author: Williams, G. J.

text:
    The State v. Hutchinson.

      Pure food law — Authority of U. S. Pharmacopoeia — Provisions op statute — Interpretation of law.

    1. The United States Pharmacopoeia is adopted by the statute providing against the adulteration of food and drugs, (81 O. L. 67 and 87 O. L. 248) as an authoritative compilation comprising accepted and known articles of drugs, with a description of their characteristics and qualities, and an approved standard of their strength and purity.
    2. Whisky is recognized by that name in the Pharmacopoeia, where its proper standard of purity and strength is laid down, and is a drug within the meaning of the pure food and drug statute.
    3. While that statute is mainly designed for the better preservation and promotion of the public health, it is also directed against frauds resulting from the sale of inferior articles for prices which entitle the purchaser to those that are of the required standard.
    4. The provisions of the statute relating to the sale of drugs, are not limited in their application, to sales by druggists and pharmacists, nor to sales for medicinal or pharmaceutical use, but they extend to all persons without regard to their vocation, and make no distinction on account of the use intended to be made of the article.
    5. The sale of whisky which is adulterated within the meaning of the statute, is an offense against its provisions, though it be sold as a beverage or commercial commodity, and by one who is neither a druggist nor pharmacist.
    (Decided February 2, 1897.)

      Bill of Exceptions takenby the prosecuting attorney to the ruling of the court of common pleas of Franklin county.

    The defendant was prosecuted before a magistrate, for a violation of the statute providing against the adulteration of food and drugs. (81 O. L. 67 and 87 O. L., 248.) The affidavit charged him with having made an unlawful sale, on the 10th day of May, 1896, of whisky which was adulterated within the meaning of the statute, in that it was below the standard of alcoholic strength laid down in the United States Pharmacopoeia. It appears that the principal contention of the accused at the trial was, as it is here, that the statute does not apply to sales of whisky when made in a saloon, or as a commercial commodity, but' is applicable only when the sale is made by a druggist, or pharmacist, for medical or pharmaceutical purposes. The magistrate held otherwise, and instructed the jury, in substance,- that if they should find from the evidence, beyond a reasonable doubt, the accused sold the whisky as charged in the affidavit, • and that the whisky so sold was different, as charged in the affidavit, from the standard of alcoholic strength as laid down in the United States Pharmacopoeia, for whisky, the sale was a violation of the statute, though made in a saloon, and to be used as a beverage. The accused was convicted and sentenced, and the court of common pleas reversed the judgment for error in giving the foregoing instruction to the jury. The prosecuting attorney took the bill of exceptions here presented, to that ruling of the court of common pleas.

      F. S. Monnett, Attorney General; J. K. Bicharás and Charles Case, argued in support of the exceptions.

      Samuel Hambleton, and Edmund Smith, contra.
   Williams, G. J.

The question which the bill of exceptions presents for the decision of this court is one of some importance, and is, whether the sale of whisky, when made otherwise tnan by a druggist or pharmacist for use as a medicine, is within the condemnation of the statute under which the prosecution was instituted. The provisions of that statute which affect this question, are those contained in sections 1, and 2, and a part of section 3,and are as follows: “Section 1. That no person shall, within this state, manufacture for sale, or offer for sale, or sell any drug or article of food which is adulterated within the meaning of this act.” “Section 2. The term ‘drug,’ as used in this act, shall include all medicines for internal or external use, antiseptics, disinfectants and cosmetics.” “Section 3. An article shall be deemed to be adulterated within the meaning of this act: {a). In case of drugs: (1). If, when sold under or by a name recognized in the United States Pharmacopoeia, it differs from the standard of strength, quality or purity laid down therein.”

The Pharmacopoeia mentioned, is adopted by the statute as an authoritative compilation, comprising the accepted and known articles of drugs and medicines, with a description of their characteristics and qualities, andan approved standard of their proper degree of purity and strength. Whisky, by that name, is therein recognized and described, and its appropriate standard established ; and that article, it is well known, possesses important medicinal virtues, both in its internal and external use. It is none the less a medicine because it is sometimes taken as a beverage, or, like many other articles of medicine, may sometimes be applied to other than medicinal uses.

The statute is general in its terms, embracing every person in its inhibition against sales forbidden by its provisions, without distinction on account of the occupation of the seller, or the purposes of the sale, or on any account whatever.

It is contended, however, that a legislative intent to limit the application of the statute so far as it relates to drugs, to sales by pharmacists and druggists, is to be derived from the fact that on the same day the statute was passed, another statute was enacted providing for the examination and registry of persons engaging in business of that kind, and prohibiting the business being carried on except by, or under the supervision of, a registered pharmacist. (81 O. L., 61.) But the fact that these two statutes engaged the attention of the legislative body at the same time, affords strong ground for the inference that it was rather the intention of that body not to restrict the operation of the former act as suggested, for such restriction, if it had been intended, could easily have been made, and the necessity of employing appropriate language to express it, would readily occur to the legislative mind. That no such restriction is expressed, but the statute was left general in its terms, applicable alike to all persons, sufficiently indicates the intent that the statute should have general application according to its terms. A legislative intention to exclude the application of the statute to sales of whisky as an article of merchandise, is also sought to be derived from those statutory provisions which regulate the traffic in intoxicating liquors; which, it is claimed, constitute a distinct system of laws complete in itself, controlling the whole subject. The provisions referred to are those requiring the dealer to take out a government license, and pay a stipulated tax to the state ; and those providing for the inspection of liquors, and against their adulteration. They are embraced in sections 3249, and 3250, of the Revised Statutes of the United States, and in the Dow law, and sections 4330, 4332, 6950, and 7082 of the Revised Statutes of this state. But the right of traffic conferred on the dealer by the government license and payment of the state tax, is subject to such limitations and regulations as the state in the proper exercise of its legislative power, may from time to time impose. Neither the license, nor payment-of the tax gives him authority to make sales which are in violation of those regulations, nor relieves him from the penalties they impose for a failure of their observance. And druggists and pharmacists are amenable to those provisions which punish the adulteration of whisky, and its sale when adulterated, like every dealer in liquors as a commercial commodity merely. They cannot plead their avocation as an excuse for a transgression of those provisions, nor demand immunity from the penalties that are attached, on account of the character of the business in which they were engaged at the time of the violation. There is no repugnancy between these statutes and the one here under consideration. They may all stand together, and they operate alike upon all persons who come within their provisions. They all have in view the same general result, that of insuring-the most desirable and perfect standard-of purity and quality of articles which in their use might otherwise prove injurious to health. They are directed to the accomplishment of still another purpose scarcely less laudable, and that is the prevention of frauds resulting from the sale of an inferior article for a price which entitles the purchaser to one fully up to the proper standard. This statute is an additional regulation, designed for the more complete attainment of these salutory ends; and, that it might not prove ineffectual, it was deemed necessary that it should reach all persons who vend articles included in its provisions ; and it does so in plain terms. It contains no exception in favor of any person, class or business, and we are not aware of any authority of the court to engraft one of that character; or any other, upon it.

Exceptions sustained.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Heaton v. Eldridge & Higgins.

      Law of contracts — Sanction and interpretation from lazo of place of execution and of performance — Remedy under lazv of place where sought — Section 4199, Rev. Stat. — Statute of frauds— Agreement not to be performed zvitkin a year.

    1. Contracts receive their sanction from the law of the place where they are executed and to be performed, and their interpretation is controlled by that law; but the remedy upon the contract will be administered according to the law of the place where the remedy is sought.
    2. Section 4199, of the Revised Statutes, prescribes a rule of procedure to be observed by courts whose jurisdiction is invoked for the enforcement of contracts to which the statute relates; and the mode and measure of proof required by the statute are indispensable to the establishment of such agreements, wherever they may have been made.
    3. An agreement which, by its terms, is not to be performed within one year from the time it was made, will not be enforced in this state, unless the agreement, or some memorandum or note thereof is in writing, and signed by the party to be charged or by some person authorized by him to sign it, although the agreement was made in another state or country where it was competent to prove the same by parol evidence.
    (Decided March 9, 1897.)

      Error to the Circuit Court of Franklin county.
    Action was brought by Eliza Heaton against Elridge & Higgins, in the court of common pleas, on ' several promissory notes executed by the defendants, amounting in the aggregate to something over two thousand dollars.
    The answer set up a counter-claim for damages resulting from the breach of an oral agreement which, it was alleged, had been entered into by the parties, whereby the plaintiff agreed to employ the defendants as her agents for the sale of cigars of the plaintiff’s manufacture, at a stipulated compensation, and for a specified time extending beyond the period of one year. The agreement, it is averred, was made and to be performed in the state of Pennsylvania, where the law did not require contracts of that kind to be in writing, nor a written memorandum thereof to be signed by either party, nor forbid the bringing of an action thereon. The allegations of the answer were specifically denied by reply, and at the trial the plaintiff interposed the statute of frauds of this state to the evidence offered in support of them. The evidence offered to establish the agreement, which consisted of oral testimony only, was excluded from the consideration of the jury ; and there being no defense to the notes, judgment was rendered for the plaintiff for the amount due on them. The judgment was reversed by the circuit court, for error in the exclusion of the testimony; the court holding that, as the contract was valid where it was made, our statute was not an obstacle to its enforcement here; and whether that holding is correct is the only question brought before this court. '

      Holmes <& Haling and Harry H McMahon, for plaintiff in error.
    Brief of J. T. Holmes.
    The meaning of the statute is that the whole agreement, viz.: the promise, the parties, the subject-matter, the price or consideration, and the terms or conditions, must be shown by the written memorandum, or note itself, or by its reference to another writing. It is not a gratification of the statute that some, or even all but one, of the terms of a contract were stated in the written memorandum or notes. Smith v. Small, 82 Mo., 215. The writing must be a memorandum of the contract actually made, and if it is not so, parol evidence may show the fact. Browne’s Stat. of Frauds, Section 348; Benjamin’s Sales, Sections. 209, 270, 250 and 349; Reed’s Stat. of frauds, Section. 323. Ford v. Yates, 2 M. & G., 549 ; Williams v. Morris, 95 U. S. 456; Lesh v. Berlin, 78Mo-,391; lGreenleaf on evidence, section 268, 15th Ed.
    The question raised is whether the statute of frauds of the forum, or of the place of the contract, governs. Upon this question the authorities are somewhat discordant, but reason and principle sustain the contention that the lex fori governs. The leading case on this side was Leroux v. Brown, 12 Q. B., '801. Dotoner v. Cheese-borough, 36 Con., 45, is also a leading case. The Supreme Court of the United States approved the decisions in these cases, in Pritchard v. Norton, .106 U. S., 124; Creen v. Lewis, 26 U. C. Q. B.,625; Bain v. Whitehaven <& Furnis Junction Baikoay Co., 3 House of Lords cases; Bank v. Hemimoay, 31 Ohio St., 168; Pinney v. Cummings, 260hioSt., 46;
      Whelan v. Kinsley, 26 Ohio St, 13;Miller et el v. Branham, 63 N. Y., 83; Clark v. Railway Co., 94 N. Y.. 317; Browne’s Stat. of Frauds, section 281; Toioesley v. Moore, 30 Ohio St., 184; Agnew on Statutes of Frauds, 178.
    This question'was squarely passed upon by this court in Reinheimer v. Carter, 31 Ohio St., 579. Nothing short of complete performance by one party within the year was held to be sufficient.
    It may be well remarked that it is a rule of very extensive application, that evidence by which a contract is to be enforced, modified or rescinded, must be such as is recognized by the lex fori. Latoson v. Pinckney, 8 Jones and S., 187; Story Confl. Laws sections 556, 697, quoted from 2 Rice on Ev., 1123.
    Section 262, 1 Green. Ev. shows that it is a statute of evidence and remedial in its nature.
    While the interpretation of a contract, as is elsewhere seen, is usually settled, so far as concerns its formal parts, by the lex loci contractus, and so far as its substance by the lex loci solutionis, the admissibility of the evidence by which the contract is to be enforced is to be adjudicated according to the lex fori, section 316, 1 Whart. Ev., citing British Lin, Go. v. Drummond, 10 B. & C. 903 ; Clark v. Mullido, 3 Moo. P. C., 299; Timbrey v. Vignier, 1 Bing. N. C. 151; Bain v. R. R. Co., 3 H. of L. cas., 19 ; Yates v. Thompson, 3 Cl. & F., 577; Brown v. Thornton, 6 Adolph. & E., 185; Donn v. Lippman, 5 Cl. & F., 11 ; Lawson v. Pinckney, 40 N. Y. Sup. Ct., 187 ; Whart. Confl. L. section 756 et seg; Story Confl. L. sections 556, 629.

      All of the contract must be found in the writings 1 Green Ev. section 268, supra. Agnew statute of Frauds, pp 64, 66. Wood on Frauds, Section 166.

      A right of action is one thing, the remedy thereon is quite another.
    We have no authority that would warrant the intrusion into the courts of Ohio of the rules or laws of procedure, or remedy, from any other state, or country, where our own laws provide a remedy.
    Such a thing is beyond the power of any other state, or country, and comity does not cover the point.
    We never violate our own laws to afford foreigners, or those who make foreign contracts, remedies against our own citizens, which we deny to our own citizens or domestic contractors.
    Equality of remedies in a state, even to the federal courts within it, was voiced in the Middlings Purifier Co. v. McGroarty, 136 U. S., 237.
    The principle is inconsistent with the spirit and genius of our complex system of government; it is impossible of application while the independence of our state judiciary and judicial system remains.
    The case of Scudder v. The Bank, 91 U. S. 406, is an important one on the doctrine involved and has been cited in numerous cases since it was decided; among others, in 106 U. S. 127, 130, 134; 15 Blatch. 85; 5 Dill. 484; 15 B’k Reg. 498; 22 Kas. 99; 35 Mich. 361; 125 Mass. 375; 28 Am. Rep. 242; 77 N. Y. 585; 33 Am. Rep. 680; 82 N. Y. 420; 37 Am. Rep. 579; 12 R. I. 266; 34 Am. Rep. 636; 109 U. S. 527 — 549. Wheaton on Conflict of Laws, section 401 Pritchard v. Norton, 106 U. S., 127; Canada Southern case, 109 U. S. 527; Denny v. Bannett, 128 U. S., 489 ; Kanaga v. Taylor, 7 Ohio St., 134; Marie v. Garrison, 13 Ann. N. C., 214'; Abbott by etc. v. Inskip, 29 Ohio St., 59; Town-sender. Hargraves, 118 Mass., 326.

      There is no question about the validity or interpretation of the alleged contract.
    It was made in Pennsylvania, and the laws of that state, by comity of Ohio, would settle both those questions if raised, because those laws become in the eye of comity a part of the contract, but the remedy, the mode of proof in case of suit does not become a part of the contract. Harrison-Baldwin Case, 5 C. C. Rep., 310; Bishop’s Law of Contracts, section 571; Still/nanv. White Rock Manufacturing Co., 3; Woodb. & M. 544; Blane v. Drummond, 1 Marsh, 68; Rleeman v. Collins, 9 Bush, 466; Neilv. The Bank, 50 Ohio St., 193; Boydv. Clark, 8 Fed., 849; Dennich v. Railroad Cb.,103U. S., 11; LeRoy v. Crowninshield, 2 Mason, 151; Wharton’s Conflict of Laws, 2nd Ed. section. 690.
    The text and the notes of Story on Conflict of Laws, 8th Ed., sections 262, 319, 576 and 577 touch and discuss the doctrine and its application. See last edition of Browne on the Statute of Frauds, section 136, citing: Lerouxv. Brown, 12 C. B. 801; Do/oner v. Chesebrough, 36 Conn. 39; Rleeman v. Collins, 9 Bush (Ky.) 460; Turnow v. Ilochstadter, 7 Hun (N. Y.) 80; Wilcox Silver Plate Co. v. Green 72 N. Y. 18; Dacosta v. Davis, 23 N. J. L. 319; Hunt v. Jones, 12 R. I. 265; Wilson v. Miller, 42 111. App. Ct. 332; Denny v. Williams, 5 Allen 1; Miller v. Wilson, 146 111. 523; Cochran v. Ward, 5 Ind. App. 89 ; Ruhe v. Buck, 124 Miss. 178; Hayden v. Stone, 13 R. I. 106.
    That the law of the forum governs as to remedies in the enforcement of contracts, see, also, Pickering v. Fisk, 6 Vt. 102; Commercial Nat. Bank v. Chicago etc. Ry. Co., 45 Wis. 172; Leiber v. Union Pac. Ry. Co., 49 Iowa, 688; Denny v. Fa/idkner, 22 Kan. 89; Green v. Van Buskirk, Wall, 307; Wharton on Conflict of Laws, section 121; Bank of United States v. DonnaUy, 8 Pet. 362; Laird v. Hodges, 26 Ark. 362; Gibson v. Sublett, 82 Ky. 596.
    The English notes to Leroux v. Brown embrace and refer to three of the still earlier eases, abstracted or quoted from, which recognize' and declare the doctrine ; The British Linen Qo. v. Drummond, 10 B. & C. 903, decided in 1830; De la Vega v. Vianna, 1 B. & Ad. 284, same year, decided by Lord Tenterden, and Huber v. Steiner, 2 Bing. N. C. 202,1835. Chancellor Kent’s 2 Comm. 463 and the notes, 13 ed.

      Selxoyn H. Owexi and Powell, Ricketts <& Black, for defendants in error.
    Brief of Selioyn N. Oioen.

    We can safely indorse nine-tenths of what is said by counsel for plaintiff in his very elaborate brief. If the statute of frauds involves only a question of procedure or evidence, as the learned counsel contends, he is wholly right. Our contention is that in this he is wholly wrong.
    Upon this proposition we cite Scudder v. Union National Bank, 91 U. S., 412: Alexander v. Penn. Go., 48 Ohio St., 636 ; Knoxolion v. Erie Rail-way, 19 Ohio St., 263; Irirnby v. Gignier, 1.Bingham’s New Cases, 151; Dao,osta~v. Davis, 24 N. J. L,, 319; Story Con. Law, sections. 24, 262.
    ' We think that it is apparent that this was not intended to create a simple rule of evidence, which we concede would be a matter of procedure, or one concerning’ the remedy, but that it is a provision which stands in the wajr of the party claiming under such contract, enforcing flts obligation against the other contracting party. It reaches to a .question of right and of redress. Story Con. Laws, section 26L
    This subject is illustrated by the eases which hold that where a contract is sought to be enforced in the forum of a state where such contracts are required to be solemnized by certain formalities, such as attesting witnesses or a re quirement that it be registered; but where no such requirement is provided by law of the state where it was made and was to be enforced, the same remedy may be had upon it as in the state of its creation. Anderson v. Doah, .10 Ired. Law, 295; Drewryv. Phillips, Busb. L. 81; Satterthioaite v. Doughty, 59 Am. Dec., 557.
    The fountain and inspiration of about allthepropositions found in the text books and in the cases which support the action of the trial court is the case Leroux v. Broion, 12 Com. B. 801.
    It was there held that a contract made in Prance, which by the law of that country was not required to be in writing, could not be enforced in the courts of England by reason of the pro vision of the statute of frauds of the latter country, which provided tha.t no action should be brought upon such a contract unless evidenced by writing.
    The strongest indorsement of Leroux v„ Broion, to be found in any of the text books, is found in Wharton’s Con. Law. section 690, so conspicuously cited (with the cases to support it) by counsel for plaintiff. Rleeman v. Collins, 9 Bush., 460; Wharton cites Doioner v. Chesbrough, 36 Conn.; Gibson v. Holland, L. R., 1 C. P. 1; Williams v. Wheeler, 8 C. B. N. S., 316.
    In this connection, and because it is most convenient, we direct the attention of the court to what is said of this case in Rowley v. Rowley, 1 *Q. B. Div., 461.
    The same writer (Wharton) also cites in support of his position, Turnow- v. LLockstader, 7 Hun., 80.
    This is all that is said in that case upon the subject. It is all our way, for it holds that the statute of frauds of the state where the contract is to be performed, is to prevail; not because it was a matter of procedure or because the lex fori was supreme. The same learned author cites in support of himself and Leroux v. Broion, Wilcox Go. v. Green, 72 N. Y., 18; Brinker v. Scheuman, 43 111, App., 662; Greeny. Lewis, 26 Q. B. Upper Canada, Wolf v. Burke, 19 Lawyer’s Rep., 792.
    The case of Leroux v. Broion is also criticised in Maxwell’s Interpretation of Statute, 2 ed. 180.
    The distinction made in Leroux v, Broion between the legal effect, in .statute of frauds in provisions that “noaction shall "be brought,” that “no contract shall be allowed to be good,” and that contracts shall be void, has proved capable of infinite mischief making.
    The comprehensive and far reaching fallacy of Leroux v. Brown, lies in its assumption that the statute of frauds, which provides that no action shall be brought upon such contract, unless, etc., is a mere rule of evidence relating to remedy and 'procedure, and that it does not at all affect the validity, the obligation or the contractual vitality of a contract. It is radically unlike the statute of limitations which a State may extend or curtail at pleasure, without being subjected to the imputation of imparing the obligation of the contract involved. It is conceded that the statute of limitations simply affects the remedy, and that the lex fori prevails; but that the statute of frauds concerns the obligation and vitality of a contract is declared by Von Huffman v. City of Quincy, 4 Wall (U. S.') 535, Edwards v. Kerzy 96 Ul S. 600, Terry v. Anderson, 95 U. S., 633; Wardlow v. Buzzard, 15 Rich., (N. C.)158; Griffin v. M. McKenzie, 50 Am. Dec., 391Hawkins v. Barney, 5 Pet. '451; Jackson v. Lanyphire, 3 Id. 280; $?/m v*. Waterson, 17 Wall. 596; Christmas v. Bussell, 5 Id. 290; Niwr(7¿s v. Crotoninshield, 4 Wheat. 122; Ludwig v. Steioart, 32 Mich. 27; Krone v. Krone, 37 Id. 308; Pereles v. Watertoton, 6 Biss. 79 ; isZari v. Bostwick, 14 Fla. 162 ; Lewis v. Harbin, 5 B, Mon. 564 ; Davidson v. Laiorence, 49 Ga. 335.”
    In the recent Indiana case of Cochrdn v. TPim#, 29 N. E., 795; the doctrine of Leroux v. Brown was expressly repudiated in an able and exhaustive opinion. Pickering v. Fiske, 6 Vt. 102.
    It was conceded by the trial court in sustaining the objection and granting the motion of plaintiff’s that the result was a hardship to the defendants, but it was said to be a hardship of the law. We submit that in doubtful questions, in questions of doubtful construction, a statute should be given that effect which will avoid hardships and work justice.
    It is but fair to the trial court to say that not one of the cases criticising Leroux v. Brown, and showing that statutes of frauds impair the obligation of pre-existing parol contracts was cited before the presiding judge.
    In Pennsjdvania, where our contract was made and was to be performed, it was not required to be in or evidenced by writing. It related to the form and solemnization which was necessary to give it effect. It was good and valid, and enforcible by either party to it, as either plaintiff or defendant.
    It seems idle to assert that these contracts are valid, but cannot be proved. What mockery is it to tell us: “Your contract is all right but you can’t sue on it. Your contract is valid, but you cant recover on it. Your contract is binding and creates a valid obligation, but you can’t enforce it in any court in this State for the reason that óur law enacts that no action shall be brought upon such a contract because you did not evidence it by writing. ” In what respect and to what extent would our case be bettered by calling our contract a valid one ? It is saying to us, in ghastly irony, “Your contract is valid down to the time when you seek to enforce it, then it suddenly becomes just as invalid as if it was an invalid contract.”
    We conclude by commending to this court the able and considerate opinion by Stewart, J., of the Circuit Court, VII. C. C., 501.
   Williams, J.

It is provided by section 4199, of the Revised Statutes, that: “No action shall be be brought * * * upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some person thereunto by him or her lawfully authorized.”

There is no doubt that the law of the state or country where a contract is executed and is to be performed, enters into and becomes a part of the contract, in the sense that its validity and obligatory effect are to be determined and controlled by that law ; and when valid there, the contract will be sustained everywhere, and accorded the interpretation required by the law of the place where made, when the law is properly brought to the attention of the court, unless the contract is against good morals, or contravenes a settled policy of the state or country in whose tribunals its enforcement is sought. The rule is founded . on the presumption that parties contract with reference to the laws to which they are subject at the time, and on the principles of comity prevailing among civilized nations. But it does not extend so far that the remedial system and methods of procedure established by one state or country will yield to those of another, nor that either will recognize or enforce those of the other. Each provides and alters at will its own rules and regulations in the administration of justice, to which those seeking redress in its courts must conform.

So that, the solution of the question presented involves the inquiry whether the provision of the statute above quoted appertains to the remedy on contracts to which it refers, or goes to their validity. We have found no expression on the question by this court, though it has been the subject of repeated adjudications both in England, and in several of the states. This provision of our statute is copied from the 4th section of the English Statute of Frauds; and in the case of Leroux v. Brown, 12 C. B. (74 Eng. C. L.), 801, where the precise question we have before us arose, it was held, that the section affected the remedy only, and was so applied as to defeat a recovery on a parol contract not to 'be performed within a year, which was made in France, where it was capable of proof by parol evidence. The case appears to have been thoroughly argued and considered, and the decision has since been adhered to by the English courts, and followed or cited with approbation by many American cases, and generally accepted by text writers, as the established law. Bain v. Whitehaven, 3 H. L. Cases, 1; Williams v. Wheeler, 8 C. B. N. S., 316; Madison v. Alderson, L. R. 8 App. Case, 467, 488; Pritchard v. Norton, 106 U. S., 127; Dower v. Cheesbrough, 36 Conn., 39; Townsend v. Hargrave, 118 Mass., 326; Bird v. Monroe, 66 Me., 337; Emeng v. Burbank, 163 Mass., 326; Wald’s Pallock on Contracts, 604-607, and notes. Anson on Contracts, p. 79; Brown on the Statute of Frauds, sections 136, lio a; Agnew on Statute of Frauds, 64-66; Wood on Statute of Frauds, section 166; Wharton on Conflict of Laws, section 690. And while the case of Leroux v. Brown has been criticized, those criticisms have been directed chiefly to the distinction drawn between the 4th and 17th sections of the statute, and the opinion expressed that the language of the latter section was such as to render invalid contracts within its provisions, for which reason it did not, as did section 4, constitute a regulation affecting the remedy. This distinction has not met with general approval, and has been repudiated in some of the latter cases, which hold, that the 17th section relates to the remedy, like section 4, and that the difference in the phraseology of the two sections is not such as to warrant a different interpretation in that respect, but that both sections prescribe rules of evidence which courts, where the 'remedy is sought, are required to observe. Townsend v. Hargrave, 118 Mass., 326; Bird v. Monroe, 66 Me., 337, 343; Pritchard v. Norton, 106 U. S., 127 ; Madison v. Alderson, L. R. 8 App. Cas., 467-488 ; Brown on the Statute of Frauds, section 136, note.

In Story on the Conflict of Laws, section 262, a different view of the question was taken, which has been adopted by some courts ; but the decided weight of authority is in accordance with the decision in Leroux v. Brown. The views of Judge Story were brought to the attention of the court in that case; and, in an edition of his work published after that case was decided, a section was added, in which it is said, that “the statute of frauds is, like the statute of limitations, a matter affecting the remedy merely; and if by the law of the forum no action can be maintained on a particular oral contract, if made in that country, the like rule will obtain as to a contract made elsewhere, although it was valid by the law,of the place where made.” Story on Conflict of Laws, 7 ed., section 576.

The question being an open one in this state, we are not disinclined to consider it on principle. The principle which must control its decision is the fundamental one that contracts receive their sanction and interpretation from the law of the place where they are made and to be performed; but the remedy upon them must, be taken and pursued according to the law of the place where they are sought to be enforced; and a decision of the question will be reached when it is ascertained within which of these rules the statute of frauds finds its appropriate place. The language of the statute under consideration, that no action shall be brought on any agreement therein mentioned, unless it, or “some memorandum or note thereof is in writing and signed by the party to be charged,’’ fairly imports that the agreement precedes the written memorandum, and may exist as a complete and valid agree ment, independent of the writing The memorandum, which is merely the evidence of the contract, may be made and signed after the completion of the agreement, and even a letter from the party to be charged, reciting the terms of the agreement, is sufficient to satisfy the requirements of the statute ; but it cannot be said that the letter constitutes the agreement; that was ■ made when the minds of the parties met with respect to its terms, and the letter furnishes the necessary evidence to prove the agreement in an action for its enforcement. And generally, when parties reduce their contracts to writing, the writing becomes the evidence of the agreement which they had previously entered into; and, having adopted that mode of evidencing their .agreement, the parties are not allowed to make proof of it by verbal testimony. This statute, in plain terms, forbids the maintenance of an action in any of the courts of this state, on any agreement which, by its terms, is not to be performed within a year, unless’ the action is supported by the required written evidence. The evidence by which a contract shall be proved is no part of the contract itself, but its admission or rejection becomes a part of the proceeding on the trial, where its competency and sufficiency must be determined. When the required evidence is lacking, the courts must refuse the enforcement of the contract. And it seems clear, that such a statutory regulation prescribing the mode or measure of proof necessary to maintain an action or defense, pertains to the remedy, and constitutes a part of the procedure of the forum in administering the remedy. The statute contains no exception or limitation on account of the place where the contract was entered into, or to be performed; but denies remedy on any contract of the kind designated by it, wherever made, which can not be established by the evidencce required.

That such was the intended scope of the statute is manifest when the purpose of its eactment is considered. Its well known design was, as declared in the English statute of frauds, after which ours, and those of most of the states are patterned, to prevent perjuries and fraudulent practices which were the outgrowth of the general admission of parol testimony to prove almost every kind of contract, and by means of which people were often stripped of their estates, and burdened with liabilities by testimony of alleged conversations and verbal declarations. The opportunities thus afforded for the perpetration of frauds, constituted temptations so strong for the commission of perjuries, that legislation excluding that kind of evidence in a large number of cases became, or was considered a necessity. These mischiefs, to remedy which was the chief aim of the statute, arose from, the admission of oral evidence in trials of actions and suits, and in the course of judicial procedure; and obviously, the opportunity and temptation for the commission of frauds and perjuries by admitting parol proof to establish the contracts with which the statute is concerned, are not any the less in eases where the agreement was made in another state or country, than in those where the agreement involved is' one, made in this state ; the mischief is the same in either case, and to allow the former to be so proved, would, that far at least, prevent the accomplishment of the salutary purposes of the statute. The statute is founded on considerations of public policy, and those of a moral nature, and declares a peremptory rule of procedure which the courts of this state are not at liberty to disregard in defference to the laws of any other state or country.

The agreement set up in the defendant’s answer could not, according to its terms, be performed within one year from the time it was made. An action upon it could be supported only by evidence which complied with the statutory requirements; and to be available as a counterclaim, which is a cross .action, such evidence was indispensable. It was not offered, and the court, we think, properly excluded the parol evidence relied on to prove the agreement. The judg’ment of the circuit must therefore be reversed, and that of the common pleas affirmed.

Judgment accordingly.


author: Minshall, J.

text:
    City of Cincinnati v. Holmes, Adm’r, et al.

      Conflict of laws — Later statute incompatible with earlier — Later regarded as exception to former — Act of May 4, 1891, not invalidated by section 2702 Rev. Stat. — Burns law.

    1. Where the general provisions of a statute and those of a later one on the same subject are incompatible, the provisions of the latter statute must be read as an exception to the provisions of the earlier statute.
    2. The provisions of sec. 2702, Revised Statutes, known as the Burns law, do not apply to the act passed May 4, 1891 (88 Laws, 527), authorizing villages of a certain class to make certain street improvements, and defray the costs and expenses thereof by issuing bonds and levying taxes and assessments as therein, provided; and, therefore, a contract made with the village for the performance of the wtirk, before any of the money is in the treasury is not, for such reason, void.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Hamilton county.
    The suit below was brought by the village of Avondale upon ‘ £an agreement' and guaranty in writing, signed by William Holmes and William B. Burnet, dated May 4, 1891, addressed to the mayor and council of the village of Avondale, that James G. Piolines, then in life, would enter into an agreement and faithfully perform the terms of a. proposal submitted by him for the construction of a proposed improvement of a certain avenue of the village, for which bids had been solicited by advertisement. The village has since been annexed to the city of Cincinnati, and it now prosecutes the suit as the successor to the rights of the village.
    The proceedings for the improvement were had tinder the provisions of two statutes passed respectively April 15, 1890 (87 Laws, 201), and May 4, 1891), (88 Laws, 527); the validity of which acts have been heretofore affirmed by this court.
    In accordance with the requirement of the advertisement for competitive bids James G. Holmes filed with his proposal the written agreement of William Holmes and William B. Burnet, that if he should refuse to execute tlye contract in accordance with his proposal, should it be awarded him, they would ‘ ‘pay to the village of Avondale any difference between the sum that he would be entitled to on its completion and that which the corporation may be obliged to pay to the person. or persons to whom the contract may be awarded at this or any subsequent time. ” Holmes was found to be the lowest bidder, and the contract was awarded to him; but, after due notice, he refused to enter into the contract, and the work was relet to one Sullivan for some $22,000 more than the bid of Holmes, which sum the village was compelled to pay and did pay for the construction of the improvement over and above the proposal of Holmes.
    Issues were made up and tried to the common pleas judge, a jury being waived. The court found for the plaintiff and rendered judgment in its favor for the sum of $22,134.79. A bill of exceptions was taken and error prosecuted to the circuit court, on various assignments of error.
    The circuit court reversed the judgment for the following reasons alone:
    “That at the time the contract for the improvement of that portion of Main avenue set forth in the petition herein was awarded to James G. Holmes, the plaintiff in error, by the council of the village of Avondale, there was not in the treasury of said village, and never had been, and was not in said treasury at the time that it was demanded of the plaintiff in error by the council of said village that he enter into said contract, money sufficient to pay said James G. Holmes for said proposed improvement, or for any portion thereof, and for the further reason that the clerk of said village, at the time of said award, failed to certify to said council that the money to be required for carrying out said contract was in the treasury to the credit of the fund for the improvement of said portion of Main avenue and not appropriated for any other purpose, and that the said clerk never did so certify.”
    Error is now prosecuted in this court to reverse the judgment of the circuit court, and affirm that of the common pleas.

      Frederick Hertenstein, Corporation Counsel; A. BIluston and J. W. Warrington, for plaintiff in error.
    I. No duty had arisen, even if one would ever arise, to have and certify to the presence of money in the treasury. Revised Statutes, sections 2303, 2702; Hughes v. Village of Glyde, 41 Ohio St., 339; Commissioners v. Rhodes, 26 Ohio St., 411; State ex rel v. Commissioners, 1 O. C. C. Rep., 194.
    II. Holmes waived the protection of the Burns law, even if he was ever entitled to it. Smith v.' Roe, 7 Col., 95; Sinnot v. Mullin, 82 Pa. St., 333; Addison on Tort, 913.
    The principle here announced is laid down in all the text-books on contracts, and in numerous adjudicated eases. State ex rel v. Commissioners, 26 Ohio St., 531; Reilly v. Neto York City, 18 N. E., 623.
    III. The acts under which the improvement was made were outside of the intent and scope of section 2702 and an exception to it. Elster v. Springfield, 49 Ohio St., 82;' State v. Hoffman, 25 Ohio St., 333; Cincinnati v. McErlane, 3 W. L. B., 843; Clark on behalf of City of Columbus v. Columbus et al., 23 W. L. B., 290; Wilson v. Cincinnati, 19 W. L. B., 10; Cincinnati v. Ilonningford, 32 W. L. B., 32; Tyler v. Columbus, 6 O. C. C. Rep., 224; YAe Lima Gas Co v. Lima, 4 O. C. C. Rep., 22.
    With these authorities in view touching the purpose and scope of the cash system as distinguished from the credit system, it would seem plain that wherever a statute is enacted expressly authorizing a municipality to go into debt for special objects, both the reason and application of the cash system cease. liCessante rations cessai ipsa lex.” Indeed, the inevitable effect of vesting power to incur a debt for a special object, is to restore the credit system pro tanto.

    The acts of April 15,1890 (87 O. L., 201) and May 4, 1891 (88 O. L., 527), which, apart from the methods of classification, are the same, show that the intent was to accomplish an extraordinary municipal purpose. It was to enable certain villages of a specified class and vocation “to make more durable street improvements than have -heretofore been made therein.” In order to pay for these unusual improvements, the fourth paragraph of the act expressly authorized the villages to £o into debt. That debt .was to be an interest-bearing obligation.
    It follows, as it seems to us, that the true interpretation of the Burns law in connection with the improvement acts in question, is that the former must be regarded as a mere general law not intended to affect statutes passed to accomplish special objects like those in question. In other words, the special statutes must be treated as an exception to the general statutes; for otherwise their inconsistent provisions work a hardship upon the taxpayers for whose benefit and protection the legislation as a whole was obviously designed. HoeyY. Gilroy, 129 N. Y., 132; The Dean etc. of Ely v. Bliss, 5 Beav., 574; Commissioners v. Mg Comb., 19 Ohio St., 345; The State v. Newton, 26-Ohio St., 200.
    Is it possible that the embarassment and delay of the state’s litigation, or even “the detriment of the state,” could be a sufficient reason for requiring the provision of the general statute in that case to yield to that of the special statute, and yet that an unnecessary burden upon taxpayers is not a sufficient reason for requiring the general provisions of the Burns law to yield to the special provisions of the improvement acts in question? It seems to us that there are more cogent reasons for making1 the general statute here yield to the special acts5 than there were in the case cited. Th e State v. Jackson, 36 Ohio St., 291: Brig el v. Starbuck, 34 Ohio St., 280; ToionsendY. Little 109 U. S. 504; Lsham v. Bennington Iron Co., 19 Vt., 240.

      L. W. Goss, for defendant in error.
    In general, the powers of municipal corporations are purely statutory. Vol 15 Am. & Eng. Ency. of Law, 1039; Gallia County v. Holcomb, 7 Ohio., 232, pt. 1; Bank v. Chillicothe, 7 Ohio., 31, pt. 2; MaySY. Cincinnati, 1 Ohio St., 268; Walker v. Cincinnati, O. St. 14, and Bloom v. Xenia, 32 Ohio St., 461.
    That such powers are strictly construed, see Am. & Eng. Enc. of Law, vol. 15, p. 1041, and citations, note 2. Collins v. Hatch, 18 Ohio, 523; Ravenna v. Pennsylvania Co., 45 Ohio St., 118; Cooley’s Constitutional Limitations, 233; Minium v. Larue, 23 How. 435; Bloom v. Xenia, 32 Ohio St. .465. Section 2702, Revised Statutes of Ohio.
    And yet, the argument in this case for plaintiff in error is that 2702 meant simply to prevent municipalities from borrowing money, and therefore, when an act itself authorized the issuing- of bonds and borrowing of money, such section was inapplicable.
    The cases cited in subdivision three (3), brief for plaintiff in error, when examined, sustain the contention on behalf of defendants in error herein.
    This question was argued to the court of common pleas and in the circuit court of Hamilton county, Ohio, in Beig & Marty v. The Village of St. Bernard, these courts holding that although the special act allowed the villag-e of St. Bernard to issue and sell bonds and to apply the proceeds to build a town hall, it could make no contract under the act until the money was in the treasury, and so certified by the clerk. These holdings were affirmed by the supreme court of Ohio: Beig <& Marty v. Village of St. Bernard, 33 W. L. B., 36.
    The supeme court had before that, in the ease of Bister v. Springfield, 49 Ohio St., 100, cited for another purpose by plaintiff in error, clearly giving its interpretation of section 2702.
    No law and no court require a man to do a vain thing. Had Holmes signed the so-called contract, section 2702 being applicable, he would simply have signed nothing; the supposed contract would have been void, not voidable, but, in the language of the court in the 2d C. C., absolutely void.
    He could not have enforced it against the village any more than the village could have enforced it against him.

      The village must have been in a position so that nothing more was to have been done, by it and Holmes, than to sign a contract which would have been binding upon both parties. Dansen v. Johnson,, 13 N. J. L., 264; Kohn v. Man. R. R. Co., 60 N.Y., 34; Nathan v. Lewis, 1 Handy, 242; Lawler v. Burke, 7 Ohio St., 340; Delaware Oounty v. Andreios, 18 Ohio St., 49; Bd. ofJEn. v. Thompson, 33 Ohio St., 328.
    Why enter then into a labored argument to show that a special act does not repeal provisions of the general statutes, when the special statutes provide for continuing- the g’eneral statutes in force?
    This language was possibly unnecessary; without it, section 2702, not having been repealed, having been left in full force and effect, would have controlled.
    It seems to have been placed there simply by way of emphasis, in ease any one should raise a doubt on the subject. The Germania Fire Ins. Co. v. Henry Roost, 55 Ohio St., 581; Bond\. Village of Madisonville, 2 C. C. Rep., 449; Drottv. Riverside, 4 C. C. Rep., 312; Ohio ecorel. v. Hoffman, Auditor,.25 Ohio St., 328.
    If losses have occurred to the Village of Avon-dale or its successor, the plaintiff in error herein, let them look to the clerk of the village or other authorities who brought about the conditions found in this case.
   Minshall, J.

The principal and only question in the case is, whether what is known as the Burns law, section 2702, Revised Statutes, is applicable to the improvements authorized by the acts of the legislature under which the village of Avondale proceeded in this case. If so, the judgment should be affirmed; otherwise, it should be reversed, and that of the common pleas affirmed, for we see no other reason in the record for which the judgment of the latter should have been reversed. After a careful consideration of the question we are satisfied that the circuit court erred. The proceedings for the improvement were taken under the statutes referred to in the statement, and the village of Avondale is within the statutes. There is no ground for saying that their provisions were not complied with in every respect, unless the Burns law applies to improvements made under these statutes. It is claimed 'that it does, and is made to apply by the following clause in the act of 1891: “And the provisions of the statutes in relation to authorizing and making street improvements, levying and collecting taxes and assessments therefor, and the limitations imposed, and in so far as said provisions are applicable, except as modified by this act, shall govern and control the council and lot owners in respect to such improvements.” This provision has many subjects for application that are consistent with the statute without making it necessarily include the provisions of section 2702; and it should be observed, that the “limitations imposed” by the general statutes are to apply only so far as they are “applicable,” and not “modified by this act.”

Are, then, the provisions of this section applicable. Omitting some of the verbiage, it is as follows:

“No contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the appropriation or expenditure of money, be passed by the council or by an3T board or officer of a municipal corporation, unless the * * * clerk thereof shall first certify that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose, * * * and all contracts, agreements or other obligations, and all ordinances, resolutions and orders entered into or passed contrary to the provisions of this section shall be void ; * * * 11

It will be observed that, under the statute, when the requisite number of owners, of the feet front of a proposed improvement petition the commissioners, and they have made an investigation, adopted a grade and plan, ascertained the probable cost, and recommended the making of the improvement, “the council shall order the same to be made.” These acts, particularly the order of the council, that the improvement be made, fixes an indebtedness for the entire cost of the improvement, one-half as an assessment on the property benefited and the other half on the general taxpayers of the village. It is against the fixing of an indebtedness on the corporation without the money being in the treasury to meet it, that the Burns law is designed as a protection. Hence, it cannot apply to the act in question, for it would prohibit the council from making the order that the improvement be made — if not all the initiatory steps required by the law. How could any action be taken for the issue of bonds under the fourth clause of the section, until the order for the improvement had been made; and yet, if the Burns law is applicable, this order cannot be made until the money from the bonds and assessments are in the treasury. It may be said that the indebtedness is not created until a contract for the improvement is made. It is true that it does not exist in favor of any particular creditor, nevertheless, on making the order the successive steps' — the advertisement for bids, action on them, the letting of the work and making of the required contract — all follow as a necessary sequence under the statute. If the council should refuse to take any of these steps without cause, it could be compelled by mandamus to do so. Hence, if the Burns law can have any application to this statute, according to its spirit it must apply to the order of the council that the improvement be made. It is this order that fixes and entails the indebtedness upon the corporation. It is in fact an order for the expend-i ture of money. Therefore the Burns law cannot apply to this statute as it would render the statute nugatory. The plain purpose of the Burns law was to prevent the incurring of an indebtedness by ■ a municipal corporation beyond the ordinary resources of its revenue and whereby an annual excess of indebtedness will be created over these revenues. But it has not the vigor of a constitutional provision, and cannot therefore apply to a statute that not only authorizes the making of a particular kind of improvement, but also provides the mode and manner in which the funds are to be raised to defray the costs and expense of it. Under this statute the burden of the taxpayer will neither be increased nor diminished. . by the time when the contract is let for the work of the improvement. The making of the contract has reference, for its performance on the part of the village, to a fund to be raised by taxation and assessment, authorized by the act for the particular purpose, and which can be applied to no other. These considerations show the inapplicability of the Burns law to improvements made under a statute like the one in question. Where a contract is made to be discharged from a general fund, that may be applied to a variety of purposes, more obligations may be incurred by way of anticipation than can be discharged from it, thus causing’ an annual deficit, to meet which increased taxation must be resorted to. Hence the wisdom of the Burns law, which in such cases, requires that the money must be in the treasury, applicable to the particular expenditure before it is made. Here, however, the fund to be raised is appropriated by the statute to a particular improvement; and all taxation and assessment authorized^ must be limited to the costs and expenses of the improvement. All the limitations in this regard are in the statute. The bonds to be issued shall not exceed twelve and a half per centum of the total tax valuation of the property of the village; shall be made payable in thirty years and bear interest at a rate not to exceed four per centum.

It is a rule constantly observed in the construction of statutes, that where the general provisions of a statute conflict with the more specific provisions of another, or are incompatible with its provisions, the latter is to be read as an exception to the former. Thus in State ex rel. v. McGregor, 44 Ohio St., 628, 631, it was held that the provisions of section 1208, Revised Statutes, providing that a vacancy in the office of sheriff should be filled by appointment for the unexpired term, should be be read as an exception to the general provisions of section 11, Revised Statutes, requiring vacancies in elective offices to be filled by election at the next proper election, occurring more than thirty days after the vacancy happens. In The Dean of Ely v. Bliss, 5 Beav., 574, 582, it is said: “That if two inconsistent acts be passed at different times, the last is to be observed, and if obedience cannot be observed without derogating from the first, it is the first that must give way. Every act of parliament must be considered with reference to the law subsisting when it came into operation and when it is to' be applied; it cannot otherwise be rationally construed.' Every act is made either for the purpose of making’ a change in the law, or for the purpose of better - declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment. ’ ’ This ease was cited and approved in Knox County v. McComb, 19 Ohio St., 345; and has been frequently applied in this state. In Isham v. Bennington Iron Co., 19 Vermont, 240, Redfield, J., said: ‘ ‘I know of no rule of construction of statutes of more uniform application than that later or more specific statutes do, as-a general rule, supersede former and more general statutes, so far as the new and specific provisions go.”-

If then the Burns law were not specifically excluded from application to this act, which we think it is, by the language, “in so far as said provisions are applicable, except as modified by this act,” still, being incompatible with its provisions, it does not apply, and the latter statute must be read as an exception to it.

Judgment reversed and common pleas affi/rmed.


author: Shauck, J.

text:
    Weber v. Shay & Cogan.

      Illegal contracts — Agreement by attorney to prevent indictment— Attorney cannot recover for services — Jury not to determine legal effect of acts.

    1. A contract by attorneys at law to render services-to prevent the finding of an indictment against one accused or suspected of crime is illegal and void without respect to the belief of such attorneys as to his guilt, and compensation stipulated to be paid for such services cannot be recovered.
    2. Such contract is illegal because of its corrupting tendency : and it should not be left to a jury to determine whether, in its execution, acts were done to contravene public morals or subvert the administration of justice.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Warren county.
    Shay & Cogan brought suit against Weber in the court of common pleas alleging in their petition that “the defendant entered into a contract with plaintiffs by which it was agreed that they, the said Sháy & Cogan as attorneys at law, should protect the interests of the said Guy Weber and one William Anderson in certain criminal actions then and there threatened and suggested and pending in the eourt of common pleas of Hamilton county, Ohio, and in the United States circuit court within and for the sixth judicial circuit and southern district of Ohio, said actions so threatened and pending being certain actions which'were about to be brought by the United States of America against the said Guy Weber and the said William Anderson for alleged violations of the criminal laws of the United States, and an action against said Anderson then pending in the common pleas eourt of Hamilton county, Ohio, wherein said Anderson was indicted by the grand jury within and for the county of Hamilton, for the alleged crime of burglary, for which services the said defendant, Guy Weber, promised to pay to the said firm of Shay & Cogan, attorneys, the sum of 81,000.
    Plaintiffs say that “they performed all and singular their promises and obligations under said contract according to the letter and spirit thereof.”
    They also alleged that no part of said sum had been paid, and prayed judgment therefor.
    In his answer Weber admitted that the plaintiffs are co-partners and attorneys and counsellors at law, and denied all other allegations of the petition. To his answer he annexed numerous, interrogatories to which the plaintiffs filed answers. The material answers and interrogatories are as follows:
    Interrogatories:

      Seventh — What criminal actions were pending against defendant, Guy Weber, in courts mentioned at the time of alleged contract?

      Eighth — Were any of the criminal actions threatened and suggested against defendant at the time of the alleged contract ever begun?

      Ninth — Were the services you were to perform „ under said alleged contract to be performed before said criminal actions were begun, or after?

      Tenth — What particular services were you to perform in relation to said alleged actions?

      Eleventh — What services have you performed, under said the alleged contract?

      Twelfth — Were you by said alleged agreement to defend defendant against indictments that might thereafter be found, or were you to prevent the finding of indictments?

      Answers:

      Seventh — If we understand the question properly, that is, actions based upon a written charge,
    I would say they were none.

      Eighth — Yes, sir.

      Ninth — Perhaps both.

      Tenth — -We were to protect Weber from a public scandal; protect him, if possible, from being indicted by the United States or state authorities, and defend James Anderson.

      Eleventh — We would say in answer to interrogatory eleven, from the advice and consultation had with Mr. Brewster, the duly authorized agent of Guy Weber, the defendant herein, and the personal conversations and advice pertaining to the many and various questions involved, there was pending against said Anderson, seven distinctive charges of burglary alleged to have been committed by him together with the commission of a burglary at Lebanon, Warren county, Ohio, for which he has since been indicted, and concerning which and the alleged stolen stamps, alleged to have been in custody of said Guy Weber, the result of the commission of said burglary, procured by said Guy Weber, with guilty knowledge, there was contemplated a charge against said-Guy Weber, which charge or indictment, if it has been as yet founded by indictment, we are unable to state, because under the rules of procedure in the United States court, no indictment is made public until the process thereon has been made public, which has as yet, not occurred.
    - Twelfth — We were to defend James Anderson, and to assist in preparing the necessary testimony to prevent the finding of an indictment, we were to prevent, as much as our influence and power could, any public disgrace or scandal attaching to Weber; to protect the good name of his wife and children, and in fact, perform any service which would protect his property, wife, children, etc.
    On the trial evidence was offered by the plaintiffs tending to sustain all the allegations of their petition. Their evidence as to the character of the services to be performed by them under the contract was in application of their answers to interrogatories and consistent therewith. Some of it tended to show that the plaintiffs knew — at least believed — that Weber had been guilty of an offense against the postal laws of the United States.
    At the conclusion of the evidence counsel for the defendant requested the court to give the jury the following eharg’e: “If plaintiffs had knowledge that a person was guilty of felony, they had no right thereafter to use any means to prevent the indictment of such person for such felony, and any effort to do so would be unlawful on their part, and they could not recover on a contract to do so.”
    Which charge the court refused to give, to which refusal defendant then and there excepted.
    On this particular subject the court instructed the jury as follows:
    The peace and safety of society demand that proper investigations shall be made of all alleged offenses against the laws of the state, or of the United States. The lives and property of the citizens can be made secure only by faithful enforcement of the criminal laws. Any contract therefore, which has for its object the obstruction or perversion of the cause of public justice is illegal and void.

      If, therefore, you shall find that plaintiffs were employed by defendant, as claimed by them, yet if you shall further find that under their contract they were to do, or attempt to do any act which would prevent or have a tendency to prevent a full and fair inquiry by a grand jury into any offenses alleged to have been committed by said defendant or said Anderson, then said contract was illegal and void, and being an entire contract, said plaintiffs cannot recover upon said contract for any services rendered by them.
    To illustrate — If the terms of the contract contemplated that they should prevent or endeavor .to prevent any witness or witnesses’from testifying before the grand jury; or that they should induce or endeavor to induce any witness to testify falsely before the grand jury, or conceal any facts within the knowledgeof such witness ; or that theyshould attempt to deceive or mislead the district attorney, or other prosecuting officer, or influence him to be remiss in the performance of his duties; or that they should in any way attempt to hinder, obstruct or impede the grand jury or the prosecuting officer in the investigation of any charges against said defendant or said Anderson, then the contract was illegal, and they cannot recover.
    But a person accused or suspected of a crime may employ counsel to protect his rights and interests and to act in his defense, and he is not required to wait until he is-actually indicted before employing counsel. And where the contract of employment does not contemplate or require the doing by counsel, of any act or acts calculated to hinder or prevent the due enforcement of the laws, and where counsel in the performance of such contract do not interfere or attempt to interfere with or impede the course of public justice, the contract is valid and may be enforced.
    If plaintiffs were, in fact, employed by Brewster, as his agent to protect the rights and interests of said defendant or ‘said Anderson in relation to any threatened or probable criminal prosecutions against either of them, they might lawfully, under such employment, watch the course of proceedings to ascertain what witnesses were brought, or likely to be brought, before the grand jury ; they might institute inquiries to find out the character of such witnesses, and what they knew, or claimed to know, and the purposes and motives of persons found to be taking an active part in the prosecution. (And if they found that such witnesses or parties instigating the prosecution were persons of notoriously bad character, and were pressing the prosecution to gratify motives of personal spite or malice, or for any other evil purpose, they might without being guilty of wrong doing, call the attention of the district attorney or other prosecuting officer, to the character or motives of such witnesses or persons, and disclose to such officer any facts which had come to their knowledge in relation to the matter, although the tendency or effect of the information thus given might be to prevent the finding of an indictment.) But they must act in perfect good faith, and must not have attempted in any manner to mislead the prosecuting officer, or- to induce him to neglect or omit the performance of any duty. And if you find that during the course of these investigations the plaintiffs became satisfied in their own minds that the defendant or Anderson was in fact guilty of violation of the criminal law, you may take this fact into consideration in connection with plaintiffs’ subsequent conduct, in determining whether said plaintiffs did or did not act in good faith m whatever they may have done under their employment that might have a tendency to prevent the finding of an indictment.
    And if, after careful weighing and considering all the evidence in the - case, bearing upon the nature of the services which said plaintiffs were to .perform under the contract of employment, you find that they were to do, or attempt to do any act which would prevent a full and fair investigation by the grand jury of any offenses alleged to have been committed by defendant or Anderson or to do or attempt to do any act to obstruct the course of public justice, then your verdict will be for the defendant.
    But if you find that their contract of employment did not contemplate or require them to do any act or acts intended to prevent such full and fair investigation by the grand jury, and that in the performance of said contract, they did not do or attempt to do any act calculated or intended to prevent the due enforcement of the laws, and that in whatever they may have done looking toward preventing the finding of an indictment, they were guilty of no improper conduct and acted in good faith, then the contract was not illegal and they may recover.
    The jury returned a verdict in favor of the plaintiffs for the amount claimed. The defendant moved for a new trial upon the grounds, among others, that the verdict was against' the weight of the evidence, that the verdict was contrary to law, and for errors of law occurring at the trial to which the defendant excepted. The motion was overruled and judgment followed the verdict. This verdict was affirmed by the circuit' court.

      Frank Brandon; Geo. A. Burr and Clark <& Dechant, for plaintiff in error.

      Runyan <& Stanley, for defendants in error.
   Shauck, J.

In view of the verdict, the overruling of the motion for a new trial, and the judgment of affirmance in the circuit court, the making of the contract is to be regarded as established. And although the defense of Anderson on the trial of indictments found against him would have been the subject of a valid contract if not connected with any other agreement, the jury were properly instructed that the contract was entire and there could be no recovery if the services to be rendered in behalf of Weber were illegal. Whether they were illegal or not is, therefore, the only question for consideration here. Upon this subject it is said that the trial court erred in refusing to give the instruction requested and in overruling the motion for a new trial because the verdict was contrary to law.

It is obvious that the instruction requested was more favorable to Weber than that which the*court gave upon the same subject. According to the request, if the plaintiffs had knowledge of Weber’s guilt, the law gave to such knowledge the conclusive effect to defeat a recovery for services rendered to prevent the finding of .an indictment ag’ainst him. According to the instruction given, it had no conclusive effect, but might be considered by the jury, in connection with other evidence, in determining whether the plaintiffs had acted in good faith in what they did under their employment.

The considerations of public morals and policy-involved, and the authorities upon the subject, lead to the conclusion that the instruction requested was more favorable to the- plaintiffs than the law permits. The services in behalf of Weber were to be rendered for the purpose of influencing’ the action of grand juries whose proceedings are secret, and thus impede the usual course of justice and prevent the orderly inquiry into the alleged commission of an offense against the public. The contract differs from the ordinary illegal agreement to stifle a prosecution only in that the element of restitution is wholly absent, and the plaintiffs were prompted by hope of reward unmixed with any motive less base.

Public policy requires that all offenses against the law shall be punished and all contracts which tend to suppress legal investigations concerning them are immoral and void. Courts are charged with the duty of administering the law, and they should not lend their aid to the enforcement of any contract which looks to its subversion. This would seem obvious, and it has the sanction of more authorities than it is practicable to cite. Roll v. Raquet, 4 Ohio, 400 ; Hinesburgh v. Sumner, 9 Vt., 23 (annotated 31 Am. Dec., 599); Shaw v. Reed, 30 Me., 105; Ormerod v. Dearman, 100 Pa. St., 561 ; Arrington v. Sneed, 18 Tex., 135; Averbeck v. Hall, 14 Ky., 505; Crisup v. Grosslight, 79 Mich., 380; Tool Co. v. Norris, 2 Wall., 45; Barron v. Tucker, 53 Vt., 338 ; Ricketts v. Harvey, 106 Ind., 564.

It was not material whether the plaintiffs knew or believed that Weber was guilty or not. The inquiry into their knowledge or belief which the requested instruction contemplated would have been impracticable and irrelevant. Their belief in his innocence would not have made the contract valid. Schultz v. Culbertson, 46 Wis., 313.

Nor should it have been left to the jury to determine whether there had actually occurred the secret and corrupt practice which the contract encouraged. As said by Justice Field in Tool Company v. Norris, “the decision has not turned upon the question whether improper influences were contemplated or used, but upon the corrupting tendency of such agreement.

Judgment of circuit and common pleas courts reversed.


author: Bradbury, J.

text:
    Pearson, Auditor et al. v. Stephens.

      Compensation of county officers — Penalties for official misconduct — ■ Official bond — Local and general taws — Section 26 of article 2 of constitution — Validity of act of April 21, 1896 — Constitutional law.

    1. The act of April 21, 1896 (92 O. L. 567), in so far as it prescribes and limits the compensation of certain county officers and their assistants therein named, the operation of which is expressly limited to Miami county, relates to a subject local in its nature, and therefore does not conflict with section 26 of article 2 of the constitution of this state.
    2. The system of compensation provided by the act is complete without reference to the penalties for official misconduct prescribed by section 13, or to the effect to be given to an official bond by section 14 of the act. Wherefore this system of compensation may be separated from, and executed independently of, those two sections, and is not affected by the question of the constitutionality of either or both of them.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Miami county.
    This action was brought to test the constitutionality of an act of the general assembly, passed April 21, 1896 (92 Ohio 'Laws, 567), fixing- the compensation of “county officers and their assistants in Miami county. ’ ’
    The court of common pleas held the statute to be unconstitutional and its judgment to that effect was affirmed, on error, by the circuit court.
    Thereupon a petition in error was filed in this court to reverse the judgments of said courts.

      McMahoy dt McMahon, and Long da Kyle, for plaintiffs in error.

      A. F. Broomhall, for defendant in error.
   Bradbury, J.

The defendant in .error, H. M. Stephens, filed in the court of common pleas of Miami comity, the following petition against the county auditor and county commissioners.

“The plaintiff is a taxpayer of the county of Miami and state.of Ohio, and brings this suit on his own behalf and on behalf of all the other taxpayers of said county. Plaintiff duly requested the prosecuting attorney of Miami county to bring this suit, but he refused to do so and still refuses.

“The defendant, E. E. Pearson, is the duly qualified and acting auditor of Miami county, and W. H.' Alexander, B. B. Searff and W. B. Segner are the duly qualified and acting commissioners of said county.

“The said board of commissioners have passed a resolution directing the said auditor to purchase books, blanks and other supplies, with the funds of Miami county, for the purpose of keeping the records of the receipts and expenditures of the office of sheriff, clerk, probate judge, recorder, treasurer and auditor, as required by a law passed by the 72d general assembly of Ohio, entitled ‘A bill relating to the duties and compensation of certain county officers and their assistants in Miami county.’ It was provided that said act should take effect August 1, 1896.

“Said auditor threatens to, and will, unless restrained by the court, expend a large' sum of money, more than $200.00, of the funds of Miami county, in the purchase of said supplies to the great and irreparable injury of plaintiff and all other taxpayers of Miami county.

“Eor that said law requiring the purchase of said supplies and the keeping of said records is a law of general nature, applying only to Miami county.

“It fixes a different compensation for each of said officers from any .similar officer in the state of Ohio. It creates and imposes different duties upon each of said officers, from those imposed upon other similar officers of the state, and creates a new crime, punishable by fine and imprisonment, which applies to the officers of Miami county alone. Section 13 of said act, provides that any officer mentioned in section 1, who wilfully fails or refuses to perform faithfully and promptly any duty required of him by said act, or knowingly violates any provision thereof, shall be fined not more than $5,000.00 or imprisoned in the penitentiary not less than one year or more than five years, or both, and that the said penalties against said officers shall be in addition to penalties provided by existing statutes.

“Wherefore plaintiff prays that a temporary restraining order may issue restraining said auditor and commissioners from purchasing said books and supplies, and that upon final hearing said law may be declared unconstitutional and void and said injunction made perpetual, and for all other relief to which he may be entitled in law and equity.”

The defendants below interposed a demurrer to this petition, which the court overruled on the ground that the statute under which the defend ants were about to proceed, was unconstitutional and the defendants declining to plead further, a final judgment was entered perpetually restraining them from proceeding under the law. This judgment having been affirmed by the circuit court, in proceedings in error instituted in that court, the plaintiffs in error, defendants below, seek its reversal in this court.

The first section of the statutes provides as follows:

Section 2 of the act authorizes each county officer to select the employes in his office, and to determine the capacity in which each shall serve, but their number and compensation, is to be fixed by the county commissioners. The remainder of this section, together with sections three, four, five, six, seven, eight, ten, and eleven, relate to the manner in which the scheme of compensation is to be executed. The ninth section provides additional compensation for the sheriff on account of keeping prisoners; section twelve makes an allowance to the prosecuting attorney for services required of him' in collecting costs and fees; and section thirteen provides for punishing any-officer mentioned in section one, for wilful misconduct therein specified.

The statute is limited to Miami county by its terms, its primary object is to prescribe the fees of the county officers of that county. The system it adopts differs from that in operation in the other counties in the state as prescribed by the general statute relative to the fees of county officers. If this subject is susceptible of regulation only by a general law, the statute under consideration is void because, for that reason it conflicts with article 2, section 26, of the constitution of this state, which declares that all laws of a general nature shall operate uniformly throughout the state.

The authorities do not establish any standard by which to determine with certainty whether a given or particular subject matter of legislation may or may not be regulated by a local statute. The concurring judgment of mankind declares that certain subjects may be so regulated and that certain other subjects may not be, but must be' regulated by general laws. That is, laws operating throughout the state. There is, however, still another class of subjects so far partaking of the nature of both those first mentioned that it is extremely difficult to satisfactorily assign them to either one or the other of those two classes; There being considerations, of more or less weight, pointing different ways. The power to reg’ulate the compensation of county officers by local statutes, in view of the contending opinions on the subject, may be appropriately assigned to this third, or doubtful class.

Doubtless upon a general view the subject is one of wide spread interest, and at times occupies a conspicuous position before the public. Good government requires that any efficien t and economical system brought into successful operation should be equally enjoyed by all the inhabitants of the state irrespective of county lines. On the other hand the taxpayers or inhabitants of one county have no appreciable material interest in the amount of compensation paid to its officers by another county. No part of the burden rests upon them.

Each county pays its own officers, and no other county is called to contribute anything to that end. The amount of service required varies in the several counties, and chiefly depends upon conditions existing in the countjr where rendered. Population, doubtless, is an important factor in this connection, but wealth and the occupation of the inhabitants, whether agricultural, manufacturing, mining or commercial, also bear materially upon the question of the extent of service required. What would be adequate compensation for a particular officer in a small agricultural county, would be a mere pittance to one filling the same office in the counties of Hamilton or Cuyahoga. How to adjust the compensation to the services actually performed is doubtless a difficult question.

Whatever system may be adopted, however, the object sought should be a fair and equitable adjustment, with reference to each other, of the services requited of a county officer, and his compensation.

It is contended that this can be done by a general law classifying counties for this purpose, according to population, wealth, or the prevailing-occupation of its inhabitants. Doubtless much could be accomplished in this way, and any gross inequality respecting official salaries in different counties remedied or prevented; but that exact adjustment of compensation to services, possible by means of a local statute, cannot be attained by any plan of classification that groups a number of counties together, though it might be accomplished by a general law creating as many classes as there are counties in the state. This, however, would not be distinguishable in principle from local legislation. It would create as many different rules upon the subject as there are counties within the state, the evil which the provision against local legislation was designed to prevent. Where, however, the general assembly has power to act, the courts have no concern with the wisdom of their action. Doubtless they have the power to classify counties for this purpose; if they, also, have the power to enact local statutes ■ upon the subject, the choice of methods is with that body.

That a particular subject of legislation can be as well, or better, regulated by a local statute as by a general one, may bear on the question of power, however, upon the ground that it tends to stamp upon such subject a local character. That is, the circumstance, alone, that a particular subject of legislation is specially adapted to regulation by a local statute is, of itself, entitled to consideration in determining the character of such subject, whether local or general. In the case rtnder consideration the subject may not only be as well or better regulated by a local as by a general statute but is also, as we have seen, one that primarily and immediately concerns the inhabitants or taxpayers of the county to which it relates. Moreover, the law itself should be moulded to suit the conditions found to exist in such county.

This brief discussion of the question was indulged in with a view to show that, .when considered upon its merits, independently of authority, there are substantial grounds for the contention that the regulation of the compensation of county officers may be accomplished by local statutes.

Thequestion, however, has been considered by our predecessors, and determined in favor of the power.

In 1868, Judge White, an eminent jurist, in the case of Crikett et al. v. The State, 18 Ohio St., 22, while discussing the question of compensation of county officers, used the following language:

“ There is nothing in the constitution prohibiting appropriate local legislation. And for myself, I will say that it seems to me theamountof compensation to be attached to a local office is a question in its nature local, and that a law to regulate such compensation can not properly be regarded as a law of a general nature. ’ ’

The question was not before the court, but the language discloses the views of an able and conscientious judge, and is not to be wholly disregarded as an authority upon the question.

In 1871 the precise question was before the court, in the case of The State ex rel. v. The Judges, etc., 21 Ohio St., 1, and the court there held that a statute fixing and limiting the compensation of the county ■ officers of Hamilton county was a local law. On page 10 Judge White says: “But in the opinion of this court, this act cannot be regarded as a law of a general nature. The act was intended to provide for a condition of things in its nature local to Hamilton county.”

These observations of Judge White are as applicable to the statute now under consideration, as they were to the one the court was then considering. Where, in the nature of things, conditions may exist that call for local legislation, it should be presumed in support of a local statute that they did exist. As we have already seen, the conditions upon which the compensation of county officers should be made dependent are chiefly local. It is apparent, therefore, that conditions may have existed in Miami county that justified the action of the general assembly. According’ to the. principle just announced, it becomes the duty of the court to presume they did exist.

In 1891 this court, in Hart v. Murray, 48 Ohio St., 605, adhered to its former ruling in the case of The State ex rel. v. The Judges, etc., 21 Ohio. St., 1, by upholding the constitutionality of a statute (83 Ohio Laws, 168), prescribing the compensation of justices of the peace in the city of Cleveland.

Whéther section thirteen of the statute in question conflicts with article 2, section 26, of the constitution of this state is immaterial to the present inquiry. The question will properly arise whenever a prosecution is begun under its provisions. It prescribes penalties for the misconduct of officers of Miami county, to which the officers of other counties are not subject. It is severable from the other sections of the act, forms no part of the particular scheme of compensation designed by the statute. This scheme is complete in all its details without this obnoxious section, which simply denounces additional penalties against the officers of Miami county for official misconduct. These officers remain subject to the provisions of the criminal code that are applicable to all county officers throughout the state, and which should be presumed to be sufficient to keep them on the line of duty. We cannot say that the plan of compensation, complete as it appears 'to be in all its details, would not have been adopted if the statute had not contained this section.

The same considerations apply to section 14 of the act in question; it relates to official bonds. If it should be construed to extend the liability of a surety on an existing official bond, we may wait until a defalcation occurs and an attempt is made to hold the surety beyond the terms of his obligation. If this section in this respect is unconstitutional in its operation on the surety, such result, in its nature is temporary, and will disappear with the giving of a new bond. And as this section itself authorizes the county commissioners to require a new bond of present incumbents, we think there is no ground for serious contention that this section contains provisions that should defeat the hole statute.

Judgment reversed.

Burket C. J.. and Shauck, J„, dissent.