boards of county commissioners in the trial of causes shall comply so far as practicable with the rules of business in the circuit courts, a board in the hearing and determination of questions of law and fact in the progress of a contested election case is governed by the rules of law obtaining in cir cuit courts.

3. SAME-DECISION-FINALITY.

A record of a board of county commissioners, showing that the contestee in an election contest was elected by a plurality, and that the contestant prayed an appeal to the circuit court, showed a mere finding of facts, and not a judg ment, final order, or decision, from which an appeal could be taken under Burns' Ann. St. 1901, §§ 6318, 7859 (Rev. St. 1881, §§ 4762, 5772; Horner's Ann. St. 1901, §§ 4762, 5772).