author: COOK, J.

text:
    MUNICIPAL CORPORATIONS.
    [Noble (7th) Circuit Court,
    November Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    Sarah M. Hurst v. Belle Valley (Vil.).
    Certificate of Funds Available Required by Burns Haw to Appropriate Money to Build Dyke.
    An ordinance of a municipal corporation appropriating private property for the building of a dyke is an ordinance for the expenditure of money and is void if no certificate has been previously filed and recorded by the proper officer as required by Rev. Stat. 2702 (Lan. 3999; B. 1536-205), known as the Burns law; and an injunction will be granted restraining the municipality from proceeding in the probate court to assess compensation to the landowner for the land appropriated.
    [Syllabus by the court.]
    Error to Noble common pleas court;
    Okey & Frazier, for plaintiff in error:
    Cited and commented upon the following authorities: Ryan v.. Hoffman, 26 Ohio St. 109; Rhoades v. Toledo, 3 Circ. Dec. 325 (6 R. 9) : Easton v. Hyde Park, 9 Dec. 512 (6 N. P. 257); McGrew v. Elm-wood Place, 6 Circ. Dee. 106 (17 R. 676) ; Bond v. Madisonville, 1 Circ. Dec. 581 (2 R. 449); Findlay v. Pendleton, 62 Ohio St. 80 [56 N. E_ Rep. 649].
    Dye & Smith, for defendant in error.
   COOK, J.

The council of the incorporated village of Belle Valley in this county duly passed a resolution and also an ordinance to build a dyke within said corporation and also to appropriate the private property of the plaintiff, Sarah Hurst, for that purpose, the costs of the same to be paid out of the general fund. After the passage of such resolution and ordi- ■ nance a proceeding was commenced by the solicitor on behalf of the village in the probate court of the county to assess the compensation to be paid to plaintiff as damages for such appropriation.

Immediately upon the commencement of such proceeding, plaintiff instituted a suit in the common pleas court to enjoin the village from prosecuting such action. A temporary injunction was granted by the common pleas court which, upon final hearing, was dissolved and the case is now before us on error.

.At the time of the passage of the resolution and ordinance no eer-tificate such as is provided in Rev. Stat. 2702 (Lan. 3999; B. 1536-205) had been filed with council, that the money necessary to pay the amount of the compensation to the plaintiff in error or the costs of the proceeding was in the treasury, and that was the ground upon which the injunction was sought in the court below and the only reason assigned before us why the injunction should have been allowed.

The question is therefore directly made: Whether or not in such case such certificate must be filed and recorded before the passage of the resolution and ordinance and, if not, is such resolution and ordinance void. No serious contention is made but that if the case is one that is controlled by Rev. Stat. 2702 (Lan. 3999; B. 1536-205) that the proceedings in council were void and hence the injunction should have been •allowed.

There has been no direct decision by our Supreme Court upon this ■question and the decisions by our circuit courts are directly opposed to each other.

In the case of Tyler v. Columbus, 3 Circ. Dec. 427 (6 R. 224), it was decided in the second circuit that when a city council deems it necessary to condemn private property for street purposes, that the statute does not apply and no certificate is necessary, while in the case of Rhoades v. Toledo, 3 Circ. Dec. 325 (6 R. 9), the court in the sixth circuit held directly the reverse. These are the only two cases we find reported that have been decided by the circuit court of the state where the question of the appropriation of private property is directly involved.

From the opinion in the case of Tyler v. Columbus, supra, it appears that the reason for the decision in that case was, that in appropriation cases damages are necessarily indeterminate, that therefore the amount in the treasury necessary for the improvement could not be ascertained .and that therefore the legislature did not intend that a certificate should be filed in such cases. It might be said in answer to that, as it was said in Rhoades v. Toledo, supra, all that was required is for the auditor to exercise his best judgment.

Without entering into a discussion of the controversy, we have only to say that that difficulty has been considered in several adjudicated > cases since the determination of the ease of Tyler v. Columbus, supra, in which cases that objection is held to be more fanciful than real.

In the case of Bond v. Madisonville, 1 Circ. Dec. 581 (2 R. 449), first circuit, it was held that a contract made between a village and an attorney at law for professional services, he to receive for his services the reasonable value thereof, was held to be within the statute, absolutely void and that no recovery could be had for the value of the services rendered by the attorney. The opinion of chief justice Smith makes a strong ease and is difficult to answer.

The case of Braman v. Elyria, 26 O. C. C. 731, affirmed, without report, Braman v. Elyria, 73 Ohio St. 346, is not applicable to this case, as in that case a certificate was filed and recorded and the only question was as to whether or not it was so done in time.

We have said that there is no direct decision of our Supreme Court upon this question, but at the same time there have been decisions that indirectly tend to show that an ordinance for the appropriation of land for a public improvement is controlled by the statute.

In the ease of Ryan v. Hoffman, 26 Ohio St. 109, the section of the statute was under consideration. The principal question involved was whether or not it applied to cases where the ordinance was passed prior to the date of the act or to ordinances passed .subsequent to the date of the act appropriating money to pay expenditures made under such prior ordinances, and it was held it did not, but in the opinion it is said, page 123:

“The ordinance condemning the land in question, is an ordinance for the expenditure of money, but it was passed and took effect in September, 1872, long before the law in question was passed, and therefore it is not affected by it: and the passage of the ordinance of March, 1875, appropriating money to pay for the land condemned under the former ordinance was not in contravention of Sec. 3 of the law. ’ ’

In the case of Cincinnati v. Holmes, 56 Ohio St. 104 [46 N. E. Rep. 514], Judge Minshall says, page 113:

“It may be said that the indebtedness is not created until a contract for the improvement is made. It is true that it does not exist in favor of any particular creditor, nevertheless, on making the order the' successive steps — the advertisement for bids, action on them, the letting-of the work and making of the required contract — all follow as a necessary sequence under the statute. If the council should refuse to take any of these steps without cause, it could be compelled by mandamus' to do so. Hence, if the Bums law can have any application to this statute, according to its spirit it must apply to the order of the council that the improvement be made. It is this order that fixes and entails the indebtedness upon the corporation. It is in fact an order for the expenditure of money.”

We are therefore of opinion that an ordinance for the appropriation of private property such as is involved in this case is an ordinance for the expenditure of money and that such ordinance is void for the reason that no certificate was filed and recorded as required by the act.

The judgment of the court of common pleas must therefore be reversed, and the court proceeding to render such judgment as that court should have rendered, a perpetual injunction is granted as prayed for in the petition.

Burrows and Laubie, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    .SHERIFFS — FEES', COMPENSATION AND SALARIES.
    [Guernsey (7th) Circuit Court,
    November Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    GUERNSEY Co. (Comrs.) v. T. M. Thurlow.
    Sheriff upon Acquittal or Accused on Change of Venue not Entitled to Fees FROM COUNTT OF INDICTMENT.
    Where there is a change of venue and the accused is acquitted, the sheriff ■has no claim for fees, under Rev. Stat. 7264 (Lan. 11018) as amended, '•93 O. L. 7, against the county where the indictment was found; his fees in such cases being provided for by Rev. Stat. 1231 (Lan. 2606).
    i'l Syllabus approved by the court.]
    Error to Guernsey common pleas court.
    'C. S. Sheppard, for plaintiff in error:
    Cited and commented upon the following authorities: Slingluff 'v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574]; State v. Meigs Co. (Comrs.) 7 Circ. Dee. 351 (14 R. 26) ; Kyle v. Greene Co. (Comrs.) 26 Ohio St. 46; Clark v. Lucas Co. (Comrs.) 58 Ohio St. 107 [50 N. E. Rep. 356]; State v. Hawkins, 44 Ohio St. 98 [5 N. E. Rep. 228]; Anderson v. Jefferson Co. (Comrs.) 25 Ohio St. 13; McClave v. Miller, '25 Ohio St. 14; Richardson v. State, 66 Ohio St. 108 [63 N. E. Rep. 593]; Columbus St. Ry. v. Pace, 68 Ohio St. 200 [67 N. E. Rep. 490]; State v. Dudley, 1 Ohio St. 437; Buckingham v. Railway, 10 Ohio St. 25; Robbins v. State, 8 Ohio St. 131; Dodge v. Gridley, 10 Ohio St. 173; Eggleston v. Harrison, 61 Ohio St. 397; State v.. Union Tp. (Tr.) 8 Ohio St. 394; Ross Co. (Comrs.) v. State, 49 Ohio'St. 373 [34 N. E. Rep. 735],
    Turnbaugh & Eagleson and A. M. Morris, for defendant in error.
   COOK, J.

T. M. Thurlow, the sheriff of Noble county, obtained a judgment by consideration of the court of common pleas against the board of county commissioners of this county for serving subpoenas and other services rendered by him in the case of the State v. Barber. Barber was indicted for a felony in Guernsey county and obtained a change of venue to Noble county, where he was tried and acquitted. Thurlow presented his bill for his services to the board of county commissioners of this county which was rejected, and an appeal was taken to the common pleas court; and that court rendered judgment in his favor for the amount of his claim.

Thurlow claims, that he is entitled to payment of his claim under Rev. Stat. 7264 (Lan. 11018) as amended, 93 O. L. 7.

The section as amended provides that,

“The cost accruing from a change of venue, including the compensation of the attorneys appointed to assist the prosecuting attorney, and the reasonable expense of the prosecuting attorney incurred in consequence of such change of venue, and also, including the fees of the clerk of the court and the sheriff, and the jury fees of the jury, * # * to be paid by the commissioners of the county in which such indictment was found.”

The part of the amendment specially relied upon is: “And also, including the fees of the clerk of the court and the sheriff, and the jury fees of the jury, * * * paid by the commissioners of the county in which such indictment was found.”

We do not see that this amendment affects the original enactment at all. The section as it originally read (Rev. Stat. 1880) was:

“And the costs accruing from a change of venue, including the compensation of the attorneys appointed to assist the prosecuting attorney, and the reasonable expenses of the prosecuting attorney incurred in consequence of such change of venue, shall be allowed and paid by the commissioners of the county in which such indictment was found.”

Under the section as it then read the matter was before our Supreme Court, Ross Co. (Comrs.) v. State, 49 Ohio St. 373 [34 N. E. Rep. 735], and it was held that the sheriff' of the county where the trial was had was not entitled to be paid his costs by the county where the indictment was found in cases where the state fails to convict; that the only compensation he was entitled to is the allowance provided by Rev. Stat. 1231 (Lan. 2606) which is payable out of the county treasury of the county where the trial is had. As a fact the sheriff had no fees or costs that he could claim, as the accused was acquitted; for in such cases the «court of common pleas, under Rev. Stat. 1231 (Lan. 2606), makes an .allowance to the sheriff for his services to he paid out of the county treasury of the county where, the trial is had. Noble county is making no claim, and very probably could not do so, as there is no specific provision of law under which she could make any claim.

The county commissioners did right in rejecting the claim. Whether the remedy by appeal was the proper one, it is not necessary for us to inquire, as.-defendant in error has no claim that he can enforce.

The judgment of the common pleas court will be reversed and the-proceeding of defendant in error dismissed at his costs.

Burrows and Laubie, JJ., concur.


author: WILDMAN, J.

text:
    ASSESSMENTS.
    [Lucas (6th) Circuit Court,
    March 21, 1908.]
    Parker, Wildman and Kinkade, JJ.
    William H. Prentice et al. v. Toledo (City).
    1. Burden or Proof on One Attacking Assessment.
    Street paving assessments will not be enjoined as excessive and inequitable unless so established by a preponderance of proof.
    2. Uses oe Property to be Consideeed in Making Assessments.
    The potential as well as the present use of property is to be taken into account in making assessments' for public improvements.
    3. Conflict of Evidence as to Values of Property Impeoved.
    An assessment for a street improvement of $943.59 upon property estimated after the improvement by complaining owner’s witness at $2,800, being but slightly above the 33% per cent thereof, will not be interfered with as being in contravention of Sec. 53 of the municipal code of 1902 (Rev. Stat. 2373; Lan. 3604; B. 1536-213), there being other evidence that the assessment is less than 33% per cent of the value of the property as enhanced by the improvement.
    [Syllabus approved by the court.]
    Appeal from Lucas common pleas court.
    F. H. Geer, for plaintiffs:
    Cited and commented upon the following authorities: Walsh v. Sims, 65 Ohio St. 211 [62 N. E. Rep. 120]; Norwood y. Baker, 12 O. F. D. 228 [172 U. S. 269; 19 Sup. Ct. Rep. 187; 43 L. Ed. 443]; State v. Newark, 37 N. J. Law 415 [18 Am. Rep. 729] ; Hammett v. Philadelphia, 65 Pa. St. 146 [3 Am. Rep. 615]; Tide-Water Go. v. Coster, 18 N. J. Eq. 518 [90 Am. Dee. 634]; Dillon, Mun. Corp. Sec. 761; Griswold v. Pelton, 34 Ohio St. 482; Chamberlain v. Cleveland, 34 Ohio St. 551; Schroder v. Overman, 61 Ohio St. 1 [55 N. E. Rep. 158; 47 L. R. A. 156]; Walsh V. Barron, 61 Ohio St. 15 [55 N. E. Rep. 164; 76 Am. St. Rep. 354];
      Cincinnati, L. & N. By. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229]; Davidson v. New Orleans, 96 U. S. 97 [24 L. Ed. 616]; Cincinnati, N. 0. & T. P. By. v. Kentucky, 115 U. S. 321 [6 Sup. Ct. Rep. 57; 29 L.. Ed. 414]; Daytonv. Bauman, 66 Ohio-St. 379 [64 N. E. Rep. 433]; Ayers-v. Toledo, 26 O. C. C. 766; Breuer v. Cincinnati, 52 Bull. 281; Cincinnati v. James, 55 Ohio St. 180 [44 N. E. Rep. 925]; Pike v. Cummings, 3d Ohio St. 213; Groesbeck v. Cincinnati, 51 Ohio St. 365 [37 N. E. Rep. 707]; Blair v. Cary, 24 O. C. C. 560; Birdseye v. Clyde, 61 Ohio St. 27 [55 N. E. Rep. 169]; Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428] ; Price v. Toledo, 25 O. O. C. 617; Cincinnati v. Shoemaker, 25 O. C. C. 256; Stafford v. Eamston, 2 Brod. & Bing. 691.
    C. S. Northup and O. W. Nelson, for defendants.
   WILDMAN, J.

This is a suit brought here by appeal to enjoin paving assessments on Central avenue, between Collingwood avenue and Cherry street. A number of plaintiffs, property owners, have united in bringing the suit, claiming that the assessments upon their several properties are excessive and inequitable, the assessments having been made according to benefits.

Of course' the burden rests upon the parties attacking the assessments made in behalf of the municipality; that burden must be sustained by a preponderance of the evidence; and, as previously held by this court and probably thoroughly established by other adjudications, it is not sufficient in order to justify the stopping of the collections that this court should conclude that if we were the assessing-tribunal we would have adopted somewhat different measures, or would have made lighter burdens upon the properties involved. We are not disposed to depart from the conclusions arrived at in the ease of Price v. Toledo, 25 O. C. C. 617, in which, on page 623, if my memory serves, me, Judge Hull used some quite strong language in defining the province of the court as to interference with the discretion of the assessing committee, holding, in substance, that in order to justify an interference by the courts, the assessments must be so grossly excessive as to indicate fraud. It may not be necessary to go to that length in the present case, and probably is not. It is sufficient to say that the plaintiffs have not maintained their claim by a preponderance of the evidence, which is required to justify the granting of an injunction, that the assessing body have so assessed the propérties as to abuse its discretion; and without some abuse of that discretion which is given by the law, we are not justified in interfering.

If we look at mere numbers of witnesses, which may be taken into .account in connection with the character of their testimony, and the other circumstances of the case, we find that a decided majority of persons qualified to speak, testified in behalf of the defendants, and in their estimates of the benefits to the properties involved, nearly, if not quite all of the' defendant’s witnesses testified that the benefits are •greater than as found by the assessing board. The witnesses called for the plaintiffs and also for the defendants are persons who have had more or less experience in buying and selling real estate; it has been their business for years. It is apparent that the notions of men who are frequently called upon to determine the market values of real ■ estate greatly vary among themselves. There is, to illustrate, in the ^present case, one property in which the estimates of benefit, by •reason of this pavement, are varied all the way fiqom $100 to $1,500; ,.and this by the testimony of men more or less qualified to speak, by reason of their experience as to the market values of properties. It is not surprising, when we see so wide a range of opinions in a matter ■which cannot be fixed with absolute- certainty by any mathematical process, that the board of public officers should arrive at estimates of value which might not entirely concur with those which the judges upon the bench might be disposed to adopt if the question came to them in the first instance.

Some criticism was made in cross-examination, or by way of suggestion to the court by counsel for the plaintiffs, of the evidence of several of the witnesses for the defense, upon the ground that they had not inspected the interiors of houses upon property assessed and so become thoroughly familiar with the values of properties immediately 'before and immediately after the paving improvement. We think, 'however, that too much emphasis has been placed by counsel for the plaintiff upon this feature- of the case. It is not of so much consequence what úse has been made of property by improvements that have been placed upon it, as the potential value of the lot as affected by •the improvement for which the assessment is made. In the case of McMaken v. Hayes, 29 O. C. C. 535, in the opinion it is said, page 540:

“We think that it may justly be said' that it is not altogether the present use that is made of the property but its potential use that fixes the market value of property and that such use is to be taken into account by the persons assessing the benefits.’’'

But even if the use that has already been made of the property and improvements that have been placed upon it are to receive consideration by the persons assessing the benefits in determining the extent to which the property is enhanced in value by the improvement, we do not think that the fact that some of the witnesses have not visited the interiors of the houses, should play any very large part in determining the extent to which the property has been enhanced in market value by the pavement.

¥e have had more trouble with the assessment upon a piece of property owned by the plaintiff, Prentice, having a frontage of 150 feet along the pavement, than with any of the other properties assessed and involved in this litigation. There is an assessment upon this property of $943.59, and I think I may say for the other members of the court, as I do for myself, that if we were making this assessment, it is altogether likely we should not have placed so heavy a burden upon this particular property. Among the numerous witnesses who have testified, however, there are three who have made the benefits to this property larger than the amount which has been imposed. Mr. Dale testified that it is benefited to the extent of $1,000; Mr. Jones concurs in this estimate, and the witness Emrich places the benefit as high as $1,500. It is claimed, however, with regard to this particular piece of property and it the only one in the case as to which this question has arisen, that the assessment upon it is more than 33 1-3 per cent of the value of <the property as improved by the pavement and that such an assessment is in contravention of the statute (Sec. 53 of the municipal code of 1902; Rev. Stat. 2373; Lan. 3604; B. 1536-213). But here again is a conflict in the evidence. Dale, Wilson, Emrich and Jones all estimate the value of the property as improved at more than three times- the amount of the assessment; while one of the defendant’s witnesses, Mr. Fuller, estimates the value of the property as improved at $2,800, one-third of which would be very slightly below the amount of the assessment which has been placed upon the property.

We are not disposed to say that there has been such an abuse of discretion in assessing this property as would justify the interference of the court. We have concluded to render the same judgment in regard to-it as to the rest. We refuse the injunction as to all of the assessments. The petition of the plaintiffs will be dismissed at their costs.

Parker and Kinkade, concur.


author: LAUBIE, J. COOK, J.,

text:
    OFFICE AND OFFICERS.
    [Carroll (7th) Circuit Court,
    November, 1907.]
    Burrows, Laubie and Cook, JJ.
    State ex rel. D. O. Rutan et al. v. George S. Tinlin et al.
    1. Auditors not Entitled to Additional Compensation fob Furnishing As--sessob’s Blanks. 1
    Public officers are not entitled to compensation, in addition to their salary, for services required of them by statute, unless the statute provides-therefor in express terms; and as Rev. Stat. 1029 (Lan. 2369) does not expressly so provide, auditors are not -entitled to such additional compensation for services in furnishing blanks to assessors.
    2. COMMISSIONERS ALLOWING COMPENSATION IN ABSENCE OF RATES PRESCRIBED-Held Unlawful.
    If the provisions of such section could be construed to mean that the auditors should receive such extra compensation for their services in furnishing such blanks, as no rate therefor is named therein, or in the sections that specify the rates by which all services of such auditors shall be estimated, Rev. Stat. 1077, 1078 (Lan. 2416, 2417), forbid the allowance ■ by the commissioners of such compensation, and render the same-unlawful.
    [Syllabus approved by the court.]
    Appeal from Carroll common pleas court.
    W. L. Handley and J. C. Oglevie, for plaintiff.
    Pimple & Eckley, for defendant:
    In determining the question as to whether there is any statutory provision upon which to base a legal claim for compensation for services rendered by the auditor in furnishing blanks to the assessors, we-desire to 'call attention to Rev. Stat. 1029, 1528 and 2749 (Lan. 2369, 3008, 4095). The purpose and province of Rev. Stat. 3,029 (Lan. 2369) is to provide for the allowance of reasonable compensation to the auditor for his services rendered, in furnishing the several assessors with necessary blanks, and that it was the purpose and province of Rev. Stat. 1528 (Lan. 3008) to provide for the payment of the cost of the blanks, themselves.
    Construing the provision of Rev. Stat. 1029 (Lan. 2369) that “the auditor shall furnish the several assessors all blanks, and all reasonable charges therefor, shall be allowed by the county" commissioners and paid1 out of the county treasury;” the word “therefor,” as used in this section is an adverb, and means “for this, that or it,” therefore inserting-the meaning of the word in lieu of the word itself, you have the substance of the provision as follows: “All reasonable charges,” for this,, that or it, viz., for the auditor furnishing the several assessors alL blanks, “shall be allowed by the county commissioners, and paid for out of the county treasury. ” In other words, it is equivalent to saying the auditor shall furnish the several assessors all necessary blanks, and for this (furnishing) he shall be allowed all reasonable charges.
    It is plain that the charges authorized to be allowed by this section are not for material, but for doing something, and that something is the services rendered by the auditor in furnishing to the several assessors the necessary blanks.
    Construing the provision of Rev. Stat. 1528 (Lan. 3008) that “the county auditor shall furnish to all assessors all blanks, which shall be paid for out of the county treasury;” grammatically, there can be no doubt that the word “’blanks” is the antecedent of the word “which,” .and it necessarily follows that it is the blanks for which payment is provided by this section.
    We therefore submit that a plain reading of the. language used in these two sections makes it clear, that the one was intended to authorize a reasonable compensation to the auditor for his services rendered in furnishing blanks to the several assessors', and that the other was intended to authorize and provide for the payment of the blanks so furnished: but if there is any doubt as to this being the correct construction of the respective sections, we think a careful consideration of the origin of the provisions as now contained in Rev. Stat. 1029, 1528 and 2749 (Lan. 2369, 3008, 4095), will wholly remove such ■doubt.
    The provisions of Rev. Stat. 1029 (Lan. 2369), therefore, having furnished a legal basis for the claim involved herein, and the same having been regularly presented to, considered and allowed by the county ■commissioners, we submit that their action is absolutely final, unless the same is impeached for fraud or gross abuse of power, neither of which elements can be found in this case; that the action of the commissioners is final herein, see the following: Wood Co. {Comrs.) v. Pargillis, 6 Circ. Dee. 717 (10 R. 376) ; Ridenour v. State, 7 Circ. Dec. 481 (14 R. 393): Plessner v. Pray, 8 Dec. 149 (6 N. P. 444); Hamilton Co. {Comrs.) v. Noyes, 35 Ohio St. 201; Jones v. Lucas Co. {Comrs.) 57 Ohio St, 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710]; Vindicator Ptg. ■Co. v. State, 68 Ohio St. 362 [67 N. E. Rep. 733].
    That the statute of limitations has no'effect upon, or application to, this ease whatever, we think is made clear by the following: Fisher v. Mossman, 11 Ohio St. 42; Taylor v. Thorn, 29 Ohio St. 569; Belmont, Co. {Comrs.) v. Ziegelhofer, 38 Ohio St. 523; Stewart v. Logan Co«■
      (Comrs.) 1 Circ. Dec. 404 (2 E. 134) ; Taylor v. Fitch, 12 Obio St. 169 Chinn v. Fayetie Tp. (Tr.) 32 Obio St. 236.
    The legislature intended that the auditor could receive no compensation for services, unless they were of the character that a claim therefor could be made out in detail according to the rates named in preceding Eev. Stat. 1077 (Lan. 2416). Jones v. Lucas Co. (Comrs.) 57 Ohio St. 189 [48 N. E. Eep. 882; 63 Am. St. Eep. 710]. Eevised Statutes 1077 and 1078 (Lan. 2416, 2417) were applicable only to those sections in Chap. 4, of Title 8, which provided a rate of compensation.
    Denied that an auditor could not be paid for any services except that for which he could make out a claim in detail according to the rates, named in Eev. Stat. 1069, 1071, 1073, 1074 and 1075 (Lan. 2410 to 2414), the only sections that precede Eev. Stat. 1077 (Lan. 2416) which provide a rate. These sections commencing with 1536-91, and including 2625-3502, 4064, 4451a, 4506, 4507 and 4849, all provide for lawful compensation to the auditor, and yet not one of them provides for the rates referred to in Sec. 1077.
   LAUBIE, J.

The ease of State of Ohio, for the use of Carroll County, by D. O. Rutan, et al. v. George S. Tinlin, et al., is brought here upon appeal and submitted to the court upon the evidence and the arguments of counsel.

The action is brought for the purpose of enjoining payment of a certain sum of money to Mr. Tinlin, auditor of this county. This claim was presented by him to the present commissioners; they allowed it and ordered it paid, and this suit is brought to restrain that payment. The claim was for services in furnishing blanks to the seventeen assessors in the county, while he was such auditor in the years 1900 to 1905, inclusive. The amount claimed by the auditor was four dollars each year for each assessor, making a total of $408, which the commissioners allowed, under Rev. Stat. 1029 (Lan. 2369), which reads as follows:

“The auditor shall furnish the several assessors all blanks, necessary for their use in the discharge of the duties enjoined on them by law, and all reasonable charges therefor shall be allowed by the county commissioners, and paid out of the county treasury.”

It is therefore up to us to determine as a matter of law whether or not the auditor was entitled to pay for such services, and whether the commissioners had authority to order its payment. It has long been the duty of county auditors to furnish blanks to assessors for specific or for general purposes, but the forms therefor were and are furnished such auditors by the auditor of state (Rev. Stat. 2749; Lan. 4095) ; so that tbe services performed by the auditor in this instance .were simply-1 procuring the printing of the blanks, according to the forms thus furnished, and distributing them to the assessors, as provided in Rev. Stat. 2749 (Lan. 4095), as well as in Rev. Stat. 1029 (Lan. 2369).

Said Sec. 1029, may possibly be construed in more ways than one,, and its construction depends upon the meaning to be ascribed to the-phrase "all reasonable charges therefor:” To what does it refer?-' What is to be paid for ?

The principal definitions of the word "charge,” as thus used, are-price, cost— the price or cost of an article or thing named, in this instance the blanks. Such auditor is required to furnish all assessors in his-county each year while he is in office all necessary blanks, and the-charges — the prices or costs he has paid, or agreed to pay for the-blanks — are what are to be paid out of the county treasury. Thus defined, the charges — prices or costs — have reference solely to the article-named — the blanks — and could not have reference to his services. While-it might possibly be construed to mean payment for either or for both, the clearest interpretation to be put upon it is that it refers-solely to the blanks.

However, if this clause of this section can be considered as subject to a double interpretation, there can be no legal basis for the compensation claimed, because public officers-of this character are not entitled to extra fees or compensation for services, unless specifically provided for and expressly defined in the statutes. Mere ambiguous-phrases, that may be construed in different ways, are not sufficient upon which to base a claim, and to authorize the commissioners to order its-payment, especially where a definite salary is given such officer for his-general services.

It has been uniformly held by the Supreme Court, that in order to-entitle an officer to extra compensation, the statute must be definite-in its terms so as to admit of no double interpretation. That such compensation cannot be allowed upon an implication; and while we think the only clear and definite meaning to be ascribed to the words of such clause, in said section, is, the cost of the blanks, the same result must follow if the words will admit of a double interpretation. From the use of such phrase the legislature may well be considered as having intended the services of the auditor to be covered by his salary. If the legislature intended that the auditor should be paid for his services in addition to the cost of the blanks, it would undoubtedly have so provided in express terms, as it did in Sec. 1075 (Lan. 2414) in regard to> filing away the tax returns of assessors, for which they receive twenty-five cents for each township; and as it did in every other instance where it intended to confer special compensation in addition to such officers ’ annual •salary.

When Mr. Tinlin became auditor, said Sec. 1029 (Lan. 2369) and Secs. 1069 to 1078, inclusive, of the Revised Statutes of 1880, of Title 8, Chap. 4, under subdivision “County Auditors,” were in force and defined the duties, services, compensation and fees of such auditors, .and prescribed the rates by which such compensation should be computed for all claims payable out of the county treasury, none of which ' specify or relate to services in furnishing blanks to assessors. Sections T069, 1070 and 1072, fixed and named a ratable per annum salary for the general services of such auditors, according to population; and .Secs. 1071, 1074 and 1075 (Lan. 2411, 2413, 2415) an additional compensation for services in special matters therein named; and Sec. 1073 (Lan. 2412) specifies the amount of fees that the auditor might charge and receive in performing for individuals the duties therein specified; and Sec. 1076 (Lan. 2415) an allowance for clerk hire.

In none of these sections providing for compensation to auditors for services to be paid out of the county treasury, or otherwise, are the services involved herein referred to in any manner; and even if said Sec. 1029 (Lan. 2369) could be construed to include payment for •services of the auditor, said Sec. 1077 (Lan. 2416) is inconsistent therewith, and absolutely prevented the allowance by the commissioners of •any compensation therefor, as follows:

“3077. All claims for services of the county auditors, which are payable from the county treasury, shall be made out in detail according to the rates named in the foregoing sections and shall be presented to the county commissioners, who after being satisfied that the labor has been performed, shall allow said bill or claim,” The word “rates,” as here used, means, of course, the compensation to be paid to the auditor for his services, as specified in those sections including the rates .specified in the statutes referred to in said Secs. 1071, 1074 and 1075, and the commissioners could not allow the auditor compensation for any other services than those named as to which a rate — amount of compensation — was provided. Neither auditor nor commissioners had any right to create a rate of compensation. It could only be such as was named in the statutes, and if none was named for services therein required to be performed none could be allowed. And that is the case here. In none of those sections or statutes referred to are the services in furnishing blanks to assessors named, or any rate specified therefor, ■and consequently none can be allowed.

As the provisions of said Sec. 1077 apply to all claims for services, the auditor, therefore, or the commissioners, could not fix the money value of his services according to his own estimate of their value, as was done in this case. It must be determined according to the “rates” named in the statutes which define his compensation, and none other could be allowed by the commissioners; and none of such rates include, or apply to, the services involved in this •case. In addition thereto said Sec. 1078 (Lan. 2417) expressly precludes it, and makes it unlawful for an auditor to charge or receive any other or further fees or compensation than such as are named in said Secs. 1069 to 1076 (Lan. 2410 to 2415), inclusive, as follows:

“1078: The fees and compensation provided for by the foregoing sections shall be in full for all services lawfully required to be done by the auditors of such counties; and it shall be unlawful for any county auditor to charge or receive any other or further fees or compensation, either as clerk of any board, or for any [other] services rendered by him.”

Applying this section to the case in hand, where the compensation is to be paid out of the county treasury, if paid at all, the sections referred to therein as “the foregoing sections,” are the same sections referred to in the same words in the preceding section, 1077, to wit, the sections which define the rates by which all claims for services of county auditors are to be computed, and none of which rates refer or .apply to the claim for services in furnishing blanks to assessors. If there could be any doubt as to this, then no specific compensation could be allowed for such services, as compensation for a specific act cannot be allowed unless clearly and definitely specified in the statute. So that if the legislature intended by the provisions of said Sec. 1029 (Lan. 2369), to allow compensation to the auditors for their services in furnishing such blanks, it rendered such intent nugatory by the provisions of said subsequent sections 1077 and 1078 (Lan. 2416, 2417). Whether intentional or not is immaterial, as the language is plain and explicit.

By the enactment of said Secs. 1077 and 1078, no compensation for any other services than those specified in said subdivision of Title 8, Chap. 4 as to which a rate of compensation was provided for, could legally be claimed or allowed, unless expressly provided for in some subsequent section or statute. So that if said Sec. 1029 could be construed to mean that the services of the auditor was what was to be paid for, it 'would -be repugnant to the explicit provisions of such subsequent Secs. 1077, 1078, as no rate is named in said Sec. 1029.

In State v. Hamilton, 47 Ohio St. 52 [23 N. E. Rep. 935], pages 69-70, it is declared in regard to such repugnancies that “it is one of the settled rules of construction that when, in a statute, there are-several clauses which present # * * an irreconcilable conflict, the one last in order of date, or local position, must prevail, whether the conflicting clauses be, sections of the same act, or merely provisions of the same section.”

The question presented and discussed as to sections subsequent to 1078 providing for payment for services, has nothing to do with this case. If it had, the rule as laid down in Cincinnati v. Connor, 55 Ohio St. 82 [44 N. E. Rep. 582], would probably determine it against the defendants in error.

A number of such subsequent sections are the ones named in Secs. 1071, 1074 and 1075, heretofore referred to, and in every one of them a rate is specified for the services therein required; none of which relate to the services involved in this case.

May 12, 1902, the legislature amended said Sec. 1069 (Lan. 2410), by fixing the rates of the auditors ’ salary by a percentage on all moneys; collected by the county treasurers, and repealed said Secs. 1069, 1070 and 1072, but said Secs. 1071, 1073, 1074, 1075, 1076, 1077 and 1078 (Lan. 2411 to 2417) were not, and remained in force as before. Such amendment and repeal therefore in no manner affects the question we have here.

Revised Statutes 1528 (Lan. 3008) has no effect upon the construction to be given to the provisions of Rev. Stat. 1029 (Lan. 2369) , and we cannot see how it can help the contention of the defendants. Revised Statutes 1528 (Lan. 3008) is in Title 11, Chap. 2, under the heading “Officers of Civil Townships,” subdivision “Assessors”; and provides that “The county auditor shall furnish to all assessors, all blanks needed by them for the listing of property, gathering and returning statistics, and other official duties, which shall be paid for out of the county treasury”; and in effect is merely a duplicate of Rev. Stat. 1029 (Lan. 2369), as such claim could not be paid until allowed by the county commissioners, and legally they could allow only a reasonable sum.

Further, said Sees. 1029 (Lan. 2369) and 1069 to 1078 (Lan. 2410 to 2415) inclusive, differently numbered, were in force before their re-enactment in 1880; and while other statutes required the auditors to furnish blanks to assessors for certain purposes, said Sec. 1029 was the only statute on the subject that provided for payment, until said Sec. 1528 was enacted in the revision of 1880, and it evidently was not intended to, and did not expressly, or by implication, modify in any manner the meaning of said Sec. 1029, or the effect of the provisions of said Secs. 1077 and 1078 which, for the reasons heretofore assigned, precluded the award of any compensation for furnishing the blanks', even if Sec. 1029 could be construed to mean that auditors should be compensated for their services in furnishing such blanks.

It is a mistake to assume that a section of Revised Statutes is a mere re-enactment of some old statute referred to in the brackets at , the end of such section. An actual examination of the old statutes will conclusively show, in this instance, that said Sec. 1528 Rev. Stat. 1880, was not a re-enactment, at least in so far as the provision for payment was concerned; that it was first enacted in 1880, and that while there were statutes theretofore in force requiring blanks to be furnished to assessors by the auditors, no one of them contained any provision for payment except said Sec. 1029 as originally enacted in 1870 (67 O. L. 106, Sec. 18) and which has been in force ever since.

The legislature at times duplicate statutes, and did in this instance deem it prudent in the- revision of 1880, to duplicate in effect the provisions of said Sec. 1029. It not only duplicated Sec. 1029, but triplicated it as'to the auditor’s duty in Sec. 2749, as re-enacted March 13, 1891 (88 O. L. 96).

It is true that this question was settled otherwise by the circuit court of Delaware county, in the ease of State v. Lewis, wherein it was. sought to recover back money paid him for services in furnishing blanks; to assessors, as in the ease at bar; and the courts in that county held that the auditor was entitled to such payment.

The Supreme Court, in a former case between the same parties;. Lewis v. State, 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710], disposed of in connection with the case of Jones v. Lucas Co. (Comrs.), settles'the question made here upon principle, and shows; clearly that a county auditor is not entitled to any compensation foie services in furnishing blanks to assessors under Sec. 1029. The courts in that case, denied the right of Auditor Lewis to compensation for any of nine different specific acts performed by him as required by the; ' statutes; in regard to which, as declared in the opinion, page 211, “No extra compensation is provided by statute, at least, not clearly so.” In disposing of the case, Judge Spear says, page 207 et seq.:

“Sections 1069 and 1070, provide a salary to county auditors*, from eight hundred to forty-four hundred, depending upon population.
“Sections 1071, 1072, 1073, 1074, 1075 and 1076 provide further-compensation for services in special matters therein enumerated, but none .of them delates to the subject of inquiry here.”

That in order to entitle the auditor to any extra compensation, the statute must be clear and explicit; that such compensation “cannot be allowed upon an implication,” and that the right of the commissioners to pass upon and allow such claims is a very narrow one.

That Sec. 1077 (Lan. 2416) “is to the effect that all claims for .services of the auditor, which are payable from the county treasury, .shall be made out in detail according to the rates fixed by statute, and presented to the commissioners, who, if satisfied that the labor has been performed, shall allow the bill, etc., and then the auditor is authorized to draw his warrant. That is, the right to present depends upon whether the claim be one the rate of which is fixed by statute, and upon whether the claim for some amount, may be legally paid from the •county treasury. Both conditions must concur. But if the rate is not so fixed, or if the claim is not legally so payable, no right to present it is given, and there is force in the proposition, that if no right to present be given, then no power to allow could be implied, and if no power to allow, then the attempted allowance would be a. nullity.” Page 213. (The italicising is mine.)

The opinion thus announced, and the provisions of Rev. Stat. 1077, 1078 (Lan. 2416, 2417), justify the right to the injunction asked for .in this case. There is no “rate” specified in either of the sections referred to by which compensation for services in furnishing such blanks could be determined and fixed; and that of itself prevented any ^allowance of extra compensation therefor, even if the terms of Rev. Stat. 1029 (Lan. 2369) were plain and unambiguous.

For the reasons stated, decree will be entered in favor of the plaintiff as prayed for.

Burrows, J., concurs.

COOK, J.,

dissenting:

I cannot concur with my associates in the conclusion to which they have arrived.

There is no question but that the defendant is not entitled to the money except the statute provides that he shall be paid for his services; otherwise the presumption is, that he performed the services gratuitously, or that he is compensated by his general salary. Such are the uniform •decisions of our Supreme Court. The question then is, does Rev. Stat. 1029 (Lan. 2369) provide for such payment? My associates think not, while to me it seems that it does.

The learned judge who writes the opinion, says that the words ‘ ‘ all reasonable charges therefor” refer to the blanks. We do not so construe the words.

The subject of the section is the duty of the auditor and not compensation for the blanks; and if it meant the charges or compensation for the blanks why say “reasonable charges;” certainly the auditor would be entitled to the cost of the blanks if he paid for them in good faith whether reasonable or unreasonable. Furthermore why should the auditor be allowed for the charges of the blanks % The blanks are procured by the county and not the auditor. He is under no obligation to pay for them and the county under no obligation to pay him for them. No, the words “all reasonable charges therefor” refer to the services of the auditor.

It seems to me that Rev. Stat. 1528 (Lan. 3008) has an important bearing upon the question and materially helps to sustain the contention of defendants. That section provides:

‘ ‘ The county auditor shall furnish to all assessors all blanks needed by them for the listing of property, gathering and returning statistics,, and other official duties, which shall be paid for out of the county treasury.”

Concededly this refers to the payment for the blanks; the county auditor must secure the blanks for the county and pay for them out of the county treasury.

My associate who writes the opinion in this case says this is but a duplication of Rev. Stat. 1029 (Lan. 2369). True if his contention is correct that the blanks are referred to in both sections, but in Rev. Stat. 1029 (Lan. 2369) “all reasonable charges therefor” are to be paid (Sec. 1528 was passed many years prior to Sec. 1029) and why duplicate the section. It would certainly be very absurd for the legislature to do so, and therefore both sections should stand and be held as applying to different subjects if such construction can be fairly placed upon the sections.

But it is said by my associate that, conceding Sec. 1029 (Lan. 2369) applies to the payment of the services of the auditor, yet-the auditor is not entitled to any pay for the reason that Rev. Stat. 1077 and 1078 (Lan. 2416, 2417) provide that the auditor shall only receive compensation in special cases, when the rate is fixed by the statute and that the claim must be made out in detail according to the rates specified. I do not think that Rev. Stat. 1077 and 1078 (Lan. 2416, 2417) apply to the case under consideration. These sections only .apply to eases specified in Secs. 1069 to 1076 (Lan. 2410 to 2415), inclusive. Section 1077 (Lan. 2416) says distinctly “shall be made ont in detail according to the rates named in the foregoing sections,” which are the sections I have named. They could not apply tó all sendees performed by the auditor as there are services performed by him for which he is entitled to pay that the compensation is not fixed at a specified sum or rate, but is left to the discretion of the commissioners. Take for instance sendees performed under the provisions relating to boards of education. Revised Statutes 4064 (Lan. 6655) provides :

“The commissioners of each county shall allow the county auditor, .annually, a reasonable compensation for his services under this title, not to exceed five dollars for each city, village, special and township school district in his county, to be paid out of the county treasury:’ ’

Again under Rev. Stat. 4898 (Lan. 8371) relating to improved roads, the auditor is to serve as clerk of the board of directors, which is the commissioners, and in Rev. Stat. 4903 (Lan. 8376), it is provided that the clerk shall receive such compensation as shall be agreed upon by the board, but not to exceed $2.50 per day for time actually employed.

In neither of these cases is the amount or rate of compensation fixed, yet shall it be said the auditor is not entitled to compensation.

By taking time no doubt other sections might be referred to of like character and they show, as we have said, that Rev. Stat. 1077 and 1078 (Lan. 2416, 2417) are intended only to apply to the services directly referred to in the preceding sections.

There is another fact worthy of consideration and that is that Sec. 1029 (Lan. 2369) has remained on the statute books as it now, is for at-least forty years and during all that time county auditors have received compensation for their services in preparing and furnishing blanks to assessors without any question being made, and the state bureau of public inspection officially approves the payment. Furthermore, the attorney general of the state in a written opinion to the prosecuting attorney of Ross county, June 9, 1904, (see annual report of Attorney-general'Ellis for year, 1905, page 181) has said that they are entitled to be paid for their services under Rev. Stat. 1029 (Lan. 2369).

In addition to this as stated by my associate in his opinion, the circuit court of Delaware county in the ease of State v. Lewis, decided July 2, 1903, unreported, a case precisely similar to the one we have, by a unanimous court held that under Rev. Stat. 1029 (Lan. 2369), auditors were entitled to payment for tbeir services for preparing and furnishing blanks to assessors. This being so, a co-ordinate court should hesitate to hold otherwise unless it was very clear that such court was wrong in the prior holding.

The question involved un this ease was not before the court in the case of Jones v. Lucas Co. (Comrs.) 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710], and that case has no bearing upon it.

For these reasons I do not think an injunction should be allowed.


author: WINCH, J.

text:
    JUDGMENTS AND DECREES — MOTIONS AND ORDERS.
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Winch, Henry and Marvin, JJ.
    Cosimo Catalano v. Salvatore Amato.
    Res Ad judicata Applied to Motions.
    A motion to vacate an order of arrest before judgment, having been once heard and refused, is res adjudicata,

    [Proof of this decision and syllabus was submitted to Judge Winch •and corrected.]
    Error to Cuyahoga common pleas court.
    Klein & Harris, for plaintiff in error:
    Cited and commented upon the following authorities: Mengert v. Brinkerhoff, 67 Ohio St. 472 [66 N. E. Rep, 530]; Wingo v. Hooper, •98 N. C. 482 [4 S. E. Rep. 463]; Lovell v. Martin, 21 How. Pr. (N. Y.) ,238; State v. Downs, 8 Ind. 42; Clafiin v. Einstein, 6 AY. N. C. (Pa.) 398; Lewis v. Pratt, 11 Minn. 57; Warner v. Kalb, 15 Mo. App. 600; Young v. Cooper, 12 Neb. 610 [12 N. AY. Rep. 91]; Askwith v. Allen, :33 Neb. 418 [50 N. AY. Rep. 267] ; Freeman v. Leland, 2 Abb. Pr. (N. Y.) 479; Lovell v. Martin, 11 Abb. Pr. (N. Y.) 126; Harding v. Shannon, 20 How. Pr. (N. Y.) 25; Dale v. Jacobs, 41 How. Pr. (N. Y.) 94; Wells v. Selling, 53 How. Pr. (N. Y.) 35; Shinn, Attachment Sec. 125; Kneeland, Attachment Sec. 357; Smith, Fraud Secs. 262, 263, 298; ■Chamberlin v. Fuller, 59 Vt. 247 [9 Atl. Rep. 832] ; McDonald v. Smith, 139 Mich. 211 [102 N. W. Rep. 668]; Wright v. Stewart, 130 Fed. Rep. '905; Cary v. Hotailing, 1 Hill. (N. Y.) 311 [37 Am. Dec. 323]; Erfort v. -Gonsalus, 47 Mo. 208; Lane v. Kingsberry, 11 Mo. 402; 1 Greenleaf, Evidence (16 ed.) Par. 14Q; King v. Hopkins, 7 Cire. Dec. 362 C13 R. 305) ; American Hosiery Co. v. Baker, 10 Circ. Dee. 219 (18 R. 604); Wilmot v. Lyon, 49 Ohio St. 296 [34 N. E. Rep. 720]; Luhrig Coal Co. v. Ludlum, 69 Ohio St. 311 [69 N. E. Rep. 562; 100 Am. St. Rep. 675].
    Hobday & Quigley, for defendant in error.
   WINCH, J.

The defendant in this case was arrested on an order of arrest before judgment issued out of the common pleas court, on the affidavit of the plaintiff, on February 7, 1907.

On April 4, 1907, the defendant filed his motion to vacate said order of arrest, basing his motion upon the instituting of proceedings by plaintiff to replevin the goods sued for in this action. This motion was overruled.

On April 23, 1907, the defendant made application for leave to file another motion to vacate the order of arrest, in which he says:

“Defendant asks for leave to make the above motion and to be heard on the same on the ground that the motion to vacate the order of arrest before judgment and release and discharge bail, which by this court has been dismissed, was a motion in which it was not sought to, and no attempt was made to traverse or deny any of the facts or allegations constituting the grounds of arrest in plaintiff’s said alias affidavit for order of arrest, but that in said motion defendant set up that plaintiff was barred and estopped from bringing the above cause of action by virtue of an alleged election between two inconsistent remedies. ’ ’

This application was granted and on April 30, 1907, the defendant filed his second motion, basing it upon the untruthfulness of the affidavit for the order of arrest.

This motion was heard and granted and the defendant discharged, to all of which plaintiff excepted, and has brought said order here for review upon transcript and bill of exceptions.

In this court it is claimed that said order complained of is erroneous for three reasong, first, because a former motion to vacate the order of arrest having been overruled, the matter was res adjudícala, not open for review except by motion for new trial or proper proceedings in error; second, because the defendant being out on bail, he had no right to file the motion, and third, because the judgment was against the weight of the evidence.

We do not find it necessary to consider the last two assignments of error, for we think that the first point is well taken and that the trial court erred in entertaining the second motion.

The proceedings here bad were for the attachment of the body of the defendant and are analogous to proceedings in attachment of a debtor’s goods and must be subject to the same rules. Such proceedings, though ancillary to the main ease, are conclusive upon the parties the same as other final orders. Garner v. White, 23 Ohio St. 192; Young v. Gerdes, 42 Ohio St. 102; Strauss v. Cooch, 47 Ohio St. 115 [24 N. E. Rep. 1071].

Such being the caSe there appears no good reason why the rule laid down in the case of Mengert v. Brinkerhoff, 67 Ohio St. 472 [66 N. E. Rep. 530], should not be applied. That rule is as follows:

“A defendant in an action is required to plead all the defenses he has, and in a subsequent action he will be concluded as to all such defenses, even though he failed to plead some of them in the former action. ’ ’ /

This conclusion is in accord with the views expressed by Van Fleet in his work on Former Adjudication, see pages 96 and 99. Justice Brewer, when on the supreme court of Kansas, expressed an opinion that motions might sometimes be renewed upon leave of court. The ease referred to is Adams v. Lockwood, 30 Kan. 373 [2 Pac. Rep. 626], the syllabus of which is as follows:

“After a motion has been heard and overruled, the moving party has no right to file a second motion for the same relief upon grounds' existing at the time the prior motion was made and decided. It can only be done upon leave of the court, which should rarely be granted. ’ ’

If there is any such discretion in the trial judge, clearly it was abused in this case, for the second motion is based entirely upon a denial of the allegations in the affidavit for arrest, that the debt was fraudulently contracted. There can be no excuse for failure to set up such ground in the first motion, for there was nothing new about it or. beyond his. knowledge from the beginning. The case of Wingo v. Hooper, 98 N. C. 482 [4 S. E. Rep. 463], is squarely in point. In that case it was held:

“A motion to vacate an order of arrest, having been once heard and refused, is res adjudicata.

So it seems that we are not without authorities sustaining the' principle here announced, though we are aware that the courts of New York are not in strict accord with our conclusions.

For error in granting the second motion to vacate the order of arrest, said judgment is reversed and vacated and the cause is remanded with instructions to overrule said motion.

Henry and Marvin, JJ., concur


author: SWING, J.

text:
    ATTACHMENT.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    George F. Gilbert v. Stephen J. Burke.
    AVERMENT OF “BELIEF” OF NONRESIDENCE HELD INSUFFICIENT.
    Nonresidence as a ground for attachment, should he stated as a fact, an averment that “Affiant believes * * * that defendant is a nonresident of the state” is not a sufficient statement of that fact to give jurisdiction under Rev. Stat. 5522 (Lan. 9051) against lands of a nonresident defendant.
    .[Syllabus approved by the court.]
    Appeal from Hamilton common pleas court.
    S. B. Hammel, for plaintiff.
    C. M. Thompson>and F. M. Gorman, for defendant.
   SWING, J.

This action is here on appeal. It is an action to quiet title. Gilbert was the owner of certain real estate in this county, and at no time was a resident of the city of Chicago, state of Illinois, when the defendant in this action brought an action against him in this county, got a judgment against Gilbert and sold the land belonging to Gilbert. Burke was the purchaser at the sheriff’s sale, and he now claims to be the owner -of the lhnd in controversy, by virtue of the sheriff’s deed.

In order to get jurisdiction, Burke was compelled to sue out a writ ■of attachment. He filed the following affidavit:

“Stephen J. Burke, plaintiff, being first duly sworn, says that the ■claim sued upon is for money paid by him for the use and benefit of the ‘defendant, and upon contract, and that said claim is just.
“Affiant believes that he ought to recover the sum of $105, together with interest, from the seventeenth day of August, 1895; and that the ■defendant is a nonresident of this state.”

Does this affidavit contain the necessary statements required by the statute? If not the proceedings under it are void. The first proposition •of the syllabus in Endel v. Leibrock, 33 Ohio St. 254, is as follows:

“A writ of attachment under the code, without the requisite affidavit, is void.”

In Dunlevy v. Schartz, 17 Ohio St. 640, the Supreme Court say:

“An affidavit stating the plaintiff’s belief that the defendant has Absconded with intent to defraud his creditors, without setting forth any facts justifying such belief, does not lay a sufficient ground for issuing a writ of attachment.”

This decision was followed by the Supreme Court in Garner v. White, 23 Ohio St. 192.

Proceedings in attachment are purely statutory, and the provisions of the statutes must be strictly complied with, in order to give jurisdiction. '

In this ease, in order to give jurisdiction, it was necessary that the affidavit should contain, under Rev. Stat. 5522 (Lan. 9051), statements showing:

1. Nature of plaintiff’s claim.

2. That it is just.

3. The amount which affiant believes that plaintiff ought to recover, and

4. That the defendant is a nonresident of this state.

There is no question but what the first three provisions have been -complied with. But, is there an allegation that the defendant is a nonresident of the state? And is: “And that the defendant is a nonresident of this state,” a statement that he is a nonresident of this state by the affiant? What does the affiant say? Grammatically, the verb next preceding this clause must govern, which is “affiant believes.” It cannot be connected with the verb “says” in the first part of the affidavit. The sentence in which the verb is used is complete in itself, and there is nothing to show in the composition of the sentence, or the punctuation, that it was intended to cause any subsequent allegation of a fact. If it has any verb, therefore, it must be “believes.” Therefore, if it has no verb, it is no statement of a fact, and if it is the verb “believes,” if is not a sufficient statement of a fact as required by statute. If we are correct in this view, it follows that the proceedings in attachment were void, and Burke got nothing by it.

Decree accordingly.

Giffen and Smith, JJ„ concur.


text:
    EVIDENCE — NEGLIGENCE.
    [Guernsey (7th) Circuit Court,
    November Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    Willis Creek Coal Co. v. Mary Jones, Admrx.
    Expert Opinion Evidence op Effect of Inspection foe Defects in Coal Mine: Roof Incompetent, when. _
    Where it is practicable to place plainly before the jury the facts and circumstances surrounding a claimed defect in the roof of a coal mine, it is. error to permit an expert to testify: “That if the fire boss had gone' through the entry before the men went to work and used ordinary care in the inspection of the roof, he would have discovered the fact that, the roof was dangerous and liable to fall.”
    [Syllabus approved by the court.]
    Error to Guernsey common pleas court.
    R. S. Scott, for plaintiff in error.
    James Joyce, for defendant in error.
   COOK, J.

John R. Jones, the husband of the testatrix, defendant in error, was killed in the mine of plaintiff in error by the falling of slate from the roof in an entry..

Two grounds of error are urged: First, the verdict is against the weight of the evidence as to the question whether or not the company was guilty of negligence and as to whether or not plaintiff’s intestate was guilty of contributory negligence. Second, improper evidence was. admitted by the court.

As to the first ground it is sufficient to say that we have examined the evidence carefully and we do not think the claim of plaintiff in error is correct and we would not reverse the judgment upon the ground of the insufficiency of the evidence. The second proposition is attended with more difficulty. One of the important questions in the case was, whether or not, Latchney, the fire boss, whose duty it was to examine the roof of the entry to see if it was in a reasonably safe condition, had ■ properly performed that duty. Latchney had testified he had examined the roof on the morning of the day Jones was killed.

A witness by the name of Kackley was called who testified that he had been a miner for many years and showed that he was qualified to give an opinion as to the duties of a mine boss and, thereupon, this question was asked him:

Question. Now, I believe you told before what the duties of a mine boss were. •

Answer.. Yes, sir.

Question. In that mine, Mr. Kackley, by your experience as a coal miner, if the fire boss had gone through entry fifty-three that morning and had used ordinary care in the examination and investigation of that roof at the place where Jones was killed, tell the jury whether or not it would have disclosed the fact that the roof at that time and at that point was dangerous and liable to fall.

To this question there was an objection and exception, and the witness was permitted to answer, that it would.

And to another witness of the same character the question was asked:

“Now, John, by your experience as a coal miner, if the fire boss of that mine had gone through the entry fifty-three that morning,' and had used ordinary care in the examination and investigation in the roof in that entry at the place where Jones was killed, would it have disclosed the fact that the roof was dangerous and liable to fall?”

To this there was also an objection and exception, and the witness was permitted to answer, “yes, sir.”

There was no difficulty in showing the condition of the roof. Indeed it was shown that there was a crack in it; that siftings of slate, rock and other materials were on the floor of the entry, immediately below where the crack was, and other matters indicating that the roof was faulty and imperfect. That being so, whether or not it was dangerous and liable to fall, and whether or not the fire boss by proper inspection Avould or should have discovered that fact, seems to us was entirely a question for the jury to determine and not the witness. In fact it was the important question in the case. The act of the fire boss, Latchney, in not discovering the dangerous condition of the roof and its liability to fall, if he made the inspection as he. claimed he did, was the real ground of negligence, on the part of the company, relied upon.

As we have already said, there was nothing particularly hidden or deceptive about the roof and the means of proper examination upon the part of the fire boss had been fully explained to the jury.

In the case of Balt. & O. Ry. v. Schultz, 43 Ohio St. 270, 282 [1 N. E. Rep. 324; 54 Am. Rep. 805], in the opinion by Owen, J., in which the question of expert testimony is exhaustively considered, it is said:

, ‘ ‘ In such cases the witnesses are required, ¿so far as may be, to state the primary facts which support their opinions.
“Where it is practicable to place palpably before the jury the facts supporting tbeir opinions, ■ the witnesses should be restricted in their testimony to such facts, and the jurors left to form the.ir opinions from these facts, unaided by the mere opinions of the witnesses.
“As the warrant for the admission of the opinions of witnesses, as evidence is found in some exception to the general and very salutary rule which requires that only facts be stated to the jury, it is the duty of a reviewing court to see that the admission of mere opinions as evidence was within some one of the established exceptions to such general rule; and where it does not appear upon the whole record but that the jury was equally capable with the witnesses of forming an opinion from the facts stated, it is error to admit in evidence the opinions of witnesses. ’ ’

In Rogers, Expert Testimony 15, 16 it is laid down:

“Whether this or that act'amounts to negligence is ordinarily a matter of judgment and common experience rather than of science or skill, and the opinions of experts are inadmissible in evidence concerning the same. An expert may be asked whether certain things were properly or skillfully done, but not whether a person was guilty of" want of ordinary care, or of negligence in the doing of such things. The witness cannot be asked whether a person exercised due care; nor whether a person was a careful driver; nor ‘ is that the ordinary, careful, prudent,, and-safe manner (of performing the service) nor ‘what would be the chances for a stage coach to tip over, being driven by an ordinarily careful, prudent driver;’ nor ‘whether the practice of a certain railroad in blowing its whistle was reasonable or unreasonable,’ ‘prudent’ or ‘extraordinary,’ or ‘an unreasonable manner of proceeding on the part, of the engineer;’ nor whether leaving a horse unhitched in a mill yard ‘was the act of a careful and prudent man;’ ‘nor whether placing wet staves on the outside of an arch with fire in it’ was a safe and prudent way to dry them; nor whether the .plaintiff could have been injured in oiling a certain part of the machinery of a steam engine if he had not been careless; nor whether the means of egress from a building' were all that due care required the defendant to provide; nor whether certain goods ‘were as well handled and cared for as goods usually are when attached.’
“And so it has been held that while a physician might state what, in his opinion, was the cause of a certain hemorrhage, yet it was not competent for him to say whether it was to be attributed to the party’s negligence. It has been held, too, that the opinion of a witness was inadmissible that it was not prudent to use a certain hoisting apparatus, with less than three men, on a stone of two tons’ heft. In the case-,ast cited tbe court says: ‘When this machine was fully described as-to its structure, strength, methods of use, number of men required, danger in its use by less number, its safety and adequacy when properly used, the inference as to the prudence of undertaking to operate' it on a stone of the size in question with only two men, was one which' required no particular knowledge and skill, but rested in the sound judgment of the jurors, and one which they could as well decide for themselves. ’
“In a case where it was claimed that a railroad company had been guilty of negligence in not removing certain brasses from the boxes of car wheels, it was held improper to ask an expert ‘when ought they to be removed?’ The court says: ‘We think, however, that the proposed fact is not competent to be established by the opinion of a witness offered as an expert. The effects of allowing the brasses to become - worn and thin and broken should be shown. Then the jury would be-competent to determine whether it was negligence to fail to remove-them before such condition existed. To allow a witness to testify as an expert to such fact would be to substitute the witness for the jury.’ ”

It is said that if this evidence was improperly admitted, yet it was not prejudicial. We do not think so. It had a strong bearing upon the ease in many respects, especially one. One witness testified he informed the fire boss, Latehney, several days before it fell that the roof was in bad condition. Latehney testified he never told him so. He further-testified he had no knowledge of the condition of the roof before it fell, although he examined it the morning of the accident. The evidence therefore tended to contradict the fire boss that he examined the roof as was his duty to do each morning before the men went to-work. In addition, it would have a telling effect-upon the jury as to-the knowledge of the fire boss. ■

Evidence of the same character was also admitted for the purpose - of showing that Jones was not guilty of contributory negligence. So-called experts were asked “if a miner exercising ordinary care in going through the entry attending to his own work, would have seen the defect in the roof.”

What we have said upon the other branch of the evidence admitted, applies with equal force to this evidence.

The judgment of the common pleas court is reversed for the' admission of incompetent evidence and the ease remanded for a new trial.

Burrows and Laubie, JJ., concur.


author: COOK, J. BURROWS, J.,

text:
    EMBEZZLEMENT — PARTNERSHIP.
    [Geauga (7th) Circuit Court,
    February Term, 1908.]
    Burrows, Laubie and Cook, JJ.
    Robert N. Ford v. State.
    1. INDIVIDUAL PARTNER MAY BE GUILTY OR EMBEZZLEMENT.
    An individual member oí a partnership who receives money as an agent and secretes it with intent to embezzle and convert it to the use of the partnership may be convicted under Sec. 6842 Rev. Stat. The fact that the money is received by him as a member of a partnership makes no difference.
    2. Abstracts and Schedules oe Books and Documents Prepared by Expert Accountant Admissible where Originals are Multifarious and Voluminous.
    Where books and documents are multifarious and voluminous, abstracts and schedules which have been prepared therefrom by an expert accountant may be admitted in evidence, but in such case the books and documents must either be first offered in evidence or be in the cus'ody of the court so that the party against whom such abstracts and schedules are offered may have an opportunity from their examination to verify their correctness.
    3. “Thing oe Value” Embezzled Must Come into Possession oe Accused After Amendment of Statute.
    Under Sec. 6842 Rev. Stat. as amended April 29, 1902 (95 O. L. 303) in order to convict the accused “the thing of value” must come into his possession after the passage and taking effect of the act as amended.
    [Syllabus by the court.] '
    N. H. Bostwick and W. H. Boyd, for plaintiff in error.
    W. G. King, Pros. Atty., and G. W. Alvord, for defendant in error.
   COOK, J.

George H. Ford and Robert N. Ford were jointly indicted by the grand jury of this county for the crime of embezzlement and for secreting with intent to embezzle and convert to their own use $108, the money of Annie Marsh, the same being intrusted to them as her agents.

The accused demanded separate trials and Robert N. was placed on trial upon two counts of the indictment, one of which charged him with embezzling the $108 and the other with secreting with intent to embezzle and convert to his own use the same money. He was convicted of the crime of secreting and found not guilty of embezzlement.

The facts show that the two Fords, who are brothers, were engaged in the banking business as partners in tbis county for many years, the name of the partnership being, Boughton, Ford & Co. — Robert N. Ford, managing the business. They did a large business; 'had a large number •of depositors, and the general confidence of the community. The partnership failed in 1903, .making a general assignment for the benefit of creditors, both as a partnership and individually, and afterwards they were forced into involuntary bankruptcy.

For many years previous to the assignment, the Fords, both as partners and individuals, were, hopelessly insolvent; their deposits being over a million dollars with not one-fifth of actual assets to pay or indemnify the depositors. During all these years, they resorted to all kinds of schemfes and devices to keep the bank afloat; — and during all this time they received deposits, even up to the day of the assignment Kiting of checks; issuing of fictitious notes in the names of clerks anc even of persons deceased for the purpose of securing money to carry the bank along, was of daily occurrence.

The $108 which the Fords were charged in the indictment with secreting was left at the banking house in the early part of August, 1900, by one O. P. 'Williams to be paid upon a note of Annie Marsh which had been left at the bank by her for collection and which money the bank had full authority to receive as the agent of Annie Marsh. The money was paid by Williams to Robert N. Ford and he immediately placed it in the general funds of the bank. Upon inquiry being made of him afterwards, at different tinges, he gave false accounts respecting the matter, saying to Mr. Williams when asking for the note, that it had not been left with him as yet, when, in fact, he had the note long before the payment of the money. These false statements were made at many different times and on or about September 1, 1902, he said to Mr. Marsh, the husband of Mrs. Marsh, upon direct inquiry that no money had been paid by Williams upon the note, showing at least at that time he did not propose to pay the money over and had appropriated the same or designed appropriating it.

Three distinct grounds of error are relied upon for reversing the judgment.

First. The money having been paid to Ford as a partner of the' partnership of Boughton, Ford & Co., he and his brother being then the sole members of the firm, and he having placed it among the other moneys of the partnership, that the partnership was the agent and not Robert N. Ford; and that there is no provision in the statute making a partnership liable.

Second. The court erred in receiving the testimony of the expert, Carl Nau.

Third. That the verdict is against the evidence; that in fact the evidence shows no crime was committed under the indictment.

As to the first ground' of error: The partnership had no distinct entity from the individuals composing it; each partner acts for himself as well as the partnership; each member is individually liable even in a civil action. Robert N. Ford received the note of Mrs. Marsh for the-purpose of receiving payment from O. P. Williams. He received the money from 0. P. Williams to pay on the note and instead of paying it over to Mrs. Marsh he commingled it with the money of the partnership and afterwards secreted it there for the purpose of converting it to-the benefit of the partnership.

Robert N. Ford had control of the whole transaction, all the false-statements showing criminal intent were made by him.

As to the second ground: That the court erred in receiving the testimony of the expert, Carl Nau. /

In order to prove that there was a motive for Ford to embezzle or secrete with intent to embezzle this money the state properly sought to-show that both the banking firm of the Fords and also Robert N. Ford were insolvent. For this purpose the books of the firm were important. These books were voluminous and were in possession of the trustee under the bankruptcy proceeding. Carl Nau, who was admitted to be a competent accountant, was employed by the state to go through these books and make a tabulated statement from the same showing his conclusions from the books as to the solvency or insolvency of the firm, and of the Fords individually. He did so and testified as to what the boobs showed. His conclusions from the books and the tabulated statement were also introduced in evidence. But a small number of the books which Nau examined and from which he made up his statement and derived his conclusions were introduced in evidence or were within the control of the court or in the court room. Nau also testified as to the insolvency of a number of persons that were indebted to the bank. The-evidence ofdMau was objected to in whole and also as to each item. The court admitted the evidence and proper exceptions were noted. We think the court committed error in admitting this evidence. There is-no doubt but what in cases of this character a competent expert accountant may testify as to the result of his examination of the books; but the books must be first introduced in evidence or- at least be under the control of the court so that the accused may have the use of them. It was the right of the accused to test the correctness of the tabulated statements of the expert and also the correctness of his deductions from the books as testified to by him. How could that be done when the books were not there? Counsel for accused demanded that the state bring the books that its expert, Nau, had examined into court: and insisted that be should not testify until that .was done, but the court made no order and the books were not produced. We think this was error.

In the case, Boston & Worcester Ry. v. Dana, 67 Mass. (1 Gray) 83, it was held:

“When boobs and documents introduced in evidence at a trial are multifarious and voluminous, and of such a character as to render it difficult for the jury to comprehend material facts, without schedules containing abstracts thereof, it is within the discretion of the presiding judge to admit such schedules, verified by the testimony of the person by whom they were prepared, allowing the adverse party an opportunity to examine them before the case is submitted to the jury.”

On page 104 in the opinion by Justice Bigelow, it is said:

“The defendant further objects, that schedules, made from the original papers and documents previously proved in the case, showing certain data and results obtained therefrom, and verified by the witness by whom they were prepared, were improperly admitted. But it appears to us, that questions of this sort must necessarily be left very much to the discretion of the judge who presides at the trial. It would doubtless be inexpedient in the most cases to permit ex parte statements of facts or figures to be prepared and submitted to the jury. It should only be done where books and documents are multifarious . and Aroluminous, and of a character to render it difficult for the jury to comprehend material facts without the aid of such statements, and even in such cases they should not be admitted, unless verified by persons who have prepared them from the originals in proof, and who testify to their accuracy,- and after ample time has been given to the adverse party to examine them and test their correctness. Such was the course pursued in the present ease, and there can be no doubt that, in a trial embracing so many details and occupying, so great a length of time as the ease at bar, during which a great mass of boobs and documents were put in evidence, it was the only mode of -attaining an intelligible view of the cause before the jury.”

Furthermore, Nau, the expert, was permitted to testify over objection, as to the insolvency of many persons that had obligations in the bank. It was not shown that he had any special knowledge of the financial standing of these parties, but without any qualification in that regard whatever, he' was permitted to state over objection that numerous persons indebted to the -bank were wholly insolvent and their obligations worthless. We think this was also error. But was the error prejudicial. As we have said the only object of this evidence was to show that the firm was insolvent as was also Robert N. Ford, and counsel for the accused both before and after the introduction of the evidence of this expert admitted in open court that both the firm and Robert N. Ford "were insolvent at the time of the claimed criminal act and had been for several years previously. So that while the evidence was wholly incompetent, and it was error to admit it, the error was not prejudicial.

The next ground of error insisted upon is that the verdict is not sustained by the evidence. The indictment charged that Robert N. Ford on September .1, 1902, secreted and hid away the money for the •purpose of embezzling it and converting it to his own use.

Section 6842 Rev. Stat. respecting embezzlement and the secreting with intent to embezzle or convert to his own use anything of value was amended April 29, 1902 (95 O. L. 303), and the original section repealed. It is true that the amendment was very slight, only adding other parties that might be guilty of the crime, such as officers of lodges, etc., and in no manner changed the law as to the crime of which Ford was charged yet as to this case it was very important.

In Campbell v. State, 35 Ohio St. 70, it was held:

“Under an indictment for embezzlement, which charges the offense to have been committed after the act of May 5, 1877 (74 O. L. 249, Sec. 11), took effect, the defendant can not be convicted of an offense committed before the taking effect of said act, notwithstanding the right of the state to prosecute for the violation of a former statute (66 O. L. 29, which -was repealed by the act of May 5, 1877), was' saved by the act of February 19, 1866 (S. & S. 1).”

In the opinion by Judge Mcllvaine on page 77 it is said:

“The indictment charged that the offense was committed on the twenty-eighth day of January, 1878. The statute against embezzlement then in force took effect from and after the first day of July, 1877. Testimony had been offered, tending to prove that the offense was committed .previous to the taking effect of that act, and other testimony tending to show that the offense was committed subsequent to the taking effect of the act. The court refused to charge the jury, though requested to do so, that the defendant could not be convicted upon the indictment under which he was on trial, unless the jury should find that the offense was committed after the act of May 5, 1877, took effect, to wit, at least as late as July 1, 1877. In this refusal, we think, the court erred.
The theory upon which the state seeks to maintain the conviction, notwithstanding the refusal to charge as above stated, is this: The act of March 15, 1869 (66 O. L. 29), which was repealed by the act of May 5, 1877, defined the crime of embezzlement, and provided for its punishment. It is true, the offense, as defined in the act of 1869, differs, in some respects, from that of 1877, bnt the difference is not material to the disposition of the question here decided. Although the act of 1869 was repealed by the act of 1877, the right of the state to prosecute offenses committed in violation of the former was saved by the act, February 19, 1866 (S. & S. 1), and hence, the state claims that the defendant might have been properly convicted, upon the trial below, of embezzlement committed in violation of the repealed statute. This claim on the part of the state cannot be supported. If the indictment had charged the offense to have been committed in violation of the reT pealed statute at a time when it was in force, the act of 1869 would have supported the prosecution. But this was not done. The offense was charged to have been committed after the act of 1869 had been repealed, and therefore the act of 1869 does not apply. Whether or not an offense punishable by law is charged in an indictment, must be determined by the state of the law at the time the offense is alleged to have been committed. For the purpose of determining this, the question of time, as laid in the indictment, is material, otherwise an indictment would be good although the facts averred did not constitute an offense under any law, at the time when they are alleged to have been committed, provided a law was in force at the time laid in the indictment, which made them an offense. ’ ’

It therefore follows that the criminal act being alleged to have been committed September 1, 1902, it devolved upon the state to show that each and every essential element constituting the crime must have been committed after the passage of the amendatory act of April 29,, 1902.

What are the essential elements of the crime of which Ford was; charged? First, he must receive the money as the agent of Annie Marsh; second, he must secrete and hide it away; and, third, he must secrete and hide it away with the intent to embezzle or convert it to his, own use.

The contention of the plaintiff in error is that the whole evidence shows that if any embezzlement or secreting with intent to embezzle took place that it was done by the accused long before April 29, 1902.

Two members of the court are of opinion that this contention is not well founded. It is true that there is some evidence showing that the accused made false statements respecting the transaction previous to April 29, 1902, but the material false declaration and overt acts on his part showing an intention to secrete with intent to embezzle and appropriate to his own use the money, did not take place until about September 2, 1902, several months after the passage of the amendatory act.

While this is true, yet the whole evidence does show that the accused received the money from Williams as the agent of Mrs. Marsh some time in August, 1900, and the receipt of the money by him as agent is one of the essential elements of the crime and as one of the essential elements of the crime it must take place after the taking effect of the act. This is the plain reading of Sec. 6842 Rev. Stat.:

“An agent * * * who embezzles or converts to his own use, or fraudulently takes or makes away with, or secretes with intent to embezzle or convert to his own use, anything of value which shall come into his possession by virtue of his employment or appointment * * * as such agent * * * is guilty of embezzlement and shall be punished as for the larceny of the thing embezzled.” This is also the identical language as used in the act amended and repealed. Mark the language “which shall come into his possession” not had come, or has come nor shall have come; but “shall come.” Come when; it seems to us — the entire court — that no other construction could be given upon the language than that the thing of value must come into the possession of the agent after the passage of the act making it a crime.

In so holding we are directly in line with the decision, Young v. State, 26 O. C. C. 747, where it was held, tha't where the statute defining embezzlement is repealed during the period when the amounts were received, and a new statute is enacted, it is error, to admit evidence of the alleged embezzlement of the sums received prior to the enactment of the new statute; and where confessions of the accused are so lacking as to time and amount as to render it impossible to determine whether reference is made to sums received before or after the change in the statute, the confessions are incompetent.

We are therefore of opinion that no crime was committed by the accused under the indictment.

We are not unmindful that this holding in some cases will permit the guilty to escape and possibly does so in this case; as for instance where an agent received the “thing of value” before the amendment and secretes it after the amendment, he cannot be prosecuted under the statute repealed for the reason that one essential element of the crime, the secreting, took place after the repeal and he cannot be prosecuted under the amended act, for the reason that one essential element took place before the amended act took effect. This result should have great weight in determining the intent of the legislature and were not the language of the amended act plain and unambiguous it might work a ■different result, but we cannot construe the language in any other manner than that the receipt of “the thing of value” must be after the amended act went into effect.

All penal statutes must be construed strictly and the difficulty arising out of the wording of the act must be cured by the legislature.

The language of the statutes respecting embezzlement is very different in the states respecting this matter. Our statute is copied after the English statute.

The New York statute reads: “A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person * * * or having in his possession, custody, or control, as a bailee, servant, attorney, agent, clerk, trustee, or officer of any person, association, or corporation, or as a public officer, or as a person •authorized by agreement, or by competent authority, to hold or take such possession, custody, or control, any money, property, evidence of debt or contract, or article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof, steals such property, and is guilty of larceny. ’ ’

The Illinois statute reads: “Whoever embezzles or fraudulently •converts to his own uso, or secretes with intent to embezzle or fraudu-lehtly convert to his own use, money, goods, or property delivered to him, which may be the subject of larceny, or any part thereof, shall be ■deemed guilty of larceny.”

The Massachusetts statute reads the same as the Illinois.

The California statute reads: “Every clerk, agent, or servant of •any person, who fraudulently appropriates to his own use, * * * any property of another which has come into his control or care by virtue of his employment, * * * is guilty of embezzlement.”

The Alabama statute reads: “Any officer, agent, or clerk of any incorporated company, or municipal corporation, or clerk, agent, servant, or apprentice, of any private person or persons, who embezzles or fraudulently converts to his own use, * * * any money or prop-. erty which has come into his possession by virtue of his office of employment, shall be punished, on conviction, as if he had stolen it.”

The judgment, for the reason that the money came into the custody of the accused before the amendment of April 29, 1902, must be reversed and there being no controversy about the evidence in that respect the accused will be discharged at the costs of the state.

Laubie, J., concurs.

BURROWS, J.,

concurring:

I concur in the conclusion, and am of opinion that the alleged crime was committed in respect to every element of it, prior to the time that the amended statute went into effect.