
    The State, ex rel. Enos, Prosecuting Attorney, v. Stone et al.
    
      Office and officers — General policy fixing salaries — Not repealed by additional-compensation enactments — Effect of codification and subsequent legislation — Purpose of technical rules — County commissioners — Serving on quadrennial boards of equalization —Sections 3001 and 5597, General Code.
    
    1. When the general assembly of Ohio has entered upon a general policy of legislation, such as the abolition of the fee system and the establishment of fixed and certain lump sums as compensation for county officers, and provided that such compensation shall be in full payment for all services rendered as such public officer, such general statutes declaring such policy repeal by implication all other statutes in conflict therewith.
    2. Such policy of the general assembly should not be overturned or invaded by carrying or reenacting such impliedly repealed statute in the report of a codifying commission, which is subsequently adopted by the general assembly, or by some subsequent enactment of the general assembly, unless such other statute clearly evinces by appropriate language an intention and purpose to provide “an additional salary.”
    3. Mere technical rules of law or interpretation may be invoked to preserve the natural justice and substantial equities of any given case, but they should not be permitted to defeat or destroy the same.
    (No. 14457
    Decided May 4, 1915.)
    Error to the Court of Appeals of Guernsey county.
    Facts are stated in opinion.
    
      Mr. B. F. Enos, prosecuting attorney; Mr. Timothy S. Hogan, attorney general, and Mr. J. M. McGillivray, for plaintiff in error.
    
      
      Mr. Charles S. Turnbaugh, for defendants in error.
   Wanamaker, J.

There is but one question in this case: Was a county commissioner in the year 1910 entitled by law to compensation as member of the quadrennial county board of equalization, under Section 2813a, Revised Statutes, now Section 5597, General Code, in addition to his salary, as provided in Section 897, Revised Statutes, now Section 3001, General Code ?

For many years the people of Ohio had been endeavoring to abolish the fee system as pertaining to county officers. County officials, whose chief work in many cases was done by efficient deputies, were being paid by the people of the county enormous sums after the manner of fees and other emoluments; amounts in excess of the salary of the governor and, in some counties, even in excess of the salary of the president of the United States. In general assembly after general assembly the people had been defeated in this endeavor by a thoroughly organized lobby, with all the funds and allies it could command, and finally outraged public opinion had its way and abolished the infamous county fee system of the state in the year 1906 (98 O. L., 89).

Section 1 of said salary act, now Section 2977,' General Code, is as follows:

“All the fees, costs, percentages, penalties, allowances and other perquisites collected or received by law as compensation for services by a county auditor, county treasurer, probate judge, sheriff, clerk of courts, or recorder, shall be so received and collected for the sole use of The treasury of the county in which they are elected and shall be held as public moneys belonging to such county and accounted for and paid over as such as hereinafter provided.”

This section, as well as the sections following, clearly indicates the settled purpose and fixed policy of the state to pay county officials a fixed lump sum, no matter what additional duties may be imposed on them from time to time, unless there be a clear purpose to add further compensation for such further duties.

Sections 5 and 6 of said salary act require the county officers therein named to file a full report and to pay into the county treasury the money and fees .that they have received as such county officers, and under Section 22 their wilful failure to do the same is made a penal offense for which they are indictable.

The section applying to salaries of county commissioners is Section 3001, General Code, formerly Section .897, Revised Statutes, which reads:

“The annual compensation of each county commissioner shall be determined as follows:
“In each county in which on the twentieth day of December, 1911, the aggregate of the tax duplicate for real estate and personal property is five million dollars or less, such compensation shall be nine hundred dollars, and in addition thereto, in each county in which such aggregate is more than five million dollars, three dollars on each full one hundred thousand dollars of the amount of such duplicate in excess of five million dollars. That the compensation of each county commissioner for the year 1912, and each year thereafter, shall not in the aggregate exceed 115% of the compensation paid to each county commissioner for the year 1911. In counties where ditch work is carried on by the commissioners, in addition to the salary herein provided, each commissioner shall receive three dollars for each day of time he is actually employed in ditch work; the total amount so received for such ditch work, not to exceed three hundred dollars in any one year. Such compensation shall be in full payment of all services rendered as such commissioner and shall not in any case exceed four thousand dollars per annum. Such compensation shall be in equal monthly installments from the county treasury upon the warrant of the county auditor.”

It will be noted from this last section that after fixing the salary for such county commissioner there is a second provision that it shall stay fixed until the general assembly shall amend the same, else what do the following words mean: “Such compensation shall be in full payment of all services rendered as such commissioner,” etc. ?

The general assembly has in certain cases provided for additional salary beyond the amount allowed by the general salary act, but the language of the section providing for such allowance is so clear and unmistakable as to the intention of the general assembly that there can be no doubt about it. To illustrate: Section 2846, General Code, provides: “Upon the certificate of the clerk and the allowance of the county commissioners the sheriff shall receive from the county treasury in addition to his salary his legal fees for services in criminal case wherein the state fails to convict,” etc.

Again, Section 3004, General Code, provides: “There shall be allowed annually to the prosecuting attorney in addition to his salary and to the allowance provided by Section 2914, an amount equal to one-half the official salary,” etc.

But even in this very section, 3001, General Code, which provides for the salary of the county commissioners, there appears this language:

“In addition to the salary herein provided, each commissioner shall receive three dollars for each day of time he is actually employed in ditch work.”

There is no doubt as to the purpose of this language in the statute. It is obviously clear that the legislature, by the use of the words “in addition to the salary herein provided,” meant thereby to increase the salary for ditch work to the maximum of $300.

When the board of equalization statute was enacted, if there had been a purpose to add to the salary, it is self-evident that some similar appropriate words indicating such clear purpose would have been employed in the statute.

Now, it is quite obvious that old Section 2813a. Revised Statutes, now Section 5597, General Code, providing for the three-dollar-a-day allowance, does not contain any such apt words as relate to the salary of sheriff, or salary of prosecuting attorney, or salary of commissioners in ditch matters, as referred to in the foregoing statutes.

Now, counsel for plaintiff in error, as well as the very able opinion of the court of appeals, admit that up to the time of the codification in 1910 the old Section 2813a, Revised Statutes, which purported to allow $3 per day to the county commissioners acting on the board of equalization, was repealed by implication. But it is contended that owing to the fact, and it seems a fact, that the codifying commission included Section 897, Revised Statutes, now Section 3001, General Code, and Section 2813a, Revised Statutes, now Section 5597, General Code, in their report, which was adopted by the general assembly of Ohio, and the further fact that in Volume 102, Laws of 1911, after repealing both of these sections they were again reenacted on the same day and by separate acts, these facts taken together indicate an intention to preserve to the commissioners the benefits of $3 per day as members of the board of equalization.

Manifestly the commissioners of the county are members of the board of equalization-merely because they are commissioners. Their duties on the board of equalization are simply additional to their former duties as commissioners, and the language of the act, as it appears in said Volume 102, page 279, is identical with the language of the old law prior to the codification in 1910, except the name of the county board of equalization.

Counsel contend, by a system of technical reasoning, by invoking the law of presumption and the various rules applicable in the interpretation of statutes, all of which are necessarily more or less abstract and academic, that force and effect must be given to both statutes, and, therefore, that the salary as member of the board of equalization must be considered as additional to the salary provided in the general statute.

Now, there is but one justification for the application of a mere technical rule of law, and that is to preserve and protect the natural justice and the manifest equities of the case. Such rule ought never to be invoked or applied to defeat and destroy such justice and equity, and especially to overthrow the manifest and settled policy of the people of Ohio as to the salaries for county public officers. If it had been the intention of the general assembly to make this compensation additional to what had been theretofore provided, it is reasonable to presume that there would have been like language used as was used in reference to the compensation of the sheriff, compensation to the prosecuting attorney and compensation to the commissioners in ditch matters in the sections heretofore cited, where the language is “in addition to his salary,” making it perfectly plain and clear.

The judgment of the court of appeals is, therefore, reversed and the judgment of the court of common pleas affirmed.

Judgment of the court of appeals reversed, and that of the common pleas affirmed.

Nichols, C. J., Johnson, Jones and Matthias, JJ., concur.

Donahue, J.,

dissenting. It is not now important to discuss the question whether Section 2 of the act of the general assembly, passed April 21, 1904 (97 O. L., 254), fixing the annual compensation of county commissioners, repealed by implication Section 2813a, Revised Statutes.

Beyond all question the laws fixing a sum certain as salaries and compensation for county officers were enacted in response to a popular demand that the iniquitous fee system be abolished in Ohio, and it was evidently the intent and purpose of the general assembly of Ohio to abolish all forms of fees for county officers, in so far as it was possible, without inequality in the compensation paid to the same officers in the several counties of the state, but the legislature did recognize the fact that county officers should be paid fees in some cases at least, and specifically provided in this act itself that $3 per day should be paid for the time each commissioner was actually employed in ditch work.

This was absolutely necessary in order that there might be equality in the compensation paid for the services of these officers in the various counties. In some counties there might be no ditch work, in others very little, while in still others a very great amount. A fixed salary large enough to include reasonable fees for these services in some counties would be too large in others.

This section specifically declared that the compensation provided therein should be in full payment of all services rendered as such commissioners.

At the time this act became a law Section 2813a, Revised Statutes, provided that the county commissioners, for services performed by them as members of the board of equalisation, would be entitled to receive $3 per day.

The act of April 21, 1904, did not in express terms repeal this section, and unless it did repeal it by implication then both of these statutes were the law of Ohio up until the 14th day of February, 1910.

On that date the general assembly passed the General Code, which is a compilation and a revision of all the laws in force at that time, and in this General Code, Section 2813a, was rewritten and numbered Section 5597, General Code, and it was after the passage of this General Code that the services were performed by the defendant in error in this case.

It is therefore not important whether Section 2813a, Revised Statutes, was unrepealed or repealed in express terms or by implication. The adoption of the General Code reenacted it into a law. Section 1 of Article II of the Constitution of 1851, then in force in this state, vested all legislative power in the general assembly. The judicial power of the state is vested in the courts of this state, and the courts discharge their full duty when they interpret, construe and administer the laws as given by the lawmaking power of the státe.

It is insisted, however, that because of the fact that this section was reenacted in the General Code, the same was inadvertently done by the legislature, and that it was not its purpose and intention so to do. In answer to that contention it is sufficient to say that the general assembly of the state is presumed to have intelligence enough to discharge its duties to the state, and to know what it intends to do better than any coordinate branch of the government can possibly know. The very fact that it did this is sufficient for the purpose of this case.

If the legislature did pass this law inadvertently, it was the duty of the legislature, not the courts, to repeal it. During the time between its passage and repeal it must be given the same force and effect as any other statute of the state. There are perhaps a great many statutes that the courts and the people of the state may think are ill advised, unwise or unnecessary, but if the courts were to select out these statutes and declare that they could not be given any force or effect, because in the opinion of the court the legislature must have passed them inadvertently or through mistake as to their wisdom and necessity or because they seem to be in conflict with a policy evidenced by former statutes enacted by the same authority, it would be a clear and inexcusable usurpation of power and a direct interference with the constitutional authority of a coordinate branch of this government. That the legislature did intend to reenact this statute in the General Code, and that it is still satisfied therewith and believes it to be a wise and necessary measure, is so clearly evidenced by the act of the general assembly passed May 31, 1911, and approved by the governor of the state on the 7th day of June, 1911 (102 O. L., 277-279), that it is now beyond reasonable dispute, for in this later act it expressly repealed that section and reenacted it into another revision and codification of the laws of the state relating to the same subject-matter, and in this connection declared each section of this later act, including Section 5597, General Code, to be independent sections, and that the invalidity of one should in nowise affect the validity of the other.

As evidence of the fact that the general assembly did not believe that Section 2 of the act of April 21, 1904, relating to ■ the compensation and fees of county commissioners, was in conflict with the provisions of Section 2813a, Revised Statutes, and as evidence that it had intentionally and purposely and intelligently reenacted the latter section into the General Code under the sectional numbering 5597, on the same day it repealed and reenacted Section 5597 into the general revision of the laws relating to that subject, as above stated, it enacted into a law House Bill No. 183 (102 O. L., 514), entitled: “An act to amend Section 3001 of the General Code, relating to the compensation of county commissioners.” Section 3001 of the General Code was identical with the act passed April 21, 1904, fixing the annual compensation of the county commissioners. This act, passed May 31, 1911, amending Section 3001, after providing for the compensation of commissioners and $3 per day in addition thereto for the time actually employed in ditch matters, also provides that such compensation should be in full of all services rendered as such commissioners. Having provided, in a separate act passed the same day, that commissioners, while acting as members of the quadrennial county board of equalization, should receive the sum of $3 per. day for each day necessarily employed in the performance of these duties and the duties as members of the board of revision, certainly and surely it intended to distinguish between their duties as commissioners, for which a sum certain is to be paid in each county, and their duties as members of the quadrennial county board of equalization and the board of revision, for which it provided a separate and distinct compensation, otherwise the general assembly committed an inexcusable folly. This authority for the payment of $3 per day for each day employed in discharging the duties of the board of equalization and the board of revision, is just as plain and explicit as the provision for the payment of $3 per day to each commissioner for the time he is actually employed in ditch work.

The attorney general in his brief in this case concedes that since the two separate acts of May 31, 1911, became the law of this state, the commissioner is entitled to this compensation, and the only reason urged against his right to this compensation in 1910 is based upon the decision in The State, ex rel., v. Comrs. of Shelby County, 36 Ohio St., 326, wherein it is held that “Where an act of the legislature, or several acts in pari materia, have undergone revision, the same construction will prevail as before revision, unless the language of the new act plainly requires a change of construction, to conform to the manifest intent of the legislature.”

This is undoubtedly an established rule of construction in this state, but that does not mean that where a statute has been repealed, either in express terms or by implication, and when it is rewritten into and becomes a part of the revision of the laws relating to the same subject-matter, and has in this manner again found its way into the statutory law of the state, a court will hold that it is still repealed, because it would have so held had the question been raised between the date of its repeal and the date of its reenactment into law.

This proposition seems to be too plain to require further argument. The constitution of Ohio has committed to the general assembly of Ohio the authority to enact the laws of this state, and at the time these laws were enacted that body was the sole lawmaking power of the state. No one questions the constitutionality of either of these acts; therefore a court should not assume any authority not conferred upon it by the constitution of the state, nor attempt to measure its wisdom with the wisdom of the constitutional authority charged with the duty of enacting the laws and declaring the legislative policy of this state.

By reason of this valid and existing statute, in force at the time these services were performed, this commissioner is just as much entitled to these fees as the governor of this state or the respective members of this court are entitled to their salaries which are fixed and determined by the same authority.

There is no public policy in this state that prevents it from dealing fairly and honestly with its public officials, or prevents it from paying to any official, state or county, the salary and compensation that by statute it agreed to pay when the people elected him to that office.

Undoubtedly the taxpayers of this state demand economy in the administration of public affairs, but undoubtedly they are equally a unit in the demand that the state or county, or other public subdivision, shall deal as fairly and honestly with their public servants as each individual taxpayer would deal with a private employe of his own, and for that reason I cannot concur in the judgment entered in this case.

Newman, J., concurs in dissenting opinion.  