author: Williams, J.

text:
    The State of Ohio v. Thomas.

      Criminal law — Indictment—Motion to quash — Plea in abatement — • A judge of court of common pleas has authority to hold court in any county in his district though not so designated — Section 468, Revised Statutes — Legality of jtidicial acts on holidays — Sections 457, and 4446-2, Revised Statutes — Labor Day — Selection of grand jurors and filling vacancy caused by sickness — Section 7202 Revised Statutes.

    1. A judge of the court of common pleas has authority to hold court in any county in his district, though not designated by the judges of the district, as provided by section 468 of the Revised Statutes, to hold court in that county; and an indictment found and returned at a term so held is not invalid, either because the judge holding the term was not designated to hold the same, or because the judges of the district failed to apportion the labor of holding the courts among themselves, and issue an order specifying the terms to be held by each judge.
    2. Construing section 457 of the Revised Statutes, with section 4446-2, which makes the first Monday in September a holiday to be known as labor day, it is not unlawful to hold the court of common pleas on that day when the judges of the district in the exercise of their powers under the first of these sections have fixed that day for the commencement of the term; and an indictment found and returned by a grand jury impaneled and sworn on on that day is not, on that account, invalid.
    3. Where, after a grand jury has been sworn, a member is discharged on account of sickness and another person having the legal qualifications is sworn in his stead, as provided by section 7202 of the Revised Statutes, and the person so sworn takes his place on the panel, the body so constituted is a legal grand jury, though a foreman be not again appointed, nor the oath re-administered to him, or to the other members as a body.

      4. It is not necessary that the records of the court should show how, or by whom, the grand jurors were selected and drawn. The legal presumption is that duty was regularly performed by the proper officers; but if it was not so done, that is not a valid objection to an indictment.
    (Decided January 9, 1900.)
    Exceptions by tbe prosecuting attorney to tbe ruling of tbe Court of Common Pleas of Brown County.

      The grand jury empanelled at the September term, 1899, of the court of common pleas of Brown county, found and returned the following indictment against William Thomas for horse stealing and grand larceny:
    “The jurors of the grand jury of the state of Ohio, within and for the body of the county of Brown aforesaid, on their oaths, in the name and by the authority of the state of Ohio, do find and present that William Thomas, late of the county aforesaid, on the 17th day of July, in the year of our Lord, one thousand, eight hundred and ninety-nine, at the county aforesaid, unlawfully and purposely did steal, take and drive away one bay mare, of the value of forty dollars ($40.00), the personal property of Frank E. Boyd, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio.
    And the jurors of the grand jury aforesaid, in and for the county aforesaid, upon their oaths aforesaid, and in the name and by the authority of the state of Ohio aforesaid, do find and present that the said William Thomas aforesaid, late of the county aforesaid, at the time and date aforesaid, at the county aforesaid, unlawfully and purposely did take, steal and haul away one black-painted, top buggy, then and there being of the value of fifty dollars ($50.00), the personal property, goods and chattels of one Frank E. Boyd, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”
    The indictment was duly signed and endorsed, and was placed on file by the clerk. At the same term the accused filed the following motion to quash the indictment:
    “The defendant, William Thomas, moves the court to quash the said indictment against him for the following defects appearing on the face of the record, to-wit:
    1st — Because no judge was assigned and designated to hold the April term, A. D. 1899, of said common pleas court, as required by section 468 of the revised Statutes of the state of Ohio.
    2nd — Because no judge was assigned and designated to hold the September term, A. D. 1899, of said court, as required by law.
    3d — Because no valid order was made for the drawing of the grand jury which found said indictment.
    4th — The judge, who fixed and determined the number of ballots to be drawn from the jury wheel for the grand jury and the petit jury for the September term, A. D. 1899, of said court, had not been designated to hold the common pleas court in said county, as required by law.
    5th — The grand jury, which found said indictment, was not drawn and empanelled as required by law.
    6th — The record does not show that the grand jury, which found said indictment, was drawn at the time and place and by the persons designated by law.
    7th — The judge, who convened and presided at the September term, A. D. 1899, of the said court of common pleas, had no authority or jurisdiction to hold the said September term, A. D. 1899, of the said court of common pleas; and neither the said judge, nor the said court, had jurisdiction or authority, at the time and place appearing on the face of the records, to open or hold said court, or to empanel, swear or charge, or to have empanelled, sworn or charged the said grand jury, which found the said indictment against this defendant, the day of the convenmg of said court and empanelling of said grand jury, to-wit: the 4th day of September being a legal holiday, to-wit: Labor day.
    Sth — The said grand jury, which found said indictment, had no jurisdiction of the person of this defendant; nor had said grand jury any jurisdiction to inquire into said alleged offense, or present any indictment against this defendant therefor.
    9th — The said Samuel F. Walker, one of the grand jurors who found said indictment, and who was called by the court instead of A. E. Emmett, discharged, was not sworn as such grand juror according to law.
    10th — The said grand jury which found said indictment, after the substitution of the said Samuel F. Walker as a member thereof, for the said A. E. Emmett discharged, was not empanelled, sworn or charged according to law.
    11th — Because no foreman of said grand jury, as it was constituted after the substitution of the said Samuel F. Walker for the said A. E. Emmett, was appointed by the court or sworn in the manner and form prescribed by law.
    12th — The grand jury, which found said indictment, was not empanelled and sworn as required by law.
    13th — Said grand jury was not legally constituted, and was not a lawful grand jury.
    14th — Because said indictment was not prepared, nor presented by the grand jury as required by law.
    15th — Because the said indictment is insufficient in form and substance.
    16th — For other reasons apparent on the record.”
    The motion was sustained, and the defendant ordered to enter into a recognizance, with surety, for his appearance at the next term of the court, to await the action of the grand jury at that term, and in default thereof to stand committed for that purpose. The prosecuting attorney excepted to the ruling of the court in sustaining the motion, and on leave granted him filed a bill of exceptions taken in that behalf, in this court. The only questions argued are those involved in the motion to quash the indictment, and they are sufficiently stated in the opinion.

      James W. Tarbell, prosecuting attorney, for the exception.
    We contend that section 468, Revised' Statutes, so far as it requires the judges to fix the terms of the common pleas court is mandatory; but the other provision of the section, for the apportionment of the labor and specifying what judge shall hold each term or part term is merely directory. An act of the essence of a thing required by a statute is imperative; but the mode of doing it may be directory. Hubble v. Rennick, 1 Ohio St., 175; The State v. Elson, 45 Ohio St., 648.
    This court has recognized this rule in a number of cases and marked the distinction in statutes between what is mandatory and what is only directory. Davis v. Smith, 58 N. H., 47. Endlich, Interp. Statutes, Sec. 431, etc.; 14 Vol. Am. and Eng. Ency. Law, 249.
    The essential thing required by revised statute, Sec. 468, is the fixing of the terms of the courts; in that the public is interested, and public policy requires it to be done and it is therefore mandatory; all else, as to what particular judge shall hold the term is directory. Yol. Bouvier’s Law Die., 424.
    The original statute (Laws of Ohio, 72 v. 38) contained the provision that “in arranging the division of labor by the judges, they shall, as far as necessary, so arrange the same as to have the courts held by judges in counties in which the judge holding the same is not a resident;” and this was the law until February 7, 1885. (Laws of Ohio, 82 y. 24). It is common knowledge among lawyers that this provision was regarded by the courts and the bar as directory, and was not generally observed. It has not been the practice among the judges of the courts of common pleas, at their meetings to fix the terms of courts, to specify the judges to hold them, or parts of them, in the counties of the district. This provision has- generally been disregarded, viewed merely as directory, and never been questioned so far as we are advised. “A construction of a statute received and acted on generally by the courts and bar for many years should not be lightly changed.” Dutoit v. Doyle, 16 Ohio St., 400.
    Even if the construction is erroneous, if it would create greater mischief to change it, courts will not do so. No law can require the correction of an error in its construction, which has long existed and has been generally acquiesced in; Lord Coke says not even Magna Charta. Brown v. Farran, 13 Ohio, 140.
    If the construction is doubtful, usage will control. Chestnut v. Shan, 16 Ohio, 599; Craig v. Fox, 16 Ohio, 568; Bank v. Swayne, 8 Ohio, 284.
    Judges of the courts of common pleas are judges of their respective districts, and not of the mere subdivisions thereof. The subdivision of districts is for election purposes merely. Const. Art. 4, Sec. 3; Harris v. Gest, 4 Ohio St., 473; Railway Co. v. Sloan, 31 Ohio St., 1.
    It is not claimed that the grand jury which found the indictment in this case was not composed of “good and lawful” men, possessing all the requisite qaulifications as such grand jurors, but merely the want of a record to show that they were properly drawn. This same question was raised in the case of Blair v. The State, 5 C. C. R., 496, 3 C. D., 242; Huling v. State, 17 Ohio St., 583.
    The organization of the grand jury will be presumed to be regular until the contrary is shown by plea. 9 Amer. and Eng. Ency. Law, p. 5.
    It is not necessary for the record in a criminal case to show affirmatively that the grand jurors were drawn in the presence of the officers to whom that duty is by law committed; if they were not so drawn, that is a matter for plea in abatement. Preston v. State, 63 Ala., p. 127.
    No indictment shall be quashed for any irregularity in the selecting, drawing or summoning of a grand jury, if the jurors who formed the same possessed the requisite qualifications to act as such jurors. Section 5175, Revised Statutes.
    Revised Statutes, section 3177, enumerates the days regarded as holidays, among which is the first Monday of September of each year, and provides that those days “shall for all purposes whatsoever of payment, presentment for payment or acceptance, and the protesting or the giving of notice of non-acceptance, or of non-payment of all such instruments be considered as a first day of the week.” Rev. Stat., See. 4446-2 provides, “The first Monday in September of each and every year shall be known as Labor Day; and for all purposes whatever considered as the first day of the Aveek.” It is not made the first day of the week. No penalty is provided for any act committed on that day that is lawful on other days. Nothing is made an offense that is done on that day that might not be lawfully done on any other day of the week. It gives to each one the personal privilege of the • observance of the day as a holiday, on which no common labor can be enforced, and restricts and limits commercial transactions and demands. Certainly a court might be convened and a grand jury impaneled and charged on the 1st day of January, 4th day of July, 25th day of December, 22d day of February, 30th day of May, or Thanksgiving Day, each of which are legal holidays. Why, then, may it not be done on the first Monday of September? It has been held that acts of amusement, though prohibited on Sunday, may be indulged in on that day. Speidel Grocery Co. v. Armstrong, 8 C. C., 489, 4 C. D., 498.
    While it may be that the court could not enforce the attendance of grand jurors on that day, yet if they came and made no objection, could they not be impanelled and charged, and would not their findings and indictments, made on a subsequent day be valid?
    The transcript in this case shows that the grand jury made a partial report on the 5th day of September, when one of their number was excused and his place filled by another, who was charged in the presence of the other members of the grand jury and they were then sent out to consider of all matters and things brought to their attention. This indictment was not found or returned until after the 5th day of September, as appears from the final report of the grand jury. While the statutes generally enjoin the charging of the grand jury, it has been held that it is not necessary that all of the jurors should hear the full charge. Wadlins case, 11 Mass., 142; State v. Frosseth, 16 Minn., 313; Frindley v. People, 1 Mich., 235.
    Is it absolutely necessary that they should be instructed at all by the judge? 9 Yol. Am. and Eng. Ency. Law, 8.

      An affidavit and warrant may be issued for the arrest of an accused person. Publications required by law may be made on that day. As to the prohibition of common labor on Sunday, this court has held that “the words common labor can not extend to the acts of a public officer in the performance of official duty.” Hastings v. Columbus, 42 Ohio St., 585.
    And it has been held that a court may meet and adjourn on Sunday. Jones v. State, 14 C. C. R., 35, 7 C. D., 305.
    Ministerial acts can be performed on Sunday. Is not the selection of grand jurors and their impanel-ling and charge such an act as is not purely judicial, but at most if we may be allowed the expression quasi judicial, partaking of a ministerial character?
    But how can the defendant be prejudiced by such impanelling if the grand jury is constituted of men having legal qualifications? Rev. Stat., Sec. 5175.
    How does what has been done “tend to the prejudice of the substantial rights of the defendant upon the merits?” And is it not the policy of the law to uphold the administration of the criminal law, if no substantial right of the defendant is prejudiced? Rev. Stat., Sec. 7215.
    The substitution of Samuel F. Walker in the place of A. E. Emmet, who took sick after the grand jury was sworn, was done in all respects in conformity to law; and there was no defect in the constitution of the grand jury that found the indictment because of anything done or omitted in the matter. It is a constitutional provision that no person shall be held to answer to a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury; but the mode of constituting, impanelling and maintaining the wholeness or integrity of the grand jury, is a matter of either common or statutory law; in Ohio it is statutory, wholly. Section 7202.
    In exact' conformity with the provisions of this section were the proceedings complained of. The grand jury had been sworn; a case of the sickness of a grand juror after the grand jury was sworn, occurred ; court caused another to be sworn in his stead. And so, the integrity of the grand jury was maintained because of said section 7202, and in accordance with its provisions. Amer. & Eng. Ency. Law, Yol. 9, page 6, note 4."
    The only provision upon the subject of the number, in Ohio, is that the clerk shall draw twenty-seven ballots from the jury box, “the persons named on the first fifteen of which shall be summoned as grand jurors.” Section 5167, R. S.
    Would it not be competent for the legislature to provide that any twelve of the fifteen drawn and impanelled might transact business and present indictments? There is nothing sacred about the number fifteen; the number varied at common law from time to time, and is not uniform in the states. Would it not be competent for the legislature to provide that in case of the sickness, death or discharge of a grand juror, that the remaining number might lawfully present indictments? For a stronger reason the legislature has seen fit to empower the court with the right to swear into the jury one person in the stead of another. Wharton on Criminal Law, Yol. 1, Sec. 467.
    Section 7203 provides when and how a new grand jury shall be made. This can only be done “after the grand jury has been discharged.” Discharged by whom or what? Manifestly, by the court. It is contended, however, that section 7202 is but a declaration that the jurors of the grand jury that had been sworn may be called upon the grand jury to be made anew. The folly of this contention may be seen from many points of view. We notice but one, namely, that section 7202 covers the case of a discharge of a grand juror, while section 7203 provides for a new grand jury in the case of a necessity arising after the discharge of the grand jury.
    Again, it is claimed that section 7191 and 7192 prescribe in terms the oath to be administered to the foreman, and to the other jurors, and that the language of the oath being given, and the provisions being for the swearing of all except the foreman at the same time, that an oath with any variation is not sufficient. If this were so, a juror, who might have conscientious scruples about taking an oath and who wanted to affirm, could not qualify.
    Aside from the above consideration, the fact that section 7202 provides that another person shall be sworn, etc., necessarily implies, or rather carries with it, the right to administer the oath as it was administered in this case.
    The method of swearing all at the same time is founded in convenience and consideration of time. Anciently, the jury was sworn three at a time. Cliitty’s Criminal Law, Yol. 1, Chap. 6, Sec. 312 and 314.
    Our statute adopts the common law oath, and although the form of the oath was prescribed authoritatively and with great solemnity, yet in the administration of it, the precise form at common law was not material and variations were allowable. Chitty’s Criminal Law, Yol. 1, Chap. 8, Sec. 552.
    The same right to vary the oath obtained as to witnesses. Same, Vol. 1, Chap. 14, Sec. 617.
    It is enough that the form of the oath be substantially observed. Amer. and Eng. Encyclopedia of Law, Vol. 9, page 7.

      W. D. Young, E. R. Young, G. Bambach and Ulric Sloane, contra.

    The first five defects alleged in the motion to qnash are based upon the fact that the judge who ordered the drawing of the grand jury, fixed and determined the number of ballots to be drawn from the jury wheel for the grand jury, and who held the term of court at which the jury was impanelled and indictment found, had not been assigned or designated as required by section 468 of the Revised Statutes.
    The order referred to in this section is the one provided for in R. S., sections 457 and 458.
    The constitution provides that, “Courts of Common pies shall be held by one or more of these judges in every county in the district, as often as may be provided by law.” Const. Art. IV, Sec. 3.
    The constitution further provides that, “the courts of common pleas shall be holden at such times and places as shall be provided by law.” Art. IV, Sec. 10.
    From the section of the constitution first above quoted, that the number of judges in a district cannot be less than three; and the number now runs up to thirteen in the second district, and each of the districts have more than three. Jurisdiction given to the common pleas court generally by section R. S. 456.
    Now it seems clear from the sections quoted that while under section 456, jurisdiction is given to the common pleas court; and that judges are provided for, elected and qualified, yet no individual judge has authority to put the jurisdiction of any particular court into operation unless the time and place of holding that court be fixed and he be designated as the judge to hold that court.
    The sixth specification of error in the motion to quash is that the record does not show that the grand jury which found the indictment was drawn at the time and place and by the persons designated by law.
    We claim: The drawing of the grand jury list is an essential step in the prosecution for crime.
    An indictment can be found only by a lawful grand jury. Doyle v. The State, 17 Ohio 222.
    The fact that the grand jury was drawn according to law must appear in the record.- There can be no presumption or intendment against the accused.
    If the record must disclose the names of the grand jurors, and that it must cannot be doubted, there is more potent reason for the requirement, that their names should have been lawfully selected.
    This omission cannot be supplied by presumption. Goodwin v. State, 16 Ohio St., 344; Cantwell v. State, 18 Ohio St., 447.
    The book denominated the bill of exceptions, “The Jury Book,” is not a part of the records of the court. It is not under the control of the court, is not required to be kept, does not purport to record any step in the legal proceedings as a part of the history of any court, and therefore cannot be considered as supplying the defect in this record.
    The seventh and eighth defects alleged in the motion to quash are founded on the fact that the court convened, and the grand jury which found the indictment were sworn and impanelled on the 4th day of September, 1899, being the first Monday of September,. a legal holiday, to-wit, Labor Day. That is, if the grand jury which found the indictment was impanlled and sworn at all, because as will be seen by the ninth defect alleged in the motion, one of the members of the grand jury impanelled on the fourth was discharged on the fifth and another sworn in his place, without reswearing any of the members that had been impanelled on the fourth.

      We claim that the court could not lawfully transact any business on Labor Day, except to adjourn to. a subsequent day; and that its action in impanelling the grand jury was absolutely void, and the grand jury impanelled and sworn on that day was illegal and wholly without lawful power to find the indictment. R. S., Sec. 4446-2; Speidle Grocery Co. v. Armstrong, 12 C. D., 534; Jones v. State, 7 C. D., 305.
    We claim that although, by virtue of R. S. 7202, the court had a right to discharge the sick member and make the substitution of Walker, yet that this action was but a part of the proceedings to make another and different grand jury, which to become a legal grand jury, a foreman should have been selected and the jury sworn as provided in sections 7190, 7191 and 7203; and that until these provisions were complied with there was no grand jury valid to find the indictment after the discharge of Emmett.
    The discharge of one member of the grand jury was a discharge of all, a dissolution of the jury, entirely destroying it. It obliterated the grand jury.
    There were two grand juries, or to speak nearer accurately, there was one grand jury sworn and impanelled on the fourth of September, and on the fifth after this one was dissolved, there was an attempt to impanel another.
    When Walker was substituted he was the only one sworn, and we maintain, was not legally sworn. No foreman was selected or sworn, and none of the fourteen men who had been members of the defunct grand jury were sworn as members of the new one.
    When was the grand jury impanelled which found the indictment? Was it on the fourth of September or on the fifth? If on the fourth, Walker was not impanelled or sworn on that day; if on the fifth, the remaining fourteen were not sworn on that day. Young v. The State, 6 Ohio, 435.
    All the defects of which we complain occurred in that stage of the proceedings in the prosecution wholly ex parte, and under the exclusive control of the plaintiff in error, and when the only safeguard "of the defendant’s rights was in a faithful and proper adherence to the commands of the law on the part of the plaintiff. Nothing has concluded the defendant. He has not waived anything, and there can he no presumption against him. He has a right to demand that he shall not be further prosecuted except by due course of law, and this he has done by his motion to quash. Doyle v. State, 17 Ohio, 225; Haynes v. State, 12 Ohio St., 622; Goodin v. State, 16 Ohio St., 346; Cantwell v. State, 18 Ohio St., 477.
    The provision of section 468 that “the judges, when they issue their order fixing their terms, shall specify therein what terms, or parts thereof, shall he held by each judge,” means that the judges designated in section 457 shall assign the judge to hold any term or part of term of any court of common pleas of any county in the particular district.
    Construed together with Section 557, it seems clear that the provision was intended to advise the public, not only of the times for the convening of the court, but also of the person who is to preside over it, the one being of as much importance as the other, and especially is that true when we consider the provisions of section 550, Eev. Stat., which we will call attention to further along.
    The language of these provisions is mandatory, and not merely permissive or directory.
    If this provision as to the assignment of a judge to hold the term is mandatory, what is the consequence of the term being opened and held by a judge of the district not assigned?
    Simply that such judge acted without authority, and as he is an integral and essential factor in the constitution of that court, that the term so held is held without authority.
    It is essential that all statutes intended to secure certainty and regularity, in the administration of justice, should be rigidly and to the letter enforced. District Court, case 34, Ohio St., 440.
    It is true that before the passage of this statute under consideration, any judge of the district could hold common pleas court in any county of his district. Harris v. Gest, 4 Ohio St., 472; Hollister v. Judges, 8 Ohio St., 254.
    Now the fact that this statute makes a different rule is conclusive, we think, as to our claim that the legislature intended to change the old practice and institute an entirely new one, and for substantial reasons of public policy. 23 Am. & Eng. Enc. of Law, 468; Norwegian Street, 81 Pa. St., 349.
    An indictment found at a term of court not authorized is void. State v. McNamara, 3 Nev., 70; O’Byrnes v. State., 57 Ala., 25; Davis v. State, 46 Ala., 80.
    The record fails to show that the grand jury which found the indictment was drawn, as required by law; that is, there is no record, as we claim, showing that a grand jury for the September term was drawn.
    The drawing of a grand jury is an essential step in the prosecution for crime; for an indictment can only be found by a lawful grand jury. Doyle v. State, 17 Ohio, 222; Young v. State, 6 Ohio, 435.
    So essential a fact in the history of prosecution should appear in the record. If the record must disclose the names of the grand jury, as has been held in Mahan v. State, 10 Ohio, 233, Foutz v. State, 8 Ohio St., 104, why is it not necessary that the record should disclose the fact that a grand jury was drawn?
    This omission cannot be supplied by intendment or presumption. Goodwin v. State, 16 Ohio St., 344; Cantwell v. State, 18 Ohio St., 477.
    The book denominated in the bill of exceptions “The Jury Book,” is not a part of the records of the court.
    That book is not under the control of the court, is not required to be kept, does not purport to record any step in the legal proceedings as a part of the history of the case, and therefore cannot be regarded as supplying the defect in this record.
   Williams, J.

The objections made to the indictment are, in substance: (1) that the judge who opened and held the term of the court at which the indictment was found, was without jurisdiction to impanel the grand jury or to receive its report, because he had not been assigned to hold that term, by the judges of the district, nor so designated in any order issued by them; (2) that the grand jury was without authority to find and return the indictment, because it was impaneled and sworn on a legal holiday, known as Labor Day; (3) that the body by which the indictment was found and returned was not a legally constituted grand'jury, for the reason that, after the original panel was sworn, and before the indictment was returned, a new member was substituted in the place of one who was excused on account of sickness, and after the substitution the body was not again sworn and charged, though the new member was; and, (4) that the record fails to show the grand jury was selected and drawn as required by law.

It should be observed here that none of these objections properly arise on motion to quash; and, for that reason alone, the exception should be sustained. Except so far as they tender issues of fact, the proper mode of doing which is by plea in abatement, they relate to alleged irregularities in selecting and impaneling the grand jury, which do not affect the individual competency of its member, and are available, if at all, only by challenge. Properly speaking, the record of a criminal case, where the offense is an indictable one, except when the accused is bound over to await the action of the grand jury, commences with the return of the indictment. While the preliminary steps in the formation of the grand jury are proper matters of record, they concern the public rather than the accused, if the body that returns the indictment is composed of men possessing the necessary qualifications; and defects in the record of those steps are not those contemplated by section 7249 of the Revised Statutes, for which a motion to quash an indictment may be made.

In as much, however, as the bill of exceptions contains a finding and agreed statement of the facts on which the objections to the indictment are based, and there are other cases pending on indictments found by the same grand jury, in which the same questions are made by plea in abatement, we have concluded, after some hesitation, to consider and dispose of the questions as if presented in that mode. And it may be remarked at the outset that the objections are not to be tested by the over-refined technicalities that were the outgrowth of a system of criminal laws of unreasonable severity, and a humane desire on the part of the courts to shield those charged with their voilation from excessive and cruel punishment, but by the rule of our criminal code by which defects and imperfections are to be disregarded which do not tend to the prejudice of the stubstantial rights of the defendant on the merits.

The first one of the objections above stated is founded on section 468 of the Revised Statutes, which provides that: “The judges of the common pleas court in each common pleas district, or a majority of them, shall, except as otherwise provided by law, at the time they fix.the terms of the common pleas courts in their respective districts, having previously ascertained, as near as practicable, the probable amount of business in each of the counties of the district, apportion the labor of holding the common pleas courts of such districts, as equally as may be, among the judges of the district; and the judges, when they issue their order fixing their terms, shall specify therein what terms, or parts thereof, Of the common pleas courts shall be held by each judge, in accordance with such apportionment; and not less than two hundred and forty days of open session of the common pleas court shall be held by each judge during the year, unless all business assigned to him is sooner disposed of.” To arrive at the proper construction of this section, it is necessary to notice section 457, which is as follows: “The judges of the common pleas court in each common pleas district, or a majority of them, shall on the third Tuesday in October, in each year, issue their written order to the clerk of the common pleas court in each county in such district, fixing the day of the commencement of each term of the common pleas courts in each county in such district for the next judicial year, which shall commence on the first day of January; and any order so made may be changed by a subsequent order made and issued by them to the several clerks of the court in the district; and the court shall be held for the year covered by such order or orders at the times so ordered; provided, that not less than three terms of the common pleas court shall be held in any county each year.”

The judges of the common pleas district of which the county of Brown is a part, at their meeting in October, 1898, fixed the day for the commencement of each term of the court in each county of the district for the next judicial year, and issued their order to that effect to the clerk of each county of the district, in conformity with section 457, but failed to specify in the order what terms or parts thereof should be held by each common pleas judge of the district, or otherwise apportion the labor of holding the courts to the several judges; and the claim is, that in consequence of this failure, no judge of the district was authorized to open or hold the term of court at which the indictment in question was returned ; and, there being no court, there could be no legally constituted grand jury. If this claim should be sustained, the result would be serious, both to the public, and with respect to the rights and interests of individuals. The omission, intentional or otherwise, to make the apportionment of the labor of holding the courts among the judges would relieve them of their judicial duties, and suspend the administration of justice, in a large degree, throughout the district, endangering the peace and good order of society, and entailing incalculable loss upon its members. A statute having that effect could not be upheld. By the constitution the judicial power of the state is vested, in part, in courts of common pleas, and it requires that the state shall be divided into districts, and these into subdivisions, in each of which at least one judge shall be elected. The duty is enjoined on these judges to hold court in the several counties of the district, as often as may be provided by law. So that, the judicial power with which the judges are clothed is co-extensive with the district, and in that respect cannot be restricted or suspended by law. What the law may do, is to define the jurisdiction of the courts, prescribe the mode of procedure, fix the number of terms to be held in each county, and require the judges to hold them. For many years following the adoption of the present constitution there was no statute like section 468, and yet any judge held the court in any county of his district, usually in his subdivision, without other authority than that which pertained to his office; and manifestly it was not the purpose of that statute to limit the power of the judges in this respect. Its evident design was to enable the judges to make an equitable division among themselves, of their judicial labors, so that, as nearly as practicable, the judges should bear their equal share of the burdens, and each county might have court for such time as should be necessary for the transaction of the business. The omission of the judges to make the apportionment, or designate the respective judges who should hold the terms in the several counties, cannot affect the right of any judge to hold court in any county of his district, nor render invalid any proceeding at a term so held.

The second objection to the indictment is founded on section 4446-2 of the Revised Statutes, which provides that: “The first Monday in September, of each and every year, shall be known as Labor Day; and for all purposes whatever considered as the first day of the week.” The term of the court at which this indictment was found, commenced on the first Monday in September, 1899, and the grand jury that returned the indictment, was impanelled and sworn on that day, though the indictment was found and returned at a subsequent day of the term; and the contention is, that as the statute declares Labor Day shall be considered as the first day of the week for all purposes, it was unlawful for the court to transact any business on that day; and, consequently, the body impanelled as a grand jury was not a lawful grand jury, and its subsequent action was void.

If it be conceded that the statute places Labor Day in the same category with Sunday for all. purposes,, does it follow that a grand jury impanelled on that day is an illegal body without authority to thereafter hear evidence and find indictments? The distinctive principle established by the case of Bloom v. Richards, 2 Ohio St., 387, is, that Sunday laws are mere civil regulations for the good of society, and not designed to enforce or require any religious observance of the day; and, that being penal in their nature, such laws will not be extended by construction beyond their plain import; so that, whatever act may be lawfully done on any other day of the week, is equally lawful on Sunday, unless its performance on that day is forbidden by statute. Our statute goes no further than to the prohibition, on that day, of common labor, the arrest .of persons on civil process, the selling of intoxicating liquors, and certain shows, games and sports. It was held in that case that the making of a contract for the sale of land did not come within the prohibition against common labor on Sunday, and the specific performance of such a contract made on that day was enforced. The case was thoroughly considered, and it is shown by Judge Thurman, in an opinion of great research, that the principles stated are maintained by the great weight of authority in this country, and that under constitutions like ours, an enactment could not be sustained whose purpose was simply to enforce the observance of Sunday as a religious duty. It is generally held that statutes which in terms require the closing of public offices on Sunday, do not prevent the performance of judicial duties by judges on that day. There is no provision in our statutes, as there is in those of many of the states, and was in 29 Car., 2 C. 7, under which most of the English decisions on the subject were made, forbidding the holding of courts, or judicial proceedings on Sundays, or holidays, or requiring public offices to be closed, or all secular business suspended on that day; and the omission of such provisions from our statutes, in view of their presence in the statutes of other states, and especially since the decision of Bloom v. Richards, supra, which has been accepted as the law of this state for nearly half a century, leads to the conclusion that the legislature has not deemed it advisable to incorporate either of them into the laws of the state. Certain, it is, that neither of them is embraced in the term common labor, as used in our statute. Where the transaction of judicial business on Sunday or holidays is expressly forbidden by statute, acts of a ministerial character on those days are held lawful; such as the issue of a warrant for the apprehension of a criminal and his admission to bail, the receiving of a verdict and committing the defendant for sentence, the issue and service of civil process, and many other acts of a similar nature. All of which is a recognition of the rule already stated, that whatever acts may be lawfully done on other days are also lawful when performed on Sunday or a holiday, except when, and in so far as their performance on those days • is prohibited by statute. The case of Lampe v. Manning, 38 Wis., 673, is sometimes cited in support of the proposition that a holiday is ex vi termini dies non juridicus, but the remark to that effect, of the judge who prepared the opinion in that case, loses its force when it is considered that the statute governing the ease expressly forbade the opening of any court for a trial on a legal holiday. Our attention has also been called to the case of Spiedel Grocery Co. v. Armstrong, 8 C. C. R., 489, where it is held that a judgment rendered on Labor Day was void. That case was affirmed by this court without report, and was not much considered. The correctness of the decision may well be doubted; but it is not necessary to reconsider it here. It is distinguishable from the case before us, on a ground upon which we prefer to place the decision of this case.

It has already been observed that the constitution confers on the general assembly power to fix the terms of the court of common pleas in all the counties of each district; and the courts are required to be held at such times and places as are provided by law. In the exercise of this power the legislature may designate by statute, as has often been done, the times for holding the courts, or provide a mode by which such times shall be fixed. It has adopted the latter course in the enactment of section 457, heretofore quoted, by which judges of the district, at the annual meeting provided for, are required to fix the day for the commencement of each term of the court in each county of the district for the next judicial year. No restraint is placed on the power of the judges with respect to the days they may fix for the commencement of the term, but that is left entirely to their discretion; and, the courts are required to commence on the days they shall so fix. Considering this section in connection with the Labor Day statute, under a well-settled rule of interpretation, the former being a special provision for particular, cases, acts authorized by it may be regarded as excepted from the operation of the latter, especially since the latter contains no express prohibition against such acts. As a general rule no act can be considered unlawful by Implication from one statute, that is expressly authorized and required by another valid statute. Though that section (457) was passed before the Labor Day statute, there is nothing in the latter to indicate an intention to repeal the former, or that restricts its operation; nor, is there such inconsistency between them that both may not stand together and each have its appropriate effect. The prohibitive and penal provisions of the latter statute, whatever those may be, cannot be enlarged by implication so as to render unlawful any act authorized by the former, and it is not claimed that result is accomplished by any express provision.

If it were enacted by statute that a term of court should commence on the first Monday of September, it could not be doubted that the term so held would be lawful, and its proceedings valid, notwithstanding the statute making that day a holiday; and the effect cannot be different where that day is so fixed by the judges under the express authority conferred on them by statute. It was perfectly competent for the legislature to make any act lawful when done on Labor Day, that is lawful on any other day, and to that extent the statute creating Labor Day must be regarded as qualified and restrained. It was upon this principle that the case of Perkins v. Jones, 28 Wis., 243, was decided. It was there held that a statute which declared that no court shall transact any business on the 22nd day of February, “unless it be for the purpose of instructing or discharging a jury, or receiving a verdict,” and another statute which required that in all cases where a verdict shall be rendered in a justice’s court, the justice shall ‘forthwith’ render judgment” — “must be construed together so as to prevent a failure of justice, and must be held to authorize an immediate entry of judgment where the verdict is received on the 22nd of February.” It is apparent that we have before us a much stronger case for the application of the principle, than the one just cited, for there is, as has been seen, no express provision of our labor day statute that conflicts with section 457. Ordinarily it may be supposed that the judges would not fix a holiday for the commencement of a term of court, but if they choose to do so, or do so inadvertently, it is nevertheless an authorized exercise of the powers conferred on them, and neither their action, nor that of the court held in pursuance thereof is, for that reason void.

It appears from the bill of exceptions, that after the grand jury had been sworn and charged, one of its members was discharged on account of sickness, and another person having all legal qualifications was sworn and substituted as a grand juror in the place of the one discharged; and the body thus constituted, found the indictment in question. It is contended that body was not a legal grand jury; that when the member was discharged the grand jury of which he had been a member was dissolved, and when the substitution was made it was necessary to organize a new grand jury by the appointment of a foreman, and administering the necessary oath to him, and to his fellow jurors. But the action of the court seems to have been in conformity with the statute, by which it is provided that: “In case of sickness, death, discharge or non-attendance of a grand juror after the grand jury is sworn, the court, at its discretion, may cause another to be sworn in his stead.”' Section 7202, Revised Statutes. When the new juror is so sworn and takes his place, the vacancy is filled, and the grand jury again complete; and in their deliberations, findings and presentments, all of the grand jurors are bound by the same oath. The readministration of the oath to the foreman, and to the members as a body, could add nothing to its obligation, is not required by the statute, and would at most be but an idle ceremony, the omission of which could work no substantial injury.

The remaining objection to the indictment is sufficiently answered by what has already been said. It is not necessary that the records of the court should show how, or by whom, the grand jurors were selected and drawn. The presumption of law is that duty was regularly performed by the proper officers; but if it was not so done, the objection, if it can be of any avail, must be made in a different mode.

Exceptions sustained.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Lewis, Auditor, etc., v. Symmes et al. Lewis, Auditor, etc., v. Taylor, Executor, et al. Bader et al., Commissioners, etc., v. The Cincinnati, Portsmouth & Virginia Railroad Company.

      Change in judicial opinions — Respecting validity of legislative enactment — Should not give retrospective operation to impair obligation of contract — Entered into in relianc eupon former adjudication — Owner of lands may enjoin assessment for improvement under an unconstitutional act, when.

    1. The rule that retrospective operation should not be given to a change in judicial opinions respecting the constitutional validity of legislative enactments can be invoked only to avoid the impairment of the obligation of contracts which have been entered into pursuant to statutory provisions and in reliance upon former adjudications respecting their validity.
    2. The owner of lands within an assessment district defined in an unconstitutional act for the improvement of a public highway, not having promoted the making of the improvement, may enjoin the collection of an assessment to pay for such improvement in a suit for that purpose begun when an attempt is made to enforce the assessment. He is not required to begin such suit at an earlier day, though he may know of the improvement and of the intention to make the assessment. Columbus v. Agler, 44 Ohio St., 485, followed.
    (Decided January 9, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    The defendants in error brought several suits in the court of common pleas for injunctions to prevent the collection of assessments upon their lands for the improvement of Columbian avenue in Hamilton county, relying upon the constitutional invalidity of the legislative act under which the improvement and the assessments were made. The substance of the act is as follows: ...

      An Act.
    To open and improve an avenue in Columbia township, Hamilton county, Ohio, to be known as Columbian avenue.
    Section 1. Be it enacted by the General Assembly of the State of Ohio, That the county commissioners of Hamilton county be and they are hereby authorized and required to open, grade, gravel, macadamize and improve Columbian avenue in Columbia township, Hamilton county, Ohio, along the following route, to-wit: Forty (40) feet in width on each side of the following described center line, beginning at a point near the center intersection of the Brotherton road and Redbank avenue in section sixteen (16), thence south fifty-four (54) degrees fifty-five (55) minutes west, west twenty-three hundred and ten (2,310) feet to a stake; thence south forty-eight (48) degrees nineteen (19) minutes west three hundred and fifty-two (352) feet to a stake; thence south twenty-seven (27) degrees three (3) minutes west twenty-six hundred and ninety-seven (2,697) feet to a stake; thence north eighty-six (86) degrees fifty-three (53) minutes west, parallel with and eight hundred (800) feet south of the south rail of The Cincinnati, Portsmouth and Virginia Railroad, twenty-four hundred and eighty-three (2,483) feet to a stake; thence by curved line to the left of a radius of one hundred and forty-six (146) feet, three hundred and fifty (350) feet to a stake; thence south forty-three (43) degrees fifty-one minutes east two hundred and ninety-five (295) feet to a stake; thence by a curved line to the right of a radius of two hundred and seventy-seven and sixty-six hundredths (277.66) feet, four hundred and five (405) feet to a stake; thence south thirty-nine (39) degrees nine (9) minutes west four hundred and five (405) feet to a stake; thence south fifty-nine (59) degrees thirty-nine (39) minutes one hundred and fifty (150) feet to a stake; thence south eighty (80) degrees twenty-four (24) minutes \vest two hundred and fifty (250) feet to a stake; thence north eighty-four (84) degrees four (4) minutes west about twenty hundred and fifty (2,050) feet to a point in the center of the Paxton road. The said commissioners are hereby instructed to improve said avenue in accordance with the plans, grade, and survey now on file in the county surveyor’s office of said county.
    Section 2. One-half of the cost and expense of said improvement shall be assessed upon and collected from the owners of the lots and lands and from the lots and lands situated in and within the bounds of the northwest quarter of section fifteen (15), the south half of section sixteen (16), the south half of section twenty-two (22), and the east half of section twenty-seven (27), and all of section twenty-one (21) of township four (4), fractional range two (2), Hamilton county, exclusive of any improvements thereon and in proportion to the acreage thereof, and the remaining one-half of the cost and expense of the said improvement, together with the interest on any bonds issued by the commissioners for the same, shall be levied and assessed upon all of the taxable property of said county, and said assessment shall be divided into five (5) annual payments.
    Sections 3, 4 and 5 provide for the appointment of viewers by the county commissioners, for the giving of notice by the viewers, for the presentation to them of claims for damages for the making of the improvement and the estimating of the costs thereof by the viewers. Sections 6 and 7 provide for the issuing of bonds of the county to raise the money necessary to meet the expense of making the improvement, for the making of the assessments, and the levying of a general tax to meet one-half of said expense. Section 8 required the commissioners “to begin forthwith the making of said improvement.” Section 9 provided that the act should take effect upon its passage. It was passed April 12,1893. (90 L. L., 217).
    The answers admit that the defendants, relying upon the validity of said act, proceeded to carry out its provisions by making the improvement according to its mandatory requirements; averring that the road was of general benefit to the people of the county and of special benefit to the plaintiffs; that the plaintiffs had knowledge of the intention of the commissioners to make such improvement pursuant to the provisions of the act and to assess one-half the costs thereof upon the lots and lands described in the second section of the act, but took no steps to prevent the improvement except that some of them presented to the commissioners protests against the same, and that relying upon their acquiesence and the validity of the act bonds of the county to the amount of $45,000 were issued, and that the county is without means for the payment of a portion thereof except said assessments; and that said act had before the making of said improvements been adjudged valid by the circuit court of Hamilton county. The answers further allege against the plaintiffs, Anna Symmes and Anna Hayward, that they had presented to the viewers appointed by the commissioners under said act claims for damages for land taken from them for the making of said improvement, and that such claims had been allowed and paid.
    In the court of common pleas it was adjudged that the facts alleged in these answers did not constitute a defense, and perpetual injunctions were allowed as prayed for. On petition in error the circuit court affirmed the judgment of the court of common pleas.

      Rendigs, Foraker & Dinsmore, county solicitors, for plaintiffs in error.
    The reversal by the supreme court of a principle of law, theretofore declared and adjudicated by it, will not be permitted to operate to the injury of those who put faith therein, and regulated their conduct thereby. When the supreme court has decided a point which it subsequently, without qualification or equivocation, reverses all transactions occurring since the first decision, but before the reversal, should be judged by the principle established by the first case.
    The settled judicial construction of a statute, or a determination of its validity or constitutionality, enter into and become part of any contract made on the faith thereof, and a subsequent reversal of that judicial determination by any court will not affect the rights secured on the faith of the prior adjudication. All rights arising under the contract are to be adjudged by the principles established by the judiciary at the time the contract was entered into. Douglass v. County of Pike, 101 U. S., 677; Green County v. Conness, 109 U. S., 104; Anderson v. Santa Anna, 116 U. S., 356; Olcott v. Supervisors, 16 Wall., 678; Gelpcke v. Dubuque, 1 Wall., 175; The State v. Lamson, 9 Wall., 477; Taylor v. Ypsilanti, 105 U. S., 60; Louisiana v. Pillsbury, 105 U. S., 278; Rowan v. Runnells, 5 How., 134; Ohio Insurance Co. v. Debolt, 16 How. 432.
    It might occur to one following the argument that as persons contract with the declared law in mind, and as such law becomes a part of the contract, any change thereof, by the reversal of the declared law by a judicial decision, would be a law impairing the obligation of the contract, and, consequently, void under the constitution of the United States and of the state. None of the cases which we have cited are based upon this theory and could not be. The supreme court of the United States in other cases directly involving the question, has determined that the word “law,” as used in the clause of the constitution referred to, does not mean a judicial decision, but a statute, an ordinance, or a state constitution. Consequently, the reversal of a principle by a subsequent case would not be a law impairing the obligation of a contract. Water Works Co. v. Sugar Refining Co., 125 U. S., 18; R. R. Co. v. Rock, 4 Wall., 177; Brown v. Smart, 145 U. S., 454.
    The rights of citizens, their conduct and relations assumed or imposed upon them under an existing state of the law, as determined by the decisions of the highest court having jurisdiction, should be judged by the law as it existed at the time the transactions occurred. The law of the land, of which we have heard so much and which gives character to any transaction, and by which the transaction should be judged if justice is to be done, is the law that arises with the case, and constitutes a part of it when it becomes complete as between the parties. Consequently, the reversal by the highest court of an existing state of law under which a transaction arose, whatever may be the nature of it, should not affect the transaction, but should be given prospective operation, Menges v. Dentler, 33 Pa. St., 495; Hardigree v. Mitchum, 51 Ala., 151; Hollinshead v. VonGlahn, 4 Minn., 190; Kelley v. Rhoades, 51 Pa. Rep. (Wey.), 593.
    The constitution of 1851 of this state prohibits the legislature from passing retroactive laws. Section 28, article 2. It distinguishes between retroactive laws and laws impairing the obligation of contracts, for the two terms are used in the same section.
    The first constitution of the state contained no provision against retroactive legislation, and it might have been assumed that in the absence of such prohibition the legislature had the full power to pass retrospective laws, unless they violated rights secured under a contract. But this court did not so determine. Retrospective or retroactive laws that violated no principle of natural justice, but on the contrary, were in furtherance of equity and good morals, were sustained by the court under the constitution of 1802. Trustees v. McCaughy, 2 Ohio St., 152; Butler v. Toledo, 5 Ohio St., 225; Commissioners v. Rosche Bros., 50 Ohio St., 103.
    We also call attention to the article by Simeon Nash, on the constitutionality of retrospective statutes, found in 2 W. L. J., pages 170 and 197.
    The question of contract and the constitutional provision against impairing the obligation thereof does enter into this case. The provisions in a statute for the levying of a tax or an assessment to pay bonds issued thereunder become part of the contract, and are not affected by a subsequent repeal thereof. Goodale v. Fennell et al., 27 Ohio St., 426; Von Hoffman v. Quincy, 4 Wall., 535; Wolf v. New Orleans, 103 U. S., 358; Louisiana ex rel v. St. Martin’s Parish, 111 U. S., 716; Seibert v. Lewis, 122 U. S., 282; Louisiana v. Pillsbury, 105 U. S., 278 and 294; Christy v. Pridgeon, 4 Wall., 196; State ex rel. v. New Orleans, 37 La. An., 13.
    The answers do not contain an allegation or any facts showing that the various plaintiffs promoted the improvement by petitioning therefor, or by actively participating in securing the road. The defense is estopped by silence, and was based upon the case of Tone v. Columbus, 39 Ohio St., 281.
    The case arose out of the improvement of High street, in the city of Columbus, under a special act of the legislature, which had been declared to be unconstitutional in the case of The State ex rel. v. Mitchell, 31 Ohio St., 592. The statement of the case shows that, among the various plaintiffs who were contesting the assessment, there was a class consisting of those who had, in no wise, actively participated in any manner in securing the improvement. The report of the case, when it was retried, shows that there were twenty-three property owners who were designated as the “silent ones.”
    After the re-trial of the Tone case, it again reached this court in three separate cases, one being the City of Columbus v. Agler, 44 Ohio St., 485. It was the decision of the court in this case which the Circuit court adopted as being the latest declaration of the law, reversing the Tone case. It will be noticed that the opinion of the court in the Agler case does not mention the Tone cáse.
    But, even if this court in that case meant to assert a contrary doctrine than that set forth in the Tone case, with the latter case still unreversed, it is not improper to ask this court for a consideration of the principles asserted by these two cases. The Agler case contains no argument whatever against the doctrine of estoppel by silence, while the Tone case elaborately presents the authorities in its favor. In addition to those contained in that opinion, we cite the court to the following cases, which fully sustain the Tone case: Ritchie v. South Topeka, 38 Kansas, 368; Lundbom v. Manistee, 93 Mich., 170; Fitzhugh v. Bay City, 109 Mich., 581; Taber v. Ferguson, 109 Ind., 227; Hollenkamp v. City of Lafayette, 30 Ind., 192; Powers v. Town of New Haven, 120 Ind., 185; New Haven v. R. R. Co., 38 Conn., 422.
    The Agler case refers to another principle which was theretofore determined by this court. It is there said that the improvement of the street was not upon the property of Mrs. Agler, and no part of her land was taken therefor. This was for the purpose of bringing the case within the principle of Wright v. Thomas, 26 Ohio St., 346, and to distinguish it from Kellogg v. Ely, 15 Ohio St., 64. The case of Kellogg v. Ely was fully and correctly explained in Tone v. Columbus. It was there shown that the case was based upon the rule of equity that a person who is guilty of an unreasonable delay in asserting his rights cannot get relief from a court of equity. It did not establish the doctrine of estoppel by silence, nor did it restrict the rights of the taxpayer under the act of April 10,1856, now sections 5848 and 5851, Revised Statutes. Its supposed authority had been somewhat impaired by the decision in the Tone case, assigning it to its proper place in the jurisprudence of the state. The Agler case seems to re-assert the Kellogg case, and to give full effect to the principle, that a party on whose land an improvement is made cannot contest the assessment therefor, if he has stood silently by. Goodwillie v. Detroit, 103 Mich., 283.

      Symmes & Hayward, for defendants in error.
    Active participation in promoting the improvement would work an estoppel, but quoting from the brief of plaintiff in error the lines, “The answers do not contain any facts showing that the various plaintiffs promoted the improvement by petitioning therefor, or by actively participating in securing the road,” relieves the subject of discussion on that point.

      Silence to work an estoppel must be of such a character as will show a person has been guilty of unreasonable delay in asserting his rights or performing his duty. Kellogg v. Ely, 15 Ohio St., 64; Tone v. Columbus, 39 Ohio St., 381.
    It is to be observed that the petition and answer disclose that the defendants in error March 1, 1893, leased all their lands set out in the petition to Til-den R. French, for a period of five years, to be completed and ended March 1,1898, and it will be noticed that this lease was made prior to the passage of the act and terminated after the road was completed and the assessment levied. Also, that the lease contained a covenant that French should pay all the taxes and assessments on the land, and should have an option of purchase at a fixed price at any time during the lease. It now clearly appears that the defendants in error were not in possession of the land at the time of the passage of the act and work under it, and were not the real parties in interest. The defendants could not have brought an action had they knowledge of everything doing and to be done without making French a party, and then French, had they done so, had the right of election to pay the assessment, or to both pay the assessment and purchase the lands, and the defendants in either event were not damaged. No injury could, with certainty, arise to the petitioners until the expiration of the lease, March 1, 1898, and then only in event the land returned to them with the assessments unpaid. How, then, can it be claimed that the defense of equitable estoppel by silence can be maintained when no duty devolved upon the defendants in error to speak until they were injured. (Agler case.) They certainly had no reason to anticipate that French would fail in his agreement to pay, even if he might not take the lands under his option. French’s silence is personal to him and cannot be charged to defendants in error. French was not their agent, and they to be estopped can alone be charged with their conduct and failure to perform a duty obligatory on them. Having no knowledge of a certainty of their ultimate injury, they can not be charged with a failure to speak in objection to the improvement, as it was impossible to say whether it would ever damage them. A person is not estopped by silence when there is no positive duty and opportunity to speak. Bramble v. Kingsbury, 39 Ark., 13; Terre Haute Road v. Rodel, 89 Ind., 128; Viele v. Judson, 82 N. Y., 32; Deffenbach v. Vogeler, 61 Md., 370; Bull v. Rowe, 13 S. C., 355; Mills v. N. J. Cent. R. R., 41 N. J. Eq., 1.
    There can be no duty to speak if the party has no knowledge that he will be injured or of his own rights. Brigard v. Stillwagen, 41 Mich., 54; Counterman v. Dublin Township, 38 Ohio St., 515; Cooley on Taxation, 573.

      R. de V. Carroll, for defendants in error.
    Conceding, for the sake of argument, that the Columbian avenue act, in question here, was constitutional under the principles established by this court in the case of State ex rel. Hibbs v. Commissioners, 35 Ohio St., 458, and that it would have been so declared by this court until that case was over-ruled by Hixon v. Burson, we claim that the rule contended for by counsel for plaintiff in error, to-wit, that this case should be determined by the construction of similar statutes, by this court, previous to the passage of the Columbian avenue act, should not apply.
    All the cases cited by counsel in support of this rule are cases which involve contract rights. But no contract right is involved in the case at bar, no meeting of parties have entered into obligations voluntarily, relying upon past construction of statutes by courts of last resort, and any other rule than the one upheld in the cases cited by counsel would unquestionably impair the obligation of contracts. But no contract right is involved in the case at bar, no meeting of minds as to what the law was at the time of entering into an obligation, has taken place; and none of the decisions relied upon undertake to extend the rule beyond that class of cases. Boyd v. Alabama, 94 U. S., 645.
    In Douglas v. Pike, 101 U. S., 677, and in Taylor v. Ypsilanti, 105 U. S., 60, it is stated in the opinions that “a change of decision is to all intents and purposes the same in its effects on contracts as an amendment of the law by means of a legislative enactment.”
    Let us see what would have been the effect on the case at bar had the Columbian avenue act been amended or repealed upon April 28, 1896, instead of the construction of the law changed on that date, by the decision of Hixon v. Burson, as claimed by counsel for plaintiffs in error.
    The assessing ordinance had not been passed.
    We claim that the assessment could not have been levied, in case of such appeal or amendment. Belvidere v. Warren R. R. Co., 34 N. J. Law, 193.
    The Columbian avenue act is unconstitutional under the ruling in the case of State ex rel, v. Commissioners, 54, Ohio St., 333, known as the “Paddock Road” case; without regard to the case of State ex rel. v. Commissioners or its over-ruling by Hixon v. Burson; and the “Paddock Road” case over-rules no settled line of construction laid down by this court. In fact, the decision in the “Paddock Road” case specifically reserves the question decided in Hixon v.

      Burson. The first syllabus and the reasoning of the court in the first part of the decision in the “Paddock Road” case is fatal to the Columbian avenue act. The latter act is clearly administrative and not legislative, and consequently unconstitutional.
    Again must the contention for counsel for plaintiff in error fail, for the reason that the Columbian avenue act clearly violates the provisions of the Constitution of the United States and the Constitution of Ohio, in the fact that it arbitrarily assesses one-half of the cost of improvement upon .certain designated sections, without reference or regard to benefits. And we know of no decisions or settled rule of construction in this court or any other which could have misled the legislature in this regard when they passed the act, or the commissioners when they proceeded to construct the road. Norwood v. Baker, 172 U. S., 269. The Taylors are not estopped. The road did not touch their property; they did nothing to encourage the building of it; and they protested in writing against its construction before the work was begun. Everything that it was possible for them to do, to prevent the building of the road, they did, with one exception, they did not enjoin the commissioners before the commencement of the work; nor was it necessary that they should. Wright v. Thomas, 26 Ohio St., 346; Counterman v. Dublin, 38 Ohio St., 515; Columbus v. Agler, 44 Ohio St., 485.

      Hollister & Hollister, for defendant in error.
    In the case at bar no compensation was paid to the railroad company, and no inquiry was made as to benefits. The answer simply alleges that the railroad property was benefited without any allegation ,as to how, or to what extent or amount.

      The act being unconstitutional, the assessments are invalid. Cooley on Constitutional Limitations, 6th Ed., p. 222.
    Counsel endeavor to convince the court, by a long and labored argument, that, by reason of the premises, there was a contract between this defendant in error and the county commissioners to pay these assessments, and that if this court should hold these assessments invalid this supposed contract would be impaired, and cites numerous authorities, which he asks the court to read, and being cases in which the validity of bonds in the hands of innocent parties were upheld. There is a contract between the bondholders and the commissioners, but that contract can in no way be affected by any decision which the court might make in this case, and even if the bondholders’ contract could be affected, it would be no concern of this property owner, who is not bound by that or any other contract made by the commissioners. The circuit court, in passing upon the petition in error in this casé, in 18 C. C. 443, disposed of this contention.
    The plaintiffs in error rely upon the case of Tone v. Columbus, 39 Ohio St., 281, to create such an estoppel, but the circuit court very properly refused to follow said decision, but on the authority of Agler v. Columbus, 44 Ohio St., 485, held that no such estoppel existed in the case at bar. The Agler case holds that one who is merely silent, without actively participating, is not estopped. In the same connection we cite the case of Wright, Treas., v. Thomas, 26 Ohio St., 346; Dublin v. Countryman, 38 Ohio St., 515.
   Shauck, J.

It is admitted that the act under which the improvement was made is unconstitutional if tested by our recent decisions. It is, however, insisted by counsel for the plaintiffs in error that if tested by the decisions of this court rendered before the passage of the act, it would be found valid, and that only prospective effect should be given to the later decisions by which similar acts have been adjudged to be void. The definite point is that in State v. Commissioners, 35 Ohio St., 458, decided in 1879, this court held a similar act valid, and that case was not overruled until we decided Hixson v. Burson, 54 Ohio St., 470, in 1896, after the passage of the Columbian avenue act, and after the improvement for which it attempted to provide had been undertaken. It would be quite easy to point out that the Columbian avenue act has constitutional infirmities in addition to those found in the act which was held to be valid in State v. Commissioners. One such infirmity is indicated in State v. Commissioners, 54 Ohio St., 333, where it was not found necessary to overrule the earlier decision. But the consideration of the case may be advanced and full justice done to the argument of the counsel for the plaintiffs in error if we follow them in the assumption that when the Columbian avenue act was passed and the contemplated improvement was made, the belief that the act in all of its parts was valid was justified by rules of constitutional interpretation which had been defined in, or were deducible from, the former decisions of this court. It is not assumed that we had ever decided that this particular act is valid, for it is admitted that it was never before us.

The doctrine which is invoked as applicable to the case, in view of the assumed state of our decisions at the passage of the act, has been developed through many difficulties and over much opposition. This was inevitable because of the general recognition of the rule that legislative acts in contravention of constitutional limitations are void, and of the other rule that judicial decisions declare, but do not make, the law. Nevertheless, it appears from numerous cases, many of which are cited in the briefs, that the doctrine is now' established. It is, however, to be observed Avith respect to many of those cases that they involve the consequences of a change of decision as to the validity or interpretation of the same statute; and, Avith respect to all of them, that the rights which they enforce, notwithstanding the change of judicial decision, are rights resting in contract. An accurate statement of the rule and the reason by which it is supported will obviate error in its application. Such a statement is found in the opinion of Chief Justice Waite in Douglass v. County of Pike, 101 U. S., 677: “The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, making it prospective but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment.” This compendious statement of the rule and its reason meets the requirements of all the cases cited. Its purpose is to secure the full operation of the constitutional prohibition of laws impairing the obligation of contracts. It is apparent, alike from the terms in •which the rule is stated and from its reason and purpose, that it can be invoked only for the enforcement of rights which rest in contract. It does not appear that it has ever been applied to any other purpose. Since the valdity of the bonds issued by the commissioners under the Columbian avenue act is not drawn in question in the cases before us, it is quite evident that the courts below did not err in refusing to apply the rule stated. The position of the plaintiffs in error derives no support from Goodale v. Fennell, 27 Ohio St., 426, or the other cases of which it is a type. They merely hold that the constitutional provision against laws impairing contracts preserves not only the contracts themselves, but all existing remedies which are necessary to their practical enforcement. Nor is their position sustained by the cases in which, out of regard for the stability of their decisions, courts have refused to reconsider cases already decided in order that there might be applied different rules laid down in later cases. There appears to be no reason why these cases should not be determined by the general rule that unconstitutional enactments are nullities. Norton v. Shelby County, 118 U. S., 425. The plaintiffs in error assert no right arising out of contract, but seek to impose upon the property of a few citizens the burden of making the improvement, to the relief of the county whose representatives, according to a well known legislative custom, secured the passage of the unconstitutional act.

It is admitted that the parties who seek the relief from these assessments did not actively promote the improvement in any way. But it is contended that since none of them opposed it except by presenting ineffectual protests to the commissioners, they are now estopped to deny the validity of the assessment by which it was anticipated that one-half of the cost of making the improvement would be paid. The proposition is that since they did not take effective measures to prevent the expenditure of money for an improvement by which the public are benefited, and they are especially benefited, they should not now be heard to object to the validity of the assessments by which it was expected that money would be realized for the payment of the bonds. This proposition is said to be supported by Tone v. Columbus, 39 Ohio St., 281. The opinion of the circuit court shows that this point was there determined on the authority of Columbus v. Agler, 44 Ohio St., 485. The relation of these cases is intimate. The later case arose in the circuit court of Franklin county where that court, as the successor of the district court, was engaged in determining the validity of assessments for the improvement of High street, pursuant to the mandate of this court in the Tone case, and in the later case it was determined that inasmuch as the public, in making the unauthorized improvement, was upon a street which it owned and was not a trespasser as to Mrs. Agler, “she was not required to do anything until steps were taken to make the assessments upon her property.” The application of this doctrine to the cases before us is obvious. If, therefore, Tone v. Columbus would justify the purpose for which it is cited, it must be regarded as modified by Columbus v. Agler. That it was not intended to give such important effect to a void enactment should be inferred from the fact that the court did not either over-rule or modify Wright v. Thomas, 26 Ohio St., 346, which is full authority for the proposition that the doctrine of estoppel cannot be invoked in a case of this character.

Judgments affirmed.


author: By the Court:

text:
    The Cincinnati Daily Tribune Co v. Bruck.

      Suit will not lie for malicious prosecution of civil action— Where there was no arrest or seizure of property — Action for libel— Counter claim for damages.

    1. As a general rule no suit will lie for the malicious prosecution of a civil action, where there has been no arrest of the person or seizure of property.
    2. A stockholder of an incorporated newspaper company maliciously and without probable cause, commenced a suit against the company for dissolution and the appointment of a receiver,, to the great injury of the company. The application was denied and the suit dismissed. In an action for libel, provoked by the suit, the company by way of counter claim asked to recover damages for the malicious prosecution of the suit against it. Held, that while the facts are sufficiently connected with the subject of the action for the purpose of a counter claim they do not constitute a cause of action, entitling the defendant to relief by way of damages, as there was no arrest of the person or seizure of property.
    (Decided January 9, 1900).
    Error to the Circuit Court of Hamilton county.

      A aron A. Ferris, for plaintiff in error.

      William H. Jones, for defendant in error.
   By the Court:

August W. Bruck brought suit against The Cincinnati Daily Tribune Company for the publication of a libel concerning him in its newspaper. The company plead, by way of counter-claim, that just previous to the libel, the plaintiff, a stockholder of the company, maliciously and without probable cause, commenced a suit against it for dissolution and the appointment of a receiver, on the false averment that it was insolvent. The application was at once heard, denied and the suit dismissed. It is then averred that the suit worked great injury to the credit of the company, prevented a sale of the property then being negotiated, and otherwise greatly embarrassed it in business. Issue having been made up, the case was tried to a jury; and at the close of the defendant’s evidence, the court, on motion of the plaintiff, withdrew from the consideration of the jury, all the evidence offered by the defendant on its counterclaim; but, in its charge, left it to be considered in mitigation of damages.

The ruling of the court presents the question whether the facts pleaded in the answer constitute a counter-claim to that of the plaintiff. If, however, the facts stated constitute a cause of action in favor of the defendant for the recovery of damages against the plaintiff for the malicious prosecution of the suit for the appointment of a receiver, it is very clear that they would constitute a counter-claim in this action. They are connected with the subject of the action; and this is sufficient to warrant their being pleaded as a counter-claim. Section 5072, Revised Statutes; Swan Plead & Prac., 259, note.

The real question is, Do they constitute a cause of action in favor of the defendant against the plaintiff? We think not. It is a well-settled general rule, that no recovery can be had by a defendant against a plaintiff for the malicious prosecution of a civil action, where there has been no arrest of the person or seizure of property. The cases relied on by the plaintiff in error do not support its claim. That of Coal Co v. Upson, 40 Ohio St., 17, arose from a suit where a temporary injunction had been obtained on false and malicious averments. A temporary injunction imposes a restraint upon the owner over his property, as hurtful to him as if it were in fact seized; and, it war; held, that for the malicious prosecution of such suit, an action would lie. The case of Pope v. Pollock, 46 Ohio St., 367, arose from the malicious prosecution of suits in forcible entry and detainer. Judgments in such suits are not conclusive. The proceeding may be commenced and recommenced without limit, unless enjoined; and hence affords an opportunity for the gratification of malice and oppression; and when this is the case an action may be maintained by the injured party for the recovery of damages. In the above case a suit had been brought and a verdict of not guilty rendered. Another was brought with the same result. A suit for malicious prosecution was then brought and sustained. The case stands upon a clear exception to the general rule. No ground for an exception appears in this case. Had a receiver been appointed and possession taken of the defendant’s property, a different case would have been presented.

Affirmed.


author: By the Court :

text:
    Noble et al. v. Ayers et al.

      Terms of will — Interpretation of — Intention implied, in words “and also."

    A testator devised 208 acres of land, definitely described, to his daughter, “and also” 83 acres on which “she now lives” for life. Held, that the use of the copulative words “and also” indicates his intention to have been to apply the limitations to the first as well as to the second tract.
    Decided January 9, 1900.
    Error to the Circuit Court of Butler county.

      Millikin, Shotts & Millikin, for plaintiffs in error, cited the following authorities.

      Smith v. Berry, 8 Ohio St., 367; Lessee of Thompson v. Hoop, 6 Ohio St., 489; Niles v. Gray, 12 Ohio St., 329; Platt v. Sinton, 37 Ohio St., 355; Crane v. Doty; I Ohio St., 279; 1 Jarman Wills, 465; Ben

      son v. Corbin, 145 N. Y. 351; Parker v. Parker, 13 Ohio St., 105; 2 Redfield on Wills, 595; Linton v. Laycock, 33 Ohio St., 129; Bolton v. Bank, 50 Ohio St., 290; 1 Redfield, 433-4; 1 Redfield Wills, Sec. 8; 1 Washburn Real Property, 102, Sec. 30; Pollock v. Speidel, 17 Ohio St., 439; 2nd Williams on Executors, 937; 3 Jarmen on Wills, 174; Sanders et al.. 4 Paige Ch., 293; Nightingale v. Burrough, 15 Pick., 104; 1 Leading Cases Amer. Law Real Pr., 200; Powell on Devises, 494; 1 Washburn on Real Pr., 72, Sec. 22; Mattack v. Roberts, 54 Pa. St., 148; 1 Washburn, 173, Sec. 23; Harkness v. Corning, 24 Ohio St., 416; 1 Washburn, top page 167, margin 132.

      Slaybach & Harr, for defendant in error, cited the following authorities:
    Washburn on Real Prop., Vol. 1, p. 107, 5th Ed.; Goodrich v. Pierce, 83 Ga., 781 (10 Southeastern Reports, 45); Robinson et al. v. Robinson et al., Sup. Ct. Va., S. W. Rep., Vol. 14, page 916; Guthrie’s Appeal, 37 Penna. St., 9; Redfield on Wills, Vol. 2, p. 57; King v. Beck, 15 Ohio, 563; Amer. and Eng. Encyc. of Law, Vol 2, p. 177, Second Edition; Morgan v. Morgan, 41 N. J. Eq., 235; Williams v. Veach, 17 Ohio, 171; Brasher v. Marsh, 15 Ohio St., 103; Townsend v. Townsend, 25 Ohio St., 477; Carter v. Reddish, 32 Ohio St., 1; Edwards v. Rainer, 17 Ohio St., 597; Decker v. Decker, 3 Ohio, 157; Rhodes v. Wildy, 46 Ohio St., 234; Amer. & Eng. Ency. of Law, Vol. 29, p. 349.
   By the Court :

This was a suit to quiet title; and the question arises upon the construction of an item in the will of Elias Ayers, deceased, which reads as follows:

“Fifth: I give and devise unto my daughter, Marcella McLean, my home farm in Union township, Butler county, Ohio, containing about two hundred and eight acres of land; and also eighty-three acres of land in Liberty toAvnship, Butler county, Ohio, and on which she noAV lives, for and during her natural life time only, and at her death I give and devise said land to her children; and if she should die without children, then I give and devise the same to my grandchildren, Weller Ayers, David H. Ayres and Bertha J. Ayres absolutely — share and share alike.”

It is claimed by the plaintiff, a residuary legatee of Marcella McLean, the latter having died leaving a will, that she took a fee-simple in the 208-acre tract; on the other hand, it is claimed that the limitation, “for and during her natural life time only,” applies to the 208-acre tract as Avell as to the 83 acres. We think the latter is the proper construction. The words “and also” couples the two tracts together as one devise, so that both are affected by the same limitation of title; and there are no circumstances to indicate a contrary intention. This conforms not only to what seems to be the natural, but to the usual construction of devises, so coupled. The words are equivalent to “in like manner.” 2 Am. & Eng. Ency. L., 2d Ed., 177; Morgan v. Morgam, 41 N. J. Eq., 235.

Affirmed.


text:
    Finnical v. The Village of Cadiz.

      Violation of village ordinance — Cases of, sent to common pleas court —Should be tried upon affidavit bejore mayor — Not by indictment — Section 1827, Rev. Stat.

    Cases for the violation of village ordinances, sent to the court of common pleas in pursuance of Section 1827 of the Revised Statutes, should be tried in that court upon the affidavit filed before the mayor. Indictment of the accused is neither necessary nor proper.
    (Decided January 9, 1900).
    Error to the Circuit Court of Harrison county.
    An affidavit in due form was filed with the mayor of the village of Cadiz, charging the plaintiff in error with keeping a place in that village where intoxicating liquors were sold by him in violation of an ordinance of the village. The accused was arrested on a warrant duly issued, and taken before the mayor to answer to the charge, where he declined to demand or waive a jury. The mayor, after making the necessary finding, and an entry thereof, as required by section 1827, of the Eevised Statutes, proceeded to inquire into the offense, and required the accused to enter into a recognizance for his appearance at the next term of the court of common pleas, to answer to the complaint. The recognizance was entered into, and the papers, with a transcript of the mayor’s proceedings, were certified to, and filed in, the court of common pleas before the next ensuing term, and the case was placed upon the trial docket. In that court the accused filed a motion to strike the ease from the docket, because the offense was “by ordinance made punishable by imprisonment, and no presentment of the charge by indictment had been made.” The court sustained the motion, and ordered the case stricken from the docket, holding, as appears from the journal entry, that the case could not “be tried in that court without the defendant being first indicted by a grand jury, it being conceded and found by the court that imprisonment is a part of the punishment prescribed by the ordinance alleged to have been violated.”
    The village prosecuted error to the circuit court, where the judgment of the court of common pleas was reversed, and the case remanded to that court for trial. Error is brought here to reverse the circuit court.

      Albert O. Barnes, for plaintiff in error.

      D. A. Hollingsworth and P. W. Boggs, for defendant in error.
   Williams, J.

By section 1823 of the Revised Statutes, final jurisdiction is conferred on mayors of villages “to hear and determine any prosecution for the violation of an ordinance of the corporation, unless imprisonment is prescribed as part of the punishment.” “Where imprisonment is a part of the prescribed punishment, and the accused does not waive a jury,” the mayor “may summon a jury, and try the accused,” and in such case judgment shall be rendered in accordance with the verdict, unless a new trial, for sufficient cause, is granted. Section 1826. But, in such cases, by the provisions of section 1827, the mayor may decline to summon a jury and try the accused, “if in his opinion the public interest will be thereby promoted,” and, in that case, the mayor, having entered that fact on his docket, may “proceed to inquire into the complaint, and discharge the accused, recognize him to the court of common pleas, or commit him in default of bail; and in such case the court of common pleas shall have jurisdiction of the offense.” The mayor, in this case, proceeded under, and in accordance with, this last section, and took the recognizance of the accused conditioned for his appearance at the next term of the court of common, pleas, where, as has already been stated, the case was placed on the trial docket. There appears to be no express provision made by statute with respect to the mode of proceeding and trial in such cases in the court of common pleas; and it is the claim of the plaintiff in error that the same mode of proceeding and trial must be had as in criminal cases; that is, by indictment. This claim is obviously without foundation. There is nothing in the constitution which secures the accused that mode of trial. By the provision of the constitution indictment is necessary only in capital or otherwise infamous ■ crimes, and is not required in cases of inferior offenses, those where the punishment is less than imprisonment in the penitentiary. Though undoubtedly that mode of prosecution for such inferior offenses is the proper one when so provided by statute. Article 1, Section 10, Dillingham v. State, 5 Ohio St., 280, 282. But we have been unable to find any statute which provides for indictment for violation of municipal ordinances. The offenses, which it is the duty and province of the grand jury to inquire into and present by indictment, are those only that are violations of the criminal laws of the state. Prosecutions for these offenses are required to be in the name and by the authority of the state, and the indictment must “conclude against the peace and dignity of the state.” Constitution, Article 4, Sec. 20. These provisions seem incompatible with prosecutions by indictment for offenses against* municipal ordinances, which are carried on in the name, and for the benefit, of the corporation. Where snch cases are certified to the court of common pleas under section 1827, the proper course to pursue is to proceed to trial upon the affidavit filed before the mayor. That constitutes a sufficient information. The object of the provision for sending cases of that kind to the court of common pleas, is to afford the accused better opportunity of having a trial by an impartial jury, with proper instructions from the court, and a judgment unbiased by local influences, if he is found guilty.'

Judgment affirmed.