
    The State of Ohio v. Carter.
    
      Council of municipal corporation — Passes ordinance to construct sewer — Assesses costs on abuttting lots — Cleric collecting assessments charged zoith same — Conversion of the fund is embezzlement — Section 6841, Rev. Stat.
    
    Where the council of a municipal corporation, regularly passes an ordinance for the construction or repair of sewers, which assesses the costs and expenses thereof on the lots and lands abutting on such sewers, and requires that the assessments shall be paid to the clerk of the corporation who shall pay the same into a fund to be thus created to meet the costs and expenses of construction or repair of the sewers, and the clerk collects all or a part of said assessments under the ordinance, he is legally “charged” with such funds within the •meaning of Section 6841, Revised Statutes; and if he fraudulently converts the same to his own use, he is guilty of embezzlement under the provisions of said section.
    (Decided February 3, 1903.)
    Exceptions to the decisions of the Court of Common Pleas of Hamilton county.
    Bennett Career, on the twenty-ninth day of March, A. D., 1902, was indicted by the grand jury of Hamilton county, for the crime of embezzlement, which as the indictment alleges, was committed on the twenty-ninth day of May, A. D., 1900. This indictment contains two counts, the first of which is framed under the provisions of section 6841; and the other alleges the offense under Section 6842, Revised Statutes. It is claimed by counsel for the exceptions, that at the trial in the lower court, the state, on motion of the accused, was compelled to elect on which of the two counts it would rely for conviction, but no such order appears in the record, and, therefore, an exception to it is not considered. But it seems to be agreed by counsel that the trial was, in fact, conducted on the first count of the indictment, under which evidence was introduced to show, that at the date of the alleged crime, Bennett Carter was the duly elected and qualified clerk of the village of Madisonville, a municipal corporation in Hamilton county, and that he had been such clerk during several preceding years.
    The following ordinance of said village was plead in haec verba as part of the first count, and it was also introduced in evidence to the jury, to-wit:
    “An Ordinance — No. 1310.
    “To assess a special tax on real estate bounding and abutting on streets and public ways in which sewers and drains are planned in Sewerage Division No. 1 of District No. 2, except such real estate as has been heretofore assessed the full amount estimated to complete said plans.
    “Section 1. Be it ordained by the council of the village of Madisonville, Ohio, that there be levied and assessed on each front foot of the several lots of land bounding and abutting upon all the streets and public ways in which the plans and specifications of Sewerage Division No. 1 of District No. 2, and Sewerage Division No. 2 of District No. 2, show that sewers and drains are to be constructed when the sewerage of such divisions is fully completed under such plans, except such real estate as has been heretofore assessed the full amount estimated to complete such plans, the sums hereinafter named for each and every year as specified in accordance with Section 2396, Revised Statutes of Ohio, to-wit: (Here follows a list of the several lots assessed and the amounts so assessed.)
    “Section 2. That the owners of the several lots and lands upon each front foot of which the sums aforesaid are assessed, shall pay the amount of money by them severally due in that behalf, to the clerk of the village on or before the thirtieth day following thé final passage of this ordinance, and in default of such payment, the clerk shall forthwith certify all unpaid assessments to the county auditor, to be by him placed on the tax duplicate and collected by law.
    “Section 3. That the said assessment and all portions thereof, shall be paid into the debt fund when collected, and shall be applied to the payment of the cost and expense of constructing said sewer, together with the bonds to be issued for same, and the interest thereon, and to no other purpose whatsoever.
    “Section 4. This ordinance shall take effect and be in force from and after the earliest period allowed by law.
    “Done at council chamber in Madisonville, Ohio, this fourth day of April, A. D., 1900.” (Seal and signatures attached.)
    The indictment charges that the accused clerk collectéd and received the sum of $335.87 of the moneys assessed under said ordinance and which belonged to said village and that he unlawfully and fraudulently embezzled and converted it to his own use.
    The evidence tended to prove, that under the provisions of the said ordinance, Carter collected and received from various lot owners, at least $154.34, for which he gave receipts, which he signed as clerk, and that he never accounted for this money in any manner.
    He offered no evidence in defense.
    The state excepted to the court giving two special charges, and also excepted generally to the charge given.
    
      The jury found the accused guilty and assessed the value of the property embezzled at $154.34. '
    He filed a motion for'new trial, and also a motion in arrest of judgment.
    The ground of the latter motion is, “that the facts stated in the indictment do not constitute an offense.” The court sustained this motion and arrested judgment, to which the state excepted.
    The case is in this court by its leave, on the exceptions to the several decisions of the trial court.
    
      Messrs. Hoffheimer, Morris & Sawyer, prosecuting attorneys, for plaintiff in error.
    The two counts in the indictment are substantially the same, as an inspection will disclose. The first count charges the defendant, as the clerk of said village, with the receipt of moneys by virtue of an ordinance, and the second count charges said clerk with the receipt of moneys by virtue of his being the village clerk.
    The court under these circumstances in compelling the state to elect erred. State v. Bailey, 50 Ohio St., 636; Whiting v. State, 48 Ohio St., 220; Cotell v. State, 5 Circ. Dec., 472; 12 C. C. R., 467; Myers v. State, 2 Circ. Dec., 712; 4 C. C. R., 570; State v. Franzreb, 11 Re., 775; 29 Bull., 129.
    Has the counsel of a village the power to designate clerk of a village to receive moneys assessed under an ordinance?
    We think they have. Section 1706, Revised Statutes, enumerates the officers of a village, and among them is that of clerk. Sections 1755-1764 in general prescribe the duties of the clerk of a village.
    Has the clerk of a village the inherent power to receive moneys of the village primarily, by virtue of his office, said moneys after he receives them to be turned over to the treasurer?
    In determining this question, we must see what the general duties of the clerk are as compared with the treasurer.
    The clerk shall make a detailed statement of the receipts and expenditures of the corporation. (Section 1756.)
    He shall report annually to the auditor of the state the expenses of the corporation for schools, police, streets, etc. (Section 1758.)
    He shall have charge of the records of the corporation. (Section 1762.)
    He shall, whenever presented with a receipt from a contractor in whose favor an assessment is confirmed, record the payment of the assessment on the margin of the record, so as to show that the lien was released. (Section 2285.)
    He shall certify any unpaid assessment or tax to the county auditor to be placed upon the tax-list by that official. (Section 2295.)
    The different enumeration of the sections clearly shows that the clerk of a village is the general bookkeeper thereof.
    The powers and duties of the treasurer of a village are defined by sections 1767 through 1770.
    From sections 1767, 1768 and 1769, it will be seen that the treasurer is contemplated to be the mere custodian or holder of the moneys of the village after they have been collected by some one else, and that he is not the active collector thereof. Therefore, as the village clerk must keep charge of all the records of the corporation, and make a detailed statement of receipts and expenditures hereinbefore referred to, it would necessarily follow that he would be the proper person to re■ceive moneys of the village primarily, and turn them over to the treasurer to hold and to be paid out according to law.
    Is the clerk of a village who has receipted for moneys of the village as such clerk, and who has embezzled said moneys, estopped from denying his right or power to receive moneys as clerk? In other words, can he take advantage of his own wrong?
    The record shows that Carter gave receipts as clerk ■of the village signed by him as clerk, and under the seal of the village. He is therefore estopped from setting up the fact that as clerk he had no right to receive any moneys. State v. Pohlmeyer, 59 Ohio St., 491; 2 Bishop New Crim. Law, section 364; State v. Spaulding, 24 Kan., 1; State v. O’Brien, 94 Tenn., 79.
    
      Mr. Charles E. Tenney and Mr. Norwood J. Utter, for defendant in error.
    The clerk of a village is not “charged with the collection, receipt, safekeeping,' transfer or disbursement of the public money belonging to any municipal ■corporation,” nor does it “come into his possession by virtue of his office or employment;” and any ordinance passed by the village council purporting to charge him with such duties, or to provide that he shall come into the possession of public money by virtue of his office or employment, is illegal and void. Therefore, if, as such clerk, he collects or comes into the possession of money belonging to the village, whether or not in pursuance to such an ordinance, and if he converts such money to his own use, he is not guilty of embezzlement under Sections 6841 or 6842, Eevised Statutes. State v. Newton, 26 Ohio St., 265; State v. Myers, 56 Ohio St., 340. These two eases leave nothing to be decided in the present case excepting the validity and effect of the ordinance set forth in the indictment.
    The contention of the defendant in error is that that ordinance conflicts with the statutes of this state, and is void; and that therefore the defendant was not charged by law with the collection, etc., of the public moneys.
    Section 1706, Revised Statutes, names and enumerates the statutory and necessary officers of a village,, one of whom is the clerk, and another the treasurer.
    Section 1710, Revised Statutes, authorizes the council to provide additional officers.
    The duties and powers of a clerk of a municipal corporation are defined and prescribed in the following sections: Sections 1755-1764, 2285, 2295, 3107-53, 2702 and 2690, Revised Statutes.
    He is nowhere empowered by the legislature to handle any of the funds of the corporation. ' His duties and authority are strictly confined to those of bookkeeper of the village and secretary of the council.
    Sections 1767 and 1768, Revised' Statutes: The duty of handling the money of the corporation is imposed on the municipal treasurer, a village officer specifically provided for by Section 1706, Revised Statutes, and therefore distinct from the village clerk.
    The council may attach such duties and powers as it chooses to offices of its own creation (Section 1712, Revised Statutes) ; but to the statutory office of clerk it may add only such duties as pertain to the office (Section 1762, Revised Statutes) ; and to the statutory office of auditor it may add only such duties as are not inconsistent with the constitution and laws of the state and not incompatible Avith the nature of the office (Section 1765, ReAdsed Statutes).
    
      The powers of council are strictly construed. Bloom v. Xenia, 32 Ohio St., 461.
    The sections previously cited as to clerk, auditor and treasurer, show that the collection of assessments does not pertain to the office of clerk or auditor and is incompatible therewith, and the imposition of such a duty would be inconsistent with the la;ws and constitution of the state. State v. Newton, 26 Ohio St., 265.
    The ordinance attempting to charge the clerk of Madisonville with the collection of sewer assessments is therefore void. Lillard v. Ampt, 7 Dec., 167; 4 N. P., 305.
    • Criminal statutes are strictly construed, and all doubts as to their interpretation are to be resolved in favor of the accused. “A statute defining a. crime or •offense cannot be extended by construction to persons •or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute.” State v. Meyers, 56 Ohio St., 340; U. S. v. Wiltberger, 18 U. S. (5 Wheat.), 76.
    A village clerk who makes no false representations as to the facts, and who collects money in pursuance to an illegal ordinance, is not estopped to deny -the validity of the ordinance or to deny that he is amenable to any particular criminal statute under which he may have been indicted.
    The defendant is indicted for embezzling from the village. But the village itself had passed the invalid ordinance, whose terms the defendant was following in receiving the money. The village was familiar with all the facts, and is presumed to know the law. The defendant made no representations whatever of facts. The doctrine of estoppel does not apply to even an express statement as to a conclusion of law, 
      and a fortiori it does not apply to an implied representation. Estoppel is applied only to representations of fact. The following citations are conclusive of this proposition:
    11 Am. & Eng. Ency. Law (2 ed.), 425; McKeen v. Naughton, 88 Cal., 467; Estis v. Jackson, 111 N. C., 145; Holcomb v. Boynton, 151 Ill., 294; Cameron v. Cameron, 95 Ala., 344; Brewster v. Striker, 2 N. Y., 19; Whitwell v. Winslow, 134 Mass., 343; Bigelow on Estoppel (5 ed.), 572.
    
      City of Cleveland v. Clement Bros. Construction Co., 67 Ohio St., 197, decided by this court December 2, 1902, shows that this court does not apply the doctrine of estoppel to representations of law, and is a very strong case on the subject.
    The defendant does not deny any of the facts pleaded; but he denies that the facts pleaded render him liable under Sections 6841 or 6842, Revised Statutes.
   Price, J.

The record in this case shows exceptions to the giving of two special charges to the jury, at the request of the accused, and also that the state excepted generally to the charge given.

We have examined these special .charges, as well as the general charge, and our voyage has not discovered substantial error in either the general or special charges. IS!or have counsel for the state pointed out. any error in these respects, and we are inclined to assume that but little, if any, confidence is reposed in such exceptions.

The only important question in the case, is: Did the trial court err in sustaining the motion in arrest of judgment?

To answer that question intelligently, reference must be bad to the indictment upon which the accused was tried, and the statute and ordinance under which the same was found and prosecuted.

The first count, and the only one we consider, alleges, after the formal part, “that Bennett Carter on the twenty-ninth day of May, in the year nineteen hundred, with force and arms, at the county of Hamilton aforesaid, being then and there a public officer, to-wit: being clerk of the village of Madisonville, a municipal corporation duly organized under the laws of Ohio, and situated in the county of Hamilton, and said Bennett Carter, being then and there charged with the collection, receipt, safe-keeping and transfer of public moneys, belonging to said municipal corporation under and by virtue of the following ordinance of said municipal corporation, to-wit: (Here follows a copy of the ordinance set out in the statement of this case), certain of said money, to-wit, the sum of three hundred and thirty-five dollars and eighty-seven cents, of the public moneys, belonging to said municipal corporation aforesaid, did unlawfully and fraudulently embezzle and convert to his, said Bennett Carter’s own use, which said moneys had then and there come into the possession and control of him said Bennett Carter, by virtue of his said Bennett Carter’s office as such clerk as aforesaid and in his discharge of the duties thereof as aforesaid, * * * contrary to the form of the statute,” etc.

It is asserted for the state that the foregoing indictment is authorized by Section 6841, Revised Statutes, which for the purposes of this case, may be abbreviated to read as follows:

“Whoever, being charged with the collection, receipt, safekeeping, transfer or disbursement of the public money * * * belonging to any municipal corporation, converts to his own nse * * * any portion of the public money, or other property, bonds, securities, assets, or effects of any kind, received, controlled, or held by him for safekeeping, or in trust for any specific purpose, transfer, or disbursement, or in any other way or manner, or for any other purpose, shall be deemed guilty of embezzlement,” etc.

It appears beyond question, that the moneys which came into the possession and custody and keeping of Carter, while he was village clerk, were moneys which he had collected and received under the provisions of the ordinance above set out, and not in the discharge of any purely statutory duty imposed upon him; and if the ordinance is valid and such as the statute authorized the village council to pass, then the duties imposed upon the clerk were legal duties, and he was legally “charged” with the collection, receipt, safekeeping, transfer or disbursement of the “public money” of the village which he collected and received from the lot and landowners in payment of their sewer assessments made under the ordinance.

The second section of this ordinance, if valid, required the lot and landowners, within a certain time, to pay their assessments to the clerk of the village, and if the payments should not be made within that period, the clerk should forthwith certify all unpaid assessments to the county auditor, to be by him placed on the tax duplicate and collected by law.

By the third section, the assessments, when collected should be paid into the debt fund, to be applied to the cost and expense of constructing the sewer.

In the method thus provided, Carter, the village clerk, came into possession of the funds he was charged to have embezzled, and the trial court held that the indictment stating such a case, failed to charge a crime.

If the village council had no authority to adopt this mode of payment and collection of the sewer assessment; no power, by ordinance to impose upon the ■clerk the duty of receiving and collecting the assessments, the decision of the lower court might be plausible.

So, the case depends upon the virtue and vitality of the ordinance, and in the consideration of it, we are ■not unmindful of the fact, that in Ohio, municipal' corporations have only such powers as are delegated to them by charter, or the statutes enacted for that purpose.

If the power to pass by-laws or ordinances is conferred by a law in general terms, without enumerating their subjects, the municipal council could pass any ordinance to govern and regulate its own local affairs, subject to the limitation, that it must not conflict with the constitution and laws of the state, or contravene public policy.

But, in Ohio, the powers of such corporations are enumerated, and the subjects of municipal legislation are declared in Section 1692, Revised Statutes, the substantive paragraph of which is:

“In addition to the powers specifically granted in this title, and subject to the exceptions and limitations in other parts of it, cities and villages shall have the general powers enumerated in this section, and the council may provide by ordinance for the exercise and enforcement of the same.”

And in sub-section 21, the council is empowered “to open, construct and keep in repair sewers, drains and ditches.”

We have in this-section general powers enumerated therein, one of which general powers is to open, construct and keep in repair sewers, etc., and also the-grant “that the council may provide by ordinance for' the exercise and enforcement of the same.”

Other provisions of the statute prescribe the mode of assessments for sewer construction and repairs, and the authority conferred upon the city or village is general but ample, to authorize the village of Madison-ville to adopt the mode of assessment contained in the ordinance before us. The validity of that portion of the ordinance is not in question in this case. It was upon a purely local subject, and within one of the enumerated powers of the council.

But does the power of the council end there? Or, can it “provide by ordinance for the exercise and enforcement of the same?” The above section says it may, and if the mode of the collection of the assessments is within the clause “for the exercise and enforcement of the same,” it was competent for the council to select and adopt the method prescribed fn sections 2 and 3 of the ordinance. The collection was but an incident in the exercise of the power expressly conferred, and to enforce the collection of such assessments, the council might pass the ordinance in question.

The clerk was an officer of the village and not of the state, and while his general duties are defined by statute, it is within the legitimate exercise of municipal authority to add other duties, which are not inconsistent with the statutory duties, and which relate solely to the local affairs of the corporation. And we regard the provision in question, that the lot owners should pay their assessments to the clerk, and that he should pay them into the debt fund to discharge the expense of the sewers, as an incident to the exercise of the power of assessment for sewer purposes which is-expressly granted: The legislature has not undertaken to prescribe the rules for every detail that is incident to construction of sewers and the enforcement of payment of the assessments, but has furnished the general outline, leaving to the municipal council the working out of the details. Prescribing the method of collection of the assessments, was one of the details and incident to the exercise of the general power.

This doctrine is well stated by Throop on Public Officers in section 542 under title of “officers’ implied and incidental powers,” as follows: “The rule respecting such powers is, that in addition to the powers expressly given by statute to an officer or a. board of officers, he or it has, by implication, such additional powers as are necessary for the due and efficient exercise of the powers expressly granted, or as may be fairly implied from the statute granting the express powers, * * * .”

The author furnishes apt illustrations of the proposition, and cites several cases in its support.

In “Dillon’s Municipal Corporations,” in a note to-section 308, it is said: “Where the power to do certain acts or pass certain ordinances is conferred upon the council, but the particular mode of exercising the power is not prescribed, this may be done by ordinance, and any mode may be adopted which does not infringe the charter or general law of the land.”

There is some authority on the same point in The City of Cincinnati v. David Gwynne, 10 Ohio, 192, where the holding is stated to be that, “an ordinance of the city council requiring the mayor to enforce the collection of a special tax by suit, in the nature of an action of debt, does not violate the city charter, or the general law of the land.”

The then charter of that city conferred no civil jurisdiction upon the mayor, but did enumerate other jurisdiction and powers, and the spirit of the decision is, that where the mode of collection of the tax was not expressly provided by the charter, the council might by ordinance provide the manner of collection.

So far, we have discussed the question involved in the light of the express authority given municipal corporations by the principal and granting clause of Section 1692, Revised Statutes, and the powers necessarily incident to the exercise and enforcement of that authority.

We now pass to another section of the statute, to inquire what bearing it may have on the pending controversy.

Section 2693, Revised Statutes, provides, that,— “nothing in this chapter shall be construed to prevent any corporation that may elect to do so, from levying and collecting taxes, as authorized by this title, within the corporation; and when any corporation elects to levy and collect such taxes, the council shall provide by ordinance, for the appointment and control of the necessary officers to carry the same into effect; which officers shall have the power, and be under all the restrictions of county auditors, county treasurers, and township assessors so far as the same are applicable to them, except in the sale of delinquent lands.”

This seems to be a general provision in Chapter 1 of Title 12 of the municipal code. Chapter 1 of Title 12 is upon the subject of finance and taxation, fixing the rates of levies, etc. And Title 12 embraces the entire municipal code. So, that sewer taxes are authorized in this title, and the corporation may elect as to the manner of collection of such taxes as are within the corporation. The section (2693) authorizes the council to select and appoint- by ordinance the officer or officers to levy and collect such taxes. This section in its present form has been a part of the-municipal law since the adoption of the revised code-passed May 7, 1869, and w-hile its authority may not. often be exercised by municipal corporations in the particular manner permitted, yet it seems to clothe them wdth ample power to manage and control matters of purely local taxation.

In the case before us, the ordinance might well be defended under this section, if it lacked sanction of authority under any other provision of the statute.

The village clerk was selected as the officer to receive payments of the assessments, and this was done by ordinance, the regularity of the passage of which is not questioned in the record.

There is another and broader view to be taken of this case, and it stands on more than a statutory plane.. It rests upon our sense of w'hat is right, and that just; and proper regard for obligations wffiich an officer voluntarily assumes to the public.

Carter, the village clerk, availed himself of the provisions of the ordinance so far as to receive from the village taxpayers sums of money wdiich they were required to pay within a certain period to avoid certification of the same by him to the county auditor.. He did this under at least a colorable authority, and gave receipts as the clerk of the village. Is it any defense to his embezzlement of these funds for him to say the ordinance is invalid? By its provisions; he agreed and undertook to be the servant and agent of the village in collecting and disbursing these assessment funds. He discharged that part of his engagement which relates to the collection of the moneys, and after pocketing the same, he asserts that there is no valid law to punish him for embezzlement. Such a defense is brazen, if nothing more.

Some courts have denied such a defense on the doctrine of estoppel, which they are willing to apply to this class of crimes, as well as in civil actions. This seems to be the opinion of Bishop in his New Criminal Law, section 364, and of the courts in State v. Spaulding, 24 Kan., 1; and State v. O’Brien, 94 Tenn., 79.

We do not think that the doctrine need to be denominated estoppel to have its rightful place in such cases. If the ordinance was recognized by the clerk as sufficient authority for him to obtain control and possession of the public money, he acted upon it as a valid ordinance, the same as did the lot owners in paying to him their assessments. If it was sound enough to enable him to receive the money, it was sound enough to “charge” him with its safe-keeping and disbursement; and if so “charged,” and he converted the funds to his own use, he is guilty of embezzlement. “If he was officer enough to receive the money, he was officer énough to be punished for -embezzling it,” — as said fry the court in one of the above cases.

Wharton on Criminal Law, Vol. 2, section 1920, ¡states the rule thus: “While the reason of the thing requires that the money embezzled should have been received by the defendant within the orbit of his employment, yet where he succeeds in getting the money on the basis of such employment from third parties, and when there is a legal duty resting on him to pay over such money to his employers, then the embezzlement of such money is within the statute.”

The State v. Spaulding, 24 Kan., supra, and The State v. O'Brien, 94 Tenn., supra, are only some of the decided eases which support the proposition. Other cases are cited therein.

This court has not been silent on this subject.

In the State of Ohio v. Pohlmeyer, 59 Ohio St., 491, it is seen that the accused in that case, had been ■employed as the agent of The W. L. Douglas Shoe •Company, a corporation organized under the laws of Massachusetts. It was charged in the indictment that as such agent, Pohlmeyer received certain money in the course of his employment, which he embezzled. ■On the trial the accused called and proved by the Secretary of State, that The W. L. Douglas Shoe Co., had not complied with certain laws of Ohio by filing ■certificates as required before it could lawfully do business in Ohio. The business done by'•the agent was therefore illegally done. The court for this rearson directed a verdict of acquittal, instructing it that the accused could not be the agent of the company. On considering the exception to this decision of the trial court, this court said on page 495: “The sections clearly disclose the purpose of the general .assembly that foreign corporations shall be put on the same footing with domestic corporations with respect to fiscal burdens, to the business which they may carry on in the state and to service of judicial process within the state. They do not disclose a purpose * * * to make booty of the property of a corporation which does not comply with the provisions of the act * * * . And the rule that one who receives money or any other thing of value in the assumed exercise of authority as agent for' another, is estopped thereafter to deny such authority, applies in criminal prosecutions as well as in civil actions.” The application of the foregoing to this case is apparent.

We have no doubt that the trial court erred in sustaining the motion in arrest of judgment.'

We do not have the question of liability of the sure' ties on the bond of the clerk, for moneys collected under an ordinance passed either before, or after the execution of the bond, and in what has been said in this opinion, we do not pass on such probable or possible question.

Exceptions sustained.

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