complaint is now made merely prescribe, for the lesser measures named, the contour and dimensions essential to make them conform to the adopted standard half-bushel measure, so as to secure fairness and uniformity and also admit of the proper application of the heaping rule of measurement which is defined by section 6416, General Code. In the absence of a statute regulating the contour and dimensions of a standard measure in addition to prescribing its cubic contents, the law requiring the heaping of certain articles of produce could readily be rendered ineffective by increasing the height and decreasing the diameter of such measure. It is clearly within the rights and powers of the state to enact and enforce such regulatory statutes. [2] It is contended by plaintiffs that the provisions of section 7965—1, which authorize the condemnation and confiscation of weights and measures or false or fraudulent measuring and weighing devices, are violative of the due process clause of both the state and federal Constitutions, and the question is presented whether the enactment and enforcement of such provisions are a valid exercise of the police power of the state. It has been held by this court in the case of State v. French, 71 Ohio St. 186, 73 N. E. 216, 104 Am. St. Rep. 770, 1 Ann. Cas. 948, that the Legislature may provide for the protection of fish, and to that end may . declare nets set or used contrary to law a public nuisance and that they may be destroyed by wardens and other executive officers, and section 6968-2, Revised Statutes, as amended April 26, 1898 (93 O. L. 303), is not in that respect unconstitutional on the ground that it deprives the citizen of his property without due process of law. The judge delivering the opinion quotes approvingly from Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385: "To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals." The court in applying the test held that the value of the property was a very proper matter for consideration. The case of State v. French was distinguished from that of Edson et al. v. Crangle et al., 62 Ohio St. 49, 56 N. E. 647, upon the ground that the statute considered in the former case did not declare the nets which did not conform to the standard prescribed a public nuisance to be summarily abated. We think a further distinction of this case from that of Edson et al. v. Crangle et al. may be found in the fact that these measures, if outlawed as measures, as they are, have in fact no value at all. Being false and fraudulent measuring devices, they are of use only to deceive and defraud, and certainly there could be no value in an article of that nature such as to admit of any claim for reimbursement. Its use, in fact the only use to which it can be put, is made a crime. In this connection we quote from Mullen et al. v. Mosely, 13 Idaho, 457, 90 Pac. 986, 12 L. R. A. (N. S.) 394, 121 Am. St. Rep. 277, 13 Ann. Cas. 450: "The police authorities of the state may be properly invested with power and authority to seize and destroy public nuisances and to seize such instruments and devices as are designed and intended for use in the commission of crime. * * The police power of the state extends to everything necessary or essential to the due and ample protection of the public morals and the maintenance of the peace and quiet of the state as well as to the protection of life and property, and in the exercise of that power the state may authorize its officers to summarily specifically designed and prepared for the comabate and destroy nuisances and those things mission of crime." In that case the court held that where property is of little value and is used for an illegal purpose, the Legislature may declare it a nuisance and direct its summary abatement. It may be contended that the distinction made between the cases of State v. French, supra, and Edson et al. v. Crangle et al., supra, does not apply to the case at bar for the reason that the Legislature has not expressly declared measures or measuring devices not in accordance with the standard prescribed to be public nuisances. We are constrained to adopt here the suggestion so aptly made by Judge Bigger in the decision on the demurrer to the original petition in this case: "That false weights are an abomination in the sight of the Lord we have the authority of the Holy Writ, and that false weights and meassight of men is evidenced by the fact that the ures were regarded as an abomination in the use of such weights and measures was indictable at common law." Certainly, a mere statement or declaration by the Legislature would not and could not make more clear the fact that devices used and kept for use only for the purpose of deceiving and defrauding the public in market places are in and of themselves a public nuisance. The Legislature has clearly so regarded them by making their use a crime and in recognizing them as being within the police power of the state and making them subject to summary condemnation and confiscation. The necessity of regulation, such as provided by the statute under consideration, as well as an ample justification of the method of enforcement provided, is found in the language used by Justice Day, speaking for the Supreme Court of the United States, in the case of Schmidinger v. Chicago, 226 U. S. 578, 33 Sup. Ct. 182, 57 L. Ed. 364, Ann. Cas. 1914B, 284, in which case the constitutionality of an ordinance prescribing the weight of loaves of bread made and sold in the city of Chicago was upheld: "Furthermore, laws and ordinances of the character of the one here under consideration and tending to prevent frauds and requiring hon-act, though the repealing act was not approved est weights and measures in the sale of articles by the Governor until the day after approval of of general consumption, have long been consid- the other act. ered lawful exertions of the police power. [Ed. Note.-For other cases, see Poisons, Cent. ** This court has had frequent occasion to Dig. § 1; Dec. Dig. 2.] declare that there is no absolute freedom of contract. The exercise of the police power fixing weights and measures and standard sizes must necessarily limit the freedom of contract which would otherwise exist. Such limitations are constantly imposed upon the right to contract freely, because of restrictions upon that right deemed necessary in the interest of the general welfare." These regulations prescribing standards of weights and measures would be of little practical benefit to the people, in whose interest they are enacted, without an adequate, prompt, and efficacious method of enforcing their adoption and use. The thoroughness and efficiency of the method of enforcement provided by section 7965-1, and about to be applied by the defendants, is attested by the fact that plaintiffs complain only of the impending action under authority of such statute, there being no allegation in the petition that the defendants threaten or contemplate the institution of a criminal prosecution under section 13106 or 13109, General Code. For the reasons heretofore stated the provisions of section 7965-1 do not contravene either the state or federal Constitution, and are valid. It follows that the Court of Appeals properly sustained a demurrer to the amended petition, and such judgment is affirmed. Judgment affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, and JONES, JJ., concur. (93 Ohio St. 79) STATE v. LATHROP. (No. 14903.) (Supreme Court of Ohio. Nov. 16, 1915.) (Syllabus by the Court.) 1. STATUTES 248 - ENACTMENT - DATE OF TAKING EFFECT. Construing section 1c of article 2 with section 16 of article 2 of the Constitution, in so far as both sections relate to the time from which an act of the General Assembly shall operate, laws providing for tax levies, appropriations for current expenses of the state government and state institutions, and emergency laws, as defined in section 1d of article 2 of the Constitution, go into immediate effect when approved by the Governor. All other acts go into effect 90 days after the same have been filed with the secretary of state, regardless of the date of approval by the Governor. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 330; Dec. Dig. 248.] (Additional Syllabus by Editorial Staff.) 2. POISONS 2-SALES-STATUTORY PROVI SIONS. Act May 3, 1913 (103 Ohio Laws, p. 341), § 124, repealing Gen. Code, § 12672, relating to the sale of cocaine and its derivatives, does not repeal that section as amended by Act May 2, 1913 (103 Ohio Laws, p. 505), adding opium and its derivatives to the list of proscribed drugs, passed two days later than the repealing Error to Court of Appeals, Lucas County. James H. Lathrop was convicted of selling a preparation of morphine. Judgment by the Court of Appeals reversing judgment of conviction, and the State brings error. Judgment of Court of Appeals reversed, and that of common pleas affirmed. John C. D'Alton, of Toledo, Pros. Atty., and Kohn, Northup, Ritter & McMahon, of Toledo, for the State. Ragan & Lynch, of Toledo, for defendant in error. NICHOLS, C. J. Defendant in error, James H. Lathrop, was convicted in the Lucas county probate court for selling a preparation of morphine in violation of the provisions of section 12672, General Code, as amended in 103 Ohio Laws, p. 505. Judgment of the probate court was affirmed by the court of common pleas, and this judgment of affirmance was reversed by the Court of Appeals on the sole ground that section 12672, found in 103 Ohio Laws, p. 505, was repealed by 103 Ohio Laws, p. 340. This judgment of reversal is now in the Supreme Court for review. It appears that the amendment to the section in question found in 103 Ohio Laws, p. 340, was enacted into law by the General Assembly on the 15th of April, 1913, and two days later, on the 17th of April, the General Assembly again amended the same section by adding opium and its derivatives to the list of proscribed drugs. The disputed question arises over the fact that the Governor, to whom, under the Constitution, all bills must be transmitted after their passage by the General Assembly-inadvertently, we may safely assume-signed the bill later passed first; that is, he signed the act of April 17th on May 2d and that of April 15th on May 3d. The bill signed on the 3d of May was the so-called agricultural commission enactment, amending many sections of the General Code, as well as enacting several supplementary sections. The bill signed on May 2d amended but one section, and, in addition, repealed section 12674. The Court of Appeals based its decision on the fact that the act signed on the 2d was repealed by the act of the Governor in signing the act on the 3d, and counted of no effect the fact that the Legislature passed the measure so held to have been repealed two days later than the measure which the court holds repealed it. The effect of this decision is that the bill last signed, although first passed, repealed the act first signed, although later passed. [2] We thus have presented the anomalous situation of the Governor being granted an additional power of veto not contemplated For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes by the Constitution. He may, if this decision is permitted to stand, by mere order of the time of signing, determine which of two acts relating to the same subject-matter may survive, and, although signing both, may kill the one as effectually as if he had vetoed it; and, furthermore, as happened in this instance, may defeat the manifest purpose of the Legislature by signing first in order the later expression thereof, and do this, it would appear, without intending to do so, and in effect defeat, not only the intention of the Legislature, but his own as well. were the will of the Legislature to defeat its former enactment, it can then only act through the instrumentality of another law. It is perhaps pertinent to this inquiry to observe that the amendment to the section in question, passed on the 15th of April, in no wise changed the subject-matter of the section, but simply substituted the words "agricultural commission" for the words "and the members of the state board of pharmacy"; this being essential on account of the fact that the law took certain functions from the state board of pharmacy and transferred The anomaly of the situation is further them to the agricultural commission, while emphasized by the apparent paradox of the the act of April 17th materially changed the executive killing the bill by approving it, substance of the act. And it bears the strongwhereas, by vetoing it, it most likely would est of internal evidence that it was sought to have survived; for the General Assembly and did amend the act as passed two days would most certainly have repassed the bill previous, and pot old section 12672, General by the required constitutional majority, there Code. It would indeed be a strange proceedbeing no conceivable reason why the unre- ing to hold that the Legislature passed on stricted sale of cocaine and its associated the 15th of April a law repealing an act drugs should be forbidden, and opium and which it did not pass until the 17th of the its derivatives permitted, and the time nec- same month, and which, for aught we know, essary to have brought this about would have may not at the time have been even introducmade the later act the last to go into effect. ed in the lawmaking body; for it is by no The executive ought not be permitted to de- means rare that a bill is introduced and feat the legislative will except by constitu- enacted into law, through suspension of the tional methods; that is, by the exercise of constitutional requirements, within a period the veto power. If it were permitted him to of two days. It is not difficult to understand do so, grave possibilities of encroachment how this situation developed. The agriculon the legitimate functions of the General tural commission law was long and involved, Assembly might reasonably be apprehended. the other bill was short and confined to but The executive has, under our Constitution, one subject, and the executive, in giving conno part to play in the legislative field, ex-sideration to the two measures thus transcept through the veto. It is not necessary, mitted to him, would naturally require greatto give effect to the act of the General As- er time for the one than the other. sembly, that he even sign a bill; it will become a law just as effectually without his approval as with it. The ten-day period fix-requiring that: "Every bill passed by the ed by the Constitution for the consideration by the Governor of such measures as the General Assembly may enact, is not so much for the purpose of gaining his approval as for the determination of whether or not he shall disapprove it. We are not unmindful of the provisions of section 16 of article 2 of the Constitution, General Assembly shall, before it becomes a law, be presented to the Governor for his approval. If he approves, he shall sign it and thereupon it shall become a law and be filed with the secretary of state"-under the express terms of which the two measures in Section 1 of article 2 of the Constitution question became laws of the date of his apof Ohio provides that the legislative power proval. There is nothing in the record to inof the state shall be vested in a General As- dicate which of the two acts was first presembly consisting of a Senate and a House sented to the Governor, but it must be preof Representatives, the people reserving to sumed in the ordinary course of events that themselves the power to propose laws to the the act first passed was first presented, and, General Assembly and to adopt or reject | had there been neither approval nor veto, them by referendum, and the further power of adopting or rejecting any law passed by the General Assembly. If the Governor, by mere order of the time of approval of measures passed by the General Assembly, can make or unmake laws, then, contrary to the express terms of the Constitution, he be comes the lawmaking power, and his intention, rather than that of the Legislature, governs. After a bill has been passed by the Legislature and the three days for reconsideration have passed, it has no further authority in the premises. It cannot recall the bill from the hands of the Governor. If it then the act of April 17th would have been the act last to go into effect. Approval by the executive is unnecessary to give force and effect to a law, since the same section of the Constitution provides that, if a bill be not returned by the Governor within ten days after being presented to him, it shall become a law in like manner as if he had signed it. We are constrained to hold that the act last actually signed did not operate to repeal the act last passed. We are persuaded that the manifest purpose of the lawmaking power should not be defeated by means wholly beyond its control. It is the plain duty of the court to give effect, if at all possible, to the latest expression of the Legislature on a given subject. And rather than vest the executive with the power of selection, which the Constitution neither impliedly nor expressly grants to him-and, indeed, which the Constitution in terms, by formal exclusion, denies to him—we hold that the act of April 17th, as the later expression of the General Assembly, must prevail; and we do this the more readily because thereby the clear intention of both the General Assembly and the executive is given effect. Authority in support of this holding may be found in the case of Southwark Bank v. Commonwealth, 26 Pa. 446, wherein it was held: "1. The general rule is that, where two statutes contain repugnant provisions, the one last signed by the Governor is a repeal of the one previously signed. (2) This is so merely because it is presumed to be so intended by the lawmaking power; but where the intention is otherwise, and that intention is apparent from the face of either enactment, the plain meaning of the legislative power thus manifested is the paramount rule of construction." The Constitution of Pennsylvania on the subject of the Governor's participation in legislation through the exercise of the veto power is substantially that of Ohio. The facts in the Pennsylvania case were in all respects similar to the instant case. The General Assembly had passed, on the 9th of March, a certain statute, and five days later on consideration of the same subject-matter, expressly repealed the law so passed five days previous. The Governor, however, as in the instant case, signed the act of March 14th on the 15th of the same month, and the act of March 9th one day later. Nevertheless the holding there, as indicated by the syllabus, was to the effect that the act last passed, although first signed, was the law of Pennsylvania. [1] Independent of these considerations the judgment of the Court of Appeals must needs be reversed for another reason. An examination of the 1913 Session Laws, vol. 103, discloses this state of facts: Agricultural commission act: Passed April 15, 1913; approved May 3, 1913; filed with secretary of state May 7, 1913. The other act in question: Passed April 17, 1913; approved May 2, 1913; filed with secretary of state May 8, 1913. "No law passed by the General Assembly shall go into effect until ninety days after it shall have been filed by the Governor in the office of the secretary of state, except as herein provided." The "except as herein provided" clause has undoubted reference to the provision in section 1d of article 2 to the effect that laws proViding for tax levies, etc., and emergency laws shall go into immediate effect. Thus we find that under the provisions of section 1c just quoted, the act of April 17th, having been filed with the secretary of state one day later than the agricultural commission act, although approved a day before, did not go into effect until 90 days after May 8th, and not of the date of its approval by the Governor, while under the terms of section 16, art. 2, this same act would become a law Governor. These two sections of the Constiimmediately upon its being signed by the tution thus apparently repugnant are by no means hopelessly so. It was observed by Ranney, C. J., in the course of his opinion in Hill v. Higdon, 5 Ohio St. 243, 247 (67 Am. Dec. 289): the Constitution as will make it consistent with "It is our duty to give such a construction to itself, and will harmonize and give effect to all its various provisions." Applying in the instant case this rule of construction, it is found not at all difficult to reconcile these apparently conflicting provisions of the Constitution. They can be reconciled as now to be indicated. There is a class of laws not subject to the 90-day period. Laws providing for the state levies, appropriations for current expenses of the state government and state institutions, and emergency laws, as defined in section 1d of article 2, go into immediate effect by the express language of the Constitution. This, of course, must be understood as meaning that such laws shall go into immediate effect as soon as they shall have been signed by the Governor. Both section 16, as it now reads, and section 1c of article 2 were written into the organic law on the same day, namely, September 3, 1912. It cannot be thought for a moment that the framers of those two proposals entertained the notion that such laws as were Thus we find that the act adding morphine made subject to the referendum should go and its derivatives to the list of regulated into effect immediately upon being signed drugs, while later passed and first signed, by the Governor, in the face of the prohibiwas filed in the office of the secretary of state tory terms of section 1c. We can give effect one day later than the agricultural commis- to both sections by holding as we do, that sion act. When, then, under our Constitu- laws providing for tax levies, appropriations tion, does a nonemergency act go into effect? for current expenses of the state government This question involves a construction of two and state institutions, and emergency laws, as apparently conflicting sections of the Consti- | defined in section 1d of article 2, go into imtution, that of section 1c of article 2 and mediate effect when approved by the Goversection 16 of article 2. Section 16 of article nor, and that all other acts go into effect 90 2 provides that, if the Governor approves a days after the same have been filed with the bill, he shall sign it, and thereupon it shall secretary of state, regardless of the date of become a law. Section 1c of article 2 pro-approval by the Governor. vides that: The judgment of the Court of Appeals is reversed, and that of the court of common | States (Act Feb. 4, 1887, c. 104, 24 Stat. pleas affirmed. Judgment reversed. JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. (93 Ohio St. 143) 379). In compliance with this act, on February 26, 1910, it issued and filed with the Interstate Commerce Commission and duly posted as required by law its local freight tariff containing car demurrage rules and charges. These demurrage rules and charges had theretofore been prepared and adopted by the National Association of Railway Com SWIFT & CO. v. HOCKING VALLEY RY. missioners, and were approved by the Inter CO. (No. 14901.) (Supreme Court of Ohio. Dec. 7, 1915.) (Syllabus by the Court.) 1. COMMERCE SS - INTERSTATE COMMERCE COMMISSION CHARGES. REGULATIONS DEMURRAGE Where a demurrage rule, named in the tariff filed by an interstate railroad with the Interstate Commerce Commission and published ac cording to law, has been passed upon and approved by the commission, acting within the scope of its authority, the decision of that tribunal is binding upon the state courts, and the question of the validity of the rule is not open for consideration in an action brought by the railroad company to recover the charges assessed under the rule as to cars engaged in interstate commerce.. [Ed. Note. For other cases, see Commerce, Cent. Dig. §§ 139, 141; Dec. Dig. 88.] (Additional Syllabus by Editorial Staff.) 2. CARRIERS 30-REGULATION-"TRANSPOR TATION." In U. S. Comp. St. 1913, § 8563, "transportation" includes cars and other vehicles and all instrumentalities of shipment or carriage, irrespective of ownership or of any contract, express or implied, and all services in connection with transfer in transit, ventilation, refrigeration, or icing, or storage of property transported. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 81; Dec. Dig. 30. For other definitions, see Words and Phrases, First and Second Series, Transportation.] Error to the Court of Appeals, Cuyahoga County. Action by the Hocking Valley Railway Company against Swift & Co., a corporation. Judgment for plaintiff, and defendant brings error. Aflirmed. The action out of which this error proceeding arises was brought by defendant in error against plaintiff in error in the court of common pleas of Cuyahoga county to recover demurrage. The amended petition was challenged by demurrer for the reason that it did not contain facts sufficient to constitute a cause of action. The demurrer was overruled, and, plaintiff in error not desiring to plead further, judgment was rendered in favor of defendant in error in the amount claimed in the amended petition, and this judgment was affirmed by the Court of Appeals. state Commerce Commission on November 14, 1910, in the case of Procter & Gamble Co. v. C., H. & D. Ry. Co., 19 Interst. Com. Com'n R. 556. According to the terms and provisions of the tariff filed by plaintiff, the car demurrage rules and charges were applicable at all stations and sidings, public and private, on its line of railway, and to all interstate traffic on its line. These demurrage rules provided in part as follows: "Forty-eight hours' (two days) free time will be allowed for loading or unloading on all commodities. "After all the expiration of the free time allowed, a charge of one dollar per car per day, or fraction of a day, will be made until car is released. "Private cars in railroad service, whether on carrier's or private tracks, are subject to these demurrage rules to the same extent as cars of railroad ownership. to "Empty private cars are in railroad service from the time they are placed by the carrier for loading, or tendered for loading on the orders of a shipper. Private cars under lading are in railroad service until the lading is removed and cars are regularly released. Cars which belong service are in railroad service from the time they an industry performing its own switching terchange tracks, and thereby tendered to the are placed by the industry upon designated incarrier for movement. If such cars are subsequently returned empty, they are out of service when withdrawn by the industry from the interchange; if returned under load, railroad service is not at end until the lading is duly removed." The above rules were binding upon all shippers who delivered to plaintiff for trans portation goods consigned from points outside of the state to points within the state. Defendant occupied a certain railroad switch or track at Athens, Ohio, under and by virtue of an agreement entered into by plaintiff and defendant March 22, 1911. During the period beginning April 1, 1910, and until August 21, 1912, defendant entered into certain contracts to carry with plaintiff, whereby the latter agreed to receive, transport, and deliver to the defendant at Athens certain consignments of defendant's products, in consideration of which defendant agreed to pay to plaintiff the charges arising out of and connected with the transportation by plaintiff of said consignments, as provided in its lawful published tariff and lawful car demurrage rules and charges. During the The averments of the amended petition period referred to, and according to and in are, in substance, as follows: Plaintiff is a railroad company engaged in interstate commerce, and is subject to and is obliged to comply with what is known as the Interstate Commerce Act of the United pursuance of said contracts of carriage, plaintiff received from the defendant from time to time a large number of loaded cars consigned from points outside of the state to the defendant at Athens. All of these For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |