Statement of the Case.

THE MAY COMPANY V. THE BAILEY COMPANY.

Order for temporary injunction-In suit for ultimate injunction— Not a judgment or final order-Cannot be reviewed by circuit court, when.

An order of the court of common pleas granting a temporary injunction in a suit in which the ultimate relief sought is an injunction, is not either a judgment or a final order which may be reviewed by the circuit court on petition in error.

(No. 11575-Decided February 23, 1910.)

ERROR to the Circuit Court of Cuyahoga county.

The parties are corporations and rivals in the conduct of department stores in the city of Cleveland. The Bailey Company brought suit in the court of common pleas to enjoin The May Company from further proceeding in a course of unlawful competition by interfering with its contractual rights and property in trading stamps, and unlawfully and fraudulently diverting business. The petition alleged the details of the conduct of the defendant which was alleged to be unlawful, and concluded with a prayer that during the pendency of the action the defendant might be enjoined from continuing its interference, and that upon the final hearing such injunction might be made perpetual, and for general relief. Shortly after the filing of the petition the common pleas court granted a temporary injunction in accordance with the prayer of the petition. The May Company filed a petition in error in the circuit court to reverse the order of the court of common pleas allowing the temporary injunction. The petition in error was dismissed in the circuit court. upon the ground that the order of the common.

Opinion of the Court.

pleas court was not reviewable upon error, and that order of dismissal is assigned as error here.

Messrs. Kline, Tolles & Goff, for plaintiff in error, cited and commented upon the following authorities:

Burke v. Railroad Co., 45 Ohio St., 631; Railway Co. v. Hamilton, 3 C. C., 455; Furniture Co. v. Railroad Co., 7 N. P., 640; Missionary Society v. Ely, 56 Ohio St., 405; Sections 6707 and 6709, Revised Statutes.

Mr. Thomas H. Hogsett and Messrs. M. B. & H. H. Johnson, for defendant in error, cited and commented upon the following authorities:

Village of Canfield v. Brobst, 71 Ohio St., 42; 2 High on Injunctions, Section 1693; Burke v. Railroad Co., 45 Ohio St., 631; Railway Co. v. Burke, 10 Dec. Re., 136, 20 W. L. B., 287; Dustin v. Bauer, 11 W. L. B., 191; Missionary Society v. Ely, 56 Ohio St., 405.

BY THE COURT. Counsel for the plaintiff in error rely upon the case of Burke v. Railway Company, 45 Ohio St., 631, as authority for the conclusion that the order of the court of common pleas in this case was reviewable under Section 6709 as a final order, and that it is within the definition of a final order as given in Section 6707, Revised Statutes. It is not claimed that the court of common pleas in allowing the temporary injunction rendered a final judgment in the case, or that it made an order which determines an action and prevents a judgment. The

Opinion of the Court.

precise claim is, that it made "an order affecting a substantial right made in a special proceeding." Whether the order involved in the case of Burke v. Railway Company was or was not an order affecting a substantial right made in a special proceeding, it is entirely clear that the order in the present case is not of that character. This was a suit for injunction. The order of the court of common pleas was not ancillary to the exercise of its jurisdiction upon any other subject. The application for, and allowance of, the temporary injunction was a part of the ancient suit in equity administered in the main case without any provision of the statute authorizing it, or providing for it, as a proceeding in an action. There was no occasion for dividing up the case, leaving part of it in the court of common pleas, while a part of it was taken to the circuit court. The questions involved in the allowance of the temporary injunction were not different from those which would be involved in a consideration of the final judgment, and the case should have been disposed of wholly in the court of common pleas, before a resort was had to the jurisdiction of the circuit court. This view of the subject derives some support from the provisions of Section 5226, Revised Statutes, providing for an appeal to the circuit court from an interlocutory order dissolving an injunction, as well as from what we understand to have been the consistent practice upon the subject.

Judgment affirmed.

SUMMERS, C. J., CREW, SPEAR, DAVIS, SHAUCK and PRICE, JJ., concur.

Argument for Plaintiff in Error.

LAFOLLETTE, TREASURER, V. MURRAY.

Tax on liquor business-Section 4364-9, Revised Statutes—Applies to malt liquors non-intoxicating.

Section 4364-9, Revised Statutes, (98 O. L., 100), in effect April 10, 1906, applies to the business of trafficking in malt liquors, whether intoxicating or non-intoxicating.

(No. 11855-Decided February 23, 1910.)

ERROR to the Circuit Court of Guernsey county.

The case is stated in the opinion.

Mr. Charles S. Sheppard, prosecuting attorney, for plaintiff in error.

The agreed statement of facts simply states that "Friedon Beer" does not intoxicate, containing 47-100 alcohol, but does not state or intend to state that this malt beer is not an "intoxicating liquor," within the meaning of that phrase. Even if the court should hold that the malt liquor must be "intoxicating liquor," still we confidently assert and claim that the legislature and courts have construed the phrase "intoxicating liquors" to include a malt liquor, whether intoxicating or not.

Chapter Seven, Revised Statutes is entitled, "Intoxicating Liquors and Cigarettes," and at least in three different places in that chapter the phrase "intoxicating liquors" is defined and declared that it shall be construed to mean any distilled, malt, vinous, or any intoxicating liquors, and this exact language was construed by the supreme court in case of State v. Kauffman, 68 Ohio St., 635, and

Argument for Plaintiff in Error.

distinctly held the language to include a malt liquor whether intoxicating or not. Weisbrodt v. State, 50 Ohio St., 192.

The same has been held by numerous circuit courts in the state. Dominick v. State, 27 C. C., 305; Otte v. State, 29 C. C., 203; State v. Intoxicating Liquors, 41 N. W. Rep., 6.

In construing the phrase "any vinous, malt or fermented liquors, or any other other intoxicating drinks," the court of appeals say: "So in this case we think that the statute is subject to the construction that congress intended to say that vinous, malt and fermented liquors were intoxicating, and then, because a large class of intoxicants had not been named in the statute, the words 'all other intoxicating liquors' were intended to cover them." United States v. Cohn, 52 S. W. Rep., 44.

All

This is a malt liquor, and so conceded. malt liquors are alcoholic, and come within the definition of intoxicating liquors.

We therefore confidently assert that the different or similar phrases used in the different laws relating to intoxicating liquors as above set forth, each and all mean and were intended to mean one and the same thing. That the use of the word "other" adds nothing whatever to the meaning already included in the Section 4364-9 before the amendment, as will appear by the meaning given by the legislature itself in Section 4364-9f and 4364-9h, Revised Statutes, prior to the amendment, and the other references herein set forth.

The statute under consideration was construed. by the supreme court in the case of State v. Auditor, 68 Ohio St., 635, and in which case the