
    State ex rel Keyser v. Commissioners of Wayne County.
    
      Preference in public employment to soldiers — Act of March 8, 1896— Mandamus.
    
    The act of the legislature passed March 3, 1896 (52 Laws. 50), amending the aet of April 3, 1888, requiring a preference in public employment to be given honorably discharged soldiers, sailors and marines in the late rebellion, cannot be enforced by mandamus.
    (Decided November 16, 1897.)
    In Mandamus.
    The question is presented on a demurrer to the answer; but in fact arises on the sufficiency of the petition, which is searched by the demurrer to the answer. The object of the petition is to compel the defendants to employ the relator, or some other honorably discharged soldier of the late rebellion, as janitor of the court house, he the relator, being such a soldier, a resident of the county, and having all the requisite qualifications for such place. The statute relied on is the act of March 3, 1896 (92 Laws, 50), amending the act of April 3,1888, on the same subject. The amendment requires, “That in every public department, and all public departments in any municipal corporation, and upon all public works of the state of Ohio, honorably discharged Union soldiers, sailors and marines of the late rebellion, shall be preferred for appointment and employment,” the applicant to be a resident of the county in which the office or position is located for one year and possess the requisite qualifications. The petition states, and it is admitted, that the relator is an honorably discharged Union soldier of the late rebellion, that he has the requisite qualifications, that he has been a resident of the county for the requisite time, that he has made application for, the place, and that the defendants have refused to employ him or any other honorably discharged soldier, resident within the county. It is claimed that the board of county commissioners is not a public department, and that the act is unconstitutional.
    
      H. R. Smith; John R. McKinney and John McSweeney, for plaintiff in error.
    We are not asking that our relator be inducted by the action of the defendants exercising- judicial power into an office fixed by the Constitution of the state of Ohio; Offices named by the Constitution or the laws of ■ the state are ever open to the honorable endeavor of every male citizen within the state of Ohio and no act of the legislature can place one citizen above the other in competition for such public office. But we base our whole claim sustained by the courts of New York and Massachusetts that the position we aspire to in this petition is not a public office, but is a position or employment created by' the board of commissioners of Wayne county and created by them alone.
    The board of commissioners of Wayne county, Ohio, in creating the position and offering the employment to a janitor acted as a legislature unto themselves, and their fiat in the matter becomes as potent as a constitution. Brown v. Russell, 166 Mass., 14; 148 N. Y., 219; 150 N. Y., 444.
    We further contend, on behalf of the relator, that the words, “office, employment, position, and public department,” each have a separate meaning in the law, and that the word ‘‘office” is not a synonym in the laws of Ohio for either of the other words set out. If our statute provided that a veteran soldier should have the preference over other citizens to the induction into any public office provided for by the Constitution or the laws of this state we would not for a moment contend here that such an act was constitutional, but would say it violated the spirit underlying a government by the people.
    The position we ask for is one created by the defendant in which the occupant exercises neither judicial or ministerial functions. He as to this public department exercises physical functions alone. A janitorship is a creature of the defendants’ judicial discretion. The pleadings admit that they have employed a janitor and have found it necessary to do. so, therefore the commissioners have voluntarily created a public department and no one wars with them for any abuse of discretion in creating said public department. We war with said board because said public department is not filled by said board pursuant to the statutes of Ohio.
    It is a well recognized principal in Ohio that an act of the legislature to be unconstitutional must be within the prohibition of the Constitution 39 Ohio St., 399; 22 Ohio St., 461; 10 Ohio St., 77. The fact that an act is against public policy, alone does not render the law unconstitutional and this court has no right to so decree. 50 Ohio St., 378.
    
      Ross W. Funck and A. D. Metz, for defendants in error.
    The said board of commissioners made a contract with one William Young to perform the duties of said position under section 853, Revised Statutes of Ohio, said Young to do and perform the duties of .janitor of said offices and said county buildings for a period of one year at a salary of $30.00 per month, the said contract to begin March 4, 1897.
    Said Young never had been a Union soldier in the late rebellion, and was neither an honorably discharged sailor nor marine. It is claimed by the attorneys for the relator, Edmond Keyser, that because he was an honorably discharged Union soldier and possessing the requisite qualifications for said position of janitor, that the board of commissioners would be required to appoint him under said act, entitled “an act to give preference of appointment or employment to honorably discharged soldiers, etc.,” and that said board should have rejected the application of said William Young.
    Conceding that said relator has the mental and physical qualifications for the position of janitor, the respondents, the board of commissioners, claim from a legal standpoint that no construction of said statute will justify the claim made by relator, and that said contention of said Keyser is not tenable for the reasons following:
    1. That said board of commissioners is neither a public department, nor a public department in municipal corporations, nor public works of the state of Ohio, as contemplated by said statute.
    2. The said board of commissioners of Wayne county, Ohio, and the duties, offices, and appointive offices and positions included among the acts and duties of the public service of said board; is neither a public department, nor a public department of a municipal corporation, nor public works of the state of Ohio, as contemplated in said act of the legislature.
    3. Said act of the legislature has no application to and does not include within its provisions the position of janitor, that said position of janitor is not an appointive office or position contemplated by or included in either a public department, a public department of a municipal corporation, or public works of the state of Ohio.
    4. That said act is unconstitutional and void.
    If the legislature had meant and intended to include any appointments or positions to be made and designated by the various boards of the state, counties and townships and schools, the legislature would have included in this act of the legislature the words “all public boards created by law, or all public officers. ” We hold that the legislative intent must be clearly expressed in the act itself.
    We deny the right of a legislature in the race of life, under article 1, section 1, Bill of Rights, to enact a law that favors any class of our citizens. Cooley on Constitutional Limitations, star pages 390, 391, 392, 393; Birney v. The State of Ohio, 8 Ohio, 238; Young v. The Lion Hardware Co., 55 Ohio St., 423; Anderson v. Poindexter, 6 Ohio St., 622; Coal Co. v. Rosser, 53 Ohio St., 11.
    Our further contention is, that the act in question is unconstitutional, because in conflict with article 2, section 26, of the Constitution of Ohio. Cooley’s Constitutional Lim., star page 391; McGill v. State, 34 Ohio St., 228; State v. Brewster, 39 Ohio St., 653; State v. Powers, 38 Ohio St., 54; Bronson v. Oberlin, 41 Ohio St., 476; Falk, Exp., 42 Ohio St., 638; In re Elevated R. R. Co., 70 N. Y., 350; Adler v. Whetbeck, 44 Ohio St., 539.
    
      A general law as distinguished from a special one, is a law that embraces a class of subjects and does not omit any subject or place belonging to such class (McGill v. The State, 34 Ohio St., 252), and can not he obviated by general rides, but by the consideration of each case as it arises. State v. Powers, 38 Ohio St., 54.
   By the Court.

We do not think it necessary to pass on the constitutionality of the law, for, admitting its validity, the relator is not, as we think, entitled to the relief asked or any part of it.

1. The petition does not show that it is the duty of the commissioners to appoint him in preference to any one else. It does not show that he is the only soldier in the county entitled under the law to be employed as janitor of the court house, in fact, it appears that there are such'. So that if the law be valid, the commissioners have a discretion as to which one of the soldiers in the county shall be employed; and in refusing to appoint him they violate no duty enjoined on them by law.

2. Nor does the refusal of the commissioners to appoint any other honorably discharged soldier of the county, afford any ground for relief in this proceeding. The object of the writ is to compel an officer to do some specific thing enjoined on him by law, and not to compel him to enforce the general mandates of the law — or, in other words, to execute the law — not in favor of some particular person entitled to his official action — but generally in favor of all persons within its provisions, by selecting some one of them. To do so would simply be to duplicate the act of the legislature in making the law. If. there he any remedy for an omission of tliis kind on the part óf the commissioners, it must be by indictment as provided in section two of the amendatory act; or else by an appeal to the people at the proper time in the election of county commissioners.

Writ refused and petition dismissed.  