
    Ohio ex rel. Holtz v. Commissioners of Henry County. Commissioners of Wood County v. Ohio, on the Relation of Louis E. Holtz.
    1. The act entitled “ an act to authorize the commissioners of the counties of Putnam, Wood and Henry to levy a tax to pay for certain fees therein named,” passed March 19, a. d. 3879, (76 Ohio Laws, 213) does not conflict with the constitution of the state.
    2. A claimant entitled to a payment under said act, whose account made out, attested, approved and certified, was duly presented to the county commissioners, and payment refused, is entitled, upon proper application, to a writ of mandamus to enforce payment.
    3. The commissioners of the county should pay one third of such claim, ■ although prior to the demand, they had, by paying more than one third of other claims, disbursed more than “one third part of all the fees and costs provided for ” in said act.
    Error to the District Court of Henry County.
    Error to the District Court of Wood County.
    The petition filed in the district court of Henry county read thus:
    “ The said relator represents that the said Lewis E. Holtz is now and for many years past has been, a citizen of. the state of Ohio, and of the county of Putnam; that heretofore, to wit, on the 8th day of October, A. D. 1872, he was duly elected to the office of county surveyor, in and for said county of Putnam and state of Ohio, and on the 6th day of January, 1873, duly entered on the duties of his said office, and continued therein discharging the duties of his said office, until the 3d day of January, 1876.
    That heretofore and on, to wit, the 15th day of October, A. D. 1873, one James Donald, with others, filed with the board of county commissioners of each of the counties of Putnam, Henry and Wood, in said state of Ohio, as authorized and required by law in such cases, a petition asking for the location and construction of a joint ditch, drain or water-course on and along a route commencing on the north line of Putnam county, Ohio, and running through portions of the counties of Henry and Wood to the Maumee river ; the said line as proposed in the said petition being over twenty miles in length, and designed to drain and materially benefit the lands lying adjoining the said proposed ditch in each of said counties of Putnam, Henry and Wood, the said ditch being known and designated on the records as the “ James Donald Ditch, or Ditch No. 88,” and at the same time the same James Donald, as principal petitioner, filed his bond with the auditor of Wood county, Ohio, with securities, to the acceptance of said auditor, in the sum of two hundred dollars ($200), conditioned to pay the costs, in case the said ditch should not be established by the said commissioners.
    “ That thereupon, due notice having been given of the filing of said petition and bond, the said commissioners of Putnam, Henry and Wood counties met in joint session at the town of Ottawa, Putnam county, Ohio, on the 9th day of June, A. D. 1874, and at said session proceeded to act on said petition as required of them by law, and at said session the said joint board of commissioners duly appointed your petitioner, Lewis E. Holtz, as surveyor and engineer, to go upon the line of said proposed ditch and to survey and level the same along the whole length thereof, to divide the same into suitable sections, make a computation of the number of cubic yards of earth to be removed from each section, estimate the cost of construction of the work, apportion the same to each parcel of land, specify the manner in which the work shall be done, the necessaiy floodgates, waterways, bridges and farm crossings to be made, together with such other suggestions as he should deem material for the proper construction of the said ditch, and to effect the most advantageous drainage of the land sought to be drained, and to make out and file with the several auditors of said oounties of Putnam, Henry and Wood each a plat and profile of the said ditch, together with a full report in detail, showing each and all the above specified facts, as soon as the said work could be done.
    “ That thereupon, in pursuance of said appointment and order of said joint board of commissioners in session as aforesaid, your petitioner proceeded to perform said work, and did go upon the line of the said ditch, and did survey and level the same as ordered, and as required by law regulating his duties in that regard, and made his report thereof in triplicate, showing in detail, and fully his proceedings and all the particulars hereinbefore enumerated, and filed his said reports so made in triplicate with the several auditors of the counties of Putnam, Henry and Wood, to wit, on or about the first day of December, A. D. 1874.
    “ That after the filing of said reports as above set forth, with the several auditors as aforesaid, notice therefor having been given to the several boards of commissioners as required in such cases, they met in joint session on the 7th day of January, A. D. 1875, at the town of Deshler, in Henry county, Ohio, to consider the said report, and thereupon ordered certain changes to be made in the manner of constructing the said ditch and in the size thereof, and ordered your petitioner, as such surveyor, to again go upon the line of the said ditch, make the said changes, and to prepare and file his supplemental report showing said changes, and embracing all the particulars relating thereto, as was contained in the original report so filed; and thereupon the said petitioner did go upon the said ditch and again survey the same, so far as necessary, in order to show said changes, and prepared his report thereof in triplicate as before, and filed the same with the said auditors as with said original report.
    “ That after the filing of the said supplemental report as aforesaid, the said commissioners again met in joint session, at the said town of Deshler, on to-wit, on or about the 23d day of February, A. D., 1875, to consider the said report and other matters pertaining to the said ditch.
    “ That at said joint session the said commissioners ordered still other and farther changes to be made, in size, length and manner of constructing said ditch, and again ordered your petitioner to go thereon as such surveyor, and to again make out and file as before, in triplicate, an additional amended and supplemental report, showing the said changes, additions and other things so ordered, and which was done as ordered, and the report thereof, in triplicate, was filed with the several county auditors as before stated.
    “That after the said second amended and supplemental report was so filed by your petitioner, the said commissioners again met in joint session at the said town of Deshler, on to-wit, the 7th day of April, A. D., 1875, to consider the said several reports, and their other duties, relating to the said ditch, as proposed to be located through the said counties as aforesaid, and thereupon, at the said joint session, the said commissioners, being of the opinion that the said report and the amendments thereto, so made by petitioner, were in all respects correct and in conformity to law, accepted the same as authorized by law in the premises, and the said report being so accepted the said commissioners proceeded to farther consider the question, as to the location of the said ditch, and being of opinion that the second section of the law, regulating their duties in the premises, as amended March 28, 1873 (70 Ohio Laws, 79), had not been complied with by the said petitioners, in that no bond had been given, as required by law, sufficient to cover the costs of the location of said proposed ditch, and notwithstanding their acceptance of the said reports as aforesaid, and without any fault or neglect of your petitioner, proceeded to, and did, dismiss the said petition and proceedings absolutely, and adjourned their said joint session without day, leaving your petitioner and others who had performed labor and expended money, without any means of recovering their costs and pay for labor done under the orders of the said joint board of commissioners, so made as aforesaid, save such as would have been afforded by the said bond, hereinbefore referred to, as given by said James Donald and others on filing the petition.
    “ That under the said order so appointing your petitioner as such surveyor, he had, in addition to the said labor performed, been compelled to pay, and had paid, large amounts of money for necessary expenses and assistance in said work, as will be more fully shown hereafter; that the said bond so given by the said James Donald and others when the said petition was filed, was only for the sum of $200, and the parties who executed the same, both principal and surety, were not responsible in law for the amount thereof, and the same could not be collected from them or either of them, and the costs made under the said petition were largely in excess of the amount of said bond.
    “ That by reason of the premises your petitioner was left without any provision in law for the payment of the amount allowed him by law for said services, and also his said expenses and money paid out for assistance as aforesaid; that the several boards of county commissioners, both in joint sessions and otherwise, claimed and asserted that they had by law no power or authority to pay the same, nor did they, nor any or either of them, ever allow to petitioner, all or any portion of said fees and expenses, nor has the same, or any part thereof, ever been paid by any person, or in any way, nor could the same, under the provisions of any law then enacted, have been collected from the said commissioners, nor the said auditor, nor any person whatever.
    
      “And your petitioner states further, that in order to secure to petitioner the legal fees allowed to him as such surveyor of said ditch by law for said services, together with all money paid out, expenses incurred therein by him, the legislature of the state of Ohio, on the 19th day of March, A. D. 1879, passed an act entitled “ An act to authorize the commissioners of the counties of Putnam, Henry and Wood to levy a tax to pay certain fees therein named,” which said act took effect on the 19th day of -March, A. d. 1879, (see 76 Ohio Laws, 213 and 214), and remains in full force and effect, and by which said act it was provided, among other things, that the said commissioners of the counties of Putnam, Henry and Wood, on the presentation of an account duly verified and approved, as provided in the second section of said act, by each or any one of the several persons in the said act named, were authorized and required to pay the said account to the said party, or his assigns-, or legal representatives, each of said counties paying its equal proportion thereof out of the general county funds of such county, and to reimburse itself for said payment the said several county commissioners shall, at their June session, 1879, levy a sufficient tax on all property liable to be taxed within such county so paying its said proportion.
    “ That in pursuance of the said law your petitioner proceeded to, and did, on the 11th day of April, A. d. 1879, make out an accurate and itemized account of all services by him rendered at the rate allowed by law therefor, all money by him advanced, by whom and to whom advanced, and expenses incurred in and about his said appointment and services on the said ditch as aforesaid, amounting to the sum of $806.37, duly verified by him as by said law required, and procured the same to be examined by the probate court of Putnam county, Ohio, being the county where petitioner resides, and the same was by said probate judge duly certified as required by said law; that the charges therein set forth were in accordance with the statutes in such cases made and provided, and thereupon on the 2d day of July, A. D. 1879, lie presented the said account, so verified by him and certified by said probate judge, to the board of commissioners of Henry county, Ohio, and asked that the same be allowed, and ordered to be paid by them, to the amount of the proportion or share which, by the said law, the said county of Henry would be required to pay, to wit, the one-third thereof, as by the said law required, a correct copy of which said account, duly verified, together with the said certificate of the said probate judge thereon, is hereto attached, marked “ A,” and by reference made part hereof.
    “Your petitioner says, that before the time when the said commissioners in joint session, as aforesaid, had so appointed him to survey the said ditch and make said reports, as hereinbefore set forth, a large amount of costs had been already made on said petition by other surveyors and parties in attempting to run the said line and make said reports, which was largely in excess of the amount of said bond so given by the said James Donald, said costs so made amounting, according to the best information of petitioner, to about the sum of $800.
    “ That the said commissioners of Henry county, when the said account was so presented to them, as above set forth, notwithstanding the said law and its requirements, and disregarding the same and their duty thereunder, without any fault or neglect whatever on the part of petitioner, and without any excuse or cause therefor, refused, and still refuse, to allow the said account to the amount of the one-third part thereof required to be paid by the said Henry county, and on their refusal as aforesaid, the auditor of said county is prevented from issuing his order, as by law he is required to do, for the said amount so due relator on the said account so presented, when allowed by said commissioners, notwithstanding the fact that there was, at the time the said account was so presented, sufficient money in the treasury of said county, applicable to the payment thereof, to have paid the said account in the amount due from said county.
    “And said petitioner says, that by reason of the facts, and the acts of the said commissioners, respondents herein, he is left wholly without remedy in the premises, unless it be afforded by this honorable court.
    “ And said petitioner therefore prays that a writ of mandamus may issue against the board of county commissioners of Henry county, Ohio, commanding them that they immediately proceed to allow the said account of petitioner, to the amount of the one-third part thereof, as by the terms of the said law, they are required to do, and that the said court do make such other and further orders in the premises as justice may require.”
    This petition was duly signed and verified, and a copy of the account was attached thereto. The aggregate sum due was $806.37, of which $268.79 was demanded of the defendants.
    The commissioners of Henry county answered. 1st. That the said respondents on the day of May, A. D. 1877, by an order issued by the auditor of said county of Henry, upon the treasurer of said countjq payable out of the county fund of said county, paid to L. L. Orwig, editor of the “Democratic Northwest,” a newspaper printed and published in said county of Henry, for printing and publishing notices of the said Joint County Ditch, known as the “ James Donald Ditch, or Ditch No. 88,” under and by direction of the joint board of commissioners of said counties of Putnam, Henry and Wood, the sum of $205.75; and that said respondents, on the 7th day of October, A. D., 1878, also paid to Henry Kolbe, civil engineer of Henry county, by like order, issued by the said auditor upon said treasurer, payable out of said county fund, for services rendered by him as such engineer, and for money advanced by him for assistance and expenses in running the line and making computations, plats and profiles of said Joint County Ditch, under and by direction of the said joint board of commissioners of said counties of Putnam, Henry and Wood, the further sum of $647.00, making in all the sum of $852.75 paid by said respondents on account of said Joint County Ditch.'
    
      That said sum of $852.75 so paid by said respondents on account of said Joint County Ditch, was more than the one third part of the entire cost and expenses incurred in and about the proceedings in said Joint County Ditch.
    2d. That said act of the General Assembly of the state of Ohio, entitled “an act authorizing the commissioners of the counties of Putnam, Henry and Wood, to levy a tax to pay certain fees therein named,” and under which this proceeding is brought, is unconstitutional, in that the same is retroactive, and creates a new obligation in respect to a transaction already past.
    The first defense was demurred to, and a reply denied that said act was unconstitutional. At March Term, A. D. 1881, the district court of Henry county found “ upon the issues joined for said respondents,” and dismissed the application at the cost of the relator.
    To a like petition in the district court of Wood county, the county commissioners of that county answered.
    I. That said relator has a plain, adequate remedy in the usual and ordinary course of the law for the wrongs and grievances complained of in his said petition.
    II. That said joint board of county commissioners of the counties of Henry, Putnam and Wood never acquired jurisdiction over the subject matter of said Ditch No. 88, known as the “ James Donald Efitch,” because, as respondents aver, there was never any bond given or filed as required by law for the making of said improvement.
    III. That the labor performed and money expended by relator, and for which compensation is herein demanded did not in any manner benefit the property on the line of said proposed ditch, nor was the same of any benefit whatever, either directly or indirectly to the property or tax-payers of Wood county, Ohio.
    IY. That respondents are not liable to the said relator for the sum of money demanded in his petition or any part thereof. Neither is said county of Wood responsible to the ■ said relator therefor, nor would said respondents be justified in levying a tax on the property of said county to pay the same as is required and authorized by the act of the General Assembly of the State of Ohio, passed March 19,1879, (Ohio Laws, vol. 76, pp. 213-14), because respondents say they are informed by counsel, and so charge the fact to be, that said act is unconstitutional and therefore void.
    V. That said act of the General Assembly being of doubtful constitutionality, respondents believe they would not be justified thereunder in levying a tax upon the whole property of said county to pay the claim of the relator.
    Demurrers to the second and third defenses were filed, and a reply denied the averments touching the constitutionality of the act of 1879.
    At August Term A. D. 1882, the district court of Wood county found for the relator, and awarded a peremptory writ of mandamus as prayed for.
    The defeated party in each case filed a petition in error in the supreme court, and both cases were submitted upon the same briefs.
    
      Lewis B. Holtz and Swan & Barton, for Holtz.
    
      Tyler & Meehan, for the commissioners.
   Granger, C. J.

In Sessions v. Crunkilton, Treasurer of Defiance County, 20 Ohio St., 349, the supreme court held that the act of May 1, 1862, entitled “ an act to provide for locating, establishing and constructing ditches, drains and water courses in townships,” was not repugnant to the constitution; that “the construction of drains by townships in cases where the public health, convenience or welfare demands it, is within the meaning of police purposes; ” and that the power to levy assessments under that act was properly granted under the 7th section of the 10th article of the constitution.

That section applies also to county commissioners and similar boards, and therefore, under this decision, the act of April 12, 1871 (68 Ohio Laws, 60), is valid.

Such ditches are public improvements. The General Assembly has full power to provide for them. It is authorized to use local boards as convenient instrumentalities. So soon as tbe bond, with securities to the acceptance of the county auditor was filed, the county commissioners of the three counties were clothed with full jurisdiction of Donald’s petition. Section two, as amended by the act of March 28,1873 (70 Ohio Laws, 80), made it their duty, so soon as the auditor furnished to them a copy of the petition, to “ direct the county surveyor * * * to go upon the line,” and perform the duties specified in said section. While so acting, the surveyor was discharging a public duty under competent public authority. The public was under obligation to provide for his compensation. This the legislature undertook to do. It required a bond with securities approved by the auditor. If the commissioners should “fail to establish the ditch,” they could collect from the obligors “all expenses.” This would supply them with funds out of which to pay the surveyor and others properly employed by them under the petition. The general assembly could select the mode of obtaining the money. The county commissioners could make no payment out of any fund other than the one designated by law. If the auditor had made no mistake in fixing the amount of the bond, and' in determining as to the sufficiency of the securities, the commissioners would have had ample means out of which to pay their employees in this matter. The mode provided by the act of 1873 having failed to create such fund, the act of March 19, 1879 (76 Ohio Laws, 213), ordered payment, of one third of the expense, out of the “general .fund ” of each county, and authorized the county commissioners of each of the three counties to levy a tax “ on all the property liable to be taxed in their respective counties, sufficient in amount to reimburse said several general county funds for the sum so paid out on said claims.”

Counsel for the county commissioners claim that this act of 1879 is void because,—

1st. It is in derogation of sec. 2, art. 12, of the constitution.

2d. It is in conflict with the provisions of art. 2, sec. 28, which declares that “ the General Assembly shall have no power to pass retroactive laws,” etc., and,—

3d.' It is the exercise of judicial, and not legislative power. For it will be noticed that the statute is in the nature of a judgment of a court, finding and deciding the rights of relator.

We are unable to understand how this act is in derogation of section 2 of article 12. It makes no change whatever in the “ uniform rule ” of taxation fixed by the general statute regulating taxation. It directs the levy of the tax in accordance with said general statute.

Is it a retroactive law?

It is a law authorizing the levy of a tax to make good a deficiency. Under section 7 of article 10, the acts of 1868 and 1871, might have authorized a levy of the entire expense upon the general duplicate. Suppose a provision to that effect had been made in those acts, so limiting the per centage of the tax, that the sum collected was less than the expenses to be paid. Can there be doubt that the general assembly had full power, by another act, to authorize a levy to make good such deficiency ? Whatever doubt may exist touching the power to add to assessments made' upon abutting property under a law providing for an improvement, by a subsequent enactment, we think it-is plain that the legislature has full power to authorize levies, upon the general duplicate, to make good deficiencies of the kind above referred to. We think the case of The State v. Commissioners, 37 Ohio St., 526, sustains this position. The improvement being a public work, the employee, having discharged duties imposed upon him pursuant to a valid statute, became entitled to compensation from the county. The fact that the county, by reason of a mistake of one of its officers, had no power to collect the money from the petitioner for the ditch and his securities, did not affect the merits of the surveyor’s claim. The fact that, under the statutes in force while he did the work, no county official had authority to pay him any money not collected on the bond, did not affect the character of his claim. The facts remained that the public had employed him; that he had faithfully done his duty, and that the money was due to him from the county.

The defect was in the public machinery. No public agent had authority to take public money and pay the debt. The only “appropriation act” relating to the matter, designated, as the sole fund on which the county could draw, the proceeds of a collection of the bond. As nothing had been, or could be, collected thereon, that fund remained, and would remain empty — or perhaps we may say “ overdrawn.” The acts in force while the work was being done, having authorized the contract; the incurring of the obligation; the act of 1879 created no new obligation ; made no alteration in the contract, and imposed no additional burden upon abutting land owners. It only empowered the county commissioners to pay a public debt lawfully theretofore contracted, out of the general fund, and to levy a tax to reimburse that fund.

Was the act of 1879 an exercise of'judicial, and not legislative power?

It named the persons to be paid, but it did not determine what services either of them had rendered; nor the amounts to be paid to each. It designated the probate judge as the county official before whom proof should be made, and by whom the sum due to each claimant should be determined. It ordered the county commissioners to pay the claims as so determined by said Judge. In this we see no exercise of judicial power by the legislature.

Having obtained the decision, of the officer designated by law, in favor of the amount and validity of his claim, the refusal of the commissioners left the relator without an adequate and complete remedy, unless he was entitled to a writ of mandamus. A denial of the writ would deprive him of a material part of that to which the plain purport of the act entitled him. Robertson v. Perrysburg, 27 Ohio St., 102, so, in effect, holds.

As we understand the act, each holder of a claim, duly approved and certified by the probate judge of his county, was entitled to demand payment of one third of his claim from each county. Whatever right Henry county may have to call upon Putnam and Wood to reimburse her for paying their respective shares of the claims of Orwig and Kolbe, such payments by her did not affect the rights of the relator.

The judgment of the district court of Wood county is affirmed. That of the district court of Henry county is reversed, and a peremptory writ of mandamus awarded as prayed for in the petition.

Dickman, J., dissented.  