(52 Ohio St. 157) STATE v. McCOY. By section 6815, Rev. St., one who prescribes or administers medicines to a pregnant woman, with intent to produce a criminal miscarriage upon her, is made a principal offender, while by section 6804, Rev. St., the woman is subject to indictment, as an aider and abettor thereof, if she voluntarily and knowingly participates in the unlawful act; and in such case, if, upon the trial of a principal offender, she testify on behalf of the state, her evidence should be regarded as that of an accomplice. (Syllabus by the Court.) Exceptions from court of common pleas, Wayne county. Defendant, McCoy, was tried for unlawfully administering medicine to a pregnant woman, with intent to procure a miscarriage. To the charge, the state excepts. Exceptions overruled. The defendant was indicted and placed on trial upon a charge of unlawfully administering medicine to a pregnant woman, with intent to procure a miscarriage. The woman was a witness for the state, and the defendant contended that if she knowingly and voluntarily took the medicine, with intent to cause her own miscarriage, then her testimony should be received as that of an accomplice, and the jury cautioned by the court to regard it accordingly. The trial court took this view of the question, and charged the jury as follows: "If you find from the evidence that Julia Harrison was pregnant at the time alleged in the indictment, and knew she was then so pregnant, and, with the intent of causing and procuring a miscarriage, she went to the accused, and was examined by him, and that afterwards the accused himself, or Yoder, acting under the instructions of the accused, procured from him the ergot or other medicines which were given to said Julia Harrison, the accused and Yoder then and there intending that said Julia Harrison should take said ergot and other medicines for the purpose of causing her to have a miscarriage of the child of which she was then pregnant, and that the said Julia Harrison, then and there knowing that said ergot and other medicines were so given to her for the purpose of causing her to miscarry, took the same, and miscarried on the 4th day of June, 1892, and that said miscarriage, or the means to procure it, were not necessary to preserve the life of said Julia Harrison, and had not been advised by two physicians to be necessary for that purpose, then said Julia Harrison would be an accomplice in the commission of said crime; and the same rule regarding her evidence should be applied by you as I have stated to be proper in the case of the accomplice Yoder. To this part of the charge, the prosecuting attorney excepted, and has brought it to this court for review. A. D. Metz, Pros. Atty., for the State. John McSweeny, for defendant. PER CURIAM. That the trial court may, and usually should, caution the jury respecting the degree of credit they should give to the uncorroborated testimony of an accomplice in a felony, is not denied; but the prosecuting attorney contends that a woman, under our statute, is not subject to indictment, although she may, jointly with others, engage in procuring upon herself a criminal miscarriage, and therefore is not to be regarded as an accomplice in the commission of the offense. The statute (section 6815, Rev. St.), under which McCoy was indicted, reads as follows: "Whoever, with intent to procure the miscarriage of any woman, prescribes or administers to her any medicine, drug, or substance whatever, or with like intent uses any instrument, or means whatever, unless such miscarriage is necessary to preserve her life, or is advised by two physicians to be necessary for that purpose, shall, if the woman either miscarries or dies in consequence thereof, be imprisoned. * This statute is not, in terms, directed against the woman upon whom the offense is committed, nor against any other person who may have aided, abetted, or procured its commission. Its terms include the person, only, who prescribes or administers the medicine, etc., or who uses the instrument. If this was the only statute, neither the woman nor any other person could be indicted, though she or he may have counseled or procured the offense to be committed. The legislature, in this instance, however, followed the usual mode adopted in this state for defining an offense, and affixing to it an appropriate penalty. Very few of our statutes that create a specific offense denounce a penalty against persons who may merely aid, abet, counsel, or procure its commission. This class of offenders is embraced by the sweeping provisions of section 6804, Rev. St., which reads, "Whoever aids, abets, or procures another to commit any offense, may be prosecuted and punished as if he was the principal offender." Whenever a woman voluntarily participates with another person, who administers medicine to or uses an instrument upon her, for the purpose of producing a criminal miscarriage upon herself, she falls within the express provision of the last-quoted statute, and is thereby subject to indictment and punishment as an aider, abettor, or procurer of the principal offender; and her evidence, when she testifies in the case, should be regarded as that of an accomplice. Exceptions overruled. (52 Ohio St. 66) STATE ex rel. ROBESON v. JACOBI, Sheriff. (Supreme Court of Ohio. Dec. 11, 1894.) CONSTITUTIONAL LAW-LEGISLATIVE POWERS-SUBDIVISION OF JUDICIAL DISTRICTS. Section 15 of article 4 of the constitution of 1851 vests in the general assembly of this state the power to change the subdivisions of the judicial districts of the state, subject, however, to the limitations imposed by section 3 of the same article. While section 3, among other limitations, may prohibit the division of a county, or placing totally disconnected counties of territory in the same subdivision, yet, subject thereto, the territorial form of the new subdivisions, and the relative population of each, rests within the discretion of the general assembly. (Syllabus by the Court.) Application for writ of mandamus upon petition of relator to compel Henry Jacobi, sheriff of Darke county, to issue a proclamation for the election of judges of common pleas. Peremptory writ awarded. Henry Jacobi, sheriff of Darke county, declined to issue a proclamation for the election of judges of the court of common pleas of the Second subdivision of the Second judicial district of this state, on the ground that the statute passed May 17, 1894 (91 Ohio Laws, 280) subdividing this district into its present form, is unconstitutional, and therefore void. Thereupon the relator, an elector of the county of Darke, one of the counties that comprise this Second subdivision, applied to this court for a writ of mandamus to compel the sheriff to issue such proclamation. To the petition of the relator an answer was interposed by the sheriff, showing that the three subdivisions into which said district was divided are not as compact territorially as it was practicable to make them, and that a wide difference exists respecting their respective populations. The sufficiency of this answer is denied by the interposition of a demurrer. Keifer & Keifer, Geo. K. Nash, Gottschall & Brown, and Nevin & Kumler, for relator. Harrison, Olds & Henderson, for respondent, BRADBURY, J. The authority of the gen. eral assembly to change the subdivisions of the Second judicial district to the extent that was attempted by the act of May 17, 1894 (91 Ohio Laws, 280), is the only question raised by the record before us. That the general assembly has authority to change the subdi. visions of a judicial district to some extent is not denied by counsel for respondent; indeed, section 15 of article 4 of the constitution of 1851 directly grants such power "whenever two-thirds of the members elected to each house shall concur therein." The power given to the general assembly by the terms of this section, when considered alone, is lim ited only by the requirement that two-thirds of the members elected to each house shall concur in the alteration. This court, how. ever, has held that the power vested in the legislature by this section is limited by the provisions of section 3 of the same article. District Court Case, 34 Ohio St. 431. Counsel for respondent contend that the statute in question violates those provisions of section 3 of article 4 of the constitution which de clares that the subdivisions shall be "of compact territory, bounded by county lines and as nearly equal in population as practicable.' The answer under consideration discloses that the territory composing the Second judicial district is susceptible of a more compact division than was made by the act in question, and yet preserve intact county boundaries, and that, without disturbing county lines, the population of the several subdivisions might have been made very much more nearly equal than they were made. In fact, the inequality between the population of the First subdivision and that of the other two is striking, that of the First being only 60,440, while that of the Second is 214,240, and that of the Third 235,075; the difference between the largest and the smallest population being nearly fourfold. If these provisions of our constitution are merely directory, they, of course, impose no obligation upon the general assembly enforceable by any judicial tribunal. Grave doubts were expressed by an author of recognized authority, in a treatise upon constitutional law of established reputation, whether any constitutional provision should be held to be directory rather than mandatory, but, on the contrary, insisting that the edicts of the people, enunciated through the medium of written constitutions, from their nature and the object sought to be attained by them, were mandates to be obeyed, and not advisory exhortations, to be followed or not as the functionaries addressed may choose. Cooley, Const. Lim. 93, 97. This view of the question is taken in many of the adjudications upon the subject. Lemon v. State, 4 W. Va. 755; State v. Rogers, 10 Nev. 250; Cannon v. Mathes, 8 Heisk, 516, 517; Spang. ler v. Jacoby, 14 Ill. 297; Varney v. Justice, 86 Ky. 596, 6 S. W. 457; People v. Lawrence, 36 Barb. 178. There are many other cases in which substantially the same doctrine is sanctioned. McCulloch v. State, 11 Ind. 424; Wolcott v. Wigton, 7 Ind. 44; People v. Campbell, 3 Gilman, 466; State v. Johnson, 26 Ark. 281; People v. Starne, 35 Ill. 121; State v. Glenn, 18 Nev. 34, 1 Pac. 186; Ryan v. Lynch, 68 Ill. 160. This court, however, has held a number of the provisions of the constitution of 1851, relating to the general assembly, to be merely directory, the observance of which rests entirely upon a sense of duty and a regard to their official oath by the members thereof. Miller State, 3 Ohio St. 476; State v. Covington, 29 Ohio St. 102; Bloom v. Xenia, 32 Ohio St. 463; Seeley v. Thomas, 31 Ohio St. 301. This doctrine finds support in the decisions of the highest courts of some of the other states. City of Cape Girardeau v. Riley, 52 Mo. 424; People v. Supervisors of Chenango, v. 8 N. Y. 317; McPherson v. Leonard, 29 Md. 377. We are of the opinion, however, that the provisions of the constitution now under consideration were intended to be mandatory, but are embarrassed in every attempt we make to find limits within which to confine the power of the general assembly, when we consider the language employed by the constitution, and the construction placed upon it by the convention itself. The provision is that the subdivisions of the judicial districts shall be "of compact territory bounded by county lines and as nearly equal in population as practicable." It is apparent that the first clause of this provision denies to the general assembly any power to divide a county, in subdividing a judicial district, because the subdivision must be bounded by county lines, and this would be impossible if one part of a county was in one subdivision and another part of it in another subdivision; for in such case the boundary of the subdivision would pass through the divided county, and the subdivision would not be bounded by county lines. In this respect a limit is set to the legislative power over the subject which is capable of being ascertained and declared. So the requirement that the territory shall be "compact" undoubtedly requires that the counties composing a judicial subdivision shall be adjacent, and denies to the general assembly the authority to create a subdivision consisting of separate bodies of territory. The word "compact" has various shades of meaning, even in this connection, one of which is "joined or held together"; and in view of the action of the convention itself, when it came to divide the state into judicial districts, and the districts into subdivisions, we cannot declare that it did not employ the word in this sense, but in the sense that the territory should be made as nearly square in form as the lines of counties would permit. The constitution declares not only that the subdivisions, but the judicial districts themselves, shall be of "compact territory," yet the convention that framed the instrument, when it came to the duty of creating judicial districts and subdivisions, made some of them consist of long and comparatively narrow strips of territory. This is notably the case in the Fourth and Fifth districts, the former of which extends along Lake Erie from Lucas county to Cuyahoga county, both inclusive, and the latter reaching from Franklin county, in the center of the state, to the Ohio river. Here was given a practical construction of the word "compact" by the body that used it, which, at least, fairly demonstrates that it was not used in the sense of requiring the territory to be divided in its most compact form; that is, as nearly square as was possible. If it was not employed in that sense what standard does the constitution furnish by which the judiciary may determine the limits beyond which the territory may not be narrowed and lengthened, in a straight line or otherwise, in the discretion of the general assembly? If the people desire to limit the scope of legislative action in its legitimate sphere, by constitutional provisions, they must mark the boundaries of that action so distinctly that they may be recognized and declared with certainty. They have failed to do that here, and we should not create them by conjecture. We have seen that the language employed by the constitution, as well as the practical construction put upon it by the action of the body that framed it, does not require that either the judicial districts or their subdivisions shall be created in the most compact form consistent with preserving intact county lines. The general assembly having a discretion in the matter, there is nothing in the constitution from which the judiciary can establish and declare a proportion beyond which the length shall not exceed the width of a judicial district or subdivision, or, if one is made materially longer than wide, that the length shall be in a straight line. The same difficulty and uncertainty, respecting the boundaries of judicial discretion relative to the variations of populations permissible between the several subdivisions, arise when we approach the question respecting the extent that the population of the several subdivisions of a judicial district may vary. The constitutional mandate is that the subdivisions into which a judicial district may be divided shall be "as nearly equal as practicable." These words denote discretion. Where is it lodged? Who is to determine what is practicable in this respect? Evidently that body whose duty under the constitution it is to create the judicial districts and subdivide them, and this duty is lodged in the legislature. The constitution is silent respecting the circumstances that the general assembly may consider in determining what is practicable in this regard. We have seen that this body, under another provision of this clause, must preserve county lines, and use adjacent territory in creating judicial districts and subdividing them. If the only circumstances to be considered by the legislature in performing this duty are that county lines must be respected, and the territory of each district or subdivision kept separate and entire, then the duty would be little, if any, more than clerical, and would involve no discretion whatever. A map, together with a census report of the population of the several counties, are all that would be necessary to a complete performance of this duty by any one. The boundaries of discretion, being thus narrowed and plainly marked, could be readily ascertained and declared; and if the popu lations of the several subdivisions of a dis trict were not made as nearly equal as could be done, and yet respect county lines or preserve the territory of each subdivision intact, then the constitutional mandate would be broken, and relief afforded by the judiciary. Considering the language, merely, of the constitution, and it leads us to the conclusion that legislative discretion in this matter is much broader than the narrow limits above suggested; and this construction was adopted by the framers of the constitution themselves when they divided the state into districts and subdivisions for judicial purposes. In subdividing the Third judicial district, the constitutional convention put into the First subdivision a population, according to the census of 1850, of more than 89,000; into the Third subdivision, 82,383; while the Second subdivision contained only 47,691 inhabitants. In subdividing the Fourth judicial district the same disregard of equality in respect of population was manifested by the constitutional convention. Cuyahoga county was alone made one subdi. vision, with a population of 48,099, while the other two subdivisions had, respectively, 74,337 and 78,013 inhabitants. In dividing these two districts it was practicable, regard being had only to preserving county lines and territorial integrity, to have made their respective populations much more nearly equal. The inference is, therefore, irresistible, that the contemporaneous construction given to this provision of the constitution by the body that made it authorizes other circumstances to be considered in subdividing judicial districts than those of preserving county lines intact and territorial unity. The constitution does not indicate the character of such circumstances. We may conjecture that the convention, in making Cuyahoga county alone one subdivision of the Fourth judicial district, though its population at the time was not much greater than one-half of that of either of the other two subdivisions, had regard to the commercial character of the inhabitants of the young and growing city of Cleveland, which was in that county, and its probable rapid growth. We may also conjecture that the convention in placing the seven counties of Mercer, Van Wert, Putnam, Paulding, Defiance, Williams, and Henry in one subdivision of the Third district, the united population of all amounting to only 47,691, while the other two subdivisions had, respectively, 89,040 and 82,383, had regard to the circumstance that the former were comparatively new counties, opening up to settlement, and would probably increase in population, relatively, faster than the other counties of the district. No doubt many other circumstances may arise from time to time that should be weighed in determining how far from equality the populations of the judicial subdivisions may be permitted to vary. But the constitution has prescribed no limits to their number or their inherent force ascer 1. Article 1, § 6, of the general law governing municipal corporations, provides that, in case of organization under it, all laws in conflict with it shall no longer be applicable to the municipality so organized, but that all laws and parts of laws not inconsistent therewith shall continue applicable. Held, that where a city, under a special charter, reorganized under the general law, the provisions of the city charter creating the municipal territory into a common-school district, and providing for its government as such, remained in force, since the said general law contains no provision on the subject of schools. 2. A city as organized was divided into four wards, and its charter provided that its board of education should consist of the mayor and one member from each ward. By amendment to the charter, it was afterwards provided that the members of the board should hold office for two years, and that two of them should be elected each year. Held, that the charter as so amended did not, by implication, limit the number of members to four in case of an increase in the number of wards. 3. The fact that such city, after reorganizing under the general law, adopted the system of minority representation in the city council, thus causing the city officers to be elected only once in two years, does not prevent the city from holding yearly city elections for members of the board of education. 4. Act May 21, 1889, making a general revision of the school law, and repealing "all general school laws of the state," repealed the act of March 25, 1887, which provided that, in all cases where the time for electing members of boards of education was fixed by virtue of any special charter, such election might be held at the time provided for the election of school directors under the general school law. Error to circuit court, Morgan county; Cyrus Epler, Judge. Information in the nature of quo warranto by the people, on the relation of Louis A. Malone, against George W. Smith and others. There was judgment of ouster. Defendants bring error. Modified. Richard Yates, W. P. Callon, and C. A. Barnes, for plaintiffs in error. F. D. Mc Avoy, I. L. Morrison, J. A. Bellatti, and J. P. Lippincott, for defendant in error. BAILEY, J. This was an information in the nature of a quo warranto, brought in the name of the people of the state of Illinois, by the state's attorney of Morgan county, on the relation of Louis A. Malone, a taxpayer and legal voter of the city of Jacksonville, charging Thomas S. Knowles with 1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar. usurping the office of president, George W. Smith, John C. Widenham, Ethelbert D. Rothwell, and Nathan R. Jerald with usurping the office of members, and O. I. Milburn, George W. Fanning, and Andrew Russell with usurping the offices, respectively, of clerk, deputy clerk, and treasurer, of the board of education of the city of Jacksonville. The information contains three counts. The first and second counts attempt to set up and state affirmatively the title claimed by the respondents to their respective offices, while the third count charges, generally, that the respondents unlawfully hold and exercise the powers of their respective offices, and that there is no law authorizing such offices. The information was afterwards dismissed as to respondents Milburn, Fanning, and Russell. A demurrer was interposed to each count of the information, and overruled as to the third count. The demurrer to the first and second counts was also overruled as to respondents Rothwell and Jerald, and sustained as to respondents Knowles, Smith, and Widenham. Answers were thereupon filed by the three respondents last named to the third count, and by the other respondents to the entire information. Demurrers being filed to each of the answers, the demurrer to the answer of respondent Knowles was overruled, and final judgment was rendered thereon in his favor, dismissing the information as to him. The demurrers to the answers of the other four respondents were sustained, and, they having elected to abide by their answers, final judgment was rendered against them ousting them from the office of members of the board of education of the city of Jacksonville, and imposing upon each a fine of one dollar, and also for costs. Το reverse that judgment they now bring the record to this court by writ of error. Without attempting to state the several issues presented, in the form in which they are submitted by the pleadings, we shall con. tent ourselves with as brief a statement as practicable of the material facts involved, as they appear admitted of record. The city of Jacksonville was incorporated by a special act of the general assembly approved February 15, 1867, the act being, by its own terms, declared to be a public act. 1 Priv. Laws 1867, p. 336. By section 3, art. 1, of the act, the city was divided into four wards; and in the same section it was provided that the city council might, from time to time, change the boundaries of the wards, and create additional wards, as occasion might require. By subsequent articles it was provided that the municipal government of the city should consist of a city council, consisting of a mayor and one alderman from each ward, and provision was also made for the election or appointment of various other city officers, and for an election, to be held on the first Monday of April, 1867, and on the first Monday of April in each year thereafter, at which should be chosen the mayor and aldermen and the other city officers required to be elected. The elections were required to be held in each ward, and power was given to the city council to determine the time of day and the place in each ward for holding the election, and to appoint the judges thereof; and it was provided that the manner of conducting the elec tion, of voting, of keeping the poll lists, of canvassing the votes and certifying the result, and of contesting the election, should be the same that then was or thereafter might be prescribed by law for state elections. Article 11 of the act provided for the establishment of a system of graded schools in and for the city. By section 1 of that article, all the territory within the limits of the city, according to its then present or future boundaries, was erected into a common-school district. Section 2 made provision for an equitable division of the school funds belonging to the township of which the city formed a part between the school district thus created and the residue of the township; and section 3 required the township trustees to pay over and deliver to the board of education of Jacksonville the portion of the school funds to which that district was entitled. Section 3 also provided as follows: "The public schools of said district shall be under the exclusive management and control of a board of education, to consist of the mayor of the city, who shall be president of the board, and one from each ward of the city, to be known as the 'Board of Education of Jacksonville School District,' each of whom, with the treasurer of said board, shall be sworn to discharge their duties with fidelity." Section 4 gave the board thus constituted exclusive control over the school property and funds, and provided that a majority of its members, with or without its president, should constitute a quorum for the transaction of business. Section 5 gave the board full power to buy or lease sites for schoolhouses, with the necessary grounds therefor; to erect, hire, or purchase buildings for school purposes, and to keep them in repair; to furnish schools with necessary books, fixtures, apparatus, and libraries; to establish, conduct, and maintain a system of graded schools, to be kept in one or more buildings in the district; to supply the insufficiency of school funds for the payment of teachers, and other school purposes and expenses, by school taxes, to be levied and collected as in the first act provided; to determine the number, make the appointment, and fix the amount of the compensation of teachers within the district, and to appoint a general superintendent of schools, and prescribe his duties and fix his salary, and to appoint all other agents and servants, and fix their compensation; to prescribe the branches to be taught and books to be used; to lay off and divide the district into smaller districts, and to alter the same, or erect new ones at pleasure; to pass by-laws, rules, and regulations to carry the power of the |