
    The State of Ohio v. Joseph H. Newton et al.
    Section 8 of the “act to prescribe the duties of the attorney-general,” which authorizes certain actions on behalf of the state to be prosecuted in the Court of Common Pleas of Pranklin county, although neither of the defendants may reside or be found in that county, is not repealed by section 47 of the code of civil procedure.
    Error to the Court of Common Pleas of Franklin county.
    This was an action by the State, in the Court of Common Pleas of Franklin county, Ohio, against Joseph H. Newton, auditor of Holmes county, to recover of said Newton certain moneys alleged to have been fraudulently obtained by him, as such auditor, from the state treasury, and wrongfully appropriated to his own use.
    It appears from the petition that on the second Tuesday of October, 1869, the said Joseph H. Newton was duly elected to the office of auditor of Holmes county, Ohio, for the term of two years from the first Monday in March thereafter, and on December 6, 1869, duly qualified as such auditor; that on said first Monday of March, 1870, said Newton entered upon the discharge of the duties of said office, and continued to act as such auditor during said term of two years; that upon the abstract of the returns of the school youth, to wit, “ children between the ages of five and twenty-one years,” of Holmes county, made to the commissioner of common schools on the-day of October, 1869, by the county auditor, as required by law, there was due said county, of the state common-school fund, in the year 1870, and duly paid thereto for distribution according to law, the sum of $14,979.58, of which sum the said auditor failed to distribute according to law, but converted and appropriated to himself, and still retains the sum of $2,676.70, the same being included in the sum of $3,760.94, which the said auditor claims to have paid to the district of Millers-burg, in said county, in excess of the amount due it upon said returns, made to said commissioner; that said abstract, as the said auditor well knew, was not an abstract •of the true number of school youth in said county for the year 1869, as returned to the auditor of said county by the proper officers in that year. The whole number of such youth was 7,912, as shown by the true returns; yet the auditor of said county, on the-day of October, 1869, fraudulently made out, and transmitted to the commissioner of common schools, at Columbus, and certified to be correct, a false and fraudulent abstract of such returns so made to him, in lieu of a true one, as required by law, whereby it appeared that the whole number of such youth for said year was 10,549; and upon this latter number the distributive share of said fund belonging to Holmes county for the year 1870 was based and computed, the distribution, being $1.42 for each of such youth. By means of this fraudulent return and abstract, there was drawn from the state treasury, wrongfully, the sum of $3,744.54, that being the excess over the true amount from said fund in the year 1870, and being the fund out of which said Newton appropriated the said sum of $2,676.70, for which the plaintiff claims judgment, with interest from August 1, 1870.
    There were several other similar causes of action set out in the petition, but differing in the dates of the alleged, conversion.
    To this petition the defendants, by their attorneys, filed a motion, April 12,1875, to quash the summons in the casts and the service thereof, and to dismiss the action, for the reason that the action was not rightly brought in said county of Franklin, and that said summons was not lawfully issued or served; and that the court had not jurisdiction of the action, or of the persons of the defendants, or either of them.
    The Common Pleas sustained the motion and dismissed, the action, to which ruling the plaintiff excepted.
    To reverse the judgment of the Common Pleas this proceeding is prosecuted.
    
      John Little, attorney-general, for the state:
    The question in this ease is, whether the general provisions of section 47 of the code of civil procedure repeal, by implication or supersede the particular provisions of sections 8 and 19 of the attorney-general’s act.
    These acts were passed by the same general assembly, being the first under the new constitution. The practical construction placed upon them from that time to the present has been that there has been no conflict between them.
    A general statute without negative words will not repeal the particular provisions of a former one unless the two are irreconcilably inconsistent. Sedgwick on Stat. Con. 98; Uwarris on Stat. 532; Brown v. County Comm’rs, 21 Penn. St. 37; Lodge v. Gridley, 10 Ohio, 173.
    The repugnancy between two statutes must be clear and so contrary as that they can not be reeoncliled, before the latter will repeal the former by implication. 1 Ohio St. 441; 2 Ohio St. 399, 607; 6 Ohio St. 307; 10 Ohio St. 25, 178; 11 Ohio St. 27, 258; 20, Ohio St. 421.
    A special or particular act, and especially one conferring rights or remedies upon the sovereign,' will not be repealed or modified by a general act without particular provision to that effect. Sedgwick, 98, 99,104, and authorities cited; United States v. Herron, 20 "Wall. 251.
    The general provisions of the code limiting or affecting the rights of private parties do not necessarily apply to-the state as a party. Thus the provisions of section 12 of the code, that “ civil actions . . . can only he brought within the following periods,” etc., has never been held to apply to the state. The statute of limitations does not run against the state. The same may be said of section 85.
    
      Harrison § Olds, for the defendant in error:
    The code undertakes to revise (Constitution, art'. 14, sec. 2) the whole subject of civil practice and proceedings, and is manifestly intended as a complete substitute for all statutory regulations on that subject, save only those expressly excepted. Uniformity was one of its main objects. Code, title 19, chap. 6. Actions brought by the attorney-general in behalf of the state, or in which the state is interested, are not excepted; thus are not mentioned.
    A subsequent statute revising the whole subject-matter of the former act, and evidently intended as a substitute for it, although it contains no express words to that effect, operates to repeal the former. Lorain Plank Road Co. v. Cotton, 12 Ohio St. 263, 272.
    It is a well-settled rule that when a law enacts a thing to be done different from the same thing required by a foxuner law, the first thereby becomes l’epealed without any direct expression of such intention by the law-making power. Moore’s Lessee v. Vance, 1 Ohio, 1,10; Me Vey v. Ohio University, 11 lb. 134, 137.
    Every act is made either for the purpose of making a change in the law, or for the purpose of better declaring the law; and its operation is not to be impeded by the mere fact that it is ixxconsistent with some previous enactment. Lean of My v. Bliss, 5 Beavau, 582.
    When the law is clear and explicit, and its provisions are susceptible of but one intei’pretation, its consequences, if evil, can oxxly be avoided by a change of the law itself, to be effected by legislation, and not judicial action. When a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. Woodbury v. Berry, 18-■Ohio St. 456; Hathaway's will, 4 Ohio St. 388; State ex rel. ■Cincinnati v. Humphrey, 25 Ohio St. 520.
    The repugnancy between section 19 of the attorney-general’s act and section 47 of the code is plain, and the conflict between the two statutes, in this one matérial particular, is direct and irreconcilable upon any recognized rule of statutory construction. Section 47 is mandatory and not permissive.
    The attorney-general’s act was passed nearly a year prior ■to the adoption of the code.
    On the proposition of the attorney-general that a special or particular act, and especially one conferring rights, etc., upon the sovereign, will not be repealed or modified by a general act without particular provision to that effect, the ■court is referred to Sedgwick on Stat. and Con. Law, 36, 105, 106.
   White, J.

The first question for determination is, whether section 8 of the act prescribing the duties of the attorney-general is repealed by the code of civil procedure.

That section is as follows: “ That he (the attorney-general) may prosecute any action or suit at law, or in equity, authorized by the last two sections, in the Court of Common Pleas of Eranklin county, or in the Court of Common Pleas of the county in -which the defendant, or any one or more of the defendants, may reside or be found.”

The two preceding sections referred to relate to suits on the official bonds of delinquent officers, in which the state may be interested; and to suits against assessors and other officers connected with the revenue laws of the state for delinquencies and offenses against those laws.

The repeal is claimed to have been effected by section 47 of the code. That section provides that “ actions for the following causes must be brought in the county where the cause, or some part thereof, arose : . . .

“ 2. An action against a public officer for an act done by him. in virtue or under color of his office, or for a neglect ■of his official duty. /

“ 3. An action on the official bond or undertaking of a public officer.”

In order to determine whether this section of the code repeals by implication the section in question of the attorney-general’s act, the previous state of legislation on the subjects to which the code and the attorney-general’s act respectively relate, should be’considered and kept in view., From such considerations, the main objects sought to be accomplished by these acts respectively become apparent.

Prior to the adoption of the code, there were two systems of remedies for the administration of justice—the common-law system and the system pertaining to courts of chancery. The practice under these systems was regulated by the act of 1831, “to regulate the practice of the judicial courts,” and by the act of the same year “directing the mode of proceeding in chancery.”

To these acts and their respective amendments, suitors-generally were required to look to ascertain the forum in which to sue and the mode of obtaining service of process.

The “ act to prescribe the duties of the attorney-general,” was passed prior to the adoption of the code; but it was no part of the object of the act to establish forms of procedure. It has special reference to the interests of the state; and the provisions now drawn in question relate exclusively to the institution and prosecution of suits on behalf of the state by the attorney-general. The office of attorney-general was first created in 1846, and the original act conferred similar authority on that officer to sue in behalf of the state in the courts of Franklin county. He was then, as he is still, required to keep his office at the capital. The office of attorney-general, by the present constitution, is made a constitutional office; and the present act in relation to it, which was passed since the adoption of the constitution, merely prescribes the duties of the office.

The same reasons of public policy which led originally to the giving of authority to sue in behalf of the state in Franklin county, and to send process to other counties, still exist; and the full force of this policy is recognized in the present act. The design of this special provision in behalf of the state is -to enable the attorney-general to discharge his duties with greater efficiency. If he, like private suitors, were required to sue in the various local courts throughout the state, the litigation, owing to the conflicting terms of the courts and other inconveniences, would, so .far as his personal attention was required, necessarily be much embarrassed and delayed, to the detrimeht of the state.

The code in express terms abolishes the distinction between actions at law and suits in equity, and prescribes in their place one uniform action. It also expressly repeals the practice acts and their amendments, and substitutes in their stead its own modes of procedure; but no reference is made to the attorney-general’s act. It is true the language of section 47, already quoted, is imperative; but the question is, whether that section applies where the state is the substantial party, in respect to the special mode of obtaining process prescribed in the attorney-general’s act.

In Fosdick v. Perrysburg, it was laid down as an established rule in the construction of statutes, that a subsequent Statute treating a subject in general terms, and not expressly contradicting the provisions of the prior act, shall not be considered as intended to affect more particular and positive provisions of the prior act, unless it be absolutely necessary to do so in order to give its words any meaning. 14 Ohio St. 472.

The same' principle, in various forms, has been often recognized. Sedgwick on Stat. Construction, 98; Cole v. Supervisors, 11 Iowa, 552; Pearce v. Bank of Alabama, 33 Ala. 693.

In the present case we find no such repugnancy between the provisions of the two acts as to warrant us in holding the provision in question, of the prior act, to be repealed.

Our conclusion upon this question renders the consideration of the other question raised in the case unnecessary.

• The judgment of the Court of Common Pleas is reversed, and the cause remanded for further proceedings.

There are several other cases depending on the same question, in each of which a similar judgment is rendered.

McIlvaine, C. J., Welch, Rex, and Gilmore, JJ., concurred.  