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DEC 21 1940
Entered, according to act of Congress, in the year 1879, by Milton Barnes, Secretary of State, for the State of Ohio, in the office of the Librarian of Congress at Washington.
ELECTROTYPED AT FRANKLIN TYPE FOUNDRY,
The principal part of this publication is occupied by the work which will be known hereafter as the Revised Statutes of Ohio, or, with equal propriety, as the Ohio Code. Commencing on page one hundred and seventy-one of this volume, it extends into and forms the larger portion of the second or remaining volume. It is preceded, in this volume, by the articles of confederation, the constitution of the United States, the ordinance of 1787, the constitution of Ohio adopted in 1802, the present constitution of the state, and those portions of the Revised Statutes of the United States relating to naturalization, extradition, authentication of records, and the removal of causes from the state to the federal courts; and, in order that the collection of general laws may be complete, it is followed, in the second volume, by such laws of a general nature as could not properly be incorporated into the revision. The second volume also contains an analytic index to the whole work.
In the history of the legislation of the state, we find there have been a number of professed revisions; but, until the present work was undertaken, nothing more was attempted than the incorporation, in each statute, of the various provisions on the subject to which it related, and the collection of those statutes into a volume.
The first revision was made during the session of the legislature held at Chillicothe, in 1804-5, at which all the laws, with few exceptions, adopted by the governor and judges, or enacted by the legislature, under the territorial government, were repealed. That revision embraced statutes for the administration of justice, the conveyance of property, the collection of the revenue, the organization of the militia, and the punishment of crime, and other statutes previously adopted or enacted, were amended and re-enacted.
With these statutes for a basis, other legislatures followed the example; and, accordingly, the laws were revised at the session of 1809–1810, the session of 18151816, the session of 1823-1824, and the session of 1830-1831, each revision being an improvement on that which preceded it, the practice and other remedial statutes gradually becoming more liberal, and the penal enactments more humane.
In 1835, the statute relating to felonies was again revised, and further provision was made to simplify the practice; and in 1840, an act relating to the settlement of the estates of deceased persons, based on the statute of Massachusetts, was prepared by Joseph R. Swan, and enacted by the general assembly. The principal part of it has remained without change to the present day. At the same session the statutes in relation to wills, elections, and other subjects, were revised.
Meanwhile, the statutes had become so numerous, and had fallen into such confusion, that a systematic republication of the laws in force had become a necessity. Fortunately, the work was undertaken by one competent for the task; and it is only just to say, that with the material before him, and in the absence of all power to change it, perhaps no other man would have been able to produce a collection of our statutes, so admirable in all that pertains to the work of an editor, as Swan's Statutes of 1841. In 1854-5, in 1860, and in 1868, Judge Swan performed the same task of collecting and arranging the statutes in force, the notes to the edition of 1860 having been prepared by Leander J. Critchfield, and the notes to the edition of 1868 by Milton Sayler. While these editions of the statutes have now become comparatively useless, they are none the less monuments to the industry and ability of the gentlemen who were engaged in their preparation.
In this connection, it will not be out of place to notice a collection of the statutes of a more permanent character. In 1833–1835, Mr. (subsequently Chief Justice) Chase prepared an edition of the statutes. It included the territorial laws, whether adopted by the governor and judges, or enacted by the territorial legislatures, and the statutes of the state down to and including those of 1833. This embraced seven volumes of territorial laws, and thirty volumes of the statutes of the state, and the whole was republished in chronological order, in three volumes. The work was continued, on substantially the same plan, by Maskell E. Curwen, who republished, in four volumes, the general laws from 1834 to 1860, inclusive. Since the death of Mr. Curwen, the work has been continued by J. R. Sayler, who has republished, in four volumes, the general laws from 1861 to 1875, inclusive.
It will thus be seen that the statutes of Chase, Curwen, and Sayler-all admirably edited-are a republication of all the general laws adopted or enacted under the territorial and state governments from 1788 to 1875, inclusive, in the order of the original publication. While only a very small number of the statutes which these volumes contain remains in force, the remarks of Judge Chase, with respect to them, in his first volume, are entirely just. “Many questions of right and remedy,” said he, “depend upon the provisions of repealed statutes. In reference to such questions, the examination of the whole series of laws affecting them, is a matter of absolute necessity. In addition to this, a knowledge of the acts repealed is often essential to a correct understanding of the law in force. No lawyer, nor any intelligent legislator, ought to be satisfied with knowing what the law is, unless he also knows what the law has been."
Recurring to the subject of codification, it is evident that it had engaged the attention of the people, to some extent, previous to the adoption of the present constitution. Provision was made in that instrument for a commission; and it was ordained that “said commissioners shall revise, reform, simplify, and abridge the practice, pleadings, forms, and proceedings of the courts of record of this state; and, as far as practicable and expedient, shall provide for the abolition of the distinct forms of actions at law, now in use, and for the administration of justice by a uniform mode of proceeding, without reference to any distinction between law and equity.”
In obedience to that provision, an act was passed, and William Kennon, William S. Groesbeck, and Daniel O. Morton were appointed commissioners. They confined their labors to the subject of practice in civil cases, and reported what was known as the code of civil procedure, to the fiftieth general assembly, and that body, on March 11, 1853, adopted it. It is embraced in this revision, from section forty-nine hundred and forty-seven to section fifty-eight hundred and thirty-one, inclusive, and from section sixty-seven hundred and seven to section sixty-seven hundred and forty, inclusive; and, though somewhat changed in language and arrangement, the principal part of it remains substantially as it was reported by those commissioners.
With the growth of the state in population and wealth, the annual volumes of the general laws increased in size, until the statutes of a general nature, in force, exceeded two thousand in number. The subject of codification then began to attract attention here as in other places. In 1869, a bill prepared by Senators Charles H. Scribner, Daniel B. Linn, and Homer Everett, codifying the statutes in relation to municipal corporations, became a law, as did also a bill embodying a code of criminal procedure, which had been prepared by Senator Frank H. Hurd. The subject was further agitated, and finally, in 1874, Representative George W. Boyce, of Hamilton county, introduced a bill providing for such codification. Subsequently, Senator Lucian C. Jones, of Trumbull county, introduced a bill on the same subject, which, on March 27, 1875, became a law. [72 v. 87.] The following are its leading features :
The governor was required, by and with the advice and consent of the senate, to appoint three competent commissioners to revise and consolidate the general statutes of the state, and he was authorized to fill any vacancy in the commission.
In performing the duty, the commissioners were required to bring together all the statutes and parts of statutes relating to the same matter, omitting redundant and obsolete enactments, and such as had no influence on existing rights or remedies, and making alterations to reconcile contradictions, supply omissions, and amend imperfections in the original acts, so as to reduce the general statutes into as concise and comprehensive a form as might be consistent with clear expression of the will of the general assembly, rejecting all equivocal and ambiguous words, and circuitous and tautological phraseology.
They were required to arrange the statutes under suitable titles, divisions, subdivisions, chapters, and sections, with head notes briefly expressive of the matter contained therein, with marginal notes of the contents of each section, with reference to the original act from which it was compiled, and footnotes of the decisions of the supreme court upon the same; and they were required to report the whole, in print, to the general assembly, for its adoption.
On the day of the passage of the bill, Governor Allen appointed, and the senate unanimously confirmed, Michael A. Daugherty, Luther Day, and John W. Okey, as the commissioners. Commissions were issued to them on that day, and immediately thereafter they entered upon their duties. Judge Day continued to be a member of the commission until February 1, 1876, when he resigned, having been appointed a member of the supreme court commission, and John S. Brasee was appointed by Governor Hayes to fill the vacancy; and Judge Okey continued to be a member of the commission until November 9, 1877, when he resigned, having been elected a judge of the supreme court, and George B. Okey was appointed by Governor Young to fill the vacancy. No other changes were made in the commission.
The manner in which the commissioners performed the duties devolved upon them is set forth in the reports, which, from time to time, they made to the general assembly. We abridge from those reports an account of their labors, as appropriate in this connection:
The necessity for the work grew out of the confused condition to which the accumulated enactments of sixty-one general assemblies had brought the statute laws of the state. True, we already had several professed revisions in Ohio; but they were partial, and being incomplete, were necessarily unsatisfactory. They were temporary expedients. So great was the confusion, indeed, and so difficult had it become to ascertain the law in force upon many subjects, that oftentimes no one but an experienced lawyer could be relied on to determine its condition; and hence, the general assembly, in 1875, determined that there should be a complete revision and consolidation of all the general laws of the state, and provided accordingly.
The first duty of the commission was to ascertain what laws had been repealed, and what remained in force. This was found to be a formidable undertaking, involving time and care. In statutes enacted soon after the adoption of the present constitution, an effort was made to strictly comply with the provision (article 2, section 16), that “no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” But the attempt was soon abandoned. Numerous instances were found in which a repealed section had