author: Shauck, J.

text:
    State ex rel. Attorney General v. Brown et al.

      Erection of county buildings by county officers and persons appointed — Act of atUhorization to build, invalid — Laws of general nature and uniform operation — Invalidity of Act of April SI, 1898 — Constitutional law.

    1. A scheme for the erection of such county buildings as may, by designated county officers and persons to be appointed to act with them, be deemed necessary is a subject of general legislation ; and an act providing therefor must, in view of the requirement of section 26 of Article II of the constitution, have a uniform operation throughout the state.
    2. The act “to authorize the commissioners of Cuyahoga county to acquire a site and erect new county buildings thereon (93 O. L., 587) is void.
    (Decided June 13, 1899.)
    In Quo Warranto.
    Three of the defendants are the commissioners of Cuyahoga county, three are members of the county buildings commission appointed by the judges of the common pleas court of said county and the seventh is the auditor of the county. The object of the petition is to oust the defendants from the exercise of powers assumed to be conferred by the act of April 21, 1898, entitled “An act to authorize the commissioners of Cuyahoga county to acquire a site and erect new county buildings thereon” (93 O. L., 587).' The cause is submitted on demurrer to an answer which admits that the defendants are proceeding'to exercise all the power which said act attempts to confer. It is sufficient to say of the allegations of the pleadings that they raise, as they are intended to raise, no question except the constitutionality of the act referred to.

      F. 8. Monnett, Attorney-General and G. C. Blankner, Assistant Attorney-General, for plaintiff.
    We claim that the defendants are exercising and performing duties which are of such a nature as to constitute them county officers, and this being so, the act in question is unconstitutional and void, being in contravention of article 10, section 2, of the constitution of Ohio.
    The first query that naturally suggests itself is, what is an office? Webster defines an office to be “a special duty, trust, charge, or position, conferred by authority and for a public purpose.” Throop v. Langdon, 54 Mich., 682; Bouv. Law Dic. “officers”. Bradford v. Justice, 33 Ga., 332; Platt v. Beach, 2 Benedict (U. S. D. C.) 306; The People v. Pinckney et al., 32 N. Y., 726; The King v. Dr. Burnell, Carthew, 478.
    It is therefore, well settled, we take it, that where one is performing a public duty, charge or trust, the same having been conferred by public authority, he will be deemed a public officer. This being the established rule, we can safely claim that the defendants are county officers. They are officers because they are performing acts which are of a public nature, and county officers because, as has been shown, they are exercising functions of the utmost moment to the people of the county of Cuyahoga. People v. Comptroller, 20 Wend. (N. Y.), 79; People v. Nostrand, 46 N. Y., 381; People v. Hurlburt, 24 Mich., 59; Carpenter v. Snow, 7 Barb; Sheboygan Co. v. Parker, 6 Wall., 96; 2 Barb. S. C. Rep., 517.
    We maintain that the act under consideration is in violation of article 2, section 26, of the constitution of Ohio. Hixson v. Burson 54 Ohio St., 470.

      We claim that the law which seeks to confer upon the defendants the office of County Buildings Commission is in violation of article 13, section 1, constitution of Ohio.
    In addition to the act being- in contravention of the foregoing sections of the constitution of Ohio, we contend that it violates section 2825, Revised Statutes of Ohio.

      P. II. Kaiser, county solicitor and F. L. Taft, assistant county solicitor, for defendants. .
    The only question sought to be raised upon the record, in this case, is the constitutionality of the act, entitled, “An act to authorize the commissioners of Cuyahoga county to acquire a site and erect new county buildings thereon,” passed April 21, 1898; 93 O. L., 587.
    That the act in question is, by its terms, a local act must be conceded.
    Section 26 of article II does not inhibit the passage of appropriate local laws. Ohio ex rel. v. Covington, 29 Ohio St., 102; State ex rel. v. Hoffman, 35 Ohio St., 443; Peters v. Railroad Co., 42 Ohio St., 275.
    Statutes of the same nature and containing like provisions with those of the act under consideration, have been upheld by this court. Commissioners v. Pargillis, 10 C. C., 376; s. c. 6 Circ. Dec., 717; s. c. 53 Ohio St., 680; Noble et al. v. Commissioners, 5 Ohio St., 524; Peck v. Weddell, 17 Ohio St., 271; Powers v. Reed et al., 19 Ohio St., 189.
    The subject of compensation of public officers, whether by fees or salaries: William Cricket et al. v. State of Ohio, 18 Ohio St., 9, and State ex rel. Atty. Gen. v. The Judges, etc., 21 Ohio St., 1, and Pearson et al. v. Stephens, 56 Ohio St., 126; the appointment of persons to select jurors for Cuyahoga county: McGill v. State, 34 Ohio St., 228, and State v. Kendle, 52 Ohio St., 346); tfre employment of tax inquisitors in Hamilton county: State ex rel. v. Cappeller, 39 Ohio St., 207; tfre erection of specifically described territory into a school district: State ex rel. v. Shearer et al., 46 Ohio St., 275; each, has been held by this court to be a subject of a local nature.
    Tfre definition of “law of a general nature” has been so frequently and so prominently before this court, recently, that it seems needless to traverse that field in detail in this case. Pearson et al. v. Stephens, 56 Ohio St., 129.
    We submit, that tfre law under consideration is local in its nature, and, therefore, is not in violation of article 2,'section 26, of tfre constitution of tfre state of Ofrio.
    We also, contend that tfre act under consideration is not in violation of section 1 and 2 of article 10, of tfre constitution of Ofrio, which requires all county officers to be elected. If that be true, it was not necessary that they be elected, but they might, constitutionally, be appointed. State v. Kendle, 52 Ohio St., 346; State ex rel. v. Brennan, 49 Ohio St., 38; Walker v. City of Cincinnati, 21 Ohio St., 51.
    Tfre act under consideration is not in violation of article XIII, section 1, of tfre constitution, which provides that tfre general assembly shall pass no special act conferring corporate powers.
    This court has held in State ex rel. Atty. Gen. v. City of Cincinnati, 20 Ohio St., 37; State v. Powers, 38 Ohio St., 61; State v. Pugh, 43 Ohio St., 134, that section 1, of article 13, of the Ofrio constitution has no application, whatever, to counties.

      It is indeed, a novel proposition that a special statute is invalid because it contravenes the provisions of a general statute upon the same subject. The true doctrine is, that, in such case the former statute is repealed to the extent that the special statute is m conflict with the provisions of the general statute.
    There is, therefore, as it seems to us, no force, whatever, in this objection to the present statute. State ex rel. v. Ellet et al., 47 Ohio St., 90; State ex rel. v. Davis et al., 55 Ohio St., 15.
   Shauck, J.

By its express terms the act in question operates only in Cuyahoga county. It attempts to authorize the issuance of ‘ ‘county building bonds”in a sum not exceeding $1,500,000, payable in fifty years and redeemable in thirty years, the funds derived from the sale of such bonds to be expended in acquiring a site and in the erection, equipment and furnishing of “new county buildings for such county.” It also assumes to authorize the levy of taxes upon the property of the county in addition to all other taxes authorized by law, and the creation of a sinking fund for the redemption of said bonds. The seventh and eighth sections of the act are as follows:

“Section 7. The judges of the common pleas court of such county shall appoint three citizens, residents of such county, all of whom shall not belong to the same political party, who shall act with the commissioners of such county, and with them compose a county buildings commission for- the selection and purchase of a site, the approving of plans and specifications for such county buildings, for the sale of the bonds provided for in this act, and for the letting of any and all contracts for the whole or any part of the work or material used in constructing, equipping -and furnishing of such county buildings, and shall be notified of and shall sit, act and vote at all meetings of such commissioners when any matter is to be considered or acted upon by such commissioners in any way connected with the sale of bonds, for the location or purchase of a site and the erection, equipment and furnishing of such county buildings, and may enter into all discussions relating to any part of the same, and shall have free access at all times to all books, papers, contracts, or memorandums pertaining thereto as freely and fully as such commissioners. No act of such commission involving the expenditure of money shall be valid unless it shall be approved by at least four of its members upon a call of the “yeas” and “nays,” duly entered on its journal.
“Section 8. Such three citizens shall also examine the work upon such county buildings from time to time as it progresses, and with sufficient frequency to be fully advised as to the class of work being done thereon, and shall call attention to each of such county commissioners, and of the superintendents, and of the architects of such building, and of the county solicitor of such county, to any defect in material or workmanship which they, or either of them, may observe, and to any act which they, or either of them, deem wrong or unjust to such county, and they shall each receive as compensation for such labor and service the sum of one hundred dollars per month, to be paid from such county building fund upon the warrant of the auditor of such county drawn upon the treasurer of such county, and such compensation to continue until such buildings are completed, «quipped, furnished and accepted by such county buildings commission, it being the intention hereof that in all matters pertaining to the location, and purchase of a site to the approval of the original plans and specifications for such county buildings, and any change or alteration therein, and in any and all matters affecting or connected with the sale of bonds, acceptance of bids, approving of plans, estimates and contracts, or otherwise, except the signing of any bonds issued, such three citizens shall have the same authority as any one of such county commissioners.”

The succeeding sections of the act provide for the qualification of the three citizens to be appointed by the judges of the court of common pleas by giving • bond and taking an oath for the ■faithful performance of their duties; for the employment of a superintendent and architect and •defining their duties, and for the keeping of a ■record of the proceedings of the buildings commission. The validity of the act is challenged upon the two grounds that it is in conflict with section 16 of article 2 of the constitution that: ■“All laws of a general nature shall have a uniform •operation throughout the state;” and with section 1 of the 10th article that: ‘‘The general assembly shall provide by law for the election of such county, and township officers as may be necessary.”

. With respect to both objections it is to be observed that this act differs from all those to which our attention has been called. We have become familiar with acts authorizing named counties to erect buildings for the particular purpose described in the acts themselves, and with statutory provisions to authorize the appointment of others to act with the county commissioners of the county named in the erection of court houses so authorized. Those acts have received acquiescence, if not approval, because of the assumption that the-legislature had exercised its discretion, in determining that the county named had need of a building for the purpose designated in the act. But in. the act now considered there does not purport to have been such exercise of legislative discretion-It defines no purpose to which the money arising from the sale of bonds shall be devoted except to the erection and furnishing of “new county buildings for such county. ” In other words, it assumes to establish in Cuyahoga county a system for the erection of county buildings not in operation elsewhere in the state. In this respect among others the act differs substantially from that considered by the circuit court in the Comm’rs v. Pargillis, 10 C. C. Rep., 376; s. c. 6 Circ. Dec., 717; and the-, affirmance of that judgment by this court is not significant with respect to any question now before us..

It is apparent from the terms of the 26th section of the 2d article of the constitution, as well as from numerous decisions of this court, that the nature of a subject of legislation, whether general or local, cannot be determined by the operation of an act concerning it. To say that the subject is local because the legislation with respect to it is. of local operation only would be to annul the section. If it is not true that all subjects are general which may be completely comprehended within legislation which operates uniformly throughout-the state, it would be difficult indeed, and hitherto-it seems to have been impossible, to state any other rule which would be consistent with the language employed by those who framed these and kindred limitations upon the exercise of legislativo power, and with the purposes for which those limitations were fixed. The language employed does not suggest, if indeed it permits, a narrower rule. In Lehman v. McBride, 15 Ohio St., 573, the purpose of this limitation was stated with admirable accuracy and clearness by Scott, J.: “Under the former constitution, laws having a general subj'eet matter, and therefore of a general nature, were frequently limited expressly in their operation to one or more counties, to the exclusion of other portions of the state. As a consequence on the same subject, there might be one law for Hamilton county, another for Franklin, and still a third for Ashtabula. This naturally led to improvident legislation, enacted by the votes of legislators who were indifferent in the premises, because their own immediate constituents were not to be affected by it. To arrest, and for the future prevent this evil, the provision in question was inserted in the present constitution.”

This statement of the pur pose, of the limitation has been quoted frequently, and always with approval. The counties of the state are not provided with legislative bodies as would have been the case if laws with respect to general existing conditions were to be enacted upon the judgment of the representatives of a single county.' The votes of a majority of the representation of the entire state being required to enact a statute, these limitations are prescribed to the end that approving votes may be founded upon approving judgments. The act under consideration, operating in a single county, provides for the erection of county buildings which are required in every county of the state. Every agency which it invokes to carry out the scheme in Cuyahoga county is found in every other county. It denies to the taxpayers of the county the opportunity to vote respecting an expenditure of one and one-half •millions of dollars while in other counties that right is accorded to the taxpayers by section 2825, of the Revised Statutes, with respect to all expenditures for such purposes in excess of ten thousand dollars. It provides a local and peculiar scheme with respect to a subject existing everywhere and without a distinguishing condition which counsel have been able to suggest. It cannot be reconciled with this plain provision of the constitution, nor with the views expressed in State ex rel. v. Ellet, 47 Ohio St., 90; State ex rel. v. Commissioners, 54 Ohio St., 333; Hixson v. Burson, 54 Ohio St., 470; State ex rel. v. Davis, 55 Ohio St., 15; State ex rel. v. Bargus et al., 53 Ohio St., 94.

To the suggestion that excellent results are anticipated from the high character of the commission appointed by the judges of the common pleas court to aid in carrying out the provisions of this act, it is a sufficient answer that since like conditions exist in the other counties of the state the constitution requires that the beneficence of the act shall be extended to all the people of the state.

Demurrer sustained and judgment of ouster.

Minshall, J., dissents.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    In the Matter of the Assignment of William M. Sloan.
    “Operative” not a traveling agent to obtain subscription, etc. — Section 6S5S Revised Statutes — Insolvent debtors and preferred claims.

    One who is employed by the publisher of a “Legal Directory, ’ ’ as traveling agent in obtaining subscriptions and in selling the “Directory” to attorneys and others and collecting accounts, is not an “operative” within the meaning of section 6355, Revised Statutes.
    (Decided June 13, 1899.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error is one S. A. ■ Greenlee, a creditor of the assignor. His claim was made in the form- of an application to the probate court for an order requiring the assignee to aLlow and pay him the sum of $300 out of the assets of the assignment, for services and labor as an “operative” within twelve months of the assignment, in preference to certain chattel mortgages given within two months prior to the assignment by the assignor. The cause was tried on appeal in the common pleas where the facts found are in substance as follows:
    The business of the assignor, before this assignment, consisted of publishing and selling “Sloan’s Legal Directory,” to attorneys and others, both in the United States of America and Canada. Green-lee was employed by Sloan as traveling agent, to work for him in obtaining subscriptions to said “Directory,” and in selling the same to attorneys and others in territory aforesaid, and also collecting accounts due Sloan in said territory; that to do this he traveled from place to place; that said work required him to visit different places, go from office to office, and interview prospective subscribers, and present, as best he could, the merits of said “Directory.” His claim is for balance due for salary and expenses incurred, and amounts to the sum of $652.05, with interest from October 2, 1893. There is more than $300 due for the year immediately preceding the assignment. The salary of Greenlee was to be $100 per month, and all traveling expenses in addition thereto, which expenses were to be paid by Sloan.
    The .claim of Greenlee for services was allowed by the assignee as a general claim, but rejected as a preferred claim.
    There is due $150, and interest on one of the chattel mortgages, given February, 1893, for purchase money, and that and the mortgages given August 8, 1893, are all the liens upon the chattel property of the assignor.
    The assignment was made August 15, 1893.
    Whereupon the court gave judgment in favor of Greenlee, which on error to the circuit court was reversed. The latter court held that Greenlee is not an “operative” within section 6355, Revised Statutes, and not entitled to $300 as preference, and rendered final judgment for the assignee.

      A. M. Warner, for petitioner in error.
    Swing, Gushing & Morse, for trustee.
   By the Court.

The claim of plaintiff in error is based upon section 6355, Revised Statutes, which is: “All taxes of every description assessed against the assignor upon any personal property held by him before his assignment, shall be paid by the assignee or trustee, out of the proceeds of the property assigned in preference to any other claims against the assignor, and every person who shall have performed any labor as an operative in the service of the assignor, shall be entitled to receive out of the trust funds, before the payment of the other creditors, the full amount of the wages due no such person for such labor performed within twelve months preceding the assignment, not exceeding three hundred dollars. But the foregoing provisions shall not prejudice or in any way affect securities given, or liens obtained in good faith, for value, but judgments by confession on warrants of attorney rendered within two months prior to such assignment, or securities given within such time to create a preference among creditors, or to secure a pre-existing debt other than upon real estate for the purchase money thereof, shall be of no force or validity as against such claims for labor to the extent above provided, in case of assignment.”

We agree with the conclusion reached by the circuit court. The applicant is not an “operative” within the meaning of the above section. The judgment of the circuit court will, therefore, be

Affirmed.


text:
    Commissioners et al. v. State ex rel. Jones.

      Compensation allowed by court to attorneys assisting prosecutor— Section 7264 Revised Statutes — County commissioners may reduce such allowance.

    The compensation allowed by the court to the assistant prosecutor under section 7264, Revised Statutes, is by that section made part of the .costs ; and such allowance is not conclusive as against the board of county commissioners, but the same may be reduced by the board before allowance and payment, to such sum as in its judgment is just and reasonable.
    (Decided June 13, 1899.)
    Error to the Circuit Court of Fayette county.
    The second amended petition of Humphrey Jones, the relator, in the court of common pleas is as follows:
    “At the January Term,.1895, of the common pleas court of Fayette county, Ohio, three separate indictments for manslaughter were found and returned by the grand jury of said county, against one Alonzo B. Coit, who soon thereafter was arrested under said indictments and arraigned on said charges, and plead “not guilty” thereto, and put himself upon the country as did also the prosecuting attorney.
    Said cases were numbered 947, 948 arid 949, on the Criminal Docket of said county.
    On the — day of February, 1895, the said Alonzo B. Coit made an application to said court for a change of venue in said three cases to some adjoining county, alleging as grounds therefor, his inability to obtain a fair and impartial trial of said cases in the county of Fayette.
    On the second day of March, 1895, said court of common pleas of the county of Fayette, after full hearing upon said application for a change of venue, did find that a fair and impartial trial of said cases could not be had in said Fayette county, and did order and direct that the venue in said cases be and the same was thereby changed to the adjoining county of Pickaway.
    And the court did further order and direct that the said Alonzo B. Coit, the defendant in said pases be tried in said county of Pickaway, and did fix the amount of the recognizance the defendant should give for his appearance on the first day of- the next term of the said court of common pleas of Pickaway county, Ohio, at the sum of $2,500 to be given by the twelfth day of March, 1895, which was accordingly done, and said Coit was regularly recognized for his said appearance before said common pleas court of Pickaway county, at the next term thereof, to-wit, at the term beginning on the seventh day of April, 1895, and did so appear and attend upon said court in said Pickaway county.
    At the January term of the court of common pleas of Pickaway county, Ohio, to-wit: On the —■ day of----, 1895, and after the venue in said cases had been changed to said county, the said court of common pleas of said Pickaway county, Ohio, on the application of the prosecuting attorney of Fayette county, Ohio, and it appearing that the public interest required the same, did appoint this relator to assist the said prosecuting attorney in the trial of said cases in said Pickaway county on the said change of venue, and thereupon this relator accepted said appointment and entered upon the discharge of his duties thereunder.
    Said cases were of great public importance and interest, the legal questions involved therein were new and difficult and this relator, during the six months following said change of venue, spent a large amount of time, labor and expense in the investigation and examination of the same.
    Said cases were assigned for trial in said com- ■ mon pleas court of Pickaway county, Ohio, on the tenth day of October, 1895, and the trial of one of the same was then entered upon, and this relator, under the said appointment aforesaid, participated in and assisted said prosecuting attorney of the county of Fayette, in the trial of said case to a final determination, said trial occupying a period of four months time.
    The services rendered and expenses incurred by the relator in assisting the said prosecuting attorney of the county of Fayette, in the said prosecution and trial of said cases in said county of Pickaway, were and are reasonably worth the sum and amount of three thousand dollars ($3,000) and said court of common pleas, of said county of Pickaway, on the sixth day of November, 1896, said court being then held by the same judge before whom said case was tried, did allow and fix the compensation of the relator on account of services performed by him in the trial of said cases in said Pickaway county, at the sum of ($3,000) including expenses incurred by the relator.
    ■ On the ninth day of December, 1896, the relator presented to the defendants, the Board of Commissioners of Fayette county, Ohio, and to said E. B. Jaynes, N. B. Hall and E. E. Cocke rill, acting as such commissioners, at a regular session of said board, a duly certified copy of the order of said common pleas court of Pickaway county, fixing and allowing this relator said sum of three thousand dollars ($3,000,) as and for his compensa tion for services performed in assisting the prosecuting attorney of Fayette county, Ohio, in the trial of said cases in said Pickaway county, and requested the allowance and payment to the relator of the said compensation so fixed and allowed by the said common pleas court, and also presented to said T. J. Lindsey, as auditor, he being the duly elected and qualified auditor of said county, a duly certified copy of the order of said common pleas court of Pickaway county, so fixing and allowing said compensation to the relator, and demanded that said Lindsey as such auditor, draw a warrant on the county treasurer. in favor of the relator in payment of said compensation, but the said auditor conspiring with said commissioners to deprive the relator of said compensation, refused to draw a warrant in favor of the relator for the amount thereof.
    The said defendants, E. L. Jaynes, N. B. Hall and E. E. Coekerill, then and there in violation of their duties as such commissioners, and the said T. J. Lindsey, as such auditor, in violation of his duties and without any legal excuse, and ever since have refused to draw a warrant for said amount in favor of relatpr, or to allow and pay to this relator the said compensation, although requested by this relator so to do.
    Wherefore the relator prays that a writ of mandamus issue commanding said board of' commissioners of said Fayette county, to allow and pay to the relator the said compensation so fixed and allowed by the said common pleas court of Pickaway county, and commanding said auditor to draw his paper warrant for the same in favor of the relator, and for all proper relief.”
    To this second amended petition the commissioners and auditor, defendants below, demurred, on the ground that the said petition does not state facts sufficient to constitute a cause of action against said defendants.
    The court of common pleas sustained the demurrer, and the relator not desiring to amend further, a final judgment was rendered against him.
    The circuit court reversed the judgment of the ■ court of common pleas and remanded the cause to that court for further proceedings according to law.
    Thereupon the commissioners and auditor filed a petition in error in this court seeking to reverse the judgment of the circuit court, and for an affirmance of the judgment of the court of common pleas.

      Post <& Reid, for plaintiffs in error.
    Literally speaking under the provisions of section 7264 two tribunals are provided for fixing the compensation of the attorneys appointed to assist the prosecutor — the trial court and the' county commissioners, but such was not the intention of the legislature. It intended to follow the general statute, 7196, and the true construction to be placed upon section 7264 is that the commissioners shall allow and pay Such compensation as the court approves so that it will be in harmony with section 7196, and the legislation upon the subject, be uniform.
    The court is to allow and the commissioners are to allow and pay such compensation.
    The writ may be issued to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station.
    It may require an inferior tribunal to exercise its judgment, or proceed to discharge its judicial functions; but it cannot control judicial discretion. Code section. 569; 26 Ohio St., 369; Shepherd v. Commissioners, 8 Ohio St., 354.
    We contend that the board of county commissioners have a right-of discretion as to the amount it could order paid to the relator.
    The board of county commissioners will not be , compelled by madamus to allow and pay any specific sum. Ohio ex rel. v. Com., 40 Ohio St., 331.
    The statutes 7264, says the compensation of the attorney appointed to assist the prosecuting attorney, shall be allowed and paid by the commissioners of the county in which such indictment was found. It does not differ materially from section 7196. Allow, means to approve of, to sanction, to permit, to consent, to. Anderson’s Dictionary of Law, page 51.
    In every statute where the court appoints an attorney to assist the prosecuting attorney, or to defend an indigent prisoner, the compensation is made payable on the allowance of the county commissioners. The policy of our legislature has been to vest in the commissioners a discretion as to these claims. Formerly the practice was for the court to allow, and the auditor to pay them. Trustees v. White, 48 Ohio St., 586. Gerke v. Com., 26 Ohio St., 364; Handy v. Com., 1 Disney, 263.
    Under their statutes the Supreme Court of Indiana has held that the order of the court in auditing and allowing the costs and. expenses enumerated upon a change of venue is not final and conclusive as against the county from which the change of venue is taken. Truant, Auditor, v. State ex rel. Com., 140 Ind., 414; 39 N. R. Rep., 513.
    The Supreme Court held that the court was not the final tribunal, and that the commissioners were vested with a discretion in the premises.

      In the earlier ease of the State ex rel. v. Miller, 107 Ind., 39 (7 N. E. Rep., 758), the Supreme Court held the contrary doctrine, but reversed their former decision in the 140th, and followed the Truant case in the later case of Montgomery County v. Tippecanoe County, 142 Ind., 679; 37 N. W. Rep., 626, and 14 N. W. Rep., 549; Union County v. Hyde, 37 Pacific Rep., 76.

      Humphrey Jones and Ilidy & Sanderson, for defendant in error.
    The sole question presented is, whether the amount which the court of common pleas fixes as compensation to an assistant to the prosecutor on a change of venue, is final and conclusive, or whether the commissioners of the county from which the case is sent, have the right to determine the amount of such compensation.
    There has never been a time since 1852, at which time the statute first authorized the appointment of an assistant prosecutor for special cases, when the commissioners did not have the final and ultimate control of the amount to be paid to the assistant in such cases. During the whole period the commissioners have allowed the compensation, and the court simply approved it.
    This court has a number of times taken the view that the commissioners were the sole judges in such cases. Commissioners v. Osborne, 46 Ohio St., 271; State v. Wallace, 24 Ohio St., 597; Ohio v. Commissioners, 20 Ohio St., 423; Trustees v. White, 48 Ohio St., 586.
    The act of May 1, 1871, is entirely unambiguous; there is no doubt under its terms that the court is the sole and exclusive judge of the amount to be paid to the assistant to the prosecuting attorney-on a change of venue, and the law stood as then enacted until the codification of 1880, and speculation as to the purposes and intention of the legislature cannot in the face of plain provisions of statute, be indulged in. Brower v. Hunt, 18 Ohio St., 341; Bruner v. Briggs, 39 Ohio St., 484, and State v. Beck, 25 Ohio St., 28.
    Nor can the court permit any idea it may hold of public policy to influence in the construction of statutes. Smith Bridge Company v. Bowman, 41 Ohio St., 52 ; Hurd v. Robinson, 11 Ohio St., 237.
    . Conjecture as to the legislative intent cannot be permitted to vary the plain and explicit language employed in a statute. Two acts similar in character, but different in material points, must be construed separately. Olds v. Commissioners, 20 Ohio St., 423.
    If we are correct in the position that under the act of May 1, 1871, the commissioners had the right to fix the compensation to an assistant to the prosecutor on a change of venue, it then becomes important to see what, if any, changes were made in this act by the codification of 1880 when it was carried into section 7264.
    It is well settled in Ohio that when statutes are revised, they are intended to have the same meaning, force and effect, and are to receive the same construction as the original acts, unless a contrary intention be clearly manifested. Williams v. The State, 35 Ohio St., 175 and cases there cited; State v. Jackson, 36 Ohio St., 286; State v. Commissioners, 36 Ohio St., 326; Warren v. Davis, 43 Ohio St., 449; Ebersole v. Schiller, 50 Ohio St., 702.

      We contend that the meaning of the act of May 1,1871, was not at all changed when it was carried' into section 7264 of the codification.
   By the Court.

Section 7264, Revised Statutes, at the time of the Coit trial read as follows: “When the venue is changed, the clerk of the county in which the indictment was found shall make a certified transcript of all the proceedings in the case, which together with the original indictment, he shall transmit to the clerk of the court of the county to which the case is sent, and the trial shall be conducted in all respects as if the indictment had been found in that county. The prosecuting attorney of the county in which the indictment was found shall take charge of and try the. case; and the court, on application, may appoint one or more attorneys to assist him in the trial, and allow such compensation as it deems reasonable; and the costs accruing from a change of venue, including the compensation of the attorneys appointed to assist the prosecuting attorney, and the reasonable expenses of the prosecuting attorney incurred in consequence of such change of venue, shall be allowed and paid by the commissioners of the county in which such indictment was found.”

The relator claims that under this section three items of expense on account of change of venue must be borne by the county in which the indictment was found: (1) The costs of the case, (2) the compensation of the assistant prosecutor, and (3) the reasonable expenses of the prosecuting attorney. That the first and third of these items must be submitted to the board of county commissioners and allowed before payment. So far he is right. But he contends further that the second item is not required to be allowed by the commissioners, but must be paid by them upon the allowance made by the court.

This last contention is not tenable. The statute treats the compensation of the assistant prosecutor as costs, and the allowance is made to him by the court so as to fix the amount of his compensation at a definite sum so that it may be carried into the cost bill, and then all costs, including his com pensation, are certified to the county where the indictment was found; and then the whole matter of costs, including his compensation and the expenses of the prosecuting attorney, must be submitted to the board of county commissioners for consideration and correction, and when the board is satisfied that the amounts are reasonable and just, it is its duty to allow and pay the same. If the commissioners think any of the items too large they have the right and power to reduce the same before allowance and payment.

The allowance made by the court is not binding or conclusive as to the commissioners, but is only for their information as to the court’s opinion as to the value of the services rendered, and to so fix the amount as to enable the clerk to make out and certify the costs. The court allows the compensation, the statute makes the compensation a part of the costs, and the commissioners then allow and pay the costs, and also expenses of the prosecuting attorney.

The circuit court erred in reversing the judgment of the common pleas, and the judgment of the circuit court will be reversed, and that of the common pleas affirmed. Judgment revended.

Williams, J., did not sit in this case.


text:
    Gee v. State. State v. Slavens.

      Trial for failure to support illegitimate child — Record of bastardy proceedings not admissible evidence.

    On the trial of the issues joined, by a plea of not guilty to an information' or an indictment charging the defendant with willfully and negligently failing to support his illegitimate child the record of a bastardy proceedings instituted by the mother of the child in- which the defendant was adjudged to be its reputed father is not admissible in evidence.
    (Decided June 13, 1899.)
    Error to the Circuit Court of Cuyahoga county.
    Exceptions to decision of Common Pleas Court of Scioto county.
    In the former case Gee was convicted in the police court of the city of Cleveland upon an information which charged him with unlawfully, negligently and willfully depriving his illegitimate child of necessary food, clothing and shelter. Upon the trial of the issues joined by the plea of not guilty the record of a civil proceeding under the bastardy act was, against the objection of defendant, admitted to establish his paternity of the child which was alleged to have been neglected by him. The sentence of the police court was affirmed by the court of common pleas and the circuit court, and this petition in error is for the reversal of .the judgments of the three courts for the admission of said evidence. “ .

      T. J. Boss, for plaintiff in error.

      ^Albert T. Holmes, for defendant in error.
    In the second case Slavens was placed on trial in the common pleas court of Scioto county upon an indictment charging him with neglecting and refusing to support his illegitimate child. Upon the trial the prosecuting attorney offered in evidence the record in a proceeding under the bastardy act instituted upon the complaint of the mother, in which Slavens was adjudged to be the reputed father of the child. This record was excluded by the court on objection by the defendant's counsel, and the prosecuting attorney excepted. The cause is before us upon that exception.

      Henry Bannon, for the exception.

      Noah J. Dever, contra.

   By the Court.

The record offered is not competent under the general rule that in a criminal proceeding the record of a civil action cannot be introduced to establish the facts on which it was rendered. The judgments offered followed verdicts which might have been lawfully returned upon a mere preponderance of evidence. A "higher degree of evidence was required to convict under the indictment and the information. Greenleaf on Evidence, section 437; Britton v. The State, 77 Ala., 202; Riker v. Hooper, 35 Vt., 457.

In the former* case the judgments of the courts below are reversed. In the latter the exception is overruled.


author: Spear, J.

text:
    Snyder, Admx., v. The C., C., C. & St. L. Ry. Company.

      Action against railroad company — For causing death of employe— Showing of petition — Law of neghgence and contributory negligence — Agency.
    A petition in an action to recover against a railroad company for the killing of one in its employ as station agent, which shows that, with the knowledge and direction of the company, the decedent was engaged in the work of loading and unloading cars on a side track next to the main track (which duties required him to be upon the main track), and while the decedent was upon and passing along the main track, engaged in said duties, and exercising due care on his part, the defendant company caused its train of cars to move, without noise, without signal or warning of any kind, or other precaution for the safety of the decedent, along the main track, to the place where the decedent was walking, and run upon decedent causing his death; and which further avers, that the duty of notice or warning devolved upon the company; that it was its duty to require the employes on the freight train to keep a lookout for the decedent and give warning of the approach of the train; that the employes in charge of the train could have known by the use of ordinary care that decedent was upon the track and in danger of being run onto by the train in ample time to have stopped the train and avoided the injury, but the engineer on moving- the train, and the fireman under his direction, failed to use ordinary care to protect decedent, but with knowledge that he was upon and crossing the main track, moved the train without signal or warning, and carelessly and negligently ran the train upon the decedent causing his death, sufficiently shows negligence on the part of the company and care on the part of the decedent to be good as against a general demurrer.
    (Decided June 20, 1899.)
    Error to the Circuit Court of Darke county.
    The action was against The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, to recover for the unlawful killing of Henry C. Snyder, of whose estate plaintiff in error is administratrix. In the petition it was averred, among other things, that:

      The defendant, at and near the town of Pitts-burg, Darke county, Ohio, maintained upon the north side of the main track of its railway a small depot or station building, and a station platform for the deposit and storage of articles of freight handled by defendant, and on the south side, along and near the main track, maintained a number of side tracks or switches, which were used from time to time by said railway company for the purpose of storing freight cars, switching trains and cars, loading and unloading freight from such cars, and transferring the same to said station building- and platform, and for other purposes connected with the management of said railway.
    On or about May 24, 1897, Henry C. Snyder, then in full life, was, and had been for some time previous, in the employ of said defendant as station agent at said station of Pittsburg, and among other things, under the orders and directions of said defendant, and with its knowledge, acquiescence and approval, the said Snyder was accustomed to assist in the loading and unloading of freight to and from the cars on said side tracks, and in transferring the same to and from the station platform on the north side of said main track, and to assist in locking and unlocking the freig’ht cars upon said side tracks and the main track, and in assisting in giving information as required by the men in charge of the trains upon said track as to the placing of freight cars from which freight was to be unloaded, or into which freight was to be placed, and under the orders and directions of said defendant, and with its knowledge, acquiescence and approval as aforesaid, and in the line of his employment as aforesaid, was constantly moving about and over said yards, tracks and switches.

      On said May 24, 1897, defendant had caused to be placed upon one of the side tracks at and near said station, a freight train, with an engine attached thereto, and containing a number of cars from which it was necessary to load and unload freight add which said cars were to be locked and unlocked by decedent in connection with his duties aforesaid, and which freight train was standing opposite to said depot platform, and the engine on which was attached to the western end of said freight train, and about fifty or seventy-five feet west of a point directly opposite said station building aforesaid, and which said engine was steamed up, and from which issued smoke and escaping steam, and also a certain amount of noise. At the same time, defendant had caused to be placed upon its tracks, about three or four hundred feet west of said station building, a freight train with locomotive, headed to the eastward, and standing still; that thereafter, and while the decedent and the other employes of defendant were engaged in unloading freight from the train standing upon said side track opposite said station platform, and in locking and unlocking the cars thereof as they were required and accustomed to do, and while decedent was upon and passing along the main track engaged in his duties aforesaid, and exercising due care on his part, the defendant carelessly and negligently caused its said train of cars standing upon said main track to the westward of said-station building, to move eastwardly, without noise, without signals or warning of any kind, or other precaution for the safety of its employes on said tracks, along- said main track to the place where decedent was walking, and to strike, knock down and run over the said decedent, cutting off both his limbs, from which injuries the said Snyder, after languishing for a few hours, died.
    That said defendant company knew at the time of said accident, and for some time previous, that the decedent and other of its employes were constantly on and over the said main track and switches, and that it was then and there the duty of said defendant company, before moving- said train of cars along and over said main track, past said station platform, to give signals and warnings to its employes of the approach of such train. And the defendant was further required to have the employes on said train to keep a lookout while passing on and over said tracks in front of said station platform, for the safety of the employes of said defendant, and that the employes of defendant in charge of said train could have known, by the use of ordinary care, that decedent was upon said track and in danger of being run onto by said train of cars, in ample time to have stopped said train and avoided said injury; but the engineer on moving said train, and the fireman, who was under his direction and control, failed to use ordinary care to protect said décedent, and failed and neglected to keep any lookout for decedent or the other employes of said company, but with knowledge that decedent was upon and crossing said tracks, moved the said train eastwardly as aforesaid through said yards, without signals and warnings as aforesaid, and without keeping lookout as aforesaid, and carelessly, negligently, recklessly and regardless of the said decedent and other employes using said tracks, ran and managed the said train as aforesaid upon and over said decedent.

      To this petition a general demurrer was interposed, which was sustained by the common pleas and judgment rendered for defendant in error.
    This judgment was affirmed by the circuit court.

      Allread & Teegawden, for plaintiff in error.
    We contend that where the railway company knows of its employes being upoD and over its tracks, as in this case at this station the railway company ought to use reasonable precautions in starting up and moving its trains, so as to give them warning. It is not unreasonable — at least, it is not for the court to say that it is unreasonable — to require the railway company to give these warnings, and to keep a lookout while passing over the tracks where its workmen are, in order to protect them, and we think that it is not negligence, as a matter of law, for the decedent, under all circumstances, while engaged in the duties of the company under its orders and directions, to assume that a train standing upon a track, and about to pass over the yards where' it is known that the employes are liable to be, will so start without signals or warnings, and without keeping any lookout for the safety of the employes.
    But whatever the rule might be, we think that the averment, “But the engineer on said moving train, and the fireman, who is under his direction and control, failed to use ordinary care to protect said decedent, and failed and neglected to keep any lookout for decedent or the other employes of said company, but with knowledge that the decedent was upon and across said tracks, moved the said train eastwardly as aforesaid through said yards without signals and warnings as aforesaid,’’ brings the case within the rule familiar to to the court,- and announced in the case of Railway Company v. Kassen, 49 Ohio St., 230. It shows that at the time, and during the approach of this train, the agents in control of the train had actual knowledge of the decedent being upon the tracks, and made no effort whatever to protect him from danger.

      L. F. Limbert, for defendant in error.
    The first claim made in the brief of plaintiff in error is, that the company- was negligent in running its train on the main track without giving any notice or warning of any kind to Snyder, while it knew that Snyder was crossing the main track to and fro, from the cars on the side track to the depot.
    The men operating the train that hit Snyder were under no obligation to give any signal, warning or notice of the moving of their train. The expectation that signals would be given by the trainmen on this train did not relieve Snyder from constant watchfulness. Railroad Co. v. Depew, 40 Ohio St., 121.
    It must be conceded that Snyder and the company, for a long time prior to the death of Snyder, occupied the position of master and servant.
    The manner of loading and unloading freight across the main track from the cars on the side track to the platform north of the main track he was familiar with. The conditions of the track and the surroundings in and about that station and all the dangers connected therewith Snyder was familiar with. He was familiar with the custom of unloading freight, etc., and acquiesced in it
    Therefore, having remained in the employment of the company without protest or complaint, with full knowledge of all the surroundings and the dangers connected with his agency and work at the station, as the petition shows, he assumed all risks. Railroad Co. v. Knittal, 33 Ohio St., 470.
    Snyder was under as great obligations to provide for his own safety from such dangers as were known to him, or were discernible by ordinary care on his part, as the company was to provide for his safety. Wonnell v. Railroad Co., 79 Maine, 405; Railroad Co. v. Bonner, 5 Ohio St., 541.
    It is the duty of a person approaching a crossing, or standing upon a railroad track where cars are being run, to look for approaching cars, and if he fails to do so, he is presumptively guilty of negligence that will prevent recovery, and this presumption of negligence can only be rebutted by facts or circumstances showing that it was not reasonably practicable to keep such lookout. Railroad Co. v. Snyder, 24 Ohio St., 670; Railroad Co. v. Elliott, 28 Ohio St., 341; Railroad Co. v. Rothgeb, 32 Ohio St., 66.
    If the petition showed that Snyder, before going •on the track, had looked and seen no train on the main track, and that his duties required him to walk on the track and with his back to the train, that run him down, busily engaged stooping down at his work, or things of that character, then there .might be some circumstance that would bring the •case within the province of a jury. Compare the .facts and circumstances stated in this petition with the facts and circumstances shown in the •case of Railroad Co. v. Margrat, 51 Ohio St., 139, .and then can this court say, under the rule in that case, that, as a matter of law, Snyder was not guilty of negligence in failing to keep a lookout for .his own safety ?

      Even conceding that the company was guilty of negligence, there can be no question but what Snyder was guilty of negligence, in not looking out for himself and avoiding the danger, which he could have done, had he kept a constant watch on this train, that he knew would start, at almost any time.
   Spear, J.

In support of the demurrer it is contended that the crew operating the train which ran upon Snyder, was under no obligation to give any signal, warning or notice of the moving of the train; the expectation that signals would be given did not relieve Snyder from the duty of constant watchfulness. He was station agent, not in any way under the control of the train men; was familiar with the tracks and manner and custom of loading and unloading freight across the main track from the cars on the side track, and with all the dangers connected with that particular employment, and the manner of it, and acquiesced in it. Having thus remained in the employment of the company without protest or complaint, with full knowledge of the manner of conducting that work, and the dangers connected with it, as the petition shows, he assumed all risks. He was under as great obligation to provide for his own safety from the dangers incident to the work, or were discernible by ordinary care on his part, as the company was to provide for his safety; he could not go blindly to his work where there was danger, and having thus brought injury on himself, impose responsibility for the consequences upon the company.

It may be conceded that if the company owed Snyder no dúty as to care for his safety, there can be no liability. The assumption that it did not owe any duty, however, begs the whole question. We conceive that the proper answer does not depend upon whether or not .the train men had authority or control over Snyder. Manifestly they did not have. The question is did the company upon any ground, or for any reason, owe to Snyder the duty of caring for him under the circumstances? It may be that, under the rule of the common law, the men having charge of the train and Snyder were fellow-servants, but the act of April 2, 1890 (87 O. L., 149), excludes from that category certain of those who are in a separate branch of the same service. Among the train men in charge of the freight train, it is averred there was an engineer who was the superior of others engaged in the management of the train, and there is nothing in this petition which shows, either by statement or inference, that the station agent stood in such relation to the company as to class him as a fellow-servant with the engineer or trainmen. It appears that he was in a separate branch of the service, and it does not appear that he had authority to direct or control any co-employe whatever. So that, if the allegations of the petition are sufficient to charge a duty of caring for Snyder which was not performed, the company will not be exonerated on the ground that the neglect of that duty was the act of a fellow-servant. But if there can be doubt as to this conclusion, it is to be observed that the negligence charged is not confined to the omissions of the train men. It is averred (not, perhaps, in the most distinct language, but explicitly enough, we think, to resist a general demurrer), that the duty of care rested upon the company itself.

We are of opinion that testing the question by the allegations of this petition, it cannot, be said that the company did not owe Snyder the duty of giving warning of the approach of the freight train. The deceased, with knowledge of the company and by its orders, was engaged in a duty which required him to be upon the main track, and thus in a place of danger. Strict attention to the work in which he was thus engaged might have been inconsistent with constant watchfulness as to approaching trains. It is not impossible that this may have been the ease, and it does not appear from the petition that it was not. If it were then, under the holding of this court in Railway Co. v. Lavalley, 36 Ohio St., 221, and in Railway Co. v. Murphy, 50 Ohio St., 135 (where it is held that it is the duty of a railroad company to make such provision for the safety of its employes as will afford a reasonable protection against the dangers incident to their work), the company should have taken reasonable care for Snyder’s safety, and a failure to perform the duty was negligence on the part of the company. And if the duty rested upon the company to give warning to Snyder of the approach of the train, then Snyder was not necessarily negligent because of his reliance upon the train men to give such warning. But the petition goes further. It avers that the employes of defendant in charge of the train could have known, by the. use of ordinary care, that decedent was upon the track and in danger of being run onto by the train, in ample time to have stopped the train and avoided the injury; but the engineer on moving the train, and the fireman who was under his direction and control, failed to use ordinary care to protect decedent, and failed and neglected to keep any lookout for the decedent or the other employes of said company, but with knowledge that decedent was upon and crossing the tracks, moved the train eastwardly through the yard, without signal or warning, and without keeping a lookout, and negligently ran the train upon and over decedent. This would seem to bring the case within the principle of Railroad Co. v. Kassen, 49 Ohio St., 230, where the holding is that the rule that the negligence of the injured party, which proximately contributes to the injury precludes him from recovering, has no application where the more proximate cause is the omission of the other party, after becoming aware of the danger to which the former is exposed, -to use a proper degree of care to avoid injuring him.

A number of cases decided by this court are cited by counsel for defendant in error as supporting his contention. In Railroad Co. v. Depew, 40 Ohio St., 121, Depew had been transacting business at the station. Upon leaving he stepped and continued to walk on the main track of the road on which he knew there was standing a locomotive with two cars attached. He looked at the train. It was standing still. He walked on and did not again look, expecting that if the train moved he, would hear a signal. None was given. The train backed upon him, but at a speed and in a way not unusual. The trainmen did not know nor have reason to suspect that anyone was or would be upon the track. Depew was not in the performance of any duty to the company when he went upon the track. He voluntarily and needlessly put himself in a place of great danger, a situation requiring constant watchfulness. He failed to give it and was injured, but he could not recover; a case wholly different from the one stated in the petition. In Railway Co. v. Knittal, 33 Ohio St., 468, the plaintiff sought to recover for. injuries received in making a flying switch. He was refused a recovery on the ground that he had knowledge of the manner of making the switch; that it was made in the ordinary way; that he continued in the employment of the company with full knowledge of the dangers of the work, and hence should be held to have assumed the risk. The petition in the case at bar does not show this kind of a case. No custom with respect to moving cars in the yard is stated, and none appears. It seems hardly worth while to further review the decisions cited. Suffice it to say that the company’s contention is not supported by any of them.

We are of the opinion that the petition states a cause of action. The judgment of both courts will be reversed and the cause remanded for further proceedings.

Reversed.


author: Burket, J.

text:
    State ex rel. Attorney-General v. Brown.

      County commissioners■ — -Changing time of commencement of term of office — Invalidity of act of May 19,1894 — Constitutional law.

    The act of May 19, 1894, 91 O. L., 338, changing the commencement of the term of office of county commissioners, was, when passed, invalid by reason of the resulting vacancy from the first Monday in January to the third Monday of September in the years 1895, 1896 and 1897, to be filled by appointment and not by election. Such vacancies were filled by appointment without objection on the part of the state or any citizen, and no action was brought to test the validity of the statute, or to oust from office anyone who was filling such vacancy, until more than a year after all such vacancies had expired; Held, that it was then too late to test the validity of the statute by proceedings in quo warranto, and that the term of office of each county commissioner now in office, must be regarded'and held to have commenced on the third Monday of September next after his election.
    (Decided June 20, 1899.)
    In-Quo Warranto.
    At the November election, 1895, Thomas Dave Brown, defendant, was duly elected county commissioner of Cuyahoga county for the term of three years, and was duly commissioned by the governor and acted as such commissioner for the term of three years from and after the third Monday of September, 1896. On the first Monday of January, 1896, the probate judge, auditor and recorder of said county appointed Mr. Brown to the office of-county commissioner to fill a vacancy from the first Monday, of January to the third Monday of September of that year, and he gave bond and took an oath of office, and was duly commissioned and duly filled the vacancy.
    At the November election for the year 1898, one P. J. McKenney was duly elected commissioner of said county for the term of three years, and he. now claims that his term of office began in law on the first Monday of January, 1899, and that the term of office of Mr. Brown-expired at that time, for the reason that, as he claims, the appointment of Mr. Brown to fill the supposed vacancy was null and void, and that his term of office in fact began under his election and commission on the first Monday of January, 1896.
    At the time of the November election in 1898, Mr. McKenney was holding the office of councilman in the city of Cleveland, and he resigned that office on the thirteenth day of March, 1899.
    On the first Monday of January, 1899, Mr. Mc-Kenney demanded the office of county commissioner from Mr. Brown, and Mr. Brown refused to turn the office over to, him, and claimed that his own term of office did not expire until the third Monda3r in September, 1899.
    Thereupon the attorney-general of the state filed a petition in quo warranto to oust Mr. Brown from his office. The foregoing facts, are in substance the facts conceded in the pleadings in this case.

      Hart, Canfield c& Callaghan and Foran, MoTighe & Baker, for relator.
    Now, it is apparent that as the terms of officers elected under the act of 1886 expire on the first ■ Monday in the January subsequent to the election of their successors,’ while under the act of 1894, these successors cannot assume office until the third Monday in September, there is a period of about eight months in which a vacancy would exist in the office. If this vacancy could be filled by appointment, there would be practically no limit upon the power of the legislature to change to appointive, offices made elective only by the eonstitution. Accordingly, this court has laid down the rule of law that, “the mandatory provision that the general assembly shall provide by law for the election of county officers, is a clear denial of its power to provide for their appointment. ’’ State ex rel. The Atty. Gen. v. Heffner, etc.; State ex rel. Brennan, 49 Ohio St., 33.
    This court has decided that where the term of an office is fixed and limited by the constitution, there is no power in the general assembly to extend the term or tenure of such office beyond the term so limited. State ex rel. v. Brewster, 44 Ohio St., 589.
    That the whole matter was in the mind of the drafters of the constitution appears further from section 16 of article 4, where clerks of the'court of common pleas are especially empowered to hold their offices “for the term of three years and until his successor shall be elected and qualified. ’ ’ State ex rel. v. McCracken, 51 Ohio St., 123.
    There is, no escape from the conclusion that under the act of May 19, 1894, an appointment would be necessary for the period between January and September. Hence, it appears impossible to distinguish the act of May 19, 1894, from the act considered in the cases of the State v. Heffner, etc., and measured by the rule laid down, and we think wisely, in those cases, the act of May 19, 1894, is, however innocently, in derogation of the constitution, and is therefore void. Treasurer v. Bank, 47 Ohio St., 503; Allen v. Louisiana, 103 U. S., 80; State ex rel. Perry County, 5 Ohio St., 497; Monroe v. Collins, 17 Ohio St., 665.
    It is no objection-to action of a court of final resort to say that inconvenience will result from its finding adversely to the constitutionality of a statute, if the fact of unconstitutionality be apparent, the duty of the court so to find is equally plain.
    In this case, however, no inconvenience would result. The relator stands ready to assume the office to which he was elected in the manner .prescribed by the constitution. The defendant has already occupied the office for a period greater than the maximum fixed by the constitution. Ex parte Strang, 21 Ohio St., 610; Kirke v. Cincinnati, 48 Ohio St., 507.
    The appointment of the defendant as county •commissioner, made by Henry C. White and others as above set forth, was without warrant of law; and in consequence of the invalidity of the act of May 19, 1894, the term of office of the defendant dated from the firs! Monday in January, 1896. 3 Am. Eng. Enc., 678 ; Norton v. Shelby Co., 118 U. S., 425; Poindexter v. Greenhow, 114 U. S., 270.
    The term of Thomas Dave Brown, as county commissioner, expired on the first day of January, 1899, and the term of the relator, P. J. McKenney, rightfully began upon that day in pursuance of section 839 of the Revised Statutes.
    The uneonstitutionality of the act of May 19, 1894, leaves section 839 in force. Under it commissioners-elect assume office on the first Monday in January following their election, and under section 3 of article X of the constitution of the state •of Ohio they cannot hold office for more than three years. In the year 1899 the first Monday in January was the second day of the month. The defendant had on that day held the office of county commissioner for three years, within five days. For him to hold it beyond the sixth day of January was a mere usurpation, his tenure became unconstitutional and the right to the office came wholly to an end. McKenney having been duly elected, as is set forth by the petition in this cause, and having been commissioned by the governor of Ohio as county commissioner in accordance with the result of said election, was entitled to the office on the said first Monday, being the second day of January, 1899, and he is now entitled to a judgment of ouster at the hands of this court. State, etc., v. McCollister, 11 Ohio, 51; State, etc., v. McGregor, 45 Ohio St., 632. The statements of the defendant’s answer do not constitute a defense to the action, for the action having been instituted on behalf of the state by the attorney-general, the court will, if necessary, proceed to oust the defendant if he be not entitled to the office, without passing upon the rights of the claimant who is suggested by the attorney-general as the rightful officer. Commonwealth v. Am. Bank, 10 Phil. (Pa.), 156; State v. Gleason, 12 Fla., 190; In re Bank of Mt. Pleasant, 5 Ohio, 249; State, etc., v. Moffitt, 5 Ohio, 358.
    The theory of proceedings of this kind is that they are quasi criminal in character and are brought to redress the public wrong of the usurpation of an office by an intruder. Lowther's Case, Ld. Raymond, 1409.
    The state is an interested party in this action and its primary object is to see that an office is not held by one not legally entitled thereto. The incumbent, after a judgment of ouster as to him, has uo interest in the action, other than any citizen. Gano v. State ex rel., 10 Ohio St., 237.
    . The provisions of the constitution which apply to the qualifications of officers are sections 4 and 19 of article II; section 14 of article III; section 4 of article XV; section 4 of article V.
    The statutes of the state upon the question of eligibility and incompatibility are as follows: Sections 18, 1020, 1164 and 1268.
    It will be observed that none of the foregoing statutes make the offices involved in this proceeding incompatible. There have been few cases before this court involving incompatibility, but from those which have been decided, it would seem to be the rule in this state that offices will not be held to be incompatible unless made so by statute. State, etc., v. McCollister, 11 Ohio, 46; State ex rel. etc., v. Taylor, 12 Ohio St., 130.
    At the common law two offices were deemed incompatible when from reasons of public policy it would be improper for one person to hold and exercise both, as where the one was superior to the other in the sense of the inferior owing some duty of which the superior was charged with the authority to enforce the performance, or where one was accountable to the other for the proper discharge of some public function. Mechem’s Pub. Ofs. and Offs., section 422.
    In other „words, there must be a moral inconsistency between the offices. ' Some of the cases go so far as to insist that the subordination of the one office to the other is indispensable to incompatibility at the common law. People v. Green, 58 N. Y., 295; Gaal v. Townsend, 77 Texas, 464.
    If the two offices in question were incompatible the effect would be to vacate the office .of councilman upon the qualification of the incumbent as county commissioner and not to avoid the election to the latter office. People v. Carrique, 2 Hill., 93; State ex rel. Metcalf v. Goff, 15 R. I. 505; s. c. 2 Am. St. Rep., 921; State v. Allen, 21 Ind., 516; s. c. 83 Am. Dec., 372; Stubbs v. Lee, 64 Me., 195; s. c. 18 Am. Rep., 251; State ex rel. v. Brinkerhoff,
      66 Texas, 45; Mechem. Pub. Offices, section 420; Throop’s Public Offices, sections 30, 31 and 33.
    To this rule there is but one class of exceptions, namely, where the first office is one which the incumbent cannot vacate by his own act. Rex v. Patteson, 4 B. & Ad., 9.
    There can be no doubt that a civil officer has a right to resign at pleasure, and it is not in the power of the executive to compel him to remain in office. U. S. v. Wright, 1 McL. (U. S.), 509; State v. Mayor, 4 Neb., 260; Bunting v. Willis, 27 Gratt (Va.), 144.
    This is also the rule in Ohio. Ratterman v. State, 44 Ohio St., 641; Reiter v. State, 51 Ohio St., 74.
    Section 1717 of the Revised Statutes, is limited in its scope to municipal offices.
    The meaning of this provision is, however, easy to determine. It is not placed among the general statutory provisions of the state defining and limiting the rights of citizens, but is part of a section which provided in effect against salary grabbing among municipal or city officers. The preceding sections and those which follow it relate exclusively to city offices and officers, and the whole purpose and effect of the statute is to prevent the use of power and position as a councilman to secure lucrative, if not incompatible offices. State v. School Commissioners, 1 O. D., 644.
    “Eligible to office” in Ohio means eligible to hold ‘office and refers to the qualifications of the claimant at the time he seeks to enter upon its duties, and not to his qualifications at the time he is ‘ £a candidate for election.”
    The phrase, “eligibleto an office,” has been held in different jurisdictions to mean two different things. There may be said to be two rules the ancient and the modern, upon the subject. By the ancient rule it was held to have reference to the time a candidate presented himself for election. State v. Moores (Neb.), 73 N. W. Rep., 304; Taylor v. Sallivan, 45 Minn., 311.
    By the modern rule, however, “eligible” is held to mean, “capable of holding,” and has reference to the time the claimant presents himself for induction into office.
    And the modern rule, being as it is, founded in reason and good sense, has been widely adopted by authoritative courts and by legislatures. People v. Hamilton, 24 Ill. App., 609; Smith v. Moore, 90 Ind., 294; Privitt v. Bickford, 26 Kan., 52; State v. Smith, 14 Wis., 497.
    In Kentucky the Supreme Court has distinguished between two uses of the word “eligible,” as found in the constitution of that state, holding the phrase, “eligible to office” when standing unqualified, to mean eligible at the time of induction; while in certain qualified phrases of the constitution it is held that reference was plainly had to eligibility as a candidate. Kirkpatrick v. Brownfield, 97 Ky., 558.
    The cases of State ex rel. v. Kearns, 47 Ohio St., 566, and State v. McMillan, 15 C. C., 163 (8 C. D., 380), seem at first sight to follow the “ancient rule” as the law of Ohio, but the case in the circuit court follows the case of State ex rel. v. Kearns, and in the latter case the court was limiting its view to the effect of section 1717 upon offices the contemporaneous holding of which was prohibited.
    The constitution, itself, draws the same distinction and by adopting two forms of expression fixes clearly the rule in Ohio as to the meaning of these terms. Article XV, section 4; article II, section 19; article XV, section 5; article II, section 5; article. II, section 4.
    In all of these provisions it is quite plain that the makers of the constitution are looking at the person who seeks to he inducted into office. Thus, if an officer-elect fight a duel, or be convicted of embezzling public funds after the election, it does not avoid the election, but makes him ineligible to the office, or debars him from holding it. So if one holding a federal office resign after his election to the general assembly and then present himself for admittance to the privileges of that body, he is not then holding a prohibited office and is eligible to the office to which he has been elected. The meaning of the constitution is clearly expressed' in article II, section 4, where it is provided that an officer-elect may make himself eligible by removing the disability.

      Walter O. Ong and F. L. Taft, for defendant.
    If the -contention of counsel for the relator is correct that the act of 1894, is unconstitutional and void then the act of 1886 is unconstitutional and void and it is under this act that P. J. McKenney, through the relator contends that he is entitled to the office of county commissioner. And again if the acts of 1894 and 1886 are unconstitutional and void, then the act of 1873 is also unconstitutional because that act changed the time from October to December following, but under the amendment of the constitution in 1885 it would be from November to January by the act of 1886, so we inquire what right or standing under the contention of counsel for the relator does P. J. McKenney have to maintain this action on his behalf. He is not claiming to be entitled to the office by virtue of the provision in the constitution, that all county officers shall be elected on the first Tuesday after the first Monday in November, but it is said that he is entitled to the office by virtue of the act of 1886, which provided that the county commissioners should take office on the first Monday of January after his election, but if the act extending the time to September after election is unconstitutional as we have said then the act upon which he relies for title to his office is also unconstitutional. But we contend the whole course of legislation establishing-the office and fixing the time when a commissibner’s term of office shall begin is not only consistent with the holdings of this court in construing sections 1 and 2 of article 10, but clearly within the power of the legislature to so provide or change the time when the term of any one commissioner of the county shall commence, it in no manner creates a vacancy in the office but may create a vacancy in the board which consists' of three persons', and if the legislature create a vacancy in the-board of commissioners by reason of fixing the time when a commissioner’s term shall begin, then that vacancy maybe as it has been in this case lawfully filled by the duly authorized appointing power, appointing some one to fill such vacancy thus occurring.
   Burket, J.

By the act of March 12, 1853, it was provided that a board of county commissioners should be established in each county to consist of three persons to be elected at the annual election in October of each year, to hold their offices for three years. The date at which the term of office was to begin was not fixed, and the practice was that each commissioner took his office as soon as he qualified after election.

By the act of March 7, 1873, 70 O. L., 53, it was provided that the term of office should begin on the first Monday of December next after his election, and this became section 839 of the Revised Statutes.

By the amendment of this section in 1886, 83 O. L., 198, the term was so changed as to begin on the first Monday of January next after his election; and by the further amendment of the same section, May 19, 1894, 91 O. L., 338, the beginning of the term of each commissioner was changed to the third Monday of September next after his election.

No question was made as to the constitutionality of any of those acts until now. Under this last change from the first Monday of January to the third Monday in September, the probate judges, auditors, and recorders of the different counties re' garded the interim from January to September as a vacancy in the office, and filled the same by appointment. In the former changes the interim was so short that it was disregarded.

Under this section as amended in May, 1894, a county commissioner was elected in each county at the November election in 1894, and his term began on the third Monday of September, 1895. At the November election in 1895, a commissioner was elected whose term began on the third Monday of September, 1896; and at the November election in 1896 a commissioner was elected whose term began on the third Monday of September, 1897: As to each of the commissioners so elected in the years 1894, 1895, and 1896, there was an interim in the office from the first Monday in January to the third Monday in September, and this interim was regarded as a vacancy by the probate judges, auditors and recorders, and such vacancy was filled by them by appointment of some person in each county to discharge the duties of commissioner for the time of such vacancy. The last vacancy so filled or which could be so filled was from the first Monday in January, 1897, to the third Monday in September following.

The commissioners who were elected in November, 1894, and whose terms began on the third Monday in September, 1895, and expired on the third Monday of September, 1898, were succeeded by commissioners who were elected in November, 1897, and the commissioners whose terms will expire in September, 1899, will be succeeded by the commissioners who were elected in November, 1898. So that two elections of commis- • sioners were had after the illegal vacancies or interims had been done away, and the commissioners elected in November, 1897, had taken their offices in September, 1898, and had held the same for over-one year, when the question as to the illegality of these vacancies, and the constitutionality of the act, by reason of such vacancies, was first made. Conceding the invalidity of such vacancies and of the act creating the same, as was held in State ex rel. v. Heffner, 59 Ohio St., 368, and State ex rel. v. Canary, 60 Ohio St., 208, the action to declare such invalidity by reason of such illegal vacancies, should have been brought while such illegal vacanbies existed, and to oust a person who was filling such illegal vacancy. After the attorney-general and all the people of the state have remained quiet, and acquiesced in the filling of such illegal, vacancies until after the terms of such vacancies-have expired, and until all the persons now in office are there, not by virtue of an illegal appointment to fill an illegal vacancy, but by virtue of an election by the people to fill a full and regular term of office, it is too late to raise the question by quo warranto as to the illegality of such vacancies and appointments, or the statute from which such vacancies resulted.

Had the question been properly made before these illegal vacancies and appointments all expired, there would have been some substance to the claim, something to act upon, somebody to oust from office. That has now all gone by, and the illegality growing out of the vacancies caused by this change of the statute, no longer exists, and the invalidity of the statutes should not be construed to extend beyond the illegality which caused it. The illegal vacancies caused the invalidity of the statute while these vacancies existed, but the illegal vacancies having expired, they no longer operate to invalidate the statute.

Aside from creating such illegal vacancies, there is nothing in the constitution to prevent the general assembly from fixing the date at which the term of office of a county commissioner shall begin, and such illegal vacancies having expired and become inoperative before any proceedings were commenced by the state or any citizen thereof to declare the statute invalid by reason of such illegal vacancies, sound policy requires that the statute' shall now stand and operate the same as if no such illegal vacancies had resulted therefrom. Advantage must be taken of such a statute while the illegality is alive and doing- harm, and not after it is dead and without operation to harm any one.

But as Mr. Brown, the defendant, was appointed to fill one of those illegal vacancies from the first Monday in January, 1896, to the third Monday of September, when he entered upon his full term of three years to which he had been elected in November, 1895, it is claimed by the relator that the time served by Mr. Brown in filling this illegal vacancy must be counted as part of his full term of three years, and that in legal effect his three years’ term began on the first Monday in January, 1896, and ended on the first Monday of January, 1899. This claim is not tenable. Mr. Brown was appointed to fill the vacancy. He gave bond and qualified to fill the vacancy, was so commissioned, and . did not claim to be then in office on his full term of three years, and had not then given bond or qualified on his three years’ term. If anybody desired to test the legality of his appointment to this vacancy, an action should have been commenced to oust him before the vacancy expired, and not wait for three years, and then by a sharp turn attach the time served to fill the vacancy to his full term, and thereby bring his full term to an end some eight months earlier than was expected by either himself or the public. His regular term will therefore continue to the third Monday of September, 1899, at which time Mr. McKenney’s term will begin.

■ This is a proceeding- by the attorney-general to oust Mr. Brown from office, and not to induct Mr. McKenney into office. Therefore the facts set up in the answer, as to Mr. McKenney’s having held the office of councilman of one of the wards of the city of Cleveland at the time of his election as commissioner in November, 1898, are not pertinent in this case; but we see nothing to render him ineligible to the office.

Petition dismissed.