State v. Kiesewetter.

as true copies, nor for special care in their safe-keeping, nor for perpetuation of evidence of contents by a record of them. The librarian is required to simply preserve the copies which he receives, a duty which attaches to all books and pamphlets of which he has the care. He is not required to make copies for use elswhere, nor is provision made for a certificate of any kind, or for any mode of authenticating them. Yet, if this be competent testimony, the occasion for its introduction may arise as well in any court in the remotest county in the state as in this court. Copies deposited in the library furnish a convenient source of information to any person interested in pending legislation, but it cannot be that the legisture intended that a copy of a bill found in the state library should be treated as a record of a law, or as taking the place of signatures of the presiding officers, and it is apparent that the admission in evidence of the testimony proposed would establish a precedent of a loose and most dangerous character. The effect of a resort to parol proof to establish the validity of a law was fully considered in The State ex rel. Herron v. Smith, 44 Ohio St. 348, and it is not necessary to do more here than refer to that case.

Whether a provision imperative in its terms should be treated as directory or as mandatory, has been held to be a matter of expediency, though Judge Cooley, in his work on constitutional limitations, observes that "courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provision of a constitution." Another author says that "the question is in the main governed by considerations of convenience and justice." Giving effect to the more liberal view, it may be said that if no advantage would be lost, or right destroyed, or benefit sacrificed either to the public, or to an individual by such a holding, the provision might be regarded as directory. Or, if less injury would result by disregarding than by enforcing the provision according to its letter, then it could with propriety be treated as directory merely. But if the lax rule would tend to the injury of the public, or if, applied to the facts of a given case (though possibly conducive to good results

State v. Kiesewetter.

in that special instance), would introduce a dangerous precedent, then, especially as to constitutional provisions, should a court be reluctant to depart from the letter of the constitution. Cooley on Constitutional Limitations, 93; Maxwell on the Interpretation of Statutes, 452; The State v. Covington, 29 Ohio St. 117. In the light of these considerations, we inquire whether section 17, before quoted, should be regarded, in this case, as merely directory, or as embodying a positive requirement? And this is a practical question: Where a bill has received the sanction of a majority of each house of the general assembly, but has not been signed by the presiding officer of either house, or filed in the office of the secretary of state in the regular course of procedure, or enrolled there, or published among the authorized laws, can it be treated as law by the

courts?

We are reluctantly led to the conclusion that it cannot. The advantages to be derived by a recognition of this bill as a law would, we think, be far outweighed by the perils which might follow the establishment of so dangerous a precedent. As applied to this case, the result of this holding but postpones, in all probability, to the meeting of another assembly, the accomplishment of the object sought. Nor will this view. necessarily work irreparable inconvenience as applied to any class of legislation. In a case where the subject-matter of a bill thus defeated is vital to the public. business of the state, the authority of the governor to call together the general assembly, and give opportunity for all needed requirements to be observed, is ample. On the other hand, the importance of furnishing to the people, sources of information, certain in their character and convenient of access, as to what is, and what is not law, is obvious. All are presumed to know the law, and it is of great interest to each citizen, as well as to the public officer, that there be some authentic record to which he may resort to ascertain certainly and definitely what laws are enacted by the legislature; what control him in the daily transaction of business, and of what, at his peril, he is bound to take notice. Whatever conduces to certainty in this regard, therefore, is of great moment to every person in the state, and no rule of construc

State v. Kiese wetter.

tion would be wise which leaves so important a matter in doubt or confusion.

It is urged that to give controlling effect to section 17 would be to clothe the presiding officers of the general assembly with a veto power, and such a result cannot have been intended by the convention which framed the constitution. Certainly that body did not so intend; but we think the result feared is not likely to follow. Our attention is called to the case of Leavenworth v. Higginbotham, 17 Kansas, 62. In that case the bill in question was passed, signed by the governor, and published more than eleven years prior to the decision, and all departments of the state government had held it valid, though it lacked the signature of the presiding officer of the senate. The court decided that "the bill should be held to be valid, although it may not have the signature of the presiding officer of the senate affixed to it." In the opinion, prominence is given to a consideration of the suggested dangers which would follow if the signatures of the presiding officers were deemed essential. Whatever significance should be attached to this consideration in the newer states, we are impressed that, as applied to this state, the danger is more fancied than real. Section 17 has been in force, as a constitutional requirement, since the formation of the state, and this is the first instance, so far as we are advised, in which there has been a failure to observe it. If any has occurred, the learned counsel has omitted to call our attention to it. However, the obvious answer to this objection is, that confidence must be reposed somewhere; it is not to be presumed that men selected to fill places of such high trust will intentionally violate the constitution, and prove false to their oaths.

Cottrell v. The State, 9 Nebraska, 125, is cited. In that case a like provision was held to be directory. Maxwell, C. J., in the opinion says: "The signature of a presiding officer to a bill is a mere certificate to the governor that it has passed the requisite number of readings, and been adopted by the constitutional majority of the house over which he presides. The vote upon the passage of the bill must be determined from the journals of the respective houses. And where it appears from

State v. Kiesewetter.

the journals that a bill has passed by the requisite majority, and has been approved by the governor, the failure of the presiding officer to affix his signature thereto, will not invalidate the act, as it will be presumed that the governor had sufficient evidence before him of the passage of the bill at the time he approved the same.'

It appears that all due formalities had been observed as regards the act, save only the signature of the presiding officer of the senate. It had the governor's signature, was duly enrolled in the office of the secretary of state, and it had been in force for years. The governor's signature apparently served, not only as showing his official assent to the measure, but as authenticating the bill itself. In this state the governor takes no part in the approval or authentication of laws. There are other notable differences between these cases and the case at bar. If a case were presented where a bill, lacking only the signature of the presiding officer of one house, had been filed by the secretary of state, published under his authority as a law and recognized as such by all other branches of the state government, and acquiesced in for years, a different question would be before us.

The two cases just referred to are the only authorities we have noticed which appear to sustain the relator's claim, and, we think, when duly considered, they fail to do so. On the other hand, the positions heretofore assumed are believed to be in consonance with the views of text-writers and with many adjudicated cases. See Burroughs on Public Securities, 425; State v. Swift, 10 Nev. 176; State v. Rogers, 10 Nev. 250; State v. Glenn, 18 Nev. 34; The State v. Mead, 71 Mo. 266; Pangborn v. Young, 32 N. J. L. 29; Sherman v. Story, 30 Cal. 253; Mayor v. Harwood 32 Md. 471; Jones v. Hutchinson, 43 Ala. 725.

Writ refused.

State v. Granville.

STATE v. GRANVILLE.

Criminal law-Elections-Offenses relating to-Exceptions by prosecuting at torney-Practice-Sections 7061, 7305, 7308, Rev. Stats.

1. In an indictment under section 7061, Revised Statutes, as amended February 17, 1881 (78 Ohio L. 30), it is not necessary to set out a copy of the poll-book or tally-sheet on which the offense was committed, nor is the purport thereof required; it is sufficient to describe it by the designation "poll-book" or "tally-sheet," and to aver that the defendant wrongfully and fraudulently changed, altered, erased, or tampered with a "name," ," "word" or "figure" contained in such poll-book or tallysheet, as the facts may require, setting forth the nature and character of the alteration made; and that it was done with intent to defeat, hinder or prevent a fair expression of the will of the people at an election. 2. The purpose of the bill of exceptions by a prosecuting attorney to the decision of a court, for which provision is made in section 7305 of the Revised Statutes, is not to obtain a reversal of the judgment of the court in the case in which the bill is taken; its purpose is simply to determine the law to govern in a similar case. Sec. 7308, Rev. Stats.

(Decided June 28, 1887.)

BILL OF EXCEPTIONS by the prosecuting attorney to the decision of the Court of Common Pleas of Franklin County.

The grand jury of Franklin county, at the September term, 1885, of the court of common pleas of said county, presented an indictment against Algernon Granville and others, charging "that on the 13th day of October, in the year of our Lord one thousand eight hundred and eighty-five, in precinct "A" of the thirteenth ward of the city of Columbus, and in the county of Franklin, and the state of Ohio, an election was duly holden, the same being authorized by the laws of the state of Ohio, at which election in said precinct H. J. Ossing, J. Hatcher and E. B. Adams acted as judges of said election, and A. L. Allis and C. F. Galloway then and there acted as clerks of said election; that then and there, at said election, George Hoadly was a candidate for governor," to which is added the names of other candidates on the same ticket; and it then avers that, "each of said candidates received votes at said election for the offices for which they were respectively candi