
    (Delaware Co., Court of Common Pleas.)
    April Term, August 1, 1898.
    THE STATE OF OHIO ex rel. AVIN FRANKLIN, et al., v. LYMAN P. LEWIS, as Auditor of Delaware County, Ohio.
    (1) Section 409, of the Revised Statutes as amended April 10th, 1888 (O. L., vol. 85, p, 171). wherein it provides that, the fish arid game commissioners of tne state shall appoint a fish and game warden in each county of the state, who shall hold his office for two years, give a bond to the state in the sum of two hundred dollars for the faithful performance of the duties of his office, and whose duties require him to police the territory of-his county and prosecute all violations of the fish and game laws, and which further provides that each county fish and game warden, on the recommendation of the fish and game commissioners, shall receive an annual salary of §300, payable quarterly out of the county treasury, and shall also receive such fees as are paid to the sheriff of his county for like services, is an attempt to create a county office and to provide for filling the same by appointment.
    (2) . The act, in that particular, is in conflict with sections 1 and 2 of article 10 of the constitution, and is, therefore, so far, void.
    (3) . Section 6966-2, Revised Statutes, creates an exception to section 7136, as to the authority of a magistrate to require the complainant in misdemeanor cases, when he is a private citizen, to secure the costs of the prosecution, and provides that in all prosecutions under the fish and game laws, whether the complainant is an officer or a private citizen, the costs shall be paid out of the county treasury.
   WICKHAM, J.

On the 24th day of November 1897, one of the relators in this case, James W. Roberts, as deputy fish and game warden for Delaware county, made and filed his-affidavit with the relator, Alvin Franklin, a justice of the peace in and for Genoa township, Delaware county, Ohio, charging one William Walker with having killed a squirrel in Delaware county, on the 30th day of August, 1897, willfully and unlawfully. A warrant was issued by the justice for Walker’s arrest, and he was arrested by Roberts, and taken before the justice for trial. On being arraigned he pleaded not guilty and demanded a jury trial. A jury was thereupon impanelled by the justice, witnesses were subpoenaed on behalf of the state and defendant, and on the 30th day of November the cause proceeded to trial. On the next day, December 1st, while the jury were out, and before they had agreed upon a verdict, the defendant withdrew his plea of guilty to the charge; the court thereupon sentenced the defendant to pay a fine of §25,00 and the costs of the prosecution, and ordered that the defendant stand committed to the county jail until fine and costs were paid. Ihe defendant made default in the payment of the fine and costs, and he was committed to the county jail by the justice.

On the 8th day of January, 1898, the justice duly certified the costs of the case to the respondent. Lyman P. Lewis, under Rev. Stat., sec. 6966 2, and requested the respondent to examine said certificate, and to issue his warrant to the county treasurer in favor of each of the relators to whom fees were due, and for the amount due to each, all of which the respondent refused to do, hence this suit for a peremptory writ of mandamus compelling the respondent to issue warrants to the several relators, justice, assistant fish and game warden, jurors and witnesses, for the amount-of such fees claimed by them.

The relator, James Roberts, who was the arresting officer, and who served the subpoenaes for the witnesses, and summoned the jurors in the case, claims such fees as are paid to sheriffs for like services, by virtue of his authority to act as assistant game warden for Delaware county, under his appointment made by T. E. Bailey, the fish and game warden for Delaware county, May 10th, 1897, for the term of two years.

It appears that the said T. F. Bailey is at the present time, and has bean the fish and game warden for Delaware county since. November 1st, 1896, be having received his appointment and commission on that date from the fish and game commissioners of the state.

The respondent denies the right of the relator, Roberts, to any of the fees claimed by him, for the reasons — first, that sec. 409 Rev. Stat., which provides for the appointment of fish and game wardens for the different counties of the state, by the fish and game commissioners, is in contravention of art. 10, secs. 1 and 2 of the constitution, in that it seeks to create a county office and to provide for the selection of the officer by appointment, and is therefore void. Second, that the said Bailey being without lawful authority, could confer none on Roberts. And, third, that Roberts being without official authority, can not lawfully claim fees as an officer. The last two propositions would necessarily follow,if the first is correct.

Is sec. 409, Rev. Stat. unconstitutional?

Article 10, sec.l, reads as follows: “The-general assembly shall provide by law for the election of such county and township, officers as may be necessary.”

“Sec. 2. County officers shall be elected on the first Tuesday after the first Monday in November, by the electors of each county, in such manner and for such term, not exceeding three years, as may be provided by law.”

Ihe inquiry raises two other questions. First, is a fish and game warden an officer? Second, is a county fish and game warden a county officer?

Sac. 409, Rev. Stat.. provides, * * * “The commissioners shall, at their annual meeting in January, or at any other time, appoint a fish and game' warden in each county in the state, who shall hold hisoffiQe for two years, unless sooner removed, and they shall also appoint a special warden for Lake Erie and for the Mercer county, Lewiston, Sixmile, Licking, Loraine and Sippo reservoirs of the state; each warden shall, before entering upon the discharge of his duties, give a bond to the state, with sureties to the satisfaction of the commissioners, in the sum of two hundred dollars, conditioned for the faithful performance of the duties of his office, which bond shall be deposited with the commissioners; it Shall be the duty of the wardens, under the general direction of the commissioners, to appoint such assistants as they may require to assist them in policing the territory, both land and water, of their respective counties and territories, arresting wherever found in the state all violators of the laws of the state enacted for the protection of fish and game. ” * * * “Each warden shall, annually, on or before the first day of December of each year, make a detailed report to the commissioners of their respective labors, number of arrests made, number of convictions, with such other suggestions as they may deem proper; the compensation of the county wardens shall be from fees, the same as are paid the sheriffs of their respective counties for similar services, to be paid from the fish and game fund, which shall be made up from fines arising from convictions for violations of the fish and game laws; and the county commissioners shall, upon the recommendation of the fish and game commissioners, allow to their county warden a salary not exceeding three hundred dollars per annum, which salary shall be paid quarterly, upon the warrant of the county auditor on the certificate of the fish and game commissioner out of the fish and game fund.”

In Meaehem on Public Officers, sec. 9, the author says, “Any man is a public officer who hath any duty concerning the public, and be is not the less a public officer where his authority is confined to narrow limits; for it is the duty of his office and the nature of that duty which make him an officer, and not the extent of his authority. ”

In the case of State ex rel. v. Brennan, 49 Ohio St., 33, the court say at page 37, “An office,speaking in general terms, is the right and duty to exercise an employment.” It is defined by the Century Dictionary as “a post the possession of which imposes certain duties upon'the possessor and eon fers authority for their performance;” by Cochran, in his Law Lexicon, “as a position •or appointment entailing certain rights and duties;” and by Bouvier as “a right to exercise a public function or employment, and to take the fees and emoluments belonging to it.” In King v. Burnell. Carthew, 478, it is said? “The word officium principally implies a duty, and in the next place the charge of such duty,and it is a rule that where one man hath to do with another man’s affairs against his will, and without his leave, that is an office, and he who is in it is an officer.” In U. S. v. Hartwell, 6 Wall., 385, it is said: “An office is a public station or employment, conferred by the appointment of government. The term embraces the idea of tenure, duration, emolument, and duties. A government office is different from a government contract. The latter, from its nature, is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties. A clerk appointed by a head of a department, under authority of law, holds an office.” And in Bradford v. Justices, 33 Ga., 332; “Where an individual has.been appointed or elected, in a manner prescribed by law, has designation or title given him by law,and exercises functions concerning the public, assigned to him by law, he must be regarded as a public officer. Whether be has been commissioned in form can make no difference; the commission is but evidence of title to the office.”

And in the next paragraph but one, “It is not important to define with exactness all the chracteristics of a public office, but it is safely within bounds to say that where, by virtue of law, a person is clothed, not as an incidental or transient authority, but for such time as denotes duration land continuance, with independent power to con trol the property of the public, or with public functions-to be exercised in the supposed interest of the people, the service to be compensated by a statod yearly salary, and the occupant having a designation or 'title, the position so created is a public office. And where such duties are wholly performed within the limits of a county, and for the people of that county, the salary to be paid by the disbursing officer of the county, from the funds of the county, the office is a county office, and, as one who is lawfully invested with an office is an officer, the person lawfully filling such place is necessarily a county officer.”

By section 409, a county fish and game warden is appointed for a definite period of time — two years. He is required to give a bond to the state, with sureties to the satisfaction of the commissioners in the sum of "two hundred dollars, for the faithful performance of his duties. He is required to police the territory of his county, and arrest all violators of the law for the protection of fish and game. He is required to make an annual report of the number of arrests made and number of convictions, and for such services an annual salary of three hundred dollars is allowed him to be paid out of the county treasury on the recommendation of the fish and game commissioner. And in addition to his salary he is entitled to such fees as are paid to the sheriffs of his county. He is denominated by the statutes a “councy warden” ; and it is also significant that the statute recognizes him as an officer, for he is required to give a bond “for the faithful performance of the duties of his office.”

His powers and duties are further defined by sections 6966-2 and 6968, which should be read in connection with section 409. By those sections, in all prosecutions for violation of the fish and game laws, he is clothed with authority greater than that of a constable or sheriff. He is required to file an affidavit when he believes there has been a violation of the fish and game laws, charging the supposed violator with the offense. He serves the warrant himself, and arrests and brings the accused before the court. He serves subpoenaeson witnesses and summons the jurors, and if the venire be exhausted - without obtaining the required number to All the panol, he may summon any of the bystanders to act as jurors. He taKes charge of the jury when they retire for deliberation. In case of a conviction and sentence to jail, he commits the prisoner to the jail of the ‘ county the same as the sheriff of the county. By sections 6966-2 and 6968 he is a “fish and game warden.”

From this enumeration of the powers and duties of a county fish and game warden, it is clear under the authorities quoted that he is a public officer, and, in his jurisdiction, he is clothed with the right and corresponding duty to execute a public trust in the supposed interest of the people.

The statute (sec. 409) provides for the appointment of a fish and game warden for each county of the state, and requires them to police their respective counties. It gives each warden such fees as are received by the sheriff of his county. From these provisions it is obvious that the legislative intent was not to require county fish and game wardens to go outside the limits of their respective counties to prosecute violations of the fish and game laws. And it seems this is the construction placed upon it by the fish and game commissioners, for the commission of T. E. Bailey shows that he was appointed “fish and game warden for Delaware county.”

It is not without some hesitancy that we hold the act in question unconstitutional. It is a matter of great delicacy and responsibility for courts to declare acts of the legislature unconstitutional. But it is the prerogative of the judiciary to pass upon the constitutionality of the acts of the legislature whenever such questions are raised in cases pending before them ; and if, in their .judgment, such acts contravene the limitations imposed by the fundamental law, it is their duty to so hold, and to declare them null and void, however strong may be their sentiments of respect for that branch of the state government which creates the acts, and without regard to the results that may follow.

We hold, therefore, that section 409 Rev. Stat. seeks to create' a punlic office, and to provide for filling the office by appointment; that such office is a county office, properly designated “County Fish and Game Warden”, and that therein the section is in contravention of article 10, sections 1 nd 2 of the constitution, and is for that reason, so far, void.

It follows that the relator Roberts is not entitled to any fees claimed by him.

It is further contended by counsel for respondent that the auditor is required, under secs. 6966-, to issue his warrant for costs, only in cases prosecuted by officers authorized or required by statute to prosecute the same. That in all cases under the fish and game laws, prosecuted by persons other than such officers, sections 1307 and 1309 are applicable, the same as in any other case of misdemeanor; that in the case at bar, Roberts not being any such officer, sec. 6966-2 is not applicable, but the case comes under 1307 and 1309; and the question thus raised calls for a construction of that part of section 6966-2, which provides for the payment of costs.

The section reads: “But costs shall not be required to be advanced or paid by a person or an officer authorized or required by statute to prosecute such cases; and if the defendant be acquitted,or if he be convicted, and committed to jail m default of payment of fine and costs, the justice, mayor or police judge before whom the case was brought' shall certify such costs to the county auditor, who shall examine, and, if necessary, correct the account, and issue his warrant to the county treasurer in favor of the respective persons to whom cobís are due for the amount due to each ”

Counsel for respondent argues that, by fair implication, that part of the section I have just read, as I have already stated, provides that the costs shall be paid out of the county treasury, on the warrant of the auditor, only when the prosecution is by a person or an officer authorized or required by statute to prosecute such cases, and any other construction renders the first clause of the provision useless.

That if, in all cases, whether the complainant be an officer or a private individual, "the costs are to be paid out of the county treasury, on the warrant of the auditor, there could be no reason or sense in saying that the person oi officer commencing the prosecution shall not be required to advance or pay the costs; and the argument is not without apparent force.

But let us examine the language of the provision. It is not that the person or officer shall not be required to secure the costs, but “costs shall not be required to be advanced or paid” by him. The language of the statute must receive the construction, which gives to it its usual and ordinary meaning. “Advanced or paid” can not be read, “secured”. There can be no question as to the meaning of the words, “costs shall not be required to be advanced.” But the provision seems to be useless.

It must have been the intention of the legislature to establish a different rule from that already existing at the time of the passage of the act. We know of no law that ever required the prosecutor in a misdemeanor to advance the costs. In all misdemeanor cases, under section 7136, the magistrate could require the complainant, except officers in the discharge of tneir duty, to secure the costs, but not to advance hem.

Let us inquire into the purpose of the provision. If counsel for respondent l's right, the only purpose is to exempt from liability for costs, the persons and officers required by statute to prosecute violations of the fish and game laws. That any other rule would be unreasonable and unjust is plain. It would be a great hardship to impose the duty on a person to prosecute violations of the law, and at the same time subject him to the payment of costs in case the state should fail. But we do not think 'that the purpose of the statute is limited in its scope to the exception from liability for costs of persons or officers required to prosecute violators of the fish and game laws and thereby stimulating the officers to greater vigilance in the discharge of their duties.

The legislative intent was to make an exception to the rule as laid down in sec. 7136, and the purpose was for the better protection of fish and game. The object is to exempt all complainants, whether officers or private citizens, from liability for costs in prcseputions under the fish and game laws.New private citizens, unless they, feel especially aggrieved, will complain against another for the violation of the fish and game laws, if by doing so they subject themselves to the payment of costs on failure of the prosecution; but if the liablity for the payment of costs is removed, the desire to protect the fish and game is, generally, a sufficient inducement to a person having unrwledge of a violation of the law to complain against the offender.

Why should the county pay the costs in cases brought by an officer, and, in prosecutions by a private citizen, on failure of the prosecution, the complainant be responsible for them? We see no good reason for the distinction, but every reason why there should be no distinction under these statutes. In other misdemeanors the case is different. If a person has been assaulted and beaten, or had property stolen or destroyed, or been injured in any manner in his person or property, his suffering the private wrong is a sufficient incentive to cause him to complain against the wrong done, although he subjects himself to a judgment for the costs on a failure of the prosecution ; but men are not apt to involve themselves in litigation and incur liability for costs over the catching or killing of fish or game, the property of nobody.

James R. Lytle, for Relators.

George W. Carpenter, for Respondent.

Stringent laws have been passed and great expense incurred by the state for the protection of its fish and game; and it is with the view of procuring the strict enforcement of the law, that the legislature, as far as it could do so. removed all impediments tu the prosecution of violators of the laws.

This is the evident intent of the section under consideration, although, as often occurs in the statutes, the language used, in its expression and arrangement, is not a model of excellence.

We hold, that the witnesses and jurors are entitled to a writ as prayed, and for the amount as shown by the justice’s transcript; that the justice is entitled to wbat he claims less 83.20 which we find to ne unauthorized and illegal.

Several other questions were raised and argued by counsel, but our conclusion already reached made it unnecessary to consider them.

Writ allowed as indicated; respondent to pay costs.  