text:
    The State, ex rel. Sartain, v. Harris, Governor.

      Legislative powers — Constitutional limitations — Do not apply, when —Act authorised by amendment to constitution — Constitution does not limit amendment, when — Eligibility of sheriff — Article X, Section 3 — Does not apply to act of 98 O. L., 271.

      1. An act of the legislature authoiized by an amendment to the constitution and enacted to make the amendment operative is not necessarily subject to provisions of the constitution limiting the legislative power, but is to be interpreted as if part of the amendment.
    2. The general provisions of the constitution do not limit conflicting provisions of an amendment to the constitution that are specific and temporary.
    3. Section 3, Article X, of the constitution that “No person shall be eligible to the office of sheriff, or county treasurer, for more than four years in any period of six years,” is not applicable to the act entitled, “An act to conform the terms of office of various state and county officers to the constitutional provisions of (relating to) biennial elections,” 98 O. L., 271.
    (No. 11064
    Decided February 11, 1908.)
    In Mandamus.
    The relator avers that George J. Karb was elected sheriff of Franklin county in 1903, for the term of two years, beginning on the first Monday in January, 1904, and in 1905 for the term of two years, beginning on the first Monday in January, 1906; and that on the first Monday in January, 1908, he had served in the office continuously for four years, and that on that day the board of county commissioners, by a resolution adopted by a majority thereof, had declared that a vacancy existed in the office of sheriff and by a majority vote had appointed' the relator sheriff of said county to fill such vacancy, beginning on the first Monday in January, 1908, and ending on the first Monday in January, 1909. He sets out-facts showing that he is eligible to the office, and that he has given bond and taken the oath of office, and qualified according to law, and that he tendered the proper fee to the secretary of state and demanded a commission from the governor, which has been refused.' He asks for an alternative writ commanding the governor to issue the commission or to show cause why he should not do so.
    The defendant avers that he declines to issue the commission because he is advised by the attorney general that under the last constitutional amendment, Article XVII, and the law passed in pursuance thereof, Karb is entitled to serve in the office until the first Monday in January, 1909, and claims the right to do so, and that there is no vacancy in the office.
    To this answer the relator interposes a general demurrer.

      Messrs. Williams, Williams & Taylor, and Mr. Simeon Nash, for relator.

      Mr. Wade H. Ellis, attorney-general, for defendant in error.

      Mr. John A. McMahon and Mr. John W. Warrington, of counsel.
   Summers, J.

Prior to the year 1906 elections for state and county officers were held in the fall of every year, and for municipal and township officers in the spring of every year. At the November election in 1905 the following amendment to.the constitution was adopted:

“Sec. 1. [Times of holding.] Elections for state and county officers shall be held on the first Tuesday after the first Mpnday in November in the even numbered years; and all elections for all other elective officers shall be held on the first-Tuesday after the first Monday in November in the odd numbered years.
“Sec. 2. [Terms of officers, vacancies, etc.] The term of office of the governor, lieutenant governor, attorney general, secretary of state and treasurer of state shall be two years, and that of the auditor of state shall be four years. The term of office of judges of the supreme court and circuit courts shall be such even number of years not less than six (6) years as may be. prescribed by the general assembly; that of the judges of the common pleas court six (6) years and of the judges of the probate court four (4) years and that of other judges shall be such even number of years not exceeding six (6) years as may be prescribed by the general assembly. The term of office of justices of the peace shall be such even number of years not exceeding four (4) years, as may be prescribed by the general assembly. The term of office of the board of public works shall be such even number of years not exceeding six (6) years as may be so prescribed; and the term of office of all elective county, township, municipal and school officers shall be such even number of years not exceeding four (4) years as may be so prescribed.
“And the general assembly shall have power to* so extend existing terms of office as to affect (sic) the purpose of Section 1 of this article.
“Any vacancy which may occur in any elective state office other than that of a member of the general assembly or of governor, shall be filled by appointment by the governor until the disability is removed, or a successor elected and qualified. Every such vacancy shall be filled by election at the first general election for the office which is vacant, that occurs more than thirty (30) days after the vacancy shall have occurred. The person elected shall fill the office for the unexpired term. All vacancies in other elective offices shall be filled for the unexpired term in such manner as may be prescribed by law.
“Sec. 3. [Present incumbents.] Every elective officer holding office when this amendment is adopted, shall continue to hold such office for the full term for which he was elected, and until his successor shall be elected and qualified as provided by law.”

To effect the purpose of the amendment the following act was passed April 2, 1906, 98 O. L., 271:

AN ACT.
“To conform the terms of office of various state and county officers to the constitutional provisions of (relating to) biennial elections.
“Be it enacted by the general assembly of the state of Ohio:
“Section 1. The existing terms of office of the following state and county officers, which would otherwise expire in any even numbered year, are hereby extended to the following dates respectively of the odd numbered year next succeeding the time when they would so otherwise expire: * * * sheriff, to the first Monday in January. * * *
“And the incumbents in said several offices, at the time when said existing terms would otherwise expire, shall continue to hold and enjoy the same until the expiration of said respective terms as' so extended, subject to all the provisions of law relating to removals and vacancies therein.
“Before entering upon the discharge of his duties for such added period, any person entitled to hold any such office therefor, shall give bond to the state, in like manner and form as is required of one elected to fill such office.
“At any election for state and county officers hereafter held, successors to all. such officers whose term will expire during the odd numbered year next succeeding the holding of such election, shall be elected, for terms to commence at such time during said odd numbered year as is provided by law, and to continue for the following periods respectively: * * * sheriff, two years * * *.
“Provided further that the term of office of any such county officer, expiring in the year one thousand nine hundred and six, whose successor was elected prior to the passage of this act, shall not' be extended.”

It is conceded that this act extends Karb’s term to the first Monday in January, 1909, but it is contended that a vacancy exists by reason of his ineligibility under Section 3, Article X, of the Constitution which reads: “No person shall be eligible to the office of sheriff, or. county treasurer, for more than four years, in any period of six years.”

The amendment provides that the general assembly shall have power to so extend existing terms of office as to effect the purpose of Section 1, and that every elective officer in office when the amendment is ■ adopted shall continue to hold his office for the full term for which he was elected. The purpose of Section 1, is that elections for state and county officers shall be held in the even numbered years, and elections for all other elective officers in odd numbered years, and in order to intelligently interpret the amendment and construe it and the statute, it is necessary to know the conditions to be met. So far as material to the present case they were that the terms of all elective county officers were three. years, excepting the terms of sheriffs, treasurers and coroners, which were two years. The terms of officers expired in different years, some in even numbered years and some in odd numbered years, and in different months of the year, and no general election would be held in 1907, so that it was necessary to provide either that some terms should be shortened or that some terms should be lengthened, or that for a period less than a full.term the offices should be filled by election or appointment. The general assembly evidently wished the amendment to be adopted and so it provided in the amendment that the terms of those in office should not be shortened and that the existing terms might be extended. When a new constitution is adopted, or a change is made in the form of government of municipal corporations, the customary manner of meeting the interregnum is by continuing existing officers in' office until the new laws can become operative by an election. The authority given the general assembly to extend existing terms was in legal effect authority to continue the incumbents in office to the end of the extended term, and to limit the* power by Section 3, Article X, would prevent the effecting of the purpose of the amendment in the mode therein expressly authorized. These provisions of the amendment were necessary to make it operative. They are merely temporary and Section 3, Article X, has no application. Cases interpreting similar constitutional restrictions respecting ordinary legislation are not helpful, because here we are not called upon to apply a constitutional limitation to an act passed by the general assembly under its general grant of legislative power, but to apply such a limitation t*o an act specially authorized by the constitution. An act of the legislature authorized by a constitutional amendment and enacted to make the amendment operative is not necessarily subject to provisions of the constitution limiting the legislative power, but is to be interpreted as if part of the constitutional amendment. It won't do to say that there is no conflict between this provision of the amendment and Section 3, Article X, because the amendment merely authorizes an extension of terms, and Section 3 only makes the incumbents ineligible to serve. The purpose of the amendment being to authorize the continuance in office of the incumbents, both provisions cannot operate, and the rule of statutory construction that where there are general provisions and a special provision relating to the same matter, the special provision, is given effect as an exception, may appropriately be applied.

But it is said that the act expressly recognizes the provisions oí Section 3, Article X, by continuing incumbents in office until the end of the extended term “subject to all the provisions of law relating to removals and vacancies therein.” To so interpret the act would be to convict the general assembly of mis-interpreting the amendment or of providing for the emergency in a manner not authorized. These provisions of the act were intended to provide for removals and vacancies in the extended terms, and if a vacancy, such as that contended for, had been contemplated it is not likely that it would have been so provided for.

It is also contended that the act if so interpreted cannot have uniform operation throughout the state. The act operates uniformly wherever the conditions exist to which it can apply, and if it were otherwise the same considerations would apply here as to Section 3, Article X.

It is well settled that quo warranto and not mandamus is the proper proceeding to try a title to the office. Karb is not a party to this proceeding, and if the title to the office were involved and not merely the question of the right to a certificate as a predicate to an action to determine the title, the writ would be refused on the ground that mandamus does not lie; but, by construction of the statute and the constitutional amendment, having reached the conclusion that the relator is not entitled to a commission, the demurrer to the answer is overruled and the writ, for that reason, is refused.

Writ refused.

Shaucic, C. J., Price, Crew, Spear and Davis, JJ-, concur.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    The State of Ohio v. Elson.

      Interpretation of statutes — Game laws — Section 4093, Revised Statutes — Computation of time of open season.

    Under á statute — Section 409/, Revised Statutes — making it unlawful “to catch, kill, injure, or pursue with such intent, any^ Virginia partridge or quail, except from the fifteenth day of November to the fifth day of December,” in computing the time or duration of the “open' season” therein provided for, the first named day (Nov. 15th) should be excluded, and the last named day (Dec. 5th) should be included, making the period of such open season twenty days.
    (No. 10583
    Decided February 11, 1908.)
    Error to the Circuit Court of Muskingum county.
    The facts in this case are sufficiently stated in the opinion.

      Mr. E. E. Tanner, for plaintiff in error.

      Mr. R. M. Voorhees and Mr. Joseph L. McDowell, for defendant in error.
   Crew, J.

On December 12, 1904, W. H. McGill, a deputy state fish and game warden, filed his affidavit before John A. Green a justice of the peace in and for the township of Zanesville, Muskingum county, Ohio, charging the defendant in error, T. C. Elson, with having violated certain of. the provisions of Section 15 of an act entitled: “An act to provide for the protection, preservation and propagation of fish and game in the state of Ohio,” etc. The particular provision of said section alleged to have been violated, reads as follows: “No person shall within this state, catch, kill, injure, or pursue with such intent, any Virginia partridge or quail except from the fifteenth day of November to the fifth day of December.” The accused, T. C. Elson, was arrested upon said charge, put upon trial and convicted, and upon the overruling of his motion for a new trial, was sentenced by the justice to pay a fine of fifty dollars and the costs of prosecution. This judgment was subsequently affirmed by the court of common pleas. From this judgment of affirmance error was prosecuted by said T. C. Elson to the circuit court of Muskingum county, where the judgments of the courts below were reversed, and the following judgment entry was madé and entered on the journal of said circuit court, to-wit: “This cause came on for hearing upon the petition in error, the transcript and the original paper's and pleadings in the justice’s court and the court of common pleas of Muskingum county, Ohio, and was argued by counsel; on consideration whereof the court find that there is error apparent upon the face of the record to the prejudice of the plaintiff in error in this, to-wit: First, the verdict of the jury in the justice’s court is against the manifest weight of the evidence, and said verdict and the judgment of the justice thereon is contrary to law. Second, said'justice of the peace erred in his charge to the jury. Third, said justice of the peace erred in overruling the motion for a new trial and in rendering judgment against the plaintiff in error. Fourth, the common pleas court erred in affirming the judgment rendered by said justice of the peace. It is therefore considered and adjudged by this court that the said judgment of the justice of the peace and the judgment of the said court of comrnon pleas affirming the same, and each of them, be and the same are hereby reversed, set aside and held for naught, and the plaintiff in error is restored to all things he has lost by reason thereof. And it fully appearing by the evidence offered by the state on the trial of said cause that the acts complained of were committed on the 5th day of December, 1904, instead of the 6th day of December, 1904, as alleged in the affidavit, and there being no dispute in the evidence as to this date, or claim on the part of the state that said acts were committed upon the 6th, or at any other time than the 5th day of December, 1904, as shown by the bill of exceptions in said cause, and it appearing to this court that said acts were not unlawful and prohibited on the 5th day of December, 1904, this court proceeding to render the judgment that the justice of the peace should have rendered upon said evidence, and that the common pleas court on error should have rendered, it is hereby ordered and adjudged that the defendant be discharged without day, and that he recover from the defendant in error his costs herein expended, taxed at $-, and that said defendant in error pay its own costs, taxed at $-, for all of which execution is awarded, and this cause is remanded to the common pleas court for execution. To all of which finding, judgment and decree the defendant in error at the time excepted, and its exceptions are here noted at its request.” Upon the trial in the justice’s court the justice among other instructions given, charged the jury as follows: “The law says: ‘No person shall, within this state, catch, kill, injure or pursue with such intent, any Virginia partridge or quail except from the fifteenth day of November to the fifth day of December.’ Now my judgment is, and I will so hold and say to you, that to pursue with intent to catch, injure or kill quail on the fifth day of December is unlawful, and that if the same is proven to you on said day beyond a reasonable doubt with the other facts heretofore mentioned, then your verdict against this defendant should be guilty. Now, gentlemen, it is not within your province to say whether my construction of the law as to so pursuing quail on the fifth day of December is correct or not. You are to take the law as I give it to you and the error, if any, will be mine and not yours.” Whether the foregoing instruction was correct, and whether the judgment of conviction in this case was warranted, depends wholly upon the interpretation and meaning proper to be given to the clause or expression “from the fifteenth day of November to the fifth day of December”' as found in above Section 15 of the game laws. It is the contention of counsel for the state that the words “from” and “to,” as employed and used in said section, are both words of exclusion, and that therefore, in computing the time within which it shall be lawful to catch, kill or pursue quail, both the fifteenth day of November and the fifth day of December must be excluded, and the section be read precisely as though the language or expression therein used was, between the fifteenth day of November and the fifth day of December. On the other hand it is claimed by counsel for defendant in error that inasmuch as the statute itself neither prescribes nor defines how the time shall be computed, that in computing the same, the rule of the common law should be followed, and the first day (Nov. 15) should be excluded, and the last day (Dec. 5) should be included. We are of opinion that the method of computation last suggested is the correct one, and the one that should be adopted in the present case. In Lewis’ Sutherland Statutory Construction, Vol. 1 at page 330, the author says: “ ‘From’ is a term of exclusion, and the words ‘to,’ ‘till’ or' ‘until,’ inclusive. Not that they import this in all connections, but in their use to indicate the beginning and ending of spaces of time. If a given number of days is required to elapse between one act and another, the day of the first is excluded, and the day of the other included. An intention to exclude both days may be inferred from language clearly expressing that intent; as where a statute or rule of court requires a certain number of clear days, or as has been held when ‘at least’ a given number of days is required. The rule is so generally recognized to exclude the first, or terminus a quo, and to include the last, or terminus ad quem, that it requires no particular words for its application.” In volume 49 L. R. A., pages 193 to 248, the editor in a note to Halbert v. San Saba Springs L. & L. S. Association, after a very thorough and exhaustive review of the authorities upon the rule “as to first and last days in the computation of time,” states as his conclusion: “There seems to be one general rule with reference to counting the first and last days in the computation of a period of time which, subject to exceptions based upon the language of the provision for time or upon the surrounding circumstances, seems to have remained the same throughout the whole period of the common law, and which remains practically the same under the statutes and rules of court. That rule is, that in the computation of time one of the first and last days of the period shall be included and the other excluded. The question as to which of the two days shall be included and which excluded, however, has been differently decided in different periods and different jurisdictions, and has given rise to much conflict of opinion. The general common law rule as it originally existed was that the first day was to be counted when the computation was to be from an act or event, but that it was not to be counted when the reckoning was to be from a day or from the day of an act or event. The modern decisions have changed this rule, and, in the absence of a statute or rule of court controlling the question, the courts now compute time, as a general rule, by excluding the first day and including the last day. But this rule was subject to exceptions with reference to the language of the .provision for time or the surrounding circumstances, and in many instances in which the words ‘within’ or ‘between’ or ‘at least’ or ‘riot less than’ were used, both the first and • last days were' excluded, and such days were included or excluded, as the case might be, so as to avoid a penalty or forfeiture. This rule was subsequently put in statutory form or adopted as.a court rule in most jurisdictions, but in construing the statutes and rules, though the courts could not depart from or change the language used, they generally construed them to be a re-enactment of the common law rule on the subject, and held them to be subject to the same exceptions; and the general rule now existing, whether at common law or under the statutes, probably is that the first day of a period of time is to be excluded and the last day is to be, included, but that either or both days may be either included or excluded, if the language of the provision for time is such as to require it, or if by so doing a penalty of forfeiture will be avoided. These rules are held generally to apply to all cases. Many of the statutes were enacted with, express reference to civil actions, but, with a few exceptions, they have been held to apply generally to all provisions for time, and though they are not deemed to apply, the common law must be resorted to which is practically the same.” It must, we think, be conceded, in obedience to the clear weight of authority, that in the absence of language compelling the application of a different rule, the estab-lished general rule governing the computation of time, whether at common law or under the statute, is that the first day of the period named is to be excluded, and the last named day is to be included, and that this rule applies alike to all provisions for the computation of time whether in civil or criminal cases. In this state it is provided by Section 4951, Revised Statutes, (Civil Code) that: “Unless otherwise specially provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; and if the last be Sunday, it shall be excluded.” True this provision applies in terms, only to the computation of time within which an act is required by law to be done; but we can see no good or sufficient reason, nor has any been suggested, why the same rule of computation should not be applied in computing the time within which an act is permitted by law to be done. The mode of computing time in any particular case or class of cases, is of far less importance than that there should be some established and uniform rule on the subject. Obviously, it is not for the public good, nor in the interest of the due administration of justice, that there should be two rules, or that the rule should be different or less certain in criminal than it is in civil cases. In our opinion this rule of the statute should be followed and applied in the interpretation and construction of all statutes, save those where the language of the provision as to time, .itself clearly forbids it. In the present case there is a further consideration which we think leads to the conclusion that in construing the statute now under review the 15th day of November should be excluded and the 5th day of December should be included. To adopt, in this case, the construction of Section 15 contended for by counsel for plaintiff in error would not only require that we ignore the well established general rule as to computation of time under similar statutes, but also that we disregard the further principle of construction, equally well established, which requires that a- statute shall, if possible, be so construed as to avoid a penalty or forfeiture

Judgment affirmed.

Si-iauck, C. J., Price, Summers, Spear and Davis, JJ., concur.


author: Price, J.

text:
    Clark, Treasurer of Coshocton County, v. Gault et al., Executors.

      Bailments — U. S. bonds loaned to national bank — To be deposited with U. S. treasurer — To secure issue of bank notes— Constitutes bailment and not sale — Contract not taxable as credit of lender.

    On the 27th day of February, 1900, F. was the owner of three per cent, bonds of the United. States issued under the act of congress passed in June, 1898, in the sum of $12,500, and The First National Bank of New Comerstown, then being organized, desiring the use of bonds of that character to deposit with the. treasurer of the United States to secure its circulating notes about to be issued, it was agreed in writing between F. and said bank, that he deliver to it his bonds . for said purpose, to be returned to him at any time upon demand, after sixty, days notice, or, to pay him their equivalent in lawful money of the United States, as F. might elect, the price to be paid, if paid in money, to be the selling price of said bonds upon the day of delivery for sale upon the stock exchange in the city of New York. It was further agreed that when said bonds should be returned to F., they should be the same as those delivered to the bank, or, of the same class, to-wit: five thousand in three per cent, registered, and seventy-five hundred in three per cent, coupon bonds.
    In consideration of the delivery of said bonds, the bank agreed to pay F. the interest it would receive on them from the treasury of the United States, and in addition thereto, the further sum of $156.25 per annum, payable quarterly, for such time as the bank might hold the bonds. This contract was complied with during the life of F. who did not elect to take the money in lieu of the bonds. He died on the 31st day of December, 1903, and on or about the 25th day of March, 1904, at request of the executors of his will, the bonds were sold at a price as provided in said contract and at a gross premium of $800. The proceeds were soon thereafter turned over to the executor.

      Held: That the transaction covered by said contract was not a sale of the bonds by F. to the bank, but a ■ bailment, and said contract was not a taxable credit against F. during the years 1900, 1901, 1902 and 1903.
    (No. 10641
    Decided February 11, 1908.)’
    Error to the Circuit Court of Coshocton county.
    On or about the 16th day of September, 1904, the plaintiff in error, as treasurer of Coshocton county, brought suit against defendants in error to recover certain taxes and penalties thereon. The petition is the short form permitted by statute and charges that the estate of the deceased Finley is still unsettled; that as such treasurer Clark has in his possession and control the' tax duplicate of personal property of said county, which duplicate contains unpaid taxes levied on personal property of the county, and- that on said duplicate there stands charged to the defendants, as executors of the will of said Robert E. Finley, personal property taxed in the sum of $2,868.75, and that said taxes are due and wholly unpaid. Judgment is prayed for in said sum with five per cent, thereon as compensation to plaintiff for collecting said taxes, and also interest on the taxes from the filing of the petition.
    The executors answered and admitted the official capacity of the plaintiff and the representative relation and capacity of the defendants when the petition was filed, but it is alleged that since .that time, Edwin Brown, one of the executors, died, leaving the defendant, William R. Gault, sole surviving executor. The allegations of the petition not so admitted are denied.
    The second defense presented by the answer, alleges that prior to the filing, of said petition, said executors had paid all 'taxes for which estate' was liable, and denies that said estate is liable for the payment of any taxes in addition to those already paid.
    It is specially alleged by defendant, that on or about the 27th day of February, 1900, said Robert E. Finley, then living, loaned to the First National Bank of New Comerstown, Ohio, United States three per cent, bonds to the amount of twelve thousand five hundred dollars, said bonds to be deposited by said bank with the treasurer of the United States to secure the circulating notes of said bank; that the loan was made upon a written contract, a copy of which is attached to the answer. It" is averred that said bonds upon which the plaintiff claims there is due unpaid taxes, were not by said Finley, during his lifetime, sold, assigned or transferred, nor did he in any manner part with his title and ownership of said bonds, or any part of them, but at his death, which occurred December 31, 1903, he was the owner of and held title to said bonds; that since his death said bonds continued to be a part of the assets of his estate, and on or about the first day of March, 1904, this defendant as such executor, in pursuance of said contract, directed the bank to sell said bonds and pay over to him as executor, the proceeds of said sale, and that in accordance with said directions, on or about the 25th day of March, 1904, said bank sold said bonds and turned over to the executor the proceeds, ■ amounting to $13,300, being the market price of the bonds on the day of sale.
    It is also alleged that the bank agreed to pay Finley for the use of said bonds.
    The treasurer’s reply is, that “he denies each and every allegation contained in the answer, excepting such as are specified admissions or denials of the allegations of plaintiff’s petition.”
    On the issues thus made up the case was tried to a jury. At the request of the treasurer, the court instructed the jury as follows: “Whether or not the contract between the First National Bank of New Comerstown, Ohio, and Robert E. Finley, involved in this case, is a taxable credit, is a question for the court, and whether or not the taxes on said taxable credit for the years 1900, 1901, 1902 and 1903, are due and unpaid, and the amount of said taxes due and unpaid thereupon, if any, are questions for the jury to be determined from the evidence in the case. And the court says to you, as a matter of law, that the contract is a taxable credit * *
    The executor asked for special instructions, among which are the following:

      “2. I further charge you that if you find from the evidence that ‘the taxes charged against the defendant are taxes charged against certain government bonds of the United States, owned by Robert E. Finley, deceased, during the period covered by the taxes in question, then your verdict should be for the defendant.
    “3. I further say to you, as a matter of law, that Robert E. Finley was the owner of said bonds in question, and that the delivery by him of said bonds to the First National Bank of New Comerstown, Ohio, was in legal effect a bailment of said bonds and the plaintiff can not recover.” A further charge, embracing the terms upon which the bonds were delivered to the bank, was requested, to the effect that the transaction was a bailment and not a sale.
    The court refused to give either request and exception was taken.
    The court charged that if there was no evidence showing bad faith in the delivery of the bonds to the bank, or fraudulent purpose to avoid taxation, no penalty could be recovered.
    The verdict was for the amount of taxes with.out penalty, $1,657.50, with interest from September 16, 1905. Motion for new trial was made and overruled and judgment rendered on the verdict. The executor prosecuted error in the circuit court, where the judgment of the common pleas was reversed on the stated grounds that the court erred “in charging the jury, in substance, that the said transaction and contract between the said R. E. Finley, deceased, and the National Bank of New Comerstown, constituted a sale of the United States bonds therein mentioned and was a taxable credit.” Also erred in refusing to charge that the transaction and contract constituted a bailment and not a sale.
    Error is prosecuted in this court by the treasurer to reverse the judgment of the circuit court.

      Mr. W. A. Hosack; Mr. J. C. Adams; Mr. J. B. Waight and Mr. J. L. McDowell, for plaintiff in error.
    A bailment is a delivery of goods in trust on a contract, either expressed or implied, that the trust should be duly executed, and the goods redelivered as soon as the time or use for which they were bailed shall have elapsed, or be performed. Jones on Bailment, 117.
    The authorities are uniform upon the proposition that a contract of bailment contemplates a redelivery of the identical thing bailed. Schouler on Bailment, Section 6; Coleman v. Lipscomb, 18 Mo. App., 443; Powder Co. v. Burkhardt, 97 U. S., 110.
    tlence, if the terms of the undertaking contemplated returning money instead, or any equivalent, the .transaction would constitute, not a bailment, but a sale. Whereas the recognized doctrine of England and the United States is, that the instant the property in this identical thing so delivered passes completely over to the new possessor, a sale takes effect; or in other words, the recipient’s fixed obligation- to render an equivalent is simply that of an owner having a further duty to perform. Schouler on Bailments, Section 6.
    The distinction between an irregular deposit, or a mutuum, and a sale, is sometimes drawn with great nicety, but it is clearly marked and has been settled by high authority. In case of a regular deposit the bailee is bound to return the specific article deposited; but where the depositary is to return another article of the same kind and value, or has an option to return the specific article or another of the same kind and value, it is an irregular deposit or mutuum, and passes fhe property as fully as a case of ordinary sale or exchange. Chase et al. v. Washburn, 1 Ohio St., 248.
    Finley knew the purpose for which the bank obtained the bonds. He knew when they were deposited with the comptroller of the - currency, that the title to the bonds had to be assigned and transferred by the bank to the treasurer of the United States and were held in trust by the government to secure the bank’s circulation. Pratt’s Digest of National Banking Laws, 1901 Ed., 68, 210.; Section 5159, Revised Statutes of United States.
    Where personal property is delivered by the owner to another for use, and the identical thing delivered is to be returned, the transaction .is a bailment, and there is no transfer of title; but if it is stipulated that the one to whom it is delivered may return another thing of the same kind or an equivalent in value, or otherwise, it' will ordinarily constitute a sale and effect a change of title. Carpenter v. Griffin et al.; 37 Am. Dec., 396; Caldwell v. Hall, 60 Miss., 330; Mallory v. Willis, 4 N. Y., 76; Hurd v. West, 7 Cowen, 752; Smith v. Smith, 91 Mich., 7; Barnes v. Morse, 38 Ill. App., 274; Heryford v. Davis, 102 U. S., 235; Jones on Bailments, Section 74; Story on Bailments, 47, 283, 439; Mining & Smelting Co. v. Shultz, 67 Kan., 605; Kellogg v. State, 26 Ohio St., 18; James & Neer v. Plank, Exr., 48 Ohio St, 265; Austin v. Seligman, 18 Fed. Rep., 519; Fleet v. Hertz, 98 Ill. App., 565; Foster v. Pettibone, 7 N. Y., 435.
    The authorities seem to be uniform upon the proposition that where corporate stock is pledged as security for a loan, and ‘the pledgee converts it and tenders back other stock of the same corporation of equal value that is not sufficient, the pledgor is not bound to accept it, but may treat it as a conversion and recover its value in money. A pledgor of corporate stock may treat a sale by the pledgee of such stock, a conversion, although the pledgee has at all times a sufficient number of shares of the same stock to meet the pledge, where the stock pledged can be identified. But this is not a pledge of bonds. These bonds were not pledged to the bank by Finley as security for debt.
    This loan of stock was not strictly a mutuum, 'as a mutuum is a loan for use and consumption, the thing being bailed to be consumed and an equivalent in kind subsequently returned. 2 Addison on Contracts, 462, 468; Fosdick v. Greene, 27 Ohio St., 484.

      Mr. T. H. Wheeler and Mr. W. R. Gault, for defendants in error.
    It is a fundamental principle of the law that where a written agreement has been entered into between parties, such construction shall be given to it as will carry out the clear intention of the contracting parties, for the first and main rule of construction is that the intent of the contracting parties as expressed in the words they have used, must govern. 2 Parsons on Contracts, 499; Mosier v. Parry, 60 Ohio St., 388; Railroad Co. v. Veeder & Co., 17 Ohio, 385; Kelly & Kilbourn v. Mills, 8 Ohio, 325; Mintier et al. v. Mintier, 28 Ohio St., 307.
    The testimony and contracts as set forth in said record show that the intention of said parties were on the part of the bank to borrow said bonds and on the part of the deceased to loan them.
    The defendant in error claims that the con-' tracts entered into between said parties created a bailment of the bonds in question and therefore were not taxable.
    Bailment is a delivery of a thing in trust for some special object of purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust. Story on Bailments, Section 2; 2 Kent’s Commentaries, 558; 2 Schouler on Bailments, Section 2.
    A bailment is a transfer of the possession of personal property without a transfer of the right of ownership, for the accomplishment of a certain purpose, whereupon the property is to be redelivered or delivered over to a third person. Hale on Bailment, page 5.
    If it is a sale as contended for by plaintiff in error, it must be a transfer of the absolute ownership of the property. A sale is a transfer of the absolute or general property in a thing for a price in money. Benjamin on Sales, Section 1.
    These two contracts taken together we submit indicate that it was the.intention of Finley to loan to the bank his United States bonds for a particular purpose, and that the bonds were to be returned to him on demand, the general property thus remaining in him and only a special property in the bonds passing to the bank.
    We further submit that the weight of authority on the question of whether or not contracts involving matters and stipulations as contained in contracts like the case at bar creates the relation of bailor and bailee. Fíale on Bailments, 6, 9, notes; Chamberlain et al. v. Smith, 44 Pa. St., 431; Middleton v. Stone, 111 Pa. St., 589; Armington v. Houston, 38 Vt., 448; Pratt v. Jones, 22 Vt., 341; Plow Co. v. Porter, 82 Mo., 23; Coquard v. Wernse et al., 100 Mo., 137; Sturm v. Baker, 150 U. S., 312; Guss v. Nelson, 100 Mass., 198; 2 Cook on Corporations, Section 469; Fosdick v. Greene, 27 Ohio St., 485.
    It was possible for the bank to withdraw at least $5,000.00 of the bonds so deposited, as they were registered, and return the identical bonds back to Finley if he should demand them, thus fulfilling the contract between them in so far as those bonds were concerned; this is undoubtedly, we think, a bailment. Pratt’s Digest of National Banking Laws, Section 84, p. 84.
    Under this contract it calls for the redelivery of the bonds so loaned the bank when called on by said Finley, and as contemplated by the parties under the rules of the -treasury department, said bonds were held subject to be returned on call being made for them, for it is held by the treasury department that the direct responsibility of ascertaining the safety and actual presence on deposit of the bonds held in trust for it by the treasurer is on the association depositing them. Pratt’s Digest of National Banking Laws, Section 67, note, page 83.
    There seems to be a marked exception in the law of bailments, that is, that in the pledge of corporate securites the identical certificates need not be returned. Hale on Bailments, 159; 2 Cook on Corporations, Section 469.
    The mere option -to elect to treat a bailment as a sale at some future time, does not deprive it of its character of a bailment. Insurance Co. v. Carpenter, 40 Ohio St., 261; Colton v. Wise, 7 Ill. App., 395; Ledyard v. Hibbard et al., 48 Mich., 421.
    A delivery, in the nature of a bailment'with an option to purchase or sell may be made with' the understanding that upon certain conditions the thing delivered shall, become the property of the bailee, and when he has performed the conditions the bailment may then cease, and a sale is thereby constituted,, and we submit that this transaction would be a bailment with an option to do certain things, for if goods or chattels are taken with an option to purchase, the transaction is a bailment.
    It makes no difference, we submit, that even though the government does change the coupon bonds to'registered so as to comply with the rules of the national banking act, _ for it has been held that it makes no difference in reason or law into what other form different from the original the change may have been made, for the product of or substitute for the original thing still follows the thing itself and only ceases when the subject is turned into money and mixed and confounded in a general mass of the same description. 5 Cyc., 169; Sattler, Assignee, v. Hallock et al, 160 N. Y., 291, 54 N. E. Rep., 667; Mack et al v. Snell, 140 N. Y., 193.
    Where property is deposited with another when it can be calculated in like kind, the owner having a right to contemplate a return of an equal amount of like kind and quality, it is a bailment. Inglebright v. Hammond, 19 Ohio, 337; O’Dell, Assignee, v. Leyda et al., 46 Ohio St., 244, 20 N. E. Rep., 472; James & Neer v. Plank, Exr., 26 N. E. Rep., 1107.
    An express promise to redeliver goods when called for, creates a bailment, even though the promisor never intended to call for them. Selleck v. Selleck et al., 107 Ill., 389; Smith & Jones v. Jones, 8 Ark., 109.
    It is held that, when the lender gains a benefit therefrom as well as the borrower, it is a bailment. 5 Cyc., 163; Chamberlain v. Cobb, 32 Ia., 161.
    In all cases where it is the intention of the parties that the title is not to pass it is a bailment. Smith et al. v. Gilbert, 71 Conn., 151; 5 Cyc., 169.
   Price, J.

At the date of the delivery of the government bonds in question by Robert E. Finley to the First National Bank of New Comers-town, Ohio, it was just entering upon its career as a new banking corporation. It desired to issue some-of its circulating notes and in order to obtain permission to do so, was required to deposit with the comptroller of the currency, bonds of the United States as security for the circulation to be issued. Robert E. Finley was a stockholder in the bank and was the owner of five one thousand dollar registered bonds of the United States and $7,500 in coupon bonds, all being three per cent, bonds of the issue of June, 1898.

Negotiations were begun between the bank and Mr. Finley for the use of his bonds to deposit with the comptroller of the currency, which negotiations resulted in the execution of the following instruments: “Received of Robert E. Finley $12;-500 United States three per cent, bonds of the issue of 1898 (by act of June 13, 1898), to be deposited by this bank with the treasurer of the United States to secure its circulating notes, which said $12,500 three per cent, bonds this bank hereby agrees to return at any time upon demand, after sixty days’ -notice to the said Robert E. Finley, or their equivalent in lawful money of the United States, -should the said Robert E. Finley so elect, the price to be paid, if paid in money, to be the selling price of said bonds upon the day of delivery upon' the stock exchange in the city of New York. When said bonds are returned $5,000 shall be registered and $7,500 shall be coupon.

“•First National Bank of New Comerstown,
“By A. M. Beers, Pres.,'
“C. E. Boden, Cashier.
“February 27, 1900.”'

Contemporaneous with the execution of the foregoing, the following instrument was executed:

“Coshocton, Ohio, Feb. 27, 1900.
“The First National Bank of New Comerstown, Ohio, agrees to pay the said Robert E. Finley the interest it receives from the United States treasurer on the $12,500 bonds delivered'by said Robert E. Finley to said bank on the 27th day of February, 1900, and $156.25 per annum additional during the time it holds them, payable quarterly, the first day of February, May, August and November in each year.”

This obligation is signed by the same officers who executed the first instrument, and the two constitute the whole agreement of the parties. Under the terms of these instruments two diverse claims are made- — -one by the treasurer, plaintiff below, that they show a sale of the bonds to the bank; the other by the executor of the will of Finley, that they constitute a bailment, the title to the bonds remaining in Finley during his life and in his executor thereafter until he elected to accept 'their value as provided in the latter part of the first instrument. Finley died on the 31st day of December, 1903, and on or about the first day of March, 1904, the executor, in pursuance of the contract directed said bank to sell the bonds and pay oyer to him the proceeds of the sale, which was done on or about the 25th day of March, 1904, the sum realized being the then market f price on the stock exchange New York. The amount realized was $13,330, being a premium of $800. At thé same time, as shown by the evidence of the executor and not disputed, the bank paid him $39.06, being the rent of the bonds, for the preceding quarter or longer.

If there lurks in the candid mind any doubt about the true construction of said instruments under which the bonds were delivered to the bank, one or more additional facts properly appear in the record which may reflect the intention of the parties. Dr. A. M. Beers was then president of the bank, and in his testimony beginning on page 45 of the printed record, he says that “after careful investigation we found it cheaper to borrow, as we called it — to borrow bonds than to buy them. The premium upon the class of bonds required was so much better that we found it economy to borrow the bonds, expecting later to buy the bonds with the funds in hand — that there w.as a saving to the bank in so doing.” He also states that Finley was a stockholder in the bank arid interested in its economical management, and that they had other loans of bonds offered the bank. One Vogenitz was cashier of the bank when the bonds were sold on request of the executor. He testifies, in substance, that when the Finley bonds were sold, the bank had to buy other bonds to take their place, and he says, on page 57 of the printed record, that these new bonds purchased as a substitute for the Finley bonds, were the first bonds that the bank ever purchased. It would seem from this statement and it may be fairly inferred, that the bonds delivered by Finley to the bank and by it deposited with the comptroller to secure the bank’s notes of circulation, remained intact as they were so deposited, until sold under the directions of the executor as above stated.

While it is true that the government required the deposit of registered bonds to secure circulation, and that only $5,000 of the Finley bonds were of that class, it is also true that the comptroller of the currency could and did convert the $7,500 of coupon bonds into the registered class without detriment to the owner or depositor. As to what effect such conversion would have upon the question of sale or bailment, we will consider later. But we think it very plain, that in 'the negotiations which led up to the delivery of these bonds to the bank, the conversion of the coupon bonds into registered bonds was contemplated, for that would be necesary in order to carry out the purpose of the delivery, and Finley will be presumed to have understood and consented to the inevitable course which would substitute $7,500 of three per cent, registered bonds for the three per cent, coupon bonds. Having knowledge that this change would be essential to accomplish the purposes of the bank, such change was, in effect, made h)*- his direction.

Under the terms of the written instrument and the attendant circumstances, was the transaction involved a sale, or was it a bailment? If a sale, the amount ($12,500) represented by the bonds would be a credit subject to taxation, and as it was omitted from the returns for the years 1900, 1901, 1902 and 1903, the taxing authorities were not at fault for placing it upon the duplicate and endeavoring to collect the taxes. On the other hand, if the title to the bonds remained in Finley, they were not taxable under the law, and the circuit court is right in its judgment.

Let us test the case by the rules of law pertaining to sales. Authors on the subject of sales substantially agree that a sale is a contract founded on a money consideration, by which the absolute or general property in the subject of sale is transferred from the seller to the buyer, and that the essentials of a sale are: (1) a mutual agreement; (2) competent parties; (3) a money consideration; (4) a transfer of the absolute or general property from the seller to the buyer. If any of these ingredients be wanting there is no sale. In this case we can not find any mutual agreement to sell. There is no consideration fixed for an agreement to sell. The only mention of a price for the bonds is found in the clause, that on sixty days’ notice to the bank FinLy might demand either the return of the bonds, or their equivalent in lawful money of the United States as he might elect, and if he should elect to take the money, the price to be paid was to be the selling price of the bonds — not on the day of their, delivery to the bank, but on the day of their delivery to the purchaser at the market price on the stock exchange of New York. H-ence, there was no price fixed to be paid on the day of the delivery of the bonds, and the right to pay the money in lieu of the bonds was not vested in the bank, but was reserved to the owner to be exercised by him alone, and then only after the giving of the specified notice. In this vital respect, the case differs from Chase et al. v. Washburn, 1 Ohio St., 244. There the right of election was in the depositary.

Again, it is provided in the written instrument, that the bank would pay to Finley the three per cent, interest it would receive from the treasurer of fthe United States on said bonds, and in addition to pay him $156.25 per annum during the time it would hold them, which latter sum should be paid quarterly, the first day of February, May, August and November each year, which would make about one and one-fourth per cent, in addition to the three per cent, accruing on the bonds. This is a clear mark of ownership of the bonds by' Finley. He alone could profit in their use, and all the bank could get out of the transaction was the right to deposit them with the comptroller as security for its circulating medium. There was no assignment of the bonds, either verbally or in writing, but they were delivered under the conditions expressed in the writings. The parties regarded the transaction as a loan, and their intention is of great consequence in construing their contracts where such ascertained intention is not in conflict with the terms of such contract. The bank did not own the bonds, because it had agreed to return them after sixty days’ notice, and if the bonds were not wanted, their value on a day when a sale could be made for the market price on the New York stock exchange would be paid, and until that event no absolute title to the bonds vested in the bank, or any other purchaser.

We are satisfied that the delivery of the bonds under the contract was a bailment for hire and not a sale, and being a bailment for hire, more latitude is allowed the bailee than in cases of mere deposit. It is said by the authorities that where the bailment is one of hiring or for compensation, the bailee during the period of the hiring,, is entitled to use, enjoy and possess the subject-matter thereof in any manner contemplated by the contract, and this right is exclusive not only against third persons, but against the bailor, who has no right to disturb him. 5 Cyc., 178.

But it is urged that the title to the bonds could not remain in Finley because they were to be deposited with the comptroller of the currency to secure circulation of the bank’s notes, and that the comptroller would take title untrammeled by the claim of Finley. We think this position is untenable under the facts and the law. The treasury department does not ask or obtain absolute title to the bonds in such cases. Its title is one of security merely, and for that purpose its possession is absolute so long as security is required. But the hour when the bank redeems its outstanding notes, the department’s hold is released and the bonds return to the pledgor bank. Or if, as in this case, the bonds deposited are called by the original and real owner, and the bank substitutes other acceptable bonds to secure its circulation, the former bonds must be surrendered tc the bank. Therefore, the holding of the treasury department is in trust for the bank for a particular purpose, and the bank being a bailee of the bonds so used, receives them back to be disposed of under the agreement between it' and the true owner. There is nothing mysterious about the relation which the several parties involved in the transactions sustain to each other. However, it is asserted here that the return of the same or identical bonds could not have been contemplated by Finley, for it was evident that to the amount of $7,500 in coupon bonds, they were to-be and were converted by the comptroller into registered bonds bearing' the same interest, and that such fact is a conspicuous earmark of a sale to the bank. And it is well to state in this connection that it is stipulated in the latter part of the first instrument quoted, that “when said bonds are returned $5,000 shall be registered and $7,500 shall be coupon.” This is an express provision that bonds of the same classes and bearing the same interest as those delivered or loaned to the bank, shall be returned in case Finley should not elect to take thefr value when sold on the New York stock exchange. As we have seen, when the executor made the election to take the-proceeds of such sale, the identical registered bonds were with the comptroller. They could, but for the election, have been returned in specie, and as the comptroller had converted the $7,500 of coupon bonds into the registered class, it was within the power of the department to re-convert the latter into coupon bonds of the same issue as the former, when others of the registered class were deposited in their place. So there was no insurmountable obstacle to compliance with the stipulations above quoted. This view is demonstrated by the fact that when the executor exercised the right reserved to Finley in the contract and gave the required notice, the registered, which included all the bonds deposited by the bank, were sold for stock exchange prices arid, of course, the bank had to deposit other bonds in their, stead with the department. But for the election by the executor— the bailment terminating by the death of Finley— $5,000 of the identical bonds would have been returned, and $7,500 in coupon bonds, all of the same issue of June, 1898, could and would also have been returned. The latter might not have been the identical coupon bonds deposited, but the same kind in every respect, and this would have filled the contract between the parties. This view is in harmony with Fosdick v. Greene, 27 Ohio St., 484, and is supported by Sattler, Assignee, v. Hallock et al., 160 N. Y., 291; Harris v. Coe et al., 71 Conn., 157. Our case is fully covered by the doctrine of O’Dell, Assignee, v. Leyda et al., 46 Ohio St., 244.

Very many authorities might be cited, but in our judgment they are not needed.

It follows that the court of common pleas erred in charging the jury as requested Fy the treasurer, and also erred in refusing to charge as requested b}r the executor, and that its judgment is erroneous and was properly reversed by the circuit court.

Judgment of circuit cotirt affirmed.

Si-iaucic, C. J., Crew, Spear and Davis, JJ., concur.


author: Shauck, C. J.

text:
    Whitaker, Admr., v. The Michigan Mutual Life Insurance Company.

      Circuit court reviewing common pleas judgment — May have cognizance of record facts only — Party entitled to instruction on verdict — Failing to make request — Not entitled to judgment on error. ■

    1. A circuit court when reviewing a judgment of the court of common pleas may have cognizance of such facts only as appear upon the record under review.
    2. Although a party against whom a verdict is returned and a judgment is rendered in the court of common pleas may have been entitled to an instruction to the jury to return a verdict in his favor, he is not, on that account, entitled to a final judgment in his favor in a reviewing court unless upon the trial he has requested that such instruction be given.
    (No. 10516
    Decided February 11, 1908.)
    Error to the Circuit Court of Hamilton county.
    Suit was brought by the plaintiff in error in the court of common pleas to recover from the insurance company upon two policies on the life of his intestate. In its answer the company alleged the policies were procured by the making of certain false and fraudulent representations respecting the condition of his health at the time the policies were issued. Issues being joined upon these allegations of the answer the cause was tried to a jury which returned a verdict for the plaintiff. A motion for á new trial having been overruled judgment was rendered on the verdict. The company prosecuted error to the circuit court where the judgment of the court of common pleas was reversed upon the ground as shown by the journal, “That the verdict and judgment were not supported by sufficient evidence, and therefore that the court erred in overruling defendant’s motion for a new trial, and the court find no other errors in the record.” The cause was remanded to the court of common pleas for a new trial.
    The cause came on for a second trial in the court of common pleas which resulted in a verdict for the plaintiff, and a motion for a new trial being overruled judgment was again rendered for the plaintiff. The company did not, upon the second trial, ask the court to direct the jury to return a verdict in its favor. The company filed a petition in error in the circuit court assigning numerous errors and praying for a reversal of the judgment. Said judgment was reversed by the circuit court and a final judgment rendered in favor of the company, the material portion of its judgment being as follows:
    “Said verdict and judgment was not sustained by sufficient evidence, and because said verdict and judgment was not sustained by sufficient evidence and because this court, in a former proceeding in error in this court in substantially the same testimony, had so similarly held, it was the duty of the trial court in this cause, to whose judgment this error proceeding is prosecuted, to have directed a verdict for the defendant at the conclusion of the testimony, to all of which plaintiff in error excepts. And the court now on its own motion, coming to enter ■ the judgment that the court of common pleas should have entered, as aforesaid, now enters this judgment, to-wit: That the judgment of the court of common pleas, to which error is now prosecuted herein, be, and the same-is hereby vacated and held for naught and this court proceeding to render the judgment which should have been rendered by the court of common pleas, it is accordingly considered, ordered and adjudged that the petition of the plaintiff be, and the same is, hereby dismissed and final judgment is now entered in this cause in favor of the defendant below, The Michigan Mutual Life Insurance Company, and it is ordered that the said defendant, to-wit, this plaintiff in error, go now hence without day and recover of the defendant in error all of its costs, not only in this court but in the court of common pleas, which same are taxed at $-
    In his petition in error filed here, the plaintiff prays that the judgment of the circuit court may be reversed and that the cause be remanded to the court of common pleas for a new trial.

      Mr. Thorne Baker and Mr. Charles W. Baker, for plaintiff in error.

      Messrs. Maxwell & Ramsey, for defendant in error.
   Shauck, C. J.

In so far as the judgment of the circuit court reverses that of the court of common pleas on the ground that it was against the weight of the evidence, it is admitted that it must be affirmed here because this court does not determine the weight of conflicting evidence.

But' the circuit court, applying the view that its reversal of the former judgment upon the weight of the evidence was an adjudication of the company’s right to a verdict and judgment upon that evidence, and that the right so determined should have been enforced by the trial court when the cause was again submitted upon the same evidence, rendered a final judgment in favor of the company dismissing the original petition of the plaintiff. Assuming the correctness of that view respecting the effect of the former judgment of the circuit court, there are two reasons why it should not have been applied in the present case. Both the circuit court and the court of common pleas are courts of record, and it can not be material whether the same or different judges sat in the several trials and reviews which have been had. In any view the record before us is to be regarded as showing all that appeared in the court of common pleas upon the second trial and all that was presented for the consideration of the circuit court when reviewing the judgment. From this record it does appear that all of the evidence which was offered upon the second trial was read to the jury from a bill of exceptions which had been taken upon the former trial, but it does not appear that upon the second trial all the evidence was offered which had been offered upon the former trial. Therefore, having in mind the conclusiveness of the record it does not appear that the former judgment of the circuit ’ court was not influenced by substantial evidence which does not appear in the present record.

It is also clear that the circuit court erred in reversing the judgment of the court of common pleas because it did not give an instruction which the company had not requested. Although this precise question is novel, the reasons involved do not seem to justify a distinction between cases in which a party is entitled to a directed verdict, whether because of a former adjudication upon the weight of the evidence offered, or because of the failure of his adversary to adduce evidence in support of a material allegation with respect to which, in view of the issues joined, the burden of proof is upon him. In either case the party entitled to the instruction is amenable to the familiar rule that he must request the trial court to give it, since error consists not in the failure, but in the refusal, to give an instruction to which a party is entitled. That instruction being requested in a proper case, its refusal is error which entitles a party to a final judgment in the reviewing court, because otherwise he could not be placed in the position which he would have occupied if the error had not intervened.

The judgment of reversal rendered by the circuit court is affirmed, the final judgment rendered by it in favor of the company is reversed, and the cause is remanded to the court of common pleas for a new trial.

Remanded.

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


author: By the Court.

text:
    The State of Ohio v. Lingafelter.

      Rule of accessories after the fact — Law in Ohio — Forgery—Attempt to cover crime and prevent detection — Do not constitute aiding and abetting — Section 6804, Revised Statutes.

    1. The common law rules as to accessories after the fact do not prevail in Ohio.
    2. Where one is indicted and placed on trial for the crime of forgery, and the evidence fails to show that the accused committed the forgery, but tends to prove, that after said offense had been committed by another, such accused person performed acts in the interest of the forger, for the purpose of covering up his forgery and of preventing his detection and punishment, such subsequent acts do not constitute aiding aiid abetting of the forgery as defined in Section 6804, Revised Statutes.
    (No. 10819
    Decided February 11, 1908.)
    Error to the Circuit Court of Coshocton county.
    At the January term of the court of common pleas of Licking county for the year 1906, the grand jury returned an indictment against the defendant in error for forgery. The indictment resulted from an investigation of the affairs of The Homestead Building & Savings Company of Newark, Ohio, an institution incorporated in the year 1887. It was organized with James F. Lingafelter as secretary, who remained in that office until the company went into the hands of a receiver in May, 1904. Mary J. Lingafelter, defendant in error, was the wife of James F., and she and her son Robert C. «Lingafelter, in conjunction with the husband and father, did most of the clerical work of the association for a number of years previous to the year 1902.

      The indictment which charged Mary J. with forgery was founded upon a receipt for the payment ' on paid-up stock to which the name of Thomas D. Lloyd had been signed. The case was transferred to Coshocton county on a change of venue. The testimony on the trial under this indictment showed that in the year 1893 Lloyd became a member of the above savings company and subscribed for' a certificate of paid-up stock entitling him to four shares, for which he paid face value, $400. At no time did he draw any money upon the certificate, other than the dividends which accrued semi-annually. However, on the 19th day of March, 1900, on the books of the association in the handwriting of Robert C. Lingafelter, there appeared a receipt for $200 to which Lloyd’s name had been signed by someone, but Lloyd ■ claimed his signature had been forged, and that seemed to be true. On the trial of defendant in error, the above certificate of stock was introduced in evidence, and there was no endorsement thereon of any payment made to Lloyd or anyone, although the rules of the company required such endorsement when partial payment had been made. It further appeared at the trial that the only record book showing partial payments or withdrawals on paid-up stock, which was kept by the company, was an entry made upon the stub of the original stock certificate book. In the Lloyd case this entry appeared in the handwriting of Mrs. Lingafelter. This entry on the stub of the original' certificate was an entry of the alleged payment to Lloyd of the $200. But it was for forging the above mentioned receipt she was indicted and placed on trial. It was not claimed by the state that Mrs. Lingafelter either wrote or signed Lloyd’s name to the receipt, but that the same was done by the son Robert C. Lingafelter, and that some time afterward she made the entry on the stub with knowledge that her son Robert had forged the receipt, for the purpose of aiding her son to escape detection and punishment for the forgery. There was no testimony showing that Mrs. Lingafelter was presént when the receipt was forged by her son Robert.
    In order to hold Mrs. Lingafelter for the forgery because of the entry on the stub, the state asked.the trial court to charge the jury: “If you find from the evidence that the defendant Mary J. Lingafelter, after the commission by Robert C. Lingafelter of the forgery charged in the indictment herein, if you find that such forgery was committed by him, made false entries upon the stub of the certificate of paid-up stock owned by Thomas D. Lloyd, and that such entry was made by the said defendant with knowledge of said forgery on the part of said Robert C. Lingafelter, and was made for the purpose of assisting or relieving said Robert C. Lingafelter in order to hinder his apprehension, trial or punishment for the commission of said forgery, then the court charges you that such act on the part of the defendant would be a violation of Section 6804 of the ■ Revised Statutes, and such act would constitute an aiding and abetting within the meaning of Section 6804 of the Revised Statutes; and in such case it makes no difference that the relationship of parent and child existed between the said defendant and the said Robert C. Lingafelter.”
    This charge was given and Mrs. Lingafelter was convicted. The charge was excepted to. The court sentenced her to imprisonment in the penitentiary. Error was prosecuted in the circuit court, where the above charge was held to be erroneous, and the judgment of the court of common pleas was reversed and cause remanded. The state prosecutes error here to reverse the judgment of the circuit court.

      Mr. J. R. F itz gibbon and Mr. W. R. Pomerene, for plaintiff in error.

      Mr. F. V. Owen; Messrs. Smythe & Smythe and Mr. John D. Jones, for defendant in error.
   By the Court.

The record in this case is very imperfect, and that, too, without any visible excuse. From the material on hand, we learn that at or about the time charged in the indictment, Robert C. Lingafelter forged the name of Thomas D. Lloyd to a receipt for two hundred dollars as so much withdrawn from The Homestead Building & Savings Company, in which he held a certificate of paid-up stock in the sum of four hundred dollars. In fact the money had not been withdrawn by Lloyd or anyone for him. The accused Mary J. Lingafelter, mother of Robert, during several years, had done some of the clerical work of the institution, and on her trial for forgery of the above receipt, the evidence tended to prove that some time after the forgery by Robert C. Lingafelter, the son, Mrs. Lingafelter, knowing that he had committed the forgery, made a certain entry or entries on the stub of said certificate for the purpose of covering up evidence of his crime, and to hinder and prevent his detection and punishment. It is not claimed that she was present when the forgery was committed or that she had advised or aided in its commission.

Her acts and conduct in regard to making the entry or entries on the stub, after the forgery by the son, are relied on by the state to hold her conviction, and hence the charge of the trial court, or one similar in essence, became necessary.

It must be remembered that Mrs. Lingafelter was indicted and tried for forging the receipt, but the evidence showed nothing more on her part than above stated. The charge to the jury selects for its warrant Section 6804, Revised Statutes, which is:

“Whoever aids, abets, or procures another to commit any offense, may be prosecuted and punished as if he were the principal offender.” And the charge recites in substance the facts we have stated, and the jury was told, if they so found the facts as to Mrs. Lingafelter, she violated the above section of the statute and such acts would constitute aiding and abetting within the meaning of said section.

If there is one word in the statute cited that warrants the charge of the court, we are unable to find it. We have heretofore understood, that aiding or abetting must either precede or accompany the commission of the offense, and we cannot now see how the commission of a crime can be aided and abetted by the act or conduct of another party after the offense has been fully completed.

• However, the trial court so construed the statute that, not only what may be done before the principal offense is committed, but what may be done afterwards by one not the principal offender, is within the definition of the statute. Or, in other words, when the general assembly was declaring the acts of one before the offense which aided and abetted its commission, to be a crime, it intended to include acts done or performed after the principal offense. That is equivalent to saying that “before” may mean “after,” and if that is not precisely correct, it may mean both. To sustain the charge, something besides the statute must be drawn upon, and a portion of the common law of crimes — the law of accessories after the fact — is mixed with the statute and from the curious compound so produced, the conduct of the accused was declared to be in violation of Section 6804, so compounded with the common law.

It often has been decided by this court that we have no common law crimes in Ohio; that the general assembly has taken the responsibility of defining what acts or omissions are crimes and offenses in this state, and of prescribing suitable penalties in case of guilt. This doctrine has been repeatedly announced by this court, and the latest distinct pronouncement on the subject is found in Johnson v. State, 66 Ohio St., 59. There, former decisions are reviewed and commented upon as being in harmony on the proposition that we have no common law crimes in Ohio. Therefore, we have in law no accessories after the fact. Whenever and' wherever the legislature has deemed it necessary to penalize the acts of one which are done or performed after the commission of the principal offense, it has enacted statutes to meet the case, and such acts are made a substantive offense as distinguished from the relation of accessory after the fact as recognized at common law, as in cases for receiving stolen goods and the like.

Further discussion is not necessary on so plain a question. The charge of the trial court was and is erroneous, and therefore the judgment of reversal rendered by the circuit court should be and it is affirmed.

Judgment affirmed.

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


author: By ti-ie Court.

text:
    The State of Ohio v. Young.

      Misconduct of counsel — Remarks to: jury — ■Error—Must be brought into record — By certificate of judge — Affidavit instifñcient.

    The remarks of counsel in addressing a jury, to be the predicate of a proceeding in error upon the ground of misconduct of counsel in that regard, must be brought into the record of the trial by the certificate of the trial judge as are other matters occurring upon the trial and in his presence. They cannot be introduced by affidavit,
    (No. 10720
    Decided February 11, 1908.)
    Error to the Circuit Court of Allen county.

      The defendant in error was tried in the court of common pleas of Allen county upon an indictment charging him with a felony. A verdict of guilty having been returned, he filed a motion for new trial on the ground, among others, that the verdict had been procured by misconduct of one of the counsel representing the state, the misconduct being in his address to the jury. In support of this ground of the motion he filed an affidavit of the court stenographer purporting to set forth the language of the address, and that evidence is embodied in a separate bill of exceptions taken upon the overruling of the motion for a new trial. The language of counsel to which objection was taken does not otherwise appear in the record. In the common pleas court the motion for a new trial was overruled and sentence was imposed. On petition in error, the circuit court reversed the judgment of the court of common pleas because of such misconduct of counsel, no other error being found.

      Mr. B. F. Welty, prosecuting attorney, and Mr. William Klinger, for plaintiff in error.
   By ti-ie Court.

All things occurring in open court in the progress of a cause, from and including the impaneling of the jury to the submission of the cause, should be brought upon the record by a bill or bills of exception, verified by the certificate of the trial judge. That certificate imports absolute verity. The matters so to be included, transpiring in the presence of the trial judge and being within his knowledge, are to be thus conclusively stated in the record. They should not be left to affidavits and counter affidavits raising questions which depend upon the veracity and intelligence of witnesses and their opportunities for accurate observation. With respect to this subject the remarks of counsel to the jury are within the same rules and reason as are their questions to witnesses, their objections to evidence, their exceptions to rulings of the court, and their requests for instructions to the jury. Improper remarks to the jury during argument should be at once objected to. The action of the court upon such objection may be the subject of exception, and all should be shown as a part of the trial. Although the misconduct here complained of, if it occurred, occurred upon the trial and in the presence of the court, the practice resorted to treated it as conduct affecting the trial but not occurring in the presence of the court and, therefore, to be brought to the attention of the court by a motion and affidavits which were subject to controversy and inquiry. It would have been entirely competent for the court to reject this affidavit because of its superior and conclusive knowledge of the facts to which the affidavit related. The remarks of counsel not being properly shown in the record afforded to the circuit court no proper occasion for reversing the judgment.

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

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