OPINION ON REHEARING.
Cole, J. —Since the opinion in this case was filed and judgment entered in accordance therewith, the Attorney General has, within' the time prescribed for filing such petition in a civil action, filed in this case a petition for rehearing. Without now determining whether such a petition can properly be filed in a criminal cause, or if so, whether it would be competent to change the judgment so as to make it more burdensome to the accused, we proceed to state our views in reply to the petition for rehearing in this supplemental opinion.
I. Tire opinion of the court heretofore filed determined two classes of questions respecting the legality of the constitution of the gland jury. One class was as to the effect of mere irregularities in failing to follow the directory provisions of the statute, such as the failure of the judges of election to ■return the proper number of names for grand jurors, the selection of a jury from a list containing a less number than prescribed by statute, the irregular manner of supplying names to fill up the list, etc. These were held to be mere irregularities which did not affect the legality of the grand jury or work a prejudice to the substantial rights of the accused. In ' ■so holding the court followed The State v. Carney, 20 Iowa, 82; The State v. Knight, 19 Iowa, 94; The State v. Rohrabacher, Ib., 151; The State v. Adams, 20 Iowa, 486, and other cases.
The other class was as to the effect of the drawing or comparing the list of the grand jury by a person not authorized ■by law, and by a person prohibited by the statute from so doing. This was held to render the constitution of the grand jury illegal. In so holding- the court followed the case of Dutell v. The State, 4 G. Greene, 125. See, also, Baker et al. v. The S. B. Milwaukee, 14 Iowa, 220. Twenty-two pages *633of the petition for rehearing in the case are occupied in an, unnecessary effort to convince the court that the decision of The State v. Carney, supra, and other cases followed as above, were wisely decided. "We thought so before, and therefore followed them. But none of these cases involve the question decided in Dutell v. The State, and only decide questions not involved in it.
The case of Dutell v. The State was decided in 1853 by an unanimous court, and has remained unquestioned by either thé bench or the bar from that day to this. It decided that “ the county judge and sheriff are authorized by the Code to compare and correct the list of grand jurors, and the deputy sheriff is precluded by section 412 of the Code from acting thus in conjunction with another officer; consequently a list of grand jurors compared and corrected by the county judge and deputy sheriff is not a legal jury and therefore not authorized to find an indictment.” In that case, as in this, the list of grand jurors was compared and corrected by the deputy sheriff', in conjunction with the other officer named in the statute; and the court below refused to set aside the indictment for that reason, and on appeal to the Supreme Court the judgment was reversed and the indictment was set aside.
The section of the Code involved in that case, being section 412 of the Code of 1851, is in the very words of section 643 of the Revision, which was in force when the grand jury was drawn and the indictment found, and is as follows; “In the absence or disability of the principal and in the cases provided for in the chapter relating to vacancies the deputy shall perform the duties of his principal pertaining to his own office; but when an officer is required to act in conjunction with, or in the place of another officer, his deputy cannot supply his place.” That case also involved the construction of section 1640, of the Code of 1851, which is in precisely the same language as section 2730 of the Revision; that section provided that the lists of grand jurors should be made by the clerk and the names of the jurors be written on separate ballots, “ and the judge of the county court and sheriff having compared said ballots with the jury list and rectified the .same if neces*634sary, shall place the ballots in a box provided for that purpose.”
For more than twenty years these statutes, as construed in Dutell v. The State, were allowed to remain unchanged; and, as if to add special approval to the construction there given, and to intensify the approval of that construction, which declared illegal an indictment found by a grand jury where the lists were compared by the deputy sheriff, the legislature in adopting section 240 of the Code of 1873, which is the corresponding section to 1640 of the Code of 1851, and section 2730 of the Eevision, has expressly provided that the list may be made by the auditor or his deputy and that the comparison shall be made by the clerk of the District Court, or his deputy and have retained intact the provision that the comparison must be made by the sheriff in person. This change, embodied in section 240 of the present Code, shows that the legislative attention was called to the propriety of giving the power to compare the list to the deputies of the officers named; for it does give that power to the deputy clerk, while it denies it to the deputy sheriff. IIow is it possible, in view of this previous judicial construction and legislative action, for even an over-zealous counsel to come to any other conclusion than that it is the clear purpose of the law to prohibit the deputy sheriff from doing the act which was done in this case, is almost beyond comprehension. The use of negative words renders a statute mandatory. See Cooley on Constitutional Limitation* p. 75. The same line of reasoning which would permit the deputy sheriff to compare the list, would dispense with the comparison altogether.' When a statute is positive, it is for the legislature to change or abrogate it. It is the duty of the court to interpret it; and it is enough for the court to say, Ita, est seripta lex.
But it is insisted that by the Eevision, section 2945, “ The Supreme Court must examine the record and, without regard to technical errors or defects which do not affect the substantial rights of the parties, render such judgment on the record as the law demands.”
This section, however, is the same in effect as the law in *635force when the case of Dutell v. The State was decided. Sec-3097 of the Code of 3851 was in these words: “The Supreme Court must give judgment without regard to .technicalities or defects, which do not affect the substantial rights of the parties.” It is, however, further urged that the record in this case shows that the ballots prepared by the deputy auditor and compared by the deputy sheriff correspond with the list of the grand jurors. This is not true in fact; and while it is made the basis of very much of the rhetoric of the petition for' rehearing, it has no other existence than in the imagination and wishes of the learned Attorney General. Upon .this* subject Mr. Baker, the deputy auditor, testifies, “I took' no other part in drawing the jury than to make the lists and the ballots; but I was present and made some cor-, rections on these ballots. The clerk, sheriff and auditor, when they made the drawing, found . that I had made some mistakes in the names in drawing off the list, and they corrected them.” Erom this it appears that the comparison made by the deputy was very certainly not correct, and the list did not contain the correct names of the grand jury; some of the errors, it seems, were discovered incidentally by the officers'while they were engaged in drawing the jurors.- That they discovered all the errors is not shown, nor claimed; but that there were errors made by the deputy in comparing is shown by the agreed abstract from page seven of which we have quoted the. above. The testimony of McClelland, the clerk, also shows that there were further errors. We have, then, the statute prohibiting the deputy from acting; we have the fact that he did act contrary to the statute; we have the fact that he committed errors, and have no showing or anything from which we may properly infer that the defendant was not prejudiced in his substantial-rights thereby. In view of these facts and considerations we see no escape, if we are to regard the law alone, from the conclusion that the indictment should be set aside.
II. Respecting the necessity of charging in the indictment the name of the person to whom the money was loaned, it is *636sufficient to say that, in the original opinion, this point was not definitely decided.
■ III. The petition for rehearing betrays an evident misapprehension of the opinion upon the point of the insufficiency of the indictment in charging an offense, for that it does not charge that the money loaned was unaccounted for.
The section under which the indictment was found reads as follows: “ Sec. é2ÍS. If any officer within the state, charged with the collection, safe keeping, transfer or disbursement, of the public money, convert to his own use in any way whatever, or use by way of investment in any kind of property, or loan without the authority of law, any portion of the public money intrusted to him for collection, safe keeping, transfer or disbursement, every such act is an emhezzlement of so much of said money as is thus taken, converted, invested, used, loaned or unaccounted for, and upon conviction thereof he shall be imprisoned,” etc.
The fair construction of this section, alone and disconnected from any other section of the statute, must lead to the results reached in the former opinion. The subsequent legislation there referred to only tends the more unmistakably to approve that construction.
g__em_ 'whZateioonstitutes. The section above quoted, under which the indictment is found, defines three acts as felonies, to-wit: The unlawfully converting the public money by an officer to own use; using by way of investment; and the loaning without the authority of law. These acts, and these only, are declared to be embezzlement. What follows in the same section is evidently to define the extent of the embezzlement. If the mere converting, using or loaning was of itself an embezzlement of the amount so converted, used or loaned, (which is the construction contended for by the Attorney General,) then the natural and direct mode of stating that idea would be, “ every such act is an embezzlement of the money thus converted,' used or loaned,” etc. The idea, however, expressed in the Statute, is that such act of converting, using or loaning is not an embezzlement of the money converted, used or loaned, but *637may be an embezzlement of but part of it. For the statute says that every such act is an embezzlement of so rmich of said money as is converted, used or loaned, etc. If it is an embezzlement of so much of said money, the question arises, of how much? The Attorney General says, of all that is used, loaned or unaccounted 'for. It is evident, however, if this construction is correct, that the words “so much” are improperly used, and that the idea would have been expressed by the article “ the ”; and, further, by such construction no force or effect whatever is given to the words “unaccounted for,” since the words “ converted, used or loaned,” express and include all and more than all that is embraced in the words “unaccounted for, ” and the construction is just the same as though those words had not been employed. Such construction, therefore, must be rejected, for it is a well settled principle and rule of construction, that force and effect must, if practicable, be given to all the words employed.
9 constituconftvuotion1 of statute.. It is conceded by the petition for rehearing, and the author,ities cited prove it, that when it is necessary to harmonize ^he Provisions of a statute, the word “ or ” may be change<l to “and” — that is, that the conjunctive maybe changed for the disjunctive, and e converso. Now, by making this change the whole section becomes harr monious, and effect is given to all its language. Every such act, then, is embezzlement, not of the money loaned, etc., but of so much of the money as is converted, used, loaned and “ unaccounted for.”
By this construction, too, the propriety and wisdom of the subsequent legislation can be vindicated. There was great propriety in making it a misdemeanor for a state or county treasurer to loan the public money, if such loaning was not before an offense; but this subsequent statute can neither be vindicated or explained upon the notion that this offense declared by it to be a misdemeanor was before, and for many years had been, a felony, punished with a much severer penalty. The legislature doubtless viewed the statute as being properly construed, as we have above interpreted it, whereby the loaning óf and failing to account for the public money by *638a public officer was declared a felony; and with a view to prohibit the bare loaning of such money under any circumstances, enacted by the statute of 1858, which is copied in the Revision, making the loaning a misdemeanor, and visiting such offense with the penalty of a fine, and the fine was made sufficiently large, within the discretion of the court, to deter from the violation of such statute. At all events the fine prescribed is the full measure of the liability for the offense defined. To now hold that the legislature construed the statute differently from the plain import of its language, as above construed, and that it made the bare loaning of the public money a felony, for which a guilty party could be sent to the penitentiary, and thereupon deliberately enacted "that for precisely the same offense the guilty party should be punished only with a fine, would be to convict the legislature of extreme folly. We are not required to do this either by the language of the law or by any precedent we have seen.
The former opinion of the court herein referred to the other legislation, and the construction of the section in question as being necessary in order to harmonize all the statutes, and by no fair implication can it be said that the opinion sought to change by construction an earlier statute in order to harmonize it with the later; but rather that the meaning of the earlier statute was so manifest and plain as that the legislature placed upon it the same construction we have, and must have done so, for otherwise their later legislation would be either a nullity or an absurdity.
IY. It is urged lastly that under section 4906 of the Revision, we have no jurisdiction until after final 'judgment, and that we cannot entertain an appeal from a judgment overruling a demurrer or motion to quash. This, point was not made, nor even hinted at, until the petition for rehearing was filed.
*63910 appealmelVun-" necessary. *638The abstract shows that the appeal was taken from a decision of the court overruling a demurrer to the indictment, and a motion to set the indictment aside. The abstract contains a stipulation of the district attorney that the cause *639may be submitted on that abstract, which is agreed upon to he correct. The only authority cited and relied upon by the Attorney General in favor of the position he assumes is the case of The State v. Fleming, 13 Iowa, 443. The question here presented was not involved in that case; and what is said upon it by the judge delivering the-opinion is the merest dieta. In that case, by the statement, it appears “ the defendant was accused of intoxication, was found guilty, and sentenced to pay a fine of ten dollars and be imprisoned for thirty days.” "We quote from the opinion the following, which will show the real point determined in that case. ' “ Baldwin, Ch. J. In this cause an agreement was made between a district attorney and the attorney for the defendant, that an appeal might be' taken by the defendant to the Supreme Court, notwithstanding the fact that more than one year had expired after the judgment of the District Court had been rendered. The Attorney General now asks that the cause be stricken from the docket, denying the power of the district attorney to make any agreement which would waive or prejudice the right of the State in this court. * * ' * * If a party fails to prosecute the remedy by appeal for one year after judgment, such right is forever at an end, and this court .has no power to entertain jurisdiction of a cause after this time has elapsed. Nor do we think that the consent of the attorney for the state can confer such jurisdiction. Dismissed.”
The difference between the point involved in that case and in this is too apparent to justify citation in this. .
"We have no doubt that we may acquire jurisdiction before the final judgment where both state and defendant consent, or no objection is made, as is the fact here.
The history of this case both illustrates and vindicates in a striking manner the propriety of entertaining such an appeal. This indictment and several others, including seven against this defendant-for embezzlement, were presented to the District Court of Polk county at its April Term, 1874, when the Hon. H. W". Maxwell was the judge of that court. Motions *640to set aside these indictments against the defendant on the ground of illegality in selecting the grand jury were made before Judge Maxwell and by him overruled. In January, 1875, Judge Maxwell’s term expired and Hon. John Leonard became judge of the court. Motions , to suppress other indictments found at the preceding April Term, not passed upon by Judge Maxwell, were'presented to Judge Leonard and were by him sustained, the two judges thus holding in opposition to each other upon the question of the legality of the grand jury. One of the indictments against this defendant came on for trial before Judge Leonard and the defendant was convicted. A motion in arrest of judgment was made on the ground of the illegality of the grand jury. Here was a dilemma; Judge Leonard believed and had held the grand jury illegal, and yet did not wish to review and set aside the judgment of his predecessor, Judge Maxwell, upon the particular indictment which he had held valid. Hence the appeal in this case for the purpose of advising the District Court what action to take. This court was led to believe that the state and the defendant were equally anxious to have the appeal entertained and the point determined. We were never advised to the contrary or had any ground to suspect it, until the objection was made in the petition for rehearing. The Attorney General joined with the defendant’s counsel in open court, at the time the cause was submitted to us, in a request for an early decision of the case in order to relieve the District Court from its dilemma; and the Attorney General then stated that he made the request upon the desire of the District Judge.
In view of these facts, we cannot forbear to quote the language of the Supreme Court of the United States in Williams v. Baker, 17 Wallace, 144, (i. e.) 152: “ Whatever, therefore, may have been the design of the parties to the suit, * * * * it is clear that the question here involved was argued fully by the parties deeply interested on both sides, and received the attentive consideration of the court, and as an authoritative exposition of its views is entitled to the sariie weight as other well considered cases.” And to quote further *641from the same opinion (page 150) “we must-be permitted to question both the taste and legal competency ” in seeking for the first time to raise the question of jurisdiction after the; cause has been deliberately determined upon full argument, and in seeking so to raise it by petition for rehearing.
That the Supreme Court, both by the constitution and laws,has full and exclusive jurisdiction to hear and decide appeals from the District Court in criminal cases is not and cannot be questioned. The particular point here made is, that the appeal cannot be taken until after a final judgment has been rendered. If this were so, yet it would not deprive the Supreme Court of its constitutional jurisdiction to hear and decide the appeal — the objection only relates to the time and manner of taking the appeal. While consent cannot confer jv/risdiction, yet parties by consent may waive the process or other regulation prescribed for bringing the subject matter or case before the court clothed witli jurisdiction to decide it. This is all that was done in this case, even as claimed by the Attorney General. It is claimed that the defendant had no right to take the appeal until after the final judgment. But while he might not, as a matter* of light under the statute, be entitled to take the appeal, yet he might, by consent of the proper officers, take it, and in whatever manner the appeal is taken, there can be no question as to the jurisdiction of the court to decide it.
But aside from’these facts and the consent, there can be no question that the court had jurisdiction of this appeal. By Code of 1851, Sec. 3090, it was enacted: “’No writ of error can be sued out in a criminal action until final judgment has been rendered.” Under this section it was held that an appeal could not be taken even by consent until final judgment has been rendered. Ritter v. The State, 1 Iowa, 99. But, by the Revision of 1860, it was enacted, Sec. 4904, “ The mode of reviewing in the Supreme Court any judgment, action or decision of the District Court in a criminal case is by an appeal.” Sec. 4906. “No appeal can bé taken until after j udgment, and then only within one year thereafter.” (Code of 1873 is the same as Revision. See sections 4520-4522.)
*642It will be seen- that the word “ final,” as used in the Code of 1851, is omitted from the Revision. Hence, if there is a judgment upon the action or decision of the District Court, although it may be an interlocutory judgment, that is, not- a final judgment, an appeal will lie. In this case the defendant moved to set -aside the indictment, and .also filed a demurrer thereto. The court overruled both, and entered its decision thereon upon the record, in form and effect as a judgment of the court, that the indictment was legally found and legally sufficient. From that decision and judgment, which was conclusive and would everywhere be held as a res adjudicaba between the parties, the defendant appealed, and that appeal gave to the Supreme Court jurisdiction of the case. Neither the language nor the spirit of the statute, nor the public interests, would justify us in limiting appeals to final judgments, since the legislature has rejected the word “ final ” from the statute. Wherever there is an action or decision by the court and judgment thereon, the right of appeal is given. If it was a decision upon the question of evidence or the like, no judgment could properly be entered, and hence no appeal would lie. But in a case like “this, where the motion or the demurrer involves the merits of the cause, or the legality of the proceedings, and the court decides such motion and makes the same of record, in the nature of a judgment, there can be no room for a reasonable doubt that the right of appeal must and does exist.
The petition for rehearing is, therefore,
Overruled.