Ohio v. Thomas

by Rufus Wheeler Peckham

United States Supreme Court

173 U.S. 276

Ohio  v.  Thomas

In this case complaint was made by affidavit by the dairy commissioner of Ohio against the appellee, alleging that on March 2, 1897, he violated the act of the legislature of the state of Ohio passed in 1895 (92 Ohio Laws, p. 23) in relation to the use of oleomargarine. Appellee was arrested and brought before a justice of the pease, and declined to plead to the charge on the ground that the act complained of in the affidavit of the complainant was performed by him as governor of the solidiers' home, located in the county of Montgomery and state of Ohio, and what he did was done by the authority of the board of managers of the home. He therefore moved to dismiss the complaint for want of jurisdiction in the magistrate. This motion was denied. He then consented to be tried without a jury upon the following agreed statement of facts:

'(1) That on the 2d day of March, 1897, Joseph E. Blackburn was, and now is, the food and dairy commissioner of the state of Ohio.

'(2) That on the 2: day of March, 1897, J. B. Thomas was, and now is, the duly chosen and acting governor of the Central Branch of the National Home for Disabled Volunteer Soldiers, located in the county of Montgomery, state of Ohio, and, as said governor, was in charge of the eating house at the said Central Branch of the National Home for Disabled Volunteer Soldiers.

'(3) Said eating house is used by said J. B. Thomas for serving and furnishing to the inmates of said Central Branch of the National Home for Disabled Volunteer Soldiers their daily food or rations, and is the only place so provided at said national home, and is known as the 'Mess Room' of the said Central Branch of the National Home for Disabled Volunteer Soliders, situate on the grounds purchased, held, and used by the United States therefor; and the acts complained of herein consisted in causing oleomargarine to be served and furnished, on the 2d day of March, 1897, as food and as part of the rations furnished to the inmates thereof, under appropriations made by the congress of the United States for the support of said inmaters, and that no placard in size not less than 10x14 inches, having printed thereon, in black letters not less in size than 1 1/2 inches square, the words 'Oleomargarine Sold and Used Here,' was displayed in said eating house.

'(4) The affidavit in the cause is made in conformity with an act of the general assembly of the state of Ohio (92 Ohio Laws, p. 23) passed in 1895, and entitled 'An act to amend section 3 of an act entitled 'An act to prevent fraud and deception in the manufacture and sale of oleomargarine and promote public health in the state of Ohio,' ' passed May 16, 1894.'

Section 3 of the act, as so amended, reads as follows:

'Sec. 3. Every proprietor, keeper, manager or person in charge of any hotel, boat, railroad car, boarding house, restaurant, eating house, lunch counter or lunch room, who therein sells, uses, serves, furnishes or disposes of or uses in cooking, any oleomargarine, shall display and keep a white placard in a conspicuous place, where the same may be easily seen and read, in the dining room, eating house, restaurant, lunch room or place where such substance is furnished, served, sold or disposed of, which placard shall be in size not less than ten by fourteen inches, upon which shall be printed in black letters, not less in size than one and a half inches square, the words 'Oleomargarine Sold and Used Here,' and said card shall not contain any other words than the ones above described; and such proprietor, keeper, manager or person in charge shall not sell, serve or dispose of such substance as or for butter when butter is asked for or purported to be furnished or served.'

In addition to the above statement, reference was made to the following acts of congress providing for the creation and government of the national homes for disabled volunteer soldiers, viz.: Act March 3, 1865, c. 91 (13 Stat. 509); Act March 21, 1866, c. 21 (14 Stat. 10); Act March 3, 1875, c. 129 (18 Stat. 343, 359). By the last-cited statute, on page 359, it is made the duty of the managers of the home, on or before the 1st day of August in each year, 'to furnish to the secretary of war estimates, in detail, for the support of said home for the fiscal year commencing on the first day of July thereafter; and the secretary of war shall annually include such estimates in his estimates for his department. And no moneys shall, after the first day of April, 1875, be drawn from the treasury for the use of said home, except in pursuance of quarterly estimates, and upon quarterly requisitions by the managers thereof upon the secretary of war, based upon such quarterly estimates, for the support of said home, for not more than three months next succeeding such requisition. * * * And the managers of said home shall, at the commencement of each quarter of the year, render the secretary of war an account of all their receipts and expenditures for the quarter immediately preceding with vouchers for such expenditures; and all such accounts and vouchers shall be authenticated by the officers of said home thereunto duly appointed by said managers, and audited and allowed as required by law for the general appropriations and expenditures of the war department.'

By the act (chapter 902) approved August 4, 1886 (24 Stat. 222, 251), it was also provided that 'hereafter the estimates for the support of the home for disabled volunteer soldiers shall be subm tted by items'; also, by the act (chapter 1069) approved October 2, 1888 (25 Stat. 505, 543), it was 'provided further, that it shall be the duty of the managers of said home, on or before the first day of October, in each year, to furnish to the secretary of war estimates, in detail, for the support of said home for the fiscal year commencing on the first day of July thereafter, and the secretary of war shall annually include such estimates in his estimates for his department'; also, by the act (chapter 420) approved June 11, 1896 (29 Stat. 413, 445), an appropriation was made for the support of the home at Dayton, Ohio, and for 'the cost of all articles purchased for the regular ration, their freight, preparation and serving.'

The material portions of the acts of March 3, 1865, and March 2, 1866, have been enacted in the Revised Statutes of the United States, being sections 4825 to 4837, both inclusive.

On the 3d of April, 1867, the legislature of the state of Ohio passed an act ceding jurisdiction to the United States over the lands and their appurtenances within the state of Ohio which might be acquired by donation or purchase by the managers of the National Asylum for Disabled Volunteer Soldiers within the state of Ohio, for the uses and purposes of the asylum.

By the act (chapter 25) approved January 21, 1871 (16 Stat. 399), congress ceded back to the state of Ohio jurisdiction over the place named, and relinquished such jurisdiction on the part of the United States, and the act contained the following: 'And the United States shall claim or exercise no jurisdiction over said place after the passage of this act: provided, that nothing contained in this act shall be construed to impair the powers and rights heretofore conferred upon the board of managers of the National Asylum for Disabled Volunteer Soldiers, incorporated under said act, in and over said territory.'

Upon these facts the appellee was convicted by the magistrate before whom he was tried, and was sentenced to pay a fine of $50, and to be imprisoned until such fine was paid. He refused to pay the fine, and applied to the circuit court of the United States for the Southern district of Ohio, Western Division, for a writ of habeas corpus, on the ground that the state tribunal before which he was tried had no jurisdiction to try him. The writ was granted, and the constable made return thereto, setting up that he held appellee under the mittimus from the justice of the peace before whom he was tried. Upon the hearing the court made an order discharging appellee. 82 Fed. 304. The state appealed from that order to the circuit court of appeals for the Sixth circuit, where it was affirmed (58 U.S. App. 431, 31 C. C. A. 80, and 87 Fed. 453), and the state then appealed to this court.

C. H. Bosler and O. J. Renner, for the State, Judson Harmon, for appellee.

Mr. Justice PECKHAM, after stating the facts, delivered the opinion of the court.

Notes