Licking Circuit Court.

from a partnership, was all competent. That the court charged the law as laid down by our Supreme Court and properly interpreted the statutes, and that there is no error in this regard.

Ordinarily, of course, when a party enters into a gaming contract, in violation of the laws of the state, and stakes his fate on the doctrine of chances, and loses, and brings an action because he had lost (which, of course, he would not have done if he had won), it does not present a state of facts that comes to the court with any particular favor. But this is not any unmanly, puerile plea by this man. He simply put his money in there, and they have it. He is here asking that he get back his money that they have, and which he paid them. The court is of opinion that there is no prejudicial error in this record, and the judgment is affirmed.

COUNTY OFFICERS-CONSTITUTIONAL LAW.

[Pickaway Circuit Court, May Term, 1901.]

Sibley, Cherrington and Jones, JJ.

STATE EX Rel. Guilbert v. YATES, AUDITOR.

1. MANDAMUS-PARTIES-SUIT INVOLVing Law as to County Officers. In quo warranto, Sec. 6767, Rev. Stat., permits any person claiming to be entitled to the same franchise or office to be a party to the proceeding, but there is no such provision in mandamus. Hence, in a proceeding in mandamus, involving the constitutionality of an act relating to compensation of county officers, brought by the auditor of state as relator against a county auditor alone under Secs. 166 and 1334, Rev. Stat., the probate judge and clerk of courts are not necessary or proper parties, their rights not being barred by any judgment rendered therein.

2. ACT RELATING TO PICKAway County Officers Valid.

The duties of the various county officers are of such a character that the citizens of every county of the state have an interest in them and the laws relating thereto should be of a general nature, but laws relating to the compensation of such officials are matters of local interest. Therefore, the act of April 22, 1896, 92 O. L. 597, as amended March 29, 1898, 93 O. L., 507, prescribing and fixing the compensation of the county officials of Pickaway county does not contravene the provisions of the constitution requiring all laws of a general nature to have uniform operation throughout the state.

3. DOES NOT VIOLATE CONSTITUTIONAL TAXATION PROVISIONS.

The Pickaway county law, 92 O. L., 597, in providing that the excess of fees collected over and above the compensation to be paid the various officials, shall go into the county treasury to the credit of the general county fund, is not in violation of the constitutional provisions relating to taxation, the object of the act not being taxation for the purposes of general revenue, but to reduce the expense of official service to the public.

4. CONSTITUTIONAL PROVISIONS NOT DEFEATED BY OTHER SECTIONS.

The purpose of the Pickaway county act, 92 O. L., 597, is compensation of its county officials and notwithstanding certain of its features may be unconstitutional, the act will not be declared invalid where the general scheme of the act can be adopted without the questionable features, and especially where such features are not required to be passed upon.

J. M. Sheets, Attorney General; J. P. Bradbury and F. S. Monnett, for relator.

1. F. Synder, prosecuting attorney, for defendant.

State v. Yates

JONES, J. (Orally.)

In this case counsel for the probate judge and clerk of courts, respectively, came into court asking, by motion, that each of these county officers be made parties to this suit. At the time of the argument of the case by counsel representing these two officials, we felt disinclined to allow the motion to be granted, and we have not now changed our opinion. We do not believe that in determining the issues involved in this case, that the probate judge and clerk of court are proper or necessary parties to the determination of this action. A judgment rendered in this case does not necessarily bar any right either of the county officials may have. In such special proceeding as quo warranto, there is a special statute (Sec. 6767, Rev. Stat.), allowing any person claiming to be entitled to the same franchise or office to be made a party to the proceeding, but in a case of this kind we do not think either of the officers are entitled to be made parties here, and we deny the motion at this time. The motion is overruled.

In this case the relator, as auditor of the state of Ohio, has invoked the original jurisdiction of this court in mandamus, under the provisions of Secs. 166 and 1334, Rev. Stat.

Section 166, Rev. Stat., provides that the auditor of state," shall from time to time prepare and transmit to the auditors of the several counties in the state such forms of returns to be made by them to his office, and such instructions upon any subject affecting the state finances, or the construction of any statute, the execution of which devolves in part upon county auditors and which affects the interests of the state," and so on.

Section 1334, Rev. Stat., provides, that the auditors of the several counties in the state shall make returns to the county treasurer:

"Each county treasurer, recorder, sheriff, prosecuting attorney, probate judge, commissioner, and clerk of the court of common pleas of this state shall make returns, under oath, to the county auditor of their respective counties, on the first Monday of September of each year, of the amount of fees and moneys received by them, or due them during the year next preceding the time of making such return."

Under the provisions of the two sections of the Revised Statutes as they now stand, this proceeding in mandamus was filed. The relator has embodied in the petition a copy of a letter forwarded to the auditor of Pickaway county by the auditor of state, demanding that these two sections of the statute be complied with. The answer of the auditor of Pickaway county has been incorporated, in which he refuses to comply with Sec. 1334, Rev. Stat., basing the right of his refusal upon a special local law, which was passed by the general assembly, April, 1896, and incorporated in 92 O. L., 597.

The relator after setting forth the refusal of the county auditor, proceeds in his petition to say that the ground of the refusal to obey the instructions of the relator, are based upon an act relating to the duties and compensation of couty officers in Pickaway county, passed April 22, 1896, and the amendment thereto, and upon no other ground.

The relator says that the act is unconstitutional and wholly void, for the reason that the act contravenes Art. 2, Sec. 26 of the constitution of Ohio, in that the subject matter regulating the fees and salaries of auditors is of a general nature and should have uniform operation

Pickaway Circuit Court.

throughout the state; and that it is void and of no effect because it contravenes Art. 10, Sec. 5, Art. 12, Sec. 2 and Art. 12, Sec. 3 of the constitution of this state.

The relator prays that a writ of mandamus may issue, commanding the defendant, as auditor of Pickaway county, to proceed according to law and collect for his fees, compensation and salary, those fees prescribed under the general statutes, and prays further, that he cease to draw from the treasury of the county any salary, fees, compensation or perquisites, provided for in the act passed April 22, 1896, and amended March 28, 1898, 93 O. L., 507, and to treat these two acts as nullities and observe the forms prescribed by the relator as auditor of state.

To that petition a demurrer has been filed in which is incorporated a waiver of summons in the cause-a waiver of service and order of allowance of an alternative writ of mandamus, and defendant acknowledges the receipt of a copy of the petition, enters his appearance herein, and files a general demurrer to this petition. The issues are then raised upon the averments in the petition, and the questions submitted to the court are, whether or not the act of 1896, known as the Pickaway county salary law and the amendment thereto, in 1898, are constitutional.

That act provides in substance, that certain county officials of Pickaway county shall receive stated salaries, sett ng 1orth the salaries of the several county officers in Pickaway county in section 1. The act comprises thirteen sections, and without at this time calling special attention to the various sections, I will advert to them as I proceed in the discussion of this case.

It seems that heretofore, in Pearson v. Stephens, 56 Ohio St., 126 (46 N. E. Rep., 511), this same matter came up before the Supreme Court of Ohio, and it was there decided by a divided court that the act in ques tion was constitutional.

While it has been claimed in the petition in this case that this act contravenes several sections of the constitution of Ohio, it is strenu ously urged that it especially contravenes one, viz.: the section which provides that all laws of this character shall be of a general nature and of uniform operation throughout the state.

The case of Pearson v. Stephens, supra, related to an act that was passed the day before the Pickaway county salary law was passed, viz.: the Miami county salary act. Upon an examination of these two laws I will state at the outset, that there is but little practical difference between the two. The Miami county law is found in the same volume (92 O. L., 567), and was passed April 21, 1896, and on the day following. the law in question for Pickaway county was enacted. There is but very little difference between the various sections of the Miami county law and the Pickaway county law, so that any decision, we think, made by this court, which is adverse to the decision as reported in Pearson v Stephens, supra, will be practically an overruling by this court of the decision of the Supreme Court.

Counsel for the relator in this case claim that the question of the constitutionality of acts of this kind was seriously doubted by the Supreme Court of Ohio; that the principle was never argued fully in other cases passed upon before, and that the cases, upon examination, will show that fact. They claim that the first inception of this doctrine in Ohio jurisprudence, was made in Cricket v. State, 18 Ohio St., 22, the opinion being rendered by Judge White, and whose dictum wa adopted and reported in State v. Judges, 21 Ohio St., 1; that the

State v. Yates.

principle involved was not fully discussed or passed upon in those cases; and that, in the decision in the Pearson v. Stephens, supra, the court conceded that the matter was open to doubt, and finally divided upon the question of the constitutionality of such laws.

Now we have come to the conclusion from the various decisions in this state, that the principles involved in this case were discussed, adjudicated and passed upon, at least as early as State v. Judges, supra. That was a case of the state on the relation of attorney general against the judges. And we think the same principles were also passed upon and adjudicated. State v. Shearer, 46 Ohio St., 275 [20 N. E. Rep., 335]; Hart v. Murray, 48 Ohio St., 605 [29 N. E. Rep., 576]; and Pearson v. Stephens, supra.

The main claim of counsel for the relator in this case is, that the act of April 22, 1896, is unconstitutional because it relates to matters wholly of a general nature, and, for that reason, should have uniformity of operation all over the state of Ohio. It is said that the duties of the various county officers are of such a character that the citizens of every county of the state have an interest in them; that they have an interest in the character and efficiency of the services of the sheriff of Pickaway county, of the recorder, of the probate judge who issues licenses, and of various other county officers, and that for that reason, the duties of the county officers having a relation to the citizens of the state of Ohio, are of such a character that the laws relating thereto should be of a general nature. I think possibly that point may be conceded. But coming down to the special act in question. This does not in any way relate to the duties of county officials of this state, or, in this case, of the county officials of Pickaway county. It relates merely to the compensation those officers shall receive; and as to the question whether or not the compensation is a matter of local interest or general interest, we think that the opinions of the judges in the various cases reported, to which I have referred, are convincing.

Now it is also claimed, in addition to this, that the Pickaway county law having provided that after the fees and compensation of the county officials are paid, the excess shall go into the county treasury, and in that way it becomes a tax, and that taxation can only be levied on the general duplicate.

That question was passed in State v. Judges, supra. In that case the fifth proposition of the syllabus is as follows:

"The provision of the act that, in case of a surplus accumulating after paying the compensation of the officers and other expenses of the offices, such surplus may be transferred to the general county fund does not render the act invalid."

And in the second: "The object of these acts is not taxation for the purposes of general revenue, but to limit and provide for the payment of the compensation of the officers named, from the earnings of their respective offices, and to reduce the expense of official service to the public."

This decision was rendered in 1871, and from that time until the present it has never been questioned, unless it can be said to be called into question by the dissenting opinion of the two judges in Pearson v. Stephens, supra.

While the question was not up before the court in Cricket v. State, supra, and while it may be said that what Judge White said was mere dictum, it will be observed that in State v. Judges, supra, the same judge

Pickaway Circuit Court.

rendered the opinion in the later case, and while it might have been a dictum in the first case, it became law in Ohio when reported in the latter case. The court was composed at that time of Scott, Welch, Day, White and McIlvaine, judges of repute and eminence in the state. I refer to this fact because it is argued that the circuit court of this circuit can question the constitutionality of these statutes.

And later, in 1889, when an entirely new court occupied the bench composed of Owen, Dickman, Minshall, Spear and Williams, they discussed this question in State v. Shearer, supra, although it involved, in that case, the right to form a special school district. They discussed the main features involved in this case, and they approved the case in State v. Judge, supra, and McGill v. State, 34 Ohio St., 228; and in that case, referring to the suit against the judges, Judge Spear, delivering the opinion, said:

"The purpose of the act was to limit the compensation of the county treasurer, auditor, recorder, sheriff, probate judge and clerk of the county of Hamilton, and to have fixed by the judges of the court of common pleas of that county, the compensation of all deputies, clerks, etc, employed by those officers. The matter of fees to be paid county officers had been, long before, made the subject of a general statute which fixed fees for those officers throughout the state, and the subject was clearly a general one, yet this court held that the act in question was not a law of a general nature, but was intended to provide for a condition of things in its nature local to that county."

Now, then, why cannot the act be merely local to the county as to the compensation of the county officers? But it has been insisted that it cannot be local for the reason that the citizens of the state have an interest, are each interested that the county officials should be efficient, and receive proper salaries. But it has been held in Pearson v. Stephens, supra (Judge Bradbury, delivering the opinion), that the conditions are presumed to exist which the law requires. We think the case in State v. Shearer, supra, pertinent; also McGill v. State, supra, where the court reviewing the act prescribed for selecting juries in Cuyahoga county, said: "It was not doubted that the matter of the selection of juries was a general subject in which the people of the state at large were interested, and that, since the organization of the state, it had been provided for by general laws, so that the law which provided a special mode of selecting juries in that county, was one treating of a general subject already embraced in general laws, making provisions applicable to all counties of the state, yet this court held that the act was not a law of a general nature, requiring uniformity of operation throughout the state, but that it was designed to meet a special want in a particular county, and was not in conflict with the constitution."

"It follows that if the act in question in this case can, consistent with the subject matter and the provisions of the act itself, reasonably be regarded as one local in its nature, rather than general, the court's duty to maintain it is clear. Nay, unless it clearly appears that it is general in its nature, and not local, it must be sustained."

The Supreme Court, sitting in Hart v. Murray, supra, passed upon the validity of an act which provided that: "In all cities in this state of the second grade of the first class, each justice of the peace, for services rendered, shall receive in lieu of all fees, a salary of eighteen hundred dollars."