author: Johnson, J.

text:
    The State of Ohio ex rel. The Attorney-General v. The Cincinnati Central Railway Company.
    The board of public works of the state, is not authorized by law to grant to a railroad corporation the right to lay its track and to maintain and operate a railroad, on and along the bermé bank of a navigable canal belonging to the state.
    Quo "Warranto.
    The' facts touching the point reserved for report, will be found stated in the opinion.

      W. J. Gilmore, for plaintiff:

      The board of public works had no-lawful authority to make the grant, agreement, or license set up in the answer.
    It is claimed that the power in question is conferred by section 3283 of the Revised Statutes, and if not by this section then by section 7691.
    "We submit that the power claimed is not conferred by either section. As to section 3283 1. We claim that it does not embrace or affect the state, or any canal or other property owned by it, and in support of this proposition we rely upon this general principle of the.law; that neither the state, its property, nor its interests, are to be considered as embraced in the provisions of a general law unless they are specially named. Broom’s L. M. 51; State v. Kline, 41 N. H. 238; Trustees, &c. v. Campbell, 16 Ohio St. 11; Seeley v. Thomas, 31 Ohio St. 301; Lessees, &c. v. Board of Public Works, 36 Ohio St. 409.
    2. Both the state and the board are excluded from the operation of the section, by considering its words in connection with its subject-matter. ■ The section occurs in the chapter conferring powers and privileges, and defining the duties and liabilities of railroad companies ; and it is perfectly apparent that it was not the purpose of the chapter or section to confer powers on anybody else, and the real power conferred by this section is the power of obtaining rights of way by contract or by appropriation. As to the other corporations, officers' and authorities named, the section is simply permissive. It is presupposed that “ the municipal or other corporations, or public officers or authorities,” to whom permission is given to “ agree,” had been clothed, by some previous law, with power to do the acts contemplated, and it is only such that are permitted to act. Such “ may agree upon the manner, terms and-conditions upon which the same maybe used or occupied;” and when agreed upon would constitute a contract. Who may contract? Only parties capable of contracting. Was "the board of public works, by virtue of this section alone, capable of so “agreeing”? We say it had no such power under this section, and hence could not “ agree.”
    If such power exists in the board, it must be by virtue of some other section.

      The view above urged is greatly strengthened by the words which follow those above quoted, which are as follows: “ and if the parties be unable to agree thereon, and it be necessary in the judgment of the directors of such company, to use or occupy such road, street, alley, way, or ground, such company may appropriate so much of the same as may be necessary for the purpose of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals.” This would, of course, require proceedings at law, in which the owners would have to be made defendants. The state cannot be sued by a railroad or anybody else, without a law authorizing it. No such power is given here either expressly or impliedly. Yet if the state cannot be sued by virtue of the clause last quoted, it is clear that power to “ agree ” is not given to it by the first clause of the section, for both clauses relate to the same thing, i. <?., the obtaining of the right of way; and it is only those who can be sued that can agree, and vice versa ; and, hence, the conclusion follows that neither the state nor the board is within the meaning of the section.
    8. A canal is not within the meaning of the section, for it is neither of the things mentioned that can be appropriated by agreement or otherwise. The only word used that could possibly include a canal is the word “ way,” by which is manifestly meant ay>uhlic wa/y. In a certain broad sense this would include a canal, but this is not the sense in which the word is used.
    If canals are not embraced within the meaning of the word “way,” of course the board of public works is not authorized to act by virtue of the section.
    To test the question further,' let it be admitted for the sake of the argument, that canals are included, and the board authorized to do the things contemplated by the section; and then what will logically follow ? If the board had refused to “ agree,” then the board or the state could have been sued, and in the words of the section “ such company -may appropriate so much of the same as may be necessary for the purpose of its road.”

      Here the railroad is clothed with discretionary power, and made the sole judge of the extent of its necessities by the express words of the section. Suppose it had passed the necessary resolution, to the effect that in its judgment it was necessary to appropriate the entire bed of the canal from the six mile stone to Broadway. If the power exists, as is claimed, who could have said nay? And if the power exists to appropriate six miles of the canal in this way, by the exercise of the same powers all the canals in the state can be appropriated for railroad purposes. By these- extreme hypotheses, the unsoundness of the proposition as to the power of the board of public works over this subject is made the more apparent.
    As to section 7691: 1. The laws now in force relating to the public works of the state do not confer power to make or construct canals. That period has passed. All the powers conferred on the board of public works by existing laws are intended to be exercised for the purpose of preserving and rendering them safe and useful for the transportation of persons and property.
    There are also provisions in the laws that indicate that it is not the legislative intent that the canals are to be absorbed by railroads, or rained by railroad competition. See latter clause of section 7714, which is as follows : “ Provided further, that no railroad company shall in any manner become party to said bids, or to be interested therein, or in said lease; and it shall be unlawful for the lessee or lessees of said public works, or their assigns, during the continuance of the term of said lease, to sell or assign the same, or any interest therein, to any railroad company or to any trustee, agent, or other person, for or in behalf of any railroad company; and all assignments so made shall be null and void.” The section last named is section 2 of the act to “provide for leasing the public works of the state,” passed in 1861.
    While this may not indicate actual hostility to railroads- on the part of the legislature, it does indicate an intention not to permit any entangling alliances between the canals and the railroads of the state; and in the face of this intention, nothing short of an express grant of power will warrant the conclusion that the board of public works was authorized to make the contract in question.
    2. Is such power anywhere expressly granted to the boar?d
    All legislation relating to the board of public works is embraced in sections 7651 to 7755 inclusive, of the Revised Statutes.
    It is believed that the sections named show all the power or authority with which the board of public works is expressly clothed, and it is confidently claimed that the power or authority to make the grant or contract in question is not expressly conferred by either of the sections. Nor is such power conferred by any of the legislation relating to canals, which is embraced in sections 7756-7913 inclusive, of the Revised Statutes.
    3. Is the power in question impliedly .given to the board, anywhere in the statutes ?

      We claim that it is not. The settled policy in this state is, and has been, to permit no rights to be acquired in the canals, without the express consent of the legislature. The special grants to occupy parts of the canals, of sections 3317, 3441, 7674, 7675, evidence this.

      Paxton <& Warrington, also for plaintiff, filed a brief making substantially the same points and arguments as their co-counsel . Judge Gilmore.

      Goss <& Peo\ for defendant:
    1. Had the board of public works power to make the agreement set forth in the answer ?
    ¥e say that the language of section 3283 of the Revised Statutes contains a direct, clear, and express grant of the power.
    Section 3281 grants to railway companies the power to appropriate private property, and section 3282 grants to them the right to acquire any such property by gift or purchase. Observe the extent of these powers. They are as broad as the private property of the state. Then comes section 3283, which is intended to put public on the same footing as private property in this respect, and it is clear that it was intended that all sorts of public ways and grounds should be subject to this right of appropriation. Observe the sweeping language of the section, “ Any public way or ground of any kind.” Language inserted in a statute is presumed to have been inserted there for a purpose, and what can be the purpose of the last three words of the clause above quoted, unless it is to make the power as broad as the subject-matter would admit? After having said “ any public way or ground,” why should the law-makers add those sweeping words, unless it was to make it clear that no sort of public way or ground should be exempt from the operation of the statute? Again, observe the enumeration of persons authorized to make such agreements. We find named “the municipal or other corporation,” which may well include all sorts of public and private corporations, cities, villages, railways, turnpikes, and quasi corporations, such as counties, townships and school districts, and in addition the statute goes on to confer the power upon “ public officers or authorities.” Now, this must have been intended to mean an additional'class of persons to those already mentioned, else why the words ? They are, too, the public authorities “ owning or having charge ” of such public ways or grounds. The fact is clearly recognized by the wording of the statute, that there is a class of public authorities having charge of public ways who have no interest as owners in such ways, and yet these also are authorized to make the agreement necessary to give the railways a right of way along qr across such public ways or grounds. The phrase “ having charge ” of, is also significant, for those are the very words the legislature has used in conferring power over the canals on the board of public works. See section 1691.
    It cannot be successfully denied that the board of public works is, within the ordinary meaning of language, a public authority having charge of the canals; and unless we are to discard the rule that language is to be taken in its ordinary sense, and substitute some other, this statute confers all the power on the board necessary to authorize them to make the agreement in question. And it will not do to seek to escape from this construction by the claim that the Miami and Erie Canal is not public ground, or a public way—it is both. This proposition is settled by Hatch v. C. & I R. R. Co., 18 Ohio St. 92. See also Chase v. S. M. Co., 4 Cush. 152 ; and Malone v. Toledo, 28 Ohio St. 643.
    Let us look for a moment at the object and purpose of section 3283. In the case of L. M. &c. R. R. v. Dayton, 23 Ohio St. 517, the court, speaking of the power granted to municipalities to appropriate lands for the opening of streets, says: “ The extension of streets and of roads and highways across raMroads is so evidently a matter of public convenience and necessity, that it must be presumed to have been in the contemplation of the legislature when the statutes referred to were enacted.” It may be said with equal force that the extension of railways across the public ways of the state is so evidently a matter of necessity that it must be presumed to have been in the contemplation of the legislature when this statute was enacted. This is the only section in the Revised Statutes which provides how a right of way may be acquired along or across the public ways of the state.
    It is fair, then, to presume that the legislature, in enacting section 3283, had in view this obvious necessity of permitting railways to cross the public ways of the state, and intended thereby to provide a method by which such right could be acquired.
    It is fair to presume that the legislature considered these facts, and the result is to place the power to make such necessary arrangements in the hands of the board having charge of the public works of the state. It was necessary that such powers should be lodged somewhere, and where more properly than in the board of public works ? It is hardly to be presumed that the legislature intended that the public ways of the state should stand as an impassable barrier to all public, improvement. Yet, the construction contended for by counsel for plaintiff would leave us very much in that position. The right of railways to cross the canals of the state is recognized, hut the statutory source thereof is not indicated in Railway v. Railway, 30 Ohio St. 615.
    It has been claimed that this power, if it exist at all, goes to the extent of enabling the board of public works to hand over the entire canals or system of canals to railroads. Not so. There is no express or implied purpose in section 3283 to give up or abandon the public ways or any part thereof. There is a puipose clearly expressed, to subject them to an additional use in certain cases, but that is all.
    In the case at bar it fully appears that the two uses are not inconsistent, but rather that the new will be an assistance and protection to the old. The power granted by the statute, with the limitation placed upon it by the rule of interpretation above referred to, is stripped of all probability of abuse. On the other hand, we have above shown it to be a most useful and necessary power.
    The question of appropriation does not arise here. The controversy here is as to an agreement made between the board of public works and the company. The latter has not claimed or attempted to take by appropriation.
    But, with a very strict construction, it is difficult to avoid the conclusion that the section does confer power to appropriate. The language is certainly broad enough for that purpose. While it has not been a part of the policy of the state to permit itself to be sued at the will of individuals, yet there are numerous exceptions to that policy. It is not an infrequent thing for the legislature to authorize such suits to be brought. There is no constitutional prohibition against it. The franchise of all the highways of the state belongs to the state. Dillon on Municipal Corporations, §§ 518, 519; O'Connor v. Pittsburg, 18 Pennsylvania St. 187.
    Observe how odious would be the position of any private. person or company making the claims here made on behalf of the state. It would be in effect a claim of right to prevent any public improvement which proposed to pass over any part of its land. We think such a claim of exclusive right would be promptly and emphatically repudiated by this court. Commonwealth v. B. & M. R. R., 3 Cush. 25; United States v. Railroad Bridge Co., 6 McLean, 517.
    We, come next to the last and what we understand from counsel for plaintiff they deem the most important objection to our construction of this statute: the rule recently stated by this court, that the state is not bound by a general statute, except by express words. That is a rule applicable to certain cases, but this is not one of them. To the rule itself there are many exceptions. Willion v. Berkeley, Plowd. 251; King v. Archbishop of Armagh, 8 Mod. 6 ; Brett v. Beales, Moody & M. 428; Potter’s Dwarris on Stats. 151; Broom’s Leg. Max. 74; Green v. United States, 9 Wall. 655; Charles River Bridge v. Warren Bridge, 11 Pet 589; 1 Kent Comm. *460, note b.; 3 Washb. on Real Prop. (4 ed.) 190.
    A case directly in point, and going much further against the claims set up in behalf of state than any construction of the statute in question would permit a railway company to go, is that of the Indiana Central Railway Co. v. State of Indiana, 3 Ind. 421, wherein it was held that “ Where a company is authorized, by an act of the legislature, to construct a railroad between two designated points, they have a right to occupy, in the construction of the road, any land of the state between those points, on the general route authorized, which may be necessary for the purpose.” 1 Sneed, 94; 23 N. J. Eq. 157; 2 Ohio St. 420.
    It has long been held that property of the United States, not set apart to any inconsistent uses, might be appropriated under the general laws of the state authorizing condemnation of lands for railway purposes. See the cases before cited, and also the following recent decisions: U. P. R. Co. v. B. & M. R. Co., 10 Reporter, 357; N. P. R. R. Co. v. St. Paul, &c. R. Co., 3 Fed. Rep. 702; I. C. R. Co. v. United States, 20 Law Reporter, 630.
    In State ex rel. Parrott v. Board of Public Works, 36 Ohio St. 409, there was an attempt on the part of the lessees of the public works to claim interest on certain moneys due them from the board of public works, the payment of which had been delayed, and the claim was simply based upon the general statutes of the state providing for the payment of interest on over-due claims. The decision was that the statutes on that subject did not relate to claims against the state. But in this case there is a distinct and separate provision for public ways and grounds under the control of public officers, in addition to the general provision for the appropriation of private property. Under that we further claim that the grant of power in this ease is express. By express words we. do not understand words solely applicable to a particular object, but words which clearly and unmistakably point to that object, it may be alone, or it may be in common with others of a class. If the words here had been “ all state officers,” the- board of public works would, undisputably, have been included, though not mentioned by name. They would have been included in- the class expressly named. Instead of state officers we have “ public officers;” and they are as clearly within that class as the other. There is no necessity to resort to any implication to include the board of public works and the public ways of the state within the provisions of section 3283. All that is required is, that the words shall be permitted to have their usual meaning, and the thing is done.
    II. Our second reason for an affirmative answer to the question whether the board of public works had power to make this agreement, is found in section 7691 of the Revised Statutes. That section is based upon 'and is an outgrowth of the provision concerning the board of public works and their connection with the public ways of the state, found in article 8, section 12, of the constitution, which, by implication at least, places the canals under the control of the board, with such powers and duties as may bg prescribed by law. The part cf section 7691 referred to is as follows: “ The board of public works shall 'have charge of the public works of the state, and shall have power to perfect, render useful, maintain, keep in repair, and protect the same, and to that end shall have power to remove obstructions therein or thereto, and to make such alterations or amendments thereof (whether now or hereafter constructed), and to make such feeders, dykes, reservoirs, locks, dams, and other works, devices, and improvements, as they may think proper for the respective purposes aforesaid.” And the board is authorized to purchase or appropriate all such real and personal property as they may deem necessary for such purposes.
    Under the broad powers contained in this section the board of public works were and are yet authorized to adopt any work, device, or improvement, which would, in their opinion, tend to keep in repair or protect the canal. If that object can be accomplished by the construction of a tram-way along a portion of a bank, then we submit the board could cause such tram-way to be laid and maintained as long as it would sub-serve the purposes intended. If the board could make such improvement directly, why not indirectly, through an agency such as that of the defendant company, especially where the latter method relieves the state of all expense, while securing a valuable improvement? The object of the agreement is clearly stated to be the improvement of the berme bank, so as to render it more useful to the canal, and numerous provisions are contained in it intended to secure that end.
   Johnson, J.

The questions involved arise on a demurrer to the answer.

The petition, which is in the nature of an information, was filed by the direction of the general assembly. 78 Ohio Laws, 427. Its object is to determine the authority of the defendant to occupy and use as a track for its railway a' portion of the berme bcmlt, of the Miami & Erie Canal, belonging to the state, within the county of Hamilton. This involves the power of the board of public works of the state to enter into the agreement hereinafter set forth, with the defendant, under which the latter claims the right to permanently occnpy and use for the purposes of its track, that portion of the berme bank of said canal lying between Broadway, in the city of Cincinnati and the six mile stone, north of said city.

It is alleged that this portion of the canal is in constant use for the purposes of navigation; that about one-third of the distance is composed of embankment; one-third of embankment on one side, and excavation on the other, and exclusively of excavation for the residue of the distance.

The petition charges, that the contract under which the defendant claims to act is without authority of law, and is void, that defendant is making preparations to construct and maintain its track on said bank, and threatens to permanently occupy and use the same as a railroad, which if consummated, ■will constitute a permanent trespass on the property of the state, and be a violation of its rights.

The answer, after setting out the corporate character of the defendant, under which it it is authorized to construct and operate a railroad between the termini named, denies that it is acting without authority of law. It sets up a contract made with the board of public works, under certain orders of the board dated January 4, .1881, the terms and conditions of which were in all respects complied with by defendant, by virtue of which it has the lawful right to build, maintain and operate its railroad on and along said bank between the points named, in consideration- of the payment of $500 per annum, and the performance of certain requirements of the board of public works. .

These orders of the board of public works,” which are the basis of the rights of defendant, are preceded by a preamble, reciting an agreement previously made with the College Hill Railway Company, whereby permission had been granted that company to improve said berme bank, so as to be the more useful to the canal, and at the same time occujjy the same for railway puiqjoses, in such a wray as jiot to interfere with navigation, and that said company had failed to comply with said agreement, and forfeited its rights.

It is further recited, that the defendant herein, deeming it necessary to make use of this section of the berme bank for their railroad, offer to comply with the terms of the agreement with the College Hill Co., with such additional conditions as may be deemed necessary by the board for the protection of the interests of the state; therefore, it is ordered, that defendants be permitted to enter upon and improve said bank, with the track and fixtures of its road, upon the terms and conditions, that it will maintain and keep in repair said bank between the points named, without any expense to the state ; that it will not interfere with the navigation of the canal, and will pay annually the sum of $500. This grant was made subject to twenty-one specific conditions or regulations, as to the manner of constructing and using tbe railroad, &c., all of whieh were intended to guard the rights of the state, and protect the canal proper from being obstructed, or its usefulness from being impaired.

To this answer a demurrer has been filed, which raises the only question we shall consider, i. e., the power of the board of public works to grant this right of way.

The defendant claims that the board had power to make this grant, and relies; 1st, on section 3283 of the Revised Statutes; 2d, on section 7691 of the same. Section 3283 is as follows:

“ Section 3283. If it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley, way or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities, owning or having charge thereof, and the company, may agree upon the manner, terms and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon, and it be necessary, in the judgment of the directors of such company, to occupy such road, street, alley, way or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road in the manner and upon the same terms as is provided for the appropriation of the property of individuals; but every company which lays a track upon any such street, alley, road or ground shall be responsible for injuries done thereby to private or public property, lying upon or near such ground, which may be recovered, by civil action brought by the owner before the proper court, at any time within two years from the completion of such track.”

Section /T691 provides that: “The board of public works shall have charge of the public works of the state, and shall have power to perfect, render useful, maintain, keep in repair, and protect the same, and to that end shall' have power to remove obstructions therein or thereto, and to make such alterations or amendments thereof (whether now or hereafter constructed), and to make such feeders, dykes, reservoirs, locks, dams, and other works, devices, and improvements, as they may think proper for the respective purposes aforesaid.” And the board is authorized to purchase or appropriate all such real and personal property as they may deem necessary for such purposes.

The question is, do these sections or either of them authorize this contract. In the construction of either, the other and all other provisions of law m %>a/ri materia must be.considered. Section 3281 authorizes a railroad corporation to enter upon any land for the purpose of examining and surveying its railroad line, and may appropriate so much thereof as may be deemed necessary for its railroad, including necessary side tracks, depots, workshops, round-houses, water-stations, material for construction, except timber, a right of way over adjacent lands to enable it to construct and repair its road, &c., but no appropriation shall be made of private property, until full compensation shall be made to the owner.

The object of section 3282 is to clothe such corporations with capacity to acquire lands by purchase or -gift, that are convenient or necessary to secure the right of way or any lands granted to aid in the construction of the road.

Section 3283 confers additional powers, and is the one relied on to support this contract. It authorizes the corporation, if it be necessary to the location of any part of a railroad ” (this includes all the essential parts mentioned in section 3281, such as side-tracks, depots, &c.), to occupy any public road, street, alley, way, or ground of any kind, or any part thereof; to agree with the authorities owning or having charge of the same, upon the manner, terms, and conditions on which the same may be used and occupied; and if the parties are unable to agree, then the company may appropriate so much thereof as may be necessary, in the same manner, and upon the same terms as is provided for the appropriation of property of individuals. This section confers upon the corporation the same power to acquire this class of public property, either by agreement with the proper authorities, or by appropriation, as it possesses under section 3281 as to private property. If the company is unable to agree with those in charge of this species of property, it may resort to the courts, in accordance with the terms and provisions of the Revised Statutes, sections 8414r-6453. :

These provisions, like section 3281, apply only to private property, but as the state held in many cases as a trustee, sections 29 and 16, and lands granted in lieu of section 16, for ministerial and school purposes, express authority was given by section 6139 to appropriate a right of way through these lands. This right to appropriate in case of a failure to agree, embraces all property that may be the subject of such an agreement.

By a compulsory purchase, the corporation may acquire any property it could by agreement.

■ Are the canals of the state included within the terms-of this section—“ any public road, street, alley, way or ground of any kind ” ? It is conceded that a canal does not fall within the terms road, street, or alley. Are they “ public ways,” or public grounds of any kind” ?

The construction of these canals marked an era in the development and growth of the state. The object was to effect a navigable communication between Labe Erie and the Ohio river, in order to promote the agricultural, manufacturing and commercial interests of a number of our sister -states of the union generally, and of this state particularly.” 2 Chase Stat. 1131. They were constructed at great expense for the public convenience and welfare. The lands on which they were located were once private property, acquired by the state, by the exercise of its sovereign right of eminent domain. When they were completed and opened for navigation, they were public navigable highways. The state constructed and has ever since owned and maintained them as a means of contributing to the general public welfare. The state is not the owner in the same sense that a state owns any part of the public domain, or the buildings or property it holds for the use of its officers and agents, to enable them to perform the duties of their offices, but rather as the governing and supervising trustee of the public, charged with the duty of so regulating, controlling and maintaining them, as to make them subservient to the public welfare as navigable public highways. As such, they were public property, in the same sense as the navigable l’ivers within the state.

' The statutes in force from time to time, show how careful-the state has been to preserve these great highways, as they were then, and still are regarded, from all encroachments that might interfere with their usefulness. No private, public, or corporate right was allowed to interfere with their use for purposes of navigation. The statutes relating to the public works are replete with provisions and regulations having this object in view. Thus the interest of the public in a state and county road was made subservient to that of the public in these navigable highways. Under section 14 of the act to provide for the protection of the canals of the state, &e., passed March 23, 1840 (1 S. & C. 202), the acting canal commissioner, if deemed necessary by the principal engineer, might, in laying out and constructing the canal, discontinue or alter any public highway.

So; in cases of new roads laid out across any canal or navigable feeder thereof requiring a bridge, section 15 of the same act requires that it shall be constructed at the expense of the county, and punishes any person who shall undertake to construct such a bridge without first obtaining the approval of the model and location of the same by the acting commissioner or principal engineer. These, with numerous other provisions of law which might be cited, show that in all conflicting public uses arising between the canals and public highways, the public use for canal purposes was regarded as paramount to all others.

This is equally true as to the railroads of the state. "When the canals were constructed and first opened for navigation, railroads were unknown in Ohio. When they were being constructed their rights to cross the canals and the terms and conditions of such crossing became a subject of much controversy.

Section 11 of the act of 1848 (1 S. & 0. 271) being “ An act regulating railroads,” contained substantially the same provision as section 3283 ■ now does, as to the right to use the public roads, &c., for railway purposes; yet no one then supposed that the franchises granted to railroad companies authorized them to appropriate any part of the canals of the state for their use. This controversy between the board of public works and the railroad companies related solely to the right to cross the canals, and the proper plan of bridges so as not to interfere with tbe canals. This difficulty was adjusted by tbe act of May 1, 1852 (1 S. & C. 318, 319). The 1st and 2d sections of this act prescribed the duty of railroads competing with the canals, as to rates for freight. The 3d section requires the board of public works to permit every railroad company adopting and adhering to the rates of freight required by sections 1 and 2, to construct bridges across the navigable canals, feeders, &c., provided the diagram and plan of the bridge shall be approved by the board, or the acting commissioner.

Section 4 provided that all bridges that had therefore been erected across the canals,- &c., which did not obstruct or impair navigation, and were not less than ten feet above the top waterline, should be permitted to stand. By section 3317 of the Revised Statutes the right of railroads to cross the canals is restricted so as not to impair navigation thereon. The plan of the bridge and other fixtures for crossing the canal, and the location, must be approved by the board or acting.commissioner, but if they disapprove it, then application must be made to the court of common pleas or judge thereof for such approval, but even the court has no power to approve the plan, where the bridge is less than ten feet above the top water-line of the canal, or where the piers or abutments interfere with navigation.

These provisions clearly show the care the legislature has taken to preserve the canals.

They show further, that as between the two public uses, that for purposes of navigation is paramount over public uses for railroads, even as against the right to cross.

By sections 12 and 13, article 8, of the constitution, it is provided that there shall be a board of public works, to consist of three members, to be elected by the people, so long as the state shall have public works which require superintendence. The powers and duties of this board to be such as were then or might thereafter be prescribed by law. These powers and duties are prescribed in great detail, in the statutes relating to the public works of the state, and are found in the Revised Statutes, sections 7651 to 7913.

Section 7691 is a summary thereof in general terms. They, the board, “ shall have charge of the public works of the state, and shall have power to perfect, render useful, maintain, keep in repair and protect the same, and to that end shall have power to remove obstructions,” &c. This is a power of superintendence for the protection and maintenance of the canals, including everything that pertains to them.

The board of public works possesses no powers except such as are expressly conferred by law, or as are necessarily implied, the purpose of which is, to perfect, render useful, maintain, keep in repair, and protect and make the canals useful as navigable highways. It may be conceded, that the state has power to sell, lease or abandon them. It may grant easements or rights for other public uses. It may by neglect or by unfriendly legislation impair or destroy their usefulness. It may also be true that in these days of improved methods of commercial intercourse, canals are relatively of minor public importance, but so long as the present policy of the state, as shown by its laws, stands, the courts must carry out that policy. It is for the legislature, not for the board of public works, nor for the courts to change it.

That policy has always been and still is to regard the canals of the state as a public use of'paramount importance, as against other public uses, such as common highways and railroads.

The most cursory examination of the numerous provisions of law relating to the public works of the state will show, that while the legislature has freely granted the largest powers to the board for this purpose, it has at the same time, by regulations, prohibitions and penalties, sought to guard this property from all encroachments, individual or corporate, and to prevent the acquisition of rights or easements in the canal or its banks except by express authority of laws passed for that purpose. The board of public works possess no power to grant rights, easements or privileges for private advantage, unless expressly authorized by law. The statutes authorizing the abandonment or sale of certain sections of the canals', the transfer to railroads and cities for their purposes, of other sections, the permission granted by statute to use the berme bank in certain instances, the leasing of the canals, the leasing of surplus water, the sale of ice, and the restrictions as to crossing by public roads, and by railroads, all show that the board in the opinion of the legislature possessed no implied power to grant rights and privileges, or to create easements or burdens upon this public property in favor of individuals or corporations. In each of these cases express authority was conferred by statute.

As already stated, section 3283 is substantially the same, as to the power to agree for the use of public roads, &c., as section 11 of the act of February 11, 1848, which was the general act relating to and regulating railroads prior to 1852. This act antedates most of the present statutes relating to the powers and duties of the board of public works. The latter may therefore be regarded as the latest expression of the legislative intent, and the limitations and restrictions on the powers of the board therein contained must not be lost sight of in the construction of section 3283, as they clearly demonstrate that neither section 11 of the act of 1848, nor 3283 of the Revision conferred this power.

Again, the word “ way ” or “ public ground,” does not include the public navigable canals of the state in express terms, nor by necessary implication.

A way, in the connection in which it stands in this section, must be regarded as something of the same nature and kind as a road or street.

The canals of the state are everywhere in the statutes so denominated. They are specifically named wherever legislation includes them. The public works of the state embrace canals, feeders, slack-water improvements, &c. For the same reason the canals cannot fall within the term “ public ground.”

Section 3283 is among the grants of power to railroads. It is one of three sections conferring upon such corporations capacity to acquire land for right of way, side-tracks and depot grounds. The powers and duties of the board of public works are found in other statutes specially enacted for that purpose. All these statutes must be considered in determining whether section 3283 confers power on the board to agree to the use of the canal for this new and additional public use.

Another canon of construction applicable to general statutes like this is : that “ the state is not bound by the general provisions of a statute, unless it be so expressly enacted.” Ohio ex rel. v. Board of Public Works, 36 Ohio St. 409.

This rule is of special force where any of the prerogatives, rights, titles or interests of the state are sought to be divested. State v. Kline, 41 N. II. 238; Broom Leg. Max. 51. The principle is well established, and is indispensable to the security of the public right. The general business of the legislative power is to establish laws for individuals, not for the state. "When its rights are to bo transferred or affected, the intention must be plainly expressed or necessarily' implied, and this principle applies with peculiar force to grants of corporate privileges, or franchises in public property. Jones v. Tatham, 20 Penn. St. 398; State v. Garland, 7 Ired. 49. In view of the character of this property, built at the public expense, and devoted to a paramount public use, for the convenience and welfare of the people of the state, and held in trust, protected and maintained by the state in its sovereign capacity as great navigable highways, we think this rule of law has peculiar force.

We do not question the power of one corporation authorized to appropriate land for a public use, to acquire the property of another or of the public, also devoted to the same or another public use, but such power must be conferred by express terms, or by necessary implication. Such implication does not arise when the express powers conferred can by reasonable intendment be exercised without such appropriation. Matter of B. & A. R. R. Co., 53 N. Y. 574; Inhabitants of Springfield v. Conn. R. R. Co., 4 Cush. 63; Stevens v. Paterson & Newark R. R. Co., 5 Vroom, 532.

In the case at bar no absolute necessity is shown to use the berme bank of the canal, even were it subject to condemnation. In such cases the presumption is in favor of the public and against such necessity. See also Matter of City of Buffalo, 68 N. Y. 167.

Cases are not wanting to the point that the public lands of the state, not necessary to its use, may be occupied where they lie between the termini of a railroad authorized to be constructed.

It need only be said of these cases, that even if sound, the principle on which they rest is, that these lands are not already dedicated to other public uses of equal or paramount importance, and are necessary to the uses for which they are dedicated.

Some reliance is had on the -ease of Chagrin Falls & C. P. Co. v. Cane, 2 Ohio St. 430.

There the charter of the Planhroad Co. authorized the directors to enter upon and take possession of any lands, roads, streets, alleys, &c., and it was held that under this grant the company could occupy and use a public county road, and that such appropriation withdrew the road from the control of. the supervisor.

The ground for this conclusion as stated, is, that the new public use was the same as the old, i. e., a public highway for travel, the only change being, that instead of being kept in repair by taxation, it is done by tolls. In that case the power was granted in express terms to occupy any road, &c.

We do not question the power of the legislature to authorize, a change of public uses, but in the terms of the syllabus in Hickock v. Hine, 23 Ohio St. 523; “ where the legislature has power to require one public easement to yield to another moi’e important, the intention to grant such power must appear by express words, or necessary implication; and such implication only when requisite to the enjoyment of the powers expressly granted, and can be extended no farther than such necessity requires.”

Another important consideration is, that the right of the company to appropriate, the public property is co-extensive with the power to acquire by agreement, and may be resorted to in all cases where the authorities fail to agree. It will hardly be claimed that any portion of the canals are subject to proceedings for condemnation. If so, then it is within the power of railroad corporations to destroy the public works of the state, if the directors deem it necessary to so locate their roads. The berme bank of the canal is part thereof, and equally protected by law from all occupancy or intrusion, as any other part.

But it is urged that the board of public works have not agreed to anything tending to destroy or impair the public uses to which the canals have been dedicated, but that this contract is intended to simply add an additional use, by so improving the berme bank, so as to be more useful to the canal. This is not a question of what is expedient or beneficial to the public. It is a question of power. If the board is vested with a discretion to subject the berme bank of the canals to a new use foreign to the original purpose, and competing with the canal as a means of transportation, where is the limit of that discretion? The exercise of this discretion would in' time greatly impair the revenues of the canals, and ultimately destroy the canals themselves.

If the board can agree to grant part why not all? If the company can condemn part, it may take the whole, “if it be necessary in the judgment of the directors.” West Boston Bridge v. Co. Comm'rs, 10 Pick. 271. It is for the legislature, and not its subordinate agents, the board of public works, to authorize such additional public use and to confer such authority. It is the only power in the state authorized to declare that this new use of the canal and its banks, or any part thereof, is more important than the existing use to which it is dedicated.

This contract is, therefore, without authority of • law,' and confers no right, on the defendant.

Judgment accordingly.


source: Caselaw Access Project

author: Johnson J. Okey, J.,

license: Public Domain

text:
    Homer Hanoff v. The State of Ohio.
    1. Where upon a trial of an indictment the defendant offers himself as a witness, and testifies in his own behalf, he thereby subjects himself to the same rules, and may be called on to submit to the same tests as to his credibility as may legally be applied to other witnesses.
    2. The plaintiff in error was indicted for murder, and on his trial gave testimony in his own behalf; on cross-examination by the State he was asked, if he had not been once arrested for an assault with intent to kill, to which question he objected, but the court overruled his objection, thereupon without claiming his privilege he answered :

      Held, that the limits of such a cross-examination on matters not relevant to the issue for the purpose of judging of his character and credit from his own voluntary admissions, rest in the sound discretion of the court trying the cause, and the judgment will not be reversed unless it appears from the record that such discretion has been abused to the prejudice of the party.
    3. Section 6804 of the Revised Statutes authorizes the prosecution, as well as tho punishment, of aiders and abettors as principal offenders. Hence, one indicted as a principal, may be convicted on proof that he was an aider and abettor.
    Motion for leave to file petition in error to the Court of Common Pleas of Malioning County.
    The plaintiff in error was indicted for murder in tbe first degree, and was convicted and sentenced for murder in tbe second degree. Two points are relied on for reversal.
    1. On tbe trial be testified in bis own bebalf, and on cross-examination by tbe State, tbe following questions were asked, to wbicb be objected, and bis objection being overruled, be answered:
    Q. “ I desire to ask you whether you were not indicted once for an assault with intent to kill, along with others 2”
    A. “Not as I know of. I mind being arrested, but I don’t know tbe charge.”
    Q. “Did you not plead guilty once to an assault and battery in this county 2”
    A. “I mind once of pleading guilty, but I don’t know what charge.”
    Q. “ Haven’t you frequently been arrested in this county on charges of assault and battery 2”
    A. “ I think I have been arrested three times.”
    2. Tbe facts in regard to tbe second point relate to tbe charge, and are stated in tbe opinion.

      Anderson & King, for plaintiff in error.

      M. W. Johnson, prosecuting attorney, for defendant in error.
   Johnson J.

Did the court below err in overruling the defendant’s objection to the foregoing question put by the State on cross-examination of defendant ? If so, was the error such as requires a reversal of the judgment ?

The defendant, having voluntarily offered himself as a witness in his own behalf, and testified in chief, thereby subjected himself to a legitimate and pertinent cross-examination. While occupying the witness stand he was entitled to the saíne rights and privileges, and was subject to the same rules of evidence as any other witness. Brandon v. People, 42 N. Y. 261. The fact, that he was also a party accused of a crime, clothed •him with no greater rights or privileges as a witness, nor subjected him to any different rule of cross-examination than others. The same latitude and the same limitations apply to his cross-examination, as if he had not been a party. As a party his right to object to incompetent questions, addressed to himself as a witness, are the same as if they were addressed to any other witness. The State cannot by its own witnesses, nor by a cross-examination of defendant’s, give evidence of facts tending to prove another distinct offense, for the purpose of raising an inference of the prisoner’s guilt of the particular crime charged. Coble v. State, 31 Ohio St. 100; Hamilton v. State, 34 Ohio St. 82 ; Commonwealth v. Thrasher, 11 Gray, 450. This limitation on the extent of a cross-examination, applies to the cross-examination of the defendant himself. As a party, he has the right to object, because such evidence is incompetent.

But the defendant, while a party, was also his own witness, subject to cross-examination.

If error would not lie to a like cross-examination of any other witness, as to his previous conduct, for the purpose of affecting his credibility, we see no reason why it should, when ;a party himself is the witness. The object and importance of a cross-examination of a defendant is the same,.and-therefore the rules governing it should be the same. In matters collateral and irrelevant to the particular charge, it is difficult to klefine with precision the limits of such cross-examination when the object is to test the credibility of a witness.

In this court the question may be regarded as settled, that i£ The limits to which a witness may be cross-examined on matters not relevant to the issue, for the purpose of judging of his character and credit from his owm voluntary admissions, rest in the sound discretion of the court trying the cause. Such questions may be allowed where there is reason to believe it will tend to the ends of justice; but they ought to be excluded when a disparaging cotuse of examination seems unjust to the witness and uncalled for by the circumstances of the case.” Wroe v. State, 20 Ohio St. 460.

In that case one of the questions asked the witness on cross-examination was: ££ Are you not now under indictment for murder in the second degree in this court ?” The defendant objected, his objection was overruled, and the witness answered that he was, but had pleaded not guilty.

After a careful review of the authorities, the conclusion stated was reached, and for the reason that the limits of such a cross-examination must in a great measure rest in the sound discretion of the court trying the case. This court therefore refused to reverse the judgment, there appearing no abuse of that discretion. That case is decisive of this, unless it be that defendant’s rights as a party, add a limitation to the cross-examination that does not exist in the case of another witness. In this respect, Brandon v. People, 42 N. Y. 265, is exactly like the case at bar.

The defendant was indicted for larceny, and after evidence was given in support of the charge, she was placed upon the stand in her own behalf, and denied her guilt. On cross-examination she was asked if she had ever been arrested for theft. Her counsel objected, but the question was allowed, and she answered that she had. The court, after laying down the principle that the defendant, as a witness, was subject to the same rules as other witnesses, refused to reverse the conviction, holding that any abuse of this latitude of cross-examination is guarded against in two modes: (1) By the pi-ivilege of the witness to decline to answer any question which may disgrace him or tend to charge him as a criminal; (2) By the power of the court to prohibit an unreasonable or oppressive cross-examination. In the case at bar the witness did not claim this privilege, but answered as shown in the statement of facts.

So in Great Western v. Loomis, 82 N. Y. 127, it was held that the court in which a cause is tried, in the exercise of its discretion, may exclude disparaging questions not relevant to the issue, put on cross-examination for the purpose of impairing his credit, and it may, in its sound discretion, allow, such questions where there is reason to believe they may tend to promote the ends of justice. See also People v. Conners, 50 N. Y. 210.

In People v. Crapo, 76 N. Y. 288, these cases were commented upon and distinguished, but it is a mistake to suppose that it conflicts with them. There the defendant was on trial for la/reeny, and was a witness in his own behalf. On cross-examination he was asked if he had ever been arrested on a charge of l)igamy. The question was allowed, but the judgment that followed was reversed, the court holding that such irrelevant questions must at least be such as clearly go to impeach the general moral character and credibility of the witness. Whether he had been charged with bigamy did not’ tend to impair the credibility of the prisoner as a witness. It was further added, and in this we fully concur: The discretion which courts possess, to permit questions of particular acts to be put to witnesses for the purpose of impairing their credibility, should be exercised with great caution when an accused is a witness on his own trial. He goes upon the stand under a cloud; he stands charged with a criminal offense, not only, but is under the strongest possible temptation to give evidence favorable to himself. His evidence is therefore looked upon with suspicion and distrust, and if, in addition to this, he may be subjected to a cross-examination upon every incident of his life, and every charge of vice or crime which may be made against him, and which has no bearing upon the charge for which he is being tried, he may be so prejudiced in the minds of the jury as frequently to induce them to convict upon evidence which would otherwise be deemed insufficient.” While we fully concur in these remarks, as applicable to the court trying tire .case, it is not claimed they furnish any reason for depriving that court of the exercise of its sound discretion.

Eor an abuse of that discretion, as in the case from 19 N. Y., the appellate court may reverse; but unless it is manifest from the whole record, that such discretion has been abused to the prejudice of the party complaining, error will not lie. Thus in Lee v. State, 21 Ohio St. 151, it was held that: “ Where an accomplice testifies as a witness, a liberal and full cross-examination, for the purpose of testing the truth of his statement,, should be permitted; and it is error to restrict such cross-examination within unreasonable limits.” The same would undoubtedly be true, where the cross-examination was extended, against his objection, to such an unreasonable range, in matters not affecting his credibility, as to prejudice the defendant’s cause.

It is true this court has held in Bank v. Slemmons, 34 Ohio St. 142, that it is no ground for reversal, that the court refused to compel a witness on cross-examination to answer a question as to matters not relevant to the issue, for the purpose of impairing his credibility; but that is not in conflict with the case of Lee v. State, where it appeared upon the record that the question disallowed was pertinent for the purpose of testing the recollection and veracity of the witness.

In the case at bar we are unable to say that there has been such an abuse of that discretion as warrants a reversal. We by no means sanction that latitude of cross-examination sometimes indulged in, for the purpose merely of disgracing a witness, which neither relates to the issue nor seems to test the credibility of the witness. Where such is the object of a cross-examination it is the duty of the court to disallow it, and to confine it to proper limits. For obvious reasons, it is difficult to define these limits in general terms. The extent of such a cross-examination must be left, in a great measure, to the discretion of the trial court, subject only to review where that discretion has been abused.

II. The defendant was indicted as a principal under section 6804 of the Revised Statutes, which provides that:. “ Whoever aids, abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender.” Evidence was offered tending to show that the actual killing was done by defendant’s brother, Howard, though defendant was present, aiding and abetting the act.

The court, after instructing the jury as to what constitutes a principal, and what an aider or abettor, to which there is no exception, told the jury that if the two, Howard lianoff and defendant, had formed a joint design to kill deceased, and at the time of the killing they were acting in concert, with the joint intent to kill, and that, while Howard did the manual act of killing, Horner was aiding and abetting the accomplishment of the common design, then he is guilty, and may be convicted as a principal under the indictment.

In this we think there was no error. The statute in direct terms authorizes the prosecution and punishment of any one who is an aider or abettor, as a principal offender. Under the former statute (1 S. & C. 416) the act of aiding and abetting was an independent off&nse punishable the same as the act of the principal offender. It did not declare how he should bc prosecuted. Hence the common law forms of indictment were resorted to, and he was indicted.as an aider and abettor of a principal.

Under the Revised Statutes this practice has been modified, so far as to provide that he may be prosecuted as well as punished, as if he were the principal offender.

Motion overruled.

Okey, J.,

dissenting. It is ordained in the present State constitution, as it was, substantially, in our former constitution, that no person shall “ be compelled, in any criminal case, to be a witness against himself.” The same provision, in the same words, is contained in the constitution of the United States, and, indeed, that is but the assertion of a principle of the common law.

At common law, the defendant in a criminal case is not a competent witness; but in capital cases, and perhaps in some others, he is permitted to make a statement to 'the jury in relation to the matters charged. This statement, however, is not made under oath, nor is any cross-examination with respect to it allowed.

The rule of the common law which prevented the prisoner from testifying on his own trial, was supposed to be oppressive; and, soon after the law excluding parties as witnesses in civil cases was changed, a proposition to extend the new rule to criminal cases was considered, and finally, in 1867, adopted (61 Ohio L. 260). This statute, slightly changed, was carried into the Code of 1869 (66 Ohio L. 308, § 110), and from the latter act into the Revised Statutes. In its present form it is as follows: On the trial of all indictments, complaints and other proceedings, against a person charged with the commission of an offense, the person so charged shall, at his own request, but not otherwise, be a competent witness; but his neglect or refusal to testify shall not create any presumption against him, nor shall any reference be made to, nor comment be made upon, such neglect or refusal.” Rev. Stats. § 7286. Similar statutes exist in a majority of the states.

On the trial of the prisoner, charged with murder in the first degree, he availed himself of that statutory provision. After he testified, he was cross-examined, and then retired from the witness stand. Subsequently he was recalled by the prosecuting attorney, who made inquiry whether ho had not been indicted for an assault with intent to kill; whether he had not pleaded guilty to an assault and battery, and whether he had not been frequently arrested for assault and battery. He objected, personally, to each of these questions, but the court overruled the objections, and he excepted. The answers he gave tended to show the indictment, plea of guilty, and arrests imputed in the questions. The matter thus obtained had no relation to anything to which the prisoner had testified in his previous examination, or which was involved in the trial. He was convicted of murder in the second degree and sentenced to the penitentiary for life.

The evidence was inadmissible for the reason that the things inquired about were matters of record; and, therefore, the objection, though general, should have been sustained. But I do not place this dissent merely or principally upon that ground. In my judgment the constitutional rights of the accused were invaded by this action of the prosecuting attorney and presiding judge. He was “ compelled to be a witness against himself,” even within the letter of the constitutional provision; but whether within the mere letter or not is immaterial, for that which clearly falls within the reason of the prohibition may be regarded as embodied within it.” Walker v. Cincinnati, 21 Ohio St. 53; District Court Case, 34 Ohio St. 440 ; Eichenlaub v. State, 36 Ohio St. 140.

In the opinion of the majority,, it is within the discretion of the court to permit such cross-examination. But that is equivalent to saying that where the judge decides to exercise the power, the decision is final. In theory, a reviewing court will reverse for an abuse of discretion in the court below; in practice, such a thing is almost unknown; and it is agreed, everywhere,- that to justify a court of error in reversing a judgment for such cause, the abuse of power must be flagrant. If the matter is discretionary, it is not probable a case will ever be presented which will justify a court of error in interfering. A cross-examination so manifestly oppressive as to furnish ground of reversal would scarcely aid a prosecution before a-jury. Besides, the judges of this state, who preside at such trials, will not permit such injustice, and it will seldom be found that a prosecuting attorney has been so far misled by his zeal as to attempt such a mode of trial.

We are told, moreover, that the answers were voluntary, and that the prisoner did not claim his privilege. But I deny that the answers were voluntary. The questions were asked by the law officer of the court. The defendant objected to them. The court overruled the objections. This amounted to a command to answer, and manifestly the prisoner so understood it. He first excepted, and then answered, and in this way made all the claim of privilege he was required to make. People v. Crapo, 76 N. Y. 288.

I know it is said that by going upon the stand as a witness, the prisoner waived his constitutional right. But is that true ? Doubtless a prisoner may waive some provisions inserted in the constitution for his benefit. Others he cannot waive. Thus, under our statutes, he may waive a jury, and submit to a trial by the judge, in misdemeanors (Dillingham v. State, 5 Ohio St. 280), but not in felonies. Williams v. State, 12 Ohio St. 622. "Waiver of such right by act of the party is not to be assumed, unless such act clearly and necessarily involves such waiver; and where the act is consistent with a limited or qualified waiver, such waiver should not be held as unlimited or unqualified. The same principle applies in the construction of a statute under which it is claimed such waiver arises. •

It will be seen that the statute above set forth, was enacted for the benefit and protection of persons accused of crime. Such person cannot be called as a witness against his will. Nothing is to be presumed against him by reason of his neglect to testify, and no reference to such neglect can be made by court or counsel. There is no provision that the accused, by taking the stand, shall waive any thing. The implication, as I read the section, is the other way. What is there, in the fact that he has taken the witness stand, which requires-, us to say that he has waived any constitutional right ? Of course, for the purpose of explaining and qualifying his testimony in chief, a fair cross-examination concerning it should be allowed. Indeed, this is essential to the ascertainment of truth, and is a matter of right in the state, and not of discretion in the court. Martin v. Elden, 32 Ohio St. 282. But this is not true as to collateral matters. The extent to which a witness may be cross-examined as to extraneous facts is, I admit, discretionary with the court; but this only relates to matters which may be lawfully elicited by such cross-examination. If evidence of a fact is prohibited by the constitution, a statute, or the common law, the court has no power to admit it either in chief or on cross-examination.

"Where there is cross-examination as to collateral matters,—■ esjDecially where the witness is recalled for such purpose,—he becomes, virtually, as to the extraneous facts, the witness of the p rrty examining, who will be bound by his answers. Coble v. State, 31 Ohio St. 100; Wharton’s Cr. Ev. § 179. Such cross-examination is resorted to, in a case like this, either to show that the prisoner is unworthy of belief, or that he is a person who would probably commit murder. But it is admitted in the opinion of brother Johnson, that for the latter purpose such cross-examination cannot be permitted; and to me it seems equally clear that it cannot be permitted for the first purpose. Perhaps the first question and answer are the most clearly objectionable. An indicted person is presumed to be innocent, and yet it is sought to make the mere fact that a witness has been indicted, an impeachment of his character. The objection, however, is alike fatal as to each of the questions and answers. This clearly appears in People v. Crapo, supra, which is utterly inconsistent with Brandon v. People, 42 N. Y. 265, and overrules it in this respect, as a careful examination of the cases will show. And see People v. Brown, 72 N. Y. 571; Byan v. People, 79 N. Y. 593; Gifford v. People, 87 Ill. 210; Hayward v. People, 96 Ill. 492 ; People v. McGungill, 41 Cal. 429; Fletcher v. State, 49 Ind. 124; State v. Farley, 57 Ind. 331; State v. Beal, 68 Ind. 345; State v. Ryan, 6 Mo. App. 592.

But if it be admitted that, on the authority of Wroe v. State, 20 Ohio St. 460, the cross-examination in this case would have been competent as applied to any other witness, still, in my judgment, it was incompetent as applied to the prisoner. The accused in testifying was in a dual capacity—he was the prisoner on trial and a witness; but by becoming a witness he did not cease to be the defendant, nor was he thereby deprived, by waiver or otherwise, of any constitutional right compatible with such position as a witness. He was entitled to the protection secured to1 him in each relation as far as it could reasonably be afforded to him. As already stated, constitutional provisions ordained for his benefit and protection must be respected as far as possible, in view of the fact that he has become a witness. "What difficulty is there in affording him full protection in a case like this? I submit there is none. It can be done by confining the state to a fair cross-examination with respect to the matters concerning which he testified in chief; and when we consider the nature of the evidence, the defendant’s right to have the cross-examination thus confined seems to be clear.

Ordinarily, when objection is made to testimony, it is sufficient to show that it might be proper for the consideration of the jury for any purpose. But that is not always so, nor is it true in this case. The effect of the facts so elicited on cross-examination was, not merely to discredit the prisoner as a witness, but to show that his character as a peaceable man was bad, and hence that he was a man who would probably commit murder; and yet he had offered no evidence with respect to his character. Good character is certainly no excuse for crime; but it is a circumstance bearing indirectly on the question of the guilt of the accused, which the jury are to consider in ascertaining the truth of the charge.” Harrington v. State, 19 Ohio St. 264, 269. “ And the character he is entitled to prove must be such as would make it unlikely that he would be guilty of the particular crime with which he is charged. . . Thus, to murder, as we have seen, a character for peacefulness may be proved.” Wharton’s Cr. Ev. § 60, note. But “ upon the trial of a criminal cause, the prosecution cannot offer evidence to impeach the general character of the defendant, till he has put it in issue by calling witnesses to prove his general good character.” Griffin v. State, 14 Ohio St. 55, 63. And the evidence which the state may offer in opposition to such proof must be confined to general character. Ib.; Hamilton v State, 34 Ohio St. 82, 86.

Erom these considerations it may be fairly said, I think, that the prisoner was compelled “ to be a witness against himself.” That was the effect of the evidence. And it is no answer to say that for one purpose, that is, to discredit him as a witness, it was competent; for, aside from the fact that it could have no such effect in law or fact, it is the duty of the court to preserve to the prisoner the constitutional inhibition as far as possible; and this, as already stated, may be fairly done by allowing a full cross-examination as to matters detailed in chief, but denying it as to such extraneous matters as were proved in this case. That a fair construction of the constitutional provision requires this course to be pursued, T am fully persuaded.

When we come to consider the position which a defendant on trial for crime really occupies, the reasons already stated for holding the extraneous facts incompetent will be much strengthened. Church, C. J., in People v. Crapo, supra, made some sensible observations in this respect, an extract from which is set forth in the opinion of brother Johnson. Indeed, to every person conversant with the trial of criminal cases, it is quite apparent, that while the presumption of law is that the prisoner is innocent, until he is proved to be guilty, the presumption in point of fact is the other way, and in some cases a prisoner tried on indictment is half convicted before the witnesses are sworn. The principal reason is that experience has shown, everywhere, that the great body of persons indicted by a grand jury, and placed on trial, are guilty. But many so tried are innocent, and hence the wisdom and humanity of the legal presumption, to which the court uniformly directs the attention of the jury. True, the spirit of the statute is, that if the prisoner fail to testify, no presumption shall be made against him on that ground by court or jury; but everybody knows the provision is of very imperfect obligation. In truth, the prisoner in nearly all cases is virtually compelled to take the witness stand, where a refusal to answer is almost equivalent to a confession of guilt; and if, in addition to this severe ordeal, he must testify as to the misfortunes, follies and errors of a life time, perhaps forgotten or foigiven by the public, the statute enacted for his benefit and protection becomes our most oppressive enactment, and we adopt a mode of trial only known in countries where the common law has never prevailed. If in some respects the laws of those countries are superior to our own, it is not in the administration of the penal laws. And there can be no excuse for such course of trial upon the ground that the prosecution has been taken by surprise by the appearance of an unexpected witness. If the accused testifies, of course he may be impeached, like any other witness, with respect to his truth and veracity, and the prosecuting attorney knows that he will probably testify, and hence, oi’dinarily, has opportunity to prepare for his impeachment, if his character for truth is bad.

I am aware that in several states where similar statutes exist, it is assumed that cross-examinations of the character of that disclosed in this case violate no constitutional right of the accused. Cases to that effect are collected in 1 Bishop’s Cr. Pro. (3 ed.) § 1183; Wharton’s Cr. Ev. §§ 432 (n. 4), 435 a; and see State v. Red, 53 Iowa, 69. On the other hand, cases all ready referred to, that is, from the reports in Indiana, Illinois, California, Missouri, and the later cases in New York, support to some extent the views which, after careful examination of the subject, are here stated. In my opinion the motion should be granted.


author: Okey, J.

text:
    Eldredge v. The State.
    A general verdict that the defendant “is guilty in manner and form as he stands charged in the indictment,” where the indictment contains two counts charging distinct misdemeanors, will authorize a sentence upon 'each count.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Geauga County.
    At the October term, 1878, of the court of common pleas of Geauga county, an indictment was found against Seth P. Eldredge, containing two counts, precisely alike, charging the said Eldredge, in proper form, with unlawfully selling intoxicating liquors to Jesse Curtis, a minor, on September 7, 1878.
    The accused pleaded not guilty.
    On the trial, evidence was offered showing that at the place and on the day stated in the indictment, Eldredge sold intoxicating liquors to said Curtis, and that on the same day, at the same place, about two hours after the .first sale, he again sold intoxicating liquors to Curtis; that at the time the sales were made Curtis was a minor, as Eldredge well knew; and that there was no written order of either the parents, guardian or family physician of the minor authorizing such sale to be made.
    The jury returned a verdict that the accused “is guilty in manner and form as he stands charged in the indictment.” No request was made for a finding by the jury as to each count. The sentence was, that upon the first count the defendant should be imprisoned in the county jail for the period of ten days, and that upon the second count he should pay into the county treasury a fine of $50 and costs, and 'that he should» stand committed until the fine and costs were paid.
    The statute provides as follows: “ Whoever . . . sells intoxicating liquors to a minor, except upon the written order of his parent, guardian or family physician, . . . shall be fined not more than fifty nor less than five dollars, or imprisoned not more than thirty nor less than ten days ” (74 Ohio L. 268, § 18; R. S. § 6941).
    The district court affirmed the judgment.

      F. Metcalfe, in support of the motion:

      People v. Piscomb, 60 N. Y. 559.

      G. K. Wash, attorney-general, contra :

      Williams v. State, 18 Ohio St. 46; Pickett v. State, 22 Ohio St. 410.
   Okey, J.

The defendant relies, for a reversal of the judg-' ment, upon the fact that he was sentenced to greater punishment than could have been lawfully imposed upon conviction under one count of the indictment only. The only authority relied on to show the illegality of such sentence is Tweed’s case (People ex rel. v. Liscomb, 60 N. Y. 559). There it appeared that Tweed was tried upon an indictment charging, in separate counts, two hundred and twenty distinct misdemeanors, and that he was found guilty upon two hundred and four of the counts. The statute upon which he was indicted provided that, “where any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, every willful neglect to perform such duty” should be a misdemeanor, punishable by imprisonment not more than a year, and a fine not exceeding $250. Upon twelve of the counts the court sentenced him to twelve consecutive terms of imprisonment of one year each, together with fines of $250 each, and on other counts to additional fines, the fines ^mounting in the aggregate to $12,500. Tweed, having served a term of one year in prison, and paid a fine of $250, the court held that the fine and imprisonment ordered upon the first count exhausted the power of the court, and that he was entitled to a discharge upon habeas corpus. The court say that in such case the punishment may be awarded on one count or several counts, but that the whole punishment cannot exceed that which might be inflicted under one count.

It has been thought the mode of trial adopted in that case was prejudicial to the rights of the accused ; -while others are of opinion that separate prosecutions would have been far more oppressive. Here, however, the inquiry is, not whether one mode of prosecution is less objectionable than another, but whether the law will sanction the punishment inflicted.

That Tweed’s case is in conflict with the rule of the common law, as administered in England and this country, seems to be clear. R. v. Robinson, 1 Moody, 413; Douglas v. R., 13 Q. R. 74; Barnes v. State, 19 Conn. 398; State v. Ambs, 20 Mo. 214 ; 1 Bishop’s Cr. Pro. (3 ed.), §§ 458, 1005 a; Wharton’s Cr. Pl. & Pr. § 910. Indeed, in this state, the common Jaw rale as to misdemeanors may, in the discretion of the court, be extended to felonies. Bailey v. State, 4 Ohio St. 440; Boose v. State, 10 Ohio St. 575. And in Massachusetts there may be a lumping sentence embracing all the punishment that might be inflicted by separate sentences.

Regularly, where the indictment contains more than one count, the verdict should respond specifically to each count, and not generally to all; and where the verdict is guilty as to more than one count, there should be judgment as to each, the sentences to operate consecutively. To refuse a request that the court direct the jury to make such separate finding, would no doubt be error. Com. v. Carey, 103 Mass. 214. Indeed, doubt has been expressed whether, in any case, a general verdict of guilty will authorize separate penalties to be inflicted upon separate counts of the indictment. ” Buck v. State, 1 Ohio St. 61, 62. But we are of opinion that where, on such general, verdict, the court has sentenced as to each count, it will be presumed, in the absence of any showing to the contrary, that

several offenses were proved. 1 Bishop’s Cr. Pro. (3 ed.) §§ 1015, 1325-1327; Wharton’s Cr. Pl. & Pr. § 907.

Motion overruled.


author: McIlvaine, J.

text:
    Ohio Coal Company v. George Davenport.
    1. A creditor of an alleged fraudulent vendor cannot prove the acts or declarations of such vendor, made after the sale and delivery of the property, against the purchaser for the purpose of impeaching his title.
    2. It is incompetent for a witness to state his opinion upon a question of law ; but, where the intent with which an act done by him is drawn in question, he may testify as to such intent.
    Error to the District Court of Washington County.
    Replevin of 190 tons of railroad iron by plaintiff in error against defendant in error.
    The property had been seized by the defendant as sheriff of Washington county, under an execution for $3,389.91 in favor of Hoffman, Thompson & Co., against the Marietta Coal and Iron Co., on the 2d day of March, 1876, as the property of the defendant, in execution, and, at the same time, taken from the possession of the plaintiff in replevin. The plaintiff claimed title by purchase and delivery of the property from the Marietta Coal and Iron Company, on the 28th of February preceding, in consideration of $8,500,to wit: An existing indebtedness of $2,833.34 from the vendor to the plaintiff, and two notes for $2,833.33 each, on that day executed by the plaintiff to the Marietta Coal and Iron Company, payable in six and nine months. The defendant claimed that the plaintiff’s purchase was made with intent to defraud the creditors of the vendor. The good faith of this purchase was the only matter in dispute between the parties. In the court of common pleas a verdict and judgment were rendered for the defendant. This judgment was affirmed by the district court. It is now sought to reverse these judgments for errors, which are sufficiently stated in the opinion.

      Ewart, Sibley & Ewart, for plaintiff in error :
    I. The question of fraud depends npon the motive. The purchase must be bona fide. 2 Kent Comm. * 512, 513; Benj. on Sales, § 488.
    II. “ A party may testify directly to the intent with which he did an act, when the intent is a fact material to the issue.” Cortland v. Herkimer, 44 N. Y. 22; Kerrains v. People, 60 N. Y. 221; Moore v. Davis, 49 N. H. 45 ; 6 Am. R. 460 ; Lombard v. Oliver, 7 Allen, 155 ; Graves v. Graves, 45 N. H. 323 ; Thatcher v. Phinney, 8 Gray, 146 ; Seyman v. Wilson, 14 N. Y. 567 ; McKown v. Hunter, 30 N. Y. 625-628 ; Fish v. Chester, 8 Gray, 506 ; 2 Wharton on Evidence, § 955.
    III. As to the wrongful admission of testimony, see Broom’s Legal Maxims, *857; S tarkie on Evidence,*83-85(9 Am. ed.); Jacobs v. Putnam, 4 Pick. 108.

      W. P. Richa/rdson, and Loomis <& Alban, for defendant in error.
   McIlvaine, J.

On the trial in the court of common pleas, the plaintiff having offered evidence tending to prove the contract of purchase as above stated, the defendant offered an entry appearing in the books of the Marietta Coal and Iron Co., as follows:

“Eeb. 28, 1876, Ohio Coal Co., ■.....$8,500 60
TO MANUK AOTURED IRON.
180 gross tons 1st class 30 lb. rails at $45, . . $8,100 00
10 gross tons 2d class 30 lb. rails at $40, , . . 400 00
$8,500 00
BILLS RECEIVALBE.
Your notes Eeb. 28th, 6 months, , $2,833 33
“ “ “ “ 9 “ . 2,833 33—$5,666 66.”

And defendant also offered to prove by the clerk of the Marietta Coal and Iron Co. that these entries were made by him, under the order of the president of the company, about one week after the date thereof, and after the date of the contract for the sale of said iron to the plaintiff; but did not offer to prove that the plaintiff had knowledge of the fact, time or circumstances of the entries. This testimony was admitted against the objections of plaintiff.

This testimony should have been rejected. It related to facts which were not part of the res gestae. They were acts and declarations of the vendor after the sale and delivery of the property. Nothing more. They were not competent to affect the plaintiff’s title previously acquired. The introduction of such proof cannot be justified on the ground that it was necessary to show fraud on the part of the vendor, as well as on the part of the purchaser. Fraud on the part of the vendor, if not participated in by the purchaser, was immaterial. And yet, its admission, as substantive proof, may have been prejudicial to the plaintiff.

This testimony was, no doubt, offered for the sake of an inference that the plaintiff’s purchase was not in fact made until after the levy; and although it did not tend legitimately to prove such fact, it is, nevertheless, plain that the jury may have been misled by it. /

And further, upon the trial, it having been shown that one Selden Granger (who was also a witness in the case), had acted as sole agent for the plaintiff in making the purchase of the iron from the Marietta Coal and Iron Company, the plaintiff, for the purpose of proving the good faith of said agent and the plaintiff in the transaction, asked said witness the following questions: “ State whether or not the purchase of said iron was made with the intention in good faith to make the Ohio Coal Co. (plaintiff), the owner of it ?” Also: “ State whether or not you intended, in any way, in said transaction, the purchase of said iron, to defraud the creditors of the Marietta Coal and Iron Company, by the purchase of said iron ?” To each of which questions an objection by defendant was sustained. The grounds of objection do not appear in the record ; and if the objection was to the form of the question, the ruling of the court should be sustained, as each question involved a conclusion of law, upon which it was not competent to take the opinion of the witness. But if the ground of objection was that the witness was not competent to testify as to the intent or motive which influenced the purchase, the ruling of the court was clearly wrong. Whenever the intent with which an act is done becomes the subject of inquiry, the person performing the act, if competent to testify to the act itself, is competent also to testify as to the intent. Whatever may be thought of the truthfulness of such witness, it is clear that his means of knowledge are ample; and certainly it is no objection to the competency of a witness, that his means of knowledge as to the fact, to wit: the intent, surpass the means of any other witness as to the same fact.

Judgment reversed.