author: Shauck, C. J.

text:
    Wrede v. Richardson, Auditor, et al.

      Presentation of bills, passed by general assembly, to governor — > Proof of presentation — Record in oMce of governor admissible— Enactment can not be impeached by parol evidence — Evidence of disability of governor inadmissible, when — Article 3, Section ' i¡, of Ohio constitution.

    1. An entry in a record which is kept in the office of the governor pursuant to a requirement of law and with his acquiescence used to perpetuate evidence of the presentation to him of bills which have been passed by both houses of the general assembly, the entry being made by a subordinate of the governor in the discharge of duties prescribed by him and showing the presentation of an identified bill on a day named, is competent and sufficient to prove such presentation.
    2. The enactment of an officially promulgated statute can not be impeached by parol evidence.
    3. The governor not having relinquished the duties of his office in view of a disability recognized by him, and there being no authorized procedure to ascertain that a disability has intervened, it is not competent upon an issue as to the valid enactment of a statute to show that upon the day of its presentation to him and for ten days thereafter he was, by reason of illness, disabled to receive or consider it so as to give effect to the provision of the 15th section of the 3d article of the constitution that in case of the disability of the governor the duties of his office shall devolve upon the lieutenant governor.
    (No. 10548
    Decided November 19, 1907.)
    Error to the Superior Court of Cincinnati.
    The plaintiff, who was engaged in the business of trafficking in intoxicating liquors, filed his petition in the superior court against the defendants, who are the auditor and treasurer, the taxing officers, of Hamilton County, for a decree enjoining them from assessing and collecting a tax upon his business in excess of $350 for the year commencing May 28, 1906, a tax of that amount being assessable under former legislation of admitted validity, the excess of $650 above that sum, which the auditor proposed to assess, having no authority except the Act of March 28, 1906 (98 O. L., 99), whose constitutional validity is challenged in the present case upon the ground alleged in the petition, that it was never presented to the governor as required by the amendment to Article II, Section 16, of the constitution adopted in November, 1903. The case proceeded to trial upon an issue as to the presentation to the governor of the bill after it had passed both houses of the general assembly. The court below admitted the record evidence upon the subject of presentation, and excluded all oral evidence offered by the plaintiff to sustain the allegation of his petition that the bill had not been presented to the governor. It was known in the legislative proceedings as House Bill No. 24. It was not signed by the governor, but the superior court found the following facts:
    “On consideration thereof the court does find that there appears in the general record of the governor of Ohio, under date of March 28, 1906, the following entry:
    “ 'March 28. H. B. No. 24 presented to governor March 28. Filed, secretary of state, April 10, ’06.’

    “And the court does further find that upon the enrolled copy of said House Bill No. 24, known as the Aikin Law, and published in 98 Ohio Laws, pages 99 to 101, as the same is deposited in the office of the secretary of state of Ohio, there appears the following endorsement:
    “ ‘This bill was presented to the governor March 28, 1906, and was not signed or returned to the house, wherein it originated, within ten days after being so presented, exclusive of Sundays and the day said bill was presented, and was filed in the office of the secretary of state April 10, 1906.
    “ ‘Lewis B. Houck,
    “ ‘Secretary to the Governor.’
    “The court further finds that there appears in a book entitled ‘Minute Book of Acts of the General Assembly messaged to the governor, with his action thereon and disposition thereof,’ kept in the office of the governor of Ohio, under date of March 28, 1906, the following entry:
    “ ‘Mar. 28. H. B. No. 24 became a law on April 10, 1906, lapse of time. April 10. H. M. Shaul.’
    “The court further finds that there appears in the office of the clerk of the senate of Ohio, in a book entitled ‘Governor’s Receipt for Bills,’ at page 27 thereof, the following:
    “ ‘Executive Department, Office of the Governor,
    “ ‘Columbus, Ohio.
    “ ‘Receipt of the following bills is hereby acknowledged: LI. B. No. 24, Mr. Aikin.
    “ ‘C. C. Lemert, Executive Clerk.
    “ ‘Date, March 28, 1906.’
    “The court therefore finds that the foregoing record with respect to the presentation "of H. B. No. 24 to the governor of Ohio is regular and free from fraud.
    “The court does therefore exclude and rule out as incompetent and irrelevant all parol evidence offered herein to contradict said entries in the office of the governor of Ohio, and the endorsement on said bill; and all evidence to show that said entries and endorsement were not individually made by the governor of Ohio, or to show that no official proceedings were had or taken by the governor of Ohio during a period of time commencing March 27, 1906, and ending April 11, 1906; or that during said entire period of time commencing March 27, 1906, and ending April 11, 1906, the governor of Ohio was disabled by illness from performing any of his official duties, or to show that said enrolled copy of said H. B. No. 24, bearing the signature of the president of the senate and speaker of the house -of representatives, was not personally presented to the governor of Ohio, or placed in his custody.
    “It is therefore considered, ordered and adjudged that said House Bill No. 24,'known as the Aikin Law (88 Ohio Laws, pages 99 to 101), is a valid law of the State of Ohio, and that the provisions of said law were and are in full force and effect. And it is therefore considered, ordered and adjudged that the petition herein be and the same is hereby dismissed at the costs of the plaintiff, and that the temporary injunction heretofore granted by the court in Special Term be and the same is hereby vacated and dissolved, and the defendants are restored to all things lost by reason thereof.
    “To each and all of which findings, rulings, orders, judgments and decrees the plaintiff excepts.
    “And thereupon the plaintiff filed his motion in writing, as appears of record, for a new trial, and to set aside the foregoing decision, judgment and decree, and the court having considered the same, does now overrule said motion. To all of which the plaintiff excepts.
    “[Duly certified.]”
    Upon the facts so found the superior court, being of the opinion that the bill had become a law without being signed by the governor, rendered final judgment for the defendants.

      Messrs. Cohen & Mack; Mr. Rufus B. Smith; Mr. Albert Bettinger; Mr. A. J. Freiberg; Mr. Charles A. Groom and Messrs. Rowe, Shuey, Matthews & James, for plaintiff in error.
    The constitutional requirement that every bill shall “be. presented to the governor” requires his physical possession or control of the enrolled bill for the. purpose of affording him an opportunity to examine it and exercise his right of approval, objection, or allowing the bill to become law by failure to approve or object “within ten days after being so presented.”
    The mere reading of the amendment to Article II, Section 16 (95 O. L., 962), shows that the provision that “every bill passed by both houses of the general assembly shall, before said bill can become law, be presented to the governor,” requires the physical possession or control by the governor of the enrolled copy bearing the signatures of the officers of the two houses. It is specifically . provided that “if he approves he shall sign said bill,” and obviously such act requires his physical possession or control of the enrolled bill. It is specifically provided that “if he object he shall not sign and shall return said bill”; obviously this requires the possession or control of the enrolled bill for the purpose of returning it to the house where it originated. It is specifically provided that “if any bill passed by both houses of the general assembly and presented to the governor is not signed and is not returned to the house wherein it originated and within ten days after being so presented, exclusive of Sunday and the day said bill was presented, said bill shall be law in like manner as if signed”; obviously, it is the enrolled bill of which the governor had physical possession or control, for the purpose of signing or returning it, which thus becomes law.
    We are, however, not without judicial decisions upon this subject. The Constitution of the United States and of the other states contain provisions similar to the Ohio provision, the difference being simply as to the time within which the executive is to act.
    In every case in which the question has arisen the construction placed by the courts upon such provisions of the constitution, requires the physical possession or control by the governor of the bill, for the purpose of enabling him to approve or object, and the decision holds that until such opportunity is afforded, the bill is not “presented” as required by the constitution. Supplement, 99 Mass., 636; Opinion of the Justices, 135 Mass., 594; Farwell v. City of Boston, 78 N. E. Rep., 303; State, ex rel. v. South Norwalk et al., 77 Conn., 257; Harpending v. Haight, Governor, 39 Cal., 189; McKenzie v. Moore, 92 Ky., 216; State,

      ex rel., v. Deal, 24 Fla., 293; State, ex rel., v. Michel, 52 La. Ann., 936.
    In Ohio, it is provided who shall present to the governor a bill passed by the general assembly, and how the time and fact of such presentation shall be evidenced.
    Joint Rule 19, adopted by the Seventy-sixth General Assembly of Ohio, on February 11, 1904, and readopted February 1, 1906, by the Seventy-seventh General Assembly, is found in 98 Ohio Laws, at page 401. This joint rule, so far as it applies to the case at bar, is as follows:
    “Rule 19. Each bill and joint resolution shall be first signed by the speaker of- the House of Representatives, and then by the president of the Senate, who shall fix the date and hour thereto, and be by him delivered to the clerk of the Senate, who shall immediately transmit each bill so passed to the governor of Ohio, taking a receipt therefor,” etc.
    As to the method pursued in other states, see: State, ex rel., v. Mead, 71 Mo., 266; People v. Hatch, 33 Ill., 149; Hamilton, Governor, v. State, ex rel., 61 Md., 14; Lankford et al. v. Commissioners, 73 Md., 105; Danielly et al. v. Cabaniss et al., 52 Ga., 223.
    The record provided for in Joint Rule 19 being the only record provided by law of the fact and date of presentation, certainty, to say the least, no conclusive force can be given to any other so-called record; and if in this case there were on file in the office of the clerk of the senate a receipt signed by the governor himself, it might be claimed (although the cases we shall hereafter cite would show that a record as to presentation may be contradicted) that such record was conclusive. But the receipt on file in the office of the clerk of the senate, in the case at bar, is a receipt by a clerk of the governor — not such a receipt as the joint rule provides for- — -and therefore is of no effect, not being a receipt provided by law.
    One of two conclusions, it seems to us, must follow upon reading the record in the office of the clerk of the senate, viz.:
    1st. Either that the record on its face expressly shows that a personal presentation to the governor, as is required by the constitution and joint rule, was not made; or,
    2d. That the record fails to show a personal presentation to the governor.
    If the record required by Joint Rule 19, of the presentation of the Aikin bill to the governor, is silent as to the presentation of that bill to the governor, then the evidence offered is competent. This evidence would not contradict such record, but would supply such omission. Ratcliff v. Teters, 27 Ohio St., 83; Albright v. Payne, 43 Ohio St., 16.
    The signature of “Lewis B. Houck, Secretary to the Governor,” to the endorsement on the enrolled Aikin bill, is of no greater. force than if it were that of any private citizen.
    As the Constitution of Ohio vests in the governor alone the power to approve or veto bills or allow the same to become laws within ten days after same have been presented to him, it would seem to require no argument to prove that this power can not be delegated by the governor, nor can any one bind the governor by act, statement or certificate in relation to such matters. People, ex rel., v. Hatch, 19 Ill., 283; Monroe v. Green, 71 Ark., 527.
    Moreover, the same argument which we have advanced above in reference to the certificate of Mr. Houck to the endorsement on the enrolled bill, applies with reference to this entry in the “Minute Book.” There is no authority in the constitution or statutes of Ohio with reference to such book being kept in the office of the governor, nor is there any semblance of authority for such act. Therefore, even if the “Minute Book” would purport to expressly state the date of the presentation of the bill to the governor, nevertheless such entry would be of no greater force in this case than if made by a private citizen or in a book kept by a private citizen.
    The entry made by Mr. Houck in the general record of the governor is without authority of law. If such entry is authorized by law, it is only prima facie evidence of the facts therein, stated.
    Sections 107 and 108, Revised Statutes, were first enacted-in 1876 (73 O. L., 201), nearly thirty years before the veto power was given to the governor. It may be asserted, therefore, that in their enactments the legislature did not have in mind any action of the governor with respect to bills presented to him. It is also true that if the legislature had supposed these sections sufficient to constitute the evidence of a'presentation of a bill to the governor, it would nof have been necessary to provide a record by Joint Rule No. 19. It is not necessary for us to claim that it would be improper for the governor to order an entry made concerning the presentation of a. bill on his general record; but such an entry, though ordered by the governor to be made, would not constitute the record which the law (Joint Rule 19) requires.
    There must be an “official” proceeding before it can be entered on the record. If the governor never acted in regard to a matter, there was no official proceeding, and there can therefore be no entry. An entry made under such circumstances is unauthorized and void.-
    But even if the entry had been expressly authorized by the governor, it would only be prima facie evidence of the facts therein stated. This plainly appears from the express language of Sections 108 and 5245, Revised Statutes.
    We have already shown, we submit, that the endorsement and the entries were unauthorized, and are of no greater force than if made by a private citizen. We call attention to the cases on the question of presentation or return of a bill by the governor, in which the courts heard parol evidence as to all the facts, notwithstanding the enrolled bill was signed by the governor. In none of them could the questions which the courts considered have been raised unless the facts could have been called to the attention of the courts by parol testimony. This appears from the following brief summary of the cases, viz.: Supplement, 99 Mass., 636; Opinion of the Justices, 135 Mass., 594; Farwell v. City of Boston, 78 N. E. Rep., 303; Commissioners v. Warfield, Governor, 100 Md., 516; People, ex rel., v. Hatch, 19 Ill., 282; McKenzie v. Moore, 92 Ky., 216; Harpend

      ing v. Haight, Governor, 39 Cal., 189; Monroe v. Green, 71 Ark., 527; Hamilton, Governor, v. State, ex rel., 61 Md., 14; Soldiers’ Voting Bill, 45 N. H., 607; State, ex rel., v. Michel, 52 La. Ann., 936; Gardner v. Collector, 6 Wall., 499; United States v. Allen et al., 36 Fed. Rep., 174.
    Wholly ignoring the provisions of Section 108, Revised Statutes, as to records in the governor’s office, and declaring that Joint Rule 19 does not govern the official record to be made concerning the fact and date of presentation of bills, our opponents cite a number of cases for the purpose of sustaining their contention that all public records in Ohio are conclusive of the facts therein stated. These cases have no application to the case at bar. In Ohio, the records of township ■ trustees and county commissioners are treated as judicial records, because such boards have judicial powers conferred upon them, and there is an appeal and error proceeding provided. Beebe v. Scheidt et al., 13 Ohio St., 406; Carpenter et al. v. State, 12 Ohio St., 457; Ratcliff v. Teters, 27 Ohio St., 66.
    The general rule is, and it is adopted in Ohio, that public records are only prima facie evidence. Hagerty, Auditor, et al. v. Huddleston, Hubbard & Co., 60 Ohio St., 149; Reynolds et al. v. Schweinefus, 27 Ohio St., 311; Westerhaven v. Clive, 5 Ohio, 136.

      Messrs. Ireton, Schoenle & Poor, for defendants in error.
    The record of the presentation of the Aikin bill to the governor is a legislative record, which record is conclusive, ar d can not be impeached by parol evidence.
    The constitutional amendment granting to the governor of Ohio the veto power was by the joint resolution of the general assembly (95 O. L., 962), Article II, Section 16, of constitution, and on November 3, 1905, by a vote of the people, made part of the constitution.
    Under this constitutional amendment the governor is part of the law-making power, and when this legislative duty is concluded, and not until then, do his powers, duties and prerogatives as chief executive of this state arise to see that all laws are properly executed. This constitutional amendment clearly shows that the acts and duties of the governor thereunder are legislative and not executive. The cases from other states are all to this effect: People v. McCullough, 210 Ill., 488; Weeks v. Smith, 81 Me., 538; People v. Clayton, 5 Utah, 598; Hovey, Governor, v. State, ex rel., 119 Ind., 395; Miller v. Hurford, 13 Neb., 13; State v. Deal, 24 Fla., 293; Darling v. Boesch et al., 67 Iowa, 702; Hardee v. Gibbs, Auditor, 50 Miss., 802; State v. Cromise, 36 Neb., 835; People v. Bowen et al., 21 N. Y., 577.
    If a bill passed by both branches of the legislature may receive its final approval and validity by being presented to the governor for his consideration, then it follows that such record of presentation is a legislative record.
    This being established, it follows that its evidence is absolutely conclusive, as is the case with every legislative record. Parol testimony is incompetent to prove that this legislative record is untrue, or that it be a fraud.
    There are several cases directly in point, which hold that the record of presentation of bills to the governor is a legislative record, and that it can not be impeached in any manner or for any reason by parol evidence. People v. McCullough, 210 Ill., 488; Weeks v. Smith, 81 Me., 538; State, ex rel., v. Smith, 44 Ohio St., 349; People v. Clayton, 5 Utah, 598; Ritchie v. Richards et al., 14 Utah, 345; State, ex rel., v. Young, Treas., 32 N. J. L., 29; Carr v. Coke, Secy., 116 N. C., 223; Miller v. Hurford et al., 13 Neb., 13; Hovey, Governor, v. State, ex rel., 119 Ind., 395; Bender v. State, 35 Ind., 254; Section 14, Article V, Constitution of Indiana; State v. Kiesewetter, 45 Ohio St., 254; State, ex rel., v. Rabbitts, 46 Ohio St., 178; Railway Co. v. Workman, Admr., 66 Ohio St., 508.
    That the validity of laws is to be tried as a matter of law, and not by parol testimony, is also decided in South Ottawa v. Perkins, 94 U. S., 260; People v. Devlin, 33 N. Y., 269; Harwood v. Wentworth, 162 U. S., 547; Koehler & Lange v. Hill, 60 Iowa, 543; Weyland et al. v. Stover, Treas., et al., 35 Kan., 545; Ames v. Railway Co., 64 Fed. Rep., 165; Field v. Clark, 143 U. S., 649.
    So, when it is provided by the constitution that no special or private law shall be ■ passed, unless public notice thereof shall have been previously given, the record evidence that this notice has been given is conclusive. Freeholders v. Stevenson, 46 N. J. L., 173; Brodnax v. Groom, 64 N. C., 244.
    There are a number of authorities which hold that laws certified and published by the secretary of state are conclusive evidence, and neither parol nor other record evidence is competent. Eld v. Gorham, 20 Conn., 16; Ryan v. Lynch et al., 68 Ill., 160; People v. Devlin, 33 N. Y., 269.
    It was and still is the law of England that the enrolled bill is conclusive evidence of what it contains, of its passage and of its validity; and that it can not, for fraud or any other reason, be subject to trial on parol testimony. Blackstone, 3 Com., 331.
    Rule 19 is part of the joint resolution adopted February 1, 1906 (98 O. L., 399), “to govern the Seventy-seventh General Assembly of Ohio.”
    We claim that the receipt obtained under the joint rule is not the best record evidence that the case will admit of, but that the record of the governor, required by law to be kept, is the best evidence. The joint resolution has not the force, vitality or sanctit)'- of a law, for the reason that resolutions are merely adopted, while laws must be passed by a majority of all members elected.
    It is therefore apparent that the record made under Section 107, Revised Statutes, is superior to the receipt obtained under a joint rule. May v. Rice, Auditor, 91 Ind., 546.
    This joint resolution was not in any way binding upon the governor or his office. It was not a law, and therefore not presented to the governor for his approval; while Section 107, Revised Statutes, passed before the veto amendment took effect, is mandatory upon the governor and his office. Henderson v. Lithographing Co., 2 Col. App., 251.

      Rule 19 is directory, not mandatory. If the governor approve a bill, the non-existence of a receipt would have no effect. If the governor veto a bill, the non-existence of his receipt could not disprove presentation. Likewise the governor’s record, showing affirmatively that the bill was presented, can not be disproved by the negative evidence of a receipt signed at the office of the governor by the executive clerk.
    Public records .required by statute to be kept can not be impeached by parol testimony. Beebe v. Scheldt et al., 13 Ohio St., 406; Carpenter et al. v. State, 12 Ohio St., 457.
    The following cases show that when the record is silent, parol testimony may be introduced to prove the existence of a fact, as this does not contradict the record evidence, it not being a legislative record. Ratcliff v. Teters, 27 Ohio St., 66; Albright v. Payne, 43 Ohio St., 8.
    For the 'same reason,, parol testimony was admitted in Westerhaven v. Clive, 5 Ohio, 136, and in Reynolds et al. v. Schweinefus, 27 Ohio St., 311, in which case also no statute required the record.
    The reason is stated in the case of Dixon et al. v. Sub-District No. 5, 3 C. C., 517, that it is a mere failure of a ministerial act to record what actually was passed or provided for by the respective board or officers.
    Thus, when the law under which an officer is appointed requires his oath óf office to be in writing, parol evidence is not admissible to prove that he did so take his oath of office; but where it is not so required to be in writing, and there is no record of the fact, parol evidence is admissible. Railway Co. v. Day et al., 3 Tex. Civ. App., 353; Pease v. Smith et al., 24 Pick., 122; Farnsworth v. Rand, 65 Me., 19; State v. Green, 15 N. J. L., 88.
    The following examples show that parol testimony can not be introduced to impeach records: Livingston v. Hudson, 85 Ga., 835 Lane v. Sharpe, 4 Ill., 566; Redd v. State, 65 Ark., 475; Manley v. City of Atchison, 9 Kan., 358; Chase et al. v. Savage et al., 55 Me., 543; Bode v. Trimmer, 82 Cal., 513 Greenley v. Quimby, 22 N. H., 335; Monk v. Corbin, 35 Iowa, 503.
    The title of the governor and the exercise of his duties can not be collaterally attacked.
    Plaintiff has introduced parol testimony which he claims proves such a physical and mental disability of the governor that the lieutenant governor should have acted as the governor of this state. We claim that all of this parol testimony is absolutely incompetent for all purposes.
    The attorney general, on his own relation or on the relation of the lieutenant governor, could by a direct proceeding in quo warranto test this question, as is provided by Sections 6762 and 6763, Revised Statutes. State, ex rel., v. Anderson, 43 Ohio St., 196; Attorney General v. Taggart, 66 N. H., 362; Encyclopedia of Law, 2d ed., vol. 8, 823; State v. Carroll, 38 Conn., 449; Fowler v. Beebe et al., 9 Mass., 237; Carleton v. People, 10 Mich., 240; Lambeth v. De Belevue, 24 La. Ann., 394; Hull v. Superior Court, 63 Cal., 174; State, ex rel., C. Smith, 44 Ohio St., 348; Ex parte

      Strang, 21 Ohio St., 610; Molitor v. State, 6 C. C., 263; State, ex rel., v. Craig et al., 21 C. C., 175; Prince et al. v. City of Boston et al., 148 Mass., 285; Coolridge v. Brigham, 1 Allen, 333.

      Quo warranto is the appropriate remedy to enforce the forfeiture of an office or removal for cause, unless another exclusive remedy has been provided by the constitution or statute. Encyclopedia of Law, 2d ed., vol. 23, 632; State, ex rel., v. Ganson, 58 Ohio St., 313.
    When the bill was filed in the office of the governor, we claim that the formalities of the constitution had been completely complied with. Soldiers’ Voting Bill, 45 N. H., 611; State, ex rel., v. Michel, 52 La. Ann., 936.
    This was true in the administration of Governor Pattison. While he did not visit the executive office from the date of his inauguration until the date of his death, it was known that all bills prior to March 17, when left at the governor’s office, would be transmitted to his residence in Columbus, to be approved by the governor; and this custom did not change during the remaining part of the governor’s administration. This custom was inaugurated during the administration of Governor Herrick, and was continued through the administration of Governor Pattison. State, ex rel., v. South Norwalk et al., 77 Conn., 257.
    The Aikin bill was actually presented to Governor Pattison. The burden of proof is on the plaintiff to establish the fact that no presentation was made. No evidence has been offered to contradict the record on this point.

      Mr. Wade H. Ellis, attorney general; Mr. Smith W. Bennett; and Mr. 0. E. -Harrison, of counsel, for defendants.
    It is maintained that it is within the power of the governor to authorize his secretary or executive clerk to receive bills at the executive office. It is within his power to say to the legislature, either expressly or impliedly, by long acquiescence in such a mode of delivery: “Delivery of a bill to my official representative at my office will be considered as a presentation to me.”
    When a statute requires an act to be done by a public official it is universally held that if the act is merely ministerial, requiring the exercise of no discretion, its performance may be delegated. Surely, under this rule, a governor may delegate to an official secretary power to receive a bill from the messenger of the legislature.
    Ever since the amendment of Section 16, of Article II of the Constitution, the custom and joint rule of the legislature has been for the clerk of the senate to deliver bills at the office of the governor and take the receipt of the clerk therefor. This custom has been acquiesced in and the rule established and followed by two legislatures and two governors. State, ex rel., v. South Norwalk et al., 77 Conn., 257; Harpendinger v. Haight, Governor, 39 Cal., 189; Soldiers’ Voting Bill, 45 N. H., 611; Hamilton, Governor, v. State, ex rel., 61 Md., 14; State, ex rel., v. Michel, 52 La. Ann., 936.
    If presentation must be to the governor personally, why should not the return of a bill to either house be by the governor personally?

      If a strict, literal compliance with every constitutional requirement, however minute, is necessary to the validity of a law, and the courts are bound to hold that nothing was done but what appears in the legislative journals, it is easy to demonstrate that not a single statute enacted since the constitution took effect, can be upheld. Miller v. State, 3 Ohio St., 476.
    The entry in the general record of the governor evidencing the receipt of the bill and action thereon can not be disputed by oral testimony.
    Since the adoption of the constitutional amendment, vesting in the governor the power of veto, his action in connection with any act of the general assembly becomes as essential to the perfect and completed act as any proceeding in connection therewith by either the house or the senate. The same reasoning adopted by the courts which protects the legislative journals from kindred attacks, likewise protects the record of the governor made in connection with such acts.
    We submit that it would be futile to surround the legislative journals with the presumptions of verity and likewise protect them from evidence aliunde, if the record of the governor, in connection with a legislative act, should be made subject to such attacks. So when authority is found denying the right to attack such journals, with the class of evidence sought to be introduced herein, the same authorities support our contention with regard to the governor’s record.
    In connection with this proposition we • only offer such further authorities as have not been cited in the very full and able brief of the solicitors of Hamilton county. Andrews et al. v. People, 79 Pac. Rep., 1031; State et al. v. Packing Co., 47 S. E. Rep., 411; State, ex rel., v. Robinson et al., 81 N. C., 409; Carr v. Coke, 116 N. C., 223; Field v. Clark, 143 U. S., 649; State, ex rel. v. Young, 32 N. J. L., 29; Wilson v. Markley, 133 N. C., 616; Gibson v. Anderson, 131 Fed. Rep., 39.
    In the State of Iowa the enrolled act in the secretary of state’s office is held to be the ultimate proof of the law. Clare v. State, 5 Ia., 510.
    The question at issue in this case is whether or not parol evidence is competent to show that the Aikin bill was not presented to the governor, as required by the Constitution of Ohio; it- being conceded that the act was not in fact signed by the governor. The record as to his action thereon, kept in the office of the governor, and the act being deposited in the office of the secretary of state, makes its authentication complete, and all the preceding steps are conclusively presumed to have been accomplished prior to the deposit of the enrolled act with the secretary of state. Field v. Clark, 143 U. S., 649; Wright v. Defreese, 8 Ind., 298.
    If the record of the governor’s office regarding this bill is impeachable, by oral testimony, when it speaks the fact of the bill having been presented, supplemented by the further fact that it has been found among the enrolled acts in the office of the secretary of state, then the journal of each house may be attacked in the same manner, and the authority of State, ex rel., v. Smith, 44 Ohio St., 348, is entirely destroyed.

      It is for the protection ot the act, as we have shown, and not for the protection of the record, that the presumption arises and its 'verity is placed beyond attack. But even in those states where the evidence of enrollment is not conclusive, it is uniformly held, where the journals are merely silent, that the presumption is absolute that the required steps were, in fact, taken. Lafferty et al. v. Huffman, 32 L. R. A., 203.
    All of the foregoing authorities sustain our further contention that the receipt executed by the executive clerk of the governor for H. B. No. 24, pursuant to Joint Rule 19 of the general assembly, is a legislative record and can not be impeached by oral testimony.
    The receipt executed in compliance with Joint Rule 19, adopted by the general assembly, constituted a part of the record preserved by the legislature of the bill in question.
    The entry made upon the “general record,” authorized to be kept by Section 107, Revised Statutes, we contend is unimpeachable and protected by the conclusive presumption attending legislative journals.
    Section 107, Revised Statutes, provides that eight different kinds of records are to be kept in the governor’s office. This section has not been amended in any respect since 1883. We agree that it could not have been contemplated at the time of the original enactment of Section 107, Revised Statutes, that the general record mentioned therein would ever be made the record to contain the evidence of the acts of the governor on legislative bills, pursuant to the requirement of the constitutional amendment of 1903. There is, therefore, no statutory demand for such record. The common law rule, heretofore repeatedly announced, would protect the integrity of the act by a conclusive presumption that everything which was required to be done, was done, record or no record. And if the record of such act was preserved in “the general record” kept in the governor’s office, the particular entry in that record would be preserved from impeachment by oral testimony, although all other entries of his “official proceedings” might not be included with such presumption.
    The truth of the facts stated in the endorsement on the bill can not be controverted by parol evidence. People v. McCullough, 210 Ill., 488.

      Mr. Wade PI. Ellis, attorney general, in oral argument, said:
    It is proper to emphasize the grave effect upon other legislation that would follow a decision that the so-called Aikin bill was not validly enacted. If it is manifest that a certain construction of the constitution or of a statute would produce great confusion in the state, involve a multiplicity of other statutes and bring to a standstill the orderly conduct of the government because a doubt as to the validity of a number of acts creating public offices, fixing the compensation of officers, establishing state departments, and appropriating money to pay the general expenses of the state, as well as to support the institutions of charity and the public schools, a court might well hesitate before it would acquiesce in such a construction.

      The present case involves even more than an attack upon other laws. It is, in effect, an attempt to try the title to the office of governor, to determine the capacity of the late Governor Pattison to discharge the duties of his office and to try that question not only in a collateral proceeding, but long after the man whose competency is challenged has forever surrendered the right to defend himself.
    The first point insisted upon by the state is that every step necessary to a valid enactment of the Aikin. law is shown by the record, and the only way that record can be disputed is by something to be found on the face of it. It imports absolute verity. It can not be impeached by parol. This record consists of the legislative journals; the receipt of the bill issued by the executive department; the general record in the office of the governor required to be kept by Section 107, Revised Statutes; the transmission of the bill to the secretary of state, as required by Section 128, Revised Statutes, and finally the bill itself in the office of the secretary of state where it is certified to by that officer and published among the • laws of- the state. Not one of these steps is missing-. But even if one were missing the act would be protected by the conclusive presumption of the regularity of its passage.
    Each of these steps is as ■ important as every other. The same rule of law which imports verity to legislate journals protects other records which evidence the enactment of the statute at other stages. State, ex rel., v. Robinson, 81 N. C., 409; Gibson v. Anderson, 131 Fed. Rep., 39; Clare v. State, 5 Ia., 510.
    The second point made by the state is that the words of the new amendment to the constitution, “presented to the governor,” do not mean personally presented; delivered face to face; transmitted from the hand of the general assembly to the hand of the governor.
    The custom during two administrations does not support such a manual presentation. Every act that has been passed since the amendment was adopted in 1903, has been taken by the clerk of the senate to the office of the governor and left there with those in charge of his office, and custom may properly be cited to sustain the construction put by the people, upon their constitution. State, ex rel., v. South Norwalk, 77 Conn., 257; Opinion of the Justices, 45 N. H., 611.
    Our adversaries contend that personal presentation is required because the ten days begin to run from the moment the bill is handed to the governor. If this is true, then all the governor would have to do, if he desired to be relieved of all responsibility,- would be to keep away from his office and prevent a personal presentation. Further, if he was opposed to a certain pending measure, was determined not to approve it, and yet knew that if he vetoed it it would be passed over his veto, he would simply prevent its presentation. He would refuse to receive it or receipt for it, and there being no personal presentation there would be no time from which the ten days would begin to run and the act could never become a law. Our adversaries may say that he could be mandamused to receive the bill. Would this court mandamus the governor to keep certain office hours, to be at a certain spot where, immediately following the passage of every act, he could be found by the clerk of the senate? Would it,call from a sick-bed the governor to be in attendance at his office to receive a bill, or invade his chamber with its writ and force into his hands a bill which he was willing should become a law without his personal signature?
    The people of Ohio were thinking of three things in conferring the veto power. First, that the governor might veto a bill; second, that he might approve it; and third, that it might become a law without any executive action whatever. This third contingency was not provided in order to afford an opportunity to, and tempt, the gvernor to avoid his official responsibility, to shirk the obligation imposed upon him by the people. It was put in to protect the act, not to protect the governor.
    The third point presented by the state is that manifold evils would result from a rule that parol testimony is admissible to dispute record evidence of any step necessary to the valid enactment of a law. This very case would settle nothing if parol testimony is admissible to impeach the record in the governor’s office. If the condition of Governor Pattison can be inquired into in this collateral way, and the question of fact as to whether or not this bill was personally presented to him can be tried by witnesses, there will be no stability of a judgment on the question except between the same parties. The next man who resists the Aikin tax and the next court which examines that testimony may be confronted with different witnesses and a different conclusion may be reached, and the Aikin law, as well as all others, may apply to some men and not to others, may be enforced as to some citizens of the state and not as to others. This suggestion need not be further pursued, for the evils that are apparent are all well stated in the opinion of this court in State, ex rel., v. Smith, 44 Ohio St., 349.
    But our opponents, in the closing paragraph of their brief, say that if the records in the governor’s office can not be impeached “then the secretary to the governor, or any other clerk of the governor in the absence of the governor, or in case of his disability, may usurp the power of the governor and preclude inquiry as to such usurpation by merely making an entry on the record of the governor.” The supreme court of the United States in the case of Field v. Clark, 143 U. S., 649, has silenced such fear effectively. “Better, far better,” say the court, “that a provision should occasionally finds its way into the statutes through mistake or even fraud” than that the authenticity of laws should depend upon transient and perishable testimony.
   Shauck, C. J.

It being admitted that the bill was passed by both houses of the general assembly, and that the governor did not either sign it or return it to the house in which it originated with his objection thereto, its efficacy as a statute depends upon the following provision of the constitution: “If any bill passed by both houses of the general assembly, and presented to the governor, is not signed and is not returned to the house wherein it originated and within ten days after being so presented, exclusive of Sunday and the day said "bill was presented, said bill shall be law as in like manner as - if signed.” Counsel for the plaintiff conclude that with respect to this bill there was not the presentation to the governor which this provision of the constitution obviously requires. Upon analysis of the argument which they advance in support of that conclusion; two general propositions appear: That the record evidence of presentation is not sufficient to show conformity with the constitutional requirement, and that oral evidence may be introduced to support the allegation that there was not the required presentation. Since the constitution does not prescribe either the place or manner of presentation, or the evidence by which it should be shown, it seems necessary to consider the purpose for which presentation is required, for it will be safe to assume that the presentation is sufficient if appropriate to that purpose. While the duties of the governor are mainly of an executive character, to the. extent indicated by the constitutional provision quoted, he is admitted to participation in legislation. The three modes, in which he may deal with a bill, which has been passed by both branches of the general assembly and presented to him, alike involve consideration arid an exercise of his judgment respecting its merits. The manner and extent of that consideration are left to the determination of the governor without direction or restriction, except that he may not retain the bill beyond the period of ten days. We can not accept any view of the case which assumes that his discretion in the premises is otherwise limited. He may, in any place and at once, give to the bill the force of the law by signing it; or he may within the ten days return it to the house in which it originated with a statement in writing of his objection thereto; or he may, if he so elects, permit it to become a law at the expiration of ten days without signifying either approval or objection. The object of the requirement of presentation obviously is to afford to the governor an opportunity for the considerate exercise of the discretion which is thus vested in him. To say that the object is to enable him to so exercise that discretion, is manifestly inaccurate.

Was the presentation of this bill appropriate to the purpose stated? The foregoing statement of the case presents numerous written memorials intended to establish the fact of presentation. Among them is the following entry found in the general record of the governor: “March 28. H. B. Number 24 presented to governor March 28. Filed secretary of state, April 10, 1906.” The book in which this entry was made is certainly identified as regularly kept as the governor’s record. It was kept to the knowledge and with the acquiescence of the governor. It had been received by him from his predecessor in office. It was kept in obedience to the requirement of Section 107 of the Revised Statutes that “The governor shall cause to be kept in his office a general record in which shall be entered a brief abstract of the official proceedings of each day.” This particular entry was made by a subordinate of the governor in the discharge of duties to which he had been appointed, and the appointment was in strict conformity with the requirement that “the governor shall cause” the record to be kept. Of like character is the entry in the book designated as the “governor’s receipt for bills,” except that there appears to be no statute requiring it to be kept. Over the signature of the governor’s executive clerk it contains a receipt for this bill on March 28. These records with respect to the bill are corroborated by the legislative record, and by those of the secretary of state, who is the custodian of the laws. The executive records referred to were kept in one of several rooms maintained by the state, devoted exclusively to the use of the governor in the conduct of his official business, and designated as the place for the conduct of that business. They seem to show the presentation required by the constitution.

Did the trial court err in excluding the oral evidence offered by the plaintiff? That evidence tended to show that the governor was in his office on the day of his inauguration, January 8, 1906; that he never returned to it, being confined to his residence by an illness which proved mortal on the, 18th day of the following June; that in the meantime, when his strength permitted, he received personal visits from his secretary, who conferred with him respecting the business of his office and pending legislation, and placed in his hands bills which had been presented at his office for his approval; that at one of these interviews while this bill was pending, he indicated his approval of its provisions, but that on the 28th day of March, and during the ten days following, he was unable, by reason of his illness, to receive the bill or to give it any consideration. In some of the cases cited in the brief of plaintiff’s counsel, parol evidence was received upon the subject of presentation of bills to the governor. In some of those cases the governor himself affirmed that the bill had not been presented to him, and in most of them it appears that both the law and the practice of the governor left the question of presentation to be determined wholly by evidence in pais. With what propriety evidence of that character was admitted, under such circumstances, we need not consider. Here a record of the fact was made, and this in accordance with not only the requirements of the statute and the custom prevailing in the governor’s office, but in accordance with the policy long established and firmly adhered to requiring that the enactment of officially published statutes shall be impeached only by the records of their enactment. Miller & Gibson v. The State, 3 Ohio St., 475; State, ex rel. Herron, v. Smith, 44 Ohio St., 348. In this connection it is again important to observe that such manner of presentation had the approval of the governor and that it accorded with his discretion. The admission of the governor to a limited participation in legislation affords neither reason nor occasion for a departure from a policy whose beneficent operation has been long realized. It is clear that if one of the steps now necessarily involved in the enactment of a law may, by evidence in pais, be shown not to have been taken, the entire subject of what the law is, is withdrawn from the' protection of the rules devised and applied for the purpose of securing certainty where doubt would be intolerable. The prompt aversion of the legal mind from the consideration of evidence in pais to show the invalidity of an officially promulgated statute is justified by a contemplation of the consequences which would follow. Since judgments bind only those who are parties to the record, a conclusion in one case that a statute is valid would be no bar to a contrary conclusion in another, and not only acts to confer civil rights, but those defining and punishing crimes and misdemeanors might be judicially determined to be void as to one citizen of the state and valid as to another. The secretary of state is the official custodian of our statute laws, and we have long been familiar with the rule founded upon statutes that his certificate is conclusive as to what that law is. Obviously the recognition of the doctrine advanced by counsel for the plaintiff would involve the repudiation of that rule; and, since no one may be required to challenge the validity of a statute until it is invoked against him, there would arise a condition of endless doubt respecting a subject upon which every consideration requires that there should be immediate and enduring certainty. An interesting case upon the subject is The People v. McCullough, 210 Ill., 488, where the court, after considering the testimony of a number of witnesses upon the subject of a presentation of a bill to the governor and his action thereon, became so impressed with the intolerable mischief inseparable from an inquiry of that character that it resorted to the established doctrine respecting the conclusiveness of the record and based its decision upon that ground. That view is well sustained by State, ex rel. Herron, v. Smith, supra, and numerous cases cited in the brief of counsel for the defendants.

It is suggested that the rejected evidence tended to show that on the 28th of March, and continuously for more than ten days thereafter, the governor, owing to his extreme illness, was unable to receive or consider the bill, and that because of his disability the duties of his office devolved upon the lieutenant governer according to the provisions of Section 15 of Article III of the Constitution. But the governor had not voluntarily surrendered the functions of his office, and no provision has been made for determining when a disability intervenes and when it ends. The constitutional provision does not execute itself, and the conduct of the affairs of an office by its occupant can not be questioned in this manner. A self-contained lieutenant-governor could not .be expected to assume the functions of the governor upon his own initiative. The judicial department of the government is charged with the duty of restraining the other co-ordinate departments to the exercise of the authority conferred upon them, but it is not permitted to consider the ability or the care with which such authority is exercised.

According to the well known rule of this court the points decided will be found in the syllabus. It may, however, be useful to add that the foregoing observations are intended to be restricted to the requirements of the present case. We do not consider whether in the absence of the records in the office of the governor, the fact of presentation to the governor should not be regarded as established by the legislative journals and the records of the secretary of state, showing the presentation to the governor and the receipt from him by the secretary.

Judgment affirmed.

Price, Crew, Summers and Spear, JJ., concur.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    Phillips v. The State of Ohio.

      Junk dealers required to keep book — Recording articles dealt in— Validity of Sections 4413 and 4414, Revised Statutes — Constitutional law.

    Sections 4413 and 4414, Revised Statutes, which require junk dealers and dealers in second-hand articles of any kind to put up a sign and keep a book containing a description of articles purchased and to retain such articles for at least thirty days before disposing of the same, etc., are a necessary and reasonable exercise of the police power and are therefore constitutional.
    (No. 10427
    Decided December 3, 1907.)
    Error to the Circuit Court of Franklin County.
    The plaintiff in error was tried in the police court of the city of Columbus on two affidavits charging him with receiving certain quantities of old metal, and with having failed to retain the same for the period of thirty days after the metal was received. In the police court the accused filed a demurrer, contending that Sections 4413 and 4414 of the Revised Statutes, under which the affidavits are drawn, are unconstitutional. The demurrer was overruled, and the defendant pleaded guilty and was fined in each case. He then prosecuted error to the court of common pleas, and on hearing of the petition in error in said court the judgment was affirmed, and this judgment was afterwards affirmed by the circuit court. The petition in error in this court is prosecuted to reverse the judgments of the several courts below.

      Mr. D. B. Ulery and Mr. W. J. Mahoney, for plaintiff in error,
    cited and commented upon the following authorities:

      Taylor v. Porter, 4 Hill (N. Y.), 145; Commonwealth v. Alger, 7 Cush., 85; In re Application of Jacobs, 98 N. Y., 98; Reduction Co. et al. v. Reduction Works, 126 Fed Rep., 29; Young v. Commonwealth, 101 Va., 853; State v. Dalton, 84 Am. St. Rep., 818; People v. Marx, 99 N. Y., 377; State v. Fisher, 52 Mo., 174; Lawton v. Steele, 152 U. S., 137; Ex parte Frank, 52 Cal., 606; Marmet v. State, 45 Ohio St., 63; Lander v. Chicago, 111 Ill., 291; Wynehamer v. People, 13 N. Y., 378; Railroad Co. v. Commissioners, 1 Ohio St., 77; Pumpelly v. Green Bay Co., 80 U. S., 166; Janesville v. Carpenter, 77 Wis., 288; Wright & Taylor v. Crawford, 13 Ohio Dec., 612; People, ex rel., v. Otis et al., 90 N. Y., 48; State v. Julow, 129 Mo., 163; Fulton v. District of Columbia, 2 App. Cases, 431; Millett v. People, 117 Ill., 294; Sipe v. Murphy et al., 49 Ohio St., 536; Sections 1 and 19, Article I, Constitution of Ohio; Section 1, Article XIV, Constitution of United States; Sections 4413 and 4414, Revised Statutes.'

      Mr: George S. Marshall, city solicitor, and Mr, Charles E. Carter, assistant city solicitor, for defendant in error,
    cited and commented upon the following authorities:
    Sutherland on Statutory Construction, 1st ed., 292; Hauck v. State, 45 Ohio St., 439; Henry v. Trustees, 48 Ohio St., 671; Burt et al., Assignees, v. Rattle et al., 31 Ohio St., 116; Toledo Commercial Co. v. Manufacturing Co., 55 Ohio St., 217; State v. Cohen, 73 N. H., 543; Grand Rapids v. Braudey, 32 L. R. A., 116; Marmet v. State, 45 Ohio St., 63; Commonwealth v. Baxter, 23 Pa. Co. Ct., 270; People v. McGuire, 99 N. Y. Supp., 91; Basemore v. State, 49 S. E. Rep., 701; Commonwealth v. Mintz, 19 Pa. Sup. Ct., 283; State v. Cohen, 63 Atl., 928; Launder v. Chicago, 111 Ill., 291; Chilvers v. People, 11 Mich., 43.
   Davis, J.

It is almost an axiom that anything which is reasonable and necessary to secure the peace, safety, morals and best interests of the commonwealth may be done tinder the police power; and this implies that private rights exist, subject to the public welfare. These principles are plainly recognized in Article XIY, Section 1, of the Constitution of the United States, and Article I, Section 19, of the Constitution of Ohio. The federal constitution provides: “That no state shall deprive any person of life, liberty or property without due process of law.” Of course, the converse is Understood, that- any state may deprive a person of life, liberty or property in the due process of law. That which is due process of law is so well defined in numerous decisions, both state and federal, that we need not discuss it here. The constitution of this state provides that “private property shall be held inviolate, but subservient to the public welfare.”

Therefore, the general power of the legislature to determine what is necessary for the protection of the public interests being clear, judicial inquiry is necessarily limited to determining whether a particular regulation is reasonable, impartial and within the limitations of the constitution. The legislature is the judge of the mischief and the remedy, and of what shall be state policy, subject to the restrictions just mentioned.

The business of dealing in second-hand articles and junk is one which is peculiarly liable to abuse; and, whether honestly conducted or not, experience has shown that stolen or lost property frequently finds its way to the junk dealer, through the agency of the persons who have unlawfully appropriated it. In view of the fact that it frequently happens that individuals seeking to reclaim their property are suddenly stopped and forever baffled at the door of the junk dealer’s shop, the requirements complained of here seem to us to be very fair and moderate.

We do not think it worth the time it would take to distinguish or explain the cases to which we have been referred by the plaintiff in error. Not one of them reaches the point in contention raised by the plaintiff in error here. Some of them are strongly against him. We find no infirmity in the statute, either in violation of the constitution or in other respects, and the judgment below is

Affirmed.

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


author: Spear, J.

text:
    Ardrey et al., Exrs., v. Shell.

      Notice of appointment of executor and administrator — What shall he evidence thereof — Section 6o8g, Revised Statutes — Two years’ limitation of actions by creditors — Begins to run, when — Section 6113, Revised Statutes.

    The filing in the probate court of proof of publication of notice of appointment by an executor or administrator, required by section 6089, Revised Statutes, is a mode of perpetuating the evidence of such notice, and is for the convenience and protection of the executor or administrator. It forms no- part of the notice to creditors required, to be given within three months after the giving of bond, and is not for the benefit of creditors. Hence, where such notice is duly given by publication within three months after the giving of bond, although proof of such publication is not filed in the probate court until after the expiration of a year from the giving of the bond, the two years’ limitation within which actions may be brought provided by section 6113, Revised Statutes, will begin to run from the date of the giving of the bond.
    (No. 10151
    Decided December 2, 1907.)
    Error to the Circuit Court of Perry county.
    The defendant in error, Emma R. Shell, commenced an action in the court of common pleas of Perry county, October 21, 1904, to recover against the plaintiffs in error, R. G. Ardrey and M. T. Huston, as executors of Sarah Thompson, deceased, upon an account for personal services alleged to have been rendered during the life of the testatrix from May 6, 1898, to August 17, 1899, the claim having been rejected October 20, 1904.
    Among other defenses interposed was the following :
    “Defendants say that they were duly appointed executors by the probate court of Perry county, Ohio, of the said estate on the 21st day of June, A. D. 1902, that thereupon and on said 21st day of June, A. D. 1902, they duly qualified as such executors by entering into a bond to the approval of the said probate court, and further say that they gave due notice of said appointment and qualification as required by law in the New Lexington Tribune, a newspaper printed and of general circulation, in said Perry county, Ohio, for three consecutive weeks, beginning in the issue of said newspaper of the date of June 26th, 1902, and further allege that more than two years have elapsed since the appointment, qualification and the filing of the bond of the said executors and the presentation of the said alleged account and the rejection of the same by these executors and the commencement of this suit, and that the action is barred by lapse of time under the statute of limitations for bringing such action, and that said alleged action did not accrue after the expiration of two years from the time said executors of said estate gave bond according to law.”
    To this the reply alleged that notice of appointment was not given by the executors as required by law; that no return of the alleged notice of appointment or proof of publication thereof was made to the probate court as required by law; that plaintiff had no actual or constructive notice, knowledge or information of the appointment until the-day of-, 1903; and that at the time her cause of action accrued, and for two years thereafter, plaintiff was within the age of minority.
    At the trial counsel for plaintiff requested the court to give in charge to the jury the following:
    “It is admitted in this case that the defendants were appointed executors of the last will of Sarah Thompson, deceased, on the 21st day of June, 1902, and the defendants claim in the first defense of their answer that they gave due notice of such appointment in The New Lexington Tribune, a newspaper printed and of general circulation in this county, for three consecutive weeks, beginning in the issue of said newspaper of the date of June 26th, 1902; if you should find that the defendants did publish this notice, as above stated, then I charge you that the law made it their duty to file their affidavit, or the affidavit of the person employed by them to.give such notice, in the probate court of this county, of the time, place and manner of giving such notice, within one year after giving their bond as such executors, and to have such affidavit with a copy of such notice, recorded in said probate court within one year after giving their said bond; and that if thereupon you should find that the defendants gave such notice, but did not within one year after giving their bond have such affidavit and a copy of said notice filed and recorded as above stated, then I charge you the two years’ limitation pleaded in the second defense of the answer would not apply to this case and would not be a bar to this action.”
    Which charge the court refused to . give, but did charge the jury, among other .things, as follows :
    “If you find from the evidence that the defendants were appointed executors of the last will of Sarah Thompson, deceased, on the 21st day of June, 1902, and that on said 21st day of June, 1902, they duly qualified as such executors by entering into a bond to the approval of the probate court of Perry county, Ohio, and that within three months after their said appointment and qualification as aforesaid, they caused notice of their said appointment and qualification as such executors to be published in a newspaper, printed and of general circulation in said Perry county, Ohio, for three consecutive weeks, then I charge you as a matter of law that the claim of the plaintiff sued upon in this case is barred by the statute of limitations and your verdict must be for the defendants.
    “The mere fact that an affidavit by the executors, or the publisher of the paper was not made, filed and recorded, .together with a copy of the notice in the probate court within one year after said executors gave bond, would not prevent the statute of limitation from barring the plaintiff’s claim. ■
    “If you find from the evidence under the instructions just given you that the plaintiff’s claim is barred by the statute of two years’ limitation, then your labors are at an end, and you will return into court your verdict for the defendant.”
    The trial resulted in a verdict for the defendant. Thereupon the plaintiff prosecuted error to the circuit court, which court reversed the judgment of the common pleas for error in refusing to give the charge requested by plaintiff, and for error in the charge as given. The defendants below seek a reversal of the judgment of the circuit court. Facts are stated in the opinion.

      Messrs. Crossan & Binckley, for plaintiffs in error.
    There is but one exception provided in Section 6113, Revised Statutes, and that is where the cause of action accrues after the expiration of the two years, and that does not apply to this case. There being no other exception provided for, none can be considered.
    When exceptions are provided to a general statute, they exclude all others than those expressed and courts are not at liberty to ingraft other exceptions than those expressed upon such a statute. Carrier v. Railroad Co., 44 N. W. Rep., 203; Favorite, by, etc., v. Booher's Admr., 17 Ohio St., 550; Hoiles v. Riddle, Admr., 74 Ohio St., 173.
    Courts can not ingraft on statutes of limitation exceptions not clearly expressed and where the language of the statute is perfectly clear, it is the duty of the court to enforce the law as it finds it. Amy et al. v. City of Watertown, 22 Fed. Rep., 418; Bartol v. Eckert, 50 Ohio St., 43.
    We maintain that section 6089 is merely directory and not mandatory, and that it was intended as a means of preserving and perpetuating the evidence and is for the- convenience of the executor or administrator, and for his protection, and not for the benefit of some belated and. delinquent creditor that has been guilty of laches, and slept on his rights until his day in court has gone by. Admr. of Gilbert v. Admr. of Little, 2 Ohio St., 160.
    What does this language mean? If the affidavit is made it shall be admitted as evidence, but it can not be said to exclude all other evidence. Our administration statutes were taken almost verbatim from the Massachusetts statutes, and these sections (6088, 6089 and 6113) had received there a settled construction before they were adopted in this state.
    This provision of the statute was introduced for the convenience of the executor or administrator. Other evidence of the fact may properly be received and if satisfactory to the jury is of the same avail. Green v. Gill, Exr., 8 Mass., 111.
    When a statute is adopted from another state where it has received a settled construction, such construction placed upon it by the courts of that state is adopted with it. Ives v. McNicoll, 59 Ohio St., 414; Gale v. Priddy, 66 Ohio St., 406.
    Notice of the appointment. of an executor or administrator may be proved by parol, nothwithstanding the requirements that the same must be recorded in the probate court. Croswell on Exrs. & Admrs., 206; Wade on Law of Notice, section 1080; Abbott’s Trial Brief, 561; Abbott’s Trial Evidence, 533 and 892; Schouler’s Exrs., section 418, note 1, p. 510; Henry v. Estey, Admr., 13 Gray, 336.
    The plaintiff’s claim was barred under Section 6113, Revised Statutes. The statutes begin to run from the time when the executor becomes qualified, notice having been duly given and the creditor’s right to sue and recover accrues. Delaplane v. Smith, 38 Ohio St., 415; Jones v. Jones, 41 Ohio St., 420.
    A careful study of these decisions will disclose that the court has held, in each instance, that the actual giving of the notice in the newspaper is the material thing.
    The term “creditor” in Section 6113 is used in a. generic sense and includes all persons having rights in action against the decedent. The disability of infancy will not prevent a claim from being barred under its terms. It is held to include all classes of creditors. Favorite, by, etc., v. Booker’s Admr., 17 Ohio St., 548; Crouse et al. v. Frybarger et al., 12 O. C. D., 254.

      Mr. J. E. Powell and Mr. L. A. Tussing, for defendant in error.
    We contend that the executors in this case did not comply with the law so as to be entitled to avail themselves of the two years’ limitation, fixed by said Section 6113, in bar of the well proved case of the plaintiff below.
    The notice (Revised Statutes, Section 6088) must be published within the three months and the evidence thereof must be perpetuated within the one year (Revised Statutes, Sections 6089 and 6126) in order that the executors may set up the two years’ limitation; and if the notice is not published, or if it is published after the three months, or if the evidence of it is not perpetuated within the one year, it becomes a jurisdictional question,' a question of right or power in the executors to plead this statute of limitation, and they can not then set up the two years’ statute, and the evidence of the publication of the notice can not be perpetuated after the one year, except by petition, as provided in Section 6126; in which event the creditor will have two years thereafter in which to commence his action.
    The one year limitation fixed in Sections 6089 and 6126 above quoted is a restriction of a penal nature upon the right of the executor to set up the special two years’ limitation in above Section 6ii3-
    Manifestly, we think, it was the legislative intent that the probate record of the proof of the publication within the three months, showing that the affidavit was filed within the year, should operate as perpetual notice to creditors and as giving perpetual right to the executors to plead the two years’ limitation against all creditors, whether they ever saw the. notice in the newspaper or not, the same as the record of a deed for real estate is notice to the world of its contents. Forward et al. v. Forward et al., 6 Allen, 494; Broderick v. Smith, Admr., 3 Lansing’s, 26.
    We urge another disability or exception to the running of the statute of two years’ limitation, fixed by said Section 6113, by reason of Section 4989, Revised Statutes.
    Mr. Huston, one of the defendant executors, left the state of Ohio after his appointment, and remained “out of the state” thereafter until two weeks before the trial of this case; and he was therefore not in the state two years after his appointment, neither by consecutive months, nor in the aggregate of times, before the commencement of this action.
    The two executors, having reference to the matter of law on the question here involved, are as one person, and the absence of one from the state, for the purposes of this question, is the absence of both.
    Even if Section 4989 did not apply to this case, “an unconscientious defense, founded upon an unfair advantage obtained by a party without fault on the part of his adversary, will not be favored by a court of equity” or any other court. They can not, by legal process or by their own act, put themselves in a position so that we could not have brought the suit in time, if appearance had not been entered, and then plead that the suit, to which they entered their voluntary appearance, and which we could not have maintained but for their appearance, was not commenced in time, and in such case, the statute, Section 6113, begins to run only from the rejection of the claim on October 20, 1904. Treasurer v. Martin, 50 Ohio St., 197; Stahl v. Van Vleck, 53 Ohio St., 149; Stewart, Admr., v. McLaughlin, 47 Ohio St., 555.
    Under all the facts shown by the evidence in this case and the law as we claim it to be, the two years’ statute of limitation did not run at all as against the claim of the plaintiff below. On this question, and as to the applicability of Section 4989 to this case, we cite the following: Stanley v. Stanley, Admr., et al., 47 Ohio St., 225; Gibbons v. Ewell, 1 Handy, 562; Wood on Limitations, sections 245 and 247; Railroad Co. v. Mowatt, 35 Ohio St., 287; Exrs. of Haymaker v. Haymaker, 4 Ohio St., 272; Wintermute v. Montgomery, 11 Ohio St., 443; Burgoyne, Jr., Admr., v. Moore, 12 C. C., 31; Chinn v. Trustees, 32 Ohio St., 236; Hayden v. Pierce, 144 N. Y., 512; Giauque on Settlement of Estates, 1893 Ed., 516.
    The plaintiff below was entitled to have the entire two years in which to present her claim to both of the executors, and have the judgment of both as to whether the claim should be allowed or rejected; and, for this purpose, one executor could not delegate authority to the other to -reject the claim, or to allow it. Croswell on Executors and Administrators; 54 and 55.
   Spear, J.

It appears by the record that the executors were appointed, gave bond and so qualified as such, June 21, 1902. They thereupon caused to be published notice of their appointment in the New Lexington Tribune, a newspaper published and of general circulation in the county of Perry, for three consecutive weeks, beginning June 26, 1902, and continuing in the issues of July 3 and July 10 following. Proof of this publication was filed in the probate court August 24, 1903, and not before. As mentioned in the statement, the plaintiff’s action was commenced October 21, 3904, being two years and four months after the date of the giving of the bond and the due qualification of the executors, but within one year and two months after the filing of the proof of notice in the probate court.

The issue being the two years’ statute of limitation, the concrete question is, at what date did the statute begin to run? An answer to this calls for some examination of the statutes bearing upon the subject. Provision in respect to the giving of notice of appointment is made by sections 6088 and 6089 of the Revised Statutes, which are: “Every executor or administrator shall, within three months after giving bond for the discharge of his trust, cause notice of his appointment to be published in some newspaper of general circulation in the county in which the letters were issued for three consecutive weeks. An affidavit of the executor or administrator, or of the person employed by him to give such notice, being made,* filed and recorded, together with, a copy of the notice in the probate court, within one year after giving bond as aforesaid, shall be admitted as evidence of the time, place, and manner in which the notice was given.” Further provision relating to proof of notice by section 6126 is to the effect that if notice shall not be given of the appointment within the three months, or the evidence shall fail to be perpetuated as hereinafter provided, and can not be made, the court may order and allow such notice to be given at any time afterward, in which case the periods which are limited for the commencement of actions against executors and administrators, and which begin to run as before directed from the date of the administration bond, shall begin to run respectively from the time such order of court is made, if notice be published according thereto. As to actions' already accrued the limitation is provided for by section 6113,. which- is: “No executor or administrator, after having given notice of his appointment as provided in this chapter, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within two years from the time of his giving bond as aforesaid, excepting in the cases hereinafter mentioned.” The exceptions thereafter mentioned relate only to causes of action which accrue after two years from the time of the giving of the bond, and hence are not applicable to the case at bar.

It is apparent that this is a special statute applying to a particular subject matter. It is further apparent that ,the general purpose of the statute is to facilitate the settlement of estates of deceased persons, and, in aid of that purpose, to limit the bringing of actions against such estates to the period of two years from the giving of the bond provided proper notice of appointment is given, and where the notice has not been given within the time directed, or proof of the same can not be made, the order of the court is made to take the place, in legal effect, as regards the statute of limitations, of the giving of the bond. It is equally apparent, as has been often held (see opinion of Granger, C. J., Jones v. Jones, 41 Ohio St., 417), that this statute is “upon a footing somewhat different from the ordinary statute of limitations behind whose bar the debtor himself may take refuge, and that its provisions should be construed in furtherance of the main purpose and intent of the entire statute.” The circuit court held, and counsel for defendant in error now insist, that proper notice was not given in this case, because proof of the notice of appointment which was published was not filed in the probate court within the time contemplated by section 6089, to-wit : within one year after the giving of the bond, and this is the principal point of contention in the case. Its proper solution depends, as we think, upon an ascertainment of the purpose of the notice and the purpose of requiring proof .of it to be filed in the probate court. Manifestly the object intended to be attained by the notice is that creditors, and all interested, may be apprised of the appointment and thus put upon notice of the necessity of diligence in the preservation of their rights against the estate. How this matter of information to creditors could be materially aided by the presence among the files in the probate court, or on the record, of an affidavit of publication, it is not easy to see, for an examination of the files and record generally in the matter would give to the inquirer full information respecting the appointment without resorting to the proof of publication. But beside this,, creditors are not presumed to search the files or record of the probate court to ascertain the appointment of executors or administrators. Surely they are not required so to search and are not guilty of laches if they fail to do it. This being so, it follows, as we think, that the requirement as to the filing and recording of the proof is for the benefit and protection of the executor or administrator, and not for the benefit or enlightenment of creditors. Section 6126 strikes the keynote when it in terms treats the filing of the proof of notice in the probate court as a method of perpetuating evidence, and its declaration is of special significance as throwing light upon the general purpose - of that provision of the statute. It is true that section 6089 provides that the proof being made in the probate court within one year after giving bond shall be admitted as evidence, but it is nowhere provided that other evidence showing the same fact should not be given, nor that the notice shall be ineffectual if the proof be not made within one year. In other words, the proof to be made in the probate court forms no part of the notice required to be given, and if not part of the notice then it follows that the due publication completes the notice, and the imperative-words of the statute control: “No executor or administrator, after having given notice of his appointment, shall be held to answer to the suit of any creditor unless it be commenced within two years from the time of giving bond.”

The precise question has not been, so far as we are aware, before presented to this courts But our statute on the subject is, in large measure, a reproduction of the statute of Massachusetts, and that statute has been construed by the supreme judicial court of that state in two cases. Neither is precisely analogous on the facts, but the same principle of law is involved in each. In Green v. Gill, Exr., 8 Mass., 111, the executor offered parol evidence that he had given the notice required by statute, but it did not appear that he had made and filed an affidavit of such notice in the probate office. The court held that the provision as to filing proof in the probate office was for the convenience of the executor or administrator, and that other evidence of the fact was competent. The bar of the statute was maintained. Again in Henry v. Estey, Admr., 13 Gray, 336, a similar question arose. No affidavit of the administrator that he had given notice of his appointment, as required by statute, had been filed and recorded. Proof was allowed to be given of the fact by the testimony of other witnesses. This was held not to be error, the court remarking that the mode of perpetuating the evidence of such notice by the filing of an affidavit is merely a cumulative provision for the benefit of the administrator, but his failure to do so does not preclude him from resorting to other evidence to establish the fact of notice. These decisions, while not necessarily binding upon the courts of this state, are strongly persuasive in view of two considerations. They are decisions of a court of very high standing and authority and have material application to the case at bar because of the rule that where a statute adopted from a sister state has received a settled construction in that state, such construction will in general be followed by the courts of this state. Favorite v. Booher’s Admr., 17 Ohio St., 548; Ives v. McNicoll, 59 Ohio St., 402; Gale v. Priddy, 66 Ohio St., 400.

It is, however, insisted by counsel for defendant in error, that the statute did' not begin to run against the plaintiff below because of the fact of infancy as set up in her reply. To allow this claim would, we think, be to place an exception in the statute which the general assembly did not see fit to enact. The language is “any creditor.” Courts are not authorized to engraft exceptions to imperative requirements of a statute even though the statute itself may seem harsh or unjust. Favorite v. Booher’s Admr., supra; Hoiles v. Riddle, Admr., 74 Ohio St., 173; Amy v. Watertown, 22 Fed. 418.

It is further insisted that because of the fact that one of the two executors was absent from the state a portion of the time just prior to the corm mencement of the action, that time should have been deducted from the two years, and had that been done the action would have been begun in time. Whatever gravity might attach to this question under differing circumstances we need not discuss; but in the case at bar, the plaintiff having had no difficulty in finding within the state, indeed, as a near neighbor, one of the executors, nor in presenting her claim to him and obtaining adverse action thereon, and having thereupon herself acted upon the rejection thus obtained, and commenced and maintained her action against both, we are of opinion that the absence from the state a portion of the time of one is an immaterial circumstance in the case.

Other objections to the judgment of the court of common pleas are urged. We have considered them, but find no prejudicial error in the record of proceedings in that court. In this connection it may be added that the cross-petition in error of the defendant in error in this case was needless. Where a defendant in error, desires a reversal in part of the judgment of the circuit court, that is, a modification of it, a cross-petition in error is proper; but where the defendant in error simply wishes to urge grounds for the reversal of the trial court other than those upon which the judgment of reversal by the circuit court was placed, a cross-petition in error is wholly unnecessary.

Our conclusion is that the failure to file in the probate court proof of the notice of appointment within the year, did not prevent the commencement of the running of the statute, and that in holding otherwise the circuit court erred. This conclusion is not required by any previous decision of this court, but, nevertheless, is in accord with the general trend of decisions in cases other than those already cited, viz: Gilbert’s Admr. v. Admr. of Little, 2 Ohio St., 156; Delaplane v. Smith, 38 Ohio St., 413; Gray v. Case School, 62 Ohio St., 1. See, also, Croswell’s Executors and Administrators, 206; Schouler on Executors, section 418.

Judgment of the circuit court reversed and judgment of the common pleas affirmed.

Reversed.

Shauck, C. ]., Price, Crew, Summers and Davis, JJ., concur.