The opinion
Bkown, J.,
concurring in part, and dissenting in part.
I concur in the granting of the permanent injunction against defendants and the other remedial relief provided by E. C. Chapter 3767 and stated in the last paragraph of the majority opinion, and accept the excellent analysis of the law leading to the final judgment, ,but I dissent from1 that part of the judgment which, orders the defendants to account for the box. office receipts arising from the exhibition of the film from the date of the Common Pleas Court’s injunction on September 19, 1970, up to and including the final performance.
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The only hinge upon which such an accounting order for box office receipts could swing is the Common Pleas Court’s injunction order of September 16, 1970, which,
inter alia,
provides:
“ * * * And said permanent, injunction is to issue and become effective three days from the date of the filing of this order unless the defendants jointly, or any one of them, deposit an appeal bond in the amount of $20,000 to stay execution until final adjudication in the Appellate Courts of this State.
“The question of
forfeiture
as prayed for in the petition is stayed, pending final adjudication. # * (Emphasis added.)
And the appeal bond filed on September 16, 1970, pursuant to this injunction decree, which,
inter alio,
provides:
“In the event that there is a final affirmance of the judgment of said Court of Common Pleas of Lucas County, Ohio, and said defendant, and/or any other defendants, pay all court costs and damages or
forfeitures
which may be assessed by said
Court of Common Pleas,
then this obligation shall be void * * V’ (Emphasis added.)
Such a hinge is insufficient to swing such sweeping relief as an accounting for profits or receipts which, in substance, amount to a forfeiture or penalty. This is so for a number of reasons.
The foregoing decree, and the appeal bond, even if such bond is considered a contract by the defendants to pay a forfeiture which may be assessed upon affirmance on appeal, is the only slender reed upon which the decree ordering a forfeiture of box office receipts is based There is no lawful authority or foundation, statutory or otherwise, creating such a right or remedy of forfeiture. The parties cannot, by a contract, whether it be an appeal bond or otherwise, create jurisdiction by way of a new right or remedy such as forfeiture and agree to give a court such jurisdiction where no such right, remedy, authority or jurisdiction exists independently. 31 Ohio Jurisprudence 2d 518, Judgments, Section 28.
R. C. Chapter 3767, entitled Nuisances, under which the present injunction proceedings were maintained, provides
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for various remedies, in addition to permanent injunctive relief such as is granted in the last paragraph of the majority opinion — the authority for the action there is derived from R. 0. 3767.06 and R. C. 3767.09. However, in this statutory structure for relief in nuisance cases, there is singularly and glaringly absent any provision for accounting for and paying to the county treasurer or any other public body or officer the box office receipts arising out of exhibitions of the film, which amounts to a forfeiture or penalty.
Expressio unius est exclusio alterius.
50 Ohio Jurisprudence 2d 165, Statutes, Section 188. A strict construction is generally accorded statutes which impose restrictions upon the use of private property, which, in general, interfere with private property rights or which permit the summary divestiture of title to property.
Perkins
v.
Hattery,
106 Ohio App. 361 , 50 Ohio Jurisprudence 2d 273, Statutes, Section 289.
Only where a penalty or forfeiture is mandatorily fixed by statute will equity, as a rule, apply the requirement of the statute.
Miller Oil Co.
v.
Abrahamson,
252 Iowa 1058 , 109 N. W. 2d 610 ;
State
v.
1920 Studebaker Touring Car,
120 Ore. 254 , 251 P. 701 ;
People
v.
Laport,
28 Ill. App. 2d 139 , 171 N. E. 2d 95 ; 20 Ohio Jurisprudence 2d 84, Equity, Section 37; 27 American Jurisprudence 606, Equity, Section 84; 66 Corpus Juris Secundum 934, Nuisance, Section 130.
In the absence of authority duly delegated to a court of equity, such court does not have equitable power or jurisdiction to enforce a forfeiture against the property such as a forfeiture of the profits accruing from property decreed to be a nuisance. 41 Ohio Jurisprudence 2d 169. Nuisances, Section 75; 39 American Jurisprudence 442, 446, Nuisances, Sections 171 and 173; 66 Corpus Juris Secundum 934, Nuisances, Section 130.
Further, even if the Court has power to assess or determine a forfeiture on the basis of an agreement of the defendant as expressed in the appeal bond, in consideration of a stay of execution (and this is gravely doubtful), that upon final affirmance of the judgment of the Court of Com
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mon Pleas the defendants “pay all court costs and damages or forfeitures which may be assessed by said
Court of Common Pleas,”
such cannot support an extended interpretation that defendants agreed to the assessment of a forfeiture by the
Court of Appeals
like the one in the present case.
The order for an accounting of box office receipts is predicated, as indicated in the last paragraph of the majority opinion, upon 29 Ohio Jurisprudence 2d 410, Injunctions, Section 181, which is entitled ‘ ‘ Terms and Conditions of Decree or Order” and concerns itself with the conceded power of a court of equity in granting an injunction to attach to it, as a condition precedent to its effect, terms and limitations designed to serve the ends of justice.
State, ex rel. Cleveland,
v.
Court of Appeals,
104 Ohio St. 96 . This principle is sound law but wholly unrelated to the present case. The trial judge’s injunction order, the pertinent parts being recited in the third paragraph of this concurring opinion, is entirely silent on the terms and conditions of the appeal bond and does not state that an accounting of box office receipts should be a condition of the appeal bond, and, on the contrary, states that the question of forfeiture “is stayed, pending final adjudication,” whatever that means.
Neither is there anything in the transcript and pleadings of the Common Pleas Court stating that an accounting for box office receipts or forfeiture thereof is made by order of the Common Pleas Court a condition of the appeal bond staying execution of the judgment. The fact that the appellant and his surety inserted the clause “forfeitures which may be assessed in said Common Pleas Court” in the appeal bond does not make it a condition of the appeal bond “as is directed by the court making the order which is sought to be superseded” as provided by R. C. 2505.09, or “as the court may provide” as authorized by R. C. 2505.14, or “on such terms as are prescribed by the court in which the appeal is filed” as authorized by R. C. 2505.17.
Booher
v.
Lowe,
79 Ohio App. 490 ; 3 Ohio Jurisprudence 2d 248, Appellate Review, Section 346.
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Furthermore, the insertion of the clause concerning “forfeitures” as part of the conditions in the appeal bond is contrary to the mandatory statutory provisions of R. C. 2505.14, regulating the conditions of an appeal bond operating' as a stay of execution, which provides,
inter alia,
as follows:
“The
* *
* bond * * * shall he * * * subject to a condition to the effect that the party appealing shall abide and perform the order and judgment of the appellate court and pay all money, costs, and damages which may be required of or awarded against him upon the final determination of said appeal * * *.”
Hence, the Common Pleas Court did not provide or prescribe or direct by order that the appeal bond contain a condition therein that defendants pay any
forfeitures
assessed (see
Booher
v.
Lowe, supra)
and, secondly, the Common Pleas Court was mandatorily precluded by R. C. 2505.-14 from making an assessment of forfeitures a condition of the appeal bond.
Therefore, the references to “forfeitures” in the appeal bond filed in the Common Pleas Court are nullities and meaningless. In passing, the observation should also be made that the Common Pleas Court did not determine or assess any forfeiture but postponed such pending appeal.
There is no Ohio case that has established as a principle of law that an injunction decree abating a nuisance carries with it an ancillary right to a forfeiture of the profit which arose from the nuisance abated. 41 Ohio Jurisprudence 2d 167, Nuisances, Sections 73, 74, 75; 29 Ohio Jurisprudence 2d 409, Injunctions, Sections 180 to 183; 20 Ohio Jurisprudence 2d 85, Equity, Sections 39 and 40. This is true of the law generally in the United States. A court, in granting equitable relief by injunction, may impose such terms and conditions as are demanded by justice and the regard for righteous conduct, but it may not impose coir ditions which lie outside its judicial power.
White
v.
Massee,
202 Iowa 1304 , 211 N. W. 339 , 66 A. L. R. 1434; 42 American Jurisprudence 1101, Injunctions, Section 301; 43 Corpus Juris Secundum 951, Injunctions, Section 217.
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Although a court of equity has judicial power to abate a nuisance by injunction and the right to private property is subservient to the public right to be free from nuisances, which may be abated without compensation to the owner of the offending property, yet the guarantee of due process of law prohibits the confiscation or forfeiture of property without compensation except where the property is taken in a valid exercise of the police power. 15A Corpus Juris Secundum 362, Confiscation; 16A Corpus Juris Sec-undum 915,1089, Constitutional Law, Sections 645, 679; 36 American Jurisprudence 2d 611, 622, Forfeitures and Penalties, Sections 1, 15, 16; 24 Ohio Jurisprudence 2d 522, 524, Forfeitures and Penalties, Sections 2, 4.
The state or municipality may enact laws and ordinances imposing forfeitures on certain classes of acts, and will enforce the peace and dignity of the state or municipality, and these laws and ordinances are within the police powers of the state or municipality and valid so long as they are within the specific and clear limitations in the constitution.
Lindsay
v.
Cincinnati,
172 Ohio St. 137 ; 24 Ohio Jurisprudence 2d 523, Forfeitures and Penalties, Section 3;
cf. Gribs
v.
Department of Liquor Control,
153 Ohio St. 77 . Forfeitures and penalties are regarded as odious, not being favored either in equity or at law, and statutory provisions for a forfeiture must be strictly construed.
State, ex rel. Lukens,
v.
Industrial Commission,
143 Ohio St. 609 ; 24 Ohio Jurisprudence 2d 524, Forfeitures and Penalties, Section 4;
cf. United States
v.
Lovitt,
328 U. S. 303 , 18 A. L. R. 2d 291, and 16 American Jurisprudence’ 2d 754, Constitutional Law, Section 413.
Naturally flowing from the foregoing legal proposition is the following principle of law. In the absence of statute or other legislative enactment, the constitutional guarantee of due process of law prohibits the confiscation or forfeiture of property without compensation by order of any court. 16 American Jurisprudence 2d 689, 964, Constitutional Law, Sections 361, 550; 36 American Jurisprudence 2d 622, Forfeitures and Penalties, Section 16; 16A Corpus Juris Secundum 913, Constitutional Law, Section
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645; 37 Corpus Juris Secundum 6, Forfeitures, Section 3;
cf. Kingsley Books, Inc.,
v.
Brown,
354 U. S. 436 . That part of the decree in the present case which orders forfeitures of box office receipts violates all the principles and constitutional prohibitions heretofore discussed and contained in the text and cases cited, and is therefore unconstitutional.
Neither can the box office receipts be ordered confiscated or forfeited as contraband, a term sometimes defined as an article which cannot be owned or possessed legally, or such as is capable of use only in the commission of a crime. Box office receipts are not contraband. 17 Corpus Juris Secundum 510, Contraband.
The decree of this court ordering an accounting and forfeiture of box office receipts, by reason of its unconstitutionality, exceeds the jurisdiction and legitimate powers of this court of appeals and is an open invitation to the party whose property is confiscated to resort to a utilization of an extraordinary writ or remedy to prohibit such unconstitutional confiscation. 44 Ohio Jurisprudence 2d 209, Prohibition, Section 26; Chapter 85, Section 1331, Title 28, U. S. Code, and footnotes 139 and 142, and Section 1332, footnote 156, and Chapter 155, Sections 2281 and 2283;
Elliott Advertising Co.
v.
Metropolitan Dade County (C.
C. A. 5, 1970), 425 F. 2d 1141 .
However, a confiscation or fortfeiture of property must occur in the valid exercise of the police power. Such police power regarding confiscation or forfeiture of prop-perty requires statutory provision permitting and regulating the forfeiture proceedings consistent with due process of law, and such statutory provision for a forfeiture must be strictly construed. 24 Ohio Jurisprudence 2d 524, 525, Forfeitures and Penalties, Sections 4 and 5.
In the instant case, there was no statutory remedy or procedure providing for the confiscation or forfeiture of the box office receipts derived from the exhibition of the offending film. Hence, the forfeiture order is a nullity and violates the constitutional guarantee of due process of law. Sections 1, 16, 19, Article I, Ohio Constitution; Sections 9, 10, Article I, and amendments 5, 14, United States Consti
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tution; 16 American Jurisprudence 2d 751, Constitutional Law, Section 411, and page 698, Section 368.
Too much significance is placed in this case on the language in the Common Pleas Court final decree and in the appeal bond staying execution which provides in effect that the “defendants pay all court costs and damages or forfeitures which may be assessed by said Court of Common Pleas” in the event of final affirmance of the judgment of that court. Suppose the decree and appeal bond had provided that defendants, in addition to paying all costs, damages or forfeitures, would also “pay all fines and penalties and serve all jail sentences that might be imposed by the Common Pleas Court upon affirmance on appeal”? Would this agreement or statement of defendants in the appeal bond and any reference to it in the permanent injunction decree of the Common Pleas Court give the Court of Appeals or the Common Pleas Court power and jurisdiction to assess a $10,000 fine on any of the defendants or impose a 6-month jail sentence on any defendant? The answer is obviously in the negative. For the same reason, the Court of Appeals and the Common Pleas Court cannot assess a forfeiture or cause a confiscation of property where no such power or jurisdiction has been granted by law to the courts. The defendants, by a statement in the appeal bond, referring to forfeitures, or to any other matter such as crimes or jail sentences, cannot create jurisdiction of the subject matter in a court. In the present case, the court lacks jurisdiction of the subject matter of confiscation or forfeiture of private property of the defendants. Jurisdiction to render judgment in a case in which the court lacks jurisdiction of the subject matter cannot be acquired by consent of the parties. 31 Ohio Jurisprudence 2d 518, Judgments, Section 28.
For the foregoing reasons, this court should make no order concerning a confiscation or forfeiture of the box office receipts obtained by exhibiting the offending film in this case.
It is readily conceded that confiscation of the box office receipts obtained by defendants who trafficked in smut
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in this case is a desirable solution and a desirable court decree, and is a method to deter the continued offensive conduct of defendants. However, what is desirable in this, and in many other situations, is not the equivalent of what is lawful or within the powers of this court or any other court to grant.