State ex rel. Godfrey v. O'Brien
State ex rel. Godfrey v. O'Brien
Opinion of the Court
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 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 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.
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 ref
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.
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
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
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.
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.
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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.