
    The State of Ohio ex rel. Allison v. Garver et al. The State of Ohio ex rel. Allison v. Mackey et al.
    Acf “To limit compensation of county officers” in certain county— Is law of general nature and therefore invalid and void— Sec. 26, Art. 2 of Const. — Act to take effect when a majority of the voters declare in its favor — Is law passed upon approval of authority other than general assembly — And is therefore unconstitutional — Constitutional law.
    
    1. The act “to limit the compensation of county officers in Holmes county,” passed April 26, 1898 (93 O. L., 660), is a law of a general nature which does not operate uniformly throughout the state; and it is therefore in violation of the constitution, article 2, section 26. State ex rel. Guilbert v. Yates, ante, 546, approved and followed.
    2. An act of the general assembly not coming within the exceptions stated in the constitution, article 2, section 26, which is passed to take effect and be in force when a majority of the voters at an election shall declare in favor of a salary law, and if a majority of the voters do not so declare 'to be void, is passed to take effect upon the approval of authority other than the general assembly, and it is therefore unconsitutional and void.
    (Decided June 24, 1902.)
    
      Error to the Circuit Court of Holmes county.
    The first named case is a petition for a writ of mandamus against the defendants commanding them to perform the duties imposed upon them by law, namely, that the defendant Garver, as prosecuting attorney, shall examine and certify, and the defendant Tanneyhill, as probate judge, shall examine and approve the itemized statement of account of the relator for per diem, mileage and expenses as the relator avers he is entitled to, and for all proper relief.
    Petition set out the act 93 O. L., 660, and alleged that it is in violation of this constitution, Art. 2, Sec. 26.
    The second case named is an action in the name of the state by Theodore Allison as a citizen and taxpayer of Holmes county, to enjoin the defendants from receiving and paying money under an act entitled “An act to limit compensation for county officers in Holmes county,” passed April 26, 1898 (93 O. L., 660). Both the court of common pleas and the circuit court rendered judgment in favor of the defendants in error.
    
      Mr. W. Sbilwell, for plaintiff in error.
    Questions. Is this act 93 O. L., p. 660 in violation of Sec. 26, Art. 2, of the constitution of Ohio?
    First — In being on a subject of a general nature, yet local.
    Second — In submitting to a vote of the people the question of taking effect of the law.
    The provision for a vote takes the case out of the rule that otherwise the act takes effect on its passage. 7 Law. R. R., 3764; Barto v. Hinrod, 8 N. Y. (4 Seld.), 482.
    
      T3ie question is not operating under an act in force, a sample of which, in the same year is, general Sec. 2825, Rev. Stat., 93 O. L., 99. Every law requires the act of some person for its execution. Such are the cases of Railway Co. v. Commissioners, 1 Ohio St., 77; Gordon v. State, 46 Ohio St., 609; Hammond v. Haines, 25 Md., 541; Parker v. Commonwealth, 6 Pa. St., 507; Locke’s Appeal, 72 Pa. St., 491.
    Section 26, Art. 2 exempts from its operation school laws, while Sec. 30, Art. 2, and Sec. 13, Art. 7, specially provide for vote on taking effect in certain cases. Of this character are State ex rel. v. Commissioners, 5 Ohio St., 497; Noble v. Commissioners, 5 Ohio St., 524; Peck v. Weddell, 17 Ohio St., 271; Weaver v. Cherry, 8 Ohio St., 564.
    The views of all parties in constitutional convention of 1851, are found in 2 Deb., 218-228, 568, 579, 633, 807, 831, 833. Private corporation acts are on a different basis. Angell & Ames Corp., 81.
    Except in Kentucky on the prohibition question; Wisconsin and one or two other states having no constitutional prohibition, which have served from true principles. Sound reasoning, and authorities sustain our claim. Cooley on Taxation, 63; State v. Young, 28 Minn., 474; People v. Nevada, 6 Cal., 143; 6 Am. & Eng. Ency. of Law, 1023; Cooley Const. L., 137-146; Santo v. State, 2 Iowa, 165; State v. Geebrick, 5 Iowa, 491; State v. Weir, 33 Iowa, 134; State v. Morris (N. J.), 12 Al. Reg. (N. S., 32); Lammert v. Lidwell, 62 Mo., 188; 65 Ga., 645; State v. Simmons, 32 Minn., 540; Dampf’s Appeal, 106 Pa. St., 72; State v. Armstrong, 3 Sneed (Tenn.), 634; Territory v. Stewart, Wash., 98; People v. Clark, 47 Cal., 456; Richmond v. Fisk, 160 Mass., 62; Scofield v. Lansing, 17 Mich., 437; Bellinger v. Gray, 51 N. Y., 610; Robinson 
      v. Dodge, 18 Johns. (N. Y.), 351; State v. Hahn, 474; Bremer v. Inhabitants, 62 Me., 62; State v. Copeland, 3 R. I., 33; State v. Wilcox, 45 Mo., 458; Wall, Ex parte, 48 Cal., 279; Lum v. Robertson, 71 U. S. (6 Wall.), 279; The Oliver, In re, 17 Wis., 681; State v. O’Neill, 24 Wis., 149; Smith v. Janesville, 26 Wis., 291, misconceived the Railway Co. v. Clinton Co., 1 Ohio St., 77, as is shown by quotation in Oliver, In re, 17 Wis., 681, from People v. Burr, 13 Cal., 357.
    So also in Commonwealth v. Weller, 14 Bush (Ky.), 218, the court misunderstood Cooley, p. 223. State v. Parker, 26 Vt., 357, is no authority as the act took effect in any event. See also as to the Vermont case of People v. Collins, 3 Mich., 343.
    The rule expressio unius, etc., in absence of prohibition of such submission would exclude such legislation.
    Indiana and Oregon have like provisions as Sec. 26, Art. 2, and in both states have been held to prohibit submission to a vote as to taking effect of the act. Maize v. State, 4 Ind., 343; State v. Monroe, 11 Ind., 484; Brown v. Fleischner, 4 Ore., 132.
    A vote is not a contingency contemplated which refers to operating under a law in effect. See same authorities.
    We also cite Starin v. Genoa, 23 N. Y., 439; Gould v. Town, 23 N. Y., 456; Bank of Rome v. Rome, 18 N. Y., 38.
    
      Mr. Wm. F. Garver, for defendants in error.
    I. Law is presumed valid.
    A doubt of the constitutional validity of a statute is never sufficient to warrant its being set aside. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt. To be in doubt, therefore, is to be resolved, and the resolution must support the law. Cooley on Const. Law, 160; Supervisors v. Brogden, 112 U. S., 261; Railway Co. v. Commissioners, 1 Ohio St., 77; State v. Garver, 13-23 O. C. C., 140.
    II. A county salary law is constitutional. Cricket v. State, 18 Ohio St., 9.
    It is not essential to the exaction of fees that they should inure to the personal benefit of the officer. The officers are but the agents of the state for transacting the public business, and it is immaterial to those receiving their services whether the sum to be paid therefor goes to the officer or into the public treasury, pro-' vided no more is exacted than is just and reasonable for the facilities afforded and the service performed. State v. Judges, 21 Ohio St., 1.
    In the case of Hart v. Murray, 48 Ohio St., 605, the court, construing the act of May 15, 1886, placing the justices of the peace of Cleveland on a salary, says: “But it is contended that the act of May 15,1886, is a law of a general nature which does not have a uniform operation throughout the state, and is therefore in violation of Sec. 26 of Art. 2 of the constitution. The act, in our view, is local in its character. Its design is to regulate the amount of compensation to local officers, and does not come within the constitutional inhibition.”
    The system of compensation provided by the act is complete without reference to the penalties for official misconduct prescribed by Sec. 13, or to the effect to be given to an official bond by Sec. 14 of the act. Wherefore this system of compensation may be separated from and executed independently of these two sections and is not affected by the question of tbe constitutionality of either or both of them. Pearson v. Stephens, 56 Ohio St., 126.
    Since the decision in the Miami county case, Pearson v. Stephens, supra, similar salary laws have been passed for the following counties: Brown, 93 O. L., 574; Holmes, Ib. 660; Pickaway, Ib., 507; Tuscarawas, Ib., 513; Athens, 94 O. L., 697; Clermont, Ib., 408; Crawford, Ib., 581; Erie, Ib., 459; Fayette, Ib., 599; Highland, Ib., 412; Knox, Ib., 510; Lawrence, Ib., 549; Marion, Ib., 672; Meigs, Ib., 432; Morrow, Ib., 689; Muskingum, Ib., 681; Ottawa, Ib., 453; Putnam, Ib., 622.
    Thus the people of eighteen counties, relying upon that decision, have prevailed upon the general assembly to give them county salary laws. Will this court reverse that decision in face of the arguments advanced by the able judge who rendered that decision? And when they know that by so doing the county affairs of eighteen counties will be plunged into hopeless and almost inextricable confusion.
    III. When did the first twelve sections go into effect?
    The question is answered in two cases. State v. Perry Co. (Comrs.), 5 Ohio St., 497, and Noble v. Noble Co. (Comrs.), 5 Ohio St., 524. The court held that for the purposes of the vote, the acts took effect on their passage, though their operative effect was made dependent upon a vote of approval by a majority of the electors voting therefor. State v. Garver, 13-23 O. C. C., 140.
    Applying the above rule also disposes of plaintiff in error’s query as to whether Sec. 13 required a vote In the whole state, as to a local act. The relator in bis petition says, “The taking effect of said act is made to depend upon a vote of the electors of Holmes county.”
    Applying the above rule also disposes of relator’s claim that printing the question on the general ballot instead of a separate ballot was illegal. If relator had any objections against printing the question on the general ballot instead of on a separate ballot, he might have raised the question at the time by injunction, in which case he would not now be here contending that the salary law deprives him of his per diem under Sec. 897, Rev. Stat.
    IY. Submission to voters is constitutional.
    The decision of the circuit court in this case contains a very able and thorough discussion of this point and we cite State v. Garver, supra, and by reference make the same a part hereof. Compare the concluding paragraph with the conclusion in Gordon v. State, 46 Ohio St., 607.
    But it is not always essential that a legislative act should be a contemplated statute which must in any event take effect as law, at the time it leaves the hand of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event. Cooley on Const. Lim., 337-138.
    It is worthy of consideration, however, whether there is anything in the reference of a statute to the people for acceptance or rejection which is inconsistent with the representative system of government. To refer it to the people to frame and agree upon a statute for themselves would be equally impracticable and inconsistent with the representative system; but to take the opinion of the people upon a bill already framed by representatives and submitted to them is not only practicable, but is in precise accordance with the mode in which the constitution of the state is adopted and with the action of many other cases. Cooley, Const. Lim., 141, note; Railway Co. v. Geiger, 34 Ind., 185.
    The legislature may make a local law depend for effect upon the will of all the voters of a locality, or a majority, or upon the assent of a few. Hobart v. Supervisors, 17 Cal., 23; People v. Burr, 13 Cal., 343.
    The act of March 1,1872, is not unconstitutional for the reason that by the provision of Sec. 3, the previous sections were to be void, unless the town or citizens of Skowhegan should perform the same conditions therein mentioned. Walton v. Greenwood, 60 Me., 356; State v. Parker, 26 Vt., 357.
    An act authorizing voters to vote for license or against license was held constitutional in Locke’s Appeal, 72 Pa. St., 491.
    A valid law may be passed, to take effect upon the happening of a future contingent event, even where that event involves the assent to its provisions by other parties. Mayor v. Clinet, 23 Md., 449; 42 Md., 71.
    The taking effect of a statute affecting a particular county alone may constitutionally be made dependent upon the popular vote of that county. Commonwealth v. Weller, 14 Bush (Ky.), 218; 29. Am. Rep., 407.
    The Holmes county salary law was perfect in all its parts and could be enforced without any other legislation, when it left the hands of the general assembly. Since its passage, two sessions of the general assembly have been held, in which the law could have been repealed or amended.
    An act of thedegislature affecting the people of the whole state is not invalid because by its terms it was to take effect only after it should be approved by a majority of the popular vote at a certain election. Smith v. Janesville, 26 Wis., 292.
    
      Cooley on Const. Lim., page 144, note, in commenting on above decision-, says: “This decision, though opposed to many others, appears to us entirely sound and reasonable.”
    Act of March 1, 1851, providing that the subscription to the capital stock of a railroad shall not be made, until the assent of a majority of the electors of the county is constitutional. Railway Co. v. Commissioners, 1 Ohio St., 77.
    An act authorizing a subscription to the capital stock of a railroad, provided for a vote of the people, as a condition precedent to this subscription, and was held constitutional. Cass v. Dillon, 2 Ohio St., 607.
    Ranney, J., dissents from opinion in Cass v. Dillon, supra, and cites clauses of constitution which he claims have been violated, but does not claim Sec. 26 of Art. 2, of constitution has been violated. Weaver v. Cherry, 8 Ohio St., 565; Dexter v. Raine, 10 Re., 25 ; 18 Bull.; 61; Newton v. Mahoning Co., 26 Ohio St., 618; Peck v. Weddell, 17 Ohio St., 271; Gordon v. State, 46 Ohio St., 607.
    Particular attention is called to the citation and discussion of authorities in case last cited, Gordon v. State.
    
    The Ohio decisions uniformly support the proposition that “The taking effect of a statute may constitutionally be made dependent upon’ the popular vote.” We challenge plaintiff’s attorney to furnish an Ohio, authority to the contrary.
   Davis, J.

The statute “to limit the compensation of county officers in Holmes county,” (93 O. L., 660) which is drawn in question in these cases, is in conflict with the first clause of Sec. 26, Art. 2 of the constitution. For the reasons for our conclusion on this point we refer to State ex rel. Guilbert v. Yates, ante, page 546, which reasons need not be repeated here. This act is unconstitutional, also because it is conditioned to take effect only upon the result of an election by the people (Constitution, Art. 2, Sec. 26, second clause). Section 13 of the act provides for a vote upon the proposition, “For the county salary law. Against the county salary law;” and then provides that if a majority of the votes cast on said proposition shall be in favor of a salary law the act “shall take effect and be in force” from and after a day named, otherwise' that the act should be void. The act cannot take effect under the Revised Statutes, Sec. 77, because it contains a provision as to the time when it shall take effect and be in force, if at all. Hence the taking effect, as well as the enforcement of the statute, is made to depend on the approval of another authority than the general assembly, namely, the will of a majority of the electors. The entire legislative power of the state is vested in the general assembly (Constitution, Art. 2, Sec. 1), and even without the limitation contained in Sec. 26, Art. 2, it could not be delegated. It was held in Railroad Co. v. Commissioners, 1 Ohio St., 77, 87, which was a case under the constitution of 1802, that the power of the general assembly to pass laws could not be delegated by them to any other body or to the people; and this proposition is abundantly sustained by numerous authorities cited in the brief of the plaintiff in error.

The cases of State ex rel. v. Commissioners, 5 Ohio St., 497; Noble et al. v. Commissioners, 5 Ohio St., 524; Peck v. Weddell, 17 Ohio St., 271, and Newton et al. v. Commissioners, 26 Ohio St., 618, were all cases in which it was required by the constitution (Art. 2, Sec. 30) before the taking effect of the laws that they should be submitted to the electors of the counties to be affected thereby and adopted by a majority of the electors voting at such election. In each of those cases the question was whether some other thing than the voting was necessary before the law could “take effect;” and the court held that the acts became laws when adopted by a majority of the electors of the county, but that the legislative intention was that the law should not be enforced until the condition precedent should be performed. In Trustees v. Cherry et al., 8 Ohio St., 564, the court held that the vote which was required was a condition precedent to make an assessment to pay for the grounds which the trustees were authorized by the act to purchase. In Gordon v. State, 46 Ohio St., 607, the act in question provided that it should take effect and be in force from and after its passage; but the question was whether the local option provision contained in the act rendered it unconstitutional. The court held that the act “was a complete law when it had passed through the several stages of legislative enactment and derived noné of its validity from the vote of the people. In all its parts it is an expression of the will of the legislative department of the state.” Our conclusion is that there is nothing either in principle or the decisions of this court contravening the view which we have expressed concerning the effect of Sec. 13 of the act (93 0. L., 660). It affects the whole act and the act is as if it never had been passed.

Judgment o>f the circuit court and of the court of common pleas Reversed.

Buricet, Shauck and Price, JJ., concur.

Spear, J., concurs in the judgment of reversal and in the second proposition of the syllabus.  