
    CONSTABLES — OFFICE AND OFFICERS.
    [Lucas (6th) Court of Appeals,
    July 22, 1916.]
    Chittenden, Richards and Kinkade, JJ.
    State ex rel. Stiles v. Gabe Cooper, Aud.
    Compensation of Constables in Prosecutions for Neglecting Chitaren.
    The limitation fixed in Sec. 3019 G-. C. of $100 per year for services rendered by a constable, does not apply to services rendered by him under Secs. 13436 and 13439 G. C. in prosecutions for neglecting minor children.
    [Syllabus by the court.]
    Mandamus.
    
      L. IS. Mallow and W. T. 8. O’Hara, for plaintiff.
    
      J. C. I)’Alton, Pros. Atty.,- and A. J. Seney, for defendant,
   RICHARDS, J.

This is an original action in mandamus filed in this court on June 39, 1916. The defendant has filed a demurrer to the petition. The petition sets forth, in substance, that the relator is a duly elected and acting constable in and for Washington township, this county, and the defendant is the auditor of the county, and tliat in February, 1916, Oscar Redding, a justice of the peace in said township, duly issued and delivered to relator a warrant for the arrest of a defendant upon a charge that such defendant was neglecting his minor children, in violation of Sec. 12970 G. C. The petition further avers that the relator, in obedience to the command of the warrant, arrested said defendant and brought him before the justice of the peace, and that thereupon the defendant waived, in writing, a trial by jury and was tried before said justice of the peace and adjudged to be not guilty, and was discharged from custody. The petition further avers that the fees taxed on behalf of this relator by the justice of the peace for pursuing and arresting the defendant and subpoenaing witnesses are the same as those allowed by law to the sheriff in criminal cases-, as provided for in Sec. 13436 G-. C., and that all other fees therein taxed are the fees allowed by law to constables as provided for by Sec. 3347 G. C., the total fees taxed in favor of relator being $3.80, and that this amount was duly certified by the justice of the peace to the defendant as county auditor. The relator further avers that there has been heretofore taxed in his favor by said justice of the peace, under Sec. 13439 G. C., during the year 1916, as fees in criminal cases brought before said justice of the peace wherein the defendants were charged with neglecting their minor children, the aggregate sum of $103.05. Relator avers that the defendant as county auditor neglects and refuses to issue a warrant in the amount of $3.80 in favor of relator, on the treasury of Lucas county, and he prays that said defendant may be compelled to issue his warrant in favor of the relator for said sum.

The action is brought to determine the construction of the statutes relative to fees of constables where defendants are prosecuted for the neglect of minor children. The provisions of the General Code which bear on the matter in controversy are Secs. 3016, 3017, 3019, 13436 and 13439. The first three sections cited supra have been embodied in the statutes of the state for many years and cover prosecutions under the general criminal laws of the state. Section 3019 G. C. is limited in its operation, by its terms, to felonies wherein the state fails, and .to misdemeanors wherein the defendant proves insolvent and the limitation of one hundred dollars which may be allowed to a constable in any one year is for services in the class of cases therein enumerated. No provision is made therein for any class of cases except the ones mentioned, to wit, “felonies wherein the state fails,” and “misdemeanors where the defendant proves insolvent.” The ease set forth in the petition in mandamus does not fall within either of those classes. Sections 13432 to 13440 G. C., inclusive, were originally Sec. 3718a R. S., first enacted in the year 1884, and were applicable to prosecutions for eruelty to children or animals, and for adulteration of food, etc. In that class of cases the general assembly saw fit to authorize prosecutions without empowering the magistrate to require security for costs, and to allow to constables increased fees for services in such cases, making the same allowances to such officer as are provided for sheriffs.

To-further stimulate the prosecution of such offenses, See. 13439 G. 0. not only dispenses with the duty of giving security for costs, but provides that if -the defendant be acquitted or discharged', or convicted and committed in default of paying fine and costs, “all costs of such case shall be certified, under oath, by the proper magistrate to the county auditor, who, after correcting errors therein, shall issue a warrant on the county treasury in favor of the person to whom such costs and fees are payable.” - This section and the allied sections are im effect a supplement to Sees. 3017 and 3019 G. 0., and cover cases not embraced within those sections.

We find no limitation in the General Code as to the amount which may be allowed in any one year to a constable for services rendered under Secs. 1.3436 and 13439 G. C. The provisions of the code fixing salaries for sheriffs and authorizing annual allowances for them in certain eases, have nothing to do with the amount provided by statute for constables.

The demurrer to the petition will be overruled and judgment entered for the plaintiff, awarding a writ of mandamus.

Chittenden and Kinkade, JJ., concur.  