Schaeffer v. Alva West & Co.

The parties appeared in the trial court in the same relation as here. We so refer to them.

On the 19th day of July, 1933, the plaintiff instituted his action against the defendant for a money judgment for personal injuries claimed by him to have resulted from the negligence of an employee of the defendant in the operation of an automobile. The petition discloses that the negligence of which complaint is made occurred on April 2, 1933, in Medina county, Ohio. The praecipe directed the clerk to "issue summons to the sheriff for service upon the defendant herein through the Secretary of State of Ohio pursuant to the provisions of Sections 6308-1 and 6308-2 of the General Code of Ohio, returnable according to law, and send a copy thereof by registered mail to the defendant, The Alva West Co., Maysville, Kentucky." The Clerk of Courts issued the summons to the Sheriff of Franklin county of date of August 14, 1933. The Sheriff's return shows personal service of summons by handing a true copy thereof with endorsements thereon to the Secretary of State of the state of Ohio, and also on July 20, 1933, the Sheriff mailed to the defendant a true and certified copy of the summons with the endorsements thereon.

On the 4th day of November, 1933, counsel for defendant entered its appearance solely for the purpose of contesting the jurisdiction of the court over its person and moved to vacate and set aside the service of summons purported to have been made upon it according to the return of the Sheriff of Franklin county, Ohio. Upon hearing the trial court sustained the motion to quash service of process. The plaintiff electing to plead no further, his petition was dismissed and judgment entered in favor of defendant for its costs. From this judgment error is prosecuted.

The proceedings require consideration and construction of Sections 6308-1 and 6308-2, General Code, passed February 21, 1933, approved by Governor White March 2, 1933, filed in the office of the Secretary of State March 3, 1933. The statutes, insofar as pertinent to our questions, read:

Section 6308-1, General Code. "Any non-resident of this state, being the * * * owner of any motor vehicle, who shall accept the privilege extended by the laws of this state to non-resident operators and owners, of operating a motor vehicle, or of having the same operated, within the state of Ohio, * * * shall, by such acceptance * * * and by the operation of such motor vehicle within the state of Ohio, make and constitute the secretary of state of the state of Ohio his, her, or their agent for the service of process in any civil suit or proceeding instituted in the courts of the state of Ohio against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within the state in which such motor vehicle is involved."

Section 6308-2, General Code. "Such process shall be served, by the officer to whom the same shall be directed or by the sheriff of Franklin county, who may be deputized for such purposes by the officer to whom the service is directed, upon the secretary of state of the state of Ohio, by leaving at the office of said secretary, at least fifteen (15) days before the return day of such process, a true and attested copy thereof, and by sending to the defendant, by registered mail, postage prepaid, a like true and attested copy thereof, with an endorsement thereon of the service upon said secretary of state, addressed to such defendant at his last known address. The registered mail return receipt of such defendant shall be attached to and made a part of the return of service of such process."

Counsel for the plaintiff in their brief well state the two questions presented for determination in this court:

"(1) Can an action be brought in Ohio against a non-resident automobile owner which arises out of an accident occurring after the passage of the law but before the law becomes effective?

"(2) If such action lies, may it be brought in any court in the state having jurisdiction over the subject matter?"

On the first proposition it is the claim of the plaintiff that the statute under consideration is remedial in character, retrospective in operation to the date of its enactment, designed for the purpose of enabling process to be served upon a non-resident of the state who, as owner or operator of an automobile, has caused damage to another, out of which a cause of action arises. And further, that service may be had in causes of action which arose subsequent to the date of the passage of the act in the Legislature and prior to 90 days after it is filed in the office of the secretary of state, or what is commonly recognized as the effective date of a non-emergency law.

It is the claim of the defendant that the statutes not only set up a method by which service may be had upon a non-resident who comes within the terms of Section 6308-1, General Code, but that it also is designed to confer upon our courts jurisdiction of the person of a non-resident; that if remedial only the act was not effective when the cause of action arose; that there is nothing in it which discloses a purpose to make it retroactive, but that it affects substantial rights, is broader than a remedial statute, and has no application to a right of action growing out of a collision which occurred prior to the effective date of the section.

Upon first impression there seems to be a conflict in the terms of Article II, Section 16, and Article II, Section 1c of the Constitution. Article II, Section 16, provides in part: "Every bill passed by the general assembly shall, before it becomes a law, be presented to the governor for his approval. If he approves, he shall sign it and thereupon it shall become a law and be filed with the secretary of state."

Article II, Section 1c provides in part: "No law passed by the general assembly shall go into effect until ninety (90) days after it shall have been filed by the governor in the office of the secretary of state, except as herein provided."

It has, however, been judicially determined in State v.Lathrop, 93 Ohio St. 79, 112 N.E. 209, that Article II, Section 16, has application only to laws that provide for tax levies, appropriations for current expenses of the state government and state institutions and emergency laws, as defined in Section 1d of Article II of the Constitution. The section in question, 6308-1, General Code, not coming within the classification of an emergency law or of any other law contemplated by Article II, Section 16 of the Constitution, is controlled entirely by Article II, Section 1c of the Constitution, and became effective 90 days after being filed in the office of the Secretary of State. The section then became effective June 2, 1933.

It is asserted that, though the effective date may be 90 days after filing this Section 6308-1, General Code, with the Secretary of State, yet in terms it evinces a purpose to make non-residents amenable to its provisions as of the date of its enactment. In construing this section we recognize that it is against the policy of the law to give statutes a retroactive effect; Cincinnati, H. D.R.R. Co. v. Hedges, 63 Ohio St. 339,58 N.E. 804; and that courts struggle to construe statutes so as to give them a prospective, rather than a retrospective operation. 37 Ohio Jurisprudence, 819, Section 499.

So, considering Section 6308-1, General Code, we find nothing whatever in the subject matter which requires a determination that it was intended to be retrospective in purpose. It is as reasonable to interpret the section as though it was prefaced "on and after the effective date of this law" (the subject matter therein recited shall have application to non-residents), as it is to say that it is understood that on and after the date of enactment of the section the subject matter shall be effective. There being nothing in the sections which clearly requires a conclusion that the Legislature purposed that the statutes shall be binding upon non-residents on and after the date of the enactment, we could rely solely upon the rule of construction and hold that the effective date of the law, namely, June 2, 1933, is the time from which the law speaks.

If the purpose of the sections was only to set up a method of serving process upon a resident of the state, then, whether or not the act was retroactive would not affect the right of a plaintiff to subject a defendant to answer to a cause of action which arose either prior to the enactment of the sections or before the effective date thereof. But the defendant in this case is a non-resident of the state.

State courts cannot take jurisdiction of the person of a non-resident upon whom personal service of process cannot be made within the state unless there is a voluntary appearance. Pennywit v. Foote, 27 Ohio St. 600, 22 Am. Rep., 340; Benner v. Benner,63 Ohio St. 220, 58 N.E. 569. A state court can acquire no jurisdiction of an action where neither the person nor any property of the defendant can be found within the state. 15 Corpus Juris, 786, Section 82; Arndt v. Arndt, 15 Ohio, 33.

No sovereignty can extend its process beyond its own territorial limits to subject persons or property to its judicial decisions. Every execution of authority of this sort beyond this limit is a mere nullity, and incapable of binding such person or property in any other tribunals. Story on the Conflict of Law (7th Ed., Bennett), Section 539.

Prior, then, to the enactment of Section 6308-1, General Code, the courts of our state had no means of exercising jurisdiction over the person of the defendant in this cause, unless he voluntarily entered his appearance or was served within the jurisdiction. A personal judgment entered against him without service of process or voluntary appearance would offend the Due Process clause of our Federal Constitution. By the enactment of the aforesaid statute the defendant and all non-resident owners and operators of automobiles in Ohio were put upon notice that Section 6308-1, General Code, set up the means whereby such non-resident owners or operators operating an automobile in Ohio could be made amenable to the jurisdiction of our courts over their person. The non-resident could act under the section by operating his automobile in the state or refuse to so operate it. If he chose to operate his car within the state he thereby designated the Secretary of State as his agent to act for him in accepting service of process from a state court with jurisdiction in an action growing out of the collision wherein his automobile was involved. This was a delegation of an agent by conduct. Such section, however, could not be retroactive in effect because the non-resident would not be amenable to its jurisdictional provision until after he had constituted the Secretary of State his agent to accept service of process.

We are required, therefore, not only upon the rule of construction but by interpretation of the terms of the statute itself to say that the Legislature did not intend that Section 6308-1, General Code, should be retroactive.

Finding that the section is not retroactive we need give no consideration to its constitutionality, had it so provided.

Substantially the same question here determined has been considered and decided in accord with our conclusion in a well considered opinion by the late Judge Darby of the Common Pleas Court of Hamilton county, in Wilson v. Silverman, 31 N.P. (N.S.), 252. Distinction is sought to be made between this case and the instant cause in that in the Wilson case the cause of action arose before the enactment of the section. We see no difference on principle. Statutes much like Section 6308-1, General Code, are held not to be retroactive in Paraboschi, Admx., v. Shaw, 258 Mass. 531,155 N.E. 445; O'Donnell v. Registrar of Motor Vehicles,283 Mass. 375, 186 N.E. 657; Ashley v. Brown, 198 N.C. 369,151 S.E. 725, and in Duggan v. Ogden, 278 Mass. 432, 180 N.E. 301, in which Rugg, C.J., discussing Paraboschi, Admx., v. Shaw, supra, said, at page 435:

"The reason [why service could not be made as authorized in the act under consideration] was that the authority of the registrar of motor vehicles to accept service rested upon a power of attorney created by the statute flowing from voluntary acts of the non-resident owning the motor vehicle. A power of attorney cannot be made retroactive without clear words to that end. It is doubtful whether the legislative power would extend to making such a statutory power of attorney retroactive."

The citations in the brief of defendant from the American Law Institute, Restatement of the Law, Conflict of Laws, Sections 42, 43, 47, 77, 81, 84 and 429, have been helpful. We have with care considered the many citations from Ohio and elsewhere in the brief of the plaintiff in error, but finding no conflict in principle with our conclusion feel that no good purpose would be served in analyzing and discussing them at length.

The second question presented in the instant case is whether or not, if the defendant could have been subjected to the jurisdiction of our courts, was the cause properly instituted in Montgomery county?

The collision out of which the cause of action arose occurred in Medina county. Section 6308-1, General Code, provides that if a non-resident owner or operator of a motor vehicle accepts the privilege extended by our laws to him he thereby makes and constitutes the Secretary of State his agent for the service of process in any civil suit or proceeding instituted inthe courts of the state of Ohio against such owner of such motorvehicle, etc.

It is urged that the language which we have italicized being general in terms and referring to suit or proceeding instituted in the courts of the state of Ohio, is meant thereby to clothe any court of competent general jurisdiction in the state with power to hear and decide any such suit or proceeding so instituted. Our interpretation of the language quoted is that the section does not attempt to fix the place where a cause of action defined in the section shall be tried, but relates only to the service of process in any civil suit, or proceedings instituted in any court of the state of Ohio in which venue is reposed under the law.

The effect of Section 6308-1, General Code, is to make the non-resident amenable to our laws in the same manner and under the same conditions as a resident. The place where the cause of action must be instituted is, therefore, governed by our venue statutes in the situation presented, and not by Section 6308-1, General Code.

The judgment of the trial court will be affirmed.

Judgment affirmed.

BARNES, P.J., and BODEY, J., concur.