author: Shauck, C. J.

text:
    The State of Ohio v. Fendrick.

      City police court — Exercises jurisdiction within four miles outside city — Jury drawn wholly in city — May try misdemeanor, when.

    A police court of a city exercising its jurisdiction to try a person charged with a misdemeanor committed outside of the city limits, but within four miles thereof, does not err in overruling a challenge to the array of jurors, the challenge being upon the ground that they have been drawn wholly from within the limits of the city.
    (No. 10438
    Decided December 3, 1907.)
    Error to the Circuit Court of Franklin County.
    Clara Fendrick was arraigned before the police court of the city of Columbus on charge of a misdemeanor committed in Franklin County, but about two hundred feet south of the south corporation line of the city of Columbus. She entered a plea of not guilty. A jury being drawn for the trial of the charge, she challenged the array upon the ground that she resided, and her offense was alleged to have been committed, beyond the corporation limits of the city, while the jury was drawn wholly from within the limits of the city. Her challenge was overruled, and upon a trial she was found guilty, and an appropriate sentence followed the verdict. Upon her petition in error the court of common pleas affirmed the judgment, and the circuit court reversed the judgments of both the common pleas and the police courts.

      Mr. George S. Marshall, city solicitor, and Mr. Charles E. Carter, assistant city solicitor, for plaintiff in error.

      Mr. C. D. Saviers, for defendant in error.
   Shauck, C. J.

There appears to be neither doubt nor occasion for it that a valid statute confers upon the police court jurisdiction of the offenses of the character of this if committed within the limits of the city, or within four miles thereof. The circuit court reversed the judgment because it was of the opinion that the challenge to the array of jurors should have been sustained upon the ground that the offense was charged to have been committed without the city, while the jurors were all drawn from within the city. This did not result from chance, because there is no provision for drawing jurors from without the city limits for service in the police court of the city. It being admitted that the police court had jurisdiction of the offense, and that no statute or ordinance required the drawing of jurors from territory without the city limits, the judgment of the circuit court is erroneous, unless some constitutional right of the accused was denied her. The opinion of the circuit court is before us, and it appears to give controlling effect to Olive v. The State, 11 Neb., 1, and Armstrong et al. v. The State, 1 Coldwell’s, 338, in which it was held that the trial district and the jury district must be the same. In following those cases the circuit court rejected the views expressed in State, ex rel. Brown, v. Stewart, 60 Wis., 587; State v. Robinson, 14 Minn., 447, where the contrary conclusion was reached upon the same question. The conclusion of the circuit court is also in conflict with federal decisions respecting the districts throughout which federal courts have jurisdiction and the districts from which juries must be drawn.

Looking to the reasons involved, unless a constitutional guaranty has been disregarded, there can be no valid objection to the view of the subject taken upon the trial. It is manifest that if the jury had been drawn from the entire district embraced in the jurisdiction of the police court, the same jury might have been drawn and impanelled. It is equally manifest'that from whatever district the jurors were drawn, their qualifications would necessarily be the same, and that the chance result would not have affected the impartiality of the trial. But since the consideration of equivalents is not permissible where constitutional guaranties are involved, and since such guaranties may not be disregarded because in particular cases they do not appear to be of materiality or importance, we have to inquire whether there is a guaranty of that character by which the present question is affected. The only provision of the constitution appearing to have any relation whatever to the subject is that of the tenth section of the first article, that the party accused shall have “a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” The primary purpose of this provision is to fix the place of trial. All that is required as to the jury is that it shall be impartial. As to the pláce of trial, the substance of the right conferred is that “it shall be in the county or so near thereto that the accused may have the benefit of his own reputation and that of his witnesses, and that he may, with as much certainty and as little expense and delay as are practicable, secure the attendance of his witnesses” (State, ex rel., v. McCarty, Judge, 52 Ohio St., 363). The impartiality of the jury is required by the statute under which this panel' was drawn. Neither a comprehensive view of the purpose of the guaranty nor a narrow view of the terms used will justify the conclusion that an accused person may not be tried by an impartial jury of the county in which the offense is alleged to have been committed. The judgment of the circuit court is reversed and that of the common pleas affirmed.

Reversed.

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


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    The State of Ohio v. Roderick.

      Accused indicted for murder — May prove character of deceased — ■ From general reputation — Evidence of particular acts — Not admissible, when — Criminal lazu — Rules of evidence.

    1. When the person accused in an indictment for murder is defending on the ground of self-defense, he may prove that the deceased was a person of violent and dangerous character and that such character of the deceased was known to him at the time of the affray.
    2. In general the mode of proving the violent and dangerous character of the deceased is by showing that such was the general reputation of the deceased in that community and at that time and that such reputation was known to the defendant; hut the defendant can not he permitted to prove, for the purpose of showing reasonable ground for apprehension of bodily injury or loss of his life, particular instances of violence or viciousness. on part of the deceased, which did not concern the defendant and at which the latter was not present and of which he has no personal knowledge.
    (No. 10643
    Decided December 17, 1907.)
    Exceptions to the Court of Common Pleas of Franklin County.

      Messrs. Webber, McCoy, King & Game, for the state.
    . When a particular trait of character is in question, it is competent to offer evidence of the general character of the person with reference to that particular vice. Duval v. Davey, 32 Ohio St., 610, overruled the decision in Dewit v. Greenfield, 5 Ohio, 225.
    We contend, however, that if evidence of the general bad character of the deceased person is to be offered at all, it can only be done when it appears that the character of the deceased, in the respect in question, was known to the defendant at the time of the commission of the crime. People v. Lamb, 54 Barb., 342; State v. Turpin, 77 N. Car., 473; Hudson v. State, 6 Tex. App., 565; Cannon v. People, 141 Ill., 270; McCombs v. State, 8 Ohio St., 643.
    The character can not be impeached by evidence of particular acts, but only by general evidence of reputation in that respect. McDermott v. State, 13 Ohio St., 334.
    When general character is spoken of as the limit to which the inquiry is to be extended, the expression is used to exclude particular transactions.
      Gandolfo v. State, 11 Ohio St., 116; Griffin v. State, 14 Ohio St., 62; Bell v. Rinner, 16 Ohio St., 46.
    On a trial for murder, the prisoner may, for the purpose of showing that the homicide was justifiable on grounds of self-defense, prove that the deceased was a person of violent, vicious and dangerous character, and that his character was known to defendant at the time of the recontre between them. Upthegrove v. State, 37 Ohio St., 662.
    In the last case the court said that the rule announced “was declared to be the law in the following cases.” Among these cases cited is that of Nichols. v. People, 23 Hun, 165. Now, if our supreme court intended, as they say, to adopt as the law in Ohio the principles laid down in Nichols v. People, then we feel certain that it is the rule in Ohio that when the character of the deceased is offered in evidence, it can only be the general character and no specific instances can be given.
    The inquiry in chief should, in a case like this, be confined to the general character or reputation of the deceased as a peaceable or dangerous man, and special circumstances can be gone into only upon cross-examination. Thurman v. State, 4 C. C., 144.
    While we feel that the law of this state upon the point in question has been settled by the decisions of the courts above referred to, still we desire to refer to a few authorities; all of which we think will coincide with what we believe to be the rule of law in Ohio. Eggler v. People, 56 N. Y., 642; Conley v. Meeker, 85 N. Y., 618; People v. Druse, 103 N. Y., 655; Peterson v. Morgan, 116 Mass., 315;. McLaughlin v. Cowley, 131 Mass., 70; McCarty v. People, 51 Ill., 231; Hirschman v. People, 101 Ill., 568; Forshee v. Abrams, 2 Ia., 575; Gordon v. State, 3 Ia., 410; State v. Abarr, 39 Ia., 186; Sterret v. State, 71 Ia., 386; State v. McGee, 81 Ia., 17.
    In State v. Beird, 118 Ia., 474, it was held that bearing upon the question of who was the aggressor, the defendant may show as part of the res gestae, particular acts of violence toward others, of which the defendant had no knowledge because it was part of the course of conduct of the deceased immediately preceding the affray and which continued up to the affray; it was part of the res gestae with reference to the intention or disposition with which the affray was entered into by him; previous conduct of a party charged with a crime which immediately precedes and is connected with the criminal act, may be shown as a part of the res gestae for the purpose of proving the intention with which the act was done.
    This perhaps would be good law in Ohio, but in the case of State of Ohio v. Roderick there were no such facts present, as the evidence offered and admitted, related entirely to different quarrels with different persons, covering a period of time of from three months to over a year prior to the time of the commission of the crime charged.
    The same principle of law is also settled in Berneker v. State, 40 Neb., 816; Patterson v. State, 41 Neb., 538; Walker v. State, 102 Ind., 502.

      In a homicide trial, evidence of special acts of violence by the defendant against another person, at a different time and place, would not be admissible because the prisoner could not be presumed to meet any such testimony or explain it, and its introduction might seriously prejudice the jury.
    We maintain that if the above rule would hold good with reference to the defendant, that is, his inability to meet these special instances, then- it would apply equally well with reference to the admission of specific instances against the deceased, for surely the deceased being dead, could not possibly appear and defend himself.
    We simply contend that there is no principle of law decided which permits third persons to testify as to the details of specific acts of the deceased, not part of the res gestae and occurring between third persons and the deceased and which have no reference to the crime charged in the indictment. People v. Smith, 26 Cal., 666; People v. King, 28 Cal., 270; Carthaus v. State, 78 Wis., 564; Heffington v. State, 54 S. W. Rep., 757; Pritchett v. State, 22 Ala., 42; Hussey v. State, 87 Ala., 131; Moriarity v. State, 62 Miss., 661; Jenkins v. State, 80 Md., 72; Betts v. Lockwood, 8 Conn., 488; Gore v. Curtis, 81 Me., 403; State v. Ferguson, 71 Conn., 232; State v. Leonard, 3 Ore., 157; State v. Mims, 36 Ore., 315; Snyder v. Commonwealth, 85 Pa. St., 519; Alexander v. Commonwealth, 105 Pa. St., 1; Bishop on Criminal Practice, Vol. 1, Secs. 1117, 1118; Ency. of Law & Procedure, Vol. 21, 910; Rice on Criminal Evidence, Secs. 375, 376, 377; Wharton on Plomicide (1907), Sec. 271.

      Mr. J. S. Walker and Mr. Franklin Rubrecht, for defendant.
    What we claim is this, after showing knowledge on the part of,,the defendant of the various acts of the deceased constituting violent and dangerous attacks made by him on other persons under our claim of self-defense in resisting an assault made on the defendant, he had a right to introduce evidence of persons who were present, to prove the facts as they saw and heard them, as reflecting on the state of mind of - the defendant at the time that shot was fired. Such evidence of specific acts disprove malice, and went far in the direction of substantiating the reason defendant had for believing himself in danger. Marts v. State, 26 Ohio St., 162; Turner v. State, 5 C. C., 542; Henning v. Bartz, 15 Cir. Dec., 17; Culley v. Walkeen, 80 Mich., 403; Godfrey v. White, 60 Mich., 443; State v. Beird, 118 Ia., 474; People v. Harris, 95 Mich., 87; Wharton on Criminal Evidence, 8th Ed., Sec. 69.
   Davis, J.

The defendant was indicted for murder in the second degree. Under his plea of not guilty, the defendant admitted that he fired the fatal shot but claimed that the shooting was in self-defense. The defendant himself testified that the deceased was the aggressor, that he was a man of violent and dangerous character and that it was known to him that such was the character of the deceased, the defendant, at the time of the alleged murder. He also testified that he was a witness to two manifestations of the deceased’s quarrelsome and dangerous disposition. Thereafter certain witnesses for the defendant testified that they had the means of knowing the “general character” of the deceased as á violent and vicious man and that his character in that respect was bad; and these witnesses, as well' as others who did not qualify as to their knowledge of the general reputation of the deceased in that respect, were permitted, notwithstanding objections on behalf of the state, to testify to particular cases of quarrelsome and violent conduct on the part of the deceased, at none of which was the defendant present or in any way concerned therewith.

It is conceded that in cases of self-defense it is competent for the defendant to prove the violent and dangerous character of the deceased at the time of the commission of the crime, if such character was then known to him. Marts v. State, 26 Ohio St., 162. It is also conceded that one of the appropriate methods of proving the character of the deceased in respect to those traits, is by proving that such was his “general character,” at that time and in that community, using the term “general character” in the sense of general reputation. Bucklin v. State, 20 Ohio, 18, 22-24. The plain ground of these rules of evidence is, first, that proof of the vicious character of the deceased, known to the prisoner, places the jury in a position to judge whether the prisoner entertained an honest and reasonable belief in the imminence of bodily harm to himself, and, second, that general reputation, as distinguished from mere isolated rumors, is the final judgment of the public respecting the character of an individual, as his traits and disposition have been repeatedly manifested through a more or less extended period of time. This view of the law is not in entire harmony with the following remarks which appear in the opinion in the Marts case, supra: “We suppose that evidence of the reputation of the deceased as being a vicious, violent, or dangerous person, could only be given after the introduction of testimony tending to show that such was in fact his character, and then only for the purpose of proving that the prisoner had notice of that character. In other words, the dangerous character of the deceased can not be proved by proof of his reputation, but notice of that character to the prisoner may be shown by proof of such reputation, in connection with proof that the prisoner had the means of knowing that reputation.” It will be observed that the question in the Marts case was whether or not the accused might be permitted to introduce evidence of the violent, vicious and dangerous character of the deceased, and 'that the mode of the proof of character was'not in question in that case, and we may add that the statement of the judge delivering the opinion of the court is clearly opposed to the weight of modern authority, and it seems to us, to reason also. See Upthegrove v. State, 37 Ohio St., 662; 1 Wigmore on Ev., Secs. 52, 63; 2 Ibid, Secs. 1608, 1609, 1610; State v. Turpin, 77 N. C., 473; State v. McIver, 125 N. C., 645; People v. Druse, 103 N. Y., 655, and cases there cited.

But the contention in behalf of the state is that general reputation as to the traits of character involved having been admitted, together with facts within the defendant’s personal knowledge, the inquiry must stop there; and that it can not be extended to narration of particular acts of the deceased, which were not of the res gestae, which did not concern the prisoner and at which he was not present and of which he could háve no personal knowledge. This is exactly as we understand the law to be (see numerous cases cited in 5 Am. & Eng. Ency. Law, 875, n. 3) ; but the trial court saw the problem in another light and admitted the testimony. The theory upon which the court admitted testimony as to such particular acts does not very clearly appear; but it seems to have been based on the dictum in the Marts case', to which we have alluded. Accordingly the defendant was permitted to prove the conduct of the deceased on other occasions, as indicating his actual character; and then the defendant was allowed to show that he had heard of those instances previous to his own affray with the deceased, in order to show the state of mind under which the defendant acted.

Plausible as this theory may seem, it has, so far as we know, failed to obtain a substantial footing in any jurisdiction where justice is administered according to the principles of the common law; because, first, reputation to be available as evidence must be common or general reputation, the crystallized estimate which people in general - have formed of the individual in the community where he has lived, and reputation does not consist of mere reports or rumors which may be true or false; because, second, to prove that a man was the aggressor in one case does not necessarily prove that he was the aggressor in the case. on trial; because, third, the policy of the common law is to keep close to the issue in the case on trial and not to allow the jury to be distracted in the determination of side issues, as numerous as the particular instances of conduct which may be offered in evidence; and because, fourth, while it may be presumed that the general reputation of an individual in the community where he has lived is always susceptible of proof or defense, nobody can be ready at a moment’s notice to defend against accusations relating to all the transactions of his life.

On this subject the judgments of this court have always been consistent in adhering to the rule that “character can be impeached only by evidence of general reputation and not by evidence of particular acts of misconduct. It should be what people in general say and not what others say.” Snyder v. Commonwealth, 85 Pa. St., 519. An apparent conflict exists between Dewit v. Greenfield, 5 Ohio, 225, and Duval v. Davey, 32 Ohio St., 604. In the latter case the rule stated in the former was regarded as too narrow, viz.: “In all the foregoing cases, the inquiry must be confined to the general good or bad character of the party;” but when the expression “general character” is construed in the light of what was said by the court in Bucklin v. State, ut supra, there is really no difference in the two cases.

Exceptions sustained.

Shauck, C. J., Price, Crew, Summers and Spear. IT., concur.


author: Spear, J.

text:
    Rockfield et al. v. The First National Bank.

      Third person places name in blank — On back of note before or at time of delivery — Liable as indorser and not surety — Entitled to notice of demand — Section 31JI et seq., Revised Statutes.

    Prior to the taking effect of the act of April 17, 1902, entitled “An act to establish a law uniform with the laws of other states on negotiable instruments,” a third person placing his name in •blank on the back of a promissory note before or at the time of delivery, assumed the position of a surety unless a different understanding between the parties was shown, and he did not thereby become an indorser in the legal sense of the term, nor contract any liability but that of maker. Ewan v. The BrooksWaterfield Co., 55 Ohio St., 596. But by force of said act (sections 3171. 3173^, 3i73h 3i'73L 3l73g, 31743 and 31780, Revised Statutes), such person so placing his name on the back of the paper by blank indorsement is an indorser and cannot be held in any other capacity. As such he is entitled, in- order to render him liable, to notice of demand upon those who are primarily liable, and failing such demand and due notice to him, he is discharged.
    (No. 10336
    Decided December 17, 1907.)
    Error to the Circuit Court of Clark county.
    Action was brought in the common pleas of Clark'by The First National Bank of Springfield against H. L. Rockfield, L. M. Goode, E. H. Ackerson, John Snyder, Frank Patterson and The Springfield, Charleston, Washington & Chillicothe Railway Company, to recover on a .promissory note, a copy of which follows:
    “$10,000. Springfield, Ohio, December 12, 1904.
    “On demand after date we jointly and severally promise to pay The First National Bank of Springfield, Ohio, or order, at its banking house Ten thousand dollars for value received, with six per cent, interest after date.”
    “(Signed) The Springfield, Charleston, Washington & Chillicothe Railway Company.
    “H. L. Rockfield, President, E. IT. Ackerson, Secretary.”
    On the back of the note appeared these names: “John Snyder, Frank Patterson, L. M. Goode, E. H. Ackerson.”
    The petition avers that there were no credits and that there were due plaintiff from defendants ten thousand dollars with interest from date. It further avers that the defendants, Rockfield, Goode, Ackerson, Snyder and Patterson indorsed the note before it was delivered to plaintiff; that due demand had been made of each defendant July 5, 1905, but no part had been paid.
    Demurrers were interposed by defendants, Rock-field, Snyder and Ackerson, which being overruled those defendants answered admitting that they indorsed the note before delivering it to plaintiff, but averred that they indorsed it for accommodation only, receiving no consideration whatever for so indorsing the note. Also that defendants were not notified of the non-payment of the note by the maker at maturity, and, therefore, were not indebted to the plaintiff in any sum. To this answer plaintiff demurred. This demurrer was sustained, and the answering defendants not desiring to plead further, judgment was rendered against them for the amount claimed and costs. On error to the circuit court this judgment was affirmed. Rockfield and Snyder, by this proceeding, ask a reversal of the judgments below.

      Mr. James Johnson, Jr., and Mr. W. R. Horner, for plaintiffs in error.
    The only question in the case arises on the construction of the new Negotiable Instruments law, passed April 17, 1902, found in 95 O. L., 162.
    It appears from the copy of the note in the petition that the indorsement was in blank. There is no allegation in the petition that the plaintiffs in error sustained any other relation to the note than indorsers, but it is alleged that they indorsed the note before is was delivered.
    We contend that the indorsers were entitled to notice of non-payment.
    Owing to the anomalous character of such an indorsement there was a wide diversity of holding by the courts of England and the United States as to its legal effect. What was the liability of such an indorser?
    Some courts held that the obligation was that of first indorser. Others held it to be that of second indorser. Others that it imports a contract of guaranty. Others that the signer was liable as a surety and some that no obligation was incurred. In England such an indorsement was held to impose no liability^ whatever. 1 Ames Cas. B. & N., 269.
    The rule referred to in the books as the' “Massachussets” rule held that such a signature creates a liability as surety. Moies v. Bird, 11 Mass., 436.
    This rule was afterwards called in question by the Supreme Court of Massachussets in Bank v. Willis, 8 Metc., 504.
    Another rule, known as the New York rule, held that the liability of a stranger who signed his name on the back of a negotiable instrument before delivery is that of an indorser. Coulter v. Richmond et al., Admrs., 59 N. Y., 478; Phelps v. Vischer, 50 N. Y., 69.
    This rule prevailed in many states. Temple v. Baker et al., 125 Pa. St., 634; Delsman v. Friedlander et al., 66 Pac. Rep., 297; Comparree v. Brockway, 11 Hump. (Tenn.), 355; Perkins v. Catlin, 11 Conn., 213; Price v. Lavender, 38 Ala., 389; Cady v. Shepard, 12 Wis., 639; Bank v. Dreydoppel, 134 Pa. St., 499; Daniel on Negotiable Instruments, Vol. 1, Sec. 713d; De Pauw v. Bank, 126 Ind., 553; Jennings v. Thomas, 13 S. & M. (Miss.), 617.
    In Ohio the supreme court followed the rule that an indorser in blank before delivery is liable as surety.
    • This rule was followed and stated in Ewan v. The Brooks-Waterfield Co., 55 Ohio St., 596.
    This hopeless confusion as to liability caused great difficulty in commercial transactions, and the necessity of some uniformity was constantly pointed out by the courts and writers.
    Fortunately this confusion has been largely removed by the passage in many states of the Negotiable Instruments law, which follows generally the “English Bills of Exchange Act.”
    This law fixes the liability as that of an indorser in due course.
    The Massachusetts rule above quoted was abrogated by statute whicK provides “all persons becoming parties to promissory notes by a signature in blank on the back thereof shall be entitled to notice of non-payment the same as an indorser.” Massachusetts Statutes, 1874, Ch. 404; Bank v. Law et al., 127 Mass., 72; California Code, Sec. 3117; Fessenden v. Summers et al., 62 Cal., 484; Fisk v. Miller, 63 Cal., 367.
    The following states and territories have adopted the “Negotiable Instruments law”: Ohio, Arizona, Colorado, Connecticut, District of Columbia, Florida, Iowa, Maryland, Massachusetts, New Jersey, New York, North Carolina, North Dakota, Oregon, Pennsylvania, Rhode- Island, Tennessee, Utah, Virginia, Washington, Wisconsin. See Eaton & Gilbert on Commercial Paper, 653.
    This law as given in Eaton & Gilbert, 654 et seq., is the same as the Ohio law.
    The legislature of Ohio recognizing the desirability of uniformity on this important subject and following, the implied suggestion by the supreme court in the language above quoted from Ewan v. The Brooks-Waterfield Co., supra, passed the law April 17, 1902, 95 O. L., 162.
    The first-section of the act, Section 3171, defines a negotiable instrument and describes the maker.
    We confidently assert that Section 3173/1, and the next disposes of the question in this case. Under the old rule in Ohio the status of one who placed his signature in blank on the back of a note, was not by that act alone fixed. He might be shown to be a guarantor, an indorser or a surety. But by this section his status is fixed as that of an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.
    Of course in the case at bar the plaintiffs in error come under subdivision one of Section 3173*. The note was payable to a third person (the bank) and plaintiffs in error were liable (as indorsers) to the payee and all subsequent parties.
    If a note would come under subdivisions 2 and 3, the indorser before deliver)^ would not be liable to payee, but would be liable to “all parties subsequent to the payee,” but always and only liable as indorser.
    This Section 3173! lays down the conditions under which the irregular indorser (one who indorses in blank before delivery) is liable to the payee and all subsequent parties and then the conditions under which he is liable only to the “parties subsequent to the payee.”
    The defining of these conditions is the only object of that section. It says so.
    But the section itself carefully and explicitly declares that the liability is that of indorser.
    But under whatever class he would come, of those enumerated, the section fixes his liability to be that of indorser. The old rule in Ohio as declared in Ewan v. Brooks-Waterfield Co., supra, in second proposition of syllabus, is — The undertaking of a third person who places his name in blank on the back of a note before delivery, etc., is that of surety of the maker for the payment of the note, etc.
    In Rhode Island the old rule was that an irregular indorser in blank before delivery was liable as joint maker. In 1899 t,he Negotiable Instruments act was passed in that state. See Downey v. O’Keefe, 59 Atl. Rep., 929; Thorpe v. White et al., 188 Mass., 333; 73 N. E. Rep., 644; Cyc. of Law & Procedure, Vol. 7, 673.
    The indorsers were entitled to notice that the note had been presented to the maker and payment refused.
    Notice that the maker has not paid is the thing that is required.
    He only contracts to pay in case he is notified that the maker has not paid. Section 3173A Revised Statutes; Bank v. Law et al., 127 Mass., 72.
    For additional authorities, see: Gibbs v. Guaraglia, 67 Atl. Rep., 81; Baumeister v. Kuntz, 42 So. Rep., 886; Farquhar Co. v. Higman, 112 N. W. Rep., 557; Vander Ploeg v. Van Fuuk, 112 N. W. Rep., 807.

      Messrs. Hagan & Hagan and Messrs. Martin & Martin, for the Bank, defendant in error.
    The legal propositions involved may be stated thus:
    1st. When the name of a third person is placed upon a joint and several note prior to its delivery, such person’s undertaking rests upon the consideration which supports the note, and the legal presumption is that he is one of the makers, and a surety thereon, unless he can show that there was a different agreement or understanding between the parties.
    2d. That such original promisor upon such note is primarily responsible thereon, and as such, under the Negotiable Instruments act, is not entitled to notice of non-payment.

      Since the case of Douglas v. Waddle, 1 Ohio, 414, decided in 1824, up to the present time, a period of eighty-three years, through an uninterrupted course of decisions applicable to the various forms of negotiable instruments and other obligations, the principle stated in the first proposition has been clearly and definitely established.
    Irrespective of the form of the note, or the order in which the names appear thereon, the responsibility of the parties is primarily determined by the fact whether their names were placed upon the instrument prior to delivery, or subsequent thereto. If prior to delivery, then they are makers or sureties. If after delivery, they are not makers or sureties, unless the facts show that they intended to become such.
    The most important of the decisions of our supreme court, announcing and affirming these principles for almost a century, are: Bright v. Carpenter et al., 9 Ohio, 141; Stage v. Olds, 12 Ohio, 159; Champion v. Griffith, 13 Ohio, 228; Robinson v. Abell, 17 Ohio, 36; Gale’s Admx. v. Van Arman, 18 Ohio, 336; Seymour & Co. v. Leyman, 10 Ohio St, 283, s. c. 15 Ohio St., 515.
    A résumé and a reaffirmation of these prior decisions, with a historic statement of the antiquity of the rule, is found in the case of Castle v. Rickly, 44 Ohio St., 490.
    The latest decision is that of Ewan v. The Brooks-Waterfield Co., 55 Ohio St., 608.
    It is claimed by counsel for plaintiff in error that this rule of law so well established in Ohio, has been abrogated by certain provisions of the Negotiable Instruments law enacted by the legislature of this state prior to the execution of the promissory note here in controversy.
    Counsel for plaintiff in error contend that such is the legal effect of two sections of said law, viz., Section 3173/4 and Section 31734, Revised Statutes.
    It is said in favor of this view, that the purport of these sections is that where a person places his name on the back of a negotiable instrument before delivery thereof, he must be conclusively deemed an indorser in the technical legal sense.
    The claim is untenable, as appears by the very language of said sections. The name must be placed upon the instrument otherwise than as maker, drawer or acceptor, to make the signer such indorser.
    We have seen that the rule of law independent of the statutes, is that where one places his name on a promissory note prior to its delivery, it is presumed that he is a maker thereof, unless he shows a different agreement to the contrary, between the parties.
    He is not placing his signature upon the note as an indorser, but as a maker; he is not placing his name upon it “otherwise than as maker, drawer or acceptor thereof.”
    It will be noticed that Section 3173/4 applies equally to a case where a name is placed on a note after its delivery, and to a case where it is so placed before its delivery, to the payee.
    The Negotiable Instruments law removes all questions as to the status of the person so placing his name on the note “otherwise than as maker, drawer or acceptor,” by declaring he shall be deemed an indorser, “unless he clearly indicates by appropriate words his intention to be bound in a different capacity.”
    Section 31734 covers only cases where one not otherwise a party to an instrument places thereon his signature in blank before delivery, and provides that he shall be held liable as an indorser.
    The phrase “a person not otherwise a party” occurs in this section, and of course means not “maker, drawer or acceptor,” mentioned in the preceding section. The two sections are to-be read together and considered as a whole. The key is the word “party.”
    There is nothing in these sections which sets aside the rule stated in Ewan v. Brooks-Waterfield Co., supra, that a person placing his name on a negotiable instrument prior to its delivery is presumed to be a maker, as surety.
    What was notice to plaintiff that defendants had signed their names on the back of the note, or in popular parlance, had “indorsed” the note for accommodation merely, other than information to plaintiff that defendants were merely sureties on the note ?
    The supreme court in Ewan v. Brooks-Waterfield Co., as hereinbefore stated, accurately gives the legal definition of an indorser and his relation to the note.
    Another definition of a technical indorsement is found in Richards, Exr., v. Waring et al., 39 Barb., 42; Eaton & Gilbert Neg. Instruments, 319.
    Hence, a contract of guaranty is not an “indorsement.” Trust Co. v. National Bank, 101 U. S., 68; Ridley et al. v. Hightower, 112 Ga., 476, 37 S. E. Rep., 733.

      The words “indorse” and “indorsee” have a popular, as well as a technical meaning. Redden v. Lambert, 112 La., 740.
    There is nothing in our view of the law which in any way conflicts with Sections 3173/2 or 31732, Revised Statutes. The whole matter is made very clear and simple by assigning to these sections their function, which is to define the status of irregular indorsers of negotiable paper, that is, the status of those who sign their names on the back of such instruments, or in the popular parlance, “indorse” them, but not as makers, drawers or acceptors.
    The Negotiable Instruments act did not change the legal meaning of the term indorser. Clearly, it intended to preserve the distinction which had heretofore existed, otherwise there would have been no necessity for the two sections, which provide for the liability of a general indorser, and the liability of a regular indorser.
    If the legislature proposed to make no distinction between the party who places his name upon the back of a note before delivery, and one who does so thereafter, as a means of transfer in the chain of title, it would have done so by an explicit statement to that effect. This was done by the California Statute, Section 3117. Bank v. Babcock, Jr., 94 Cal., 96, 29 Pac. Rep., 414. Or, as was provided by statute in Massachusetts, statutes of 1874, Chap. 404, 18 L. R. A., notes, 34, a party who places his name upon the back of an instrument before delivery is the original promisor, with the rights of a surety. As such, he is primarily liable upon the instrument, and absolutely required to pay it.
    This holding is in accord with a recent decision of the Supreme Court of North Carolina, under the Negotiable Instruments act. Rouse et al. v. Wooten, 53 S. E. Rep., 430.
   Spear, J.

Whether or not the answer avers a defense to the cause of action set up in the petition is the question here. The theory of the defendants’ pleading is that Rockfield and Snyder, by writing their names across the back of the note, became indorsers in the' commercial sense, and therefore entitled to notice of demand at maturity of the maker and of non-payment, and, failing that, no liability attached. The theory of the petition is that these defendants, having signed the note before delivery, must be held to have signed with the purpose of giving it credit and of aiding negotiability, and therefore stand as makers, and although their names appear on the back of the instrument, and they are in law sureties, yet they are not indorsers in the commercial sense and therefore not entitled to notice of demand and non-payment. This view is the one adopted by the trial court which incorporated in the judgment entry a finding that the defendants are indebted as joint and several makers of the note, and this is the view taken of the question by the circuit court in affirming the judgment of the common pleas. Which is the correct view is the question we have. And here it is proper to express our obligation to the learned counsel whose ample and luminous briefs have greatly aided in our examination and disposition of the case.

That the conclusion adopted by the lower courts is in accord with the law as held in this state from early times, and with all decisions of this court thus far made, is conceded. The latest deliverance on the subject is the case of Ewan v. The BrooksWaterfield, Co., 55 Ohio St., 596, opinion by Williams, C. J. It is there held that where the name of a third party, a stranger to the note, appears in blank upon the back of the note at the time it takes effect, his undertaking rests upon the consideration which supports the note, and the presumption is that he intended to be liable as a surety, and he will be held accordingly unless it is shown that there was a different agreement between the parties. This conclusion is reached after a careful and somewhat extended review of authorities, many of them decisions of this court, and is supported by strong and convincing argument. While a contrary doctrine, holding such party to be an indorser in the commercial sense, had been held in a number of states, notably Alabama, California, Connecticut, Indiana, Mississippi, New York, Oregon, Pennsylvania and Wisconsin, the Ohio rule, as above indicated, had been the settled common law rule of the states of Arkansas, Colorado, Delaware, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, North Carolina, Rhode Island, South Carolina, Texas, Utah and Vermont.

The statute referred to is the act of April 17, 1902, known as the Negotiable Instruments act (95 O. L., 162), carried into the Revised Statutes as. sections 3171 to 3178»' inclusive, the particular sections relied upon being 3171, 3173A, 3173^ 3l73k> 3I73(1> 3l74g and 3178a. By the provisions of these sections a negotiable instrument must be in writing and signed by the maker or drawer. The person primarily liable is the person who by the terms of the instrument is absolutely required to pay the same, all others being secondarily liable. A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor,” is deemed to be an indorser unless he clearly indicates, by appropriate words, his intention to be bound in some other capacity. Then follows, as to liability, this: Where a person not-otherwise a party to an instrument places thereon his signature in blank before delivery, he is liable as indorser: 1. If the instrument is payable to the order of a third person, he is liable to the payee and to all subsequent parties. 2. If the instrument is payable to the order of the maker or drawer, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer. 3. If he signs for the accommodation of the payee he is liable to all parties subsequent to the payee. Every indorser who indorses without qualification, guarantees to all subsequent holders the genuineness of the instrument, the title, the capacity of previous parties to contract, etc., and engages that on due presentment, the instrument shall be accepted or paid or both, as the case may be, and that, if it be dishonored and the necessary proceedings' on dishonor be duly taken, he will pay the amount thereof to the holder or to any subsequent indorser who may be compelled to pay it. Presentment for payment must be made at a reasonable hour on a business day at a proper place, to the person primarily liable on the instrument, or if he is absent or inaccessible, to any person found at the place where the presentment is made. When such instrument has been dishonored by non-acceptance or non-payment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged.

The question at issue very largely turns upon what is meant by the terms of section 3173b the substance of which we here repeat: “Where a person not otherwise a party to an instrument places thereon his signature in blank before delivery, he is liable as indorser,” etc. It seems to have been the view of the learned circuit court (see opinion by Dustin, J., 8 O. C. C., N. S., 290), that inasmuch as the liability defined by the rules following the above quoted portion of section 3173b does not differ essentially from the liability attaching to such party under the decisions of this court, that no change in the law can be presumed to have been intended by the general assembly in the enactment of the statute. Also that the subsequent provisions of the sections relating to indorsers and providing what shall be done to fix liability, etc., are not inconsistent with this conclusion because the later sections apply only to general indorsers, and in those sections every indorser is described as such, is called an indorser, while in the earlier section the party described is only to be deemed an indorser, and has the liability of an indorser only to a limited extent. The contention further is that the terms of section 3173/1 forbid the conclusion that such party is to be deemed an indorser in the commercial sense because he must, in order to have that effect, place his name on the back otherwise than as maker, and the rule is and was, that the person so placing his name is a maker unless he shows a different agreement between, the parties.

There is much plausibility in these contentions, and they would seem to be sound were it not for the incorporation of the words “as indorser” in section 31732. Had these words been left out of the section the construction claimed would not seem an unnatural one. But we are required, by the inexorable rule of construction, to give to them some signification, some meaning consistent with a rational purpose in placing them in the statute. The law makers were making law. They cannot be presumed to have been simply dealing with legal terms in a loose, popular sense. The word “indorser” has a distinct, clearly defined legal meaning. An indorser is one who undertakes to be responsible to the holder of the paper for the amount thereof, if the latter shall, at maturity, make legal demand of the payer, and in default of payment, give proper notice thereof to the indorser. The language of the section is plain and free from ambiguity. The words express a clear meaning. The party has placed his name upon the instrument where general indorsers sign. He is not a party to the note, but is a stranger. Section 3173k says he shall be deemed to be an indorser unless he clearly indicates by appropriate words his intention to be bound in some other capacity. He has not so indicated. He has used no words appropriate or otherwise. His status on the paper is, therefore, fixed by the emphatic words of the statute. Then follows the fixing of liability. He is liable “as indorser.” And how is that? Why, he must pay when, and only when, proper demand has been made of the maker at maturity and legal notice given him. This is clearly shown by what follows. Every indorser who indorses without qualification engages that on due presentment and dishonor, and due notice to him, he will pay. This expresses the extent of his liability; without these requisites being complied with he is discharged. And, then, as though to cover a doubtful situation, the provision is (section 3171/») that where the language of an instrument is ambiguous because of the signature being so placed that it is not clear in what capacity the person intended to sign, he is deemed to be an indorser. Of the rules prescribed by section 3-173?, it is enough to say that they are not inconsistent with the obligation of the general indorser. He, too, is liable to those who come after him as indorsers or holder. The important question is not to whom is such party liable but in what capacity, in what relation, is he liable?

The contention that the provision (section 3173&) to the effect that every indorser undertakes to pay if the instrument is dishonored and he has due notice applies only to general indorsers, we think untenable. The language forbids it. It is: “Every indorser who indorses without qualification,” etc. The word “every” is a term of inclusion. It embraces every party who, by previous provisions, is classed as an indorser unless his indorsement . has been qualified by appropriate words. Nor is the obligation as indorser imposed on the stranger an unreasonable one, for, if not content to assume the position of indorser, the opportunity to indicate upon the paper his intention to be bound in some other capacity is given him.

The contention that these later provisions relate only to general indorsers rests wholly on the assumption that in placing his name on the back in blank the stranger himself fixes his own position and that he has conclusively declared himself a maker; that is, thát he has placed his name as maker. But it seems a sufficient answer to this to say that he has not and could not, by a mere blank indorsement, so place himself, because the statute fixes his position. That position is important only as it relates to his liability, and the statute has said that that liability is “as indorser.” An indorser is not a maker or a drawer; not ope primarily liable. This conclusion ignores neither the words: “A person placing his name upon an instrument otherwise than as maker,” etc., nor the words: “Where a person not otherwise a party to an instrument places,” etc. Both sections must be construed together. Thus construed .they .simply describe a person who is not a party by the terms of the instrument. And he is not, in fact, such party in any possible sense at the time he places his signature. He remains a total stranger until he has placed his name on the back- and then the statute says he is an indorser.

But other considerations enter into the question. It is so much a matter of common knowledge as to make it proper to take judicial notice of the fact, that the act herein considered was enacted because of an effort on the part of the bar of many, if not all of the states of the Union,- to bring about a uniform system of law respecting negotiable instruments. In a substantial measure the effort has been successful. Of the states which had, by judicial decision, adopted the rule prevailing in this state, the legislatures of the following have enacted a Negotiable Instruments act substantially like that of Ohio, viz.: Colorado, Maryland, Massachusetts, North Carolina, Rhode Island and Utah. And it has been enacted also in the states of Connecticut, Florida, Iowa, New Jersey, New York, North Dakota, Oregon, Pennsylvania, Tennessee, Virginia, Washington and Wisconsin. Joyce on Defenses to Commercial Paper, at page 859, gives a list of thirty-two states and territories which have passed the act, including, in addition to the foregoing, the following: , Idaho, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, West Virginia, Wyoming. Also Arizona, New Mexico, and the District of Columbia. To these may be added the states of Alabama and Illinois, and the territory of Hawaii. All of these several statutes are not framed, in the particular here under investigation, in the exact language of the Ohio act, but it. is believed that they all embody the same principle, and it is manifest that one prominent motive leading to their enactment was the desire to establish a uniform law on the subject of negotiable instruments. And wherever these acts have received judicial interpretation in the several states this purpose has been recognized. See Fessenden v. Summers, 62 Cal., 484; Fisk v. Miller, 63 Cal., 367; Downey v. O’Keefe, 26 R. I., 571; Thorpe v. White, 188 Mass., 333; 7 Cyc., 673; Bank v. Law, 127 Mass., 72; Toole v. Crafts, 193 Mass., 110; Gibbs v. Guaraglia, 67 Atl., 81; Baumeister v. Kuntz, 42 So., 886; Farquhar Co. v. Higham, 112 N. W., 557; Vander Ploeg v. Van Fuuk, 112 N. W., 807.

That this purpose was prominent in the minds of the members of our general assembly in the enactment of the Ohio act is shown by the title of the act itself, which is: “An act to establish a law uniform with the laws of other states on negotiable instruments.” The desirability of such legislation had been long felt by commercial people of our state as well as by the judiciary and the bar at large. Indeed the learned jurist who reported the case of Ewan v. Brooks-Waterfield Co., supra, gives expression to that sentiment in his opinion. True, it is as suggested by the circuit court, that the act covers many phases of the subject and that the title does not apply especially to the subject of indorsement, but inasmuch as this very subject had been the source of irreconcilable conflict between judicial utterances in so many states, and that such differences of judicial interpretation of the common law had been so marked and these differences so recently emphasized by this court, and the importance of uniformity in the law on this particular phase of the general subjects had been so recently pointed out, it is inconceivable, it seems to us, that the general assembly, while treating the subject at large, should have failed to endeavor to establish uniformity respecting the position of indorsers and their liability to others connected with the paper. These considerations, if they stood alone, and if the language of the act were less plain than it is, would impose a duty upon this court to look for ground in the statute warranting the conclusion that the purpose of the act is to bring Ohio into harmony with the other states of the Union on so important a branch of the law as the relation of parties to commercial paper, but we are not compelled to resort to such an effort, for the plain, natural meaning of the language of the sections cited, as we think, fully warrants, if indeed it does not compel, the conclusion hereinbefore indicated, which conclusion is .also supported by a number of the cases hereinbefore cited. See Fessenden v. Summers; Fisk v. Miller; Downey v. O’Keefe; Thorpe v. White; 7 Cyc.; Bank v. Law; Toole v. Crafts; Gibbs v. Guaraglia; Baumeister v. Kuntz; Farquhar Co. v. Higham; Vander Ploeg v. Van Fuuk.

But another purpose seems to us to be indicated by this legislation. Not only were the courts of the country in conflict respecting the attitude and liability of a third party, a stranger, who placed his name in blank on the back of commercial paper, but the situation was in itself an anomalous one, calculated to lead, as it often did lead, to confusion respecting the duty of the holder of such paper with regard to demand and notice. Mistakes in this respect were easy and were frequently made, often resulting in litigation, and, not infrequently, loss. To clear this situation up, and to establish a plain, easily understood rule, and one of universal application, was surely a result of high importance to all who deal in commercial paper; and it seems to us that the desire to accomplish this purpose had much to do with inducing the enactment of the Negotiable Instruments act by our general assembly.

It follows from these conclusions that by force of' sections 3171, 3173/1, 3173Í WM* 3174g and 3178a; of the Revised Statutes, a person who, being a stranger to a promissory note, places his name on the back by blank indorsement, is an indorser of the paper and can not be held in any other capacity. As such he is entitled, in order to render him liable, to notice of demand upon those who are primarily liable, and failing such demand and due notice to him, he is discharged. The answer, therefore, stated a defense, and the sustaining of the demurrer and rendering judgment for the Bank upon the note was- error. Judgment reversed and cause remanded.

Reversed.

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


author: Summers, J.

text:
    The State, ex rel. Commissioners of Franklin County, v. Guilbert, Auditor.

      Employment and pay of expert witnesses — Section 1302-1, Revised Statutes — Bill of costs not to be paid out of state treasury.

    1. The compensation of expert witnesses for their services rendered under Section .1302-1, Revised Statutes (95 O. L., 282), is not costs that the statutes authorize to be paid out of the state treasury.
    2. The inclusion by the clerk of the court of common pleas of such compensation in the bill of costs of prosecution, and the certificate by the prosecuting attorney of the correctness and legality of such item, and its allowance by the warden of the penitentiary, do not make it the duty of. the auditor of state to draw a warrant for its payment.
    (No. 10536
    Decided December 17, 1907.)
    In mandamus.
    This is an original action in this court. The petition prays for a writ of mandamus directing the auditor of state to issue his warrant on the treasurer of state for the amount paid by the commissioners of Franklin county for the services of an expert witness in a case of murder in the second degree.
    It is averred in the petition, that on the trial, it appeared necessary to the prosecuting attorney to have the testimony of an expert witness; that a certain expert was subpoenaed and testified; that the expert presented a bill for his compensation; that the prosecuting attorney certified that the services were necessary; that the county commissioners allowed the claim, the trial judge approved it, the county auditor issued a warrant on the county treasurer for its payment, and that the , county treasurer paid it. It is further averred that the accused was convicted and sentenced to the penitentiary for life and to pay the costs of prosecution, and that thereupon a writ of execution against the property of the defendant was issued and returned by the sheriff “No goods, etc,” and that thereupon the clerk of the court made a complete bill of the costs in the prosecution and included therein the compensation paid said expert, and that the prosecuting attorney examined into the correctness and legality of each and every item therein charged and certified that each and every item was correct and legal, and it is averred that the bill of costs so certified was then .presented to the warden of the penitentiary, who allowed the same and certified such allowance, and that said bill, with such certificate of the warden, was then presented by the sheriff to the auditor of' state, who deducted the item for the compensation of the expert from the amount of the bill, and refused to issue a warrant for the payment of that item.
    The defendant has filed a general demurrer to the petition.

      Messrs. Webber, McCoy, King & Game, for relator.
    The compensation allowed an expert witness under Section 1302-1, Revised Statutes, when all the requirements of. that statute have been complied with, is a part of the costs in the case; and in a criminal prosecution is a proper item to be included in the complete bill of costs required to be made o under Section 7332, Revised Statutes, and to be paid by the state.
    This question involves the interpretation and construction of Sections 1302-1, 1306, 7332, 7333 and 7336, Revised Statutes.
    The very purpose of Section 1302-1, Revised Statutes; is to provide for the necessary payment of a necessary witness, and the necessary payment of a necessary witness is a necessary part of the costs of the action in which that witness appears.
    In case of a conviction for felony the justice of the peace, police judge or justice, mayor, marshal, chief of police, constable and witnesses shall be paid out of the county treasury and inserted in the judgment of conviction, so that except in capital cases the same may be paid to the county out of the state treasury. Section 1306, Revised Statutes.
    Now there is no distinction made here between an expert witness and any other witness. If he is a witness in the case he must be paid out of the county treasury. And expert witnesses are not excluded because they are to receive special compensation for their special services. According to this statute, the costs of witnesses shall be paid out of the county treasury, and inserted in the judgment of conviction, so that the same may be paid to the county out of' the state treasury.
    The word “costs” has a certain definite meaning as used in Section 7332, Revised Statutes, and in criminal proceedings.'
    Costs in criminal proceedings are those charges fixed by law which have been necessarily incurred in the prosecution of one charged with crime, as compensation to officers for their services, and disbursements to witnesses for their testimony. Am. & Eng. Ency. Pr., Vol. 8, 955; Albertson v. Kriechbaum, Sheriff, 65 Ia., 17; State v. Belle, 92 Ia., 258.
    The word “costs” includes those charges fixed by law or rule of court which the record shows have been necessarily incurred in the prosecution of an action or proceeding. Swartzel v. Rogers, 3 Kan., 380.
    Where, a criminal cost bill, properly certified as to its legality and the correctness of the items included therein, is presented to the auditor of state, such auditor has no authority to arbitrarily strike from such bill an item of costs on the grounds that the item is illegal or that it is not a proper claim against the state. But it is his duty under such circumstances to refer such item to those who by law are charged with the duty of determining the correctness and legality of the items included in such cost bill. Section 7332, Revised Statutes.
    If the auditor of state has some power to- finally determine the legality of a cost bill or an item of such bill, the provision of the statute enjoining this duty upon the prosecuting attorney is a vain and useless formality.

      Mr. Wade H. Ellis, attorney general, and Mr. W. EL Miller, for defendant.
    No contention is made- by defendant as to the right of the prosecuting attorney to employ an expert witness, or the county commissioners to compensate said witness in such amount as they may deem just and proper. Defendant’s contention is, however, that such compensation when paid by the county commissioners may not be included in the cost bill to be paid out of the state treasury. While it is true that Section 1306, Revised Statutes, provides for the payment of witness fees out of the county treasury, it is equally true that Section 1302 fixes such witness fees at $1.00 per day and five cents per mile, and no more. The expert witness in a case may be subpoenaed, compelled to attend upon the court and there testify the same as any other witness and is entitled to the same fees as provided in Section 1302, and such fees may be properly taxed in the “bill of costs.”
    If, however, it is deemed essential by the prosecuting attorney to the due administration of justice to enter into a special contract with such witness by reason of some special or expert knowledge he possesses relative to the issues involved in the trial such employment may be made under the provisions of Section 1302-1, and the county commissioners may allow said witness such extra compensation for his service rendered the prosecuting attorney in the preparation and trial of the case, as they may deem just and proper, but there is no authority of law to tax such extra compensation in the “bill of costs” to be paid out of the state treasury.
    Section 7332, Revised Statutes, contains no provision for including in the complete “bill of costs” the extra compensation paid a witness for his services as an expert under Section 1302-1.
    The word “costs” has a legal signification and-includes only those expenditures which are by law taxable. State, ex rel., v. Commissioners, 14 C. C., 26.
    The only witness fees that may be taxed in the bill of costs to be paid out of the state treasury in criminal cases are those provided for in Section 1302, Revised Statutes.
    The auditor of state is made the chief accounting officer of the state and no money can be lawfully drawn out of the treasury except upon , his warrant; and it is required that he shall not draw any warrant on the treasurer for any claim unless he finds the same legal. Sections 153 and 154, Revised Statutes.
   Summers, J.

Counsel for relator contend that a bill of the costs made in a prosecution would not be complete without including the compensation of the expert; and that the law having imposed upon the prosecuting attorney the duty of examining into the “correctness and legality of each and every item therein charged,” it is neither the duty nor the privilege of the auditor of state to pass upon the legality of any item so certified by the prosecuting attorney.

Costs, in the sense the word is generally used in this state, may be defined as being the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action or prosecution and which the statutes authorize to be taxed and included in the judgment or sentence. The word does not have a fixed legal signification. As originally used it meant an allowance to a party for expenses incurred in prosecuting or defending a suit. Costs did not necessarily cover all •of the expenses and they were distinguishable from fees and disbursements. They are allowed only by authority of statute, and the word not having a fixed legal signification, it does not follow that the compensation of the expert, though an expense, is costs made in the prosecution. The following sections of the Revised Statutes are cited as supporting the contention of the relator.

“(1302-1) Sec. 1. (Employment and pay of expert witnesses.) When, in the examination or trial of any person accused of the commission of crime, or upon inquiry before the grand jury it shall appear to the prosecuting attorney or the assistant prosecuting attorney to be necessary to the due administration of justice to procure examination by chemical or other experts, or the testimony of expert witnesses, the county commissioners may, upon the certificate of the prosecuting attorney or his assistant, that such services were or will be necessary to the due administration of justice, allow and to pay such expert such compensation for his services as the court approves and' as the commissioners may deem just and proper.”

“Sec. 1306. (When costs in criminal case paid out of county treasury.) In all felonies, when the defendant- is convicted the costs of the justice of the peace, police judge, or justice, mayor, marshal, chief of police, constable and witnesses, shall be paid out of the county treasury and inserted in the judgment of conviction, so that, except in capital cases, the same may be paid to the county out of -the state treasury; provided in all cases when recognizances are taken, forfeited and collected and in which there is no conviction said-costs shall be paid out of the county treasury.”

“Sec. 7332- (Cost bill in case of felony to be made up and certified.) Upon sentence of any person for felony, the officers claiming costs made in the prosecution shall deliver to the clerk itemized bills thereof, who shall make and certify, under his hand .and seal of the court, a complete bill of the costs made in the prosecution, including any sum paid by the county commissioners for the arrest and return of the convict on the requisition of the governor, or on the request of the governor made to the president of the United States, which said complete bill of costs shall be presented by the clerk to the prosecuting attorney and it shall be his duty to examine into the correctness and legality of each and every item therein charged, and to certify to the same if correct and legal.”

“Sec. 7333- (Writs of execution to issue on sentence.) The clerk shall immediately issue to the sheriff of the county in which the iijdictment was found, and to the sheriff of any other county in which the convict has property, executions against his property for the costs of prosecution, which shall be served and returned within ten days, with the proceedings of the sheriff indorsed thereon, or the want of property upon which to levy the same, as the case may be; when a levy is made upon property under such execution, a writ shall immediately be issued by the clerk for the sale thereof; and the sheriff shall proceed to sell the property as in other cases, and make return thereof according to law, and after paying the costs of conviction, and of execution of sale, pay the balance to the person authorized to receive the same.”

“Sec. 7336. (Warden shall certify correctness of cost bill, etc.) When the clerk certifies on the cost bill that execution was issued according to the provisions of this chapter, and returned by the sheriff indorsed, ‘No goods or chattels, lands or tenements, found whereon to levy/ the warden shall allow so much of the cost bill and charges for transportation as he finds to be correct, and certify such allowance, which shall be paid by the state.”

However, Chapter 30, Title IX, Revised Statutes, relating to fees and costs, comprising Section 1302, and Section 1302:i, was not enacted as supplementary to that chapter, or as amendatory of, or supplementary to, Section 1302, but as an independent act. It is entitled: “An act relating to the employment and pay of expert witnesses” (95 O. L., 282). It was passed April 28, 1902, and first appeared in sectional numbering in Bates’ Annotated Statutes, 4th edition, published in 1903. There is nothing in the act authorizing this expense to be taxed as costs, or to be paid otherwise than by the county commissioners. Nor is it at all certain that the statute would have authorized the payment of this expense from the state treasury if the act had been passed as supplementary to Section 1302.

The next contention is, that the duty of the auditor of state is merely ministerial, while the duty enjoined'on the prosecuting attorney is, “to examine into the correctness and legality of each and every item therein charged, and to certify to the same if correct and legal,” and that this requires him to pass judgment upon the legality of the item and that the legislature must have intended that his determination should be binding upon the auditor of state. If so, 'why is it provided in Section 7336 that: “The warden shall allow so much of the cost bill and charges for transportation as he finds to be correct?” Section 153, Revised Statutes, provides that no money shall be drawn out of the treasury except on warrant of the auditor of state. And Section 154 provides that, “he shall not draw any warrant on the treasurer for any claim unless he finds the same legal, and that there is money in the treasury which has been duly appropriated to pay the same.” These provisions, that the clerk shall make up and certify the cost bill, that the prosecuting attorney shall examine into the correctness and legality of each item, and that the warden shall only certify what he finds correct, and that the auditor of state shall not draw a warrant unless he finds the claim legal, are cumulative safeguards of the public funds. And being such, the auditor of state is not concluded by the determination of the prosecuting attorney, and the expenses of the expert witness not being authorized to be drawn from the state treasury, the writ must be refused, and the petition is dismissed at the cost of the relator.

Petition dismissed.

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


author: Crew, J.

text:
    Serrill v. Wilder et al.

      County treasiwer — Anticipating his appointment — Agreed with bondsmen — To apply portion of salary to pay obligations — Of bondsmen and himself — Invalidity of such contract.

    Plaintiff in error, in anticipation of his appointment to the office of county treasurer, promised and agreed with the defendants in error, that in consideration of their becoming sureties on his official bond, he would, if appointed thereto, devote and apply all the fees, salary and emoluments of said office, in excess of a certain stipulated amount, to the payment and discharge of certain obligations on which he and they were jointly liable. Held: such contract is contrary to public policy, and is void.
    (No. 10230
    Decided December 17, 1907.)
    Error to the Circuit Court of Defiance County.
    A sufficient narrative of the facts in this case, is found in the amended petition filed by plaintiffs below — defendants in error here — which amended petition reads as follows:
    “Said plaintiffs for their cause of action against the defendant say that at the general election held in November, A. D. 1891, one Wesley O. Barney was duly elected to the office of county treasurer of Defiance county, Ohio, to serve for a full term of two years commencing on the first Monday in September, 1892.
    “That the said Wesley O. Barney qualified as such county treasurer and entered upon the discharge of his duties as such officer on the said first Monday in September, 1892.
    “That previous to entering on the duties of his said office, the said Wesley O. Barney gave bond as such officer in the sum of $125,000 payable to the state of Ohio, and conditioned as provided by law, which bond with the oath of office of said treasurer and the approval of the commissioners thereon indorsed, the said Wesley O. Barney deposited with the auditor of said county.
    “That the said plaintiffs together with one W. H. Fee, one J. T. Wilcox and one A. Wilcox and the defendant became and were sureties on and upon the bond of the said Wesley O. Barney as such county treasurer.
    “That at the general election held in November, 1893, the said Wesley O. Barney was duly elected to the said office of the county treasurer of Defiance county, Ohio, to succeed himself for the term of two years beginning the first Monday of September, 1894, and the said Wesley O. Barney being duly qualified under his said re-election to the said office and on the said first Monday in September, A. D. 1894, entered upon the discharge of the duties thereof.
    “That the said Wesley O. Barney served in his said office as county treasurer of said county under his re-election thereto, as aforesaid, from the first Monday in September, A. D. 1894, until about the 27th day of November, A. D. 1894, when the said Wesley O. Barney resigned the said office, leaving said office vacant for the balance of said term to which he-had been re-elected as aforesaid.
    “That about December 1st, 1894, the board of county commissioners of said county of Defiance, duly appointed the defendant, George C. Serrill, as county treasurer of said county to fill the said vacancy in said office occasioned by the resignation of the said Wesley 0. Barney, as aforesaid, that is to say, to serve thereof from the date of his qualification as such treasurer until the first Monday in September, 1896.
    “Said plaintiffs say that during the said Wesley O. Barney’s incumbency in said office for the term for which he was first elected, he misapplied the. public funds coming into his hands by virtue of his said office and did not pay over according to law all such moneys which came into his hands for state, township, county and other purposes.
    “That the said public moneys so misapplied by the said Wesley O. Barney and not paid over according to law, as aforesaid, amounted to more than nine thousand dollars ($9,000), and by reason of the said misapplication of the said moneys and the failure of the said Wesley O. Barney as such county treasurer as aforesaid, to account for and pay over according to law the moneys so misapplied, the plaintiffs herein and the said defendant as sureties upon the said official bond of the said Wesley O. Barney were obliged to and did pay into the said county treasurer, to make good the amount so misapplied by the said Wesley O. Barney, as county treasurer, as aforesaid, more than nine thousand dollars ($9,000).
    “Plaintiffs say that in order to obtain the said sum of nine thousand dollars ($9,000) wherewith to make good the said amount so misapplied by the said Wesley O. Barney as county treasurer as aforesaid, these plaintiffs and the defendant borrowed the said amount from certain banking institutions, and to evidence the amount so borrowed from the said banking institution respect-. ively, gave their joint and several promissory notes.
    “Said plaintiffs say that at the time of the appointment of the said defendant to fill the said vacancy in said office of county treasurer as aforesaid, the said joint and several obligations of the plaintiffs and of the defendant given to evidence the said moneys by them borrowed to make good the said misappropriation of the said Wesley O. Barney were still outstanding and wholly unpaid, and the said plaintiffs and said defendant were jointly liable thereon for the whole of the said sum by them borrowed as aforesaid.
    “Said plaintiffs further say that the said defendant by reason of his appointment to fill the said vacancy in the said office of county treasurer became ex officio treasurer of the moneys and funds of the city of Defiance in said county and entitled to the pay, salary and emoluments of such office.
    “Said plaintiffs further say that upon the appointment of said defendant to fill said vacancy in the said office as aforesaid, the said defendant solicited these plaintiffs to become his sureties upon his official bond as such county treasurer under said appointment, and then and there offered and proposed to the plaintiffs that if they would sign his said official bond and become his sureties thereon, the said defendant would forthwith upon the execution and acceptance thereof, enter upon- the discharge of the duties of such office and of said office of city treasurer of the said city; and in consideration of the said plaintiffs becoming sureties upon his said official bond, would use and employ all the fees, salary and emoluments of said office received by him as such county treasurer and as treasurer of the said city in excess of ninety-one dollars and sixty-seven cents ($91.67) per month in the discharge of the said joint obligations of the said plaintiffs and said defendant given by them as aforesaid in evidence of moneys by them borrowed and otherwise procured and paid over to make good the said public moneys misappropriated by the said Barney as such treasurer as aforesaid.
    “Plaintiffs say that they then and there accepted said offer and proposition of said defendant, and in consideration that the said defendant use and employ all the said fees, salary and emoluments received by him during his incumbency in said office under such appointment on account of his services as such county treasurer, and as such 'city treasurer, in excess of the said sum of ninety-one dollars and sixty-seven cents ($91.67) per month, in the payment of the said joint obligations of the said plaintiffs and said defendant and in consideration of the said promises and agreements of the said defendant so to do, the said plaintiffs signed the said bond of said defendant in the sum of one hundred and twenty-five thousand dollars ($125,-000) ; that the said bond of the said defendant as such county treasurer was conditioned as provided bv law and signed by these' plaintiffs as sureties as aforesaid, and was duly approved by the county .commissioners of such county, and such approval indorsed thereon, and the said bond deposited by the said defendant with the auditor of said county.

      ' “Plaintiffs say that the defendant as such appointee entered upon the discharge of the duties of said office on the first day of December, 1894, and served as treasurer of said county under such appointment for the whole of the said vacancy, that is to say, until the first Monday in September, 1896.
    “Plaintiffs say that between December 1st, 1894, and September 1st, 1896, the fees, salary and emoluments coming into the hands and received and paid over to-the said defendant on account of the services -of said defendant as county treasurer and the services of said defendant as said city treasurer, amounted to the sum of fiye thousand and ninety-four dollars and sixty-one cents ($5,094.61), which amount was paid to and received by said defendant; that under and by the terms of said contract and agreement of said plaintiffs and said defendant, by which said plaintiffs became sureties upon the said official bond of the said defendant as aforesaid, the said defendant was liable for the payment and required to pay over for the benefit of said plaintiffs and said defendant upon their said joint obligations, all of said fees, ■salar}'- and ■ emoluments paid to and received by said defendant during his incumbency in said office as' aforesaid, in excess of the sum of $1,925.07, that is to say, to so use arid employ out of said fees, salary and emoluments paid to and received by said defendant during his incumbency in said office, the sum of $3,169.54.
    “Plaintiffs say that the said defendant, pursuant to his said contract with the plaintiffs, did use, employ and pay out in the discharge of the said joint obligations of the said plaintiffs and said defendant and in the discharge of certain other joint obligations of the said plaintiffs and said defendant growing out of their said suretyship upon the said official bond of the said Wesley O. Barney, and arising through the misappropriation of the said public funds of the said county by the said Barney, in the aggregate the sum of $2,-079.77, which amount was so paid by the said defendant out of the said excess of the said fees, salary and emoluments of the said office, earned, paid • to and received by the said defendant over the said sum of ninety-one dollars and sixty-seven cents per month.
    “Plaintiffs say that the said defendant never in any wise paid out, used or employed any further or additional amount in the payment of the'said joint obligations of the said plaintiffs and defendant, nor did the said defendant ever pay to the said plaintiffs or to either or any of them, or for their use or the use or benefit of either or any of them, any part or portion of the said fees, salary and emoluments of the said offices earned and received by him as aforesaid, excepting the said sum of $2,079.77, so paid out bv the said defendant as hereinabove stated.
    “Plaintiffs say that the said joint obligations of the said plaintiffs and the said defendant to the amount' of $3,000 still existed and were outstanding and wholly unpaid at the time the said term of the said offices to which the said defendant was appointed as aforesaid expired.
    “Plaintiffs further say that afterwards the said obligations were sued upon and judgments were. duly rendered, taken and entered against said plaintiffs and said defendants jointly on said obligations; that said defendant failed, neglected and refused to pay over in the discharge of the said judgments any of the said excess of the fees, salary and emoluments of the said offices over and above the said sum of ninety-one dollars and sixty-seven cents per month earned, paid to and received by the said defendant as aforesaid.
    “Plaintiffs further say that the said defendant of his own means and money paid about one-eleventh part of the amount of said judgments, and these plaintiffs were obliged to and did pay out in the discharge of the said judgments about seven-elevenths thereof, and an amount in excess of the sum of $1,089.77, the remaining three-elevenths of said sum having been paid by the said other persons who, with the said plaintiffs and said defendant, were sureties upon the said bond of the said Wesley O. Barney.
    “Plaintiffs further say that the said fees, salary and emoluments of the said office earned, paid to and received by the said defendant in excess of the said sum of ninety-one dollars and sixty-seven cents ($91.67) per month in addition to the said excess paid out by the said defendant for the use of the said plaintiffs and said defendant and in the discharge of their said joint obligations as aforesaid, amounts to the sum of $1,089.77.
    “Plaintiffs further say that by reason of the making of the said contract between said plaintiffs and the said defendant, and by reason of the other facts aforesaid, the said defendant became and is indebted to these plaintiffs in the sum of $953-54» the said sum being seven-eighths of said sum of $1,089.77, received and retained by the said plaintiff, with interest thereon from the first Monday in September, 1896.
    “Said plaintiffs further say that the said defendant has never paid' the plaintiffs the said sum or any part thereof, and there is now due and owing the said plaintiffs from the said defendant by reason of the facts aforesaid the said sum of $953.54, with six per cent, interest thereon from September 5th, 1896, which said plaintiffs claim.
    “Wherefore said plaintiffs pray for a judgment against the said defendant for the said sum of $953.54, together with six per cent, interest thereon from September 5th, 1896.”
    To this amended petition the defendant below, George C. Serrill, filed a general demurrer. This demurrer being overruled by the court the defendant answered, admitting the election and re-election of Barney, and his qualification as treasurer of Defiance county; the appointment of Serrill and his qualification; the giving of the official bonds by Barney and Serrill and the signing thereof by the sureties named; the defalcation of Barney, and the payment of the shortage by his sureties; the borrowing by the sureties, of the money to make good such shortage, and the giving of their joint and several promissory notes for the amount so borrowed, and denied all the other allegations of said amended petition. Issue being joined, a jury was waived, and by consent of all the parties the cause was submitted to, and tried by, the court. After hearing the evidence and arguments of counsel, the court, upon consideration found and adjudged that the contract and agreement between plaintiffs and defendant, set out in plaintiffs' amended petition, as and for their cause of action, was against public policy, and was illegal and void; and thereupon the court rendered judgment in said cause against the plaintiffs and in favor of the defendant, George C. Serrill. A motion for new trial was made and overruled, and exceptions were duly noted. The case was taken on ' error to the circuit court, and' that court, finding no other error in the record, reversed the judgment of the court of common pleas upon the sole ground, as stated in its journal entry: “that the court of common pleas erred in finding and determining that the said alleged contract of the said defendant, George C. Serrill, with the said plaintiffs — being the contract sued upon by the said plaintiffs — is contrary to public policy and is illegal and void.” George C. Serrill now prosecutes error in this court, asking that said judgment of the circuit court be reversed, and that the judgment of the court of common pleas be affirmed.

      Messrs. Harris & Cameron and Messrs. Ans-■ bery & Farrell, for plaintiff in error.

      Messrs. Winn & Flay, for defendants in error.
   Crew, J.

The primary and controlling question arising upon this record, is whether the contract sued on in this case is a valid contract that will be enforced, or whether, it being a contract to devote and apply the unearned fees of a public office to the payment of the joint debt of the promisor and promisees, such contract is illegal and void, because contrary to, and against public policy. As appears from- the above statement of facts: At the general election held in November, 1891, Wesley Q. Barney was elected treasurer of Defiance county, Ohio, for the full terrh of two years, commencing on the first Monday of September, 1892. Before entering upon the duties of the said office Barney gave bond in the penal sum of one hundred and twenty-five thousand dollars, payable to the state of Ohio, and conditioned as provided by law. Plaintiff in- error, and the defendants in error, were sureties on said bond. In November, 1893, Barney was re-elected to said office of county treasurer, and again qualified and entered upon the discharge of his duties on the first Monday in September, 1894, and continued in said office until about the 27th day of November, 1894, at which time he resigned. On December 1st of the same year, the commissioners of Defiance county appointed the plaintiff in error, George C. Serrill, treasurer of said county to fill the vacancy occasioned by the resignation of Barney ; and by virtue of his said appointment, Serrill thereby became ex officio treasurer of the city of Defiance. Serrill accepted said appointment and executed his official bond in the sum of one hundred and twenty-five thousand dollars, with defendants in error as sureties thereon. After the resignation of Barney, it was discovered that he had, during his first term, misappropriated about nine thousand dollars of the public funds which came into his hands as treasurer, and the sureties upon his official bond were required to, and did, pay into the county treasury of Defiance county the amount so by him misappropriated. In order to obtain said sum of nine thousand dollars wherewith to make good the amount so wrongfully appropriated by Barney as treasurer, the .plaintiff in error and the defendants in error, borrowed said sum from certain banking institutions, executing their joint and several promissory notes therefor, which notes, at the time of the appointment of George C. Serrill treasurer, were outstanding and unpaid. The plaintiffs below, by way of particular statement of the consideration, terms and conditions of the oral contract made and entered into between them and George C. Serrill, upon which they seek to recover in this action, aver in their amended petition: “that upon the appointment of said defendant to fill said vacancy in the said office as aforesaid, the said defendant solicited these plaintiffs to become his sureties upon his official bond as such county treasurer under said appointment, and then and there offered and proposed to the' plaintiffs that if they would sign the said official bond and become his sureties thereon, the said defendant would forthwith upon the execution and acceptance thereofK enter upon the discharge of the duties of such office and of said office of city treasurer of the said city; and in consideration of the said plaintiffs becoming sureties upon his said official bond, would use and employ all the fees, salary and emoluments of said office received by him as such county treasurer and as treasurer of the said city in excess of ninety-one. dollars and sixty-seven cents ($91.67) per month in the discharge of the said joint obligations of the said plaintiffs and said defendant given by them as aforesaid in evidence of moneys by them borrowed and otherwise procured and paid over to make good the said public moneys misappropriated by the said Barney as such treasurer as aforesaid.

“Plaintiffs say that they then and there accepted said offer and proposition of said defendant, and in consideration that the said defendant use and employ all the said fees, salary and emoluments received by him during his incumbency in said office under such appointment on account of his services as such county treasurer, and as such city treasurer, in excess of the said sum of ninety-one dollars and sixty-seven cents ($91.67) per month, in the payment of the said joint obligations of the said plaintiffs and said defendant and in consideration of the said promises and agreements of the said defendant so to do, the said plaintiffs signed the said bond of said defendant in the sum of one hundred and twenty-five thousand dollars ($125,000).”

It will be observed that the above contract, in plainest terms, is a contract for the sale and application of the unearned fees or salary of George C. Serrill, as treasurer of Defiance county. It is in form, and by its express provisions, an undertaking and promise on his part, to pledge, and pay over for the benefit of his co-obligors, all the fees, salary and emoluments of said office that may thereafter be received by him, in excess of $91.67 per month, or eleven hundred dollars per year. The fees and salary of said office, as shown by the record, amounted to about two thousand nine hundred dollars per year. The English authorities seem to be unanimous in holding that such contracts are absolutely null and void as being against public policy. And such we think is the American doctrine, clearly established by the overwhelming weight of authority. In Bliss v. Lawrence, 58 N. Y., 442, a leading case on this subject, where many authorities, both English and American, are cited and reviewed, the court says: “The controlling question in these cases is that of the lawfulness of an assignment, by way of anticipation, of the salary to become due a public officer. * * * ■ Salaries are, by law, payable after work is performed and not before, and while this remains the law it must be presumed to be a wise regulation and' necessary, in the view of the law-makers, to the efficiency of the public service. The contrary rule would permit the public service to be undermined by the assignment to strangers of all the funds' appropriated to salaries. It is true that, in respect to officers removable at will, this evil could in some measure be limited by their removal when they were' found assigning their salaries; but this is only a partial remedy for there would still be no means of preventing the continued recurrence of the same difficulty. If such assignments are allowed then the assignees, by notice to the government, would on ordinary principles be entitled to receive pay directly and to take the place of their assignors in respect to the emoluments, leaving the duties as a barren charge to be borne by the assignors. It does not need much reflection or observation to understand that such a condition of things could not fail to produce results disastrous to the efficiency of the public service. * * * The substance of it all is, the necessity of maintaining the efficiency of the public service by seeing to it that public salaries really go to those who perform the public service. To this extent, we think, the public policy of every country must go to secure the end in view.” Mechem in his work on Public Offices and Officers, .at Section 874, says: “While the compensation already earned by a public officer may validly be assigned by him, it is settled by a clear preponderance of authority that an assignment of future compensation not yet earned, whether payable by salary or fees, is opposed to public policy and void.” To the same effect is Throop on Public Officers, Sections 42 and 43. The validity of an assignment of unearned fees was the subject of consideration in Schloss v. Hewlett, 81 Ala., 266, and it was there held that the contract of assignment was against public policy and void, the court sajdng: “It is easy to see how great abuses would follow if such transfers were permitted. Not only would there exist a constant temptation to anticipate future earnings under the stress of present financial pressure at usurious rates of discount, but when completed one of the strongest incentives to industrious exertion — the expectation of pecuniary reward in the near future —would be gone.” In Shannon v. Bruner, 36 Fed. Rep., 147, it was held that an assignment by a master in chancery of his unearned fees was void as being against public policy. Mr. Justice Brewer, speaking for the court, said: “Now, can an officer make an assignment in advancé of his fees or his salary? The law is very clear that he can not. Public policy has affirmed the necessity of securing to every public officer, when earned, his fees or his salary, unhindered by any present legal attack, or any previous voluntary assignment. There are many cases, both in England and this country, affirming the necessity of upholding such public policy. It is familiar law that you can not garnish an officer’s salary; and the same public policy which forbids that, prevents him, before he has earned his salary or done the work which entitles him to the fees, from making a voluntary transfer of them.” A like view of the rule and doctrine was adopted and applied in the following well considered cases. Bowery National Bank v. Wilson et al., 122 N. Y., 478; The State v. Williamson, 118 Mo., 146; Bank v. Fink, 86 Tex., 303; Stevenson v. Kyle, 42 W. Va., 229; Field v. Chipley, 79 Ky., 260; Bangs v. Dunn, Auditor, 66 Cal., 72; King v. Hawkins, Auditor, 2 Ariz., 358; State v. Barnes et al., 10 S. D., 306; Schwenk v. Wyckoff, 46 N. J. Eq., 560; Elwyn’s Appeal, 67 Pa. St., 367. See also, Mechem’s Public Offices & Officers, Sec. 874; 9 Cyc., 495. The cases of Brackett v. Blake, 7 Metcalf, 335; Mulhall v. Quinn et al., 1 Gray, 105, and Macomber v. Doane et al., 2 Allen, 541, are sometimes referred to as announcing a contrary doctrine, but in neither of these cases was the rule of public policy suggested to, or considered by, the court. The only cases we have found that seem to sustain as valid an assignment of unearned fees or salary, are State, ex rel. Bank v. Hastings, 15 Wis., 75, and The People, ex rel. v. Dayton Supervisor, 50 How. Pr. Rep., 143. The latter case has since been directly overruled by the Court of Appeals of New York in Bowery National Bank v. Wilson, supra; hence the case of Bank v. Hastings, stands alone in its support of the validity of such contract of sale or assignment. In obedience, then, to the clear weight of authority, and to what we conceive to be a sane and sound rule of public policy, we are constrained to hold that the contract sued on in the present case is illegal and void and ought not to be enforced. The demurrer to the amended petition in this case should have been sustained by the court of common pleas, but the same having been overruled, and the cause having been submitted to said court upon the pleadings and evidence without the intervention of a jury, there was no error in the finding and judgment of said court that, “the alleged agreement between the plaintiffs and the defendant, set up in plaintiff’s amended petition as constituting plaintiff’s cause of action, is against public policy and void,” and dismissing said amended petition.

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

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