Harrison Common Pleas.

August, A. D., 1899, in a certain action on complaint of W. J. McCarty, wherein the village of Scio was plaintiff and the said Harry Hollis defendant.

Now the condition of the above obligation is such that if the said Harry Hollis will personally be and appear before the said court of common pleas of Harrison county, Ohio, on the first day of the next term thereof and from term to term until the case in error of the prosecution of which the said Harry Hollis has given notice, has been determined and will abide the judgment of the court and at no time depart without leave; then this recognizance shall be void, otherwise it shall be and remain in full force and virtue in law. (Signed) Harry Hollis, Mary E. Hollis, Paul O. Reuman, per J. H. Garrison, his agent, J. H. Garrison.

Taken, signed and acknowledged, by order of court on the day and year above written.

(Seal of Mayor, etc.) GEORge O. Canaga, Mayor.

The petition avers that said bond was duly approved by the mayor and said Harry Hollis, principal in the bond, released from custody pending proceedings in error of which he had given notice.

The petition also avers breach of conditions of the bond after affirmance by the court of common pleas.

Each of the defendants interposes a general demurrer, that the petition does not state facts sufficient to constitute a cause of action against him.

I think it sufficiently appears on the face of the petition that the bond was given in a criminal and not a civil case. Hence the statutes relating to bonds and recognizances in criminal cases need be looked to.

From the allegations in the bond it clearly appears that it was given after conviction and after sentence. It also just as clearly appears from the allegations in the bond that it was given before leave had been obtained from the court of common pleas to file a petition in error and before said court or a judge thereof had made an order fixing the amount of such bond. In other words the petition does not aver that said bond was taken pursuant to an order of the court of common pleas granting leave to file a petition in error and suspending the execution of sentence on the giving of a bond in such amount as fixed by said common pleas court.

Section 1752 Rev. Stat., provides that: A conviction under an ordinance * ** may be reviewed by petition in error; * * * but no such petition shall be filed except on leave of the court or a judge thereof, and such court or judge has power to suspend the sentence, as in criminal cases." Miller v. Bellefontaine, 1 Circ. Dec., 407,

The mayor, therefore, has not power to suspend the execution of his sentence, and it nowhere appears in the petition that the bond sued on

Scio v. Hollis.

was taken pursuant to a suspension by the court of common pleas, or a judge thereof as provided by sec. 1752, Rev. Stat., On the contrary it does appear from said petition that the mayor suspended the sentence when it avers that after the approval of the bond, the defendant “was thereby released from custody pending said proceedings in error of which he had given notice."

To determine how a court or judge may suspend the sentence of a mayor "as in criminal cases," we must look to the criminal code.

Sections 7321 and 7322, Rev. Stat., apply solely to the suspension of the execution of sentence of cases of conviction in the court of common pleas and do not apply to the suspension in error cases from inferior tribunals.

The recognizance taken on suspension under these sections is conditioned that the defendant shall appear at the next term of the court, or until the case in error is determined, and abide the sentence of the court.

Section 7356, Rev. Stat., provides that a conviction for a violation of

an ordinance may be reviewed in the common pleas court.

Section 7362, Rev. Stat., provides for the suspension of the execution of sentence in error cases by the several courts in which such error proceedings may be pending. Under this section in felony cases the suspension is granted without reference to bail, leaving it discretionary with the trial judge, to admit the defendant to bail after order of suspension by the reviewing court. The provision in relation to bail, after suspension, became a part of this section in 1888.

Section 7363, Rev. Stat., provides that "No order of any court or judge suspending execution of sentence, in any case of misdemeaner, shall take effect until the defendant enters into a recognizance before the clerk of the court, or the officer before whom the cause was tried, in a sum to be fixed in such order, conditioned that the defendant will prosecute his petition in error to effect, and surrender himself to the custody of the proper officer of the county in which the conviction was had, in case the judgment against him be not reversed, or a new trial ordered."

Under this section the court or judge granting leave to file a petition in error, must in the order granting such leave, also fix the amount of the recognizance to be given by the defendant, and such order must also direct before what officer it is to be executed; whether before the clerk of the court or the officer who tried the case. See form of entry and bond on pages 567 and 568 of Wilson's Ohio Criminal Code.

It is apparent, therefore, that the right of the mayor to take the bond in question is purely statutory, and being such, the statute must be strictly followed.

This right to take a bond or recognizance after conviction and sentence depends entirely upon the order of the court or judge granting leave to file a petition in error and ordering a suspension of the sentence on the execution of a bond before the mayor in a sum to be fixed in such

Harrison Common Pleas.

order. In the absence of such order, a bond taken by the mayor after sentence is void.

A petition to recover upon such bond will be bad unless it avers that such bond was taken pursuant to an order of the court of common pleas or judge thereof on the allowance of filing a petition in error in said court. Seargent v. State, 16 Ohio, 267; State v. West, 3 Ohio St., 509.

The condition of the bond sued on does not comply with sec. 7363, Rev. Stat., but, perhaps, this is not of much force under the provisions of sec. 7186, Rev. Stat., if the mayor was authorized by law to take it.

It is urged, however, that the bond is enforceable as a common law obligation, even if taken without statute authority, inasmuch as the defendant was released in consequence of the bond, and the obligors therein should be required to discharge their voluntarily assumed obligations.

In criminal cases there seems to be some difference of opinion as to whether a bond taken for a prisoner's appearance, without authority of any statute can be good as a common law bond.

In Williams v. Shelby, 2 Ore., 144, it was held that "where a committing magistrate took a bail bond in a criminal case where there was no law authorizing such a bond to be taken, the bond was void, both as a statute bond and as a common law obligation."

In State v. Cannon, 34 Iowa, 322, such a bond was held good because the defendant "having been released in consequence of the bond, there is no legal reason why the obligors thereon should not discharge their voluntarily assumed obligation." See also Dennard v. State, 2 Ga., 137, for like holding.

In Dickinson v. State, 29 N. W. R., 184 (Supreme Court of Nebraska), the second paragraph of the syllabus reads as follows: "A recognizance of the appearance of an accused person to answer to an indictment for felony, taken before and approved by an officer or person unauthorized by law, or where, under the facts of the case, the taking thereof is unauthorized by law, so that the same fails to be binding under the statute, held, also, to be void as a common law obligation." But whatever may be the holding in other states, there is no doubt as to the ruling in this state. Seargent v. State, 16 Ohio, 267. In Powell v. State, 15 Ohio, 579, it was held that "during the term of the court of common pleas, a single judge of that court has not power to let to bail a person in custody charged with a criminal offense. A recognizance thus taken is void."

On page 581, Judge Read says: "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 object of the state is not money, but to secure the punishment of crimes. How this is to be done is prescribed. It cannot be done by the act of the party himself, or in any

* * *

Scio v. Hollis.

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 reimprisoned. 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."

In State v. Clark, 15 Ohio, 595, it was held that: "A recognizance to let to bail on the allowance of a writ of error, after conviction, is not authorized by the act allowing writs of error in criminal cases, and is therefore void."

On page 598 Judge Read says: "If the judge directing the recognizance had no power to let to bail, it is void. * * * If the recognizance is not good as a statutory bond, it is not good at common law. *** For the power to bail, and its mode of exercise, we look to our own constitution and laws. Although the jurisdiction and power of the court is conferred by the constitution, it is to be exercised in the mode pointed out by the statute. *** The act allowing writs of error in criminal cases directs a suspension of execution in capital and penitentiary cases, *** but in all other cases makes the suspension of execution to depend upon entering into a recognizance, conditioned to prosecute his writ of error to effect, and to surrender himself to the sheriff of the county in which conviction was had, unless the judgment be reversed and a new trial ordered. The statute, then, has directed the mode and incidents of the application and allowance of a writ of error in criminal cases. * ** After conviction, it depends upon the statute whether they shall be let to bail or not. In this case, the act not authorizing bail, the judge had no power to direct recognizance, and it is therefore void."

Since this decision the law has been amended so as to empower the trial judge in all cases of conviction for felony, except for murder in the first and second degree, to let to bail, where sentence has been suspended. Section 7362, Rev. Stat.

For other authorities bearing upon the questions involved see: Bird v. Cincinnati, 9 Dec. Re., 301; Weber v. State, 58 Ohio St., 616; 14 Am. Dec., 101; 2 Am. & Eng. Ency., 11, note 1.

The several demurrers will, therefore, be sustained and the petition of the plaintiff dismissed, unless leave to amend is desired.

D. A. Hollingsworth, for plaintiff.

Driggs & Heinlein and Howard & Handlon, for defendants.

Superior Court of Cincinnati.

MUNICIPAL CORPORATIONS-APPROPRIATING ORDINANCES. [Superior Court of Cincinnati, General Term, May, 1900.]

Smith, Dempsey, and Jelke, JJ.

CINCINNATI V. BOARD OF CITY AFFAIRS, ET AL.

1. APPROPRIATION-INVALid for Payment for ConTRACT WORK. Under an appropriating ordinance, in a city of the first grade, first class, containing the following item: "For Main Pipe Extension: Salaries and wages $5,000; material and supplies, $9,200," the work of laying main pipe could not be done by one who undertakes to do a certain amount of work for a fixed sum, over which work the city authorities would have no power except to see that the terms of the contract were complied with, because money so paid is neither "salary" nor "wages."

2. SAME-ALSO INVALID as to Payment for MATERIAL.

Nor could the material and supplies be paid for under the ordinance in question, inasmuch as they are not bought by the city by direct and independent contract, but are included in and to be paid for with the completed job.

3. GOOD FAITH AND SAVING TO THE CITY, IMMATERIAL.

The mere fact that city officials effected a saving to the city by the adoption of the method of contracting above set forth, would not make an act valid which the law declares is invalid or authorize payment under the ordinance in question.

SMITH, J.

The petition in this case after making the necessary preliminary allegations, further alleges that the board of city affairs pursuant to advertisement, did on October 3, 1899, receive certain bids for the laying of water pipes on certain streets in the city of Cincinnati; that among said bids was one of Wiese & Hanley in which the said firm bid for labor furnished in laying sixteen inch pipe, 1800 feet, forty-three cents per lineal foot, and for labor furnished in laying four inch pipe, 200 feet, twenty-three cents per lineal foot; and for material in laying sixteen inch pipe 1800 feet, twenty cents per lineal foot, and for material in laying four inch pipe 200 feet, twenty cents per lineal foot. The computation made the bid to be for the sum of one thousand two hundred and twenty dollars. Thereupon said board passed a resolution awarding the contract for said work to said firm of Wiese & Hanley.

Among the bids received for laying water mains on certain other streets was a bid of Henkel & Brother in which said firm bid for labor furnished in laying six inch pipe 3,000 lineal feet, twenty-four cents, per lineal foot; for labor furnished in laying four inch pipe 300 lineal feet, twenty-four cents per lineal foot; for material furnished in laying six inch pipe 3,000 lineal feet, one cent per lineal foot; for material in laying four inch pipe 300 lineal feet, one cent per lineal foot. The computation made the bid to be for the sum of eight hundred and twenty-five dollars.

Thereupon said board awarded the contract for said work to said Henkel & Brother.