Statement of the Case.

of January, A. D. 1916, it duly registered and filed in the office of the clerk of courts of Mahoning county, Ohio, and beginning on the 19th day of January, A. D. 1916, it duly advertised for three consecutive weeks in the Youngstown Vindicator, as provided by law, a description of these bottles and the trademark blown upon them.

It is further averred that the defendant unlawfully gathers, purchases, traffics in and otherwise takes possession of a large number of these bottles, the property of plaintiff, and that at the time of the filing of this suit defendant had in his possession 250 cases of bottles belonging to plaintiff; that he has four wagons which are daily gathering bottles of plaintiff throughout the city of Youngstown, Ohio, and surrounding villages and towns, and that he sells and otherwise disposes of same to the various breweries of Youngstown and elsewhere at the highest prices obtainable therefor; that defendant threatens to and will, unless restrained by the court, continue to gather, purchase, traffic in and take possession of bottles belonging to plaintiff, and will sell and otherwise dispose of the same; that plaintiff has suffered and will continue to suffer great and irreparable damages; that it has no adequate remedy at law; and that it will be put to a multiplicity of suits in order to recover this property from defendant unless defendant be restrained by the court.

To this petition defendant filed a demurrer, which demurrer was sustained by the court of common pleas.

Opinion, per DONAHUE, J.

Upon appeal, the court of appeals of Mahoning county also sustained the demurrer to the petition, for the reason "that Sections 13169, 13169-1, 13169-2, 13169-3, of the General Code are unconstitutional and on the further ground that the injunction asked for therein is to prevent the commission of a criminal offense."

This proceeding in error is brought to reverse the judgment of the court of appeals sustaining the demurrer to the petition.

Mr. E. H. Moore and Mr. S. M. Strain, for plaintiff in error.

Mr. David G. Jenkins and Mr. Harrington Simpson, for defendant in error.

DONAHUE, J. In the case of The State of Ohio v. Schmuck, 77 Ohio St., 438, this court held that Sections 4364-42, 4364-43, 4364-44 and 4364-45, Revised Statutes, were in conflict with Sections 1, 14 and 19 of Article I of the Constitution of Ohio. These sections of the Revised Statutes related to the same subject-matter now covered by Sections. 13169, 13169-1, 13169-2 and 13169-3, General Code, passed March 24, 1915, 106 Ohio Laws, 108.

The general assembly of Ohio in enacting these sections of the General Code now under consideration in this case, guided by the decision of this court in the case of The State of Ohio v. Schmuck, supra, undertook to eliminate all the provisions in the old law in conflict with Sections 1, 14 and 19 of Article I of the Constitution of Ohio.

Opinion, per Donahue, J.

These sections of the General Code as they now read contain no provision for the issuing of a warrant to search premises and seize property, nor requiring the written consent of the owner, or any other provision that would hinder the sale of the property described in these sections, as other personal property is bought and sold in the ordinary course of business; nor do these sections contain any provision that the use or possession of this property without the written consent of the owner shall be prima facie evidence that such use or such possession is unlawful.

These objectionable features were all contained in the original act, and they were the only provisions of that act discussed by the court in The State of Ohio v. Schmuck, supra. Therefore, the conclusion reached in that case can have no application to the case now under consideration, further than the fact that in that case the court found no constitutional objection to any of the provisions of the original act except the ones specifically referred to in the opinion.

However that may be, there is nothing in these sections of the General Code that prohibits acquiring, possessing, and protecting property, or that violates the right of anyone to be secure in his person, house, papers and possessions against unreasonable search and seizure; nor is there anything that authorizes the taking of private property from its owner for any purpose whatever.

It is contended, however, that these sections of the General Code are in conflict with Section 26 of Article II of the Constitution. Undoubtedly these.

Opinion, per Donahue, J.

sections are laws of a general nature, but it is equally clear that they have uniform operation throughout the state upon every person brought within the relation and circumstances therein provided for, and in every locality where the condition exists. Assur v. Cincinnati, 88 Ohio St., 181; State, ex rel., v. Miller, 87 Ohio St., 12; State, ex rel., v. Creamer, Treas., 85 Ohio St., 349; Miller v. Crawford, 70 Ohio St., 207; State, ex rel., v. Spellmire, 67 Ohio St., 77, and Cincinnati v. Steinkamp, Trustee, 54 Ohio St., 284.

It is the settled law of this state that the general assembly in the exercise of the police power of the state has the right to make a classification based upon a sound, substantial reason, and before a court will interfere with this power and prerogative of the general assembly it must clearly appear that there is no valid reason for such classification. Bloomfield v. State, 86 Ohio St., 253, and Marmet v. State, 45 Ohio St., 63.

Ordinarily, personal property can be kept in the possession and under the control of its owner. He is in position to safeguard his property and can easily identify it should it wrongfully or unlawfully be taken from his possession; but not so with the property described in Section 13169 et seq., General Code. The use to which such property is put absolutely requires that it must pass from the possession of its owner into the temporary possession of the purchaser of the product marketed in such bottles, siphons, and other containers, and having once passed from the possession of the owner into the hands of a large number of cus

Opinion, per DONAHUE, J.

tomers he would have no means of protecting his property or identifying it from other articles of like kind, unless his name or other mark or device were branded, stamped, engraved, etched, blown, or otherwise produced upon the same. Not only this, but a confusion of this character of property would result in endless litigation, the cost of which would make the remedy more burdensome than the wrong.

The practical application of these statutes to this character of business and this character of property cannot injure any honest individual who recognizes and respects the rights of property, but, on the contrary, it will interfere only with the business of those, who, regardless of the property rights of others, take advantage of the extraordinary opportunity offered by the necessities of such business to appropriate this class of property to themselves.

These statutes are by no means an isolated example of legislative recognition of the fact that certain character of property and certain kinds of business demand legislation peculiar to the needs of such business or property. The statutes relating to junk dealers are particularly in line with the statutes under consideration, yet these statutes were held to be a necessary, reasonable and constitutional exercise of the police power. Phillips v. State of Ohio, 77 Ohio St., 214. This case was decided at the same term of court in which the case of The State of Ohio v. Schmuck, supra, was decided.

In the opinion in the case of Phillips v. State it is said, at page 217: