Slatmyer v. Springborn. goes into effect in all parts of the state except the city of Cleveland in May, 1903, shall not go into effect in that city until an indefinite time in the future, has a uniform operation throughout the state. In all other cities, by virtue of this statute, if a market house is to be built the entire subject of such building is under the supervision of the board of public service and its appointees, and that from the day the statute went into effect. In the city of Cleveland it may be one year; it may be five years before the erection of a market house will be under the control of the same board as is provided for all the other cities of the state. This seems to us to completely settle the proposition that this provision is obnoxious to Sec. 26, Art. 2 of the constitution. Another reason why it seems clear that the plaintiffs are not entitled to continue in the performance of the duties of a market house. commission is that the statute under which they were appointed is clearly an act of a general nature relating to a subject which, in the nature of things, is general in the cities of the state, and yet that act confines its operations to cities of the second grade of the first class, of which there was but one at the time the statute was enacted, and therefore that act was invalid as being in contravention of the constitutional provision, that all acts of a general nature shall have a uniform operation throughout the state. This being true, the only possible ground on which, the plaintiffs could be entitled to continue in the performance of the duties of a commission must be that, though they were appointed under an unconstitutional statute, such statute can be made valid and legal by the enactment of another unconstitutional statute. If the statute under which these plaintiffs were appointed was unconstitutional, then they were not at the time of the enactment of the municipal code members of and did not constitute a market house commission. That being true, we have this situation: That in all cities of the state except one the board of public service, from and after the first Monday in May, 1903, had full control of the erection of market houses, either by themselves or through persons appointed by them, yet in the city of Cleveland certain men not at the time the code was enacted having any legal right to act as a market house commission are by virtue of that code made a market house commission for the city of Cleveland alone. Surely, it would seem as though there can be no doubt that this would be in violation of the provision of the constitution already quoted. It is possible that but for the recent decisions of the Supreme Court of the state a different conclusion might have been reached, and it might. have been held that owing to the peculiar circumstances existing in the city of Cleveland at the time of the enactment of the statute of April 26. Cuyahoga County. 1898 (93 O. L. 668), it was necessary that a commission should be appointed for that city which would not justify such appointment in the same way in any other city; but however that may be, the Supreme Court has decided in unmistakable terms that the efforts which have been made and to a greater or less extent permitted to prevail to avoid the provision of the constitution referred to will no longer be tolerated. The only other authority under which the plaintiffs claim the right to continue as such market house commission is by reason of the adoption of a resolution by the board of public service, on May 4, 1903, in these words: "BE IT RESOLVED by the board of public service that until further order of this board, all officers and employes heretofore appointed in connection with a department or division of the government of the city of Cleveland, and performing any functions which by the act of October 22, 1902, taking effect this fourth day of May, 1903, is placed under the authority, supervision and control of this board, shall continue in the employ of the city of Cleveland without further order under the designation heretofore attaching to said employment and at the salary heretofore paid therefor, and that the division and organization heretofore existing in all such work shall be maintained and shall continue until the same shall be changed in accordance with law. The object and purpose of this resolution being to legalize the employment of all persons now in the city's employ heretofore operating under any other authority as predecessor to this board, and to preserve the orderly conduct of the affairs of this city and the performance of all such public work as is under the care and maintenance and control of this board." The only claim that can be made under this resolution is that the board of public service has appointed the plaintiffs to perform their duties as a market house commission by virtue of a provision of 96 O. L. 88, Sec. 216, hereinbefore quoted, which reads: "Provided, further, that whenever any city has in contemplation or in process of construction, any market house or houses, or public hall in connection therewith, the directors of public service may provide for the employment of three citizens of such city, to be named by them, which shall constitute a commission," etc. Clearly this resolution was not adopted by the board of public service with a view of making any appointments under this provision of the statute, but only that the affairs of the city in connection with their department should not fall into confusion until such time as they might in pursuance of the authority vested in them by the statute take control of the various matters entrusted to them, and the resolution itself provided Slatmyer v. Springborn. that those employes of the city referred to in the resolution were only to continue in their employment until the further order of the board; and the petition in this case shows that on June 19, 1903, a resolution was adopted by the board of public service discontinuing all action of the market house commission and requiring them to turn over to the board of public service all matters and property in their hands pertaining to the market house, and on June 20, 1903, the plaintiffs received. notice from the board of public service of this action, so that, whatever authority they derived from the resolution of May 4 was ended by the resolution of June 19. A peculiarity of the statute under consideration, which probably would not exist but for the want of time on the part of the legislature in preparing its several sections, is, that whereas, by Sec. 138, it is provided that the directors of public service shall organize a board of public service, yet in each of the sections following in which provision is made for the duties of such officers, instead of the term "board of public service" being used the language in each section is "the directors of public service." As has been said, this has no bearing on the case before us, but is noticeable in the consideration of the statute. Entertaining these views, the demurrer to the petition is sustained. The questions involved in this case are of such importance that if counsel for the plaintiffs so desire the judgment will be suspended until January 15, 1904, to give an opportunity for any application to the Supreme Court which the plaintiffs may desire. Hale and Winch, JJ., concur. MOTIONS AND ORDERS-RECEIVERS CONTEMPT. Giffen, Jelke and Swing, JJ. FIRST NATIONAL BANK OF NORWOOD V. EMIL CLAUSS ET AL. 1. ORDER MADE UNDER SEC. 5475 REV. STAT. TO PAY MONEY TO RECEIVER FINAL ORDER. Where, in a proceeding before a judge of the common pleas court, under Sec. 5475 Rev. Stat., to examine a person alleged to have in his hands money belonging to the judgment debtor, an order is made directing such person to pay the money to a receiver to be held by him until the further order of the court, such order is a final order, to which error may be prosecuted by such person. 2. JUDGE ACTING UNDER SEC. 5483 REV. STAT. MAY APPOINT RECEIVER TO HOLD MONEY IN DISPUTE. The court or judge acting under Sec. 5483 Rev. Stat. is not authorized to settle disputes between the judgment debtor and a third person, but may Hamilton County. appoint a receiver of the money alleged to belong to the jugdment debtor, to hold the same until such dispute is determined by a civil action. 3. COURT CANNOT IMPRISON AS FOR CONTEMPT PARTY DISOBEYING ORDER MADE UNDER SEC. 5483 REV. STAT. In the event the party refuses to comply with an order of the court made in pursuance of Sec. 5483 Rev. Stat. the court has no power to imprison as for contempt, but the receiver appointed to hold the fund in dispute must resort to his remedy by action against the party so refusing. MOTION to strike petition from files. Emil Clauss, a pawnbroker of Cincinnati, secured three judgments before a justice of the peace against William Schaller, maker, and Michael Gaeb, indorser, on promissory notes. Transcripts of the judgments were thereupon filed in the common pleas court. Michael Gaeb being execution proof, repeated attempts to collect by levy and execution were unavailing. On April 20, 1903, Emil Clauss filed an affidavit, reciting this fact and further reciting that the First National Bank of Norwood had in its possession certain property, to wit, money of said Michael Gaeb. Upon this affidavit, an order of appearance was issued and Thomas McEvilley, cashier of the First National Bank, received the same at 9:20 A. M. April 21, 1903. At that time the bank had no money in its possession belonging to Michael Gaeb, but did have an account on its books in the name of M. P. Gaeb, the said account being for money deposited with the said bank by Mrs. Pauline Gaeb, wife of Michael Gaeb, and being her own separate property. Mrs. Gaeb was and is the owner of a double store in Norwood, and conducted the business of saloon and bakery as M. P. Gaeb, and the money so deposited was in part from her rents and business. The amount in bank at the time of the service of the order, to the credit of M. P. Gaeb, was $242.02. The bank thereupon appeared and testified on April 22, that it had no account of Michael Gaeb, but did have the account of M. P. Gaeb, but had paid out on said account $240 to the depositor during banking hours, April 21, and the court showing a disposition to order the money paid the second time, as the money of Michael Gaeb, counsel for the bank secured a continuance of the hearing for further testimony until April 27, when a stenographer was called and reported that testi mony. Thereupon Thomas McEvilley, cashier of the First National Bank who testified as is shown by the record, and further offered to show that he had ascertained before he paid out the money that Michael Gaeb was authorized by his wife to sign her name as "M. P. Gaeb" to her checks and that this was her separate money, which testimony the court refused to hear. At the conclusion of his testimony, the bank then offered as a witness, Mrs. Pauline Gaeb, who would have testified, had she been per Bank v. Clauss. mitted, that the money deposited in the bank was her own money, that she had authorized her husband to sign checks for her as M. P. Gaeb, and that it was money realized from rents and from her business that she was saving to pay her Dow tax. The court refused to permit this testimony and thereupon the bank offered as a witness, Emil Clauss, to prove the fact that she did business in her own name as M. P. Gaeb in Norwood, which testimony the court refused to hear. The court entered judgment against the First National Bank of Norwood for $242.02, and ordered that the First National Bank of Norwood pay the sum of $242.02, within five days, to Stanley V. Merrill, who was appointed receiver to receive and hold this money and to apply the same in accordance with the further order of the court. Due exceptions were taken to said rulings. The First National Bank now prosecutes error to said judgment and findings. Wm. R. Collins, for plaintiff in error: Right of trial by jury. Section 5, Art. 1, constitution of Ohio. Hunt v. McMahan, 5 Óhio 132; Willyard v. Hamilton, 7 Ohio (pt. 2) 111 [30 Am. Dec. 195]; Work v. State, 2 Ohio St. 296 [59 Am. Dec. 671]; Sovereign v. State, 4 Ohio St. 489. Party refusing to obey order cannot be imprisoned as for contempt, but receiver must resort to his remedy against him by civil action. White v. Gates, 42 Ohio St. 109, 112; Conklin, In re, 3 Circ. Dec. 40 (5 R. 78, 84); Union Bank v. Bank, 6 Ohio St. 254; 3 Freeman, Executions (3) ed.) 411, 416, 418; Drake, Attachment C. 36: Myers v. Baltzell, 37 Pa. St. 491; Russell v. Hinton, 1 Murph. (N. C.) 468; Farmers' & Mechanics' Bank v. Little, 8 Watts & Serg. 207 [42 Am. Dec. 293]; Sheldon v. Simmons, Wright 724; Exposition Ry. & Imp. Co. v. Railway Co. 42 La. Ann. 370 [7 So. Rep. 627]; Oppenheimer v. Bank, 20 Mont. 192 [50 Pac. Rep. 419]; Coleman v. Scott, 27 Neb. 77 [42 N. W. Rep. 896]; Grace, Ex parte, 12 Iowa 208 [79 Am. Dec. 529]; Schrauth v. Bank, 86 N. Y. 390, 394. Rogers Wright and John B. O'Neal, for defendant in error. PER CURIAM. 1. Where, in a proceeding before a judge of the common pleas court, under Sec. 5475 Rev. Stat., to examine a person alleged to have in his hands money belonging to the judgment debtor, an order is made directing such person to pay the money to a receiver to be held by him. until the further order of the court, such order is a final order to which error may be prosecuted by such person. 2. The court or judge acting under Sec. 5483 Rev. Stat. is not authorized to settle disputes between the judgment debtor and a third |