
    The State of Ohio v. Thomas.
    
      Criminal law — Indictment—Motion to quash — Plea in abatement — • A judge of court of common pleas has authority to hold court in any county in his district though not so designated — Section 468, Revised Statutes — Legality of jtidicial acts on holidays — Sections 457, and 4446-2, Revised Statutes — Labor Day — Selection of grand jurors and filling vacancy caused by sickness — Section 7202 Revised Statutes.
    
    1. A judge of the court of common pleas has authority to hold court in any county in his district, though not designated by the judges of the district, as provided by section 468 of the Revised Statutes, to hold court in that county; and an indictment found and returned at a term so held is not invalid, either because the judge holding the term was not designated to hold the same, or because the judges of the district failed to apportion the labor of holding the courts among themselves, and issue an order specifying the terms to be held by each judge.
    2. Construing section 457 of the Revised Statutes, with section 4446-2, which makes the first Monday in September a holiday to be known as labor day, it is not unlawful to hold the court of common pleas on that day when the judges of the district in the exercise of their powers under the first of these sections have fixed that day for the commencement of the term; and an indictment found and returned by a grand jury impaneled and sworn on on that day is not, on that account, invalid.
    3. Where, after a grand jury has been sworn, a member is discharged on account of sickness and another person having the legal qualifications is sworn in his stead, as provided by section 7202 of the Revised Statutes, and the person so sworn takes his place on the panel, the body so constituted is a legal grand jury, though a foreman be not again appointed, nor the oath re-administered to him, or to the other members as a body.
    
      4. It is not necessary that the records of the court should show how, or by whom, the grand jurors were selected and drawn. The legal presumption is that duty was regularly performed by the proper officers; but if it was not so done, that is not a valid objection to an indictment.
    (Decided January 9, 1900.)
    Exceptions by tbe prosecuting attorney to tbe ruling of tbe Court of Common Pleas of Brown County.
    
      The grand jury empanelled at the September term, 1899, of the court of common pleas of Brown county, found and returned the following indictment against William Thomas for horse stealing and grand larceny:
    “The jurors of the grand jury of the state of Ohio, within and for the body of the county of Brown aforesaid, on their oaths, in the name and by the authority of the state of Ohio, do find and present that William Thomas, late of the county aforesaid, on the 17th day of July, in the year of our Lord, one thousand, eight hundred and ninety-nine, at the county aforesaid, unlawfully and purposely did steal, take and drive away one bay mare, of the value of forty dollars ($40.00), the personal property of Frank E. Boyd, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio.
    And the jurors of the grand jury aforesaid, in and for the county aforesaid, upon their oaths aforesaid, and in the name and by the authority of the state of Ohio aforesaid, do find and present that the said William Thomas aforesaid, late of the county aforesaid, at the time and date aforesaid, at the county aforesaid, unlawfully and purposely did take, steal and haul away one black-painted, top buggy, then and there being of the value of fifty dollars ($50.00), the personal property, goods and chattels of one Frank E. Boyd, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”
    The indictment was duly signed and endorsed, and was placed on file by the clerk. At the same term the accused filed the following motion to quash the indictment:
    “The defendant, William Thomas, moves the court to quash the said indictment against him for the following defects appearing on the face of the record, to-wit:
    1st — Because no judge was assigned and designated to hold the April term, A. D. 1899, of said common pleas court, as required by section 468 of the revised Statutes of the state of Ohio.
    2nd — Because no judge was assigned and designated to hold the September term, A. D. 1899, of said court, as required by law.
    3d — Because no valid order was made for the drawing of the grand jury which found said indictment.
    4th — The judge, who fixed and determined the number of ballots to be drawn from the jury wheel for the grand jury and the petit jury for the September term, A. D. 1899, of said court, had not been designated to hold the common pleas court in said county, as required by law.
    5th — The grand jury, which found said indictment, was not drawn and empanelled as required by law.
    6th — The record does not show that the grand jury, which found said indictment, was drawn at the time and place and by the persons designated by law.
    7th — The judge, who convened and presided at the September term, A. D. 1899, of the said court of common pleas, had no authority or jurisdiction to hold the said September term, A. D. 1899, of the said court of common pleas; and neither the said judge, nor the said court, had jurisdiction or authority, at the time and place appearing on the face of the records, to open or hold said court, or to empanel, swear or charge, or to have empanelled, sworn or charged the said grand jury, which found the said indictment against this defendant, the day of the convenmg of said court and empanelling of said grand jury, to-wit: the 4th day of September being a legal holiday, to-wit: Labor day.
    Sth — The said grand jury, which found said indictment, had no jurisdiction of the person of this defendant; nor had said grand jury any jurisdiction to inquire into said alleged offense, or present any indictment against this defendant therefor.
    9th — The said Samuel F. Walker, one of the grand jurors who found said indictment, and who was called by the court instead of A. E. Emmett, discharged, was not sworn as such grand juror according to law.
    10th — The said grand jury which found said indictment, after the substitution of the said Samuel F. Walker as a member thereof, for the said A. E. Emmett discharged, was not empanelled, sworn or charged according to law.
    11th — Because no foreman of said grand jury, as it was constituted after the substitution of the said Samuel F. Walker for the said A. E. Emmett, was appointed by the court or sworn in the manner and form prescribed by law.
    12th — The grand jury, which found said indictment, was not empanelled and sworn as required by law.
    13th — Said grand jury was not legally constituted, and was not a lawful grand jury.
    14th — Because said indictment was not prepared, nor presented by the grand jury as required by law.
    15th — Because the said indictment is insufficient in form and substance.
    16th — For other reasons apparent on the record.”
    The motion was sustained, and the defendant ordered to enter into a recognizance, with surety, for his appearance at the next term of the court, to await the action of the grand jury at that term, and in default thereof to stand committed for that purpose. The prosecuting attorney excepted to the ruling of the court in sustaining the motion, and on leave granted him filed a bill of exceptions taken in that behalf, in this court. The only questions argued are those involved in the motion to quash the indictment, and they are sufficiently stated in the opinion.
    
      James W. Tarbell, prosecuting attorney, for the exception.
    We contend that section 468, Revised' Statutes, so far as it requires the judges to fix the terms of the common pleas court is mandatory; but the other provision of the section, for the apportionment of the labor and specifying what judge shall hold each term or part term is merely directory. An act of the essence of a thing required by a statute is imperative; but the mode of doing it may be directory. Hubble v. Rennick, 1 Ohio St., 175; The State v. Elson, 45 Ohio St., 648.
    This court has recognized this rule in a number of cases and marked the distinction in statutes between what is mandatory and what is only directory. Davis v. Smith, 58 N. H., 47. Endlich, Interp. Statutes, Sec. 431, etc.; 14 Vol. Am. and Eng. Ency. Law, 249.
    The essential thing required by revised statute, Sec. 468, is the fixing of the terms of the courts; in that the public is interested, and public policy requires it to be done and it is therefore mandatory; all else, as to what particular judge shall hold the term is directory. Yol. Bouvier’s Law Die., 424.
    The original statute (Laws of Ohio, 72 v. 38) contained the provision that “in arranging the division of labor by the judges, they shall, as far as necessary, so arrange the same as to have the courts held by judges in counties in which the judge holding the same is not a resident;” and this was the law until February 7, 1885. (Laws of Ohio, 82 y. 24). It is common knowledge among lawyers that this provision was regarded by the courts and the bar as directory, and was not generally observed. It has not been the practice among the judges of the courts of common pleas, at their meetings to fix the terms of courts, to specify the judges to hold them, or parts of them, in the counties of the district. This provision has- generally been disregarded, viewed merely as directory, and never been questioned so far as we are advised. “A construction of a statute received and acted on generally by the courts and bar for many years should not be lightly changed.” Dutoit v. Doyle, 16 Ohio St., 400.
    Even if the construction is erroneous, if it would create greater mischief to change it, courts will not do so. No law can require the correction of an error in its construction, which has long existed and has been generally acquiesced in; Lord Coke says not even Magna Charta. Brown v. Farran, 13 Ohio, 140.
    If the construction is doubtful, usage will control. Chestnut v. Shan, 16 Ohio, 599; Craig v. Fox, 16 Ohio, 568; Bank v. Swayne, 8 Ohio, 284.
    Judges of the courts of common pleas are judges of their respective districts, and not of the mere subdivisions thereof. The subdivision of districts is for election purposes merely. Const. Art. 4, Sec. 3; Harris v. Gest, 4 Ohio St., 473; Railway Co. v. Sloan, 31 Ohio St., 1.
    It is not claimed that the grand jury which found the indictment in this case was not composed of “good and lawful” men, possessing all the requisite qaulifications as such grand jurors, but merely the want of a record to show that they were properly drawn. This same question was raised in the case of Blair v. The State, 5 C. C. R., 496, 3 C. D., 242; Huling v. State, 17 Ohio St., 583.
    The organization of the grand jury will be presumed to be regular until the contrary is shown by plea. 9 Amer. and Eng. Ency. Law, p. 5.
    It is not necessary for the record in a criminal case to show affirmatively that the grand jurors were drawn in the presence of the officers to whom that duty is by law committed; if they were not so drawn, that is a matter for plea in abatement. Preston v. State, 63 Ala., p. 127.
    No indictment shall be quashed for any irregularity in the selecting, drawing or summoning of a grand jury, if the jurors who formed the same possessed the requisite qualifications to act as such jurors. Section 5175, Revised Statutes.
    Revised Statutes, section 3177, enumerates the days regarded as holidays, among which is the first Monday of September of each year, and provides that those days “shall for all purposes whatsoever of payment, presentment for payment or acceptance, and the protesting or the giving of notice of non-acceptance, or of non-payment of all such instruments be considered as a first day of the week.” Rev. Stat., See. 4446-2 provides, “The first Monday in September of each and every year shall be known as Labor Day; and for all purposes whatever considered as the first day of the Aveek.” It is not made the first day of the week. No penalty is provided for any act committed on that day that is lawful on other days. Nothing is made an offense that is done on that day that might not be lawfully done on any other day of the week. It gives to each one the personal privilege of the • observance of the day as a holiday, on which no common labor can be enforced, and restricts and limits commercial transactions and demands. Certainly a court might be convened and a grand jury impaneled and charged on the 1st day of January, 4th day of July, 25th day of December, 22d day of February, 30th day of May, or Thanksgiving Day, each of which are legal holidays. Why, then, may it not be done on the first Monday of September? It has been held that acts of amusement, though prohibited on Sunday, may be indulged in on that day. Speidel Grocery Co. v. Armstrong, 8 C. C., 489, 4 C. D., 498.
    While it may be that the court could not enforce the attendance of grand jurors on that day, yet if they came and made no objection, could they not be impanelled and charged, and would not their findings and indictments, made on a subsequent day be valid?
    The transcript in this case shows that the grand jury made a partial report on the 5th day of September, when one of their number was excused and his place filled by another, who was charged in the presence of the other members of the grand jury and they were then sent out to consider of all matters and things brought to their attention. This indictment was not found or returned until after the 5th day of September, as appears from the final report of the grand jury. While the statutes generally enjoin the charging of the grand jury, it has been held that it is not necessary that all of the jurors should hear the full charge. Wadlins case, 11 Mass., 142; State v. Frosseth, 16 Minn., 313; Frindley v. People, 1 Mich., 235.
    Is it absolutely necessary that they should be instructed at all by the judge? 9 Yol. Am. and Eng. Ency. Law, 8.
    
      An affidavit and warrant may be issued for the arrest of an accused person. Publications required by law may be made on that day. As to the prohibition of common labor on Sunday, this court has held that “the words common labor can not extend to the acts of a public officer in the performance of official duty.” Hastings v. Columbus, 42 Ohio St., 585.
    And it has been held that a court may meet and adjourn on Sunday. Jones v. State, 14 C. C. R., 35, 7 C. D., 305.
    Ministerial acts can be performed on Sunday. Is not the selection of grand jurors and their impanel-ling and charge such an act as is not purely judicial, but at most if we may be allowed the expression quasi judicial, partaking of a ministerial character?
    But how can the defendant be prejudiced by such impanelling if the grand jury is constituted of men having legal qualifications? Rev. Stat., Sec. 5175.
    How does what has been done “tend to the prejudice of the substantial rights of the defendant upon the merits?” And is it not the policy of the law to uphold the administration of the criminal law, if no substantial right of the defendant is prejudiced? Rev. Stat., Sec. 7215.
    The substitution of Samuel F. Walker in the place of A. E. Emmet, who took sick after the grand jury was sworn, was done in all respects in conformity to law; and there was no defect in the constitution of the grand jury that found the indictment because of anything done or omitted in the matter. It is a constitutional provision that no person shall be held to answer to a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury; but the mode of constituting, impanelling and maintaining the wholeness or integrity of the grand jury, is a matter of either common or statutory law; in Ohio it is statutory, wholly. Section 7202.
    In exact' conformity with the provisions of this section were the proceedings complained of. The grand jury had been sworn; a case of the sickness of a grand juror after the grand jury was sworn, occurred ; court caused another to be sworn in his stead. And so, the integrity of the grand jury was maintained because of said section 7202, and in accordance with its provisions. Amer. & Eng. Ency. Law, Yol. 9, page 6, note 4."
    The only provision upon the subject of the number, in Ohio, is that the clerk shall draw twenty-seven ballots from the jury box, “the persons named on the first fifteen of which shall be summoned as grand jurors.” Section 5167, R. S.
    Would it not be competent for the legislature to provide that any twelve of the fifteen drawn and impanelled might transact business and present indictments? There is nothing sacred about the number fifteen; the number varied at common law from time to time, and is not uniform in the states. Would it not be competent for the legislature to provide that in case of the sickness, death or discharge of a grand juror, that the remaining number might lawfully present indictments? For a stronger reason the legislature has seen fit to empower the court with the right to swear into the jury one person in the stead of another. Wharton on Criminal Law, Yol. 1, Sec. 467.
    Section 7203 provides when and how a new grand jury shall be made. This can only be done “after the grand jury has been discharged.” Discharged by whom or what? Manifestly, by the court. It is contended, however, that section 7202 is but a declaration that the jurors of the grand jury that had been sworn may be called upon the grand jury to be made anew. The folly of this contention may be seen from many points of view. We notice but one, namely, that section 7202 covers the case of a discharge of a grand juror, while section 7203 provides for a new grand jury in the case of a necessity arising after the discharge of the grand jury.
    Again, it is claimed that section 7191 and 7192 prescribe in terms the oath to be administered to the foreman, and to the other jurors, and that the language of the oath being given, and the provisions being for the swearing of all except the foreman at the same time, that an oath with any variation is not sufficient. If this were so, a juror, who might have conscientious scruples about taking an oath and who wanted to affirm, could not qualify.
    Aside from the above consideration, the fact that section 7202 provides that another person shall be sworn, etc., necessarily implies, or rather carries with it, the right to administer the oath as it was administered in this case.
    The method of swearing all at the same time is founded in convenience and consideration of time. Anciently, the jury was sworn three at a time. Cliitty’s Criminal Law, Yol. 1, Chap. 6, Sec. 312 and 314.
    Our statute adopts the common law oath, and although the form of the oath was prescribed authoritatively and with great solemnity, yet in the administration of it, the precise form at common law was not material and variations were allowable. Chitty’s Criminal Law, Yol. 1, Chap. 8, Sec. 552.
    The same right to vary the oath obtained as to witnesses. Same, Vol. 1, Chap. 14, Sec. 617.
    It is enough that the form of the oath be substantially observed. Amer. and Eng. Encyclopedia of Law, Vol. 9, page 7.
    
      W. D. Young, E. R. Young, G. Bambach and Ulric Sloane, contra.
    
    The first five defects alleged in the motion to qnash are based upon the fact that the judge who ordered the drawing of the grand jury, fixed and determined the number of ballots to be drawn from the jury wheel for the grand jury, and who held the term of court at which the jury was impanelled and indictment found, had not been assigned or designated as required by section 468 of the Revised Statutes.
    The order referred to in this section is the one provided for in R. S., sections 457 and 458.
    The constitution provides that, “Courts of Common pies shall be held by one or more of these judges in every county in the district, as often as may be provided by law.” Const. Art. IV, Sec. 3.
    The constitution further provides that, “the courts of common pleas shall be holden at such times and places as shall be provided by law.” Art. IV, Sec. 10.
    From the section of the constitution first above quoted, that the number of judges in a district cannot be less than three; and the number now runs up to thirteen in the second district, and each of the districts have more than three. Jurisdiction given to the common pleas court generally by section R. S. 456.
    Now it seems clear from the sections quoted that while under section 456, jurisdiction is given to the common pleas court; and that judges are provided for, elected and qualified, yet no individual judge has authority to put the jurisdiction of any particular court into operation unless the time and place of holding that court be fixed and he be designated as the judge to hold that court.
    The sixth specification of error in the motion to quash is that the record does not show that the grand jury which found the indictment was drawn at the time and place and by the persons designated by law.
    We claim: The drawing of the grand jury list is an essential step in the prosecution for crime.
    An indictment can be found only by a lawful grand jury. Doyle v. The State, 17 Ohio 222.
    The fact that the grand jury was drawn according to law must appear in the record.- There can be no presumption or intendment against the accused.
    If the record must disclose the names of the grand jurors, and that it must cannot be doubted, there is more potent reason for the requirement, that their names should have been lawfully selected.
    This omission cannot be supplied by presumption. Goodwin v. State, 16 Ohio St., 344; Cantwell v. State, 18 Ohio St., 447.
    The book denominated the bill of exceptions, “The Jury Book,” is not a part of the records of the court. It is not under the control of the court, is not required to be kept, does not purport to record any step in the legal proceedings as a part of the history of any court, and therefore cannot be considered as supplying the defect in this record.
    The seventh and eighth defects alleged in the motion to quash are founded on the fact that the court convened, and the grand jury which found the indictment were sworn and impanelled on the 4th day of September, 1899, being the first Monday of September,. a legal holiday, to-wit, Labor Day. That is, if the grand jury which found the indictment was impanlled and sworn at all, because as will be seen by the ninth defect alleged in the motion, one of the members of the grand jury impanelled on the fourth was discharged on the fifth and another sworn in his place, without reswearing any of the members that had been impanelled on the fourth.
    
      We claim that the court could not lawfully transact any business on Labor Day, except to adjourn to. a subsequent day; and that its action in impanelling the grand jury was absolutely void, and the grand jury impanelled and sworn on that day was illegal and wholly without lawful power to find the indictment. R. S., Sec. 4446-2; Speidle Grocery Co. v. Armstrong, 12 C. D., 534; Jones v. State, 7 C. D., 305.
    We claim that although, by virtue of R. S. 7202, the court had a right to discharge the sick member and make the substitution of Walker, yet that this action was but a part of the proceedings to make another and different grand jury, which to become a legal grand jury, a foreman should have been selected and the jury sworn as provided in sections 7190, 7191 and 7203; and that until these provisions were complied with there was no grand jury valid to find the indictment after the discharge of Emmett.
    The discharge of one member of the grand jury was a discharge of all, a dissolution of the jury, entirely destroying it. It obliterated the grand jury.
    There were two grand juries, or to speak nearer accurately, there was one grand jury sworn and impanelled on the fourth of September, and on the fifth after this one was dissolved, there was an attempt to impanel another.
    When Walker was substituted he was the only one sworn, and we maintain, was not legally sworn. No foreman was selected or sworn, and none of the fourteen men who had been members of the defunct grand jury were sworn as members of the new one.
    When was the grand jury impanelled which found the indictment? Was it on the fourth of September or on the fifth? If on the fourth, Walker was not impanelled or sworn on that day; if on the fifth, the remaining fourteen were not sworn on that day. Young v. The State, 6 Ohio, 435.
    All the defects of which we complain occurred in that stage of the proceedings in the prosecution wholly ex parte, and under the exclusive control of the plaintiff in error, and when the only safeguard "of the defendant’s rights was in a faithful and proper adherence to the commands of the law on the part of the plaintiff. Nothing has concluded the defendant. He has not waived anything, and there can he no presumption against him. He has a right to demand that he shall not be further prosecuted except by due course of law, and this he has done by his motion to quash. Doyle v. State, 17 Ohio, 225; Haynes v. State, 12 Ohio St., 622; Goodin v. State, 16 Ohio St., 346; Cantwell v. State, 18 Ohio St., 477.
    The provision of section 468 that “the judges, when they issue their order fixing their terms, shall specify therein what terms, or parts thereof, shall he held by each judge,” means that the judges designated in section 457 shall assign the judge to hold any term or part of term of any court of common pleas of any county in the particular district.
    Construed together with Section 557, it seems clear that the provision was intended to advise the public, not only of the times for the convening of the court, but also of the person who is to preside over it, the one being of as much importance as the other, and especially is that true when we consider the provisions of section 550, Eev. Stat., which we will call attention to further along.
    The language of these provisions is mandatory, and not merely permissive or directory.
    If this provision as to the assignment of a judge to hold the term is mandatory, what is the consequence of the term being opened and held by a judge of the district not assigned?
    Simply that such judge acted without authority, and as he is an integral and essential factor in the constitution of that court, that the term so held is held without authority.
    It is essential that all statutes intended to secure certainty and regularity, in the administration of justice, should be rigidly and to the letter enforced. District Court, case 34, Ohio St., 440.
    It is true that before the passage of this statute under consideration, any judge of the district could hold common pleas court in any county of his district. Harris v. Gest, 4 Ohio St., 472; Hollister v. Judges, 8 Ohio St., 254.
    Now the fact that this statute makes a different rule is conclusive, we think, as to our claim that the legislature intended to change the old practice and institute an entirely new one, and for substantial reasons of public policy. 23 Am. & Eng. Enc. of Law, 468; Norwegian Street, 81 Pa. St., 349.
    An indictment found at a term of court not authorized is void. State v. McNamara, 3 Nev., 70; O’Byrnes v. State., 57 Ala., 25; Davis v. State, 46 Ala., 80.
    The record fails to show that the grand jury which found the indictment was drawn, as required by law; that is, there is no record, as we claim, showing that a grand jury for the September term was drawn.
    The drawing of a grand jury is an essential step in the prosecution for crime; for an indictment can only be found by a lawful grand jury. Doyle v. State, 17 Ohio, 222; Young v. State, 6 Ohio, 435.
    So essential a fact in the history of prosecution should appear in the record. If the record must disclose the names of the grand jury, as has been held in Mahan v. State, 10 Ohio, 233, Foutz v. State, 8 Ohio St., 104, why is it not necessary that the record should disclose the fact that a grand jury was drawn?
    This omission cannot be supplied by intendment or presumption. Goodwin v. State, 16 Ohio St., 344; Cantwell v. State, 18 Ohio St., 477.
    The book denominated in the bill of exceptions “The Jury Book,” is not a part of the records of the court.
    That book is not under the control of the court, is not required to be kept, does not purport to record any step in the legal proceedings as a part of the history of the case, and therefore cannot be regarded as supplying the defect in this record.
   Williams, J.

The objections made to the indictment are, in substance: (1) that the judge who opened and held the term of the court at which the indictment was found, was without jurisdiction to impanel the grand jury or to receive its report, because he had not been assigned to hold that term, by the judges of the district, nor so designated in any order issued by them; (2) that the grand jury was without authority to find and return the indictment, because it was impaneled and sworn on a legal holiday, known as Labor Day; (3) that the body by which the indictment was found and returned was not a legally constituted grand'jury, for the reason that, after the original panel was sworn, and before the indictment was returned, a new member was substituted in the place of one who was excused on account of sickness, and after the substitution the body was not again sworn and charged, though the new member was; and, (4) that the record fails to show the grand jury was selected and drawn as required by law.

It should be observed here that none of these objections properly arise on motion to quash; and, for that reason alone, the exception should be sustained. Except so far as they tender issues of fact, the proper mode of doing which is by plea in abatement, they relate to alleged irregularities in selecting and impaneling the grand jury, which do not affect the individual competency of its member, and are available, if at all, only by challenge. Properly speaking, the record of a criminal case, where the offense is an indictable one, except when the accused is bound over to await the action of the grand jury, commences with the return of the indictment. While the preliminary steps in the formation of the grand jury are proper matters of record, they concern the public rather than the accused, if the body that returns the indictment is composed of men possessing the necessary qualifications; and defects in the record of those steps are not those contemplated by section 7249 of the Revised Statutes, for which a motion to quash an indictment may be made.

In as much, however, as the bill of exceptions contains a finding and agreed statement of the facts on which the objections to the indictment are based, and there are other cases pending on indictments found by the same grand jury, in which the same questions are made by plea in abatement, we have concluded, after some hesitation, to consider and dispose of the questions as if presented in that mode. And it may be remarked at the outset that the objections are not to be tested by the over-refined technicalities that were the outgrowth of a system of criminal laws of unreasonable severity, and a humane desire on the part of the courts to shield those charged with their voilation from excessive and cruel punishment, but by the rule of our criminal code by which defects and imperfections are to be disregarded which do not tend to the prejudice of the stubstantial rights of the defendant on the merits.

The first one of the objections above stated is founded on section 468 of the Revised Statutes, which provides that: “The judges of the common pleas court in each common pleas district, or a majority of them, shall, except as otherwise provided by law, at the time they fix.the terms of the common pleas courts in their respective districts, having previously ascertained, as near as practicable, the probable amount of business in each of the counties of the district, apportion the labor of holding the common pleas courts of such districts, as equally as may be, among the judges of the district; and the judges, when they issue their order fixing their terms, shall specify therein what terms, or parts thereof, Of the common pleas courts shall be held by each judge, in accordance with such apportionment; and not less than two hundred and forty days of open session of the common pleas court shall be held by each judge during the year, unless all business assigned to him is sooner disposed of.” To arrive at the proper construction of this section, it is necessary to notice section 457, which is as follows: “The judges of the common pleas court in each common pleas district, or a majority of them, shall on the third Tuesday in October, in each year, issue their written order to the clerk of the common pleas court in each county in such district, fixing the day of the commencement of each term of the common pleas courts in each county in such district for the next judicial year, which shall commence on the first day of January; and any order so made may be changed by a subsequent order made and issued by them to the several clerks of the court in the district; and the court shall be held for the year covered by such order or orders at the times so ordered; provided, that not less than three terms of the common pleas court shall be held in any county each year.”

The judges of the common pleas district of which the county of Brown is a part, at their meeting in October, 1898, fixed the day for the commencement of each term of the court in each county of the district for the next judicial year, and issued their order to that effect to the clerk of each county of the district, in conformity with section 457, but failed to specify in the order what terms or parts thereof should be held by each common pleas judge of the district, or otherwise apportion the labor of holding the courts to the several judges; and the claim is, that in consequence of this failure, no judge of the district was authorized to open or hold the term of court at which the indictment in question was returned ; and, there being no court, there could be no legally constituted grand jury. If this claim should be sustained, the result would be serious, both to the public, and with respect to the rights and interests of individuals. The omission, intentional or otherwise, to make the apportionment of the labor of holding the courts among the judges would relieve them of their judicial duties, and suspend the administration of justice, in a large degree, throughout the district, endangering the peace and good order of society, and entailing incalculable loss upon its members. A statute having that effect could not be upheld. By the constitution the judicial power of the state is vested, in part, in courts of common pleas, and it requires that the state shall be divided into districts, and these into subdivisions, in each of which at least one judge shall be elected. The duty is enjoined on these judges to hold court in the several counties of the district, as often as may be provided by law. So that, the judicial power with which the judges are clothed is co-extensive with the district, and in that respect cannot be restricted or suspended by law. What the law may do, is to define the jurisdiction of the courts, prescribe the mode of procedure, fix the number of terms to be held in each county, and require the judges to hold them. For many years following the adoption of the present constitution there was no statute like section 468, and yet any judge held the court in any county of his district, usually in his subdivision, without other authority than that which pertained to his office; and manifestly it was not the purpose of that statute to limit the power of the judges in this respect. Its evident design was to enable the judges to make an equitable division among themselves, of their judicial labors, so that, as nearly as practicable, the judges should bear their equal share of the burdens, and each county might have court for such time as should be necessary for the transaction of the business. The omission of the judges to make the apportionment, or designate the respective judges who should hold the terms in the several counties, cannot affect the right of any judge to hold court in any county of his district, nor render invalid any proceeding at a term so held.

The second objection to the indictment is founded on section 4446-2 of the Revised Statutes, which provides that: “The first Monday in September, of each and every year, shall be known as Labor Day; and for all purposes whatever considered as the first day of the week.” The term of the court at which this indictment was found, commenced on the first Monday in September, 1899, and the grand jury that returned the indictment, was impanelled and sworn on that day, though the indictment was found and returned at a subsequent day of the term; and the contention is, that as the statute declares Labor Day shall be considered as the first day of the week for all purposes, it was unlawful for the court to transact any business on that day; and, consequently, the body impanelled as a grand jury was not a lawful grand jury, and its subsequent action was void.

If it be conceded that the statute places Labor Day in the same category with Sunday for all. purposes,, does it follow that a grand jury impanelled on that day is an illegal body without authority to thereafter hear evidence and find indictments? The distinctive principle established by the case of Bloom v. Richards, 2 Ohio St., 387, is, that Sunday laws are mere civil regulations for the good of society, and not designed to enforce or require any religious observance of the day; and, that being penal in their nature, such laws will not be extended by construction beyond their plain import; so that, whatever act may be lawfully done on any other day of the week, is equally lawful on Sunday, unless its performance on that day is forbidden by statute. Our statute goes no further than to the prohibition, on that day, of common labor, the arrest .of persons on civil process, the selling of intoxicating liquors, and certain shows, games and sports. It was held in that case that the making of a contract for the sale of land did not come within the prohibition against common labor on Sunday, and the specific performance of such a contract made on that day was enforced. The case was thoroughly considered, and it is shown by Judge Thurman, in an opinion of great research, that the principles stated are maintained by the great weight of authority in this country, and that under constitutions like ours, an enactment could not be sustained whose purpose was simply to enforce the observance of Sunday as a religious duty. It is generally held that statutes which in terms require the closing of public offices on Sunday, do not prevent the performance of judicial duties by judges on that day. There is no provision in our statutes, as there is in those of many of the states, and was in 29 Car., 2 C. 7, under which most of the English decisions on the subject were made, forbidding the holding of courts, or judicial proceedings on Sundays, or holidays, or requiring public offices to be closed, or all secular business suspended on that day; and the omission of such provisions from our statutes, in view of their presence in the statutes of other states, and especially since the decision of Bloom v. Richards, supra, which has been accepted as the law of this state for nearly half a century, leads to the conclusion that the legislature has not deemed it advisable to incorporate either of them into the laws of the state. Certain, it is, that neither of them is embraced in the term common labor, as used in our statute. Where the transaction of judicial business on Sunday or holidays is expressly forbidden by statute, acts of a ministerial character on those days are held lawful; such as the issue of a warrant for the apprehension of a criminal and his admission to bail, the receiving of a verdict and committing the defendant for sentence, the issue and service of civil process, and many other acts of a similar nature. All of which is a recognition of the rule already stated, that whatever acts may be lawfully done on other days are also lawful when performed on Sunday or a holiday, except when, and in so far as their performance on those days • is prohibited by statute. The case of Lampe v. Manning, 38 Wis., 673, is sometimes cited in support of the proposition that a holiday is ex vi termini dies non juridicus, but the remark to that effect, of the judge who prepared the opinion in that case, loses its force when it is considered that the statute governing the ease expressly forbade the opening of any court for a trial on a legal holiday. Our attention has also been called to the case of Spiedel Grocery Co. v. Armstrong, 8 C. C. R., 489, where it is held that a judgment rendered on Labor Day was void. That case was affirmed by this court without report, and was not much considered. The correctness of the decision may well be doubted; but it is not necessary to reconsider it here. It is distinguishable from the case before us, on a ground upon which we prefer to place the decision of this case.

It has already been observed that the constitution confers on the general assembly power to fix the terms of the court of common pleas in all the counties of each district; and the courts are required to be held at such times and places as are provided by law. In the exercise of this power the legislature may designate by statute, as has often been done, the times for holding the courts, or provide a mode by which such times shall be fixed. It has adopted the latter course in the enactment of section 457, heretofore quoted, by which judges of the district, at the annual meeting provided for, are required to fix the day for the commencement of each term of the court in each county of the district for the next judicial year. No restraint is placed on the power of the judges with respect to the days they may fix for the commencement of the term, but that is left entirely to their discretion; and, the courts are required to commence on the days they shall so fix. Considering this section in connection with the Labor Day statute, under a well-settled rule of interpretation, the former being a special provision for particular, cases, acts authorized by it may be regarded as excepted from the operation of the latter, especially since the latter contains no express prohibition against such acts. As a general rule no act can be considered unlawful by Implication from one statute, that is expressly authorized and required by another valid statute. Though that section (457) was passed before the Labor Day statute, there is nothing in the latter to indicate an intention to repeal the former, or that restricts its operation; nor, is there such inconsistency between them that both may not stand together and each have its appropriate effect. The prohibitive and penal provisions of the latter statute, whatever those may be, cannot be enlarged by implication so as to render unlawful any act authorized by the former, and it is not claimed that result is accomplished by any express provision.

If it were enacted by statute that a term of court should commence on the first Monday of September, it could not be doubted that the term so held would be lawful, and its proceedings valid, notwithstanding the statute making that day a holiday; and the effect cannot be different where that day is so fixed by the judges under the express authority conferred on them by statute. It was perfectly competent for the legislature to make any act lawful when done on Labor Day, that is lawful on any other day, and to that extent the statute creating Labor Day must be regarded as qualified and restrained. It was upon this principle that the case of Perkins v. Jones, 28 Wis., 243, was decided. It was there held that a statute which declared that no court shall transact any business on the 22nd day of February, “unless it be for the purpose of instructing or discharging a jury, or receiving a verdict,” and another statute which required that in all cases where a verdict shall be rendered in a justice’s court, the justice shall ‘forthwith’ render judgment” — “must be construed together so as to prevent a failure of justice, and must be held to authorize an immediate entry of judgment where the verdict is received on the 22nd of February.” It is apparent that we have before us a much stronger case for the application of the principle, than the one just cited, for there is, as has been seen, no express provision of our labor day statute that conflicts with section 457. Ordinarily it may be supposed that the judges would not fix a holiday for the commencement of a term of court, but if they choose to do so, or do so inadvertently, it is nevertheless an authorized exercise of the powers conferred on them, and neither their action, nor that of the court held in pursuance thereof is, for that reason void.

It appears from the bill of exceptions, that after the grand jury had been sworn and charged, one of its members was discharged on account of sickness, and another person having all legal qualifications was sworn and substituted as a grand juror in the place of the one discharged; and the body thus constituted, found the indictment in question. It is contended that body was not a legal grand jury; that when the member was discharged the grand jury of which he had been a member was dissolved, and when the substitution was made it was necessary to organize a new grand jury by the appointment of a foreman, and administering the necessary oath to him, and to his fellow jurors. But the action of the court seems to have been in conformity with the statute, by which it is provided that: “In case of sickness, death, discharge or non-attendance of a grand juror after the grand jury is sworn, the court, at its discretion, may cause another to be sworn in his stead.”' Section 7202, Revised Statutes. When the new juror is so sworn and takes his place, the vacancy is filled, and the grand jury again complete; and in their deliberations, findings and presentments, all of the grand jurors are bound by the same oath. The readministration of the oath to the foreman, and to the members as a body, could add nothing to its obligation, is not required by the statute, and would at most be but an idle ceremony, the omission of which could work no substantial injury.

The remaining objection to the indictment is sufficiently answered by what has already been said. It is not necessary that the records of the court should show how, or by whom, the grand jurors were selected and drawn. The presumption of law is that duty was regularly performed by the proper officers; but if it was not so done, the objection, if it can be of any avail, must be made in a different mode.

Exceptions sustained.  