
    The State of Ohio ex rel. v. Robins.
    
      .Surety bonds — Act of April 20, 1904 — Relating to giving of same ' —Invalid—Constitutional law.
    
    The act of the general assembly entitled “An act to amend section 3641c of the Revised Statutes of Ohio, relating to the giving of surety bonds,” passed April 20, 1904 (97 O. L„ 782), is unconstitutional and void, being in violation of article 1, sections 1 and 2 of the constitution.
    (No. 9232
    Decided January 3, 1905.)
    Mandamus.
    The facts appear in the opinion.
    
      Mr. Latvrence T. Neal, for relator.
    This act is, as we maintain, unconstitutional, and therefore, void, on several separate and distinct grounds.
    1. A necessary requirement of all legislation is that it shall not be unequal or partial in its character and effect.
    
      The right of equal prótéction to our people under the law is guaranteed to them, both by the constitution of our state and the constitution of the United States. Article one, section two, in the bill of rights in'our own state, after declaring that “all political power is inherent in the people, ’ ’ provides that “government is instituted for their equal protection and benefit;” and in the fourteenth amendment to the constitution of the United States we have a provision similar in character, it being by it provided that no state shall “deny to any person within it's jurisdiction the equal protection of the laws.” Bill of Rights, constitution of Ohio, article 1, section 2; constitution of the United States, fourteenth amendment.
    Class legislation, it would seem from these constitutional provisions, is not to be tolerated, under any guise. It is condemned and prohibited by them, and is, in all eases, invalid.
    This law is, upon this ground, unconstitutional and void. It makes an unjust and unjustifiable discrimination between surety companies and natural persons by giving to the former rights and privileges, which are denied to the latter; and if the giving 6f such exclusive privileges to these corporations does not constitute class legislation, we are unable to comprehend the meaning of the term.
    The exact language of the act is that “the execution or guaranteeing, as surety, of all bonds and undertakings for the faithful performance of official or fiduciary duties; or the faithful keeping, applying or accounting for funds or property or for one or more of such purposes, excepting bonds of the superintendent of insurance, and of notaries public, or of executors, administrators, guardians, trustees' or other fiduciaries, whose bonds are fixed by the court at an amount not in excess of $2,000.00, is hereby required to be by such company.or companies.”
    This requirement of the act can but be fatal to its validity. It abolishes personal suretyship on bonds, except bonds of the superintendent of insurance and notaries public, and except bonds of executors, administrators, guardians, trustees and other fiduciaries under $2,000.00 in amount; and, repudiating the principle that all stand iipon an equality under the provisions of the constitution, creates a favored class to which is extended a species of favoritism as odious as it is unjust.
    It can not, with any show of reason, be argued that two persons, have equal protection under the law, when one, in giving a bond as executor or administrator for $2,000.00 or less, can have under the law a bond executed by personal sureties approved and accepted; and the other, in giving a bond for the same purpose for $2,001.00, or any larger amoiint, is denied by law the right to execute a bond with personal sureties and compelled to have it executed by a surety company before it can be legally approved and accepted.
    It was upon this principle of. equal protection under the law, that this court held the act of April 20, 1894, imposing a direct inheritance tax to be unconstitutional. Rejecting and overruling every other objection urged against the validity of the act,, the decision was that it was unconstitutional because it exempted estates of $20,000.00 and under from taxation, and, in case the estate exceeded $20,000.00, it taxed the entire estate without any exemption whatever, and further discriminated against large estates by taxing them at a higher rate per centum than small estates. State v. Ferris, 53 Ohio St., 314.
    The same principle induced this court, in another ease, to declare unconstitutional and void an act of the legisláture authorizing an attorney fee not in excess of five dollars to be included in the costs of the plaintiff in an action before a justice of the peace for wages, in all cases in which the plaintiff was successful, when a demand in writing for such wages had been made by him, and such wages had not been paid within three days from such demand, and an additional fee not in excess of fifteen dollars in the court of the common pleas, if the judgment of the justice of the peace in favor of the plaintiff should, on appeal by the defendant, be affirmed. Coal Co. v. Rosser, 53 Ohio St., 12.
    The application of this principle is aptly illustrated by this court in another case of recent date, in which an act requiring stationary engineers to be examined and licensed was held to be unconstitutional because, in one section, it permitted licenses to be granted, without examination, to applicants who had been continuously employed as engineers for three years next prior to the passage of the act and denied the privilege to others who had not been so employed, and thereby arbitrarily formed a favored class. Harmon v. State, 66 Ohio St., 249.
    The cases in which the courts, state and federal, have applied the principle of no discrimination and equal protection under the law, are almost without number. The citation of a few of them will, however, fully subserve the purposes of this case: State v. Gravett, 65 Ohio St., 289; Williams v. Donough, 65 Ohio St., 499; State v. Gardner, 58 Ohio St., 599; Railway Co. v. Baty, 6 Neb., 37; Wilder v. Railroad 
      
      Co., 70 Mich., 382; Chair Co. v. Runnels, 77 Mich., 104; Durkee v. Janesville, 28 Wis., 464; Holden v. James, 11 Mass., 396; Missouri v. Lewis, 101 U. S., 22; Barbier v. Connolly, 113 U. S., 27; Yick Wo v. Hopkins, 118 U. S., 356; Railway Co. v. Ellis, 165 U. S., 150; Commonwealth v. Clark, 195 Pa. St., 634.
    2. Another objection to the validity of the act in question is this. The legislature has, by one of its provisions, made a discrimination in favor of surety companies more objectionable, if possible,, than either of those which have been suggested, by actually assuming to delegate to these companies the power to determine what kind of a bond or undertaking any party or officer, other than the superintendent of insurance and notaries public, and executors, administrators, guardians, trustees and other fiduciaries whose bonds do not exceed $2,000.00 in amount, shall be required to give.
    While all parties or officers — save such as are within the exceptions stated — are required by the act to procure and file the bond of a surety company, there is no requirement that such company shall, on the application of a party or officer, furnish him with such bond. It is at liberty to reject his application and to refuse him a bond. And if,'upon such rejection of his application, the party required to give a bond shall make and file with the head of department, court, judge or officer, whose duty it is to approve and accept his bond, an affidavit that he has applied to a surety company for a bond and that his application has been refused or rejected by it, a bond with personal sureties may be given by him.
    It follows from this, therefore, that a surety company can by its own arbitrary act grant or withhold from a party the right to give a bond with personal sureties'; ánd we submit that it is not within the province of the legislature to invest these companies with any such power.
    • It is, in effect, a delegation of legislative power to surety companies; and the constitution and a wise public policy alike forbid the delegation of any such power to a private corporation. This is particularly true, when, as in this case, the power delegated is to be exercised upon the mere volition of an interested party.
    The following authorities, among others, fully establish this proposition: Harmon v. State, 66 Ohio St., 249; People v. Bennett, 29 Mich., 451; Senate, etc. v. Supervisors, 99 Mich., 117; Fogg v. Union Bank, 60 Tenn., 435.
    3. The constitutionality of this act may well be ■questioned on another ground. Courts of record have the inherent power to determine judicially as to the sufficiency of any security to be required from persons subject to their order. This power is beyond legislative interference. But the legislature in this act usurps this power of the courts, when it requires that all official bonds, recognizances and undertakings, except those of the superintendent of insurance and notaries public, and all bonds of executors, administrators, guardians, trustees and other fiduciaries, not in excess of $2,000.00 in amount, shall be executed by a surety company, and when it forbids the acceptance of any bond otherwise executed, although the sufficiency of such bond may, in the judgment of the court,' be beyond question, and the security offered by it may be higher and better than that of any such company.
    The fact that this limitation upon the right of the company to become thé surety upon any one bond is seemingly for the purpose of adding to the value of the security to be given, does not in any way detract from the force of our proposition, that the act in this respect undertakes to control, and does control, the judicial discretion of the courts. It arbitrarily takes away from the courts the power to judicially determine for themselves the question as to whether the company might not justify as surety for an amount greater than twenty per cent, of its paid up capital stock.
    It matters not, however, what the motive or purpose of the legislature may have been in imposing this limitation. If it has the effect, as claimed by us, of. interfering with the power of the courts to determine for themselves the sufficiency of the bond of any company tendered as security, it is invalid, and, by reason of its invalidity, renders the whole act unconstitutional. In re The Banking and Trust Co., 17 Pa. Co. Ct. Rep., 274; 4 Pa. Dist. Rep., 757.
    4.' There is still another ground upon which this act must be held unconstitutional.
    The right to acquire, possess and protect property is guaranteed to the people of this state by our bill of rights, and is declared by it to be one of the inalienable rights of man. Constitution of Ohio, Bill of Bights, article 1, section 1.
    This right includes the right tó 'make and enforce contracts. Palmer & Crawford v. Tingle, 55 Ohio St., 423; Cleveland v. Construction Co., 67 Ohio St., 219; Coal Co. v. People, 147 Ill., 66; Ritchie v. People, 155 Ill., 98; Fiske v. People, 188 Ill., 200; People v. Gillson, 109 N. Y., 389.
    This statute by its provisions interferes with the ■ right- to make contracts. It not only interferes with this right, but it absolutely denies to the people of this state the right to make contracts, which shall be beneficial to them.
    5. If an officer plead the authority of an unconstitutional act for nonperformance or violation of his duty, it will not prevent the issuing of a writ of mandamus. An unconstitutional law will be treated as a nullity by the courts. Board of Liquidation v. McComb, 92 U. S., 532; Davis v. Gray, 16 Wall., 220; Osborn v. Bank, 9 Wheat., 859; Norton v. Shelby County, 118 U. S., 426.
    6. The rule is well settled that courts and judges will be required by mandamus to approve and accept bonds as well as to perform other duties imposed upon them by law. The following cases relating to the approval and acceptance of bonds are directly in point: Adamson v. Lafayette County, 41 Mo., 225; Beck v. Jackson, 43 Mo., 117; Coates v. State, 133 Ind., 36; Bosely v. Woodruff, 28 Ark., 306; State v. Plambeck, 36 Neb., 401; Cox v. Rich, 24 Kan., 20; Church v. United States, 13 App. Cas., D. C., 264.
    
      Messrs. Goulder, Holding é Hasten, for respondent.
    Relator asserts that it was the duty of defendant to accept and approve the bond offered. This duty must be clearly shown before she is entitled to the relief prayed for. The position of defendant is that his duties have been defined and declared by the general assembly, and that he is prohibited by law from doing that demanded of him. Relator responds that the law is unconstitutional and void, in that it is in violation of article 1, sections 1 and 2 of the constitution of Ohio and of the fourteenth amendment of the constitution of the United States.
    
      .While the probate court is the creature of the constitution, its jurisdiction is exercised in accordance with laws passed by the general assembly, which has since the institution of the court made provision for procedure therein for the administration and settlement of estates. Nor do we think the right of the general assembly to enact laws for the prompt, efficient and complete administration and settlement of estates over ,which the constitution has given probate courts jurisdiction has ever before been questioned. These laws have been for the protection of creditors, heirs, devisees, and all interested in the distribution of decedents’ estates.
    The subject-matter of the act was, therefore, one for legislative consideration and action, and its constitutionality depends upon its operation and effect.
    That the general assembly has authority to legislate with reference to the administration and settlement of estates, and in furtherance of such purpose to require bonds to be given with sureties of sufficient property qualification, and to be approved by the probate judge, is in effect conceded by the allegations of the petition. And it seems to us it must logically follow that if such authority exist, the general assembly has discretion to determine what bonds will give needful protection to the property rights of persons in estates.
    It is to be noted here that relator is not the party interested in the bond and its sufficiency; that the law is not for her protection, but for the benefit and protection of those for whom she desires to act as trustee, and to save them harmless against loss resulting from her omissions and commissions.
    It is well settled that the act does not violate the fourteenth amendment to the federal constitution. Barbier v. Connolly, 113 U. S., 27; Railway Co. v. Humes, 115 U. S., 512; Lawton v. Steele, 152 U. S., 133; Addyston Pipe & Steel Co. v. United States, 175 U. S., 211.
    Nor does it contravene any provision of the state constitution. No right of any citizen is denied or infringed thereby. He is not deprived of his property or property rights, nor are the latter abridged or curtailed; nor is he denied the equal benefit and protection of law.
    The general assembly has for many years provided for the giving of bonds for the faithful performance of trusts and in,legal proceedings, and has required sureties to reside in the state and to •possess a property qualification, which it has also required to be submitted for approval of designated officers. The discretion exercised by it in this regard has never been doubted or questioned.
    Is there any unlawful or unjust discrimination in the provision fixing the amount at $2,000.00?
    It is certain that personal sureties have frequently failed to respond to their obligations, and of such general knowledge is this fact that it was not only the right of the general assembly to afford more ample and sufficient security to those whose property the state places in the hands of others for administration, if it could be done, but it was its duty so to do.
    It is also evident that the greater the financial obligation of personal sureties, the greater the liability of failure to respond, and will it be said that the general assembly has abused its discretion or exceeded its authority to exercise its discretion because in its judgment the liability of loss is so slight or has been so infrequent where the bond required is $2,000.00 Or less, that personal security is ample and sufficient! “If there are other persons requiring protection, such protection should be sought through the general assembly by increasing the protected class, rather than by removing all protection, through the action of the courts.” State v. Nelson, 52 Ohio St., 102.
    Such discretion has been permitted the general assembly in the passage of laws, and many discriminations are ‘found in our statutes. Thus, if the probable value of a decedent’s estate is less than $500.00, the probate court may direct the omission of an inventory, required in all other cases. We also find a discrimination in amount in our inheritance tax law, which this court has sustained.
    The general assembly may make reasonable classification of the subjects to which legislation shall apply. State v. Nelson, 52 Ohio St., 88; Lawton v. Steele, 152 U. S., 133; Minot v. Winthrop, 162 Mass., 113; Day v. Lawrence, 167 Mass., 371.
    . The law further protects those interested in that it fixes a maximum premium, in excess of which the surety company cannot demand.
    The law also contains provision to prevent surety companies from assuming obligations beyond their resources. In order that there may be no interference with the administration and settlement of estates or with the performance of duties exacted of trustees, the law further provides that if such company or companies do not desire to enter into the undertaking with the person selected and appointed as trustee,, that such trustee may give such bond or undertaking with such personal surety or sureties as may be required by law.
    
      Does the law abridge or deprive distributees of estates of their constitutional rights? Certainly a bond which affords them greater security than one executed by individuals does not impair any property rights they may have. Nor can it be claimed that-the right to receive property is an absolute one, to be enjoyed without any burdens being imposed upon the property by the state, such as are reasonably necessary for the general welfare and protection of the public and those interested in the estate, for “the right to receive property is under the control of the legislature, and it has the power to regulate and lay such burdens thereon as it may see fit within the provisions of the constitution.” State v. Ferris, 53 Ohio St., 325.
    The authority of the general assembly to require a bond in such matters and to dictate the qualification of sureties has never been disputed, and certainly the general assembly acted within its constitutional powers when it made the security of a character in which losses to those entitled to protection and indemnity will be prevented or minimized. That which conserves rights certainly does not impair or destroy them. That which protects persons in the enjoyment of rights does not deprive them thereof. Hence, we submit that whatever the bill of rights gave distributees has not been denied them.
    Does it infringe a constitutional right of the citizen to execute bonds and make contracts ? The general assembly has never been denied authority to restrain the right and liberty of contract if such restraint were imposed for the common public welfare. The right of giving bond has not been permitted to all citizens, but limited to those who have property qualification, and so long as the administration of estates is conducted in conformance with and in obedience to laws enacted by the general assembly, considerable discretion must be vested therein to determine the best means for accomplishing the just distribution of property and the enforcement of its laws regulating the administration. A law more surely guaranteeing the performance ■of the duties of the trustee, in whose custody the estate is placed, cannot be said to be a denial of the right to contract to one who wishes to become security for such performance. It will not be claimed that personal sureties are either seeking or obtaining happiness when they execute bonds, but it can be ¡said that the frequent insufficiency of such bonds has been productive of much unhappiness, discomfort and suffering, both to the indemnified and the indemnifier.
    In many instances the right to restrain the liberty ■of contract when for the common welfare has been exercised and upheld. As illustration, are statutes limiting the investment of trust funds to particular securities. Such restraint is also found in our laws .against usury. So in our exemption laws (Palmer v. Tingle, 55 Ohio St., 441), ánd in many other laws are such restraints exhibited.
    It may be contended that it is the granting of a special privilege to surety companies. Our constitution does not deny to the general assembly the right to grant special privileges. The very section of that instrument herein invoked (article 1, section 2) recognizes that right. Many rights are conferred upon corporations not enjoyed by individuals, although the latter, by association under contract between themselves, might be capable of doing the very things corporations are authorized to do. It has been the policy of the state to regulate the exercise of the special privileges granted. The general assembly has been especially careful in-making regulations for those who contract to indemnify against loss of life or property. It compels them not only to regard certain rules of conduct prescribed for their dealings with citizens, but also reserves to the state the right of constant examination of the finances and standing of all such companies doing business in the state, and further exacts of them the setting aside and placing in safe custody approved securities of the par value of $200,000 fox* the payment of their obligations. Such privileges may be of a character that the single individual cannot-enjoy, because of the regulations made and the restrictions imposed, but the mere fact that a law gives a special privilege is not reason sufficient to-declare it unconstitutional. The privileges granted to corporations are presumed to be for the public good and the coxümon welfare, and until it appear that they are an unreasonable interference with the rights possessed by others or are of a character expressly prohibited by the constitution, they will not be declared invalid. That'the provisions of this law do not interfere with the right of any citizen guaxanteed by the constitution and are not unreasonable, we have above shown, we trust.
    If its intention were to protect the citizen and the operation and effect of the law is to give better and greater protection to' the indemnified,'surely it is. within the power and authority of the general assembly so to dó. That it does give better protection will not be gainsaid, and the intention of the general assembly and its motive in passing the act should be presumed to have been a public one and not for private purpose, gain or favoritism. Indeed, we' may-add that courts cannot impute to the legislature any other than a public motive for their acts. And if the subject-matter of legislation be not prohibited by the constitution, the provisions of the law must' ,be clearly unreasonable before the courts will declare it invalid. Railway v. Cooper, 33 Pa. St., 283; Clark’s Estate, 195 Pa. St., 524; Johnson v. Johnson, 88 Ky., 279; Coleman, Admr. v. Parrott, 18 S. W. Rep., 525.
    A rule of court prohibiting attorneys and officers of courts from signing attachment, appeal and other bonds, was held valid. Wallace v. Scoles, 6 Ohio, 429; Love v. Shefflein, 7 Fla., 40; Tessier v. Crowley, 17 Neb., 210.
    Provisions requiring public officials, state, county, and municipal, to furnish bonds, we submit are also within the constitutional power of the general assembly.
    It is, therefore, evident; that the general assembly has power to pass laws for the conduct of the affairs of the offices created and existing, to designate the duties of public officials, and the manner in which they shall be performed, and before any person elected or appointed shall enter upon the performance of the trust, provide for the giving of bonds as security for their faithful performance, according to the oath of office and the laws of the state. This' court has said that-a bond is a “collateral security for the faithful performance of the officihl duties of the officer. ’ ’ State v. Blake, 2 Ohio St., 147.
    It has been said by this court that there is no con-, tract or property right in a public office; that it is a trust held for the benefit of the public; that the duty of a public official is a public duty conferred by pub-lie authority for public purposes; that the incumbent may be entitled to the emolument of the office if he perform the duties, but that he cannot and does not have under our system of government any property in the office itself, and that the emolument is a usual but not a necessary element to constitute the office.
    To prescribe the manner of election to a public office and the qualifications therefor, except as provided in the constitution, is an ordinary legislative function. If, as must be conceded, it is within the power of the general assembly to require security from public officials, it logically follows that .it has authority to determine the kind and sufficiency of the security to be received by the state.
    The statute does not interfere with the right to hold office, and as it does not require public officers to take from their emolument the amount of the premium necessary to obtain the bond, it may be said to have been unwisely generous, but such generosity is not denied the general assembly by the constitution. That body has the right where it exacts of county officials bonds which could not be obtained without the expenditure of money, to provide for payment from the public fund, as the duties of the office are performed for the public, benefit.
    In other words, if the general assembly considered it wise to have better collateral security by having the state pay for it, it was clearly within its legislative power.. We may add, it was also an exhibition of wisdom in the general assembly, which has passed more than three hundred special acts to relieve personal sureties from losses upon their obligations resulting from the maladministration of their principals as public officials, to require sureties which have their property in its hands or under its control sufficient to discharge all obligations to the state.. If losses caused by the maladministration of trustees be thereby prevented, it will be a consummation devoutly to be wished. Ex parte Buckley, 53 Ala., 42; Schuff v. Pflanz, 99 Ky., 97.
   Davis, J.

The relator, Jean D. McKell, was.appointed administratrix of her late husband’s, estate, and she was ordered to give bond in • the sum of $200,000. The relator immediately tendered a bond in the required amount; but the probate judge refused to accept it, solely on the ground that it was signed by personal sureties and not by a surety company, as required by the act of the general assembly, entitled “An act to amend section 3641c of' the Revised Statutes of Ohio, relating to the giving of surety bonds,” passed April 20, 1904 (97 O. L., 182). The probate judge was fully satisfied that the bond was sufficient in every other respect. The relator therefore prays • for a writ of mandamus commanding the respondent, the probate judge, to approve and accept the bond so tendered. The respondent answers that he did not accept and approve said bond because the said statute provides that any administrator’s bond in excess of $2,000.00 must be. executed and guaranteed by a surety company or companies authorized by the laws of Ohio to guarantee the fidelity of persons holding places of public or private trust, unless the person required to give; such bond shall make affidavit that he has applied to. such surety company or companies for such bond., and has been refused or rejected; that the bond, offered by relator being in excess of $2,000.00 and: not being executed and guaranteed by such- surety company or companies, but by personal sureties, and no affidavit, as provided by-law, having been filed,, he was prohibited by the aforesaid statute from accepting or approving said bond.

To this answer the relator has filed a demurrer.

It is insisted on behalf of the relator in support of the demurrer that this statute is unconstitutional.

The provisions of the act are so interdependent and interwoven that the whole- act must stand or fall together. It provides that the execution of all bonds for the faithful performance of official or fiduciary' duties, or the faithful keeping, applying or accounting for funds or property, or for one or more of such purposes, with certain exceptions, is thereby required to be by a surety company or companies. We are therefore not able clearly to perceive that the general assembly intended in any event to require bonds to be executed by- a surety company or companies in any one of the classes mentioned to the-exclusion of another. This being so if the statute is void as to administrators, or other fiduciaries, it is void as to public officers, and if void as to public-officers. it is void as to fiduciaries, and the contention Rere made as to the bond of an administratrix involves as well the question as to the validity of the-bonds of public officers.

- Liberty to contract is one of the inalienable rights-of man which is guaranteed to every citizen by the bill of rights (Constitution, article 1, section 1) subject only to such restrictions as clearly appear to be for. the general welfare. The mere fact that the general assembly has enacted a law which narrows the liberty of contract as to the whole people or as to a class of citizens, is not decisive. If it were So, the constitutional guaranty might be made a dead letter by bills passed through the procurement of interested parties or in response to the demands of extremists in times of popular excitement. It is the province of the courts to determine whether a given statute infringes the constitution, which is the supreme law, and therefore it is within the province of the courts to decide whether the common welfare demands a restriction of the right of individuals to contract freely for their own benefit or convenience.

It is the undoubted right of the general assembly to require bonds to be given “for the faithful performance qf official or fiduciary duties, or the faithful keeping, applying or accounting for funds or property, or for one or more such purposes,” and to make reasonable requirements as to execution, approval and security to effectuate fully the purposes thereof. But unless the public welfare should justify and require it, the power of the general assembly is so limited by the constitution, article 1, section 1, that it cannot deny or restrict the liberty of the officer or fiduciary to obtain or contract for a bond on terms satisfactory to himself. Before the enactment of this statute an officer was at liberty to present a bond signed by personal sureties or by a surety company or companies, as his own interest or convenience might suggest. The right of choice between the classes of sureties is now denied him. It is now made compulsory upon him to give bond signed by surety companies, and personal security is in effect abolished. It is very plain that the security companies may be greatly benefited by this legislation, but an adequate corresponding benefit or protection to the general public, such as would justify such a radical and drastic limitation upon individual rights, is not apparent. The amount of loss to the state, county, township or municipality on official bonds, or to the beneficiaries under bonds of executors, administrators, guardians, trustees or other fiduciaries, comparatively speaking, is trifling. Indeed it is possible that the loss is no greater than would result when the bonds shall be signed exclusively by incorporated companies, which sometimes become insolvent as individuals do. It is true that the loss, if any default occurs, falls on the sureties, and that there have been special acts of the general assembly for the relief of sureties in cases in which it was claimed that the principal was not in fault. Some of these acts are meritorious, many of them improvident and most of them unconstitutional. It argues nothing in favor of the legislation which is assailed here that sureties sometimes seek to. escape from the consequences of their contract of surety-, ship. The fact remains that those whose interests are protected by personal bond rarely lose. We have not been advised of any necessity for, or general demand for, the abolition of personal security and the substitution therefor of corporate security, and the reasons which we have given persuade us that the public welfare does not require it.

But further, not only is the person who gives .a bond deprived of the right to obtain it of whomsoever- and however he pleases, subject only to the requirement that it really protects and secures the obligee, but the obligee is compelled to pay a security company for protection. The burden is. not put on the. officer or fiduciary to. give protection, but on the public or estate to obtain protection. The requirement of the statute is that an executor, administratoi', guardian, trustee or other fiduciary shall give a security company as bondsman, and that the estate shall pay for it, which is a taking of private. property for private uses without compensation, and that a public officer shall give bond with a surety company as surety, the premium to be paid out of the public funds. The effect of the latter provision is to require the state, county, township or municipality to pay to the enrichment of security companies, each year, vastly more than it would lose by defaulting public officials; and it thus becomes evident that it would be more economical for the public to become its own insurer of the good faith of its officials, which would result perhaps in no official bond in any case. It does not seem to us, therefore, that any part of this statute was promoted by considerations of public necessity or public welfare, and thence it follows that it is an unconstitutional restriction upon the liberty to contract which is guaranteed by article 1, section 1 of the constitution of this state.

It is contended on the part of the respondent that no citizen has an inalienable right to act as a legal representative or public officer; that the general assembly has power to provide for the descent and distribution of estates and for the appointment and qualifications of executors and administrators, including the giving of bonds; that the general assembly has power to prescribe the manner of election to a public office and the qualifications therefor; and that it logically follows from these premises that the general assembly has, authority to determine the kind and sufficiency of the security to be given. The general soundness of this argument is not to be questioned; but it is pressing the conclusion too far to maintain that the legislature may go beyond the purpose of the security to be given, and may require -things to be done which do not increase the protection of the obligee, which abridge individual rights without contributing to the general welfare, and which enrich a designated class of sureties to the exclusion of all others. Such a conclusion would lead not only to violation of article 1, section 1 of our constitution, as already shown, but of article 1, section 2, also, which declares that “government is instituted for the equal protection and benefit” of the people. This basic principle of the constitution is also violated when executors, administrators, guardians, trustees or other fiduciaries, whose bonds are fixed at an amount not in excess of two thousand dollars, are excepted from the operation of the act. No good reason for this discrimination is apparent. If personal bonds are a public evil they should be abolished altogether. If bonds signed by surety companies are the only ones fit for the security of estates, all estates should be permitted to enjoy equally both the protection and the benefit. If any discrimination were necessary it would seem to be the better way to allow all estates, large and small, to procure personal bonds or security company bonds as they might be able or might prefer, instead of compelling the larger estates to pay tribute to the surety companies while the smaller estates, presumably less desirable risks to the surety compánies, are still permitted to give either personal bonds or bonds of security companies — if the latter do not reject their applications, as the statute provides that they may do.

We do not regard any of the cases cited for the respondent as decisive of the question now before us. The issue raised here is whether the general assembly may make security by security companies exclusive and compulsory. It is not whether corporations may be authorized to secure bonds, nor whether the person giving bond may at his option give a bond signed either by personal securities or by security companies.

Our conclusion is that the statute is unconstitutional and it is accordingly ordered and adjudged that the demurrer to the answer be sustained and a

Peremptory writ of mandamus allowed.

Spear, C. J., Shatjck, Price and Crew, JJ., concur.  