
    John U. Kreidler v. The State of Ohio.
    An officer legally appointed and qualified, continuing to act as such officer after the expiration of his term, in good faith, reasonably believing it to be his duty to discharge the duties of tbe office until his successor is qualified, is not to be regarded as criminally usurping the office, within the meaning of section 13 of the act of March 8, 1831, “ for the punishment of certain offenses therein named.”
    Error to the Probate Court of Montgomery county.
    At the July term, 1869, of the Probate Court of Montgomery county, JohnU. Kreidler was prosecuted for usurping the office of first lieutenant of police for the city of Hayton. The information did not specify any particular act done by him further than what was contained in the general charge, that from the 10th to the 29th day of May, 1869, he took upon himself to officiate in the office of first lieutenant of police for the city of Dayton, being an office of authority in the State of Ohio, without being legally authorized to officiate in said office.
    It appeared on the trial that the city council of the city of Dayton, pursuant to the first section of act of April 16, 1868 (65 Ohio L. 94), passed an ordinance for the establishment and organization of the department of police for the city of Dayton. Among other things it was ordained that the city council should annually elect two lieutenants of police, who should continue in office until their successors were chosen and qualified.
    On the 15th day of May, 1868, Kreidler was duly appointed and qualified first lieutenant of police, and from that time discharged the duties of the office until the 29th day of May, 1869.
    . On the 6th day of May, 1869, the act of April 16, 1868, was amended so as to require the city marshal to appoint the lieutenants of police (66 Ohio L. 141), who are required to give bond in the manner and in the amount required by ordinance of the city marshal. The first section of the act of 1868 was repealed by that of 1869; and it is claimed that the term of office of the lieutenants appointed in 1868 was thereby abrogated.
    On the 10th day of May, 1869, the city marshal appointed Amos Clark first lieutenant of police for the city of Dayton, who then tendered his bond, and oath of office indorsed thereon, to the city council; but, by reason of alleged defects, the bond was not accepted or approved by the council.
    Thereupon, Kreidler, for the purpose of showing that he acted in good faith, believing it to be his duty to discharge the duties of said office during the period in controversy, on the gi’ound that his-successor had not qualified, and that he was therefore such officer de facto, if not de jure, offered to prove by the mayor of the city and members of the city council and board of police, acts tending to show that he was regarded and treated by the city government as continuing in office until the 29th of May, 1869; but the court refused to permit him to give the evidence to the jury, and he duly excepted.
    On behalf of Kreidler, the court was requested to charge the jury, that if he continued, under a legal appointment made in 1868, to serve as first lieutenant of police during the time mentioned in the information, believing that it was his duty and legal right so to do, and the circumstances were such as might reasonably warrant such belief it was their duty to acquit; and that it would be their duty to acquit if no one had been legally appointed and qualified to sucpeed him in the office.
    The court refused so to charge, but did charge the jury, that the act of 1869 abrogated the appointment of Kriedler, and that he could not thereafter act as first lieutenant of police either de jure or de facto; and, in' substance, that they must convict, if they found that he did, in fact, act as such officer during the time in question.
    Thereupon, Kriedler excepted to the refusal of the court to charge as requested, and to the charge as given. Having been convicted and sentenced, he prosecuted this proceeding in error to reverse the judgment of the probate court.
    
      Corwin Corwin, for plaintiff in error:
    I. Kriedler was in fact and in law first lieutenant of police at the time he is charged with usurping said office.
    Clark’s bond had not been accepted by the city council. He was therefore a mere appointee and not the incumbent. The State v. McCallister, 11 Ohio, 46-50; The State v. Koffit, 5 Ohio, 358; The State v. Lewis, 10 Ohio St. 128.
    II. The information charges no specific act as committed, by the accused. It does not set forth the facts constituting the crime. The charge is a mere statement of a legal result. This is not sufficient. Lamberton v. The State, 11 Ohio, 282; Foutz v. The State, 8 Ohio St. 113; Davis v. The State, 7 Ohio, 205; Dillingham v. The State, 5 Ohio St. 280; 1 Chitty Crim. Law, 227; 1 Archbold Crim. Prac. & Pl. 291.
    
      III. The information should charge that the defendant assumed to act, knowing he was not such officer; should contain an averment of scienter. Anderson v. The State, 7 Ohio, 611.
    
      W. Munger, Jr., for plaintiff in error:
    The Probate Court erred in overruling the motion to quash the information.
    No specific act or acts of the defendant below are set forth constituting an offense against the laws of the state. The constitution of the state guaranties to the party accused the right to demand the nature and cause of the accusation. Art. 1, sec. 10, Ohio Constitution; Lamberton v. The State, 11 Ohio, 284; Fouts v. The State, 8 Ohio St. 113; Chitty’s Criminal Law, 227.
    The language of the information is, “ did take upon himself,” etc. Eor the force and legal effect of the words “ did take upon himself,” see The State v. Stewart Perry, 2 Bailey (S. C.), 17.
    It was error to refuse to allow the defendant below to show that he was an officer “ de facto,” if not “ de jure.”
    
    
      F. B. Pond, attorney-general, for the state :
    The offense charged in the information is purely a statutory one, and the pleader has framed his information charging the offense in the language of the statute without further expansion. Bishop’s Crim. Pro., sec. 359, and note.
    The information clearly furnishes the accused the “ nature and cause of the accusation against him.” Time, place, and circumstance are given with sufficient certainty. Sanger v. The State, 11 Ohio. 68.
    To have set out some specific act would have made the information no more certain than it is now. It is as well pleaded in this information as to charge in an indictment that a person was a “ common barrator,” or a “ common scold,” or a “ common thief.
    The act of May 6, 1869, repealed the first section of the act of April 16, 1868, and thereby the old office of first lieutenant of police absolutely and unqualifiedly ceased to be. No action of the council of the city could by any possibility keep it alive, either de jure or de facto. No color of office could, in any way, attach to Kriedler from and after May 6, 1869. Birney v. The State, 8 Ohio, 238; Miller & Gibson v. State, 3 Ohio St. 475; 4 Blackstone Com. 27; 1 Archbold Crim. Prac. 55.
    Section 98, S. & C. 429, provides that “if any'.person shall take upon himself to exercise,” etc. The words “ take upon himself” are mere surplusage, useless, and unnecessary, if the construction upon which the prosecution depends is .correct. Strike these words from the section, and the remaining words express, in direct terms, the meaning upon which this prosecution is based. It is not to be presumed that the legislature has made use of words without sense or meaning. These words, as used by the legislature, are equivalent to “willfully and knowingly.” It certainly could not have been the intention of the legislature to provide that every man who should be ousted from an office upon a contest, or upon quo warranto, should, in addition, be punished under this section for officiating in an office without being legally authorized. Section 98 only applies to that class of cases where bad men, for mischievous or corrupt purposes, personate officers of the law, and without color of authority assume to perform their duties.
   Day, C. J.

The prosecution was founded on section 13 of the act of March 8,1831, “ for the punishment of certain offenses therein named.” S. & C. 429. The section enacts, “ That if any person shall take upon himself to exercise or officiate in any office or place of authority, in this state, without being legally ’authorized,” the person so offending shall, upon conviction thereof, be fined or imprisoned as therein stated.

The material question in the case is, whether the mere fact of officiating in an office, without legal authority, is .under all circumstances a crime under this section. The Probate Court proceeded upon the theory that it is. We think otherwise. For, to constitute the offense, a person must do something more than merely discharge the duties of an office without legal authority. He must “ take upon himself” official functions in such sense as implies an assumption of the office without color of right. Therefore, to “take upon himself” the exercise of an office without being legally authorized, within the meaning of the section, is such an assumption of official authority as imports a willful usurpation of an office. This is what was intended to be punished, and nothing short of it comes within the strict sense of the statute. Otherwise, an officer defacto, acting in good faith, under color of right, not designing to “ take upon himself ” an office without legal right, might unconsciously commit a crime in doing what the law would recognize as a valid act.

Nor does it follow that an officer who may be ousted from an office by proceedings in quo warranto is guilty of the criminal offense of usurping the office. It was held in Ohio v. Alling, 12 Ohio, 16, that two common pleas judges, who continued to officiate after their office was terminated by a legislative enactment, which admitted of a reasonable doubt whether that was its legal effect, were defacto judges, and could not be regarded as “usurpers and intruders;” and their acts were held to be valid. It is clear, therefore, that they could not have been regarded as guilty of the crime of usurpation of office.

In the case before us, Kreidler was undeniably lieutenant of police de jure until the 6th of May, 1869, and the question was whether he did not continue such, under the city ordinance, until his successor was qualified. He proposed to prove that he and the city authorities in good faith believed he did; and claimed that if he was not such officer de jure, he acted in good faith under color of right, and therefore could not be regarded as usurping, or intentionally taking upon himself to exercise an office without being legally authorized. The court refused to permit him to make the proof he offered, and denied that any circumstances other than a legal right to the office could shelter him from the crime for which he was prosecuted. Therein we think the court were in error, and that the judgment must, therefore, be reversed, and the cause remanded for a new trial.

McIlvaine, Welch, Stone, and White, JJ., concurred.  