
    The State, ex rel. Price, Atty. Gen., v. Huwe et al.
    
      Mandamus — ■Performance of duty by public officer —State institution for feeble minded — Payment by counties for support of inmates — Section 1815-12, General Code- — Presentation of claim to county commissioners — Parties to mandamus — County commissioners, auditor and treasurer — Insufficient county funds —■ Levy.
    
    1. A proceeding in mandamus may be maintained to require a public officer to perform an act which the law specially enjoins as a duty resulting from his office where there is not a plain and adequate remedy in the ordinary course of law.
    2. The amount due from each county for the support of inmates therefrom in the state institution for feeble-minded youth should ■be determined and the claim therefor presented and paid as prescribed by Section 1815-12, General Code. Presentation of such claim to and allowance by the board of county commissioners is not required.
    3. An action in mandamus may be maintained to enforce payment of such claim, and, where the petition avers that there were not sufficient funds in the county treasury to pay the same, the county commissioners as well as the auditor and treasurer are proper parties.
    (No. 16436
    Decided December 6, 1921.)
    In Mandamus.
    This is an original action in mandamus instituted in this court against Louis J. Huwe, treasurer of Hamilton county, E. S. Beaman, the auditor, and Charles F. Bauer, Martin Daly and A. E. Mitten-dorf as the commissioners of said county. The issue for our determination is made by a demurrer to the amended petition.
    It is averred by the relator that during the year 1910 there were confined a¿id cared for and supported in the custodial department of the institution for feeble-minded youth at the city of Columbus a number of persons over the age of fifteen years, which persons were from the county of Hamilton and duly admitted into said institution for feeble-minded youth from said county in all respects according to law; that the trustees and superintendent of said institution for feeble-minded youth charged against Hamilton county for the support, care and maintenance of said youth a sum less than the annual per capita cost to said county of Hamilton of supporting inmates in its county infirmary during said year, as shown by the annual report of the board of state charities, which sum so charged from January 1, 1910, to September 1, 1910, amounted to the sum of $7,619.75; that the financial officer of said institution for feeble-minded youth upon the first day of September, which was the end of the fiscal year of said institution, duly made upon the county treasurer of that county at that time his annual draft for said sum above mentioned for said year, which draft contained an itemized statement showing the name of each person for whom a charge was made, the length of time for which such charge was made,' the dates of beginning and ending thereof, and the rate at which said charge was made, and the total amount charged for each person, all of which made in the aggregate the said sum above stated, and that the county treasurer kept the said draft and statement and now has the same or has access thereto; and that the county treasurer did not dispute the amount of said account, but admitting the correctness thereof refused to pay the same because in his opinion the act of the general assembly of April 28, 1913, now Section 1815-12, General Code, authorizing such charge against a county for the support of such persons, was in that respect unconstitutional and void.
    It is further averred that the financial officer for said institution for feeble-minded youth continued to demand the payment of said sum from time to time, until the 27th day of July, 1913, and thereafter the cashier of the state board of charities made continued demand therefor, and since the 26th day of August, 1915, the treasurer of state of the state of Ohio' has continually demanded the payment thereof, but payment thereof has always been refused by reason of the said claim of the unconstitutionality of said statute, although the correctness of the amount of the charges made was admitted.
    Substantially the same averments are made with reference to the support, care and maintenance of persons from Hamilton county in said institution from September 1, 1910, to September 1, 1911; the amount averred to be due for the support, care and maintenance of such persons during that year being $11,649.08.
    Substantially the same averments are made with reference to the support, care and maintenance of persons from Hamilton county in said institution from September 1, 1911, to September 1, 1912; the amount averred to be due. for the support, care and maintenance of such persons during that year amounting to $11,457,91,
    
      It is iurther averred that thereafter many persons from Hamilton county were duly admitted to said institution and kept therein, and upon or shortly after the 12th day of August, 1914, when another amendment of said law went into effect, the financial officer of said institution duly made his draft in like manner as above set forth for the amount due for the support, care and maintenance of such persons from the first of September of the preceding year, which amount was $12,179.85, which draft was accompanied by a like statement as above set forth; and averments substantially like those with reference to the charge for the preceding periods ar.e made respecting the charge for this period.
    Averments substantially similar were made in the petition respecting the period from August 12, .1913, *to September 1, 1913, the amount claimed to be due from Hamilton county for such purpose being $841.26. Substantially the same averments are made by the relator covering the period from September 1, 1913, to March 2, 1914, on which date it is averred the cashier of the board of state charities duly made his semiannual draft for the amount due for the support, care and maintenance of such persons for the preceding six months, which amounted to the sum of $7,876.20. Averments substantially the same were made by the relator covering the period from March 2, 1914, to August 31, 1914, it being averred that the amount due for support, care and maintenance of such persons during that period was $8,549.68. Averments substantially the same were made by the relator covering the period from August 31, 1914, to March 1, 1915, it being averred that the amount due for the support, care and maintenance of -such persons during that period was $8,733.27.
    It is further averred that the defendants Charles F. Bauer, Martin Daly and A. E. Mittendorf, as commissioners of Hamilton county, will not make a levy so as to provide for the payment of said sum; that defendant E. S. Beaman, as auditor of said county,, will not draw a warrant therefor; and that the defendant Louis J. Huwe, as treasurer of said county, will not-pay said sum unless so ordered and directed by this court.
    . The relator further avers that at the time of the filing of the original petition in this case there were not in the treasury of Hamilton county funds sufficient to pay the drafts drawn by the financial officer of the institution for feeble-minded youth and the drafts drawn by the cashier of the board of state charities, as previously set forth. The prayer of the relator is for a writ of mandamus requiring the commissioners of Hamilton county to make a levy to provide for the payment of said sum of $68,907, and the auditor of said county to draw his warrant therefor on the treasurer of said county to pay the same when funds are available therefor.
    The demurrer to the amended petition is upon the grounds that the court has no jurisdiction of the subject-matter; that there is a misjoinder of parties defendant; and that the petition does not state facts sufficient to constitute a cause of action against the defendants collectively or against any of them severally.
    
      
      Mr. John G. Price, attorney general; Mr. B. W. Gearheart and Mr. Ray Martin, for relator.
    
      Mr. Louis H. Capelle, prosecuting attorney, and Mr. Charles S. Bell, assistant prosecuting attorney, for defendants.
   Matthias, J.

The state seeks to assert its claim against Hamilton county by this proceeding in mandamus, and the primary question presented by demurrer to the amended petition is whether such action may be maintained or whether the state’s claim must be asserted in.a suit for money, in which ■the defendant would be entitled to a trial by jury.

Although refusal to pay the claim was originally based upon the contention that the statute which authorized such recovery was unconstitutional, that ground of refusal is not now presented as a defense. The basis of the state’s claim is the statute (then Sections 1898 and 1899, General Code), which during a portion of the period involved provided in substance that for each person over fifteen years of age in the custodial department of the state institution for feeble-minded youth from any county in the state the trustees and superintendent may charge against such county a sum not exceeding the annual per capita cost to the county of supporting inmates in its county infirmary, as shown by the annual report of the board of state charities, and that the treasurer of the county should pay the annual draft of the financial officer of the institution for the aggregate amount chargeable against such county for the preceding year for such inmates. It was further provided that in each casé where the parent, guardian, relative or friend of’ the inmate is under contract and able to pay, and does pay, for the maintenance of such inmate, no charge or draft shall be made upon the treasurer of the county wherein such inmate has a legal residence.

On April 28, 1913, the legislature repealed these sections and enacted a law designated as Section 1815-12 (103 O. L., 879), which p'rovided as follows:

“The county from which an inmate of the institution for feeble minded was committed shall be liable for such inmate’s support provided the same is not paid otherwise as provided by this act. The treasurer of each county shall pay the semiannual draft of the cashier of the board of state charities for the aggregate amount chargeable against such county for the preceding six months for the inmates therefrom not otherwise supported.”

On June 4, 1915 (106 O. L., 503), Section 1815-12 was amended so as to provide as follows:

“The treasurer of each county shall pay to the treasurer of state upon the warrant of the county auditor the amount chargeable against such county for the preceding six months for all inmates therefrom not otherwise supported, upon the presentation of the statement thereof.”

In the respects involved in this proceeding such statute has not been further amended.

The position taken by the defendants is that this action is one for an unliquidated sum of money claimed to be due the state from Hamilton county: The contention of the state is that the provisions of the statute specifically provide that the cost of the support of inmates in such institution from any county shall be charged against such county and prescribe the manner of payment thereof.

We look to the statute for the definition of mandamus which must guide us in the determination of the question involved in this case. It is defined by Section 12283, General Code, as follows: “Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the-law specially enjoins as a duty resulting from an office, trust, or station.”

The policy of the state relative to the expense of caring for its feeble-minded youth is clearly set forth in the provisions to which we have referred. Notwithstanding the several amendments of the statute affecting the claim here in question, it is quite evident the purpose of the legislation was to require that the several counties of the state pay the pro rata cost of supporting the inmates of such institution, although it was provided for a time that no county should be required to pay in excess of the annual per capita cost to such county of supporting the inmates of its county infirmary. The statute as it existed during the entire period covered by the claim involved in this section provided that the treasurer of such county should pay the draft of the officer therein designated for the amount chargeable against such, county. During a portion of that period it was payable annually, and later it was made payable semiannually. ' The statute as amended June 4, 1915, which is subsequent to the period involved in this suit, was so amended as to provide that the treasurer of the county should pay the treasurer of state on the warrant of the county auditor. Under the provisions of the statute it became the duty of the officers of such state institution to determine the amount chargeable to each county of the state, and, through the officer designated, to make draft upon the county for that amount, and it likewise became the duty of the county, through its proper officers, to honor the draft so made and to pay it upon presentation, as prescribed by the statute.

If the contention made by the defendant is valid it .would be necessary under the provisions of Section 2460, General Code, upon the expiration of each period prescribed by statute, to present such claim to the board of county commissioners for its allowance, and if for any reason it was rejected, then to appeal the same, whereupon it would be tried in the court of common pleas and determined by a jury.

The county is a subdivision of the state. The requirement by statute that it shall pay the cost of the support of inmates of a state institution sent thereto by the duly authorized county officials, s.uch cost of support to be determined by an official designated also by statute, is violative of no right of trial by jury. Upon consideration of a similar question, in the case of Board of Commissioners of Champaign Co. v. Church, Admr., 62 Ohio St., 318, it was stated: “Now as to the alleged violation of the right, of trial by jury, it may well be doubted whether counties and municipalities have- any such absolute right of trial by jury that they may complain of its infringement by the legislature. They are creatures of constitutional and legislative enactment. They have only such powers and privileges as are given them, and these powers and privileges may, in general, be modified or taken away.”

It seems quite obvious that the provisions of Section 2460, General Code, have no application whatever to a claim of this nature. In the first place it must be noted that the very provisions of that section except cases in which the amount due is fixed by law, or in which it is authorized to be fixed by some other person or tribunal. But this claim does not come within the requirement that claims against the county be presented to the board of county commissioners for the further. reason that the provisions of the statute to which we refer having specifically prescribed the method of fixing the amount which each county shall, pay, and having designated the officials who shall determine the same, and also having specified the procedure with reference to the presentation of the statement and the payment thereof, such specific provision, upon' principles of statutory construction that are familiar, constitutes an exception to the general provisions of Section 2460, General Code. Clearly the general provisions of a statute are not controlling when in conflict with the specific provisions of a later enactment of the legislature. 2 Sutherland on Statutory Construction (2 ed.), Section 491.

If then the amount to be paid by each county was ascertained and determined in accordance with the express provisions of the statute, and presented for payment in the manner directed thereby, did it not then become the duty of the county treasurer to pay the same — a duty specially enjoined by statute?

The case of Brissel v. State, ex rel. McCammon, 87 Ohio St., 154, is one involving a question quite similar to that presented in this case. The trustees of the institution, a district tuberculosis hospital in process of erection, in the manner prescribed by statute, determined the amount required as the proportionate share of each county in the district. An action in mandamus was instituted against the commissioners, the treasurer and auditor of Stark county seeking to.require such officials to provide that county’s proportionate share of the funds theretofore found to be necessary for the erection of such district tuberculosis hospital. It was also urged there, as here, that there was an adequate remedy at law, and that mandamus would not lie; but this court refused to sustain that contention and held that an action at law would not be adequate to furnish the proper relief, and that mandamus was the proper remedy. In the course of the opinion, Johnson, J., at page 172, made the following statement, which is quite pertinent here:

“It may be said that an adequate remedy is one that affords- relief with reference to the matter in controversy, and is appropriate to the particular circumstance of the case.
“Where the remedy sought is the performance of a public duty, by a public board, and an action at law will not enforce the performance of such duty, it is not an adequate remedy. The duty of a public board to appropriate money or to levy such tax as may be necessary to meet legal obligations, is such a duty as may be enforced by mandamus/’

Numerous decisions in this state may be cited supporting this proposition. Among them are: State, ex rel. Robertson, v. Board of Education of Perrysburg Township, 27 Ohio St., 96; State v. Staley, 38 Ohio St., 259; Ohio, ex rel. Holtz, v. Commissioners of Henry Co., 41 Ohio St., 423; State, ex rel. Ross, v. Donahey, Auditor of State, 93 Ohio St., 414, and State, ex rel. M. E. Murphy Co., v. Donahey, Auditor of State, 98 Ohio St., 442.

It seems quite clear in this case that an action at law would not provide an adequate remedy. If funds were not available to pay the amount, further action would be required, and that necessarily would be a suit in mandamus to compel a levy to procure the funds necessary to meet the amount due the said institution; and, if, when the funds were made available, the treasurer should refuse to pay for any reason, a further 'action in mandamus would become necessary. This statement seems to be a sufficient answer to the contention of counsel for the defendants that there is a misjoinder of parties. The joinder of the county commissioners, auditor and treasurer as defendants may not have been absolutely necessary, but in the interest of expeditious litigation such joinder would seem entirely proper. If the funds are not available, action to provide the same would be necessary, and it is averred in the amended.petition that when this suit was instituted there were not in the treasury of Hamilton county funds sufficient to pay the drafts drawn as above set forth.

It is further contended by the defendants that the statutes under which the relator is seeking to proceed having been repealed the right to charge the county was thereby lost. Relator’s cause of action is saved by the provision of Section 26, General Code, which reads: “* * * nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amended or repealing act.” In this instance it was not expressly provided in the amended or repealing act that such- repeal or amendment should affect any existing causes of action, prosecution or proceeding. Although it is urged that where the statutes define the mode of procedure there is no existing cause of action until such statutes are complied with, yet, since the failure to present the claim in question to the board of county commissioners is the only “condition precedent to an existing cause of action” with which the defendants complain that relator has failed to comply, it seems necessary only to point to our conclusion previously stated, that under the statute applicable hereto such presentation to and allowance by the board of county commissioners were unnecessary. The cause of action was therefore one existing at the time of such repeal, and because of the provisions of Section 26, General Code, was unaffected thereby.

For the reasons above assigned the demurrer to the amended petition is overruled.

Demurrer to amended petition overruled.

Marshall, C. J., Johnson, Wanamaker and Robinson, JJ., concur.  