text:
    PROVOCATION AS AN ELEMENT OF DAMAGES.
    Circuit Court of Hamilton County.
    Gus W. Menninger v. James Taylor.
    Decided, December 28, 1907.

      Assault and Battery — Civil Action Against the Assailant for Damages — Charge of Court as to Provocation — Error.
    In an action for damages for malicious assault, an erroneous charge by the court with reference to provocation constitutes reversible error, notwithstanding the evidence warranted the jury in fixing the damages at the amount named in the verdict.

      Cogan & Williams, for plaintiff in error.

      Phares, Gusweiler & Rosenberg, contra.
    Gieebn, J.; Swing, P. J., and Smith, J., concur.
   In an action for damages for assault and'battery, the following instruction is erroneous:

‘ ‘ If you find from the evidence .that the conduct of the defendant was not the result of fear of injury to himself, nor such excitement as the circumstances of the case might arouse in the mind of a man of ordinary good temp'er, but was the result of provocation or sudden anger brought into action by the occasion, the jury may go beyond compensation for loss and suffering, and may add any sum you may think reasonable by way of punishment of the defendant and an example to the public.”

Provocation may be considered in mitigation of punitive damages, but not as a ground for awarding such damages. Mahoning Valley Ry. Co. v. De Pascale, 70 O. S., 179.

The condition of sudden anger may have been the result of some unlawful act of the plaintiff, and yet under this charge would warrant exemplary damages.

The evidence, which is all before us, discloses an unprovoked and malicious assault, and the jury under proper instructions could hardly award less damages; but the error seems to be, under the ruling of our Supreme Court, reversible. Globe Insurance Co. v. Sherlock, 25 O. S., 50.

Judgment reversed and cause remanded for a new trial.’


source: Caselaw Access Project

license: Public Domain

text:
    ERRORS IN TRIAL FOR PERSONAL INJURIES.
    Circuit Court of Hamilton County.
    The Cincinnati Gas & Electric Co. v. Mary Coffelder.
    Decided, July, 1908.

      Misconduct of Counsel — Ground for a New Trial, When — Charge of Court — Negligence—Preponderance of the Evidence — Reading Pleadings to Jury — Motion for New Trial After Term.

    1. It is not error for the trial judge to read the pleadings to the jury before explaining them, or to permit the jury to take the pleadings to the jury room.
    2. It is error in the charge of the court to so define the weight of the evidence as to exclude documentary evidence, or to define the preponderance of the evidence as other than that evidence which determines the conclusions which must be reached.
    3. A reviewing court will not undertake to proportion the blame for improper argument provoked by. counsel for the other side, but where objection is made to such argument it is a duty which is not merely discretionary on the part of the trial court to interpose and admonish the offender and. instruct the jury to disregard what has been said, and failure so to do is ground for a new trial.
    4. It is not error to overrule a motion for a new trial filed after term, based on newly-discovered evidence which could not with reasonable diligence have been discovered before, where no witness is called to prove due diligence in ascertaining the facts.

      John W. Warrington and Murray Seasongood, for plaintiff in error.

      A. W. Goldsmith and Charles M. Gist, contra.
    Giffen, J.; Swing, P. J., and Smith, J. concur.
   The petition filed by the plaintiff, Mary Coffelder, in the United States Court was substantially, the same as the one upon which the case was tried in the common pleas court, and as it contained no admission not found in the latter, there was an error in excluding it as evidence.

The charge of the court that .the defendant “did dig the trench .and is responsible for whatever result naturally grew out of itbat” is -not equivalent to saying that the defendant is an insurer against accident. If the defendant took all necessary precautions to warn and protect the public, especially at night, and an accident nevertheless occurred through the negligence of the person injured, it was the natural result, not of digging the trench,'but of such negligence as an abstract proposition of law, and without further explanation its tendency would be to mislead the jury; but in subsequent portions of the charge the court specified the particular results for which, under the pleadings, the defendant would be responsible, and it was not therefore prejudicial.

It was not error to read the pleadings before explaining them to the jury, and we are aware of no rule in this state preventing the jury from taking them to the jury room.

The court erred in charging the jury that “by preponderance of the evidence is meant * * * the evidence that you believe -and that influences your mind in arriving at the conclusion you made.”

They may have been' influenced by evidence that did not outweigh or overbalance the evidence .that required a different conclusion. It is not a question of what may but what .amount of evidence must influence their mind.

In the next paragraph of the charge “the weight of the evidence” is so defined .as to exclude from consideration all the documentary evidence received, which was .also error.

The first and third specifications of improper argument to the jury by counsel for plaintiff show that it was provoked by and made in answer to the argument of counsel for defendant, and the court will not undertake to apportion the blame in order to inflict a penalty - upon the client. The second -specification is as follows:

‘ ‘ Talking ab-ou-t railroads again, I have seen that demonstrated more than once, that one man wants to relieve himself of responsibility of want of discharge -of duty. If there is a verdict in this case you will find Mr. Kenan wanting to know who is responsible for this dereliction of,duty. He will send for Mr. Miller and Mr. Franklin and Mr.' Kruse and Mr. Reising, and they will try to put the blame on this dead man.
“Mr. Seasongood: I want to object to this; just because Mr. Goldsmith’s railroads do that is no reason why he should accuse us of it.
“Mr. Goldsmith: I object to that.
“Mr. Seasongood : Will Your Honor instruct the jury to disregard that?
“Mr. Goldsmith: Yery good. It may go out. * * *
“Mr. Goldsmith: I have a right to charge that is-natural that these men who are in interest—
“Mr. Seasongood: That is entirely incompetent to argue that.
“Mr. Goldsmith: I say Mr. Franklin and Mr. Kruse and Mr. Reising are interested in this controversy, 'as employes and subordinates in this gas company, just as much as this plaintiff and her sister and father.” .

There is no pretense that these remarks were supported by any evidence in the. case, but were confessedly based upon the experience of counsel in like cases against railroad corporation's. To thus .assail the credibility and integrity of witnesses, whose only offense is -their employment with a corporation, is not only highly reprehensible, but a gross abuse of the privilege of counsel, and if permitted to stand unrebuked will tend to inflame existing prejudice against corporations and their employes and to defeat -the general -administration of justice as well as work an injury .to the defendant in this ease.

If counsel had been content to rest when, upon objection by counsel for defendant, he said “It may go out,” we might assume that the withdrawal was made in the proper spirit and that no prejudice resulted; but when he immediately added, ‘‘ I have a right to charge that is natural that these men who are in interest,” it was in effect not only a reiteration of his remarks, but an assertion of the right to malee them .and an aggravation of the offense. The objection of counsel for defendant and the failure of the court to rule on the same affirmatively appear in .the record, thereby bringing the ease within the rule stated in the case of Hayes v. Smith, 62 O. S., 161, and State v. Young, 77 O. S., 529. There was no prejudicial error in defining negligence or proximate cause, nor in charging the jury to fitlly compensate 'plaintiff for injuries caused by negligence of defendant.

The petition for a new trial filed after term is based on newly-discovered evidence which the defendant could not with reasonable diligence have -discovered before, misconduct and fraud of plaintiff,' and false testimony. The misconduct and fraud consist in .alleged false testimony of plaintiff, her family and physician, which is of no avail until the guilty party has been convicted. Section 5354, Revised Statutes, sub. 10.

i It does not appear that the deféndant could not with reasonable diligence have discovered the evidence hearing upon the question of plaintiff’s earning capacity before and after the accident, and as to the cause of a permanent lowering of her shoulder; while it is -true that no amount of diligence or foresight would suggest that a brother would voluntarily furnish a clue to facts tending to prove the falsity of his sister’s testimony, yet there were many natural and easy sources of information leading up to proof of her earning capacity and the extent of her injury to which the defendant did not resort.

No employer, officer or attorney of the defendant was called as a witness to prove due diligence in ascertaining the facts. ITence there was no error in refusing a new trial upon petition filed after term; but the judgment will be reyersed for error in the charge and failure of tire court to rule upon objection to improper remarks of counsel to the jury, and the cause remanded for a new trial.


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    FACTS PREFERABLE TO EXPERT TESTIMONY.
    Circuit Court of Guernsey County.
    The Wills Creek Coal Company v. Mary Jones, Administratrix.
    Decided, November Term, 1907.

      Negligence — Evidence as to Facts Existing at Time of the Accident— Should he Given to the Jvtry in Preference to Expert Testimony, When.

    WEere 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.”

      Robert S. Scott, for plaintiff in error.

      James Joyce, for defendant in error.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to Guernsey Common Pleas Court.
   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 at 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:

‘ ‘ Q. Now, I believe you told before what the duties of a mine boss were. A. Yes, sir.
“Q. In that mine, Mr. Kackley, by your experience as a coal miner, if the fire boss had gone through Entry 53 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 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 53 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 would 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) 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 Railroad Company v. Schultz, 43 O. S., 282, 283, in the opinion by Welch, C. 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 their opinions, the witnesses should be restricted in their testimony to such facts, and the jurors left to form their opinions from theke 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 on Expert Testimony, pages 15 and 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 doing of such things. The witness can not 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 last cited the 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 case in many respects, especially one'.' One witness testified he informed the fire boss, L’atchney, 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 that 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. ' '


text:
    ENFORCEMENT OF UNION MUTUAL FIRE INSURANCE COMPANY’S ASSESSMENTS.
    Circuit Court of Hamilton County.
    James B. Swing, as Trustee, v. Clinton Crane and J. O. Cole.
    Decided, July 18, 1908.

      Fire Insurance — Assessments against Policy-Holders in the Union Mutual — Tivo Assessments for Same Liability — Application of the Statute of Limitations.

    1. The decree of the Supreme Court, in the action for ouster of the Union Mutual Fire Insurance Co., does' not bar any stockholder or member from questioning his liability for an assessment or from setting up any other defense.

      2. Moreover the six years’ statute of limitations' runs against an assessment levied on a policy-holder of this company, and the running of the statute is not barred by the approval by the Supreme Court of a second assessment against the same party, when it cover's the same liability as the first assessment with probable costs of Collection added.
    P. A. Reece, for plaintiff in error.

      Stephens, Lincoln é Stephens, contra.
    Smith, J.; Swing, P. J., and Gtffen, J., concur.
   Prom an examination of -the evidence in the above case, together with ithe facts' admitted by the' pleadings, we are of the opinion that the judgment of the court below should be affirmed. The decree entered by the Supreme Court in -the suit for ouster of the Union Mutual Pire Insurance Company of Cincinnati would not exclude any stockholder or member from questioning his liability for an assessment or as to any 'other defense he might have. Swing v. Humberg, 101 N. W., 938.

It clearly appears that the defendants have no assessment nates;.that their policies were of the standard form; -that no special regulations were written or printed upon or attached in any way to said policies, and that when the policies were issued to them they never agreed to accept any assessment insurance. Besides, the company never reorganized under the statutes of Ohio relating to mutual fire insurance companies, as amended by act,approved April 14, 1.888, to take effect July-1,1888. We think, -therefore, that the- plaintiff is not entitled to recover as against the defendants.

Second. In addition, we are further of the opinion, that if the plaintiff in error has a claim against defendants in error that this claim is now barred by the statute -of limitations. The defendants held a short term policy and cash was paid therefor. The trustee’s first report was made in 1891, and the assessment ordered the same year. In 1896 he filed a supplemental report setting out the liability -of C. Crane & Company, and was ordered .to levy an assessment thereon. In 1897 he again filed a report -showing that he -had assessed Crane & Company on their two policies for $558.87, and this assessment was approved. . Nothing, however, was done under this assessment as far as C. Crane & Company were concerned... On June 11, 1901, another assessment was approved by 'the Supreme Court against the policy holders, including C. Crane & Company, and from which it is evident that it is an assessment including probable costs of collection for the same liability assessed and approved in 1897. This being so, it would seem that the action oh this last 'assessment is barred by reason of the lapse of six years from and after the making and approval of the prior assessment in 1897. The last assessment was not on account of a further liability arising out of the fact that the prior assessment was not sufficient in amount .to cover the liabilities to which the defendants in error.- were bound to contribute, but rather it seems.' that the prior assessment was a claim against Crane & Company of their entire amount of liability. It was the duty, therefore, of the trustee to have at 'once asserted it, as the subsequent assessment could not revive the former one and stop -the running of the statute. Swing, Trustee, v. Ohio Cultivator Co., 9 C. C.—N. S., 45.

Judgment affirmed.


text:
    STREET IMPROVEMENT ASSESSMENTS.
    Circuit Court of Lucas County.
    William H. Prentice et al v. City of Toledo.
    Decided, March 21, 1908.

      Streets — Assessments for Improvement of — Character of the Property may he Considered — Burden of Proof — Discretion in the Matter of Levying — Courts will not Interfere Unless Grossly Excessive — Section 1536-218.

    1. Street paving assessments will not be enjoined as excessive and inequitable unless so established by a preponderance of proof.
    2. The potential as well as the present use of property is to- be taken into account in making assessments for public improvements.
    3. An assessment for a street improvement of $943.59 upon property estimated after the improvement by complaining owner’s witness £t $2,800, although slightly above 33 1-3 per cent, thereof, will not be interfered with as being in. contravention of Section 53 of the municipal code of 1902 (R. S., 1536-213), where there is other evidence that the assessment is less than 33 1-3 per cent, of the 'value of the' property as enhanced by the improvement.

      F. E, Geer, for plaintiffs,
    cited: Walsh v. Sims, 65 Ohio St., 211; Norwood v. Baker, 172 U. S., 269; State v. Newark, 37 N. J. Law, 415; Hammett v. Philadelphia, 65 Pa. St., 146; Tide-Water Co. v. Coster, 18 N. J. Eq., 518; Dillon, Mun. Corp., Section 761; Griswold v. Pelton, 34 Ohio St., 482; Chamberlain v. Cleveland, 34 Ohio St., 551; Schrader v. Overman, 61 Ohio St., 1; Walsh v. Barron, 61 Ohio St., 15; C., L. & N. Ry v. Cincinnati, 62 Ohio St., 465; Davidson v. New Orleans, 96 U. S., 97; C., N. O. & T. P. Ry. v. Kentucky, 115 U. S., 321; Dayton v. Bauman, 66 Ohio St., 379; Ayers v. Toledo, 6 C. C.—N. S., 57; Breuer v. Cincinnati, 52 Bull., 281; Cincinnati v. James, 55 Ohio St., 180; Pike v. Cummings, 36 Ohio St., 213; Groesbeck v. Cincinnati, 51 Ohio St., 365; Blair v. Cary, 2 C. C.—N. S., 25; Birdseye v. Clyde, 61 Ohio St., 27; Lewis v. Symmes, 61 Ohio St., 471; Price v. Toledo, 4 C. C.—N. S., 57; Cincinnati v. Shoemaker, 10 C. C.—N. S., 38; Stafford v. Hamston, 2 Brod. & Bing., 691.
    Wildman, J.; Parker, J., and Kinkade, J., concur.
    Appeal from Lucas Common'Pleas Cburt.
   This is a suit brought here by appeal to enjoin paying assessments on Central avenue, between Collingwood avenue and Cherry street. A number of plaintiffs, property owners, have united in bringing thé 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 eoiirt and probably throughly 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, 4 C. C.—N. S., 57, in which, on page' 63, if my memory serves me, Judge Hull used some'quite strong language in defining the province1 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 properties 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 arid 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.1 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 from $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 can not 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 use 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, 10 C. C.—N. S., 38, in the opinion it is said, page 44:

“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 -theuse that has been already 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.

We 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 Í 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 ivitness Emrich places the benefit as high as $3,500. 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 moré 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; 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 thé 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 eoncludéd 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.


text:
    RETAKING GOODS SOLD ON INSTALLMENTS.
    Circuit Court of Hamilton County.
    Jacob Tennenbaum v. State of Ohio.
    Decided, November, 1907.

      Criminal Law — Defective Affidavit in Prosecution for Retaking Goods Sold on Installments — Conditional Sales — Sections 4155-2, 4155-3 and 4155-4.
    In the absence of an allegation that the transaction was a conditional sale as defined by Section 1 of Revised Statutes 4155-2, a demurrer will lie to an affidavit charging the seller with retaking goods which had been sold on installments and on which the amount paid exceeded twenty-five per cent, of the contract price for said goods.

      Thomas H. 'Darby and Lem 8. Miller, for plaintiff in error.

      Benton 8. Oppenheimer, for the state.
    Swing, P. J.; G-iffen, J., and Smith, J., concur.
   Jacob Tennenbaum was tried, convicted and sentenced in the police court of the city of Cincinnati, on a warrant and affidavit containing the following charge:

“That one Jacob Tennenbaum, on or about the 2d day of April, 1907, at the city and county aforesaid, did unlawfully and knowingly take possession by writ of replevin of certain furniture and household goods, theretofore, to-wit, on the 26th day of August, 1905, sold by said Jacob Tennenbaum to said affiant to be paid for in installments, and then and there in the possession’ of said affiant, without then and there tendering or refunding -’to said affiant any part of the money paid by said affiant to «aid Jacob Tennenbaum, the amount so paid having exceeded tw.enty-five per centum of the contract price of said property.”

We are of the opinion that no offense is charged in this affidavit under our statute. There is no allegation in it that it was a conditional sálé, as defined by Section 4155-2, Section 1, Revised Statutes. A conditional sale as therein defined is one where the title remains' in the vendor until 'the purchase price is paid.

Section 4155-3, Revised Statutes, provides that property so sold, that is conditionally, shall not be retaken except upon the repayment of a certain amount of the purchase price; and Section 4155-4, Revised Statutes, provides that any one violating this provision shall upon conviction be deemed guilty of a misdemeanor.

There being no offense charged, the demurrer of the defendant to the affidavit should have been sustained. The offense defined by the statute must, in substance a.t least, be charged in the affidavit, and there 'is no charge here.

Judgment reversed.


author: Cook, J.,

text:
    COMPENSATION FOR. PUBLIC OFFICERS IN ADDITION TO THEIR SALARIES.
    Circuit Court of Carroll County.
    The State of Ohio, for the Use of Carroll County, by D. O. Rutan et al, v. George S. Tinlin et al.
    Decided, November Term, 1907.

      Officer and' Officer — Compensation to County Auditor — For Services in Furnishing Blanks to Assessors — Commissioners Without Authority to Allow — Sections 1029, 2749, 1069 et seg, 1077, 1078, 1528 and 2729.
    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 Section 1029, Revised Statutes, does not expressly so provide, county auditors are not entitled to additional compensation for services in furnishing blanks to assessors.
    2. If the provisions’ of this section could be construed to mean that auditors are entitled to extra compensation for their services in furnishing such blanks, as no rate therefore is named therein, or in the sections that specify the rates by which all services of such auditors shall be estimated, Sections 1077 and 1078 forbid the allowance by the commissioners of such compensation and" render the same unlawful.
    Brief of Fimple & Eckley, on behalf of defendants:
    There are just three questions for determination in this ease— one of faet, .and two of law, viz.:
    1. Did Mr. Tinlin in securing .the allowance of the claim involved make any misrepresentation or practice any deception or fraud on -the commissioners?
    2. Do the provisions of Section 1029 of the Revised Statutes furnish the basis .for any legal claim for compensation to the auditor ?
    3. What effect' or application, if any, has the statute of limitations in this case?’ .

      First. As to the-question of. fact, it is only necessary to say that the record is not entirely barren of any evidence whatever tending to show any misconduct on the part of Mr. Tinlin, but on the contrary the evidence does show and the lower court so found, that this claim was allowed in the open, on* its merits, after full consideration and discussion by the commissioners in the presence of their legal adviser, the prosecuting attorney.

      Second. 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 Sections 1029, 1528 and 2749 of the Revised Statutes of Ohio.
    Our contention is, that it was the purpose and province of Section 1029 .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 Section 1528 to provide for the payment of the cost of the blanks themselves.
    This, we submit, is the plain ordinary meaning of the language employed in the respective sections. Eliminating from Section '1029 the clause which is descriptive of the blanks, the section reads:
    ‘ ‘ The -auditor shall furnish '.the several assessors all blanks, and all reasonable charges therefor shall be allowed by the county . commissioners and paid 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, and 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 iá 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.

      Similar analysis of the language used in Section 1528 makes it equally plain that this section provides for the payment of the blanks themselves. Eliminating from this section the clause descriptive of the blanks, it provides as follows: “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 Sections' 1029, 1528 and 2749, will wholly remove such doubt.
    Section 1029 in exactly its present form is derived from Section 18 of the act ot-April 18, 1870 (67 O. L., page 103). Noiv bearing in mind the date of the enactment of this provision, let us see what the status of the law, in so far as it is now embraced in Sections 1528 and 2749, was at the time the provision now contained in Section 1029 was enacted. Section 1528 is derived from three acts as follows: Act of February 5, 1859 (S. & C., 87), requiring the auditor to furnish the assessors blanks for securing statistics relative to sheep killed or injured by dogs, etc.; act of March 26, 1861 (O. L., 58, p. 40), requiring the auditor to furnish assessors blanks for securing statistics relative to the deaf, dumb, blind,'insane, or idiotic persons, etc.; and the act of March 31, 1866 (S. & S., 21), amendatory of the last mentioned act, and it is important to note that none of these acts contained any express provision authorizing payment of the cost of the blanks out .of the county' treasury, although it certainly was clearly implied, as it could not have been the legislative intent, that the auditor should himself pay out of his own pocket the cost of the blanks; hence the codifying commission at the time of the preparation and adoption of the Revised Statutes, in 1879, inserted the express provision to that effect which now constitutes the last clause of Section 1528, as follows, “which shall be paid for out of the county treasury.” Further, Section 2749 is-derived from Section 56 of the act of April 5, 1859 (O. L., 56, page 200), which required county auditors before the 15th of April, annually, to make out the blank forms and instructions for township assessors and forward them to the township clerks; and the amendatory act of April 13, 1865 (O. L., 62, page 144), which substantially conforms to the provision now contained in the last paragraph of Section 2749, but there was np provision that the state auditor should furnish the county auditor a sample blank form for the listing of property as now provided in said section, until the amendment by the .act oE March 13, 1891 (88 O. L., page 96).
    It will thus be seen that from 1859 to 1866 there were various laws enacted requiring county auditors to furnish township assessors with various forms of blanks necessary, not only to the listing of property for taxation, but for the gathering of various kinds of statistics. And the duty was enjoined upon the auditors of instructing the several assessors as to the manner of using the blanks so furnished. And while in none of the acts was there any express provision that the cost of the blanks themselves should be paid out of the county treasury, as before stated, it certainly was fairly implied, so that when the Legislature in 1870 enacted the provision which now constitutes Section 1029, it certainly was not the legislative intendment to thereby provide for the payment of the blanks, but was intended to -provide reasonable compensation to the auditor for his services in furnishing the various blanks required of him. And this must have been the view and construction adopted by the codifying commission in 1879, for after the commission had embodied in the Revised Statutes Section 1029 and came to a consideration of the provisions of law, which now constitute Section 1528, they expressly inserted that which was plainly .therefore implied, viz., a provision that the blanks should be paid for out of the county treasury. This we submit ought -to be absolutely conclusive of the correctness of our contention as to the construction to be placed upon these iiuo respective sections.

    It was the business of the codifying commission to bring together all statutes relating to the same matter, to reconcile contradictions, and to omit all redundant and superfluous provisions. And it is wholly unreasonable to believe that these two sections would have been adopted in their present form, unless the construction herein contended for was the true construction placed upon the respective sections by the codifying commission.
    Aside from the foregoing considerations we respectively submit that the Circuit Court of Delaware County, in the case of The State v. Lewis (unreported), decided July 2, 1903, a transcript of which case is before this court, expressly held that the provisions contained in Section 1029 are sufficient, to form a basis for a legal claim by the auditor for compensation for services rendered in furnishing the several .assessors blanks.,. That was an action instituted by the .prosecuting attorney against Lewis, as auditor, to recover back certain moneys which had been paid to him as auditor. The petition in that ease (see 40 and-41 causes of action) expressly states that the sums therein claimed was paid to Lewis, as auditor, out of the county treasury, “as compensation for alleged services for preparing and supplying the assessors with blanks imder Section 1029 of the Revised Statutes.” And the answer of Lewis (see third defense) expressly states, “that each' and every of said several amounts so received by said Lyman P. Lewis, upon the accounts presented, to and allowed by the commissioners and so by the commissioners paid said Lyman P. Lewis, were for lawful services by the said Lyman P. Lewis theretofore performed as such auditor .and for which he was entitled to charge and receive the several amounts paid him.”
    The agreed statement of facts (see last .paragraph) is as follows:
    “It is further agreed that as to the causes of action 40 to 41, both included, that said Lewis, as auditor .of Delaware county, received the amount shown in sa.id causes of action at the time therein stated; that said amounts were paid to said Lewis for preparing and supplying the assessors of Delaware county with necessary blanks under Section 1029, Revised Statutes; that he presented bills therefor to the county commissioners of Delaware county, who, after due consideration, allowed the same as proper -and just compensation to said auditor for the services so rendered.”
    The -finding of the circuit court (see journal entry) shows that the court held that the common pleas court erred in overruling the general and special demurrers filed by defendant to each and every cause of action, from the 10th -to and including the 41st causes -of action and erred in rendering a judgment against the defendant below, “upon -causes of action 40 to 41 both inclusive, for the further reason that said judgment is not supported by the law and is contrary to the evidence, as shown by the agreed Abatement of facts. ’ ’
    If will he noted -that both the pleadings and the agreed statement -of'facts -in this ease, -expressly stated that Lewis’ claim was a claim as compensation, and was a claim for services rendered as provided in Section 1029.
    In view -of these express’statements, .h-ow -can it possibly be contended that the circuit court did not expressly hold that the provisions of Section 1029 furnished the basis for a legal claim of compensation for services rendered in furnishing assessors blanks, as therein provided. The State Bureau of Inspection has so construed it and applied it in every county -of this state, from the time the decision was rendered until’ the present. See defendant’s Ex. H, being letter addressed to Auditor Marshall of this county, from the State Bureau, under date of January 21, 1905, wherein it is stated in answer to the auditor’s inquiry that:
    “Our holding is that the auditor is entitled to a reasonable compensation for furnishing the blanks, etc., to the assessors. Our finding is based upon the decision of the Circuit Court of Delaware County, that being the only decision on the subject that we know of. ’ ’
    See also letter of Attorney-General Ellis to Hon. John A. Eylar, Prosecuting Attorney Pike County, Ohio, tinder date of June 9, 1904, wherein he states:
    “In reply to your communication of the 6th inst., concerning compensation to county auditors for furnishing blanks, advice and instructing assessors, I beg leave to say it has been held by one of our circuit courts that the auditor is entitled to compensation for preparing and supplying the assessors necessary blanks, as provided in Section 1029, R. S. I am of the opinion that the auditor is not entitled to any compensation under Section 1528, as that section provides particularly for the payment for necessary blanks]” etc. (Annual Report of Attorney-General Ellis for 1905] page 181.)
    Third. The .provisions of Section 1029, 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 fraitd 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: Board of County Commissioners of Wood County, et al v. Robert Pargillis, 10 C. C. Rep., 376-386-388; Ephriam Ridenour et al v. The State of Ohio, 14 C. C. Rep., 393-396-399-400; Walter Plessner v. John L. Pray et al, 6 N. P., 444-446; Board of Commissioners of Hamilton County v. Noyes, 35 O. S., 201, paragraph 3, syllabus.
    The same doctrine is recognized in- the case of Jones, Auditor, v. Commissioners, 57 O. S., 189-211-213-216. And in the case of The Printing Company v. State, 68 O. S., 362-367-369-370.
    That the statute of limitations has no effect upon or application to this ease whatever, we think is made clear by the following: Fisher’s Executor v. Moseman et al, 11 O. S., 42-46; Taylor et al v. Thorne, Administrator, 29 O. S., 569-573; Commissioners v. Ziegelhofer, 38 O. S., 523; Stewart v. Logan County, 2 C. C. Rep., 134-135; Taylor v. Fitch,, 12 O. S., 169; Chinn v. Trustees, 32 O. S., 236.
    We do not believe that 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 iu detail according to the rates named in sections preceding 1077. And yet Judge Harter in his opinion places a great deal of emphasis upon that and appears to regard -the fact that the claim could not be thus made out as precluding any allowance for the services.
    In Jones, Auditor, v. Commissioners, 57 Ohio State, it is said in the opinion:
    ‘ ‘ That the right to present depends upon whether the claim be one, the rate of which is fixed by statute, and also whether the claim for some amount may be legally paid from the treasury. Both these conditions must concur. But if the rate is not 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. ’ ’
    Surely the Supreme Court had in mind claims for services which could be inade out in detail, and for which the statutes had provided rates, and this must be the true meaning of the ftatute and not because no rate is provided, or that it is impossible to make out a claim in detail according to any specified rate, that therefore the claim is illegal and void. If that be time, then there could be no compensation to the auditor for services rendered under Section 4064 for services in transmitting to the commissioners of common schools reports and returns oE .common schools statistics. The section reads:
    “The commissioners of each county shall allow the county auditor, annually, a reasonable compensation for his services under" this title, not tó exceed $5:00 for each city, village, special, and township school district in his county, to be paid out of the county treasury. ”
    It is just .as important to make out a claim under this section in detail according to the rates named in the sections referred to in Section 1077, as it would be under Section 1029, and yet nobody doubts but what an auditor can be lawfully compensated for services under this section.

      The seotions included in chapter 4, title 8, are not the only-sections that provide for compensation to county auditors.
    For instance, he is entitled to compensation. under Section 1536-91 for keeping the record of the plat commission, under Section 2625, and for services under 3501a, the fees being provided in 3502. Again in 4451a, fees in ditch cases; making record, etc., in 4506; in county ditch cases, 4507, which provides that:
    “All fees under this chapter shall be paid out of the county treasury, as soon as the bill of items thereof' is examined and allowed by the commissioners, and the auditor shall issue orders .therefor on such allowance; ,and for all amounts so paid, except to the commissioners, auditor and probate judge, the commissioners shall order the general county funds to be re-imbursed for the money raised for the respective improvements. ’ ’
    There is no rate provided in any of these sections such as' is mentioned in 1077; the rates therein referred to are the rates provided for in those sections of that chapter that is provided a rate; and so the Legislature when it enacted 1077 and 1078 and Judge- Spear when'he used the language quoted herein from Jones v. Commissioners can not be held to have meant anything else than that Sections 1077 and 1078 were applicable only to those 'Sections in chapter 4 of title 8, which provided a rate of compensation. And it did not mean and could not mean- in view of the subsequent sections referred to herein to say 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 Sections 1069, 1071, 1073, 1074 and 1075, the only sections that precede 107.7 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 Section 1077.

      W. L. Handley and J. C. Oglevee, for plaintiffs.

      Fimple é Hcldey, for defendants.

      Laubie, J.; Burrows, J., concurs; Cook, J., dissents in a separate opinion.
   The case of the State of Ohio, for the use of Carroll County, by D. O. Ruthan 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 eentain 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 ('$4) each year for each assessor, making a total of four hundred and eight ($408) dollars, which the commissioners allowed, under Section 1029 of' the Revised Statutes; 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 nót 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' (Section 2749, Revised Statutes) ; so that the services performed by the auditor in this instance were simply procuring the printing' of the blanks, according to the forms thus furnished, and distributing them to the assessors, as substantially provided'in said Section 2749, as well as in said Section 1029.

Said Section 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 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 articles 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 can not 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 Section 1075 in regard to filing away the tax' returns -of the assessors, for which they receive 25 cents for each township; and as it did in every other instance where it intended to confer special eompen-, sation in addition to such officers’ annual salary.

When Mr. Tinlin became auditor, said Section 1029 and Sections 1069 to 1078 inclusive, of Title 8, Chapter 4, Revised Statutes of■ 1880, 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. Section 1069, 1070 and 1072, fixed and named a ratable per annum salary for the general services of such auditors, according to population, and Section 1071, 1074 and 1075, an additional compensation forserviees in special matters therein named. Section 1073 specifies the amount of fees that the auditor may charge and receive in performing for individuals the duties therein specified; and Section 1076 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, of otherwise, are the services involved herein referred to in any manner; and even if said Section 1029 could be construed to include payment for services of the auditor, Section 1077 is inconsistent therewith, and absolutely prevents the allowance by the commissioners ' of any compensation therefor, as follows:

“Section 1077. 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, if satisfied that the services have 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 re-' ferred to .in said Sections 1071, 1074 and 1075, and the commissioners could not allow the auditor compensation for any other services than those named as tó which a rate — amount of compensation — was provided. Neither auditor nor commissioners had any right to create á 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 are the services in furnishing blanks to assessors named or referred to, or any rate specified therefor, and consequently none can be allowed.

As the provisions of said Section 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 m the sections 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 Section 1078 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 Sections 1069 to 1076 inclusive.

“Section 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 cohld be any doubt as to this, then no specific compensation could be allowed for such services, as compensation for a specific act can not be allowed unless clearly and definitely specified in the statute. So that if the Legislature intended by the provisions of said Section 1029 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 — whether intentional or not is immaterial, as the language is plain and explicit.

By the enactment of said Sections 1077 and 1078, no compensation for any other service than those specified in said subdivision of Title 8, Chapter 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 Section 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 Sections 1077 and 1078, as no rate is named in said Section 1029.

In State v. Hamilton, 47 O. S., 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 O. S., 82, would probably determine it against the defendants in error.

A number of such subsequent sections are the ones named in Sections 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 ease.

In May, 1902, the Legislature amended said Section 1069 by fixing the ratas of the auditor’s salary by a percentage on all moneys collected by the county treasurers, and repealed said Sections 1069, 1070 and 1072, but Sections 1071, .1073, 1074, 1075, 1076, 1077 and 1078 were not, and. remained .in force as before. Such amendment and repeal 'therefore in no manner affects the question we have. here.

Section 1528 of the Revised Statutes has no effect upon the construction to be given to the provisions of said Section 1029; and we can not see,how it can help the contention of the defendants. Section 1528 is Title II, in Chapter 2 under the heading “Officers of Civil Townships,” subdivision '“Assessors”; and provides that “county auditors 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 Section 1029, as such claim could not be paid until allowed by the county commissioners, and legally they could allow only a reasonable sum.

Further, Section 1029, Sections 1069 to 1078 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 Section 1029 was the only statute on the subject of general scope and that provided for payment until said Sectiqn 1528 was enacted in the revision of 1880, and it evidently was not intended to, and it did not expressly, or by implication, modify in any manner the meaning of Section 1029, or the effect of the provisions of said Sections 1077 and 1078 which, for the reasons heretofore assigned, precluded the 'award of any compensation for furnishing the blanks, even if said Section 1029 could be construed to mean that such auditors should be compensated for their services in furnishing such blanks.

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 Section 1029. It not only duplicated the provisions of Section 1029, but triplicated it as to the auditor’s duty in Section 2794, Revised Statutes, as re-enacted in March, 1891.

It is true that this question was settled otherwise by the Circuit Court of Delaware County, in ease of The State, for use, etc., v. Lewis, Auditor, et al, wherein it was sought to recover back money paid him for services in furnishing blanks to assessors, as in the case at bar; and the courts in that county held in his favor. In other words, that the auditor was entitled to such payment. Thereupon the case was carried to the Supreme Court on error, but was never heard in that court, as the parties disposed of it themselves.

However, the Supreme Court, in a former case between the same parties, Lewis et al v. The State, for use, etc., 57 O. S., 189, disposed of in connection with the case of Jones, Auditor, v. Commissioners of Lucas County, settles the question made here upon principle, and shows clearly that a county auditor is not entitled to any compensation for services in furnishing blanks to assessors under said Section 1029. The court, 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, p. 211, “No extra compensation is provided by statute, at least, not clearly so.” In disposing of the case, Judge Spear says, page 211 ‘et seq:

“Sections 1069 and 1071, Rev. Stat. of 1880, provide a salary to county auditors, from eight hundred to forty-four hundred, depending upon population. Sections 1071, 1073, 1074, 1075 and 1076 provide further compensation for services in special matters therein enumerated, but none of them relates to the subject of inquiry here.

That in order to entitle the auditor to any extra compensation the statute must be clear and explicit, and that such 'Compensation “can not be allowed upon an implication” and that the right of the commissioners to pass upon and 'allow such claims is a very marrow one. That Section 1077 .“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 the 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 nb power do allow could be implied; and if no power to allow, then the attempted allowance would be a nullity.” (The italicizing is mine.)

The opinion thus announced, and the provisions of Sections 1077 and 1078, 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 said Section 1029 were plain and unambiguous.

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

Cook, J.,

dissenting.

I can not concur with my associates in the eonchision 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 gratuitiously, or that he is compensated by his general salary. Such is the uniform holding of our Supreme Court. The question then is: Does Section 1029 provide for such payment? My associates think not, Avhile 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 payment for the blanks.. 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 reasfmable charges therefor ’ ’ refer to the services of the auditor.

It seems to me .that Section 1528 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. ”

Coneededly 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 Section 1029. True, if his contention is correct that the blanks are referred to in both sections, but in 1029

“All reasonable charges' therefor” are to be paid (Sec. 1528 was passed many years prior to See. 1029) .and why duplicate the sections. 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 Section 1029 applies to the payment of the services of the auditor, yet the auditor is not entitled to any .pay for the reason that Sections 1077 and 1078 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 Sections 1077 and 1078 apply to the case under consideration. These sections only apply to cases specified in Sections 1069 to 1076 inclusive. .Section 1077 says distinctly “shall be made out in detail according to /the rate named in the foregoing sections, ’ ’ which are .the sections I have named. They could not apply to all services performed by the auditor, as there are services performed by him that the compensation is not fixed at a specified sum or rate, but is left to the discretion of the commissioners. Take for instance services performed under the .provisions relating to boards of education. Section 4064 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 Section 4898, relating to improved roads, the auditor is to serve as clerk of the board of directors, which is the commissioners, and in Section 4903 it is provided that the elerk shall receive such compensation as shall be agreed upon by the board, but not to exceed two dollars and fifty cents 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 tend to show, as we have said, that Sections 1077 'and 1078 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 Section 1029 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; the state bureau of public inspection officially approving the payment. Furthermore the Attorney-General of the state in a written opinion to the prosecuting attorney of Pike county, June 9th, 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 Section 1029.

In addition to this as stated by my associate in his opinion, the Circuit Court of Delaware County in the case of The State, for use, etc., v. Lewis, Auditor, et al, decided July 2d, 1903, unreported, a case precisely similar to the one we have, by a unanimous court held that under Section 1029 auditors were entitled to payment for their 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 other court was wrong in the prior holding.

The question involved in this case was not before the court in the ease of Jones, Auditor, v. Commissioners, 57 O. S., 189, and that case has no bearing upon it.

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


author: Burrows, J.

text:
    AN INDIVIDUAL PARTNER. MAY BE GUILTY OF EMBEZZLEMENT OF MONEY RECEIVED BY THE PARTNERSHIP.
    Circuit Court of Geauga County.
    Ford v. State.
    Decided, February Term, 1908.

      Criminal haw — Embezzlement—Individual Partner Guilty of — When Money Received by, as Agent, is Converted-to Use of the Partnership-Evidence — Abstracts of Boohs and Documents, Prepared by Expert Accountant, Admissible When — “Thing of Value” — Section 68J/2, as Amended.

    1. An individual member of a partnership who receives money as an agent and secrets it with intent to embezzle and convert it to the use of the partnership may be convicted under Section 6842, Revised Statutes. The fact that the money is received by him as a member of a partnership makes no difference.
    2. 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 custody 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. Under Section 6842, Revised Statutes, 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.

      N. H. Bostwiclc and W. S. Boyd, for plaintiff in error.
    W. G. King, Prosecuting Attorney, and G. W. Alvord, contra.
    Cook, J.; Laubie, J., concurs; Burrows, J., concurs in the conclusion.
   George IT. Ford and Robert N. Ford were jointly indicted by the grand jury of this cotinty for the'crime of embezzlement and for secreting with intent to embezzle and éonvert 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 serceting 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 this 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 bankruptcy.

For many years previous to the assignment, the Fo,rds, 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 schemes 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 and 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 times, 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. Tie received the money from O. 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 books 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 derited 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 of Nau 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 eases 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. Plow 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 he 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 of Boston & Worcester Ry. v. Dana, 67 Mass. (1 Gray), 83, it was held:

“When books 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, iit 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 datá 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 verj^ 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 voluminous, 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 case, and there can be no doubt that, in a trial embracing so many details and occupying so great a length of time as the case 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, Nan, 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 solvent as was also Robert N. Ford, and counsel for the accused Tooth before and after the introduction of the evidence of this expert admitted in open court that both the firm and Robert N. Rorcl 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, Revised Statutes, 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 ease 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, Section 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 McIlvaine 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, but 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 of 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 can not be supported. If the indictment had charged the offense to have been committed in violation of the repealed 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 p'uhishable 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 ait 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 secret and hide it away; and, third, he must secret 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 the 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 Section 6842, Revised Statutes:

“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, 6 C. C.—N. S., 53, where 'it was held, that 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 the 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 can not 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 can not -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 can not construe the language in any other manner than that the receipt of “the thing of valúe” 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 prop-deemed guilty of larcency. ”

The Illinois statute reads:

“Whoever embezzles or fraudulently converts to his own use, or secretes with intent to embezzle or fraudulently 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 property 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.

Burrows, J.

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.