The State ex rel. v. Bargus et al.

son Co., 50 N. J. Law, 83; City of Philadelphia v. Westminster Cem., 162 Pa. St., 105; Township of Lodi v. State (N. J.) 18 Atl., 749; Utsey v. Hyott, S. C. Y., 9 S. E., 338; State v. Summers' Point (N. J.), 18 Atl., 694; Clark v. City of Cape May (N. J.), 14 Atl., 581; State ex rel. v. Bradshaw (N. J.), 27 Atl., 939; Vermont L. & T. Co. v. Withed, 49 N. W., 318; Endlich on the Interpretation of Statutes, section 521; State ex rel. v. Smith, et al., 48 Ohio St., 218.

The constitution provides that the general assembly shall provide, by law, for the election of such county and township officers as may be necessary, and that no appointing power shall be exercised by the general assembly, except as prescribed in this constitution, and in the election of United States senators. It is believed that the latter of these provisions has been violated by the act in controversy.

The infirmary directors now in office were elected by the people, under general law, presumably because of their fitness for the duties pertaining to the position. The legislature, without prescribing by law any cause for their removal, attempts to make their positions vacant by shortening their terms, and then to fill the vacancies so unconstitutionally created, by the appointment of three other gentlemen now holding the office of county commissioners. State ex rel. v. Staley et al., 5 C. C. Rep., 602; Kirker v. Cincinnati, 48 Ohio St., 507.

Where the term of an office is fixed and limited by the constitution, there is no power in the general assembly to extend the term or tenure of such office beyond the time so limited. State ex rel. v. Brewster, 44 Ohio St., 589; State er rel. v. Raine, 49 Ohio St., 580.

The State ex rel. v. Bargus et al.

Andrews Bros., for relator.

The legislature has designated the act in its marginal references as referring to Huron and Erie counties. State v. Pugh, 43 Ohio St., 98.

Even admitting that classification of counties on a reasonable basis may be possible under the constitution that attempt by this law is unwarranted and unreasonable, and is, therefore, illegal and void. Costello v. Wyoming, 49 Ohio St., 202; Nichols v. Walter, 37 Minn., 264; State v. Hammer, 42 N. J. Law, 435; Bronson v. Oberlin, 41 Ohio St., 476; Carr v. Carrollton, 8 C. C. Rep., 1; State v. Judges, 21 Ohio St., 11; State v. Hipp, 38 Ohio St., 199.

It therefore, being apparent that the law in question is local and special in its operation, if it is general in its nature, it falls within the inhibition of section 26, article II, of the constitution, which provides that all laws of a general nature shall have a uniform operation throughout the state. The nature of a statute depends upon the character of its subject matter; if that be of a general-as distinguished from a local or special nature-existing in every county throughout the state, then the law is one of a general nature. Lehman v. Me Bride, 15 Ohio St., 605; Kelley v. The State, 6 Ohio St., 269; State v. Powers, 38 Ohio St., 54; Costello v. Wyoming, 49 Ohio St., 202; State v. Ellet, 47 Ohio St., 90; Falk er parte, 42 Ohio St., 638; People v. Supervisors, 43 N. Y., 10; 68 N. Y., 381; 96 U. S., 238; Darling v. Rogers, 7 Kan., 592; Robinson v. Perry, 17 Kan., 288.

We submit that the legislature has established by general laws, a system, operating throughout the entire state, for the care of the poor; and in this system, the office of infirmary director is an essential factor in every county where an infirm

The State ex rel. v. Bargus et al.

ary has been established. This, being found, the law is of a general nature. State ex rel. v. Shearer, 46 Ohio St., 273; Grove et al. v. Leidy et al., 2 Ohio, 243; State v. Powers, 38 Ohio St., 54. When once established, the general infirmary system immediately becomes operative. All have an equal right to the provisions and purposes there contemplated. Heck v. State, 44 Ohio St., 536; Driggs v. State, 51 Ohio St., 37.

To enact a law giving to the counties of the state, generally, this protection, but denying it to Huron and Erie counties, would be to deny to the citizens of Huron and Erie counties the privileges, protections and guaranties conferred in this respect upon citizens of the rest of the state. McGill v. The State, 34 Ohio St., 237; Grove et al. v. Leidy et al., 2 Ohio, 243.

We claim that the duties of the board of county commissioners to create and oversee this trust, and to review the acts of managing directors, as inspectors of books, accounts and official conduct, is incompatible with the position of managing director. State of Ohio ex rel v. Taylor, 12 Ohio St., 130.

That the law in question is in conflict with article II, section 26, of the constitution, appears from its general effect in yet another, but not less vital particular. It has the effect to repeal (not in terms, but by necessary operation) in Huron and Erie counties only-certain laws for the care of the poor-which laws are clearly of a general nature; so that, even if the act itself-abstractly -were not general in its nature it is void for the above reason. 47 Ohio St., 99; State v. Ellet, 47

Ohio St., 90.

The term of office is fixed, and compensation is

The State ex rel. v. Bargus et al,

provided for the officers for such term, in accordance with article X, section 2, and article II, section 20, of the constitution of Ohio. Such officers receiving a per diem salary. Revised Statutes, section 968; Commonwealth v. Butler, 99 Pa. St., 542; Anderson's Law Dict., 914.

As to what constitutes an office, see State v. Brennan, 49 Ohio St., 33; State v. Kennon, 7 Ohio St., 556; State ex rel. v. Holbrook, 5 C. C. Rep., 602; 20 Johns., 492; Kirker v. Cincinnati, 48 Ohio St., 507.

The power here sought to be exercised, is one fraught with the greatest possibilities of public mischief and abuse. Van Riper v. Parsons, 40 N. J. L., 1; 18 Albany Law Journal, 407.

If the general assembly can legislate out of office one set of administrative officers, and legislate in another set; whether officers elected by the people shall serve the people, might depend upon the caprice or the political complexion of the legislature. 5 C. C., Rep., 602.

L. C. Laylin, for respondents.

A local act is necessarily repealed by implication, by the subsequent passage of another law of a general nature, on the same subject matter. Ex parte Van Hagen, 25 Ohio St., 431.

That a law may be upon a general subject and not be a law of a general nature, has been frequently held by this court. Cass v. Dillon, 2 Ohio St., 610; Cricket v. The State, 18 Ohio St., 22; The State v. Judges, 21 Ohio St., 1; Hart v. Murray, 48 Ohio St., 605; Ohio v. Covington, 29 Ohio St., 102; The State v. Baughman 38 Ohio St., 455; McGill v. The State, 34 Ohio St., 228; The State v. Kendle, 33 W. L. B., 83; The State v. Commissioners, 35

The State ex rel. v. Bargus et al.

Ohio St., 458; The State v. Shearer, 46 Ohio St., 275; The State v. Nelson, 32 W. L. B., 412.

Attention is also called to decisions rendered by the courts of other states, whose constitutions contain provisions similar to section 26, article II, of our constitution, State v. Hitchcock, 1 Kan., 178; Beach v. Lehey, Treas., 11 Kan., 23; Gentile v. State, 29 Ind., 409; State v. Tucker, 46 Ind., 355; State v. Boone Co., 50 Mo., 317; State v. Court, 51 Mo., 83; Commissioners v. Shields, 62 Miss., 247; Smith v. The Judge, 17 Cal., 554; People v. Railroad Co., 43 Cal., 432; Brooke v. Hyde, 37 Cal., 375.

The law under review has a uniform operation throughout the state, within the meaning of that section of the constitution. It creates certain classes of counties under the power so often exercised by the general assembly; and any act relating to all alike in the class so created may be one of general nature. The State v. Hudson, 44 Ohio St., 139; The State v. Turnpike Co., 37 Ohio St., 481; The State v. Powers, 38 Ohio St., 63; The State v. Anderson, 44 Ohio St., 247.

Classification of municipalities, based upon population, was approved by this court in the following cases: The State v. Cappeller, 39 Ohio St., 214; Bronson v. Oberlin, 41 Ohio St., 476; The State v. Pugh, 43 Ohio St., 112: The State v. Hawkins, 44 Ohio St., 108; Marmet v. The State, 45 Ohio St., 63. In several other cases this court has held legislative enactments to be void by reason of improper classification; one class was held too limited and restrictive; another was uncertain and illusory; while in another the classification was upon the basis of sidewalk construction and was not recognized; in other cases the express terms of the classification were such that the acts must neces