
    FEES — MUNICIPAL CORPORATIONS.
    [Scioto (4th) Circuit Court,
    May 8, 1906.]
    Jones, Walters, and Cherrington, JJ.
    Portsmouth (City) v. Cread Milstead. Portsmouth (City) v. James A. Baucus.
    1. Fees Payable into City Treasury Limited to Municipal Fees Only.
    The provisions of 96 O. L. 61, Sec. 126 (Rev. Stat. 1536-633; Lan. 3228) requiring “that all fees pertaining to any office shall he paid into the .city treasury” has reference to municipal fees solely, or such fees as may be fixed by municipal authority. ,
    2. Fees in State Criminal Cases Exempted.
    Said section does not authorize cities to interfere with the fees of mayors or chiefs of police in state criminal eases- whether such authority can be delegated to municipalities, quaere.
    
    [Syllabus by the court.]
    Error to Scioto common pleas court.
    G. M. Osborne, for plaintiff in error:
    On demurrer to amended petition, cited and commented on the following authorities: Revised Statutes 621a et, seq. (Lan. 987 et seq.)-, Hart v. Murray, 48 O. S. 605 [29 N. E. Rep. 576]; Clark v. Lucas Co. (Comrs.) 58 Ohio St. 107 [50 N. E. Rep. 356] ; Piqua v. Cron, 14 Dee. 500; Cambridge v. Smallwood, 27 O. C. C. 302; Hatch v. Cincinnati, 17 Ohio St. 48; Beliefontaine v. Haviland, 15 Dec. 482; Rev. Stat. 1744 (Lan. 3256; B. 1536-773) et seq.
    
    Henry Bannon, for defendants in error:
    To sustain demurrer, cited and commented on the foliowing authorities: Revised Statutes 1745, 1822, 1850 (Lan. 3257, 3355, 3383; B. 1536-774, 1536-783, 1536-863) ; Canton v. Nist, 9 Ohio St. 439; Thompson v. Mt. Vernon, 11 Ohio St. 688; Piqua v. Cron, 14 Dec. 500.
   JONES, J.

In the common pleas court, the city of Portsmouth, whose corporate limits are coextensive with Wayne township, brought an action against its former mayor, Cread Milstead, seeking to recover certain fees in criminal prosecutions known as state cases.

The amended petition contains three causes of action; the first seeking to recover fees drawn by the mayor from the county treasury, the second for sums drawn and collected from the common pleas court in felony cases, and the third for fees collected by him directly from defendants in cases of misdemeanor.

The amended petition alleges as a basis of recovery, the passage of an •ordinance whereby the city had fixed his salary as mayor in the sum of $1,500 per annum, and provided in such ordinance that such salary should be “in full yearly payment for all the services rendered and duties performed by him in his official capacity as such mayor of the •city, judge of the police court and ex officio justice of the peace and all fees received and collected by him as such official shall be paid into the ■city treasury weekly.”

In the second case, the action was brought against Baucus for fees nf a similar character, drawn by him as chief of police, and is otherwise ■similar to the former action, except that the ordinance in the latter ease provides a salary of $1,200 per annum in full yearly payment for services performed by him in his “official capacity as such .chief and ex officio constable, and all the fees heretofore pertaining to said office (i. ■e.), that of city marshal shall be paid weekly into the city treasury.”

The common pleas court sustained a demurrer to the amended petition in each case.

Counsel for the mayor denies the power of the general assembly to ■delegate to city councils the authority to legislate upon subjects that are nonmunieipal; it is insisted that municipal corporations may pass ordinances touching subjects only that are clearly of local and municipal ■character, but that fees in state cases not being of such character, the power of legislation and control thereof is reserved in the state.

The fees sought to be recovered by the city in the first and second •causes of action were those levied by general taxation and paid out of the ' ■county and state treasuries respectively, and it would seem that this was •an indirect method of recouping the city, from those treasuries, for the payment of salaries to its municipal officers.

This, together with the- fact that fees and costs made in the performance of duties wholly under state control and which are no part •of the’ functions of city government might well raise the quaere whether ■such authority and control over fees in state criminal cases can be •delegated to municipal councils. But whether it can be so delegated, it is not necessary for us to decide.

Assuming that such power of delegation does exist, then the question .arises whether it has been conferred.

It: is uniformly held that municipal powers are strictly limited. They have only those powers that are expressly granted or are clearly implied, as essential to carry into effect such powers expressly granted, and in cases of doubt, the court should be resolved against the city. Ravenna v. Pennsylvania Co. 45 Ohio St. 118, 121 [12 N. E. Rep. 445] Bloom v. Xenia, 82 Ohio St. 461, 465.

It would seem that the framers of the ordinance in question doubted the purport of the act granting them authority to retain the fees of officers in state cases, for the terms of the ordinance manifestly widens the-scope of the act.

Section 126, 96 O. L. 61 (Rev. Stat. 1536-633; Lan. 3228), provides that “council shall fix the salaries of all officers, clerks and employes in the city government, except as otherwise provided in this act, and, except as otherwise provided in this act, all fees pertaining to any office shall be paid into the city treasury.”

When the legislature provided that all fees “pertaining to any office” shall be paid into the city treasury, did it intend more than the fees pertaining to the office of the mayor, and such as arose from duties purely municipal ?

The city council, by the terms of its ordinance, resolved any doubt in its favor by broadening the scope of the act, and providing that his salary should be in full for all of the services and duties performed by him in his official capacity as such mayor of.the city, judge of the police court, and ex officio justice of the peace, etc.

The general scope of 96 0. L. 1, now commonly known as the municipal code was for the sole purpose of providing for the organization of municipal corporations and conferring upon such clearly defined municipal powers and duties.

By Sec. 129 of the code the mayor has been constituted the chief conservator of the peace within the corporation; this section clothes him with municipal duties only; and it is fairly inferable that the legislature, in revising the statutes giving him compensation, intended such compensation for municipal duties solely.

The state fixes and controls the amount and character of fees in state cases, and has delegated to municipal councils authority to fix the fees for violation of its municipal laws. The scheme of legislation recognizes the distinction between the jurisdiction, powers and duties of the mayor, and such as he exercises as an ex officio justice of the peace.

In addition to the municipal' duties imposed upon the mayor by Sec. 129 of the municipal code, he is clothed by certain statutes, which were-not incorporated in the act of October 22, 1902, with jurisdiction in felonies and other criminal proceedings, concurrent with justice of the-peace throughout the county; and in certain classes of misdemeanors his; jurisdiction is final and coextensive with the county.

Under Rev. Stat. 1745 (Lan. 3257; B. 1536-774), he “is entitled to receive the same fees that are or may be allowed justices of the peace for similar services.”

This section has not been repealed by the municipal code, unless the blanket repealing' clause effects its repeal by providing that “this act. shall supersede all acts or parts of acts not herein expressly repealed, which are inconsistent herewith.” But Sec. 126 of the code is not. necessarily inconsistent with Rev. Stat. 1745 (Lan. 3257; B. 1536-774) or if doubt arises in the construction of these two sections, such doubt, must be resolved against the delegation of power to the city. !

It would seem therefore, that Sees. 126,128 and 129 of the municipal code sought to deal only with municipal organization, municipal duties and municipal fees; and that “all fees pertaining to any office,” under the rule established in Ravenna v. Pennsylvania Co. supra, refers to municipal fees or such that may be fixed and controlled by municipal authority.

What has been said above applies to the case of the city against James A. Baucus as chief of police, except that the chief of police is more strongly intrenched behind an ordinance which only required the fees “pertaining to said office,” i. e., that of city marshal to be paid into the city treasury.

The court below properly sustained the demurrers to the several amended petitions, and in each ease the judgment will be affirmed.

Walters and Cherrington, JJ., concur.  