State ex rel. Guilbert v. Yates

• Decision Date: 24 June 1902
• Citation: 66 Ohio St. 546,64 N.E. 570
• Parties: STATE ex rel. GUILBERT, Auditor, v. YATES, Auditor.
• Court: Ohio Supreme Court

64 N.E. 570

66 Ohio St. 546

STATE ex rel. GUILBERT, Auditor, v. YATES, Auditor.

Supreme Court of Ohio.

June 24, 1902

Error to circuit court, Pickaway county.

Petition by the state, on the relation of W. D. Guilbert, auditor, for writ of mandamus against Benjamin F. Yates, auditor of Pickaway county. Judgment for defendant, and plaintiff brings error. Reversed.

A petition in mandamus was filed in the circuit court of Pickaway county, praying that a writ of mandamus may issue commanding the defendant, as auditor of Pickaway county, that he proceed according to law and collect for his fees compensation, and salary those provided for under the following sections of the Revised Statutes, to wit 1070-1078, 1365, 2775, 2774, 2785, 2888, 2908, 4903, 6909 7382, 7387, and that he cease to draw from the treasury any salary, fees, or compensation or perquisites provided for in the act passed April 22, 1896 (92 Ohio Laws, p. 597), and the act passed March 29, 1898 (93 Ohio Laws, p. 507), and to treat such acts as nullities, and to observe the forms prescribed by the auditor of state, and to observe the instructions and constructions of the general statutes of the state named, and to report to the auditor of state by certified statement of the amount of fees and moneys received or due the county treasurer, recorder, sheriff, prosecuting attorney, probate judge, commissioners, and clerk of the court of common pleas, etc. The judgment of the circuit court was in favor of the defendant in error.

Syllabus by the Court

1. County officers are not local officers, but are a part of the permanent organization of the government of the state, and the subject of compensation to county officers is not local in its nature, and an act of the general assembly upon that subject is a law of a general nature, which must operate uniformly throughout the state. Pearson v. Stephens, 46 N.E 511, 56 Ohio St. 126, overruled.

2. The ‘ act relating to the duties and compensation of certain county officers in Pickaway county,’ passed April 22, 1896 (92 Ohio Laws, p. 597), and the act amending sections 1, 2, and 5 thereof, passed March 29, 1898 (93 Ohio Laws, p. 507), are unconstitutional, being in conflict with the first clause of section 26, art. 2, of the constitution.

J. M. Sheets, Atty. Gen., J. P. Bradbury, and F. S. Monnett, for plaintiff in error.

Irvin F. Snyder and Charles Gerhardt, for defendant in error.

DAVIS, J. (after stating the facts).

These acts are undeniably special; and, to us at least, it seems almost as manifest that their subject-matter is of a general nature, and that neither of them contains the attributes of legitimate local legislation. They are special, because they are in terms restricted in their operation to Pickaway county. They are of a general nature, because the subject of legislation is a matter of general concern to the state, and to every county in the state, and to the inhabitants thereof. Kelley v. State, 6 Ohio St. 272. They are not legitimate local bills, because the subject-matter is not peculiar to the localities named, and it does not appear that there was any necessity for such legislation either in time, place, or circumstance. Having said this, we have said in substance all that needs to be said to dispose of this case, but in deference to the authority which is urged in support of the contention of the defendant in error we will be more explicit.

It should be premised that we do not feel bound by previous decisions of this court when they do not commend themselves to us by essential soundness; and this is especially so when constitutional limitations are involved. No amount of wrong adjudication can justify a practical abrogation of the constitution. We may well pause and consider carefully when we find our views to be in conflict with those entertained by our predecessors; but, if it be found that the conflict is honestly irreconcilable, there is but one course to take, and that is to follow our own convictions. The obligation of a judge is that he will support the constitution, and that he will faithfully and impartially discharge and perform all the duties incumbent on him as such judge, according to the best of his ability and understanding, and not according to the authority and understanding of some other person or persons, however great or however numerous. Almost the whole of the argument in favor of the validity of these statutes is grounded on the line of decisions beginning in Cricket v. State, 18 Ohio St. 9, 22, and culminating in Pearson v. Stephens, 56 Ohio St. 126, 46 N.E. 511. The initial case was an action against a county auditor and his sureties to recover money which it was alleged had been received as fees without authority of law. There had been no attempt at local legislation, and no statute was cited which was even claimed to be local in its operation. There were two general laws under review. Both of the distinguished counsel had been judges of this court, and it is not disparagement of the able men who then constituted the supreme court to say that either of the counsel was the peer in ability of any of them. Yet it was not even suggested in argument, so far as we can discover, nor was it involved in the case, that the compensation of a county officer was in its nature local. The eminent lawyer who represented the plaintiff in error assumed, and it does not seem to have been disputed, that the statutes then under consideration were general laws; but he contended that they were not uniformly operative throughout the state, and that they were therefore void. He said: ‘ The laws under consideration relate to counties and their organization, and to the compensation of an officer common to them all. I do not doubt that a salary might be provided for auditors graduated upon population; but I do deny that a part can be compensated with salaries and a part with fees, or that a part can be given one salary, and, under exactly the same conditions, the other part another. In other words, different regulations may be prescribed for different things, but no two regulations for the same thing. These acts do that very thing. They attempt to give a different compensation to auditors in counties having the same population and performing the same duties.’ This language clearly expresses the constitutional question which was presented, and we cannot help thinking that it was not fairly met by the court in that case. The question was put out of the case by the court's construction of the act of 1862. It was at this point that White, J., injected the famous dictum which became the point of departure from the constitution: ‘ And for myself I will say that it seems to me the amount of compensation to be attached to a local office is a question in its nature local, and that a law to regulate such compensation cannot properly be regarded as a law of a general nature.’ One false premise underlying this proposition-and it reappears in the opinion by the same judge in State v. Judges of Court of Common Pleas of First Judicial Dist., 21 Ohio St. 10, 11-is the assumption that a county office is a local office. County and township organization is provided for by article 10 of the constitution. The general assembly are therein required to provide by law for the election of such county and township officers as may be necessary. Can it properly be inferred from this that the general assembly may deem it necessary to provide for county and township officers in only one or more counties or townships? Manifestly not. The constitution contemplates county and township organization throughout the state, and by section 26, art. 2, it imposes on the general assembly the duty of making it uniform throughout the state. Such offices, therefore, are local only in the sense that the legislature has provided for their election by the people of the respective counties or townships, and that their duties are to a large extent circumscribed by the county or township boundaries. They are constituent parts of the scheme of permanent organization of the government of the state. As such the legislature is required by section 20 of article 2 to fix the compensation to be attached to the office. It was said by Scott, J., in Walker v. City of Cincinnati, 21 Ohio St. 50, 51, 8 Am.Rep. 24, that ‘ this clause cannot be regarded as comprehending more than such offices as may be created to aid in the permanent administration of the government.’ It cannot include merely local agencies of the government, for such agencies are merely adventitious and temporary, and compensation to them must be provided for with the occasion which calls for their creation. There does not seem, therefore, to be solid ground for Judge White's assumption that a county office is a local office, from which assumption he draws his conclusion that a law to regulate the compensation attached to a local office (i. e., a county office) is a local law. With just as much reason it may be argued that all laws relating to the filling of vacancies in county offices (section 27 of article 2 of the constitution) are local laws, from which it would follow that there may be as many ways of filling vacancies in county offices as there are counties in the state. If the theory propounded here is correct that these salary bills are constitutional as local laws, then there may be as many modes of compensating county officers as there are counties in the state, notwithstanding the provisions of the constitution, section 26, art. 2, which the framers of the constitution believed to be an effective safeguard against the evils of special legislation. To show that the danger to the state, which is spoken of above as a possibility, is likely soon to be an accomplished fact, a tabulated...