a distance of 700 feet or more east of the depot, and that the decedent could have been seen by the engineer and fireman when they were a sufficient distance away that a warning would have afforded him an opportunity to reach a place of safety.

The negligence charged by the plaintiff was (1) that train No. 29 was being operated at a careless, excessive, and dangerous rate of speed, to wit, 50 miles an hour, in violation of an ordinance of the city of Massillon which prescribes a maximum speed of 8 miles per hour; (2) that the engineer in the operation of the train failed and neglected to maintain a lookout along the track in front of the train; (3) that if the engineer was maintaining a proper lookout he saw plaintiff's decedent, or could have seen him, at a distance far enough away to have sounded the whistle and thus given warning to plaintiff's decedent of the approach of the train in time for him to have reached a place of safety.

The answer, in addition to making a general denial of the averments of the amended petition, pleaded contributory negligence of the decedent.

At the close of the trial, upon the request of counsel for defendant, the jury were instructed to and did return a special verdict,

which is as follows:

(1)"The jury finds that Wm. Lupe was a licensee in being where he was at the time of the accident. (2) The jury finds established by the evidence that the defendant, the Pennsylvania Company, operated this train No. 29 at more than 8 miles per hour at the point in question. (3) The jury finds Wm. Lupe, on the track, could readily be seen by the engineer of No. 29, when said train was distant from him 800 feet. The engineer did not see him at all. (4) The jury established by the evidence that the engineer of train No. 29 did not blow a whistle as the train approached the depot. (5) The jury finds the proximate cause of the death of Wm. Lupe, plaintiff's decedent, was the facts contained in paragraphs 2, 3, and 4 hereof. (6) The jury does not find Wm. Lupe was careless. (7) The jury find that the plaintiff as administrator, and for the benefit of the next of kin, as alleged in the amended petition, has been damaged in the sum of $9,500."

Upon this verdict the trial court rendered a judgment for the defendant, and upon the overruling of a motion for a new trial by that court error was prosecuted to the Court of Appeals, which court reversed the judgment of the court of common pleas and remanded the cause for further proceedings. Thereafter, upon motion, the record was ordered certified to this court for review and final determination.

MATTHIAS, J. It is to be observed that the jury in the special verdict found that at the time and place in question the defendant was operating its train at a speed of more than 8 miles an hour, and that the en gineer thereof could have seen the plaintiff's decedent when the train was 800 feet distant from him, but did not see him; that no whistle was sounded as the train approached the depot; that Lupe was not careless; and that the proximate cause of his death was the speed of the train, the failure to whistle, and failure of the engineer to see Lupe. The further finding is that in being where he was at the time of the accident Lupe was a licensee. The necessary conclusion from these findings therefore is that the defendant was negligent in the particulars charged, and that Lupe was not negligent, and that the proximate cause of his death was such negligent acts of the defendant, and yet immediately upon return of the verdict the trial court rendered judgment for the defendant. The question arises, therefore, whether the fact that the jury found that at the time of his injury Lupe's relation and status was that of a licensee required, or warranted a judgment for the defendant. And the further question is presented as to whether the trial court by correct instructions submitted to the jury the issue as to the status of the decedent.

such as to warrant, it is the duty of the trial [1] Undoubtedly, where the evidence is court to submit to the jury the question as to whether the person injured on the premises of another by the claimed negligence of the owner thereof was at the time of such injury on the premises either at the express or implied invitation of the defendant, or whether he was a trespasser, or a mere licensee. 29 Cyc. 638.

The trial court, in evident recognition of the propriety, if not the duty, of submitting such question to the jury in this case, gave somewhat detailed instructions, wherein he defined trespasser, licensee, and invitee, but in the end practically found, and so advised the jury, that the decedent, as well as the police officer, whom he was assisting at the request and direction of the officer, were mere licensees. Under this instruction the jury could not find otherwise than that the decedent was a licensee. While the evidence in the record would probably justify the trial court in saying to the jury that the the defendant's train to the police officer and mere invitation by the baggagemaster on the decedent to pass through the baggage car on their mission endeavoring to apprehend those who had been molesting defendant's passengers, disturbing the peace, and possibly endangering defendant's property, could not

upon the defendant's premises, even if the

such authority, yet there was evidence tend

Bearing upon the question of the status of the decedent, plaintiff's counsel had made a special request for instruction to the jury in accordance with the rule stated in 33 Cyc. 756, as follows:

"A licensee on the railroad's premises is a person who being neither a passenger, servant, nor trespasser, nor standing in any contractual relation to the company, is expressly or impliedly permitted by the railroad company to come on its premises for his own convenience or gratification. But if his being on the company's premises is for the company's interest or benefit, as well as for his own, he is more than a mere licensee, and is upon the premises by the company's invitation, express or implied.".

The same principle is stated and quite fully discussed in 3 Elliott on Railroads (3 Ed.) p. 827, § 1786.

[2] The evidence in the record clearly established the charge of negligence in regard to the speed of defendant's train, and that it was far in excess of an ordinance of the municipality, which was introduced in evidence and was uncontradicted. Such legal restrictions enacted for the preservation of life and safety of individuals would certainly accrue to the benefit of one occupying the status which some evidence in the record tended to show was the relation of the police officer and the decedent to the defendant railroad company at the time of the injury, and the mere finding that they were licensees would not of itself authorize a judgment for the defendant. Under such circumstances it would seem that there was a duty upon the part of the railroad company to avoid causing injury by active violation of law. The violation of a statute or ordinance passed in the proper exercise of the police power, in the interest of public safety, is negligence per se. Schell v. Du Bois, Adm'r, 94 Ohio St. 93, 113 N. E. 664, L. R. A. 1917A, 710. Certainly the act of a railroad company in violation of law or ordinance, causing injury to a police officer lawfully upon the premises in the discharge of his duty to apprehend persons there disturbing the peace by molesting passengers or injuring property of the defendant, is actionable negligence, whether such officer be denominated a licensee or invitee, although it be not averred that the act of the defendant was willful or wanton. Parker v. Barnard, 135 Mass. 116. 46 Am. Rep. 450; Racine v. Morris, 136 App. Div. 467, 121 N. Y. S. 146, affirmed 201 N. Y. 240, 94 N. E. 864.

[3] While in our opinion it was error for the court to enter judgment for the defendant upon the special verdict, we are also of the opinion that a judgment for

must be of such a nature that nothing remains for the court but to draw from the facts found the proper conclusions of law, and to enter judgment thereon. The general rule applicable is stated in 27 Ruling Case Law, 876, as follows:

"There can be no aider of a special verdict by implication or intendment. Such a verdict is supposed to be the complete result of the jury's deliberation on the whole case, and the judgment thereon must be the logical, legal conclusion from the facts found by the jury, unaided by the evidence or any extrinsic matter. It cannot look beyond the findings of fact contained in the verdict to any other fact, though apparent in the record, or proven by the evidence. A special verdict must directly, fairly, and fully respond to the material issues in the case, and should be sufficiently certain to stand as a final decision of the special matters with which it deals. The connothing remains to the court but to draw conclusions of fact must be so presented that clusions of law from them and enter judgment accordingly."

* *

Although in the special verdict the jury did find that the train in question was being operated at more than 8 miles an hour at the time and place in question, there was no finding of the existence of any ordinance which was thereby violated, nor was there any finding that Lupe was acting as a deputy police officer. Although such ordinance was offered in evidence, and there was testimony that Lupe was at the time acting as a deputy officer, for the reasons shown above the trial court could not look beyond the special verdict to the evidence disclosed in the record, and base a judgment partially upon a special verdict and partially upon facts extrinsic thereto.

[4] It is claimed by counsel for plaintiff in error that, when it is found and determined that the special verdict does not contain a finding of facts such as to warrant a judgment for the plaintiff, it necessarily follows that judgment should be rendered for the defendant.

For the reasons stated above, and for the further reason that where a case is tried upon special issues submitted to the jury the verdict cannot stand unless all the issues made by the pleadings are submitted and determined, such rule can have no application here. Counsel for plaintiff by form of special verdict tendered suggested the submission of such issues to the jury, but notwithstanding such suggestion the court did not submit to the jury either of the issues suggested, or give them any instruction whatever with reference thereto. Leach v. Church, Adm'r, 10 Ohio St. 148; 27 Ruling Case Law, 885.

It follows that the judgment of the Court of Appeals reversing the judgment of the

Judgment affirmed.

MARSHALL, C. J., and

ROBINSON,

cur.

FOLTZ GROCERY & BAKING CO. v. BROWN, Secretary of State.

(No. 18689.)

"The court further finds that section 6292 of the General Code of Ohio, as amended by the act of the General Assembly, passed March 29. 1923, and which amendment appears in 110 Ohio Laws, p. 211, notwithstanding the provisions of law limiting the combined weight of vehicles and load which may be transported upon the highways of the state and the provi

motor vehicles may be operated upon said highways, and notwithstanding the facts above set out, is not clearly unconstitutional and does not violate the rights guaranteed by the Constitution of the state of Ohio, particularly article 1, §§ 1, 2, and 19, and article 2, § 26, thereof, and the Constitution of the United States, particularly the Fourteenth Amendment thereof."

The case comes into this court upon petition in error filed as matter of right, a constitutional question being involved.

Taft, Stettinius & Hollister, of Cincinnati, Frank E Calkins, of Toledo, and C. H. Dun

Suit by the Foltz Grocery & Baking Company against Thomas H. Brown, Secretary of State. Judgment for plaintiff was reversed by the Court of Appeals, and plaintiff brings error. Affirmed.-[By Editorial Staff.] The plaintiff in error filed a suit in the court of common pleas of Franklin county, Ohio, praying for an injunction to restrain the secretary of state from collecting the tax embodied in section 6292, General Code, as amended in 110 Ohio Laws, p. 222, upon the ground that the law was unconstitutional in its operation. After hearing had upon evidence, the court of common pleas held that said section 6292 as amended in 110 Ohio Laws, p. 222, was unconstitutional, and enjoined the secretary of state from collecting the tax. Appeal was taken to the Court of Appeals of Franklin county, Ohio, and a hearing was had, as a result of which the Court of Appeals sustained the law as being constitutional, and denied the injunction.

The Court of Appeals made a finding of facts, the first portion of which consisted of a comparison between 4,000 trucks in their operation under the law. The further part of the findings of facts is as follows:

C. C. Crabbe, Atty. Gen., Herbert D. Mills, of Dayton, and H. H. Griswold, of Chardon, for defendant in error.

ALLEN, J. While this case arises upon facts similar to those found in the case of Fisher Bros. Co. v. Brown, Secy. of State, 111 Ohio St., 146 N. E. 100, this day decided, plaintiff in error herein raises a question of law entirely distinct from that raised in the Fisher Case. Its sole contention is that the act of the Legislature in changing the line of classification from 35 horse power to 30 horse power, in view of the alleged discrimination which results therefrom, as shown, in plaintiff in error's view, in the finding of fact by the Court of Appeals, violates article 1, § 2, and article 2, § 26, of the Constitution of Ohio, and the Fourteenth Amendment to the Constitution of the United States. These provisions guarantee the equal protection of the laws and the equal protection and benefit of government, and provide that all laws of a general nature shall have a uniform operation throughout the state.

For the purpose of considering this contention we must examine the statute as origi nally passed and as amended. The original statute (108 Ohio Laws, pt. 2, p. 1079), in its pertinent parts, reads as follows:

Section 6292: "Each owner of a motor vehicle shall pay or cause to be paid taxes as follows:

• *

146 N.E.-7

"For each passenger car having twenty-five horse-power or less, eight dollars; for each

As amended, 110 Ohio Laws, p. 222, this section reads as follows in the pertinent parts thereof:

"Each owner of a motor vehicle shall pay or cause to be paid taxes as follows:

*

"For each commercial car having twentyfive horse-power or less eight dollars, and in addition thereto twenty cents for each one hundred pounds gross weight of vehicle and load or fractional part thereof.

"For each commercial car having more than twenty-five and not more than thirty horsepower twelve dollars, and in addition thereto thirty cents for each one hundred pounds gross weight of vehicle and load or fractional part thereof.

"For each commercial car having more than thirty horse-power twenty dollars, and in addition thereto eighty cents for each one hundred pounds gross weight of vehicle and load or fractional part thereof."

The finding of facts of the Court of Appeals holds that the elements composing the value of the privilege of operating a motor truck upon the highways of the state, upon which the tax herein questioned is based, are speed, weight, and carrying capacity. A comparison in operation made between 4,000 trucks in actual operation in the state of Ohio, as found by the Court of Appeals, is to the effect that 2,000 trucks of various makes, having a rated horse power (under the S. A. E. formula) of 28.9, and an aggregate carrying capacity of 17,000,000 pounds, and an aggregate weight of 19,000,000 pounds, or a combined weight of vehicle and load of 36,000,000 pounds, pay a total tax under the amendment attacked of $132,000, or an average tax of $66 per vehiclé. | As against these 2,000 trucks the finding of fact shows that the other 2,000 trucks of various makes, the most of which have a rated horse power of 32.4 under the S. A. E. formula, having an aggregate carrying capacity of 16,872,300 pounds, and an aggregate weight of 20,951,700 pounds, or a combined weight of vehicle and load of 37,824,000 pounds, pay an aggregate tax of $334,000, or an average tax of $167 per truck.

The Court of Appeals also found that trucks which have a horse power rating between 28 plus and 30 horse power can and do transport over the highways of the state the same proportion of their respective carrying capacity and weight at the same rate of speed as those which have a rated horse power of 30 to 32 plus.

It will be noted that the manufacturers' rated horse power is not an actual horse

solutely accurate basis of determination, particularly in dealing with trucks of so many different makes, in which the manufacturers' rating may vary widely. In fact, there is nothing in this record to show how horse' power calculated under the S. A. E. formula compares with actual horse power.

Moreover, the finding of the Court of Appeals is that trucks which have a horse power rating between 28 plus and 30 transport over the state highways the same proportion of their respective carrying capacity and weight at the same speed as trucks of 30 to 32 plus. This is very different from saying that the trucks which pay the lower tax can and do carry the same weight at the same rate of speed as the trucks which pay Plaintiff in error seems to the larger tax. base its argument upon the latter proposition, which is nowhere found by the Court of Appeals.

It needs no argument to convince this court that the constitutionality of the act may be measured by the results brought about through its enforcement. Castle v. Mason, 91 Ohio St. 296, 110 N. E. 463, Ann. Cas. 1917A, 164; Hixson v. Burson, 54 Ohio St. 470, 43 N. E. 1000; and State ex rel. v. Spellmire, 67 Ohio St. 77, 65 N. E. 619.

Moreover, it is evident that certain inequalities have arisen in this situation, due to the fact that under the former statute, 108 Ohio Laws, p. 1078, as unamended, certain heavy service trucks were constructed to come within the provisions of that statute which classified trucks of the larger size within a group of from 25 to 35 horse power. With the alteration of the law, which now divides the classes at 30 instead of 35 horse power, creating a totally new group, inequalities are created.

Plaintiff in error disclaims any intention to contend that the S. A. E. formula is unconstitutional. It says simply that the Legislature has not the power to take one-half of the heavy duty trucks in operation in Ohio out of the class in which they were previously placed, namely, from 25 to 35 horse power, and put them into another class and impose upon them a three times greater tax than before.

Plaintiff in error cites no authorities in favor of its contention, but simply states that the statute in question attempts to classify motor trucks on the basis of horse power, and upon such basis makes a tremendous distinction at the line of 30 horse power, and seems to conclude the unconstitutionality of the act from this simple statement. That the classification upon the basis of horse power is constitutional has been held by this court in the companion case of Fisher Bros. Co. v. Brown, 111 Ohio St. — 146 N. E. 100. This also is the universal rule in other ju

It is agreed that a special privilege tax upon motor vehicles for the use of the roads must bear a reasonable relation to the damage to the roads done by automobiles. Kane v. State, 81 N. J. Law, 594, 80 A. 453, L. R. A. 1917B, 553, Ann. Cas. 1912D, 237; Southern Gum Co. v. Laylin, 66 Ohio St. 578, 64 N. E. 564.

If plaintiff in error had established his proposition as a fact, these cases would sup port his contention. But there is evidence in the record that horse power has some relation to the potential speed, weight, and carrying power of a commercial motor vehicle. Quoting from the testimony given by an engineer familiar with the operation of motor trucks throughout the state:

"Q. Mr. Wells, say take a five-ton truck of approximately the same weight and 32 horse power and a truck of say the same weight and 28 horse power-29-with the same weight and load and the difference in horse power, could you develop more speed with the larger horse power on a hard-surface road? A. Well, that all depends on the carries back to the question of your gear ratio and so forth as the power is transmitted to the rear wheel, and the speed of your motor.

"Q. Well, say all things were equal, say the speed of the motor-A. And transmit the power to the rear end and all that?

"Q. And the method of transmission of power -everything was equal? A. Naturally the larger motor will give you more speed and more power in that case.

"Q. With a tendency towards more destruction of the road on account of the increased speed? A. On account of the increased speed, yes, sir."

It is true that the same witness testified that there is always a difference in all the cases that he knows of in the gear ratio and in the speed of the motor; that is, that conditions are never absolutely equal. However, granting that to be the case, the testimony foregoing does show that horse power has a relation to doing of work by a machine. More over, the chief engineer of a large motor truck company testified that he did not believe that there could be a smaller bore engine which would develop more horse power than one which was larger, saying:

"If you design a small engine, and then design a large engine equally as well, the larger engine will have much greater torque."

This same witness testified that you cannot have a smaller bore engine with more

It is no doubt difficult to set the exact point at which an increase in breakage occurs upon the road because of weight, momentum, and friction. It is not for this court to say where that critical point is. The damage done to the roads in the past may have influenced the Legislature to believe that an abrupt increase in breakage came, not with the use of a 35 horse power truck, but with the use of a 30 horse power truck.

Plaintiff in error's proposition seems to be one purely of degree. It admits that the Legislature, when it put the division line between moter trucks at 35 horse power, established a tax rate which had some small relation to the destruction of the roads, but claims that, when the Legislature put the line at 30 horse power, it established a tax rate which has no relation to the destruction of the roads. We cannot agree with this contention, unless we are to admit that a taxpayer who is taxed at a certain rate secures a vested right to be taxed at that particular rate and never to have the tax changed, or, unless we are to admit that the Legislature cannot after passing a certain law, which is sustained as constitutional, later introduce a new classification within the tions we do not agree and the only case which terms of the same law. With these proposiwe have found exactly in point supports our view. Ayres v. City of Chicago, 239 Ill. 237,

87 N. E. 1073, of which syllabus 5 reads:

"If a wheel tax ordinance is not, at the time it is passed, subject to the objection of discrimination, it cannot be rendered invalid on that ground by the subsequent introduction of a new class of vehicles which were not included within its terms; and the presumption must be indulged that there is no arbitrary discrimination in selecting the objects of taxation under it."

ute can be remedied by the Legislature. It Every inequality complained of in this stat

is not for this court to interfere with the discretion of the Legislature in establishing a classification between motor vehicles, which