
    No. 864
    STATE ex STEPHENSON v. SMITH
    Ohio Appeals, 4th Dist., Adams Co.
    Decided Nov. 16, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    516. FEES AND COSTS. — 855. Office and Officers. — Where probate court has been combined with common pleas, common pleas judge becomes probate judge and is entitled to fees as provided in 5348-10a GC.
    In Mandamus
    Writ awarded.
    Will P. Stephenson, West Union, for State ex.
    W. P. Tucker, Pros. Atty., West Union, for Smith.
   FULL TEXT.

BY THE COURT.

Section 5348-10a GC. provides that for their services under the chapter of the code relating to inheritance taxes probate judges shall be allowed certain fees

“to be retained by them personally as compensation for the performance by them of the additional duties imposed on them by this chapter.”

In Adams County the probate court has been combined with the common pleas. The relator is the common pleas judge of that county and now seeks by writ of mandamus to compel the county auditor to allow him fees under the statute referred to. His petition has been demurred to.

The only question is whether the relator is a probate judge within the contemplation of the section. In the chapter of which the section is part frequent use is made of the words probate judge and unless in these instances there is meant to include the common pleas judges with probate powers there would be no sufficient machinery for the collection of inheritance taxes in those counties where the two courts are combined. In the particular section there is required to be taxed in the costs in inheritance tax proceedings the fee fixed for probate judges and no other disposition is fixed for the fee but that it shall.be retained by that officer. If the common pleas judge is not a probate judge within the intendment of the statute there would be either no costs assessed in such proceeding in counties where the courts are combined, or if assessed there would be no way to dispose of the fee when collected. We conclude that the words probate judge in one part of the chapter refer to the same officer as in other parts of the chapter and that wherever used they apply to the common pleas functioning as a probate judge.

No constitutional question has been argued or suggested. Queere: Does the allowance of a greater fee where tax is assessed than where one is not assessed violate the constitutional principle developed in the Tumey case ?

(Middleton and Mauck, JJ., concur. Sayre, PJ., not sitting.)  