
    The State, ex rel. Cline, Prosecuting Attorney, v. Vail et al.
    
      Unconstitutionality of act of legislature — Party not estopped to assert, when — County officer pays fees into treasury — Fees not paid before salary act adjudged unconstitutional — May be retained.
    
    1. A party may assert that an unconstitutional act of the general assembly is a nullity, unless his conduct with reference to the subject of the act has been such that to permit the assertion would place his adversary in a less favorable position than he would have occupied if the act had not been passed.
    
      2. A county officer who pays into the treasury of 'the county the fees of his office in excess of the salary affixed thereto by an unconstitutional act, may, after the act is adjudged to be unconstitutional, receive and retain fees accruing before, but not paid until after, such adjudication.
    (No. 12400
    Decided June 30, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    Plaintiff in error brought suit against the defendants in error in the court of common pleas of Cuyahoga county to recover the sum of $6,602.94. The defendants demurred to his petition and their demurrers were sustained and final judgment rendered in their favor. This judgment was affirmed in the circuit court. The relator alleging his official character, alleges the following facts as the grounds of recovery: That on the 7th of November, 1893, the defendant, Vail, was elected clerk of the court of common pleas of Cuyahoga county for the term of three years, and was reelected to that office to succeed himself on the third of November, 1896. He entered upon his office by virtue pf his first election, August 6, 1894, and by virtue of the two elections served until the first Monday of August, 1900. His co-defendants were sureties upon his official bond. During his second term of three years, to-wit, from the first Monday of August, 1897, to the first Monday of August, 1900, Vail, after paying his clerks and deputies out of the fee fund of said county, was paid and received a salary of four thousand dollars per annum out of fees collected and paid by him as clerk into said fee fund, as well as the percentages allowed him by law on all fees col-' lected by him as said clerk, as provided by an act of the general assembly of the state of Ohio passed April 23, 1896, entitled “An act fixing the compensation of county officers in counties containing a city of the second grade of the first class.” In said act it was provided that the fees, etc., including all perquisites of whatever kind, which by law said clerk might receive and collect for any services rendered by him, should be received and collected by him for the sole use of the treasury of said county as public moneys belonging to it, and should at the end of each month be accounted for and paid into the treasury of said county on the warrant of the auditor of the county to the credit of the fee fund created by said act for said county; that pursuant to said act, Vail paid into the treasury to the credit of the fee fund all fees, costs, etc., received by him during his second term; that during his second term- he earned and taxed fees aggregating a large sum belonging to the county; that on the first Monday of August, 1900, Vail was succeeded by another clerk, and he three years later by another; that during the terms of the said successors the sum of $6,602.94 was received by them on account of fees accruing but not collected during the second term of said Vail, and paid the same over to Vail, which he now withholds from the treasury of the county, and for that amount judgment is prayed for.
    The case was argued orally for the plaintiff in error by Mr. Meals; for the defendant in error by Mr. Blandin and Mr. Taft.
    
      Mr. John. A. Cline, prosecuting attorney; Mr. W. D. Meals and Mr. Fielder Sanders, assistant prosecuting attorneys; Mr. U. G. Denman, attorney general, and Mr. John H. Price, for plaintiff in error.
    It has been our understanding of the law, that while an unconstitutional act is void from the beginning, yet nevertheless officers who act under a statute are not entitled to plead that such statute is unconstitutional in proceedings against them for official misfeasance or to recover moneys received by them in the course of their official duty. Gross v. Board, 158 Ind., 531; Ferguson v. Landrum, 5 Bush (Ky.), 230; Daniels v. Tearney, 102 U. S., 415; People v. Bunker, 70 Cal., 212; Spokane County v. Allen, 9 Wash., 229; Dodd v. Camden, 56 N. J. L., 258; Plumb v. Christie, 103 Ga., 686; Newman v. People, 23 Col., 300; Deering & Co. v. Peterson, 75 Minn., 118; Bank v. Edmund, 76 Ohio St., 396.
    
      Mr. Vail elected to take the salary provided by law, and having elected to take that salary, the law will not permit him now to occupy the inconsistent position -that he only accepted said salary with the view in mind that the supreme court would declare the law unconstitutional and permit Mr. Vail to strike a balance with the state for the rest of the fees earned by him.
    For a discussion of the doctrine of election, see 3 Current Law, 1177.
    It has been held that an officer’s silent acceptance of salary as reduced by the board of supervisors from the amount previously allowed him, is an implied assent to their fixing it at the lower rate, and precludes him from claiming more. Thomas v. Supervisors, 45 Mich., 479; 1 Current Law, 1132.
    The following cases, we believe, assert the doctrine that where a public officer who accepts and retains salary provided by law in force when he takes office, cannot question the validity of the statute, and where an officer takes a salary provided by law without objection, cannot later claim a greater or different salary. Gross v. Board, 158 Ind., 531; McInery v. Galveston, 58 Tex., 334; Rau v. Little Rock, 34 Ark., 303; Thomas v. Supervisors, 45 Mich., 479; Buck v. Eureka City, 109 Cal., 504; Spokane County v. Allen, 9 Wash., 229.
    The conduct of the said defendant in error during the three or more years in which he drew his salary of four thousand dollars ($4,000.00) per year under color of law clearly signified his conelusion to accept the salary as his entire compensation for services rendered the county. He could not elect to keep the salary and still retain the fees. , He went before the people of the county and sought election during the period that the said salary law was in force; and, having secured his election, still continued to draw for a period of three years the salary allowed by said law. Davis v. Wakelee, 156 U. S., 689; Daniels v. Tearney, 102 U. S., 415; Gross v. Board, 58 L. R. A., 396; Farrior v. Security Co., 92 Ala., 176, 12 L. R. A., 856, 9 So. Rep., 532; 29 Am. & Eng. Ency. Law (2 ed.), 1103; State v. Railroad Co., 34 Md., 344; In re Tuthill, 50 N. Y. Supp., 410; Harris v. Jex, 55 N. Y., 421; 14 Am. Rep., 285; Mayor, etc., v. Railway Co., 143 N. Y., 1; McFadden v. Wilson, 96 Ind., 253; Lemans v. Wiley, 92 Ind., 436; New Orleans v. Finnerty, 27 La. An., 681; State, ex rel., v. Mitchell, 31 Ohio St., 592; Counterman v. Dublin Township, 38 Ohio St., 517; McCarthy v. Lavasche, 89 Ill., 274; Ricketts v. Spraker, 77 Ind., 371; Strosser v. Fort Wayne, 100 Ind., 443.
    Public policy at times demands that unconstitutional laws shall not at all times be construed as nullities from the time of their enactment. Mt. Vernon v. State, 71 Ohio St., 428; Henke v. McCord, 55 Ia., 378; Sessums v. Botts, 34 Tex., 335; 8 Cyc.. 792; Mayor, etc., v. Railway Co., 143 N. Y., 1, 37 N. E. Rep., 494, 60 N. Y. St., 352; Newman v. People, 23 Col., 300; 47 Pac. Rep., 278; Dodd v. Camden, 56 N. J. L., 258, 28 Atl. Rep., 311; Board v. McComb, 92 U. S., 531; Van Steenwyck v. Sackett, 17 Wis., 645.
    
      
      Messrs-. Smith, Taft & Arter a.nd-Messrs. Griszvold, & White, for defendants in error.
    An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; creates no office; it is in legal contemplation, inoperative as though it has not been passed. Norton v. Shelby County, 118 U. S., 425, 30 L. Ed., 178; Maloney v. Aid Assn., 40 N. Y. Supp., 918; Hamilton v. Insurance Co., 42 Neb., 883; Henry, etc., v. Fisherdick, 37 Neb., 209; 23 Am. & Eng. Ency. Law (2 ed.), 402; Baldwin v. United States, 15 Court of Claims, 297; Whiting, Admx., v. United States, 35 Court of Claims, 291; Trustees, etc., v. Walden, 15 Ala., 655; Fulton v. Monona County, 47 Ia., 622; Bowe v. St. Paul, 70 Minn., 341; State v. Steele, 57 Tex., 200; Glavey v. United States, 35 Court of Claims, 263.
    An unconstitutional act of the legislature is as ineffectual as though it had never been passed. Finders v. Bodle, 58 Neb., 57; Mott v. Hubbard, Treas., 59 Ohio St., 199; Lewis, Auditor, v. Symmes, 61 Ohio St., 471; City of Findlay v. Pendleton, 62 Ohio St., 80; Mt. Vernon v. State, 71 Ohio St., 425; Thomas v. State, 76 Ohio St., 341.
    The precise question in this case first arose in the state of Virginia, in 1882, and the case involving and deciding the question decides the question upon principle, rather than upon authority, and the decision is a classic in its line. We have found no case since decided, involving the same point that has not applied, or distinctly and affirmatively followed the reasoning of that opinion. Montague’s Admr. v. Massey, Auditor, 76 Va., 307.
    In Kehn v. State, 93 N. Y., 291, the Virginia case is applied and followed. McGrade v. New York, 110 N. Y. Supp., 517; Grant v. Rochester, 79 App. Div., 460; Gallaher v. Lincoln, 63 Neb., 339; 15 Am. & Eng. Ency. Law (2 ed.), 965; Nelson v. Superior, 109 Wis., 618.
   Shauck, J.

Counsel, by bringing the arguments directly to the questions in difference, have rendered very material aid in the investigation of the case. The act of April 23, 1896, fixing the compensation of county officers in counties containing a city of the second grade of the first class was, by Vail, supposed to be constitutional, and he acted upon that belief throughout his second term. Later the circuit court of Cuyahoga county, following the decision of this court in the case of The State, ex rel. Guilbert, v. Yates, 66 Ohio St., 546, held the act to be unconstitutional. Thereupon Vail and his successors assuming the nullity of the act and the operative force of the general law relating to fees, concluded that the fees which had accrued, but had not been paid during the official term of Vail, should be paid to him, and that course was taken. No controversy exists respecting the proposition that an unconstitutional law is in legal contemplation inoperative as though it had not been passed. But on behalf of the plaintiff in error it is contended that this case comes within the recognized doctrine that parties may so conduct themselves with respect to the subject of unconstitutional legislation that they are estopped thereafter to deny its binding character. Cases of that character are well recognized, and a number of them are collected in the briefs.

The cases all present, in some form or another, equitable grounds of election or estoppel. In the different briefs presented for plaintiff in error the grounds alleged in this case are variously stated to be election, estoppel, .acquiescence and waiver. The admission that this act was a legal nullity implies an admission that not only the fees now sued for, that is those which were collected after the act was declared a nullity, but those which Vail deposited with the county treasurer in excess of his salary during his second incumbency of the office, belonged to him. The adjudication that the act was unconstitutional only declared that that was its character. Its character had been fixed from the time it was enacted. These claims of counsel for the plaintiff mpst therefore be applied to a situation in which, according to the averment of the petition, Vail, after paying his clerks and deputies out of the fee fund of the county, was himself paid a salary of four thousand dollars per annum out of the fees collected and paid by him as clerk into said fee fund, that is, his salary was received out of moneys, which so far as any merit of the statute was concerned, were his own. This consideration, if borne in mind, shows that the case cannot be determined favorably to the plaintiff by the doctrine of election which involves a choice made, or the necessity of making a choice, between inconsistent rights and gifts. Nor can it be governed by the doctrine of estoppel which requires that the party by whom it is asserted shall have sustained some detriment by reason of the conduct or representation of him against .whom the estoppel is invoked. The express averment of this petition shows that the county parted with nothing in consequence of Vail’s temporary recognition of the validity of the salary act. On the contrary, it has profited thereby to the extent of the excess of the fees collected by him during his second incumbency over the salary' received by him during that time. The county sustains no loss whatever by reason of Vail’s later assertion of the invalidity of the salary act, which, it is conceded; he might have insisted upon from the beginning.

Nor can any inference unfavorable to Vail be ■drawn from waiver or acquiescence. What he waived was his right to the costs above salary during his second incumbency and until the salary act was declared unconstitutional, and his acquiescence was in the receipt of such surplus fees during the same time by the county. The fees to which he thus waived his right thereby became blended with the funds .of. the public, but as to those which are the subject of controversy here the county occupies precisely the same position it would have occupied if the unconstitutional act had not been passed, or the defendant had challenged it immediately upon its passage. There appears to be no reason why the defendant should be deemed to have waived that which he did not waive or to have acquiesced in that in which he did not acquiesce. T , , ~ ,

, , Judgment affirmed.

Spear, C. J., Davis. Price, Johnson and Donahue, JJ., concur.  