Opinion
No. 25474
Decided December 4, 1935.
Supreme Court — Constitutionality of statute not decided when litigation determinable upon another theory — Sections 3481 and 3482, General Code — Charity — Removal of indigent to county of legal settlement — Notice, summons and hearing by Probate Court — Liability of superintendent of county infirmary removing indigent upon warrant.
ERROR to the Court of Appeals of Franklin county.
Mr. Irvin Wolf and Mr. Harry Kohn, for plaintiff in error.
Mr. Donald J. Hoskins, prosecuting attorney, and Mr. Eugene Carlin, for defendant in error Fred T. Babbitt.
Mr. James M. Hengst, for defendant in error Fidelity Deposit Company of Maryland.
Plaintiff in error, Margaret Wiggins, brought suit in the Court of Common Pleas of Franklin county against Fred T. Babbitt and the surety on his official bond as superintendent of the county infirmary, for alleged damages suffered from impaired health due to her removal by the superintendent of the infirmary from Franklin county to Guernsey county, under the provisions of Sections 3481 and 3482, General Code, relating to removal of persons requiring public relief to the county of their legal settlement. The plaintiff in error challenged the constitutionality of those sections upon the ground that they deprived her of due process by authorizing the issuance of a warrant for removal without making provision for a notice, summons and hearing.
The case was submitted to a jury, which rendered a verdict for the defendants. A motion, pleading that the verdict was against the weight of the evidence, was overruled and judgment entered for the defendants. The Court of Appeals affirmed.
There being no evidence that plaintiff in error was not a resident of Guernsey county, and the jury, the Court of Common Pleas and the Court of Appeals having presumably found that the legal settlement of plaintiff in error was in Guernsey county, and that therefore she did not suffer any damages, this court will not consider the constitutional question presented, in accordance with the principle that when litigation can be determined upon any other theory, the question of constitutionality of a challenged statute will not be decided. State, ex rel. Clarke, v. Cook, Aud., 103 Ohio St. 465, 134 N.E. 655, and Rucker v. State, 119 Ohio St. 189, 162 N.E. 802.
On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said Court of Appeals be, and the same is hereby, affirmed.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON, WILLIAMS, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.