Tracy v. Deer Park (Village)

CUSHING, J.

The village of Deer Park brought an' action against Joseph Tracey, State Auditor, and Wm. Hess, Treasurer of Hamilton County to restrain them from deducting $384.67 from taxes collected for and on behalf of said village to pay one Joseph Ferguson, for services rendered in examining the books and accounts of said village reporting same to Tracy. Ferguson’s compensation was charged at the rate of fifteen dollars per day and his expense,s were $17.27. The fifteen dollars was authorized by amendments to 276 GC said amendment fixing the maximum compensation . at $15. and the minimum at $8.

Prior to its amendment 276 GC provided that each state examiner assigned to examine county or city offices shall receive $16 per day and when assigned to examine offices or institutions of other taxing districts, eight dollars per day.

The Common Pleas rendered judgment in favor of the Village. Error was prosecuted and the question raised is whether the amendment contravenes the ‘ constitutional provision that all laws of a general nature shall have uniform operation throughout the State. (SecJ 26, aft. '2' of' the Ohio', Constitution!) Tracy claimed that salary based on' classifications of counties is proper. The Court of Appeals held:

■ 1. Under the amendment the'. Village of Deer. Park- with a population of only a few-hundred would pay $15 a day for. services just because it, is in Hamilton County, and a, village which.,;is not,in Hamilton County would' pay $8 forthough, it-may, be a larger, village;-

2. . The -amendment undertakes to Classify villages. It fixes the 'rate'of compensation .for services, jh a village ¡.in á populous; ¡county »t much higher rate thaft services in ' a village ■in. a less populous "county. In fact it is a classification based on population of a county and not on-population of the taxing district to be charged. - ' " . ,

Attorneys—C. C.- Crabbe, Chas. W. Baker, Jr., Chas.- S.-Bell' and Jessie Adler', for Tracy, .et.; H. H. Hosbrook-; for Village; all of Cincinnati. ‘' '

8. The amendment does not operate equally upon every person arid locality within eircum-.stances covered by the act. It evades the constitutional limitation that all laws of a general . nature shall have uniform operation throughout the state.

4. The rule is, where an amendment was intended as a substitute for an original section, and there is no express or implied indention to repeal the prior law except to substitute the amendment for it, the amendment '.being held void, the. original, section will be in full force and effect; Coal Co. v. Fulton 98 OS 351; Morton v. State 105 OS 366-75.

5. The conclusion is that the amendment is unconstitutional and void and that the original section, 276 GC was not repealed by section two of the amendment. Judgment of the Common Pleas affirmed.