EXPLOSIVES — INSPECTION LAWS — INDICTMENTS.

[Sandusky Circuit Court,

December Term, 1897.]

Haynes, Parker and Hale, JJ.

(Judge Hale of the Eighth Circuit, taking the place of Judge King.)

#### *C. S. Corthell v. The State of Ohio.

1. Indictment under Sec. 2573c, 2573c-1, 2573-2, Rev. Stat.

An indictment under sec. *2573c, 2573c-1,*2573-2, Rev. Stat. (Bates’, 1897 Ed.), for failure to comply with the requirements of an order to remove explosives and alter the construction of the magazine used for storage of the same which does not aver that the inspection forming the basis of such order was made, and that such order was issued by a district inspector of workshops and factories appointed by the chief State inspector of workshops and factories to make such inspection and issue such orders, is fatally defective.

i. Averment that Inspection was made and Order Issued by District Inspector, is not Sufficient.

An averment that the inspection was made and the order issued by one who was a district inspector of workshops and factories and an “inspector of high explosives” in and for the State, is not sufficient.

3. Mailing of such Order, not Deemed as Sufficient Evidence of Service of such Notice, when.

Proof that a notice of such order was written and enclosed in a sealed envelope properly stamped and addressed to the defendant, and that it was placed in ■the hands of a private messenger to be mailed, is not sufficient evidence of service of such notice.

4. Query.

Whether the proof would have been sufficient if it had shown that it had been placed in the *mails*— Quere *?*

*

 For previous decision in this cas-e, see 5 Circ. Dec., 123.

Parker, J.

The plaintiff in error was indicted, prosecuted and convicted in the ■court below on a charge of having failed to obey an order issued from a certain officer of the state respecting the removal of explosives and the alteration of the construction of a magazine in which said explosives were stored.

The prosecution is under sec. *2573c,*2573c-l, 2573i-2, as found in Bates’ Annotated Ohio Statutes, revision, 1897.

Section 2573i-l provides: “That the chief State inspector of workshops and factories shall appoint from among the district inspectors ■of workshops and factories, whose appointments are now authorized by law, at least one inspector who shall be a skilled and experienced person, thoroughly conversant with the manufacture and use of powder, dynamite, •nitro-glycerine, fuses or other explosives and their compounds whose duty it shall be to inspect all the manufacturing establishments in the state of Ohio wherein the manufacture of powder, dynamite, nitro-glycerine, compounds, fuses or other explosives are manufactured, and all magazines or store-houses wherein such explosives are stored and he ■shall personally inspect the process of manufacture, the handling and •storage of such explosives and may direct and order any changes or addition that he may deem necessary'in or about such manufácturies, magazines or store-houses for the safety of the employees and the public, etc. I read but a part of the section._.

*50Section 2573r-2 provides that said inspector of workshops and factories shall enforce the provisions of this act under the same conditions and penalty as are applied in sec. 2573c, Rev. Stat.; and 2573c, with the. other section read into it, provides that if a person owning or controlling such explosives or place of manufacture or storage, who is ordered to make such removal or change as is provided for by sec. 2573-c-1, fails to do so within thirty days after notice or within such time after notice as such alterations can be made with proper diligence, he shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $500.00 and not less than $50.00 and $10.00 additional for each day after such conviction until such alterations and additions have been made, which fine shall be paid into the treasury of the county in which conviction is had.

Now, it will be observed that the authority to make this inspection and issue this order — disobedience of which is made a crime under the statute, is vested in such district inspector as shall have been appointed to that duty by the chief State inspector of workshops and factories. It will be seen that it is a very important duty, a very extensive and important authority, and the notice is of prime importance in case of a prosecution under this statute.

The indictment in this case sets forth that Willard Du Comb, one of the district inspectors of workshops and factories in and for the state of Ohio, and “ inspector of high explosives” in and for said state aforesaid, made this inspection and made this order, which it is charged the defendant disobeyed or failed to comply with. The title of “ inspector of high explosives ” is not given to thid officer by the statute. There does not seem to be any such office or any such officer under the statute of Ohio. As a matter of convenience in the administration of the affairs of the office of chief inspector of workshops and factories, it appears they have adopted this name and have applied it to a certain district inspector, and perhaps to 'the district inspector who was appointed under sec. *2573c*— l> to perform these particular duties, but it is not so charged in the indictment.

Following the indictment all the way through, this officer is described as an inspector of high explosives in and for the state of Ohio. It is nowhere stated that he was a district inspector of workshops and factories and that he was appointed by the chief State inspector of workshops and factories to perform this particular duty. It does not appear, from the indictment, that the person who made this inspection and issued this order was authorized'by law to make the inspection or issue the order. It does not appear from the indictment that the defendant was in default or had committed any crime by reason of his failure or refusal to obey and observe an order issued by one authorized to make it. He committed no crime in failing to obey an order issued to him by one who was simply an inspector of high explosives in and for the state of Ohio, whatever and whoever that may be.

We hold, therefore, that the indictment in this particular is defective, and that the defect is 'of that character that the demurrer to the indictment should have been sustained, and that the court erred in not sustaining the demurrer to the indictment.

Very many questions that are debated before us here have already been passed upon' by this court in the case of Corthell v. The State of Ohio, 5 Ohio Circ. Dec., 123, and we have not re-examined these questions. We are content with the conclusions arrived at in that case. *51There are other questions noted which are not likely to again arise upon a retrial of this case. Such questions with respect to the omission and rejection of evidence, and certain things in the charge of the court, we will not take time to consider particularly. There is one matter, however, that we will call attention to so that the same error may not be fallen into again. We hold that even if this notice had emanated from the proper authority, there is not sufficient evidence in this record of the service of the notice upon the defendant. The testimony upon the subject of the notice, I will read. B. H. Slack, an employee in the office of the chief inspector, called as a witness for the state, gives the only testimony upon this point. The important part is as follows:

> “ Q. I will ask you to whom you delivered a copy of the order which you hold in your hand ?

> “ A. To C. S. Gorthell, Manager, Findlay, mailed it to him.

> “ Q. Did you place the address of C. S. Corthell, Findlay, Ohio, on the envelope?

> “ A. Yes.

> “ Q. That you placed in the postoffice and duly stamped ?

> “ A. Yes.

> CROSS-EXAMINATION.

> “ *Q.*Are you the mail carrier in your department?

> “A. No.

> “ Q. Who carries the mail, who delivers the letters that are written over to the postoffice ?

> “ A. We have a messenger.”

Now, it was suggested here that so far as appears from the record, this messenger may have been an employee of the United States, a mail carrier and not a private messenger, but we think it fairly appears from this answer that the messenger was not of this character, but was a messenger in the office of the State inspector of workshops and factories.

> ‘ ‘ Q. What is his name ?

> “ A. Frederick Shoub.

> “ Q. When a letter is written it is left in a box and delivered to the postoffce ?

> ‘ ‘ A. This was not.

> *“ Q.*Did you deliver personally?

> “ A. No.

> “£. Who did?

> “ A. Messenger.

> “ Q. How do you know?

> “A. I placed it in his hands.

> *“*O. Now ,you have been telling us you mailed when you placed in the hands, of a messenger ?

> “ A. Yes.

> “ O. You don’t know he mailed it ?

> “ A. We have reasons to believe he did.“

We repeat that upon notice of this order, if the order is not obeyed or observed, the person notified, or the person to whom it is addressed, becomes guilty of a crime, and subject to heavy penalties; therefore, the rules upon the subject of notice requiring that actual notice shall be *52•given where no other kind of notice is especially provided for by the •statutes should be strictly observed and adhered to in a case of this character.

*George*Phelps, for plaintiff in error.

*G. H.*Withey, prosecuting attorney for state.

The general rule on this subject is stated in the case of Moore v. Given, 89 O. S., 661, as follows: “Where a statute requires notice <©f a proceeding but is silent concerning its form or manner of service, actual notice will alone satisfy such requirement.”

, Whether evidence that this notice was sealed in an envelope properly addressed, stamped and mailed at the postoffice, would be sufficient, we -do not consider or pass upon, but we hold that the proof of service in this case was not sufficient.

The judgment will be reversed and the defendant discharged.