
    The State ex rel. Wilcox v. Bauder.
    TTuder section 11 of the act of 1876 (73 Ohio L. 127, 131), relating to the fees of officers, the sheriff is entitled to compensation out of the county-treasury for serving subpenas for witnesses to appear before the grand jury, and section 12 of -the same act has no application in such case.
    Mandamus.
    The facts disclosed in the petition are, that, on October 22, 1878, the relator presented to Bauder, as such auditor, an itemized bill, properly certified, for services rendered by the relator, as sheriff of Cuyahoga county, ■during the years 1877 and 1878, amounting to $1,046.23, in .■serving and returning subpenas for persons therein named to appear before grand juries of that county, and demanded .a warrant on the treasurer for that amount. The auditor, admitting that the services were performed, that they were worth the amount claimed, that the costs are taxed in conformity to the statute, and that the relator has received no -compensation therefor, declined to issue the warrant solely on the ground that, as matter of law, the fees could not be paid from the county treasury, except under section 12 of the act -of 1876 (73 Ohio L. 127), relating to the fees of officers.
    
      8. M. Eddy, and E. J. Blandin, for the relator.
   By the Court.

In Kyle v. The Commissioners of Greene County, 26 Ohio St. 46, in giving construction to the stattites then in force, relating to the fees of sheriffs, this court held that for services rendered by that officer in serving and returning subpenas for witnesses to testify before a grand jury, he was not entitled to any compensation except as allowed under, and subject to the limitation in the act of 1867 (S. & S. 366, § 14). The ground of that decision was that such services were not then “ particularly provided for,” within the meaning of that act, and hence could only be paid for in accordance with that act, under which the payment of fees there provided for could not exceed three hundred dollars.

The act of 1876 (73 Ohio L. 127), by which the statutes referred to in that case were repealed, contains these provisions :

“Sec. 11. That the fees and compensation of sheriffs shall be as follows : .... For serving and returning-a subpen a for each person named therein to appear before the grand jury, twelve and a half cents, to be paid by the •county upon the certificate of the clerk.

“ Seo. 12. That the court of common pleas in each county, shall make an allowance of not more than three hundred dollars per annum for the sheriff, for services where the state fails to convict, or the defendants prove insolvent, and for other services not particularly provided for, to be paid in the manner pointed out in the act to which this is supplementary.”

We think the legislature, by the words quoted from section 11, intended to change the law in force when Kyle v. Commissioners was decided, as to compensation for serving such subpenas. The sheriff, under the act of 1876, is to be paid for that particular service out of the county treasury, without regard to the provisions of section 12, which have no application to such a case.

Peremptory mandamus awarded.  