text:
    Gale v. Priddy.

      Trial by jury — General or special verdict — Section 5801, Rev. Stat., mandatory only, when — Trial court to exercise power of refusal to ■permit questions propounded with great caution — Court procedure.

    1. A request that the court will direct the jury to render a special verdict in writing, upon any or all of the issues in the case, is not a request to instruct the jury that if they find a general verdict, they shall find specially upon particular questions of fact, as provided in Revised Statutes, Section 5201.
    2. Revised' Statutes, Section 5201, so far as it relates to special findings upon particular questions of fact, is mandatory only when the request therefor contains the condition that the questions which are submitted shall be answered in case a general verdict shall be rendered.
    3. The trial court should exercise with great deliberation and caution the power of withdrawing or refusing to submit questions propounded; and although the questions must be such that the answers thereto will establish ultimate and determinative facts, and not such as are only of a probative character; yet questions the answers to which establish probative facts from which an ultimate material fact may be inferred as a matter of law, should be allowed. Schweinfurth, Admr., etc., v. Railway Co., 60 Ohio St., 215, explained and qualified. The Cleveland <& Elyria Electric R. R. Co. v. Hawkins, 64 Ohio St., 391, approved and followed.
    (Decided June 10, 1902.)

      Error to the Circuit Court of Wood county.

      Mr. W. (}. Elliott and Messrs. Baldwm & Earring-ton, for plaintiff in error.
    The question presented arises upon the construction of Secs. 5200 and 5201 of the Revised Statutes.
    We contend that under these sections it is the right of a party to have a special verdict upon all or any of the issues joined. And upon this subject the court has no discretion as to whether pertinent interrogatories shall be submitted.
    If the court is vested with discretion in the matter, of course the defendant could not complain: but if the statute means what it says in direct and positive terms, then certainly the court erred in denying to the defendant a substantial right.
    We think the statute is not susceptible of any construction or interpretation which warrants the denial of this right. And so far as the statute has been directly under consideration by the courts, they seem to hold that.its provisions are mandatory. Railway Co. v. McCamey, 5 C. D., 631; 12 C. C. R., 543; Schweinfurth v. Railway Co., 60 Ohio St., 215; Miller v. Southworth, 5 C. D., 101; 10 C. C. R., 572; Summers v. Greathouse, 87 Ind., 205.
    The record does not show affirmatively that the request to submit special interrogatories was coupled with any condition that the same were to be answered in case of the rendition of a general verdict. Our circuit court has held, in Sun Oil Co. v. Insurance Co., 8 C. D., 145; 15 C. C. R., 355, that such condition in the request is essential.
    We doubt the correctness of this decision, and fail to see the reason or philosophy of such requirement.

      Mr. Chas. A. Strauch and Messrs. Janies & Beverstock, for defendant in error.
    We admit that the question presented arises upon the construction of Secs. 5200 and 5201 of the Revised Statutes.
    The question here presented has not, so far as we know, ever been presented to and passed upon by the Supreme Court of Ohio, and for that reason we must look elsewhere for a discussion of the question presented by courts construing similar statutory provisions.
    Observe that Secs. 545 and 546 of the Indiana Code are counterparts of Secs. 5200 and 5201 of the Revised Statutes of Ohio.
    The Supreme Court of Indiana, construing said Secs. 545 and 546, held that the request to submit interrogatories should be coupled with the condition that the same a,re to be answered in case of the rendition of a general verdict. Manning v. Gasharie, 27 Ind., 399; Killian v. Eigenmann, 57 Ind., 480; Railway Co. v. Bowen, 70 Ind., 478; Railway Co. v. Worley, 107 Ind., 320.
    The record must show affirmatively (and counsel for plaintiff in error admit it does not) that the re-' quest to submit the interrogatories was coupled with the condition that the same were to be answered in case of the rendition of a general verdict. That condition, is indispensable. Sun Oil Co. v. Insurance Co., 8 Circ. Dec., 145; 15 C. C. R., 355; Taylor v. Burk, 91 Ind., 252.
    Our position, aside from the Indiana authorities, is fully sustained by the opinion of Judge Parker, in Sun Oil Co. v. Insurance Co., 8 C. D., 145; 15 C. C. R., 355.
   By the Court :

The question raised in this case is concerning the refusal of the court of common pleas to instruct the jury to find specially upon particular questions of fact submitted by the plaintiff in error, who was defendant in that court. This was assigned as error in the circuit court, and the judgment of the common pleas was affirmed. It appears from the record that at the close of the testimony, before the argument of the case, and at the time defendant submitted his request to charge, the defendant also submitted to the court, in writing, certain requests to direct the jury to give a special verdict in writing, upon certain issues as follows: (Here follows the title of the case, and continuing) “And we return the questions submitted to us with our answers thereto, as follows, to-wit:” (Here follow the questions with a blank space after each for answers thereto, concluding with) “Upon consideration whereof the court refused each and all of said requests severally, to which refusal defendant then and there excepted.” It does not appear that the court was requested to instruct the jury “to find specially upon particular questions, of fact,” although questions seem to have been prepared and submitted to the court for the purpose of procuring such a special finding. Instead of such a request, the record shows that the defendant requested the court “to direct the jury to give a special verdict in writing upon certain issues,” which is a very different thing. It does not appear that a special verdict on any “issues” was prepared and submitted as is the general and proper practice in such cases. 22 Encv. PI. & Pr., 993; but it does appear that certain “particular questions of fact” were prepared, which counsel doubtless desired to have answered by the jury. A “particular question of fact” (Sec. 5201, Revised Statutes) is something different from, and less thhn, an “issue;” and the object of the statute is that these special findings, if inconsistent with the general verdict, may control it. Manning v. Gasharie, 27 Ind., 399. It is stated in the record that “upon consideration whereof the court refused each and all of said requests severally.” We are not able to say from that which is disclosed in the printed record that any of these questions called for more than evidentiary matter; but whatever may be the extent to which the trial court may scrutinize the questions submitted and eliminate from them, it has no right to withdraw, or refuse to submit, interrogatories which are pertinent and material. Summers v. Greathouse, 87 Ind., 205; and although, as was held in Schweinfurth v. Railway Co., 60 Ohio St., 215, 232, on authority of Railway Co. v. Dunleavy, 129 Ill., 132, 145, the questions must be such that the answers thereto will establish ultimate and determinative facts, and not such as are only of a probative character; yet this should not be construed to exclude questions the answers to which will establish probative facts from which an ultimate material fact may be inferred as matter of law. This is necessarily so in all cases which involve what are called mixed questions, of law and fact; for there a general verdict implies the finding of the jury upon the ultimate facts which are necessary to support the verdict, while the findings of the jury may be such on the “probative” facts that the necessary legal inference would be exactly the opposite of the finding implied in the general verdict. For example, a general verdict may imply a finding that there had been no payment made on the plaintiff’s claim, while answers, by the jury to interrogatories might disclose such evidentiary facts that the law would conclusively infer that there had been a payment. In such case the interrogatories could not lawfully be excluded from the jury. This in effect, if not in terms, was held-by the unanimous vote of the judges in the case of the Railroad Company v. Hawkins, 64 Ohio St., 391. It was said in the Illinois case above cited: “Doubtless a probative fact from which the ultimate fact necessarily results would be material, for the court could infer such ultimate fact as a matter of law.” 129 Ill., 135, 143. In any event the trial court should exercise great deliberation and caution in the matter of excluding interrogatories from the jury; for, while permitting immaterial questions is not likely to work injury after the verdict, the exclusion of a material one may be fatal to the rights of the party requesting it.

The statute, Sec. 5201, is mandatory upon the court to “instruct the jurors, if they render a general verdict, to find specially upon particular questions of fact;” but it is so mandatory only when the court is so requested to instruct the jurors by either party. That the request for special findings shall contain the condition that the questions shall be answered in case a general verdict shall be rendered, is therefore not a matter of mere form but one of substance. This statute is identical with the statute of. Indiana on the same subject and was adopted from that state. The Supreme Court of Indiana had repeatedly construed the statute as above, before its enactment here, as well as since that time. Manning v. Gasharie, 27 Ind., 399; Killian v. Eigenmann, 57 Ind., 480; Railway Co. v. Bowen, 70 Ind., 478; Taylor v. Burk, 91 Ind., 252; Railway Co. v. Worley, 107 Ind., 320.

When a statute is adopted from another state where it has received a settled construction, the presumption is that such construction'was adopted and that the terms of the statute are used in the same sense. Gray v. Askew, 3 Ohio, 466, 480; Paine v. Mason, 7 Ohio St., 198, 207; Favorite v. Booher, 17 Ohio St., 548, 554; Hilliard v. Gas Coal Co., 41 Ohio St., 662, 669.

From the foregoing it is clear that there are, apparent upon the record in this case, several reasons why the judgment of the court below should be, and it accordingly is,

Affirmed.

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


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    The State of Ohio v. Wing.

      Trial of criminal case — Testimony in previous trial by witness not dead — But beyond court's jurisdiction — Not admissible, when —Criminal procedure.

    In the trial of a criminal case, evidence of the testimony delivered in a previous trial of the same case by a witness not dead, but beyond the jurisdiction of the court, or limits of the state, is not admissible unless it appear to the satisfaction of the trial court, that the witness is absent through the connivance, or by the procurement of the accused.
    (Decided June 24, 1902.)
    Exception by the Prosecuting Attorney to decision of the court of common pleas of Hamilton county.
    The defendant in error, Thomas Wing, in April, A. H. 1900, was arrested on a warrant issued by a justice of the peace of Hamilton county, on an affidavit filed with him which charged Wing with having committed the crime of robbery in said county on or about the 19th day of April, 1900. The accused was taken before the magistrate for a preliminary hearing and was represented by counsel.
    Among the witnesses called and examined for the state was one Lizzie Waddell. She testified that she had known the accused for some years; that on the night of the robbery, at about 8:45 o’clock, he called at her room on Ninth street in Cincinnati, and displayed to her a roll of money, made up of five and ten dollar bills. She asked where he got the money, and he smiled, and told her to watch the newspapers in the morning. He gave her $25 of the money with which to buy him some wearing apparel, and then left.
    The magistrate found the facts sufficient to hold the prisoner to answer the charge in the court of common pleas, and it was so done. At the April term of that court," Wing was indicted by the grand jury for the same crime, for which he was bound over, and in December of the October term for the year 1900, he was put upon trial to a jury.
    Lizzie Waddell, who had testified for the state at the preliminary hearing before the justice of the peace, did not appear at the trial in the court of common pleas. Search was made for her several days before the trial, by an officer with a subpoena, at the several places where she had resided in Cincinnati, and on the day before the trial was to begin, another officer also made search for her, but she could not be found. On these, and other facts, perhaps, the court found the witness was without the jurisdiction of the state of Ohio, and after diligent search could not be found.
    The court having reached this conclusion, over the objection of the accused, permitted the state to offer and introduce the evidence of Thomas H. Darby, who was present and heard the testimony of Lizzie Wad-dell (the absent witness), at the preliminary examination on the same charge against the accused, which is eontained in the indictment. Darby stated that he recollected her testimony, and narrated it to the jury as her testimony, to the effect above stated. Exception was duly entered by the prisoner. He was found guilty, and moved for a new trial on the grounds:
    “1. Because the verdict was against the evidence.
    “2. Because the court erred in permitting Thomas Darby to testify on behalf of the prosecution as to the testimony of one Lizzie Waddell, given at the preliminary hearing of this case before Justice Winkler.”
    The court overruled the motion as to the first, but sustained it as to the second ground, thus holding that error was committed in allowing Darby to repeat at the trial, the evidence of Lizzie Waddell,'given before the magistrate. A new trial was granted, to which, the prosecuting attorney, in behalf of the state, excepted, and made his exception part of the record by a proper bill of exceptions, which, on leave obtained, has been filed in this court, under the provisions of sections 7305 and 7306 of the Revised Statutes.

      Mr. Victor H. Schafer, for plaintiff in error.
    It is an old principle of law, so well settled that it needs no authority in its support, that in civil cases parol testimony may be given to prove the testimony of a witness who is either absent from the state or dead, who had testified at a former hearing of the same case.
    A principle of law almost as well settled in this country and in England, is the one which holds that in criminal cases such testimony is competent where the witness is dead.
    The statutes, 1st and 2nd Philip and Mary, Chap. 13, and in the 2nd and 3d Ph. & M., Chap. 10, followed by 7th Geo., 4th Chap., 64, which created the authority in justices to take written testimony of the accused, as well as the accusers, in criminal cases, were enlarged by the 11th and 12th Victoria, Chap. 42, commonly called “Jervis’s Act.” 2 Hale’s Pl. Cr., 305; 2 Hawkins Pl. Cr., Chap. 46, Sec. 6.
    It will be noticed that this authority wrote while the statute 1 and 2, Ph. & M. was in force, and even before the statute of 11th and 12th Victoria was passed. 2 Hale’s PL Cr., Chap. 38.
    Starke, on evidence, Vol. 2, page 486, refers to the statutes of 1 and 2 Ph. & M., and 2 and 3 Ph. & M.

      In the case of Thatcher & Waller, in the time of King Charles II, the defendants being indicted and tried for murder, it was held that the deposition of the witness who was examined before the coroner of the household, might be read after it was shown to the court that he was gone beyond sea. See 6 Car. & P., 176.
    It will be noticed from an examination of authorities that some were decided prior to the adoption of the tenth amendment to our present federal constitution, and it is the contention of the state that this was a well settled doctrine of law which the drafters of the constitution had in mind at the time of its adoption. An exception well recognized (the same as the exception allowing the testimony of the witness since deceased) to the general rules of evidence that hearsay is incompetent.
    In this country the courts are at great variance in their holdings on this question. The only decision in this state is that in the case of Summons v. State, 5 Ohio St., 325.
    As the objection is urged to the admission of this testimony that it is in contravention of the constitutional provision that the accused shall be allowed to meet his witnesses face to face, this case is an important one. See also De Veaux v. Clemens, 9 Circ. Dec., 647; 17 C. C. R., 33.
    Outside of our own state we find this class of testimony is admitted in at least four states of the union —three of those states having exactly similar provisions in their constitutions, but one (California) having no such provision. Hurley v. State, 29 Ark., 17; Shackelford v. State, 33 Ark., 539; Dolan v. State, 40 Ark., 454; Marler v. State, 67 Ala., 55; Lowe v. State, 86 Ala., 47; Thompson v. State, 106 Ala., 67; State v.
      Riley, 42 La. An., 995; State v. Laque, 41 La. An., 1070; Greenleaf Evidence (16 ed.), 282; State v. Allen, 37 La. An., 635; 34 La. An., 1088 and 1219; People v. Devine, 46 Cal., 45; Cooley, Constitutional Limitations (6 ed.), 387.
    For the rule that this class of testimony is allowed in cases where the witness is dead, see’ Summons v. State, 5 Ohio St., 325; United States v. Macomb, 5 McLean, 286; 22 Ark., 371; Brown v. Commonwealth, 73 Pa. St., 321; Johnson v. State, 1 Tex. App., 333; O’Brian v. Commonwealth, 6 Bush, 563; Commonwealth v. Richards, 35 Mass. (18 Pick.), 434; People v. Murphy, 45 Cal., 137; 17 Ala., 354; Nevada v. Johnson, 12 Nev., 121; State v. Hooker, 17 Vt., 658; State v. Elliott, 90 Mo., 350; Hair v. State, 16 Neb., 601; State v. Hallett, 63 Ia., 259; 63 Ga.,. 692; People v. Sligh, 48 Mich., 54; 8 Car. & P., 167; 9 Car. & P., 601; Kendrick v. State, 29 Tenn. (10 Humph.), 479; United States v. Wood, 3 Wash. C. C., 440; United States v. White, 5 Cranch C. C., 460.

      Mr. Nonoood J. Utter and Mr Charles E. Tenney, for defendant in error.
    The contention of the defendant in error is as follows: At the trial, of a criminal case evidence is not admissible to prove the testimony given at the preliminary examination, or at a former trial of the same case, by a witness, who has not been proven to be dead, but who has since left the jurisdiction of the ■court or can not be found. . We admit that such evidence would be admissible in a civil case, or when the former witness is dead, and probably when he is insane, or too sick to attend. All such cases, therefore, are irrelevant.

      Ohio constitution, Art. 1, Sec. 10, “Gives permanency to, and secures against the power of change or innovation, the great fundamental principle long recognized at common law,” that, with the recognized common law exceptions to the rule against hearsay, existing at the time of the adoption of the constitution, the party accused shall in all cases be entitled to meet “face to face” the original, as distinguished from the narrating or repeating witnesses against him. Summons v. State, 5 Ohio St., 325; Motes v. United States, 178 U. S., 458; Mattox v. United States, 156 U. S., 237; State v. Houser, 26 Mo., 431; State v. McO’Blenis, 24 Mo., 402; 1 Greenleaf on Evidence (16 ed.), 282.
    And the constitutional provision is not to be evaded and rendered abortive by being satisfied with the presence of a mere narrating witness to be examined; there can be no new exceptions to the rule against hearsay in criminal cases since the adoption of the constitution. United States v. Angell, 11 Fed. Rep., 34; 1 Greenleaf on Evidence (16 ed.), 282.
    The law to-day is therefore the same as the common law rule at the time of the adoption of the constitution. There has been no adjudication on the point in this state, and we must therefore look to the decision of other states of the United States and England. The common law rule on the subject before the adoption of the constitution is well shown in the trial of Titus Oates. 10 How. St. Tr., 1285, 1286 (A. D. 1685).
    Morley’s case, 2 Kelyng, 533, is another old English case, which sustains our contention.
    The common law rule unaffected by any constitutional provision is further illustrated by the following cases from England: In Regina v. Hegan, 8 Car. & P., 167, the evidence was offered by tbe prisoner as in tbe trial of Titus Oates, supra. Rex. v. Savage, 5 Car. & P., 143; Queen v. Scaife, 17 Q. B. (A. & E. n. s.), 238.
    Tbe statute on tbe subject passed after tbe trial of this case controls all subsequent decisions and this case is, therefore, tbe last common law decision on that subject. 3 Russell Crimes, 562; United States v. Angell, 11 Fed. Rep., 34; Motes v. United States, 178 U. S., 458.
    Tbe federal courts and tbe courts of many of tbe states have passed on tbe question, and almost unanimously support our contention. State v. Houser, 26 Mo., 431, is a most emphatic declaration of tbe principle we contend for.
    The following authorities are fully in accord with tbe contention of tbe defendant in error: Stephens’ Digest of Evidence, Art. 32 and notes; Cooley Const. Limit., 387 and note 4; Underhill Crim. Ev., Chap. 21, Sec. 260 et seq.; State v. McO’Blenis, 24 Mo., 402; Commonwealth v. McKenna, 158 Mass., 207; Le Baron v. Crombie, 14 Mass., 234; Weeks v. Lowerre, 8 Barb., 530; Mutual Life Ins. Co. v. Anthony, 50 Hun, 101; People v. Newman, 5 Hill, 295; Berney v. Mitchell, 34 N. J. L., 337; Hall v. State, 65 Tenn. (6 Baxt.), 522; State v. Oliver, 43 La. An., 1003, 1005; Brogy v. Commonwealth, 51 Va. (10 Gratt.), 722; State v. Conway, 56 Kan., 682; State v. Foulk, 45 Pac. Rep., 603; 57 Kan., 255; State v. Staples, 47 N. H., 113; Bergen v. People, 17 Ill., 425; Collins v. Commonwealth, 75 Ky. (12 Bush), 271; People v. Sligh, 48 Mich., 54; Gastrell v. Phillips, 64 Miss., 473; Gerhauser v. Insurance Co., 7 Nev., 174; McLain v. Commonwealth, 99 Pa. St., 86; Cline v. State, 36 Tex. Cr. App., 320.

      The plaintiff in error seems to place considerable reliance on Summons v. State, 5 Ohio St., 325. This decision, however, expressly limits itself to the admissibility of the former testimony of witnesses who have since died. Death was assumed as necessary throughout the opinion, and the cases of absent witnesses were distinguished as not in point.
    The distinction between death and absence is expressly drawn in the following cases: Owen v. State, 63 Miss., 450; Hobson v. Doe, 2 Blackf. (Ind.), 308; Pittman v. State, 92 Ga., 480; United States v. Angell, 11 Fed. Rep., 34; Queen v. Scaife, 172, B., 238; Trial of Titus Oates, 10 How. St. Tr., 1286.
    The following cases are in strict accord with the decision in Summons v. State, 5 Ohio St., 325, in admitting the former testimony of dead witnesses: Mattow v. United States, 156 U. S., 237; Commonwealth v. Richards, 18 Pick., 434; Stern v. People, 102 Ill., 555.
    Nevertheless the same courts refuse to admit the former testimony of absent witnesses, as shown by the following cases: Commonwealth v. McKenna, 158 Mass., 207; Stout v. Cook, 47 Ill., 530.
    The distinction between civil and criminal cases is made in the following cases: Owens v. State, 63 Miss., 450; Brogy v. Commonwealth, 10 Gratt., 722; Finn v. Commonwealth, 5 Rand., 701; United States v. Angell, 11 Fed. Rep., 34; McLain v. Commonwealth, 99 Pa. St., 86.
    Compare Pittman v. State, 92 Ga., 480, a criminal case, with the civil case of Railway Co. v. Gravitt, 93 Ga., 369.
    The prosecution relies greatly on 1 Greenleaf on Evidence, 284, and the text undoubtedly sustains their contention. Mr. Greenleaf’s citations, however, fail to support the text, with the exception of the Alabama and Arkansas cases. The cases cited are all civil cases excepting those from Alabama, Arkansas, California and Louisiana. In California the constitution does not provide for the defendant meeting the witnesses “face to face” or “confronting” them: People v. Cady, 48 Pac. Rep., 908; Constitution of California (1849), Art. 1, Secs. 8 and 9.
    In Louisiana the testimony of an absent witness is not admissible unless there is a “full and accurate deposition.” State v. Oliver, 43 La. An., 1003; State v. Timberlake, 50 La. An., 308.
   Price, J.

The right of the state to question in this court, any adverse decision made in the trial of a criminal case by the trial court, is found in Revised Statutes, section 7305, which provides:

“The prosecuting attorney may except to any decision of the court, and present his bill of exceptions' thereto, which the court shall sign, and the same shall be made a part of the record.”

And section 7306 provides:

“The prosecuting attorney may present such bill of exceptions to the Supreme Court, and apply for permission to file it with the clerk thereof, for the decision of the court upon the points presented therein; * 4f * ??

As decided by this court in State v. Granville, 45 Ohio St., 264, the purpose of such bill of exceptions, is not to obtain a reversal, but to determine the law to govern in a similar case.

Therefore, we have for determination the sole question : Did the court of common pleas err in setting aside the verdict of guilty, because the evidence of Darby was incompetent? If his evidence was competent on the foundation laid for its admission, the court erred in granting a new trial; but if such evidence was incompetent, the court discharged its duty, in correcting the mistake on the first opportunity, by giving the prisoner a new trial.

If this question had arisen in the trial of a civil action, the way might be clear to sanction such evidence, where a proper showing is made for its introduction. Independent of statute, and at common law, there are many authorities which support the doctrine, that in civil actions, if it is made to appear to the satisfaction of the trial court that a witness, who has once testified in the same case, with opportunity for cross-examination, is beyond the jurisdiction of the court when the case is retried, his evidence upon the former trial may be given to the jury through the medium of one who heard and remembers it.

Some of the authorities on this point are cited in the brief for the state, and we will not refer to others which are equally clear.

In this state the legislature has moulded a rule in civil cases which is found in Sec. 5242a of. Revised Statutes. This section provides that:

“Whenever a party or a witness, after testifying orally, die, or is beyond the jurisdiction of the court, or can not be found after diligent search, or is insane, or through any physical or mental infirmity is unable to testify, or has been summoned, but appears to have been kept away by the adverse party, if the evidence given by such party or witness has been or shall be incorporated into a bill of exceptions in the case wherein such evidence was given, as being all the evidence given by such party or witness, and which bill of exceptions shall have been duly signed by the judge or court before whom such evidence was given, the evidence so incorporated into such bill of exceptions may be read in evidence by either party on a further trial of the case, and in case no bill of exceptions has been taken or signed as aforesaid, but the evidence of such party or witness has been taken down by any competent official stenographer, the evidence so taken by such stenographer, may be read in evidence by either party on the further trial of the ckse, and shall be deemed and taken as prima facie evidence of what such deceased party or witness testified to orally on the former trial; or, if such evidence has not been taken by such a stenographer, the same may be proven by witnesses who were present at the former trial, having knowledge of such testimony. All testimony thus offered shall be open to all objections which might be taken, if the witness were personally present.”

This section is somewhat confused in its terms, and its application is not clear in a case where the evidence of the witness or party at a former trial has not been incorporated into a bill of exceptions in^a case where it was given, and signed by the judge, or court before whom it was given. In case the evidence has been incorporated into a bill of exceptions and it has been duly signed by the judge, or court before whom it was given, the evidence contained in such bill, if it is all contained therein, may be read in another trial of the case, whenever, the party or witness, after having testified orally, die, or, is beyond the jurisdiction of the court, or, cannot be found after diligent search, or is insane, or through any physical or mental infirmity is unable to testify, or has been summoned, but appears to have been kept away by the adverse party. On the occurrence of such events the evidence contained in the bill of exceptions, may be read in the further trial of the case by either party.

But when the right of the official stenographer to testify is reached later in the section, it is provided that the evidence taken by him, “may be read in evidence* by either party on the further trial of the case,. and shall be deemed and taken as prima facie evidence of what such deceased party or witness testified to orally on the former trial; or if such evidence has not been taken by such a stenographer, the same may be proven by witnesses who were present at the former trial, having knowledge of such testimony, ete.”

It may be doubted whether or not the stenographer can testify in such cases where the party or witness who had testified on a former trial is not deceased, but living at the time of the further trial. The limitation is very close, and the language may well cause controversy, but we do not need to decide the question, for it is not necessary to do so in order to determine this case. If the right of the stenographer is confined to a case where the party or witness at former trial is deceased, like limitation may be claimed for one who was present at the former trial, having knowledge of the testimony of the party or witness.

The foregoing analysis of the section quoted is made, because, counsel for the state cite it as authority for the admission of the Darby evidence, although the section is a part of the code of civil procedure; but if we are to admit the claim, we would then be troubled to know whether the right to narrate what was said by a party or witness on a former trial, is not confined to the condition that such party or witness had died since the former trial.

However this may be, we are of opinion, that, unless there is other legislation which extends the provisions of this section to the trial of criminal cases, it will not apply. The common law rules regulating the competency of witnesses and their testimony have, as a general rule, applied to both civil and criminal cases. Where, for the trial of civil cases, a different rule was desired, the code of civil procedure has provided for the change. And if the furtherance of justice required a change of the common law rule as to the trial of criminal cases, the legislature has made the changes, as to the competency of parties, or witnesses, and has otherwise provided for the mode and manner of trial and procedure.

But the state claims that the foregoing section (5242a) has been extended to criminal procedure by the terms of Sec. 7289, Revised Statutes, which reads:

“Except as otherwise provided, the provisions of the code of civil procedure relative to compelling the attendance and testimony of witnesses, their examination, and the administering of oaths and affirmations, and proceedings for contempt to enforce the remedies and protect the rights of parties, shall extend to criminal cases, so far as they are in their nature applicable.”

This section does not mention the competency of witnesses or their testimony, and does not extend the rules of civil procedure as to their competency to criminal cases; and hence does not serve the purpose claimed for it by the state.

We are, therefore, after all that is said about statutory rules and provisions, remitted to the common law for our guide in this case. If these statutory provisions can be extended to criminal cases, we are confronted with a question of their validity under our fundamental law. Whether we turn to the codes of civil, or criminal procedure, or both; or to the rules of evidence at common law, we must look to the constitution of our state to see if- the rights guaranteed by it to a citizen charged with a crime, are not infringed by permitting one who was present and heard the evidence of a material witness for the prosecution at one triál, to narrate his evidence on a second or further trial on the same charge, even if such witness is beyond the jurisdiction of the court and cannot be found at the time of the further or second trial.

Section 10, of our bill of rights provides:

' “ * ' * * jn any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face * *

A similar provision, in different language, is found in the federal constitution.

It has been frequently held, and by many different courts of high authority, that when these constitutions were adopted, both state and federal, they were adopted with a recognition of established contemporaneous common law principles, and as said in one of the cases, they did not repudiate, but cherished the established common law. This law being in the spirit of the adoption of the constitutional guaranty, whatever exceptions to the rule for the production of the witness for the prosecution at the trial then existed, remained as exceptions thereafter. Hence, it is necessary to learn if we can, the extent of the exceptions then recognized by the common law, especially as settled in the United States. This field of investigation is a large one, and we can here give but a summary and cite a few of the leading cases.

We have not before had this precise question before this court. There are two well known exceptions found in our state to the rule excluding hearsay evidence in criminal cases, but they are not decisive of this case.

One is where a witness for the state died after having testified, and at a subsequent trial on the same charge, it was permitted one who heard the testimony of the deceased witness and remembered it, to repeat the same on the second trial.

This was held to be proper in Summons v. State, 5 Ohio St., 325. The court in that case, held that “The clause of the 10th section of the bill of rights, providing that, on any trial in any court, the party accused shall he allowed to meet the ivitnesses face to face, which, like numerous other provisions in the bill of rights is a constitutional guaranty of a fundamental principle well established and recognized at common law, has reference to the personal presence of the witnesses called to testify, and not the quality or competency of the evidence to be given.”

Speaking of this constitutional guaranty on page 341, Bartley, J., says: “The scope and operation of it are clearly defined and well understood, in the common law recognition of it, and the assertion of it in the fundamental law of the state, was designed neither to enlarge or curtail it in its operation, but to giveiit permanency, and secure it against the power of change or innovation.”

The state cites that case, as sustaining its contention, and some language used by the learned judge, seems susceptible of that view; but taking the whole case and confining it to the point necessary to. be decided, it is found not to do so.

And another well known exception to the rule, are dying declarations. Summons v. State, supra, and Robbins v. State, 8 Ohio St., 131.

The ground upon which such declarations are admitted in cases of homicide — declarations made in articula mortis by the subject of the homicide, is largely that of necessity in many cases, and became a rule mainly for that reason.

In some of the early cases in England another exception recognized in civil cases at least, was where the witness at the former trial was “beyond the seas” at the time of the second trial. What the same courts would now decide in such case, since rapid passage has robbed the ocean of most of its terrors, we do not know. Then the tedious and dangerous journey incident to existing means of navigation, might lead a court of justice, in civil, and perhaps in criminal cases, to admit the class of testimony under consideration.

But our research has failed to find a line of well considered cases in this country where, the fact that a witness, after having testified for the state in a criminal prosecution, has gone beyond its jurisdiction, will justify the introduction of his testimony at that trial, on a second trial, unless it appear that the absence of such, witness is through the connivance or procurement of the accused.

We cannot discuss all the cases, or even quote from them, but we think the weight of authority is against such right in the state. There is no constitutional provision requiring the production of witnesses in court, in civil cases. There surely is such guaranty in criminal procedure.

In The People v. Sligh, 48 Mich., 54 the Supreme Court of that state, held that: “Witnesses in civil cases are not required by any constitutional rule to be produced in open court. * * * The testimony of a witness in tbe trial of a criminal case, may be reproduced, if necessary, upon a later trial if tbe witness bas meanwhile died * * * .” On page 56, Campbell, J., says: “The exception, if justified at all, can only be maintained on tbe ground of necessity, and to prevent a failure of justice. Tbe cases which sustain it on tbe ground that tbe rules of civil and criminal evidence are identical, are not in our opinion correct.”

In State v. Houser, 26 Mo., 431, tbe Supreme Court of that state held: “A deposition of a witness, taken upon tbe preliminary examination before a committing magistrate, in tbe presence of tbe accused, is not admissible in evidence on tbe trial upon proof that tbe witness is beyond tbe jurisdiction of tbe court.”

2. If, however, tbe absence of tbe witness at the trial is procured by tbe defendant, tbe deposition would be admissible in evidence.” A full discussion of this question is contained in that case.

In Owens v. State, 63 Miss., 450, it is held: “In a criminal trial, evidence of tbe testimony delivered in a previous trial of tbe same case by a witness not dead, but beyond tbe jurisdiction of tbe court, dr tbe limits of tbe state, is not admissible.”

To tbe same effect is tbe case of Pittman v. State, 92 Ga., 480. There it is held: “Tbe better opinion seems to be that though tbe death, of a witness who testified at tbe commitment trial will render what be testified admissible in evidence in behalf of Q tbe state on tbe final trial of tbe accused for tbe same offense, yet tbe removal of tbe witness from tbe state and consequent inability to procure bis attendance, tbe accused doing nothing to prevent bis attendance, will not, the witness being still- alive, render such testimony admissible.”

A similar holding is in Brogy v. Commonwealth, 10 Grattan, 722, decided by the Supreme Court of Appeals of Virginia. See also McLain v. Commonwealth, 99 Pa. St., 86.

In Commonwealth v. McKenna, 158 Mass., 207, the Supreme Judicial Court of that State held: “At the trial in the superior court, on appeal, of a criminal case, a witness cannot testify to what he heard another person, wlio is ill and unable to attend the trial, testify to at the trial of the case in the lower court.” That court cites many cases to support its conclusions.

In United States v. Angell, 11 Fed. Rep., 34, the circuit court held: “Where a witness w'ho' testified at the preliminary examination of the defendant upon the same charge is living, but has gone out of and beyond the jurisdiction of the court, evidence of wliat he said on the former trial is inadmissible in a criminal prosecution.”

The foregoing, and many of similar import not cited herein, come from states having constitutional guaranties on the subject like our OAvn, and Ave are content in referring to another case decided recently by the Supreme Court of the United States: Motes v. United States, 178 U. S., 458.

In that case, Motes and others were indicted in the circuit court for the Northern District of Alabama for the crime of murder, committed in the execution of a conspiracy to injure, oppress, threaten, and intimidate one Thompson, because of his having informed the United States authorities of violations by the conspirators of the law's of the United States relating to distilling.

At the preliminary trial before a United States Commissioner, Taylor, one of the accused, testified, and his evidence was put in writing and signed by him. It was sufficient, if accepted, to establish the guilt of all of the defendants. The accused had opportunity to cross-examine him. At the final trial in the circuit court, Taylor, who had pleaded guilty, was called as a witness for the government, but did not respond. He had disappeared, although seen in the corridor of the court building an hour before being called. His absence was not by the procurement or advice of the accused, but was due to the negligence of the government officials. The circuit court, over the objections of the accused, allowed Taylor’s written statements made under oath at the examining trial to be read in evidence to the jury. The accused was found guilty and sentenced for life. Held: “That the admission as evidence of the written statements made by Taylor at the examining trial was a violation of the rights of the accused under the clause of the sixth amendment to the constitution of' the United States, declaring that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witness against him.”

In our judgment these cases contain the better and safer doctrine, as holding sacred the high guaranty for the protection of life and liberty, which should not, except for the best of reasons be weakened, invaded or destroyed. It is not invoking the old maxim sometimes abused, “that it is better that ninety-nine guilty persons should escape rather than one innocent man should suffer,” but the maintaining of a plain and valuable right vested in every one accused of crime.

There is another reflection which we ought not to pass by. In the case at bar, the state made the showing at the trial, that the desired witness could not be found by the officers and was then beyond the jurisdiction of the court. By adjournment or continuance of the case to a future time, she might have been found and produced in court. The state should not be given undue advantage of a prisoner, and it may be, that in the hurried examinations which sometimes are practiced before magistrates in a large city, a cross-examination is greatly restricted, while, if the witness appears in the court of common pleas, the latitude of a full cross-examination, might properly increase the legitimate opportunities for a fair trial and an acquittal There, the processes of sifting the evidence and ascertaining the truth are far superior to those available before a justice of the peace, or other examining magistrate. Hence, great caution should be exercised in allowing one to repeat at the Anal trial what a material witness may have said on the former hearing, and it should not be done except in clear and well recognized cases of necessity.

Entertaining these views, we conclude, that the admission of the Darby evidence by the court of common pleas was error, and that it was not error to set aside the verdict which followed its admission; and the exception of the state is overruled.

Exception overruled.

Btjrket, Speak, Dávis and Si-iauok, JJ., concur.


text:
    Hough v. The Dayton Manufacturing Company et al.

      Attachment does not apply to non-resident of state, when — Section 5521, Rev. Stat., as amended — Invalidity of act under law not in force.

    The act amending section 5321 of the Revised Statutes, which was passed by the general assembly on the 26th of April, 1898 (repealed in 1900), did not make non-residence of this state a ground of attachment, and therefore, an order of attachment issued on that ground, while said amended section was in force, is invalid.
    (Decided June 24, 1902.)
    Error to the Circuit Court of Franklin county.
    The action in the lower court was brought by the defendant in error, The Dayton Manufacturing Company, to enforce the statutory liability of the stockholders of the Columbus, Sandusky & Hocking Railway Company, of which company the plaintiff below claimed to be a creditor in the sum of $405.58. The petition was filed on the 4th day of January, 1899.
    On the 15th day of March, 1899, the plaintiff amended its petition, making B. A. Hough, now plaintiff in error, a party defendant, alleging therein that, at the time the indebtedness of plaintiff was incurred, he was the owner and holder of ninety-nine shares of the stock of said railway company, and that he, with the other stockholders were liable to the plaintiff and other creditors of that company for the payment of the indebtedness. The insolvency of the railway company was averred in the petition. On the same day, the plaintiff in error was made defendant, March 15, 1899, an affidavit was also filed in the case which is as follows:

      “Court of common pleas, Franklin county, Ohio. The Dayton Manufacturing Company, a corporation, plaintiff, v. The Columbus, Sandusky & Hocking Railway Company, a corporation, William H. Albery et al. Affidavit for attachment. Filed March 15.
    “Edmond B. Dillon, being first duly sworn, deposes and says: That he is one of the attorneys for the plaintiff herein; that the defendant, The Columbus, San-dusky & Hocking Railway Company, is a corporation organized and existing under the laws of the state of Ohio; that the defendant, Henry W. Putnam, was at the time the indebtedness to the plaintiff was incurred, as stated in the petition herein, to-wit, on or about the 14th day of May, 1895, has ever since been, and is now a stockholder of said defendant corporation, The Columbus, Sandusky & Hocking Railway Company, and was then, has ever since been and is now the owner and holder of four thousand shares (4,000) of the capital stock of said corporation, of the par value of $400,000; that the defendant, B. A. Hough, was at the time the indebtedness to the plaintiff was incurred as stated in the petition, to-wit, on or about the 14th day of May, 1895, has ever since been and is now a stockholder of said corporation, and was then, has ever since been and is now the owner and holder of ninety-nine (99) shares of the capital stock of said corporation, of the par value of $9,900; that this action is brought to enforce the liability of the stockholders of said corporation under the constitution and laws of the state of Ohio for the payment of the debts of said defendant corporation; that the claim sued on against said defendant, Henry W. Putnam, is his liability as such stockholder for the debts of said defendant corporation; that the claim sued on against said defendant, B. A. Hough, is his liability as such stockholder for the debts of .said defendant corporation; and that said claim against said Henry W. Putnam is just and said claim against said B. A. Hough is also just. Affiant believes that the said plaintiff ought to recover from the said defendant, Henry W. Putnam, in plaintiff’s own behalf, and in behalf of the other* creditors of said corporation, the sum of three hundred thousand dollars ($300,-000), with interest; and that said plaintiff ought to recover from the said defendant, B. A. Hough, in plaintiff’s own behalf and in behalf of the other creditors of said corporation the sum of seventy-five hundred dollars ($7,500) with interest. The defendants, Henry W. Putnam and B. A. Hough are each nonresidents of the state of Ohio.
    “The said indebtedness and liabilities of said.’ defendants, Henry W. Putnam and B. A. Hough were respectively existing debts and contracts on the 26th day of April, 1898, and for more than two years prior thereto.
    “Affiant further says he has good reason to believe, and does believe, that the Cincinnati Brewing Company, a corporation, has property of the defendant, Henry W. Putnam, in his possession, to-wit, money, credits and indebtedness due and owing by said The Cincinnati Brewing Company to the said Henry W. Putnam.
    “Affiant further says that he has good reason to believe, and does believe, that the Security Title & Trust Company, a corporation, as receiver of the Turney & Jones Company, has property of the defendant, Henry W. Putnam, in its possession, to-wit: money, credits and indebtedness due and owing to the said Henry W. Putnam.
    “Edmund B. Dillon.

      “Sworn to before me and subscribed in my presence by said Edmond B. Dillon, this 14th day of March, A. D. 1899. “William G. Brossman,
    “Notary Public, Franklin County, Ohio.”
    On this affidavit, a writ of attachment was issued by the clerk of the court, and the same was levied on lands of plaintiff in error in Perry eounty, Ohio.
    In June following the levy, B. A. Hough, plaintiff in error, refusing to enter an appearance in the action, but appearing for the purposes of the motion only, asked the court to discharge the attachment for the following reasons:
    1. The affidavit upon which said attachment was issued is insufficient in law.
    2. The affidavit is untrue.
    3. The liability sought to be enforced in this action is not a debt or demand arising upon contract, judgment or decree, or for causing death,by a negligent or wrongful act.
    4. The action of plaintiff is not one in which an attachment can be lawfully issued under the laws of this state against a nonresident, upon the ground of such nonresidence.
    In October, 1899, this motion came on for hearing and the same was overruled, to which ruling Hough excepted. The circuit court affirmed the order of the court of common pleas, and the case is here to reverse the judgments of both courts, as to the attachment proceedings.

      Mr. Lawrence Maxwell, Jr., and Messrs. Donohue & Spencer, for plaintiff in error, cited and commented upon the following authorities:
    Section 5521, Rev. Stat.; Auerbach v. Swadner, 10 Circ. Dec., 435; 18 C. C. R., 389; Woodbury v. Berry,
      18 Ohio St., 456; Sayles v. Bates, 15 R. I., 342; Reciprocity Bank, In re, 22 N. Y., 9; Witters v. Sowles, 35 Fed. Rep., 640; Robinson v. Turrentine, 59 Fed Rep., 554; Kerr v. Urie, 86 Md., 72; Tabor v. Mining Co., 14 Fed. Rep., 636; Bliss Code Pl., Secs. 128, 152; Adkins v. Loucks, 107 Wis., 587; McConn v. Railroad Co., 50 N. Y., 176; Bidleson v. Whytel, 3 Bur., 1545; Wyman v. Mitchell, 1 Cow., 316; Paper Co. v. O’Dougherty, 32 Hun, 255; Hawkins v. Furnace Co., 40 Ohio St., 507; Andrews v. Bacon, 38 Fed. Rep., 777; Electric Fixture Co. v. Light & Power Co., 8 Dec., 134; 6 N. P., 218; Colwell v. Bank, 2 Ohio, 229; Taylor v. McDonald, 4 Ohio, 149 ; Humphrey v. Wood, Wright, 566; Waples on Attachment, 27.

      Mr. C. E. Burr and Mr. W. O. Henderson, for defendant in error, argued orally..

      Mr. E. B. Dillon, for defendant in error, cited and commented upon the following authorities:
    Section 5521, Rev. Stat.; Auerbach v. Swadner, 10 Circ. Dec., 435; 18 C. C. R., 389; Electric Fixture Co. v. Light & Power Co., 8 Dec., 134; 6 N. P., 218; Gas Company v. Collins, 10 Circ. Dec., 475; 19 C. C. R., 247; Dabney v. Pappenheimer Co., 10 Circ. Dec., 803; 20 C. C. R., 707; Kennedy v. Bank, 97 Cal., 93; Kirtley v. Holmes, 45 W. L. B., 231.
   Price, J.

The motion filed in the lower court to discharge the attachment levied on the property of plaintiff in error, presented two important questions arising out of the provisions of the attachment law found in Sec. 5521, Revised Statutes, as amended April 26, 1898, and the same questions were in controversy in the circuit court, and have been brought to this court by petition in error.

The ground upon which an attachment was demanded and issued against B. A. Hough, plaintiff in error, was, that he was at the time of filing the affidavit, a nonresident of the state of Ohio; and to bring the right to the writ within the last clause of the above section, the affidavit set out the fact that when the debts were incurred by the railroad company, Hough owned and held ninety-nine shares of its stock, and still owned them when the action was brought iii the lower court, in which writ of attachment was issued, and that the Dayton Manufacturing Company, a defendant in error, for itself and the other creditors had brought the action to enforce the liability of the various stockholders, including the plaintiff in error. It was claimed in the courts below, as it is here, that when defendant in error, The Dayton Manufacturing Company, commenced its action against the stockholders of the insolvent railroad company, and also when, by amended petition, the plaintiff in error, was made a defendant in the action, nonresidence of the state, was not a ground of attachment; and also, that the holder of stock sustained no contractual relation to the creditors of the corporation, and that the plaintiff’s debt or demand, as to the stockholders, did not arise upon contract, judgment or decree, and therefore not a claim or demand for which an attachment might be issued, on the ground of nonresidence of the state.

The first question requires an examination of the statute in force when the action was commenced in the court of common pleas, and the attachment issued in the case by the clerk of that court.

The petition was filed on the 4th of January, 1899, and was amended, bringing in the plaintiff in error March 15, 1899. The affidavit was filed, and a. writ of attachment issued on the same day, and a levy was made soon after that time. From these dates, it is shown, that section 5521, as amended April 26, 1898 (93 O. L., 318), was in force.

Previous to the amendment, in stating the first ground upon which the plaintiff may have an attachment, the language was:

“1. When the defendant, or one of several defendants * * * is a nonresident of the state.”

The section, as amended in 1898, provides : “1. When the defendant, or one of several defendants, is a foreign corporation, except as provided,” etc.

By the language of that amendment, nonresidence as a ground of attachment was wholly omitted, and it thus stood and was in force when the attachment involved was procured. Taking the plain and ordinary reading of the law' then in force, there was no foundation for the w'rit of attachment, because of the non-residence of the defendant below. If we had no knowledge of previous legislation on the subject, we naturally wrould understand, that for nonresidence of the state, there existed no right of attachment, and therefore the attachment proceedings in this case, were invalid. But it is argued with some degree of force, that the words or clause as to nonresident debtors, were, or-was omitted by oversight, or through some mistake, and that the legislature did not intend, when enacting the amendment, to omit those words; and claiming this, wre are asked to construe the section as to nonresidents as if the words had been retained in the amendment. One of the arguments for this right of construction is, that the last clause of the. amended section, as did the original, provides: “But an attachment shall not be granted on the ground that the defendant is a foreign corporation, or nonresident of this state, for any other claim other than a debt or'demand arising upon contract, judgment or decree, or for causing death or a personal injury, by a negligent or wrongful act” As a strong re-enforcement to this clause, we are referred to Sec. 5523, which was- not changed by the act of April 26, 1898. The latter section reads: “When the ground of the attachment is that the defendant is a foreign corporation, or a nonresident of this state, the order of attachment may be issued without an undertaking; * * *.”• It is said that this Section and the above clause quoted from Sec. 5521, cast light upon legislative intent to not sacrifice “nonresidence,” as a ground of attachment, because if such a sacrifice was intended, the quoted provisions would have been modified or changed accordingly.

We recognize the rule, that where a statute is of doubtful meaning, other statutes in pari materia, will be looked to in aid of construction. But, we cannot forget, that Sec. 5521 alone provides the ground's of an attachment; and Sec. 5523 provides in what case an undertaking may not be required, and if required, its character and mode of approval. If, on the face of the amendment in question, there is doubt of its meaning, or even as to its subject-matter, through want of proper punctuation, or, confusion in the order of words, and the doubt can be removed and the intent gathered by reference to cognate provisions, it would be our duty to use them in aid of construction to learn and carry out the legislative intent. But there is nothing doubtful, ambiguous, or confused in the wording of the provision. There is no doubt of the meaning of every word used, and that each word is in its proper place, and the entire statement of the ground of attachment perfectly clear. In such case there is no room for construction. The omission was apparently intended, because the most apt words were used to indicate it. Can this court legislate and supply a ground for attachment hot-in the statute, on the mere presumption that it was omitted by the mistake of the general assembly? A mistake of legislative judgment, or, a mistake in drawing the bill constituting the amendment? The only method known to us, by which such mistake could be shown, would be to hear parol evidence — a thing not permissible.

An illustration might be pertinent here. Up to the year 1878 the last clause of Sec. 5521, read: “But an attachment shall not be granted on the ground that the defendant is a foreign corporation, or a nonresident of this state, for any other claim than a debt or demand arising upon contract, judgment or decree.” In 1878 the general assembly added the following: “or for causing death or a personal injury by a negligent or wrongful act.” (75 O. L., 712.)

If the general assembly of 1898 had also omitted this addition, could we assume that the omission of this clause, which had a place in the statute for twenty years, was merely through mistake, and that' it was the legislative intent to include the clause?

There is another section of the attachment law that demands recognition here. It is See. 5522, naming the requisites of an affidavit for attachment. It reads:

“An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in the preceding section, when there is filed in his office an affidavit, of the plaintiff, his agent, or attorney, showing:

“1. The nature of the plaintiff’s claim.

“2. That it is just.

“3. The amount which the affiant believes the plaintiff ought to recover; and,

“4. The existence of any one of the grounds for an attachment enumerated in the preceding section

The preceding section (5521), as amended and in force when the action was commenced and attachment issued, did not make nonresidence of this state a ground of attachment, and while the affidavit alleges it as a basis for the writ or order, it was not one of the grounds enumerated in the preceding section. For want of such ground the clerk had no authority to issue the order. How could the clerk of the court supply an absent ground of attachment except by parol evidence as to what was intended?

It is through a sufficient affidavit in a proper action, and by virtue of positive, — not negative law, that. the court can gain jurisdiction of the property of a defendant by attachment. There was no positive law for attaching the property of a nonresident in this case, and authority for so doing is not made up by law of a negative character found in the last clause of 5521, and the provision for undertaking, as found in Sec. 5523.

In the Hathway case, 4 Ohio St., 383, the court says on page 385:

“That it is a maxim of interpretation, that, in the absence of ambiguity, no exposition shall be made, which is opposed to the express words of the instrument. The language of a statute must be taken in its usual and ordinary signification, and a court is not allowed to make an interpretation contrary to the plain and express letter of the law. Where the sense óf a statute is evident, and expressed in clear and precise terms, not leading to conclusions which are absurd and at war with the manifest intention of the law, to go off upon a conjecture, and travel in quest of extraneous matters, in order to restrict or enlarge its operation, would be a dangerous and gross perversion of the law itself.”

In the case of Woodbury & Co. v. Berry, 18 Ohio St., 456, this court held:

“Where the words of a statute are plain, explicit and unequivocal, a court is not warranted in departing from their obvious meaning, although from considerations arising outside of the language of the statute, it may be convinced that the legislature intended to enact something different from what it did in fact enact.”

We quote as entirely appropriate here, the language of Brinkerhoff, J., found on pages 461 and 462 of that case, where, speaking of the statute then under consideration, he says:

“These considerations, and a comparison of the provisions of these sections of the statute as they stand with those of the statute which was superseded and repealed by the code of civil procedure, not only suggest the conjecture, but convince us of the fact, that the words, ‘other than the county/ or some equivalent phrase, must have been by accident or oversight of the draftsman of the bill to establish a code of civil procedure, or of the clerk who engrossed it, omitted before the words, ‘from which the execution issued’ in Sec. 455. But, notwithstanding all this, ita lex scripta est. The language as it stands is clear, explicit and unequivocal. It leaves no room for interpretation, for nothing in the language employed is doubtful. We are satisfied, by considerations outside of the language, that the legislature intended to enact something very different from what it did enact. But it did not carry out its intention, and we cannot take the wfll for the deed. It is our legitimate function to interpret legislation, but not to supply its omissions.”

These are but the expression of many authors and authorities on the subject of statutory construction.

But it has been argued, that if this view of the law must be taken, the attachment is saved by Sec. 3 of the act of April 26, 1898, which section is: “This act shall not extend to or affect any existing debt, contract, note or judgment.”

It is very evident these words do not mean an existing cause or ground of attachment, and we think they are to be understood in connection with the first three sections of the amendatory act of April 26, 1898, which sections provide some changes in the law of exemptions from execution, and that the changes wrought by the amendment in this respect, should not extend to or affect any existing debt, contract, note or judgment. Manifestly, this saving section (3), relates to a then existing cause of action, or one reduced to judgment, and not to a cause or ground of attachment contained in the affidavit.

The fourth section of the act provides: “That this act shall take effect and be in force from and after its passage.” Unless there is an exception provided for, in this act or some general law, the former statutes, so amended are superseded. It seems to us that the exception made in Sec. 3, relates to the right or rights of exemptions, and that a then existing “debt, contract, note or judgment” should not be affected by the enlargement or change in the right of exemptions. These are proper words for the purpose, and they are not the proper words to save a ground of, or right to an attachment which existed when the amendatory act was passed. If it had been intended to preserve to a creditor a ground of attachment then existing, other, further, and more apt words for that purpose would have been used. While the existing “debt, contract, note or judgment” is not affected, the former ground of attachment — nonresidence, disappeared.

We have looked still further for saving grace in this case, and we find that Sec. 79, Revised Statutes, is of no avail. It is not alleged in the affidavit that the plaintiff in error was a nonresident of this state when the act of April 26, 1898, was passed, and therefore, no then existing “cause of proceeding” * * * appears in the affidavit that invokes aid from Sec. 79.

We are of opinion that the courts below erred in sustaining the attachment in this case, and their judgments are reversed, and the attachment is discharged.

This disposition of the case renders it unnecessary to decide the other question as to the relation which a stockholder sustains to a creditor of the corporation, —whether contractual or otherwise.

Judgment reversed.

Rurket, Spear, Davis and Shauck, JJ., concur.


author: Shauck, J.

text:
    City of Cincinnati v. Trustees of the Cincinnati Hospital.

      Power to issue bonds for city hospital is corporate power — Section 1 of article 13 of constitution — No exception on account of emergency — Act of April 29, 1902, regulating Cincinnati Hospital, is void — Constitutional law.

    1. The power to issue bonds to raise funds for the repair and extension of a hospital belonging to a city, and, to levy a tax upon all tbe taxable property within such city, for their payment, is corporate power.
    2. The conferring of such power by special act is inhibited by section 1 of article 13 of the constitution, which ordains that “The general assembly shall pass no special act conferring corporate powers,” and to the effectiveness of the inhibition it is immaterial whether the act designates as the donee of such power the muuicipality itself, or an agency through which it ordinarily acts, or such extraordinary agency as a board of trustees.
    3. The comprehensive terms of this section do not admit of any exception on account of any supposed or real emergency.
    4. The act of April 29, 1902, entitled “An act to supplement an act entitled ‘An act regulating the Commercial Hospital of Cincinnati’ (now the Cincinnati Hospital), passed March 11, 1861,” is void because repugnant to this section of the constitution.
    (Decided June 24, 1902.)
    Error to the Circuit Court of Hamilton county.
    The plaintiffs in error were plaintiffs in the court of common pleas where they brought suit against the defendants in error, alleging that the defendants, as trustees of the Cincinnati Hospital, were about- to issue bonds of the city of Cincinnati, in the sum of $500,-000, in the exercise of authority assumed to have been conferred upon them by the act of April 29, 1902, entitled “An act to supplement an act entitled ‘An act regulating the Commercial Hospital of Cincinnati,’ now the Cincinnati Hospital, passed March 11, 1861, volume 58 of Ohio Laws, page 151;” and further alleging that the act is unconstitutional for the two reasons that it is a special act conferring corporate power, and that it is a law of a general nature, hut not of uniform operation throughout the state, and that the issuance of the bonds and the expenditure of the money realized would he a misapplication of public funds and an abuse of the powers of the defendants as such trustees, and pray that the defendants might he enjoined from issuing the bonds. The scope and purpose of the act sufficiently appear from the following :
    Section 1. The board of trustees, appointed under the provisions of the act to which this is supplementary, are authorized and empowered to make additions to and alterations and improvements in the hospital or branch hospitals in control of said board, to construct new hospitals or branch hospitals, to provide for the equipment thereof, and to require by purchase, appropriation proceedings, or otherwise, on behalf of the city of Cincinnati real estate within and without the limits of said city for hospital and branch hospital purposes.
    Section 2. Whenever it is necessary, in the opinion of said board to appropriate real estate for the purposes aforesaid, it is hereby authorized to commence and conduct, in the name of such city, proceedings therefor under and according to chapter three, division seven, title twelve of the Revised Statutes of Ohio, and the acts amendatory and supplementary thereto; and no concurrent action of any board or officer shall he necessary, and all the power with respect to said proceedings that are vested in any other board or officer of said city shall be vested in and may be exercised by said board of hospital trustees.
    The eighth subdivisions of section three define the procedure to be observed by the trustees in making contracts for the construction or reconstruction of any building in whole or in part. The eleventh section provides for the sale of real and personal property in the control of said trustees and not required for hospital purposes, and for the payment of tlie proceeds of such sales to the trustees of the sinking fund of said city to be placed to the credit of a fund for the final redemption of the bonds whose issuance the act assumes to authorize.
    Section 5. To provide a fund with which to pay the cost and expense of the improvements authorized by this act, said board of trustees is hereby authorized and empowered to issue bonds, in the name of the city of Cincinnati and under the corporate seal thereof, in the sum not to exceed five hundred thousand ($500,000) dollars; said bonds shall be made payable in not less than ten years nor more than forty years from the date of their issue, bearing interest not to exceed three and one-half per cent, per annum, payable semi-annually, and shall be signed by the president of said board of trustees, and the mayor of the city of Cincinnati and be attested by the auditor of said city, and shall be secured by the pledge of the faith of said city and by a tax which it shall be the duty of the said board of trustees to levy or cause to be levied annually upon all the taxable property of said city, and to certify or cause to be certified to the county auditor, in an amount sufficient to pay the interest upon said bonds and to provide a sinking fund for the final redemption thereof; said tax shall be in addition to the amount now authorized by law to be levied for municipal purposes. Said bonds shall be known as “Hospital Improvement Bonds,” and the proceeds thereof shall be paid out by the treasurer, of such city upon warrants drawn by the auditor or other auditing officer of said city, upon the order of said board of trustees.
    Section 6. This act shall take effect and be in force from and after its passage.
    The action was brought by the corporation counsel upon the request of. a taxpayer, not only to enjoin the issuance of the bonds but also to enjoin the expenditure of any money under the provisions of the act. The defendants filed an answer denying the legal conclusions stated and implied in the petition respecting the unconstitutionality of the act, and containing the following allegations:
    Further answering the defendants say that there has existed for a long time, and still exists, in said city of Cincinnati, a local and temporary emergency which justifies and requires the said act of April 29, 1902, entitled “An act to supplement an act entitled ‘An act regulating the Commercial Hospital of Cincinnati’ (now the Cincinnati Hospital), passed March 11, 1861,” in that the said Cincinnati Hospital and its branches located in said city of Cincinnati, are wholly inadequate and insufficient to accommodate the sick in said city and to meet the purposes and objects for which said hospital was originally built; that owing to deterioration, decay, lack of repairs and otherwise, and owing to the growth of the city of Cincinnati since April 3, 1868, an issue of $500,000 of bonds as provided for in said act of April 29,1902, is absolutely necessary to enable said hospital to meet the urgent demands existing in the city of Cincinnati at the present time; that no such emergency or necessity exists in other parts of the state which requires like legislation applicable to such other parts of the state.
    A demurrer to this answer having been interposed by the plaintiff it was overruled by the court of common pleas, and the plaintiff not desiring to plead further a final judgment was rendered dismissing the petition. On a petition in error the judgment of the court of common pleas was affirmed by the circuit court.

      Mr. Charles J. Hunt, corporation counsel, for plaintiff in error.

      Mr. William H. Jackson, attorney for defendants in error.
   Shauck, J.

Counsel seem to agree that whether the Cincinnati Hospital was originally a state or a municipal institution it is now, by virtue of numerous legislative enactments, an institution of the" city. If its character is now municipal, as it appears to be, the act of April 29, 1902, is not within the condemnation of Wasson v. The Commissioners, 49 Ohio St., 622, and Hubbard, Treasurer, v. Fitzsimmons, 57 Ohio St., 436, which determine that an institution of the state for the accomplishment of its general purposes must be established and supported out of its general revenues, such purposes not authorizing a local imposition.

Regarding the hospital as a municipal institution, the act referred to is said to be repugnant to the first section of the thirteenth article of the constitution which ordains that “The general assembly shall pass no special act conferring corporate powers.” No artifice is employed to limit the operation of this act to Cincinnati by a description or classification from which all other municipalities of the.state are excluded. Its operation is expressly limited to Cincinnati, and its special character is not disputed. We do not find in the brief of counsel for the defendants in error any attempt to give a definition of the phrase “corporate powers” which would not include some of the powers which were sought to be conferred by this act, nor any exposition of the subject which would lead to the conclusion that this act is valid if the words of this provision of the constitution are used in their ordinary sense. So far, therefore, as principles are concerned, we have the plain provisions of the fifth section of this act to authorize the issuance of bonds in the sum of $500,000, and the levying of a tax upon the property of the people of Cincinnati to pay those bonds with accruing interest; and the subject may be disposed of by the proposition, obviously sound and incontestably established by repeated decisions, that the power of taxation when conferred upon a municipality is “corporate power.” Among such decisions are the State ex rel. v. City of Cincinnati, 20 Ohio St., 18; State v. Pugh, 43 Ohio St., 98; Railway Company v. Martin. Treasurer, 53 Ohio St., 386.

But the insistence of counsel is, rather, that former decisions of this court require the conclusion that the act under consideration should be permitted to operate as though it were reconcilable with the constitutional limitation quoted. The first of the cases cited is The State ex rel. v. Davis et al., 23 Ohio St., 434. The legislation there considered provided for the regulation and management of the hospital whose improvement and enlargement are contemplated by the present act. Upon examination of the brief of counsel for the state in that case-it appears that it was not thought that the power of taxation was conferred by the act whose validity was there challenged. It provided for the management and operation of an institution which had been erected with funds raised by taxation under favor of earlier enactments. In the opinion the court expressly excluded from its consideration the validity of the act by which that taxation had beén authorized. Since the court did not then decide the point which is most conspicuous in the present case we have no occasion for comment upon those which it did decide.

Counsel also cite the opinion of this court in the City of Cincinnati v. Taft et al., 63 Ohio St., 141. Brief as is that opinion it is much too long, and it far exceeds the requirements of the case in which it was written, if it encourages belief in the validity of an act of the character of this. Nothing was there decided except that there may, by special act, be conferred upon the city authority for the renewal and-ultimate payment of its bonds which are valid because purchased by the holder in reliance upon the decision of this court affirming the authority to issue them. To that precise point the syllabus is limited. Much care was bestowed on the opinion for the purpose of excluding the inference that the doctrine of the case might be extended to special acts for the creation of a new indebtedness to be discharged by additional municipal taxation.

Counsel for the defendants in error further insist that a conclusion favorable to the validity of this act results from the application of the doctrine of Platt, a taxpayer, etc., v. Craig et al.; and Jones, Mayor, v. The State of Ohio ex rel., 66 Ohio St., 75, it being assumed that in the view there taken a local and temporary emergency may arise in a municipality to meet which the general assembly may by special act confer corporate power. To make the doctrine thus imputed to that case available in this the answer was filed alleging the existence of such local and temporary emergency. A sufficient answer to this contention'is that such doctrine is not decided in nor encouraged by the case cited. The second proposition of the syllabus and all the observations in the opinion have express reference to Sec. 26 of Art. 2 of the constitution. It was obvious not only to the member of the court who wrote the opinion in that case, but to all of us, that the unconditional terms of the inhibition against special acts conferring corporate power would not admit of any exception. Furthermore, we were well aware that in the constitutional convention it was proposed to amend Sec. 1 of Art. 13, by adding to the words “The general assembly shall pass no special act conferring corporate powers” the following qualification: “except for municipal purposes and where in their judgment the objects can be better attained than, under the general law.” The defeat of the proposition to amend and the submission and adoption of the unqualified inhibition are suggestive. It adds to that suggestiveness to observe in the debates that the proposed amendment was defeated because its adoption would admit the omnipotence of the general assembly and continue the former evils from which an escape was much desired, and that this would necessarily result because the submission to the judgment of the general assembly of the necessity for a special act would relieve the courts of the duty of declaring any such acts void. The amendment having failed, adjudications upon this subject should not proceed as though it had been adopted.

The intervention of a' board of trustees with authority to issue the bonds to raise the funds required for the contemplated extension of the hospital, and ' to levy or cause to be levied a tax upon all the taxable property of the city for their redemption, cannot be regarded as relieving the act from the inhibition of this provision of the constitution. The inhibition is against the granting of corporate power by a special act and the name under which the donees of the power may be designated cannot be material. The act contemplates that the trustees shall be the agents of the city, vested with authority to exercise the power of taxation with respect to all the taxable property within its limits. The trustees are without individual interest in the hospital or in the purpose to be accomplished. To regard them as vested by the act with a corporate character distinct from that of the city whose powers they are to exercise would relieve the act of none of the objections urged against it since in, that view, the act would create a new corporation or confer the power upon an existing corporation, and these are ends wdiich cannot be reached by a special act. This question wras determined in accordance wdth these view^s by the unanimous decision of this court in Railway Company v. Martin, Treasurer, 53 Ohio St., 386.

It is not necessary to determine the soundness of the proposition urged by counsel for tlie plaintiff in error that the act is also repugnant to the 26th section of the second article of the constitution, wdiich ordains that “All laws of a general nature shall have a uniform operation. throughout the state,” but there is propriety in adverting to that section in connection with the section already considered. They were in their combined effect admirably adapted to cure the legislative evils which resulted from the énactment of many laws which challenged the interest of a single representative, or representatives of a single county, but secured the votes of a majority in consideration of a return of the supposed favor. They were adopted to the end that the state should be governed by a system of laws to be passed by a majority of the legislative votes all of which should be prompted by approving opinions. The words of Ranhey, J., in Atkinson v. Railroad Co., 15 Ohio St., 21, concisely state the evil and the remedy:

“Constitutional provisions would be of little value if they could be evaded by a mere change of forms. These provisions of the constitution are too explicit to admit of the least doubt, that they were intended to disable the general assembly from either creating corporations, or conferring upon them corporate powers, by special acts of legislation. It was intended to correct an existing evil, and to inaugurate the policy of placing all corporations of the same kind upon a perfect equality as to all future grants of power; of making such laws applicable to all parts of the state, and thereby securing the vigilance and attention of its whole representation; and finally, of making all judicial constructions of their powers, or the restrictions imposed upon them, equally applicable to all corporations of the same class. We must give such a construction to the constitution, as will preserve its great leading objects intact; and we now proceed to inquire, whether this enactment can stand consistently with the full and just effect of these provisions.”

It was never possible that legislation so enacted should represent the combined'wisdom of the senators and representatives. It is now an offense against the constitution.

The struggle for legislative supremacy over constitutional limitations should have ended a century ago. Formerly there was openly asserted a doctrine which, if sound, would give validity to legislation of this character against such constitutional limitations upon legislative power as we are considering, viz.: that constitutional limitations upon the exercise of legislative power are but admonitions to the legislative department without efficacy to annul enactments inconsistent with them. In 1803 that doctrine was completely overthrown by an authority which no one has challenged from that day to this, and upon reasoning so conclusive that it has evoked the universal approval and admiration of generations of students of constitutional law:

“The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if-those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary .means, or it is on a level with (ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of. the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

“If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact Avhat was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If tAvo laws conflict with each other, the courts must decide on the question of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution ; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be construed, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

“This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction.”

Those who are charged with the exercise of judicial power in a constitutional government cannot too often advert to Marbury v. Madison, 1 Cranch, 137. The foregoing extended quotation from the opinion of Chief Justice Marshall.in that case, is justified because of its demonstration that with respect to the adjudication of questions of this character, that which is sometimes urged and regarded as mere compromise or concession is, in fact, a dereliction of duty. Since the soundness of that doctrine is universally admitted, its effect should not be evaded.

Judgments of the circuit court, and of the court of common pleas reversed, and cause remanded to the court of common jileas with direction to sustain the demurrer.

Burket, Spear, Davis and Price, JJ., concur.