
    The State of Ohio v. Joseph H. Newton.
    1. Under the laws defining his duties a county auditor is not an officer charged with the possession and custody of money belonging to tha state within the meaning of the 15th section of the act of April 15, 1858 (S. & G. 1606).
    2. An indictment charging the defendant, a county auditor, with converting to his own use money belonging to the State of Ohio, “which said money had then and there come into the possession and custody of the said defendant by virtue of his office,” does not state facts sufficient to constitute an offense within the meaning of the 15th section above referred to.
    Exceptions by the prosecuting attorney to the decision of the Court of Common Pleas of Holmes county.
    The defendant was indicted in the Court of Common Pleas of Holmes county for embezzlement.
    The first count of the indictment, in substance, avers that on the 1st day of October, 1870, the defendant, Joseph H. Newton, being the county auditor of said Holmes ■county, and being charged as such officer with the collection, receipt, safe-keeping, transfer, and disbursement of the public moneys, to wit, $2,000 belonging to the State of Ohio, did unlawfully, etc., convert to his own use, which said money had then and there come into the possession and custody of the said Joseph H. Newton by virtue of his ■office, and in his discharge of the duties thereof, whereby he is guilty of embezzlement, etc. The second count is the same as the first, except that it charges that the defendant did fraudulently and feloniously pay out and convert to a certain body corporate, to wit, the village of Millersburg, in said county, the sum of $2,000, which had come into his hands and possession by virtue of his said office.
    To each of these counts the defendant demurred, on the ground that the facts stated do not constitute an offense punishable by the laws of this state.
    
      The Court of Common Pleas sustained the demurrers, and the prosecuting attorney took exceptions under section 157 of the criminal code; and this is a proceeding, under sections 158, 159, and 160, to obtain a decision in this court determining the law to govern in any similar cases now pending, or which may hereafter arise in the state.
    The indictment was found under section 15 of the independent treasury act (S. & C. 1610), which is as follows: “ That if any officer or other person charged with the collection, receipt, safe-keeping, transfer, or disbursement of the public money, or any part thereof, belonging to the state, or to any county or township or organized city or village in this state, shall convert to his own use, or to the use of any other person or persons, body corporate, association, or party whatever, in any way whatever, or shall use by way of investment in any kind of security, stock, loan, property, land, or merchandise, or in any other manner or form whatever, or shall loan, with or without interest, to any company, Corporation, association, or individual, or shall deposit with any company, corporation, or individual any portion of the public money or any other funds, property, bonds, securities, assets, or effects of any kind received, controlled, or held by him for safe-keeping, transfer, or disbursement, or in any other way or manner, or for any other purpose, or if any person shall advise, aid, or in any manner participate in such act, every such act shall be deemed and held in law to be an embezzlement of so much of the said moneys or other property, as aforesaid, as shall be thus converted, used, invested, loaned, deposited, or paid out as aforesaid ; which is hereby declared to bo a high crime and misdemeanor. And upon prosecution, trial by indictment, and conviction thereof, before any court of this state having competent jurisdiction, such officer or person or persons shall be sentenced to imprisonment in the penitentiary, and kept at hard labor for a term of not less than one year nor more than twenty-one years, according to the magnitude of the embezzlement. . . . Any failure or refusal to pay over or to produce the public money, or any part .thereof, by any officer or other person, under this act, charged with the collection, receipt, transfer, disbursement, or safe-keeping of the public money, or any part thereof, whether belonging to the state or to any county or township or organized city or incorporated village in this state, or any other public money whatever, or any failure to account to, or to make settlement with, any proper and legal authority of the official accounts of such officer or person, shall be held and taken as prima facie evidence of such embezzlement. And upon the trial of any such officer or person for embezzling public money, under the provisions of this act, it shall be sufficient evidence, for the purpose of showing a balance against such officer or person, to produce a transcript from the books of the auditor of state or comptroller of the treasury, or the auditor of the county, or records of the commissioners of the county; and the refusal of any such officer or person, whether in or out of office, to pay any draft, order, or warrant which may be drawn upon him by the proper officer for any public money in his hands, no matter in what capacity the same may have been received or may be held by him, or any refusal, by any person or public officer named in this act, to pay over to his successor any public moneys or securities, promptly on the legal requirement of any authorized officer of the state or county, shall be taken on the trial of any indictment against such officer or person for such embezzlement as prima facie evidence of such embezzlement.”
    
      M. M. Granger, for the State:
    I. A connty auditor is an “ officer charged with the collection, receipt, safekeeping, transfer, and disbursement of public money.”
    As to the collection: The auditor creates the duplicate, and by it both authorizes and commands the treasurer to perform the manual labor of collecting the taxes, and with and to him the treasurer must account.
    The general assembly regard him as at the head of the collection of taxes. S. & S. 718 (66 Ohio L. 12); 2 S. & C. 1360, sec. 37; lb. 1456, sec. 43; lb. 1363, see. 63.
    As to safekeeping and disbursement, see S. & S. 708, sec. 10; S. & C. 1606, sec. 3; lb. 1607, 1608, secs. 8 and 9; secs. 10, 11, and 12, 67 Ohio L. 104-5; S. & C. 1585, secs. 8, 9, and 10; lb. 98, sec. 13; lb. 100, sec. 22; S. & S. 919, sec. 2; S. & O; 1600-1, sec. 15.
    II. A county auditor is so charged, at times, as to money of the state. S. & C. 1456, sec. 43; lb. 1364, sec. 63; lb. 1588, sec. 27; lb. 1348 and 1349, sec. 8; lb. 1359, sec. 37; S. & S. 705, sec. 5; lb. 708.
    
      Carolus F. Voorhes, for defendant in error:
    The act of April 4, 1859, S. & C. 96, as amended April 18, 1870, S. & C. 103, contains the provisions under which the office of auditor is created and his duties prescribed. But he is nowhere charged with the duties imposed upon him by the allegations of the indictment against which he here defends.
    There are three offenses defined in section 15 of the “act to establish the independent treasury of Ohio.” 1. If any officer charged with the collection, receipt, safekeeping, transfer, and disbursement of the public money, or any part thereof belonging to the State of Ohio, etc., shall be guilty of the acts enumerated in said section, he shall be guilty, etc. 2. If any other person not an officer is charged with a like duty in relation to the public money, and «ball be guilty of the acts therein enumerated, he shall be guilty, etc. 3. If any person shall advise, aid, or participate with an officer or other person in the acts prohibited, he shall be likewise guilty. The indictment in this case has charged against the first and primary character named in the statute, that is, an officer—that is to say, the auditor of the county—that he by virtue of his office, in the proper discharge of the duties thereof, obtained the possession and custody of $2,000 of the public moneys belonging to the state. If any statute can be found imposing such duties and such powers upon the county auditor, then should he be held to answer the charge here preferred. If not, then he is clearly entitled to have his demurrer sustained. It is not sufficient that the auditor has been guilty of acts that are clearly within the mischiefs intended to be suppressed, by the independent treasury law; for, before he can be subjected to the penalties of that law, he must have done an act which brings him within the letter of the statute. To arrive at a just construction of this statute, with a view to determine whether or not the defendant as auditor comes within its penalties, I would first, before going directly to the statutes, refer to the following authorities found in the second edition of Bishop on Criminal Law, vol. 1, sections 111, 114, 123, 128, 138, 134, 143, 143a.
    On the 12th day of April, 1858, the legislature passed two acts, both to take effect on the 4th day of July succeeding their passage. See S. & C. 1596 and 1605. The former is an “ act to provide for the better regulation of the receipts, disbursement, and safekeeping of the public revenue,” and the latter an “ act to establish the independent treasury of the State of Ohio.” An interpretation of these acts in such manner as will fully reach the intention of the legislative body, will, I think, solve the problem who may be the subject of the penalties therein provided. Clearly, the objects of these statutes are not for the punishment of all mankind, but only for the punishment of the particular class therein indicated. Any citizen of Ohio, it is true, could plunder the public treasuries of the public moneys, but in so doing he would not incur the penalties for embezzlement. He might feloniously and willfully bankrupt the treasury by stealing the public money, but his crime is larceny, and not embezzlement. But a citizen who is appointed to a public office, the duties of which shall impose upon him the collection, receipt, safekeeping, transfer, or disbursement of the public money, or any part thereof belonging to the state, or to any county, or township), or organized village, or city, in this state, is one of the persons who may be the subject of punishment under this statute, providéd he shall have obtained the custody and control thereof by virtue of his office, and shall make the disposition thereof interdicted by the law. The defendant is charged to have held the office of county auditor, and as such, and by virtue of his office, obtained possession of the public moneys of the state, amounting to the sum of $2,000. Is the auditor an officer charged with any such duties, and invested with any such powers over the public moneys of the state? For an answer to this, we appeal to the statute itself, and by it we are willing to be judged.
    Ill, The safekeeping and control vested in and required of the county auditor by the statute cited is such, that conversion of any of the public money is embezzlement. S. & C. 1610, sec. 15; Galkins v. The Slate, 18 Ohio St. 366.
   Gilmore, J.

Each of the counts in the indictment are sufficient in form, as they severally describe the offense intended to be charged substantially in the words of the section. The real question raised by the demurrer to the indictment is this: Is a county auditor an officer “ charged with the collection, receipt, safekeeping, transfer, and disbursement of the public money, or any part thereof belonging to the state,” within the meaning of the fifteenth section above quoted? If not, then the first count of the indictment charging the defendant, a county auditor, with converting to his own use money belonging to the State of Ohio, “which said money had then and there come into the possession and custody of the said defendant by virtue of his office,” does not state facts sufficient to constitute an offense within the meaning of the fifteenth section, and the demurrer was properly sustained; and the second count, which differs from the first only in charging that the money was converted to the use of the village of Millersburg, is liable to the same objection.

The machinery provided by law for the collection, receipt, safekeeping, and disbursement of the public money, is extensive and complicated; requiring in its operation the assistance of assessors, appraisers, boards of equalization, state and county auditors, state and county treasurers, and ■other officers, each of whom has designated duties to perform, of a nature distinct from those to be performed by any others; and while there must be consecutive co-operation among them in order to produce the required result, yet each officer is responsible only for the faithful performance of the duties imposed upon him by law; and for unfaithfulness is only liable to the penalties denounced against unfaithfulness in his particular office.

In determining whether a county auditor, while acting in the line of his general duties, is an officer charged with the duties enumerated in the fifteenth section, we have carefully examined the many statutory provisions to which our attention has been called by counsel for the state, and find that none of them, when fairly construed, either expressly or impliedly impose those duties upon county auditors; and if they are amenable at all to the penalties provided for a violation of the provisions of the section, it can not be in a ease embraced in the very general language of the indictment under consideration, but in a case made by its own peculiar circumstances and relations; in which case, all the facts and circumstances necessary to show that the crime charged falls within the section, should be particularly set forth in the indictment.

The correctness of this conclusion will be made manifest by a comparative view of the past and present policy of the state respecting the collection, receipt, safekeeping, and disbursement of the public revenues.

Under the laws as they stood prior to the year 1858, the oath of office and official bond of a state or county treasurer were deemed sufficient, without the aid of criminal legislation, to insure the safety and proper application of all money that might come into their hands by virtue of their respective offices.

They were at liberty to choose their own places of deposit for the safekeeping of the public moneys, and usually it was deemed prudent to place the moneys for safety in some solvent bank, where it would be forthcoming when required.

The auditor of state as to the treasurer of state, and. the county auditor as to the county treasurer, under the prior laws, stood in the same official relation to each other that they do now, and their relative duties were substantially the same. Under the prior laws, no one supposed that the county auditor was responsible for the public moneys in the hands of the county treasurer, and clearly the law imposed no such responsibility, and there was no complaint on the part of the public that the auditor of state or county auditors had not faithfully and satisfactorily performed their official duties; and hence, as to them, there existed no necessity for penal legislation. While this was the case in reference to state and county auditors, it was not so in reference to state treasurers, county treasurers, and other officers into whose hands the public moneys came by virtue of their offices or employment. Defalcations by these officers became frequent, the treasurers of state not excepted. The public money was squandered and lost; sometimes by conversion out and out to the official’s own use, but more frequently perhaps by trusting it temporarily to others, or loaning it to or depositing it in unsafe banks, or investing it in stocks, bonds, or merchandise. In these respects, the evils became insufferable, and, for the purpose of remedying them, the legislature, in 1858, passed two statutes—the first entitled “ an act to further provide for the better regulation of the receipt, disbursement, and safekeeping of the public revenue” (S. & C. 1596); the second entitled “an act to establish the independent treasury of the State of Ohio.”

While these acts only incidentally refer to the auditor of state and county auditors, and leave their duties as prescribed by previous statutes substantially unaffected, they virtually sweep away the previous legislation of the state in reference to the treasurer of state, county treasurers, and other custodians of the public moneys, and substitute their own provisions in their place. The provisions of these acts are much more stringent, in all respects, than those of previous acts, as applied to treasurers of state or county treasurers ; and construing them together, as they must be, it is impossible to avoid the conclusion that the penalties provided by the fifteenth section of the independent treasury act. are particularly pointed at treasurers—state, county, township, city—and other officers whose duties are similar, and not at auditors of state or county auditors.

Sections 1, 2, and 3 of the independent treasury act indicate unmistakably the legislative intent; they arc substantially as follows:

Section 1 provides that the rooms assigned to the treasurer of state in the capitol at Columbus, together with the safes, vaults, and other proper and necessary means for the security and safe-keeping of the public money thereto belonging, shall constitute the treasury of the State of Ohio. And that the treasurer of state shall be required to use the treasury so constituted as the sole place for the deposit and safe-keeping of the money of the state. S. & C. 1605.

Section 2 makes it the duty of the county commissioners of each county in the state to provide a suitable room or rooms, with fire-proof vaults or safes, and all other necessary means for the security and safe-keeping of the public moneys in the county; and that the same shall constitute the treasury of the county; and that the public money paid into the county treasury, whether it belong to the county, state, or other party, shall bo kept by the county treasurer in the treasury of the county, and shall not be drawn therefrom, except in the manner provided by law. S. & C. 1606.

By section 3, the state treasurer and each county treasurer are required to keep safely in his treasury, without loaning, using, or depositing in banks or elsewhere, all public moneys of whatsoever character paid into said treasury, or otherwise, at any time placed in his possession and custody, till the same is ordered by the proper department or officer of the state government to be transferred or paid out according to law, etc. That he shall also be the fiscal agent to do and perform all the fiscal duties which may be imposed by law, or by any other rule or regulation of the treasury made in conformity to law.

The state-house commissioners were required to furnish the state treasurers with such an office in the state-house at Columbus, and the county commissioners were required, under heavy penalties, as soon as practicable after the passage of the act, to provide such rooms as are required by section 2, in the public buildings of their respective counties, for the use of the county treasurers. The policy of the entire legislation on the subject contemplates the placing of all the public moneys belonging to the state or the counties in the proper treasury, to the exclusion of any other place; and, when placed there, section 8 prescribes the duties of the treasurers respectively in reference to such public moneys.

It will be observed that the penal provisions of section 15 in terms apply to violations of the provisions of this third section.

In view of these provisions, after a careful examination of all the statutes bearing on the subject, we fail to find ■anything that would authorize us to hold that, while acting in the line of his general duties, a county auditor is an officer “ charged with the collection, receipt, safe-keeping, transfer, or disbursement of the public money,” within the meaning of section 15, under which the defendant stands indicted.

Instead of being one of the officers whose general official ■duties would include him within the officers indicated in section 15, the entire legislation on the subject, and especially some of the provisions of section 15 itself, would seem to exclude him by implication, for the county auditor is placed at the door of the county treasury, and stands as a watchman or guardian upon it, without whose knowledge and consent, except in a few designated instances in which the auditor of state acts, no public money can legally either get into, or out of the county treasury; and hence his official books, in certain cases under section 15, will make a prima facie case for the state in prosecutions against treasurers for embezzlement.

We have not been pointed to, nor are we aware of, the existence of any law by which a county auditor, by virtue of bis office, can come into tbe possession or custody of moneys belonging to tbe state. Tbe indictment fails to state facts showing bow it could possibly bave got into bis bands. If it was there at all, it was there without legal authority. We are not at liberty to presume that this was tbe case.

Neither tbe first nor second count of tbe indictment states facts sufficient to constitute an offense under section 15.

Tbe demurrer was properly sustained by tbe Court of Common Pleas.

Exceptions overruled.

Welch, C. J., White, Rex, and McIlvaine, JJ., com curred.  