author: Nichols, C. J.

text:
    The State, ex rel. The Merydith Construction Co., v. Dean, Auditor.

      Taxation — Municipal bonds for filtration plant — Order of state board of health — Section 1259, General Code — How funds provided — Tax levy for sinking fund and interest — Sections 5649-1, 5649-2 and 5649-30, General Code — Limitations on tax levy and rate — Section 3940, General Code — Limitations of total indebtedness — Section 3952, General Code — Borrowing money — Act effective, when — Refusal of city auditor — To sign bond issue— Mandamus.

    1. Under the provisions of Section 5649-1, General Code, as amended 104 Ohio Laws, page 12, it is the duty of all taxing authorities to levy a tax, within the limitations prescribed by law, sufficient to provide for sinking fund and interest purposes for all bonds issued by any political subdivision of the state, which tax when levied shall have preference to all other levies and for the full amount thereof. Bonds issued by a municipal corporation to provide funds to comply with orders promulgated by the state board of health, and approved by the governor and attorney general, as provided by Section 1249 et seq., General Code, are subject to these provisions.
    2. In providing funds for sinking fund and interest to discharge obligations arising from bonds issued after June 1, 1915, in compliance with orders pf the state board of health issued and approved prior to June 1, 1915, the taxing authorities of municipal corporations shall disregard the limitations on tax levies provided by Section 5649-2, General Code. Taxing authorities shall likewise disregard Section 5649-3®, General Code, in so far as it limits to five mills -the aggregate of all taxes that may be levied by a municipal corporation on the taxable property in a municipal corporation, for the purpose of providing funds for sinking fund and interest on account of bonds so issued.
    3. Section 1259, General Code, confers independent bond-issuing power upon municipal corporations to provide funds to comply with orders of the state board of health requiring the installation of a filtration plant for the purpose of purification of the water supply of such municipal corporation.

      4. The municipal corporation so issuing such bonds shall not be bound by the limitation of Section 3940, Geheral Code, of one per cent, of the total value of all property in such municipal corporation, as listed and assessed for taxation, in any one fiscal year, nor by the limitation imposed by Section 3952, to a total issue of two and one-half per cent, of such property so listed and assessed for taxation, but may, if necessary to provide funds to comply with such order, issue its bonds to the extent of five per cent, of such property so listed and assessed for taxation, although the limitations provided for by Sections 3940 and 3952, General Code, have been reached. The full issue of five per cent, may if necessary be issued in any one fiscal year, without submission to a vote of the electors.
    (No. 15427
    Decided December 5, 1916.)
    In Mandamus.
    The facts are stated in the opinion.

      Mr. Wm. H. Harris; Mr. J. S. Martin and Mr. A. R. Johnson, for relator.

      Mr. M. W. Russell, for defendant.
   Nichols, C. J.

This is an original action in mandamus instituted by relator in the supreme court of Ohio to require respondent, Percy W. Dean, as city auditor of Ironton, to officially sign a certain issue of bonds in the sum of $375,000, authorized by the council of such city, the proceeds of which were to be employed in the construction of a filtration plant for the purification of the water supply of Ironton.

This improvement was undertaken in response to a peremptory order of the state board of health, made on February 20, 1913, approved by the governor and attorney general on April 23, 1913. This order commanded the city of Ironton to install and put in operation a water filtration plant of a design satisfactory to the state board of health. Such order was issued in pursuance to authority conferred on the state board of health by the provisions of Section 1249 et seq., General Code, commonly known as the Bense act.

Thereafter, plans, specifications and estimates for the construction of such filtration plant were formulated and submitted to and approved by the state board of health.

On March 3, 1916, the council of Ironton duly passed an ordinance providing for a bond issue in the sum of $250,000 for the purpose of securing funds to construct and install such water filtration plant.

On June 13, 1916, the council of such city passed its further ordinance, amending Section 3 of the ordinance of March 3, 1916, the amendment involving simply a change of the rate of interest from four to four and three-fourths per cent., it having been demonstrated in the meantime that four per cent, bonds would prove unmarketable.

On June 19th an additional ordinance was adopted by council providing for a second issue of bonds, the amount thus authorized being $125,000, making a total of $375,000, it having been ascertained that it would require this larger sum to complete the improvement.

Both issues of bonds so authorized were offered as one, and bids were received. The successful bidders refused to accept the bonds and thereafter a bond-buying firm, Spitzer, Rorick & Co. of Toledo, entered into a contract with the city authorities for the purchase of the entire issue, and the bonds having been duly prepared and signed by the mayor were presented to the respondent, the auditor of the city of Ironton, with request that he sign the same. The auditor refused, and still refuses, to sign.

On May 27, 1916, the city of Ironton entered into a contract with The Merydith Construction Co., the relator in this action, for the construction of a part of said water purification plant, at the contract price of $79,617.

Acting under such contract the relator has proceeded with the work of construction and there is now due and unpaid to it upon approved estimates the sum of $15,000.

The only funds that can be made available for the payment of such estimates due relator, and the amounts yet to become due, are the proceeds of the bonds so sold to Spitzer, Rorick & Co., who are willing, ready and able to cover the full proceeds of the same into the city treasury on the signing by the auditor and delivery to them of such bonds.

The tax duplicate of the city of Ironton is approximately $16,000,000. Its total bonded indebtedness, exclusive of the issue under consideration, is $575,000. Of this amount $228,000 represents bonds issued to refund bonds representing an indebtedness incurred prior to April 29, 1902, and $24,000 represents bonds issued for the payment of obligations arising through the emergencies of flood and smallpox.

By the terms of Section 3949, General Code, these issues of $228,000 and $24,000, respectively, are not to be considered as affecting the bond-issuing capacity of the municipality.

By the statutory definition given the term “net indebtedness,” employed in Section 3941, General Code, we find that the bonded indebtedness of Iron-ton for the purposes of this inquiry is to be still further reduced by approximately $100,000, being the amount held in the sinking fund for redemption purposes.

The net bonded indebtedness of Ironton, then, with which we are concerned, is approximately $225,000.

The evidence on this subject is quite indefinite and somewhat unsatisfactory, but the highest total with which we must reckon does not exceed $225,000.

The main questions involved in this controversy are:

1. The authority of the city, of Ironton to issue its bonds for the filtration plant in excess of two and one-half per cent, of the total value of all property of the city listed and assessed for taxation, as limited by Section 3952, General Code.

2. The authority of the city of Ironton to issue its bonds in any one fiscal year in excess of one per cent, of the total value of its property, as listed and assessed for taxation, as limited by Section 3940, General Code.

3. Do the above limitations govern and control the municipality in providing funds, by issue and sale of bonds, to comply with lawful requirements of the state board of health, approved by the governor and attorney general, as authorized by the terms of the Bense act, Section 1249 et seq., General Code?

4. Is there a grant of power to a municipality to issue bonds for such purpose, made by Section 1259, General Code, or does the municipality secure its sole grant of power to issue its bonds by the provisions of Section 3939 et seq., General Code, commonly known as the Longworth act?

5. Is the matter of levying taxes for the purpose of providing a fund to discharge the interest on the proposed bond issue, and sinking fund for payment of principal, subject to the limitation of the Smith one per cent, tax law, both as to the total tax permitted by such law and as to the interior máximums permitted to municipalities by the same act; or, with regard to this particular improvement ordered at the time it was by the state board of health, and bonds issued at the time they were, is it freed from the Smith law limitations by the provisions of Section 1259-1, General Code, as passed by the general assembly, 106 Ohio Laws, 461 ?

The major portion of above questions is readily disposed of. Other questions of minor importance involved in this controversy will be disposed of in their logical order.

The contemplated bond issue to construct the proposed improvement, added to its present bonded indebtedness as limited by the Longworth act, would burden the city of Ironton with a total bond issue of about $600,000. Two and one-half per cent; of $16,000,000 is but $400,000. Thus we find that the additional issue of $375,000 could not be permitted by the Longworth act.

As one per cent, of $16,000,000 is but $160,000, and the new issue authorized by council is $375,-000, we readily ascertain that it would be invalid, if the Longworth act controls the situation. We must therefore conclude that unless there is power conferred on municipalities to issue bonds independent of the Longworth act, and that this power if conferred is not limited by its one and its two and a half per cent, máximums, the writ here sought must be denied.

The constitutionality of the Bense act was assailed in the case of The State Board of Health v. The City of Greenville and the law upheld by the judgment of this court in an opinion by Donahue, J., 86 Ohio St., 1. The constitutionality of Section 1259-1, General Code, was likewise assailed in the case of The City of Cleveland, by etc., v. Davis, Mayor, ante, 52, and the law upheld by the judgment of this court.

These questions being so determined, we are not concerned with the validity of these respective enactments, but only with their construction and effect as related to the instant case.

It has been held in other jurisdictions in Ohio, in construing Section 1259, General Code, that no power is therein granted to municipal corporations to issue bonds, the holding being to the effect that the sole and only power to so issue is found in the Longworth act and for the 27 purposes therein enumerated.

We are not in accord with this construction. It is clearly to be ascertained from a consideration of the Bense act that it was the legislative intent to .grant to municipalities an independent power to issue bonds for the purposes incident to the carrying out of the provisions.of that law; and this, if the occasion might require, for other and different purposes than those mentioned in the Longworth act.

This intent is to be gathered not only from the express language of Section 1259, but also, and even more clearly, from the circumstances surrounding the passage of the act and the evils sought to be remedied by its enactment.

The Bense act endowed the state board of health with tremendous powers. It gave the board authority to issue its peremptory mandate to municipalities, which must be complied with under penalty of criminal prosecution. Within the field so prescribed it created a superior and independent agency not only to issue its orders to protect the public health but also to see that these orders might not be ignored.

All laws newly passed by the general assembly must be presumed to harmonize with existing statutes on kindred subjects not either expressly or impliedly repealed. Therefore, when the general assembly empowered the state board of health to issue its orders to municipalities, the effect of which would'be to require the incurring of large indebtedness, amounting in the instant case to $375,000, and knowing as it must have known that our municipalities were already overburdened with bonded indebtedness, many of them up to the limit of the Longworth act, it was the most natural and proper thing to provide some means to meet the extraordinary situation thus created. It must not be overlooked that the bonded indebtedness thus required, so far as the municipality is concerned, is altogether involuntary. Not only is the council wholly without discretion in the matter, but the electorate of the city is not to be consulted; indeed it could not be forbidden by a vote of the people.

Section 1259, General Code, in part, says: “Each municipal council, * * * having jurisdiction to provide for the raising of revenues by tax levies, sale of bonds, or otherwise, shall take all steps necessary to secure the funds for any such purpose or purposes. When so secured, or the bonds thereof have been authorized by the proper municipal authority, such funds shall be considered as in the treasury and appropriated for such particular purpose or purposes, and shall not be used for any other purpose.”

Section 1259-1, General Code (106 O. L., 461), provides that: “Interest and sinking fund levies on account of bonds issued under section 1259 of the General Code after June 1, 1915, in compliance with orders of the state board of health issued and approved prior to June 1, 1915, shall be exempt from all the limitations on tax levies provided by sections 5649-2 and 5649-3a of the General Code.”

A reading of Section 1259 clearly demonstrates that the municipality so issuing its bonds would not have to look beyond the terms of the section itself to obtain its authority in the premises, but, if there be any misconception in this regard, a consideration of supplemental Section 1259-1 renders it clear as the English language can be expressed that the municipality so issuing its bonds did not have to look to the Longworth act for a grant of power, for by this supplemental enactment reference is made to interest on account of bonds issued under Section 1259, General Code.

The drastic nature of the Bense act is more clearly comprehended when we ascertain that the general assembly in its passage, in order to make its provisions at all workable, abrogated three of the most familiar laws on our statute books — laws that have become firmly and fairly a part of the state’s public policy.

These laws so set aside are: The Longworth act, the Burns law, and the Smith one-per-cent. law.

These restrictive and safeguarding statutes, beneficent as they are, were they applicable to the Bense act, would make involuntary lawbreakers of most every municipal officer in the state.

We hold that the power to issue bonds to comply with orders of the state board of health is provided by Section 1259, General Code, and we further hold that the limitations of the Longworth act, Section 3952, General Code, do not govern.

The language of Section 1259 on this aspect is unmistakably clear, when read with the knowledge of what is to be accomplished by the legislation. It must be noted that it is provided that “The bonds authorized to be issued for such purpose shall not exceed five per cent, of the total value of all property in any city or village, as listed and assessed for taxation, and may be in addition to the total bonded indebtedness otherwise permitted by law. The question of the issuance of such bonds shall not be required to be submitted to a vote.”

It is evident that the legislature in the use of this language meant to invest municipalities with a power adequate to meet the requirements of the Bense act. It gave full authority to issue bonds to the extent of five per cent, of the taxable value of property, even if the five per cent, had already been reached, and the limitation of one per cent, for any one fiscal year is without application here.

The one, two and one-half, and five per cent, limitations of the Longworth act are to have application to enterprises initiated by municipalities, and to its necessities, locally created; but the state, while imposing duties and responsibilities on municipalities involving large expenditures of money, very justly and quite necessarily opened up a new avenue for municipal credit.

With reference to the fifth of the series of questions involved in the case, we have only to note that this .particular order of the state board of health was issued and approved prior to June 1, 1915, añd that the bonds under consideration were issued under Section 1259, after June 1, 1915. In view of these facts the provisions of Section 1259-1 have undoubted application.

The taxing authorities of Ironton, in their effort to secure funds to pay interest on these bonds and provide a sinking fund for their redemption at maturity, are therefore unhampered by the provisions of Section 5649-2 limiting the tax rate in all political subdivisions of the state to ten mills. The taxing authorities are likewise by this act relieved of the interior limitations fixed by Section 5649-3a, General Code.

Section 5649-1, General Code, as amended in 104 Ohio Laws, page 12, requires the taxing authority to levy a tax sufficient to provide for sinking fund and interest purposes for all bonds issued, which tax shall be placed before and in preference to all other items, and for the full amount thereof.

In view of this amendment, the matter of providing the necessary funds to meet the interest and provide sinking fund for the bonds in question becomes a very simple one. This language is capable of but one construction. Everything of a municipal nature, all current expenses of every kind, must yield to the imperative necessity of paying interest and providing a sinking fund.

With the ten-mill limit abrogated, the interior limitations as to the proportion of the municipal levy set aside, and the necessity of providing interest and sinking fund placed above all other things, first, absolute and paramount, the auditor under these conditions can not be heard to say that the taxing authorities are lacking in the means to take care of this bond issue.

In this respect, both the taxing authorities and budget commissioners are wholly without discretion. The mandatory duty rests on the budget commissioners to give preference to the levy providing for interest and sinking fund, not only over the current expenses of the municipalities, but also over the same character of expenses of the county, township and school districts.

Contention is made by respondent that the ordinance of June 13, 1916, amending Section 3 of the ordinance of March 3, 1916, is invalid in that it offends against the requirements of Section 4226, General Code. This section of the General Code provides that “no by-law or ordinance, or section thereof, shall be revived or amended, unless the new by-law or ordinance contains the entire by-law or ordinance, or section revived or amended, and the by-law or ordinance, section or sections so amended shall be repealed.”

The ordinance of June 13, 1916, it is quite true, did not contain all of the ordinance of March 3, 1916, which it sought to amend, but since the purpose of the amendment was simply to amend Section 3 of the original ordinance, and since the amending ordinance did contain the entire section sought to be amended, it is obvious that in this respect the statutory requirement was strictly followed. To require an amending ordinance, the purpose of which is to amend but one of a series of sections contained in the original law, to embrace the whole of the ordinance sought to be amended, would be wholly beside the purpose inducing the passage of Section 4226, General Code; and, furthermore, full authority is given by this section to amend a section of an ordinance by embracing within the amending ordinance the section only that is being changed.

It is true that the ordinance of June 13, 1916, did not expressly repeal Section 3 of the ordinance of March 3,1916, but proper construction suggests the holding that Section 3 of the original ordinance was repealed by implication.

The ordinance of March 3, 1916, and not that of June 3, 1916, was the law which authorized the issuing of the bonds in question, and since the contract of relator was not entered into until the 27th day of May, 1916, the funds necessary to discharge the debt to become due the contractor were then presumptively in the treasury of the city of Iron-ton. This follows from the fact that Section 1259, General Code, expressly provides that whenever bonds have been authorized by the proper municipal authority, such funds shall be considered as in the treasury and appropriated for such particular purpose or purposes, and shall not be used for any other purpose.

In this connection, consideration may be given the further contention of respondent that the relator has not pursued the proper remedy. It is urged that the extraordinary writ of mandamus is not available to relator under the circumstances of the instant case, it being maintained that it has a plain and adequate remedy in the ordinary course of the law. We do not think so. The relator is not here seeking to enforce its contract with the city of Iron-ton; it is asking no judgment for money alleged to be due on such contract. Suing as a party beneficially interested, it asks that a clear legal duty be performed by the auditor of the city.

By the terms of its contract, it is obliged to look to the proceeds of the sale of these very bonds as the source from which it is to receive its money. Having started in good faith to carry out its contract and having incurred large expenses thereunder, it is clearly entitled to have done that which by presumption of law had already been done by the city.

If the relator would proceed to finish its contract without receiving pay on any of its estimates as provided'in the contract, and would then pursue the ordinary course of the law and obtain judgment for the amount due, and no municipal property was subject to execution, it would then be obliged to resort again to the courts to obtain the very relief it is now seeking.

It is necessary to bear in mind that there is no issue of fraud of any kind raised in this case, and that it is admitted that estimates to the extent of $15,000 have been furnished relator by the proper authorities of the city. And it is proper also to bear in mind that the issuing of this writ settles no issue in dispute that might hereafter arise between the city and the contractor as to the faithful performance of the contract. The remedy that is sought is simply to make certain that the things promised by the city, when the contract was entered into and upon which reliance was placed, will be carried, out.

This action will avoid a multiplicity of suits, not only by relator but by other contractors engaged in this same improvement, and no other remedy has or can be suggested that will be plain, complete and adequate. In truth, the facts in the instant case constitute the ideal conditions warranting resort to this extraordinary remedy.

The law in its modern conception must define an adequate remedy as one complete in its nature, beneficial and speedy. In the instant case it is due to the relator as a matter of right that these bonds be signed. By the language of the law relator was assured that the money to become due it was already in the treasury, which money could not be in the treasury without the sale of these bonds.

It was held in the case of Babcock v. Goodrich, 47 Cal., 488, 508, that when a suit in mandamus seeks to require a public officer to perform the duty imposed upon such officer by law, the relator has no adequate remedy at law, unless a legal remedy other than mandamus will require the officer to perform in effect the specific act,which the law requires the officer to do.

It has also been held that an adequate legal remedy which will defeat an action in mandamus is one which secures, absolutely and of right, to the injured complaining party, relief from the wrong done. Ames v. Union Pac. Ry. Co., 64 Fed. Rep., 165, 172.

Under the circumstances hereinbefore set out it would work a hardship tantamount to legal fraud to deny the writ herein asked. It will be granted.

Writ allowed.

Johnson, Newman, Jones and Matthias, JJ., concur.


source: Caselaw Access Project

author: Matthias, J.

license: Public Domain

text:
    The Board of Education of Seneca Township Rural School District v. DeTray, Clerk, et al.

      Schools — Transfer of territory — Remonstrance — Section 4692, General Code (106 O. L., 397) — Inapplicable to transfers to adjoining county ■ districts, when — Section 4696, General Code (106 O. L., 397)•
    The provision of Section 4692, General Code (106 O. L., 397), rendering ineffective the order of a county board of education, transferring territory from one district to another, upon the filing of a remonstrance by a majority of the qualified electors residing in the territory to be transferred, has reference only to transfers within the county school district and has no application to a proceeding to transfer territory to an adjoining county district under the provisions of Section 4696, General Code (106 O. L., 397).
    (No. 15227
    Decided December 12, 1916.)
    Error to the Court of Appeals of Seneca county.
    Facts are stated in opinion.

      Mr. W. S. Wagner, for plaintiff in error.

      Mr. R. M. Knepper, prosecuting attorney, for defendants in error.
   Matthias, J.

On September 25, 1915, the county board of education of Seneca county school district, in conjunction with the county board of education of Wyandot county, acting under authority conferred by Section 4696, General Code, detached a strip of territory from the district theretofore known 'as the Seneca township rural school district and attached the same to the Wyandot county school district, and at the same time said boards of education decided upon a division of the school funds and directed that of the $2,788.59 then in the treasury of the Seneca township school district there should be turned over to the Wyandot county school district the sum of $1,115.43. The action of said boards of education making such transfer was taken in compliance with a petition of more than fifty per cent, of the qualified electors of the territory, the transfer of which was sought. Immediately thereafter the Wyandot county board of education combined the territory thus transferred with another rural school district in Wyandot county, and thereby created a new district, denominated the McCutchenville village school district. All the members of the board of education of the Seneca township school district at the time of the transfer of a portion of that district to the Wyandot county school district were residents within the territory so transferred. Thereupon the board of county commissioners of Seneca county, acting under authority of Section 4736-1, General Code (106 O. L., 550), designated and appointed other persons to be members of the board of education of the Seneca township school district.

A majority of the electors living in the transferred territory, within thirty days after the passage of the resolution making such transfer, filed a remonstrance with the board of education of Seneca county, Ohio, against the proposed transfer. The board of education of the Seneca township rural school district, as formerly constituted, instituted action in the court of common pleas and thereby sought to prevent, by injunction, the consummation of the transfer of such territory and payment of any of the funds of Seneca township rural school district, except upon order of the plaintiff for the maintenance and support of the schools of such district. The court of common pleas found in favor of the defendants, and dismissed the petition of plaintiff.

The case was submitted on appeal to the court of appeals of Seneca county upon an agreed statement of facts, the substance of which is as above stated. The court of appeals also found for the defendants and refused the injunction sought by plaintiff.

The plaintiff in error challenges the constitutionality of the legislation commonly known as the “New School Code,” enacted in 1914, which creates a county board of education in every county of the state and empowers such board to establish and change school district boundaries and transfer territory from one district to another and perform other- duties, and rests its claim for relief chiefly upon that contention.

Since this case was filed here, this court has passed upon the question of the constitutionality of the school code, in the case of Cline v. Martin et al., 94 Ohio St., 420, holding that the same does not in any way contravene any provision of the constitution.

The contention that the remonstrance filed was effective to prevent a consummation of the transfer of territory is not well founded. The action of the boards of education of the two counties is authorized by Section 4696, General Code (106 O. L., 397), which provides that a part or all of a school district of the county school district may be transferred to an adjoining exempted village school district or city school district, or to another county school district, provided at least fifty per centum of the electors of the territory to be transferred petition therefor, and that if at least seventy-five per cent, of the electors petition therefor the county boárd of education shall make such transfer. In relation to such proceeding .there is no provision whatever for the filing of a remonstrance. There is such a provision in Section 4692, General Code (106 O. L., 397), which section has to do only with the transfer of a part of a school district of the county to an adjoining district or districts of the county school district. In such case, however, action is authorized without any petition, and may be taken upon the initiative of the board of education itself, but the section provides that such transfer shall not take effect if a majority of the qualified electors residing in the territory to be transferred, within thirty days after the filing of the map with the county auditor showing the boundaries of the transferred territory, file with the county board of education a written remonstrance against such proposed transfer. In other words, under Section 4692 the county board may transfer territory from one district to another within the county without petition, but a majority of the electors by filing a remonstrance, within thirty days, may avoid or veto the action of the board of education; whereas, on the other hand, under Section 4696, territory cannot be transferred from' one county district to a district of another county until at least fifty per cent, of the electors residing in the territory proposed to be transferred seeks the same by petition.

A county board of education may transfer territory to another county district upon the petition of fifty per cent, of the qualified electors of the territory to be ■ so transferred, and must make such transfer upon the petition of seventy-five per cent, of such electors. If the provision of Section 4692, with reference to remonstrances, applied to proceedings under Section 4696, then it would be possible for a bare majority of the electors to recall the action of the board of education initiated by the petition of fifty per cent, of the electors of such territory; and such remonstrance would have a like effect even if the proceedings to transfer such territory had been initiated by at least seventy-five per cent, of' the electors of the territory, and the board of education had acted pursuant to the mandatory provisions of Section 4696.

It is, therefore, quite apparent that although these two sections of the General Code were enacted at the same time and as a part of the same general legislation, the provision for a remonstrance has to do only with the proceeding provided for in Section 4692, and has no application whatever to a proceeding pursuant to the provisions of Section 4696.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Jones, JJ., concur.


text:
    Teale v. Stillinger.

      Office and officer — Compensation—County treasurer — Preparation of tax receipts — Contract with successor void, when.

    1. A county treasurer is prohibited by statute from receiving any compensation for the performance of official duty in excess of that provided by law, and he cannot by the use of the public office and the public records, stationery and data do indirectly during his term of office what he is prohibited from doing directly.
    2. A county treasurer is required by law to deliver to every person paying taxes into the treasury a receipt specifying the land, lot, and the property on which the tax is assessed, which receipt is required to be prepared in the manner and with the details prescribed by the statute. The preparation of such receipt is an official duty, whether done at the time or in advance and in anticipation of the payment, and the fact that the term of office of a treasurer who had prepared such receipts expired before they were to be used and delivered to the taxpayers constitutes no justification for the receipt by such treasurer of extra compensation for their preparation, either from the public treasury or from his successor in office.
    3. A contract which provides for the payment of such services by the succeeding treasurer to his predecessor in office is against public policy, illegal and void.
    (No. 15153
    Decided December 12, 1916.)
    Error to the Court of Appeals of Coshocton county.
    The facts are stated in the opinion.

      Mr. Lloyd S. Leech, for plaintiff in error.

      Mr. T. H. Wheeler, for defendant in error.
   Nichols, C. J.

The defendant in error, George M. Stillinger, was treasurer of Coshocton county, Ohio, from September, 1911, to the first Monday in-September, 1913. He retired on the last-named date, being succeeded in office by plaintiff in error, C. W. Teale.

Early in the year 1913 the defendant in error, as such treasurer, with the consent and approval of the newly elected treasurer, ordered from a Dayton, Ohio, concern blank tax receipts to be used for the tax collections ending December 20, 1913, and June 20, 1914, both of which collections were to be made after his term of office- had expired.

Prior to the time of the expiration of his term, the out-going treasurer caused to be entered on such blank receipts the names of the several taxpayers of the county, together with the valuation and necessary description of each tract of real estate owned by such taxpayers.

The facsimile signature of the incoming treasurer was by him furnished to the Dayton Blank Book Company and printed on the tax receipts.

In March, 1914, the defendant in error brought suit against the plaintiff in error for the sum of $225 for the making of the receipts in question, for which, it is alleged in the petition, Teale had agreed to pay.

Teale answered, his first defense being a general denial. For a second defense it was alleged that Philip and Ina Stillinger, relatives of the defendant in error, were employed by the outgoing treasurer to make the necessary entries on these blank receipts and were paid out of the funds of Coshocton county for their services the sum of $108 and $142, respectively.

A reply was thereupon filed denying the allegations of the answer.

On the issues so made trial was had, resulting, in a judgment against Teale for the full amount claimed in the petition..

Error proceedings in the court of appeals resulted in an affirmance of the judgment. The supreme court admitted the case for review.

The law fixes no time for the preparation of tax receipts, but it does provide that when any tax is paid to the county treasurer he shall thereupon deliver to the person making payment a receipt specifying the land, lot or property on which the tax was assessed, the receipt to be ruled in columns setting forth, first, a description of each item of property, second, the value thereof, third, the rate of tax on each item, and fourth, the amount of taxes on each item.

In the smaller counties of the state, until recent years, it had been the custom to delay the preparation of the receipts until the moment of payment, but later, for the convenience of both the tax collector and taxpayer, the better business method was adopted of having the receipts prepared in serial number, bound in book form and made substantially ready for delivery upon tender of funds; The several county treasurers of the state put in the idle time preceding the regular taxpaying period by preparing these receipts in advance of the time when they are actually needed.

This has been done presumably to facilitate the prompt collection of the tax and to avoid the inevitable confusion incident to the receipt of customs in a small room crowded with impatient people. It was primarily to avoid unnecessary delay, but was to the advantage of the treasurer as well, in that it permitted him to go more deliberately about the business, and avoid probability of error in the handling of money. The preparation of the tax receipts was manifestly an official duty of the treasurer; but it is claimed that since the duty of making such preparation in advance of the time necessary for delivery is not expressly laid on the treasurer it ceases to be service in line of duty, and that in preparing such receipts defendant in error was acting in a private and not official capacity— was, in fact, doing the work of the newly-elected treasurer, who had expressly promised to compensate him therefor.

The claim is made that the rights and liabilities of the contracting parties are similar in all respects to an engagement between private individuals.

It is quite evident that in the short time elapsing between the date of his induction into office and the date when taxpayers might appear to pay the autumnal tax the new treasurer without a largely augmented force of assistants could not prepare all the receipts, and the evidence shows that when Teale was approached by Stillinger, and informed that it had been the custom of the newly-elected treasurer to employ the outgoing treasurer to prepare the receipts, he agreed that he would pay for such preparation. It is quite natural that as a new official he would desire to start off without discommoding the public, and so, without being familiar with the facts and circumstances surrounding the nature of the preparation and not knowing whose legal duty it was to make such preparation, Teale authorized Stillinger to do the work and promised to compensate him therefor.

Notwithstanding this promise on Teale’s part, the court has concluded that recovery cannot be had on this contract.

The reasons are, we think, obvious.

The services for which defendant in error seeks recovery were performed by him and his assistants in the office of the county treasurer while he was occupying such office as treasurer. The blank receipts on which the entries were made were the property of Coshocton county and no one except the defendant in error, not even the incoming treasurer, would have had the right to the possession and control thereof.

The services were rendered in county property, on county property, by officials at the time under pay by the county. And furthermore it does not appear that any part of the service was rendered after office hours, and we can therefore safely assume that the service was rendered on county time.

The significant fact appears in the testimony that an additional force of deputies was employed and paid by the county for the performance of this very labor; at least these deputies were so employed' while the work was being done, and they did do some of the work.

It would otherwise be difficult to understand why Coshocton county with a tax duplicate of but thirty-five million dollars would employ two deputies, in addition to the treasurer himself and his chief deputy, to assist the treasurer in the comparatively idle months of July and August.

It is within the knowledge of all men that the treasurer’s office in these months is an exceedingly dull place. Taxpaying is supposed to be substan-. tially completed by the 20th of June. The only business worth while thereafter, until October 1st, is to make the semiannual settlement in connection with the county auditor and to discharge warrants issued by the auditor.

The testimony shows that for these two months Coshocton county paid the county treasurer and his chief deputy, Callahan, the full compensation due them, and in addition paid to Philip and Ina Stillinger the sum of $160. The testimony also shows that none other than these four persons worked at this particular job. The testimony further shows that both Ina and Philip Stillinger performed a portion of the labor of the preparation of the receipts, and that what they did not do was done by either the treasurer himself or his chief deputy.

The conclusion is irresistible that the object of the employment of the two additional deputies during these idle months was at least to assist in the performance of this duty. There is no other conceivable purpose for their employment.

It would appear that even in the absence of any statutory duty to prepare these particular receipts in advance of the time actually required for their delivery, the oath of office taken by the treasurer to faithfully administer the duties of his office would suggest the propriety of doing just what he did do.

The officer elected to serve the people .and adequately paid by them should not be content to do less than consider the convenience of the people he serves, especially when in addition to his own time then available there is furnished him additional help without expense to him.

There is another insurmountable objection to permitting the judgment below to stand. It would be sanctioning the receipt of compensation additional to that allowed by law, and would therefore be in violation of law. It would also be clearly contrary to public policy.

These services, so rendered were after all only in the line of his duty. Such services having been performed by the treasurer, although in advance of the time needful, were nevertheless but the discharge of a duty devolving on the treasurer, which Stillinger was when performing the services.

It is to be further suggested that while treasurers come and go, the office is a continuing one, and, so far as the mere performance of duty is concerned, the public takes no notice of the outgoing of the old and the incoming of the new official.

In this connection, the case of Buck v. City of Eureka, 109 Cal., 504, 520, presents some very wholesome doctrine, and, we think, appropriate to the present case:

“It is of the last importance that any and every public officer entering upon the discharge of his duties should know once and for all that, be the duties onerous or be they easy, the compensation for them must be that fixed by law, and that only. * * * [The law] does emphatically say that he shall not, under any circumstances, by use of the power of his office, by contract express or implied, fair or unfair, * * * obtain increased compensation for their, performance.”

Under the salary law of Ohio, the county treasurer, together with all other officials, is expressly forbidden under heavy penalty from receiving any compensation for his performance of duty in excess of that provided by law. If he is allowed to recover this judgment he will be doing indirectly the very thing forbidden by law. In spirit, this salary law forbids the receipt of extra compensation just as much from the public generally as from the county treasury. A recovery in this instance would clearly countenance the receipt of‘extra pay for public service, and while from one point of view, provided the fact that the treasurer had been already paid by the county be eliminated, it might be considered fair on the face of things, yet when carefully analyzed it would be found a violation of both the letter and spirit of the salary law. Looked at from the broad view, the retiring treasurer would be receiving double pay for the one service, and, therefore, notwithstanding Teale’s agreement to pay, the contract cannot be sanctioned, and the judgment must be reversed.

Judgment reversed.

Johnson, Wanamaker, Newman and Jones, JJ., concur.


author: Newman, J.

text:
    Haas et al. v. The Mutual Life Insurance Company of New York.

      Courts of appeals — Jurisdiction on appeal — Chancery cases from superior court of Cincinnati — Section 6, Article IV, Constitution, 1912.

    1. Under the provisions of Section 6, Article IV of the Constitution as amended September 3, 1912, conferring appellate jurisdiction upon the court of appeals, that court has appellate jurisdiction in the trial of all chancery cases, and the general assembly has no authority to limit its jurisdiction to appeals from the court of common pleas.
    2. A chancery case tried in the superior court of Cincinnati is appealable to the court of appeals of that district under the rules of procedure for appeals from the court of common pleas.
    (No. 15239
    Decided December 12, 1916.)
    Error to the Court of Appeals of Hamilton county.
    The facts are stated in the opinion.

      Messrs. Robertson & Buchwalter, for plaintiffs in error.

      Messrs. Stephens, Lincoln & Stephens, for defendant in error.
   Newman, J.

Plaintiffs in error brought an action in the superior court of Cincinnati in which they sought to have set aside a pretended cancellation or forfeiture of a certain policy of life insurance and asked judgment for the face value of the policy, less the amount of a certain loan thereon. The case was submitted to the court upon the pleadings and the evidence and,the court found on the issues joined in favor of defendant in error, and also that the equities of the case were with it. The petition of plaintiffs in error in the superior court was dismissed and judgment was rendered in favor of defendant in error for costs. An appeal was taken to the court of appeals and a motion to-dismiss the appeal was ■ sustained. Error is prosecuted to this court to reverse the judgment of the court of appeals.

The sole ground upon which the motion of the defendant in error to dismiss the appeal was predicated was that no right of appeal exists from the superior court of Cincinnati to the court of appeals. The court of appeals did not dismiss the appeal upon any consideration of the character of the action, but upon the one ground set out in the motion, and the only question we shall consider here is whether or not there is in chancery cases the right of appeal from the superior court of Cincinnati to the court of appeals.

The court of appeals in sustaining the motion to dismiss followed the case of Thompson, Admx., v. The Gesi Street Building Association, 13 O. C. C., 250, decided at the January, 1897, term of the circuit court of Hamilton county. Section 6, Article IV of the Constitution, at that time gave the circuit court such appellate jurisdiction as might be provided by law. In conformity to this constitutional provision what is now Section 12224, General Code, was enacted, which provided for an appeal from the judgments of the court of common pleas in certain cases, but made no provision whatsoever for an appeal from those of the superior court of Cincinnati. The general assembly at that time had authority to enact such a law.

But Section 6, Article IV of the Constitution, was amended September 3, 1912, and now reads in part as follows:

■ “The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law.”

It has been held by this court that the court of appeals now acquires its appellate jurisdiction directly from the constitution and that the general assembly has no power or authority to limit or increase that jurisdiction. (The Cincinnati Polyclinic v. Balch, 92 Ohio St., 415.) That court has jurisdiction on appeal in the trial of chancery cases; not only those on appeal from the court of common pleas but from all the courts within their respective districts. Consequently the court of appeals of Hamilton county has jurisdiction in the trial of a chancery case on appeal from the superior court of Cincinnati.

' Section 12224, which purports to vest the court of appeals with jurisdiction in the trial of cases on appeal, was held unconstitutional and void in the case of Wagner v. Armstrong et al., 93 Ohio St., 443. In the opinion in that case it is said that when that section attempted to enlarge the jurisdiction of the court of appeals on appeal, providing that all cases might be appealed wherein the right of a trial by jury did not exist, it contravened the jurisdiction fixed by the constitution, which limits it by way of appeal to chancery cases. This section of the code is likewise unconstitutional when it provides for an appeal from a judgment rendered by the court of common pleas only.

While the general assembly has no power to enlarge or limit the appellate jurisdiction conferred by the constitution upon the court of appeals, yet it may provide by law for the method of exercising that jurisdiction. (The Cincinnati Polyclinic v. Balch, supra.) It is true that no specific provision has been made as to procedure in case of an appeal from the superior court of Cincinnati, but the General Code does prescribe a method to be followed in the case of an appeal from the court of common pleas, and inasmuch as an appeal in chancery cases is not limited to the court of common pleas, we think that, by analogy, the provision as to procedure in the case of an appeal from that court should be applied to the superior court.

For the reasons we have given the judgment of the court of appeals is vacated and the cause is remanded to that court with direction to overrule the motion to dismiss the appeal.

Judgment vacated.

Nichols, C. J., Johnson, Donahue, Wanamaker, Jones and Matthias, JJ., concur.


author: By the Court.

text:
    Smedley v. The State of Ohio et al.

      Insolvency court of Hamilton county — Jurisdiction—■Divorce and alimony — Amended Section 1637, General Code (104 O. L., 179) — Divesting court of Jurisdiction — Order of contempt issued thereafter — Pending case — Section 26, General Code — Inability to comply with alimony order — Pleading and proof.

    (No. 15184
    Decided December 12, 1916.)
    Error to the Court of Appeals of Hamilton county.

      Mr. William R. Collins, for plaintiff in error.

      Mr. Charles S. Bell, for defendants in error.
   By the Court.

On December 21, 1910, a decree of divorce was entered in the court of insolvency of Hamilton county in favor of defendant in error, Anna Smedley, against plaintiff in error, Charles W. Smedley, and he was ordered to pay as alimony the sum of $10 per week beginning January 2, 1911. Thereafter, written charges of contempt were filed against him, and, at the hearing of said charges, upon his application the court of insolvency modified its order of December 21, 1910, and ordered that he pay to Anna Smedley the sum of $1,100 — $50 in cash October 4, 1915, $50 on November 1,1915, $50 on December 1, 1915, $50 on January 1, 1916, and $900 in installments of $5 per week commencing January 8, 1916 — and further ordered that upon the making of the payments as above provided plaintiff in error should be discharged and released from the payment of any further alimony to said Anna Smedley. This modified order was made by the; court of insolvency on the 22d day of October, 1915.

On December 16, 1915, written charges of contempt were filed in the court of insolvency, in which it was charged that under the modified order made October 22, 1915, there was due to Anna Smedley from plaintiff in error the sum of $95, and that by reason of his failure and neglect and refusal to pay the same plaintiff in error was guilty of contempt. A demurrer to these written charges was overruled, and plaintiff in error filed an answer in which he alleged that the amount of alimony fixed by the court in its modified order of October 22, 1915, was excessive and far beyond his ability to pay; that he had been unable because of lack of money to make the payments required by said order; and that he was not then able for want of money to comply with the order of the court. The matter was heard upon the written charges of contempt, the answer and the evidence, and the court found that plaintiff in error was in arrears in the sum of $95; that he had failed, neglected and refused to obey the order of the court made October 22, 1915, although fully able to comply therewith; and that he was guilty of contempt. He was ordered confined in the jail of Hamilton county until such time as he should purge himself of contempt by paying or causing to be paid the sum of $95, or until otherwise discharged by law. A motion-to set aside this judgment and order of commitment, and for a new trial, was submitted to the court and overruled. On error the judgment of the court of insolvency was affirmed by the court of appeals.

Counsel for plaintiff in error insists that the court of insolvency had no jurisdiction to make the order of October 22, 1915. He relies upon Section 1637, General Code, as amended 104 Ohio Laws, 179, which provides, among other things, that the court of insolvency of Ha'milton county shall not have jurisdiction in actions for divorce and alimony after December 31, 1914. The decree of divorce and original order of alimony in the case,-at bar was made in December, 1910. It is well settled that the jurisdiction of a court in an alimony case is continuing. Our holding is that it is a pending action within the meaning of Section 26, General Code. Under the authority, therefore, of Kelley, Judge, v. The State, ex rel. Gellner, 94 Ohio St., 331, the court of insolvency was authorized to make the order of October 22, 1915.

No reply was filed to the answer of plaintiff in error in the contempt proceeding and it is claimed by counsel that the answer must be taken to be true. It appears from the record that this cause went to trial, without objection, upon the evidence, as if the facts alleged in the answer had been denied. It is too late now to raise this question. (Woodward v. Sloan, 27 Ohio St., 592.) The duty of establishing his inability to comply with the order of the court of insolvency devolved upon plaintiff in error. The court of insolvency found that he was fully able to comply with the order. We have examined the record in this case and are of the opinion that such a finding was justified by the evidence.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    The State, ex rel. Sherwood, v. Hoffman, Judge.

      Remedies — Error in judgment or discretion of court — Mandamus does not lie to correct same, when — Personal rights — Divorce and alimony — Bond condition precedent to decree —Section ngpg-i, General Code.

    (No. 15251
    Decided December 12, 1916.)
    Error to the Court of Appeals of Hamilton county.

      Mr. Chas. A. Hopping, for plaintiff in error.

      Mr. John W. Weinig; Mr. Stanley Matthews and Mr. E. H. Matthews, for defendant in error.
   By the Court.

This is a proceeding in mandamus originating in the court of appeals of Hamilton county. A demurrer to the amended petition was sustained, and relator not desiring to plead further judgment was rendered againsj: him. He is here asking this court to reverse that judgment.

The relator had filed a petition for divorce in the court of common pleas of Hamilton county, in which he alleged that his wife had been guilty of extreme cruelty toward him. He asked, also, for an order granting to him the custody, care and control of their child. The wife filed an answer denying the allegations of the petition, and, in a cross-petition, charged extreme cruelty and gross neglect of duty on the part of the husband, and asked for a divorce and also an order granting to her the care and custody of the child. The case was heard upon the evidence before Charles W. Hoffman, Judge, present defendant in error, and he handed down a memorandum opinion as follows:

“In this case the court finds that the plaintiff is entitled to a decree of divorce on the ground of gross neglect of duty on the part of the defendant.
“The court makes no order as to the custody and control of the child of the parties hereto.
“It is the order of the court that the plaintiff, Peter V. Sherwood, pay into this court for the support and maintenance of said child the sum of Ten Dollars ($10) per week.
“It is further ordered that the decree for divorce be not entered on the record until the said Peter V. Sherwood, secure the payment of said Ten Dollars ($10) per week for the support and maintenance of said child by a bond of Fifteen Hundred Dollars ($1500) with good and sufficient sureties. The bond is ordered in pursuance of Section 11979-1 of the General Code of Ohio.”

Within a few days after this opinion was handed down the relator offered for entry therein a judgment for divorce, which was refused because the relator had not filed a bond in the sum of fifteen hundred dollars securing payment into court of the sum of ten. dollars per week for the support and maintenance of the child.

It is alleged in the petition for mandamus that having declined to make an order for the custody and control of the child the defendant in error was without warrant or authority in law to make an order for her support and maintenance; and that the child was a resident of the state of New York. It is further alleged that the order of defendant in error requiring that relator enter into a bond as a condition precedent to the entry of the judgment for divorce was in violation of the provisions of Section 16 of the Bill of Rights of the Constitution of the State of Ohio, and that Section 11979-1 is unconstitutional and without force or effect to warrant the withholding of the judgment from the records, and that the order requiring the bond is in violation of Section 1, Article XIY of the Constitution of the United States, for the reason that* it denies to relator the equal protection of the law.

The práyer of the petition was that a writ of mandamus issue to compel defendant in error to order that a judgment entry of divorce in consonance with his written opinion be made a part of the record without reference to his order requiring that bond be given by the relator.

Relator treats the memorandum opinion of defendant in error as though" it were an order. This opinion constituted no part of the record in the divorce proceeding. Assuming, for the purposes of this case, that it can be treated as a finding of the court,/the relator [then/is complaining that the portion of the finding requiring a bond to secure the payment of ten dollars per week for the support and maintenánce of the child, as a condition precedent to the entering of the decree of divorce, is erroneous. He is asking that the court disregard this portion and that a judgment entry of divorce be entered of record without reference to a bond. If the trial court erred in requiring a bond as a condition precedent to the entering of the decree of divorce, it was a mistake of judgment on its part. Relator in effect is asking in his petition in mandamus that the court require defendant in error to correct his judgment in the divorce case. The judgment or discretion of a court cannot be controlled by mandamus. We think the court of appeals was correct in sustaining the demurrer to the amended petition. /

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    Hornberger, Director of Public Service, v. The State, ex rel. Fischer.

      Civil service — Temporary appointment — Application of provisions of 103 Ohio Laws, 698 — Rule of commission abrogated by statute, when — Discharged appointee may maintain mandamus, when — Validity of discharge determined by law — In force at time of dismissal, when.

    1. The provisions of the civil service law, passed April 28, 1913 (103 Ohio Laws, 698), apply to a person who was in 1912 given a temporary appointment in the classified service in conformity to the law then in force and held such position January 1, 1914, when the later law became effective.'
    2. A rule' of the civil service commission, though authorized by statute, is abrogated by the repeal of such statute and the enactment of a law with which the rule is inconsistent.
    3. An order of discharge of such appointee, assigning as the only cause -of removal that the appointment was temporary and an eligible list had since become available, does not require the filing of any explanation by the appointee before he may maintain a proceeding in mandamus to test the validity of his attempted removal.
    4. The validity or invalidity of the discharge of such appointee is determined by the law in force at the time his dismissal is ordered and is not affected by the provisions of a civil service law passed subsequent to such discharge and subsequent to the institution of such action.
    (No. 15315
    Decided January 9, 1917.)

      Error to the Court of Appeals of Hamilton county.
    This action was instituted in the court of appeals of Hamilton county on November 11, 1914, by the relator, Gerhard Fischer, who there sought a writ of mandamus requiring his reinstatement to the position of machinist in the department of public service of the city of Cincinnati, from which he had been discharged by the order of the director of public service, November 9, 1914.
    The answer of the defendant, Charles F. Hornberger, conceded substantially all the facts stated in the amended petition. A demurrer thereto, filed by the relator, admitting as it does the additional facts, presents the question of the relator’s right to the relief sought under the state of facts disclosed by the pleadings, which briefly stated are:
    On May 16, 1912, in order to prevent the stoppage of public business, the mayor of the city of Cincinnati made a temporary appointment of relator to the position of machinist of the filtration plant in the department of public service in that city. Relator accepted the position and continued in the discharge of the duties thereof until November 9, 1914, the director of public service having notified relator of his discharge, stating as the sole and exclusive reason for such discharge the following, “for the reason he is a temporary appointee and civil service commission now has an eligible list,” and stating also that he might make and file his explanation with the director of public service. A copy of the order of discharge, and reasons therefor, was filed by the director of public service with the civil service commission on November 10, 1914, and the relator has not made or filed any explanation.
    The position to which the relator was appointed, at the. time of his appointment, was, and ever since has continued to. be and now is, in the classified service of that city. Subsequent to his appointment no examination of applicants for such position, either competitive or noncompetitive, was held by the civil service commission of that city until September 11, 1914, when an examination was held for machinists of the waterworks of the department of public service, which examination covered the position of the relator and many others in that department. The relator took and passed that competitive examination, ranking nineteenth on the eligible list produced by such examination. No opportunity has been afforded the relator to take a noncompetitive examination' for such position. November 6, 1914, as a result of the examination of September 11, 1914, an eligible list was made up by the civil service commission, and that is the list referred to in the letter notifying the relator of his discharge. On November 9, 1914, the director of public service selected from the three persons standing highest on such eligible list, theretofore certified by the civil service commission, a person other than the relator and attempted to appoint him to the position theretofore held by relator, and the director of public service has ever since refused to recognize the relator as an incumbent of such position, and has refused to permit him to perform any of the duties thereof.
    In March, 1912, the civil service commission of the city of Cincinnati duly adopted rules and regulations, among which is one reading as follows: “A temporary appointment to prevent the stoppage of public business or to meet extraordinary exigencies shall continue until such time as the commission can certify persons from an appropriate eligible list to fill the vacancy.”
    The court of appeals sustained the demurrer and rendered final judgment for the relator. Plaintiff in error now seeks a reversal of that judgment.

      Mr. Charles A. Groom, city solicitor, and Mr. Saul Zielonka, assistant city solicitor, for plaintiff in error.

      Messrs. Moulinier, Bettman & Hunt, for defendant in error.
   Matthias, J.

The question presented is whether the facts appearing in the pleadings entitle the relator to a reinstatement to the position from which he has been discharged. It is conceded that the appointment of the relator, May 16, 1912, was made pursuant to the provisions of Section 4488, General Code, which then provided: “To prevent the stoppage of public business or to meet extraordinary • exigencies, as provided in this title, the mayor may make temporary appointments.” That section was a part of the civil service law passed in 1908 (99 O. L., 562), and under the provisions of the rule adopted by the board the tenure of temporary appointees in positions in the classified service continued until an eligible list was available, unless previously removed for cause. The relator continued in his position until November 9, 1914, but in the meantime a new civil service law had been enacted, which became effective January 1, 1914.

The director of public service has acted upon the theory that the latter law in no wise affected the tenure of the relator and that the same therefore was necessarily terminated when there was an eligible list for the position. In accordance with that view, the discharge of the relator was ordered November 7, 1914, he having been notified that he was discharged “for the reason he is a temporary appointee and civil service commission now has an eligible list.”

There is no question .in this case of the validity or the regularity of relator’s appointment. He was concededly performing the duties of his position under a valid appointment when the 1913 civil service law (103 O. L., 698) became effective, and for some time thereafter. The first and foremost question therefore presented by the pleadings is whether the provisions of that law had any effect upon the tenure of office of the relator.

The provisions of the act pertinent to the present inquiry are substantially as follows: Incumbents of all offices and places in the competitive classified service, except those holding their positions under existing civil service laws, shall, whenever the commission require, be subject to a noncompetitive examination as a condition of continuing in the service, such noncompetitive examination to conform in character to those of the competitive service. Under these provisions of this act, all officers and employes in the classified service holding their positions under the then existing civil service laws should be deemed appointees. It was further required by its provisions that in case of discharge, the appointing officer should furnish the person discharged, whether appointed for a definite term or otherwise, a copy of the order of discharge, and reasons therefor, and afford him a reasonable time within which to make and file an explanation.

Those who were holding positions in the classified service on January 1,1914, were by these provisions arranged in two grades or classes, first, those who occupied such positions by reason of previous selection and appointment from an eligible list, who were to be deemed appointees under the provisions of that act and were continued in their respective positions without being required to undergo the ordeal of a further examination; second, those holding positions in the classified service who had been appointed under some provision of the law previously in force, which law had authorized appointment without requiring as a condition precedent the passing of a civil service examination.

Under the provisions of the new law, above referred to, those falling within the second class were to be afforded an opportunity to take a noncompetitive examination, which they were required to pass as a condition of continuing in the service. Persons coming within this class were, therefore, to be subject to dismissal only in the event they failed to pass such examination. All persons holding positions in the classified service were in one class or the other. Under the provisions of the law effective January 1, 1914, the relator was on that date an incumbent of a position in the classified service, who had not taken an examination, and therefore belonged to the class last named. It is to be observed that both classes were alike afforded civil service protection, the only distinction being that those of the latter class must pass a noncompetitive examination as a condition of continuance in the service, and would lose such protection if they failed to pass the examination when opportunity should be afforded them by the civil service commission to take it.

It is contended by counsel for defendant that the provisions of the civil service law effective January 1, 1914, cannot apply to the relator for the reason that his appointment was only a temporary one, made, as it was, because no eligible list was then at hand from which to make a selection, and that under the rule of the commission in force when the appointment was made it could continue only until an appropriate eligible list was certified, and when that list was available such appointment automatically terminated.

We think a, complete answer to this contention is found in the fact that when the new law went into effect the relator was still an incumbent of the position to which he had legally been appointed. Under the plain provisions of the law he had then only to pass the examination prescribed; and he took and passed the only examination held covering such position long prior to the issuance of the order for his discharge by the director of public service. That such examination was competitive cannot alter the relator’s standing in view of the requirement that competitive and noncompetitive examinations be of the same character; nor can the relator’s rights in the premises be affected by the terms of the rule adopted by the civil service commission in 1912, as urged by the defendant. That rule provides that temporary appointments shall continue only until an eligible list is available. It was based upon Section 4488, General Code, heretofore cited, and that section was expressly repealed by the act of 1913. Consequently the rule relied upon by the defendant, the terms of which are clearly inconsistent with the provisions of the later law, was thereby abrogated.

It is urged that relator should have filed his explanation with the civil service commission when he received notice of his discharge and a statement of the reasons therefor, and having failed to avail himself of the remedy thus provided he cannot secure redress by a proceeding in mandamus. But there was nothing for the relator to explain. His discharge was not ordered because of any failure, misconduct or delinquency on his part. No charge was made against him, consequently there wás nothing for the civil service commission to consider or determine. The only reason stated for relator’s discharge was that an eligible list was available, and the attempted discharge raised only the question as to the correctness of the interpretation of the law upon which the action of the director of public service was based. No answer or explanation which the relator could have filed would have authorized the civil service commission to determine that question. The law does not require the doing of a vain and useless thing.

It is further urged by the defendant that because of the provisions of the so-called Moore-Barnes law (106 Ohio Laws, 400), the relator not having passed a competitive examination prior to his appointment, and not having been in the service seven years next preceding January 1, 1915, is not entitled to the protection of the civil service law. That law was not passed until May 27, 1915, several months subsequent to the relator’s discharge and the institution of this action. It is quite obvious therefore that it cannot in any wise affect the issue in this case. It cannot deprive the relator of the right to have determined his status at the time of his attempted discharge, which was about ten months prior to the time the Moore-Barnes law became effective. He has substantially complied with every requirement of the law then in force and undgr its provisions was entitled to retain his position until discharged for cause, or by reason of a change in the law, rendering him ineligible for the position.

The judgment of the court of appeals is, therefore, affirmed.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Jones, Johnson and Donahue, JJ., concur.


author: Jones, J.

text:
    The State, ex rel. Landis, v. Board of Commissioners of Butler County et al.

      County commissioners — Employment of clerk — Section 2409, General Code — Not in conflict with Section 2, Article X, Constitution — Clerk not a county officer, when.

    1. The employment of a clerk by a board of county commissioners under Section 2409, General Code, is valid. Such appointee is not a county officer, and the code section, therefore, is not in conflict with Section 2, Article X of the State Constitution.
    2. An appointee, though his duties are specifically fixed by law, if such duties do not require the exercise of political or governmental functions as a part of the sovereignty of the state, but simply involve the exercise of clerical acts in recording the transactions of officers who are invested with such functions, is not such a public or county officer as contemplated by the State Constitution.
    (No. 15233
    Decided January 9, 1917.)
    Error to the Court of Appeals of Butler county.
    On October 16, 1915, the board of county commissioners of Butler county, Ohio, adopted a resolution reciting that it deemed it “necessary to have a clerk who can devote his entire time to the discharge of the duties of such position,” and that “commencing October 18, 1915, W. W. Crawford be and is hereby employed as Clerk of this Board at a salary of $125 per month, payable monthly. Such clerk shall perform the duties required by law and the board.”
    The action originated in the court of common pleas, and was instituted by Samuel C. Landis, as a taxpayer, seeking to enjoin the misapplication of public funds. On appeal to the court of appeals that court denied the relief sought. Whereupon plaintiff in error instituted his action in this court to reverse that judgment.

      Messrs. Andrews & Andrews, for plaintiff in error.

      Mr. W. C. Shepherd and Mr. Ben A. Bickley, prosecuting attorney, for defendants in error.
   Jones, J.

The statute under which the board of county commissioners acted is Section 2409, General Code, and reads as follows:

“If such board finds it necessary for the clerk to devote his entire time to the discharge of the duties of such position, it may appoint a clerk in place of the county auditor and such necessary assistants to such clerk as the board deems necessary. Such clerk shall perform the duties required by law and by the, board.”

The relator claims that this statute authorizing the appointment of a clerk is unconstitutional for the reason that it is in conflict with Section 2, Article X of the State Constitution, which provides as follows:

“County officers shall be elected * * * by the electors of each county in such manner, and for such term, not exceeding three years, as may be provided by law.”

It is claimed by the relator that, since the clerical duties imposed upon the clerk had formerly been part of the statutory and official duties of the auditor, the appointee of the board should be held to be a county officer, and, as such, under the terms of the foregoing section of the constitution, should be elected.

Is Crawford, the appointee of the board of commissioners, a county officer, and does the code section, supra, in providing for said appointment with the duties attached thereto, contravene the constitutional requirement that such an officer must be elected?

The usual criteria in determining whether a position is a public office are durability of tenure, oath, bond, emoluments, the independency of the functions exercised by the appointee, and the character of the duties imposed upon him. But it has been held by this court that while an oath, bond and compensation are usually elements in determining whether a position is a public office they are not always necessary. In the present case some of the indicia are lacking. The appointee is not required to give a bond or to take an oath, and neither by statute nor by the resolution of appointment was there a fixed tenure of employment. Crawford was employed for an indefinite period at a monthly salary of $125 per month. His position, therefore, was subject to the pleasure of the commissioners. The chief and most-decisive characteristic of a public office is determined by the quality of the duties with which the appointee is invested, and by the fact that such duties are conferred upon the appointee by law. If official duties are prescribed by statute, and their performance involves the exercise of continuing, independent, political or governmental functions, then the position is a public office and not an employment,

It is here insisted that as the duties cast upon the appointee of the board were public in their nature, and such as the county auditor in his ex-officio capacity was required by law to perform, they thus became official duties, transferred from the domain of a county officer to one designated as clerk by virtue of the code section referred to. It must be remembered, however, that these duties of the county auditor so transferred were merely clerical and involved the exercise of no function that could be construed as governmental. It is no longer an open question in this state that “to constitute a public office, * * * it is essential that certain independent public duties, a part of the sovereignty of the state, should be appointed to it by law.” State, ex rel. Attorney General, v. Jennings et al., 57 Ohio St., 415; State, ex rel. Armstrong, v. Holliday, Auditor, 61 Ohio St., 171; Palmer v. Zeigler, 76 Ohio St., 210, and State, ex rel., v. Brennan, 49 Ohio St., 33.

In all of these cases it is manifest that the functional powers imposed must be those which constitute a part of the sovereignty of the state. But as stated by Spear, C. J., in The State, ex rel. Hogan, Atty. Gen., etc. v. Hunt, 84 Ohio St., at page 149, without a satisfactory definition of what is the “sovereignty of the country” the term “office” is not adequately defined. If specific statutory and independent duties are imposed upon an appointee in relation to the exercise of the police powers of the state, if the appointee is invested with independent power in the disposition of public property or with power to incur financial obligations upon the part of the county or state, if he is empowered to act in those multitudinous cases involving business or political dealings between individuals and the public, wherein the latter must necessarily act through an official agency, then such functions are a part of the sovereignty of the state.

The duties cast upon Crawford, however, are not of that character. His employment is not durable in time. The board of county commissioners are the officials who are in fact clothed with the sovereign power of the state, and the duties of the clerk are incidental thereto and purely clerical. He is the amanuensis of the board. As the statute and resolution designate him, he is a “clerk” whose business it is to record its transactions. He has no police power, no power affecting public obligation, financial or otherwise,' and he does not represent the public in the slightest capacity in any transaction involving it and the individual.

It therefore follows that Crawford’s appointment as clerk was an employment, and not an appointment to a county office, and that Section 2409, General Code, is not in conflict with Sections 1 and 2 of Article X of the State Constitution. The. judgment of the court of appeals is affirmed.

Judgment affirmed.

* Nichols, C. J., Wanamaker, Newman, Matthias, Johnson and Donahue, JJ., concur.


author: Johnson, J.

text:
    Marleau v. Marleau.

      Alimony — Equity powers of court — Statutory restrictions — Appeal to court of appeals.

    A proceeding for alimony does not invoke the equity powers of the court but is controlled by statute. The court is only authorized to exercise such; power as the statute expressly gives, and such as is necessary to make its orders and decrees effective.
    (No. 15176
    Decided January 9, 1917.)
    Error to the Court of Appeals of Lucas county.
    This was a proceeding brought by the defendant in error, Josephine Marleau, in the common pleas court of Lucas. The petition of the plaintiff below prayed for alimony against the defendant, Dolphus J. Marleau, on the statutory grounds set forth in detail in the petition. The plaintiff prayed that the defendant be enjoined from disposing of or incumbering any of his property during the pendency of the action, on the ground that he was about to do so for the purpose of defeating her in obtaining alimony. She attached certain interrogatories to her petition and prayed that defendant be required to answer them under oath, and for such other relief as might be proper.
    The defendant in his answer denied the allegations of the petition which stated grounds for the allowance of alimony.
    In a cross-petition filed by him the defendant alleged that certain property which stood in the plaintiff’s name was paid for by him and that it equitably belonged to him. The cross-petition also contained allegations against the plaintiff as ground for divorce, and prayed that the defendant might be divorced from the plaintiff and the plaintiff be barred from all rights in the defendant’s property, and for such other relief as is just.
    The reply of the plaintiff denied the allegations of the cross-petition upon which the prayer for divorce was based, and alleged that the plaintiff was the owner of the property in question, and prayed as in her petition.
    The court of common pleas found in favor of the plaintiff on the issue as to her right to alimony, and decreed that the defendant pay to the plaintiff, in installments, a sum named. The court also ordered that so long as the decree was complied with by the defendant the plaintiff be “hereby enjoined from enforcing, collecting, assigning or negotiating or attempting to enforce, collect, assign or negotiate the following described notes now held by the plaintiff;” and that on payment of the sum allowed as alimony the notes be cancelled and surrendered by the plaintiff.
    The decree also contained an order with reference to the property referred to in the cross-petition.
    On appeal to the court of appeals that court on the motion of the plaintiff dismissed the appeal on the ground that the court was without jurisdiction to entertain the appeal.

      Messrs. Smith, Beckwith & Ohlinger, for plaintiff in error.

      Messrs. Geer & Lane and Mr. Joseph A. Eger, for defendant in error.
   Johnson, J.

Since the amendment to Section 6 of Article IV of the Constitution the court of appeals has only such jurisdiction as is conferred by that section. Differing from the provisions of that section concerning the jurisdiction of the circuit court before the amendment, there is now no provision for “such appellate jurisdiction as may be provided by law.” Any statute which purports to confer jurisdiction is ineffective.

It is insisted that the case here under consideration is a chancery case, and, therefore, appealable under the provisions of the amendment referred to. The petition contained the necessary allegations to entitle plaintiff to a judgment for alimony, and a prayer for such judgment. Actions for divorce .and alimony were in England originally within the jurisdiction of the ecclesiastical courts, but in this state that jurisdiction has been conferred by and limited to the provisions of statutes:

In DeWitt v. DeWitt, 67 Ohio St., 340, 350, the subject is discussed, and it is declared to be “satisfactorily shown that the court in allowing alimony does not exercise general equity powers, but is controlled by the statute, and is authorized to exercise such power as that expressly gives, and such as is necessary to make effective its orders and decrees thus made.” But it is urged that the equity jurisdiction of the court was invoked by the parties touching the property referred to in the pleadings. The allegations concerning the property which are contained in the petition and in the amended answer and cross-petition, and the prayer invoked concerning it in the pleadings, are authorized'by the provisions of the Code, which are included in the chapter, Divorce and Alimony, Section 11996 et seq., General Code.

Those allegations do not in any wise change the nature of the action. The interlocutory as well as the final order that may be made touching the subjects referred to are purely ancillary to the final order that may be made on the petition, or on the cross-petition, for alimony or divorce.

It was held in Raymond v. The T., St. L. & K. C. Rd. Co. et at., 57 Ohio St., 271, that a petition filed by one out of possession of real estate, which contained the necessary allegations to entitle plaintiff to recover the real estate, and a prayer for possession, stated a case at law, notwithstanding the petition also contained allegations of threatened irreparable damage, as ground for relief by perpetual injunction, and of a dispute as to boundary lines, as a ground for action by the court in settlement of such dispute, and of a dispute as to title, as a ground for asking that plaintiff’s title be quieted. It was also held in that case that the nature of such action was not changed by an answer which pleaded an estoppel merely as an equitable defense. The court say, at page 287: “All other relief sought is ancillary to this; it is relief which, if a proper case is made by the' evidence, may follow, but cannot precede, judgment of possession. * * * That settled in favor of the plaintiff, all other claims would follow and be determined as matters of relief in aid of the recovery, while, if settled against the plaintiff, his whole contention would fail.”

It is also provided by Section 11987, General Code, which is included in the chapter with reference to divorce and alimony proceedings, that the court shall make such order for the disposition, care and maintenance of the children, if any, as is just. This is also purely incidental to the statutory action, and the order referred to will depend upon the action of the court concerning the original cause of action.

We think it clear that this was simply a proceeding for alimony and that the court of appeals correctly held that it was not appealable.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Donahue, JJ., concur.