author: Crew, C. J.

text:
    The State, ex rel. Morris, v. Sullivan.

      Appointing power of governor — Act of April 2, 1906 (98 O. L., 342), creating railroad commission — Common law rule forbidding appointing officer — To forestall appointing rights of his successor — Stahites to be construed with reference to rules of common law, when.

    1. The well settled rule of the common law forbids that an officer clothed with power of appointment to a public office, shall forestall the rights and prerogative of his successor, by making a prospective appointment to fill an anticipated vacancy in an office the term of which cannot begin until after his own term and power to appoint have expired.
    2. This established rule of the common law is neither abrogated nor modified by the provisions of Section 1 of the act of the General Assembly of the State of Ohio passed April 2, 1906 (98 O. L., 342), creating a railroad commission, and requiring the governor to appoint thereto “in January, 1909, and biennially thereafter, one commissioner for the term of six years from the first Monday in February of such year.”
    3. Statutes are to be read and construed in the light of and with reference to the rules and principles of the' common law in force at the time of their enactment, and in giving construction ' to a statute the legislature will not be presumed or held, to have intended a repeal of the settled rules of the common law unless the language employed by it clearly expresses or imports such intention.
    (No. 11773
    Decided October 19, 1909.)
    Quo Warranto.
    This action is one in quo warranto originally commenced in this court by the relator, James C. Morris, to recover possession of the office of member of the Railroad Commission of Ohio, to which office he claims to have been duly and legally appointed on January 4, 1909, by Andrew L. Harris, then governor of the state of Ohio. The essential and controlling facts are sufficiently stated in the pleadings of the parties, and are not in dispute. The petition of James C. Morris, the relator herein, alleges and charges as follows:
    Now comes James C. Morris, the relator herein, and gives the court to understand and be informed that on the fourth day of January, 1909, Andrew L. Harris, the then duly qualified and acting governor of the state of Ohio, duly appointed the relator to the office of member of the Railroad Commission of Ohio, subject to the advice and consent of the Senate of the State of Ohio, for the term of six years, to commence on the first Monday in February, 1909, and to terminate on the first Monday in February, 1915; and on said fourth day of January, 1909, by written message, addressed to said senate and signed by said Andrew L. Harris, governor as aforesaid, duly submitted said appointment to said senate for its confirmation; that on said fourth day of January, 1909,c the General Assembly of Ohio, including said senate, was in session, and said -message of said Andrew L. Harris, Governor of Ohio, was duly received by said senate on said fourth day of January, 1909, and by appropriate action on the part of said senate the said appointment of the relator to said office was -duly assented to and confirmed by said senate. That thereupon, on the fifth day of January, 1909, the said Andrew L. Harris, Governor of Ohio, duly issued to the relator a commission to serve as a member of said Railroad Commission of Ohio for said term beginning on the first Monday in February, 1909, and ending on the first Monday in February, 1915, which commission was duly signed by said Andrew L. Harris, governor as aforesaid, and was duly countersigned by Carmi A. Thompson, who then was the duly elected, qualified’ and acting Secretary of State of the State of Ohio, And thereupon, on the twenty-ninth day of January, 1909, the relator took and subscribed the constitutional oath as an officer of the state of Ohio to support the Constitution of the United States and the Constitution of the State- of Ohio, and that he would faithfully discharge the duties of the office as a member of the Railroad Commission of Ohio, to which he had been appointed according to law, to the best of his ability; and further took and subscribed an oath that he was not pecuniarily interested in any railroad in the state of Ohio or elsewhere, and that he did not then hold any other office of profit and that he did not then hold any position under any political committee or party, which oath was on said date last aforesaid duly filed in the office of the said secretary of state. That then and thereby the relator was duly commissioned a member of the Railroad Commission of Ohio under said appointment and lawfully entitled to exercise the powers and duties and to receive the fees and emoluments of said office during said term beginning on the first Monday in February, 1909, and ending on the first Monday in February, 1915.
    But the relator avers that the defendant, John Sullivan, has usurped and unlawfully holds and exercises said office, and as such officer assumes to do and perform all and singular the duties pertaining to said office and to receive the fees and emoluments thereof, to the exclusion and against the rights of the relator and under a claim of appointment to said office by 'Judson Harmon, Governor of Ohio, and a confirmation thereof by the Senate of the State of Ohio, and a commission issued in pursuance of said appointment and confirmation thereof by said Judson Harmon, Governor of Ohio. But the relator avers that the said pretended appointment of the defendant by the said Judson Harmon, Governor of Ohio, was made long subsequent to the appointment and qualification of the relator to said office and after the right and title of the relator to said office had become fixed and absolute.
    Wherefore relator prays that defendant be required to answer by what warrant he claims to have, use, exercise and enjoy said office of member of the Railroad Commission of Ohio, and that he be adjudged not entitled thereto and that judgment of ouster therefrom may be pronounced against him, and that the relator may be adjudged entitled to said office and its franchises.
    To, this petition the defendant, John Sullivan, filed the following answer:
    Now comes John Sullivan, the defendant herein, and for answer to the petition of the relator, denies that on the fourth day of January, 1909, or at any other time, the relator was duly appointed to the office of member of the Railroad Commission of Ohio for the term of six years, to commence on the first Monday in February, 1909, and to terminate on the first Monday in February, 1915; he denies that on the fourth day of January, 1909, or at any other time, the Governor of Ohio duly submitted said alleged appointment to the Senate of Ohio for its confirmation; he denies that on the fourth day of January, 1909, or at any other time, the Senate of Ohio duly assented to and confirmed said alleged appointment; he denies that on the fifth day of January, 1909, or at any other time, the Governor of Ohio duly issued to the relator a commission to serve as a member of said Railroad Commission for the term beginning on the first Monday in February, 1909, and ending on the first Monday in February, 1915; he denies that said alleged commission was duly signed by the Governor of Ohio or duly countersigned by the Secretary of State of the State of Ohio; he admits that on the' twenty-ninth day of January, 1909, the relator took and subscribed the oaths mentioned in said petition; he admits that said Andrew L. Harris, as Governor of Ohio, at the time mentioned in said petition, attempted to appoint the relator to said office, and on said fourth day of January, 1909, submitted said pretended appointment to the Senate of Ohio for its confirmation, and that said senate in due form of law assented to said alleged appointment; that on the fifth day of January, 1909, said governor in due form of law issued to the relator a paper purporting to be a commission to serve as a member of said Railroad Commission for the term aforesaid, and that the same was countersigned by said secretary -of state; but the defendant denies that the relator was then and thereby duly appointed to said office, denies that his said pretended appointment was duly confirmed, denies that he was duly commissioned a member of said Railroad Commission for said term, and denies that he was or is lawfully entitled to exercise the powers or to receive the salary and emoluments of said office for said term, for that, on the third day of November, 1908, Judson Harmon was duly elected Governor of the State of Ohio to serve for the term of two years commencing on the second Monday, which was the eleventh day, of the month of January, 1909, and, although said Andrew L. Harris was on the fifth day of January, 1909, the duly qualified and acting Governor of the State of Ohio, his term of office, as he then well knew, would by operation of law expire on the eleventh day of January, 1909, and, therefore, said Andrew L. Harris had no lawful right, power or authority to make said alleged appointment, and the Senate of Ohio had no lawful right, power or authority to confirm the same.
    Further answering the defendant avers that he is, and at the times stated hereinafter was, a citizen, resident, inhabitant and elector of the county of Butler in the' state of Ohio, and then had and still has all the qualifications required by law for a inember of the Railroad Commission of Ohio; that on the twenty-first day of January, 1909, Judson Harmon, who then was the duly elected, qualified and acting Governor of the State of Ohio, as such governor duly appointed the defendant a member of said commission, subject to the advice and consent of the Senate of the State of .Ohio, for the term of six years, to commence on the first Monday in the month of February in the year 1909, and to terminate on the first Monday in the month of February in the year 1915, and on said twenty-first day of January, 1909, by a written message addressed and transmitted to said senate and signed by him as governor as aforesaid, duly submitted said appointment to said senate for its confirmation; that on the third day of March, 1909, said senate by appropriate action on its part, duly assented to, advised and confirmed said appointment of the defendant as a member of said Railroad Commission and on the fifth day of said month notified said governor of its said action; that thereupon, on the sixth day of March, 1909, said Judson Harmon, Governor of Ohio, duly issued to’the defendant a commission to serve as a member of said Railroad Commission for said term ending on the first Monday of February, 1915, which commission was duly signed by said Judson Harmon, governor as aforesaid, and was duly countersigned by the Secretary of State of the State of Ohio; that thereupon, on the eighth day of March, 1909, the defendant took and subscribed the constitutional oath of an officer of the state of Ohio, to support the Constitution of the United States of America, and the Constitution of the State of Ohio, and that he would faithfully discharge the duties of the office as a member of the Railroad Commission of Ohio, to which he had been appointed according to law as aforesaid, to the best of his ability, and further took and subscribed an oath that he was not pecuniarily interested in any railroad in the state of Ohio or elsewhere, and that he did not then hold any other office of profit, and that he did not then hold any position under any political committee or party, which oath was on said date last aforesaid duly filed in the office of said secretary of state; that then and thereby the defendant was duly commissioned a member of the Railroad Commission of Ohio, and then was and still is lawfully entitled to exercise the powers and duties and to receive the salary and emoluments of said office during said term, and since the date last aforesaid has discharged the duties of said office under said appointment.
    Wherefore the defendant prays that the petition of the relator be dismissed, and that the defendant be adjudged and decreed to be entitled to said office as member of the Railroad Commission of Ohio for said term ending on the first Monday in February, 1915, and for all proper relief.
    The sufficiency of the foregoing answer is challenged by relator by a general demurrer filed thereto and the cause is submitted to the court upon this demurrer.

      Messrs. Daugherty, Todd & Rarey, for relator.
    The general assembly is clothed with power to provide for the appointment to the office of member of the Railroad Commission. Section 27, Article 2, Constitution of Ohio.
    The provisions of the act with relation to the office of member of the commission are contained in Section 1 of the act of April 2, 1906, 98 O. L., 342.
    The duty and power of maxing an appointment to the office of member of the Railroad Commission is not an executive function, but a ministerial duty. State, ex rel. Trauger, v. Nash, Governor, 66 Ohio St., 612.
    If the power to appoint to an office created by law “does not inhere in the office of governor,” and is merely a ministerial duty cast upon the governor by statute, can it be said that the right or power to appoint to an office created by the legislature inheres in the person who may at any particular time occupy the office of governor?
    To apply the principle announced in the Trauger case directly to the case at bar, the power to appoint to the office of railroad commissioner may be just as lawfully imposed upon Governor Harris as upon Governor Harmon. There are no restrictions or limitations upon the right of the legislature to repose this power upon either or both of said governors. State, ex rel., v. Ermston, 14 O. C. C., 614, 57 Ohio St., 665.
    The statute authorizes the appointment to be made “in January, 1909.” The appointment of the relator was made in January, 1909. His appointment, therefore, is fairly within the express letter of the statute; and unless this statute is to be modified and its language restricted by interpretation, the appointment of the relator must be sustained as a valid exercise of the appointing power conferred by the statute.
    We contend that “in January” is plain and free from ambiguity and expresses a single, definite and sensible meaning, and that that meaning can not be varied, enlarged or restricted by interpretation. In other words, the statute must be interpreted literally. Woodbury & Co. v. Barry, 18 Ohio St., 456; Slingluff v. Weaver, 66 Ohio St., 621.
    The defendant would have the court interpret the statute as though it read “on or after the second Monday in January, 1909,” there shall be appointed, etc. We submit that this would be a clear violation of the principle of interpretation so clearly announced in the cases above cited.
    If it is presumed that the legislature contemplated that the term of one governor would expire January 11, 1909, and the term of his successor begin on the same day, surely if the legislature had intended to limit the appointment of railroad commissioner to only one of said governors, it would have used some apt language to express that intention.
    It is to be observed, first, that the office of Railroad Commissioner is in no proper sense a part of the political patronage of the office of governor. What we mean is that it is not in any way connected with the administration of the governor’s office. It is further to be observed that the functions and duties; to the Railroad Commission are at least semi-judicial.
    These considerations were evidently in the mind of the legislature when they fixed the term of a member of the commission at six years — three times the length of the term of governor of the state. The non-political character of the commission was evidently in the mind of the legislature when it provided that not more than two of the said commissioners should be members of the saíne political party, etc.
    An examination of the many cases sustaining the rule that a statute should be construed with reference to its spirit and reason, leads us to the conclusion that the rule is only applied in cases where to follow the letter of the statute would lead to consequences so absurd or unjust that they could not have been within the intention of the legislature. In other words, the courts have proceeded in applying this rule upon the theory that if the legislature had had the particular case in mind at the time of the enactment of the law, they would have excepted it from the provisions of the law. Holy Trinity Church v. United States, 143 U. S., 457.

      Messrs. Booth, Keating, Peters & Pomerene, for respondent.
    We claim that the alleged appointment of the relator was void, because it was made by a governor whose term ended on the eleventh day of January, 1909, to take effect in February.
    An outgoing officer, unless he be expressly required to do so, cannot lawfully forestall his successor in office in the exercise of the appointing power, and the statute under which both of the governors assumed to act must be construed in the light of this rule. Mechem on Public Offices and Officers, Section 133; State, ex rel., v. McCollister, 11 Ohio, 46; State, ex rel., v. Choate, 11 Ohio, 511; State, ex rel., v. Thompson, 9 O. C. C., 161; State, ex rel., v. Ermston, 14 O. C. C., 614, 57 Ohio St., 665.
    So much of the act of April 2, 1906 (98 O. L., 342), as bears upon this qhestion, is found in the first paragraph of Section 1.
    The provision relating to the time of making the appointment by the governor cannot be considered as being at the same time both mandatory and permissive.

      While the courts cannot place “any barrier on the powers of the legislature in such matters,” as repeatedly held in this state and elsewhere, prospective appointments are not favored by the courts and will not be held to be valid unless made in obedience to some statute which creates an express exception to the general rule. State, ex rel., v. Ermston, 14 O. C. C., 614.
    Where, however, the appointing power of the officer or body making the appointment will expire before the term of office of its appointee will begin, and vest in its successors, it cannot forestall the right and prerogative of its - successors by making appointments to such office. 23 Am. & Eng. Ency. Law (2 eel), 347; Mechem on Public Offices and Officers, Section 92; People v. Ward, 107 Cal., 236; Ivy v. Lusk, 11 La. An., 486; State, ex rel., v. Meeham, 45 N. J. L., 189; State, ex rel., v. O’Leary, 64 Minn., 207; Whitney v. Van Buskirk, 40 N. J. L., 463; State, ex rel., v. Catlin, 84 Tex., 48.
    Courts presume that legislators are familiar with the common law and intend to act in conformity with its principles unless in clear and express terms they express an intention to abrogate or modify it.
    This rule has been so frequently applied to the interpretation- of statutes by the courts of this and other states that it is recognized everywhere in this country, as it has long been regarded in England, as one of the cardinal rules of construction from which there is no dissent. Allen v. Parish, 3 Ohio, 187; Columbus v. Board of Elections, 13 O. D., N. P., 452; Krause v. Morgan,
      53 Ohio St., 26; Felix v. Griffiths, 56 Ohio St., 39; Grogan v. Garrison, 27 Ohio St., 50; Andrews v. Lembeck, 46 Ohio St., 38; United States v. Sanges, 144 U. S., 310; Heiskell v. Mayor, 65 Md., 125; Howe v. Peckham, 6 How. Pr., 229; Johnson v. Fluetsch, 176 Mo., 452; Edwards, Admr., v. Gaulding, 38 Miss., 118; Peterson v. Gittings, 107 Ia., 306; Keech v. Railroad Co., 17 Md., 32; Osgood v. Breed, 12 Mass., 525; Lewis Sutherland Statutory Construction (2 ed.), Section 543; Dwarris on Statutes, 185; 1 Kent’s Commentaries, *464.
   Crew, C. J.

On January 4, 1909, the relator, James C. Morris, was appointed by Andrew L. Harris then Governor of the State of Ohio, to be a member of the railroad commission of this state for the term of six years, said term to commence on the first Monday in February, 1909, and to terminate on the first Monday of February 1915. On the same day the Senate of Ohio, being then in session, assented to and confirmed said appointment. On the following day — January 5th — Governor Harris issued to said James C. Morris a commission to serve .as a member of said railroad commission for said term of six years commencing on the first Monday in February, 1909. By operation of law the term of office of Andrew L. Harris as Governor of Ohio expired at noon on January 11, 1909, and Judson Harmon then became governor. On January 21, 1909, Governor Harmon appointed the defendant, John Sullivan, to be a member of said railroad commission for and during the same term for which Governor Harris had theretofore named and appointed the relator Morris. Said appointment so made by Governor Harmon was on the 3d day of March, 1909, assented to and confirmed by the senate,' and on March 8, 1909, the defendant Sullivan having received his commission, qualified and entered upon said office of railroad commissioner and has ever since continued to hold the same and to discharge the duties thereof, under and by virtue of said appointment. These facts being admitted, the question here presented is, had Andrew L. Harris as Governor of Ohio, the lawful authority and right to appoint the relator Morris to fill an anticipated vacancy in a public office the term of which could not begin until after his own term of office had expired. It admittedly is the well-established general rule of law that an officer clothed with authority to appoint to a public office, cannot, in the absence of express statutory authority,' make a valid appointment thereto for a term which is not to begin until after the expiration of the term of such appointing officer. Mechem in his work on Public Offices and Officers, at Section 133, states the general rule as follows: “The appointing power cannot forestall the rights and prerogatives of their own successors by appointing successors to office expiring after their power to appoint has itself expired.” The author then quotes with approval the language of Buchanan, J., in Ivy v. Lusk, 11 La. An., 486, where he says: “That an appointment thus made by anticipation has no other basis than expediency and convenience, and can only derive its binding force and effect from the supposition that there will be no change of person, and consequently of will, on the part of the appointing power, between the date of the exercise of that power by anticipation, and that of the necessity for the exercise of such power by the vacancy of the office.” Throop in his.treatise on Public Officers, Section 92, says: “But it has been held that where an office is to be filled by appointment by the governor, with the advice and consent of the senate, the governor and senate cannot forestall their successors, by appointing a person to an office which is then filled by another, whose term will not expire until after the expiration of the terms of the governor and senators. And that an out-going board of freeholders of a county cannot lawfully appoint a person to an office which will not become vacant during their official terms.” The correctness and soundness of the rule and doctrine as above enunciated, so far as investigation has disclosed to us, is not opposed by any of the authorities, but is supported by many, among which are, State, ex rel. Bownes, v. Meehan, 45 N. J. L., 189; The People, ex rel. Sweet, v. Ward, 107 Cal., 236; Ivy v. Lusk, 11 La. An., 486. But counsel for relator, while conceding' the general rule to be as above stated, nevertheless, contend in the present case, that the appointment of the relator made by Governor Harris on January 4, 1909, was a valid exercise of the appointing power because expressly authorized by statute. Whether, as claimed, said appointment was so authorized, must be determined according to the interpretation and effect proper to be given the provisions of Section 1 of the act of the General Assembly of the State of Ohio, passed April 2, 1906 (98 O. L., 342, Section 244-11, Revised Statutes). Said section so far as its language is material or pertinent to the present inquiry reads as follows: “A railroad commission is hereby created to be composed of three commissioners. Within sixty days after the passage of this act the governor shall, by and with the advice and consent of the senate, appoint such commissioners, but no commissioner so appointed shall be qualified to act until so confirmed, unless appointed during the adjournment of said senate. The term of one such appointee shall terminate on the first Monday in February, 1909; the term of the second such appointee shall terminate on the first Monday in February, 1911; and the term of the third such appointee shall terminate on the first Monday in February, 1913. In January, 1909, and biennially thereafter, there shall be appointed and confirmed, in the same manner, one commissioner for the term of six years from the first Monday in February of such year. Each commissioner so appointed shall hold his office until his successor is appointed and qualified. Any vacancy shall be filled by appointment by the governor for the unexpired term, subject to confirmation of the senate, but any such appointment shall be in full force until acted upon by the senate.” It will be observed that while' the above- section provides that the original appointments to be made by the governor thereunder are to be made within sixty days after the passage of the act, the only provision or requirement as to subsequent appointments is, that in January, 1909, and biennially thereafter, -the governor shall appoint one commissioner for the term of six years, the term of such appointee to commence on the first Monday of February following said appointment. In other words, the legislature by way of fixing the time when such subsequent appointments should be made, enacted and required, only, that they should be'made biennially during the month of January. If the statute had been wholly silent as to the time such future appointments were to be made, then admittedly, Governor Harris, because of the rule above stated, would have been without lawful authority or right to appoint relator to an office the term of which could not begin until after his own term as governor had expired. Can it be affirmed, then, upon a consideration of this statute, that the necessary effect of the provision requiring appointments to be made in January, is to abrogate the well-established rule of the common law which forbids a prospective appointment to an office not to become vacant until the expiration of the term of the appointing officer; or, that it was the purpose and intent of the legislature in thus fixing the time when appointments should be made, to thereby so modify and alter the rule of the common law, as to authorize and empower an out-going governor “to forestall the rights and prerogatives of his own successor, by appointing a successor to an office expiring after his power to appoint had itself expired?” The established canons of construction forbid such interpretation, unless the plain language of the statute imperatively requires it. The statute must be read and construed in the light of the common law in force at the time of its enactment, and the legislature will not be presumed or held to nave intended the repeal or modification of a well settled rule of the common law then in force, unless the language employed by it clearly imports such intention. No such language is found in this statute, hence no such legislative intent is shown or can be presumed. Peterson v. Gittings, 107 Ia., 306; Johnson v. Fluetsch, 176 Mo., 452; Edwards, Admr., v. Gaulding, 38 Miss., 118; Keech v. Balto. & Wash. R. R. Co., 17 Md., 32; Lewis’ Sutherland Statutory Construction, Section 454; 1 Kent’s Commentaries, bottom paging 551; Maxwell on Statutes, pp. 121 and 122; Dwarris on Statutes, 185; 26 Am. & Eng. Ency. Law (2 ed.), 662. The record in this case affirmatively discloses that at the time Governor Harris appointed relator to be a member of the Railroad Commission of Ohio, no present necessity then existed for the making of such appointment. The appointment so made by him on January 4, 1909, was not made to fill an existing vacancy, but a vacancy to arise during the term of his successor, and after his own power to appoint thereto had, by operation of law, expired. This statute, although requiring such executive appointments to be made in January, neither in express terms nor by necessary implication from the language therein employed, imposes or enjoins upon the out-going governor the duty of making such appointment. Hence, the rule of the common law which positively forbids his making the same, is not changed or affected by the statute, but continues and remains in ftill force and effect and must therefore control and govern. The case of State, ex rel. Lueders, v. Ermston, 14 O. C. C., 614, affirmed by this court in 57 Ohio St., 665, “on the grounds stated by the circuit court,” is cited by counsel for relator as sustaining their contention in the present case. The statute before the court for construction in that case was, in its terms and essential requirements, materially different from the statute here under review, and the reasoning and opinion of the court in that case so far from being opposed to the conclusion reached by us in the present case, is, we think, in entire accord and harmony therewith. The syllabus in that case is as follows: “When authority is given to an officer to make an appointment, such officer cannot make an appointment the term of which is to begin after the expiration of his term. But when the statute expressly provides that the appointment shall be made on a certain day, or as soon thereafter as practicable, the appointment may be made notwithstanding that the term of such appointee would commence after the expiration of the term of the appointing officer.” In the present case, for the reasons hereinbefore stated, we are of opinion that the facts pleaded in defendant’s answer sufficiently show that the appointment of relator to be a member of the Railroad Commission of Ohio was without right or authority of law, and the demurrer to said answer will be overruled, and the petition of relator dismissed.

Demurrer to answer overruled and petition dismissed.

Summers, Spear, Davis, Shauck and Price, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    The State, ex rel., Ballard, Solicitor, v. Harrison et al., Trustees.

      Action to recover compensation — Land wrongfully taken by municipality — Not a case for condemnation, when — Section ioi, Municipal Code — Trustees of sinking fund — Bond to pay final judgment — Section no, Municipal Code.

    Where, in an action for compensation for land wrongfully taken by a municipal corporation without knowledge of the owners, and devoted to a public use by constructing a sewer thereon, it appears that the owners, upon learning that the land has been so taken, recognized the wrongful possession as an accomplished fact, and ratified it by tendering a good and sufficient deed of the premises conveying title to the corporation, and by offering to allow judgment that, upon the value of the premises being fixed by the court, and judgment rendered for the same, the owners should be ordered to convey to the corporation, the case is one to recover- the value of the land, and is not a case for the condemnation of property within the meaning ,of the latter clause of Section 101, Municipal Code (Section 1536-293, Revised Statutes) ; and when such judgment is final, under the provisions of Section 110 of said code (Section 1536-302, Revised Statutes), it is the duty of the trustees of the sinking fund of the municipal corporation, if they have sufficient funds, to pay such judgment, and on refusal to do so mandamus will lie to compel payment.
    (No. 11589
    Decided November 9, 1909.)
    Error to the Circuit Court of Hamilton county.
    The facts appear in the opinion.-

      'Mr. Edward M. Ballard and Mr. Fyffe Chambers, for plaintiff in error.

      Mr. Thornton M. Hinkle and Mr. Alfred G. Allen, for defendants in error.
   Price, J.

The plaintiff in error, on the 8th day of June, 1908, filed in the circuit court of Hamilton county a petition in mandamus against the defendants in error, alleging as authority for bringing the action, Section 1777, Revised Statutes of Ohio. He charged the defendants with failing to perform a duty expressly enjoined upon them by law, and recites the facts upon which the charge is based to be in substance as follows: The city of Cincinnati, through its officials, assuming that certain lands within said city had been dedicated by the owners thereof as a public street, decided that a public- sewer was necessary and should be constructed in said lands and other lands connected therewith, and in pursuance of such determination, directed the construction of the sewer, which was completed under the direction of the proper city authorities, on or about November 11, 1903. But said lands were then the private property of David S. Oliver and John C. Oliver, trustees, and had never been dedicated as a street, nor had they become a public street or highway by any lawful steps, taken for that purpose. The sewer was located and constructed on their said private lands without notice to or knowledge of the owners.

On the 10th day of March, 1908, the said David Oliver and John C. Oliver, as trustees, brought suit in the court of common pleas against the city of Cincinnati to recover the sum of $2,000 as compensation for the trespass committed' upon their-said property. A copy of their petition was made a part of the petition in mandamus, and in the petition for compensation it was alleged that said “the city of Cincinnati, in constructing a public sewer in said city, has taken possession of all of said land (before described in the petition) and constructed a sewer therein, without ever having appropriated the same by law, or having made any compensation therefor in money or otherwise, and is now in possession of all of said land and wholly refuses to make any compensation therefor to plaintiffs herein. On the discovery by the plaintiffs of the unauthorized and unlawful appropriation by defendant of the above described premises in the manner and for the purposes aforesaid (the making of a public sewer), plaintiffs offered to convey the same to defendant by deed in fee simple upon the payment by defendant of the value of the same, which defendant refused to pay. The plaintiffs now offer to convey said premises in fee simple to defendant upon payment by defendant of the value of the same, and they agree that upon the value of said premises being fixed in this case and the payment of the same, the decree of this court (court of common pleas) may be entered ordering a conveyance in fee simple of said premises to defendant, and plaintiffs here tender said conveyance and surrender of title to said premises upon payment as aforesaid. The above described tract of ground is justly worth the sum of $2,000.”

The petition prayed that defendant be decreed to make compensation to them in money for the value of the land so taken and that they recover judgment against the defendant in the sum of $2,000 with interest and costs, and for such other relief as they are entitled to. The defendant in that case — the city of Cincinnati — answered and admitted that the Olivers were the owners of the premises described in the petition, and that it constructed a public sewer thereon “without having appropriated the same by law or having made any compensation therefor in money or otherwise, and is now in possession of all of said land. * * * That if plaintiffs will convey said premises in fee simple to this defendant, upon the value of said premises being fixed in this case, compensation for the same will be made upon the entry of the decree of this court, ordering a conveyance in fee simple of said premises to this defendant. This defendant further states that said property is reasonably worth $31.50 per foot and no more, and agrees that a judgment should be entered against it for the sum of $829.08, upon the presentation to this defendant of a deed for said property signed by the plaintiffs .herein.”

The said answer concludes with the prayer that “the court find that the value of the land taken by defendant was $829.08 and for all other relief as is just and equitable.”

Such was the character of the pleadings in the suit for compensation in the court of common pleas, and that court rendered judgment for said sum of $829.08, on the 19th day of March, 1908, to be paid when a proper and valid deed should be executed and delivered by the Olivers to said city. That court also found that the city had taken possession of said premises and constructed the sewer as alleged in the petition without making compensation and without having appropriated the premises according to law. The deed to the city has been duly executed as ordered by the. court.

The petition for the writ of mandamus proceeds to allege, that on March 26, 1908, the city solicitor of said city transmitted to the sinking fund trustees, the defendants in error, a certified copy of the foregoing judgment, with a letter of explanation of the suit in which. it had been rendered, and requested that said trustees issue a check for the amount of the judgment payable to said Olivers. The solicitor also stated that the case' in which the judgment was rendered was not a case in which the condemnation of property is involved, and recommended .the payment of the judgment as the same is a final judgment.

It is further alleged that said sinking fund trustees have sufficient funds to pay the judgment but refuse to do so, and the relator prays a writ of mandamus commanding them to make payment.

The sinking fund trustees, in answer to the prayer for the writ, say that while it is true they have funds sufficient to pay said judgment, the funds are not applicable to the payment of such judgment; that they are not authorized by law to levy taxes to pay and to pay judgments against the city in cases for the condemnation of property, and claiming that the judgment rendered against the city was rendered in a case for condemnation of property, they declined to pay it.

The circuit court held with the sinking fund trustees and dismissed the petition for mandamus. We are asked to reverse its judgment.

The foregoing statement is not unnecessarily full and complete, when the character of the action in the court of common pleas is the bone of contention. The relator, and now plaintiff in error, asserts that the action was one for trespass and damages — a simple action at law, while the' sinking fund trustees regard it as a case for the condemnation of property, and if that be true, they are forbidden to pay it out of the funds in their custody, by the provisions of Section 101, Municipal Code, especially the last clause of said section. The whole section reads as follows: “All municipal -corporations having outstanding bonds or funded debts shall, through their councils, and in addition to all other taxes authorized by law, levy and collect annually a tax upon all the real and personal property in the corporation sufficient to pay the interest and provide a sinking fund for the extinguishment of all bonds and funded debts and for the payment of all judgments final, except in condemnation of property cases, and the taxes so raised shall be used for no other purpose whatever.” The exception in the last clause is again mentioned in Section 108 of the same code, where it is provided that: “On or before the first Monday in May of each year the trustees of the sinking fund shall certify to council the rate of tax necessary to provide a sinking fund for the future payment of bonds issued by the corporation, and for the payment of final judgments, except in condemnation of property cases.” And Section 110 of the same code provides that “the trustees of the sinking fund shall have charge of and provide for the payment of all bonds issued by the corporation, the interest maturing thereon, and the payment of all judgments final against the city or village, except in condemnation of property cases.”

These trustees entrench themselves behind these restrictions, and say that the case which resulted in the judgment for $829.08 was one for the condemnation of property, and therefore it cannot be paid by them from the sinking fund. To complete the shield for their refusal to pay, they cite Section 5 of Article XII of the constitution of Ohio, and Section 2861, Revised ' Statutes, which makes it unlawful “to usb any specific fund for any other purpose than that for which the same was levied, until the purpose for which said tax was levied shall have been satisfied.”

It seems plain that if the judgment whose payment is demanded is final and is not one rendered in a condemnation of property case, the trustees have a duty to perform which is enjoined by the express language of Section 110, supra. We are unable to agree with the learned circuit court in their construction of the suit in which said judgment was rendered. The city did not institute proceedings to condemn the land for sewer purposes. Its officers and agents acted on the assumption that the location selected for the sewer was in a public street — a street by virtue of a dedication by the owners of the land. These owners were not apprised that the city had taken possession until more than four years after the fact, and the answer of the city to the petition for damages or compensation distinctly admits that it took possession without having appropriated the lands and without having made compensation. This was the admission of a trespass — a wrongful possession, carrying with it the fact impliedly admitted, that the possession was permanent, for sewer purposes.

The action of the Olivers which resulted in the unpaid judgment was not a proceeding to compel appropriation under Section 6448, Revised Statutes, or any other section within our knowledge. If they could have availed themselves of its provisions, which we need not affirm or deny, it is evident that they. did not. There is nothing in their petition in that case to indicate that they were using the remedy prescribed by that statute. Nor is there anything in the circumstances of the city’s possession that could compel the Olivers to resort to a proceeding to compel appropriation.

If the city had instituted proceedings to appropriate the lands, certain well defined statutory steps would have been taken and when the .jury had assessed the compensation and damages, if any, the city had six months’ time to determine whether it would decline to pay the assessment and refuse to enter into possession of the condemned property. Not so in the case brought by the Olivers. They sued for the trespass and wrongful possession. The trespass and wrongful possession were admitted in the answer of the city and it suggested the value of the land to be not more than $829.08, and proposed to pay that amount if the owners would convey the premises which it had seized, to the city. The value of the lands was so found by the court and the judgment rendered. It is a final judgment. The city has no choice as to declining to pay it and refusing to take possession. It is already in possession and had been in possession long before the action for compensation was commenced. There is but one important respect in which the Oliver case resembles a condemnation case, and that is, that each looks to compensation to the owner for lands taken. But one reaches the end by statutory methods and machinery to appropriate or condemn against the will of the land owner. Such is a condemnation of property case, and naturally i.s the kind of case contemplated by the legislature in Sections 101, 108 and 110, supra, for they appear as part of the same code that prescribes the proceedings to secure the appropriation of property, by a municipal corporation and were more likely to have been before the minds of the law makers than a common law action to recover for wrongful entry and possession. It is quite probable that cases for condemnation or appropriation, according to the terms and formula of the statute, and in which final judgment is rendered, were in view, when Section 101 and the kindred sections were adopted. At least, we believe that their restrictions do not apply to a judgment at common law for trespass on real estate and its -wrongful possession.

We are but following the principles laid down by this court in Longworth v. Cincinnati, 48 Ohio St., 637. In fact we are governed by that case, if it was well decided, and of that we entertain no doubt. The first paragraph of the syllabus is:

“Where, in an action for compensation for land unlawfully taken by a municipal corporation without knowledge of the owners, and devoted to public uses by constructing thereon a street, it appears that the owners, upon learning that the land has been so taken, acquiesced in the appropriation as an accomplished fact, and ratified it by tendering a sufficient deed of the premises, conveying title to the corporation, and by offering to allow judgment that, upon the value of the premises being fixed and payment of the same, plaintiffs should be ordered to convey to the corporation, a case is made entitling the plaintiffs to recover the value of the land. Railroad v. Robbins, 35 Ohio St., 531, distinguished.”

We are reminded that mandamus is one of the extraordinary remedies, and in the language of Section 6744, the writ must not be issued where there is a plain and adequate remedy in the ordinary course.

We have observed that if the judgment rendered is final, and is not within the exception made in Section 101, supra, it is the statutory duty of the sinking fund trustees to pay it. This is made plain by Section 110 of the code above referred to. No other recourse than mandamus has been suggested, unless it be ej ectment, and that would be a barren remedy in a case like this. No writ of ejectment could remove the sewer, or eject the city from its possession and control. Its wrongful possession has culminated in a title in fee by conveyance to the city, and the judgment for compensation was substituted. The suit of the Olivers was for compensation and it was not an action or proceeding in condemnation. The statutes defining the authority and duties of sinking fund trustees, some of which we have cited, provide for the payment of such judgments, and the Olivers may not be turned away by the observation that a judgment against the city can be enforced in some other way. The trustees say in their answer that they have sufficient funds to pay the judgment, and we think they should do so.

The judgment of the circuit court is reversed, and this court allows the writ of mandamus as prayed for.

Judgment reversed.

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


author: Shauck, J.

text:
    Thorniley, Auditor, et al. v. State, ex rel. Dickey, Prosecuting Attorney.

      Repeals by implication not favored — Earlier legislation gives way to later, when — Section 4903, Revised Statutes — Compensation for county commissioners — Repugnant to Section 26 of Article II of constitution — Effect of act of April 21, 1904 — Constitutional law. "
    1. Although repeals by implication are not favored, earlier legislation must give way when it is necessary to carry out the later expression of the legislative will; and that part of Section 4903, Revised Statutes, which provides for compensation to county commissioners for services rendered as directors of highways must be regarded as abrogated by the later act of April 21, 1904 (97 O. L. 254), giving to the county commissioners a salary and limiting their compensation to the salary designated.
    2. Section 4903, being an essential part of a statute providing for the management and control of highways by essentially different methods, in different counties of the state, is void because repugnant to Section 26 of Article II of the constitution that all laws of a general nature shall have a uniform operation throughout the state. (Hixon v. Burson, 54 Ohio St., 470, and
      The State, ex rel., v. Davis, 55 Ohio St., 15, approved and followed.)
    (No. 11127
    Decided November 9, 1909.)
    Error to the Circuit Court of Gallia county.
    The defendant in error, as prosecuting attorney of Gallia county, brought suit in the court of common pleas to enjoin the auditor from issuing, and the treasurer from paying, warrants in favor of the three commissioners of the county in payment of bills which they had allowed themselves for services as turnpike directors. The substantial allegations of the petition showed the election and qualification of the officers named to their several positions, the allowance by the commissioners of certain designated bills in their own favor for services as turnpike directors, and that, without warrant of law, such bills were about to be discharged by warrants drawn by the auditor and paid by the treasurer.
    To this petition the auditor and treasurer demurred, in the court of common pleas. Their demurrer was sustained and the plaintiff not desiring to plead further, the petition was dismissed.
    The prosecuting attorney prosecuted a petition in error to the circuit court where the judgment of the court of common pleas was reversed, and the defendants not desiring to plead further, and the circuit court proceeding to render the judgment which the court of common pleas should have rendered, the issuing and paying of' the warrants were perpetually enjoined.

      Mr. H. 'C. Johnston and Mr. E. D. Davis, for plaintiffs in error.
    The right of public officers to compensation from the public treasury for services officially rendered to the public, has repeatedly received the attention of the supreme and inferior courts of the state, and the resulting decision showed that no rule of law is more firmly established than that such officers are not so entitled unless payment is authorized by statute; and that even where public duties are expressly prescribed by statute to public officers if no statutory provision exists or is made for compensating them they must be rendered gratuitously, the law assuming that they are compensated b}r other emoluments of the office. Clark v. Commissioners, 58 Ohio St., 107; Debolt v. Trustees, 7 Ohio St., 237; Strawn v. Commissioners, 47 Ohio St., 404; Jones v. Commissioners, 57 Ohio St., 189; Eshelby v. Board of Education, 66 Ohio St., 71; State v. Kelly, 32 Ohio St., 421; Brundige v. Ashley, 62 Ohio St., 528.
    It may be argued that the additional allowance to county commissioners for ditch work together with the absence from the act of a provision compensating such officers for turnpike work evidences an intention not to provide compensation for the work required of turnpike directors respecting the improved roads for their counties. This inference, however, is hardly reasonable when it is remembered that, prior to the passage of the salary act, county commissioners discharged the duties that devolved upon them in relation to ditches strictly as county commissioners, and were, under the general laws of the state, compensated for such work; in the same manner that they were compensated for the time spent in the discharge of their ordinary duties; and that the repeal of the statute allowing the per diem compensation, and substituting an annual salary, would unquestionably eliminate any allowance formerly received by them for ditch work, and knowing this to be an unfair discrimination against them and in favor of counties that had ditch work to perform, introduced into the salary act a provision expressly compensating them for that class of work. It is not reasonable to assume that the general assembly was not as solicitous to deal fairly with the commissioners of these counties who were required under the general laws to organize themselves into a board of turnpike directors and to look after the turnpikes of the counties as with those who had ditch work to do.
    It is clear that the members of the legislature like individual members of the state are charged with ’knowledge of its statutes. Lessee of Allen v. Parish, 3 Ohio, 191; Columbus v. Board of Education, 13 Low. D., 458; Bowen v. Lease, 5 Hill (N. Y.), 225; 23 Am. & Eng. Ency. Law (1 ed.), 491; Endlich on Interpretation of Statutes, Section 182.
    In order to arrive at the trtie legislative intent in construing a doubtful statute, that construction should be' adopted which is most favorable to reason and justice; the legislature will not be presumed to have intended that which is against reason.

      And in conformity with the foregoing principle whenever a statute is capable of two constructions, one of which would work manifest injustice, and the other would work no injustice, it is the duty of the court to adopt the latter, as it can scarcely be presumed that an injustice was within the legislative intent. 23 Am. & Eng. Ency. Law (1 ed.), 358; State v. Wright, 17 Ohio, 32; Spicer v. Giselman, 15 Ohio, 341; Insurance Co. v. Woolen Co., 3 Ohio St., 348.
    Repeals by implication are not favored and will not be decreed, unless the repugnancy between the two is not only irreconcilable, but also clear and convincing, following necessarily from the language used, unless the latter act fully embraces the subject-matter of the earlier act is beyond the peradventure removed. Hence, every effort must be used to make all acts stand, and if, by any reasonable construction, they can be reconciled, the latter act will not operate as a repeal to the earlier. 23 Am. & Eng. Ency. Law (1 ed.), 489; Ludlow v. Johnson, 3 Ohio, 553; Dodge v. Gridley, 10 Ohio, 174; State, ex rel., v. Dudley, 1 Ohio St., 437; Cass v. Dillon, 2 Ohio St., 607; State, ex rel., v. Roosa et al., 11 Ohio St., 16.
    One statute is never repealed by the spirit of another. Cass v. Dillon, 2 Ohio St., 612; State, ex rel., v. Cincinnati, 19 Ohio, 197; 23 Am. & Eng. Ency. Law (1 ed.), 492.

      Mr. A. O. Dickey, prosecuting attorney; Mr. Wade H. Ellis, attorney general; Mr. W. H. Miller and Mr. Clarence D. Laylin, for defendant in error.
    Included in Chapter Í0, Title 7, Revised Statutes, are at least two separate and distinct methods provided for the repair of such roads, the first method being exclusively applicable to certain counties of the state therein designated by name and the second method, beginning with Section 4896, being exclusively applicable to every other county not specifically designated in the other method as provided in the preceding sections of this chapter.
    For convenience of the court we cite, in as brief a manner as possible, the various acts passed by the legislature of Ohio from time to. time upon the subject of township trustees and turnpike directors, in so far as they have to do with the management of roads and particularly those acts, the substance of which, are now contained in Sections 4889 and 4896, Revised Statutes. 66 O. L., 131; 77 O. L., 65; 78 O. L., 62; 79 O. L., 39; 80 O. L., 89; 81 O. L., 80, 202; 82 O. L., 49; 83 O. L., 5, 63; 86 O. L., 110; 87 O. L., 324; 91 O. L., 22, 355; 94 O. L., 59. The legislature of Ohio added to or dropped 'from the enumeration of' counties in Section 4889 until said section assumed the form it now is.
    The legislature by the revision of 1880 having repealed the act of May 7, 1869 (66 O. L., 131), and having arbitrarily enumerated certain counties from time to time in wdiich township trustees should maintain free roads, inserted in the revision what is known as Section 4896, Revised Statutes, by which it was attempted to provide for all other counties, which they had not already arbitrarily enumerated, an entirely different mode of management and control of all free roads in such other counties and attempted to vest such management exclusively in the county commissioners as a board of turnpike directors.
    Section 4896, Revised Statutes, is based upon a classification of counties beginning April 20, 1874 (71 O. L., 120).
    The other acts of classification will be found as follows: March 17, 1875 (72 O. L., 57); April 3, 1876 (73 O. L., 152); Mav 2, 1877 (74 O. L., 153); May 4, 1878 (75 O. L., 32).
    All the classifications were based upon the “last federal census” and as far as any enactment of the legislature is concerned prior to the revision of 1880 there may have been counties which would not be included either within Section 4889 or Section 4896. So that the laws in regard to the management and control of free roads since the repeal of the act of May 7, 1869 (66 O. L., 131), have been in one of two forms, either the act legislated especially for oné or more named counties which resulted in Section 4889 or else the act proposed a classification absurd and arbitrary which legislation resulted in Section 4896.
    The original act which provides for the compensation of county commissioners as turnpike directors and in which 'the same language is used as found in Section 4903, is the act of April 20, 1874 (71 O. L., 120), already referred to as the act in which the first attempted classification was made of counties by population for the purpose of the management and control of free roads.
    Having referred to the past legislation on the subject of management of free roads in the various counties of the state, we maintain that beyond all controversy, the original acts as well as the sections of the Revised Statutes are in plain contravention of the provisions of Section 26, Article IT, of the constitution of this state.
    From the foregoing statement it will be readily observed that the provisions of the statute under which said board of commissioners claim authority and are attempting to proceed can under no possible circumstances be operative in but a fixed and certain portion of the state.
    The subject of roads, or highways and their repair and even specific classes of highways and their repair have been so repeatedly held by this court to be general in their nature as not to require further comment by the defendant in error, but ask to refer the court to the following cases: Hixon v. Burton et al., 54 Ohio St., 470; State, ex rel., v. Cowles et al., 64 Ohio St., 162; Fields v. Commissioners, 36 Ohio St., 481; Platt v. Craig et al., 66 Ohio St., 75; Mott et al. v. Hubbard et al., 59 Ohio St., 211; State, ex rel., v. Davis et al., 55 Ohio St., 15.
    The subject-matter of roads and their repair is certainly of such universal importance to ever)-' section of the entire state that it may be provided for by general, legislation. This is demonstrated by the act of May 7, 1869 (66 O. L., 134), which was a general law upon this subject and which applied to each county in the state and conformed in every respect to the constitutional limitation in Section 26 of Article II. And it cannot be seriously contended now that a general law governing the subject of road repair and applicable to every county of the state would be in anywise impracticable. In support of this position, we refer the court to the case of State, ex rel., v. Ellet et al., 47 Ohio St., 90, and State, ex rel., v. Spellmire et al., 67 Ohio St., 77, and authorities therein cited.
    It certainty cannot be questioned that if there is authority for the organization of the board of turnpike directors, the members thereof are necessarily county, officers, but by the same law by which they are authorized to affect such -anization, this office is confined to a certain fixed portion of the state, viz.: those counties which have not been specifically designated by namp' in the previous sections of this chapter necessitating a local operation of said Section 4896.
    The same is true as to Section 4903 which provides for the compensation of the aforesaid turnpike directors. The fact that there can in no event under the present state of the law be a turnpike director except in certain counties necessarily confines the operation of this section to those counties, hence it is purely local in its operation.
    The subject of county officers and their compensation have been held to be of a general nature and hence governed and limited by Section 26 of Article II of the constitution.. State, ex. rel., v. Yates, 66 Ohio St., 546; Pearson et al. v. Stephens, 13 C. C., 49; Kelley v. State, 6 Ohio St., 272.

      From the examination of the entire act of April 21, 1904 (97 O. L., 254), it seems very clear that the entire subject-matter of compensation of county commissioners was intended to be covered by its enactment.
    Section 2 specifically declares that the compensation provided in Section 1 shall.be in full payment of all services rendered as such commissioners, etc.
   Shauck, J.

The claim of the commissioners for compensation calls upon them to show legal authority for its payment. In Debolt v. The Trustees of Cincinnati Township, 7 Ohio St., 237, it was held that “An officer whose fees are regulated by statute, can charge fees for those services only to which compensation is by law affixed.” This view of the subject has been constantly adhered to in numerous cases, including Eshelby v. The Cincinnati Board of Education, 66 Ohio St., 71. From all the cases relating to the subject it appears that all duties imposed upon a public officer without provision for compensation are oresumed to be performed iii consideration of the general emoluments ot his office. The considerate opinion of the common pleas judge in the present case is presented to us as the argument for plaintiffs in error, and it shows that he did not overlook this doctrine, or the cases in which it is maintained.

The required authority for the payment of the compensation sought by the commissioners is said to be found in Section 4903 Revised Statutes: “The compensation for. services as such director shall be the same in all respects as county comthissioners.” To this authority two objections are urged.

First. That the section relied upon has been repealed by implication by the act of April 21, 1904 (97 Q. L., 254), which placed county commissioners upon a salary, instead of allowing them compensation by fees as formerly. That act in its first section (Section 897, Revised Statutes) affixes to the office of county commissioner a prescribed salary in every county of the state, and the second section of the act provides “The compensation provided in the preceding section shall be in full payment of all services rendered as such commissioners.” It is true that the later act does not expressly repeal the former provision now relied upon as authority for the payment of the fees claimed by the commissioners. It is also true that repeals by implication are not favored, the meaning of which is,- and it must be, only that a court will not, in the absence of an express repeal, consider former legislation as repealed by implication when the former and later act may be harmonized by reasonable construction so as to continue both in operation. It is consistent with the elementary rule, always recognized’ as indispensable to the right administration of the written law, that the present will of the legislature is found in its latest expression. The act of April 21, 1904, does expressly repeal the act under which fees had been previously allowed to the county commissioners as compensation for their services, and thus there was removed from the legislation of the state the provision referred to in Section 4903, that the compensation for services of directors should be the same in all respects as county-commissioners. From this express repeal it resulted that if we should attempt to treat Section 4903 as still in force, we would find it utterly unintelligible and incapable of practicable application because there is no longer any designation of fees for the county commissioners. In giving effect to the second section of the act of April 21, 1904, that the compensation provided in- the act should be in full payment for the services rendered as such commissioners, we cannot resist the conviction that the terms employed indicate the legislative intent that compensation of commissioners shall not, by any statute, exceed that designated in the act. Here is expressed affirmatively by the language employed in the act the legislative will with respect to the subject so comprehensive that it cannot be doubted that the express repeal of Section 4903 was omitted by mere inadvertence. The last named section being incompatible with the later legislation must yield to it because of the impracticability of harmonizing the earlier and the later acts so that they may be enforced tog'ether.

It is further suggested that Section 4903 is void because it is an essential part of a statute upon a general subject, with only a limited operation, and therefore, repugnant to Section 26 of Article II of the constitution, that “all laws of a general nature shall have a uniform operation throughout the state.” This section is a part of Chapter 10, Title 7, Revised Statutes, which first appeared in approximately its present form in the revision of 1880. It embraces Sections 4876 to 4907; inclusive, all providing as indicated by the heading of the chapter, for the repair of improved roads. That the provisions of the chapter do not have a uniform operation throughout the state is apparent from numerous of its provisions. Section 4889, as the act appears in the latest revision, designates thirty-two of the eighty-eight counties of the state within which the control and management of such roads is to be conducted in a manner entirely different from that which it places in operation in the remaining counties of the state. The counties thus grouped for the operation of this special legislation comprise the most, as well as the least, populous in the state. The statute suggests no basis of classification which might be supposed to justify different policies in the control and management of the roads. Indeed, as the counties referred to are plainly designated by their names, and not otherwise, it is entirely manifest that the legislature did not regard the subject of roads as being within this provision of the constitution.

Whether the subject is within the constitutional requirement that laws relating to it shall have a uniform operation throughout the state, was perhaps a matter of doubt at the time of the revision of 1880. But since that time the. question has received full consideration from this court in Hixon v. Burson et al., 54 Ohio St., 470, and The State, ex rel., v. Davis et al., 55 Ohio St., 15. In both of these cases the subject was held to be within Section 26, Article II of the constitution. The conclusion in the latter case being thus stated in the first proposition of the syllabus: “Highway bridges, as well as the highway of which they are a part, are general subjects of legislation within the meaning of the constitution.” Certainly further consideration of the subject is not necessary. It could hardly be profitable.

What may be the road laws of the state, in view of this conclusion, we need not attempt to determine, for in no condition could we be relieved of the conclusive effect of two propositions whose soundness all recognize: first, the legislature may not legislate contrary to the provisions of the constitution; second, the courts may not legislate.

Judgment affirmed.

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


author: Davis, J.

text:
    Ginn, Admr., v. Dolan.

      Suit on promissory note — Defense of want of consideration — > Btirden of proof on plaintiff — Evidence.
    Where in a suit upon a promissory note the defense is that the note was given or obtained without a valuable consideration, the plaintiff has the affirmative of the issue and the burden of proof rests upon him, at every stage of the case, to show a consideration for the note, by a preponderance of the whole of the evidence adduced on the trial. (Klunk v. The Hocking Valley Railway Co., 74 Ohio St., 125, approved and followed. Dalrymple, Admr., v. Wykcr, Admr., 60 Ohio St., 108, distinguished.)
    (No. 11192
    Decided November 9, 1909.)
    Error to the Circuit Court of Cuyahoga county.
    The facts are stated in the opinion.

      Messrs. Blandin, Rice & Ginn, for plaintiff in ' error.
    Our contention is that while the introduction of the notes in evidence made a prima facie case for consideration, it did not shift the burden of proof upon all the evidence relating to that issue to the defendant and require him to establish by a preponderance of the evidence that the notes were without consideration.
    It has been a very common error for the courts of this and other states in their statements of the law to fail to discriminate closely between the burden of proof upon the whole case, and the state of proof at a particular time in the progress of the trial. This error very frequently takes the form of stating that upon certain proofs being introduced, the burden shifts from one side to the other, which is upon all hands conceded to be an inaccurate statement of the law; what does in fact happen is that upon the introduction of certain proofs which are sufficient to make a prima facie case, the burden of producing countervailing proof is cast upon the other party; but the burden upon the whole case and all the evidence still remains upon the party having the affirmative.
    This misuse of language has not been confined by the courts to the statement of the law with reference to the burden of proof upon the question of consideration for a promissory note; but similar statements have been made with reference to every other kind of case which involves a presumption sufficient to make a prima facie case; as, for instance, the presumption of negligence arising from the occurrence of an accident of a particular character or occurring in a particular way; the courts have said repeatedly as to such cases that upon proof being made by the plaintiff of the occurrence of an accident of that character or of its occurrence in that particular way, the presumption made a prima facie case in favor of the plaintiff, and that the burden of proof at such point in the progress of the case shifted to the defendant, and he was required to prove by a preponderance of the evidence that he exercised due care and was not guilty of negligence. Railroad Co. v. Mowery, 36 Ohio St., .418.
    But the general rule would seem to be well established in negligence' cases by an almost unbroken line of authority, that to rebut and destroy a mere prima facie case, the party upon whom rests the burden of repelling its effect need only produce such amount or degree of proof as will countervail the presumption arising therefrom. In other words, it is sufficient if the evidence offered for that purpose counterbalance the evidence by which the prima facie case is made out or established ; it need not overbalance or outweigh it. Klunk v. Railway Co., 74 Ohio St., 125; Gibbs v. Bank, 123 Ia., 742; Scott v. Wood, 81 Cal., 398; Powers v. Russell, 13 Pick., 69; Heinemann v. Heard, 62 N. Y., 448.
    This latest decision by our supreme court in Klunk v. Railway Co., supra, upon the subject conclusivelv settles the proposition in Ohio, that notwithstanding the plaintiff may, by force of a presumption or by evidence adduced, have established a prima facie case of negligence against the defendant, still that the burden rests upon the plaintiff where there is evidence tending to rebut this presumption to establish the fact of negligence by' a preponderance of the evidence, and we are unable to see wherein such a case differs in any respect from the case of a presumption of consideration arising from the introduction in evidence of a promissory note duly executed.
    We do not understand that any court has ever given the presumption attaching to a promissory note, that it was upon a sufficient consideration, when introduced in evidence, any other effect than to make a mere prima facie case. All that the defendant here was required to do was to rebut and destroy a mere prima facie case, and only produce such amount or degree of proof as would countervail the presumption arising therefrom. In other words, it was sufficient if the evidence,' offered for that purpose, counterbalanced the evidence by which the prima fcicie case was made out and established; it did not need to overbalance or outweigh it. Daniels on Negotiable Instruments, Section 164; Bruyn v. Russell, 60 Hun, 280; F. L. & T. Co. v. Siefke, 144 N. Y., 354; Lamb v. Railroad Co., 46 N. Y., 271; Whitlatch v. Casualty Co., 149 N. Y., 45; In re Pinkerton’s Estate, 99 N. Y. Supp., 492; Coumey v. Macfarlane, 97 Pa., St., 361; Stevenson v. Gunning, 64 Vt., 610; Solomon v. Huey, 1 Tex. Unrep. Cases, 265; Bank v. Seymour, 64 Mich., 61; Paton v. Coit, 5 Mich., 510; Carrier v. Cameron, 31 Mich., 373; Conley v. Winsor, 41 Mich., 253; Search v. Miller, 9 Neb., 26; Brown v. Wright, 17 Ark., 9; Prescott v. Johnson, 8 Fla., 391; McCallum v. Driggs, 35 Fla., 277; Small v. Clewley, 62 Me., 155; State v. Flye, 26 Me., 312; Tarbox v. Steamboat Co., 50 Me., 339; Bourne v. Ward, 51 Me., 191; Best v. Bank, 85 Pac. Rep., 1124; Bogie v. Nolan, 96 Mo., 85; Delano v. Bartlett, 6 Cush., 364; Powers v. Russell, 13 Pick., 69; Jennison v. Stafford, 1 Cush., 168; Burnham v. Allen, 1 Gray, 496.

      Messrs. Kerruish & Kerruish, for defendant in error.
    We submit that in a suit on a promissory note where the defendant sets up in his answer want of consideration, the burden is on him to establish this defense by a preponderance of the evidence.
    This is, and has always been, the law in Ohio. Whatever the rule may be elsewhere, no matter how great the weight of authority in other jurisdictions, the law in Ohio on this question has long been settled and established and has been affirmed as late as 1899 in the case of Dalrymple v. Wyker, 60 Ohio St., 108.
    From the earliest history of Ohio down to the present day, it has not been necessary for the petition in a suit on a promissory note to contain an allegation of consideration. Sterling v. Kious, 7 Ohio (part 2), 238; Section 3171w, Revised Statutes.
    If the allegation of consideration is not a necessary allegation in the petition, then the plaintiff need not prove it to make out his case. Phillips on Pleading, Section 477; Dugan v. Campbell, 1 Ohio, 115; Richmond v. Patterson, 3 Ohio, 369; Mors v. McCloud, 2 Ohio, 5; Ring v. Foster, 6 Ohio, 279; Murphy v. Hagerman, Wright, 294.

      We do not contend that the burden shifts from the plaintiff to the defendant, but we submit that the burden was on the defendant from the beginning to the end of the trial to show want of consideration. Raubitschek v. Blank, 80 N. Y., 478; Foote v. Valentine, 48 Hun, 475; Sprague v. Sprague, 30 N. Y. Supp., 162; Carnwright v. Gray, 127 N. Y., 92; 2 Greenleaf on Evidence, Section 172; Flint v. Phipps, 16 Ore., 437; Story on Promissory Notes, Section 181.
   Davis, J.

The defendant in error sued to recover on four promissory notes. One of the defenses thereto was want of consideration. On the trial and before argument to the jury, the defendant below, plaintiff in error here, asked the court to charge the jury that the burden of proof was upon the plaintiff to satisfy the jury by a preponderance of the evidence, that the notes were given for a valuable consideration; that such burden did not shift to or upon the defendant at any stage of the case; and that, although the presumption is- that the notes were given upon a sufficient consideration, yet when other evidence on that subject is offered by the defendant, the burden is on the plaintiff to satisfy the jury upon all of the evidence that there was a consideration for the notes. The court refused to so instruct the jury and, after the argument, instructed the jury as follows: “The law presumes the existence of a consideration for a promissory note, and this presumption continues until it is shown that there was none. * * * The'defendant in this action, in addition to the denial of the execution and delivery of the notes in question, charges that said notes are wholly without consideration. Upon the issues of the absence or want of consideration, the burden of showing this is on the defendant. He must show by a preponderance of the evidence that the notes in question were without consideration.” The verdict and judgment were for the plaintiff, and the judgment in the court of common pleas was affirmed by the circuit court. It appears to us that these facts disclose an error of sufficient gravity to require the reversal of the judgment below.

The weight of the evidence, or as it is otherwise expressed, the preponderance of the evidence, may vary from side to side as a'trial progresses; but the burden, which rests upon the plaintiff to establish the material averments of his cause of action by the preponderance of all the evidence, never shifts. The party who maintains the affirmative of an issue carries the burden of proof through the whole case, although he may be aided by such a rebuttable presumption of law, or such facts, as would prima facie support his contention. His opponent need do no more than counterbalance the presumption, or prima facie case. It is not necessary that the petition should in terms contain the averment that the note was based on a valuable consideration, because that is presumed; but when consideration is denied in the answer there is an issue made upon that point, on which the plaintiff has the affirmative, and, the presumption being prima facie■ only, and not conclusive, the burden of proof necessarily rests upon the plaintiff to show a consideration by a preponderance of the whole evidence given on the trial of the issue. The reason of the rule, and some of the authorities which support it, are fully shown in Klunk v. Railway, 74 Ohio St., 125. It would be easy to amplify the citation of authorities (for example, see cases cited 4 Am. & Eng. Ency. Law (2 ed.), 200, n. 2; Hurley v. Ry. Co., 180 Mass., 370; Bank v. Adams, 70 Vt., 132; Kenny v. Walker, 29 Ore., 41; Owens v. Snell, 29 Ore., 483; 16 Cyc., 932-934), but it would not clarify the proposition to any extent. Indeed, it is not believed that the courts below would have fallen into this error, but for a misconstruction of Dalrymple, Admr., v. Wyker, Admr., 60 Ohio St., 108.

There were only two questions considered in that case. The first one was, whether the defense of want of consideration, as it was there pleaded, was good against a demurrer. This court held that it was not. But the case having been heard on evidence, the court proceeded to the second question, namely, whether the evidence adduced by the defendant was sufficient to overcome the presumption of a valuable consideration; and this was the conclusion of the court: “The evidence

then does not overcome the presumption of a consideration arising from the giving of the note. In other words, to say the least, the evidence leaves the case in as much uncertainty as to whether there was, as to whether there was not, a consideration sufficient in law to support the note, and, consequently, the note with the presumption in its favor must prevail.” It must be obvious, therefore, that the question involved in the case, at bar was not raised by the record in Dalrymple, Admr., v. Wyker, Admr., and was not considered by the court; and the syllabus of that case cannot be construed as being any broader than the facts of the case would warrant.

It is proper to say further, replying to a suggestion by counsel in argument, that a plea of failure of consideration, or of payment, presents a case very different from this. These defenses, as it were, confess and avoid. They are affirmative defenses, and upon such the burden is upon the defendant from the beginning to the end, just as it is upon the plaintiff here.

The judgment of the circuit court and that of the court of common pleas are

Reversed.

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


author: Spear, J.

text:
    The State v. Toney.

      False pretenses — Title to real estate may be subject of — •Under Section 7076, Revised Statutes — Indictment apprising party of charge — Not void for uncertainty, when.

    1. Section 7076, Revised Statutes, which makes it an offense to obtain by any false pretense, and with intent to defraud, any thing of value, applies to a charge for obtaining by false pretense, with intent to defraud, title to real estate situate in this state.
    2. An indictment which apprises the party charged of the charge against him so that he may know from the language of the instrument what he is expected to meet and will be required to answer, alleges sufficient matter to indicate the crime and the person charged and is not void for uncertainty.
    (No. 11762
    Decided November 9, 1909.)
    Error to the Circuit Court of Darke county.
    At the January term, 1908, of the common pleas of Darke, an indictment was returned by the grand jury against the defendant in error, Oliver H. Toney, of which a copy follows:
    “The State of Ohio, Darke county, ss:
    “In the court of common pleas, of Darke county, Ohio, of the term of January in the year of our Lord one thousand nine hundred and eight.
    “The jurors of the grand jury of the county of Darke and State of Ohio, then and there duly impaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said county, on their oaths, in the name and by the authority of the State of Ohio, do find and present: That O. H. Toney, late of said county, on or about the 22d day of November, in the year of our Lord one thousand nine hundred and six, at the county of Darke aforesaid, unlawfully did falsely pretend,, with intent to defraud, to one Emily J. Barcalow Henizer, that he, the said O. H. Toney, and William Smith were the owners of and had a right to convey free of all incumbrances, the following described real estate, to-wit: Being the east half of the northwest quarter of section seventeen (17), township twenty-five (25), range four (4) east, in Oscoda county, state of Michigan, containing eighty (80) acres of land, more or less; and that said real estate was free and unincumbered; and that a certain abstract of the title of said real estate purporting to have been made and certified to by one James A. Browning, abstracter and attorney of Oscoda county, Michigan, and purporting to show a clear title to the lands aforesaid in said William Smith was true and genuine, by which false pretenses the said O. H. Toney then and there unlawfully did procure from the said Emily J. Barcalow Henizer a deed of general warranty for the following described real estate, situate in the county of Darke, in the state of Ohio, and in the city of Greenville, and being lot No. 1165 in Anderson, Riffle & Hart’s Addition to said city of Greenville, Darke county, Ohio, and being of the value of one thousand dollars ($1,000) ; whereas in truth and in fact, the said Oliver PL Toney and William Smith were not the owners of and had not the right to convey free of all encumbrance the above described real estate; and whereas in truth and in fact the said real estate was not free and unincumbered; and whereas the abstract of title which was presented to the said Emily J. Barcalow Henizer purporting to show a clear title to the said lands aforesaid, was not true and genuine, but was false, forged and counterfeited; and the said O. H. Toney at the time he so falsely pretended as aforesaid, well knew the said false pretenses to be false.
    “Marion Murphy,

      “Foreman of Grand Jury.”

    To this indictment a demurrer was interposed by the defendant.' The same being overruled, a trial was had at the June term, 1908, which resulted in a verdict of guilty, the jury finding the value of the property obtained at the sum of seven hundred dollars. Motion for a new trial being overruled sentence was imposed of confinement in the penitentiary of eighteen months, and costs were adjudged against defendant. On error to the circuit court that judgment and sentence were reversed on the ground that the court of common pleas erred in overruling the demurrer, and defendant was ordered discharged. The state seeks a reversal of that judgment.

      Mr. John F. Maher, prosecuting attorney, and Messrs. Robeson & Yount, for plaintiff in error.
    Section 6794, Revised Statutes, defines the term “anything of value,” to include “things which savor of the realty, and are, at the time they are taken, a part of the freehold, whether they be of the substance or proceeds thereof, or affixed thereto,” and also “every other thing of any value whatever.”

      The word “effects” will embrace lands, tenements, etc. State v. Newell, 1 Mo., 248.
    The rule of strict interpretation for criminal statutes does not hinder the courts from searching for the legislative will. State v. Thatcher, 35 N. J. L., 445; Maxwell v. People, 158 Ill., 248.
    “Other valuable thing” includes everything of value (People v. Stone, 9 Wend., 182); a nonnegotiable promissory note (State v. Porter, 75 Mo., 171); the endorsement to a promissory (State v. Blauvelt, 38 N. J. L., 306; Robinson v. State, 53 N. J. L., 41); a promissory note is a “valuable thing” (State v. Vandenburg, 159 Mo., 230); a contract and an assignment may be treated as property (People v. Martin, 102 Cal., 558).
    The following authorities also sustain the decision of the trial court as to the sufficiency of the indictment: Woodruff v. State, 61 Ark., 157; State v. Tripp, 113 Ia., 698; State v. Patty, 97 Ia., 373; In re Lazarus, 1 City H. Rec., 89; People v. Turpin, 233 Ill., 452.
    When the provisions of sections 7076, 6795, 7215 and 7216 are all considered with a view of ascertaining the clear intent of the legislature, there should be no difficulty in sustaining the holding of the common pleas court in this case. Kennedy v. State, 34 Ohio St., 310; Tarbox v. State, 38 Ohio St., 581; Williams v. State, 77 Ohio St., 468.

      Mr. T. C. Miller and Mr. D. W. Bowman, for defendant in error.
    It is well settled, that we have no common law crimes in this state, and that we must look to the statute to ascertain the offense charged. Johnson v. State, 66 Ohio St., 59; Sutcliffe v. State, 18 Ohio, 469; Mitchell v. State, 42 Ohio St., 383; Smith v. State, 12 Ohio St., 466.
    A statute defining a crime can not be extended by construction to persons or things not within its descriptive terms, though they may appear to be within the reason and spirit of the statute. State v. Meyers, 56 Ohio St., 340; United States v. Wiltberger, 5 Wheat., 76.

    But where the legislature b}^ statute adopts or creates an offense which was a crime at common law, it is proper to resort to common law in order to ascertain the true meaning of the statute. Railroad Co. v. Keary, 3 Ohio St., 202.
    And notwithstanding the common law of England and the statutes of the British Parliament were made operative as law in this state by the territorial act of October 1, 1795, and were repealed by the act of January 2, 1806, it does not follow that the common law of England is not of force in this state. Drake v. Rogers, 13 Ohio St., 29.
    At common law personal property only was the subject of this offense and it was confined to very narrow limits. Rex v. Wheatley, 2 Burr., 1125; Act of 33, Henry VIII; Statute of 52, George III; Wheeler’s Criminal Cases, 179; 3 Chitty’s Criminal Law, 994-999; People v. Cummings, 114 Cal., 438; Cross v. Peters, 1 Me., 387.
    Most of the American statutes are modeled on these two English statutes.' This is true in this state, section 12 of the act of March 8, 1831 (29 O. L., 144, S. & C, 429), being almost an exact duplicate of the act of 30th George II.

      But it is contended that as the clause, “money, goods, merchandise or effects, whatsoever,” was omitted from section 7076, Revised Statutes, at the time of the revision, and the phrase, “anything of value,” substituted therefor, a radical legislative change in definition was thereby intended, and real property made the subject of false pretenses.
    But this by no means follows. The code commissioners had no authority to legislate, and their power to change was very limited and did not extend to matters of substance. Allen v. Russell, 39 Ohio St., 338; 72 O. L., 87.
    Where all the general statutes of a state, or all on a particular subject, are revised and consolidated, there is a strong presumption that the same construction which the statutes received, before revision and consolidation, should be applied to the enactment in its revised and consolidated form. Allen v. Russell, 39 Ohio St., 336; State v. Eno, 131 Ia, 621; State v. Black, 75 Wis., 493; State v. Gillespie, 80 N. Car., 397.
    The New Jersey statute uses the words “money, wares, merchandise, or other valuable thing,” and it was held that the legislature intended to denounce as a crime the obtaining by deceit of every valuable thing of a personal nature. State v. Thatcher, 35 N. J. L., 445.
    Under the English statute, as well as the act of March 8, 1831, the offense of obtaining property by false pretenses stood upon the same ground as larceny. The owner might also be induced by fraud, trick or device to part, not only with the possession, but with the title as well, and then the offense would not be larceny, but obtaining by false pretenses.
      People v. Tomlinson, 102 Cal., 23; People v. Shaughnessy, 110 Cal., 602; Miller & Smith v. Commonwealth, 78 Ky., 15; Aldrich v. People, 224 Ill., 626; People v. Laurence, 137 N. Y., 517; Commonwealth v. Lannan, 153 Mass., 287; State v. Vickery, 19 Tex., 326; State v. Ryan, 47 Oregon, 338; Kellogg v. State, 26 Ohio St., 15.
    In some states this distinction beween larceny at common law and obtaining money by false pretenses and embezzlement has been swept away and all made larceny. State v. Henn, 39 Minn., 465; Mitchell v. State, 92 Ten., 670; Maddox v. State, 41 Tex., 205.
    Real estate could not be the subject of larceny because incapable of being possessed and asported. People v. Williams, 35 Cal., 675; Bell v. State, 4 Baxter (Tenn.), 428.
    Being incapable of larcenous asportation, it was not regarded as requiring the same protection as personal property, and was not therefore the subject of either cheating or false pretenses. State v. Eno, 131 Ia., 620; State v. Burrows, 33 N. Car. (11 Ired.), 477; People v. Cummings, 114 Cal., 437; Commonwealth v. Woodrun, 4 Pa. L. J., 207; State v. Layman, 8 Blackf. (Ind.), 330; 2 Bishop on Criminal Law (4 ed.), section 455; 2 Wharton’s Criminal Law (8 ed.), section 1204.
    A reference to 60 O. L., 20; 60 O. L., 341; 66 O. L., 29; 69 O. L., 67'; 68 O. L., 87, referred to in section 6794, will disclose that all related to personal property. That the phrase as used in section 6794 included things savoring of realty, and not the realty itself. Ball v. White, 39 Ohio St., 650.

      The phrase “anything of value” is found in section 6856, Revised Statutes, defining the crime of larceny. The words “goods or chattels” are not mentioned therein. Yet, it is common knowledge that real estate is not the subject of theft.
    The same phrase “anything of value” is found in sections 6835 and 6842, yet no one will contend that real estate is the subject of burglary or embezzlement.
    The offense charged in the indictment is, in fact, selling the land without having title to the same, and should .have been framed under section 7079, Revised Statutes. Kerr v. State, 36 Ohio St., 614.
    Therefore, as ' held by the circuit court, no offense was charged under section 7076. If so, then it is clear that the phrase “anything of value” as defined in section 6794 can have no application.
   Spear, J.

The indictment was found and prosecution conducted under section 7076, Revised Statutes, which is: “Whoever, by any false pretense, with intent to defraud, obtains from any person anything of value, or procures the signature of any person, as maker, indorser, or guarantor thereof, to any bond, bill, receipt, promissory note, draft, or check, or any other evidence of indebtedness, and whoever sells, barters, or disposes of, or offers to sell, barter, or dispose of, any bond, bill, receipt, promissory note, draft, or check, knowing the signature of the maker, indorser, or guarantor thereof to have been obtained by any false pretense, shall, if the value o'" the property or instrument so procured, sold, bartered, or disposed of, or offered to be sold, bartered, or disposed of, is thirty-five dollars or more, be imprisoned in the penitentiary not more than three years, nor less than one year, or, if the value is less than that sum, be fined not more than one hundred nor less than ten dollars, or imprisoned not more than sixty nor less than ten days, or both.”

It was the opinion of the court of common pleas that the terms of the foregoing section are sufficiently comprehensive to embrace, as a thing of value, the conveyance of real estate, and so overruled the demurrer to the indictment. The circuit court, however, was of the opposite opinion, holding that the statute does not embrace or relate to real estate; in other words that the procuring of title to real estate by false pretense's cannot be punished under our statute; arid the foregoing states the principal question in the case.

We find ourselves in accord with the conclusion reached by the court of common pleas. It can hardly be urged with any show of reason that the term “anything of value” is not in itself sufficiently comprehensive to embrace things which savor of real estate, but it is urged that, taking the present statute in connection with the statute as it stood before the adoption of the section in its present form, it could not have been the intention of the general assembly to make any radical change in meaning. It is true that the language employed prior to the revision of 1880 related to transactions affecting personal property, and did not contain terms the equivalent of “anything of value,” and had it been sought to punish frauds relating to real estate under the statute as it. then stood the answer would have been that the alleged offense did not come within the purview of the statute. The words “anything of value” were made to take the place of “money, goods, chattels, merchandise, or effects whatsoever,” and the change is one of substance. The claim in support of the contention that the present statute cannot be held to cover fraudulent transactions relating to real estate is that the change was the work of the codifying commission, which had no authority to make changes in matters of substance, and that, as held in Allen v. Russell, 39 Ohio St., 336, where the statutes have been revised and consolidated, a strong presumption follows that the same construction that would have been given to the statute before revision should be given to the revised and consolidated statute. But there is a possibility of carrying this presumption to unreasonable lengths, and indeed the same case is authority for the proposition that “where one or more sections are repealed and re-enacted in a different form, the fair inference is, in general, that- a change in meaning was intended,” and “if it be clear from the words that a change in substance was intended, the statute must 'be enforced in accordance with its changed form.” We think it would be unreasonable to apply the presumption first stated to the present case. Manifestly there was good reason for an enlargement of the scope of the statute. Frauds in relation to deals in real estate were becoming common, and- the importance of a change in the statute was plain. Nor is it accurate to treat the change in the statute as the work of the codifying commission. Their codification was submitted to, considered by, and adopted by the law making body of the state, the general assembly. It should not receive any less respect because the change may have been recommended by three commissioners learned in the law instead of being proposed in the first instance by some single member of the general assembly, and after all is said, the enactment receives its vigor and force as law by reason of its enactment by the general assembly, no matter from what source the inspiration came. Not only is there a change of phraseology in the statute, but there is manifestly a radical and far reaching change in the scope of the act itself. This rendering of the statute finds support, also, in the language of section 6794, where it is provided that in the interpretation of part four (the penal part of the statute) “the term ‘anything of value’ includes * * * things which savor of the realty, and are, at the time they are taken, a part of the freehold, whether they be of the substance or produce thereof, or affixed thereto * * * and every other thing of any value whatever.” It would seem strange if it were the intention to include within the protection of the statute the inferior things of value, such as farm produce, and at the same time to exclude from such protection the farm itself. The vigilant counsel have called attention to a number of authorities, several from other states, bearing with more or less pertinency upon the question in issue, which will be found cited in the reporter’s notes. We have not deemed it necessary to review them, the question being one affecting only the scope and purpose of our own statute.

The objection that, even if the statute be broad enough to embrace the fraudulent obtaining of title to real estate, nevertheless the indictment is bad for uncertainty, has not been overlooked. We do not think the point well taken. The test is, has the accused party been apprised in the indictment of the charge against him so that he may know what he is expected to meet and will be required to answer? This test, we think, is substantially and fully met by the averments of the indictment, and that there is. in the language of the statute of jeofails, “sufficient matter alleged to indicate the crime and person charged.”

This conclusion requires a reversal of the judgment of the circuit court and' an affirmance of the judgment of the court of .common pleas, and it will be so ordered.

Reversed.

Summers Davis and Si-iauck, JJ., concur.