State ex rel. Carlin v. Ehrman et al. to deprive the accused of his imperishable right to be tried by an unprejudiced court and an impartial jury. In addition to the punishment for contempt by fine or imprisonment or both, there are four other remedies for such a transgression of the law by the press. 1. Trial may be deferred till the inflamed temper of the public, caused by such publications, disappears. 2. When the verdict is adverse to the accused, and is, in whole or in part, the product of such inflammation of the public mind, it may be set aside. 3. The jury may be locked up and guarded, during the trial, at public expense, to prevent such injurious publications from reaching it. 4. The reporter may be excluded from the court room. From the necessarily hasty perusal and analysis of the editorials and reports in the Press-Post, published during the time mentioned, I cannot conclude that the editorials transcended the legal limits for editorial comment and criticism. Some are quite pungent, others are picturesque, but they are on the windward side of the law. There are some generalizations in other editorials that are very censorious in character, but since they are not addressed to this case, they are not the proper subject of inquiry. I cannot, however, reach this conclusion about the reporter's work in the issue of the 17th inst., and especially in the head lines. They are inflammatory in their character. If they have been read by the jurors, or if they should be read by them, as they may have been, or may be-a thing which the court can not prevent, they would tend to prevent that calm, deliberate and impartial judgment on their part to which the defendants are entitled. The abuses of the freedom of the press are not as dangerous as its suppression would be. The press is a necessary, important, and valuable institution in imparting information with respect to the conduct of every department of government-the judiciary as well as the legislative and executive authorities-information to which the people are entitled but the preservation of the rights of persons who are accused of crime to a fair and impartial trial is just as essential and important in our democratic system of government. While I think the reporter's work in the issue of the 17th inst., exceeded the limit of fair and legal reporting, still my judgment is that it is not of such a magnitude that the court should pause in the trial of this case long enough to hear a contempt case based upon it. What has been said may serve as a warning against the repetition of the encroachment upon the law, and as an admonition that if it is repeated the court will be obliged to adopt one or more of the remedies found in the armories of the law. ELECTIONS. [Hamilton Common Pleas, 1896.] State ex rel. Carlin v. Ehrman et al., MEMBERS BOARD OF ELECTIONS. COMPENSATION OF JUDGES IN ELECTION IN HAMILTON COUNTY IN NOVEMBER, 1894. The judges of election in Hamilton county, both in the county and in the city precincts were entitled to five dollars each for services at each election in November, 1894. MANDAMUS. HOLLISTER, J. The relator was a judge of election for Cleves precinct in Miami township, and served at the general election in November, 1894, and at the special election for judge of the court of insolvency held one week later. The board of elections allowed him $3 for each election. He claims that under the law he was entitled to $5 for each election. Hamilton Common Pleas. The act of April 12, 1889, (86 O. L., 258), Smith & Benedict's Statutes, 2926 W-1, provides that boards of elections in cities of the first grade, first class, shall be the election board for the county in which such city is situate, and that "all the provisions, duties, penalties and requirements" of section 2926, Rev. Stat., and sections supplemental thereto as theretofore amended, should apply to "all elections held in such county, as well as such city." Section 5 says that: "Judges and clerks of elections, appointed as herein provided, shall be allowed compensation as fixed in section 2926 * *** The only judges contemplated by the act are those serving in county and city precincts in counties containing a city of the first grade, first class. Smith & Benedict's Statutes, 2926 W -5. Section 29267 is first found in the act of May 19, 1886, (83 O. L., 209, 225), which is applicable only to Cincinnati and Cleveland as cities of the first and second grade respectively of the first class. This act provides for registration of voters, for the appointment of boards of election, etc., and creates a general scheme for elections in such cities. By section 2926 the judges of election "Shall, each of them, be allowed and paid five dollars for each election at which they serve, and no more, either from the city or county." The act of March 16, 1887, (84 O. L, 119), extended the operation of the act of May 19, 1886, to cities of certain lower grades, section 29267 still retaining the language just now quoted. It is perfectly clear therefore that when the jurisdiction of the board of elections of Cincinnati was extended over the entire county, all of the judges of election in Hamilton county whether in city precincts or county precincts were entitled to compensation at the rate of $5 for each election. Section 2926, a, b, c, d, i, o, t, u, were amended and supplemented April 13, 1889, (86 O, L 281,) but the language of 2926t was retained. It will be observed that all of these acts were supplemental to section 2926, of the Revised Statutes of 1880, (75 O. L., 58,) section 11. That section appears under the title, "Elections," chapter 2, "Conduct of Elections," under which designations the first section, 2922, provides: "Except in cases where it is otherwise provided, all public elections shall be held and conducted according to the provisions of this chapter." The same arrangement will be found in the revision of 1890 (Smith & Benedict, 2922 et seq., 2926 et seq., 2926 w., et seq.) and therein is found the entire plan and provision for general elections in the state. Section 2926/ was amended March 23, 1891, (88 O. L, 179); but the language relative to compensation was retained. The act of April (30, 1891, 88 O. L., 449,) establishes boards of elections in all counties excepting those containing a city of the first class, and in such counties it was provided that: "The board of elections heretofore provided for such cities by section 29266 * * *" shall, in their respective counties, constitute the county boards of election * * (section 29265 is the act of April 13, 1889, 86 O. L.,281, 284, and provides for the appointment of boards of elections in cities of the first grade, first class). * Under section 9 it is provided that judges and clerks shall receive $1.50 as compensation for each election, "Provided, however, that in cities where registration is required" the compensation should remain "as now fixed by law." While this language, read alone, would seem conclusive of the subject at that date, April 30, 1891, yet section 29 of the act which provides with much particularity for the repeal of many preceding acts does not directly or indirectly refer to section 29267. And, as very pertinent to the question at issue, it will be remarked that next day, May 1,1891, (88 O. L., 511,) an act was passed extending the operation of the registration laws to certain cities with a certain population, and provides, page 514: "That nothing herein contained shall in any way or manner effect the provisions of section 2926t, and all the provisions of said section 2926t, shall be and remain in full force and effect and applicable to any city or cities in said state having a population as aforesaid," meaning clearly that the provisions of that State ex rel. Carlin v. Ehrman et al. section should embrace also the additional class of cities designated, and should be in force in counties containing a city of the first class, first grade, notwithstanding the act of the day before fixing the compensation of judges at $1.50. On April 18, 1892, (89 O. L., 429,) the law as it stood May 1, 1891, was, 'so far as it affects the question, substantially re-enacted; the duties of the board of election are governed by section 2926 and supplementary sections, (there were certain exceptions, but they did not touch this question), and section 5 provides that "judges and clerks of election appointed as herein provided shall be allowed compensation as fixed in section 2926 * *", And on the same day, April 18, 1892, (89 O. L., 432,) was passed an act repealing the law of April 30, 1891, and provided for a compensation of $3.00 for each election instead of the $1.50 fixed by the law repealed, and no reference was made to section 2926t. We thus have two series of laws, one touching section 2926 and its developments, including the registration laws, and the other, the Australian ballot act of April 30, 1891, each providing a different compensation for judges of election, appointed under the system applicable to each. Also on April 18, 1892 (89 O. L., 455), an act was passed creating the office of state supervisors of election, and deputy state supervisors. By its provisions the state supervisor, who is the secretary of state, appoints four deputies for each county, but in counties wherein is a city of the first class, first grade, the boards of election, appointed under section 2926 and supplementary sections, by the governor, shall have the powers and perform the duties conferred on deputy supervisors. At page 458 is found this, language: "The judges and clerks shall each receive as compensation the sum of $2.00 for each election; provided, however, that in cities where registration is required the compensation * ** shall remain as now fixed by law." At first reading, this would seem to provide but $2.00, for all judges excepting in cities where registration was required; but the act belongs to the Australian ballot series and not to the other, and it does not even refer to section 2926t. Besides, the object of the act as stated in its title is "to create a state supervisor of elections and deputy state supervisors," and, while it confers the powers and duties of deputy supervisors on the board of elections in counties wherein is a city of the first grade, first class, it does not create the office of deputy state supervisors in such counties at all, nor does it interfere with or change the duties of boards of election in such county theretofore prescribed by section 2926 and all sections supplementary thereto, although it may add thereto. Section 2926/ never did refer to any county excepting such as might contain a city of the first class, first grade, and certain other cities. The supervisor act is a part of the development of the Australian ballot series of laws. It was not necessary for its full operation that section 2926 should be repealed. The system of conducting elections in Hamilton county can proceed in perfect harmony with the plan provided in the supervisor act. To hold that the compensation provided for in this act is exclusive of any other provision affecting only Hamilton county is to say, as a matter of law, that section 29261 is by implication repealed by an act which does not necessarily affect that county, and which seems to be intended as a separate provision for that county. Statutes are not to be questioned that way. The two provisions are not necessarily in conflict; on the contrary, they each round out, so to speak, a separate plan of operation, and may each exist independently of each other. It is true that where a statute revises the entire subject-matter of a previous statute, and is evidently a substitute for it, the latter is repealed by implication. Lessee of Moore v. Vance, 1 Ohio, 1, 10; Lorain Plank Road v. Cotton, 12 Ohio St., 263, 272; Shelby Co. v. Frego, 26 Ohio St., 488, 491, and a statute is impliedly repealed by a later statute in flat contradiction of it, Work v. Massie, 6 Ohio, 503; yet it is also the law that effect must, if possible, be given to every section and clause of the law; Pancoast v. Ruffin, 1 Ohio, 381, 385; State v. Blake, 2 Ohio St. Hamilton Common Pleas. 147, 151; Medical College v. Zeigler, 17 Ohio St. 52, 68; and each part be made to harmonize with the others, Patton v. Sheriff Pickaway Co., 2 Ohio, 395, 398; Allan v. Parish, 3 Ohio, 187, 193; Riddle v. Ryan, 5 Ohio, 48, 51; and the intention of the legistature is to be gathered from a consideration of every part of the statute, and when ascertained, it will prevail over the literal meaning of words, State v. Blake, Medical College v. Zeigler, supra. Applying these rules it is clear that the supervisor act does not revise the subject-matter of elections or compensation to be paid judges as contained in previous enactments, and is not evidently intended to be a substitute for section 2926t, nor is it necessarily contradictory of it; but on the contrary, considering the entire, election laws together, and bearing in mind the provisions, relations to boards of elections, their jurisdiction, and the compensation for judges provided by section 2926, it requires no strained construction to give effect both to that section and the clause of the act of April 8, 1892, by holding that at that date all judges of election in Hamilton county were entitled to $5.00 for each election, and that the other act does not apply to counties wherein is a city of the first grade, first class. This was the law on April 18, 1892. Amendments were made to the act of that date, and also section 36 of the act of that date, amending the act of April 30, 1891, on April 25, 1893 (90 O. L., 263); but the language relative to compensation of judges was not changed. In fact, the act of 1893 contains two clauses, pages 266, 276, on this subject, both in identically the same language, which is the same in form used in the original Australian ballot act of April 30, 1891, and no reference whatever is made to section 2926t. Section 36 was again amended February 27, 1894 (91 O. L., 43); the language on this subject remaining the same, and the language of the rest of the section as amended clearly applies to judges under the jurisdiction of deputy state supervisors as such, and not under boards of election acting as deputy state supervisors. And again, April 5, 1891 (91 O. L., 119), other amendments were made, but this language retained. The conclusion is that the relator was entitled to $5.00 for each election in November, 1894. The acts passed by the legislature since that time indicate that that was their intention at that time. (See acts of April 8, 1896, 92 O. L., 134; April 6, 1896, 92 O. L., 146; April 16, 1896, 92 O. L., 166; April 27, 1896, 92 O. L., 431.) The peremptory writ of mandamus is allowed. Stanley Struble, for the Relator. BASTARDY. [Hamilton Common Pleas.] STATE EX REL. ROSS v. ARTHUR BRILL. PROCEEDINGS BY A MARRIED WOMAN CANNOT BE MAINTAINED. A married woman can not maintain proceedings having reference to a child born before her marriage. HEARD on motion to dismiss bastardy proceedings. WILSON, J. The complaint and the examination of the complainant show the following facts On May 18, 1891, the complainant was delivered of a bastard child, of which she alleges the defendant is the father; on December 30, 1891, she was married to one Shanahan, who is still living, and from whom she has not been Mellen v. Harvey. divorced; on February 27, 1893, she made complaint against the defendant before E. J. Tyrell, a justice of the peace. The defendant moves to dismiss the proceedings, because the complainant at the time she made the complaint was not an unmarried woman. Section 5614 of the Revised Statutes provides: "When an unmarried woman who has been delivered of, or is pregnant with a bastard child makes complaint thereof," etc. By the language of the statute the delivery and the pregnancy, as well as the making of complaint, are predicated of an unmarried woman. Ohio St., 628. The uniform construction of the statute has been that it limits complaints under it to unmarried women. The complaint must show on its face that it is made by an unmarried woman. Wright's Reports, 564, 8 Ohio, 317. "The statute authorizes the complaint to be made either during pregnancy or after delivery. If made during pregnancy, it is certain that the pregnancy alleged must be that of an unmarried woman, and if not made till after delivery, it is equally certain that the complainant must still continue to be unmarried." As the complainant in this case was a married woman at the time she made her complaint against the defendant, the motion to dismiss will be granted. John Coffey, for the Motion. James S. Meyers, for the Complainant. PLEA OF SET-OFF. SET-OFF. [Hamilton Common Pleas.] MELLEN V. HARVEY. A plea of set-off against a transferer of a claim, that there were numerous items of account between the maker and payee on which a sufficient balance is due to cancel the claims is demurrable. HEARD on demurrer to answer. The action is on a due bill to W. C. Mellen for twelve hundred dollars, without the words to order of bearer, which plaintiff avers was assigned to her. The second defense is that the paper was signed to accommodate the payee, who, as executor of an estate, desired to purchase the interest of another therein; that the purchase was made in the defendant's name, but in fact by and for the payee. The third defense is that there have been numerous dealings and matters of account between the payee and the defendant, on which a large enough balance would be found due the payee to satisfy the note. A demurrer is filed to these defenses. BATES, J. I. From all that appears from the second defense the purchase was actually made, and defendant neither handed it over to the executor, nor offered to rescind, and may be now enjoying it; hence this defense is not sufficient, and the demurrer to it is sustained. II. Third defense is also bad, for several reasons: 1. It is true that an equitable demand may be the subject of setoff. Armstrong v. Warner, 49 Ohio St., 376. But in this case, the balance on mutual accounting is not yet due, since there is no averment but that the parties to it could and would strike their own balance on demand without the aid of a court. No setoff now mature is asked, and the courts not even asked to create one. |