author: Price, J,

text:
    Greek et al., Trustees, v. Joy.

      Township trustees have jurisdiction — To locate and construct ditches — Into and through villages, when.

    Township trustees have jurisdiction to locate and construct a ditch within the township, where it commences on farm lands without the limits of an incorporated village, and extends into or through such village to an outlet.
    (No. 11420
    Decided January 18, 1910.)
    Error to the Circuit Court of Williams county.
    The defendant in error, by petition in the court of common pleas, complained of the proceedings of the plaintiffs in error, because they were about to construct a certain township ditch partly located in the village of Pioneer, in Williams county, and were about to assess part of the cost and expense of construction on his several lots in said village of which village he is a resident and taxpayer. In his petition for an injunction against said trustees, the lot-owner copies the petition for the ditch and the names of the several petitioners, eight in number,. in which is a full description of the termini and route, and it is then alleged that Charles G. Palmer, one of the petitioners, is the owner of the land on which the ditch commences, being the east half of the northwest quarter of section 20; that on this land is a low tract of about ten acres, and a small portion of the north end of the east half of the east half of the southwest quarter of said section owned by L. A. Beard, consisting of about five acres, which could be benefited by the proposed ditch, and that there are no other lands to be reclaimed for agricultural purposes, or that in any wise need surface drainage, and that plaintiff’s property already has adequate and sufficient drainage.
    The plaintiff further states, that .substantially along the line of the proposed ditch is township ditch No. 12, which extends across the low part of the lands of the plaintiff, following a natural watercourse, and from thence across the lands of J. D. Weigle and into the lands of said Palmer, the same being a tile ditch, adequate in capacity to properly drain lands of the plaintiff, and other lands affected thereby; and that this old ditch is ample to drain the lands of Palmer, Beard and Weigle.
    The further allegation is made by the plaintiff below, that while old ditch No. 12 is adequate to drain lots and land affected thereby, the trustees are attempting to entertain jurisdiction over the proposed improvement, in causing the construction of a tiled ditch of much greater depth and capacity, not for the purpose of reclaiming lands and providing for surface drainage, but to provide cellar drainage for lots and lands in said village, and that it departs from the natural watercourse at Mill street and runs along a public alley through high grounds, where there is no natural watercourse, to center of Lynn street, many rods from the natural watercourse and on high grounds where the ditch will be a great depth, for purposes of cellar drainage, et cetera.

    It is also alleged that the trustees, under pre•tense of a township ditch, have invaded the village and threatened to assess the lot-owners abutting on the ditch for the purpose of providing a sewer for said village, greatly enhancing the cost for the improvement, so that said lots will be assessed $133.50 for the construction and $14.05 costs of location, et cetera, which assessment will be oppressive and far in excess of benefits; and that the trustees are without jurisdiction in the premises, and other allegations are made in reference to the intentions of the trustees of an illeg'al character, which will inflict injury upon the said lot-owners, and an injunction is prayed for, restraining the trustees from further proceedings with said ditch and from making the proposed assessments. The foregoing is the substance of the '¡Detition.
    The trustees filed the following answer:
    “The defendants admit that they are the trustees of Madison township, that plaintiff is the owner of the lands, and that the village of Pioneer is a municipal corporation, as averred in the petition.
    •“They admit that a petition was filed with them as the board of trustees of said township, as in said petition averred, and that thereafter such proceedings were had upon said petition, and relating thereto, that said board heard and determined said petition and found that the ditch therein prayed for was necessary, and that the same will be conducive to the public health, convenience, and general welfare, and did proceed to locate and establish the same in substantial conformity with the route described in the said petition.
    “And that said trustees took to their assistance an engineer to locate, level and measure the course, of said ditch and for such other assistance as they might need according to law.
    “The defendants aver that the lands mentioned in the petition, both within and without said village, are in need of drainage, that said ditch is necessary and that its construction will be conducive to the public health, convenience and general welfare, and that it is necessary, in order that said lands lying outside of said village may be drained, that a ditch must pass substantially as located in said proceeding through and across said village to-reach a sufficient outlet.
    “The defendants admit that said proposed ditch follows the line of township ditch No. 12, .in part, and aver that the remainder thereof is located as near thereto as in the opinion of the said trustees would best answer the purposes of said ditch.
    “The defendants further aver that prior to the granting of said petition, the owners of lands within the municipal corporation of Pioneer, which are affected by this ditch, applied to the council of said village and requested of said council that it provide for the construction of necessary drainage within said corporation for said lands, and that said council refused so to do and said council requested said defendant trustees to assume jurisdiction over the matter of said drainage, and requested said trustees to locate and establish, and cause to be constructed, the said ditch in said petition described, and these defendants aver that said council by resolution duly passed and recorded on 'its journal, granted to said defendant trustees, prior to the location of said ditch, the right to use all of the streets and alleys within said village through which said ditch was thereafter located.
    “Said defendants aver that prior to the action of said board of trustees complained of in said petition, the board of commissioners of Williams county, Ohio, in a proceeding had in reference to the location and construction of a ditch, whereby it was proposed to drain said lands with said village, refused to grant a petition therefor.
    “That at the hearing of said petition 'certain persons owning lands through which said ditch will pass, made requests in writing to the said trustees for a tile ditch through their lands and the said trustees did deem the same practicable, and equally beneficial, and did grant their request and. did order that all of said ditch be tiled, and did specify the size of the tile to be used, and the depth that they shall be placed under the ground according to law, and did apportion all expenses incurred according to benefits derived as provided by the laws of Ohio in that behalf.
    “The defendant board denies all of the averments of the petition not herein specifically admitted to be true.
    “Wherefore this defendant board prays that the petition of the plaintiff may be dismissed, that it go hence without day and recover costs herein expended.”
    The plaintiff demurred to the answer on the ground “that the facts stated and averments contained in the said answer do not constitute a defense to the said petition of the plaintiff, and that said answer does not show that the said defendants have jurisdiction in law as a board of township trustees to construct a ditch as set forth in the pleadings.”
    The circuit court, on appeal, sustained the demurrer, and found for the plaintiff as prayed for in his petition and decreed accordingly.
    Error is prosecuted in this court to reverse the judgment of the circuit court.

      Mr. 'Edward, Gaudern, prosecuting attorney, and Mr. Willis A. Estrich, for plaintiffs in error.
    When the only outlet for water lying within one governmental jurisdiction is to be found within another governmental jurisdiction, the sensible thing to do is to conduct such water to such outlet. The interests of agriculture require that farm lands be properly drained whether they lie adjacent to a municipal corporation or elsewhere. Kent v. Perkins, 36 Ohio St., 639; Commissioners v. Harbine, 74 Ohio St., 324; Reeves v. Treasurer, 8 Ohio St., 333.
    If the municipality and the surrounding country are in the same general plane and the ditch may be laid around the municipality with but little disadvantage, the trustees may so locate it and assess the lands within the village for its construction.
      Lewis et al. v. Laylin et al., 46 Ohio St., 663; Cincinnati v. Penny, 21 Ohio St., 499.
    The power to assess is dependent upon the jurisdiction to establish the ditch. The powers to establish ditches is very broad, but can not exceed the limitations of the statute conferring them. Sessions v. Crunkilton, 20 Ohio St., 349; Doney v. Trustees, 1 C. C., 566; 1 O. C. D., 316; Wells v. McLaughlin et al., 17 Ohio, 99; State, ex rel, v. Ward et al., 17 Ohio St., 543.
    Township trustees will be absolutely without power to provide drainage for lands lying above municipal corporations, if the limitation placed upon them by the circuit court is sustained. Hopple v. Trustees, 13 Ohio St., 311.
    A construction of Section 4511, Revised Statutes, authorizing township trustees to establish ditches, ought not to be favored which will defeat, under some conditions, the benefits intended to be conferred upon all of the territory. Lewis’ Sutherland Statutory Construction, 511.
    The law should give the trustees of the township authority to cause a ditch to be located and constructed, even if the lower tenements were within a municipality. The power of drainage by the township trustees is not exhausted by one ditch. Miller v. Weber et al, 1 C. C., 130, 1 O. C. D., 77; Miller v. Commissioners, 3 C. C., 617.

      Mr. R. L. Starr and Mr. C. H. Masters, for defendant in error.
    The defendant in error claims that township trustees have jurisdiction In ditch matters only outside of municipalities, and that where a municipality is involved, the ditch petitioners must resort to the county commissioners under Sections 4447, 4483, 4484, and 4485, or the township trustees can resort to. the county commissioners under Section 4493; and that the attempt to give to the trustees implied powers under Section 4511 to invade villages and municipalities is unnecessary and vicious. Pleasant Hill v. Commissioners, 71 Ohio St., 133.
    Section 4512 defines the meaning of “ditch” and “according to benefits.” Section 4524 provides for boxing or tiling. Doney v. Trustees, 1 C. C., 566. Section 4483 confers certain power upon county commissioners under certain proceedings to construct ditches in municipalities. Cooper v. Commissioners, 16 O. D., 638; Pleasant Hill v. Commissioners, 71 Ohio St., 133. Section 1536-100, Revised Statutes, and following sections confer power upon municipalities to construct ditches, drains and sewers. Section 1536-213 provides for limitation of assessments. City of Toledo v. Railway Co., 4 C. C., 113.
    We claim the legislature did not intend that the township trustees and councils of incorporated villages or cities should have concurrent jurisdiction in the construction of ditches in municipalities. To do so would be repugnant and inimical to the powers of municipalities.
    To drain land is to rid it of its superfluous moisture. People v. Parks, 58 Cal., 639.
    The words “ditch” and “drain” have no technical or exact meaning. They both mean a hollow space in the ground, natural or artificial, where water is collected or passes off. Goldthwaite v. East Bridgewater, 5 Gray (Mass.), 64.
    As generally understood in law the term “sewers” has reference to' the underground canal or passage by means of which cities are drained and the refuse liquids are carried to its sea, river, or other place of reception. 6 Am. & Eng. Ency. Law (1 eel.), 2; Hanscom v. Omaha, 11 Neb. 37, 7 N. W. Rep., 739; Gale v. Dover, 68 N. H., 403.
    It may be true that when the term drainage is used with reference to lands, that ordinarily drainage of waters is intended, but it is clear that when that term is used with reference to a city or town, it includes sewerage. Valparaiso v. Parker, 148 Ind., 381; McCray v. Fairmont, 46 W. Va., 443; Fuchs v. St. Louis, 167 Mo., 620, 67 S. W. Rep., 614; Clark v. Peckham, 9 R. I., 467; Clay v. Grand Rapids, 60 Mich., 452.
    Section 920 of the Iowa code of 1873 gave to board of supervisors general supervision over the highways in the county with power to change them. Gallaher v. Head, 72 Ia., 173.
    Section 969 of ' Iowa code provided that the township trustees shall divide their respective township into such number of highway districts as they may deem necessary for the public good, yet in Marks v. County of Woodbury, 47 Ia., 452, it was held that such power extends only to so much of the township as is not embraced in a city.
    Section 1536-131, Revised Statutes, provides that council shall have control of streets, etc.,, and the cases are numerous deciding that county roads afterwards comprised within the corporate limits of a municipality are subject to supervision of council. Steubenville v. King, 23 Ohio St., 610; Youngstown v. Moore, 30 Ohio St., 133.
    The village of Pioneer, under the code, has full control over all parts of its territory for drainage purposes, and no other power formed for drainage purposes can embrace part of the territory within said village so as to invade the authority of the village in said matters of drainage. Bishop v. People, 200 Ill., 33; People v. Supervisors, 111 Ill., 527; People v. Railway Co., 118 Ill., 520; City of Quincy v. Bull, 106 Ill., 349; Dock & Canal Co. v. Garrity, 115 Ill., 163.
   Price, J,

The township trustees had entertained the petition for the ditch and had proceeded, so far as to confirm the report of the engineer when they were enjoined at the suit of the defendant in error. Many of the allegations of the petition were met by a general denial contained in the answer to which the demurrer was sustained. This general denial follows the affirmative matter in the answer, and a close construction of these pleadings would suggest that the demurrer challenging the sufficiency of the answer should have been overruled, provided the trustees had jurisdiction under the statute to entertain the petition for the’ ditch and grant its prayer. If jurisdiction were conceded, the issues made by the petition for injunction and the denials in the answer should have been tried and determined in favor of the plaintiff before he was entitled to an injunction to stop further proceedings. Keeping in mind the averments of the petition, we find the answer admits the filing of the ditch petition with the trustees, and that such proceedings were had thereon, and relating thereto, that said board had heard and determined said petition, and had found that the ditch prayed for was necessary, and that the same would be conducive to the public health, convenience and general welfare, and therefore proceeded to locate the same substantially on the route described.

It further appears in the answer that the lands mentioned, both within and without said village, are in need of drainage, and that it is necessary, in order that the said lands lying outside of said village may be drained, that a ditch must pass substantially as located in said proceeding through and across said, village to reach a sufficient outlet; that the proposed ditch follows the line of ditch No. 12 in part, and that the remainder of it is located as near thereto' as would best answer the purpose of said ditch.

The trustees further say that prior to the granting of said petition, the owners of lands within the village of Pioneer, which are affected by this ditch, applied to the council of said village and requested that it provide for the necessary drainage within said corporation for said lands, and that the council refused to do so, and that the council requested said trustees to assume jurisdiction over the matter of drainage, and requested them to locate and cause to be constructed the ditch described, and that said council by resolution duly passed and recorded on its journal, granted to said trústees, prior to the location of said, ditch, the right to use all of the streets and alleys within the village through which said ditch was thereafter located. This is not all of the defense, for the answer says that prior to the action of said trustees complained of, the board of commissioners of that county, in a proceeding had in reference to the location and construction of a ditch whereby it was proposed to drain the lands within the village, refused to grant a petition therefor. They say as to the matter of tiling, that at the ditch hearing, certain landowners made request in writing for a tiled ditch through their lands, and the requests were granted and size of tile fixed, and the depth in the ground was also fixed, and that the expenses of the improvement were apportioned according to.law.

The allegation in the petition • that the ditch proceeding was being used to provide a sewer for the village and furnish cellar draining is denied by the answer. The anticipation of this alleged sewer, furnishes many authorities for the brief, but the denial takes it out of this discussion of the demurrer.

Hence, the proceeding was that of an ordinary township ditch, commencing on lands outside the village, and following in part an old ditch (No. 12) through the village to a creek as an outlet.

By sustaining a demurrer to the answer, the circuit court has said that it — embracing general denials and all — constitutes no defense to the petition for injunction. The ground selected by counsel for this view, though not stated in the judgment entry, is the absence of jurisdiction in the township trustees to entertain and grant the petition. If this is true, the petitioners for the ditch are in an unfortunate situation. The village council would not act in providing the drainage within the corporation, and the commissioner's-refused the prayer of a petition for the route now in question for some reason not of record; and now it is said the township trustees have no jurisdiction to invade the village by their ditch proceedings.

The question is to be determined by our statutes pertaining to the subject, and cases cited from other states construing their laws are of little aid to us.

We think our statutes are plain and free from ambiguity, and seem to recognize that in some instances township trustees and county commissioners may have concurrent jurisdiction to locate and construct a ditch, as may be made to appear later in our investigation. The provisions for county ditches are found in Chapter 1, Title VI, Revised Statutes, and for township ditches in Chapter 2 of the same title.

Section 4511, Revised Statutes, provides: “The trustees of any township may, whenever in their opinion the same will be conducive to the public health, convenience or welfare, cause to be established, located and constructed as hereinafter provided, any ditch within such township, and for that purpose may cross a railroad, turnpike road, or do any other thing necessary or proper to promote said purpose.” The next section defines the meaning of the word “ditch,” “to. include a drain or watercourse,” and says that a petition for such improvement “shall be held to include any side, lateral, spur or branch ditch, drain or watercourse necessary to be constructed to secure the object of the improvement whether the same is mentioned therein or not.”

The subsequent sections provide the mode of procedure, for claims for compensation and damages, for appeal, et cet. Section 4552 makes provision for altering, deepening and widening, boxing or tiling of the ditch. The entire Chapter 2 is devoted to township ditches, and its provisions are clear and contain no obstacle to full jurisdiction where the proposed ditch is within the township. In this instance it commences on low lands — farm lands outside of the corporate limits. That territory claimed better drainage, and the route through the village to the creek was considered practicable and the best for the purposes in view. Of that fact the trustees are made the judges, subject to right of appeal.

Does the fact that a village is on the route oust jurisdiction which otherwise would be perfect? The village is in and forms a part of the township, and its citizens take part in electing the trustees and other officers of the township, and are under their jurisdiction in many governmental particulars.

But it is said that the case of Village of Pleasant Hill et al. v. Commissioners, 71 Ohio St., 133, sustains the holding of the circuit court on the demurrer in this case. We think it does not. The ditch under consideration in that case was wholly within the village, and its drainage being amply-provided for by the municipal code, action by the commissioners was not necessary to full relief. But proceedings for a township ditch could not be entertained by a village council to drain lands outside of the corporation, ¡such as farm lands in this case.

Again, it is urged for defendant in error, that while no lack of jurisdiction appears in the statutes providing for and regulating the location and construction of township ditches, there are certain sections in the statutes vesting authority in county commissioners to locate and construct ditches, which should be considered as defeating the jurisdiction of trustees in this case, and Sections 4447, 4483, 4484 and 4485 are cited with Section 4493.

These sections are part of Chapter 1, which is applicable to county ditches, or those located by county commissioners. This resort to Chapter 1, to limit the authority of trustees clearly conferred by Chapter 2, needs more than mere statement for its justification. But what are these sections? The first mentioned confers jurisdiction on commissioners of counties to locate and construct county ditches. Section 4483 authorizes a municipal council by resolution to authorize the mayor to present a petition signed by him officially, and a bond to the county commissioners, to locate and construct a ditch described in the resolution, or such council may authorize the mayor to sign officially a petition and bond for a ditch, to be presented by parties interested, whose lands are without the limits of the corporation, whenever the improvement will be conducive to the public health, convenience or welfare, of the whole or any portion of the inhabitants of the corporation; and in such case the commissioners shall count the municipal corporation as an individual petitioner, and may direct the engineer to locate the improvement in accordance with the petition, whether wholly within, or wholly without, or partly within and partly without, the limits of the corporation. In such case the section instructs the engineer as to his duties and authority while acting under either kind of petition. Section 4484 continues the same subject, permitting the engineer, commissioners, or a jury, if one be called, to treat the benefited territory within the corporation as a single parcel of land, et cet. Section 4485 provides for notice to the corporation, where the mayor has not signed the petition.

And Section 4493 provides that on the written application of twelve or more resident landowners of the township, the trustees, if in their opinion the interest of. the township demands it, may cause the petition and bond hereinbefore provided for to be filed on behalf of the township, and that in such case, the same proceedings shall be had as mentioned in the preceding sections. Considering all of them, we find the different modes of presenting to the county commissioners a petition for a ditch. where a municipality or township is interested. In one case as under Section 4483, the council by resolution may authorize the mayor to present a petition signed by him officially, for a ditch described in the resolution, or the council may authorize the mayor to sign a petition officially, to be presented to the commissioners by parties interested whose lands are without the corporate limits. These are the steps by which a municipal corporation may present a petition, and 4493 describes how township trustees may apply to the commissioners for a ditch where at least twelve landowners resident of the township ask such trustees in writing to make the application. In this event the township trustees become the sufficient petitioner, as the municipal corporation becomes a petitioner under Section 4483.

But we should not conclude that- these are the only steps by which county commissioners obtain jurisdiction to locate and construct a ditch which may affect the lands within or without the corporate limits. These sections provide who, in addition to the persons- mentioned in Section 4450, may apply for a ditch and how the same may be signed and presented. If the municipal authorities do not desire to petition; if the township trustees are not requested in writing by at least twelve landowners of the township to petition the commissioners, of course these two classes of authorities can not become petitioners, but the persons mentioned in Section 4450 may still apply for a ditch which may affect the corporation or township.

The law giving jurisdiction to township trustees to locate and construct a township ditch contains no provision whereby a municipal corporation may present a petition, but under Section 4514, authorizing it to be signed by “one or more persons owning lands adjacent to the line of the proposed ditch,” lot-owners in the village, if the lots are adjacent to the line, may join with landowners without the village in making the application to the trustees. It is a weak argument to say that, as in special instances and in special ways, a municipality or trustees of townships may petition the commissioners, if no one else does, trustees have no general jurisdiction because the same provisions are not found in the township ditch law whereby a village may petition the trustees. The lack of such provisions does not defeat jurisdiction, if the rules prescribed by the statute are observed and followed. This township ditch law seems complete of itself, and we are not to discount its authority on the ground that the county commissioners may hear other parties not named in it.

We are of opinion that the demurrer should have been overruled, and the circuit court erred in not so deciding.

Judgment reversed.

Summers, C. J., Spear, Davis and Shauck, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    The Village of Oakwood v. Stoecklein.

      Assessment of corner lots — Municipal code of October 22, 1902 — . Repeals Section 2264, Revised Statutes — And annuls former rule of frontage — Entire lengthwise .frontage now assessed.

    Since the municipal code passed October 22, 1902, (96 Ohio Laws, 20), repealed Section 2264, Revised Statutes and defined the following mode of assessing the costs and expenses of street improvements, “by the foot frontage of the property bounding and abutting upon the improvement,” the rule of assessment laid down in Haviland et al. v. City of Columbus et al., SO Ohio St., 471, is abrogated, and municipalities are authorized to assess upon an entire lengthwise frontage of a lot abutting upon the improvement.
    (No.12005
    Decided January 18, 1910.)
    Error to the Circuit Court of Montgomery county.

      Mrs. Stoecklein brought suit in the court of common pleas against the village of Oakwood alleging that she is the owner of a lot located at the southwest corner of South avenue and Oakwood avenue in said village, its dimensions being 66.36 feet on South avenue and 133.20 feet on Oakwood avenue; that on July 20, 1908, the council of said village passed a resolution declaring it necessary to improve Oakwood avenue by paving with bricks along the lot of the plaintiff, the expense thereof to be assessed by the foot frontage of lots and lands bounding and abutting on the portion of the street so to be improved; that said improvement having been made said council passed another resolution making such assessment and assessing her lot for its entire lengthwise frontage upon said improvement, plaintiff claiming that in so far as said assessment exceeded the breadthwise frontage of the lot on South avenue it was excessive, and as to such excess she prayed that the collecting of the assessment be enjoined. A demurrer to this petition was overruled and an injunction granted in accordance with its prayer. On petition in error the circuit court affirmed the judgment.

      Messrs. Rozve, Shuey, Matthews & James and Mr. W. M.. Matthews, for plaintiff in error.

      Messrs. Murphy, Elliff & Emanuel, for defendant in error.
   Shauck, J.

It is said that the conclusion reached by the courts below was thought to be justified by the decision of this court in Haviland et al. v. City of Columbus et al., 50 Ohio St., 471. That case was decided June 20, 1893. It involved an interpretation of Section 2264, Revised Statutes, as it was then in force. The third mode of assessing the costs and expenses of a street improvement which it defined was: “By the foot front of the property bounding and abutting upon the improvement.” That mode of assessing had been adopted by the city council in the case then under consideration. The view taken of the phrase quoted was, as-expressed in the second proposition of the syllabus: “If a lot abuts lengthwise on the improvement, but fronts breadthwise on another street and not on the improvement, the lot should be deemed as fronting breadthwise on the improvement, and be assessed for the number of feet on the improvement that it would have in such case and no more.”

Whatever may have been thought of the decision in that case as an interpretation of the statute, and however general may have been the belief that it imposed upon interior lots burdens which in justice should be borne by corner lots, the case was reconsidered and adhered to in the City of Toledo v. Sheill, 53 Ohio St., 447. In one of the opinions in that case it was suggested that the rule should be regarded as established so far as judicial decisions were concerned, and that if it was thought to operate unjustly it should be changed by the general assembly by an act operating prospectively. Accordingly by the uniform municipal code enacted October 22, 1902 (96 Ohio Laws, 20), Section 2264, Revised Statutes, was repealed and by Section 50 of that act, the third mode of assessing the costs and expenses of street improvements was defined as follows: “By the foot frontage of the property bounding and abutting upon the improvement.” Since the general assembly under the circumstances changed the phraseology of the clause and employed language in making the change which indicates very clearly the purpose of the legislature to act upon the suggestion referred to and to change the rule established in the case which appears to have controlled the judgments under review, the judgment must be regarded as erroneous. The entire frontage abutting on the improvement is now, by the clear terms of the statute, the subject of assessment.

Judgments of the circuit and common pleas courts reversed and the original petition dismissed.

Judgments reversed.

Summers, C. J., Crew, Spear and Davis, JJ., concur.


author: Davis, J.

text:
    State of Ohio v. Lynch.

      Resident of "dry” territory — May go into "ivet" county and purchase intoxicating liquors — And bring same into resident territory — Or may make purchase by another — Interpretation of Act of March 5, 1908 (99 O. L., 35).

    It is not a violation of the act entitled, “A11 act further to provide against the evils resulting from the traffic in intoxicating liquors by providing for local option in counties” (99 O. L., 35), for one who lives in a county in which the traffic in intoxicating liquors is prohibited under the provisions of the said act, to go into a county where such traffic is not prohibited and purchase intoxicating liquor in any quantity for his own use, and bring the same into the county where he lives to be used therein by him as a beverage; and such a person may, under said statute, not only himself purchase intoxicating liquor as, and for the specific purpose, aforesaid, but he may also do so by another, whom he has constituted his agent for that purpose.
    (No. 11952
    Decided January 18, 1910.)
    Exceptions to the Court of Common Pleas of Champaign county.
    The facts are stated in the opinion.

      Mr. George Waite, prosecuting attorney, for exceptor.
    The question to be decided is: Can a person in dry territory receive money from another, and go into wet territory, purchase intoxicating liquors with the money, carry the liquor back to the place of receiving the money, and deliver it to the person who furnishes the money, to be used by him as a beverage, and not be guilty of furnishing as the term is used in this statute?
    In construing a statute, words should be given their ordinary and generally accepted meaning. For the definition of the word “furnish,” see Webster, Standard and Century dictionaries; Lamma v. State, 8 N. P., N. S., 69; State v. Freeman, 27 Vt., 520; People v. Neumann, 85 Mich., 98; Dukes v. State, 77 Ga., 738.
    It is claimed in this case that because it is lawful for a person living in dry territory to go into wet territory and purchase a quantity of intoxicating liquor and take it back into dry territory and there use it as a beverage, he can authorize another person to act as his agent and do the same act for him.
    If one man can employ another one to purchase and convey liquor to him, a hundred could contribute a sum of money each, and employ a single agent to convey any quantity of liquor to them and distribute it' among them, and thus practically defeat the purpose of this law. State v. Munson, 25 Ohio St., 381.
    It is clearly the spirit and purpose of this act to prevent one person from supplying another with intoxicating liquor to be used as a beverage, and we know of no other words or language that could express such purpose in general terms. There is a vast difference between a furnishing, and a sale, or giving away. A supplying of liquor as a sale or a giving away might be lawful and yet be unlawful as a furnishing.

      Mr. C. B. Heiserman and Mr. Joseph W. Flaugher, against the exceptions.
    The law does not make it penal for a person to go from a dry county into a wet county and purchase intoxicating liquor for himself, to be used as a beverage. Bennett had a right to go to Springfield and purchase' liquor for his own use; and it is claimed that, if it was lawful for Bennett himself to purchase intoxicating liquor in Springfield, it was also lawful for him to do so by his agent or representative, Lynch. So that, so far as the actual purchase of whiskey in Springfield is concerned, there was no violation of law. The sale is complete where the goods are delivered to the carrier and the place of sale is the place of delivery to it. State v. Mullin, 78 Ohio St., 358.
    In Ohio, the law does not make penal the transportation of liquors by express companies or carriers into a county where the sale of liquor is prohibited; so that it is certain that no express company or common carrier could be guilty, under this act, of “furnishing” liquor in a dry county by simply delivering to a patron that which he had purchased in some other county.
    We think the legislature did not intend to give the word “furnish” the broad meaning claimed for it by the prosecuting attorney, for if such had been the intention, other words could have been used to express such intention. The word “deliver” could have been used
    On the subject of “furnishing” reference is made to Express Co. v. State, 33 S. E. Rep., 638.
    It seems hardly necessary to refer to the rule that a penal or criminal statute is to be construed strictly and not to be extended by construction beyond its natural meaning. State v. Hall, 20 Ohio, 14; State v. Meyers, 56 Ohio St., 350.
    Persons cannot be made subject to such statutes by implication. Only those transactions are included in them which are within both the spirit and the letter, and all doubts in the interpretation of such statutes are to be resolved in favor of the accused. Shultz v. Cambridge, 38 Ohio St., 659; Railway Co. v. Wells, 65 Ohio St., 313; United States v. Reese, 5 Dillon, 405, Fed. Cases, 16137; In re McDonough, 49 Fed. Rep., 360; Leonard v. Bosworth, 4 Conn., 421.
   Davis, J.

The defendant in error and one Bennett were inmates of the Champaign county infirmary. In Champaign county it was, under the provisions of the county local option statute, unlawful for any person, personally or by agent, to sell, give away or furnish intoxicating liquors to be used as a beverage. Bennett gave money to the defendant for the purpose of going into an adjoining county, in which the local option law was not then operative, to purchase for him, Bennett, a quart of whiskey to be used by him as a beverage. The defendant did go into the other county, purchased the whiskey, returned with it to Champaign county, delivered it to Bennett, and it was there consumed by both Bennett and the defendant. The defendant was indicted and tried in Champaign county, on the charge of furnishing intoxicating liquor to be used as a beverage.

On the trial, the court charged the jury, in substance, that it was not a violation of the statute for a person in a “dry” county to go into a “wet” county and purchase liquor in any quantity for his own use, to be used as a beverage; and that such a person may, under this statute, not only go himself into a “wet” county and purchase intoxicating liquor in any quantity, to be used as a beverage by himself in a “dry” county, but that he may do so by another, whom he has, in good faith, constituted his agent for that purpose.

The prosecuting attorney excepted to the charge, and although the defendant was found guilty by the jury, and was sentenced by the court, the prosecuting attorney has brought the case here, as provided by Revised Statutes, Sections 7305, 7306, 7307, 7308, for an answer to the sole questio'n, as stated by himself: “Can a person in dry territory receive money from another, and go into wet territory, purchase intoxicating liquors with the money, and deliver it to the person who furnishes the money, to be used by him as a beverage, and not be guilty of furnishing as the term is used in this statute?”

The prosecuting attorney argues for a negative answer to this question; and his argument, in brief, is this: that the word “furnish” in its ordinary and generally accepted meaning signifies to “provide” or “supply.” Yet if we substitute either of these alleged equivalent words for the one used in the statute, the application of the statute to the facts of this case is not made any clearer than when we consider it with the legislature’s own chosen word, “furnish.” In fact, the abstract meaning ot words rarely affords decisive aid in determining the construction of a document or a statute. When attempting to arrive at the meaning and specific intent of a given phrase or sentence, we are generally obliged to consider words in their concrete use, having regard to the general purpose which the draftsman had in view, together with any other circumstances which may aid us in attaining his mental point of view.

Now in the study of this statute (99 O L., 35-38), and especially of its title and Section 2, which is directly under review in this proceeding, it is very clear that it is aimed at the repression of “the evils resulting from the traffic in intoxicating liquors,” and the punishment of dealers conducting such traffic. The significant language of Section 2 is as follows: “Whoever * * * violates any of the provisions of this act or. in any manner directly or indirectly, sells, furnishes, or gives away or otherwise deals in any intoxicating liquors as a beverage,” etc. The statute seeks to prohibit the traffic, or dealing, in intoxicating liquors in counties in which a majority of the electors have voted “in favor of prohibiting the sale of intoxicating liquors;” and therefore it provides that not only those who sell intoxicating liquors, but also those who furnish, give away, or otherwise deal in them in evasion of the law against the sale of liquors, shall likewise be guilty of a misdemeanor. This was the construction, and no more, which was given to the word “furnish” in State v. Munson, 25 Ohio St., 381; State v. Freeman, 27 Vt., 520; and People v. Neumann, 85 Mich., 98, cited by the prosecuting attorney.

For the foregoing reasons we are unable to accept the construction of the statute, which is claimed, on the part of the state to justify its contention that the charge of the court in this case was erroneous; and we may add a few other considerations leading to the same conclusion.

Admittedly Bennett could have gone in person to another county where the traffic in intoxicating liquors was not prohibited, and there could have bought liquors for his own use in any quantitj'- and could have transported them to the county of his residence, where the traffic was prohibited, and could have there consumed them. We frankly confess that we are entirely unable to understand why one may not lawfully do by the agency of another, that which he may lawfully do himself. The prosecuting attorney contends that the maxim, “Qui facit per alium, facit per se/ cannot apply in criminal law. Why not, in a case like this? There can be no aiders or abettors where there is no crime. When the liquor was purchased and paid for, in a place where the traffic was not prohibited, it thereupon became Bennett’s property. The defendant did not, and could not, sell or give it to Bennett, for it was not his to sell or give away. For the defendant to carry and deliver to Bennett his own, was not “furnishing” it to him. • If it be conceded that the mere delivery to the purchaser under such circumstances constitutes “furnishing” within the meaning of the statute, then one who has in his house, in “dry” territory, liquor which he has lawfully obtained, makes his servant or member of his family liable to indictment under this statute, whenever in obedience to his request some of it is brought to the owner. In the absence' of a clear expression to that effect, we are not willing to adopt such an extreme construction.

Exceptions overruled.

Summers, C. J., Crew, Spear, Shauck and Price, JJ., concur.


text:
    State of Ohio v. Wirick.

      Workhouse imprisonment — Bill of exceptions presents notice given to opposite counsel, when — Objection to jurisdiction — Not entertained, when — Construction of act regulating traffic in intoxicants — pp Ohio Laws, 35.

    1. The ruling in Lemmon v. State, 77 Ohio St., 427, does not apply to counties which do not contain a workhouse.
    2. A bill of exceptions certified to contain all of the evidence which was offered and given on the trial, and found to be true and allowed and signed as a part of the record, by the trial judge, is in the record. The presumption is that notice was given to opposite counsel, and that all preliminary steps were complied with, although the record is silent as to those matters.
    3. Objections which do not affect jurisdiction of the subject-matter, and which were not made in the intermediate court of appellate jurisdiction, will not be entertained in this court.
    4. The construction of the act entitled “An act further to provide against the evils resulting from the traffic in intoxicating liquors by providing for local ojption in counties” (99 O. L., 35), which was adopted in State v. Lynch, ante, 336, is followed in this case.
    (No. 12218
    Decided January 18, 1910.)
    Error to the Circuit Court of Logan county.
    The facts appear in the opinion.

      Messrs. West & West, and Mr. Ernest Thompson, prosecuting attorney, for plaintiff in error.

      Messrs. ITowenstine & Huston, and Mr. W. S. Plum, for defendant in error.
   Davis, J.

This case, at the bottom, presents the same question which was considered in State v. Lynch, ante, 336; but it is reported separately on account of certain questions of practice, which follow. The case was submitted by both parties to be considered and decided with State v. Lynch, subject however to the consideration and decision of the objections to the record, made in behalf of the state. Such of these objections as we deem material to the rights of the state herein, we have fully considered and disposed of as indicated.

The case was begun in the probate court of Logan county, upon an affidavit by the prosecuting attorney charging the defendant with unlawfully selling intoxicating liquor to one B. E. Drake, to be used as a beverage, contrary to the statute (99 O. L., 35), and also charging defendant with unlawfully furnishing- intoxicating- liquors to one B. E. Drake, to be used as a beverage, contrary to the same statute. The case was tried in the probate court without the intervention of a jury, and the defendant was found guilty of furnishing intoxicating- liquor as charged in the second count, and was sentenced to pay a fine of seventy-five dollars and the costs of prosecution, and, as a part of the sentence, there being no workhouse in Logan county, but the county having a contract with the authorities of the Columbus City Workhouse, in Columbus, Franklin county, Ohio, the defendant was sentenced to be committed to the Columbus City Workhouse, and kept at hard labor until the fine and costs are paid or secured to be paid, or until he has discharged the same by a credit of sixty cents per day against the amount of said fine and costs for each and every day he is confined therein, or he is otherwise legally discharged from the payment of said fine and costs. The court suspended the execution of the sentence for a period of ten days for the preparation, allowance and filing of a bill of exceptions, which bill was, allowed' and signed by the judge of the probate court within the ten days.

The defendant prosecuted error in the court of common pleas; and that court reversed the judgment of the probate court, on the ground that the facts disclosed in the record did not constitute a crime under the statute. The state then prosecuted error in the circuit court, where the judgment of the court of common pleas was affirmed on the ground above stated and also because the judgment of the probate court was erroneous in that it was contrary to the ruling in Lemmon v. State, 77 Ohio St., 427. The state now prosecutes error in this court to reverse the judgments of the circuit court and the court of common pleas and to affirm the judgment of the probate court.

It is contended by the state that Lemmon v. State, ut supra, does not apply here. The ruling in that case is based on a construction of the statutes as applied to the facts of that case. The principal difference between that case and this is that Lucas county has within it a workhouse and Logan county has not. We see no reason to extend Lemmon v. State beyond the facts stated therein.

But in this court, for the first time in the progress of the case, it is objected that there is no bill of exceptions; and in support of that objection it is urged, first, that under the provisions of Section 7304, Revised Statutes, the taking of bills of exceptions must be governed by Sections 5301, 5301a, 5301 & and 5302, Revised Statutes. This view of the law would seem to be correct; but it does not appear in the record, nor in the bill of exceptions itself, that the formalities required by the statute were not complied with. At any rate, a bill of exceptions certified to contain all of the evidence that was offered and given on the trial, and found to be true, and allowed and signed by the probate judge, is in the record. The presumption is that notice was given to counsel and that the proper steps were complied with, although the record is silent as to those matters. Findlay Brewing Co. v. Brown, 62 Ohio St., 202; Felch, Assignee, v. Hodgman Mfg. Co. et al., 62 Ohio St., 312. And this is the rule notwithstanding it may not appear, from the record, that a motion for a new trial had been made and overruled. If the question here were whether the judgment below was against the weight of the evidence, a motion for a new trial would be necessary; but the question being whether the trial court properly applied the law to the facts, the absence of a motion for a new trial is not material.

But it is settled law that objections of this kind cannot be made in the court of last resort for the first time. Lessee of Perkins v. Dibble, 10 Ohio, 433; Lewis v. Bank, 12 Ohio, 132, 148; Seymour v. Railway Co., 44 Ohio St., 12, 15; Railway Co. v. Construction Co., 49 Ohio St., 681. “Where a cause has been brought up for review from an intermediate court of appellate jurisdiction to the court of last resort, questions, other than such as go to the jurisdiction of the subject-matter, which were neither made in the court of first instance nor assigned for error in the intermediate court, will not be considered. Nor, with the limitation referred to, will a question which could have been, but was not, raised in the intermediate court be considered by the court of last resort.” 2 Cyc., 676.

The foregoing matters being therefore eliminated, the case is reduced to the same terms as State v. Lynch, ante, 336; and accordingly the judgment of the circuit court affirming the judgment of the court of common pleas reversing the judgment of the probate court, is

Affirmed.

Summers, C. J., Crew, Spear, Shauck and Price, JJ., concur.


author: Spear, J.

text:
    Richards v. The Market Exchange Bank Company.

      One signing promissory note — On face thereof — Becoming surety for principal maker — Is primarily liable for payment of such note — Common law rule that agreement between holder and principal — Varying contract by which surety is bound — And thereby releasing latter from liability — No longer in force as to one signing on face of instrument — Construction of Sections 3175j, 31750, 3175P and 3178a, Revised Statutes— Negotiable Instruments Act of Ohio.

    1. One who signs a- promissory note on the face thereof, and, who in that way becomes a surety for the principal maker, is, by force of section 3178a, Revised Statutes, primarily liable for the payment of such note.
    2. Section 3175/, Revised Statutes, relating to the discharge of negotiable instruments, provides in what manner, and for what causes, such instruments may be discharged, and, by force of the rule expressio unius est cxclusio alterius, sureties upon such instruments who are primarily liable thereon cannot be otherwise relieved from responsibility for their payment.
    3. The rule of the common law that any agreement between the holder of a promissory note and the principal, which varies essentially the terms of the contract by which a surety is. bound without the consent of such surety will work his release from liability, is no longer in force as to one who has signed on the face of the instrument, such rule having been in effect abrogated by section 3175/, Revised Statutes.
    4. Sections 3175o and 3175/>, Revised Statutes, relating to the alteration of instruments, apply to the physical alteration of the instrument itself, but do not apply to a contract between the holder and the principal maker for an extension of time of payment of the instrument.
    (No. 11424
    Decided January 18, 1910.)
    Error to the Circuit Court of Franklin county.

      At the April term, 1907, of the court of common pleas of Franklin, a judgment was entered as by confession, upon a cognovit note on the face of which appeared the names of The Ohio Dredging Company, a corporation, and others with the plaintiff in error, C. E. Richards, against said parties and in favor of the The Market Exchange Bank Company, defendant in error here, for $5,017, and costs. Later in the term Richards, here plaintiff in error, made application to the court to suspend the judgment and for leave to file answer. The answer tendered set up as de-. fense that he, the defendant, was surety only on the note, The Ohio Dredging Company being the principal, all of which was known to plaintiff, and that the plaintiff had, without the knowledge or consent of answering defendant, for a valuable consideration, extended the time of payment of the note. But the court, on consideration, refused to suspend the judgment and refused to allow defendant to file said proposed answer upon the ground and for the reason only that it did not and does not state a defense. A motion for new trial was then interposed which was also overruled. On error to the circuit court the judgment was affirmed. Richards seeks a reversal of both judgments.

      Messrs. Sater & Seymour and Mr. Charles C. Pavey, for plaintiff in error.
    We maintain that the negotiable instruments act of April 17, 1902, did not repeal, expressly or by implication, all other statutes of Ohio, upon the rights and remedies of persons to negotiable instruments and particularly sections 5419, 5832 and 5836, Revised Statutes, pertaining to the rights of sureties upon an instrument of writing. On the law of repeals by implication, the citations are: Sutherland on Statutory Construction, sections 137, 138, 147, 152; Wood v. United States, 16 Pet., 342; City of Galena v. Amy, 5 Wall., 705; Arthur v. Homer, 96 U. S., 137; County of Clay v. Society of Savings, 104 U. S., 579; Ex parte Crow Dog, 109 U. S., 556; Coats v. Hill, 41 Ark., 149; Connors v. Iron Co., 54 Mich., 168; People v. Supervisors, 67 N. Y., 109; Cass v. Dillon, 2 Ohio St., 607; Brown v. Van Wert, 4 C. C., 407; Fosdick v. Perrysburg, 14 Ohio St., 473; State v. Newton, 26 Ohio St., 200.
    It may be claimed by the defendant in error that the negotiable instruments act was a general revision of the statutes of Ohio on negotiable instruments, and hence all other statutes and positive law in Ohio on the subject have been abrogated. On this proposition see: Sutherland on Statutory Construction, sections 154, 155, 156, 157, 158; Bartlet v. King, 12 Mass., 545.
    The negotiable instruments act contains no reference whatever to the subject-matter of sections 5419, 5832, 5836, nor to the rights and remedies of sureties, unless it be in sections 3175c and 3175concerning the alteration of an instrument.
    Always, heretofore in Ohio, the alteration of a written agreement by the holder and principal debtor without the knowledge and consent of the surety has worked a release of the surety.

      (But even if it be held that sections 5419, 5832 and 5836, and the other sections of chapter 12, division 7, title 1, be repealed by implication, the question is whether or not sections 3175c and 3\75p of the negotiable instruments act warrant the defense tendered by the plaintiff in error.
    The question is whether or not the extension of the time of payment of a promissory note for a valuable consideration, by an arrangement between the holder and the principal debtor is a material alteration, and thereby releases a surety to the note, who did not authorize or assent to it. It is a well settled rule that sureties are only held according to the strict terms of their contracts. Brandt on Suretyship, section 378; Brewing Co. v. Schultz, 68 Ohio St., 415; Insurance Co. v. McDonnell, 41 Ohio St., 650; Ide v. Churchill, 14 Ohio St., 372.

      Mr. Charles I. Pretzman, for defendant in error.
    The court will note that the obligation of C. E. Richards is joint and several and that there is nothing on the face of the note to distinguish his signature from that of the other obligors. We take it, therefore, that the court will find C. E. Richards to be primarily liable on this note under section 3178a.
    If C. E. Richards is primarily liable upon the note, he can only be released by the discharge of the note itself. Section 3175/ fixes the way in which this may be accomplished.
    Section 3175k should be read in this connection, because it is here fixed how and under what circumstances a surety or a person secondarily liable may be discharged.
    We stand upon the plain words of the statute. Richards is primarily liable and can not be secondarily liable. He can only be discharged when the instrument itself is discharged, and it is only a person secondarily liable who can be discharged by an extension granted by the pa3'’ee without his consent. Vanderford v. Bank, 105 Md., 164, 66 Atl. Rep., 47; Cellers v. Meachem, 49 Ore., 186.
    The states of Maryland and Oregon have negotiable instruments acts similar to ours. Rouse v. Wooten, 140 N. Car., 557; Eaton & Gilbert on Commercial Paper, section 123.
    In the first place, is there necessarily any conflict between chapter 12, division 7, title 1, Revised Statutes, and this negotiable instruments act? 27 Am. & Eng. Ency. Law (2 ed.), 506; Oriental Financial Corp. v. Overend, Gurney & Co., L. R., 7 Ch. App. Cas., 142.
    The question here is not between section- 3178a, Revised Stautes, or any one of the statutes in our new code of negotiable instruments, on the one side, and sections 5419, 5832 and 5836, on the other side. The question is between the old statutes and the whole body or code or system of law on negotiable instruments, extending from section 3171 to 3178?, and covering thirty-two pages of the Revised Statutes. In other words, did the legislature intend this new codification of the law of negotiable instruments to be a complete body of law on this subject? Plank Road Co. v. Cotton, 12 Ohio St., 272; Commissioners v. Forego & Binkly, 26 Ohio St., 491; Lessee of Moore
      v. Vance, 1 Ohio, 10; State v. Commissioners, 9 O. C. D., 92, 16 C. C., 218; 26 Am. & Eng. Ency. Law (2 ed.), 733; Andrews v. People, 75 Ill., 605.
    This elaborate codification of the Ohio law on the subject of negotiable instruments, not only constitutes a complete system of law on the subject, but it revolutionizes phraseology in an important particular. Nowhere in this long code do we find the word “surety” used. In the new statutory law on the subject that word is obsolete. This code refers to obligors who are either “primarily” or “secondarily” liable.
    We claim that the subject which is treated in chapter 12, division 7, title 1, Revised Statutes, is' fully and exhaustively covered by this negotiable instruments act.
   Spear, J.

If the answer tendered stated a defense the n,iotion to file it should have been sustained, and to refuse it was error. If, on the other hand, the pleading failed to state a defense, it was not only within the power of the trial court to refuse to permit it to be filed but it was its duty to so refuse and the judgment should be affirmed. The ultimate cjuestion, therefore, is: Where parties execute a joint- and several promissory note, all signing on the face thereof, one being in fact a surety, and the holder of the note, with knowledge of this fact, at the maturity of the note extends the time of payment for a valuable consideration and without the consent of the surety, is the latter discharged from liability on the note? "It is conceded that upon equitable principles incorporated as part of the common law, and sustained by numerous authoritative decisions of the courts of this state, the answer would necessarily be in the affirmative unless the act of April 17, 1902, entitled: “An act to establish a law uniform with the laws of other states on negotiable instruments,” sections 3171 to 3178g, Revised Statutes, requires a different answer. That act establishes the status of parties to negotiable instruments. As to accommodation parties the provision (section 3172a) is: “[Liability of accommodation party.] An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.” As to those primarily liable it provides that: “The person primarily liable upon an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All other parties are secondarily liable.” We suppose the law to be too well settled to require citation of authorities in its support, that a surety is an original maker, and becomes primarily liable to any party lawfully holding the paper, his liability to pay being absolute and in no sense ’ dependent upon demand at maturity. To obtain some trust, confidence or credit for another the surety engages to be answerable for him. A surety upon a note undertakes to pay if the principal debtor does not; he is absolutely liable as soon as default is made. Having undertaken to be bound for the debt of another he becomes bound as the principal is hound, and is primarily liable. For further comment respecting the primary liability of a surety see Rouse v. Wooten, 140 N. C., 557. So that, Richards being, according to the averments' of his answer, a surety, he became liable upon the note primarily at its inception. It is to be understood that here, and elsewhere in the opinion, we are dealing with the liability of an accommodation maker who has signed on the face of the note.

By the act under review the discharge of negotiable instruments as to persons primarily liable is provided in section 3175/ as follows:

“Discharge of Negotiable Instruments.
“Sec. 3175/. [Instrument; how discharged.] A negotiable instrument is discharged: 1. By payment in due course by or on behalf of the principal debtor; 2. By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation; 3. By the intentional cancellation thereof by the holder; 4. By any other act which will discharge a simple contract for the payment of money; 5. When the principal debtor becomes the holder of the instrument at or after maturity in his own right.”

The section following makes provision for discharge with respect to persons secondarily liable, viz.:

“Section 3175/e. [When person secondarily liable on, discharged.] A person secondarily liable on the instrument is discharged: 1. By any act which discharges the instrument; 2. By the intentional cancellation of his signature by the holder; 3. By' the discharge of a prior party; 4. By a valid tender of payment made by a prior party; 5. By a release of the principal debtor, unless the holder’s right of recourse against the party secondarily liable is expressly reserved; 6. By any agreement binding upon the holder to extend the time of payment, or to postpone the holder’s right to enforce the instrument, unless made with the assent of the person secondarily liable, or unless the right of recourse against such party is expressly reserved.”

The entire field of discharge appears to be here covered, and unless some controlling reason can be adduced showing- that this statute doesn’t apply, its application to and control of the case at bar would seem to follow. It is, however, insisted by counsel for plaintiff in error that since there is in the later act no express repeal of earlier legislation bearing on the rights and liabilities of sureties on negotiable instruments, and since repeals by implication are not favored, we must conclude that the former legislation is still in force, and inasmuch as there is apparent conflict between the Negotiable Instruments Act, as construed by the courts below, and the earlier. legislation, it must be presumed that the construction thus given the act is not the correct construction; and that the purpose ascribed by those courts to the general assembly in passing- the act was not its real purpose. The sections of the Revised Statutes to which special attention is called by counsel are numbers 5419; 5832 and 5836, though general reference is made to other sections of the same chapter. Without taking-space to give the above mentioned sections in detail, their substance may be stated thus: Section 5419 provides how judgment against principal and surety may be entered, and for execution in such cases; section 5832 provides that sureties on bank paper who were known to be such at the time the contract was made may prove that fact notwithstanding it may contradict the face of the instrument, and section 5836 that a surety in a judgment who has paid it may be subrogated to the rights of the judgment creditor and may revive the judgment if it has become dormant.

We fail to perceive any necessary conflict between these sections and the Negotiable Instruments Act in the particulars here involved, and in this respect we are in accord with the claims of counsel; but does it follow that the conclusion of counsel is correct? It is not contended that either of these sections, or any part of chapter 12, title 1, division 7, provides for the discharge of a surety where a valid agreement for extension of time of payment has been made' as between the holder and the principal debtor, that rule resting entirely upon the principles of the common law. Recurring again to the above cited sections, it will be noted that sections 5419 and 5836 are mainly for the protection and advantage of the surety as between him and the principal debtor, and affect the rights or liabilities of the surety as between him and the holder only incidentally. Section 5419 provides for a situation which may arise when judgment is taken as to the form thereof, and thereafter as to its enforcement; and section 5836 confers rights upon a surety after judgment; neither section providing for - a situation arising, save as above indicated, before judgment; neither giving any discharge from liability on the instrument and preventing judgment. The present act, section 3175/, as we have already found, provides only for the discharge of a party by a discharge of the instrument itself. Section 5832 is an ancient statute intended for the protection of sureties in contracts for the payment of money to banks and bankers, but only to the extent of having such relation defined and established, and securing to such parties the privilege of sureties notwithstanding any contrary expression in the contract itself; that,, is, the terms of the written instrument can, by virtue of this section, be contradicted by oral proof, and such parties are given “all the privileges of sureties,” but there is no attempt to define what those privileges are. In neither of these sections is there any attempt to discharge the surety from the debt itself. So we find that each section sub-serves its own separate and distinct purpose, and neither appears to us to be in any manner or to any extent inconsistent with later legislation.

We come now to section 5833, which presents a different question. It provides that a person bound as surety in a written instrument for the payment of money, may, if a cause of action accrue thereon, by written demand require the creditor to commence an action forthwith against the principal debtor, and proceed diligently to collection, and failure to comply by the creditor shall work a forfeiture of his right to recover of the surety. Here is a provision for discharge as to the instrument itself, and the question is, to whom, taken in connection with all the provisions of the Negotiable Instruments Act bearing on the question of discharge, does it apply? Whether or not it might apply to those who are by section 3178a, made secondarily liable we need not stop to inquire for we have not that situation, but it appears irreconcilable with section 3175;, if attempted to be applied to parties whose names appear on the face of the instrument. We are of opinion that, at all events, it should not be held applicable to those, who, by the terms of the Negotiable Instruments Act, are primarily liable. And the same conclusion applies to section 5834 following.

However, if these sections, or any of them, are so inconsistent with the Negotiable Instruments Act as that they cannot stand with it, then we are satisfied that the older enactments must give way. There is much to he said in support of the claim that the general assembly intended the later act to form a complete system of laws on the subject of negotiable instruments. The title of the act, the main heading “Negotiable Instruments,” and the divisions and subdivisions, lend color to this conclusion, and the subhead, subdivision I of chapter 2, “Negotiable Instruments in General,” would seem especially to imply it. The title of the act is a fair guide to its general purpose. That its' main object was to reconcile, as far as might be, the hitherto irreconcilable conflict between statutes and judicial utterances in the several states, as held in Rockfield v. Bank, 77 Ohio St., 311, is entirely apparent. Commenting upon the effect of the English Bills of Exchange Act, Lord Herschell, in Bank of England v. Vagliano, L. R., 1891, App. Cases, 107, having stated that “the statute was intended to be a code of law relating' to negotiable instruments,” further observes: “I think the proper course is in the first instance to examine the language of the statute and to ask what, is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously, stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute intended to embody in a code a particular branch of the law is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object for which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by' it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even of an obsolete proceeding such as a demurrer to evidence. * * * The Bills of Exchange Act was certainly not intended to be merely a code of the existing law. It is not open to question that it was intended to alter, and did alter it in certain respects. And I do not think that it is to be presumed that any particular provision was intended to be a statement of the existing law rather than a substituted enactment.” The purpose, as held in Wirt v. Stubblefield, 17 App. Cases, D. C, 283, in construing the Federal statute, was to establish a uniform system of law wherever negotiable instruments shall circulate and are negotiated, and to embody in a codified form, so far as practicable, all the law upon the subject, and thus avoid conflict of decision, and free the law of negotiable instruments from local infirmities that would otherwise inhere in it to the prejudice of innocent holders as against all the parties .to the instrument professedly bound thereby. This purpose cannot be effectuated unless the courts, in their decisions giving. construction to the act, accord its terms controlling effect where they'are inconsistent with previous legislation and judicial interpretation of the common law. A contrary course would defeat the main object of the legislation and perpetuate the ills which that legislation was intended to cure. But the necessities of the case at bar do not require a determination of the question whether or not the entire law of negotiable instruments is to be found in this act and we do not undertake to determine that question. One result, however, seems entirely clear. That is, with respect to the specific provisions of the act bearing upon the issues of the case at bar, the manifest intent of the general assembly was to revise the general subject of the law of negotiable instruments, and where specific provisions are made in the act with respect to a special subject matter such provisions must prevail. So where it is declared, as it is here declared, that a party to such an instrument who is absolutely required to pay the same, is primarily liable and can be discharged from liability in certain specified ways and for certain specified causes, the reasonable conclusion is that the purpose was to enact that such party canliot be so discharged in any other way, or for any other causes. True, section 3175; does not in terms specify the discharge of parties, and it is easily perceived that there is a distinction between the release of a party and the discharge of the instrument itself, but the greater includes the less. A release of a party may be had without destroying the entire instrument, but of course .the instrument cannot be discharged without at the same time and by the same cause effecting a release of the parties. The act does not purport to embody all the law relating to sureties; indeed the word “surety” does not appear in the text of the act at all, but such parties whose names appear on the face of the instrument are sufficiently described by the classification of those “primarily liable.” The act further prescribes that an accommodation party may be a maker without himself receiving value; that' he engages that he will pay the instrument according to its tenor, and may be held liable to the holder though that party knew him to be only an accommodation maker, thus classing him as one primarily liable, and, in a subsequent section, the act further purports to embody all the law as to release of parties “primarily liable” on negotiable instruments by providing for the discharge of the instrument itself. It defines how such parties may be released in five designated ways, none of them embracing the extension of time for payment by the holder, and then follow in the succeeding section the grounds upon which parties secondarily liable may be discharged, and as to them such discharge will follow any valid agreement of the holder to extend payment, etc., without the consent of the person so secondarily liable. The subject of discharge on the ground of a contract of extension of payment by the holder being thus present in the legislative mind, the natural inference would be that, while declaring a purpose on that subject, the entire purpose would be expressed. Nor does the provision of the fourth paragraph of section 3175; to the effect that the instrument may be discharged “by any other act which will discharge a simple' contract for the payment of money,” affect the present issue. As before stated, if the instrument itself is discharged all parties are discharged. If it had been intended that a binding agreement to extend the time of payment should discharge a party, whether primarily or secondarily liable, and is included in the fourth paragraph quoted above, there could be no conceivable reason for the provision in the next section making it a ground of discharge of one secondarily liable. As result from all these considerations we are unable to see how, taking the two sections together, there can be doubt that it was the purpose to enact that as to those primarily liable on the contract no release from liability will follow an extension of time of payment. Expressio unius est exclusio alterius.

That the construction and legal effect here given to the Negotiable Instruments Act is the proper construction is held in Vanderford, Exrx., v. Bank, 105 Md., 164, from which we quote: “Since code art. 13, sec. 138 (the Negotiable Instruments Law), provides that a person primarily liable upon a negotiable instrument' may be discharged in five designated ways, it follows that he cannot be discharged in any other mode.” A like holding is made in Cellers v. Meachem, 49 Ore., 186, as follows: “Under the Negotiable Instruments Act * * * defining an accommodation maker, and making him liable on the instrument to the holder for value, and providing that a negotiable instrument is discharged by payment, etc., an accommodation maker of a note is not relieved from liability by an extension of the time of payment without his consent.” A clearly stated resume of the ground of the decision is given in the opinion, by King, C., from, which we quote: “What is expressed in an act is deemed exclusive, when it is creative, or in derogation of some existing law, or of some of the provisions of a particular act. 2 Sutherland Stat. Constr. Lewis’s 2d ed. sec. 491. It is indicated in. the title of the act under consideration that its purpose is 'to establish a law uniform with the laws of other states on that subject.’ Inasmuch as the enactments relating to negotiable instruments differed in the various states, and as the decisions interpreting both the common law and legislative provisions were far from being harmonious, it must be inferred, from the language constituting the title of the act, that it was intended to provide a complete and comprehensive law on this subject; and, since it defines an accommodation maker, making him primarily liable, and in one section designates how negotiable instruments may be discharged, but contains no provision whereby a person primarily liable can be released,.except by payment, etc., and in the section following specifies the manner in which persons secondarily liable may be relieved of responsibility on such instrument, it follows that the immunities indicated there were intended to exclude all exceptions not contained therein, under the familiar maxim: expressio unius est exclusio alterius. It is therefore clear, under the well-settled rules governing the construction of statutes, that when this act, which, in effect, declares that all persons signing a negotiable instrument shall be liable, whether executed for a valuable consideration or as an accommodation maker, and then specifies the particular manner in which negotiable instruments may be discharged, designating, as an exception thereto, that, when the liability is secondary, it may be avoided by any valid agreement extending the time of payment, etc., without such person's consent, was passed, it was the intention of the legislative assembly to make such provisions exclusive of all others. We are of the opinion that the negotiable instruments act substitutes its provisions for the former law, as recognized by this ’court prior to 1899.” In Wolstenholme v. Smith, 34 Utah, 300, a like doctrine is announced, the holding being that “Under the Negotiable Instruments Law * * * defining an accommodation maker, making him liable to a holder for value, providing that a negotiable instrument is discharged by payment, etc., and that a person secondarily liable on the instrument is discharged by any act which will discharge a simple contract for the payment of money, etc., and defining a person primarily liable as one who by the terms of the instrument is absolutely required to pay the same, etc., an accommodation maker of a note is not relieved from liability by an extension of time of payment without his knowledge or consent.” The Negotiable Instruments Statute in each of these states appears to be in substance identical with our own statute.

A distinction is sought to be made by counsel by the suggestion that neither in Maryland nor Oregon are there other statutes bearing upon the subject and so those courts were limited to and concluded by their Negotiable Instruments Act. The point loses significance when it is remembered that the real question in those cases, as in this case, is not whether or not earlier legislation remains in force but whether a rule of the common law respecting the effect of an unauthorized extension of time for payment by the holder has been abrogated.

We are not aware of any holding of a court inconsistent with the rule of law as announced in the foregoing cases, although the decisions have been the subject of adverse criticism 'by contributors to law magazines. Such criticism is to be expected from the active minds of lawyers who write on legal subjects, especially where new legislation disturbs previous conceptions of the law, or makes obsolete prior holdings, and are often welcomed as valuable aids to correct conclusions, but the mere fact of criticism does not necessarily weaken the force of the decisions themselves. Space does not permit extended notice of these adverse comments even if it were otherwise deemed advisable, but a sample may be here given. It is said that the Maryland case, Vanderford, Exrx., v. Bank, supra, is not authority as giving construction to the Negotiable Instruments Act, because the necessities of the case did not call for a review of that statute, and hence the holding in that regard is mere dicta. Is it ? The note in suit was made after the enactment of the statute. It was a joint and several note, the defendant’s name appearing on the face thereof. . He undertook to plead that he was surety only, known to be such by the plaintiff, and that by an agreement of extension of payment between the holder and the principal he had been released. The plea was met by demurrer. This was sustained on two grounds. One, that by the force of previous decisions of that court the facts pleaded did not .constitute a defense; the other that, by force of the Negotiable Instruments Act, a discharge could not in that manner be effected. Either ground was good, but why is one entitled to more favor than the other? Both presented legitimate points for consideration, and each added to the conclusiveness of the court’s judgment. It will be news to many of the. older members of the profession if it is the law that the determination of a question fairly presented by the record becomes mere dicta if there happens to be another proposition on which the decision might have been based. If a pertinent proposition can be argued out of a case on the above theory, then it would be necessary only for another critic to attack the other ground as dicta to reduce to dicta the entire decision.

It is further insisted by counsel for plaintiff in error that if it should be found that sections 5419, 5832 and 5836, and other sections of the same chapter, were repealed by implication, or do not have application to the case, yet that sections 3175c and 317 Sp of the Negotiable Instruments Act warrant the defense tendered by Richards, the defendant below. Pertinent provisions of those sections follow:

“Sec. 3175o. [Alteration 'of instrument; effect of.] Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided except as against a party who has himself made, authorized or assented to the alteration and subsequent indorsers.”
“Sec. 3175/b [What constitutes a material alteration.] Any. alteration which changes: 1. The date; 2. The sum payable, either for principal or interest; 3. The time or place of payment; 4. The number or the relations of the parties; 5. The medium or currency in which payment is to be made; or which adds a place of payment where no place of payment is specified; or any other change or addition which alters the .effect of the instrument in any respect, is a material alteration.”

The question thus made is: Does the extension work a “material alteration” in the instrument? The argument in support of the claim that it does is rested upon the proposition laid down by Brandt on Suretyship as follows: “Any agreement between the creditor and principal which varies essentially the terms of the contract by which the surety is bound without the consent of the surety, will release him from responsibility.” We think this does not satisfy the requirements of the sections above quoted. It does not imply an alteration of the instrument. It is but a statement of the equitable rule hereinbefore stated and considered. It must be borne in mind, as an absolute controlling condition, that it is the instrument itself which the foreg'oing' sections of the statute treat of, not the contract which the instrument is intended to evidence. This, it seems to us, is so manifest on.the face of the printed word that it cannot be more clearly shown by comment, and hardly needs authority in its support. Nevertheless the question has been considered by text-writers and passed upon in a number of adjudicated cases. See 1 Bouvier Law Dictionary, 153, under title “Alteration,” and authorities there cited; also 2 Cyc. of PI. & Pr., 142, under head of “Alteration of Instruments,” and authorities there cited; also 2 Am. & Eng. Ency. of Law, 184, under same head, and authorities. Again, if these sections were intended to apply to a condition other than a physical alteration of the instrument we would expect to find the provisions under section 3175/, where the subject of discharge of instruments is specially treated, and we would not expect to find it elsewhere repeated. We should be slow to ascribe careless and needless tautology to the lawmaking body.

As conclusions, therefore, our holding is that, under favor of the Negotiable Instruments Act, one who signs a promissory note on the face thereof, though he be in fact an accommodation maker and known as such to the holder, thereby becomes primarily liable for its payment; also that such party may be discharged from liability in any one of the ways provided in section 3175; of said act, but not otherwise, and that a contract between the holder of the instrument and the principal for the extension of time of payment, although upon a valuable consideration and without the consent of the surety, will not have the effect of discharging him from liability. To avoid possible misconception it perhaps should be added that this holding does not imply that the ordinary defenses which go to the original liability of the party, such as fraud, duress, or illegality in respect to the consideration, may not be resorted to as heretofore. The term “discharge”’ itself implies an original obligation. If fraud, duress, illegality as to consideration, etc., intervened at the inception of the instrument, then the accommodation party never was liable. Confusion of thought is likely to result from a failure to distinguish between a defense which goes to original liability and one -which arises from some subsequent act or conduct.

We further hold that sections 7175o and 7175p apply to the physical alteration of the instrument itself and do not apply to a contract between the holder and the principal for an extension of time of payment of the instrument.

Judgment affirmed.

Summers, C. J., Crew, Davis and Shauck, JJ., concur.