Heskett v. Reese

Court of Common Pleas of Ohio, Franklin County, Civil Division

Heskett v. Reese

11 Ohio N.P. (n.s.) 653, 21 Ohio Dec. 254, 1911 Ohio Misc. LEXIS 8

CourtCourt of Common Pleas of Ohio, Franklin County, Civil Division

DecidedMarch 3, 1911

StatusPublished

This text of 11 Ohio N.P. (n.s.) 653 (Heskett v. Reese) is published on Counsel Stack Legal Research, covering Court of Common Pleas of Ohio, Franklin County, Civil Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Heskett v. Reese, 11 Ohio N.P. (n.s.) 653, 21 Ohio Dec. 254, 1911 Ohio Misc. LEXIS 8 (Ohio Super. Ct. 1911).

Pincite

Opinion

Dillon, J.

The court finds that the equities of these cases lie with the plaintiffs and a finding and decree will be made ordering the treasurer to pay the amount received for the sale of the goods under the stipulation between the parties to the plaintiff in each case.

The tax on which the treasurer relies is one that is placed by General Code, 6071, “upon the business of trafficking in intoxicating liquors,” and there might be a question, especially if looked at through technical glasses, whether or not evidence of one instance in which three bottles of beer were sold would authorize a court to say that the defendant, Reese, was thus en-' gaged, but assuming that this woman was regularly selling beer to people who called at her house, there are two reasons, in my opinion, why the chattel mortgages are good as against the claim of the treasurer:

First, General Code, 6078, was evidently framed with the theory that a person whose chattels shall be thus subjected “has a place of business,” and upon refusal to pay, the treasurer is> given the extraordinary power to levy upon the goods and chattels of the person wherever found and in addition to that “on the bar, fixtures, or furniture, liquors, leasehold, and other goods and chattels used in carrying on such business, which levy shall take precedence of any and all liens, mortgages, etc., hereafter taken or had on such goods and chattels so used in carrying on such business.” The ordinary household goods such as are .used for the purpose of life and for habitation purposes only, I do not think come within the purview of this statute. Manifestly, the primary use of the mattings, lace curtains, rugs, pictures, writing desk, etc., etc., was not for the purpose of carrying on this business. If we should even assume that this place of the defendant, Reese, was a house of ill fame, of which there is no evidence, the [656]*656selling of drinks so far as this evidence is concerned was a mere incident and required no particular chattels to carry it on. The law does not aim, so far as the drastic provision thereof is concerned, with reference to the levy taking- precedence over bona fide chattel mortgages, to reach property other than that which is actually used in the business, and there is a reason, therefore, which the court will now discuss as the second reason for holding in favor of the plaintiffs.

With reference to bar, fixtures, liquors, a leasehold upon a liquor house or saloon, and other chattels which are used in carrying on the business, the very nature of these chattels is an open and public proclamation to all parties to beware and to take mortgages at their own peril, and this I conceive-is the limit of the true interpretation of the statute. If we should' interpret the statute beyond this point, it seems to me that we would to that extent render it unconstitutional. The same doctrine applies, I conceive, as does in the case of an owner of real estate whose property is used by a tenant for gambling purposes. While the statute in so many words says that this property shall be liable for any judgment for gambling, it has been held in this court, and in-other courts many times, that where the gambling was carried on without any knowledge, actual or constructive, on the part of the owner of the real estate, he could not be made liable in that manner. A chattel mortgage, therefore, taken upon property wholly innocent in itself and with nothing whatever appearing therein in its own character or in the surroundings to indicate that it was used or might be used for the purpose of trafficking in intoxicating liquors must under our Constitution be protected, and it could not be contemplated by the Legislature that all such should be jeopardized at the whim or act of the mortgagor.

For the two reasons, therefore, above given, this finding and decree will be in favor of the plaintiffs as above stated.

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Dillon, J.

The court finds that the equities of these cases lie with the plaintiffs and a finding and decree will be made ordering the treasurer to pay the amount received for the sale of the goods under the stipulation between the parties to the plaintiff in each case.

The tax on which the treasurer relies is one that is placed by General Code, 6071, “upon the business of trafficking in intoxicating liquors,” and there might be a question, especially if looked at through technical glasses, whether or not evidence of one instance in which three bottles of beer were sold would authorize a court to say that the defendant, Reese, was thus en-' gaged, but assuming that this woman was regularly selling beer to people who called at her house, there are two reasons, in my opinion, why the chattel mortgages are good as against the claim of the treasurer:

First, General Code, 6078, was evidently framed with the theory that a person whose chattels shall be thus subjected “has a place of business,” and upon refusal to pay, the treasurer is> given the extraordinary power to levy upon the goods and chattels of the person wherever found and in addition to that “on the bar, fixtures, or furniture, liquors, leasehold, and other goods and chattels used in carrying on such business, which levy shall take precedence of any and all liens, mortgages, etc., hereafter taken or had on such goods and chattels so used in carrying on such business.” The ordinary household goods such as are .used for the purpose of life and for habitation purposes only, I do not think come within the purview of this statute. Manifestly, the primary use of the mattings, lace curtains, rugs, pictures, writing desk, etc., etc., was not for the purpose of carrying on this business. If we should even assume that this place of the defendant, Reese, was a house of ill fame, of which there is no evidence, the [656]*656selling of drinks so far as this evidence is concerned was a mere incident and required no particular chattels to carry it on. The law does not aim, so far as the drastic provision thereof is concerned, with reference to the levy taking- precedence over bona fide chattel mortgages, to reach property other than that which is actually used in the business, and there is a reason, therefore, which the court will now discuss as the second reason for holding in favor of the plaintiffs.

With reference to bar, fixtures, liquors, a leasehold upon a liquor house or saloon, and other chattels which are used in carrying on the business, the very nature of these chattels is an open and public proclamation to all parties to beware and to take mortgages at their own peril, and this I conceive-is the limit of the true interpretation of the statute. If we should' interpret the statute beyond this point, it seems to me that we would to that extent render it unconstitutional. The same doctrine applies, I conceive, as does in the case of an owner of real estate whose property is used by a tenant for gambling purposes. While the statute in so many words says that this property shall be liable for any judgment for gambling, it has been held in this court, and in-other courts many times, that where the gambling was carried on without any knowledge, actual or constructive, on the part of the owner of the real estate, he could not be made liable in that manner. A chattel mortgage, therefore, taken upon property wholly innocent in itself and with nothing whatever appearing therein in its own character or in the surroundings to indicate that it was used or might be used for the purpose of trafficking in intoxicating liquors must under our Constitution be protected, and it could not be contemplated by the Legislature that all such should be jeopardized at the whim or act of the mortgagor.

For the two reasons, therefore, above given, this finding and decree will be in favor of the plaintiffs as above stated.

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11 Ohio N.P. (n.s.) 653, 21 Ohio Dec. 254, 1911 Ohio Misc. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heskett-v-reese-ohctcomplfrankl-1911.