Godfrey v. O'brien
| Decision Date | 09 January 1917 |
| Docket Number | 15190 |
| Citation | 95 Ohio St. 166,115 N.E. 25 |
| Parties | State Ex Rel. Godfrey, A Taxpayer v. O'brien, Treasurer |
| Court | Ohio Supreme Court |
Taxation - Office and officers - Appointment or election - Section 1 Article X, Constitution - Compensation - Section 20, Article II, Constitution - Repeats and amendments - Section 16 Article II, Constitution - Assistant assessors and boards of revision-Acts of May 7 and 20, 1915 (106 O. L., 246 and 433) - Constitutional law.
County and township subdivisions are agencies of the state, and constituent parts of the plan of permanent organization of state government.
Where the state seeks to exercise its sovereign power through the agencies of county or township officers, the statute creating the office and providing for the selection and compensation of the incumbent, must conform to the constitutional provisions with reference to such officers.
A provision in an act of the general assembly of this state for the appointment instead of the election of a county or township officer, is in violation of Section 1 of Article X of the Constitution of Ohio and void.
The general assembly of Ohio cannot delegate the authority conferred upon it by Section 20 of Article 11 of the Constitution, to fix the compensation of officers.
The provisions of an act of the general assembly purporting to confer authority upon the county auditor, or the board of county commissioners, to fix the salary of county or township officers within certain limits, without providing a uniform rule for determining such compensation in the several counties of the state, are in conflict with Section 26 of Article II of the Constitution of Ohio, and void.
The provision of Section 16 of Article 11 of the Constitution of Ohio, providing that no law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended, is mandatory. The inclusion, by reference, of the provisions of a repealed statute is in violation of this provision of the Constitution of Ohio and void.
The statute defining the duties, powers, liabilities and penalties imposed upon deputy assessors being repealed, the provisions of Section 17 of the act of the general assembly of Ohio, passed May 7, 1915 (106 O. L., 246), that the elected assessor, "shall perform all the duties, exercise all the powers and be subject to all the liabilities and penalties devolved, conferred or imposed by law upon the deputy assessor so appointed," are unconstitutional and void.
The act of May 20, 1915 (106 O. L., 433), entitled: "An act to amend sections 31, 32 and 39 of the act entitled: 'An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto,'" is unconstitutional and void.
Sections 3, 18, 23, 31, 32, 35, 39, and all parts of other sections relating to the appointment, duties and authority of assistant township assessors and county boards of revision, of the act of the general assembly of Ohio, passed May 7, 1915 (106 0. L., 246), entitled: "An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto," are unconstitutional and void.
On the 7th day of January, 1916, the state of Ohio upon relation of Willis R. Godfrey, taxpayer, filed an amended petition in the court of common pleas of Cuyahoga county, averring:
That relator is a resident, citizen and taxpayer of the county of Cuyahoga and brings suit on behalf of himself and all other taxpayers of Cuyahoga county; that the defendant, P. C. O'Brien, is the duly elected, qualified and acting county treasurer, and that John A. Zangerle is the duly elected, qualified and acting county auditor of Cuyahoga county.
That on the 7th day of May, 1915, the general assembly of Ohio passed an act entitled "An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto," which act was approved by the governor of Ohio on May 8, 1915, and filed in the office of the secretary of state at Columbus, Ohio, on the 11th day of May, A. IS. 1915, (1060. L., 246).
That Sections 31, 32 and 39 of said act were amended by an act of the general assembly of Ohio passed May 20,1915, which act was approved by the governor of Ohio on May 27,1915, and filed in the office of the secretary of state at Columbus, Ohio, on the 1st day of June, 1915, (106 O. L., 433).
That the defendant Zangerle, as auditor of Cuyahoga county, claims the right, under and in pur- suance of these acts, and threatens to, and unless restrained by the court will, incur expenses, employ clerical and other help, and create various debts and obligations in the name of Cuyahoga county, in exercising certain power and authority thereunder, specifically enumerated in the amended petition, which he Claims to be conferred upon him by these acts, and will issue his warrants upon the county treasurer for the payment of these expenses, and that the defendant O'Brien, as treasurer of Cuyahoga county, will, unless restrained by the court, honor the warrants, certificates and vouchers of the county auditor, issued in payment of the expenses enumerated.
That certain specified sections of these acts are unconstitutional and void, and that by reason of the unconstitutionality of the sections specified, and other sections of said act, the entire original act and the act amending Sections 31,32 and 39 thereof are unconstitutional and void.
The prayer of the petition is that defendant Zangerle be temporarily enjoined from incurring any of such expense, that defendant O'Brien, treasurer, be temporarily enjoined from honoring any warrant, certificate or voucher issued by the auditor in payment therefor, and that upon fin,, hearing the temporary restraining orders may b' made permanent and the relator allowed costs and reasonable attorney fees; and for such other and further relief as may be just and equitable.
To this amended petition the defendants filed a joint demurrer, which demurrer was sustained by the court, and the relator not desiring to plead further the petition was dismissed at costs of relator.
Error was prosecuted to this judgment in the court of appeals of Cuyahoga county, which court affirmed the judgment of the common pleas court, and this proceeding in error is brought to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming same.
Messrs. Hitchcock & Fackler; Messrs. Price, Alburn, Crum & Alburn and messrs. Spear, Mills, Knight & Godfrey, for plaintiff in error. Mr. Cyrus Locher, prosecuting attorney; Mr. Frederick W. Green, assistant prosecuting attorney; Mr. Edward C. Turner, attorney general; Mr. Clarence D. Laylin and Mr. Herbert C. Sherman, for defendants in error.
The demurrer to the amended petition presents the question of the constitutionality of a number of sections of the act of the general assembly passed May 7,1915 (106 O. L., 246), entitled "An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto," and the act of May 20, 1915(106 O. L., 433), Sections 31, 32 and 39 of the former act.
Perhaps the most important question presented by the record in this case is the question of the constitutionality of Section 18 of the original act and Sections 31, 32 and 39, as amended May 20, 1915.
Section 18 authorizes the county auditor, when he deems it necessary to enable an assessor to complete his work within the time prescribed, to appoint one or more assistant assessors for such ward, district, city, village or township.
Section 31 constitutes the county treasurer, prosecuting attorney, probate judge and the president of the board of county commissioners of each county, a county board for the appointment of three members of a county board of revision.
Section 32 authorizes this county board to appoint three competent persons who shall constitute the county board of revision.
Section 39 provides for the organization of the county boards of revision whose members are so appointed.
Section 1 of Article X of the Constitution of Ohio requires that "the general assembly shall provide, by law, for the election of such county and township officers as may be necessary."
If assistant township assessors are township officers and the members of county boards of revision are county officers, these sections are in clear conflict with this provision of the constitution requiring township and county officers to be elected.
An examination of the sections of this act purporting to define the duties of assistant township assessors and the duties of boards of revision leaves no possible doubt as to the official character of either. But the mere fact that they are officers does not necessarily make them township or county officers.
Section 17 provides for the election of a township assessor, and provides that he shall take and hold his office for the term of two years, from and after the first day of January following his election. It also provides that the assessor shall be a citizen, possessing the qualifications of an elector of the township.
Section 18 authorizes the county auditor to appoint an assistant assessor, who shall possess all the qualifications of an elected assessor, and, in the work assigned to him, perform all the duties and be subject to all the liabilities and penalties enjoined upon elected assessors by law. It would appear from this provision that an assistant assessor is entirely independent of the elected...
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