1802. BILL OF RIGHTS. Art. VIII. ARTICLE VIII. BILL OF RIGHTS. That the general, great and essential principles of liberty and free government may be recognized and forever unalterably established, we declare, SECTION 1. That all men are born equally free and independent, and have certain natural, inherent and unalienable rights; amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety; and every free republican government, being founded on their sole authority, and organized for the great purpose of protecting their rights and liberties, and securing their independence: to effect these ends, they have at all times a complete power to alter, reform or abolish their government, whenever they may deem it necessary. (See Const. 1851, Art. I, S$ 1, 2.) SEC. 2. There shall be neither slavery nor involuntary servitude in this Of slavery and involuntary servistate, otherwise than for the punishment of crimes, whereof the party tude. shall have been duly convicted; nor shall any male person, arrived at the age of twenty-one years, or female person arrived at the age of eighteen years, be held to serve any person as a servant, under the pretense of indenture or otherwise, unless such person shall enter into such indenture while in a state of perfect freedom, and on condition of a bona fide consideration received, or to be received, for their service, except as before excepted. Nor shall any indenture of any negro or mulatto, hereafter made and executed out of the state, or if made in the state, where the term of service exceeds one year, be of the least validity, except those given in the case of apprenticeships. (See Const. 1851, Art. 1, § 6.) SEC. 3. That all men have a natural and indefeasible right to wor- of the rights of ship Almighty God, according to the dictates of conscience; that no conscience. human authority can, in any case whatever, control or interfere with the rights of conscience; (1) that no man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry, against his consent; and that no preference shall ever be given, by law, to any religious society or mode of worship, and no religious test shall be required, as a qualification, to any office of trust or profit. But religion, morality and The necessity of knowledge, being essentially necessary to good government and the hap- religion and piness of mankind, schools and the means of instruction shall forever be encouraged by legislative provision, not inconsistent with the rights of conscience. (2) (See Const. 1851, Art. I, § 7.) (1) No person can be called in question under our Constitution for his religious belief; but if it be necessary to inquire into the tenets of a body of worshipers to settle a controversy between them about property, that is constitutional. Kisor v. Stancifer, Wright's Rep., 323. Quere.-If inquiring into a man's religious belief, to determine his competency as a witness, is not a violation of the Constitution? Easterday v. Kilborn, Wright's Rep., 345. One believing in the existence of God, who sees him in all created nature, and who believes he is as much obliged to tell truth without oath as with, and in future rewards and punishments in this life, and that if he does wrong his conscience will condemn him, is competent. lb. The prohibition of common labor on the Sabbath, in the act for the prevention of immoral practices, embraces the business of "trading, bartering, selling or buying any goods, wares or merchandise." Cincinnati v. Rice, 15 O., 225, The ordinance of the city of Cincinnati prohibiting such trading, etc., on Sunday, is void as to those who conscientiously do observe the seventh day of the week as the Sabbath. Ib. (2) The whole subject of organizing and regulating schools is left to the General Assembly. But it is insisted that the act of 1849 (47 v. 22), to authorize the establishment of separate schools for colored children, is in contravention of the spirit of the Constitution. This is dangerous ground to tread upon in determining the constitutionality of a law. We may agree as to the reading of the Constitution, and generally of its meaning; but when we come to talk of its spirit, it is a different matter. There is danger that we shall conclude the spirit to be in accordance with our preconceived opinions or feelings of what it ought to be. And the court held the act in question to be constitutional. State v. Cincinnati, 19 Ö., 197—Hitchcock, J. knowledge. Art. VIII. Of the inviola SEC. 4. Private property ought and shall ever be held inviolate, but bility of private always subservient to the public welfare, provided a compensation in money be made to the owner. (1) (See Const. 1851, Art. I, § 19, and note.) property. (1) The power to appropriate property for public uses, for the purpose of promoting the general welfare, is inherent in every government; but this power must be exercised in cases and for objects strictly public; and the Constitution of the United States and of the State of Ohio, in all cases insure that principle of natural justice, which requires compensation to be made to the individual deprived of his property. Cooper v. Williams, 4 O., 253, s. c. affirmed 5 O., 391; and see Le Clerg v. Gallipolis, 7 O., 1 pt. 217. Private property may be taken for public use, when provision for the assessment and payment of damages is made, whether the owner is actually paid or not. Mercer v. Mc Williams, Wright's Rep., 132. If the right to appropriate private property to the public use depended upon the movement of the owner it would be useless, as, if he chose to sell his property, he could do so without the exercise of the sovereign power. Ib. A canal is such a public work that private property may be taken in constructing it. Cooper v. Williams, 4 O., 253; also, Willyard v. Hamilton, 7 O., 2 pt. 111; and also in repairing it. Bates v. Cooper, 5 O., 115. A toll-bridge authorized by law is such a work also. Young v. Buckingham, 5 O., 485. So are public streets. Hickox v. Cleveland, 8O., 543; Symonds v. Cincinnati, 14 O., 147: Brown v. Cincinnati, 14 O., 541. So are turnpikes. Kemper v. C. C. &W. Tp. Co., 11 0., 393; and railroads. Mcorehead v. M. R. Co., 17 O., 350. The authority granted to officers of the State, under the act of 1825, (2 Chase, 1476) to take private property to aid in the construction and repair of the public works, is constitutional. Nor is it necessary that compensation shall be made to the owner in advance; it is sufficient if provision be made by law for compensating the owner, so that he may have compensation if he desire. Bates v. Cooper, 5 O., 115. Consequential injuries sustained by individuals in the grading and leveling of streets, are not within the protection of this provision. But it is in the power of the Legislature to award compensation to the party injured. Hickox v. Cleveland, 8Ó., 543. The State has not the constitutional power to take the property of one and transfer it to another, in compensation for damages sustained in the appropriation of land to public use. Before the owner can, without his consent, be deprived of land for public use, the Legislature must declare by law that the public welfare requires it, directing the mode of ascertaining its value, and provide for its payment. McArthur v. Kelly, 5 O., 139; see Foote v. Cincinnati, 11 O., 410. The special act passed by the Legislature January 7, 1813, (Land Laws, 275; 11 y. 92) authoriz ing a partition and sale of the lands of Aaron Olmstead, deceased, was constitutional, and the sales made by the trustees named in the act are legal, and a bar to any claim set up by said devisees or any person claiming under them. Carroll v. Olmstead, 16 O., 251. The Legislature has constitutional power to pass a law subjecting a decedent's lands to the payment of his debts. Ludlow v. Johnson, 3 O., 553.. The power of the Legislature, under this Constitution, to take from the owner the absolute fee simple of his land, without any other compensation than the benefits to result from the uses for which the land is taken, and then to abandon those uses, and sell the lands, to be held and used by the purchaser as private property, is, to say the least, very questionable. It seems, in effect to be the taking of private property for private use, without any compensation whatever. win v. Cowan, 12 O. S., 633. Cor But in Malone v. Toledo, 34 O. S., 541, it was held that the Legislature, under this Constitution, in the exercise of the right of eminent domain, possessed such power. When private property is appropriated to public uses, it is not unconstitutional, in assessing the damages, to deduct therefrom the benefits conferred upon the owner by the appropriation. Symonds v. Cincinnati, 14 O., 147. Benefits conferred may be set off against the value of property appropriated for public use. A tax authorized by the Legislature to construct works of internal improvement on behalf of the state, or to aid in their construction by subscribing to the capital stock of corporations created for that purpose, and to levy taxes to raise the means; and by an exercise of the same power to authorize a county to subscribe to a work of that character running through or into such county, and to levy a tax to pay the subscription, is not beyond the legitimate scope of local, municipal taxation, and was not opposed to this section. C. W. & Z. R. Co. v. Clinton Co., 1 O. S., 77. Private acts of incorporation which confer power to subject private property to public use, should be strictly construed. Upon this principle it was held that a railroad company having once located and constructed its road, could not re-locate it, and for that purpose appropriate private property, although its charter gave it authority to vary the route and change the location after the first selection had been made, whenever a better and cheaper route could be had, or whenever any obstacle to the continuance of the location was found, either by difficulty of construction or procuring right of way at a reasonable cost. Moorehead v. Little Miama R. Co., 17 O., 340. Subscriptions by municipal corporations to the capital stock of railroad companies are not in contravention of this Constitution. Loomis v. Spencer, 1 O. S., 153; The Steubenville and Ind. R. Co. v. Trus. North Tp., 1 O. S., 105. I The Legislature has no constitutional power to authorize the majority of citizens in a county to vote a subscription of stock to a railroad company that shall be binding on the property of the minority. Obiter dictum of Judge Spalding in case of Griffith v. Crawford Co., 20 O., 609. An incorporated road company, which is authorized by its charter to lay out and construct a turnpike road not exceeding one hundred feet in width, to erect gates and collect toll, has no right to appropriate for a toll-house land lying without the line of the road. Kemper v. C. C. &W. Tp. Co., 11 O., 392. Where, under the charter of a turnpike company, damages are assessed for injuries done to the land over which the road passes, the land owner cannot afterward sustain an action against one employed to make the road, for cutting the timber within the lines of the road into cord-wood and selling it. Prather v. Ellison, 10 O., 396. It is no violation of the Constitution for the General Assembly to provide in the charter of a town that the town council may impose the duty of making sidewalks upon the lot owners; and if any one neglect to perform the duty, the council may cause the work to be done for him, and Although the interests of riparian proprietors in streams of water be appropriated for the purposes of a canal, yet water cannot be taken from a stream for the purpose of creating hydraulic power to sell or lease on behalf of the state. Cooper v. Williams, 5 O., 391; Buckingham v. Smith, 10 O., 288. The Legislature cannot, by declaring a river navigable which is not so in fact, deprive the riparian proprietors of their right to the use of the water for hydraulic and other purposes. Walker v. Board of Public Works, 16 O., 540. A law authorizing private property to be appropriated for public use, without providing compensation to the owner, is void. Foote v. Cincinnati, 11 O., 408. Art. VIII. warrants. SEC. 5. That the people shall be secure in their persons, houses, Search warrants, papers and possessions, from unwarrantable searches (1) and seizures; and and general that general warrants, whereby an officer may be commanded to search suspected places, without probable evidence of the fact committed, or to seize any person or persons not named, whose offenses are not particularly described, and without oath or affirmation, are dangerous to liberty, and shall not be granted. (See Const. 1851, Art. I, § 14.) (1) It will not justify searching a man's house that one has been arrested there having in his possession counterfeit money. Existence on the premises of guilty implements, or evidences of crime, will warrant a search, but if not found there, the jurisdiction fails. Circumstances of reasonable suspicion may be proved in mitigation. Simpson v. McCaffrey, 13 O., 508. the press. SEC. 6. That the printing presses shall be open and free to every of the freedom citizen who wishes to examine the proceedings of any branch of gov- of speech and ernment, or the conduct of any public officer; and o law shall ever restrain the right thereof. Every citizen has an indisputable right to speak, write or print, upon any subject, as he thinks proper, being liable for the abuse of that liberty. In prosecutions for any publication respecting the official conduct of men in a public capacity, or where the matter published is proper for public information, the truth thereof may always be given in evidence; and in all indictments for libels, the jury of libels. shall have the right to determine the law and the facts, under the direction of the court, as in other cases. (1) (See Const. 1851, Art. I, § 11.) (1) Under this section the jury in criminal cases under the direction of the court, as in other cases. are not absolute judges of the law, but only SEC. 7. That all courts shall be open, and every person, for an of redress in injury done him in his lands, goods, person or reputation, shall have courts remedy by the due course of law, and right and justice administered, without denial or delay. (See Const. 1851, Art. I, § 16.) SEC. 8. That the right of trial by jury shall be inviolate. (See Const. Trial by jury. 1851, Art. I, § 5-) The right of the trial by jury was guarded by the ordinance of 1787, but it could never have been intended that, in every possible case, it should be enjoyed. Judicial proceedings, according to the common law, are secured, but this could never have been intended so to restrict the future legislative power of the territory or state that chancery proceedings could not be authorized, or other proceedings necessary to the ends of justice. Cochran v. Loring, 17 O., 409, 425. It was held to be no infringement upon this section for a court of law, by adapting the modes of proceeding which belonged to courts of chancery, in execution of the occupying claimant law, as it then existed in this state, to ascertain the value of occupant's improvements, by commissioners instead of a jury. Hunt v. McMahon, 5 O., 133. The value of private property taken for public uses, may rightfully be assessed by commissioners, that not being a case for trial by jury secured in the Constitution, for the reason that it had never been so recognized in England or this country prior to the adoption of that instrument. Willyard v. Hamilton, 7O., 2 pt. 115. The same doctrine was held in Cooper v. Williams, 4 O., 253; Bates v. Cooper, 5 O., 118; Young v. Buckingham, 5 O., 485. In the latter case, the constitutional validity of assessing by commissioners the value of private property taken for public use was not questioned, although the subject was before the court. Also Hogg v. Zanesville, C. & M. Co., 5 O., 410; Symonds v. Cing cinnati, 14 (., 147.. There is a total inapplicability of the use of jury trial in a suit for consequential injuries sustained by individuals in the grading and leveling of streets. Hickox v. Cleveland, 8 O., 546. laws. SEC. 9. That no power of suspending laws shall be exercised, unless Suspension of by the legislature. (See Const. 1851, Art. I, § 18,) Art. VIII. Of prisoners, and charges against them. Of the trial of and their rights. SEC. 10. That no person, arrested or confined in jail, shall be treated with unnecessary rigor, or be put to answer any criminal charge, but by presentment, indictment or impeachment. (1) (See Const. 1851, Art. 1, § 10.) (1) It is true, for offenses strictly criminal or infamous, punishment can only be inflicted through the medium of an indictment or presentment of the grand jury. There are, however, many offenses, made so by statute, which are quasi criminal, and where the Legislature may direct the mode of redress, untrammeled by this constitutional provision. Such is Sabbathbreaking, selling spirituous liquors on Sunday, or disturbance of religious meetings, with many others. There are many offenses, though decidedly immoral and mischievious in their tendencies, that are not crimes, but, at most, only quasi criminal. Of such, jurisdiction may be given to a justice of the peace or the mayor of an incorporated town. Markle v. Town Council of Akron, 14 O., 589. SEC. 11. That in all criminal prosecutions, the accused hath a right accused persons, to be heard by himself and his counsel; (1) to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face; to have compulsory process for obtaining witnesses in his favor; and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the county or district in which the offense shall have been committed; (2) and shall not be compelled to give evidence against himself, nor shall he be twice put in jeopardy for the same offense. (3) (See Const. 1851, Art. I, § 10.) Bailable offenses. Of the writ of habeas corpus. (1) On the trial of an indictment for a criminal offense, and at the return of the verdict it is the right of the accused to be present, and if prevented by imprisonment or other improper means, he is entitled to a new trial. Rose v. The State, 20 O., 31. In criminal cases, the verdict should be received in presence of the prisoner, that he may have the jury polled. Sargent v. The State, 11 O., 472. It is not error to omit giving notice to the prisoner's counsel, that he may be present when the verdict is to be delivered by the jury. Sutcliffe v. The State, 18 O., 469. (2) "It is the right of the accused to have a public trial, that he shall meet the witnesses face to face before the public, and that all that can be said or preferred against him, and that all that can be said or urged in his favor, shall be in the hearing and presence of the public. The witnesses shall give their testimony in public, and the court shall declare the law in public; and the jury are sworn to render their verdict according to the law and the evidence thus publicly given. In no other way can the jury be advised of a fact or principle of law touching the case of the accused. It is his right thus to have every body know for what he is tried and why he is condemned, and to witness the manner, tone and temper of his prosecution, that he may be subjected to no other influence than truth and law, and that mercy which construes every doubt to his benefit. The court charged with his trial have no right to hold any communication with the jury touching his case, except in the presence of the prisoner, and before the public. The court cannot secretly communicate to the jury what they have said respecting the law of the case. It is the right of the accused to know that the court communicate no new principle of law which had not been before publicly declared, nor is he at all bound to trust to the court or judge in this matter. It is his great privilege, and no power can impair it.' Per Read, J., Kirk v. State, 14 O., 513. (3) In a capital case, where the jury state they cannot agree, the court may, in their discretion, discharge them, remand the prisoner for another trial, and continue the case. Hurley v. The State, 6 O., 400. After the jury is impaneled and sworn, if a nolle prosequi be entered by the prosecuting attorney, with leave of the court, and without the consent of the prisoner, it is a good bar to another indictment for the same crime. A judgment on the verdict of conviction or acquittal is not necessary in order that either may constitute a bar to another indictment for the same offense. Mounts v. The State, 14 O., 295. After a verdict of guilty and judgment reversed, on account of error in the proceedings, the prisoner is not protected from a second trial before a jury by this provision. This rule goes upon the supposition that the accused never was in jeopardy. Sutcliffe v. The State, 18 O., 469. Upon a plea of autrefois acquit, the true test to determine whether the accused has been twice put in jeopardy for the same offense, is, whether the facts alleged in the second indictment, if proven to be true, would have warranted a conviction on the first. Price v. The State, 19 O., 423. SEC. 12. That all persons shall be bailable by sufficient sureties, unless for capital offenses, where the proof is evident or the presumption great; (1) and the privilege of the writ of habeas corpus shall not be suspended, unless, when in case of rebellion or invasion, the public safety may require it. (See Const. 1851, Art. I, §§ 8, 9.) (1) The court will not, as as matter of course, admit to bail because the jury in a trial for murder have not agreed upon a verdict. State v. Summons, 19 O., 139. Most undoubtedly the same authority which prescribes the amount of bail, and passes upon the sufficiency of the sureties-which exercises the same power in all analogous cases known to our laws-is to decide whether "the proof be evident or the presumption great." If the evidence exhibited on the hearing of the application be of so weak a character that it would not sustain a verdict of guilty against a motion for a new trial, the court will admit to bail. 16.-Spalding, J. 1802. BILL OF RIGHTS. Art. VIII. SEC. 13. Excessive bail shall not be required; excessive fines shall of bail, fine, and punishment. not be imposed; nor cruel and unusual punishments inflicted. (See Const. 1851, Art. I, § 9.) offense. SEC. 14. All penalties shall be proportioned to the nature of the Punishment to be offence. No wise legislature will affix the same punishment to the crimes proportioned to of theft, forgery and the like, which they do to those of murder and treason. When the same undistinguished severity is exerted against all offences, the people are led to forget the real distinction in the crimes. themselves, and to commit the most flagrant, with as little compunction as they do the slightest offences. For the same reasons, a multitude of sanguinary laws are both impolitic and unjust: the true design of all punishments being to reform, not to exterminate, mankind. SEC. 15. The person of a debtor, where there is not strong presump- of insolvent tion of fraud, shall not be continued in prison, after delivering up his debtors. estate for the benefit of his creditor or creditors, in such manner as shall be prescribed by law. (See Const. 1851, Art. I, § 15.) facto-relative to SEC. 16. No ex post facto law, (1) nor any law impairing the valid Laws-ex post ity of contracts, shall ever be made; (2) and no conviction shall work contracts-forcorruption of blood, or forfeiture of estate. (3) (See Const. 1851, Art. feiture of estate, II, § 28.) (1) Retrospective laws that violated no principle of natural justice, but that, on the contrary, were in furtherance of equity and good morals, were not forbidden by this Constitution. "An act to provide for the settlement of the affairs of the Cuyahoga Falls Real Estate Association," 43 Local Laws, 223, was such a law. Trus. Cuy. F. R. E. A. v. McCaughy, 2 O. S., 152; approving Lewis v. McElvain, 16 O., 347; Johnson v. Bentley, 16 O., 97; Bartholemew v. Bently, 1 O. S., 37; Kearny v. Buttles, 1 O. S., 362. And see Hays v. Armstrong, 7 O., 1 pt. 248; Bates v. Lewis, 3 O. S. 459. A state may regulate contracts, and prescribe their form, effect and mode of discharge, and every contract is supposed to be made with reference to the laws in force. But if an attempt should be made to give such laws a retrospective effect, the constitutional objection would arise in all its force; for the Legislature cannot disturb existing contracts or unsettle rights that have already become vested. Smith v. Parsons, 1 O., 236; Bank of Utica v. Card, 7 O., 2 pt. 170. A law which, by relation, retrospectively divests one of his previously existing rights, is unconstitutional. Steamboat Monarch v. Finley, 10 O., 384. The act of 1835 1 Curwen, 210), relating to defects in appeal bonds, was construed to extend to cases pending at the time of its passage. The provision was a remedial one, calculated to aid in the advancement of justice, and there was no constitutional objection to a construction of the act which would give it a retrospective operation. The appellee has no vested right in the forms of administering justice that precludes the Legislature from modifying them and better adapting them to effect their great ends and objects. The law touches no executed power. It does no more than confer jurisdiction in a case pending and undetermined, where such jurisdiction would otherwise fail. Hays v. Armstrong, 7 O., 1 pt. 247. The second section of the act passed January 29, 1833, amendatory of the act providing for the acknowledgment of deeds, etc., is constitutional and of binding force, notwithstanding its retrospective operation. Barton v. Morris, 15 O., 408. An assignment to a commissioner of insolvents in Ohio has no retroactive effect, like that to bankrupt commissioners. Ennis v. Hulse, Wright's Rep., 259. An act of the Legislature that divests vested rights and violates contracts, or that assumes to control or to exercise judicial powers, is unconstitutional and void. But the act of March 9, 1835, curing certain defects in the certificate of acknowledgment of deeds (1 Curwen, 240), was not liable to either of these objections, and was a valid law. For a confirmatory act, that merely assumed to cure an informaltity in the certificate of a magistrate, creating no new title and affecting no right but such as equitably flowed from the grantor-that merely accomplished what upon principles of natural justice a court of chancery ought to decree-may have a retrospective operation when the manifest design of the Legislature was that it should thus operate. Chestnut v. Shane, 16 O., 599; overruling Connell v. Connell, 6 O., 358; Good v. Zercher, 12 O., 364; Meddock v. Williams, 12 O., 377; Silliman v. Cummings, 13 O., 116. The third section of the act of March 19, 1850 (2 Curwen, 1578), provides, "that whenever a defendant in any judgment or decree, or the surety or co-sureties of any such defendants, shall by mistake have directed any execution, issued on such judgment or decree, to be levied on any property not liable to such execution, and shall thereby have caused such judgment or decree to be wholly or in part satisfied, and shall have been compelled to pay the owner of such property therefor, he shall, in all actions now pending or hereafter instituted, be adjudged to have the same rights against any co-defendant in such judgment, and against any co-surety or principal in respect of the debt on which such is founded, as though such satisfaction had, by due process of law, been out of the property of such defendant, surety or co-surety so directing said levy: Held, that the statute had not changed the law, but was declaratory of it; and that even if it had effected a change, the law in its application to cases pending at the time of its passage, was not in contravention of the Constitution. Acheson v. Miller, 2 O. S., 203-207. (2) A law regulating judgments and executions cannot be considered as a law which enters into the nature of contracts, or which the parties have in view when they contract. A law which provided that judgment creditors, who had not sued out and levied execution within one year from the date of judgment, lost their liens as against subsequent judgment creditors, who had not sued out and levied execution within one year, and which applied to judgments rendered as well before as after the enactment of the law, was held not to be unconstitutional as impairing vested rights, or changing the nature of the contract. McCormick v. Alexander, 2 O., 65; Waymire v. Staley, 3 O., 366. And see Corwin v. Benham, 2 O. S., 36. State insolvent laws discharging debtors from the debt upon surrendering up all their property, &c. |