
    The State, ex rel. Godfrey, a Taxpayer, v. O’Brien, Treasurer, et al.
    
      ■ Taxation — Office and officers — Appointment or election — Section I, Article X, Constitution — Compensation — Section 20, Article II, Constitution — Repeals and amendments — Section 16, Article II, Constitution — Assistant assessors and boards of revision —Acts of May 7 and 20, 1915 (106 O. L., 246 and 433) — Constitutional law.
    
    1. County and township subdivisions are agencies of the state, and constituent parts of the plan of permanent organization of state government.
    9. Where the state seeks to exercise its sovereign power through the agencies of county or township officers, the statute creating the office and providing for the selection and compensation of the incumbent, must conform to the constitutional provisions with reference to such officers.
    
      3. A provision in an act of the general assembly of this state for the appointment instead of the election of a county or township officer, is in violation of Section 1 of Article X of the Constitution of Ohio and void.
    4. The general assembly of Ohio cannot delegate the authority conferred upon it by Section 20 of Article II of the Constitution, to fix the compensation of officers.
    5. The provisions of an act of the general assembly purporting to confer authority upon the county auditor, or the board of county commissioners, to fix the salary of county or township officers within certain limits, without providing a uniform rule for determining such compensation in the several counties of the state, are in conflict with Section 26 of Article II of the Constitution of Ohio, and void.
    6. The provision of Section 16 of Article II of the Constitution of Ohio, providing that no law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended, is mandatory. The inclusion, by reference, of the provisions of a repealed statute is in violation of this provision of the Constitution of Ohio and void.
    7. The statute defining the duties, powers, liabilities and penalties imposed upon deputy assessors being repealed, the provisions of Section 17 of the act of the general assembly of Ohio, passed May 7, 1915 (106 O. L., 246), that the elected assessor, “shall perform all the duties, exercise all the powers and be subject to all the liabilities and penalties devolved, conferred or imposed by law upon the deputy assessor so appointed,” are unconstitutional and void.
    8. The act of May 20, 1915 (106 O. L., 433), entitled: “An act to amend sections 31, 32 and 39 of the act entitled: ‘An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto,’” is unconstitutional and void.
    9. Sections 3, 18, 23, 31, 32, 35, 39, and all parts of other sections relating to the appointment, duties and authority of assistant township assessors and county boards of revision, of the act of the general assembly of Ohio, passed May 7, 1915 (106 O. L., 246), entitled: “An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto,” are unconstitutional and void.
    (No. 15190
    Decided January 9, 1917.)
    
      Error to the Court of Appeals of Cuyahoga county.
    On the' 7th day of January, 1916, the state of Ohio upon relation of Willis R. Godfrey, taxpayer, filed an amended petition in the court of common pleas of Cuyahoga county, averring:
    That relator is a resident, citizen and taxpayer of the county of Cuyahoga and brings suit on behalf of himself and all other taxpayers of Cuyahoga county; that the defendant, P. C. O’Brien, is the duly elected, qualified and acting county treasurer, and that John A. Zangerle is the duly elected, qualified and acting county auditor of Cuyahoga county.
    That on the 7th day of May, 1915, the general assembly of Ohio passed an act entitled “An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto,” which act was approved by the governor of Ohio on May 8, 1915, and filed in the office of the secretary of state at Columbus, Ohio, on the 11th day of May, A. D. 1915, (106 O. L„ 246).'
    That Sections 31, 32 and 39 of said act were amended by an act of the general assembly of Ohio passed May 20, 1915, which act was approved by the governor of Ohio on May 27, 1915, and filed in the office of the secretary of state at Columbus; Ohio, on the 1st day of June, 1915, (106 O. L., 433).
    That the defendant Zangerle, as auditor of Cuyahoga county, claims the right, under and in pursuance of these acts, and threatens to, and unless restrained by the court will, incur expenses, employ clerical and other help, and create various debts and obligations in the name of Cuyahoga county, in exercising certain power and authority thereunder, specifically enumerated in the amended petition, which he claims to be conferred upon him by these acts, and will issue his warrants upon the county treasurer for the payment of these expenses, and that the defendant O’Brien, as treasurer of Cuyahoga county, will, unless restrained by the court, honor the warrants, certificates and vouchers of the county auditor, issued in payment of the expenses enumerated.
    That certain specified sections of these acts are unconstitutional and void, and that by reason of the unconstitutionality of the sections specified, and other sections of said act, the entire original act and the act amending Sections 31, 32 and 39 thereof are unconstitutional and void.
    The prayer of the petition is that defendant Zangerle be temporarily enjoined from incurring any of such expense, that defendant O’Brien, treasurer, be temporarily enjoined from honoring any warrant, certificate or voucher issued by the auditor in payment therefor, and that upon final hearing the temporary restraining orders may be made permanent and the relator allowed costs and reasonable attorney fees; and for such other and further relief as may be just and equitable.
    To this amended petition the defendants filed a joint demurrer, which demurrer was sustained by the. court, and the relator not desiring to plead further the petition was dismissed at costs of relator.
    Error was prosecuted to this judgment in the court of appeals of Cuyahoga county, which court affirmed the judgment of the common pleas court, and this proceeding in error is brought to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming same.
    
      Messrs. Hitchcock & Fackler; Messrs. Price, Alburn, Crum & Alburn and Messrs. Spear, Mills, Knight & Godfrey, for plaintiff in error.
    
      Mr. Cyrus Locher, prosecuting attorney; Mr. Frederick W. Green, assistant prosecuting attorney; Mr. Edward C. Turner, attorney general; Mr. Clarence D. Laylin and-Mr. Herbert C. Sherman, for defendants in error.
   Donahue, J.

The demurrer to the amended petition presents the question of the constitutionality of a number of sections of the act of the general assembly passed May 7, 1915 (106 0.‘ L., 246), entitled “An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto,” and the act of May 20, 1915 (106 O. L., 433), amending Sections 31, 32 and 39 of the former act.

Perhaps the most important question presented by the record in this case is the question of the constitutionality of Section 18 of the original act and Sections 31, 32 and 39, as amended May 20, 1915.

Section 18 authorizes the county auditor, when he deems it necessary to enable an assessor to complete his work within the time prescribed, to appoint one or more assistant assessors for such ward, district, city, village or township.

Section 31 constitutes the county treasurer, prosecuting attorney, probate judge and the president of the board of county commissioners of each county, a county board for the appointment of three members of a county board of revision.

Section 32 authorizes this county board to appoint three competent persons who shall constitute the county board of revision.

Section 39 provides for the organization of the county boards of revision whose members are so appointed.

Section 1 of Article X of the Constitution of Ohio requires that “the general assembly shall provide, by law, for the election of such county and township officers as may be necessary.”

If assistant township assessors are township officers and the members of county boards of revision are county officers, these sections are in clear conflict with this provision of the constitution requiring township and county officers to be elected.

An examination of the sections of this act purporting to define the duties of assistant township assessors and the duties of boards of revision leaves no possible doubt as to the official character of either. But the mere fact that they are officers does not necessarily make them township or county officers.

Section 17 provides for the election of a township assessor, and provides that he shall take and hold his office for the term of two years, from and after the first day of January following his election. It also provides that the assessor shall be a citizen, possessing the qualifications of an elector of the township.

Section 18 authorizes the county auditor to appoint an assistant assessor, who shall possess all the qualifications of an elected assessor, and, in the work assigned to him, perform all the duties and be subject to all the liabilities and penalties enjoined upon elected assessors by law. It would appear from this provision that an assistant assessor is entirely independent of the elected assessor in that township; that he is in no sense a deputy, but on the contrary performs the same duties and has the same power and authority as the elected assessor. If an elected township assessor is a township officer, an assistant township assessor appointed under the provisions of Section 18 is also a township officer.

A. county board of revision is appointed by a board whose members are county officers. It acts in an independent capacity, with authority to do and perform official acts for the whole county. .It is clothed with some part of the sovereign power of the state, to be exercised in the interest of the public as required by law. It is designated by statute as “The County Board of Revision.” Its official authority is coextensive with the territorial limits of the county. The salaries of its members are paid from county funds.

These facts bring the members of the county board of revision clearly within the doctrine announced by this court in the case of State, ex rel. Armstrong, v. Halliday, 61 Ohio St., 171; State, ex rel., v. Brennan, 49 Ohio St., 33, and State, ex rel. Guilbert, v. Yates, 66 Ohio St,, 546, 550.

This court, however, in the more recent case of State, ex rel. Pogue, v. Groom, 91 Ohio St., 1, held that members of the county budget' commission are county officers. It is impossible to distinguish between members of the county budget commission and members of the county board of revision, unless, perhaps, it would the more clearly appear that the latter are county officers within the meaning of Section 1 of Article X of the Constitution of Ohio.

It is said, however, that the function of valuing property for taxation is neither a county nor a township nor a municipal function, but rather a state function, and that in the nature of things the state alone can deal with this problem through state agencies only. This claim overlooks the fact that county and township organizations are provided for by the constitution itself; that these subdivisions are agencies of the state, and '“constituent parts of the scheme of permanent organization of the government of the state.” State, ex rel., v. Yates, supra, 551.

The general assembly has in this act created certain township and county offices and conferred authority on the incumbents of these offices to perform certain duties incident to the exercise of the taxing power of the state. Whenever it does this it must observe the constitutional provisions in reference to such offices. Under the laws of this state, the principal duties of county auditors and county treasurers relate to the levying and collection of taxes. Certainly it cannot be claimed that these officers are not county officers, and yet that contention would be equally as sound as the contention that members of county boards of revision- are not county officers, because their official duties are in connection with the exercise of the taxing power of the state.

It is conceded by counsel for defendants in error that if township assessors and members of the county board of revision are officers within the meaning of Section 20 of Article II of the Constitution, Sections 23 and 35 of this act are in conflict with that constitutional provision.

Section 35 authorizes the county commissioners to fix annually the compensation of the members of each county board of revision at not less than $3.50 nor more than $10 per day.

Section 23 provides that the compensation of assessors and assistant assessors shall not be less than $3 nor more than $6 per day, which compensation shall annually be fixed within such limits by the county auditor subject to the approval of the board of county commissioners.

This is an attempt to delegate to the auditor and board of county commissioners the legislative authority conferred upon the general assembly by Section 20 of Article II of the Ohio Constitution, to fix the compensation of all officers. These sections are in direct conflict with that constitutional provision and void. State, ex rel. Montgomery, v. Rogers, 71 Ohio St., 203, 219; State, ex rel. Guilbert, v. Yates, 66 Ohio St., 546, 551, and Cricket et al. v. State, 18 Ohio St., 9.

Section 17 provides that the term of the assessors shall be two years. The authority conferred by Section 23 upon the county auditor, annually to fix the compensation of these officers, is also in clear conflict with the further provisions of Section 20 of Article II, providing that the salary of an officer shall not be changed during his existing term of office, unless the office be abolished. It is the opinion, however, of a majority of this court that this provision does not apply where ¿ statute fixing the compensation of an officer fails by reason of its unconstitutionality.

These sections not only fail ¡to fix the compensation of these officers, but also fail to fix any rule by which the compensation can be determined uniformly in the several counties of the state, within the meaning of Section 20 of Article II of the Constitution, as interpreted in the cases above cited.

The assessors and assistant assessors may receive from $3 to $6 per day, as determined by the county auditor, subject to the approval of the board of county commissioners. The members of each county board of revision may receive from $3.50 to $10 per day, as the board of county commissioners may direct. There is no requirement that the compensation in the several counties shall be fixed by any uniform rule. On the contrary, the amount that these officers shall receive in each particular county depends upon the judgment and discretion of the county auditor and the board of county commissioners of each county, subject only to the limitation named in these sections. For this reason this provision offends against Section 26 of Article II of the Constitution, requiring that all laws of a general nature shall have a uniform operation throughout the state. State, ex rel., v. Yates, supra.

Section 3 of this act provides that the duties imposed upon the district assessor “by any existing provision of any law repealed by this act * * * shall devolve upon and be performed by the county auditor.”

Section 17 provides, among other things, that the elected assessor “shall perform all the duties, exercise all the powers and be subject to all the liabilities and penalties devolved, 'conferred or imposed by law upon the deputy assessor so appointed.”

Section 103 of the same act expressly repeals Sections 5368 and 5579 to 5624-20, both inclusive, of the General Code, which among other things define the duties and powers, and impose the liabilities and penalties upon, appointed assessors.

The parts of Sections 3 and 17 just quoted conflict with Section 16 of Article II of the Constitution, which provides: “No law shall be revived, or amended unless the new act contains the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.”

While it was held by this court in the case of Lehman v. McBride, 15 Ohio St., 573, that the clause in Section 16 of Article II, which provides that “the section or sections so amended shall be repealed,” is directory only to the general assembly, and was not intended to abrogate the long-established rule as to repeals by implication, yet it is clear that this court entertained a different view as to the other provisions in the same section of the constitution.

In the opinion in that case, at page 603, it is said that the purpose of this constitutional provisiones to make “all acts, when amended, intelligible, without the examination of the statute as it stood prior to the amendment, it requires every section intended to supersede a former one to be fully set out. No amendments are to be made by directing specified words or clauses to be stricken from, or inserted in, the section of a prior statute which may be referred to; but the new act must contain the section as amended.”

Aside from this positive declaration of this court in the case of Lehman v. McBride, supra, it is clear that this provision of the constitution requiring each new act to contain the entire act as revived, or the section or sections amended, is mandatory; otherwise repealed sections must be given the same force and effect as if they were not in fact repealed.

The repeal of a statute is the end of that statute. To all intents and purposes it is the same as if it, had never existed. Reference in a legislative act to a repealed law, as supplementary or explanatory of the new act, is an absurdity, prohibited by this provision of the constitution.

Any other course would lead to endless confusion and uncertainty, and prevent an intelligent administration of the statutory law of this state. The fact that a statute is recently repealed, or repealed by the same act which refers to it, is no argument in favor of such loose legislation. If that can be done, then reference can be made to a statute repealed half a century ago, or the new section may remain unrepealed for the next half a century. In either case it would require that all repealed statutes be carried into each edition of the General Code published, otherwise there would be no means available to determine the scope, intent and purpose of the act which incorporates by reference a part of the provisions of the repealed law. This of course would be wholly impracticable, if not impossible.

It is claimed, however, by counsel for the defendants in error that even if Section 3 of this act is unconstitutional, nevertheless Sections 5398 to 5414, inclusive, General Code, survive not only the act now under consideration but also the act of April 18, 1913 (103 O. L., 786), and that these sections confer upon the county auditor full authority to do and perform the duties that Section 3 of this act attempts to define by reference to the repealed statute. That argument does not aid the court in determining the constitutionality of this section, nor does this contention of counsel apply to Section 17 of this act, for the reason that the statutes relating to the duties of an appointed assessor have all been repealed.

For the reasons given, the provisions of Section 17, that an elected assessor “shall perform all the duties, exercise all the powers and be subject to all the liabilities and penalties devolved, conferred or imposed by law upon the deputy assessor so appointed,” and the act of May 20, 1915 (106 O. L., 433), and Sections 3, 18, 23, 31, 32, 35 and 39, and the provisions of all other sections relating to the appointment, duties and powers of assistant assessors and county boards of revision, contained in the act of the general assembly of Ohio passed May 7, 1915 (106 O. L., 246), are unconstitutional and void.

The judgment of the court of appeals of Cuyahoga county affirming the judgment of the com-, mon pleas court of that county, and the judgment of the common pleas court of Cuyahoga county, are reversed, and this case is remanded to the common pleas court with.directions to overrule the demurrer to the petition.

Judgments reversed.

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