source: Caselaw Access Project

author: Brinkerhoff, J. J. R. Swan, J.,

license: Public Domain

text:
    The State of Ohio, on relation of the Attorney-General v. William Kennon, William B. Caldwell, and Asahel Medbery.
    Under article 2, section 27 of the constitution, which provides that the “election, and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution or the constitution of the United. States, shall be made in such manner as may be directed by law; but no-appointing power shall be exercised by the general assembly, except as prescribed in this constitution and in the election of United States senators; and in these cases the vote shall be taken viva voce." Held—
    1. That the general assembly may by law direct the manner in which all offices ■ existing or created by law, or vacancies therein, shall be filled by appointment, except in cases provided by the constitution.
    2. Directing by law the manner in which an appointment shall be made, and; making an appointment, are the exercises of two different and distinct powers; the one prescribing how an act shall be done, being legislative; and the other — doing the act — being administrative.
    3. The constitutional provision which authorizes the general assembly to prescribe by law how an appointment shall be made, by express provision and-; condition withholds from the general assembly all appointing power.
    4. Conceding that the general assembly may provide by law for the creation *of an office in the form of a board clothed with the power of selecting, appointing, and removing all officers, and filling all vacancies not otherwise provided for by the constitution, in all offices; and conceding an unlimited power in the general assembly to pass laws providing for the creation of offices or boards in such cases, even permanently or for fife (questions which are not before us), yet the general assembly can not exercise any appointing power to fill such boards or offices'.
    5. The exercise of the power of appointment and removal of state officers, and the filling of vacancies which may occur in state offices, is a high public-.function and trust, and not a private, or casual, or incidental agency; and the officers of a board so created by statute, to exercise these public functions, are vested with official state power, and hold and exercise a public franchise and office.
    ”6. Emolument is a usual but not a necessary element to constitute an office. Authority and power relating to the public interests, conferred by statute, and which may be vested in a board or individuals by election or the appointing power of the state, create an office. Whatever less than this may create an office, it is unnecessary to determine.
    dT. The statutes under consideration which provide for the creation of a board, authorizing it to appoint commissioners of the state-house and the directors of the penitentiary of the state, and fill all vacancies which might occur in the offices of directors or state-house commissioners, and authorizing such board, or a majority, to remove any director of the penitentiary for causes specified, or which might by the board be deemed sufficient, created offices; and conceding that the general assembly could provide for the creation of such board and offices, yet the general assembly could not exercise the power of appointing the officers of such board, without exercising “ appointing power,” which is forbidden by the constitution.
    Information, in the nature of quo warranto.
    On the 29th day of April, 1858, Christopher P. Wolcott, attorney-general,'filed in the Supreme Court ofhOhio an information in the nature of quo warranto, giving the said court to understand:
    “ That William Kennon, and William B. Caldwell, and Asahel Medbery, for the space of three-weeks now last past and more, have 'held and assumed to exercise, and yet do claim to have, hold, as•sume to exercise and enjoy, without any lawful grant, warrant, or right whatsoever, the liberties, authorities, privileges, and franchises, following, that is to say:

      “First. To appoint three persons, who shall compose a board •denominated ‘the commissioners of the state-house,’ and under *whose direction and authority the further prosecution of the work, in the completion of the new state-house, of and belonging to the State of Ohio, shall be continued and carried on.

      “Second. To appoint three directors of the Ohio penitentiary— ■one for the term of one year, one for the term of two years, and one for the term of three years — the said office of director being a public office of great trust and responsibility, within and of the State •of Ohio.
    “All which liberties, authorities, privileges, and franchises, the ,said William Kennon, the said William B. Caldwell, and the said Asahel Medbery, upon the State of Ohio, during all the time aforesaid, have usurped and still do usurp, to wit, at the city of Columbus, in the county of Franklin, and state aforesaid, to the damage and prejudice of the State of Ohio, and against its dignity.”
    Whereupon the attorney-general “ prays the consideration of the court here in the premises, and that due process of law may be awarded against the said William Kennon, the said William B. Caldwell, and the said Asahel Medbery, in this behalf, so that they be made to answer to the State of Ohio by what warrant they claim to have, hold, assume to exercise, and enjoy the several liberties, privileges, authorities, and franchises herein above mentioned-”
    To the information the defendants filed a general demurrer.

      A. Gr. Thurman and N. II. Swayne, in support of the demurrer,
    eitied 55 O. L. 122, 136, and argued the following points:
    I. “ But while the right and duty of interference in a proper ease, are thus undeniably clear, the principles by which a court should be guided, in such an inquiry, are equally clear, both upon principle and authority. It is never to be forgotten, that the presumption is always in favor of the validity of the law; and it is only when manifest assumption of authority, and clear incompatibility between the constitution and the law appear, that the judicial power can refuse to execute it. Such interferences can never be permitted in a doubtful case. C., W. & Z. R. R. Co. v. Comm’rs of Clinton Co., 1 Ohio St. 82-84; Hylton *v. U. S., 3 Dallas, 171; Cooper v. Telfair, Id. 14; Fletcher v. Peck, 8 Cranch, 87; Adams v. Howe, 14 Mass. 345; Wellington v. Petitioners, etc., 16 Pick. 95; Commonwealth v. McWilliams, 11 Penn. St. 70; Louisville v. Hiatt, 2 Monroe, 178; Lexington v. McQuillan’s heirs, 9 Dana, 514; Bank of the State v. Cooper et al., 2 Yerg. 623.
    II. Of the State-house.

    1. The election or appointment of state-house commissioners, not being specifically provided for by the constitution, “ shall be made in such manner as maybe directed by law,” with this limitation, that they shall not be appointed by the general assembly. Const., art. 2, sec. 27; Swan’s Stat. 15.
    2. The manner of appointment is, therefore, to be prescribed by the general assembly, the law-making power, and, as it can not exercise the appointing power itself, it must devolve it upon some man or body of men; otherwise there could be no appointment.
    3. This power of devolution is unlimited. There is not a word in the constitution that limits it; on the contrary, it is given in the most unqualified terms.' The election or appointment “shall be made in such manner as may be directed by law.”

    4. If it had been intended that the appointing power must be conferred on some officer, it would have been so declared in the constitution ; or rather the power would have been directly given to a designated officer by that instrument itself, as is done in respect to* the trustees of the benevolent and other state institutions by article 7, section 2.
    5. There is no difference whatever in principle between conferring the power upon an officer or upon a private citizen. In-each ease, the power is derived from the general assembly. In each case, the person exercising the power, is appointed to exercise-it by the general assembly.

    6. Nor could any possible good be attained or evil avoided by limiting the choice of the assembly to the officers in the state— and to suppose the convention or people to have entertained such an idea is to charge them with unmitigated folly. A justice of the-*peace is as independent of the assembly as is the governor. Roth are the creatures, not of the law, but of the constitution-Art. 4, sec. 9. And so of various other officers. If, then, the appointing power may constitutionally be conferred by law upon the governor,, so may it upon a justice of the peace, or any one of a. dozen, or more, state, county, or township officers; numbering, in. the aggregate, several thousands.
    7. If it be said that the assembly can not do indirectly what it can not do directly,we answer:

      First. That the object of the constitution is merely to-prohibit a direct appointment by the assembly.

      Secondly. The assembly no more appoints indirectly by the law in question than by the former law, which conferred the power upon the governor, or than it would by a law that conferred it. upon some other officer.
    III. Of the Penitentiary.

    1. If the foregoing propositions are sound, the law is clearly constitutional, not only in respect to the state-house commissioners, but also as to the directors of the penitentiary.
    2. But as to the latter, it is constitutional upon another ground, namely, that they may be lawfully appointed by the assembly" itself

      (a.) Article 7, section 2, of the constitution, provides that “ the-directors of the penitentiary shall be appointed or elected in such manner as the general assembly may direct.”
    Under this clause the assembly.itself may appoint them, unless' it is elsewhere in the constitution prohibited.
    Or, if there is no prohibition, it may appoint them in virtue of the general grant of legislatvie power (art, 2, sec. 1), under which-alone the assembly of the old constitution appointed them.
    Now, there is no prohibition, unless it is contained in the latter-clause of section 27 of article 2, which is in these words : “But no-appointing power shall be exercised by the general assembly, except as prescribed in this constitution, and in the election of United States senators; and in these cases the vote shall be taken viva voce.”

    *This implies, or rather declares, that the appointment of some officer or officers, is given to the assembly by the constitution. “As prescribed in this constitution, and in the election of United States senators,” are obviously different cases; and hence the word “ cases,” in the plural, in the sentence that follows.
    (ib.) "What case, then, is meant by the words “ as prescribed in this constitution ? ”
    The appointment of the officers of the senate and house of representatives is not meant, for they are not appointed by the “general assembly.” Each house appoints for itself. Art. 2, sec. 8; art. 3, sec. 16.
    The exception was hardly inserted merely to give the assembly the power of appointing the code commissioners at the first session under the constitution. Art. 14, sec. 1.
    But there is nothing else to give effect to the exception, save the-appointment of directors of the penitentiary.
    So, the assembly may itself appoint them.
    Or, in the language of article 8, section 2, they may “be appointed, or elected, in such manner as the general assembly may direct.”

    The law in question is nothing but an exercise of the power thu expressly and unqualifiedly given.
    IT. For wise purposes the constitution makes the state-house commissioners and penitentiary directors completely subject to legislative control, both in respect to the manner of their appointment, their duties, and liabilities. Hence, the offices are not made electivc ; nor is the power of appointment conferred upon the executive ; nor is the term of office fixed; nor is there any grant of power to either commissioners or directors; nor are their duties or liabilities 'prescribed. All these matters are left to be regulated by law.

      C. P. Wolcott, attorney-general, and Galloway & Warden,

    for the state, made the following points in answer to the demurrer:
    I. Sections first and second of “ an act to provide for the more expeditious completion of the new state-house, prescribing the order in which it shall be done ” (vol. 55, p. 122), and the *first section of “an act providing for the appoinment and more thorough system of accountability of officers of the Ohio penitentiary, fixing their compensation, prescribing their duties, and determining the manner of working convicts ” (vol. 55, p. 136), are instances of the attempted exercise of an appointing power by the general assembly not prescribed in the constitution as proper to that body.
    1. They can not be regarded as conferring on three citizens, however worthy, an elective franchise, to be enjoyed by way of «•special privilege, or preferred political rights: '

      (a.) Because, if so regarded, they are in contempt of article 5 of "the constitution, and of the whole theory of our government.
    (6.) Because the power conferred on them is, by the express definition of the statutes referred to, a power of appointment.
    2. They do pretend to, confer on three named persons the power ■of appointing to certain offices, of removing the appointees, and of filling vacancies.
    3. A power to make such appointment is, under the constitution ■of Ohio, an official power, to be exercised by some officer, board, or body, already subject to official responsibility. Compare secs. 8 and 27 of art. 2, sec. 18 of art. 3, sec. 13 of art. 4, secs. 2 and 3 of art. 7, see. 3 of art. 9, with sec. 2 of art. 2, sec. 1 of art. 3, secs. 2, 3, 7, 9, 10, of art 4, see. 12 of art. 8, sec. 2 of art. 9, secs. 2 and 4 of .art. 10, and sec. 1 of art. 5.
    4. At least the continued holding of an appointing and removing power is a holding of office.
    5. William Kennon and his associates, then, are appointed to office by this action of the general assembly, if they acquired the .supposed appointing power.
    6. But no such instance of appointment to office by the general assembly is prescribed by tbe constitution as within the power of that body. See art. 2, secs. 8 and 27.
    (a.) Section 2 of article 7 prescribes no case in which,- either directly or indirectly, the general assembly may exercise the appointing power.

      (b.) Though the directors of the penitentiary may be either appointed *or elected, as the general assembly may direct, the general assembly may not abstain from the required direction, and itself exercise the appointing power.
    (c.) If an appointment of such directors be provided for by law, the appointing power must be exercised by some public officer, board, or body, already competent to act, and discharging a public trust.
    II. All exercise of the appointing power by the general assembly, except as prescribed in the constitution of Ohio, or in that of the Union, is expressly prohibited by article 2, section 27, of the constitution.
    III. If the power conferred on William Kennon and his associates is not an official, it is at least an appointing power. But such appointing power (see point I., 3) can not be conferred on a private citizen.
    IY. Neither as an appointment to office, then, nor as a conferring of the franchise of appointment, can this action of the genera] assembly be otherwise regarded than as a clear and manifest violation of tho constitution.
   Brinkerhoff, J.

This ease turns entirely upon the constitutional validity of certain acts of the general assembly. I regret that my brethren have devolved on me the task of announcing the opinion of the majority of the court. It is one which I would have gladly avoided. No one doubts that it is the proper prerogative of the judiciary, under a written constitution, to pass upon the constitutionality of acts of the legislature, whenever the question arises in a case pending before it; and, if they be found to contravene the limitations imposed by the organic and fundamental law of the state, to hold and declare them null and void. If it were not so, indeed, written constitutions would be of little or no value; for, the legislature, being the sole judge of its own powers, would soon, become practically omnipotent. Nevertheless, the office is -one of great delicacy and responsibility, and by no moans to be coveted. Of delicacy, because interests growing out of personal and party politics are frequently involved in such cases; and a judge, however upright and “ clear in his *great office ” he may be, can hardly expect to escape having his judgment censured, and his motives questioned. Of responsibility, because the judgment of the court may necessarily conflict with and overrule that of a coordinate branch of the government, which it is alike the pleasure and duty of the court to treat with great respect and sincere consideration. These sentiments of respectful consideration, however, have a limit to their practical operation; and that limit is found where official obligation and fealty to the constitution begin. And if, after full hearing and careful consideration of the question presented, a court is clearly satisfied that the legislature has, in any case, overstepped the limits of the constitution, it is its duty so to-hold; a duty which, however delicate and responsible, it is not at liberty to decline.

In the spirit of these sentiments, then — a sincere respect for the judgment of the legislature on the one hand, and a firm determination to preserve in their integrity the limitations of legislative power which the constitution has prescribed on the other — we have endeavored to consider and dispose of the question presented in the case, to which we now turn our attention.

Counsel for the defendants, in support of their right to exercise the powers and functions named in the information, cite two statutes, both passed April 12, 1858, the one being an act to provide for the more expeditious completion of the new state-house, prescribing the order in which it shall be done” (55 Ohio L. 122),and the other “ an act providing for the appointment and more thorough system of accountability of officers of the Ohio penitentiary, fixing their compensation, proscribing their duties, and determining the manner of working convicts ” (55 Ohio L. 136). The first and second sections of the former act are as follows: ¡

“Seo. 1. That a board shall be constituted, denominated the commissioners of the state-house, composed of three persons, to be appointed by William Kennon, Asaliel Medbery, and William B. Caldwell, under whose direction and authority the further prosecution of the work in the completion of the new state-house in the city of Columbus shall bo continued and carried on.
“Sec. 2. The said commissionrs of the state-house, so appointed, shall severally *hold their offices for the term of two years, and until their successors shall be duly appointed and qualified, unless the new state-house shall bo sooner completed. And before entering upon the discharge of their duties, each of them shall take an oath or affirmation to discharge faithfully and diligently his duties. And in case any vacancy shall occur in said board, it shall be filled by the said William Kennon, Asahel Medbery, and William B. Caldwell. And in the appointment of the commissioners of the state-house, one of the commissioners shall be designated as the president and acting commissioner of the board.”

The first section of the latter act is as follows:

11 That there shall be appointed by William Kennon, Asahel Medbery, and William B. Caldwell, or a majority of them, three directors of the Ohio penitentiary, two of whom at least shall reside in the city of Columbus, and one of whom shall hold his office for the term of one year, one for the term of two years, and one for the term of three years, and until their successors are elected and qualified; but no person shall be eligible to the office of director who is a contractor in the penitentiary, or interested, directly or indirectly, in a,ny branch of business carried on in said institution. And should any director become, ether directly or indirectly, interested in any business carried on in said institution during his term of office, it shall be good cause for his removal; or for other cause, which, in the opinion of the said William Kennon, Asahel Medbery, and William B. Caldwell, or a majority of them, may be sufficient, the said William Kennon, Asahel Medbery, and William B. Caldwell, or a majority of them, are hereby authorized and required to remove such directors; which removal, and the reasons therefor, they shall cause to be entered upon the journals of the penitentiary, and shall report the same to the next session of the general assembly. The said directors first appointed under this act to hold their offices according to the rotation in which their names are placed— the first named for one year, the second for two years, and the third for three years, respectively — each of whom, before entering upon the duties of his office, shall take and subscribe an oath or affirmation to support the constitution of the United States and of the State of Ohio, and to faithfully and diligently discharge the duties of such director. In case of a vacancy in said board of directoi’S, by death, resignation, or otherwise, the same shall be filled by William Kennon, Asahel Medbery, and William B. Caldwell, or a majority of them,” etc.

Now, if these are valid acts of legislation-, they give ample authority to the defendants to exercise all the powers and functions which the information represents them as usurping. But, it is contended in behalf of the state, that these acts of legislation aro invalid, because in violation of the prohibition of any exercise of the appointing power by the general assembly, embraced in the-*twenty-seventh section of the second article of the constitution, and which is as follows:

“ The election and appointment of all officers, and the filling of all vacancies not otherwise provided for by this constitution, or the constitution of the United States, shall be made in such manner as may bo directed by law; but no appointing power shall be exercised by the general assembly, except as prescribed in this constitution, and in the election of United States senators; and in these cases-the vote shall be taken ‘ viva voce.’ ”

The phrase “appointing power,” as here used, is one of no ambiguous signification. When employed in reference to matters pertaining to government, or to the distribution of the powers of government, it means the power of appointment to office — the-power to select and indicate by name individuals to hold office, and to discharge the duties and exercise the powers of officers. No man can possibly mistake its meaning in this respect, especially as office, and the appointment and election of officers, constitute-the whole and the maifest subject-matter of this section of the-constitution.

The first question which arises, then, in considering whether the-power here assumed by the legislature is within the prohibition of this section of the constitution, is this :

Do the powers and duties devolved on the defendants by the sections of the acts above quoted, constitute them officers or not?

What is an office? Among lexicographers, Webster defines the word to signify “ a particular duty, charge, or trust conferred' by public authority and for a public purpose.” In a case in 20 Johns. 492, Platt, J., delivering the opinion of the court, defines the legal meaning of the word to be, “ an employment on behalf of the government, in any station or public trust, not merely transient, occasional, or incidental.”

If we accept either or both of these definitions as substantially correct, it is clear to our minds, that if these statutes are hold valid, those defendants are officers. Theirs is a public duty, charge, and trust, conferred by public authority, for public purposes of a very weighty and important character. Their duties, their chargo and trust, are not transient, occasional, or incidental, but durable, permanent, and continuous.

*In the exercise of the powers of appointment, supervision, and removal, attempted to be conferred by these statutes, the defendants might exert an indirect but efficient control over the disbursement of large appropriations of money, and wield an extensive patronage of honor and emolument.

In respect to the commissioners of the new state-house, their power of appointment and filling vacancies continues for two years at least; and in respect to the directors of the penitentiary, if we go upon the respectful supposition that this legislation is designed to be, as all wise and decent legislation ought to be, permanent and durable, and is not a mere temporary party expedient, it is apparent that their powers of removal from office at their unrestricted will, and of filling such vacancies as may happen, or as they may themselves create, are vested in them for life; which is a permanency of official tenure otherwise unknown to the constitution and laws of Ohio. I say for life; for the statutes prescribe no limit of time beyond which the powers and duties of these defendants shall not extend; and if these acts be valid, death or subsequent legislation only can terminate them.

The positions of commissioners of the state-house, and of directors of the penitentiary are offices, distinctly declared to be so, and created as such by law. This is not denied. Now, according to the terms of these acts, the defendants may select an individual citizen, and by their act of appointment, transform him from a private citizen into an officer of high powers and responsibilities. The officer is made such by the creative fiat of the defendants; and in the case of a director of the penitentiary, the same power that made can unmake. Now, is the creator less than the creature ? Is the latter an officer, while the former falls short of that dignity — when both are invested with important trusts by public authority, for public purposes, and when both are designated by appointment and not by election ?

It is true, the general assembly seems to have carefully avoided giving to the defendants any official name or designation. But surely this is immaterial to the question. The official or unofficial character of the defendants is to be determined, not by their name, nor by the presence or absence of an official designation, *but by the nature of the functions devolved upon them. If the general assembly had in terms enacted “that a board of commissioners of the appointing power, to consist of three members, be and is hereby constituted, and that William Kennon, Asahol Medbery, and William B. Caldwell be and hereby are respectively appointed to the office of member of such board,” and had then proceeded to clothe them with precisely the same powers and charge them with the same public trusts which are committed to them by the terms of the acts quoted, we presume no one would deny that they would be officers, if the act was one of constitutional validity. Certainly they would then be called officers, and would have an official name. Yet if we look at the substance of things, where is the difference between the actual enactment and the one supposed? There is none whatever. Surely, these men are not mere private electors; they are something more — much more; and the mere fact that their functions are nameless can not alter the case.

But, it is said, the acts referred to prescribe no oath of office, and it is thence inferred that the defendants can not be officers. To this it may be replied that tho constitution does prescribe an oath of office, and that its injunctions are as obligatory as those of a statute could be. At all events, the utmost that such omission can effect, is to show an instance of legislative neglect or oversight. That the ■defendants ought to have taken an oath of office before entering upon the discharge of official duty, is clear.

Again, it is said that no fees, salary, or other compensation, is annexed to the discharge of the duties devolved by statute upon these defendants. This is true; and it is also true that coanpensation to them hereafter is nowhere by these statutes prohibited or precluded. That they shall not herehftcr receive any compensation for services by them rendered and expenses incurred under those acts, is nowhere made a condition of their acceptance of the trusts reposed in them. There is nothing to prevent their applying to the legislature for compensation, nor to prevent the legislature from awarding it. Indeed, upon every principle of general equity or morality on which legislative ^bodies are accustomed to proceed, in the allowance of claims against the state, if this legislation wore valid, they ought to receive a fair compensation for their time and expenses.

That compensation or emolument is a usual incident to office is well known ; but that it is a necessary element in the constitution of an office, is not true. It is not named in either of the definitions above referred to, and if it had been, facts would show the contrary. George Washington not only received no pay as commander-in-chief of the continental armies during the war of our revolution, but accepted the position on the express condition prescribed by himself, that he should receive none. 7 Bancroft, 401, 402. The members of the British Parliament do not receive, and for more than a century have not received, any pay whatever. 1 Bla. 174, note 42. And it will hardly be contended that these .are not offices.

How far the general assembly may go in constituting temporary agencies and commissions for temporary, incidental, transient, or •occasional purposes, and in designating the persons who are to execute them, without thereby creating an office and appointing an -officer, are not questions before us. The question which is before us imposes responsibilities sufficiently onerous; and we wish to •confine ourselves to it alone. But we are clear that if this legislation is valid, then these defendants are officers — the holders of office; and, having been appointed by the general assembly, and their appointment being an exercise of the appointing power by the general assembly,” their appointment is unconstitutional and void unless their appointment by the general assembly is “ prescribed by the constitution,” and they are thus brought within the •exception to the general prohibition.

And this brings us to the second inquiry involved in the questions before us. Are these offices within the exception to the general prohibition ? or, in other words, is the appointment of these -officers by the general assembly “ prescribed by the constitution ?”

The office claimed by these defendants is nowhere specifically mentioned or described in the constitution. That instrument is silent in respect to any such office. How then can it “ prescribe ” *to the general assembly the power and duty to fill such office by appointment? It can not, and does not, so prescribe. The •constitution does prescribe that each house of the general assembly shall “ choose its own officers,” and that the senate shall, by way of advice and consent,” participate, pro tanto, with the governor in the appointment of trustees of the benevolent institutions of the s a e. These acts are and may be done by the houses of the general assembly as component parts of that aggregate body, though not by the general assembly in its entire and aggregate character. Tnesearothe only appointing powers “prescribed by the constitution ” to the general assembly; and, with the election of United States senators, mark out and define the limits of the exception to the general prohibition.

But tbe first clause of the second section of the seventh article-of the constitution, is cited as a grant of power to the general assembly to make these appointments, and as enlarging the limits of the exceptions to the general prohibition above named.

That section is as follows :

“ Sue. 2. The directors of the penitentiary shall be appointed or elected, in such manner as the general assembly may direct; and the trustees of the benevolent and other state institutions, now elected by the general assembly, and of such other state institutions as may hereafter be created, shall be appointed by the governor, by and with the advice and consent of the senate ; and upon all nominations made by the governor the question shall be taken by yeas- and nays, and entered upon the journals of the senate.”

To make good this claim it must be made to appear that the power to direct the “ manner,” the mode, the way in which an act shall be done, and the power and authority to do the act itself, are one and the same thing. But that they are not identical or equivalent to each other, is too clear for argument, and almost too clear to admit of illustration. To prescribe the manner of election or appointment to an Office is an ordinary legislative function. To make an appointment to office is an administrative function. And-under a constitution in which the philosophical theory of a division, of the powers of government into legislative, executive, and judicial, should be exactly carried out in detail, the power of prescribing the manner of making ^appointments to office would fall naturally and properly to the legislative department; while the-power to make the appointments themselves would fall as naturally and properly to the executive department. This exact adherence to theory, however, is seldom if ever found in any frame of government; and we refer to the distinction simply by way of reply to-the claim, on behalf of defendants, in argument, that the power to prescribe the manner of appointments includes the power of appointment itself, and to show that they are acts and powers wholly different and distinct from each other.

IIow far the general assembly may go, and just what it may or may not do, in the exercise of the power here conferred to direct the manner of the election or appointment of directors of the penitentiary, are questions not before us. We have not considered them, nor do we intend to attempt to answer them. It will be time-enough, to do so, when they are presented in a case actually pending before us. But conceding, for the sake of the argument, that, it would be competent for the legislature to constitute a board of commissioners, to hold office during life even, for the appointment, of directors of the penitentiary, it is clear that the legislature can-, not, under the constitution, itself appoint and designate the members of such board. They must be either elected by the people of the state, or appointed by some constitutional agency other than> the general assembly.

This clause of the second section of the seventh article of the constitution, then, is in no way inconsistent, or in conflict, with the-provisions of the twenty-seventh section of the second article, but is in entire harmony with it. It in no way qualifies or enlarges-, the exceptions to the general prohibition of any appointing power-by the general assembly therein contained, but leaves that prohibition to operate, with full force and effect, upon the appointments in. question.

The clause of article 7, section 2, that “the directors of the penitentiary shall be appointed or elected in such manner as the general assembly may directand that of article 2, section 27, that “ the election and appointment of all officers, and the filling of all vacancies-not otherwise provided for by this constitution, or the *constitution of the United States, shall be made in such manner as may be-directed by law,” are equivalent to each other. When the legislature directs,” it directs by law. Its appropriate voice is the voice of law. The prohibition attached, by way of proviso, expressly to the one, applies equally to both, and is no more in conflict with the one than with the other.

But, it may be asked, what then is the use of the latter clause?— what is its office in the constitution ? I reply, none whatever. It was regarded as a mere redundancy by some of the members of the-constitutional convention, at the time it was under consideration, there. Its introduction into the constitution, however, is readily accounted for by reference to what appears in the debates, vol. 1, 539, 540. The different articles of the constitution were the work,, 'originally, of different committees, which came before the convention as reports from such committees respectively. The line of demai’kation between the subjects of' consideration properly devolving: upon these committees, respectively, not being always plain and distinct, their reports occasionally overlapped upon each other, and ■the redundancies thus arising were sometimes increased by amendments made in convention. Such was the case in respect to these • clauses of the constitution. Article 2, section 27, was the work originally of the committee on the legislative department; article 7,section 2, was reported by the committee on public institutions. The latter, as originally reported, gave the appointment of directors of the penitentiary, as well as that of trustees of the benevolent institutions of the state, exclusively to the governor and senate ; and, in convention, it was amended so as to read as it now stands in the constitution. The amendment was adopted, as is apparent from the debates, to qualify the appointing power conferred on the executive by the original report, and to enable the general assembly to provide for the filling of the office of director of the penitentiary, either ■by election or by appointment, at its discretion.

We conclude, therefore,

1. That the selection and designation, by name, of the defendants, by the general assembly, to exercise continuously, and as a part of the regular and permanent administration of the govern*ment, important public powers, trusts, and duties, is an appointment to office.

2. That these appointments are clearly prohibited to the general .assembly by the constitution, are not within any exception to such prohibition, and are, therefore, null and void.

Thus far we have reasoned mainly from the terms of the constitution, and have derived our conclusions from what appears upon the face of that instrument. But if, departing from these, we look into the debates of the convention which framed the constitution ; into the history there afforded of the section of the constitution under which the great question in this case arises ; into the intentions of the framers of the constitution as expressed in debate; into the discussions before the great constituent body, the people, pending the question of the adoption of the constitution, after the convention had completed its labors; and into the mischiefs arising under oqr former constitution, and intended to be remedied by the section in question of the new one, we shall find abundant confirmation, and, it seems to me, demonstrative evidence, of the correctness of the view we have taken, and of the conclusions at which we have arrived.

1. As to the history of section 27, article 2. In the report to the ■convention by the committee on the legislative department, this section originally stood thus: “ The appointment of all civil officers not otherwise directed by this constitution, shall be made in such mariner as-may be directed by law; provided, however, that no appointing power shall ever be vested in or exercised by the general assembly the prohibition being without any exception whatever. 1 Debates, 164. Subsequently (Id. 259), Mr. Stidger moved to amend this section by adding the words, “ except the appointment. of the officers of their own body.”

It was argued in convention then, as it is argued in this ease ■ here, that such exception was unnecessary, inasmuch as the general assembly in its aggregate capacity did not appoint officers of its own body. But the argument was unsatisfactory to the *convention, and, to avoid all question on the subject, the amendment was adopted, together with another amendment moved by Mr. Reemelin, so that the section.then read as follows:

“ The appointment of all civil officers, not otherwise directed by this constitution, or the constitution of the United States, shall be made in such manner as may be directed by law ; provided, however, that no appointing power shall ever be vested in, or exercised by the general assembly, except the appointment of officers of their own body.” 1 Id. 260.

This was while the convention was sitting in committee of the whole. Afterward, the amendments aforesaid having been reported to the convention by the committee of the whole, the same were there adopted without further amendment. 2 Debates, 164. Subsequently (Id. 286), the report on the legislative department, with pending amendments, was recommitted to the committee which reported it. The matter being reported back without substantial change (Id. 318), and various unimportant verbal amendments made (Id. 318, 319, 568, 569), the same was engrossed (Id. 633), referred to a select committee of one, reported back without amendment, and then passed, and referred to the committee on revision, arrangement, and enrollment. Id. 662, 664.

Thus at the time when that which is now section 27 of article 2 of the constitution was agreed on in convention, and was referred to the committee on revision, arrangement, and enrollment, the only exception to the general prohibition of all appointing power to the general assembly was embodied in these words: “Except the election of officers for their own body, and United States senators.”

The duties of that committee are indicated by its name. They ■■were of a literary and clerical character. To initiate constitutional ¡provisions was no part of its proper office. But it took, on reference, what had been previously agreed on, after full discussion in ‘Committee of the whole and in the convention proper, and arranged the subject-matter under appropriate heads, revised and corrected the language, and attended to its enrollment. That committee, without any further discussion or action by the convention, reported back the report on the legislative department *in the precise language in which it appears as article 2 of the constitution ; and, without discussion, amendment, or proposition to amend it, in any way, it was ordered to be enrolled. Id. 832, 833.

There can be no doubt, we think, that the change of phraseology in this section, reported by the committee on revision, from “ except in the appointment of officers of their own body,” to except as prescribed in this constitution,” was designed simply to ■cover and include the quasi power of appointment in the senate, in the way of confirmation of executive nominations.

It seems to me hardly possible that the report of the committee ■on revision should have been thus finally adopted without remark, amendment, or attempt to amend, unless that committee and the ■convention had alike understood the report to be at least the subastan tial equivalent of what had before been settled in convention.

From this history of the section in question, it is apparent, beyond controversy, that the convention, in its adoption, understood the exception to extend no further than to the election of their ■own officers by the two houses of the general assembly, the power of confirmation by the senate, and the election of United States •senators.

2. This is also apparent from what was said by members in debate. Mr. Eeemelin, though not the chairman of the committee ■on the legislative department, was understood to have drawn up its report; and on him was largely devolved the task if its explanation and defense. It was matter of objection and complaint, ■on the part of several members of the convention, that there was •an undue distrust of the legislature manifested by the committee in its report, and that it had been too stringent in the restriction of its powers of patronage and appointment. Yet, in the face of those objections and complaints, he expressly declared the purpose of the committee to be, “that no appointing power — not the least vestige — would be left to the general assembly.” 1 Debates, 259. And with these open and undisguised declarations as to its purpose and object, his report was, in this respect, adopted, with no other than merely verbal amendments, or such *as were intended to guard against possible conclusions never contemplated by the committee itself.

3. The constitutional convention closed its labors on the 10th day of March, 1851; and the question as to the adoption or rejection of the constitution it had framed, was submitted to a vote of the people on the 17th of June following. Pending the question upon the adoption of the new constitution, and while it was under discussion before the people, how was the matter before us then regarded? In reply, I hazard nothing in saying, that among the most prominent reasons, on the ground of which the adoption of the new constitution was urged and advocated, was this : that, by its provisions all political patronage whatsoever, through the medium of appointments to office, except as before mentioned, was taken from the legislature. This single provision, in view of the evils it was intended to remedy, and the virtues it was designed to beget, probably attracted to the support of the proposed constitution thousands of votes which would otherwise have been withheld. In proof of this, in is necessary but to appeal to the memory of living men, and to refer to the journ'als of that day.

The existence of legislative patronage was a prominent mischief, inducing the calling of a constitutional convention. The annihilation of such patronage was a leading remedy aimed at by it. With or without foundation, it was generally believed that a practice had grown up, among members of the legislative bodies, to barter votes for offices in exchange for votes for laws, and votes for laws in exchange for votes for offices; thus corrupting the streams of legislation at the fountain-head. And it was sought by the convention and the people, by means of the broad and sweeping prohibition contained in the 27th section of the second article of the constitution, to keep the sources of law pure; to place an impassable barrier between the legislature and even the temptation to corrupt or unworthy action; and to confine it to its single, and legitimate, and highly honorable function — the passage of general, well considered, and durable laws, for the promotion of the permanent well-being of the people. If this decision, by preserving the integrity of tin; constitution, in so important *a particular, and enforcing the clear and manifest intentions of those who framed and those who adopted it, shall tend in-any degree to those ends, we shall be amply compensated for any censure which the irritation consequent upon personal or partisan disappointments may occasion.

The demurrer to the information is overruled ; and, counsel for the defendants not desiring leave to answer, a judgment of ouster will be entered.

J. R. Swan, J.,

concurring.

I. The first question to determine is, whether the powers and-duties vested in the board of appointment, by the laws under consideration, are of a public official character; in other words, whether William Kennon and others, are authorized to perform official public acts of such a nature' as constituted them public officers ?

The power of selecting individuals to fill offices of public trust is one of the highest and most important public functions which can be conferred upon an individual. This power in monarchical governments, is a prerogative of the king, annexed to and forming-one of the highest attributes of sovereignty. It is the only official power conferred on the president of the United States, which is felt throughout all the ramifications of governmental and political action.

This power must, necessarily, be derived from the constitution or government. If conferred exclusively on an individual or board, the government can not be administered until the individual’ or board sets it in motion by filling the offices. And when this power is exercised either by an individual, such as a king, or by two or more individuals, formed into a board, their act in appointing officers is one of the official procedures of the government, public and official from its very nature, and from the fact that the power thus exercised is a political function derived from the government.

By the laws under consideration, aboard of appointment is constituted, upon which is devolved the trust to select, and the power to appoint, directors of the penitentiary and commissioners-*of the state-house. The board -is also clothed with the power of filling vacancies in the office of directors when such shall occur by death, removal, or otherwise; and to remove directors for certain causes, and appoint others in their place.

In the exercise of these powers, the board of appointment is-made a public tribunal, not only to select, appoint, and fill vacancies in state offices, but to sit in judgment upon the official conduct of state officers, and remove them for certain causes, and appoint others in their place. These powers are not casual or temporary. In supervising the conduct of state officers, and filling vacancies,, they are continuous and permanent. The discretion and powers,, which the board is authorized to exercise, manifestly relate directly to, and form an integral part of, the due administration of the public affairs of the state.

The learned counsel in behalf of William Kennon and others,, had not the boldness to deny that the board constituted by these laws, was clothed with public official functions; and it can not be-even plausibly contended but that the board is vested with authority and power to act in matters relating to the public interest. In. so saying, it is simply announcing the definition of an office. Indeed, the selection and appointment of state officers, and the filling; of vacancies, are among the highest powers and most delicate public trusts that can be delegated, for upon their proper exercise depends the whole action of the government; and I am at a loss to-understand how it can be said, that a board of appointment,, created, by a statute of the state, to exercise these powers and trusts, deriving its sole authority to meet, select, and appoint state officers,, and remove them, from a law of the state, is, notwithstanding, a. private board, meeting on its own private business, and selecting- and appointing state officers, and removing them and filling vacancies-on its own individual authority.

That the term of office of the board of appointment, under these-laws, in the absence of any express limitation, might continue for-life, does not diminish, in any degree, the nature or importance-of their public functions; nor the less indicate that the incumbents of this board of appointment hold offices. The amount of ♦emoluments, or whether an officer receives any emoluments at all, has never been deemed a necessary element to constitute an office. Offices without powers or duties are sometimes created merely as sinecures; and the only evidence of the office may be the salary.

But where powers and duties of a public nature are required to-be performed, by a law of the state, they fix the character of the-individual authorized to perform them, and, whether paid or not,; he holds an office. If a board had the power, for. life, of dispensing ■the official patronage of the government, and removing and filling vacancies, the members of it might be content with the power and the honor; and they would not be less officers, or less in the exercise of public functions, because they received no salary.

It seems to me, beyond doubt or question, that the power and discretion of selecting and appointing directors of the penitentiary and state-house commissioners, and removing and filling vacancies as provided in these laws, vested in the board of appointment public official functions, and, consequently, that the incumbents of such board, in the exercise of their official public duties, were constituted officers of the state.

It is said the board were not required, by the laws, to take an official oath. There is nothing in this position. If these laws had provided for an official oath, they would have simply enacted what the constitution itself required. It would have been mere supererogation.

II. If, then, these laws vested in this board of appointment public official powers, and thereby created offices, could the general assembly fill these offices by appointing the members of the board?

We have nothing to do in this case with the question, whether the general assembly could, by law, create such offices, or clothe a board with the powers given by these laws; nor with the question, whether the power of appointment should be, or could be, devolved ■upon the people at largo, through the ballot-box ; or should be, or •could be, annexed to existing offices; nor, indeed, with the manner in which this high and important public trust, of appointing and removing public officers, should be provided for by the general assembly. For the purposes of this case, it may *be conceded that the general assembly have authority, under the constitution, to clothe a board with all the powers of appointment and removal of directors of the penitentiary and state-house commissioners, as provided by the laws under consideration. For, conceding, in the broadest sense, that the general assembly may enact a law directing that a board shall appoint and remove officers and fill vacancies, the question still remains, whether'the board itself, thus created by the general assembly to exercise these public functions, and, being officers, can be appointed by the general assembly.

Upon this question, it seems to me only necessary to refer to the plain words of the constitution. It provides, in the first place, that “ the election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution or the constitution of the United States, shall be made in such manner as may be directed by law.” Now, providing .by law the manner in which an appointment shall be made, and making the appointment itself, are two different things : the first is pointing out the mode in which a thing shall be done, and the other is doing the thing itself; the one is legislative and directory, the other administrative. But the constitution does not leave the matter to this distinction. The same section further provides: “ But no appointing power shall be exercised by the general assembly, except as prescribed in this constitution, and in the election of United States senators ; and in these cases the vote shall be taken viva voce.” Appointing power by the general assembly is thus cut up by the roots, except only in the special eases in which it is expressly given by the constitution itself.

This section of the constitution, in first authorizing the general assembly to provide by law for the manner in which appointments shall be made, expressly limits that manner by unconditionally, and without reservation, taking from the general assembly appointing power, except in the election of United States senators, and in those cases which are prescribed in the constitution itself.

It is not pretended that the constitution has prescribed the appointment of this board. Where then, in the constitution, is the ^appointing power of the general assembly, which authorizes them to appoint the officers of this board ? Appointments shall be made in such manner as may be directed by law; but no appointing power shall be exercised by the general assembly.” Such is the language of the constitution, and it admits of no escape or evasion, by which the general assembly can create an office and fill it by their own appointment.

But it is said that, inasmuch as the general assembly have power to direct by law the manner in which elections and appointments to office shall be made, and may in the exercise of this power annex it by law to some existing office, such as the governor virtute officii, there is, practically, no difference between the general assembly vesting the power in individuals designated by name, as in the laws before us, or annexing the power to an existing office.

This line of argument will not, in this case, bear the slightest examination, for, if it were true, it would have no application to the case before us. But it has not, perhaps, the usual merit of a false position — plausibility. Let us examine it.

If it be conceded that the general assembly could, or if it be conceded that it could not, annex to an existing office, such as the office of governor, with the consent of the senate, the power of appointing directors of the penitentiary and state-house commissioners, it would not in any manner touch the question before us; for the laws we are now considering, instead of annexing to any existing office the power of appointment, etc., have, in the first place, provided for a board of appointment, clothed with public functions, and without providing for the manner in which the offices of this board should be filled, have directly selected and appointed the members of the board, thereby exercising, in respect to the board, the appointing power.

Whether, therefore, there be any difference between the general assembly creating an office and appointing the incumbent thereof, or annexing the power of appointment to an office already existing and filled, has no application whatever to the case before us.

But it may be proper to inquire whether there is not a difference *in this respect; that is, whether the general assembly in fact exercise the appointing power, by annexing to an office already existing and filled, the power of making appointments and filling vacancies.

If the general assembly annex to an office already existing and filled additional powers and duties, upon what ground can it be claimed that this is the exercise by the general assembly of the appointing power? Certainly upon this only, that the general assembly has enlarged or added to the powers and duties of an existing office. But this is really absurd; for, if adding to the duties or powers of existing offices is an exercise of the appointing power, then every new duty required, or power conferred upon any state, county, or. township officer, must be deemed the exercise by the general assembly of the appointing power, and forbidden by the constitution.

But these fallacious positions arise out of a misapprehension of what is meant by the exercise of the appointing power. An office, until filled, is an impersonal thing — aD incorporeal hereditament. It is filled by the exercise of the appointing power, and when filled, the office and officer both exist. The office itself may by law be enlarged in its powers, or new duties enjoined, without touching the appointment or tenure of office of the incumbent or his successor. It would therefore seem highly probable, although the question is not before us, that the general assembly could, without displacing or appointing a governor of Ohio, annex to the office of governor the power of appointing directors of the penitentiary, oi the duty of performing any other legitimate executive function.

If the general assembly conferred upon the incumbent of the gubernatorial chair official public powers as an individual, so that he would continue to exercise the powers thus conferred, whether he continued to hold the office of governor or not, it would seem quite manifest, to my mind, that the general assembly created an office in such case, and exercised the appointing power.. But these questions are not before us, except to comment upon with a view to aid those who seem to be unable to distinguish between an office and an officer — between official powers conferred by law *upon and annexed to an office, and the individual incumbent or officer.

The whole case is within a nutshell. The board was vested with official functions, and could not, therefore, be appointed by the general assembly.

Although it is clear, beyond any question or doubt, in our minds, that these laws are unconstitutional and void, it is proper to add, for the benefit of those who suppose that a board like this may be appointed by the general assembly, that the public functions of this board are not confined, simply, to the appointment of offices and filling vacancies; but they sit as a public tribunal, upon the official conduct of state officers, and, for causes stated in the law constituting the board, may remove the directors of the penitentiary. It is not a board created to fulfill only the requirements of the constitution in regard to appointments, but is vested with public functions which have no reference to appointments or the filling of vacancies; so that, if the general assembly had power to appoint officers to make appointments, we have heard no argument or view which would authorize the general assembly to appoint a board clothed with the power to supervise the official conduct and remove state officers.

It is proper to add further that the third section of article seven of the constitution gives the governor the power of filling vacancies in the office of directors of the penitentiary; but one of the laws under consideration, notwithstanding, confers this power upon the board of appointment

The questions before us have been so far misapprehended, that it is necessary to say distinctly, that we do not decide whether a board of appointment, such as these laws create, may or may not be constitutionally created; for it is unnecessary to decide it. But we hold that the general assembly can not appoint the officers of such a board. Whether the general assembly can annex the power of appointment of the directors of the penitentiary and state-house commissioners to the office of governor, or to any other existing office or board, we do not decide, simply because the question i» not before us.

Bartley C. J., dissented. Scott and Sutliff, JJ., concurred.


author: Crew, J.

text:
    The State of Ohio v. Schiller.

      Murder in first degree — Trial of indictment for — Court charges jury — That they may recommend mercy — And states effect of such recommendation — Such instructions of court are correct and not error — Question of recommendation for pardon.

    1. On the trial of an indictment for murder in the first degree where the court instructs the jury that if they shall find the defendant guilty as charged, they may, if they think proper, recommend mercy; and further instructs them that the legal effect of such recommendation by them will be to change the punishment of the accused from death to imprisonment in the penitentiary for life, such instruction is a correct and sufficient charge or instruction on that subject.
    2. On the trial of such indictment, the court is not required’to instruct the jury that no person so convicted and imprisoned “shall be recommended for pardon by the hoard of pardons, or for parole by the board of managers of the penitentiary, except upon proof of innocence established beyond, a reasonable doubt;” and the omission to so instruct the jury is not error.
    (No. 8714
    Decided March 8, 1904.)
    Error to the Circuit Court of Mahoning county.
    At the May term, 1903, of the court of common pleas.of Mahoning county, the defendant in error,. Michael Gr. Schiller, was indicted, tried and convicted of the crime of murder in the first degree,, for the killing of his wife, Mary' Schiller. , The defendant in error filed his motion for a new trial, alleging and specifying therein as reasons why a new trial should he granted him: First, That the court, of common pleas erred in admitting, over the objection of the defendant, the testimony of one, Mike Louch, who testified as to a conversation had with, the defendant in the city prison of' the city of Youngstown, two days after the commission of the alleged crime, and while Mary Schiller was yet alive,, in which conversation the accused told witness, “that if Mrs. Schiller recovered he would soon be-out of there, and then he would kill her if he had to follow hér to the old country to do it.” Second, That the court erred in giving instructions to the jury in this: “That he did not state to them the full legal effect of finding the accused guilty of murder in the first degree with a recommendation of mercy.” Third, That “the verdict is not sustained by sufficient evidence and is contrary to law. ’ This motion for new trial was, at the same term, to-wit: on July 29, 1903, overruled by the court and. thereupon the defendant, Michael Gr. Schiller, was duly sentenced to be electrocuted on November 10, 1903. Error was prosecuted by said Michael GL Schiller to the circuit court of Mahoning county,, where the judgment of the court of common pleas was reversed, for alleged error in the charge to the jury, of the trial court, and the cause was remanded to said court of common pleas for further proceedings. The plaintiff in error herein, now seeks a reversal of this judgment of the circuit court, and asks an affirmance of the judgment of said court of common pleas.

      Mr. J. M. Sheets; Mr. W. B. Graham and Mr. Frank L. Baldwin, for plaintiff in error.

      Mr. Frank L. Oesch and Mr. B. G. Huey, for defendant in error.
   Crew, J.

On the hearing of this case in the circuit court upon the petition in error of Michael Gr. Schiller, that court set aside the verdict of conviction and reversed the judgment of the court of common pleas, on the sole ground that said court of common pleas erred in its instruction to the jury touching the law which gives to a jury, on the trial of an indictment for murder in the first degree, the right, upon conviction of the accused, to recommend mercy. The finding and judgment of the circuit court as shown by the entry upon its journal under date of November 6,1903, was as follows: ‘ ‘ The said parties appeared by their attorneys, and this cause was heard upon the petition' in error, together with the original papers and pleadings, and a duly certified transcript of the orders and judgment of the court of common pleas of said county, in the case of The State of Ohio v. Michael G. Schiller, and was argued by counsel; on consideration whereof, the court find that in the record and proceedings aforesaid, there is error manifest upon the face of the record to the prejudice of the plaintiff in error, in this, to-wit: That there is error in the charge of the trial court to the jury, in that the court failed to charge what would be necessary for the accused to show in order to obtain pardon, in case of the verdict of guilty of murder in the first degree* with a recommendation of mercy if made by the jury, and that there are no other errors apparent on the record. It is therefore considered, ordered and adjudged by this court, that the judgment and proceedings of the said court of common pleas, in said action be. and the same hereby are, set aside, reversed and held for naught,” etc. * * *

That the circuit court was right in its finding that there was no error apparent upon the record in said proceedings, judgment and trial in the court of common pleas, except it be found in the charge of the court as stated in this entry, counsel for defendant in error seem now to concede, for no claim or contention is made by them in this court, either in oral argument or in their printed brief, that such finding of the circuit court was unwarranted or erroneous. Neither is it claimed, or even suggested here, that the trial court erred in the admission of testimony, or that the verdict of the jury was not sup-ported by competent and sufficient evidence. Nor do we find in this record, after a careful examination of the same, anything which, in our opinion, would warrant or justify such claim or contention, if made. There is presented then by this record, for our consideration, the single question, did the court of common pleas err in its charge to the jury, or in its failure to charge and instruct the jury, as to just what effect the conviction of defendant, with a recommendation of mercy, would have upon his right thereafter to receive a pardon or obtain a parole. Section 6808, Revised Statutes, provides as follows: “Whoever purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating, or attempting to perpetrate, any rape, arson, robbery, or burglary, kills another, is guilty of murder in the first degree and shall be punished by death, unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life. Provided, however, that murder in the first degree as herein defined shall continue to be a capital offense within the meaning of the constitution. And provided, further, no person convicted of murder in the first degree shall be recommended for pardon by the board of pardons, or for parole by the board of managers of the penitentiary, except upon proof of innocence established beyond a reasonable doubt.”

In the charge and instruction submitted to the jury, the trial court, after defining murder in the first degree, and after carefully and correctly describing and defining the several lesser crimes embraced and included in the charge as made in the indictment, and after instructing the jury that it was competent for them, if under the law the evidence should justify and warrant it, to acquit the defendant of the principal charge — that of murder in the first degree — and to find him guilty of either of the lesser crimes embraced or included in said indictment, said to the jury as follows: £ £ The forms of verdict covering the different aspects of the crime charged in this indictment will be given you on 'retiring, and you will use such form as conforms to your finding of fact. The first is that of a general verdict, finding the defendant, Michael Schiller, guilty of murder in the first degree, as he stands charged in the indictment. The second form is exactly like the first with the addition of four words, which are, ‘The jury recommend mercy.’ The statute of this state, as changed some years ago, provides that the jury may, in a case where it finds the defendant guilty of murder in the first degree, if it thinks proper, recommend mercy; the legal effect of such recommendation being to change the penalty of death, fixed for the simple finding of murder in the first degree, to imprisonment for life. ’ ’

It is admitted that the instruction thus given, touching the effect of a recommendation of mercy is, so far as it goes, unobjectionable and free from error; but it is insisted by counsel for defendant in error, and was so held by a majority of the circuit court, that the trial judge should have gone further, and should have advised and instructed the jury, that no person convicted of murder in the first degree, with a recommendation of mercy, shall be recommended for pardon by the board of pardons, or for parole by the boai’d of managers of the penitentiary, except upon proof of innocence established beyond a reasonable doubt; and it is argued here that it is not enough that the court should have said to the jury that if they should find the defendant guilty of murder in the first degree, and should recommend mercy, that the legal effect of such recommendation would be to make his punishment imprisonment in the penitentiary for life, but that it became, and was the imperative duty of the court to go further, • and call their attention to the last proviso of section 6808, Revised Statutes, and to instruct and advise them, that one so convicted cannot be recommended for pardon by the board of pardons, or for parole by the board of managers of the penitentiary, except upon proof of innocence established beyond a reasonable doubt; and it is claimed that the failure of the court to so advise and instruct the jury was error, for which the judgment of conviction in this case was properly reversed by the circuit court. We do not concur in this view, and cannot assent to the correctness of this claim. In this case the trial judge fully, fairly and cor-. rectly instructed the jury as to the rules of law that should govern and control them in their consideration of the evidence in determining the question of the guilt or innocence of the accused; and instructed them that if they should find the defendant guilty of murder in the first degree, it would be their privilege, and their right to recommend mercy, and further informed and instructed them as to the effect such recommendation would have, upon the penalty or punishment to be imposed; the language of the charge- in that behalf being as follows: ' ‘ The legal effect of such recommendation being to change the penalty of death, fixed for the simple finding of murder in the first degree, to imprisonment for life.” The jury was thus correctly advised, not only as to their right to recommend mercy, but as to the effect of such recommendation as well. More than this the defendant was not entitled to. Yet, notwithstanding the fact that the jury was thus told by the court, in express terms and in plain and positive language, that if they found the defendant guilty, and recommended mercy, his punishment would be imprisonment in the penitentiary for life, we are asked in this case to indulge the presumption and to assume as a fact that the jury withheld such recommendation of mercy merely because they were not instructed by the court that after conviction and sentence of the defendant, the board of pardons would not be at liberty and was without right except upon proof of innocence to recommend his pardon or release. We find nothing in this record to warrant such inference or conclusion, or to justify any such holding, especially in view of the fact that the jury was told, without qualification, that his punishment would and must be, in case they recommended mercy, imprisonment for life. No request was made by defendant, or his counsel, for any further or additional charge on this subject, and no objection was made or exception taken to this particular portion of the charge as given. The only exception taken or noted by counsel for defendant, being a general exception to the charge as a whole. It is a familiar and very general rule of practice, applicable alike to criminal and civil causes, that mere partial non-direction, or incomplete instruction, as to a particular matter or issue, does not of itself constitute reversible error, in the absence of a request for more specific and comprehensive instructions upon the particular point or issue involved. In the majority opinion of the circuit court in this case, the judge announcing the same, in commenting upon that portion of the charge of the trial court last above quoted says: “He (the trial judge) says, in case you recommend mercy ‘the legal effect of such recommendation is to change the penalty of death, fixed-for the simple finding of murder in the first degree, to imprisonment for life;’ rather than death, the legal effect will be imprisonment in the penitentiary for life. No, no. It is not the legal effect of finding him gnilty of mnrder in- the first degree, with the recommendation; that is not the legal effect of it. The legal effect of it was to shift the penalty to imprisonment in the penitentiary for life, with the provision that follows in the statute, that under no circumstances shall he be released unless he makes his innocence appear beyond a reasonable doubt. That is the legal effect of it. We insist that when he told the jury that the legal effect, if they found the party guilty of murder in the first degree, with the recommendation of mercy, would be imprisonment for life, he did not state the fact, to the jury as defined by the law, but the legal effect j as charged, would be imprisonment in the penitenti- j ary for life, with the addition to it, that neither the! governor, nor board of pardons, nor the warden of j the penitentiary* nor any other person affected, could ] release him, except upon, proof of his innocence beyond a reasonable doubt.” With all due respect to the learned judge who delivered this opinion, we submit that he misconceived and misinterpreted the scope and effect of the last proviso of section 6808, Revised Statutes. Had the trial court charged the jury, as suggested in this opinion of the circuit court, that if they found the defendant guilty of murder in the first degree and recommended mercy, that the effect of such recommendation would be to shift, or reduce his punishment to imprisonment in the penitentiary for life, but without the right or possibility of pardon, except upon proof of his innocence beyond a reasonable doubt, such charge would have been both misleading and erroneous, and would have, been a misstatement both of the law and the fact. By section 11, article 3 of the state constitution, the governor is invested with full power to pardon for all crimes and offenses, except for treason and in cases of impeachment, and the right so given is in nowise affected or abridged by the last proviso of section 6808, Revised Statutes. Neither is the right of the governor to exercise this pardoning power dependent upon the action or recommendation of the board of pardons, for it is provided by section 409-49, Revised Statutes, that: “The governor shall have full power, notwithstanding the action of said board, to grant or reject any application for the granting of a pardon, commutation of sentence, or reprieve, if, in his judgment, the public interests would thereby be promoted.”

We have very carefully examined the record in this case and find no error in the record arid proceedings of the court of common pleas. After such examination we are entirely satisfied that the defendant in error, Michael G-. Schiller, was fairly tried, was rightfully convicted and that this judgment of conviction should be affirmed. It follows therefore that the judgment of the circuit court should be, and the same hereby is, reversed, and the judgment of the court of common pleas is affirmed.

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

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


author: By the Court.

text:
    Stevenson v. The State of Ohio.

      Defendant in a criminal case — Other than capital offense — Entitled to hut two peremptory challenges — Section 5117, Revised Statutes — Granting each party four challenges — Applies only in civil causes.

    1. A defendant on trial in a criminal case, for other than a capital offense, is entitled to challenge but two jurors peremptorily.

      2. The last paragraph of section 5177, Revised Statutes, as amended April 29, 1902 (95 O. L., 308), giving to each party the right to challenge peremptorily four jurors, furnishes the rule and determines the right of peremptory challenge, only in civil causes. It has no application in criminal cases.
    (No. 4871
    Decided March 1, 1904.)
    Motion for leave to file petition in error.

      Messrs. Scott $ Peck; Messrs. Boothman & Newcomer and Messrs. Harris & Cameron, for plaintiff in error.

      Mr. Ed%vard Gaudern, prosecuting attorney, for defendant in. error.
   By the Court.

At the October term, 1903, of the court of common pleas of Williams county, the plaintiff in error, William Stevenson, was tried and convicted of the crime of arson. A motion for new trial was made and overruled and thereupon he was by said court sentenced to imprisonment in the Ohio penitentiary for the term of four years. From this judgment of the court of common pleas error was prosecuted to the circuit court of Williams county, where, on January 16, 1904, said judgment was affirmed and the cause was remanded to said court of common pleas for execution of sentence. The case is now here upon the application of plaintiff in error for leave to file in this court a petition in error to reverse the judgments of the courts below. It appears from the record in this case that on the impaneling of the jury to try this cause in the court of common pleas, the accused, William Stevenson, demanded the right to challenge peremptorily four of the jurors summoned in said cause, and the bill of exceptions herein recites that: “Thereupon the jurors being sworn upon their voir dire counsel for the state peremptorily challenged two jurors and the counsel for the defense peremptorily challenged two jurors, and thereupon counsel for defendant asked leave to exercise a third peremptory challenge, and did challenge one C. T. Wyatt,,a juror, peremptorily, which challenge the court did overrule, to which ruling of the court counsel for the defendant at the time excepted.” This ruling and action of the court in overruling the defendant’s peremptory challenge to the juror Wyatt, which was the third peremptory challenge exercised by defendant, is here assigned as error. The single question presented by this assignment is whether or not under our statutes, since the amendment to section 5177, Revised Statutes, passed April 29, 1902 (95 O. L., 308), giving to each of the parties to a civil, action the right to peremptorily challenge four jurors, the defendant in a criminal case is entitled to have and may rightfully exercise a like number of peremptory challenges in a criminal prosecution. The determination of this question necessarily involves a consideration of certain of the statutory provisions relating to and governing the right of challenge respectively, in civil and criminal cases, and especially does it involve a consideration of the construction and effect proper to be given to paragraph or subdivision nine of section 7278, Revised Statutes, hereinafter considered.

Section 5176, Revised Statutes, enumerates and defines what shall be good ground for principal challenge, or challenge for cause, in civil cases. These are nine in number, and with but a single exception none of them are ground for challenge in a criminal prosecution, except in so far as they are made so by adoption, by force of the provision of paragraph nine of section 7278, Revised Statutes. Section 5177, as amended April 29, 1902, provides for challenges to the favor and for peremptory challenges in civil cases, and gives to each of the parties to a civil action the right to challenge peremptorily four jurors. Section 7277 of the criminal code prescribes the number of peremptory challenges that shall be allowed the defendant in a criminal prosecution, and section 7278 of the criminal code enumerates and defines what shall be ground for challenge for cause in criminal cases, and after enumerating eight grounds or causes for principal challenge, it is provided by the ninth paragraph of said section that: “The same challenges shall be allowed in criminal prosecutions that are allowed to parties in civil cases.” No other or further right of challenge for cause, or of peremptory challenge, is given by statute, to the defendant in a criminal prosecution, except |>y section 7272, Revised Statutes, in capital cases.

It is the claim and contention of plaintiff in error, that under favor of the provisions of paragraph nine of section 7278 above quoted, that since the amendment to section 5177 of the civil code there is permitted and allowed to defendant in a criminal case not only the same challenges for cause, but the same number of peremptory challenges as is by • said amendment given and allowed to each of the parties in civil cases. Such was not, we think, the purpose- and intention of the legislature in amending section 5177, Bevised Statutes, nor is any such effect to be given said amendment because of the provisions of' paragraph nine of section 7278, Bevised Statutes.. The legislature in this state has enacted separate and distinct codes of procedure to govern the practice in civil and criminal cases, and in each has expressly provided what challenges, for cause and peremptory,, shall be allowed the parties in each particular class, of cases, yet nowhere in the criminal code is any provision to be found that in terms gives to a defendant-more than two peremptory challenges in a criminal case, except in prosecutions for capital offenses. If' then the legislature had intended to make so important a change as to give to a defendant four peremptory challenges in a criminal case, where theretofore but two such challenges had been permitted or allowed, it is hardly reasonable to assume that it. would have undertaken to effect such purpose by amending a section of the statute which related and' applied exclusively to practice in civil cases, rather than by amending and extending the provisions of' the section of the criminal code defining and prescribing the number of peremptory challenges allowed a. defendant in a criminal case, thereby leaving such result to be effected and accomplished, if at all, by mere inference or construction instead of by positive enactment. That paragraph nine, as originally enacted, was not intended to apply to, or to include, peremptory challenges, but that its purpose and-office was merely to so extend the right of challenge-in criminal cases as to embrace and include therein the grounds of principal challenge, or challenge for-cause, in civil cases, affirmatively appears from the: language of such provision itself. As originally-passed, May 6, 1869 (66 O. L., 307), this provision read as follows: “The same challenges for cause shall he allowed in criminal prosecutions that are allowed to parties in civil cases.” By subsequent revisions of the section, of which this paragraph was a. part, the phraseology of the section has been changed and the words “for cause” have been omitted from this paragraph, yet the change so made is not such as to evidence any design or purpose on the part of the legislature to thereby extend its provisions or to make them apply to causes of challenge other and different from those specified in the paragraph as. originally enacted, and the rule is well established by the repeated adjudications of this court that “in the revision of statutes neither an alteration in phraseology nor the omission or addition of words in the latter statute, shall be held necessarily to alter the' construction of the former act. And the court is. only warranted in holding the construction of a statute, when revised, to be changed, when the intent of the legislature to make such change is clear, or the. language used in the new act plainly requires such change of construction.” State ex rel. v. Commissioners of Shelby County, 36 Ohio St., 326; State v. Vanderbilt, 37 Ohio St., 640; State ex rel. v. Stockley, 45 Ohio St., 308.

The right of peremptory challenge is purely a statutory right, and can only be exercised in such cases, and to the extent expressly authorized and allowed by statute. In Ohio, under our code of criminal procedure, the only right of peremptory challenge expressly given a defendant in a criminal case, other than in capital cases, is that given by section 7277, Revised Statutes, which is as follows: “Except as. otherwise provided the prosecuting attorney and every defendant may peremptorily challenge two of the panel, and any of the panel for cause.” As to the right of peremptory challenge, it is only “otherwise provided” by section 7272, Revised Statutes, in capital cases, wherein the defendant is entitled to challenge sixteen of the jurors peremptorily. Goins v. The State, 46 Ohio St., 460. The court of common pleas was therefore right in this case in limiting the defendant, Stevenson, to two peremptory challenges. As to the other assignments of error, we think it enough to say that we have carefully examined and considered all of them and find no error in the record.

Leave refused.

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