DISSENTING OPINION
By MATTHEWS, J.In the opinion of the court just announced there is assembled an unusual array of authorities indicating their views on the true rule of the common law on the subject of an innkeeper’s lien on luggage brought to the inn by a guest and accepted by the innkeeper in that relation. On this evidence the court properly draws the conclusion that “it is clear that at common law a lien may be claimed by the innkeeper upon the property of the guest, even though the same may have been stolen from a third person, especially if the innkeeper is ignorant of the theft.” Indeed the court might have said that for at least two hundred years there has been complete unanimity among jurists and authors of legal text-books on this subject. The court says, however, that in cases in which judges have made this statement the real owner had “invariably” given possession of the goods to the guest “although in some cases, through fraud or swindle.” The cases, however, were not decided on that distinction. Pointing out that distinction may weaken those cases as authorities, but it presents no evidence that the rule was ts the contrary.
That such was the common law rule is conceded by all the authorities including Van Zile on Bailments, whose reasoning is followed by the court in reaching its conclusion against the lien. Van Zile quotes extensively from Wyckoff v Southern Hotels Co., 24 Mo. App. 382, in setting forth his views as to the inherent injustice of the common law lien of an innkeeper on stolen property. That ease did not involve the common law at all. Missouri had enacted a statute on the subject and it was that statute that was under construction, That statute provided that innkeepers should have a lien upon “the baggage and other valuables of their guests or boarders brought into such hotel.” It also gave the innkeeper a lien upon the wages of the guest and in other ways enlarges the rights of the innkeeper and provided remedies unknown to the common law. In construing this statute the court considered the state of the law in the absence of any statute, in other words, the common law, and at page 386 said that at common law the innkeeper had a lien on the goods brought to the hotel by the guest “although the goods may have been the property of some third person, provided the innkeeper was not aware that the goods were not the property of the guest.” And at page 387 said: “Such beiug undoubtedly the common law, the only remaining inquiry is whether our statute relating to the lien of hotel, inn and boarding house keeper was designed to restrict the common law rule.” The court then held that it was so designed. It was in that connection that the court used the language quoted in the opinion of the court expressing the view that the common law rule did not conform to plain principles of justice and doubting the constitutionality of such a rule.
Apparently the legislature of Missouri did not agree with the court in Wykoff v Southern Hotel Co., supra. because it amended the law as construed in that case so as to reinstate the common law rule. It was the new statute that was assailed on the ground that it was unconstitutional in Lines Music Co. v Holt, 332 Mo. 749, 60 SW (2d) 32; 61 SW (2d) 326. The court had no difficulty in sustaining the constitutionality of the statute.
Van Zile cites from other cases apparently as suppoi'ting his text. Not one of them involved an innkeeper’s lien. Each of them involved the question of whether *75a wrongdoer could confer a lien upon property not owned by him in favor of a common carrier. In none of them is there a denial of the common law rule in favor of an innkeeper. Those cases do hold that at common law a person having no title and representing no one having title could not confer a lien upon a common carrier.
But we are only incidentally concerned with the common law rule because there is an Ohio statute covering the subject. As is said by the court this statute is couched in “broad language.” It is §3984 GC, in which it is enacted that the lien of the innkeeper shall cover “the baggage or other property in and about such inn belonging to or under the control of his guest.”
In Thoma v Remington Typewriter Co., 11 C.C. (n.s.) 174, it is said that this statute is declaratory of the common law. If so, it confers a lien, even though the goods had been stolen, provided the innkeeper had not become a party to the crime by receiving them, knowing them to have been stolen.
Without considering the common law in construing this statute, what is the natural import of the words used? In Webster’s New International Dictionary “Control” is defined as “To exercise restraining or directing influence over; to dominate, regulate; hence to hold from action; to curb; subject; overpower.” There is no element of consent or permission or lawfulness in this definition. It repels the suggestion that any such element is necessary. If the legislature had intended to limit the lien to property owned by the guest, it would not have included the disjunctive “or” followed by the phrase “under the control” of the guest. If such is the intent, those words are entirely superfluous.
It is conceded that the phrase has some meaning, but that it should be limited to goods under the control of the guest by and through the consent of the real owner. No such qualifying phrase is found in the statute, and to so limit the meaning seems to me to be judicial legislation. Property taken and carried away by a thief is just as much under the control of the thief as property obtained and carried away by a swindler; and it is conceded that a swindler could confer a lien upon an innocent innkeeper. While an owner in possession may use force in defending his possession, and may likewise use force in the immediate recapture of property, he may not use force to recover his property even from a thief who has carried it from his presence. In such case, his resource must be to the courts. He is in the same position as the defrauded person in that respect. 2 R.C.L. 560. And, in the meantime, the property is “under the' control” of the thief or swindler, and by the words of the statute the innocent innkeeper has a lien upon them, if he receives them into his inn in that capacity. Of course if he knows the property is stolen, he could not receive it in the relation of innkeeper to his guest. His status in that situation is fixed by law as an accessory after the fact to a crime, — as a receiver of stolen property. An innkeeper has no more right to violate the criminal law than any one else. We are not presented here with that sort of a case.
In the situation created by a thief or swindler who passes the property on to an innocent third person, a problem is presented where one of two innocent persons must suffer. It is fairly debatable which, if either, occupies the better position on fundamental principles of justice. If one must suffer, the determination of which one might properly be made to revolve on the question of the best interest of society. The decision of that question is a matter of policy to be determined primarily by the legislature and, if determined by it, the courts have no right to question the wisdom of the decision. It is only when the legislature has not spoken that the courts have a right to consider the question of public policy.
In the wisdom of the legislature the common law as found in text-books and opinions of courts may be permitted to control the conduct of persons; it may place the common law rule in the form of a statute, or it may by statute enact a different rule. That is governing. In Mondou v New York, N. H. & H. R. Co., 223 U. S. 1, 38 L.R.A. (n.s.) 44, the court at page — says:
“A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will * * * of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, • and to adapt it to the changes of time and circumstances.”
Whenever one of two innocent persons must suffer a hardship necessarily must result, no matter what rule is adopted. The *76legislature has said by §5984, GC, that as between the innocent owner and the innocent innkeeper sound public policy requires that the claim of the latter should prevail. It has an abundance of historic precedent for its decision. The courts have no right to disturb it.
For these reasons, I do not concur in the judgment of affirmance.