
    The State of Ohio ex rel. Montgomery v. Rogers et al.
    
      'Salaries of county surveyors — Act of April 25,1904, empowering common pleas judges — To fix said salaries — Repugnant to section 20 of article 2 of constitution — Constitutional law.
    
    The act of April 25, 1904 (97 O. L., 313, 314), entitled “An act fixing the salaries of the county surveyors in various counties of the state,” is repugnant to section 20, article 2, of the constitution of Ohio, because the power conferred and the duty imposed by said act upon the judges of the court of common pleas, to fix the salaries or compensation of county surveyors, is purely a legislative power and duty and cannot be delegated. Said act is therefore unconstitutional and void.
    (No. 9092
    Decided January 3, 1905).
    
      In Mandamus.
    This is an action in mandamus commenced originally in this court. The averments and prayer of relator’s petition are as follows:
    “The relator says that he is an elector, citizen and taxpayer of, and the owner in fee simple of real estate in the county of Mahoning and state of Ohio.
    “That the defendants, Disney Rogers, George F. Robinson and E. E. Roberts, are the duly elected, qualified and acting judges of the court of common pleas of the county of Mahoning and state of Ohio.
    “The relator further says that he is the duly elected, qualified and acting surveyor of Mahoning county and state of Ohio. That on the twenty-seventh day of May, 1904, he requested said defendants to make an allowance and fix the amount of compensation of himself, as county surveyor and fix an aggregate sum for his assistants from May 1, 1904, to January 1,1905, as provided by an act known as House Bill, No. 292, fixing the salaries of the-county surveyors in various counties of the state of Ohio, which act was passed by the general assembly of the statq of Ohio on the twenty-fifth day of April, 1904 (97 O. L., 313). That it is the duty of the-said defendants, Disney Rogers, George F. Robinson and E. E. Roberts, as such judges of the court of common pleas, enjoined upon them by force of said act heretofore referred to, to fix the amount of compensation of said county surveyor as heretofore stated.
    “The relator further says that said defendants,. Disney Rogers, George P. Robinson and E. E. Roberts, judges of the court of common pleas of Ma-honing county as aforesaid, entertaining doubts' with respect to their duty in the premises neglect, decline- and refuse to and declare that they will not fix the-compensation for Ms services as county surveyor as provided in said act heretofore referred to.
    “Relator further says that ever since the passage of the above entitled act the relator, as such surveyor as aforesaid, has done and performed and is now doing and performing and must continue to do and perform a large amount of public work of the kind for wMch prior to the passage of this act he was compensated according to the provisions of sections 1171, 1177, 1178, 1183, 1192, 1194 and 4664 as such sections then existed.
    “The relator further says that by the ordinary course of the law he has no adequate remedy against the said defendants for so refusing.
    “Wherefore, the relator prays that the defendants, Disney Rogers, George P. Robinson and E. E. Roberts, judges of the court of common pleas of Ma-honing county, Ohio, may be compelled to fix the amount of compensation of the relator as the surveyor of said county of Mahoning and state of Ohio, to be effective as of the date of the approval of said act; that an alternative writ of mandamus may first issue requiring the defendants to show cause, by day named therein, why they do not fix the amount of compensation of the relator as surveyor of Mahoning county aforesaid as of the day aforesaid, and that on the final hearing a peremptory writ of mandamus may be awarded to compel the defendants to fix the amount of compensation of the surveyor of the county of Mahoning, and for such other and further relief as the nature of the case may require. ’ ’
    • The defendants and each of them waived the issuing and service of an alternative writ of mandamus herein and demurred generally to the relator’s petition.
    
      
      Mr. W. R. Graham and Mr. Ernest G. Sohwan,, attorneys for plaintiff.
    The act before tbe court fixes tbe maximum compensation of - the county surveyor in all the counties-of tbe state at a sum not to exceed $3,000 per annum, and tbe judges of the court of common pleas of each county are constituted a commission to fix tbe compensation of tbe surveyors each year, and to fix an. aggregate sum to be expended for tbe compensation of tbe surveyor’s assistants.
    First: Tbe general assembly has tbe right to fix tbe term of office and the compensation of all offices-not provided for in tbe constitution. Article 2, section 20 of tbe constitution.
    Tbe act in question being a general one applies to' every county in tbe state, and every county surveyor is interested in having said act declared constitutional for tbe reason that a great many of tbe surveyors were working under tbe general law, and a. few under special acts in force prior to tbe passage of tbe act in question. The acts repealed by the enactment of the new law providing for the compensation of county surveyors were vague and uncertain in their meaning. No two counties in tbe state' were able to give them tbe same construction. It was, therefore, necessary for tbe general assembly to enact some law of a general nature to relieve this-condition throughout tbe state. This law prescribes-only one mode of compensating county surveyors, and therefore is capable of uniform operation throughout tbe state.
    Tbe law being a general one and one of uniform operation throughout tbe state, is, therefore, not in conflict with section 26 of article 2 of tbe constitution.
    Second: Is tbe act in conflict with tbe provisions! of section 20, article 2, which provides that “The general assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers.”
    In this act the general assembly, in the performance of their duty under this section, have sought to-fix the compensation of county surveyors in each county of the state, and have provided that such county surveyor in each county of the state shall receive in full compensation for his services a salary not to exceed three thousand dollars per annum,, which is to be fixed by the judges of the court of common pleas of each county once a year.
    The act further provides for the compensation of surveyor’s assistants, and prescribes and fixes the' rule by which such-compensation is to be determined. Crickett v. State, 18 Ohio St., 21.
    Third: Does the act conflict with article 2, section 27 of the constitution, which provides that, “The' election and appointment of all officers, and. the filling of all vacancies not otherwise provided for by. this constitution, or the constitution of the United States, shall be made in such manner' as may be directed by law; but no appointing• power shall be exercised by the general assembly except as prescribed in this constitution and in the election of United States senators.” It is claimed that the general assembly in the act in question, after having fixed the maximum amount of compensation of surveyors, by constituting the judges of the court of common pleas of each county a commission to fix the amount of compensation of the surveyors of said county, have exercised an appointing power which is forbidden by said section of the. constitution. The argument is that these judges. ■of each county are constituted or appointed a commission — which is claimed to he an office — that their fixing of compensation is not the exercise of a judicial function, or of any power that can he conferred ■on the judges or courts as such; that the conferring ■of this power is the creation of a new and independent office, which can not be filled by the appointment of the legislature, whether the appointees be designated by name or by reference to another office which they hold.
    In support of the affirmative of this position we may be referred to the decision in the case of State v. Kennon et al., 7 Ohio St., 546.
    In State v. The Judges, 21 Ohio St., 1, the complaint was that the common pleas judges of Hamilton county had been usurping an office of trust, viz.: the office of fixing the compensation of deputies, ■clerks, etc., etc. The judges ’ plea was that they were ■empowered and required to discharge these duties by ■an act of the legislature.
    This case has been overruled in so far as it. followed the vicious rule laid down in Cricket v. State, 18 Ohio St., 22, viz.: Laws regulating the amount of ■compensation of public officers are not laws of a general nature; but in no other respect.
    In Walker v. City of Cincinnati, 21 Ohio St., 14, it was held: “The conferring on the judges of the superior court of Cincinnati to appoint trustees to ■carry out the purposes of the act, is not the exercise of an appointing power by the general assembly which article 2, section 27 of the constitution forbids. It is not the creation of a new office, but the annexing óf a new duty to an existing office.”
    Fourth: Is this act in derogation of article 4, section 14 of the constitution, which provides “that the judges of the common pleas court shall not hold any other office of profit or trust under the authority of this state, or the United States.”
    The writer of the above mentioned article is of the opinion that this act is in direct conflict both with the letter and spirit of this provision, which was designed to secure our elective judiciary and the people against the imposition of other than judicial duties on the judges. That the performance of these duties is an exercise of an office of trust. This, we think, is stating their position fairly.
    The trouble with this argument is that it has been repeatedly answered and decided in the negative by the Supreme Court of our state. It has been held over and over again in cases where the question was one of the material points involved, that there is nothing in the constitution to forbid the general assembly from requiring the performance by judges of duties not strictly judicial. That such an act does not create or invest them with a new office. That what they are directed to do they can only so do by virtue of their office as judges. That it does not follow from the fact that new duties or powers might have constituted a new 'office, that, therefore, they ■ do constitute such office. That judges can be required to discharge duties which are not strictly of a judicial character. That the kind of duties required in this act are judicial.
    The facts in State v. Judges, 21 Ohio St., 1, relative to the additional duties required of the judges by the act under review, are very similar to those required of the judges under the act in the present case, and the above holding has not been overruled. This case has been overruled on the ground that a law to regulate the compensation attached to a local office (i. e., a county office) is a local law, and upon that ground alone.
    
      Mr. Wade H. Ellis, attorney general, for defendants; Mr. Worthington- E. Babcock and Mr. George E. Jones, of counsel, for defendants.
    The duties imposed by the act are legislative and not judicial in character and as such can not be delegated to the judiciary.
    The constitution of the state of Ohio has distributed the powers of government among three coordinate branches, legislative, executive and judicial, which are separate and independent of each other. While there is no express prohibition in the constitution of Ohio against conferring the duties of any one branch of the government on any co-ordinate branch, the fact that the powers of government are so distributed by the constitution is regarded, as of itself, a prohibition against the duties of one department being conferred on another. Cooley’s Constitutional Limitations (6 ed.), 104; Zanesville v. Telephone & Tel. Co., 63 Ohio St., 442; Zanesville v. Telegraph & Tel. Co., 64 Ohio St., 67.
    The fixing of the amount of the compensation of county surveyors is a legislative and not a judicial function. Cooley’s Constitutional Limitations (6 ed.), 108.
    The constitution itself, however, has determined which department shall fix the compensation of officers. Article 2, section 20.
    A county surveyor is an officer within the meaning of this provision of the constitution. County officers are local officers only in the sense that they are elected by counties, and that their duties are confined to the counties in which they are elected;.otherwise, they are state officers. State of Ohio ex rel. v. Yates, Auditor, 66 Ohio St., 546; State of Ohio ex rel. v. Lewis, Auditor, 69 Ohio St., 202.
    The act is in conflict with article 4, section 14 of the constitution, which provides that the judges of the court of common pleas shall hold no other office of trust under the authority of this state. Article 4, section 14. ■
    Does the act under consideration create a new office of only impose new duties upon an existing office? If the act creates a new office then the law is in conflict with article 4, section 14, of the constitution, because the office is an office of trust, and being such the judges of the common pleas court can not accept it. Counsel for plaintiff assume that the act simply imposes new duties upon an existing office, i. e., the court of common pleas or the judges thereof. An examination of the act will disclose the fact that it creates'a new office instead of adding new duties to an existing office.
    The act does not require the judges of the court of common pleas, nor the court of common pleas itself, to fix the amount of compensation of the surveyors. It provides that, “The judges of the court of common pleas of each county are * * * constituted a commission to fix the amount of compensation of the surveyor of the county. ’ ’
    The act then provides what the duties of the commission shall be. The act, therefore, does not impose new duties upon an existing office, but creates a new office. It creates an office and constitutes the judges of the court of common pleas, the officers thereof.
    The act does not prescribe any oath of office by the judges before entering upon their duties, nor does it fix any compensation. The constitution, however, does prescribe an oath of office, and this is as obligatory as if the act itself had prescribed an oath of office. Compensation, while a usual incident to office, is not a necessary element in the constitution of an office. State of Ohio ex rel. Attorney General v. Kennon et al., 7 Ohio St., 547.
    In the creation of a new office and constituting the judges of the court of common pleas the officers thereof, the act under consideration differs from the laws before the court in the cases of State v. The Judges, 21 Ohio St., 1; Walker v. Cincinnati, 21 Ohio St., 14, cited by plaintiffs in support of their contention that the act under consideration simply annexes new duties to an existing office. The laws before the court in both of those cases required the judges, as such, to perform the duties imposed; in both of those cases, therefore, the duties were annexed to an office already existing. Neither of the cases cited is, therefore, in point. The facts of our case are analogous to the facts in State v. Kennon, supra.
    
    There being an office, it is unquestionably an office of trust. The judges of the court of common pleas, under the constitution, can not hold this office of trust, as required by the act under consideration.
    The act is in conflict with article 2, section 27 of the constitution, which provides that no appointing power shall be exercised by the general assembly except as provided in the constitution.
    The act not only creates an office, but it appoints the persons who are to perform the duties of the office. The act requires the judges of the court of common pleas of each county to perform the duties of this office — not the judges of the court of common pleas as such, nor the court of common pleas itself. The term is used simply to designate the persons who are to constitute the commission to fix the amount of compensation of the surveyor of the county; in other words, the legislature has undertaken to appoint the persons who are to perform the duties of this office,,and this is in direct conflict with article 2, section 27 of the constitution.
    The legislature in this act has not prescribed how these officers shall be appointed, but has appointed them itself, and this, by the express terms of the constitution, is prohibited.
    The act is in conflict with article 2, section 26 of the constitution, which provides that all laws of a general nature shall have uniform operation throughout the state. The law under consideration is a law of a general nature, and therefore, must operate uniformly throughout the state. State ex rel. Guilbert v. Yates, 66 Ohio St., 546; State ex rel. Guilbert v. Lewis, 69 Ohio St., 202.
    The constitutionality of an act, under article 2, section 26, is determined by its operation and effect and not by its form. Hixson v. Burson, 54 Ohio St., 470.
    The trouble with the act under consideration is, that it creates too many commissions, one for each county. The result will be that in no two counties will the same compensation be paid for the same service. While we have not the data before us to demonstrate this, we venture the assertion that an investigation will disclose the fact that the above statement is correct. We can, at least, safely say that the salaries fixed by the judges in the different counties will be far from uniform, for the same service,, throughout the state.
    The judges of the court of common pleas cannot be compelled to perform the duties required of them , by the act.
    This is the first case before this court in which it has been attempted by a proceeding in mandamus to compel the judges of the court to perform legislative duties conferred upon them by an act of the general assembly. In all previous cases the judges have consented to perform the duties imposed upon them by the act, and their right to perform such duties has been questioned by third parties — generally by a proceeding in quo warranto; in some instances by a suit for a permanent injunction, as in Walker v. Cincinnati, 21 Ohio St., 14. In these cases the court has said that while such duties are not strictly judicial, and that the judges could not be compelled to perform them, still there is no valid objection to the performance of them by the judges, if they choose to perform them, and that third persons can not object to the exercise of the powers conferred, on the ground that, their performance could not have been enforced. State v. Gazlay, 5 Ohio, 14; State v. Judges, 21 Ohio St., 1; Walker v. Cincinnati, 21 Ohio St., 14.
    In the case at bar the defendants decline and refuse to perform the duties conferred, and this proceeding is an attempt to compel them to perform such duties. Upon the authority of the cases last above cited, the defendants can not be compelled to perform these duties. The duties are legislative and not judicial, and should be performed by the department created to perform them. Can it be doubted that, in view of the overcrowded condition of some of the trial dockets of the common pleas court, that the judges of such court are justified in refusing to perform any duties that are not incident to the office of a judge, to say nothing of the wisdom of - a policy which permits such duties and powers to he conferred upon the office of a judge.
   Crew, J.

The sole question involved in this case is that of the constitutionality of an act of the general assembly passed April 25, 1904, entitled an act “Fixing the salaries of the county surveyors in various counties of the state.” This act, found in 97 Ohio Laws, pages 313 and 314, omitting the enacting and repealing clauses, is as follows:

“Section 1. The county surveyor in each county of the state of Ohio shall receive in full compensation for his services a salary not to exceed $3,000 per annum, and the judges of the court of common pleas of each county are hereby constituted a commission to fix the amount of compensation of the surveyor of the county. Such annual compensation shall he so fixed once each year. When such a commission shall deem .it necessary the county surveyor may appoint deputies, not exceeding three (3) in number, as prescribed in section 1166 of the Revised Statutes of Ohio, at a salary for one, not exceeding two-thirds of the salary of the surveyor; and for the other two, not exceeding for each, one-half of the salary of the surveyor per annum; and shall appoint such other assistants as are provided for in this act.
“Section 2. Said commission shall fix an aggregate sum to he expended for the compensation of such assistants, engineers, draftsmen and inspectors as may he deemed necessary to properly carry out the official duties of the office. The compensation of the surveyor, his deputies and other employes shall be paid monthly on the warrant of the county auditor out of the various improvement funds of the county in such amounts as may he pro rated by the-county auditor, to the various improvement funds. The county surveyor shall be responsible for the inspection of all public improvements, planned by him. The board of county commissioners shall allow the-surveyor and' said other employes their actual and necessary traveling expenses while engaged on county work, a statement of which expenses shall be-verified under oath by the person incurring the same. ’ ’ that the powers and duties of each, shall he separate-from and independent of the powers and duties of the other co-ordinate branches, and the distribution so made to the several departments, by clear implication operates as a limitation upon and a prohibition of the right to confer or impose upon either powers that belong distinctively to one of the other co-ordinate branches. Kilbourn v. Thompson, 103-U. S., 168. Judge Cooley in his work on Constitutional Limitations, page 126, speaking of this distribution of powers, says:

By the provisions of this act the county surveyor of each county of this state shall receive, in full compensation for his services, a salary not to exceed $3,000 per annum, the amount thereof to be fixed and determined by the judges of the court of common pleas of each county, who are by said act constituted a commission for that purpose and charged with the-duty of determining and fixing the amount of compensation that shall be paid to the county surveyors-in their respective counties. The first question perhaps that naturally suggests itself upon a consideration of this statute is, Are the powers conferred and the duties imposed upon the judges of the court of' common pleas by this act, legislative or judicial in their character? If purely legislative in their nature, then their delegation to a commission or tribunal other than the legislature itself is unauthorized, because inhibited by the constitution, for while-the constitution of Ohio does not in express terms forbid the conferring of powers belonging to one branch of the state government on any co-ordinate branch,, yet the fact that these governmental powers have been severally distributed by the constitution to the legislative, executive and judicial departments of our state government, clearly evidences a purpose--

“One of the most noticeable features in American constitutional law is the care which has been taken to separate legislative, executive and judicial functions. It has evidently been the intention of the people in every state that the exercise of each should' rest with a separate department. The different classes of power have been apportioned to different, departments, and as all derive their authority from the same instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others.”

The power attempted to he conferred upon the-judges of the court of common pleas of the several counties of this state by the statute here under consideration is, by the express terms of the statute, the-power to fix and determine the amount of compensation to he paid to county surveyors in their respective counties. The power so given, and the <luty thus, imposed, is not to determine the value of services already rendered and to fix the amount of compensation therefor with reference to the value so determined, requiring only the exercise of a judicial function, hut it is to fix a compensation or salary in advance of the services to be rendered by a county officer (county surveyor), in such sum as said.judges may determine, not exceeding $3,000 per annum. The constitution of Ohio, article 2, section 20; provides that: “The general assembly in eases not provided for in this constitution shall fix the term of office and the compensation of all officers. ’ ’ The constitution itself having thus in express terms confided to the legislative department the power to fix the compensation of all officers, that branch' of the government is without right to delegate such power to a coordinate branch. Yet this is precisely that which is attempted, and is what will be accomplished by the ■statute under consideration, if the legislature shall be thus permitted to designate and select the judiciary as its agent for the fixing of compensation or •salaries for county surveyors. In support of the ■constitutionality of this act counsel for plaintiff invokes the doctrine of Cricket et al. v. The State, 18 Ohio St., 21, where it is said by this court, Judge White announcing the opinion, that “The duty enjoined by this section (sec. 20, art. 2) in regard to fixing the compensation of officers, does not require the general assembly to fix the sum or amount which ■each officer is to receive, but only requires that it shall prescribe or fix the rule by which such compensation is to be determined. ’ ’ But the interpretation thus given to this section can have no application in the present case nor can it aid us in determining the question of the validity of the statute here under consideration, for the very good and sufficient reason that this statute neither fixes the amount of compensation that shall be paid to county surveyors, nor does it “prescribe or fix a rule” by which the amount of such compensation is, or can be, ascertained and determined. Under this statute the amount of compensation to which county surveyors shall he entitled is to be determined solely by the judges, and the amount of such compensation or salary in a particular county can only be ascertained and known after the same shall have been fixed and determined by the judges of the court of common pleas of such county. In fixing the same, within the maximum limit prescribed, no rule need be followed, and no uniformity as to the amount allowed is required; but the amount fixed by the judges of one county may be more or less than the amount fixed by the judges of another county for exactly the same character of service, for the act itself prescribes no rule by which the amount is to be determined. . We are therefore unanimously of the opinion that the fixing of the compensation in the mode provided would be the exercise of a legislative function and that the power attempted to be conferred by this act upon the judges of the court of common pleas is purely a legislative power and may not rightfully be so delegated ; that for this reason the act is in conflict with section 20, article 2, of the constitution and therefore unconstitutional and void. In their brief in this case counsel for defendants contend that this act is invalid for the further reason that it is in conflict with certain provisions of the constitution other than section 20, article 2. But having determined that the act is invalid because repugnant to the last-named section we have not thought it important to consider the other objections to its validity urged by counsel in their brief.

The demurrer to the petition will be sustained and the petition dismissed.

Spear, C. J., Davis, Shauck, Price and Summers, JJ., concur.  