or

en, whereupon Gordon was put upon trial. The jury returned a verdict of guilty, and he was sentenced to pay a fine of $50 and costs of prosecution, and to be imprisoned for the term of 15 days. The petition in error filed in this court prays that the above-entitled act may be declared unconstitutional, and that the judgment of the court of common pleas may be reversed. In the case of Santoro v. State the indictment charged that Dominico Santoro, on about the 13th day of December, 1888, within Mantua township, in the county of Portage, then and there not being a legally registered druggist, unlawfully sold certain intoxicating liquors, to-wit, whisky, to one Frank Kriser, which selling was then and there prohibited and unlawful. Santoro demurred to the indictment. The demurrer was overuled and exception noted. He was then put upon trial. The jury returned a verdict of guilty, and he was sentenced to pay a fine and to be imprisoned. The circuit court affirmed the judgment of the court of common pleas, and it is now sought to reverse the judgment of the circuit court, on the ground that the aboverecited act of March 3, 1888, is in contravention of the constitution of this state, and therefore void.

Ferguson & Johnston, James D. Retallic, and Matthews & Greve, for plaintiff in error Gordon. I. T. Siddall, for plaintiff in error Santoro. David K. Watson, Atty. Gen., Maurice A. Donahue and E. W. Maxson, Pros. Attys., and R. Butler, for the State.

DICKMAN, J. In the case of Gordon v. State there was a motion to quash the indictment, on the ground 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 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. 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, for felonious homicides, and the like, the person injured or killed may be mentioned as unknown, if such is the fact. 1 Chit. Crim. Law, 211, 212; 2 Hawk. P. C. 231; Com. v. Hitchings, 5 Gray, 482; Blodget v. State, 3 Ind. 403; People v. Adams, 17 Wend. 475; Reed v. State, 16 Ark. 499, Reg. v. Campbell, 1 Car. & K.82; Reg. v. Stroud, 2 Moody, Cr. Cas. 270. The indictment was not bad for duplicity because it charged that on the 22d day of December, 1888, the accused sold intoxicating liquors to divers persons whose names to the jurors were unknown. For aught that appears upon the record, the offense charged in the indictment may be deemed a single transaction, occurring at the time and place set forth, and a conviction may be had upon proof of sale to one person. Upon the subject of duplicity, WAITE, J.,

in Barnes v. State, 20 Conn. 232, observe "No matters, however multifarions, will operate to make a declaration or information double, provided that all taken together constitute but one connected charge, or one transaction." A man may accordingly be indicted for the battery of two or more persons in the same count, or for a libel upon two or more persons, when the publication is one single act, or for selling liquor to two or more persons, without rendering the count bad for duplicity. State v. Anderson, 3 Rich. Law, 172; Rex v. Benfield, 2 Burrows, 980, 984; Rex v. Jenour, 7 Mod. 400. In Rex v. Benfield the question was asked: "Cannot the king call a man to account for a breach of the peace because he broke two heads instead of one? How many informations have been for libels upon the king and his ministers ?"

But the further objection is raised that the statute upon which the indictment was founded is so defective in its provisions that it cannot be properly executed, and therefore has no validity as a law. The grounds of objection are that the acts does not provide adequate means for determining whether the signatures on the petition to the township trustees for an election are genuine, and whether the signers constitute one-fourth of the qualified electors of the township; that there is no provision for the filing and preservation of the petition; and that, as the record of the result of the election is made only prima facie evidence that the selling of intoxicating liquors is prohibited and unlawful, it will become an issue of fact in every prosecution under the law, whether the law is in force or not. It may be fairly presumed that the township trustees will not order a special election, as provided in the statute, until they have satisfactory evidence that the petition to them has been signed by the requisite number of the qualified voters of the township. Nor is it to be presumed that the township officers, in whom the people have reposed so much trust and confidence, will neglect to file and preserve the petition presented to them in their official capacity; and, although the record of the result of the election is not made conclusive evidence, the statute is not thereby rendered inoperative. An act, though not clear and definite-though vague and indefinite-as to its method of enforcement, may nevertheless be valid. It will not be declared void because it is difficult of execution, or because it fails to accomplish its purposes as fully as the legislature designed. As decided in Cochran v. Loring, 17 Ohio, 409, 427: "Though a law is imperfect in its details, it is not void, unless it is so imperfect as to render it utterly impossible to execute it." The objection, therefore, above stated, does not impair the validity of the statute in question.

It is claimed, however, in the cases at bar, that there are constitutional objections which are fatal to the validity of the act of March 3, 1888. In the first place it is contended that the act is of a general nature, and has not a uniform operation throughout the state, and is therefore in conflict with section 26, art. 2, Const. ceding, for the purpose of this inquiry, that the act under consideration is a law of a

Con

general nature, it satisfies, in our view, the constitutional requirement that it shall be of uniform operation. It is an act "to further provide against the evils resulting from the traffic in intoxicating liquors by local option in any township in the state of Ohio." One-fourth of the qualified electors of any township may petition the trustees for the privilege of determining by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited. The election is to be conducted in all respects the same in every township, and if the result of the vote is against the sale, the same penalty is attached in every township for carrying on the traffic. The provisions of the act are bounded only by the limits of the state, and uniformity in its operation is not destroyed because the electors in one or more townships may not see fit to avail themselves of its provisions. The act makes no discrimination between localities to the exclusion of any township. Every township in the state comes within the purview of the law, and may have the advantage of its provisions by complying with its terms. The operation of the statute is the same in all parts of the state, under the same circumstances and conditions. By the municipal code of May 7, 1869, section 199, it was declared that all cities and incorporated villages should, among other things, have the power, and might provide by ordinance for the exercise of such power, "to regulate, restrain, and prohibit ale, beer, and porter houses or shops, and houses and places of notorious or habitual resort for tippling or intemperance." The uniformity in the operation of this law of a general nature was not measured and fixed by the number of cities and incorporated villages that might exercise the granted power. One or many might, like the village of McConnelsville, pass the needful ordinances, but the provision of the Code was none the less of uniform operation throughout the state. The feature of uniformity in the local option law under consideration would no more be marred because the qualified electors of the townships generally fail to adopt its provisions, than the above enactment of the municipal code would have ceased to operate uniformly, because cities and incorporated villages did not generally pass ordinances to prevent ale, beer, and porter houses.

A clause in the constitution of California, like that in the constitution of this state, provides that “all laws of a general nature shall have a uniform operation." In Smith v. Judge, 17 Cal. 554, BALDWIN, J., referring to this provision, says: "The language must be carefully noted.

*

*

The expression is, that these laws of a general nature' shall be uniform in their operation,'-that is, that such laws shall bear equally in their burdens and benefits upon persons standing in the same category." In Brooks v. Hyde, 37 Cal. 375, it was said by SANDERSON, J.: "By a uniform operation,' I understand # * * an operation which is equal in its effect upon all persons or things upon which the law is designed to operate at all." The meaning of the provision was there held to be, "that every law shall have a uniform operation upon all the citizens, or persons, or things V23N.E.no.1-5

of any class, upon whom or which it purports to take effect, and that it shall not grant to any citizen, or class of citizens, privileges which, upon the same terms, shall not equally belong to all citizens."

Section 17, art. 2 of the constitution of Kansas, also requires that "all laws of a general nature shall have a uniform operation throughout the state." In Commissioners v. Miller, 7 Kan. 479, it was held that where the provisions of an act are designed for the whole state, and every part thereof, such act has, in contemplation, a uniform operation throughout the state, notwithstanding the condition or circumstances of the state may be such as not to give the act any actual or practical operation in every part thereof. In that case, there came under review an act of the legislature which provided that the board of county commissioners of any county to, into, through, from, or near which any railroad might be located, might subscribe to the capital stock of any such railroad corporation, in the name and for the benefit of the county, to an amount not exceeding the sum of $300,000, in any one corporation, and might issue bonds of the county in payment for the stock; but no such bonds should be issued until the question was first submitted to a vote of the qualified electors of the county, at some general or some special election. The commissioners of Leavenworth county called a special election to determine, by vote of the electors, whether the board of commissioners should subscribe $250,000 to the capital stock of the "Union Pacific Railway Co. Eastern Division," and issue the bonds of the county in payment for the stock. Miller sued the commissioners upon one of the bonds issued, and it was set up in defense that the act under which the bonds were issued was unconstitutional; that the bonds were therefore issued without authority, and were void. On this point the language of the court was: "We scarcely think it necessary to say anything with reference to section 17, art. 2 of the constitution. The act under consideration is so obviously in harmony with this section, that the question attempted to be raised upon its supposed incongruity needs no elucidation from us. All the provisions of said act are expressly enacted for the whole state, and for every part of the state; and it is no more necessary that the same amount of stock be taken in each and every county of the state, in order that the act shall have a uniform operation therein, than that the same number of men shall be executed in each county of the state, in order that the law punishing murder in the first degree shall have uniform operation throughout the state."

We cannot reach the conclusion that, because the electors of one township may decline to petition the trustees to order a special election to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited, every other township in the state shall be deprived of that privilege, on the ground that the act is not capable of a uniform operation. Without seeking an authoritative definition of the term "law of a general nature," in its constitutional sense, we are of the

condition. May not the execution of a law depend upon the condition of a popular vote, as well as upon any other fair and reasonable contingency? The language of REDFIELD, C. J., in State v. Parker, 26 Vt. 357, carries with it great force. After a full examination," says he, "of the arguments by which it is attempted to be maintained that statutes made dependent upon such contingencies are not valid laws, and a good deal of study and reflection, I must declare that I am fully convinced, although at first, without much examination, somewhat inclined to the same opinion, that the opinion is the result of false analogies, and so founded upon a latent fallacy. It seems to me that the distinction attempted between the contingency of a popular vote and other future uncertainties is without all just foundation in sound policy or sound reasoning, and that it has too often been made more from necessity than choice; rather to escape from an overwhelming analogy than from any obvious difference in principle in the two classes of cases; for

* one may find any number of cases in the legislation of congress, where statutes have been made dependent upon the shifting character of the revenue laws, or the navigation laws, or commercial rules, edicts, or restrictions of other countries." The act of congress which came under review before the supreme court of the United States, in the case of The Aurora v. U. S.,7 Cranch, 382, is a familiar example of our federal legislation.

In the case of Smith v. Janesville, 26 Wis. 291, DIXON, C. J., in discussing this subject, thus observes: "It is said that the act is void, or at least so much of it as pertains to the taxation of shares in national banks, because it was submitted to a vote of the people, or provided that it should take effect only after approval by a majority of the electors voting on the subject at the next general election. This was no more than providing that the act should take effect on the happening of a certain future contingency; that contingency being a popular vote in its favor. No one doubts the general power of the legislature to make such regulations and conditions as it pleases with regard to the taking effect or operation of laws. They may be absolute, or conditional and contingent; and if the latter, they may take effect on the happening of any event which is future and uncertain. Instances of this kind of legislation are not unfrequent. We are constrained to hold, therefore, that this act is and was in all respects valid from the time it took effect; and consequently that there was no want of authority for the levy and collection of the taxes in question."

*

*

*

# *

We are aware that there are adjudged cases which, it is urged, militate against the views we herein advance. The cases of Rice v. Foster, 4 Har. (Del.) 479, and Parker v. Com., G Pa. St. 507, are mainly relied upon; but in Railroad Co. v. Commissioners, supra, this court drew the distinction that the voters in those cases were not called upon to determine on the execution of a law under and in conformity to its provisions, but whether the law itself should continue to exist. And in Locke's Appeal, 72

66

* * *

Pa. St. 491, the case of Parker v. Com. was held to have been overruled soon after it was decided; not in express terms, but by undermining its foundation in holding that laws could constitutionally be made dependent on a popular vote for their operation. AGNEW, J., said: "This popular vote is but the law's appointed means of determining a result, which the law enacts, in an alternative form, shall be the contingency of its operation. The true distinction I conceive is this: the legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend." There have been numerous decisions and much discussion concerning the validity of statutes denominated "local option laws," and the subject of contingent legislation has given rise to wide debate and many adjudications; but we do not consider it necessary, in this branch of our inquiry, to make further citation of cases or opinions. It is argued, however, that the act of March 3. 1888, seeks to prohibit the liquor traffic, while the legislature has power only to regulate it, and is therefore in conflict with the constitution. The 9th section of article 15 of the constitution, which is the same as section 18 of the schedule, is as follows: No license to traffic in intoxicating liquors shall hereafter be granted in this state; but the general assembly may by law provide against evils resulting therefrom." Suppose that section were eliminated from the constitution, it would not be easy to establish that the legislature might not, under the broad grant of legislative power, sanction or prohibit, at its pleasure, the traffic in intoxicating liquors as a beverage. "The legislative power of this state shall be vested in a general assembly," is the language of the constitution, and in the provisions of that section of the schedule wecan find no implied limitation upon the legislative power, whereby the general assembly would be forbidden to legislate for the prohibition of such traffic in intoxicating liquors. Whether, under the ordinary constitutional limitations, the absolute prohibition of the liquor trade is a constitutional exercise of legislative authority, is a question that has largely engaged the attention of judicial tribunals. The question involves a consideration of the police power, and the department of government which can and does exercise that power is the legislature, and it is among the limitations upon the legislative power that we are to seek the limitations upon the police power over the liquor traffic. In the recent case of Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 273, it was recognized as a fundamental rule that it belongs to the legislative branch of the government to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety. Justice HARLAN, in pronouncing the opinion of the court in that case, says: "If, therefore, a state deems the absolute prohibition of the manufacture and sale within her limits of intoxicat