[Cite as Assn. of Cleveland Firefighters Local 93 I.A.F.F. v. Cleveland, 2017-Ohio-6887.]

                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA

                               JOURNAL ENTRY AND OPINION
                                       No. 105033

      ASSOCIATION OF CLEVELAND FIREFIGHTERS
                  LOCAL 93 I.A.F.F.
                                                            PLAINTIFF-APPELLANT

                                                      vs.

                         CITY OF CLEVELAND, ET AL.
                                                            DEFENDANTS-APPELLEES

                                    JUDGMENT:
                              REVERSED AND REMANDED

                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-14-823955

        BEFORE: Kilbane, P.J., Boyle, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                           July 20, 2017
ATTORNEY FOR APPELLANT

Daniel A. Powell
Joseph W. Diemert & Associates Co., L.P.A.
1360 S.O.M. Center Road
Cleveland, Ohio 44124

ATTORNEYS FOR APPELLEES

For City of Cleveland

Barbara A. Langhenry
Director of Law
Annette G. Butler
Assistant Director of Law
City of Cleveland, Department of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114

For Chief Angelo Calvillo

Bradric T. Bryan
Goodwin & Bryan L.L.P.
22050 Mastick Road
Fairview Park, Ohio 44126

For John Coughlin, Vincent DiTeodoro, Bradley Englehart,
William Gorey III, and James Thomas

Scott C. Essad
721 Boardman-Poland Road, Suite 201
Boardman, Ohio 44512
For Battalion Chief Anthony Luke

Edward Richard Stege
Stege & Michelson Co., L.P.A.
30799 Pinetree Road #302
Pepper Pike, Ohio 44124

B. Nicole Bush
20820 Chagrin Boulevard, Suite 301
Cleveland, Ohio 44122
MARY EILEEN KILBANE, P.J.:

       {¶1} Plaintiff-appellant, Association of Cleveland Firefighters, Local 93 I.A.F.F.

(“Local 93”), appeals from the trial court’s decision that denied its motion for summary

judgment on its claims for declaratory judgment and injunctive relief and dismissed its

amended complaint, which also sought a writ of mandamus. For the reasons set forth

below, we reverse and remand with instructions for the trial court to consider Local 93’s

motion for summary judgment on the merits consistent with this opinion.

                               Facts and Procedural History

       {¶2} This matter is before this court again because in March 2014, the City, for

the first time in the history of the Cleveland Fire Department, administered

noncompetitive examinations for the positions of assistant fire chief and battalion chief.

The responsibilities of the assistant chiefs’ positions consist of an operational role or a

fire ground commander. The responsibilities of the battalion chiefs include the first

incoming tactical decisions and the decisions of where to place firefighters.

       {¶3} Local 93 is the sole certified bargaining representative for all of the city of

Cleveland Division of Fire members holding rank of firefighter through assistant chief.

In its original complaint for declaratory judgment and injunctive relief filed on March 20,

2014, Local 93 sought to enjoin defendant-appellee, the city of Cleveland (the “City”),

from administering a noncompetitive examination for the positions of assistant chief and

battalion chief. Local 93 alleged that the City violated Ohio’s Constitution, state and

local law, and the City’s Charter when it created a noncompetitive examination process
for the positions of assistant chief and battalion chief. Local 93 maintained that the City

is required to use a competitive exam designed to test for merit and fitness for promotion

as set forth in the Ohio Constitution, Article XV, Section 10, R.C. Chapter 124,

Cleveland Charter Section 128, and Cleveland Civil Service Commission Rules 4.60 and

4.70.

                                  March 2014 Bulletin

        {¶4} On March 14, 2014, the City issued a bulletin announcing noncompetitive

promotional examinations for vacancies for the positions of assistant chief and battalion

chief. The noncompetitive process used by the City consisted of the submission of a

resume and an interview by panel members. The City stipulates that the promotional

exam was a noncompetitive examination.

        {¶5} The application filing period was set from March 17, 2014, through March

22, 2014. The City’s Civil Service Commission Secretary, Lucille Ambroz (“Secretary

Ambroz”), testified that she made the decision, on her own accord, to change the testing

to a noncompetitive test. Secretary Ambroz was unable to explain why competitive

testing was not practicable under the current situation.      She believed the need for

noncompetitive examinations existed to permit the appointing authority to look at all the

individuals that were applying and vet them out completely. She later testified that she

had in fact decided, along with the former safety director, to switch to noncompetitive

testing. Secretary Ambroz acknowledged that this was the first time the City has ever
used noncompetitive testing to promote individuals in the City’s Division of Fire. The

City had been utilizing a competitive examination for promotions since 1912.

       {¶6} Assistant Safety Director Edward Eckart (“Assistant Director Eckart”), who

was the former EMS Commissioner, conducted the interviews with a group of panelists.

Assistant Director Eckart has no experience as a firefighter.           He stated that each

interview consisted of 45 minutes of questions from himself, followed by 15 minutes of

assessment by the panelists. After the interviews were completed, Assistant Director

Eckart directed the fire chief to assemble files on those candidates who the panelists

perceived to be the top 15 candidates. Selections were then made from that list.

               The Dismissal of Local 93’s Complaint and its Initial Appeal

       {¶7} On March 20, 2014, the same day Local 93 filed its complaint, the trial

court entered an order allowing the City to continue to accept applications through the

City’s set deadline and scheduled a hearing on April 7, 2014. At the hearing, the trial

court heard testimony from the fire chief, an assistant fire chief, and several battalion

chiefs, as well as Secretary Ambroz and Assistant Safety Director Eckart regarding

competitive exams, the testing process, and the seismic shift in testing methods from

competitive to noncompetitive examinations.

       {¶8} Thereafter, the trial court requested that the parties return for oral argument

on the issue of subject matter jurisdiction, an issue that was raised, sua sponte, by the trial

court. The court held a hearing on April 17, 2014, regarding this issue. Both Local 93

and the City argued that the trial court has proper jurisdiction because the issue of
noncompetitive exams is not addressed in their collective bargaining agreement. On

April 25, 2014, the trial court issued a decision finding that it lacked jurisdiction to hear

the matter in light of the union’s failure to exhaust its remedies under the collective

bargaining agreement. As a result, the court ordered, sua sponte, that Local 93’s claims

be dismissed as a matter of law.

       {¶9} Local 93 appealed, and the City cross-appealed to this court in Assn. of

Cleveland Firefighters, Local 93 I.A.F.F., v. Cleveland, 2015-Ohio-1538, 31 N.E.3d 1285

(8th Dist.).    Both parties argued the trial court erred when it dismissed Local 93’s

complaint for lack of subject matter jurisdiction. On April 23, 2015, we reversed the

trial court’s decision and remanded the matter for the trial court to adjudicate Local 93’s

complaint and injunction motions. Id. at ¶ 24.

                        The City promotes Six Fire Captains through
                         the Noncompetitive Examination Process

       {¶10} While the matter was pending before this court, the City went ahead and

administered the noncompetitive promotional exam in May 2014, which was the subject

of Local 93’s complaint. Local 93 took no action to stop the administration of the

noncompetitive exam, and the City promoted six fire captains to fill the battalion-chief

positions.      These newly promoted fire captains were promoted through the

noncompetitive examination process.

             The Trial Court Grants Local 93’s Motion for Preliminary Injunction

       {¶11} In August 2015, following a hearing after our remand, the trial court granted

Local 93’s preliminary injunction, as set forth in the initial complaint, and prohibited the
City from continuing to administer its noncompetitive examination process for promotion

in the fire department. In its opinion, the trial court acknowledged that the March 2014

bulletin was “the first time in the history of the fire department that promotion to the rank

of battalion chief and assistant chief would be by noncompetitive means.” The court

further acknowledged that Local 93 is seeking a declaration that the March 2014 bulletin

was in violation of Ohio’s Constitution, state and local law, and the City’s Charter. The

court then stated that “under the first prong of the prima facie case for the Local 93’s

motion for preliminary injunction, this court must analyze the likelihood that the Local 93

will prevail on the merits of the declaratory judgment action.”

       {¶12} In doing so, the trial court found that the City’s administrative decision to

change to noncompetitive testing was not supported by the evidence and there was a

substantial likelihood that Local 93 would prevail on the merits of its declaratory

judgment. The court reasoned that

       [t]hroughout the entire hearing, both [Ambroz and Eckart] were pressed by
       counsel and the Court as to why it was not practicable to implement the
       proposed new testing method into competitive testing. At no time did
       either witness provide the Court with persuasive evidence that a deviation
       from competitive examination designed to test for merit and fitness as
       required by the Ohio Constitution, the Ohio Revised Code, and the City of
       Cleveland Charter was appropriate or necessary under the circumstances.
       Furthermore, while the Court recognizes that [Ambroz] has broad discretion
       to determine promotion and the method of testing, said discretionary powers
       must be exercised fairly and reasonably.

       {¶13} The trial court further found that if the injunction was not granted, the

potential of irreparable harm to Local 93 “is quite real.” The court explained that
       the threatened harm is more than just hurt feelings or disharmony with the
       division. Rather, * * * competitive testing requires selection amongst the
       highest ranked individuals according to performance, including the ability
       to make time sensitive and critical tactical decisions. Said decisions deal
       directly with the safety of firefighters on scene, as well as with the
       protection and safety of the community. The decisions for which battalion
       and assistant chiefs are responsible are often life and death decisions.
       Where lack of competitive testing erodes the confidence of rank and file
       fire fighters in the decisions that are being made and orders that are being
       implemented, the Court finds there is a high risk of harm associated with
       lack of confidence in commanding officers.

       {¶14} We note that at the time the court granted Local 93’s motion, the City had

already promoted six individuals through the noncompetitive process.1 Then between

June 26 and September 15, 2015, several interested parties filed motions to intervene,

which the trial court ultimately granted.

                              Local 93’s Amended Complaint

       {¶15} In September 2015, Local 93 moved for leave to amend its complaint, which

the trial court granted in December 2015. In its amended complaint, Local 93 again

sought a declaratory judgment, a preliminary injunction, and permanent injunction, and

also sought a petition for writ of mandamus. Local 93 maintains that because the March

14, 2014 bulletin violates the Ohio Constitution, both state and local law, and the City’s

Charter it was entitled to

       a declaratory judgment that all vacancies in the promoted ranks of Division
       of Fire created since the expiration of the most recent certified civil service
       eligibility lists, as well as any such vacancies which have yet to be created

       1Wenote that the last eligibility lists formulated on the basis of competitive
examinations for assistant chief and battalion chief expired at the end of 2013.
       in the promoted ranks, must be filled by a competitive examination process
       in compliance with applicable law.

       {¶16} Local 93 also sought preliminary and permanent injunctions prohibiting the

administration of noncompetitive promotional exams for any promoted rank in the fire

department, and sought a writ of mandamus “as a result of the City’s failure to comply

with its clear legal duties with regard to promotional examinations within the Division of

Fire[.]”

               12 Fire Captain’s Motion to Intervene and their Writ of Mandamus

       {¶17} Also in September 2015, 12 fire captains filed a motion to intervene, which

they later withdrew on November 12, 2015, because the trial court had not yet ruled on

their motion. The next day, these 12 fire captains (relators) filed a complaint for a writ

of mandamus with the Ohio Supreme Court in State ex rel. Schroeder v. Cleveland, Slip

Opinion No. 2016-Ohio-8105. The relators asserted that they have a clear legal right to

require that the City

       choose battalion chiefs and assistant chiefs from among the three highest
       scores in a competitive promotional exam, that they have no adequate
       remedy in the ordinary course of the law, and that [the City] has no lawful
       reason for refusing to offer a competitive exam or for filling the positions
       with firefighters who do not rank among the top three scores in a
       competitive exam.

Id. at ¶ 11.

       {¶18} They requested that the Ohio Supreme Court order the City
       to immediately offer a competitive promotional exam to all firefighters who
       were eligible to sit for such a test when the noncompetitive examination
       process was announced in March 2014, fill all battalion-chief and
       assistant-chief positions available since March 2014 with firefighters who
       rank in the top three of that competitive test, make those promotions
       retroactive to the date each would have been effective if [the City] had
       complied with the law, and provide back pay and benefits to the firefighters
       promoted under the new competitive process.

Id.

       {¶19} The Schroeder court noted that to be entitled to extraordinary relief in

mandamus, “relators must establish a clear legal right to the requested relief, a clear legal

duty on the part of [the City] to provide it, and the lack of an adequate remedy in the

ordinary course of the law.” Id. at ¶ 13, citing State ex rel. Waters v. Spaeth, 131 Ohio

St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6.

       {¶20} The relators challenged the noncompetitive examination process on the

same grounds as Local 93 did in its amended complaint and sought the immediate return

of the competitive examination process. Id. at ¶ 21. In August 2016, the Schroeder

court dismissed relators’ writ, finding that they had an adequate remedy in the ordinary

course of law by way of intervention. Id. at ¶ 24. The court stated that relators could

have intervened in Local 93’s declaratory judgment action and obtained all the relief they

sought in their writ of mandamus. Id. at ¶ 21.

                             Motions for Summary Judgment

       {¶21} Meanwhile in March 2016, Local 93 and the City each filed motions for

summary judgment. Local 93 opposed the City’s motion. The City, however, did not
file a response in opposition to Local 93’s motion for summary judgment. 2            After

submitting briefs and evidence, the trial court issued a

judgment entry and opinion dismissing the action in September 2016. The court stated:

       Initially, the court notes that not one of the Local 93’s amended counts
       references the March 14th, 2014 bulletin announcing the noncompetitive
       promotional examinations, the fact that those noncompetitive tests have
       already been administered, the fact that promotional lists were generated
       from those noncompetitive exam processes, the fact that several promotions
       have already been effectuated from said lists, or the fact that the lists
       generated from the noncompetitive examination processes have since
       expired and can no longer be utilized. Rather, the amended complaint asks
       this court to find all vacancies in the promoted ranks both past and future
       must be filled by competitive examination, and that all noncompetitive
       examination for the promoted ranks within the Division of Fire is
       prohibited.

       ***

       Local 93’s arguments to this court in their motion for summary judgment do
       not comport with the counts in their amended complaint. From the
       evidence submitted, which pertains solely to the March 14th, 2014 bulletin,
       the noncompetitive examinations administered thereafter and the
       promotions effectuated therefrom, this court could not possibly conclude
       that all vacancies in the promoted ranks both past and future must be filled
       by competitive examination, or that all noncompetitive examination for the
       promoted ranks within the Division of Fire should be strictly prohibited.

       ***

       The testing itself has already been administered and it cannot be undone
       through declaration from this court. Furthermore[,] the promotional lists
       generated from the noncompetitive examination processes have already, on
       their face, expired and can no longer be used. (See, Plaintiff’s Exhibits 2
       & 3.) Thus, the only possible right that this court could issue declaration

       2We  note that none of the intervenors filed motions in opposition to either
Local 93’s or the City’s motion for summary judgment, nor did they file their own
motions for summary judgment.
      on would be whether the promotions effectuated from the noncompetitive
      promotional lists are contrary to law. No other justiciable controversy is
      presented by the evidence before this court.

      ***

      It is important to note that the Local 93 filed their amended complaint after
      the August 6th, 2015 order of this court. As such, the Local 93, * * * had
      ample opportunity to specify its claims. However, as the evidence
      submitted by these parties and the arguments presented in the motions for
      summary judgment do not comport with the relief sought in the amended
      complaint, this court must deny the motions.

      Upon due consideration of the motions filed by these parties and after
      construing all the evidence submitted as required by Ohio law, the court
      issues the following judgment: as the amended complaint seeks both
      declaration and injunctive relief specifying that all vacancies in the
      promoted ranks of the Division of Fire, both past and future, must always
      be filled by competitive examination process, and that all noncompetitive
      examination for the promoted ranks within the Division of Fire should be
      strictly prohibited, this court finds that there is no justiciable issue or
      controversy and hereby dismisses all remaining counts in the amended
      complaint.

(Emphasis sic.)

      {¶22} It is from this order that Local 93 appeals, raising the following two

assignments of error for review.

                                   Assignment of Error One

      The trial court erred in denying Local 93’s motion for summary judgment.

                                   Assignment of Error Two

      The trial court erred in dismissing Local 93’s claims.
                                          Analysis

       {¶23} Local 93 argues the March 2014 bulletin violates the Ohio Constitution,

state and local law, and the Cleveland City Charter because the City is required to use a

competitive exam designed to test for promotion within the Division of Fire, as set forth

in Article XV, Section 10 of the Ohio Constitution, R.C. Chapter 124, Cleveland Charter

Section 128, and Cleveland Civil Service Commission Rules 4.60 and 4.70. As a result,

Local 93 maintains that the trial court erred when it denied its motion for summary

judgment and dismissed its claims.

                                     Civil Service Law

       {¶24} We note that the fundamental purpose of Ohio’s civil service laws is to

       establish a merit system, whereby selections for appointments [and
       promotions] in certain branches of the public service may be made upon the
       basis of demonstrated relative fitness, without regard to political
       considerations, and to safeguard appointees against unjust charges of
       misconduct and inefficiency, and from being unjustly discriminated against
       for religious or political reasons or affiliations.

Curtis v. State ex rel. Morgan, 108 Ohio St. 292, 140 N.E.2d 522 (1923), paragraph four

of the syllabus. To carry out this purpose, rules have been

formulated and designed to facilitate its operation. Id. at 296.

       {¶25} Relevant to the instant case, Article XV, Section 10 of the Ohio

Constitution, imposes strict limitations on the operation of civil service systems within the

state. It provides that

       [a]ppointments and promotions in the civil service of the state, the several
       counties, and cities, shall be made according to merit and fitness, to be
       ascertained, as far as practicable, by competitive examinations. Laws shall
      be passed providing for the enforcement of this provision.

 (Emphasis added.) Id.

      {¶26} R.C. 124.45 governs promotional examinations for the fire department and

provides that

      [v]acancies in positions above the rank of regular fire fighter in a fire
      department shall be filled by competitive promotional examinations, and
      promotions shall be by successive ranks as provided in this section and
      sections 124.46 to 124.49 of the Revised Code. Positions in which those
      vacancies occur shall be called promoted ranks.

      ***

      Promotional examinations for positions within a fire department shall relate
      to those matters that test the ability of the person examined to discharge the
      particular duties of the position sought, shall include a written testing
      component, and, in examinations for positions requiring the operation of
      machines or equipment, may include practical demonstration tests of the
      operation of those machines or equipment as a part of the examination.

(Emphasis added.)

      {¶27} Cleveland Charter Section 128 states that

      [t]he rules of the Civil Service Commission shall among other things,
      provide:

      (a) For the standardization and classification of all positions and
      employments in the classified service of the City, including officers and
      employees of the Civil Service Commission. Such classification into
      groups and subdivisions shall be based upon and graded according to duties
      and responsibilities and so arranged as to promote the filling of the higher
      grades, so far as practicable, through promotions.

      (b) For open competitive tests to ascertain the relative fitness of all
      applicants for appointments in the competitive class.

      ***
      (j) For promotion based on competitive tests and records of efficiency,
      character, conduct and seniority.

(Emphasis added.)

      {¶28} Section 4.60 of the City’s Rules of the Civil Service Commission provides

that “[n]on-competitive examinations shall be regarded as exceptional and may be held

only for positions requiring peculiar and exceptional qualifications of a scientific,

managerial, professional, or educational character.”

      {¶29} Section 4.70 of the City’s Rules of the Civil Service Commission provides

that “[e]xaminations for promotion shall be of the same character, conducted in the

same manner and the examination papers shall be scored in accordance with the same

standards as are prescribed for assembled open competitive examinations.” (Emphasis

added.)

      {¶30} A “‘competitive civil service examination’ has been defined as an

‘[e]xamination which conforms to measures or standards which are sufficiently objective

to be capable of being challenged and reviewed by other examiners of equal ability and

experience.’” State ex rel. Brenders v. Hall, 71 Ohio St.3d 632, 634, 1995-Ohio-106,

646 N.E.2d 822, quoting Black’s Law Dictionary 284 (6 Ed.1990), and citing State ex

rel. Delph v. Greenfield, 71 Ohio App.3d 251, 593 N.E.2d 369 (4th Dist.1991). A

competitive examination “is open to all who are eligible.” State ex rel. King v. Emmons,

128 Ohio St. 216, 221, 190 N.E. 468 (1934). Whereas, “a non-competitive examination

is one in which the examining authority selects at pleasure such candidates as he may

choose and subjects them to examination as he deems necessary.” Id.
       {¶31} The Ohio Supreme Court has stated that “[i]n a great majority of

circumstances, appointments and promotions in civil service positions must be made

pursuant to competitive examination.” Moore v. Agin, 12 Ohio St.3d 173, 174, 465

N.E.2d 1293 (1984), citing Article XV, Section 10 of the Ohio Constitution. In general,

“a civil service commission has broad discretion to determine promotion and the method

of testing, but it cannot arbitrarily dispense with a competitive examination designed to

test for merit and fitness if required by the city charter.” Local 67 I.A.F.F. v. Columbus,

10th Dist. Franklin No. 86AP-428, 1987 Ohio App. LEXIS 9741 (Nov. 17, 1987), *5.

       {¶32} Here, in its amended complaint and motion for summary judgment, Local 93

argued the City is required to use a competitive exam designed to test for promotion

within the Division of Fire, as set forth in the Ohio Constitution, R.C. Chapter 124,

Cleveland Charter Section 128, and Cleveland Civil Service Commission Rules 4.60 and

4.70. It further argued that the March 2014 bulletin violates state and local law.

       {¶33} The trial court’s decision, however, did not address the merits of Local 93’s

motion for summary judgment. Rather, the court dismissed the amended complaint,

finding no justiciable issue or controversy because the positions had already been filled

through the noncompetitive examination process.        The trial court reasoned that the

arguments presented in Local 93’s motion for summary judgment do not comport with the

relief sought in its amended complaint. In particular, the trial court mentions that Local

93 failed to reference the March 2014 noncompetitive examination bulletin in its

amended complaint. We disagree.
       {¶34} A review of Local 93’s amended complaint reveals that the March 2014

bulletin is referenced several times, including in the facts section, each count of the

amended complaint, and the prayer for relief. Local 93 also attached the bulletin to its

amended complaint. In particular, paragraph 66 of the amended complaint states that

because the subject bulletin violates

       both state and local law, and because any and all vacancies in the various
       promoted ranks of the Division of Fire must be filled by competitive
       examination, Local 93 is entitled to a declaratory judgment that all
       vacancies in the promoted ranks of Division of Fire created since the
       expiration of the most recent certified civil service eligibility lists, as well
       as any such vacancies which have yet to be created in the promoted ranks,
       must be filled by a competitive examination process in compliance with
       applicable law.

Based on the foregoing, it is clear that the arguments in Local 93’s motion for summary

judgment comport with the relief sought in its amended complaint.

       {¶35} Moreover, there is a justiciable issue for the trial court to decide because the

eligibility lists expired and the City can use the noncompetitive examination process again

to fill future positions.

       {¶36} It is important to note that the trial court previously addressed the merits of

Local 93’s amended complaint in its August 2015 opinion granting Local 93’s

preliminary injunction, which was after the positions had already been effectuated

through the noncompetitive examination process. In its opinion, the trial court analyzed

the likelihood that Local 93 would prevail on the merits of its declaratory judgment

action. The trial court found the City did not provide evidence that a deviation from

competitive examination designed to test for merit and fitness as required by the Ohio
Constitution, the Ohio Revised Code, and the Cleveland Charter was appropriate or

necessary under the circumstances.        The court further found that the potential of

irreparable harm “is quite real,” explaining that

       competitive testing requires selection amongst the highest ranked
       individuals according to performance, including the ability to make time
       sensitive and critical tactical decisions. Said decisions deal directly with
       the safety of firefighters on scene, as well as with the protection and safety
       of the community. The decisions for which battalion and assistant chiefs
       are responsible are often life and death decisions. Where lack of
       competitive testing erodes the confidence of rank and file fire fighters in the
       decisions that are being made and orders that are being implemented[.]

       {¶37} By improperly dismissing the amended complaint, the trial court did not

consider the merits of Local 93’s motion for summary judgment. “Civ.R. 56 requires

trial courts to consider motions for summary judgment in the first instance. Appellate

courts cannot cure defects by independently reviewing the record and entering the

judgment the trial court should have entered.” Anders v. Specialty Chem. Res., 121 Ohio

App.3d 348, 353, 700 N.E.2d 39 (8th Dist.1997), citing Murphy v. Reynoldsburg, 65 Ohio

St.3d 356, 604 N.E.2d 138 (1992). See also Schmucker v. Kurzenberger, 9th Dist.

Wayne No. 10CA0045, 2011-Ohio-3741. Thus, we find the trial court erred when it

dismissed Local 93’s amended complaint without addressing the merits of Local 93’s

motion for summary judgment in the first instance. On its face, the record appears to

support Local 93’s position that the City’s decision to use a noncompetitive examination

appears to be a violation of the Ohio Constitution, state and local law, and the City’s

Charter.

       {¶38} Therefore, the first and second assignments of error are sustained.
                                        Conclusion

       {¶39} Based on the foregoing, we reverse the trial court’s judgment and remand

the matter to the trial court with instructions to consider the merits of Local 93’s motion

for summary judgment consistent with this opinion.3

       {¶40} Accordingly, judgment is reversed, and the matter is remanded for further

proceedings consistent with this opinion.

       It is ordered that appellant recover of appellees costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, PRESIDING JUDGE

MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR

       3 Atappellate oral argument, both parties conceded that they were not
challenging the positions already filled by the City’s noncompetitive examination
process. Moore, 12 Ohio St.3d 173, 465 N.E.2d 1293 (1984).


958 N.E.2d 498 (2011)
MEAHL
v.
MEAHL.
No. 36A01-1104-DR-188.
Court of Appeals of Indiana
November 17, 2011.
BARTEAU, Sr.J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
MAY, J., concurs.
VAIDIK, J., concurs.


Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/14/2020 09:06 AM CST

                                                        - 675 -
                               Nebraska Supreme Court Advance Sheets
                                        304 Nebraska Reports
                                                  STATE v. STANKO
                                                  Cite as 304 Neb. 675

                                        State of Nebraska, appellant,
                                          v. Rudy Stanko, appellee.
                                                    ___ N.W.2d ___

                                        Filed December 20, 2019.   No. S-18-543.

                 1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
                    case from the county court, both the district court and a higher appellate
                    court generally review appeals from the county court for error appearing
                    on the record.
                 2. Judgments: Appeal and Error. When reviewing a judgment for errors
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                    pendently reviews questions of law.
                 3. Statutes. The interpretation of a statute presents a question of law.
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                    rial appeal brought under Neb. Rev. Stat. § 29-2315.01 (Reissue 2016)
                    is to provide an authoritative exposition of the law to serve as precedent
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                 5. Appeal and Error. Neb. Rev. Stat. § 29-2316 (Reissue 2016) limits the
                    relief an appellate court can afford, even if the exception taken by the
                    State is sustained.
                 6. Criminal Law: Courts: Judgments: Appeal and Error. A judgment of
                    acquittal in the county court shall not be reversed by either the district
                    court acting as an intermediate appellate court or upon further consider-
                    ation in an appeal to the Nebraska Supreme Court or the Nebraska Court
                    of Appeals, since the defendant has been placed legally in jeopardy in
                    the trial court.
                 7. Criminal Law: Directed Verdict. In a criminal case, the court can
                    direct a verdict only when (1) there is a complete failure of evidence
                    to establish an essential element of the crime charged or (2) evidence is
                    so doubtful in character and lacking in probative value that a finding of
                    guilt based on such evidence cannot be sustained.
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                              STATE v. STANKO
                              Cite as 304 Neb. 675

 8. Criminal Law: Directed Verdict: Appeal and Error. In an appellate
    court’s consideration of a criminal defendant’s motion for a directed
    verdict, the State is entitled to have all its relevant evidence accepted as
    true, every controverted fact resolved in its favor, and every beneficial
    inference reasonably deducible from the evidence.
 9. Criminal Law: Proof. The burden is on the State to prove all essential
    elements of the crime charged.
10. Invitor-Invitee. As a general matter, when a business holds a portion of
    its property open to the public, a person who enters the open area at a
    reasonable time and in a reasonable manner has the implied consent of
    the owner to enter the premises under a limited privilege.
11. ____. Business property owners have a common-law right to exclude
    from their premises those whose actions disrupt the regular and essential
    operations of the premises or threaten the security of the premises and
    its occupants.
12. Criminal Law: Statutes: Words and Phrases. The meaning of the
    word “know” or the word “knowingly” in a penal statute varies in the
    context in which it is used.
13. Trespass: Words and Phrases. The plain language of “knowing” in
    Neb. Rev. Stat. § 28-521(1) (Reissue 2016), in the context of enter-
    ing any building or occupied structure “knowing that he or she is not
    licensed or privileged to do so,” imposes a subjective standard focused
    on the accused’s actual knowledge.
14. Intent: Circumstantial Evidence. Knowledge, like intent, may be
    inferred from the circumstances surrounding the act.
15. Trial. An affirmative defense is established as a matter of law only if
    there are no factual issues remaining to be resolved by the trier of fact.
16. Trespass. A person entering premises open to the public has not “com-
    plied with all lawful conditions imposed on access to or remaining in the
    premises” pursuant to Neb. Rev. Stat. § 28-522(2) (Reissue 2016) if he
    or she has been lawfully barred from the premises and the business has
    not reinstated its implied consent to entry.

   Appeal from the District Court for Sheridan County, Travis
P. O’Gorman, Judge, on appeal thereto from the County
Court for Sheridan County, Paul G. Wess, Judge. Exception
sustained.
   Aaron J. Conn, Sheridan County Attorney, for appellant.
  Andrew M. Pope, of Crites, Shaffer, Connealy, Watson,
Patras & Watson, P.C., L.L.O., for appellee.
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                        STATE v. STANKO
                        Cite as 304 Neb. 675

  Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.

  Freudenberg, J.
                      NATURE OF CASE
   In this exception proceeding, the question presented is
whether the county court erred in directing a verdict in favor
of the defendant at the close of the State’s case in chief under
a complaint for first degree trespass in violation of Neb.
Rev. Stat. § 28-520(1)(a) (Reissue 2016). The defendant had
received a “stay away” letter intended to apply to all busi-
nesses owned by the parent company issuing the letter, includ-
ing two adjoining businesses owned by the same company
and located in the same building, where the defendant entered
during business hours and exited without incident when told
to leave. The county court appeared to conclude the affirma-
tive defense to criminal trespass described by Neb. Rev. Stat.
§ 28-522(2) (Reissue 2016), that compliance with “all lawful
conditions imposed on access to or remaining in” the premises
“at the time open to members of the public,” did not encom-
pass compliance with a “stay away” letter directed toward the
defendant.

                       BACKGROUND
   The State filed a complaint in county court against Rudy
Stanko for first degree trespass in violation of § 28-520(1)(a).
The complaint related to Stanko’s presence on April 3, 2017, at
a Subway sandwich shop located in the same physical structure
as a Pump & Pantry convenience store in Gordon, Nebraska.
Bosselman Enterprises (Bosselman) owns both the Pump &
Pantry and the Subway franchise at that location and had pre
viously sent Stanko a “stay away” letter.
   Section 28-520(1)(a) provides that a person commits first
degree criminal trespass if he or she (1) enters or secretly
remains (2) in any building or occupied structure, or any sepa-
rately secured or occupied portion thereof, (3) knowing that he
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                        STATE v. STANKO
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or she is not licensed or privileged to do so. In contrast, Neb.
Rev. Stat. § 28-521(1) (Reissue 2016) provides:
          (1) A person commits second degree criminal trespass
      if, knowing that he or she is not licensed or privileged to
      do so, he or she enters or remains in any place as to which
      notice against trespass is given by:
          (a) Actual communication to the actor; or
          (b) Posting in a manner prescribed by law or reason-
      ably likely to come to the attention of intruders; or
          (c) Fencing or other enclosure manifestly designed to
      exclude intruders except as otherwise provided in sec-
      tion 28-520.
Section 28-522 provides that “[i]t is an affirmative defense
to prosecution under sections 28-520 and 28-521 that . . . (2)
[t]he premises were at the time open to members of the public
and the actor complied with all lawful conditions imposed on
access to or remaining in the premises[.]”
                             Trial
   The evidence at trial adduced during the State’s case in chief
demonstrated that Stanko originally distributed a free newspa-
per at the Pump & Pantry in Gordon. After complaints from
customers, Bosselman informed Stanko that it would no longer
carry the newspaper at its stores and that Stanko could pick up
the undistributed issues.
   When retrieving the undistributed issues of his newspa-
per, Stanko was “[a]ggressive” in a verbal exchange between
Stanko and the Pump & Pantry store manager. The district
manager for the Bosselman properties in the area explained
that the aggression was such that “people working didn’t feel
comfortable with [Stanko’s] coming into the store by the things
he was saying.”
   In an effort to provide a safe environment for its custom-
ers and employees, Bosselman decided to send Stanko a “stay
away” letter. On February 20, 2017, an attorney for Bosselman
sent the certified “stay away” letter to Stanko. It was described
“RE: STAY AWAY LETTER” and advised:
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                        STATE v. STANKO
                        Cite as 304 Neb. 675

         Bosselman Pump & Pantry, Inc. and any of its parent,
      sister, or subsidiary companies are requesting that you do
      not come onto any of its properties.
         This notice follows the verbal request that you are spe-
      cifically not welcome at the Bosselman property:
         Pump & Pantry #34
         101 W Hwy 20
         Gordon, NE 69343
         Furthermore, you are prohibited from telephoning any
      Bosselman business including Pump & Pantry # 34, 101
      W Hwy 20, Gordon, Nebraska.
         If you are found on this property or if you telephone
      this business or any Bosselman business, law enforcement
      will be called and you will be charged with trespassing
      and/or harassment.
         A copy of this letter has been sent to the Gordon Police
      Department.
The letterhead listed all of the Bosselman businesses, includ-
ing Subway. The district manager testified that the letter fol-
lowed standard procedure for the company and that it could be
rescinded under certain circumstances.
   A copy of the letter was sent to the Gordon Police
Department. Bosselman management verbally communicated
to an officer of the police department that Stanko was not
allowed on Bosselman’s property. The officer testified that
Stanko later told him that he had received the letter.
   The Pump & Pantry and the Subway each have their own
signage and operating hours, but they share the same building
with the same address. There are separate entries for the Pump
& Pantry and the Subway. Once in the building, however,
people can move freely between one side and the other, unless
the Subway side is closed. When the Subway side is closed and
the Pump & Pantry side is open, there is a “little gate” block-
ing internal access. The larger entry is on the Pump & Pantry
side but opens into the hallway that adjoins the Pump & Pantry
and the Subway. Stanko’s newspaper had been distributed in
that hallway.
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                        STATE v. STANKO
                        Cite as 304 Neb. 675

   On April 3, 2017, Stanko entered directly into the Subway
side of the building in Gordon. It was undisputed that the
Subway was open to the public at that time. Stanko was imme-
diately informed by Subway staff that he was not allowed to be
there. Stanko asked why he could not order a sandwich. The
manager replied that Stanko was not allowed on the property.
Stanko left the building without further incident.
   At the close of the State’s case in chief, Stanko moved for
a directed verdict. Stanko argued that the State had failed to
prove the elements of first degree trespass because (1) first
degree trespass involves a dwelling or other place designed
for overnight accommodation; (2) unlike second degree tres-
pass, notice is not an element of first degree trespass; and (3)
the “stay away” letter warned that Stanko was not welcome
at the Pump & Pantry and was prohibited from telephon-
ing any Bosselman business, but merely “request[ed]” that
Stanko not come onto any of Bosselman’s properties. Further,
Stanko asserted that a directed verdict should be granted
because the evidence was undisputed that under the affirma-
tive defense set forth in § 28-522(2), the building was open
to members of the public and Stanko had complied with all
lawful conditions.
   Before ruling on the motion, the court rejected from the
bench Stanko’s argument that first degree trespass required a
dwelling or overnight accommodation. But the court appeared
to view Stanko’s other arguments favorably, focusing on the
affirmative defense and the absence of any dispute concerning
the facts that Stanko did not create a disturbance or otherwise
violate any lawful condition imposed upon the public at large
and that the Subway was open to the public at the time in ques-
tion. The court articulated the following:
      [I]t looks to me like, given the testimony that we have
      had thus far, Subsection 2, for example, the premises
      were at the time open to members of the public, and the
      actor, . . . Stanko, complied with all lawful conditions
      imposed upon access to or remaining in the premises . . . .
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                        STATE v. STANKO
                        Cite as 304 Neb. 675

          So what I am thinking is the real issue is whether
      or not [the Subway staff member’s] testimony that . . .
      Stanko had come in through the entry door of Subway,
      walked around until she informed him he was to leave.
      The manager came and said . . . Stanko was to leave, and
      he left. And so it seems like her testimony — and she
      testified specifically that at the time Subway was open to
      members of the public. And when asked to leave, he left.
      He didn’t do anything, you know, unlawful as far as, you
      know, breaking anything or disturbing anyone coming in
      the door or leaving when he left.
          So the issue is whether or not that affirmative defense,
      given all the evidence that we have, is sufficient to grant
      a directed verdict, or does that issue go to the jury for
      their decision? There isn’t any contrary evidence that . . .
      Stanko, you know, was unruly while he was in there or
      failed to comply with the request to leave.
   The court continued with its discussion of the affirma-
tive defense by focusing on which party has the burden of
proof, stating:
      [T]he burden of proof does not shift to the defendant. It
      stays with the prosecution to prove that either the prem-
      ises [were] not open to members of the public, or that
      . . . Stanko failed to comply with all lawful conditions, et
      cetera, et cetera. And so given that, given what I believe
      the instruction would be, it seems as though the State has
      failed to prove what in the proposed instructions is instru-
      ment or element No. 6, and, therefore, a directed verdict
      would be proper.
Instruction No. 6 is not in the record. The court asked the par-
ties whether they disagreed with “the proposition that it’s still
the State’s burden.” The court elaborated:
      The defendant has the burden to prove that it was open
      to members of the public and that he failed to — or,
      excuse me, abided by all lawful conditions imposed on
      access to or remaining on the premises and, therefore, the
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                        STATE v. STANKO
                        Cite as 304 Neb. 675

      defendant must put on evidence and then the jury would
      decide that issue.
The court later continued: “[O]ne of the elements is knowing
that one is not licensed or privileged to do so presupposes the
defense. So, in other words, there would be no affirmative
defense if a person not given notice, not to come in, didn’t
come in.” The court asked whether a person entering a busi-
ness open to the public, by virtue of entering that business, is
precluded from the affirmative defense that “it was open and I
didn’t do anything wrong while I was in there.”
   In response, the State argued that Stanko was not lawfully
following the conditions imposed upon him because he failed
to follow the “stay away” letter.
   Stanko’s counsel argued that it was the State’s burden to
show that the Subway was not open to members of the public
and to put on some evidence suggesting that Stanko may have
done “anything other than lawfully comply with all conditions
that were imposed on him at that moment.”
   After a short recess, the court granted Stanko’s motion for a
directed verdict and dismissed the case. The court did not fur-
ther articulate its reasons for reaching that conclusion.
                    Exception Proceeding
   The State appealed the county court’s decision to the district
court pursuant to Neb. Rev. Stat. § 29-2317 (Reissue 2016).
The State alleged, among other things, that the county court
had erred in directing a verdict in favor of Stanko.
   The district court dismissed the appeal. Noting that jeopardy
had already attached, the district court concluded that an opin-
ion on appeal would result in an advisory opinion with at most
“marginal precedential value” because the issues presented
were limited to the unique facts of this particular case.
   The State appealed to the Nebraska Court of Appeals pursu-
ant to Neb. Rev. Stat. § 29-2315.01 (Reissue 2016). The Court
of Appeals granted leave to docket the appeal. Though the
State had assigned several errors, the Court of Appeals granted
leave to appeal only as to the error alleged regarding the
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                             STATE v. STANKO
                             Cite as 304 Neb. 675

county court’s issuance of a directed verdict based on its inter-
pretation of criminal trespass statutes and affirmative defenses.
We subsequently moved the case to our docket.
                 ASSIGNMENTS OF ERROR
   The State assigns that the district court erred in finding that
the errors alleged by the county attorney in the appeal from the
county court were limited to the facts of this particular case,
that no issue of statutory interpretation was presented nor any
other issue upon which a decision would be helpful in future
cases, and that the application did not present an opportunity
to provide an authoritative exposition of the law that would be
sufficiently useful as precedent.
                   STANDARD OF REVIEW
   [1-3] In an appeal of a criminal case from the county court,
both the district court and a higher appellate court generally
review appeals from the county court for error appearing on the
record.1 When reviewing a judgment for errors appearing on
the record, an appellate court’s inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable; we indepen-
dently review questions of law.2 The interpretation of a statute
presents a question of law.3
                         ANALYSIS
   [4-6] The purpose of a prosecutorial appeal brought under
§ 29-2315.01 is to provide an authoritative exposition of the
law to serve as precedent in future cases.4 Neb. Rev. Stat.
§ 29-2316 (Reissue 2016) limits the relief we can afford, even
if the exception taken by the State is sustained.5 A judgment

1
    See State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).
2
    See id.
3
    State v. Thalken, supra note 1.
4
    State v. Larkins, 276 Neb. 603, 755 N.W.2d 813 (2008).
5
    See State v. Thalken, supra note 1.
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                             STATE v. STANKO
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of acquittal in the county court “shall not be reversed”6 by
either the district court acting as an intermediate appellate
court or upon further consideration in an appeal to this court
or the Court of Appeals,7 since the defendant has been “placed
legally in jeopardy”8 in the trial court. The relief in an appeal
by the State under § 29-2316 in such circumstances is limited
to determining the law to govern in any similar case that may
be pending or that may thereafter arise.9
   The Court of Appeals sustained the State’s application in
this case as to the error alleged regarding the county court’s
issuance of a directed verdict based on its interpretation of
criminal trespass statutes and affirmative defenses. We agree
that because these are issues of first impression concerning
the meaning of §§ 28-520 and 28-522, an authoritative exposi-
tion of the law is needed. The district court erred in determin-
ing otherwise.
   [7,8] This exception proceeding addresses the meaning of
§§ 28-520 and 28-522 within the context of whether the
county court erred by granting Stanko’s motion for a directed
verdict. In a criminal case, the court can direct a verdict only
when (1) there is a complete failure of evidence to establish
an essential element of the crime charged or (2) evidence is
so doubtful in character and lacking in probative value that a
finding of guilt based on such evidence cannot be sustained.10
In our consideration of a criminal defendant’s motion for a
directed verdict, the State is entitled to have all its relevant
evidence accepted as true, every controverted fact resolved in
its favor, and every beneficial inference reasonably deducible
from the evidence.11

 6
     § 29-2316.
 7
     Id. See, also, State v. Thalken, supra note 1.
 8
     § 29-2316.
 9
     See id.
10
     State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).
11
     Id.
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                              STATE v. STANKO
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   In light of the county court’s comments from the bench
before its ruling, the court appeared to grant Stanko’s motion
for a directed verdict because it believed that under the affirm
ative defense to criminal trespass described by § 28-522(2),
compliance with “all lawful conditions imposed on access to
or remaining in” the premises “at the time open to members
of the public,” did not encompass compliance with a “stay
away” letter directed toward the defendant. The court also
appeared to consider the affirmative defense and the element
of “knowing that he or she is not licensed or privileged” to be
interwoven. We will begin our analysis with the elements of
the crime charged.
   [9] The burden is on the State to prove all essential elements
of the crime charged.12 In the charges against Stanko under
§ 28-520(1)(a), it was the State’s burden to prove beyond a
reasonable doubt that Stanko (1) entered or secretly remained
in a building or occupied structure (2) with knowledge that he
was not licensed or privileged to do so.13
   The evidence demonstrated that the Subway was located in
a building or occupied structure and that Stanko entered that
building or occupied structure. Section 28-520 applies to “any
building or occupied structure, or any separately secured or
occupied portion thereof.” Section 28-520 is not specifically
crafted for, but encompasses, buildings or structures hosting
business operations open to the public.
   [10,11] As a general matter, when a business holds a por-
tion of its property open to the public, a person who enters the
open area at a reasonable time and in a reasonable manner has
the implied consent of the owner to enter the premises under a
limited privilege.14 Nevertheless, such implied consent can be
revoked.15 Business property owners have a common-law right

12
     State v. Wright, 235 Neb. 564, 456 N.W.2d 288 (1990).
13
     See id.
14
     87 C.J.S. Trespass § 151 (2018). See 75 Am. Jur. 2d Trespass § 40 (2018).
15
     See id.
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                              STATE v. STANKO
                              Cite as 304 Neb. 675

to exclude from their premises those whose actions disrupt the
regular and essential operations of the premises or threaten the
security of the premises and its occupants.16
   Stanko has never contended that Bosselman did not prop-
erly exercise its right to exclude him; the evidence at trial was
that the exclusion stemmed from an incident of disruptive and
threatening behavior. Instead, Stanko asserted in his motion
for a directed verdict that the State’s evidence was lacking in
sufficient probative value to demonstrate that he entered the
Subway “knowing” that the exclusion communicated to him by
the “stay away” letter included the Subway.
   [12] We have never before directly addressed the knowledge
element of § 28-520(1)(a). We have said that the meaning of
the word “know” or the word “knowingly” in a penal statute
varies in the context in which it is used.17 In other contexts, we
have synonymized “knowingly” with “willfully” and distin-
guished it from “accidentally” or “involuntarily,” stating that
to commit an act knowingly, the defendant must be aware of
what he or she is doing.18 In State v. Almasaudi, we held that
the phrase “receives, retains, or disposes of stolen movable
property of another knowing that it has been stolen”19 imposes
a subjective standard.20 We find that standard likewise appli-
cable to § 28-520(1)(a).
   Section 28-520 is patterned after § 2.02 of the Model Penal
Code.21 The comments to the Model Penal Code explain that
the knowledge requirement excludes from criminal liability
both the inadvertent trespasser and the trespasser who believes

16
     See Uston v. Resorts International Hotel, Inc., 89 N.J. 163, 445 A.2d 370
     (1982).
17
     See Hancock v. State ex. rel. Real Estate Comm., 213 Neb. 807, 331
     N.W.2d 526 (1983).
18
     See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).
19
     Neb. Rev. Stat. § 28-517 (Reissue 2016) (emphasis supplied).
20
     State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).
21
     Model Penal Code, § 2.02, 10A U.L.A. 94 (2001).
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                               STATE v. STANKO
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that he has received express or implied permission to enter or
remain on the premises.22 The majority of states have statu-
tory provisions adopting the “knowing” language of the Model
Penal Code or similar language, which is generally considered
to impose a subjective standard.23 Most courts with similar stat-
utes hold that “knowing that he [or she] is not licensed or privi-
leged” establishes a subjective standard knowledge of legal
authority or the consent of the person in lawful possession.24
Thus, it is not sufficient for the State to show that a defendant
should have known he was not licensed or privileged to enter
the dwelling;25 the fact finder must determine whether the facts
and circumstances would have caused the particular defendant
to “know” the requisite facts.26
   [13,14] We agree with the majority of other jurisdictions
and find that the plain language of “knowing” in § 28-521(1),
in the context of entering any building or occupied structure
“knowing that he or she is not licensed or privileged to do so,”
imposes a subjective standard focused on the accused’s actual
knowledge. That said, knowledge, like intent, may be inferred
from the circumstances surrounding the act.27 In fact, it is sel-
dom capable of direct proof.28

22
     A.L.I., Model Penal Code and Commentaries § 2.02(2)(b)(i), comment 2
     (1985).
23
     See 3 Wayne R. LaFave, Substantive Criminal Law § 21.2(c) (3d ed. 2018).
24
     See State v. Dansinger, 521 A.2d 685, 689 (Me. 1987). See, also, State v.
     Santiago, 218 N.J. Super. 427, 527 A.2d 963 (1986); State v. Bertram, 708
     N.W.2d 913 (N.D. 2006); Com. v. Namack, 444 Pa. Super. 9, 663 A.2d 191
     (1995); State v. Cram, 184 Vt. 531, 955 A.2d 528 (2008).
25
     See, Hancock v. State ex rel. Real Estate Comm., supra note 17; Model
     Penal Code, supra note 21 § 2.02(7). See, also, State v. Dansinger, supra
     note 24; State v. Santiago, supra note 24; State v. Bertram, supra note 24;
     Com. v. Namack, supra note 24; State v. Fanger, 164 Vt. 48, 665 A.2d 36
     (1995).
26
     See State v. Bernstein, 697 N.W.2d 371 (N.D. App. 2005).
27
     State v. Almasaudi, supra note 20.
28
     See Callies v. State, 157 Neb. 640, 61 N.W.2d 370 (1953).
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   The “stay away” letter listed Subway on its letterhead as
one of Bosselman’s businesses, and Bosselman’s attorney
requested in the letter that Stanko “not come onto any of
its properties.” The letter referred to the incident in which
Stanko was verbally told he was “not welcome” at the Pump
& Pantry, which shares the same address and is in the same
building as the Subway, with open access through a hallway
between the two businesses unless the Subway is closed.
Stanko acknowledged to the officer of the police department
that he had received the “stay away” letter. The State pre-
sented more than sufficient evidence for a trier of fact to find
that Stanko knew he was not licensed or privileged to enter
the Subway on the date in question. Thus, a directed verdict
for a failure of proof on the elements of the offense charged
was inappropriate.
   [15] Stanko’s motion for a directed verdict was also based
on his contention that it was undisputed he had complied with
“all lawful conditions imposed on access” and thus was enti-
tled to a directed verdict on the affirmative defense set forth by
§ 28-522. An affirmative defense is established as a matter of
law only if there are no factual issues remaining to be resolved
by the trier of fact.29
   The propriety of a directed verdict on the affirmative defense
set forth by § 28-522(2) depends on statutory interpretation of
“complied with all lawful conditions imposed on access.” We
have never addressed the meaning of this phrase. The county
court appeared to conclude that such conditions encompassed
only those imposed upon the public at large to enter an open
area at a reasonable time and in a reasonable manner, and it
concluded that because the evidence was undisputed Stanko
entered the Subway during normal business hours and was not
acting in a disruptive manner, this affirmative defense could be
decided as a matter of law. The State asserts in this exception

29
     See Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007). See, also, Hill v.
     State, 261 Ga. 377, 405 S.E.2d 258 (1991).
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proceeding that “all lawful conditions imposed” includes the
condition that a particular person for whom implied consent
has been indefinitely and lawfully revoked cannot enter the
premises until consent to enter is reinstated. We agree with
the State.
   The affirmative defense found in § 28-522, like § 28-520,
derives from the Model Penal Code. The comments to the
Model Penal Code explain that the “primary objective of the
defense is to exclude criminal prosecution for mere presence
of a person in a place where the public generally is invited,”
but the affirmative defense would not foreclose prosecution of
persons “who become undesirable due to disorderly conduct
or other misbehavior [which] itself amounts to another crimi-
nal offense.”30
   Only a few states have adopted this part of the Model Penal
Code.31 One case from one of those states appears at first
glance to support the county court’s reading of the statute.
In State v. Morse,32 the court held as a matter of law that the
defendant should be acquitted of criminal trespass under the
“open to the public” affirmative defense, despite the fact that
the defendant had been indefinitely evicted from the casino
in question for allegedly cheating at blackjack. The defendant
had not exhibited cheating or disorderly conduct on the date
he was alleged to have trespassed. The court reasoned that, as
a place of public business, the casino could lawfully exclude
patrons for cause only, and it stated that “fairness mandates
that when the patron attempts to return to the casino and acts
in accordance with all lawful conditions imposed, the patron

30
     A.L.I., Model Penal Code and Commentaries § 221.2, comment 2 at 90
     (1980).
31
     Conn. Gen. Stat. Ann. § 53a-110 (West 2012); § 28-522; N.J. Stat. Ann.
     § 2C:18-3 (West 2015); 18 Pa. Stat. Ann. § 3503 (West 2015); S.D.
     Codified Laws § 22-35-7 (2017); Wash. Rev. Code Ann. § 9A.52.090
     (West 2015).
32
     State v. Morse, 276 N.J. Super. 129, 647 A.2d 495 (1994).
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cannot be excluded, as he is not interfering with any legitimate
business interests.”33
   But, in State v. Slobin,34 a case from the same jurisdic-
tion also involving blackjack at a casino, the court rejected
as dicta any contention that an exclusion by a business open
to the public can last for no more than 24 hours. The court
then affirmed criminal trespass convictions of patrons who
were indefinitely barred from the blackjack table for repeated
disorderly conduct, despite the fact that they were not disor-
derly on the date they were alleged to have trespassed.35 Other
courts in jurisdictions with statutes adopting the language
of the Model Penal Code have similarly affirmed convic-
tions of criminal trespass when the defendants were law-
fully barred from the business premises, despite otherwise
behaving reasonably at the time for which they were charged
for trespassing.36
   [16] We hold that a person entering premises open to the
public has not “complied with all lawful conditions imposed on
access to or remaining in the premises” pursuant to § 28-522(2)
if he or she has been lawfully barred from the premises and the
business has not reinstated its implied consent to entry. While
a penal statute is to be construed strictly, it is to be given a
sensible construction in the context of the object sought to be
accomplished, the evils and mischiefs sought to be remedied,
and the purpose sought to be served.37 And in the absence of
anything indicating otherwise, statutory language is to be given
its plain and ordinary meaning.38

33
     Id. at 134, 647 A.2d at 497.
34
     State v. Slobin, 294 N.J. Super. 154, 682 A.2d 1205 (1996).
35
     Id.
36
     See, Com. v. White, 342 Pa. Super. 1, 492 A.2d 32 (1985); State v. Finley,
     97 Wash. App. 129, 982 P.2d 681 (1999). See, also, Alexis v. McDonald’s
     Restaurants of Massachusetts, 67 F.3d 341 (1st Cir. 1995).
37
     In re Interest of W.D., 232 Neb. 581, 441 N.W.2d 608 (1989).
38
     Id.
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                              STATE v. STANKO
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   Unlike that portion of § 28-522(2) describing the element
that “[t]he premises were at the time open to members of
the public,” § 28-522(2) does not limit “all lawful condi-
tions imposed” to those imposed on “members of the public.”
Rather, § 28-522(2) designates that “the actor complied with
all lawful conditions imposed on access to or remaining in the
premises.” (Emphasis supplied.)
   Thus, the plain language of § 28-522(2) encompasses condi-
tions specific to a specific patron, and we will not read into the
statute “all lawful conditions imposed [on the general public].”
It is not sensible to conclude that the Legislature wished to
shield lawfully barred former business patrons from criminal
trespass liability so long as they comply with the conditions
of the limited privilege granted by the business to the public
at large.
   The county court was correct that “one of the elements is
knowing that one is not licensed or privileged to do so pre-
supposes the defense,” inasmuch as the “open to the public”
affirmative defense is one of privilege and negates the unlaw-
ful entry element of criminal trespass.39 The county court
was incorrect, however, in its understanding of what “all
lawful conditions” under the “open to the public” affirmative
defense entails.
   Under the facts presented, there was no legal basis for grant-
ing a directed verdict in Stanko’s favor. The State presented
evidence from which the trier of fact could have determined
that Stanko was lawfully barred from the Subway, knew he
was barred from the Subway, and did not comply with the
condition that he not enter the Subway until his privilege was
reinstated. Stanko’s acquittal stands, pursuant to the limits of
relief we can afford under a prosecutorial appeal brought under
§ 29-2315.01, but the State’s exception is sustained. When
the business revokes and has not reinstated its limited implied
privilege to enter at a reasonable time and in a reasonable

39
     See State v. R.H., 86 Wash. App. 807, 939 P.2d 217 (1997).
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                       STATE v. STANKO
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manner, the defendant has not complied with all lawful condi-
tions imposed on access to or remaining in the premises, for
purposes of the “open to the public” affirmative defense set
forth in § 28-522.
                         CONCLUSION
   For the foregoing reasons, we sustain the State’s exception
to the district court’s order, which should have sustained the
exception to the county court’s judgment.
                                       Exception sustained.
   Heavican, C.J., not participating.


153 U.S. 289 (1894)
BRENNAN
v.
TITUSVILLE.
No. 902.
Supreme Court of United States.
Submitted January 5, 1894.
Decided April 30, 1894.
ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA.
*292 Mr. Roger Sherman for plaintiff in error.
Mr. George A. Chase for defendant in error.
*297 MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
The question in this case is whether a manufacturer of goods, which are unquestionably legitimate subjects of commerce, who carries on his business of manufacturing in one *298 State can send an agent into another State to solicit orders for the products of his manufactory without paying to the latter State a tax for the privilege of thus trying to sell his goods.
It is true, in the present case, the tax is imposed only for selling to persons other than manufacturers and licensed merchants; but if the State can tax for the privilege of selling to one class, it can for selling to another, or to all. In either case it is a restriction on the right to sell, and a burden on lawful commerce between the citizens of two States. It is as much a burden upon commerce to tax for the privilege of selling to a minister as it is for that of selling to a merchant. It is true, also, that the tax imposed is for selling in a particular manner, but a regulation as to the manner of sale, whether by sample or not, whether by exhibiting samples at a store or at a dwelling-house, is surely a regulation of commerce. It must be borne in mind that the goods which the defendant was engaged in selling, to wit, pictures and picture frames, are open to no condemnation, and are unchallenged subjects of commerce. There is no charge of dealing in obscene or indecent pictures, or that the pictures, or the frames, were in any manner dangerous to the health, morals, or general welfare of the community. It must also be borne in mind that the ordinance is not one designed to protect from imposition and wrong either minors, habitual drunkards, or persons under any other affliction or disability. There is no discrimination except between manufacturers and licensed merchants on the one hand, and the rest of the community on the other, and unless it be a matter of just police regulation to tax for the privilege of selling to manufacturers and merchants, it cannot be to tax for the privilege of selling to the rest of the community. The same observation may also be made in respect to the places and manner in which the sales were charged to have been made. It is as much within the scope of the police power to restrain parties from going to a store or manufactory as from going to a dwelling-house for the purposes of making a sale. We do not mean to say that none of these matters to which we have referred are *299 within the reach of the police power; but simply that the conditions on the one side are no more within its reach than those on the other, so that if, under the excuse of an exercise of the police power, this ordinance can be sustained, and sales in the manner therein named be restricted, by an equally legitimate exercise of that power almost any sale could be prevented.
But again, this license does not purport to be exacted in the exercise of the police, but rather of the taxing power. The statute under which the ordinance in question was passed is found in Laws of Pennsylvania, 1874, pages 230 to 271. Clause 4 of section 20, page 239, grants authority "to levy and collect license taxes on ... hawkers, peddlers, ... merchants of all kinds, ... and regulate the same by ordinance."
The ordinance itself is entitled "An ordinance to provide for the levy and collection for general revenue purposes of annual license taxes in the city of Titusville," and the special section requires a license for transacting business, the license being graded in amount by the time for which it is obtained. This license, therefore, the failure to take out which is the offence complained of, and for which defendant was sentenced, is a license for "general revenue purposes" within the very declarations of the ordinance. Even if those declarations had been the reverse, and the license in terms been declared to be exacted as a police regulation, that would not conclude this question, for whatever may be the reason given to justify, or the power invoked to sustain the act of the State, if that act is one which trenches directly upon that which is within the exclusive jurisdiction of the national government, it cannot be sustained. Thus, in New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 661, this court, by Mr. Justice Harlan, said:
"Definitions of the police power must, however, be taken, subject to the condition that the State cannot, in its exercise, for any purpose whatever, encroach upon the powers of the general government, or rights granted or secured by the supreme law of the land.
"Illustrations of interference with the rightful authority of the general government by state legislation which was defended *300 upon the ground that it was enacted under the police power, are found in cases where enactments concerning the introduction of foreign paupers, convicts, and diseased persons, were held to be unconstitutional, as conflicting, by their necessary operation and effect, with the paramount authority of Congress to regulate commerce with foreign nations, and among the several States. In Henderson &c. v. Mayor of New York, 92 U.S. 259, the court, speaking by Mr. Justice Miller, while declining to decide whether in the absence of action by Congress, the States can, or how far they may, by appropriate legislation protect themselves against actual paupers, vagrants, criminals, and diseased persons, arriving from foreign countries, said, that no definition of the police power, and `no urgency for its use can authorize a State to exercise it in regard to a subject matter which has been confided exclusively to the discretion of Congress by the Constitution.' p. 271. Chy Lung v. Freeman, 92 U.S. 275. And in Railroad Co. v. Husen, 95 U.S. 465, Mr. Justice Strong, delivering the opinion of the court, said that `the police power of a State cannot obstruct foreign commerce or interstate commerce beyond the necessity for its exercise; and, under color of it, objects not within its scope cannot be secured at the expense of the protection afforded by the Federal Constitution.' pp. 473, 474."
In Walling v. Michigan, 116 U.S. 446, 460, in the opinion delivered by Mr. Justice Bradley, it was said: "The police power cannot be set up to control the inhibitions of the Federal Constitution, or the powers of the United States government created thereby."
In Leisy v. Hardin, 135 U.S. 100, 108, Mr. Chief Justice Fuller commenced the opinion of the court with this general statement of the law applicable to questions of this kind:
"The power vested in Congress `to regulate commerce with foreign nations, and among the several States, and with the Indian tribes,' is the power to prescribe the rule by which that commerce is to be governed, and is a power complete in itself, acknowledging no limitations other than those prescribed in the Constitution. It is coextensive with the subject on which it acts and cannot be stopped at the external boundary *301 of a State, but must enter its interior and must be capable of authorizing the disposition of those articles which it introduces, so that they may become mingled with the common mass of property within the territory entered. Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419.
"And while, by virtue of its jurisdiction over persons and property within its limits, a State may provide for the security of the lives, limbs, health, and comfort of persons and the protection of property so situated, yet a subject matter which has been confided exclusively to Congress by the Constitution is not within the jurisdiction of the police power of the State, unless placed there by Congressional action."
And, in the still later case of Crutcher v. Kentucky, 141 U.S. 47, 59, Mr. Justice Bradley referred to the matter in these words:
"But the main argument in support of the decision of the Court of Appeals is that the act in question is essentially a regulation made in the fair exercise of the police power of the State. But it does not follow that everything which the legislature of a State may deem essential for the good order of society and the well-being of its citizens can be set up against the exclusive power of Congress to regulate the operations of foreign and interstate commerce."
So in the case of Minnesota v. Barber, 136 U.S. 313, in which a law of the State of Minnesota, ostensibly a law for inspection of meats, was declared unconstitutional, the court distinguished in the opinion by Mr. Justice Harlan between that which is mere inspection and in the legitimate exercise of the police power, and that which, under the guise of inspection, is a direct burden upon and obstruction to interstate commerce. Very similar to this was the case of Brimmer v. Rebman, 138 U.S. 78, in which also an inspection statute of the State of Virginia was set aside for the same reason.
Because a license may be required in the exercise of the police power, it does not follow that every license rests for its validity upon such police power. A State may legitimately make a license for the privilege of doing a business one means of taxation, and that such was the purpose of this ordinance is *302 obvious, not merely from the fact that in the title it is declared to be for "general revenue purposes," but also from the further fact that, so far as we are informed by any quotations from or references to any part of the ordinance, there is no provision for any supervision, control, or regulation of any business for which by the ordinance a license is required. In other words, so far as this record discloses, this ordinance sought simply to make the various classes of business named therein pay a certain tax for the general revenue of the city.
Even if it be that we are concluded by the opinion of the Supreme Court of the State that this ordinance was enacted in the exercise of the police power, we are still confronted with the difficult question as to how far an act held to be a police regulation, but which in fact affects interstate commerce, can be sustained. It is undoubtedly true that there are many police regulations which do affect interstate commerce, but which have been and will be sustained as clearly within the power of the State; but we think it must be considered, in view of a long line of decisions, that it is settled that nothing which is a direct burden upon interstate commerce can be imposed by the State without the assent of Congress, and that the silence of Congress in respect to any matter of interstate commerce is equivalent to a declaration on its part that it should be absolutely free.
That this license tax is a direct burden on interstate commerce is not open to question. In the early and leading case of Brown v. Maryland, 12 Wheat. 419, 444, in which a state law requiring an importer to take out a license and pay $50 before he should be permitted to sell a package of imported goods, was adjudged in conflict with the commerce clause in the national Constitution, Chief Justice Marshall said:
"But should it be proved that a duty on the article itself would be repugnant to the Constitution, it is still argued that this is not a tax upon the article, but on the person. The State, it is said, may tax occupations, and this is nothing more.
"It is impossible to conceal from ourselves that this is varying the form without varying the substance. It is treating a prohibition which is general, as if it were confined to a particular *303 mode of doing the forbidden thing. All must perceive that a tax on the sale of an article, imported only for sale, is a tax on the article itself... . So a tax on the occupation of an importer is, in like manner, a tax on importation. It must add to the price of the article, and be paid by the consumer, or by the importer himself, in like manner as a direct duty on the article itself would be made."
In Welton v. Missouri, 91 U.S. 275, 278, Mr. Justice Field said:
"Where the business or occupation consists in the sale of goods, the license tax required for its pursuit is in effect a tax upon the goods themselves."
In Leloup v. Mobile, 127 U.S. 640, 645, are these words from Mr. Justice Bradley:
"Of course, the exaction of a license tax as a condition of doing any particular business, is a tax on the occupation; and a tax on the occupation of doing a business is surely a tax on the business."
It is clear, therefore, that this license tax is not a mere police regulation, simply inconveniencing one engaged in interstate commerce, and so only indirectly affecting the business, but is a direct charge and burden upon that business; and if a State may lawfully exact it, it may increase the amount of the exaction until all interstate commerce in this mode ceases to be possible. And notwithstanding the fact that the regulation of interstate commerce is committed by the Constitution to the United States, the State is enabled to say that it shall not be carried on in this way, and to that extent to regulate it.
These questions of interference by state regulations with interstate commerce have been frequently before this court, and it may not be unwise to examine a few of them. Welton v. State of Missouri, 91 U.S. 275, presented these facts: Welton was indicted and convicted for acting as a peddler under a statute defining a peddler to be one "going from place to place to sell" goods not the growth, produce, or manufacture of the State, and prohibiting any one from peddling without a license. The conviction was set aside by this court. *304 It is true that the case turned largely upon the fact of discrimination between products of other States and those of Missouri, but nevertheless the decision is an adjudication that the imposition of a license tax on the peddling of goods is a regulation of commerce.
Robbins v. Shelby Taxing District, 120 U.S. 489, was a case closely in point. Robbins was engaged in soliciting in the city of Memphis, Tenn., the sales of goods for a Cincinnati firm, exhibiting samples for the purpose of effecting such sales, his employment being that which is usually denominated that of a drummer. This business was declared by a statute of Tennessee to be a privilege for which a license tax was required. Robbins was convicted of a violation of that statute. The statute made no discrimination between those who represented business houses out of the State and those representing like houses within the State. There was, therefore, no element of discrimination in the case, but, nevertheless, the conviction was set aside by this court on the ground that whatever the State might see fit to enact with reference to a license tax upon those who acted as drummers for houses within the State, it could not impose upon those who acted as drummers for business houses outside of the State (and who were, therefore, engaged in interstate commerce) any burden by way of a license tax. The opinion by Mr. Justice Bradley is elaborate and enters fully into a discussion of the question, citing many authorities. It affirms in the strongest language the exclusive power of Congress over interstate commerce; that its failure to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions, and that whatever may be the extent to which the police power of the State can go, it cannot go so far as to uphold any regulations directly affecting interstate commerce.
In the case of Leloup v. Mobile, 127 U.S. 640, a license tax sought to be imposed by the State upon a telegraph company engaged in interstate commerce, was declared beyond the powers of the State.
Asher v. Texas, 128 U.S. 129. In that case, a statute requiring from "every commercial traveller, drummer, salesman, *305 or solicitor of trade, by sample or otherwise, an annual occupation tax of $35" was declared inoperative so far as it affected one soliciting orders for a business house in another State, and the case of Robbins v. Shelby Taxing District was expressly reaffirmed.
The same doctrine was applied in Stoutenburgh v. Hennick, 129 U.S. 141, to the case of an agent of a Maryland business house soliciting orders in the District of Columbia without having taken out a license there, as required by an act of the legislative assembly of the District of Columbia.
In Lyng v. Michigan, 135 U.S. 161, 166, it was said: "We have repeatedly held that no State has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on, for the reason that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to Congress."
In McCall v. California, 136 U.S. 104, 111, it appeared that McCall was an agent in San Francisco, California, engaged in soliciting business for an Eastern railroad corporation, but not engaged in selling tickets for that company, or receiving, or paying out money on its account, yet it was held that he was engaged in interstate commerce, and the license tax imposed upon him for the privilege of doing such business was unconstitutional. Mr. Justice Lamar, reviewing the prior cases and replying to the objection that this only indirectly affected the commerce of the road, said: "The test is  Was this business a part of the commerce of the road? Did it assist, or was it carried on with the purpose to assist, in increasing the amount of passenger traffic on the road? If it did, the power to tax it involves the lessening of the commerce of the road to an extent commensurate with the amount of business done by the agent."
In Crutcher v. Kentucky, 141 U.S. 47, 61, an act of the State of Kentucky which forbade the agent of an express company, not incorporated by the laws of that State, from carrying on business without first obtaining a license from the *306 State, and, as preliminary thereto, that he should satisfy the auditor of the State that the company he represented was possessed of an actual capital of at least $150,000, was held to be a regulation of commerce and invalid. Mr. Justice Bradley, speaking for the court, observed: "The character of police regulation, claimed for the requirements of the statute in question, is certainly not such as to give them a controlling force over the regulations of interstate commerce which may have been expressly or impliedly adopted by Congress, or such as to exempt them from nullity when repugnant to the exclusive power given to Congress in relation to that commerce. This is abundantly shown by the decisions to which we have already referred, which are clear to the effect that neither licenses nor indirect taxation of any kind, nor any system of state regulation, can be imposed upon interstate any more than upon foreign commerce; and that all acts of legislation producing any such result are, to that extent, unconstitutional and void."
Within the reasoning of these cases it must be held that the license tax imposed upon the defendant was a direct burden on interstate commerce, and was, therefore, beyond the power of the State.
The case of Ficklen v. Shelby County, 145 U.S. 1, is no departure from the rule of decision so firmly established by the prior cases. At least, no departure was intended, though as shown by the division in the court, and by the dissenting opinion of Mr. Justice Harlan, the case was near the boundary line of the State's power. In that case the plaintiffs were in a general commission business, not acting for any particular firm within or without the State. Of the power of a State to impose a license tax upon such a general business there can be no question. The license required by the statute was $50 per annum, plus .10 on every $100 of capital invested, or, if no capital was invested, 2½ per cent on the gross yearly commissions; and at the time of taking out the license the licensees were required to give bond to make return and pay such 2½ per cent at the end of the year. The plaintiffs, for the year 1887, paid each the sum of $50, and having no capital, executed *307 bonds for the return and payment of the 2½ per cent. At the end of the year 1887 they failed to make such return and payment, and the authorities refused to issue new licenses for the succeeding year until that was done. Plaintiffs' contention was that, as to one of them, all, and as to the others, most, of their commissions were received on sales of goods forwarded by non-resident parties. On that ground they refused to perform the stipulations of their bonds. It was held that the tax was an entirety, and was not affected by the variable and adventitious results of business from year to year. It could hardly be contended that if the license tax exacted in advance for the privilege of engaging in such business was a fixed sum, a party paying the tax could, on a failure to secure and do any business, recover the tax so paid, for the tax is not for the business done, but for the privilege of engaging in business. So, when the plaintiffs in that case applied for their licenses at the beginning of the year, they assumed the whole liability imposed by the State. That all of it was not paid at once did not affect the measure of liability. Suppose the tax, a fixed sum, had been payable one-half at the commencement and the other half at the close of the year, would it be thought that, having paid the first half at the commencement of the year, they could resist payment of the second half on the ground that half of their commissions were received on goods shipped from outside the State? In other words, the tax imposed was for the privilege of doing a general commission business within the State, and whatever were the results pecuniarily to the licensees, or the manner in which they carried on business, the fact remained unchanged that the State had, for a stipulated price, granted them this privilege. It was thought by a majority of the court that to release them from the obligations of their bonds on account of the accidental results of the year's business was refining too much, and that the plaintiffs who had sought the privilege of engaging in a general business should be bound by the contracts which they had made with the State therefor. In the opinion in that case, by the Chief Justice, the authorities which are referred to in this opinion were cited, and the general rule was *308 announced as is here stated. We only refer thus at length to that case to show the distinction between it and this case, and to notice that in the opinion was reaffirmed the proposition that "no State can levy a tax on interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on."
For these reasons the judgment of the Supreme Court of the State of Pennsylvania is
Reversed and the case remanded for further proceedings in conformity with this opinion.