Snell v. Cincinnati Street Railway Co.

9 Ohio Cir. Dec. 264

Opinions

Swing, J.

Judges Cox and Swing are of the opinion that the provision of the statute by which it was sought to change the venue in this case is a special proceeding within the meaning of sec. 6707, Rev. Stat., and that the judgment or order of the court in refusing to grant the change of venue was an order affecting a substantial right in said special proceedings, and therefore proceedings in error could only be prosecuted within six months from the rendition of said judgment, and the proceedings in this court having been brought long after six months from the rendition of the judgment, this court is without jurisdiction, and therefore the petition in error must be stricken from the docket.

John W. Wolfe and Thomas L. Michie, for plaintiff in error.

Cox, J.

1. The first motion having been overruled and no exception taken or filed within the time allowed by law was decisive of the case, and the second motion being for substantially the same reason as the first, should have been stricken from the docket.

2. Said law is in my opinion unconstitutional in that it does not afford equal protection to all as required by 2d section Bill of Rights and 1st section ■ 14th Amendment to United States Constitution. I think it comes within the principle laid down in the case of State ex rel v. Ferris, 53 O. S., 314. It provides that the venue can be changed on application of the opposite side when the corporation has fifty stockholders resident in the county. But if a corporation has only forty-nine stockholders it is not subject to the law. There seems to me to be no reason for this discrimination.