Powell v. The State of Ohio. Dec. Term, 1846. not intend to disturb this principle. The sole object was to IN BANK, secure to all, at all times, the right to apply for bail; and, therefore, it is simply provided that, in the exercise of the power to bail, there shall be no vacation-that when the term of the Court ends, the power shall pass into single judges, to be exercised during vacation. The Associate Judge, then, taking this recognizance, had no authority to take it. It is therefore void. It may be said, that although not a statutory recognizance, it may take effect as a common law bond. In matters of criminal procedure, the law tolerates no mongrel of this sort. The construing a matter to be another thing, because it is not what it purports to be, to give it effect, and at all events to keep it alive, leads to the production of a kind of judicial hybrid, which has no name or place among the clear, well known, and well defined principles of the law, and introduces confusion and doubt as to what the law really is. True, the law will not permit lack of form, or failure to accomplish an intent, to work a fraud. But that class of cases has nothing to do with this. The object of the State is not money, but to secure the punishment of crimes, and to release the accused from unnecessary rigor of confinement. How this is to be done is prescribed. It cannot be done by the act of the party himself, or in any mode but the one pointed out by statute. If not done rightly, and the person is discharged, it may be treated as an escape, and the person be re-imprisoned. If the recognizance taken is not a recognizance, it is nothing at all; it binds nobody, and secures to nobody any new right. Hence it is without consideration or power in any sense, and would have nothing to give it effect even at common law. The Court of Common Pleas erred in giving judgment upon this recognizance. Judgment Reversed. BIRCHARD, J., dissenting. There is nothing more difficult than the construction of statutes, particularly those of this State. Owing to imperfection of language and inconsistent Powell v. The State of Ohio. Dec. Term, 1846. IN BANK. provisions found sometimes to exist, great ambiguity and doubt attends them, and the true meaning is, often, not easily comprehended. Difficulty of construction, however, does not justify a departure from the obvious letter of the statute, nor will it warrant the introduction of an exception directly against its express provisions. Instances may, and frequently do occur, where the letter of a statute must be departed from in order to preserve its spirit and prevent an absurdity. A departure from the plain words of the law should never be indulged in, save in those cases where it is required to give effect to the manifest intentions of the Legislature, and to make the whole law accord with reason and sound discretion. It is also admitted, that statutes relating to the same subject should be construed together, so that all the parts may form a consistent whole. The recognizance in this case was taken by a single judge, under a supposition that power was given to him for that purpose by the act of 1831, sec. 20, which is in these words: "When any person charged with the commission of any 'bailable offence shall be confined in jail, whether committed by warrant under the hand and seal of any judge or justice of the peace, or by the sheriff or coroner under any capias upon 'indictment found, it may be lawful for any Judge of the Su'preme Court or President Judge of the Court of Common Pleas within his circuit, or Associate Judge within his county, to admit such person to bail, by recognizing such person in 'such sum and with such securities as to him shall seem proper, 'conditioned for his or her appearance before the proper court, to answer the offence wherewith he or she may be charged; and for taking such bail, the judge may, by his special war'rant, under his hand and seal, require the sheriff or jailor 'to bring such accused person before him, at the court house of 'the proper county, at such time as in said warrant the judge 'may direct." Upon this section, standing alone, there could be no doubt of the right to exercise the power claimed in this case on the part Powell v. The State of Ohio. Dec. Term, 1846. of the State. But, owing to other provisions of the law and IN BANK. for reasons given by my brethren, they read this section of the statute as if it contained a clause restraining the direct and plain import of its words, to this effect: Provided, that during term time of the Court of Common Pleas no Judge of the Supreme Court, nor any other judge, shall, in any of the before enumerated cases, let to bail any such person or persons. This may be the mere construction of a statute. It seems to me that it is amending the law, not declaring what it is. The power to let to bail is vested in the Court of Common Pleas. This was so settled in The State v. Dawson, 6 Ohio Rep. 251, This power, which is inherent, is not exclusive, nor can it be exercised except in term time and by a full court, of at least three judges, when in actual session. During the actual session no single judge can let to bail without the concurrence of a majority of the Court; not because the letter of the statute forbids, but because, in that place, he is a component part of the Court, and therefore, cannot be known officially in any other manner than as such, and through its records. The first and second sections of the act provides for calling together an examining Court, in a specified case, to be held by the associate judges, authorizing them to let to bail, and if security cannot be procured, to commit to prison. By the third section in such case they are required to fix the amount in which bail may be taken, and any Judge of the Supreme Court or Court of Common Pleas may thereafter discharge on the giving of such bail. Now, it seems to me that all these laws should be construed together. They constitute parts of one system, are framed to secure individuals against useless hardships, are in favor of liberty, and should receive a liberal construction, to the end that the beneficent objects of the Legislature may be promoted. I hold that they may all well stand together, and that there are objects of frequent occurrence in practice upon which each may operate beneficially. All the Courts of the State are in the practice of holding two sessions a day, with intervening adjournments. Nothing is more common than adjournments Dec. Term, 1846. Powell v. The State of Ohio. IN BANK. during term time from day to day, or from a day certain to a day certain. This may happen from necessity, as in case of sickness. It may occur from a variety of causes, convenience of parties or the public. Still, by a fiction of law, all the proceedings of the Court are the doings of one day. The judgments are all of the day of the commencement of the term. The recognizances of the same day, and in contemplation of law there is but one session at each term. Take then a case where, during term time, the Common Pleas adjourns over for a week, or for four weeks, to give place to a term of the Superior Court a case of not uncommon occurrence in Hamilton county must a man lie in jail during this period for the want of a Judge to let him to bail? The united profession will answer in the negative; I answer no, and assert that the 20th section meets such a case, and was doubtless intended to provide for it. Without that section there is no remedy. With it, as modified by judicial construction, there is none that I can discover. The constitution gives none to a single Judge, or to any Court, and the statutes being silent, a numerous class of cases, such as I have supposed, will frequently occur to mark by their harshness, and an imprisonment not contemplated by the constitution, either a gross neglect of duty on the part of the Legislature or an error of this portion of the judiciary of the State. The argument that, under a different construction, a single Judge may corruptly defeat the action of the Court in session, by doing severally out of Court what in full bench had been refused, has some plausibility, but is not sound and should have no force except with the Legislature. I know not that anything has ever occurred in Ohio to require at their hands legislation to guard specially against such an enormity. Ample provision is now made to meet and punish the conduct of a corrupt Judge, and let the harshest penalty of the law follow whenever and as often as corrupt judicial action may occur. I am sure that the evil is not so likely to happen as to require judicial legislation to prevent it. The case made by the pleadings is not of that description. Any one of several reasons may have Canal Boat Etna v. Treat. Dec. Term 1846. existed, consistently with the averments of the special plea IN BANK. The judgment of the Court of Common Pleas, in my opinion, was not erroneous. CANAL BOAT ETNA VS. WILLIAM TREAT. Under the act of February 26, 1840, providing for proceedings against Steamboats and other water craft, by name, where a person has engaged to build and deliver a Boat at a future day, at a specific price, and has delivered the Boat in pursuance of such agreement, he cannot afterwards proceed against it, in the possession of a third person, to recover for "materials, supplies and labor," expended in building the same. THIS is a WRIT OF ERROR, directed to the Supreme Court for the County of SUMMIT, returnable in Bank. The original action was assumpsit, under the act authorizing proceedings against water craft, by name. The declaration contains the common counts, to which the defendant plead the general issue. The cause came on for trial at the September term, 1846, of the Supreme Court for Summit county was |