author: WiXJjiAMS, J.

text:
    Crawford v. Edison.

      Statute of frauds — Promise to pay debt of another.

    1. When the leading object of the promisor is, not to answer for another, but to subserve some pecuniary or business purpose of his own, involving a benefit to himself, or damage to the other contracting party, his promise is not within the statute of frauds, although it may be in form a promise to pay the debt of another and its performance may incidentally have the effect of extinguishing that liability.
    2. S. agreed with C. to furnish the material and build him a house for a specified amount. S. employed E. to put on the roof, eave-troughs, and conductor pipes, for a stipulated sum, to be paid when the work should be completed. When E. had done about two-thirds of the work, S. adandoned the job and left the county, without having paid E., or provided for his payment. E. then informed C. that he would not do any more work, unless he was be to paid. Thereupon C. told E. to go on with his part of the work, and complete it, and he would pay him. E. accordingly completed his job, and charged the amount to C. Held, C.’s promise was not collateral, to answer for the debt of another, but was an original one, for his own benefit, and unaffected by the statute of frauds.
    (Decided June 28, 1887.)
    Error to tbe Circuit Court of Lorain County.
    In June, 1883, Christina Crawford was tbe owner of certain lots in tbe village of Lorain. Sbe and ber bnsband, J. S. Crawford, then contracted with Joseph Smith, for the construction of a store building on the lots, for the sum of four thousand two hundred and fifty dollars; a part to be paid as the work progressed, and the balance when the building was completed. Smith employed Edison to put the roof, eave-troughs, and conductor pipes, on the building, for one hundred and fifty-five dollars, to be paid on the completion of the job. When the work had so far progressed, that Edison had done about two-thirds of the work he agreed to do, and after the Crawfords had paid Smith $2,600.00, but nothing had been paid to Edison, Smith abandoned the building and his contract with Crawfords, and left the county. Thereupon Edison notified the Crawfords, that he would not go on with the work unless he was to be paid; and he claims that they “ then in consideration of the premises, and for the further consideration that he would complete the said roof, eave-troughs, and conductor pipes, entered into an agreement with him, whereby it was agreed that they would pay him the full sum of $155.00 so agreed to be paid by said Smith; and that in pursuance to said agreement and relying thereon he completed the roof, eave-troughs and pipes.” The Crawfords failing to pay, Edison brought his action against them in the court of common pleas. His petition contains, substantially, the facts above stated. The defendants answered, denying that they made any agreement with him. The ease was tried to a jury, a verdict returned for the plaintiff, a motion for a new trial overruled, and judgment entered on the verdict. This judgment was affirmed by the circuit court, and the reversal of those judgments is sought'in this court.
    On the trial in the court of common pleas, a bill of exceptions was taken purporting to set out all the evidence, and the charge of the court, from which it appears, that plaintiff testified, on the trial, to the material facts set forth in his petition. After stating his contract with Smith, and the amount of work done under it, and that Smith had gone off without having paid anything on it, he says, “ I went and saw the defendants, and asked if they had seen Smith; Crawford said, ‘ he is gone and you will never see him again.’ I asked what was to be done about the work I was doing; he said, he did not know. I said, I think that the building is holden for it; he said, he had taken counsel and I could not hold the building. I said, I am not going on with the work, unless I am going to get my pay. The next day I saw him; he came to me and said, ‘ Say, Mr. Edison, you need have no fear about your pay; you go right along and complete the job, there is enough going to Smith and I will pay you.’ I said ‘ all right; ’ and the same day he came to the store, and said, ‘ No, Mr. Edison, yon need not have any trouble about that matter, as I will pay you as I said; ’ and I said, all right. I went on and finished the job, and he said it was a good job. After I had the conversation I have stated with defendants, I charged defendants with the whole amount, $155.00, and did not look any further to Smith.” The plaintiff called two other witnesses, who in some particulars corroborated his statement; and gave in evidence a written contract made between Crawfords and one Bonsor. This contract recites that Bonsor “ agrees to complete that portion of the brick building now in operation, originally contracted, and commenced, by one J. 'W. Smith, now in parts unknown, and sub-contracted by said Bonsor, by agreement between said Smith and Bonsor drawn up on the 23rd day of May, 1883, and owned by said Crawfords. That portion said Bonsor is to complete, is that set forth in the contract between said Smith and Bonsor, of May 23, 1883. In consideration of which Crawfords agree to pay Bonsor $740.00.” Thereupon plaintiff rested his case, and the defendants moved “ to withdraw the case from the jury, and render judgment in their favor, for the reason that the promise of the defendants, as proven, was verbal, and to answer for the debt of Smith.” This motion was overruled, and the defendants excepted. The defendants then testified in their own behalf; Crawford to the effect that he made no promise; Mrs. Crawford, that her husband told Edison to “ go on and put up the spouting, and I will see you paid from now on anyway.”
    The bill of exceptions states, that “ the charges as given by the court, are as follows, to-wit (save the formal parts) s

      “ If the jury find that the defendants entered into an agreement with the plaintiff, that if he, the plaintiff, would finish the roof, they, the defendants, would pay him the price that Smith was to pay, and you find their agreement was absolute, and not that they, the defendants, would stand as security for Smith, and pay if Smith did not, then your verdict should be the amount claimed in plaintiff’s petition, with interest added from the time claimed in the petition, to the 26th day of January, 1885. For I say to you, gentlemen, that if the plaintiff and defendants were of the opinion that Smith had abandoned the contract that he had made with the plaintiff, and the plaintiff was induced to complete the roof, by the promise and agreement that defendants would unconditionally pay him the sum of $155, such agreement would be supported by a sufficient consideration. But on the contrary, if you find the promise or agreement alleged to have been made between the plaintiff and defendants, was to pay or stand for the debt, default or miscarriage of Smith; that is, to pay plaintiff if Smith failed to, in respect to his, Smith’s agreement with plaintiff, to pay plaintiff $155. for putting on the roof, then plaintiff cannot recover in this action, as it is not claimed that such agreement was in any respect in writing, and your verdict should bo for the defendants.” The defendants excepted to this charge, and requested certain instructions to be given in charge, which do not materially affect, the questions in the case, and they need not therefore be set out.

      JE. Q. Johnson and Q. A. Gilmore, for plaintiffs in error..
    The cause of action is a promise on the part of the plaintiffs in error to answer to the defendants in error for the debt, default and miscarriage of Smith. It was such a promise as the statute requires to be in writing. Revised Statutes, sec. 4199.
    The agreement alleged on part of Edison, and attempted to be proved, was that Edison should keep the agreement he had made with Smith. Smith had received from Crawfords pay for the entire work. There-was no new consideration moving to Crawfords. There was no new obligation entered into by Edison. Smith, the original debtor, was not discharged. The obligations of Smith to Edison, of Edison to Smith, and of Smith to Crawfords, were in full force.
    The promise, in such case, to be -without the statute of frauds, must be (1) upon a new consideration; (2) the consideration must be one moving between the parties, independent of the original contract; (3) the original debtor must be discharged. Easter v. White, 12 Ohio St. 226; Kelsey v. Hibbs, 13 Ohio St. 340; Birchell v. Neaster, 36 Ohio St. 333; Martin v. Black, 12 Ala. 721; Mason v. Hall, 30 Ala. 599; Murphy v. Renkert, 21 Heisk. 397; Leonard v. Vredenburgh, 8 John. 29; Mallory v. Gillett, 21 N. Y. 412; Fullam v. Adams, 37 Vt. 401; Brightman v. Hicks, 108 Mass. 246; Ames v. Foster, 106 Mass. 400; Booth v. Eighmie, 60 N. Y. 238; Durham v. Arledge, 1 Strob. Law, 5; Osborne v. Farm. L. & T. Co., 16 Wis. 36; Emerick v. Sanders, 1 Wis. 77; Dyer v. Gibson, 16 Wis. 557; Barker v. Bucklin, 2 Denio, 45; Anderson v. Davis, 9 Vt. 136; Chapin v. Merrill, 4 Wend. 657; Furbish v. Goodnow, 98 Mass. 296; Wheelan v. Edwards, 29 Ga. 315; Thomas v. Delphy, 33 Md. 373; Cook v. Barrett, 15 Wis. 596; Hodgkins v. Jackson, 7 Bush. (Ky.) 342; Baker v. Ingersoll, 39 Mich. 158; 57 Am. Dec. 197, n.
    If any recovery was justifiable, it could only have been for work done after the promise. Fritz v. Lamping, 8 Week. L. Bull. 270.
    The promise alleged is entirely collateral. Smith was not released from his obligation to pay Edison. Smith was in no way a party to the contract alleged between Edison and Craw-fords. Estabrook v. Gebhart, 32 Ohio St. 415. Smith was not consulted and did not consent to a transfer of his credit. Smith’s contract with Edison remained in full force. He was liable to Edison and Edison to him. Clay v. Walton, 9 Cal. 328; Andre v. Bodman, 13 Md. 241; Packer v. Benton, 35 Conn. 343; Meriden Brittania Co. v. Zingsen, 48 N. Y. 247; Hearing v. Dittman, 8 Phil. (Pa.) 307; Rollison v. Hope, 18 Texas, 446; Barringer v. Warden, 12 Cal. 311; Stony v. Menzies, 4 Chand. (Wis.) 61; Curtis v. Brown, 5 Cush. 488; Gower v. Stuart, 40 Mich. 747.

      Metcalf & Webber, for defendant in error.
    Crawfords agreed, if Edison would finish the roof, to pay $155. He was under no legal obligation to complete it. Such contract is not within the statute of frauds. ,
    In 1 Smith’s L. C. 326*, notes to Byrkmyr v. Darnell, it is said, “When it is doubtful whether the sale was made exclusively on the defendant’s credit, the question should be left to the jury,” and in 2 Par. on Cont. 11, “ Whether a contract is collateral' or original- may be a question of construction, and then it is for .the court. But it is often regarded as a question of fact and then it is for the jury.” See also Estabrook v. Gebhart, 32 Ohio St. 420.
   WiXJjiAMS, J.

The contract sued on, it is admitted, was not in writing. The plaintiff’s testimony, if believed, was sufficient to warrant the jury in findingthat the verbal agreement on which' the action was founded, was made between the plaintiff and the defendant J. S. Crawford. The bill of exceptions discloses that it was agreed on the trial, that if a verdict was rendered against either defendant, it might be against both. The jmy having found for the plaintiff, the agreement as he claimed it must be considered established, and the question presented on the reeord therefore, is whether that agreement is within the statute of frauds. The motion of the defendants to withdraw the case from the jury and for judgment, at the conclusion of plaintiff’s testimony; the motion for a new trial on the 'ground that the verdict is not supported by the evidence,; and is contrary to law; and the exceptions to the charge of the court to the jury, and the refusal to give in charge certain instructions requested by the defendants, are different modes of raising the same question. The question stated, is the only one discussed by counsel, and the only substantial one calling for decision.

That portion of the statute of frauds which relates to this case, is now found in section 4199 of the Revised Statutes, and is as follows: “No action shall be brought whereby to charge the defendant, upon any special pi’omise, to answer for the debt, default or miscarriage, of another person; * * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”

The object of the statute undoubtedly was, to secure the highest and most satisfactory species of evidence in cases where parties, without apparent benefit to themselves, enter into stipulations of suretyship j and where there would be great temptation, on the part of creditors, in danger of losing their debts by the insolvency of their debtors, to support suits by means of false evidence, by coloring conversations and exaggerating words of commendation or expressions of encouragement into positive contracts. But this commendable purpose of the statute furnishes no warrant for enlarging its provisions, or extending them to cases not fairly within them. It will be seen that the statute, by its terms, operates on cases where there is a primary or original debt or obligation, upon which is based a collateral promise of another person, to answer for such primary, or original debt, or obligation. Hence, if there be in fact no such primary debt or obligation, or the same is extinguished and discharged, or if the promise be not to answer for such primary debt or obligation, but itself be a primary or direct promise for a sufficient consideration, the statute does not apply or require the promise to be in writing.

The statute contemplates the mere promise of one man to be responsible for another, and cannot be interposed as a cover and shield against the actual obligations of the defendant liimself.” Brown on Statute of Frauds, sec. 165.

It is to be observed in regard to these promises founded on the liability of another person, that’ to constitute them such as are necessary by virtue of the statute of frauds to be committed in writing, the consideration should appear to have an immediate respect to the liability of the party promised for. If the promise spring out of any new transaction, or move to the party promising upon some fresh and substantive ground of personal concern to himself, the statute of frauds does not attach upon such promise, but the same may be good if the consideration be sufficient, though existing in parol. Roberts on Fraud, 231-2.

In Nelson v. Boynton, 3 Met. 400, Shaw, C. J., says: “ The terms original and collateral promise, though not used in the statute, are convenient enough to distinguish between the cases, where the direct and leading object of the promise is, to become the surety or guarantor of another’s debt, and those where although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is, to sub-serve or promote some interest or purpose of his own. The former, whether made before or after, or at the same time with the promise of the principal, is not valid, unless manifested by evidence in writing; the latter, if made on good consideration, is unaffected by the statute, because, although the effect of it is to release or suspend the debt of another, yet that is not the leading object, on the part of the promisor. * * * The rule to be derived from the decisions seems to be this; that cases are not considered as coming within the statute, when the party promising has for his object a benefit which he did not before enjoy, accruing immediately to himself; but where the object of the promise is to obtain the release of the person or property of the debtor, or other forebearance or benefit to him, it is within the statute.”

The supreme court of the United States has thus stated the rule: Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving cither benefit to himself, or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may, incidentally, have the effe9t of extinguishing.that liability.” Emerson v. Slater, 22 How. 43.

And such is the generally recognized doctrine in this country.

The distinction is between a promise, the object of which is to promote the interest of another, and one in which the object is to promote the interest of tire party making the promise. The former is within the operation of the statute, the latter is unaffected by it; and when the promisor is himself to receive the benefit for which the promise is exchanged, it is not usually material whether the original debtor remains liable or not.” Reed on Stat. of Fraud, sec. 70-73; Calkins v. Chandler, 36 Mich. 324.

Within the rules thus maintained by the great weight of authority, the agreement in question is not collateral, and the statute of frauds interposes no obstacle to its enforcement. At the time it was made, all the parties recognized the fact that Smith, the contrator, had abandoned, and was not expected to further perform his contract with the defendants. They, finding that he had left the brick work incomplete, entered into a contract with another sub-contractor, to complete it, and pay him for the same. The plaintiff had partly performed his contract with Smith, but had received no compensation; he was informed by the defendants that Smith was gone and would never return. It is true, he might have finished the work he agreed to do and hold Smith liable on his contract, though such course promised no good results; but after Smith forsook the job, relinquished his contract and left the county without paying or making any provisions for paying the plaintiff, was the plaintiff bound to incur still further outlay of time and money, without any reasonable prospect of payment ? Or might he not- acquiesce in such relinquishment of the contract, leaving him at liberty to contract with the defendants, if he chose to do so ? At all events, if he chose, in view of Smith’s conduct, to give up his job, refuse to go on with the work, and take the consequences of a suit by Smith, or lose what he had already expended, rather than risk any further outlay, it was no concern of the defendants, nor could they interpose any objection; he was under no obligation to them to complete the work. Their house must then remain unfinished, or they must procure its completion under some new agreement; and they had already entered into a new contract for the unfinished brick work. When, therefore, they agreed with the plaintiff, that if he would complete the roof and spouting, they would pay him the sum agreed on, their leading, and, indeed their only object, was to subserve a business purpose of their own, and secure to themselves the benefit of having their house completed, instead of allowing it to stand in the useless condition in which it was left by Smith. Such an agreement is in no sense a promise to' pay Smith’s debt. Neither party contemplated that Smith would or might pay any part of the amount •, on the contrary they regarded him as no longer connected with or concerned in the transaction. From that time forward the plaintiff worked under his new contract with the -defendants, and it is wholly immaterial that the price agreed to be paid was sufficient to compensate the plaintiff for the whole work performed by him.

The supreme court of Illinois has made a practical application of the rules stated to a case in no way distinguishable from this.

In Clifford v. Luhring, 69 Ill. 401, it appeared, that the defendant Luhring, let the contract for building a house to Gruis, who sub-contracted the plastering to Clifford, the plaintiff. Gruis failing to complete the contract, the plaintiff made known the fact to defendant, and informed him he would be obliged to quit the work, when the defendant told him to go on and he would pay him. It was held the promise was not within the statute of frauds.

The syllabus of the case is: Where the leading object of the undertaking is, to promote some object of the party’s own, his promise to pay is not within the statute of frauds, although its effect is to release or suspend the debt of another. Thus, where the defendant employed a party to build a house, and, on his failure, the plaintiff, who was a sub-contractor, made known the fact to the defendant, and informed him that he would be obliged to quit work, and the defendant thereupon told the plaintiff to go on with his part of the work, and he would pay him; Held, the defendant’s undertaking was not collateral, but an original one, and was not within the statute of frauds, as assuming to answer for the contractor, his main object being to subserve a purpose of his own.”

Berchell v. Neaster, 36 Ohio St. 331, is cited by counsel for plaintiffs in error, as an authority, sustaining their claim, that the defendants’ promise is within the statute. But in all that classifies that case among collateral and conditional jjromiscs, and distinguishes it from original and unconditional ones, it bears no analogy to the case under discussion.

Judgment affirmed,.


source: Caselaw Access Project

author: Dickman, J.

license: Public Domain

text:
    Dunn v. The State.

      Criminal law — Rape—Declarations of injured person — Rev. Stats., sec. 6816.
    1. On the trial of one indicted under section 6816 of the Devised Statutes, for carnally knowing and abusing a female child under ten years of age, with her consent, the declarations made by the injured person, in reference to the offense, several days after its perpetration, are not admissible in evidence to the jury, unless the del'ay in making such declarations is first explained and excused by proof of sufficient cause therefor.
    2. Such declarations are not admissible as evidence in chief to prove the commission of the offense, but only to corroborate the testimony of the injured person given in court.
    8. D., over seventeen years of age, was indicted for carnally knowing and abusing C., a female child under ten years of age, with her consent, on ‘ the 20th day of December, 1886. On the evening of that day, and on the next succeeding day, O. made complaint to her mother of the alleged injury. After a delay until the 30th day of December, 1886, C., in response to inquiries by her mother, made a statement to her in detail of the particulars of the offense. The statement was admitted in evidence on the trial of the accused, but the delay in making it to the mother was not explained and excused by proof of sufficient cause therefor. Held, that- it was error to permit such statement to be given . in evidence to the jury.

      (Decided June 28, 1887.)
    Error to tbe Circuit Court of Defiance County.

      Harris <fc Cameron and Henry G. Baker, for plaintiff in error.

      John W. Winn, prosecuting attorney, for the state.
   Dickman, J.

William Dunn, tbe plaintiff in error, over seventeen years of age, was, at tbe January Term, 1887, of tbe court of common pleas of Defiance county, indicted for carnally knowing and abusing, with her consent, Mabel Castor, a female child under ten years of age, a crime made rape by section 6816 of the Revised Statutes. The indictment charged the crime as committed on the 20th day of December, 1886. On the trial in the court of common pleas, Mabel Castor, the prosecutrix, testified to the alleged crime, giving the time, place and manner of its perpetration, and the name of the accused as the offender, and was permitted to testify — the counsel for the accused objecting and excepting — to declarations made by her to her mother immediately after the alleged offense, and in reference thereto. The mother, Nancy Castor, was called as a witness in behalf of the state, and she was permitted to testify, over the objection and exception of the prisoner’s counsel, not only to declarations made by her daughter on the night of December 20, 1886, and the day following, in relation to improper conduct towards her on the part of the accused, but was also allowed to give in evidence to the jury, declarations made to her by her daughter, Mabel Castor, ten days after the alleged occurrence of the crime, to-wit, on the 30th day of December, 1886, in which she stated to her mother in detail, when interrogated, the particular circumstances of the crime laid in the indictment, and of which she declared William Dunn to be guilty. The accused was convicted — his plea being not guilty; a motion for a new tidal was filed and overruled, and he was sentenced to imprisonment for life. A bill of exceptions was taken, setting out all the evidence and the charge of the court. A petition in error was filed in the circuit court, and, by a majority of that court, the judgment of the court of common pleas was affirmed.

In a case of rape, when the person upon whom the offense is charged to have been committed, has not been examined as a witness, no evidence of her assertions or declarations, descriptive of the offense or offender, should be received except when made in extremis. They are merely hearsay, and are not competent as evidence in chief to prove the commission of the offense. If, however, the injured person has been sworn and has testified, her declarations in relation to the injury, made immediately' after it was inflicted, would be competent in corroboration of her statements made in court. Her credibility would be strengthened or weakened, as it would be found to be in accordance with or contradictory to the statements and disclosures which she would naturally make immediately after an outrage upon her person — disclosures which she would instinctively shrink from if not true.

In England and in several American jurisdictions, evidence of the declarations of the injured person has been limited to the mere fact that a complaint was made, and the bare nature of it. Thus, the rule is laid down in New York that, on the trial of an indictment for rape, although proof of the fact that the prosecutrix made complaint recently after the commission of the offense, is competent, yet, evidence of the particulars of such complaint is inadmissible on behalf of the prosecution. Roscoe’s Cr. Ev., 26; 1 Russell on Crimes, 923; Baccio v. The People, 41 N. Y. 265. But in Ohio, the prosecution is permitted to give the substance of what the prosecutrix stated immediately after the event. In McCombs v. The State, 8 Ohio St. 643, the court say, “ whatever may be the rule elsewhere, it is settled in Ohio, that in a prosecution for rape, the substance of what the prosecutrix said immediately after the offense was committed, may be given in evidence, in the first instance, to corroborate her testimony.” And in Burt v. The State, 23 Ohio St. 394, in which it was held that in giving in evidence the declaration of the prosecutrix made immediately after the alleged transaction, in corroboration of her testimony, it is competent to show that in and by such declarations she charged the crime upon the defendant, Welch, J., says: How far the prosecution shall be permitted to go into details, in giving the declarations of the female, must, to a great extent at least, be left to the discretion of the court.” See also Johnson v. The State, 17 Ohio, 593; Laughlin v. The State, 18 Ohio, 99; Hornbeck v. The State, 35 Ohio St. 277; Brown v. People, 36 Mich. 204, in which Burt v. The State, supra, is followed.

A controlling question, however, that arises in the case at bar is: How soon after the offense is committed, must the female who has suffered the injury, make the declarations, in order to render evidence of such declarations admissible? It is well settled in Obio that the declarations must be made immediately. Immediateness is essential to their admissibility. Such is the language, substantially, of our decisions on the subject. 'Whether or not the declarations constitute a part of the res gestae, when made immediately after the injury, they largely preclude the idea of the injured party having been practiced upon to fabricate a story. They are presumed to be the natural outburst of outraged feelings, and, if made at all, would naturally be made at the first opportunity, while the injury is yet fresh and aggravating. Silence and delay in making known the wrong would be likely to awaken suspicion and doubt as to the truth of complainant's statement. If, says Blaekstone, she conceals the injury for any considerable time after she has had an opportunity to complain, such a circumstance would carry a strong presumption, though not conclusive, that her testimony is false or feigned. 4 Comm. 213. Rut when delay by the prosecutrix in making complaint or declaring the circumstances of the wrong has occurred, such delay may be explained, and excused by proof of sufficient cause therefor, as for instance, want of suitable opportunity, or duress, or threats by the perpetrator of the wrong. Higgins v. The People, 58 N. Y. 377; State v. Shettleworth, 18 Minn. 208; State v. Knapp, 45 N. H. 148; State v. DeWolf, 8 Conn. 93. Yet, if there has been a want of promptness in making complaint or declaration as to the particulars of the injury after its perpetration, the court should not admit evidence of the complaint or declaration until the delay has been excused or justified. People v. Gage, Mich. Sup. Ct., July, 1886, 8 Crim. Law Mag. & Rep. 195, was a case of prosecution for rape, and the silence of the outraged party in making complaint was the direct consequence of fears of chastisement induced by threats of the defendant. “It is contended,” said Champlin, J., “ that the testimony ought not to have been received because of the lapse of time after the outrage and the statement to the mother. The lapse of time occurring after the injury, and before complaint made, is not the test of admissibility of the evidence, but it may be considered as affecting its weight; and when complaint is not made promptly, the delay calls for explanation before the court will admit it.”

Upon an examination of the record in the present case, we discover no adequate explanation of the delay of the prosecutrix until December 30th, before she disclosed the alleged occurrences on the night of the 20th of December. It does not appear that in the mean time she was under restraint, or the influence of threats, or that she apprehended any violence from the accused. And when she did finally give a detailed account of the offense, it seems to have been drawn out in response to inquiries by her mother, and not to have been spontaneously given by herself. We are therefore of ojnnion, that it was error in the court of common pleas to permit the state to give in evidence to the jury, the declarations and statements made by the prosecutrix — not in the presence of the accused — to her mother, Nancy Castor, as late as the 30th of December, 1886.

Section 6816 of the Revised Statutes, provides that, “Whoever has carnal knowledge of a female person forcibly and against her will, or, being seventeen years of age, carnally knows and abuses a female child under ten years of age, with her consent, is guilty of rape.” The presumption of the law is, that a female child under the age of ten years is incapable of giving consent to an act of carnal knowledge, although the presumption may be rebutted by proof that she understood the ‘nature of the act committed. But the crime charged against William Dunn, is that of carnally knowing and abusing the prosecutrix “ with her consent.” If the presumption of her incapacity to consent, was overcome by evidence of sufficient age and intelligence to comprehend the turpitude of Dunn’s conduct, while proof of her declarations immediately after his alleged abuse of her might be admissible in'confirmation of her testimony in chief,' evidence of her declarations made after a considerable and unexplained delay might properly bo regarded with suspicion and distrust, and excluded from the jury.

It is suggested by counsel in argument, that the accused was prejudiced by the failure of the court in its charge, to impress upon the jury that the declarations of the prosecutrix subsequent to the alleged injury were not admissible in evidence as substantive testimony to prove the commission of the offense, but only to corroborate her statements made in court. While a mere failure to instruct a jury upon a particular point of law arising in a case may not be erroneous, and to make such failure a ground of error the court should be requested to instruct upon that point, yet, we think the jury might have been very much aided in the discharge of their duty, if they had been put on their guard against confounding testimony, that was only corroborative, with testimony in chief to prove the corpus delicti.

We find no other error among those assigned in the record than that which we have been considering, and in view of the aforegoing considerations, our conclusion is that the judgments of the court of common pleas and circuit court should be reversed, and the cause remanded for a new trial.

Judgment accordingly.


author: Speak, J.

text:
    State v. Kiesewetter.

      Authentication of statutes — Sec. 59, JBev. Stats.

    A bill entitled, “ A bill to provide for the publication of volume 6, Geology of Ohio,” was introduced into the senate of the last general assembly, and w.as designated “ S. B. No. 327.” It was amended, then duly passed in the senate and transmitted to the house; there amended, duly passed, and returned to the senate, where' the amendments were agreed to, and the amended bill duly passed. The bill was not copied upon the journal of either house, nor signed by the presiding officer of either house, nor there enrolled as a law, nor filed in the regular course of proceedings in the office of the secretary of state, nor was it published among the laws enacted by the 67th general assembly. Held :

    1. A printed bill, bearing title and number identical with the one described, deposited in the state library in accordance with section 59 of the Revised Statutes, cannot be received in evidence to prove the contents of the bill in question.
    2. The bill, not being ’authenticated, as required by section 17, of article 2, of the constitution, which provides that “ the presiding officer of each house shall sign, publicly in the presence of the house over which he presides, while the same is in session and capable of transacting business, all bills and joint resolutions passed by the general assembly,” did not become a law.
    (Decided June 28, 1887.)
    Mandamus.
    To the facts stated in the syllabus, maybe added the following, which appear by the petition. The bill in question provided for the publication of fifteen thousand copies of the several chapters that had been prepared by the state geologist and his assistants, to be entitled, Geology of Ohio, vol. 6. Economic Geology ; the printing to be under the supervision of the state geologist, and the books to be distributed, fifty to the state library, four hundred to the state geologist, one to each state office and institution, four thousand to the secretary of state for sale at cost, and the remainder to be equally divided among members of the general assembly. Fifteen thousand dollars was the amount to be appropriated for the expense of publication.
    The general assembly adjourned on the 21st day of March. On the 21st day of April following, the state geologist, Edward Orton, L. L. D., purchased of the relators paper .of the value of $1,630.40 which was delivered. Thereupon there was executed by that officer and the governor, and delivered to the relators, a warrant for the above sum upon the defendant, the auditor of state, which was duly presented to the defendant and his warrant on the state treasurer demanded, which was refused. The petition prays a peremptory writ to compel the defendant to issue his warrant.

      Nash & Lentz, for relators.

      J. A. Kohler, attorney-general, and James Lawrence, for defendant.
   Speak, J.

The burden is on the relators to show that the bill became a law. It is not claimed that the bill was signed by the presiding officer of either house, or was filed among the valid acts in the office of the secretary of state in the regular course of proceeding. It is not to be found among the printed laws in the current volume of Ohio laws. Following the laws and resolutions, and immediately after the certificate of the secretary of state, an addendum” is found printed (by what authority does not appear), on pages 454 and 455, containing what is claimed to be a copy of the bill as passed, and with it a certificate of the clerk of each house, of date some twenty days subsequent to the adjournment of the general assembly, giving a recital of the action taken In each house in regard to the bill, that of the clerk of the senate, in addition, to the effect that the foregoing is a true copy of the bill as it passed. This cannot aid the relators. The proceedings, as shown by the journals, the court may take judicial notice of, and the certificate of the identity of the printed bill, by the clerk of the senate, is not of consequence because not authorized by statute. Not so, however, with the certificate of the secretary of state, on page 453. That is required by section 129 of the Revised Statutes, and effect is given to it by virtue of that section. The certificate shows that the foregoing acts and joint resolutions are true copies, copied from the original rolls on file in his office, and negatives the idea that that which follows is copied from such rolls. Hence, the contents of pages 454 and 455, of the volume referred to, have no legal significance, and the volume (84 Ohio Laws), in legal effect, indicates that this bill was not one of the laws enacted by the 67th general assembly. No copy or record of the bill appears on the journal of either house. The bill presented does not, therefore, in the light of what the court may take judicial notice of, purport to be a law, and, in order to declare it such, the court must ascertain its contents by resort to sources of information other than those referred to.

The questions then, are, whether for this purpose resort may be had to evidence dehors the journals and the roll of duly certified laws in the office of the secretary of state, and whether, notwithstanding the bill was not signed by the presiding officer of either house, and was not enrolled in the office of the secretary of state as a law, it nevertheless has the force of law? Unquestionably, the legislature intended that this bill should become a law, and unless this court can answer the questions proposed in the affirmative, this purpose will be, at least for the present, defeated. The publication provided for by the bill would tend to the advancement of science, and to the enlightenment of the people upon a subject of general interest, and one which is constantly growing in importance. So that, there is strong inclination on the part of the court to determine the question involved in such way as will give expression to the will of the law-making power. Nevertheless, if, upon due consideration, it is manifest that the bill cannot be maintained as' a law of the land, it is the imperative duty of the-court to so declare, however much we may regret the result. Impressed with the importance of the question, we have given to the case careful consideration.

Section 17 of article 2 of the constitution, is as follows: The presiding officer of each house shall sign, publicly in the presence of the house over which he presides, while the same is in session and capable of transacting business, all bills and joint resolutions passed by the general assembly.”

No judicial interpretation has been given to this section so far as we are informed. The preceding section, which provides that every bill shall be fully and distinctly read on three different days, and that no bill shall contain more than one subject, which shall be clearly expressed in its title, etc., has been considered by this court, and the views of the court Upon it are well stated by Swan, J., in Pim v. Nicholson, 6 Ohio St. 177, as follows: This court held, in the case of Miller and Gibson v. The State, 3 Ohio St. 475 that the provisions of the above section, relating to the distinctness required in reading a bill, and the number of times a bill shall- be read, were, as they in fact import, intended as permanent rules for the proceedings of the houses. They are directory only, and are to be enforced by the houses, and not by judicial interposition. The further provision, in the same section, that no bill shall contain more than one subject, which shall be clearly expressed in its title, is also made a permanent rule in the introduction and passage of bills through the houses. The subject of the bill is required to be clearly expressed in the title, for the purpose of advising members of its subject, when voting, in cases in which the reading has been dispensed with by a two-thirds vote. The provision that a bill shall contain but one subject, was to prevent combinations, by which various and distinct matters of legislation should gain a support which they could not if presented separately. As a rule of proceeding in the general assembly it was manifestly an important one. But if it was intended to effect any practical object for the benefit of the people in the examination, construction, or operation of acts passed and published, we are unable to perceive it. The title of an act may indicate to the reader its subject, and under the rule each act would contain one subject. To suppose that for such a purpose the constitutional convention adopted the rule under consideration, would impute to them a most minute provision for a very imperfect heading of the chapters of laws and their sub-division. This provision being intended to operate upon bills in their progress through the general assembly, it must be held to be directory only.”

It is entirely clear that section 17 cannot be treated as a mere guide to the action of the general assembly in order to the more full enlightenment of the members in the performance of their duties, or as a check upon them, as the signing of a bill by the presiding officer in no substantial way affects the action of the members, or relates to the passage of the bill through either body. The members, as such, have performed every duty regarding a bill prior to the time when the duty of signing by the presiding officers may be performed. This signing in'open session may, incidentally, serve to fix the attention of members "to the bill being signed, but it has a much more important purpose. It authenticates a bill, and affords a sure means of identification. No official copy is required of a bill introduced, nor is it required to be copied on the journal, and a legal standard of comparison is wanting. The signatures of the presiding officers, therefore, furnish the evidence that that which the journals show, by title and number, passed the general assembly, is this identical measure. The act thus authenticated is to be given the force of law, is to be treated as such, and to prove itself upon inspection; and this verification by the officers designated by the constitution is the conclusive evidence to the secretary of state that the act so signed is a law, and entitled to be filed as such in the office of that officer, and, under his direction to be published, duly certified by him, for the information and guidance of all the people of the state. The signing is, therefore, for the benefit of the people in their examination to ascertain what is, and what is not law. It is apparent that the reasoning which led this court to declare section 16 to be directory, does not apply to section 17, and that the cases referred to are not authority in the case at bar.

Were there a provision requiring that all bills introduced should be spread at length upon the journal, and were this bill to be found copied on the journal of either house, it is probable, that, following former holdings of this court, resort might be had to that mode of identification. But no such record exists, and reliance upon title, number, and designation, for identification of contents, would, we think be inadmissible.

At the trial, the state librarian was offered by the relator as a witness, and it was proposed by the testimony of this witness to identify a copy which it was claimed had been deposited in' the state library, in compliance with section 59 of the Revised Statutes, and thus supply proof of the contents of the bill. That is to say, the court was asked to take the copy thus proffered from the state library, and, by making in it the changes which the journals of the two houses show were made while the bill was pending, make up a completed bill, and declare it law. The testimony is believed not to be competent. It was an effort to introduce parol proof, and, in effect, to try the validity of a law upon the testimony of witnesses. The section referred to requires that the clerk of each house shn.U deliver to the printer, for his use in printing, all of the papers and documents laid before the branch of which he is clerk, which are ordered by such branch to be printed; and the printer shall immediately print two hundred and forty copies thereof, of which number each of the executive officers shall receive one, and the state librarian five, which he shall preserve. Upon whom devolves the duty of delivering these copies, is left to inference. No provision is made for their certification as true copies, nor for special care in their safe-keeping, nor for perpetuation of evidence of contents by a record of them. The librarian is required to simply preserve the copies which he receives, a duty which attaches to all books and pamphlets of which he has the care. He is not required to make copies for use elswhere, nor is provision made for a certificate of any kind, or for any mode of authenticating them. Yet, if this be competent testimony, the occasion for its introduction may arise as well in any court in the remotest county in the state as in this court. Copies deposited in the library furnish a convenient source of information to any person interested in pending legislation, but it cannot be that the legisture intended that a copy of a bill found in the state library should be treated as a record of a law, or as taking the place of signatures of the presiding officers, and it is apparent that the admission in evidence of the testimony proposed would establish a precedent of a loose and most dangerous character. The effect of a resort to parol proof to establish the validity of a law was fully considered in The State ex rel. Herron v. Smith, 44 Ohio St. 348, and it is not necessary to do more here than refer to that case.

Whether, a provision imperative in its terms should be treated as directory or as mandatory, has been held to be a matter of éxpedieney, though Judge Cooley, in his work on constitutional limitations, observes that courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provision of a constitution. ” Another author says that the question is in the main governed by considerations of convenience and justice. ” Giving effect to the more liberal view, it may be said that if no advantage would be lost, or right destroyed, or benefit sacrificed either to the public, or to an individual by such a holding, the provision might be regarded as directory. Or, if less injury would result by disregarding than by enforcing the provision according to its letter, then it could with propriety be treated as directory merely. But if the lax rule would tend to the injury of the public, or if, applied to the facts of a given case (though possibly conducive to good results in that special instance), would introduce a dangerous precedent, then, especially as to constitutional provisions, should a court be reluctant to depart from the letter of the constitution. Cooley on Constitutional Limitations, 93; Maxwell on the Interpretation of Statutes, 452; The State v. Covington, 29 Ohio St. 117. In the light of these considerations, we inquire whether section 17, before quoted, should be regarded, in this case, as merely directory, or as embodying a positive requirement ? ' And this is a practical question: "Where a bill has received the sanction of a majority of each house of the general assembly, but has not been signed by the presiding officer of either house, or filed in the office of the secretary of state in the regular course of procedure, or enrolled there, or published among the authorized laws, can it be treated as law by the courts ?

We are reluctantly led to the conclusion that it cannot. The advantages to be derived by a recognition of this bill as a law would, we think, be far outweighed by the perils which might follow the establishment of so dangerous a precedent. As applied to this case, the result of this holding but postpones, in all probability, to the meeting of another assembly, the accomplishment of the object sought. Nor will this view necessarily work irreparable inconvenience as applied to any class of legislation. In a case where the subject-matter of a bill thus defeated is vital to the public business of the state, the authority of the governor to call together the general assembly, and give opportunity for all needed requirements to be observed, is ample. On the other hand, the importance of furnishing to the people, sources of information, certain in their character and convenient of access, as to what is, and what is not law, is obvious. All are presumed to know the law, and it is of great interest to each citizen, as well as to the public officer, that there be some authentic record to w.hich he may resort to ascertain certainly and definitely what laws are enacted by the legislature; what control him in the daily transaction of business, and of what, at his peril, he is bound to take notice. Whatever conduces to certainty in this regard, therefore, is of great moment to every person in the state, and no rule of construetion would be wise which leaves so important a matter in doubt or confusion.

It is urged that to give controlling'effect to section 17 would be to clothe the presiding officers of the general assembly with a veto power, and such a result cannot have been intended by the convention which framed the constitution. Certainly that body did not so intend; but we think the result feared is not likely to follow. Our attention is called to the case of Leavenworth v. Higginbotham, 17 Kansas, 62. In that case the bill in question was passed, signed by the governor, and published more than eleven years prior to the decision, and all departments of the state government hacl held it valid, though it lacked the signature of the presiding officer of the senate. The court decided that the bill should be held to be valid, although it may not have the signature of the presiding officer of the senate affixed to it.” In the opinion, prominence is given to a consideration of the suggested dangers which would follow if the signatures of the presiding officers were deemed essential. "Whatever significance should be attached to this consideration in the newer states, we are impressed that, as applied to this state, the danger is more fancied than real. Section 17 has been in force, as a constitutional requirement, since the formation of the state,' and this is the first instance, so far as we are advised, in which there has been a failure to observe it. . If any has occurred, the learned counsel has omitted to call our attention to it. Howevei’, the obvious answer to this objection is, that confidence must be reposed somewhere; it is not to be presumed that men selected to fill places of such high trust will intentionally violate the constitution, and prove false to their oaths.

Cottrell v. The State, 9 Nebraska, 125, is cited. In that case a like provision was held to be directory. Maxwell, C. J., in the opinion says: The signature of a presiding officer to a bill is a mere certificate to the governor that it has passed the requisite number of readings, and been adopted by the constitutional majority of the house over which he presides. The vote upon the passage of the bill must be determined from the journals of the respective houses. And where it appears from the journals that a bill has passed by the requisite majority, and has been approved by the governor, the failure of the presiding officer to affix his signature thereto, will not invalidate the act, as it will be presumed that the governor had sufficient evidence before him of the passage of the bill at the time he approved the same.”

It appears that all due formalities had been observed as regards the act, save only the signature of the presiding officer of the senate. It had the governor’s signature, was duly enrolled in the office of the secretary of state, and it had been in force for years. The' governor’s signature apparently served, not only as showing his official assent to the measure, but as authenticating the bill itself. In this state the governor takes no part in the approval or authentication of laws. There are other notable differences between these cases and the case at bar. If a case were presented where a bill, lacking only the signature of the presiding officer of one house, had been filed by the secretary of state, published under his authority as a law and recognized as such by all other branches of the state government, and acquiesced in for years, a different question would be before us.

The two cases just referred to are the only authorities we have noticed which appear to sustain the relator’s claim, and, we think, when duly considered, they fail to do so. On the other hand, the positions heretofore assumed are believed to be in consonance with the views of text-writers and with many adjudicated cases. See Burroughs on Public Securities, 425; State v. Swift, 10 Nev. 176; State v. Rogers, 10 Nev. 250; State v. Glenn, 18 Nev. 34; The State v. Mead, 71 Mo. 266; Pangborn v. Young, 32 N. J. L. 29; Sherman v. Story, 30 Cal. 253; Mayor v. Harwood 32 Md. 471; Jones v. Hutchinson, 43 Ala. 725.

Writ refused.


author: Minshall, J.

text:
    State v. Granville.

      Criminal law — Elections—Offenses relating to — Exceptions by prosecuting attorney~-Rractice — Sections 7061, 7305, 7308, Rev. Stats.

    1. In an indictment under section 7061, Bevised Statutes, as amended February 17,1881 (78 Ohio L. 30), it is not necessary to set out a copy of the poll-book or tally-sheet on which the offense was committed,- nor is the purport thereof required; it is sufficient to describe it by the designation “poll-book” or “tally-sheet,” and to aver that the defendant wrongfully and fraudulently changed, altered, erased, or tampered with a “name,” “word” or “figure” contained in such poll-book or tally-sheet, as the facts may require, setting forth the nature and character of the alteration made; and that it was done with intent to defeat, hinder or prevent a fair expression of the will of the people at an election.
    2. The purpose of the bill of exceptions by a prosecuting attorney to the decision of a court, for which provision is made in section 7305 of the Devised Statutes, is not to obtain a reversal of the judgment of the court in the case in which the bill is taken; its purpose is simply to determine the law to govern in a similar case. Sec. 7308, Bev. Stats.
    (Decided June 28, 1887.)
    Bill of Exceptions by the prosecuting attorney to the decision of the Court of Common Pleas of Franklin County.
    The grand jury of Franklin county, at the September term, 1885, of the court of common pleas of said county, presented an indictment against Algernon Granville and others, charging “ that on the 13th day of October, in the year of our Lord one thousand eight hundred and eighty-five, in precinct “ A ” of the thirteenth ward of the city of Columbus, and in the county of Franklin, and the state of Ohio, an election was duly holden, the same being authorized by the laws of the state of Ohio, at which election in said precinct H. J. Ossing, J. Hatcher and E. B. Adams acted as judges of said election, and A. L. Allis and C. F. Galloway then and there acted as clerks of said election; that then and there, at said election, George Hoadly was a candidate for governor,” to which is added the names of other candidates on the same ticket; and it then avers that, “ each of said candidates received votes at said election for the offices for which they were respectively candidates, and said election was duly holden under the laws of the state of Ohio, to elect officers for the various offices above named and for which the above named, candidates were respectively candidates. That then and there, after the closing of the polls at said election, the ballots cast thereat were duly counted and entered by tallies, upon tally-sheets provided according to law, and the number of ballots cast for each candidate was then and there enumerated ánd set down in figures, as is provided by law, on the tally-sheets aforesaid; that within three days thereafter one of the poll books of said election, and one of the tally-sheets aforesaid made up by said judges and clerks at said election, as provided by law as aforesaid, was deposited as required by law with the clerk of the court of common pleas of said county, at his office in the city of Columbus, in said county and state ; that afterward, to wit: on the eighteenth day of October, A. D. 1885, in said county and state, Algernon Granville and others, did then and there, and before the time, as fixed by the law of said state, had expired for using said poll-book and tally-sheet in any contest of said election, wrongfully, unlawfully and feloniously change, alter, erase and tamper with the tallies and figures contained in said poll-book and tally-sheet of said election so held, canvassed and returned as aforesaid in precinct “ A,” thirteenth ward, city of Columbus aforesaid, as follows, to-wit: The number of tallies so entered and ballots cast and returned for George Hoadly for governor of said state, to-wit, two hundred and three, were so changed and altered, erased and tampered with as to read five hundred and three,” and so as to each of the candidates named. “ All with intent thereby then and there to defeat, hinder and prevent a fair expression of the people at said election so held as aforesaid in precinct “A” of the thirteenth ward, city of Columbus, county of Franklin, state of Ohio, on the said thirteenth day of October, A. D. 1885, contrary to the form of the statute in such case made and provided, against the peace and dignity of the state of Ohio.
    Cykus Huling,
    Prosecuting Attorney for Franklin County, Ohio.”

      A motion to squash having been made and overruled, the defendants demurred to the indictment, on the ground that it did not state facts sufficient to constitute an offense against the laws of this state. The court sustained the demurrer, and adjudged that “ the defendants be not required to further plead or answer to said indictment.”
    Thereupon the prosecuting attorney took a bill of exceptions, which is now prosecuted in this court “ for its decision upon the points presented.”

      Gyrus Hiding, prosecuting attorney, for the state.
    I. The indictment Aras good on general demurrer.
    The crime is described in “ apt words.” Sewell v. State Wright, 483.
    The defendants are not charged Avith altering a tally-sheet. The tally-sheet Avas only the instrument upon which the thing altered (the figures) was found. So it is only incidentally described. This comes plainly under section 7220 of the Revised Statutes.
    To be compelled to set out and prove, as laid, the tally-sheet in question, would be an impossibility, if it must be done as in forgery. Which tally-sheet is meant when a cojjy is asked for ? Is it the tally-sheet before alteration or after ? If before, we claim that it is impossible to make it, for the reason that no one can tell by inspection where the spurious begins. If after alteration, how is it possible to allege alteration of an instrument which hitherto remains unaltered?
    Besides, if this crime is to be proved as forgery, every alteration must be proved as laid, while according to the rule for which Ave contend, if any alteration is proved as laid it sustains the indictment. Baker v. State, 14 Tex. App. 332.
    But, in any vieAV, a sufficient reason for not attaching a copy of the tally-sheet is found in the fact that the form of a tally-sheet, to the minutest detail, is prescribed by law, and hence no averment can import greater verity than to say a “ tally-sheet made up as required by law.”

      The mischief to be remedied should be considered in construing statutory offenses and pleading under them. In forgery, the thing to be prevented is the putting in circulation false evidence of indebtedness. In this, to prevent the obstruction of the right of suffrage. The one is the alteration of an instrument — every part of it — because to alter a word is to alter all. In the other, the different parts of the instrument are disconnected, and the crime lies in the alteration of a word, name or figure, not in the alteration of the instrument.
    There is no authority for pleading an instrument, by copy, in an indictment, except when that instrument is alleged to be altered or forged. School District v. Dilman, 22 Ohio St. 194; Wisby v. Bonte, 19 Ohio St. 238; Burt v. Kentucky Trust Bank, 1 Dis. 30.
    The nature and cause of the accusation are sufficiently set out in the indictment. Turpin v. State, 19 Ohio St. 545.
    The crime is sufficiently charged even were the pleading construed by rules of common law.
    There is here such a description of a crime that the defendants know what they are to answer. That, if tried, a jury will be warranted in finding a verdict, and, if found guilty, the court will not be misled in inflicting the punishment. State v. Follet, 6 N. H. 53.
    It is not required that the rules of pleading süomd furnish a shield from punishment.
    II. This court has power to reverse the decision of the court below and remand the cause for further proceedings.
    Subject to the constitutional limitation that no man shall be twice put in jeopardy for the same offense, there is no distinction between the revision of the acts of inferior courts in civil and criminal cases, for state or defendant, unless that distinction is statutory. People v. Webb, 38 Cal. 467; State v. Daily, 6 Ind. 9; People v. Nestle, 19 N. Y. 583; State v. Fields, Mart. & Yerg. 140.
    It is the universal policy of the law of the various states in this country, almost without exception, that a criminal shall not be allowed to escape on account of errors committed in his favor save only when jeopardy has attached; and that is a question for the reviewing court. People v. Nestle, 19 N. Y. 583; People v. Bennett, 49 N. Y. 137; 19 Mo. 683; 49 Mo. 472; 52 Mo. 31; 52 Mo. 106; 59 Mo. 149; 62 Mo. 40; 69 Mo. 577; State v. Hamilton, 62 Ind. 409; State v. Lusk, 68 Ind. 264; People v. Webb, 38 Cal. 467; State v. Fields, Mart. & Yerg. 137; State v. Tolls, 5 Yerg. 363; State v. Smith, 2 Yerg. 280; State v. Daily, 6 Ind. 9; People v. Payne, 3 Denio, 88; People v. Taylor, 3 Denio, 91, 99; People v. Jackson, 3 Denio, 101; People v. Adams, 3 Denio, 190.
    There is no judgment in the case at bar. It is simply an order. Section 5310, Revised Statutes; Mayfield v. State, 40 Tex. 289; State v. Gregory, 38 Mo. 501. The exceptions may be filed before judgment undér section 7306, Revised Statutes. If the decision of this court is to become the law for similar cases, it may become the law for the same case if pending at the time of the decision. This couH has the power to render the decision the court below ought to have rendered, and, certifying that fact to the court below, order it to proceed.

      J. T. Holmes, also for the state.
    The hearing, submission and decision on the demurrer was a “ trial ” within the meaning of the word as used in section 7306 of the Revised Statutes. Jenks v. State, 39 Ind. 9; Tregambo v. Comanche M. & M. Co., 57 Cal. 505; State v. Brown, 63 Mo. 444.
    Final “judgment” has not been given or entered, and has no potential existence to be affected by the ruling of this court on the “ decision ” of the court below.
    It is nowhere provided in the statutes that before a prosecuting attorney can take a “ decision ” of the court of first instance to the supreme court for review, a final judgment must be entered in favor of the accused and he discharged.
    Section 7308 of the Revised Statutes is not necessarily involved, because there is no “judgment” to be affected by such reversal.
    If a “judgment” had been entered in favor of the defendants in the court below it could not, by reason of the limitation contained in this section, be affected in any wise. In such case tbe defendant must stand discharged. That is not the case before us. It is worthy of note that the general assembly used the words “decision” and “judgment” with manifest care and discrimination in these sections; the word judgment occurring but once, and that in section 7308.
    The limitation contained in this last named section is not to be enlarged by implication or interpretation. On its face it is a simple enactment of the common law doctrine or maxim: “No one shall be twice vexed,” etc.
    The effect of the reversal, by this court, of the decision below, would be to blot out, in a legal sense, the record of the ruling below. Mer. & Man. Ins. Co. Shillito, 15 Ohio St. 559; Williams v. State, 18 Ohio St. 46; Emery v. Irving Nat. Bank, 25 Ohio St. 360; Miller v. Sullivan, 26 Ohio St. 639.
    The case is not out of the common pleas. The final entry has not been made there. The indictment, pronounced insufficient, it is true, is still pending there. The only thing in this court is the question saved by the prosecuting attorney, with enough of the record to show all that bears upon the question made thereby. It happens to be the complete record.
    The defendants have never been “in jeopardy.” The plea of not guilty has not been entered, nor has the jury been sworn. Mitchell v. State, 42 Ohio St. 383; State v. Ray, 1 Rice (S. C.) 5; State v. Connor, 5 Coldw. 317; Williams v. Commonwealth, 78 Ky. 96.
    Two results of a reversal in such a case as this seem to flow from the language and spirit of this legislation and the fundamental principles of procedure:
    1. If ¿n acquittal at the hands of a jury has occurred and “ judgment” been rendered, the declaration of this court on the review of the prosecutor’s exceptions becomes the law of “ similar ” pending and future “ cases.”
    2. If exceptions of the prosecutor to interlocutory “decisions” are brought to the supreme court — no final “judgment” being entered in the court below — and the decisions reversed, the indictment still pends in the lower court, and in the further progress of the case that court is bound by the reversals, duly certified to it.

      R. A. Harrison, in support of the decision.
    I. The object and legal efect of such a proceeding as this are plainly declared in sections 7307 and 7308 of the Revised Statutes.
    The question is, do the facts stated in the indictment constitute an offense punishable by the laws of this state ?
    The indictment is attempted to be founded upon that clause of section 7061 against wrongfully “ changing, altering, erasing or tampering with any name, word ox figure contained in a poll-book, tally-sheet, ” etc. The other clauses of the section define other offenses; and section 7060 makes it an offense to unlawfully falsify any ballot cast or voted.
    It is necessary to understand what is meant by the words “ the facts stated ” in an indictment which charges an offense punishable by law. It is settled that they mean a complete description of such facts and circumstances as will constitute the crime. The manner óf the whole fact must be set forth, so as to enable the court to determine from the face of the indictment whether all the ingredients of the crime are set out, as well as to inform the accused of the precise charge which he is required to meet. A statement of the legal result of facts is not a statement of facts. An indictment accusing generally does not state facts which constitute a crime. Inferences from facts are not facts. Fouts v. State, 8 Ohio St. 98, 113; Davis v. State, 7 Ohio, 205.
    If any one fact or circumstance, which is a material ingredient of the offense, as defined by the statute, be omitted, the indictment is bad in substance. If any one or more of the substantial ingredients or distinguishing constituents of the crime may be omitted, the written accusation required would become a mere snare by which to mislead and entrap the accused on his trial. Fouts v. State, supra; Lane v. State, 39 Ohio St. 312.
    And while the legislature has the power to prescribe forms and dispense with many formal allegations in indictments, there is a limit to such power; and it is clear that there is no authority in the legislature to enact, or in the court to determine, that that shall be a sufficient indictment which fails to inform the accused of the offense with which he is charged. Lane v. State, supra; Lamberton v. State, 11 Ohio, 282, 284, 285; Dana v. State, 2 Ohio St. 91.
    Section 10 of article 1 of the constitution ordains, among other things, that no one shall be held to answer for a capital crime, unless on indictment of a grand jury; and that in any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; and to demand the nature and cause of the accusation against him, and have a copy thereof.

    Prior to the enactment of the criminal code, in 1869, it was necessary in an indictment for forgery to set out the instrument forged in words and figures; and this rule prevailed if the forgery consisted in the alteration of a true instrument. McMillen v. State, 5 Ohio, 269; Stephens v. State, Wright, 73; Dana v. State, 2 Ohio St. 91; State v. Bryant, 17 N. H. 323.
    Section 7218, Revised Statutes, provides that it shall be sufficient, in an indictment for forgery, to set forth the “purport and value ” of the instrument alleged to have been forged. The word “ purport ”, as used in this section, has a settled signification. It denotes the substance of an instrument as it appears upon the face of it to every eye that reads it, and not its legal effect. 2 Arch. Cr. Pr. & Pl. (8th ed.,) 1568; Whar. Am.Cr.L.sec. 728; 2 Russell on Crimes, (9th ed.) 803; Dana v. State, 2 Ohio St. 91; Fogg v. State, 9 Yerg. 394; State v. Atkins, 5 Blackf. 458.
    The general assembly intended nothing more by section 7218, of the Revised Statutes, than to dispense with the necessity of setting out an exact copy of the instrument alleged to have been forged, and to provide that in an indictment for forgery, instead of giving an exact copy, it shall be sufficient to describe the instrument alleged to have been forged, by setting forth all its substantial particulars, as disclosed upon its face; and to allege also its legal effect. The word value in section 7218 is used in.the sense of “ effect ” or “ import, ” and not in the sense of “ worth in money. ” Chidester v. State, 25 Ohio St. 433.

      An indictment for forgery must, therefore, still contain such positive and direct allegations of fact as that from them alone the court can determine what were the facts upon which the grand jury founded their conclusion that an instrument which can be the subject of forgery has been in fact forged. To enable the court to determine that question, the instrument must be fully described;' that is to say, its substantial particulars as disclosed upon its face, must be set forth..
    It is well settled that when the purport of an instrument is set out in an indictment the instrument offered in evidence must appear on its face to be as stated in the indictment. Downing v. State, 4 Mo. 572; 2 Russell on Crimes, (9th, ed.) 803; Reading’s Case, 2 Leach, Cr. Cas. 590; 2 East P. C. c. 19s. 56, p. 981; Commonwealth v. Kearns, 1 Virg. Cas. 109; State v. Harris, 5 Ired. (Law) 294; 2 Arch. Cr. Pr. & Pl. (8th ed.) 1568; Whar. Cr. Pl. & Pr. (8th ed.) 169.
    An indictment which charges that a tally-sheet was changed or altered, does not describe the instrument; the substantial particulars of the instrument styled a tally-sheet, as disclosed upon its face, are not set forth; and, therefore, it does not state facts which show that an offense has been committed. Such an allegation is not an allegation of fact. It merely states, as Birchard, J. said in Lamberton v. State, supra, a conclusion of law, predicated upon a supposed state of facts.
    If any one is indicted for falsely making, altei’ing or uttering a bank note, an exact copy of it need not be set out; but the note must be described; to call it a bank note is to give it a name, not to describe it. Lamberton v. State, supra.
    The facts stated in the indictment do not, therefoi’e, constitute an offense punishable by the laws of this state. The court cannot determine from the facts stated that the instrument alleged to have been altered is such an instrument as is the subject of the crime of forgery. The indictment does not set forth the “purport” of either the poll-book or tally-sheet to which it alludes.
    II. An indictment which does not state facts that constitute an offense, with such certainty as that on its face the court can, irrespective of iegal conclusions or inferences contained in it, determine whether an offense has been committed, docs not contain facts sufficient to show that a crime has been committed. And upon that ground also this indictment is bad on demurrer. Lane v. State, 39 Ohio St. 312.
    III. The indictment does not allege that the instrument alleged to have been altered was signed and attested and certified, as required by sections 2956 and 2960 of the Revised Statutes.
    IY. Even if the indictment had seth forth the “ purport ” of the instruments called a poll-book and a tally-sheet, so that it would not have been fatally defective on that ground, it would, nevertheless, have been bad in substance, for the reason that it does not state facts showing that any “ name, word or figuro ” in either of the instruments, was “ changed, altered, erased or tampered with.”
    Y. The provision contained in the last clause of section 7215, Revised Statutes, that, “no indictment shall be deemed invalid * * * for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits, ” received a construction in Lane v. State, 39 Ohio St. 312, where it is held that the defects mentioned in that section relate to matters ofform, and that the words quoted apply only to such matters as are ejusdem generis with those comprehended in the preceding part of the section. See, also, Shultz v. Cambridge, 38 Ohio St. 659.
    The defects in the indictment are not merely formal defects of the character mentioned in section 7215; hence, the indictment cannot be sustained under that section.
    Section 7218 requires that the purport of the instrument alleged to bo forged must be set out. This shows that, in the judgment of the general assembly, unless the purport of such instrument is set out, the court cannot determine whether it appears on the face of the instrument that an offense has been committed; and it also shows that the accused may be prejudiced at the trial on the merits if the purport of the instrument be not set out in the indictment.
    "When the indictment for forgery does not describe the substantial particulars of the instrument alleged to have been forged, as they appear upon its face, the defect or imperfection tends to the prejudice of the substantial rights of the defendant upon the merits, for the reason that the indictment does not notify him, with certainty, of what he is to meet; that is, of the acts done, which it behooves him to controvert.
   Minshall, J.

The principal question arising upon this bill of exceptions is, whether the indictment was defective, in that it did not set forth a copy of the poll-book and tally-sheet, nor, as claimed, the purport thereof. It is claimed that section 7218 of the Revised Statutes, requires that this should have been done. But does that section apply to an indictment under section 7061, for wrongfully altering a “ name,” “ word” or “figure” upon a poll-book or tally-sheet? We think not. The language of section 7218 is: “In an indictment for falsely making, altering, forging, printing, photographing, uttering, disposing of, or putting off, any instrument, it shall be sufficient to set forth its purport and value.” It is apparent that this is intended to apply to such alterations and forgeries as are made punishable by section 7091 of the Revised Statutes, and those immediately following it, and does not apply to an indictment fpr wrongfully altering a name, word or figure upon a poll-book or tally-sheet. In forgery the offense consists in falsely making or altering any of the instruments named, with intent to defraud; under section 7061 it consists in wrongfully altering or tampering with a name, word or figure in or upon a poll-book or tally-sheet, with intent to defeat, hinder or prevent a fair expression of the will of the people at an election. A forgery affects the individual in his civil rights by working some fraud upon his rights of property ; wrongfully tampering with a poll-book affects the individual in his political rights, and is punished as a political offense, being a wrong done to each and every honest elector.

That section 7218 is intended to be limited according to the construction we have given it, will more clearly appear from the following sections, 7219 and 7220. Section 7219 is as follows: In an indictment for engraving or making the ' whole or any part of any instrument, matter, or thing, or for using, or having the unlawful custody or possession of, any plate or other material upon which the whole or any part of any instrument, matter, or thing was engraved or made, or for having the unlawful custody or possession of any paper upon which the whole or any part of any instrument, matter or thing was made or printed, it shall be sufficient to describe such instrument, matter, or thing by any name or designation by which the same is usually known.” The analogy of the cases, in which, by this section, it is sufficient in an indictment to describe an instrument by its usual designation, to an indictment for wrongfully altering a name, word or figure upon a poll-book, is apparent. And by the following section, 7220, this provision is extended to all cases when “ it is necessary to make an averment * * * whether the same consists, wholly or in part, of writing, print, or figures.” That this section can, without any violence to its terms, be applied to an indictment for altering the figures upon a tally-sheet, seems plain; and we see no reason why a more limited construction should be placed on it. The power of the legislature to prescribe the form of the indictment, and to dispense with certain matters of description, provided the nature and substance of the charge is preserved, is not questioned. Commenting on the provision in our bill of rights guaranteeing to an accused party the right to demand the nature and canse of the accusation against him.” White, J., said, in Turpin v. State, 19 Ohio St. 544: We do not understand that it was intended by this provision, to place the rules of the common law, prescribing the particularity with which offenses were required to be charged, beyond all legislative control. And where, as in this case, the indictment clearly informs the accused of the transaction for which he is called upon to answer, it is, we think, in this respect, free from constitutional objection.”

Nor do we perceive what ground there is, in this indictment, for claiming that it does not inform the accused of the nature and cause of the accusation against him.” Conceding the full force of all that has been said by counsel, of the importance of this constitutional guaranty, and it must be admitted, as we think, that an indictment which specifies, as this does, the particular alteration the defendant is charged with having made upon the poll-book of an election, is more definite and certain and more fully informs the party of the nature and cause of the accusation against him,” than would the general and indefinite indictment, permissible in an indictment. for forgery, that the party altered or forged a particular instrument, setting it forth according to its purport and effect. In the latter case he is simply informed that he is charged with the forgery or alteration of a certain instrument, but, in what particular, he is not informed; in' the former he is apprised that he is charged with making a specific alteration in a designated instrument; as, that he wrongfully changed the figures upon a poll-book and tally-sheet, indicating the number of votes returned as received by a particular candidate, from the number 203 ” to 503.” There is a precision in this charge that leaves no room for misunderstanding as to what the party is required to meet. The averments of this indictment show that the poll-book and tally-sheet on which it is averred the offense was committed, were made and kept at a certain ward in the city of Columbus, at the annual October election for state and county officers in the year 1885. The defendant was required to answer the charge of a wrongful alteration of the poll-book and tally-sheet made and kept in that ward at that election, and none other.

But it is strenuously argued that the poll-book with the tally-sheet should be set forth according to its purport at least, so that the court may bo able to determine from the instrument itself, whether the instrument is what it is alleged to bo that an averment to that effect is but a legal conclusion. If this be so, then, designating any thing by its approju-iate name is the averment of a legal conclusion. This cannot be so, or else legal conclusions are quite common in pleading, particularly in criminal procedure.

In an indictment for burglary it is sufficient to designate the building upon which the offense was committed by the name given it in the statute; and whether it is such or not, is a matter of proof; but the averment that the building is a still-house is not the averment of a legal conclusion, though, whether it is such a house or not, will depend upon the nature and mode of its use. Thalls v. State, 21 Ohio St. 233. And the same is true as to the subjects of arson, of horse-stealing, of altering ear-marks or brands on domestic animals, and many other offenses. So in Kerr v. State, 36 Ohio St. 614, Kerr had been indicted under the act of 1877 (now section 7079, Revised Statutes), for knowingly selling and conveying land by warranty deed, having no title. It was claimed on error, that the indictment was defective, for the reason that it did not set forth a copy of the deed, that the court might determine from the face of it whether the deed would have been of any legal force if Kerr had been the owner of the land. It was held otherwise, the court saying it was a question of proof, and not of averment.

The same can be said with equal appropriateness in this case: "Whether the averment that an alteration was made upon a poll-book, made and kept at the election designated, is accurate, must depend upon the proof offered at the'trial.

The state of Nebraska has a statute similar to our own, having in fact adopted section 7061 of our Revised Statutes as it existed before the amendment of February 17, 1881. In the work of Judge Maxwell on Criminal Procedure, the form of an indictment under the statute of that state as adopted from our own, is given; in which the poll-book is neither set out by its tenor nor purport. In the form given the offense is averred to have been committed upon the poll-book of a certain election at which certain persons were judges and clerks, designating the instrument simply by its name. Maxwell Crim. Proc. 456. We are unable to see why more should be required in an indictment of this kind. It conforms to accurate principles of pleading, and is commendable for its brevity.

We are asked, however, in case the exception is sustained, to remand the cause for further proceedings upon the indictment. This we are satisfied cannot be done. The purpose of this proceeding, as will appear from the sections of the statute under which it is had, is not, in any case, to obtain a reversal of the judgment of the court in the case in which the bill is taken; its purpose is simply to determine the law to govern in a similar case. (Sections 7305-6-7-8, Revised Statutes.) However desirable it might be that such jurisdiction should be conferred on this court, in cases where the decision below puts an end to the prosecution, without a trial upon a plea of not guilty, it cannot lawfully assume it, as it has only such appellate jurisdiction as is conferred by law, and no such jurisdiction, as that invoked, has been conferred on this court in criminal proceedings.

Exceptions sustained.


author: Owen, C. J.

text:
    Johns v. Cincinnati.

      Municipal corporations — Negligence—Officer—Agency.
    By a special act of the general assembly the commissioners of Hamilton county were authorized to levy a tax upon the properly of the county, to be expended under the direction of the board of public works of the city of Cincinnati in opening, grading and completing an uncompleted public highway wholly within the city limits and already under the control of the city. By the neglect of the board in the prosecution of the improvement, the premises of an abutting owner were injured. Meld : The board was acting as an agent of the city, and the latter is liable for damages resulting from such injury.
    (Decided June 28, 1887.)
    Error to the Circuit Court of Hamilton County.

      A. G. Gollins, for plaintiff in error.
    The defendant, the city of Cincinnati, has exclusive jurisdiction over the streets and avenues within its corporate limits. Sections 1692, 2640, 2643, Rev. Stats.

      Prior to May 1, 1871, there was a Columbia Avenue within the corporate limits of the city; which the city was bound to keep in repair. Steubenville v. King, 23 Ohio St. 610; Grove v. Fort Wayne, 45 Ind. 431; Railroad Co. v. Commissioners, 35 Ohio St. 8, 9.
    A municipal corporation is bound to answer in damages arising by reason of a street being out of repair, if it be opened to the public, whether it is macadamized and completed from its beginning to its terminus or not. Mayor v. Furze, 3 Hill. 612; People v. Blomington, 63 Ill. 207; Houfe v. Fulton, 34 Wis. 618; Rochester White Lead Co. v. Rochester, 3 N. Y. 469; Mayor v. Spears, 66 Ga. 304; Phelps v. Mankato, 23 Minn. 276; Erie v. Scwingle, 22 Pa. St. 384; Penn. Co. v. Duquesne, 46 Pa. St. 224; Stedman v. Southbridge, 17 Pick. 162; Sewell v. Cohoes, 75 N. Y. 45; Stark v. Lancaster, 57 N. H. 88; Aurora v. Colshire. 55 Ind. 484: 2 Dill. Minn. Corp. §§ 978, 980.
    The avenue was laid out prior to any act offered in evidence and the grade established in front of the plaintiff’s premises before she purchased.
    The avenue was in existence and under control of the city prior to the passage of the act. The city made no transfer of such control to the state and the same remained unaffected. Cooley Const. Lim. 207, 208.
    The acts were unconstitutional inasmuch as they were special acts and conferred corporate powers. Sec. 1, Art. 13, Const.; State ex rel. v. Judges, 21 Ohio St. 1; Wyscaver v. Atkinson, 37 Ohio St. 94; State ex rel. v. Cincinnati, 20 Ohio St. 36; Cooley Tax. 104, 106; Wells v. Weston, 22 Mo. 385; Morford v. Unger, 8 Iowa, 82; State ex rel. v. Mitchell, 31 Ohio St. 607. And because the discretion to levy a tax is vested alone in the legislature. Section 2, Art. 12, Const.; Cooley Tax. 33, 34, 48; Allen v. Parish, 3 Ohio, 193; Voorhees v. Jackson. 10 Pet. 449; Newton v. Mahoning Co., 26 Ohio St. 618.
    They also violate the provisions of sec. 6, art. 8 and sec. 27, art. 2, of the constitution.

      There was no state agency created by these acts upon the board of public works, even if they were valid, for the reason that “ where powers pertaining to the duties of a' corporation are conferred upon those'who officially represent the corporation, these powers, unless the contrary appears, are deemed to be conferred upon them in their corporate, not in their individual character; in other words, upon the corporation itself.” 1 Dill. Mun. Corp. § 99; Conrad v. Ithica, 16 N. Y 158. And see Barnes v. Dist. Columbia, 91 U. S. 540.
    The defendant having exercised its judicial power in establishing and opening a route, it is bound for negligence in its ministerial duty to keep it in repair. Jones v. New Haven, 34 Conn. 1; McCarthy v. Syracuse, 46 N. Y. 194; Smith v. Mayor, 66 N. Y. 295; Mayor v. Bailey, 2 Denio, 441.

      Horstman, Hadden, Foraher & Galvin, city solicitors, for defendant.
    The board of public works of the city was the agent of the state appointed to discharge a certain ministerial duty. The funds for the improvement of Columbia avenue were raised by a levy upon all taxable property of the county. It was the sovereign power of the state and not the corporation that undertook this work. The state, in the execution of the work, saw fit to do so in part through the agency of an official body of the city.
    A private action will not lie against the corporation for omitting or neglecting to act. Wilson v. Mayor, 1 Denio, 595; Hill v. Boston, 122 Mass. 344; Lacour v. Mayor, 3 Duer, 406.
    The state had the right to complete this work within any period of time it saw fit. The work was stopped for want of funds, and the reason the damage occurred was because of the’ avenue not being completed. The city was not bound to furnish funds to complete it.
    A municipal corporation has the right to determine when and what streets it will improve. For non-action, where it has legislative discretion, it is not liable. The state having imposed no further duty upon the board of public works than the expenditure of the funds raised by the county commissioners, that duty was fully discharged when the funds were exhausted.

      “ A municipal corporation, even in those states which assert an implied liability for damages caused by a failure to keep its streets in repair, is liable in respect of defects caused by others only on the ground of negligence.” Dill. Mun. Corp. secs. 1015, 990, 991; Cincinnati v. Penny, 21 Ohio St. 499; Radcliff v. Mayor, 4 N. Y. 195; Wilson v. Mayor, 1 Denio. 595; Shaw v. Crocker, 42 Cal. 435.
   Owen, C. J.

The plaintiff in error, Jennie Johns, who was plaintiff below, was the owner of real estate on the south side of Columbia avenue in the city of Cincinnati. After she had built her residence on such premises to the established grade, the grade was changed, and she complained against the city that while improving said avenue the city negligently and wrongfully caused the water from the avenue to overflow her premises, injuring them, her carpets, the contents of her cellar, etc.

The defense was that by an act of the general assembly (77 Ohio L. 408), the commissioners of Hamilton county were authorized to levy a tax for opening, grading and completing an avenue known as Columbia avenue,” etc., which act is of the following tenor:

Section 1. .Be it enacted by the general assembly of the state of Ohio, That the commissioners of Hamilton county, in addition to their other powers of taxation, be and they are hereby authorized to assess and collect upon the grand levy of the taxable property of said county, a tax not exceeding two-tenths of a mill on the dollar, of which not more than one-tenth of a mill shall be assessed in any one year, to be applied to the opening, grading and completing of an avenue, extending from Martin street to Tusculum avenue, and known as Columbia avenue, running throngh the First Ward; provided, that so much of said tax as shall be expended on that portion of said avenue, situated within the corporate limits of the city of Cincinnati, shall be expended by and under the direction of the board of public works of said city; and provided further, that the fund raised by said levy, shall not be diverted from the object for which this levy is authorized, or transferred to the credit of any other fund, or used for any other purpose whatever ; and further provided, that Columbia avenue shall be established, opened, graded and completed on such route as may be determined by said board of public works.”

This avenue was wholly within the city limits.

The record of the case is in a very unsatisfactory state, but it is quite apparent from it that the controlling question in the case arises upon the claim of the city that the board of public works, in prosecuting the work of improving the avenue, acted as the agent of the state, and not of the city.

To this commanding question — ignoring the unsatisfactory state of the record — we confine our consideration, believing that, in any view we may take of the issues involved, the liability of the city depends upon the solution of this question.

It seems too clear for serious discussion that the object of the act above quoted was to invoke the aid of the Hamilton county taxpayers to improve a city street.

The general assembly found Columbia avenue an uncompleted city highway, and designed to leave it a completed city highway.

It found the city fully equipped with a board of public works, vested with exclusive jurisdiction over the streets, avenues, etc., within the corporate limits.

It seems clear, also, that this act was not intended to suspend, for the purposes of this improvement, the functions of the board of public works as one of the agencies of the city, nor to create a new agency of the state. ■

It was not intended, by this act, to transfer, the control of Columbia avenue from the city to the state.

If the act had provided that the funds to be raised by the commissioneRs’ levy should be expended by the city of Cincinnati in opening, grading and completing Columbia avenue, what substantial difference, in1 its objects and legal effects, would it have presented from its present provisions and purposes?

Being of opinion that both the intent and legal effect of this act, if it be a legal enactment, is to authorize the city to ex-2>end the money to be levied under its provisions, by the hand of the board of public works, for the improvement of a city highway, it is not necessary to discuss the question of the validity of the act itself. The injury to the plaintiff’s property resulted from suspending or abandoning the work of improvement, leaving it in such incomplete and dangerous state that the injury, was the natural and probable, if not inevitable, consequence.

If the act was invalid, and the city was proceeding under general statutes, or without authority, her liability is beyond question.

That the city is liable upon the interpretation of this act which is indicated above, is abundantly established by the following authorities : Wright v. Holbrook, 52 N. H. 120; Aldrich v. Tripp, 11 R. I. 141; Barnes v. District of Columbia, 91 U. S. 540.

In the case last cited the fourth paragraph of the syllabus is in the following language :

“Theact of congress of February 21, 187Í (16 Stat., 419), creates a ‘municipal corporation5 called ‘The District of Columbia.5 It provides for the appointment of an executive officer called a governor, and for a legislative assembly. It creates a board of public works, which is invested with the entire control of the streets of the district, their regulation and repair; and is composed of the governor of the district and four other persons appointed by the president of the United States, by and with the advice and consent of the senate, to hold their offices for the term of four years, unless sooner removed by the president. The board is empowered to disburse all moneys appropriated by congress or the district, or collected from property-holders in pursuance of law, for the improvement of streets, avenues, etc.; and is required to make a report to the legislative assembly of the district, and to the governor, who is directed to lay the same before the president for transmission to congress. Held, that the board of public works is not an independent body acting for itself, but is a part of the municipal corporation; and that the District of Columbia is responsible to an individual who has suffered injury from the defective and negligent condition of its streets. Held further, that a municipal corporation, holding a voluntary charter as a city or village, is responsible for its mere negligence in the care and management of its streets. In this respect, there is a distinction between the liability of such a corporation and that of a quasi corporation like a county, town, or district. Whether or not this distinction is founded on sound principle, it is too well settled to be disturbed.”

The principle of this case, which we approve, is decisive of the case at bar. The judgment of the superior court of Cincinnati (in which the plaintiff’s action was commenced, and which proceeded upon the opposite view of the law,) was in favor of the city. It was affirmed in the circuit court.

These judgments are reversed and the cause remanded to the superior court of Cincinnati for a new trial.