ATTORXEY GEXERAL I

2201
CO:\'SERV_-\:\CY DISTRICT-PURPOSES OF ORGANIZATION
CO:\IPLETELY FCLFILLED- EXCEPTION- MAINTENANCE
A:\D OF PUMPING STATIONS
A:\'D FLOOD GATES-DISTRICT _-\ND CITY MAY LEGALLY
CO:\CLCDE AGREEMENT TO CONVEY CERTAIN LANDS TO
CfTY FOR RECREATION PURPOSES-CONSIDERATION-
ClTY TO ASSUME FUTURE AND OPERA-
TION OF PU:\IPING PLANTS AND FLOOD GATES.
SYLLABuS:
\hen the puq}Qses for which a consenancy district has been organized have
been completely fulfilled, with the exception of the maintenance and occasional opera-
tion of pumping stations and flood gates, an agreement may be legally concluded be-
tween the district and a city whereby certain lands of the district are conveyed to the
city for recreation purposes in consideration for the city's assumption of the future
maintenance and operation of said pumping plants and flood gates.
:\lassillon Conservancy District
:\fassillon. Ohio
Gentlemen:
Columbus, Ohio, January :J, 1953
Your request for my opinion reads as follows:
''The Conservancy District was created for two
puqroses: one, for flood control by straightening the course of the
Tuscarawas River through the City of Massillon and, two, for the
purpose of grade elimination by the construction of rthree viaducts
upon Lincoln \Vay \Vest, Tremont Avenue S.\V., and Cherry
Road N.\V., together with various incidental things in connection
therewith.
"Channel improvement contemplated involved the construc-
tion of embankments on each side of the new channel to protect
the city from floods at times of high water. In rt:his connection
four pumping stations were provided to pump the city's accumula-
tion of flood waters back to the embankments, over the same,
upon such occasions as the 'height of the wa,ter in the channel
proper. \VOu!cl not permit gravity drainage into the embankment
channel.
2 OPINIONS
"All construction work has now been completed as contem-
plated in the District's plan and the purposes of the District have
;been completely fulfilled with the exception of the maintenance
and occasional operation of the pumping stations and flood gates
at times of extreme high water.
"Prior to disbanding the District it is proposed that the Dis-
trict convey to the City of Massillon, for recreational purposes,
certain lands now owned by the Distriot, in consideration for
which the City of MassiHon will assume the future maintenance
of said pumping plants and flood gates for the handling of the
accumulating storm waters of the city in times of extreme flood.
"In your opinion can such an agreement be legally concluded
between the District and the City of Massillon."
This request presents but two problems: first, whether the
Conservancy District may convey real property; and second, whether it
may enter into an agreement with the City of Massillon to perform some
of its functions.
The .!\IIassillon Conservancy District was organized under the authority
of the "Conservancy Act of Ohio" (Sections 6828-1 to 6828-iS, General
Code.) Section 6828-2, General Code, provides that such a district may
be organized for the following purposes:
" (a) of preventing floods;
"(b) of regulating stream channels by changing, widening
and deeping (deepening) the same;
" (c) of reclaiming or of filling wet and overflowed lands ;
" (d) o.f providing for irrigation where it may be needed;
" (e) of regulating the flow of streams and conserving the
waters thereof ;
"(f) of diverting, or in whole or in part eliminating water
courses;
"(g) of providing a water supply for domestic, industrial,
and public use;
"(h) of providing for the collection and disposal of sewage
and other liquid wastes produced within the district;
" ( i) of arresting erosion along the Ohio shore line of Lake
Erie. * * *
"Subject to the provisions of this section, tile purrx>ses of a
conservancy district may be altered by the same procedure as pro-
vided for the establishment of such a district."
Section 6828-3, General Code, provides for the creation of the District,
by filing a petition with the clerk of the common pleas court of a county
ATTORNEY GENERAL
3
containing a PQrtion of the territory sought to be included within the
proposed district, setting forth, among other things:
"* * * Second: The necessity for the proposed work and
that it will lbe conducive to the public health, safety, convenience
or welfare. * * *
"Fourth: Said petition shall pray for the organization of the
district by the name proposed."
Section 6828-6, General Code, provides for a hearing and reads 111
part, as follows :
' Cpon the said hearing, if it shall appear that the purposes
of this chapter would be subserved by the creation of a conserv-
ancy district, the court shall, after disposing of all objections as
justice and equity require, by its findings, duly entered of record,
adjudicate all questi>ons of jurisdiction, declare the district organ-
ized and give it a corporate name, by which in all proceedings
it shall thereafter be known, and thereupon the district shall be
a political subdivision of the state of Ohio, a body corporate with
all the powers of a corporation, shall have perpetual existence,
with power to sue and be sued, to incur debts, liabilities and
obligations; to exercise the right of eminent domain and of taxa-
tion and assessment as herein provided'; to issue bonds and to do
and perform all acts herein expressly authorized and all acts neces-
sary and proper for the carrying out of the purposes for which
the district was created, and for executing the powers with which
it is invested."
Section 6828-15, General Code, provides in part:
"In order to accomplish the purposes of the district, the board
of directors is authorized and empowered:
" (c) To <:onstruct, acquire, operate, and maintain main and
lateral ditches, sewers, canals, levees, dikes, dams, sluices, revet-
ment, reservoirs, holding basins, ftoodways, wells, intakes, pipe
lines, purification works, treatment and disposal works, pumping
stations and siphons, and any other works and improvements
deemed necessary to accomplish the purposes of the district or
to construct, preserve, operate or maintain such works in or out
of said district. Provided that this chapter shall not limit the
authority of public corporations to install, maintain and operate
sewerage systems and water works systems as otherwise permitted
by law; but the board of directors of the district shall have full
power to require the use of the improvements, constructed or
acquired by .the district for the purpose of water supply or the
collection and disposal of sewage and ether liquid wastes, by the
public corporations and persons, within the district, for which such
improvements were instaHed. * * *
4
OPINJO:'\S
"(k) To hold, encumber, control, acquire by donation, pur-
chase or oondemnation, construct, own lease, use and sell real
and personal property, and any easement, riparian right, railroad
right of way, canal, cemetery, sluice, reservoir, ho.Jding basin, mill
dam, water power, wharf, or franchise in or out of said district
for right of way, holding basin, location or protection of works
and improvements, relocation of communities and of buildings,
structures and improvements situated on lands required by the
district, or for any other necessary purpose, or for obtaining or
storir.g material to be used in constructing and maintaining said
works and improvements. * * *
' ( n) And to do all things necessa,y or incident to the ful-
ji!l111rnt of the purposes .for ~ c h i c h the district is established."
(Emphasis added.)
From your request, it may be noted that:
"The Massillon Conservancy District was created for two
purposes: One, for flood control, by straightening the course of
the Tuscarawas River through the city of ::\Iassillon, and two, for
the purpose of grade elimination by the construction of three
viaducts upon Lincoln \iV ay \iV est, Tremont A Yenue S.W ., and
Cherry Road ~ . \V .. together with various incidental things in
connection there\\"ith."
As stated at the outset of this opinion, the first problem presented by
your request is whether the District may comey its real property. I think
it clear that the Conservancy District is granted by Section 68z8-Ij, Gen-
eral Code, power to sell real property owned by it when such conveyance
is designee\ "to accomplish the purposes of the District." Since you state
in your !Etter to me that "all construction work has now been completed as
cor.templatecl in the District's plan and the purposes of the District have
been conzjJ{ctcl:, .fulfilled with the exception of the maintenance and occa-
sional operation of the pumping stations and flood gates at times of extreme
high water," and since the consideration for the proposed conveyance is to
provide for the maintenance and operation of the pumping plants and flood
gates, it is apparent that the conveyance is contemplated ''in order to accom-
plish the purposes of the District."
This conclusion is not in conflict with the result reached by one of my
predecessors in Opinion Xo. r8rz, Opinions of the Attorney General for
1940, page 123. In that opinion at page 12y, he stated in part, as follows:
"In Section 6828- r 5, General Code, we find that the district
is granted the power .to sell real or personal property owned by
it; however, such power is granted only 'In order to accomplish
ATTORNEY GENERAL
the purposes of the district.' Is the conveyance of the fee title to
all of the lands by the district to the United States Government
for flood control purposes the accomplishment of the purposes of
.the distriot? V/hen we examine the journal entry which created
the district we see that the purposes for which the district was
created are, in addition to the prevention of floods, the conserving
flood waters for beneficial uses, regulating stream channels, re-
claiming wet and overflowed lands; providing irrigation, regulat-
ing the flow of streams, the diversion or elimination of streams,
forestation, and prevention of soil erosion.
"The court, in authorizing the district, found that it was a
public necessity for the district to be created for the purposes and
with the powers above descrilbed; t-hat public safety, health, con-
venience and welfare would be promoted by the creation of such
district."
This opinion further stated at page I 30 :
"If the district were to convey its entire interest in the lands
which it has acquired, to the United States to be used 'for flood
control purposes, and the Federal Government would thereupon
.perform, carry out and maintain thereon the plans for flood con-
trol purposes which the district has contemplated performing and
maintaining thereon, then it might be urged with some degree of
credence t!hat by virtue of the agreement under which the district
made the conveyance the purpose of the district with reference to
flood control was 'being accomplished by it; however, it, by such
conveyance, 'lt'ould render itself impotent to a.ccomplish the other
purposes for which it was created." (Emphasis added.)
5
Thus we see that in the 1940 opinion quoted in part above, the Mus-
kingum 'vVatershed Conservancy District was 1held not authorized to convey
its lands to the Federal Government under an agreement which would
have provided for the carrying out of only one of the district's purposes
and would have rendered the district incapable of carrying out its other
purposes. From your letter, it is obvious that situation does not exist in
this instance as aU of the purposes of the Massillon Conservancy District
have been fulfilled, \Yith the exception of those to be accomplished by the
proposed agreement of conveyance. It can therefore be seen that the reason-
ing of my predecessor's opinion has no application to your situation.
There renmins, then, to be resolved the pwblem as to whether the
District may enter into an agreement with the City of Massillon providing
for that city to perform some of the functions of the District. Section
6828-23, General Code, provides in part as fol,Jows:
"The board of directors shall a.Jso have the right and autihority
6
OPINIONS
to enter into contracts or other arrangements with the United
States government or any department thereof, with persons, rail-
roads or other corporations, 'With public corporations, and the state
government of this or other states, with drainage, conservation,
conservancy, sewer, park, or other improvement districts, in
this or other states, for cooperation or assistance (not in viola-
tion of Article VIII of the constitution) in constructing, main-
taining, using and operating the works of .the district, the waters
thereof, or the parks parkways, forests, and recreational facilities
thereof, * * *." (Emphasis added.)
Clearly, the foregoing statute authorizes a conservancy district to enter
into a contract or agreement with a city. And it is equaBy clear that such a
district may enter into such an agreement to obtain assistance in the mainte-
nance and operation of its works.
Since the district has the right to convey its property, and smce the
district has the right to enter into agreements with the City of lVIassillon
for the purpose of providing for the maintenance and operation of the dis-
trict's \vorks, it follows that the district may convey its property to the
city for recreational purposes, and in consideration fuereof obtain the
agreement of the city to maintain and operate pumping plants and flood
gates which might otherwise have to be maintained and operated by the
district. Inasmuch as all the purposes for which the district was organized
have been fulfilled with the exception of this maintenance and operation,
it seems wholly within the letter and spirit of the "Conservancy Act of
Ohio" for the directors of the district to enter into such an agreement to
bring arbout the complete "fulfillment of the purposes for whioh the district
is established" if said directors deem such course to be proper in other
respects.
In specific answer to your question, tt ts my optmon that when the
purposes for which a conservancy district has been organized have been
completely fulfilled, with the exception of the maintenance and occasional
operation of pumping statioru; and flood gates, an agreement may be legally
.:oncluded between the district and a city whereby certain 1ands of the
district are conveyed to the city for recreation purposes in consideration
for the city's assumption of the future maintenance and operation of said
pumping plants and floods gates.
Respectfully,
c. Vl!LLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
7
2233
I. STATUTE AlVIENDED AND REPEALED- TEMPORARY
ACT OF GENERAL EXPIRATION OF
TEMPORARY LAW WILL NOT BE REVIVED-REQUIRE-
MENT- SPECIFIC LEGISLATION- FULL TEXT OF LAW
TO BE REVIVED-ARTICLE II, SECTION 16, CONSTITU-
TION OF OHIO.
2. SECTIONS 6290, 6292, 6309-2, 7250-1 THROUGH 7250-4 G. C.-
SUB. H. B. 267, 99 G. A.-WILL EXPIRE JUNE 30, 1953.
3 SECTIONS REPEALED BY AM. SUB. H. B. 267, 99 G. A.
\VILL NOT BE REVIVED-PROVISIONS IN ABSENCE OF
NEW LEGISLATION WILL NOT BE IN EFFECT-MOTOR
VEHICLES-ANNUAL TAX.
SYLLABUS:
1. Under the provisions of Section 16 of Article II of the Ohio Constitution, a
statute which has been amended and repealed by a temporary Act of the General
Assembly, will not, upon the expiration of such temporary law, be revived except by
specific legislation setting forth the full text of the law sought to be revived.
2. The present sections of the General Code, 6290, 6292, 6309-2, 7250-1, 7250-2,
7250-3 and 7250-4 as enacted by Amended Substitute House Bill No. 267, of the 99th
General Assembly, will expire as of June 30, 1953.
3. Upon the expiration as of June 30, 1953, of the listed sections of the
General Code, the sections that were in existence prior to the passage of Amended
Substitute House Bill No. 267, of the 99th General Assembly, and which were repealed
by that Act. relating to motor vehicles and including provision for an annual tax on
motor vehicles, will not be revived and their provisions, in the absence of new legis-
lation, will not be in effect.
Columbus, Ohio, January J4, 1953
Hon. R. E. Foley, Registrar, Bureau of Motor Vehicles
Columbus, Ohio
Dear Sir:
I have before me your communication requesting my optmon and
reading as follows :
"Amended Substitute House Bill No. 267 relating to the
regulation of trucks, trailers and other commercial vehicles, passed
8
OPINIONS
by the 99th General Assembly, amended Sections 6290, 6292,
6309-2 and 7250- I and enacted supplemental Sections 7250-2,
7250-3 and 7250-4 of the General Code.
"There is a provision in this act stating that this act shall be
effective until June 30, 1953.
"The act also repealed the then existing .Sections 6290, 6292,
6309-2 and 7250-I of the General Code.
"Your opinion is respectfully requested on the following:
"I. Do the present sections of the General Code, 6290, 6292,
6309-2, 7250-1, 7250-2, 7250-3 and 7250-4, expire as of
June 30, I 953?
"2. If the sections of the General Code referred to in ques-
tion number I expire as of June 30, I953, will the sec-
tions in the General Code that were in existence prior
to passage of this act be in effect, and, :specifically is the
old tax rate on motor vehicles reinstated?"
The sections of the Code amended by House Bill 267 referred to in
your letter, relate to the regulation of trucks, trailers and other motor
vehicles. Sections 6290, 6292 and 6309-2, of the General Code, which are
amended by the Act form a part of Chapter 2I, Title II, Part Second, of
the General Code, dealing especiaJ,Jy with motor vehicles, and have to do
with the levy of annual license taxes on suah vehicles.
Section 7250-I, General Code, which is also amended by said Act, con-
tains penalties for violation of the provisions of the law relating to the
operation of motor ve.hicles on the highways.
The Act in question also enacts among others, certain new sections
designated as Sections 7250-2, 7250-3, and 7250-4, of the Genera-l Code.
Section 7250-2 prescribes the penalty for issuing false bUlls of lading as to
weight. Section 7250-3, requires rear wheel flaps on trucks, and Section
7250-4, requires notification of certain violations of the traffic laws to be
given by an arresting officer to the person or corporation owning the vehicle
unlawfully operated, and also to the Public Utiolities Commission and the
Superintendent of the State Highway Patrol.
Existing Sections 6290, 6292, 6309-2 and 7250-I, General Code, as
formerly in force, are by Section 3 of the new Act, Amended Substitute
House Bill #267, repealed.
ATTORNEY GENERAL
9
Section 2 of said Act reads as follows:
''This Act shall be effective until June 30, I953
\11/e have, therefore, a series of statutes long in force, which have been
exr;ressly repealed in the process of amendment. \Ve have also several
new statutes, and the Act which has created these changes is b_v its own
icrms to expire on June 30, 1953. This brings us to the gist of your ques-
tion, to wit, what will be the status of the law relative to these features of
motor vehicle regulations on June 30, 1953, assuming that no new legisla-
tion is enacted in the meantime?
I find in authorities on statutory construction statements indicating
that the operation of a statute may be suspended by an Act \vhich, by its
terms, is to be temporary. It is said in Sutherland on Statutory Construc-
tion, page j r 6:
''The suspension of a statute is the temporary rescission of a
valid legislative enactment hy the execution of a later statute
which is to prevail during its limi-ted operation. \Vhen a sus-
pensory statute specifically refers to and declares the susper;sion
of a statute, the later enactment takes precedence over the desig-
nated enactment during its effective operation. Likewise, when a
later statute, limited in time of operation, prescribes the controlling
law while it is in force upon a subject previously controlled by a
statute of rermanent validity and operation, a suspension is
achieved by implication at the consummation of the later enact-
Iner.t. * ''' o;c''
This principle. boweyer, appears to me to apply only ,,!:en the legis-
lative intention is clear, either by express statement or by necessary infer-
ence that what is styled hy the author, "a statute of permanent validity and
operation" is to be merely suspended in whole or in part for a limited
period.
I can find no evidence in the legislation here under consideration of an
intention to suspend the operation of these laws as they theretofore existed.
The formerly existing sections, as already pointed out are expressly and
unequivocally repealed. This course of legislative procedure is specifically
required by our Constitution. Section 16 of Article II, of the 'Constitution
contains the following provision:
''No bill shall contain more than one subject, which shall be
clearly expressed in its title, and no law shall be revived, or
IO OPINIONS
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." (Emphasis added.)
The repeal of a statute absolutely destroys it. Our Supreme Court in
the case of Friend v. Levy, 76 Ohio St., 26, used this language:
"The general rule is that when an act of the legislature is re-
pealed without a saving clause, it is considered, except as to trans-
action past and closed, as though it had never existed (Lewis'
Sutherland on Statutory Construction, Section 282), * * *"
There is some authority to the effect that the repeal of a repealing
statute operates to revive the origin<11l enactment. On this subject it is said
by Sutherand at page 519:
"Under the common law rules of interpretation, the repeal
of a repealing sta,tute operates to revive the original enactment
where the repeal of the repealing statute is accomplished by ex-
press provision without additional legislation upon the subject
matter. * * *"
It is manifest that this rule of the common law may be abrogated by
constitutional provision, and that appears to be precisely what our con-
stitution has done. The following from Crawford on Statutory Construc-
tion, page 655, is pertinent:
"Constitutions sometimes provide that no act shall be revived
simply by reference to title. where such a provision exists, in
order to revive rhe repealed act, that portion sought to be revived
must be re-enacted and published at length, or set out at length in
the reviving act, as in the case of new 1egislation. * * *"
Accordingly, it seems manifest that under the constitutional provision
which I have quoted, there could .be no revival of the original statutes by
a repeal of the temporary law, unless the repealing statute sets forth the
entire text of the law which is sought to be revived. This being so, it is
even more clear that under our the mere expiration of the
life of the temporary law here under consideration could not possibly have
the effect of reviving the statute which it has repealed.
Accordingly, in specific answer to your questions it is my opinion:
r. The present sections of the General Code, 6290, 6292, 6309-2,
7250-1, 7250-2, 7250-3 and 7250-4 will expire as of June 30, 1953.
ATTORNEY GENERAL II
2. Gpon the expiration as of June 30, 1953, of the above listed sec-
tions of the General Code, the sections that were in existence prior to the
passage of amended Substitute House Bill 267 of the 99th General Assem-
bly, will not be revived and their provisions, in the absence of new legisla-
tion, will not be in effect.
2253
Respectfully,
c. WILLIAM O'NEILL
Attorney General
INCO?vlPATIBLE OFFICE- MEMBER, BOARD OF HEALTH,
GENERAL HEALTH DISTRICT-JUSTICE OF PEA:CE.
SYLLABUS:
The offices of member of the 'board of health of a general health district ami
justice of the peace are iocompatible.
Columbus, Ohio, January 26, 1953
Hon. Harold D. Spears, Prosecuting Attorney
Lawrence County, Ironton, Ohio
Dear Sir:
I have before me a request from your office for my opm10n as to
whether a member of the board of health of a geneml health district may
also serve as a justice of the peace.
I know of no statutes which specifically forbid the holding of these
two offices concurrently. The answer to your question, therefore, must be
found in a determination as to whether, under the rules of the common
law, such offices are incompatible.
The common law rule of incompatibility is well stated in 42 American
Juris prudence, 936, as follows:
"* * * They are generally considered incompatible where
such duties and functions are inherently inconsistent and repug-
I2
OPINIO:\'S
nant so that, because of the contrarity and antagonism \Yhich
"ould result from the attempt of one person to discharge faith-
fully, impartially, and efficiently the duties of both offices, con-
siderations of public policy rendered it improper for an incumbet;t
to retain both. It is r.ot an essential element of incompatibility of
offices at common law that the clash of duty should exist in all
or in the greater part of the official functions. If one office is
superior to the other in some of its principal or important duties.
so that the exercise of such duties may conflict, to the public
detriment, with the exercise of other important duties in the sub-
ordinate office, then the offices are incompatible. It is immaterial
on the question of incompatibility that the party need not and
probably will not undertake to act in both offices aJ1: the same time.
The admitted necessity of such 3\ course is the strongest proof of
the incompatibility of the two offices. * * *"
This common law rule of incomratibility has long been recognized in
this state. State, ex rei. Louthan v. Taylor, 12 Ohio St., r3o: State, ex
rei. Attorney General v. Gebert, 12 0. C. C. (N. S.) 274; 24 Ohio Juris-
prudence, 276; 32 Ohio Jurisprudence, 906 to 91 r.
General health districts are created pursuant to the provisions of Sec-
tion 1261-16, et seq., General Code. Section 1261-30, General Code. confers
upon such health districts an of the powers and duties ''imposed \yv law
upon the boards of health of a municipality." Thus, such health districts
are authorized by Section 4413, General Code, to adopt orders and regula-
tions for the prevention or restriction of disease and the preyention. abate-
ment or suppression of nuisances. By the terms of Section 4-F4- General
Code, the violation of such orders or regulations is a misdemeanor punish-
able by fine or imprisonment. Section 4416, General Code, prO\ides that
such prosecutions may be instituted before a justice of the peace "ithin the
county. By the terms of Section r26r-19, General Code, the district board
of health appoints as its executive officer a health commissioner who is
charged with the enforcement also of the sanitary laws and regulations in
the district. \ Vhere such prosecution would be instituted before a justice of
the peace who was a member of the board adopting the order sought to be
enforced, it would clearly appear rt:hat the duty of such person. as a member
of the board of health, would be inconsistent with his duty as a justice of
the peace.
One of the basic tenets of our judicial system -for protecting the rights
of one accused of some crime is the right to a fair and impartial tribunal.
To allow the same person, either individually, or as a member of the board
ATTORNEY GENERAL
13
which initiates the prosecution, to sit as the arbitor on the question of guilt
is clearly contrary to our democratic principles.
\ Vhile it might be argued that in such case the defendant 'vouJd be
protected by his right to file an affidavit of prejudice against the justice
of the peace should the justice assert the right to try such case, I believe
that such argument is answered by the language of 42 American Juris-
prudence. referred to above, that "The admitted necessity of. such a course
is the strongest proof of the incompatibility of the two offices."
A somewhat similar question was considered 1by me in Opinion No.
8n, Opinions of the Attorney General for 1941, page 586, wherein I ex-
pressed the opinion that offices of the justice of the peace and safety director
of a city were incompatible.
In specific answer to your question, it is my opinion that the offices
of member of the board of health of a general hea,Jrt:h district and justice
of the peace are incompatible.
2254
NOTARY PUBLIC:

C. WILL! AM O'NEILL
Attorney General
r. lVIA Y TAKE ACKNOWLEDGMENTS OF DEEDS ONLY
WITHIN COUNTY OR COUNTIES COVERING APPOINT-
:.\IENT-POWER NOT LIMITED OR EXTENDED BY LOCA-
TION OFr PROPERTY TO BE CONVEYED.
2. COl\DiiSSIONED FOR CERTAIN COUNTY -REMOVES
LEGAL RESIDENCE TO ANOTHER COUNTY----'OFFICE AS
NOTARY PUBLIC FORFEITED-SECTION II9 G. C.
3. RETURN TO COUNTY OF APPOINTMENT AS VISITOR-
woULD NOT GIVE RIGHT TO THERE EXERCISE POWERS
OF NOTARY PUBLIC.
I4
OPINIONS
SYLLABUS:
1. A notary public may take acknowledgments of deeds only within the county or
counties for which he is appointed, and such power is neither limited nor extended by
the location of the property to be conveyed.
2. A notary public who has been commissioned for a certain county. pursuant
to Section 119 of the General Code, and who, during his term remo,es his legal resi-
dence to another county, thereby forfeits his office as a notary public.
3. His return to the county of his appointment as a visitor, would not give him
the right to exercise there the powers of a notary public.
Columbus, Ohio, January 26, I953
Hon. VI/. H. Lohr, Prosecuting Attorney
Vinton County, McArthur, Ohio
Dear Sir:
I have before me your request for my opinion, reading 111 part, as
follows:
"John Doe was duly commissioned a notary public in Vinton
county, Ohio in 1950, and his commission was duly filed with the
Clerk of Courts. In 195I, John Doe moved his home to Athens
county, Ohio;and declared Arhens county to be his residence from
then on.
"Question r. May John Doe properly take acknowledgments
in Athens county for property located in Vinton county, Ohio?
"Question 2. May John Doe come into Vinton county on a
visit and properly take acknowledgments while a bona fide resi-
dent of Athens county, Ohio?"
Section I I 9 of the General Code, authorizes the Governor to appoint
notaries public. A portion of that section reads as follows:
"The governor may appoint and commission as notaries pub-
lic as many persons as he may deem necessary who are citizens
of this state, of the age of 21 years or over, and residents of the
counties for which they are appointed; but citizens of this state
of the age of 21 years or over, whose post office address is a city
or village, situated in two or more counties of the state, may be
appointed and commissioned for all of the counties within which
such city or village is located; and also provided that a citizen
of this state, who is admitted to the practice of law as an attorney
and counsellor in this state, or any person who has been certified
by a judge of the court of common pleas of the county in which
ATTORNEY GENERAL
he resides as qualified for the duties of official stenographic re-
porter of such .court, may be appointed and commissioned as a
notary public for the state of Ohio. * * *"
Ij
\Vith certain exceptions not here applicable, it will be noted that any
person so appointed must be a resident of the county for which he is ap-
pointed.
Section r26 of the General Code, defines the powers and further indi-
cates the extent of the jurisdiction of a notary. That section reads as
follows:
"A notary public shall have power, within the county or
counties for 'which he is appointed, or if commissioned for the
whole state, throughout the state, to administer oaths required or
authorized by law, to take and certify depositions, to take and
certify to acknowledgments of deeds, mortgages, Eens, powers of
attorney and other instruments of writing, and to receive, make
and record notarial protests. In taking depositions he shall have the
power which is by law vested in justices of the peace to compel
the attendance of witnesses and punish them for refusing to testify.
Sheriffs and constables are required to serve and return all process
issued by notaries in the taking of depositions. If the post office
which is recorded in the governor's office as the address of a
notary public is in a city or viHage situated in two or more
counties or if :such notary be an attorney-at-law commissioned
throughout the state such notary public may receive, make and
record notarial protests within the established limits of such city
or village." (Emphasis added.)
The words "county or counties" evidently refer to that portion of
Section r 19, supra, which authorizes a notary public to exercise his au-
vhority in more than one county where his post office address is a city or
viUage situated in two or more counties. Except for this, a notary public
who is appointed merely for a county, is strictly limited in his jurisdiction
to the county for which he is appointed.
Never having been appointed as a notary public for Athens County,
it is dear that J olm Doe would not be authorized under his Vinton county
commission to take acknowledgments in Athens county, regardless of his
present place of residence or of the location of the property to be trans-
ferred. This answers your first question.
Your second question involves a consideration of whether the perma-
!6 OPINIONS
nent removal of John Doe from Vinton county to Athens county effected a
forfeiture of his office as notary public of Vinton county.
It is plain that a notary public is an officer, as .that term is used in the
law. He is so designated in other statutes, such as Section I22, General
Code, which provides :
"Such notary shall hold his office for a term of three years
unless his commission shall be revoked. Before entering upon the
duties of his office he shall give bond * * * ."
Furthermore, it will be noted that his powers are not limited to taking
acknowledgments and administering oaths, but he is given quasi-judicial
powers in compelling attendance and testimony of witnesses and in punish-
ing them for refusal to testify. He is also given powers as to the present-
ment and protest of bills of exchange. No statute gives him any authority
to act outside of the county in which he is appointed and has jurisdiction,
except in the dimited degree contained in the final sentence of Section 126
supra.
If, during the term of office for which he is thu.s commissioned, he
should remove his legal .residence from the counrt:y in which he is an officer,
to some other county, then he would appear to fall directly \\'ithin the rule
laic! down by the Supreme Court in the case of State, ex rei. I ves \'. Choate,
r I Ohio, 51 I, in which the court held :
"The ,legislature may change the boundaries of a county, and
when such change places an associate judge within the limits of
another county, who does not, within a reasonable time remove
into the limits of the county for which he was appointed. he for-
feits his office.
"A person who at.tempts to exercise the office of associate
judge in a county ,,,.herein he does not reside, is guilty of intrusion
and usurpation."
In the course of the opinion the court referring to the fact that the
judge in question ceased by the action of rt:he legislature to be a resident of
the county in which he was elected, used this expression :
"No one could contend that a voluntary removal was not a
forfeiture and resignation of his office. * * * Can it make any
difference when this removal is effected by the exercise of a con-
stitutional right of the general assembly and by an act of omission
in the officer?"
ATTORNEY GENERAL
17
This case was referred to and relied upon in an opinion by one of my
predecessors, to wit, Opinion No. 1972, Opinions of the Attorne: General
for 1938. page 390, where it \vas held:
"2. One who has been appointed as a trustee of a municipal
public library, in accordance wibh the provisions of Section 4004_.
Ceneral Code, is a public officer and is required by the provisions
oi Section 4666, General Code, to he an elector within the cor-
poration. If such a trustee moves outside of the limits of the
Yillage corporation he thereupon forfeits his office as trustee of
the nmnicipal public library."
These expressions are in accord with the general rule as laid down in
such \\orks as Corpus Juris Secundum. I find on page 229 of Volume 6;
of that \YOrk, the following:
":\n office may be vacated by abandonment, as, for example
* * * by leaving the state or territorial jurisdiction of his office,
or by permanently removing from a particular place or district,
\\here a statute requires residence of the officer in such place or
district."
Likewise, it is said in 43 American Jurisprudence, page 27:
"The a-bandonment of an office may be shown by the action
of the officer in leaving the state or changing his residence from
the territorial jurisdiction of the office, especial-ly where the law
requires the officer to reside in the county or district in which he
holds his office. * * *"
It according] y appears quite clear .that when the party mentioned in
your letter, \Yho had been commissioned a notary public in Vinton county,
moved during his term to Athens county, he abandoned and thereby for-
feited his office as notary public. Therefore, he was wholly without au-
thority to take acknowledgments in any county relative to any property,
regardless of its location. The fact that the property was located in Vinton
county. could have no effect in enlarging or extending his powers. The
power of a notary public to take acknowledgments of deeds and other
instruments relating to real property is not conditioned .in any way upon
the location of the property.
In the light of the foregoing, it appears quj,te evident that the party
in question. who had by his removal forfeited his commission as a notary
public in Yinton county, could not take advantage of the fact that he re-
rS OPINIONS
turned to that county on a visit, and there exercise the power which he had
lost by
Specifically answering your questions it is my opinion:
r. A notary public may take acknowledgments of deeds only within
the county or counties for which he is appointed, and such power is neither
limited nor extended by the location of the property to be conveyed.
2. A notary public who has been commissioned for a certain county,
pursuant to Section I 19 of the General Code, and who, during his term
removes his legal residence to another county, thereby forfeits his office as
a notary public.
3 His return to the county of his appointment as a visitor, would not
give him the right to exercise there, the powers of a notary public.
Respectfully,
c. vVrLLIAM O'NEILL
Attorney General
PHEASANT SHOOTING PRESERVE- COMME&CIAL- UN-
LAWFUL TO HUNT ON SUNDAY-SECTION 1391 GC-GAME
BIRDS-NON-GAME BIRDS.
SYLLABUS:
It is unlawful, by the force of Section 1391, General Code, to hunt on a commercial
pheasant-shooting preserve on Sunday.
Ron. A. V./. Marion, Director
Department of Natural Resources
Columbus, Ohio
Dear Sir:
'Columbus, Ohio, January 27, I953
I am in receipt of your letter of recent date reading as foHows :
"Section 1391 provides in part as follows:
"'Hunting a wild bird or wild quadruped on Sunday
ATTORNEY GENERAL
and the use of a rifle in taking migratory game birds is pro-
hibited.'
"I respectful<ly request a formal opinion from your office as
to \vhether or not the above provision a:pplies to 'commercial
pheasant-shooting preserves' licensed in accordance with 1437-2
and 1437-4, Ohio General Code. Specifically, is it legal or illegal
to hunt pheasants on a commercial pheasant-shooting preserve on
Sunday."
Section I 391, in its entirety provides :
"The ownership of and the title to all wiid animals in the
state of Ohio, not legally confined or held by private ownership,
legally acquired, is hereJby declared .to be in the state, which ho1lds
it in trust for the benefit of all the people. Only in accordance with
the terms of the General Code, or council orders, then in effect,
shall individual possession be obtained. No person shall at any
time of the year take, in any manner, or possess any number or
quantity of wild animals defined in this chapter, except as pro-
visions of the General Code, or the council orders then in effect,
may permit to be taken, hunted, killed or had in possession, and
only at such time and in such place, and in such manner, as the
Genera.! Code or uhe council orders, then in effeot, may prescribe,
and no person shall buy, sell, offer .for sale the same, or any part
thereof, transport or cause to be transported, except as permitted
by the terms and provisions of the General Code or the oouncil
orders then in effect. A person doing anything prohibited or
neglecting to do anything required by this chapter, or contrary to
any council order then in effect, shall
1
be deemed to have viO'lated
this section. A person who counsels, aids or assists, shields or
harbors an offender .under this chapter or counoil order then in
effect, or who knowingly shares in the proceeds of such violation,
or receives or possesses any wild animal in violation of the Gen-
eral Code or council order then in effect, shall be deemed to have
violated this section. Hunting a wild bird or wild quadruped on
Sunday and the use at any time of a rifle in taking migratory game
birds is prohibited."
19
Commercial pheasant-shooting preserves are licensed by Section 1437-2,
General Code, wherein it is provided in pertinent part that:
" (c) A person desiring to operate a commercial pheasant-
shooting preserve on lands of which he ~ s the owner or bona fide
lessee may apply in writing to the division for a license so to do.
The license fee shall be one hundred dollars per annum and the
form of the application and license shall be determined by the
division.
20 OPINIONS
"The division may, upon payment of such fee, Issue to the
applicant such a license ,when it appears that:
" (I) The operation of such commercial pheasant shooting
preserve shall not conflict with a prior reason<Vble public interest;
and
'' ( 2) T1he applicant shall produce evidence satisfactory to
the division that he has released on lands described in the appli-
cation and license, at least ten female and two male pheasants
for the first one hundred acres of land or portion thereof, or a
proportionate number of such birds for any acreage .in excess of
the first one hundred acres, prior to May first in the calendar
year for which the license is to be issued; and
" ( 3) The applicant shall deliver to the division of wildlife
each September, for distribution of lands, other than private
hunting preserves, herein established, ten female, two male pheas-
ants for each one hundred acres of land or portion thereof within
said preserve : and
"(4) The applicant shall have produced evidence satisfac-
tory to the division that he will raise or purchase for lilberation
and will liberate on the commercial pheasant shooting preserve at
least five hundred phea&'1nts between September first of tihe year
for v,hich the license was issued and the following March fif.teenvh.
The holder or holders of any such license shall be liable for any
damage to or destruction of growing crops on lands adjacent to
the preserve, caused by pheasants raised on suah preserve."
Section 1437-4, General Code, provides:
"Pheasants raised in the wholly enclosed preserve may be
killed in any manner. No pheasants shall be sold for food un1less
the carcass of each pheasant shall have been tagged with a suitable
tag m- .seal supplied by the division. Nothing in s e c t ~ o n s I to I2,
inclusive, of this act ( G.C. I437-I to I437- I 2), shall alter or
supersede the laws requiring a license to hunt.
"C nder a 'commercial pheasant-shooting ,preserve' license,
pheasants may be taken only on lands described in the application
and license, without regard to sex and daily bag limit, by duly
licensed hunters authorized by the licensee to shoot on said land
between Septem'ber first and the following March fifteenth, both
elates inclusiYe.
"All pheasants Jiberatecl on a commercial pheasant-shooting
preserve for which a license has been issued shall first be banded
with a leg band which shall bear upon it a symbol identifying the
shooting preserve, and a description of said band and symbol
shall be set forth in the application for license. No pheasants shall
ATTORNEY GENERAL
be possessed or transported outside of the l<icensed area, unless
each bird shall have been tagged with a suitable tag or seal sup-
plied by the division, and no licensee shall receive from the divi-
sion, during any year of operation, more tags to be affixed to the
bodies of pheasants than four times the number of female pheas-
ants released prior to May first in each year, in addition to one
tag for eaoh pheasant liberated during 1Jhe shooting period herein-
before specified. Provided further that if a pheasant without a
band is shot w1thin the confines of a commercial pheasant shoot-
ing preserve, the licensee shall immediately replace each such bird
with a live banded pheasant. Each replaced pheasant shall be re-
leased outside the confines of the preserve under the supervision
of the division of wildlife."
:21
It will be seen that the interdict cont:Ja.ined in Section r 391, applies
only to the hunting of "wild" birds and "wild" quadrupeds. The first ques-
tion that must be answered, then, is whether pheasants banded and 1eieased
on a commercial hunting preserve are wild birds within the meaning of this
section.
The term "wild" as used in Section 1391 and related sections witJh
reference to animals within this state, is in my opinion used in a generic
sense to indicate animals of a species not usually domesticated, and does not
refer to their state of existence or to their comparative docility or familiarity
with man. Thus wild birds are defined in Section I 390, General Code, as
"Game birds and non-game birds". Game birds in turn being defined, in
the same section, to include pheasants. However, even if this term is held
to refer to the state of existence of particular animals I .think in the case
under consideration the answer must be the same. vVhether purchased or
raised these pheasants are wild
1
birds. They have lost none of their natural
propensities and when released on the preserve they are living in a natural
or unrestrained state.
Next in the order of consideration is the question of whether the
legislature intended to include pheasants released on a commercial &hooting
preserve within the prohibition on Sunday hunting expressed in Section
I39I. This question, I believe, must be answered in the affirmative. The
provision on its face applies to the hunting of all wild birds and quadrupeds
without exception, although in the same statute the legislature gave recogni-
tion to the fact that some live wild animals might be owned by private per-
sons as distinguished from the state of Ohio. This would seem to indicate
that the legislature, with complete awareness, intended as expressed to for-
22 OPINIONS
bid hunting on Sunday of all wild birds and quadrupeds regardless of own-
ership. This is not to be taken as meaning that in my opinion these pheas-
ants are necessarily privately owned. I merely point out that the question
of property interests or ownership is immaterial to ,the issue before me.
lt will also be noted that in Section I437-4, supra, it is specifically pro-
vided that two types of restrictions applying to hunting in general are not
to apply to hunting on commercial pheasant-shooting preserves. I refer to
the removal of restrictions on sex and daily bag limits. It would seem from
this that the legislature intended other restrictions or limitations on hunt-
ing, not specified, to apply to hunting on these ;preserves. This rule of inter-
pretation finds expression in the maxim "expressio unius est exclusio
alterius." The provision in the same paragraph wherein it is provided that
the hunting season on pheasant preserves is to run "between September
first and the following March fifteenth, both elates inclusive," does not, to
my way of thinking, dictate that a different conclusion be reached. This
particular provision merely defines .the duration of the open season on com-
mercial pheasant-shooting preserves in general; restrictions on hunting
within the season being left for more specific legislation. In the same
manner, Section 13, General Code, sets out the beginning and ending
elates of the open seasons on game throughout Ohio in general. This does
not, however, give license to hunt at all times during the open seasons as
evidenced by the very prohibition under consideration.
Based on the foregoing considerations and in specific answer to your
question, it is my opinion that it is unlawful, by the force of Section I39I,
General Code, to hunt on a commercial pheasant-shooting preserve on
Sunday.
Respect ull y,
c. 'WILLIAM O'NEILL
Attorney General
A T T O R ~ E Y GENERAL
2271
EMPLOYES OF CITY HOSPITAL-HOSPITAL CONVEYED TO
COGNTY-CLASSIFIED SERVICE EMPLOYES-TO CONTINUE
IN SA:.1E POSITIONS AT SAME SALARY-MAY RETAIN TEN-
URE A::\D ALL RIGHTS AS CLASSIFIED EMPLOYES-CON-
SENT OF STATE CIVIL SERVICE COMMISSION-SECTION
486-16 GC-ARTICLE XIV, SECTION 10, CONSTITUTION OF
OHIO.
SYLLABUS:
By virtue of the pro\ision of Section 10 of Article XIV oi the Ohio Constitution
and the provisions of the laws relating to civil service, particularly Section 486-16,
General Code, the employes of a city hospital, who are in the classified service, and
who upon the conveyance oi such hospital to a county, are to continue in the same
positions and at the same salary, may with the consent of the State Civil Service
Commission retain their tenure and all rights incident thereto, as classified employes,
in the service of the county.
Columbus, Ohio, February :J, 1953
Hon. Frank T. Cullitan, Prosecuting Attorney
Cuyahoga County, Cleveland, Ohio
Dear Sir:
1 have before me your request for my opinion, reading as follows:
"Pursuant to an agreement entered into between the City of
Cleveland and the Board of County Commissioners of Cuyahoga
County, the City of Cleveland on August r, 1952 will transfer and
convey to the County its Infirmary and Chronic Hospital. These
institutions will be operated by the Board of Trustees of the Cuya-
hoga County Hospital in con junction with a new County Hospital
now being constructed and soon to be completed. The Board of
Trustees of the Cuyahoga County Hospital was appointed pur-
suant to the provisions of Section 3131 G. C.
"The agreement above referred to provides tha.t the County
will 'recognize and preserve the Civil Service status and rights of
all persons presently employed iby the City in the operation of
said premises and buildings so conveyed (City Infirmary and
Chronic Hospital).' There are some forty employees at the City
Infirmary and Chronic Hospital under City Civil Service that will
be involved in the transfer of these institutions to the County.
Some of these people have extensive periods of service, ranging
OPINIONS
from two to forty years. The transfer will not involve any
change in the present duties of these employees, the only differ-
ence being that they will be employees of the County instead of
the City.
"The State and City Civil Service Commissions are of the
view that these employees cannot lbe tranS'ferred to the County
Civil Service. In other words, they feel that when the transfer
is made, these employees would lose their present Civil Service
status. This would mean that they would have to be g.iven pro-
visional appointments, take an examination and ,finally be certified
as Civil Service employees of Cuyahoga County. The City officials
now in charge of these institutions, The Board of Trustees of
Cuyahoga County Hospital and the City Civil Service Commission
are in favor of recognizing and transferring the present Civil
Service status and rights of these employees, if this is legally
possible.
"Specifically, therefore, the question upon which your opinion
is respectfully requested is as follows:
"Cnder the circumstances above set forth, may the em-
ployees in question who are in the classified Civil Service of
the City be transferred to the classified Civil Service of the
County with the consent of the State and City Civil Service
Commissions?"
Section 10, of Article XIV, of the Constitution of Ohio reads as
follows:
Appointments and promotions in the civil service of the
state, the several counties, and cities, shall be made according to
merit and fitness, to be ascertained, as far as practicable, by com-
petitive examinations. Laws shall he passed providing ,for the
enforcement of this provision."
This is a mandate which is binding upon the state, the several counties,
and cities. Pursuant to its command, the General Assen11bly has enacted
Section 486-1 et seq., which outline the machinery and proceedings whereby
appointments and promotions are to be made. By Section 486- I, General
Code, it is provided:
I. The term 'civil service' includes all offices and positions
of trust or employment in the service O'f the state and the counties,
cities and city school districts thereof. * * *"
By Section 486-8, General Code, the civil service of the state, and the
several counties, cities and city school districts, is divided into the classified
ATTORNEY GENERAL
,-
-J
and unclassified service. I do not consider it necessary to analyze this sec-
tion to determine what positions are in the classified service. Your letter
states that some forty employes of the city infirmary and chronic hospital
are to be transferred, with no change in their duties, and as I understand,
many of them are in the classified service. Section 486-2, General Code,
provides as follows :
"On and after the taking effect of this act ( G.C. 486-r to
486-3 I), appointments to and promotions in the civil service of the
state, the several counties, cities and city school districts thereof,
shall be made only according to merit and fitness to lbe ascertained
as far as practicable by competitive examination; and thereafter
no person shall be appointed, removed, transferred, laid off, sus-
pended, reinstated, promoted or reduced as an officer or employe
in the civil service of the state, the several counties, cities and city
school districts thereof, in any manner or by any means other than
those prescribed in this act or by the rules of the state or municipal
civil service commissions within their respective jurisdictions as
herein provided."
Section 486-Io et seq., General Code, provides that all applicants for
places and positions in the classified service, 'Shall be subject to examina-
tion, and the sections which follow relate to the examinations, the prepara-
tion of an eligible list, and the appointment from such eligible list of one
of the three candidates standing highest on the eligible lirst for the class or
grade to which the position belongs. There are also provisions for pro-
visional appointments when there is no eligible list available.
Section 486- I 5, General Code, relates to promotions in the classified
service, and in this connection, I direct attention to the provisions of the
Constitution 'vhich I have already quoted, to the effect that not only appoint-
ments but promotions are to be based on fitness, to be ascertained as far ars
practicable by competitive examination. Section 486-I 5 ,provides in part as
follows:
"Vacancies in positions in the classified service shall be filled
in so far as practicable by promotions. The commission shall pro-
vide in its rules for keeping a record of efficiency for each employe
in the classified service, and for making promotions in the classified
senice on the basis of merit, to be ascertained as far as practicable
by promotional examinations, by conduct and capacity in office,
and b)' seniority in service; and shall provide that vacancies shall
be filled by promotion in all cases where, in the judgment of the
commission, it shall be for the best interest of the service so to fill
OPINIONS
such vacancies. All examinations for promotions shall/be competi-
tive. In promotional exa11linations efficiency and seniority in
service shall form a part of the maximum mark a.ttaina.ble in such
e.1:amination. In all cases where vacancies are to be filled by pro-
motion, the commission shall certify to the appointing authority
only the name of the person having the highest rating. * * *"
(Emphasis added.)
I call particular attention to that provision of the section just quoted,
to the effect that "efficiency and seniority in service" shall form a part of
the maximum mark attainable in each examination. Section 486-r7a, Gen-
eral Code, makes provision for the tenure in office of employees who have
attained a position -in the classified service by the processes aforesaid, in
the state, the counties, the cities and city school districts. This section
reads in part as follows:
"The tenure of every officer, employe or subordinate in the
classified service of the state, the counties, cities and city school
districts thereof, holding a position under the provisions of this
act, shall be during good behavior and efficient service; but any
such officer, employe or subordinate may be removed for incom-
petency, inefficiency, dishonesty, drunkenness, immoral conduct,
insubordination, discourteous treatment of the public, neglect of
duty, violation of the provisions of this act or the rules of the
commission, or any other failure of good behavior, or any other
acts of misfeasance, malfeasance or nonfeasance in office. * * *"
It is to be observed that one who has secured an appointment in the
classified service, shall be entitled to hold that position "under the pro-
visions of this act during good behavior and efficient service", and the
statute goes on to enumerate the only causes for which he may be removed.
It may be assumed that in case the state or any of the subdivisions coming
within the purview of civil service, should abolish a department entirely,
the employes therein who are in the classified service, might lose their
positions and be required to -seek employment elsewhere, but there is noth-
ing in this section to suggest that the transfer of an existing and continuing
institution under control of one of these governmental bodies to the owner-
ship and supervision of another, would have the effect of throwing these
classified employees out, and subjecting them to the necessity of starting
from the beginning, with examination, certification and new appointment,
in order that they might retain the precise position and perform the same
work for which they have qualified and whioh they have been doing for
many years. The unfairness of that suggestion is illustrated by the state-
ATTORNEY GENERAL
27
ment in your communication, that some of these employees have held their
position and presumably have done satisfactory work for a period of forty
years, others doubtless for long, but lesser periods. If their tenure is to be
abolished, under the circumstances suggested, then they must subject them-
selns to an examination in competition with younger people, who pre-
sumably have made special preparation for the examination, and may attain
a higher grade, but who are wholly without the experience and competency
attained by long service.
Another section of the civil service aat which appears to me to have a
decisive bearing on the question submitted is s ~ c t i o n 486-r6, General
Code. In so far as pertinent, it reads:
"\Vith the consent of the commission, a person holding an
office or position in the classified service may be transferred to a
similar position in another office, department or institution having
the same pa:,' and similar duties; but no transfer shall be made
from an office or position in one class to an office or position in
another class, nor shall a person be transferred to an office or posi-
tion for original entrance to which there is required by this act,
or the rules adopted pursuant thereto, an examina:tJion involving
essential tests or qualifications or carrying a salary different from
or higher than those required for original entrance to an office or
position held by such person. * * *" (Emphasis added.)
The words, "another office, department or institution" are not limited
by any language in t:he statute to offices, etc., within a particular sub-
division, but are equally applicable to offices, departments and institutions
in all those political subdivisions, which as I have shown, are gathered
together and brought within the soope of the "civil service." The only
qualification is that the positions in these other offices, departments and
institutions from and to which transfers of classified employes may be
made, have the "same pay and similar duties."
The obvious purpose of this provision is not merely to authorize an
employe to be let out of one office and to be employed in another, but
rather to transfer "a person holding an office or position in the classified
service," carrying with him his -tenure, his efficiency record and his senior-
ity credit. The statute would be meaningless and useless unless that were its
purpose. The only condition is the consent of the civil service commission.
The only discussion of this section, providing for transfer, which
I have been able to find is in Opinion No. 853, Opinions of the Attorney
OPINIONS
General tfor I9I7, page 2302, where it was held, that the civil serv1ce
commission cannot permit transfers from the county service to the state
service or vice versa. Practically the entire argument and reason is em-
bodied in this statement:
"A transfer from the county service to the state service would
intrude one into the latter service who had not competed with all
those entitled -to seek the same position, but who had only com-
peted against those in the same one of the eighty-eight counties
in which he took the examination.''
I do not consider that opinion in any way binding as applied to the
different state of facts involved in your inquiry.
I would call attention again to the idea which is carried both in the
Constitution and in the statutes, that not only appointments but promo-
tions are -to be governed by the civil service procedure, and the statutory
provision that in an examination for promotion "seniority in service shall
form a part of the maximum mark obtainable." If the employes to which
you refer are to lbe considered as dismissed and required to start from
the beginning, and be subjected to an examination as new employes, then
what becomes of their record of seniority? Plainly, it would be lost and
could have no part in their obtaining promotion to better positions.
Taking it all in all, it appears to me that it would be necessary to
resort to a highly technical construction of the law and disregard of its
basic purpose in order to crowd these employes out and reduce them to
the necessity of starting anew. Such a procedure would not be conducive
to good public service and efficiency attained by long service.
I am not unmindful of the fact that the legislature has provided by
Sections 486-I9 and 486-I9a, General Code, for a municipal civil service
commission, to have the management of civil service procedure with re-
spect to municipal employees and employees of oity school districts. How-
ever, there is nothing in these provisions that gives the municipal civil
'
service commission any authority to depart from the idea and purpose
of the Constitution either as to appointments or promotions. I also do
not overlook the tfact that by virtue of the Home Rule Amendment to the
Constitution, embraced in Article XVIII, municipalities may set up their
own organizations for the administration of civil service. The Supreme
Court has recognized this right in several cases, among others, State, ex rei.
Lentz v. Edwards, 90 Ohio St., 305, and Hile v. Cleveland, I IS Ohio St.,
ATTORNEY GENERAL zg
99 This right, however, under home rule to provide by the terms of a
charter for the administration of civil service with respect to municipal
employes does not in any way authorize any departure from the under-
lying principle and purpose laid down in the Constitution. It only relates
to the machinery and procedure hy which this central ;purpose may be
carried out. The couflt in the Edwards case says:
"As long as the provisions made in the charter of any mu-
nicipality with reference to its civil service comply with the re-
quirement of Section roof Article XV, and do not conflict with
any other provisions of the constitution, they are valid and under
the cases referred to discontinue the general law on the subject
as to that municipality."
The same principle is recognized m the case of Hile v. Cleveland,
supra.
It occurs to me that under the rather broad rule-making power of
the state civil service commission as well as that of the oity civil service
commission, a rule might be adopted by one or hobh designed to preserve
the civil service status of these employees in the case of the complete
transfer of an institution conducted by the oity, to the county. That, to-
gether with the consent and agreement on the part of the city and county
officials to which you refer, ought to remove any question as to the regu-
larity of such a proceeding.
Specifically answering your question, it is my opinion that by virtue
of the provision of Section IO of Article XIV oll' the Ohio Constitution
and the provisions of the laws relating to civil service, particularly Sec-
tion 486-16, General Code, the employes of a city hospital, who are in
the classified service, and who upon the conveyance of such hospital to
a county, are to continue in the same positions and at the same salary, may
with the consent of the State Civil Service Commission retain their tenure
and all rights incident thereto, as dassified employes, in the service of the
county.
Respectfully,
c. vv ILLIAM O'NEILL
Attorney General
JO
OPINIOXS
2282
I. ARCHITECT'S CONTRACT-TO PLAN AND SUPERVISE
CONSTRUCTION, NEW RESIDENTIAL SCHOOL FOR
BLIND-ENTITLED TO
75
% OF FEE, COMPUTED AT sYz%
OF ESTIMATED COST OF PROJECT, UPON COMPLETION
AND APPROVAL OF WORKING DRAWINGS AND SPECI-
FICATIONS-AFTER WORK PROGRESSED ARCHITECT
ENTITLED TO roo% OF FEE BASED ON 53/z% OF SUMS
PAID CONTRACTOR.
2. ADDED COMPENSATION-SUPPLEMENTAL CONTRACT.
SYLLABUS:
1. Pursuant to the terms of the contract submitted governing the employment of
an architect to plan and supervise .the construction of the New Residential School for
the Blind, said architect was entitled upon completion and approval of the working
drawings and specifications, to 75% of his fee computed at 5;/,% of the estimated
cost of said .project. After the award of contracts, and as work on said project
progressed, said architect was entitled to 100% of his fee based upon 50% of sums
paid to contractors.
2. Pursuant to the terms of the contract submitted, which contract provided that
said architect should receive such added compensation for supervision as might be
agreed upon in t'he event that said project was not completed by the time fixed for its
completion, said architect is not required to continue supervision beyond the fixed
completion date without a supplemental contract.
Columbus, Ohio, February 9, I953
T. C. Holy, Chairman for New Residential Schools
for the Blind and The Deaf
Columbus, Ohio
Dear Sir:
Your request for my opinion reads as follows :
"The Commission for New Residential Schools for the Blind
and Deaf respectfully request written opinions of your office in
regard to legal interpretations of the contract attached hereto,
being between Commission for New Residential Schools for the
Blind and the Deaf and Outcalt, Guenther and Associates, dated
October I9, 1949. Pursuant to plans made by .the Architects, the
Commission entered into contracts for construction of this project
providing for a completion date of July IS, I952.
ATTORNEY GENERAL
"\ \" e desire \Hitten opinions regarding the following ques-
tions:
"1. As of July 15, 1952 the completion date, were the Archi-
tects entitled to full payment of fees set up under the contract
based on the contract awards and subsequent change orders?
"z. Are the Architects required to supervise construction
subsequent to July I 5, 1952, the completion date, without a sup-
plemental contract?"
Jl
The contract \\'hich you have attached to your request contains the
following provisions bearing on the questions which you have raised.
"* * * I. THE STATE OF OHIO does, under the conditions
named below, hereby employ the Architect for the rendition to
it, under the direction, subject to the orders and to the satisfaction
of the Commission of the following services with respect to said
improvement, to-wit:
(I) To prepare drawings, specifications, bills of material,
and estimates of cost.
( 2) To inspect the materials going into said improvement
previous to their incorporation into the same.
(3) To supervise the construction of said improvement.
* * *'j
"z. SUPERVISION OF THE VlORK
"The supervision to be furnished by the Architect shall be
held to mean daily and continuous supervision either by the Archi-
tect himseJ.f or by rtlj)resentatives in his employ, except as herein
otherwise stated. The Commission shall employ one Clerk of the
\Vorks who shall be acceptable to both the Commission and the
Architect and who shall work under the direction of the Archi-
tect.
"This supervision shall be adequate at all times and shall be
satisfactory to the Commis:sion.
"The Architect shall supervise the work under construction,
to ascertain whether it is in compliance with the terms of the con-
tracts and shall aid the contractors in obtaining full performance
of their contracts, \vithout delays or errors, apprising the Com-
mission of the progress and condition of the work. The Architect
shall keep a record of accounts with contractors and shall audit
the contractors' application for payments before they are sub-
mitted to the Commission.
"In the event that superintending the construction of the
improvement should extend beyond the time fixed by the Com-
32
OPINIONS
mlsslon for its completion by the contractor, the Architect will
receive such added compensation for supervision as may be agreed
upon by the Commission and the Architect. * * *
"3. SPECIAL PROVISIONS.
"If at any time in the judgment of the Commission, the serv-
ices of the Architect are unsatis,factory, the State of Ohio, acting
'by said Commission, may terminate his services, allowing him
such reasonable compensation, if any, as in the judgment of said
Commission, may then be due such Architect, and in case of
abandonment or suspension of the improvement, the Architect
will be allowed as compensation for partial services such amount
as may in the judgment of the Commission be reasonable and
proper. * * *"
"4. PAYMENTS.
"The State of Ohio agrees .to pay the Architect as full com-
pensation for his services as arroresaicl, and any and all ex.r:Jenses
incurred lby the Architect in performing said services, except as
otherwise provided in Supen,ision of T1
7
ork, page 4, paragraph
4, and Special Prm:isions, page 5, paragraph 4, a fee equal to
53/z per cent of the amount paid out tby the State of Ohio under
and on account of contracts entered into :by the State for the con-
struction of said improvement. \Vhen l<vbor or material is fur-
nished by the State of Ohio, the actual cost to the State of Ohio
shall be taken as the basis for computing the Architect's com-
pensation. The Architect's compensation will be paid by vouch-
ers issued in his favor by the Auditor of State, and arpprovecl by
the Commission and such compensation shall 'become clue and
payable in the following order: * * *
"Upon completion and approval of the working clra\\ings
and specifications, a smn sufficient to increase the payments to
seventy-five per cent (75%) of the fee, computed upon the same
estimated cost as the preliminary drawings.
"After the award of contracts, and as the work progresses,
a sum sufficient to increase the payments to one hundred per
cent ( 100%) of the fee, based on payments made to contractors.
All payments shall be based in the first instance on the estimated
cost, and are to he treated as installment payments on the entire
fee based upon the actual cost."
One additional fact is inherent in the questions which you have pre-
sented but is not specifically set out in your request: namely, that although
the contracts for construction of the schools called for a completion date
of July 15, 1952, they were not completed on that elate and are in fact
not yet completed.
ATTORNEY GENERAL
33
Your first question concerns the amount of money that was due the
architect on July Ij, 1952, the completion date. Since it is a .fact that
the working drawings and specifications have been completed by the
architect and approved by your Commission, the architect, upon that
approval, was entitled to 75 per cent of his fee based upon estimated
cost of the improvement. Since it is also a fact that on July 15, 1952, a
substantial amount of the construction had been completed and payments
had been made to the contractor, the architect was also entitled to pay-
ments up to a full s.V;; per cent of the payments actually made to con-
tractors if that amount exceeded the amount which became due upon
the approval of the plans.
It is possible that on the completion date the project might have
been abandoned or suspended, or it might have been ahered to provide
smaller payments than the contracts originally awarded. Because of such
eventualities, it cannot be said that on completion date the architect was
automatically entitled to his full fee based upon the original contract
a wards and change orders.
Your second question asks whether the architect was required to
supervise construction subsequent to the established completion elate with-
out a supplemental contract.
While it is true that the contract requires 111 general terms that the
architect shall supervise the project until it is completed, it is my opinion
that the agreement of the parties concerning the question which you have
raised is embodied in the following language of the contract:
"In the event that superintending the construction of the im-
provement should extend beyond the time fixed by the Commis-
sion for its completion by the contractor, the Architect will receive
such added compensation for supervision as may be agreed upon
by the Commission and the Architect."
It is my opinion that although not set out specifically in the contract,
it is a necessary corollary to the above language that if a supplemental agree-
ment is not entered into, the architect is not required .to continue super-
vision beyond the fixed completion date. I am strengthened in this con-
clusion by a consideration of Section 2331, General Code, which provides
as follows:
"All contracts under the provision of this chapter shall con-
tain provision in regard to the time when the whole or any speci-
34
OPINIONS
fied portion of work contemplated therein shall be completed and
that for each and every clay it shall be delayed beyond the time
so named the contractor shall forfeit and pay to the state a sum
to be fixed in the contract, which shall be deducted from any pay-
ment or payments clue or to become clue the contractor."
This section appears to me to have been intended to protect the state
against possible increased costs which might be incurred because of just
such delays as aTe involved here.
This conclusion also is in agreement with Opinion #3278, Opinions
of the Attorney General for 1931, page 741, in which the question of sup-
_plemental payments was discussed.
In specific answer to qour questions it is my opinion that:
I. Pursuant to the terms of the contract submi-tted _governing the
employment of an architect to plan and supervise the construction of the
New Residential School for the Blind, said architect was entitled upon
completion and approval of the working drawings and specifications, to
75 per cent of his fee computed at sYz per cent of the estimated cost of
said project. After the award of contracts, and as work on said project
progressed, said architect was entitled to roo per cent of his fee based
upon sYz per cent of sums paid to contractors.
2. Pursuant to the terms of the contract submi-tted, which contract
vrovided that said architect should receive such added compensation for
.supervision as might be agreed upon in the event that said project was
not completed by the time fixed for its completion, said architeot is not
required to continue supervision beyond the fixed completion date without
a supplemental contract.
Respect&ully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
35
2299
I. JCSTICE OF THE PEACE-CASE, VIOLATION, STATE
TRAFFIC LAWS-CASH BOND FORFEITED-RECORDS
TRANS:iVIITTED TO COMMON PLEAS COURT-CLERK
SHOULD ENTER ON APPEARANCE DOCKET, COMMON
PLEAS COURT-SECTIONS 6307 ET SEQ., I3433-8, I3435-I3
GC.
2. CLERK OF COURTS SHOULD PAY INTO COUNTY TREAS-
CRY, CREDIT TO GENERAL REVENUE FUND, ANY FOR-
FEITED BONDS TRANSMITTED-JUSTICE OF PEACE-
GAG I937, PAGE !?IS, APPROVED AND FOLLOWED.
3. CASH BOND FORFEITED BY JUSTICE OF PEACE-AC-
CUSED APPREHENDED OR ARRESTED BY STATE HIGH-
\VAY PATROLMAN-BOND TRANSMITTED BY JUSTICE
OF PEACE TO CLERK OF COURTS-CLERK SHOULD PAY
PROCEEDS OF BOND IN EQUAL PARTS TO STATE
TREASURER AND TO COUNTY TREASURER-SECTION
II83-4 GC.
SYLLABUS:
1. \\There a justice of the peace, in a case involving an alleged violation of the
state traffic laws, Section 6307-1, et seq., General Code, declares a cash bond forfeited
due to the failure of the accused to ap,pear, and transmits such cash bond with a trans-
cript of his .proceedings in the case, as required rby Section 13433-8, General Code, to
the clerk of the Common Pleas Court, such clerk should enter the same on the appear-
ance docket of suoh court as provided in Section 13435-13, General Code.
2. Except as otherwise provided by law, the clerk of courts should pay into the
county treasury to the credit of the general revenue fund any forfeited cash bonds
transmitted to him by a justice of the ,peace under the provisions of Section 13433-8,
General Code. Opinion No. 980, Opinions of the Attorney General for 1937, rp. 1715,
approved and followed.
3. Where a cash bond has been forfeited by a justice of the peace in a case in
which the accused has been apprehended or arrested by a state highway patrolman,
and where the justice of the peace has transmitted such forfeited cash bond to the
clerk of courts, as required by Section 13433-8, General Code, the clerk should pay
the proceeds of such bond, as required by Section 1183-4, General Code, in equal p<ut,
to the state treasurer and tci the county treasurer.
OPINIONS
Columbus, Ohio, February 16, I953
Hon. 1\obert E. Cook, Prosecuting Attorney
Portage County, Ravenna, Ohio
Dear Sir:
I have tor consideration request for a clarification of my letter to
your office regarding the disposition of cash bonds forfeited by a justice
of the peace in traffic cases.
In my earlier communication I expressed concurrence in the con-
clusions reached in Opinion No. 1546, Opinions of the Attorney General
for 1937, p. 2553. the syllahus in which is as follows:
"\\There a person charged with a violation of the Motor Ve-
hicle Laws, Sections 126o3 to 12630-3, inclusive, General Code,
posts a cash bond with the Justice of the Peace for appearance
and fails to appear at the time specified in the recognizance, it
is the mandatory duty of the Justice of the Peace, pursuant to the
authority of Section 13433-8, General Code, to declare such recog-
nizance forfeited and transmit a. transcript of his proceedings in
the case, together with the recognizance to the clerk of the proper
court, and the Justice of the Peace has no authority to render a
judgment for costs and deduct the same from the forfeited cash
bond."
You now make inquiry relative to the duty of the clerk of the Com-
mon Pleas Court to whom such a transcript and forfeited cash recog-
nizance has been transmitted by a magistrate, specifically setting out the
follmYing questions:
1 Does the Clerk of Court docket it as a criminal action
or what does he do with the transcript?
"'2. Or does the Clerk of Court just hold the transcript and
pass the money through his Cash Books and turn it
over to the County Treasurer?
"3. In a State Patrol case, does he split the forfeiture of
the :bond, one-half to the Treasurer of Staite of Ohio,
and one-half to the County Treasurer as provided in
G. c. I 183-4 ?"
As to your first question. it would appear that the provisions of Sec-
tion I3435-13, General Code, would be applicable, such section providing
in part as follo\\s :
ATTORNEY GENERAL
"When a transcript or recognizance is received by the clerk
of the court of common pleas, he shall enter the same upon the
appearance docket of the court, with the date of lthe filing of such
transcript or recognizance, the date ' ~ m d amount of the recogni-
zance, the names of the sureties and the costs. Such recognizance
shall be considered thereupon as of record in such court, and pro-
ceeded on by process issuing itherefrom, in a like manner as if it
had been entered into before SIUCh couTt. * * *"
37
As to your second question, the disposition of the money involved
would appear to be subject to the rule stated in Opinion No. 980, Opin-
ions of the Attorney General for 1937, p. 1715, the syllabus in which is
as follows:
''Until otherwise provided for by law, moneys coming into
the hands of .public officers as the result of forfeited recognizances
should be rpaid into the county treasury to the credit of the general
revenue fund."
In cases where the accused is apprehended by state highway patrol-
men, however, there is a special provision .for the distribution of cash
bond forfeiture in Section r 183-4, General Code, which reads in part:
''All fines collected -from, or moneys arising from bonds for-
feited by 'f'Cl"Sons apprehended or arrested by state highway pa-
trolmen shall be paid one-half into the state treasury and one-
half to the treasury of the incorporated city or village where such
case is prosecuted. Provided, however, i:f such prosecution is in a
trial court outside of an incorporated city or village such money
shall be paid one-half into the county treasury. Such money so
paid into the state treasury shall be credited to the 'state highway
maintenance and Tepair fund' and such money so paid into the
county, city or village treasury shall be deposited to the same fund
and expended in the same manner as is the revenue received from
the registmltion of motor vehicles. * * *"
In your inquiry you have evidently proceeded on the assumption that
if any division of the funds in question is to be n_1ade under the provisions
of this section that part to be distributed :to the local subdivision would go
to the county treasury rather than to the city or village treasury; and this
indica:tes that you are familiar with the ruling in Opinion No. 2762, Opin-
ions of the Attorney General for 1934, page 794, the syllabus of which is
as follows:
"r. All fines collected from, or moneys arising from, bonds
OPINIONS
forfeited by persons apprehended or arrested by state highway
patrolmen and tried before a justice of the peace of a township
which extends beyond the territorial limits of a city or incorpo-
rated village should be paid one-half into the state treasury and
into the county treasury, regardless of the fact that the
trial is held at the office of the justice of the peace, whose office
is located within the geographical limits of a city or incorporated
village within the township.
"2. In the event the boundaries of a township and those
of a city or village are coextensive, the fines collected from, or
moneys arising from, bonds forfeited by persons apprehended or
arrested by state highway patrolmen and tried before a justice
of the peace should be paid one-half into the state treasury and
one-half into the county treasury."
I concur in the conclusions thus stated m the I934 opinion and for
that reason, and in view of the plain provisions of Section rr83-4, General
Code, I conclude that in a so-called "state highway patrol case," where a
cash bond has been forfeited by a magistrate and transmitted to the clerk
of courts, i.t is the duty of the clerk to remit the proceeds of the forfeiture
in equal parts to the state treasurer and to the county treasurer.
For these reasons, in specific answer to your inquiry, it is my opin-
ion that:
I. Where a justice of the peace, in a case involving an alleged vio-
lation of the state traffic laws, Section 6307-I, et seq., General Code, de-
clares a cash bond forfeited clue to the failure of the accused to appear,
and transmits such cash bond rwith a of his proceedings in the
case, as required by Section I3433-8, General Code, to the clerk of the
Common Pleas Court, such clerk should enter the same on the appearance
docket of such court as provided in Section I3435-I3, General Code.
2. Except a:s otherwise provided by law, the clerk of courts should
pay into the county treasury to the credit of the general revenue fund any
forfeited cash bonds transmitted to him by a justice of the peace under the
provisions of Section 13433-8, General Code. Opinion No. 98o, Opinions
of the Attorney General for 1937, p. 1715, approved and followed.
3. \i\There a cash bond has ibeen forfeited by a justice of the peace
111 a case in which the accused has been apprehended or arrested by a
state highway patrolman, and where the justice of the peace has trans-
ATTORNEY GENERAL
39
mitted such forfeited cash bond to the clerk of courts, as required by
Section 13433-8, General Code, the clerk should pay the proceeds of such
bond, as required by Section 1183-4, General Code, in equal parts to the
state treasurer and to the county treasurer.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
r. POLICE PROTECTION-lVfATTER OF STATE-WIDE CON-
CERN-POLICE DEPARTMENTS AND MEMBERS SUB-
JECT TO GENERAL CONTROL OF STATE-POLICEMEN
DERIVE POWER OF ARREST FROM STATE-INVESTED
BY LAW WITH PORTION OF SOVEREIGNTY OF STATE-
OFFICERS OF STATE.
2. POLICEMEN, OFFICERS OF STATE, NOT SUCH OFFICERS
"OF THE CORPORATION" WITHIN MiEANIKG OF SEC-
TION 4666 GC AS ARE REQUIRED TO BE ELECTORS
"WITHIN THE CORPORATION"-OPINION 2357, OAG 1928,
PAGE 1742, OVERRULED.
3 NO STATE STATUTE TO REQUIRE POLICEMEN TO BE
RESIDENTS OF MUNICIPALITY-NONE TO SPECIFI-
CALLY AUTHORIZE THEM TO BE NON-RESIDENTS-
EACH MUNICIPALITY FREE TO DETERMINE IF POLICE-
MEN REQUIRED TO BE RESIDENTS OF MUNICIPALITY.
. SYLLABUS:
1. Police protection, being a matter of state-wide concern, police departments
and the members thereof are subject to the general control of the state. Policemen,
deriving their power of arrest from the state, are invested by law with a portion of
the sovereignty of the state, and are officers of the state.
2. Policemen, being officers of the state, are not such officers "of the corporation"
within the meaning of Section 4666, General Code, as are required to be electors
"within the corporation." Opinion No. 2357, Opinions of the Attorney General for
1928, page 1742, overruled.
3: There being no state statute requiring policemen to be residents of the mu-
40
OPINIONS
nicipality or specifically authorizing them to he non-residents, each municipality is
free to determine for itself whether it will require such policemen to he residents of
such municipality.
Columbus, Ohio, February 20, 1953
Bureau of Inspection and Supervision of Public Offices
Columbus, Ohio
Gentlemen:
I have before me your request for my opinion as to certain questions
propounded by the city attorney of Columbus. It appears to me that there
is one fundamental question involved in this inquiry and that the answer
to it will be dispositive of all other questions raised. That question is:
May a municipality make its own determination as to whether to require
policemen to be residents of such municipality, or are such policemen re-
quired by state law, and IJXlrticularly by Section 4666, General Code, to
be residents of such municipality, regardless of ordinance or charter pro-
visions permitting them to rbe non-residents?
It appears that, at the present time, the City of Columbus has an
ordinance requiring that, unless otherwise provided by the city council,
all employes in the unclassified service and in the competitive class of the
classified service shall, at all times during such employment, maintain their
residence within the corporate limits of the city. I am informed that the
city council is now considering the question of whether to make modifi-
cations in such ordinance, or to "otherwise provide," in order to permit,
at least under certain factual situations, police officers to reside beyond
the city limits. In the process of such consideration, however, the question
arose as to whether such permission would be effective in view of Section
4666, General Code, and the interpretation of this Section by one of my
predecessors in Opinion No. 2357, Opinions of the Attorney General for
1928, page 1742.
Before proceeding to a discussion of the legal questions here involved,
it might be well to point out that the recent case of Smith v. Municipal
Civil Service Commission of Columbus, 158 Ohio .St., 401, involving an
attempt by a police captain to prevent the Civil Service Commission from
ordering his dismissal for alleged non-residence within the city in violation
of the Columbus ordinance, throws no light on the question here under
ATTORNEY GENERAL
consideration. In that case, which began as an action for declaratory
judgment in the Common Pleas Court, Smith claimed that in fact he was
a resident of Columbus contrary to the finding of the Commission that he
was a non-resident and prayed that the court determine that in fact he was
a resident and enjoin the Commission from ordering his dismissal for
violation of the terms of such ordinance. The Common Pleas Court sus-
tained a demurrer to the petition, but the Court of Appeals reversed and
remanded the case to the 'Common Pleas Court. The Supreme Court, in
turn, reversed the Court of Appeals 'solely on the basis that ''there an
action in declara:tory judgment depends largely upon the determination
of facts, the trial court, in the exercise of sound discretion, may either en-
tertain or choose not to entertain such action.
l n view of the fact that your request, in effect, emanates from the
City of Columbus and in large part arose out of the litigation involved in
the Smith case, and in view of certain pulblic statements attributed to
some of the parties therein to the effect that my opinion will determine
the question of whether Captain Smith may be compelled to reside in the
City of Columbus or be discharged from the police force for violation of
the ordinance, I wish to make it abundantly clear that such issue is not
involved in this opinion. The issue presented here is whether the Council
of the City of Columbus may, by appropriate legislation, permit police-
men to reside beyond the city limits. Until such time as it chooses to grant
such permission, the legal issue of whether it may grant such permission
can never arise. As pointed out in the letter of the city attorney, however,
other Ohio cities already have acted to permit their policemen to reside
beyond the city limits. Thus, the question presented does involve a matter
of general public interest throughout the 'State.
Reference is made in the letter of the city attorney to Article XV,
Section 4 of the Ohio Constitution. This section provides that no person
shall be elected or appointed to any office in this state unless possessed
of the qualifications of an elector. This section does not provide that such
officer shall be an elector within any specific geographical area of Ohio, and,
for that reason, I conclude that it has no application to the problem pre-
sented.
I might also state that, with the possible exception of Section 4666,
General Code, I know of no statute, including the civil service statutes,
which could possibly be construed as specifically requiring policemen to
OPINIONS
be residents of the municipality. My discussion, therefore, will be limited
to an interpretation of Section 4666, General Code.
Section 4666, General Code, reads as follows :
'Each officer of the corporation, or of any department or
'board thereof, whether elected or appointed as a substitute for a
regular officer, shall be an elector within the corpora:tion, except as
otherwise ex!pressly provided, and before entering upon his official
duties shall take an oath to support the constitution of the United
States and the constitution of Ohio, and an oath that he willtaith-
fully, honestly and impartially discharge the duties of the office.
Such .provisions as to official oaths shall extend to deputies, but
they need not be electors."
In interpreting the language of Section 4666, General Code, it would
appear that four questions present themselves:
I. whether a policeman is an officer;
2. \Vhether, if an officer, he is an officer of the corporation, or
whether, instead, he is an officer of the state, appointed by the municipality
merely in its capacity as an agent for the state;
3. Whether Section 4666, General Code, reqwres all appointed
officers of the corporation to be electors therein, or whevher such require-
ment applies only to those appointed officers of the corporation who are
"appointed as a substitute for a regular officer;" and
4 \.Yhether the language "except as otherwise expressly provided"
would permit a munici>pality, by ordinance or cha:rter, to so otherwise
expressly provide, or whether such may be otherwise expressly provided
only by state statute.
As heretofore noted, the question of whether .Section 4666 has the
effect of requiring a policeman to reside within the limits of a municipality
was the subject of an opinion by one of my predecessor's in Opinion No.
2357, Opinions of the Attorney General for 1928, page I742 The syllabus
of that opinion reads as follows:
"I. A city patrolman or policeman is an officer within the
meaning of Section 4666, General Code, and as such is required to
be an elector of the city in and for which he is apt:ointed.
"2. The appointment of a pef'Son as a city policeman who
is not a resident of .the city for which he is appointed, is illegal
and where such illegality persists by reason of the continued non-
ATTORNEY GENERAL
residence of such officer he may be dismissed from the force with-
out reference to the provisions of Section 486-17a, General Code,
relating to the dismissal of persons in the classified civil service."
43
This opinion, in turn, relied in large part on a case decided by the
Common Pleas Court of Jefferson County, namely, De Romedis v. Vil-
lage of Yorkville, 21 N.P. (N.S.), 340, which held as disclosed by the
second headnote :
''A policeman is a public officer and must therefore be an
elector of the municipality from which he receives his appointment
and derives his authority."
In ooth the Village of Yorkville case and the 1928 opmwn, I find
that the only issue considered was whether or not a policeman was an
officer. ?\o consideration wa-s given to the other questions which I believe
would have to be answered before concluding that Section 4666, General
Code, \Yould require policemen to live within such municipality regardless
of any attempt on the part of the municipality to permit such policemen to
be non-residents. Having concluded that a policeman was an officer, both
the Village of Yorkville case and the 1928 opinion jumped to the im-
mediate conclusion that Section 4666 would require him to reside in the
municipality. For reasons set out hereafter, I believe that this was an
over-simplification of the problem.
I.
}!uch might be said on the question of whether a policeman is an
officer, as contrasted with being merely an employe. vVhile it is well settled
that a public officer, as distinguished from an employe, is one who is in-
vested by la\Y with a [)Ortion of sovereignty, the difficulty of application
arises by Yirtue of a lack of satisfactory definition of "sovereignty."
State, ex rei. Milburn v. Pethtel, I53 Ohio St., I ; State, ex rei. Hogan,
Atty. Gen. v. Hunt, 84 Ohio St., 143.
Cases outside of Ohio are split on the question of whether a police-
man is an officer, 1but the great weight of authority holds that he is. Mc-
Quillin on Municipal Corporations, Third Edition, Section 45.11; 84
A.L.R. 3I0. Such holdings are based on the proposition that a policeman,
as a peace officer, has the duty to preserve the peace and the power to re-
strain the liberty of persons by making arrests. I am in accord with this
44
OPINIONS
YJew and, therefore, must concur in the 1928 opinion to the extent that
it holds that a policeman is an officer.
2.
The requirements of Section 4666, General Code, however, are ap-
plicable only to officer's "of the col"'poration." Is a policeman an officer
"of the corpora:tion," i.e. of the municipality, or is he an officer of the
State? Again, we find that the cases outside of Ohio are split on this
question. The overwhelming weight of such authorities, however. holds
that policemen are state and not municipal officers. McQuillin on }fu-
nicipal Corporations, Third Edition, Section 45.01 ; 37 American Juris-
prudence, 856. True, the municipality may be permitted to determine the
number of policemen, fix their salaries, etc., but it has been held that in
so doing they act only as agents for the state and that despite the limited
control of the municipality over the policemen, they, nevertheless, are
state and not municipal officers.
In Ohio, as contrasted with most other states, municipalities have
home rule powers derived directly from the Constitution. \Vould this fact
compel a different conclusion in Ohio as to the status of policemen? I
believe that whatever doubt might have existed as to the effect of home
rule on this subject has now been laid to rest by the decisions of the Su-
preme Court, beginning in 1941, holding that both police and fire protec-
tion are matters of statewide concern and under the control of state
sovereignty. State, ex rei. Strain v. Houston, 138 Ohio St., 203; City of
Cincinnati v. Gamble, 138 Ohio St., 220; State, ex rei. O'Driscoll v. Cull,
138 Ohio St., 516; State, ex rei. Daly v. City of Toledo, 142 Ohio St.,
123; State, ex rei. Arey v. Sherrill, 142 Ohio St., 574
These cases, in effect, hold that even in matters relating to organiza-
tion, personnel and administration of police departments, municipalities
are bound to follow the directives of the state as contained in the statutes.
In reaching this conclusion, the court in the Houston case recognized the
fact that there was "a distinct conflict of authority in the decided cases
on this specific subject." It chose to align Ohio with the majority of the
states which recognize the supremacy of the state in all mattel'S of police
and fire protection, including general control over police and fire depart-
ments and the members thereof. As heretofore noted, these same states
hold that policemen are state and not municipal officers. It would appear
ATTORNEY GENERAL
45
to follow, thereiore, that policemen in Ohio are state and not municipal
officers and, therefore, are not officers "of the corporation" within the
meaning of Section 4666, General Code.
I believe that this conclusion is given further support by an exami-
nation into the question of the source of the power of the policeman to
exercise, in his own right, a portion of sovereignty. In both the Village
of Yorbille case and the 1928 opinion the conclusion was reached that
a policeman was an officer on the basis that, as a peace officer, he is charged
with the dutv of preserving public and private property and protecting
-,
the people's interests; that he has authority to make arrests on view and
the right to go beyond the munidpality and make arrests throughout the
state. In support of the conclusion thart: a 1policeman was an officer, the
Village of Y orhille case quoted certain language from 36 L.R.A., page
881, to the effect thC!!t a policeman, because ot such power of arrest, was
an officer. This same quotation, however, held that he was a state and
not a 1mmicipal officer. This case also quoted language from Dillon on
1\'Iunicipal Corporations, Section 390 to the same effect. The 1928 opinion
quoted from four out-of-state cases in support of the proposition that a
policeman was an officer. Blynn v. City of Pontiac, 185 Mich., 35; Reising
v. City of Portland, 57 Ore., 295; City of Chicago v. Bullis, 138 Ill. App.,
297 and Farrell v. The City of Bridgeport, 45 :Conn., 191. It should be noted
that each of such cases also held, in effect, that a policeman was a state
officer.
It is clear that in Ohio the special power of arrest is delegated to a
policeman by virtue of state statute. He is designated as a "peace officer"
by Section 13432-1, General Code, and, as such peace officer, he is delegated
certain powers of arrest not accorded to others. In the capacity of a peace
officer, it would appear that a policeman is invested by state law with a
portion of the sovereignty of the state. Irf, as would appear, he is an officer
because of his right to thus exercise a portion of the sovereignty of the
state, it would seem to necessarily follow rt:hat 1he would be a state officer.
Concluding as I do that a policeman is not an officer of the munici-
pality and, thus, not an officer "of the corporation," I must disagree with
the ultimate conclusion of the Village of Yorkville case and the 1928
Opinion that Section 4666, General Code, requires a policeman to be a
resident of a municipality.
Although it would appear that a policeman is a state officer and that
OPINIONS
no state statute requires him to be a resident of the municipality, it is
equally true that no state statute specifically authorizes him to be a non-
resident of a municipality. This being true, it is my opinion that a munici-
pality may determine for itself whether or not to permit policemen to re-
side beyond the city limits. I believe that this is in accord with the view
expressed by Bell, J. in State, ex rei. Arey v. Sherri11, 142 Ohio St., 574,
at page j8r, as fo11ows:
"That the police department of a city is a ma.tter of state-wide
concern does not prevent the city from adopting any regulation
in reference thereto so long as such regulation does not conflict
with general laws."
3
Although my conclusion that a policeman is not an officer "of the
corporation" within the meaning of Section 4666, General Code, makes
it unnecessary for me to discuss the other questions involved in your
letter, I believe that some brief comment should he made relative thereto.
Cpon careful examination of Section 4666, it would appear some-
what doubtful as to whether this section has application to all appointed
officers of the corporation, or whether it applies only to such officers as
are "appointed as a substitute for a regular officer."
A study of the history of this section affords some evidence that the
Legislature intended to eliminate appointive officers from its operation.
In its original enactment, 66 Ohio Laws, I49, the sulbstance of what
i:; now Section 4666, General Code, was a part of an Act "to provide for
the organization and government of municipal corporations," passed May
;, r869. Section 79 of that act read as follows:
""All officers shall be electors of the corporation in which they
are elected or appointed; and before entering upon the duties of
their office they sha11 take an oath or affirmation to support the
Constitution of the United States and the State of Ohio, and also
an oath or affirmation of office." (Emphasis added.)
It is clear that in that form the law applied to all officers, whether
elected or appointed. In the codification of the Revised Statutes it ap-
peared as Section 1737. It there read in part as follows:
"Each officer of the corporation, or of any department or
board thereof, whether elected or appointed, including a person
ATTORNEY GENERAL
appointed as a substitute for a regular officer, shall be an elector
\vithin the corporation, except as herein expressly provided,
* * * " (Emphasis added.)
47
The above section was last amended m 1896, 92 Ohio Laws, 68, to
read, in part, as follows:
"Each officer of the corporation, or any department or board
thereof, whether elected or appointed as a substitute for a regular
officer, shall be an elector within the corporation, except as herein
expressly provided, * * * ."
This amendment omitted the word "of," in the first sentence, which
does not appear to have made any change in the meaning. But the sub-
stanti,e change which was made was in cutting out the words "including
a person appointed." This omission would appear to possibly manifest
an intention on the part of the Legislature to eliminate appointive mu-
nicipal officers generally from the requirement of Section 4666, General
Code.
] t might be noted, however, that other sections do require specific
appointive officers to be electors of the corporation, e.g. director of public
service. Section 4323, General Code; director of public safety, Section
4367, General Code.
The effect, if any, to lbe given to the change in the language of the
statute occasioned by the amendment of r896 presents a closely debatable
legal question which, however, is not necessary for me to decide in view
of my conclusion that a policeman is not an officer "o>f the co11poration."
4
If a policeman were truly a m1micipal officer, the question necessarily
would arise as to the power of such municipality, under the home rule
provisions of the Constitution, to exempt suoh policeman from the re-
quirements of Section 4666, General Code, even in the absence of the
language ''except as otherwise expressly provided" which is contained in
that section. Moreover, since municipalities now derive .their basic powers
from the Constitution and not from the statutes, as was the case at the
time of the last amendment to Section 4666, it could well be argued that
a municipal charter or ordinance eXJpressly authorizing policemen to re-
side outside of the city would fall within nhe meaning of the words of the
OPINIONS
statute. Having concluded, however, that policmen are not officers ''of the
corporation" within the meaning of Section 4666, General Code, it is not
necessary to pursue this discussion further.
For the reasons heretofore stated, it is my opinion that:
I. Police protection, being a matter of state-wide concern. police
departments and the members thereof are subject to the general control of
the state. Policemen, deriving their power of arrest from the state, are in-
vested by law with a portion of the sovereignty of the state, and are of-
ficers of the state.
2. Policemen, being officers of the state, are not such officers "of
the corporations" within the meaning o'f Section 4666, General Code, as
are required to be electors "within the corporation." Opinion ~ o. 2357,
Opinions of the Attorney General for I928, page I742, overruled.
3. There being no state statute requiring policemen to be residents
of the municipality or specifically authorizing them to he non-residents,
each municipality is free to determine for itself whether it will require
such policemen to be residents of such municipality.
Respect ull y,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
49
VENDII\G STAND E\ PUBLIC BUILDING-FOR A VISUALLY
K-\:\ DICAPPED PERSON-DIVISION OF SOCIAL ADMINI-
STR:-\ TIO:\-STATE WELFARE DEPARTMENT-RELATION-
Sf-liP OF ::--L-\STER AND SERVANT DOES NOT ARISE WHEN
PERSO:\'" CONDUCTS BUSINESS AND PROFITS WHICH BE-
LO:\G EKTIRELY TO HIM-PERSON NOT EMPLOYE OF
ST.-\TE-DinSION ESTABLISHES CERTAIN REGULATIONS
UNDER WHICH BUSINESS OPERATED-RIGHT RESERVED
TO C\:\CEL PERMIT IN CASE REGULATIONS ARE NOT :.1ET.
SYLLABUS:
l:nder the existing .plan whereby the Division of Social Administration, of the
State \\'eliare Department provides and equips a vending stand: in a public building
for a Yisually handicapped person, in order that such person may conduct a :business,
the profits oi which belong entirely to him, the -relationship of master and servant does
not arise. and such person is not an employe of the state, even though the Division
establishes certain regulations under which such husiness must he operated, and reserves
the right to cancel such permit in case such regulations are not complied with.
Columbus, Ohio, March ro, 1953
Hon. J. H. Lamneck, Director, Department of Public \iVelfare
Columbus, Ohio
Dear Sir:
I haYe before me your request for my opinion, reading as follows:
''The Division of Social Administration of the State Welfare
Department administers the services to the blind which were
originally provided by the Ohio ,Commission ;for the Blind. It is
the agency in Ohio recognized by the Federal Security Agency
for the administration of Vocational Rehabilitation of the Blind
and it also acts as licensing agent for vending stands operated in
f ecleral buildings.
;'For many years the state has oper<Vted the vending stands in
public buildings and to some extent in private industry. Attached
is some material descriptive of the program. The essential features
are these:
"I. Authority to operate a vending stand is given to the Di-
vision of Social Administration.
50 OPINIONS
"2. The state furnishes the equipment and retains title to it.
"3. The state buys and maintains a stock of merchandise
although the operator may have an inventory greater
than the state's equity.
"4. The income of the stand goes to the operator except for
a service charge collected by the state.
"The individuals who operate these stands have neYer been
considered employees of the Division of Social Administration.
However, the Bureau of Internal Revenue of the United States
Government has held that the operators are employees of the state
in the light of the tax laws and are therefore not permitted to con-
tribute to the Social Security system as independent businessmen.
"vVe recognize that the ruling of the Attorney General of
Ohio would not he binding on the Federal Government. How-
ever, since it is being suggested that the state should somehow
work out a plan for covering the retirement of these operators, \ve
would appreciate your opinion as to whether they can be con-
sidered in any sense employees of the state."
I note that vending stands are established by vhe Division of Social
Administration, to be operated by the blind or persons visually handicapped.
The General Assembly has recognized the propriety of permitting these
stands to be placed in public buildings, and has authorized the vanous
public authorities to permit the use of space for that ptwpose. Section
I 369-I, General Code, provides that such permission may be given when-
ever in the judgment of vhe head of any department of the State or a county
or municipality i.t shall be deemed desirable and proper to permit the same.
\ Vhen granted, it is provided that no license fee, rental or other charge
shall be asked or received for such permit. This statute is indicative of the
general policy of the State in giving assistance to persons \\ho are handi-
capped by total or partial blindness.
From the information accompanying your letter, I note that \\"hen any
such person is granted by the state agency permission to operate such
stand, his license to do so is governed by certain regulations adopted by
the state agency, whereby there is reserved the right to supenise the per-
sonal conduct of the operator and the manner in which the stand is kept
and operated. The State reserves the right to discontinue his license, in
the event his stand is not operated in accordance with the regulations pre-
scribed. These regulations provide among other things, that the operator
shall keep himself and the premises neat in appearance, that he will conduct
ATTORNEY GENERAL
sr
his stand in a businesslike manner, that he will make his purchases on a
cash basis, and that he will make such reports and maintain such records
as the State may require.
It is further provided that the state agency is to furnish all of the
equipment for the stand, and the initial stock, and that such stock is to be
replenished from time to time, by the operator. It is further provided that
the operator is to pay the State a service charge of 3 '/a of the gross sales.
The operator draws a set amount each week for his maintenance, and
at the end of a reporting period withdraws and retains the remaining net
profits derived from the operation.
Under no condition does the state pay the operator for his services,
and under no condition does the state receive any benefit or profit from
the enterprise. The regulations under which the enterprise is conducted
specifically .provide that operators are to be considered independent business
people, and not employes of the state. No provision is made for state retire-
ment benefits to the operators, and under the law relating to the Public
Employes Retirement System they could not ibe regarded as employes of
the state. Neither is there any procedure under civil service Ia \YS in the
selection of the operators.
The entire program is manifesdy philanthropic. Its sole purpose is to
assist visually handicapped persons in becoming self-sustaining. The state
acts as a financial sponsor purely for the benevolent purpose above indicated.
Having in mind these purposes and this procedure, I am unable to
understand :how it could possibly be claimed that these operators are public
employes or how the state could be regarded as an employer. As stated in
Volume 56, Corpus Juris Secundum, page 27:
"The word 'employee' imports some sort of continuous seruice
rendered for wages or salary and subject to the direction of the
employer as to how the work shall be clone. Jn its broad significa-
tion the term is used to designate one who is employed; one who
works for an employer or master; a clerk or workman in the serv-
ice of an e1nployer; one who works for wages or a salary; one \d10
gives his whole time and services to another for a financial con-
sideration; a person hired to work for wages as the employer may
direct.
" 'Employee' has also been defined as a person in constant
and continuous service, one who performs services for another
for a financial consideration exclusive of casual employment, one
OPINIONS
whose time and skill are occupied in the business of his employer,
and not attending to his own business or pleasure separate and
apart from such employment; anyone who renders labor or
senices to another." (Emphasis added.)
It is very well settled that the relationship of master and servant or of
employer and employe, which are synonymous in the law, :has its basis on
service rendered by the servant or employe to the master or employer. In
56 Corpus Juris Secundum, page 40, that proposition is laid clown and a
number of cases are cited in supiport of it. Among others, I note the case
of \Valling v. Portland Terminal Company, 330 U. S., 148, where the court
was considering the status of men who were in training for positions of
yard brakemen of the railroad and who work during such training under
the direction of regular employees. It was held that such a trainee is not
an employe within the meaning of Section 2 (e) of the Fair Labor Stand-
arcls Act. The court, in the course of the opinion, said :
''The applicant's work does not expedite the cmnpany's busi-
ness, but may and sometimes does, actually impede and retard it.
* * * Accepting the unchallenged findings here that the railroads
receive no 'immediate advantage' from any work done by the
trainees, we hold that vhey are not employes within the Act's
meaning.''
To the same effect, Walling v. Railway, 330 U. S., rs8.
In the case of Reed v. Rideout's Ambulance, 212 Ala., 428, it was
held:
"Essentials of relationship of employer and employe are
voluntary rendition of service, its acceptance by employer and
employer's right to direct and control employee. Payment of com-
pensation being merely incidental thereto." (Emphasis added.)
In Patterson v. Barnes, 317 Mass., 731:
"That alleged agent or servant does so111ething for or in be-
half of alleged principal or master, is a fundamental element in
every master and servant or agency relationship."
(Emphasis added.)
In Maltz v. Jackaway, 336 1\Io., rooo, the court held:
"Relationship of master and servant is bottomed upon serv-
ices rendered by servant to master, and is characterized by riglht of
control vested in master." (Emphasis added.)
ATTORNEY GENERAL
53
In Sabl v. Laenclenbank Wien Aktiengesellschaft, 30 :N". '{. S., 6o8,
it was held:
"The essence of an 'employment relation' is the rendition of
service by employe for employer."
To the same effect, Null v. State Compensation Commissioner,
(W. Va.) 35 S. E. 2nd, 359; Pennsylvania Casualty Company v. Elkins
(D.C. Ky.); 70 F. Supp., 155; Western Indemnity Co. v. Pillsbury, I/2
Cal., 807; Rutherford v. Tobin, 336 Mo., II/I.
Cases without number could be cited sustaining the same proposition.
Our own Supreme Court, in its definition of an "employe", in the case of
Indemnity Company v. Plymouth, 146 Ohio St., 96, emphasizes the same
element, to wit, the necessity of service. The first branch of the syllabus
of that c<l'se reads as follows:
''An employee is a person who works for another for salary
or wages, and the term is usually applied only to clerks. work-
men and la:borers, and rarely to the higher officers of a corpora-
tion or government or to domestic servants."
J conclude, therefore, that unless the element of serv1ce rendered by
one person to another pursuant to contract, can be found, the relationship
of employer and employe does not exist. It is true that the right of control
usually enters into a contract of employment, and it is true that the con-
tract which we are considering here, reserves to .the state agency certain
rights of control, .but it does not follow that the contract, for that reason
becomes a contract of employment. Control is not peculiar to contracts of
employment.
If we may assume that some bank or financial institution with a view
to profit to itseH, should undertake to furnish financial backing for a person
desiring to embark on a business enterprise of his own, particularly one
with no capital, certainly sueil1 institution could establish certain regulations
under which such financial aiel is granted, and reserve to itself any measure
of control that the parties might agree upon so as to see that the business
is so conducted as to make it profitable to the operator and safe to the
institution. Under such an arrangement certainly no one \Youlcl claim that
the business man receiving such financial backing became the employe of
the bank.
Likewise, it 1s quite possible that a charitable ,fund might be set up
54
OPINIONS
by a philanthropist, to be used in assisting persons to get a start in an inde-
pendent business and that the identical arrangements might be made with
the applicant which are present in the plans set up by the St<JJte as set forth
in your communication. It could not conceivably be contended that the
business man who was thus assistecl by this philanthropic institution became
the employe of the institution.
I note in the correspondence attached to your letter, a suggestion that
these persons who are being assisted by the State, might be considered as
members of the Public Employes Retirement System. The laws of Ohio
relative to that System make it very clear that such could not be clone, con-
sistent wivh the law. Section 486-32, General Code, defines a public em-
ploye as follows:
"'Public employe' shall mean any person holding an office,
not elective, under the state of Ohio, any county, municipality,
park district, conservancy district, sanitary district, health dis-
trict, township, metropolitan housing authority, state retirement
board or public library, or employed and paid in whole or in part
by the state of Ohio or any of the above named authorities in any
capacity whatsoever." (Emphasis added.)
It is quite manifest that the persons wrho are being assisted by this
program, do not hold any office under the State or any of its named sub-
divisions, and certainly are not "employed and paid in whole or in part by
the State of Ohio."
If it were attempted to class these licensees as independent contractors,
and therefore in a remote degree employes of .the state, that attempt would
fail, since even such relationship is based on the idea of service to an
employer, an element which is totally lacking in the plan under considera-
tion. The person \d1o is by that plan set up in business by the state, is not
a servant of the state, and is not an independent contractor rendering a
service to the state. He is strictly an independent business man, assisted
and financed by the state, for the sole purpose of enaJbling him tu be self-
supporting in spite of his handicap.
I may summarize what has been said by asserting:
r. The plan in question is ba:secl solely upon the charitable purpose
of the state to assist a handicapped person in establishing a business out of
which ihe can make a living.
ATTORNEY GENERAL
55
2. No service or benefit to the state whatsover Is contemplated or
possible.
3 No wages or other compensation is paid to the operator.
4 The rights reserved to the state to control the operator, and to
terminate the contract, are merely precautions designed to encourage the
operator to use his best efforts for his own betterment and profit, and to
protect the state's investment.
Accordingly, it is my opinion, and you are advised that under the
existing plan whereby the Division of Social Administration of the State
Welfare Department provides and equips a vending stand in a public build-
ing for a visually handicapped person, in order that such person may con-
duct a business, the profits of which belong entirely to him, the relationship
of master and servant does not arise, and such person is not an employe
of the state, even though the Division establishes certain regulations under
which suoh ~ b u s i n e s s must be operated, and reserves the right to cancel such
permit in case such regulations are not complied with.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPINIONS
2364
r. SEWER DISTRICT CREATED BY COUNTY COMMISSION-
ERS-MAIN SEWER LINE-MAY BE LAWFULLY CON-
STRUCTED-SUFFICIENT IN SIZE TO RECEIVE SEWAGE
EXPECTED TO ORIGINATE IN ADJOINING AREA-
SPARSELY POPULATED-INCLUSION IN DISTRICT NOT
PRESENTLY WARRANTED-SECTION 66oz-r ET SEQ., GC.
2. OWNERS OF IN AREA ADJACENT TO SEWER
DISTRlCT-GONTRACT FOR SEWER CONNECTIONS-AS-
SESSMENTS-COST OF MAIN SEWER LINE-TAX LEVY-
SECTION 66o2-8b GC.
SYLLABUS:
1. vVhere the county commissioners have create{! a sewer district under authority
of Section 6602-1 et seq., General Code, the commissioners may lawfully arrange for
the construction of a main sewer line sufficient in size to receive the sewage which
is expected to originate in an adjoining area, even though such adjoining area is so
sparsely populated that its inclusion in such district is not presently warranted.
2. Under the provisions of Section 6602-8h, General 'Code, the owners of premises
in an area adjacent to a sewer district may, by contract, be ,permitted to connect the
sewage system within such adjacent area to the system already existing within such
.district; and the payment for such service by such individual may, under the provisions
of this section, be made by special assessment on the lots or .parcels of land involve{!,
but such assessments may not be less than the original assessment for similar property
within the district. Such contract payments, however, even though made by way of
special assessments, do not constitute such a reapportionment of the cost of the main
sewer line in such original district as would permit the diminution of the assessments
originally laid on the owners of property within such original district, but any funds
raise{! under such arrangements may properly be appropriated for the use and benefit
of the original sewer district and: specifically may be used to pay the cost of mainte-
nance and operation of the original improvement with the result that the necessity for
the levy of taxes on the taxable pro.perty in such district for such purposes, under the
provisions of Section 6602-8b, General Code, will be diminished or avoided altogether.
Columbus, Ohio, March II, I953
Hon. Calvin \V. Hutchins, Prosecuting Attorney
Ashtabula County, Jefferson, Ohio
Dear Sir:
Your request for my opinion reads as follows:
''The County Commissioners of Ashtabula County are con-
templating the creation of a sewer district, under authority of Se(:-
ATTORXEY GENERAL
tions 6602-r to 66oz-g, inclusive, General Code. This district will
include a densely poj;ulated area located on the lake front in Say-
brook Township. There is a sparsely settled area adjacent to that,
\\1hich will be included in the district. This adjoining area may
\Yithin the next few years require a sewer system.
"Assuming rhat the district, presently to be created, includes
only that portion of the township which is densely populated, may
the Commissioners arrange for a main sewer line sufficient in size
to receive that sewage which would originate in the adjoining
area, if it was later erected into the sewer clistriot? If this can be
clone. would it be possible, under the provisions of G.C. 66oz-8h,
to reapportion a part of the cost of t:he main sewer line, installed
in the original district, and assess a portion of such cost upon the
adjoining area, when it becomes a part of the other sewer district?"
57
By reference to Section 66oz-8h, General Code, I find the following
provision:
"At any time after the formation of any sewer district, the
board of county commissioners, when deemed expedient, may, on
application by a corporation, individual or pU'blic institution out-
side of any sewer district, contract with such corporation, in-
dividual or public institution for depositing sewage from premises
outside such district in the sewers constructed or to be constructed
to serve such district and for the treatment or disposal thereof, on
such terms and conditions as shall be by such board of county
commissioners deemed equitable, but the amount to be paid shall
in no case be less than the original assessment for similar prop-
erty within the district, and suoh board of county commissioners in
any such case, shall appropriate any moneys receh,ed for such
service to and for the use and benefit of such sewer district; pro-
vided, however, that whenever the board of county commissioners
deem it necessary to contract with a corporation, individual or
public institution for depositing sewage from premises outside
such sewer district in the sewers constructed or to be constructed
to serve such district. they shall so determine by resolution, and
may collect said amount in cash, or the same may be assessed
against said lots or parcels of land, and the method and manner
of making said assessment, together with the notice thereof, shall
be the same as provided herein for the original asseS'sment. * * *"
(Emphasis added.)
The fact that the General Assembly has seen fit in the above quoted
language to authorize the use of a sewage system by owners of land lying
outside of the sewer district by which such system was originally con-
structed, clearly indicates that it was contemplated that such a sewer system
might lawfully lbe constructed of such size and capacity as to make possible
OPINIONS
its use for the disposal of sewage from 'sources ot:her than those within the
district. In other words, in constructing a sewer system for a particular
district does not appear to be necessary to restrict such a system to such
size as will accommodate merely the needs of the district concerned. For
this reason I am impelled to conclude that the commis'Sioners in the situa-
tion which you have described would be authorized to arrange for a main
sewer line stifficient in size to receive that sewage which is expected to
originate at some future elate in the sparsely populated area adjacent to the
district which is proposed to be erected.
Your second question relates to the possibility of proceedings under
Section 66oz-8h, supra, "to reapportion" a part o,f the cost of the main
sewer line to be constructed by the district in question, and to "assess a
portion of such cost upon the adjoining area when it becomes a part of the
district."
From the language already quoted from Section 66oz-8h, supra, you
will observe that as to the district which the commissioners presently pro-
pose to erect, the commissioners may, tby contract, arrange with individuals
residing outside such district for the depositing of sewage from their
premises in the sewers presently to he constructed within such district. It
will further be observed that in such case the contract may provide for an
assessment on the property of such owners in an amount not less than the
original assessment for similar property within the district. The disposition
of the funds arising from such "contract assessments" is also provided for
by this statute, the requirement being that !funds so accruing shall be appro-
priated by the county commissioners "to and for the use and !benefit of such
se\\"er district."
It is important to observe at this point that the funds thus commg
into the control of the commissioners are to be appropriated as other public
moneys, and that they accrue to the use and benefit of the district rather
than to nhe use and benefit of any of the property owners in the original
district upon whom the original assessments were imposed.
This circumstance leads to the inference that such funds so accruing
to the district are to be utilized for the payment of the cost and mainte-
nance of the operation of the district system rather than being applied so
as to reduce the amount of any assessments on the owners of the property
within the district which remain unpaid.
ATTORNEY GENERAL
59
The application of such funds to pay the cost of maintenance and
operation would, of course, amount to an indirect benefit to the owners
of property within the original district, since such use would either make
unnecessary or tend to diminish the need for a levy of taxes upon the tax-
able property within the district, as provided >by Section 66oz-8b, General
Code. The pertinent statutory provision in .this section is as follows :
"* * *The board of county commissioners may, from time to
time and at such intervals as tJhey may deem expedient, assess the
lots and parcels of land specified in said notice of assessment and
levy ta:res upon the taxable property of the district so improved, to
pay the cost of the maintenance and operation of any such im-
provement or improvements, including disposal of sewage, after
completion thereof, and no notice shall .be necessary o.f such
maintenance, repair or operation assessment unless the amount
thereof shall exceed ten per cent. of the original cost of the con-
struction. * * *" (Emphasis added.)
It will be noted, of course, in Section 66oz-8h, supra, pro\ision is made
for the payment by individuals owning land outside the original sewer dis-
trict for services provided in the matter of connecting to the original sewer
district by having assessments laid against the premises involYed. This
method of collection does not, in my opinion, affect in any way the con-
sideration for such payments nor the limitations on the use of the funds
thus raised, it being my conclusion that such consideration is the privilege
of connecting the new system to that constructed by the original district,
and the use of such funds being limited to t!he payment of the cost of
maintenance and operation of the original system. This, of course, does not
in any direct sense amount to a "reapportionment" of a part of the cost of
the main sewer line \vhich has been constructed in the original district, even
though the owners of premises within such district will indirectly benefit
from such arrangement.
Accordingly, and in specific answer to your inquiry, it is my opnuon
that:
1. \Vhere the county commtsswners have created a sewer district
under authority of Section 66o2-r et seq., General Code, the commissioners
may lawfully arrange for the construction of a main sewer line sufficient in
size .to receive the sewage which is expected to originate in an adjoining
area, even though such adjoining area is so sparsely populated that its m-
clusion in such district is not presently warranted.
6o OPINIONS
2. Under the provisions of Section 66o2-8h, -General Code, the own-
ers of premises in an area adjacent to a sewer district may, by contract,
be permitted to connect the sewage system within such adjacent area to
the system already existing within such district; and the payment for
such service by such individuals may, under the provisions of this section,
be made by special assessment on the lots or parcels of land involved,
but such assessments may not be less than the original assessment for
similar property within the district. Such contract payments, however,
even ,though made by way of special assessments, do not constitute such a
reapportionment of the cost of the main 'Sewer line in such original sewer
district as would permit the diminution of the assessments originally laid
on the owners of property within such original districts, but any funds
raised under such arrangements may properly be appropriated for the use
and benefit of the original sewer district and specifically may be used to pay
the cost of maintenance and operation of the original improvement with
the result that the necessity for the levy of taxes on the tangible property
in such district for such purposes, under the provisions of .Section 66oz-8b,
General Code, will be diminished or avoided altogether.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL 61
2366
I. CORPORATION NOT FOR PROFIT-IF MENTAL HYGIENE
CLINIC ESTABLISHED, STATE DIVISION OF l'dENTAL
HYGIENE WITHOUT AUTHORITY TO CONTRIBUTE
MONEY TO ASSIST IN SUPPORT OF CLINIC-SECTION
I890-9 GC.
2. STATE DIVISION OF MENTAL HYGTIENE-WITHOUT AU-
THORITY TO ASSIGN EMPLOYES TO DUTIES TO SERVE
IN CLINIC NOT ESTABLI,SHED AND OPERATED IN DIVI-
SION- STATUS \VHERE LOCAL FACILITIES INADE-
QUATE-CORPORATION NOT FOR PROFIT-IF JOINT
OPERATION, SEPARATE ENTITY OF EACH CLINIC MUST
BE MAINTAINED.
SYLLABUS:
1. If a corporation not for profit establishes a local mental hygiene clinic to serve
a specified territory, the Division of Mental Hygiene would have no authority under
the provisions of Section 1890-9, General Code, or any other -statute, to contribute
money to such corporation to assist in the support of such clinic.
2. The Division of Mental Hygiene is without authority to assign its employes to
duties which involve the rendition of their services to a clinic other than one estab-
lished and operated by the Division; but the Division does have authority, under the
provisions of Section 1890-9, General Code, to "establish resident * * * clinics * * *
where local clinical facilities are * * * inadequate," and any such resident clinics may
be established in such close association with a clinic established by a corporation not
for profit, and operated in such close cooperation with it that the two clinics will, for
many practical .purposes, be operated as an integrated project. In any such case, how-
ever, it will be necessary to preserve the separate entity of each clinic in matters
involving control of operations and financial support.
Columbus, Ohio, March 13, 1953
Hon. J. H. Lamneck, Director, Department of Public vVelfare
Columbus, Ohio
Dear Sir:
I have before me your request for my opinion reading as follows:
"Under the provisions of Section 1890-9 of the General Code,
the Division of Mental Hygiene in this Department is aul'horized
to 'promote and develop a state-wide comprehensive system of
OPINIONS
mental hygiene and psychiatric clinics, establish resident and
traveling clinics to serve communities where local clinical facili-
ties are lacking or inadequate.'
"Section 1815-2 of the General Code provides in part, 'Col-
lections in excess of $5.50 tper week per patient shall be placed in
a rotary fund to the credit of the Department of Public \Velfare,
Division of Mental Hygiene, to be used for research, education,
and prevention purposes, under such rules and regulations as the
Director of Welfare and the Commissioner of Mental Hygiene
prescribe'.
"The primary reason for the establishment of mental hygiene
clinics is to prevent mental illness.
"In connection with these two sections of the General Code,
I desire your opinion on the following:
"First, if a corporation not for 'profit establishes a local mental
hygiene clinic to serve a specific territory, would it be lawful
for the Division of Mental Hygiene under a contract with such
corporation, to money to such a corporation to assist in
supporting such local mental hygiene clinic.
"Second, would it be lawful for the Division of Mental
Hygiene to pay specific items of expense such as salaries for speci-
fied individuals who would be put on vhe Division's payroll to
assist in operating a local mental hygiene clinic operated lby a cor-
poration not for profit.
"Third, if the Division of Mental Hygiene is authorized to
expend money to assist in operating local mental hygiene clinics
as outlined in questions one and two above, would it be lawful
for such a corporation not for profit to charge a fee for its serv-
ices to those who are able Ito pay, to be used to assist the corpora-
tion in paying expenses of operating the clinic.
"In connection with these questions, I desire to point out that
a physician admitted to practice medicine in the State of Ohio,
would be in charge of such clinic."
I note t!he provisions of Section I89Q-9, General Code, to which you
direct my attention. That section reads as
''There shall be a bureau of prevention and education under
the supervision of the commissioner of mental hygiene. The bu-
reau shall:
"Make studies and investigations concerning causes of mental
diseases, mental deficiency, epilepsy, and other forms of mental
deviation, practicable measures of prevention, and the effective-
ness of different types of care and methods of treatment, and shall
ATTORNEY GENERAL
encourage, guide and coordinate such research by the staffs of the
state institutions for mental patients;
"Promote and develop a statewide comprehensive system of
mental hygiene and psychiatric clinics, establish resident and
traveling clinics to serve communities where local clinical facili-
ties are lacking or inadequate;
''In cooperation with other departments and agencies, dis-
seminate information as to mental hygiene and .psychiatric fa-
cilities and services, including institutions and clinics provided
for the counsel, care and treatment of those in need thereof;
"Perform such other duties as may be assigned to it by the
commissioner of mental hygiene."
This section is part of an Act which became effective October II,
1945, relating to the care and treatment of the feeble-minded and insane.
T;his, and related sections were originally enacted in 1938, I r 7 Ohio Laws,
550. As originally enacted, the a'bove quoted section merely provided for
the organization within the Division of Mental Hygiene, of a Bureau with
authority to make scienti,fic and medical investigation as to the causes and
prevention of mental illness, and to collect and disseminate such informa-
tion as was considered proper.
It will be noted that in its present form the statute goes much r:further.
I call particular attention to vhe third paragraph, where it is provided that
said Bureau shall:
''Promote and develop a statewide comprehensive system of
mental hygiene and psychiatric clinics, establish resident and
tmveling clinics 'to serve communities where local clinical facilities
are lacking or inadequate. (Emphasis added.)
Here it will be noted that the Bureau is charged not only wiuh es-
tablishing resident and traveling clinics to serve communities, but also
with the duty of promoting and developing a statewide comprehensive
system of mental hygiene and psychiatric clinics. It appears to me that
the General Assem:bly had in mind the encouragement of private clinics
and their cooperation with the public i n ~ t i t u t i o n s whiah the Bureau is to
est<rblish. This idea is emphasized by the provisions of Section r89o-2o,
General Code, a part of the same Act, which provides in part :
"The division shall have tihe right to inspect, license and
supervise all institutions for the mentally ill, maintained in w:hole
or in part by public funds or by any political subdivision of the
OPINIONS
state of Ohio. The division shall have the right to inspect, license
and supervise all private institutions that may or do receive men-
tally ill persons."
It will be observed that this section contemplates that some of these
institutions will be maintained partly by private and partly by public
funds. It is plain tha,t a public institution may receive contributions from
private sources. But it does not necessarily follow rhat the public author-
ities are authorized to grant a direct subsidy to a private organization.
T:he idea of cooperation between public agencies and private organizations
in matters involving public philanthropy is not peculiar to the situation
with which we are dealing. In the statutes relating to child welfare, par-
ticularly Sections 3070- I et seq., General Code, we find e ~ p r e s s provi-
sions authorizing cooperation with private individuals and organizations
whose purposes are similar to those of the child welfare board. In Section
3070-17, General Code, there is authority given to the child welfare board
to enter into agreements with the parents, guardian, or other person hav-
ing the legal custody of a child, respecting its "custody and care." Such
board is also authorized "To cooperate with, make its services available
to and act as the agent of persons, courts and the state department of
public welfare in matters relating to the welfare of children."
In the matter of hospitalization, Section 3138-1, General Code, autho-
rizes the county commissioners to "enter an agreement with one or more
corporations or associations organized :for charitable puPposes * * * for
the purpose of maintaining and operating a hospital * * * .for the care of
the indigent sick and disabled of the county, upon such terms and con-
ditions as may be agreed upon." Futhermore, the commissioners are given
authority by this same section, to hire the necessary employes to assist them
in carrying out the responsibilities devolving upon them by reason of such
agreement. Similar provisions are found in Section 3I39-I8 et seq. rela-
tive to tuberculosis hospitals. All of the 'provisions of law above cited con-
template close relation and coopera:tion .between public and private philan-
thropic agencies. But in none of them has the legislature seen fit to auth-
orize direct payment of public funds for the esta:blishment or operation of
these private organizations.
Section 4022, General Code, affords an instance where the General
Assembly does appear to have granted express authority to municipalities
ATTORNEY GENERAL
to contribute directly to a privately owned charitable institution. That sec-
tion provides :
"Such council may agree with a corporation organized for
charitable purposes and not for profit, for the erection and man-
age111ent of a hospital suitably loca,ted for the treatment of the sick
and disa!bled of such municipality, or for an addition to such hos-
pital, and for a per111anent interest therein to such extent and upon
suoh terms and conditions as may be agreed upon bet\veen them,
and the council shall provide for the payment of the amount
agreed upon for such interest either in one payment or in annual
installments as may be agreed upon. Provided, that such agree-
ment shall not become operative until approved by a vote of the
electors of such municipality as provided for in the next seotion."
(Emphasis added.)
There is certainly no language in Section 1890-9, General .Code, or
m the related sections which gives express authority to the Bureau of
Mental Hygiene to contribute money for the organization or maintenance
of private clinics. If we are to find such authority it must arise by impli-
cation. VIe must keep in mind that a public body or public officer whose
office is established by law, has only such powers as the General Assembly
has seen fit to grant, together with such powers as are necessarily implied
from the powers specifically granted. This proposition is thus stated in
32 Ohio Jurisprudence, page 933 :
"As a general rule, public officers have only such powers as
are expressly delegated them by statute, and such as are neces-
sarily implied from those so delegated. These powers must be ex-
ercised in the mode prescribed by statute. It is equally well settled
that where the statute prescribes the mode by which power con-
ferred upon a public officer or board shall be exercised, the mode
specified is also the measure of power granted."
Again, it is said at page 936, of the same work:
"The rule in respect of implied powers is that, in addition
to the pm\ers expressly given by statute to an officer or board of
officers, he or it has by implication, such additional powers as are
necessary for the due and efficient exercise of the power expressly
granted, or as may be fairly implied, from the statute granting
the express po\Yers." (Emphasis added.)
It certainly cannot be claimed that the payment of subsidies to pri-
vate organizations, however desirable, is essential to carrying out the pro-
66 OPINIONS
visions of the law under consideration. In any action involving the ex-
penditure of public money the law is especially strict in holding public
bodies and officers to the letter of the law. As stated in 32 Ohio Juris-
prudence, page 734:
''Public funds can he disbursed only by clear authority of
law, and upon compliance with statutory provisions relating
thereto. And in case of doubt as to the right of any administrative
board to expend public moneys under a legislative grant, such
doubt must be resolved in favor of the public and against the
grant of power.''
Substantially the same language 1s used m the case of State ex rei.
Bentley v. Pierce, 96 Ohio .St., 44
It might be argued that the authority given by the law to "promote"
a state-wide system of mental clinics implies authority to contribute to
the organization and support of private clinics. In my opinion the ordinary
meaning of the word "promote" does not necessarily include the concept
of financial support. Jt is a matter of common knowledge that one who
"promotes" the organization of a corporation or business enterprise does
so not by putting his own money into them, but by inducing others to do
so. This meaning of the term "promote" and "promoter" is illustrated
by numerous cases cited in Volume 34, of "Words and Phrases," page 315.
Among others I note State ex rei. v. Dammann, 228 Wise., 147, '"'here it
was held:
''The words 'encourage' and 'promote,' as used in statute
authorizing use of funds appropriated to Wisconsin Development
Authori(l' to promote or encourage co-operative associations to
engage in utility businesses, merely authorized Authority to en-
gage in such educational activities as are ordinarily proper for a
state to engage in and to use funds for that purpose; the word
'promote' referring to advancing !by general educational means
and word 'encourage' referring to activity of promoting by proper
educational means.''
Accordingly, my answer to your first question must be in the negative.
In reaching this conclusion it should be pointed out that I have con-
liidered your question to be concerned only with so-called "state funds,''
i.e, funds credited to the Division's rotary fund under the provisions of
Section r8r 5-2, General Code.
ATTORNEY GENERAL
It is my understanding that certain so-called "federal funds" are
periodically made available to the Division, and that under the provisions
of pertinent federal statutes and regulations of the United States Public
Health Service, such funds are granted for the purpose of direct financial
aid to mental hygiene clinics operated by corporations not for profit. Such
use has, of course, been recognized as proper by the General Assembly
by the provision in the current general appropriation act, Amended House
Bill No. 67r, 99th General Assembly, that "all revenues received from the
federal government by t:Jhe state of Ohio, or any of its departments or
divisions, and any receipts or any collections made for and on behalf of
the United States Government are hereby appropriated for the purpose
for which allotted or collected."
In view of this statutory authorization, I assume that you entertain
no doubt as to the propriety of the expenditure of "federal funds" for
the purposes described in your first question.
In your second question you suggest the possi:bility of paying the
salaries of certain employes who would be assigned the duty of assisting
in the operation of a local clinic by a corporation not for profit. I perceive
no basis on whioh a distinction could be drawn between a grant of funds
to such corporation and a grant of the services of a public employe to it;
and since it has been concluded that such a grant of funds is not auth-
orized, the same conclusion must be reached with respect to the services
of public employes.
lt may be pointed out, however, that the Division is authorized, under
the provisions of Section rSgo-9, General Code, to "establish resident * * *
clinics * * * where local clinical facilities are * * * inadequate." In the
establishment of resident clinics to supplement existing facilities which
are deemed inadequate, it would appear to be logical and desiraJble to
locate them in close proximity to, and to operate them in close cooperation
with, the local clinics the facilities of which are to be supplemented. Not
only do I perceive no legal objection to such an arrangement ibut I deem
it to be t:Jhe evident purpose of the statute to authorize it. I
see no reason why, under such an arrangement, the two clinics, that es-
tablished by the Division and that operated by a private coPporation not
for profit, should not be established in such close association and operated
in such close coopera:tiQn that they would in large measure, and for many
practical purposes, be operated as an integr<lJted project, provided, of course,
68 OPINIOKS
that the separate entity of each is preserved in matters of control of oper-
ations and financial support.
In the establishment of such a cooperative project you have indica;ted
m a supplemental inquiry that the Division proposes to employ a physi-
cian on a part-time basis to operate the state's clinic, and that the same
physician would be employed on a part-time basis by the local clinic. As-
suming that you find such a practicable basis for the division of the phy-
sician's services between the two clinics that his compensation may be
fixed in amounts commensurate t1herewith, I know of no legal olbjections
which could be raised as to such a plan.
In your inquiry you indicate that you desire an answer to your third
question only in the event it should be determined that the Division is
authorized to expend public funds as described in your first two questions.
Such questions having been answered in the negative, it would appear
unnecessary to discuss the authority of corporate clinics to charge a fee
for the services whioh they provide. However, it may he observed that
some of such services will undoubtedly be of a professional nature and that
they may well constitute the practice of medicine. Certain general questions
relative to the status of corporations and unincorporated associations of
unlicensed persons in activities involving the practice of the professions
of medicine and dentistry were discussed in my opinions Nos. 1717 and
1751, dated August j, 1952, and August 20, 1952, and to these opinions
your attention is respectfully invited.
Accordingly, in specific ans\Yer to your inquiry, it is my opinion that:
1 . 1 f a corporation not for profit establishes a local mental hygiene
clinic to serve a specified territory, the Division of Mental Hygiene would
have no authority under the provisions of Section r89o-9, General Code,
or any other statute, to contribute money to such oorporation to assist in
the support of such clinic.
2. The Division of :Mental Hygiene is without authority to assign
its employes to duties which involve the rendition of their services to a
clinic other than one established and operated :by the Division; but the
Division does have authority, under the provisions of Section r89o-9,
General Code, to "establish resident * * * clinics * * * where local clinical
f:tcilities are * * * inadequate," and any such resident clinic may be es-
tablished in such close association with a clinic estwblished by a corpora-
ATTORNEY GENERAL 6g
tion not for profiit, and operated in such close cooperation with it that
the two clinics will, for many practical purposes, be operated as an inte-
grated project. In any such case, however, it will be necessary to preserve
the separate entity of each clinic in marters involving control of operations
and financial support.
Respectfully,
c. vVILLIAM O'NEILL
Attorney General
GOiviPATIBLE - INCOMPATIBLE- PRESIDENT OF CITY
COUNCIL-ELECTED PURSUANT TO SECTION 4272 GC-NOT
A MEMBER OF CITY COUNCIL WITHIN PURVIEW OF SEC-
TION 4207 GC-PUBLIC SCHOOL TEACHER-SECTION FOR-
BIDS :\1EMBER OF CITY COUNCIL TO HOLD ANY OTHER
PUBLIC OFFICE OR EMPLOYMENT-EX1CEPTION, NOTARY
PUBLIC OR MEMBER OF STATE MILITIA-OAG 1946, OPIN-
ION 744. PAGE 68, APPROVED.
SYLLABUS:
The president of a city council, elected pursuant to Section 4272, General Code,
is not a member of the city council within the purview of Section 4207, General Code,
which forbids a member of city council from holding any other .public office or employ-
ment except that of notary public or member of the state militia. Opinion No. 744,
Opinions of the Attorney General for 1946, page 68, approved.
Columbus, Ohio, March 13, 1953
Hon. Myron A. Rosentreter, Prosecuting Attorney
Ottawa County, Port Clinton, Ohio
Dear Sir:
I have before me your request for my opinion as to whether an in-
dividual may fill the position of a public school teacher and at the same
time hold the elective office of president of a city council.
You call my attention to Opinion No. 7 44, Opinions of the Attorney
70
OPINIONS
General for 1946, page 68, wherein this specific question was determined
by one of my 'predecessors. It was held in such opinion that the president
of a city council, elected pursuant to Section 4272, General Code, is not,
under any circumstances, a member of a city council and hence the pro-
visions of Section 4207, General Code, ,forbidding a member of a city
council from holding any other public office or employment except vhat of
notary public or member of the state militia does not apply to such presi-
dent of council.
Your letter, m effect, requests that I reconsider the holding of this
1946 opinion in view of the fact that Section 4272, General Code, auth-
orizes the president of a city council to cast a vote in case of a tie.
In the 1946 opinion, relying upon the case of vVuebker v. Hopkins,
29 Ohio App., 386, the then Attorney General exvressed the opinion that
the president of council could not vote on an ordinance or resolution
which, by the terms of the statute, requires for its passage a majority of
all the elected members of council.
Since that time the Supreme Court of Ohio, in the case of State. ex
rei. Roberts v. Snyder. 149 Ohio St. 333, has held that under the pro-
visions of Section 4272, General Code, a duly elected president of a city
council is empowered to vote in case of an:y tie. ln vhe opinion of the
court it was held that Section 4272 authorizes the president of a city
council to cast a vote in case of a tie irrespective of whether he may be
regarded as a mcmbfr of council.
While some of the reasoning of the 1946 opm10n has since been re-
jected by the decision of the Supreme Court in the Roberts case, I do
not beJie,e that this would have the effect of G ,erruling ,1Jhe conclusion
of the 1946 opinion that a president of a city council is not a 111Cmbcr of
the council within the purview of Section 4207, General Code. You will
note that Section 4207 provides for two types of council members, council-
men at large and councilmen from wards. It would seem clear, therefore,
that any reference in this section to "members of council" must mean
those members of council described in the same section.
Under the provisions of Section 4255, General Code, the mayor of a
village is the president of council and is authorized to vote in case of a tie.
In other words, the mayor of a village to this extent occupies exactly the
same position as the president of a city council. Certainly it could not be
ATTORNEY GENERAL 71
asserted that the mayor ot a village is a member of the council merely by
virtue of his power to vote in case of a tie. The same may be said for the
Lieutenant Governor who may vote in case of a tie but is not a mernber
of the State Senate, and the Vice President of the United States who may
vote in case of a tie but is not a member of the United States Senate.
In your letter you make reference to Opinion No. 2555, Opinions of
the Attorney General for 1927. There is no 1927 opinion bearing this
number and I presume you have reference to Opinion No. 1386, Opinions
of the Attorney General for 1927, page 2555. I have examined this opinion
d1ich merely holds that under the provisions of Section 4218, General
Code, a person holding the 'position of a school teacher is ineligible to
membership in a village council. The question of tlhe applicability of Sec-
tion 4207 to the president of a city council in no way was involved.
In specific answer to your question, it is my opinion that the presi-
dent of a city council, elected pursuant to Section 4272, General Code, is
not a member of the city council within the purview of Section 4207, Gen-
eral Code, which forbids a member of a city council from holding any
other public office or employment except that of notary public or member
of the state militia. Opinion No. 744, Opinions of the Attorney General
for 1946, page 68, approved.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
BRIDGE COMMISSION, STATE OF OHIO---'CHAIRMAN-COM-
::\1ISSION DOES NOT HAVE AUTHORITY TO ISSUE BRIDGE
REVENUE BONDS-PURBOSE, TO PAY COST OF BUILDING
AND IMPROVING APPROACHES TO STEUBENVILLE-WEIR-
TON BRIDGE.
SYLLABUS:
The State Bridge Commission does not have the authority to issue bridge revenue
bonds for the purpose of paying the cost of building and improving the approaches to
the eirton bridge.
OPINIONS
Columbus, Ohio, 13, 1953
Russell M. \Vilhelm, Chairman State Bridge Commission of Ohio
Columbus, Ohio
Dear Sir:
Your request for my opinion reads as follows :
"As you know, the State Bridge Commission of Ohio oper-
ates under the provisions of Sections 1084-1 to ro84-17 of the old
sections of the General Code of Ohio, the new numbers in the pro-
posed revision of the General Code being 5593.01 to 5593.19. In
addition to these sections the Commission is, under a temporary
piece of legislation, Amended Senate Bill Number 356 passed
May 29th, 1951, and has been collecting tolls on the Steubenville-
\Veirton bridge between Steubenville, Ohio, and Weirton, West
Virginia, since February, 1952. The pur,pose of reimposing tolls
on this bridge by the temporary act was to make certain repairs
and improvements to the bridge, including the approaches
thereto. I have here an extra copy of the Amended Senate Bill
Number 356 which I am going to attach to this letter in order to
expedite matters but I would appreciate it if you would return
this copy.
e have now had plans prepared for an extensive improve-
ment of the approaches to the bridge referred to in order to
abolish t!he bottle neck in traffic which presently exists.
"I might call your attention to the wording in Section C of
/\mended Senate Bill Number 356 which says that 'any such con-
struction shall be financed entirely out of the proceeds of the tolls
which is for the use of the bridge.'
''The Commission has now reached a point where it is un-
certain as to its financing of t!he entire project and we, therefore,
submit to you for formal opinion the following question:
"Does the Ohio State Bridge Commission under old Sections
ro84-1 to ro84-17 of the General Code, new Sections 5593.01 to
5593.19 inclusive, Revised Code, together with the temporary
legislation known as Senate Bill Number 356, have the authority
and power to issue bridge revenue bonds of the State for the
purpose of paying the cost of building and improving the ap-
proaches to the Steubenville-\Veirton bridge?"
The records of the Bridge Commission show that the bridge in question
was purchased in 1936 and that revenue bonds were issued to finance the
payment pursuant to the provisions of Section 1084-10, et seq., General
ATTORNEY GENERAL
73
Code. Later, refunding bonds were issued to retire this original issue and
all of the bonds were paid off in I947 On September I I, 1947 the bridge
was made toll free and its maintenance was assumed by the state highway
department, pursuant to the provisions of Sections 1084-I4 and 1084-Ij,
General Code. Those sections provide in part as follows :
Section 1084- I4
"\Vhen the particular bonds issued for any ;bridge or bridges
and the interest thereon slhall have been paid or a sufficient amount
shall have been provided for their payment and shall continue to
be held for that purpose, tolls for the use of such bridge or bridges
shall cease except for the cost of maintaining, repairing and oper-
ating such bridge or bridges or for the repayment of any valid ob-
ligation clue the state of Ohio incurred by the state bridge com-
mission in retiring its bonds. Thereafter and as long as tihe cost
of maintaining, repairing and operating such bridge or bridges
shall be provided for through means other than tolls, no .tolls shall
be charged for transit thereover and such bridge or bridges shall
be free."
Section 1084-1 5
''* * * It shall be the duty of the state highway director to
maintain and keep in repair any bridge together wi!Jh its ap-
proaches constructed or acquired under the provisions of sections
JC84-1 to I084-I7, inclusive, of the General Code which is located
wholly or partly outside the state of Ohio, whenever the bonds
issued therefor have heen paid or a sufficient amount for their
payment has been collected; such cost of maintenance and repair
shall be expended from the department of state 'highway mainte-
nance and repair fund. * * * ."
In 195 I the 99th General Assembly enacted Senate Bill :\o. 356, re-
ferring to the Steubenville- \Veirton bridge. That act provided as follows:
"Section r. Notwithstanding any of the provisions of sec-
tions ro84-1 to 1084-I7 of the General Code, both inclusive, and
in addition to the powers heretofore granted, the state bridge com-
mission is hereby authorized and empowered :
" (a) T:O assume jurisdiction over, operate and maintain the
Steubenville-\Veirton bridge, between Steubenville, Ohio and
\Veirton, \Vest Virginia, heretofore acquired by tJhe commission,
notwithstanding the fact that tolls for the use of such 1bridge have
ceased and such bridge has been maintained by the state highway
department. Jurisdiction over such bridge shall he assumed upon
determination by the commission that it is in the best interest of
the people of the state of Ohio for the commission to assume
jurisdiction over such bridge and to operate and maintain the same
74
OPINIONS
as a toll bridge until sufficient proceeds have been realized from
the charge of tolls to completely finance the cost of all construc-
tions, repairs, maintenance, alterations and improvements in the
bridge and the approaches thereto, found by the commission to
be necessary or advisable to the continued1proper functioning of
the bridge ;
"(b) To charge tolls for the use of such bridge in order
to provide a fund with which to finance the cost o1 all construc-
tions, repairs, maintenance, alterations and improvements in such
bridge or the approaches thereto, deemed necessary or advisable
by the commission;
"(c) To construct, repair, maintain, alter or improve the
bridge or the approaches thereto, the cost of any such construc-
tion, repair, maintenance or alteration to be financed entirely out
of the proceeds of the tolls charged for the use of the bridge;
" (d) To cease the charging of tolls for the use of such
bridge and to relinquish jurisdiction over, operation and mainte-
nance thereof to the state highway department, upon determina-
tion by the commission that to do so would be in the best interest
of the people of the state of Ohio."
It is my opinion that a reading of the above act discloses a clear legis-
lative intent that the tolls which your Commission was authorized to re-
impose on the use of the bridge were to be accumulated "until sufficient
proceeds have been realized to completely finance the cost of all improve-
ments," and that the legislature did not intend that bonds should be issued
to finance such improvements.
The only language in Senate Bill No. 356 which could .possibly be
construed to authorize the issuance of 1bonds is the language in paragraph
(c) to which you have referred, which language provides that any con-
struction shall be "financed" entirely out of the proceeds of tolls. At best,
this refers us back to the provisions of the Bridge Commission law to
determine \\'hat powers exist to "finance" such projects hy the issuance
of bonds. In this connection the following statutes are pertinent.
Section 1084-8, General Code, provides in part as follows:
"The state bridge commission is hereby authorized to con-
struct or acquire by purchase or condemnation whenever it shall
deem such acquirement expedient but solely .by means of or with
the proceeds of bridge revenue bonds hereinafter authorized any
toll rbridges located as provided in section I of this act, or any
such toll bridge or bridges wholly or partly constructed, upon such
ATTORNEY GENERAL
terms and at such .prices as may be considered by it to be reason-
able and can be agreed upon between it and the owner thereof,
title thereto be taken in the name of the state. * * *."
Section 1084-9, General Code, provides in part as follows:
"The state bridge commission and the bridge commission of
any county or city shall have power to acquire by condemnation
or purchase any bridge, land, rights, easements, franchises and
other property deemed necessary or convenient for the improve-
ment and/or the efficient operation of any property acquired or
constructed hereunder, or for securing right of way leading to any
such .bridge or its approaches. * * * ."
Section 1084- ro, General Code, provides 111 part as follows:
"The state bridge commission and the bridge commission of
any county or city is hereby authorized to provide lby resolution
for the issuance of bridge revenue tbonds of the state or of such
county or city for the ptwpose of :paying the cost as hereimubove
defined of any one or more such bridges, which .resolution shall
recite an estimate of such cost, the principal and interest of which
bonds shall be payable solely from the special fund herein pro
vided for such payment. * * *." (Emphasis st.!ipplied.)
75
It will be noted that Section 1084-10, supra, which grants the power
to issue bonds, authorizes their issuance to pay the cost of "such bridges."'
Since the word "such" must be presumed to have an antecedent the only
logical reference it can have is to those bridges which the Commission is
authorized to acquire by Sections 1084-8 and ro84-9. As I read those sec-
tions, they refer only to ,bridges which the Commission constructs or to
existing bridges which the Commission buys in order to make them even-
tually toll-free. It is my opinion that no authority is granted to issue bonds
for the pu11pose of making repairs on a bridge owned by the state of Ohio.
It is true that under the broad definitions of "tbridge," "improve-
ments," and "cost" contained in the law, it could be argued that the project
which you contemplate is in reality new construction within the meaning
of the law. However, it is not necessary to decide that problem since Sec-
tion ro84-1 sc, General .Code, effective in 1949, provides as follows:
"The state bridge commission shall have no power to con-
struct or to contract for the construction of a bridge or to issue
bonds to pay the cost of the construction thereof, from and after
the date this section becomes effective."
;6 OPINIONS
In view of this specific limitation on the power of the commission to
issue bonds - a power which must be clearly spelled out - I cannot find
a repeal by implication in the rather vague reference in Senate Bill ~ o . 356
the "financing" of the program.
In answer to your question it is therefore my opinion that the State
Bridge Commission does not have the authority to issue bridge revenue
bonds for the purpose of paying the cost of building and improving the
approaches to the Steubenville-Weirton bridge.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
V :-\C.\NCIES-NO AUTHORITY TO FILL VACANCIES CAUSED
BY \VITHDRAWAL OR DEATH OF PERSON-NOMINATED BY
XO-:\HNATING PETITION-SECTION 4785-94 GC-Aii'IENDED
S CBSTITUTE SB 269, 99 GA.
SYLLABUS:
Since the amendment of Section 4785-94, General Code, by Am. Sub. S. B. 269,
99th General Assembly, effective January I, 1952, there is no authority by which
Yacancies caused by either withdrawal or the death of a person nominated by a
nominating petition may be filled.
Colun11bus, Ohio, March 16, I953
Hon. Ted \V. Brown, Secretary of State
Columbus, Ohio
Dear Sir:
1 am in receipt of your request for my opinion reading as follows:
"The Wood County Board of Elections has inquired of this
office the procedure to 1be followed in filling vacancies occurring
hy reason of the death or withdrawal of an independent candi-
date.
"General Code Section 4785-94 deals with the filling of a
ATTORNEY GENERAL
vacancy by withdrawal or death. This section sets out in the first
five paragraphs the procedure to be followed when a party candi-
date withdraws. In the sixth paragraph of this section the follow-
ing statement is contained:
'If a person nominated in a primary election or nom-
-inated by a nominating petition, as a candidate for elec-
tion at the next general election, shall die, the vacancy
so created may be filled by the same committee in the
same manner as provided in the five next preceding para-
graphs for the filling of similar vacancies created by
withdrawals. * * *'
"Since this section mentions the death of a candidate filing
by nominating petition, it is the thought of this office that per-
haps the power is granted to fill such vacancy, ibut the mechanics
for filling such vacancy are not contained in said section. 'vVe
\\"Ould therefore like to have your opinion as to whether va-
cancies, either by withdrawal or by death of an independent can-
didate, can be filled ~ m e i e r the present provisions."
77
Section 4785-94, General Code, as amended by the 99th General
Assembly, effective January I, 1952, 124 Ohio Laws, 673, reads as follows:
'lf a person nominated in a. priwary election as a candidate
for election at the next general election, whose candidacy is to be
submitted to the electors of the entire state, shall withdraw as
such candidate prior to the eightieth day before the day of such
general election, the vacancy in the party nomination so created
may be filled by the state central committee of the political party
which made such nomination at said primary election, at a meeting
called for such purpose. Such meeting shall1be called by the chair-
man of such committee, who shall give each member of the com-
mittee at least two days' notice of the time, place and purpose of
the meeting. If a majority of the members of such committee are
present at such meeting, a majority of fhose present may select
a person to fill the vacancy. The chairman and secretary of such
meeting shall certify in writing and under oath to the secretary
of state not later than the seventy-sixth clay before the clay of
such general election, the name of the person so selected to fill
such vacancy. Such certification must be accompanied by the
written acceptance of such nomination by the person whose name
is so certified.
''If a person nowinated in a pri111ary election as a candidate
for election at the next general election, whose candidacy is to
be submitted to the electors of a district comprised of more than
one county but less than all of the counties of the state, shall
withdraw as such candidate prior to the eightieth day !before the
clay of such general election, the vacancy in the party nomination
;8
OPINIONS
so created may be filled :by a district committee of the political
party which made such nomination at said primary election, at a
meeting called for such purpose. Such district committee shall
consist of the chairman and secretary of the county central com-
mittee of such political party in each county in such district. Such
district committee shall he called by the chairman of the county
central committee of such political party of the most populous
county in such district, who shall give each member of such dis-
trict committee at least two days' notice of the time, place and
purpose of such meeting. If a majority of the members of such
district committee are present at such district committee meeting,
a majority of those present may select a person to fill the vacancy.
The chairman and secretary of such meeting shall certify in writ-
ing and under oath to the board of elections of the most populous
county in such district, not later than the seventy-sixth clay before
the day of such general election, the name of the person so se-
lected to fill such vacancy. Such certification must be accompanied
by the written a c c e ~ ) t a n c e of such nomination by the person \Yhose
name is so certified.
"If a person nominated in a primar:,> election as a candidate
for election at the next general election, whose candidacy is to be
submitted to the electors of a county, shall withdraw as such can-
clidate prior to the eightieth clay !before the day of such general
election, the vawncy in the party nomination so created may be
filled by the county central committee of the political party \vhich
made such nomination at said primary election, at a meeting called
for such purpose. Such meeting shall he called by the chairman
of such committee who shall give each member o.f the committee
at least two days' notice of the time, place and purpose of the
meeting. If a majority of the members of such committee are pres-
ent at such meeting, a majority of those present may select a
person to fill the vacancy. The chairman and secretary of such
meeting shall certify in writing and under oath to the board of
elections of such county, not later than the seventy-sixth day be-
fore the day of such general election, the name of the person se-
lected to fill such vacancy. Such certification must be accmnpanied
by the written acceptance of such nomination by N1e person whose
name is so certified.
''If a person nominated in a primary election as a candidate
for election at the next general election, whose cancliclacy is to be
submitted to the electors of a district within a county, shall '<(itlz-
draw as such candidate prior to the eightieth day before the day
of such general election, the 7mcancy in the party no111ination so
created may be filled by a district committee consisting of those
members of the county central committee in such county of the
political party which made such nomination at said primary elec-
tion, who represent the precincts or the wards and townships
ATTORNEY GENERAL
within such district, at a meeting called for such puPpQse. Such
district committee meeting shall be called by the chairman of such
county central committee who shall give each member of such dis-
trict committee at least two days' notice of the time, place and
pur,pose of such meeting. If a majority of the members of such
district committee are present at such district committee meeting,
a majority of those ,present may select a person to fill the vacancy.
The chairman and secretary of such district committee meeting
shall certify in writing and under oath to the board of elections
of such county, not later than the seventy-sixth day before the
day of such general election, the name of the person so selected
to fill such vacancy. Such certification must be accompanied by
the written acceptance of such nomination by the person whose
name is so certified.
"If a person nominated in a pri1nary election as a candidate
for election at the next general election, whose candidacy is to be
submitted to the electors of a subdivision within a county, shall
withdraa,. as such candidate prior to the eightieth day before the
clay of such general election, the vacancy in the party nmnination
so created may be filled by a subdivision committee consisting of
those members of the county central committee in such county of
the political party which made such nomination at said primary
election, who represent the .precincts or t:he wards and townships
within such subdivision, at a meeting called for such purpose.
Such subdivision committee meeting shall be called by the chair-
man of such county central committee who shall give each member
of such subdivision committee at least two days' notice of the
time, place and purpose of such meeting. H a majority of the
members of such subdivision committee are present at such sub-
division committee meeting, a majority of those present may
select a person to fill the vacancy. The chairman and secretary of
such su1bdivision committee meeting shall certify in writing and
under oath to the board of elections of such county, not later than
the seventy-sixth day before the day of such general election,
the name of the person so selected to fill such vacancy. Such cer-
tification must be accompanied by the written acceptance of such
nomination by the person whose name is so certified.
"If a person nominated in a primary election or nominated
by a nominating petition, as a candidate for election at the next
general election, shall die, the vacancy so created may be filled
by the same comutitfee in the same manner as provided in the five
next preceding paragraphs for the filling of similar vacancies
created by withdrawals, excepting that the certification, when
filling a vacancy created by death, may not be filed with the sec-
retary of state, or with a board of elections of the most populous
county of a district, or with the board of elections of a county in
which the major portion of the population of a subdivision is lo-
cated, later than 6:30p.m. of the tenth day 1before the clay of such
79
8o OPINIONS
general election, or with any other county board of elections later
than 6:30p.m. of the fifth day before the day of such general
election.
"If a person holding an elective office dies subsequently to
the seventieth day before the day of a primary election and prior
to the eightieth day before the day of the next general election, and
if, under the laws of Ohio, a person may be elected at such gen-
eral election to fill the unexpired term of the person who shall
have died, the appropriate committee of each political party, acting
as in the case of a vacancy in a party nomination, as in the first
four paragraphs of this section provided for, may select a person
as the candidate of its party for election for such unex.pired term
at such general election, and certify his name, and thereupon such
name shall he printed as such candidate under proper titles and in
the proper place on the proper ballots for use at such election."
(Emphasis added.)
It will be noted that this section contains no provision authorizing
the filling of a vacancy on a ballot caused by the withdrawal of a candidate
nominated 1by petition and contains no language referring to such a situa-
tion. The only authorization to fill any vacancy caused by the withdrawal
of a candidate is the authorization to the appropriate part) com1nittee to
fill a vacancy caused by the withdrawal of a part)' nominee, nominated in
a primary election. It therefore is quite clear rhat where a candidate nomi-
nated by petition, an independent candidate, withdraws prior to the elec-
tion, there is no authority to replace him on the ballot by another nominee.
Prior to the amendment to Section 4785-94 by the 99th General As-
sembly, this section authorized such replacement. The section, as enacted
by the 97th General Assembly, 122 Ohio Laws, 103, 122, contained a
paragraph specifically authorizing the filling of vacancies caused by the
withdrawal of persons nominated by petition. This paragraph read as
follows:
"If a person nominated by petition as a candidate for election
at the next general election shall withdraw as such candidate prior
to the eightieth day before the day of such general election, the va-
cancy so created may be filled by the committee of five designated
in such nominating petition to represent the candidate named
therein. To .fill such vacancy the members of such committee, or a
majority of them, shall, not later than .the seventy-sixth day before
the day of such general election, file with the election officials with
whom .the petition nominating the person who has withdrawn was
filed, a certificate signed and sworn to under oath by each of them.
designating the person they select to fill such vacancy. Such certi-
ATTORNEY GENERAL
fication must be accompanied by the written acceptance of such
nomination by the person whose name is so certified."
81
This entire paragraph was eliminated by the amendment enacted by
the 99th General Assembly, making it readily apparent that the present
omission of any such provision is not a legislative inadvertence but, in-
stead. is a deliberate and considered expression of legislative intent .
. -\s you have pointed out, the sixth paragraph of the present section
does make a reference to filling a vacancy caused by death of a candidate
no111inated by petition. It provides no special machinery for filling such
vacancy, however, but merely states that such vacancy shall be filled "by
the same committee in the smne manner as provided in the five next pre-
ceding paragraphs for the filling of similar vacancies created by with-
drawals." The language of this paragraph was not changed by the last
amendment of this section. Prior to that time the paragraph under con-
sideration immediately followed the language which formerly specifically
authorized the committee of five designated in the nominating petition to
fill vacancies caused by withdrawal of a candidate nominated by petition.
Since, prior to January I, I952, authority did exist for filling va-
cancies caused by the withdrawal of candidates nominated by petition, the
language that vacancies caused by death of persons nominated by petition
"may be filled by the same committee and in the same manner as provided
in the five next preceding paragraphs for the filling of similar vacancies
created by withdrawals," was of some force and effect. In view of the fact
that since the last amendment became effective on January I, I952, there
no longer is any authority to fill vacancies created by the withdrawal of
candidates nominated by petition, it necessarily follows that there no
longer is any authority to fill the vacancies caused by the death of candi-
dates nominated by petition. Thus, it clearly appears that the words "or
nominated by a nominating petition," as contained in the sixth paragraph
of Section 4785-94, are now mere surplusage.
In specific answer to your question, it is my opinion that since the
amendment of Section 4785-94, General Code, by the 99th General As-
sembly. effective January I, I952, there is no authority by which vacan-
cies causecl1by either withdrawal or the death of a person nominated by a
nominating petition may be filled.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPINIONS
2393
1. .CHIDREN'S HOME-COUNTY-WILL, GIVING PROPERTY,
REAL OR PERSONAL TO BOARD OF TRUSTEES-"TO BE
USED FOR THE BENEFIT OF SAID CHILDREN'S HOME
AT THE DISCRETION OF THE SAID BOARD OF TRUS-
TEES"-TRUST CREATED IN NATURE OF CHARITABLE
TRUST.
2. REAL PROPERTY MAY NOT BE SOLD BY COUNTY COM-
MISSIONERS WHERE GIFT IS FOR A CHARITABLE
TRUST-SECTIONS 2447, 2447-1 OC-NOT REAL ESTATE
BELONGING TO COUNTY AND NOT NEEDED FOR PUB-
LIC USE.
3. TRUSTEES OF COUNTY CHILDREN'S HOME-POWERS
AND DUTIES TRANSFERRED TO COUNTY DEPARTMENT
OF WELFARE-DEPARTMENT SUCCEEDS TO TRUSTEE-
SHIP OF REAL PROPERTY HELD IN TRUST-IF NO RE-
STRICTION IN INSTRUMENT CREA'niNG TRUST, DIREC-
TOR TO SELL PROPERTY UNDER INSTRCCTIONS AND
ABPROVAL OF COURT OF EQUITY, MUST HAVE CON-
SENT AND APPROVAL OF COUNTY COMMISSIONERS-
SECTION 3070-8 GC.
SYLLABUS:
1. A will giving property, real or personal to the board of trustees of a county
children's home, and prescribing that it is "to be used for the benefit of said county
children's home, at the direction of the said board of trustees," creates a trust in the
nature of a charitable trust for the pur.pose indicated.
2. Real property given to an agency of a county for the purpose of a charitable
trust may not be sold .by the county commissioners pursuant to the provisions of Sec-
tions 2447 and 2447-1, General Code, as "real estate belonging to the county and not
needed for .public use."
3. Vvhere real property is held in trust by the trustees of a county children's
home and such trustees under the provisions of Section 3070-8, of the General Code,
have transferred their powers and duties to a county department of welfare, said
department succeeds to such trusteeship, and if there is no restriction in the instrument
creating such trust, the director of such department, with the consent and approval of
the county commissioners, may sell st1ch real .property under instructions and approval
of a court of equity.
ATTORNEY GENERAL
Columbus, Ohio, March 19, 1953
Hon. Bernard W. Freeman, Prosecuting Attorney
Huron County, Norwalk, Ohio
Dear Sir:
I have before me your communication requesting my opinion, and
reading as follows:
"May I have your opinion, formal or informal, with respect
to the following situation: The will of one 0. C. M. was admitted
to probate January 27, 1949, in the Prolbate Court of Huron
County, Ohio; the will contained the following provision:
'iT EM V. All the remainder and residue of my estate,
real and personal, wheresoever situated, which I may
own or have the right to dispose of at the time of my
decease, I give, devise, and bequeath to the Board of
Trustees of the Children's Home of Huron County,
Ohio, to be used for the benefit of said Huron County
Olildren's Home at the direction of the said Board of
Trustees.'
"A portion of the residuary estate was real property which
was after a time conveyed by the County Commissioners, under
the terms of General Code Sections 2447 and 2447-1. At that
time, under the provisions of Section 3070-8 of the General Code
the Board of Trustees of the Children's Home had entered into
an agreement with the Board of County Commissioners to trans-
fer their powers and duties ,to a County Department of welfare.
"Under the terms and ,provisions of Section r8 of the Gen-
eral Code of Ohio and 3o8o as it formerly existed, construed in
conjunction with the terms and provisions of the present Section
3070-31, this office reached the conclusion that title to the real
estate vested in the Board of County Commissioners : and that
they, therefore, were empowered and authorized to sell this real
estate under the terms and provisions of the statutes above cited.
"This office is also familiar with the terms and proYisions of
Section 3070-30 and the Opinion Nmnber 2617, at page 841, of
the 1950 Opinions of the Attorney General; however, we can
find no definite statutory authority under the new statutes which
is the exact substitute for Section 308o.
"If this office is in error in its conclusion that the pmver to
sell vested in the Board of County Commissioners, may I tplease
have your opinion as to the proper procedure for the sale of this
real estate ?"
OPINIONS
At the time of the probate of the will giving certain real and personal
property to the Trustees of the Children's Home, all of the statutes form-
erly in existence relating to the establishment and government of children's
homes to wit, Sections 3077 to 31o8 of the General Code, had been re-
pealed by an Act which became effective January 1, 1946, 121 v. 538.
This Act was a codification of the statutes relating to child welfare.
Sections 3070-1 to 3070-36 of the General Code, being a part of this
Act, relate to the establishment of a county child welfare board and its
powers and duties. The purpose of these provisions as stated in the open-
ing section of the law, was "to supplement, expand, modernize and inte-
grate child welfare services and the care and placement of children in the
several counties of the State."
Section 3070-6 of the General Code, provides as follows:
"In any county where a county children's home exists at the
time of the effective elate of this act, and in which the board of
trustees of said home have not transferred their powers and duties
to a county department of welfare, such iboarcl of trustees shall
hereafter be known as the 'child welfare board,' and shall have all
the powers and duties vested by this act in suoh boards. The cus-
tody of all wards of such board of trustees shall be deemed trans-
ferred to the child welfare board."
Section 3070-8 of the General Code, provides in part, as follows:
"In any county in which the child welfare board or the board
of trustees of the children's home have entered or shall hereafter
enter into an agreement with the board of county commissioners
to transfer their powers and duties to a county department of wel-
fare such agreement shall be irrevocable and said child welfare
board or the board of trustees of such home shall cease to exist,
any provisions of section 25II-5 of the General Code to the con-
trary notwi thstancling, * * *." (Emphasis added.)
Your letter states that prior to the sale of the real estate by the county
commissioners the 'board of trustees of the 1Ghilclren' s Home pursuant to
the provisions of Section 3070-8, had entered into an agreement with the
board of county commissioners to transfer their powers and duties to a
department of welfare. From this I am justified in assuming that the
board of county commissioners had prior thereto established a county de-
partment of public welfare under Section 2511-1 of the General Code,
which provides in part, as follows :
ATTORNEY GENERAL
"The county commissioners of any county may by a resolu-
tion which has been unanimously adopted, establish a county de-
partment of welfare which, when so estaJblished, shall he governed
by the provisions of this act. Such department shall function from
and after the date fixed in such resolution, which date shall be not
less than thirty days nor more than ninety days after the adoption
of such resolution, but not before the first day of January, 1944.
The county department of welfare shall consist of a county direc-
tor of welfare appointed by the 1board of county commissioners,
and such assistants and other employees as may be deemed neces-
sary for the efficient performance of the welfare service of the
county. * * *."
ss
Section 25 II- r above quoted, is a 'Part of an Act which became effec-
tive September 9, 1943, (r2o O.L., 430), and which comprises Sections
25rr-r to 25II-I2 of the General Code. It will be noted that this depart-
ment, if estahlished by the commissioners, is to consist of a county direc-
tor of welfare, ap[>ointed by the county commissioners, and such assistants
as the commissioners see fit to give him, and according to the succeeding
sections, is at all times under the complete control and direction of the
commissioners, who are authorized by Section 25II-I2, General Code,
to abolish the department at any time.
Under the old law relative to children's homes, the trustees of a county
children's home were authorized by Section 3o83 of the General Code, to
receive gif.ts or bequests for the benefit of a children's home, and Section
308o of the General Code, also repealed, provided that the county commis-
sioners might receive and hold in trust for the benefit of the home any
bequest or devise of land or other property. I shall later refer to Section
r8 of the General Code, which grants abundant power to the county com-
missioners to receive 1bequests or other gifts for such purpose.
lt will be noted that under the provisions of Section 3070-8 to \vhich
I have referred, when the trustees of the children's home transferred their
".powers and duties" to the county department of wel-fare, such board of
trustees, now known as the "child welfare board," ceased to exist, and
inasmuch as the Director of \Velfare is merely an agent of the county com-
missioners, it appears that the transfer was virtually to the county commis-
sioners. Nothing is said in that section or elsewhere, authorizing the trus-
tees of a children's home to convey title to any land which may have been
acquired by them, to the department of public welfare or to anyone else,
86 OPINIONS
and the department of public welfare is not expressly authorized hy any
law to receive, hold or convey real estate.
I note, however, the provisions of other sections of the law, which
throw some light upon the status of the Director of Public welfare, as to
property, including trust estates, which may have been held rby other public
agencies whose powers and duties are transferred to the county depart
ment of welfare. Section 25II-S, General Code, reads in part:
"The county department of welfare shall also have authority
to administer or assist in administering any other state or local
public welfare activity supported wholly or in part :by public funds
from any source if and to the extent so provided by agreement
between the county commissioners and the officer, department,
board or agency in which the administration of such activity is
vested by law."
Section 2SII-I I, General Code, provides in part:
"All the property, records, files and other documents and
papers used in and necessary for the performance of the functions
transferred pursuant to this act and belonging to or in the posses-
sion of any board, agency or department, the powers and duties
of which are transferred to the county department of welfare, and
the proceeds of all tax levies in process of collection .for the use of
such boards, agencies or departments shall be transferred to the
county department of welfare, when established." (Emphasis
added.)
In the light of the aibove noted provisions o1 the statutes, I am bound
to conclude that whatever title a board of trustees of a county children's
home had in real estate which had come to them iby the devise mentioned in
your letter, must have passed to some extent at least, to the county depart-
ment of welfare. It must be recognized that the department although un-
der control of the commissioners, is recognized by the law as having cer-
tain powers and functions and therefore in determining the main problem
posed by your letter to wit, the sale of land bequeathed for a public chari-
table purpose, which has come into the control of said department, we must
consider that 1both the county commissioners and the director of this de-
partment have some part in the procedure.
It does not follow, however, that the county oommissioners either with
or without the co-operation of the director had aufuority to proceed under
the provisions o1 Section 2447, General Code, to find and declare that
ATTORNEY GENERAL
this real estate is not needed for any public purpose, and having so declared,
proceed to sell it. Section 2447, in so far as pertinent, reads as follows:
"lf, in their opinion, the interests of the county so require,
the commissioners may sell any real estate belonging to the
county, and not needed for public use, or may lease the same,
* * * and in case of the sale of such real estate not used for county
purpose, and in case of such a grant of lease, right or easement to
a municipality or .other governmental subdivision, or to corpora-
tions not for profit for hospital or charitable purposes, all or such
part of the proceeds thereof as the board of commissioners may
designate may be placed by the commissioners in a separate fund
to be used only for construction, equipment, furnishing, mainten-
ance or repair of the county buildings and for the acquisition of
sites therefor." (Emphasis added.)
If the property in question had been purchased by the county commis-
sioners, even for the direct purpose of establishing a children's home, there
would be no question of the right of the commissioners to take the course
indicated iby that section and their discretion would not be questioned or
controlled. In the case of Seran v. Biddle, 39 0. 0., 295, it was held:
"When the county commissioners have exercised their discre-
tion and determined that a sale of portions of the county home
farm not needed .for public us is advisable, a court will not in-
terfere in the exercise of their sound judgment."
But the court made quite clear the justification for that holding, by saying:
"Title was acquired to this land by separate deeds, the
earliest of which dates back to 1836; and the county has been 111
exclusive ;possession and control of the same ever since."
T:hat case \vas affirmed by the Court of Appeals and the 'Supreme
Court overruled a motion to certify on May 4, 1949.
In Opinion No. 2617, Opinions of the Attorney General for 1950,
page 841, my immediate predecessor a<pplied the same ruling to the sale of
a portion of a children's home which had been purchased. The property
referred to in your letter was not purchased iby the county but came to it by
will. which definitely limited its use, as stated therein, ''to be used for the
benefit of said Huron County Children's Home, at the direction of the
said board of trustees." This language had the effect of creating a trust in
the nature of a charita!ble trust. A "charitable trust" has been defined in
American Jurisprudence, Volume 10, page 587, as follows:
88
OPINIONS
"Any trust coming within the definition of a legal charity
for the <benefit of an indefinite class of persons, sufficiently de-
signated to indicate the intention of the donor, and constituting
some portion or class of the public, is a charitable trust.''
In the same work, at page 588, it is said:
"A public charity is one in which there is a benefit to be
conferred on the public at large, or some portion thereof, or upon
an indefinite class of persons."
Section 18 of the General Code, gives express authority to public
bodies, including counties, to receive gifts and bequests which may be
either unconditional and or limited to a certain purpose. In so
far as pertinent, this section reads:
''The state, a county, a township or cemetery association, the
commissioners or trustees thereof, * * * may receive by gift, devise
or bequest, moneys, lands or other properties, for their benefit
or the benefit of any of those under their charge, and hold and
ap pl}' the same according to the terms and conditions of the gift,
deTise or bequest. Such gifts or 'devises of real estate may be in
fee simple or of any lesser estafl', and may be subject to any rea-
sonable reservation. This section shall not affect the statutory
provisions as to clevises or bequests for such purposes." (Em-
phasis added).
At page 6r8 of ro American Jurisprudence, it is said:
"A county may act as the trustee of a charitable trust if the
purposes of the trust are germane to the objects of the incorpora-
tion. If they relate to matters which will promote, aid, and pertect
those subjects, there can be no legal impediment to the corpora-
tion taking a devise upon trust. Thus, a county may act as the
trustee of a charitwble trust created for educational purposes, for
the of a home for orphans, or for the erection of
a courthouse for public use.''
To like effect see 7 Ohio Jurisprudence, page 172.
It will be noted by reference to Section r8 supra, that in receiving
such gifts the commissioners are to "hold and apply the same according to
the terms and conditions of the grant, devise or bequest." vVhere, as in
the present case, .the gift is to be used for a specific charitable purpose, that,
in my opinion constitutes a trust in the hands of the county and the pro-
ceeds of the gift must be used only for such purposes.
ATTORNEY GENERAL
It is well settled that courts of chancery or equity have always had
jurisdiction of the administration of charitable trusts. 7 Ohio Jurisprud-
ence, page 166 .: 10 American Jurisprudence, page 665 ; Landis v. wooden,
1 Ohio St., 160; Sowers v. Cyrenius, 39 Ohio St., 29; Thompson v. Hos-
pital, 24 0. 0., 322. And trustees, if in doubt as to their powers or as to
the intent of the donor, may apply to the court for instructions.
I do not find any statute which controls the circumstances under
which and the manner in which property constituting a charitalble trust may
be sold by the trustees. It is stated in 10 American Jurisprudence, page
62o:
"In the absence of express authorization by the donor of the
trust, the power to make sale depends upon circumstances. The
vower to sell -personal property will be more readily implied than
in rhe case of real property.
"The American Law Institute takes the position that the
trustee of a charitable trust can properly sell trust property if a
power of sale is conferred in specific words, or such sale is neces-
sary or appropriate to enable the trustee to carry out the purposes
of the trust, unless such sale is fonbidden in specific words by the
terms of the trust or it appears from the terms of the trust that
the property was to he retained in specie, even a prohibition
against sale will not prevent the court from authorizing the
trustee to make sale, in case of necessity arising from unforeseen
change of circumstances, and to apply the proceeds to the pur-
poses of the trust. T<hus, where the circumstances existing at the
time of the creation of a charitable trust have changed to such an
extent that in order to carry out properly the charitable intention
of the donor. it is necessary to dispose of the trust property and
devote the funds to the acquisition of a more suitable location,
a court of equity will authorize the sale of the property."
L' nder the terms of the devise in question there was certainly no ex-
press restriction as to the right to sell the property given to the trustees of
the children's home. On the contrary, it appears to me that the words, "at
the direction of the said board of trusttees", were intended to give the
trustees !broad authority to use both the real and personal property in such
manner as they saw fit, so long as such use was confined to the purlj_)ose ex-
pressed, to wit, "for the 1benefit of said Huron County Children's Home."
And I so hold.
However, when it comes to the procedure for the sale of the real
estate of such trust, we encounter a measure of uncertainty. In the first
OPJNIONS
place, it is not perfectly clear who should make the conveyance. I am in-
clined to the view that the director of the county department of public
welfare, with the advice and consent of the county commissioners, should
do so. Furthermore, there is no statute which sets out the procedure by
which the sale should be made; whether with or without advertising, etc.
I do not consider that it lies within my province to decide these questions.
They are peculiarly within the proper jurisdiction of a court of equity, and
in order that the purchaser at a sale may receive a safe and merchantable
title, your county authorities should make application to the court for in-
structions, and act in pursuance of the same.
It is therefore my opinion and you are advised:
I. A will giving property, real or personal to the board of trustees
of a county children's home and prescribing that it is "to 1be used for the
benefit of said county children's home at the direction of the said !board
of trustees," creates a trust in the nature of a charitable trust for the pur-
pose indicated.
2. Real property given to an agency of a county for the purpose of a
charitable trust may not be sold by the county commissioners pursuant to
the provisions of Sections 2447 and 2447-I, 'General Code, as "real estate
belonging to the county and not needed for public use."
3 \Vhere real property is held in trust by the trustees of a county
children's home, and such trustees under the provisions of Section 3070-8,
of the General Code, have transferred their powers and duties to a county
department of welfare, said department succeeds to such trusteeship, and
if there is no restriction in the instrument creating such trust, the director
of such department, with the consent and approval of the county commis-
sioners, may sell such real property under instructions and approval of a
court of equity.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
2395
HIGHWAY, STATE-DIRECTOR OF HIGHWAYS-TO DETER-
MINE MOST FAVORABLE LOCATION TO RECONSTRUCT
STATE HIGHWAY-REQUIRED TO COMPLY \\liTH PRO-
VISION AS TO NOTICE AND HEARING AS SET OUT IN SEC-
TION rr78-2o GC-RELOCATION NECESSARY -OHIO TURN-
PIKE CONIMISSION-SECTION r2o6 GC.
SYLLABUS:
The Director of Highways in making a determination, under the .provisions of
Section 1206, General Code, of the most favorable location for the reconstruction of a
state highway the relocation of which the Ohio Turnpike Commission has found to be
necessary, is required to comply with the provision as to notice and hearing with
respect thereto as set out in Section 1178-20, General Ccxle.
Columbus, Ohio, March 20, I953
Hon. S. 0. Linzell, Director of Highways
Columbus, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"Section r2o6 of the Ohio General Code gives the Ohio Turn-
pike Commission authority 'to change the location of any portion
of any * * * State High;vay' it shall find necessary to change.
vVith such authority, the requirement is imposed upon the Com-
mission to 'cause the same to he reconstructed at such location as
the division of government having jurisdiction over such * * *
highway shall deem most favorable * * *.'
"I, as Director of Highways having jurisdiction over state
highways, am obliged to determine the most favorable location
for a changed portion of state highway when such a change is
determined as necessary by the Ohio Turnpike Commission.
"Section r 178-20 of the Ohio General Code providing that
'the director of highways shall have authority to change existing
state highways after notice and hearing as hereinafter provided'
etc.
"In the case of Section 1206 O.G.C., the Ohio Turnpike
Commission is the initiating agent for a change in alignment and
in the case of Section I I 78-20 O.G .C., the Director of Highways
is the initiating agency for a change in alignment.
''\.Yill you please advise me whether or not, when the Ohio
OPINIONS
Turnpike 'Commission determines a change in the location of a
portion of state highway as necessary and the most favorable loca-
tion in my judgment is determined, I am obliged to follow the
requirements of :Section II78-2o and hold a hearing on the pro-
posed relocation before certifying it as acceptable to the Com-
mission."
Section I I 78-20, General Code, in pertinent part provides :
"Before establishing any additional highways as part of the
state highways system, or making any changes in existing high-
ways comprising the state highway system, the director shall give
notice by publication in one newspaper of general circulation in
each of the counties in which the proposed highway to he estab-
lished is located or in which it is proposed to make such changes,
once each week for two successive weeks. Such notice shall state
the time and place of hearing, which hearing shall be held in the
county, or one of the counties, in which said proposed highway
or some part thereof is situated, or in which it is proposed to make
such changes, and w.hich hearing shall be open to the public and
which notice shall further state the route of the proposed highway
or the change proposed to be made in an existing highway of the
State highway system." (Emphasis added.)
In Opinion No. 26o6, Opinions of the Attorney General for 1928,
p. 2135, one of my predecessors had under consideration the provisions of
Section 1 I89, General Code, a prior statute analogous to Section I 178-20,
supra. This section contained the following provision relative to proposed
highway changes:
"* * * which notice shall further state the route of the pro-
posed inter-county h i ~ h w a y or main market road of the change
proposed to be made in an existing inter-county highway or main
market road."
The second paragraph of the syllabus in the I928 opinion, supra, is as
follows:
"2. Notices of a hearing to determine the advisalbility of a
change in location of a state highway must specify the change pro-
posed to be made and the director of highways accordingly has no
jurisdiction, subsequent to such hearing, to order the relocation in
a manner not specified in such notice."
The reasoning by which this conclusion was reached IS indicated by
the following language in the opinion (p. 2137):
"* * * You will note that the notice must contain a statement
ATTORNEY GENERAL
of the change proposed to be made in the ex1shng inter-county
highway or main market road. This, in my 01pinion, is a repre-
sentation to interested parties that this change alone is under con-
-templation. Accordingly, I do not feel that you would have
jurisdiction after a notice specifying a particular relocation, to
adopt some alternative plan without having a new hearing and
serving new notices thereof."
93
From the foregoing it would appear that the purpose of the hearing
provided in Section I !78-20, General Code, is to assist the director in
making two determinations. The first relates to the propriety of any relo-
cation at all, and the second to the propriety of the new location which
has been proposed.
Under the provisions of Section I2o6, General Code, it is clear that
as to state highway relocations made necessary by turnpike construction
the commission is authorized to act independently of the director, and with-
out compliance with the provisions as to notice and hearing in Section
II78-2o, General Code, in the matter of determining the necessity of a
removal of such highways from existing locations. The director retains,
however, by the clear provisions of this later enactment, the authority which
he had theretofore possessed to determine the location of such highway as
reconstructed. In this sense, therefore, Section I2o6, supra, does not confer
any new power on the director but imposes a limitation on the power which
had been previously conferred on him 'by a general statutory provision.
In the exercise of the power thus retained by the director, is there any
implication in the later enactment, Section I2o6, General Code, that the
provisions as to notice and hearing set out in Section r I78-2o, General
Code, are not to ,be applicaJble? If so, such implication must be found in
the fact that such later enactment is wholly silent on the subject. In any
event we are confronted with a situation in which a general statute is
worded in language sufficiently broad to apply to a relocation determination
by the director unless the language of a later statute is such as to render
it inapplicable. In short, the question is whether the later enactment effects
a repeal by implication of an express provision of the former.
On the matter of repeals by implication we find the following state-
ments in 37 Ohio Jurisprudence, 397, Section I 36:
"It is not sufficient in order to effect a repeal by implication,
that a later act is different from a former one, or that the subse-
quent statute covers some of the cases provided for by the former.
It must further a'ppear that the later act is contrary to, or incon-
94
OPJNIONS
sistent with, the former in order to justify the conclusion that the
first is so repealed. Moreover, difficulty in reconcilation does not
necessarily call for a repeal by implication. Except when an act
covers the entire subject-matter of earlier legislation, is complete
in itself, and is evidently intended to supersede the prior legislation
on the subject, it does not by implication repeal an earlier act on
the same sulbject, unless the two are so clearly inconsistent and
repugnant that they cannot, by a fair and reasonable construc-
tion, he reconciled and effect be given to both. If they can stand
together or if both can be enforced concurrently, there is no im-
plication of a repeal. Furthermore, it is essential to repeal by
implication that the repugnancy between the two statutes be irre-
concilable, or as expressed by the various courts, necessary, clear,
obvious, direct, strong, and absolute. The conflict must arise by
e:lQpress terms, not by inference or implication, unless the repeal
by implication is necessarily implied. Lastly, it is to rbe borne in
mind that the old statute is repealed only to the extent of the
irreconcilable repugnancy, and not necessarily in its entirety."
In Cincinnati v. Connor, 55 Ohio St., 82, the first paragraph of the
syllabus is as follows :
"\Vhere, in a code or system of laws relating to a particular
subject, a general policy is plainly declared, special proviSIOns
should, when possible, be given a construction which will bring
them in harmony with that policy."
See also State v. Bollenbacher, IOI Ohio St., 478.
It is ,true, of course, that the later enactment in this instance Is, m a
sense, special legislation while the earlier provisions of Section I I 78-20,
General Code, are general in their terms and application. However, it must
be remembered that special legislation will not be deemed to repeal general
statutory provisions merely because they are different. The rule in such
cases is stated in 37 Ohio Jurisprudence, 407, Section I48, as follows:
"It is well settled that a special law repeals an earlier general
law to the extent of an irreconcilable conflict between their pro-
visions; or, speaking more accurately, it operates to engraft on the
general statute an exception to the extent of the conflict. But such
a construction should be applied with caution, and, to have that
effect, the subsequent special act should 1be plainly irreconcilable
with the provisions of the prior general law; if the two acts are
not repugnant and effect may be given to both, no repeal by im-
plication will result. Moreover, even in the case of an irrecon-
cilable inconsistency, the general statute is not necessarily repealed
in its entirety, but only to the extlmt of such repugnanC'j'."
(Emphasis added.)
ATTORNEY GENEI<AL
95
In the case at hand the two statutes are clearly repugnant, and irre-
concilably so, only with respect to the authority under the general act, of
the director to determine the necessity for relocation. Just as clearly, there
is no repugnance whatever as to the authority of the director to select the
location in \Yhich the highway is to be reconstructed. Accordingly there
cannot rbe said to be any repugnancy between any of the provisions of Sec-
tion I206, General Code, and those provisions in Section I I78-2o, General
Code, relative to a notice and hearing to the extent applicable to the exer-
cise of the authority retained rby the director to determine the place of
relocation.
As pointed out 111 the I928 opinion, supra, with respect to a prior
analogous statute, the provision as to the notice is intended, in part, to
inform interested parties of the 'precise relocation ,proposed. It would appear
that such parties would be interested not only in the question of the pro-
priety of a removal from existing location, but in the place and extent of
the new location as well. As to the former, of course, the right to notice
< ~ n d hearing has been lost by reason of the transfer of authority to make
the determination from the director to the commission. As to the latter,
however, the interest of the public is such that it might well be the subject
of legislative protection. Such being the case, and the general provisions
of Section I r78-2o, supra, being clearly indicative of the general legisla-
tive policy, the subsequent special provisions in the turnpike act should. if
possible, "be given a construction which will !bring them in harmony with
that policy." Cincinnati v. Connor, supra.
For this reason, and because I perceive only a limited conflict between
the two statutes and deem it readily possible to give full effect to the later
enactment and partial effect to the former, I am impelled to conclude, in
specific answer to your inquiry, that the Director of Highways in making a
determination, under the provisions of Section r2o6, General Code, of the
most favorable location for the reconstruction of a state highway, the relo-
cation of which the Ohio Turnpike Commission has found to be necessary,
is required to comply with the provision as to notice and hearing with
respect thereto as set out in Section I qS-20, General Code.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPINIONS
I. INSURANCE, PUBLIC LIABILITY-COUNTY COMMIS-
SIONERS-NOT AUTHORIZED TO PUR C H A S E IN
ABSENCE OF STATUTE-TORT LIABILITY-'COUNTY OR
OFFICIALS.
2. CO::\B'liSSIONE'RS MAY LAWFULLY PAY PREMIUM ON
POLICY OF PUBLIC LIABILITY INSURANCE-SECTION
2408 GC IMPOSES LIABILITY UPON COMMISSIONERS
FOR DAMAGES, NEGLIGENCE, NOT KEEPING ROAD OR
BRIDGE IN PROPER REPAIR.
3. CO::\CviiSSIONERS MAY NOT PAY PREMIUM ON POLICY
OF PUBLIC LIABILITY INSURANCE COVERING COUNTY
OvVNED BUILDING-PARTLY OCCUPIED BY COUNTY
AGRICULTURAL AGENT AND VARIOUS FEDERAL AND
STATE AGENCIES-NO STATUTE TO IMPOSE TORT LIA-
BILITY UPON COMMISSIONERS FOR NEGLIGENT MAIN-
TENAXCE, COUNTY BUILDINGS.
SYLLABUS:
1. County commissioners are not authorized to purchase public liability insurance
in the absence of a statute imposing tort liability upon the county or its officials.
2. Inasmuch as Section 2408, General Code, imposes liability upon county com-
missioners for damages resulting from negligence in not keeping a road or bridge in
proper repair, the commissioners may lawfully pay the premium on a policy of public
liability insurance covering the same.
3. County commissioners may not .pay the premium on a policy of public liability
insurance coYcring a county-owned building occupied partly by a county agricultural
agent and Yarious federal and state agencies, since there is no statute imposing tort
liability upon county commissioners for the negligent maintenance of county buildings.
Columbus, Ohio, March 24, I953
Hon. Ray Bradford, Prosecuting Attorney
Clermont County, Batavia, Ohio
Dear Sir:
I have before me your request for my opinion which reads as follows:
"Your opinion is respectfully requested on questions involv-
ing the liability of the counties of the State of Ohio, under Sec-
tion 24o8 of the Ohio General Code.
ATTORNEY GENERAL
"I. Under Section 2408 of the General Code of Ohio, the
county, in certain situations is liable for negligence in maintenance
of roads and bridges.
"Question: Can the Board of County Commissioners con-
tract for and cause to be paid the premium on a policy of insur-
ance. issued by an insurance company, covering liability, under
Section 2408, General Code of Ohio?
''2. Counties generally are not liable for negligence in mainte-
nance of county public buildings. such as the court house and
county homes. J t is not clear from existing cases whethet that
liability exemption extends to other property owned by a county.
''Question: Can the Board of County Commissioners con-
tract for and cause to be paid the premiums on a policy of
insurance. issuecl by an insurance company, covering general
public liability, on a building owned by the county, part of which
is used for office space by the county agricultural agent, and the
balance of which is leased or rented to various offices of State
and Federal Government bureaus and agencies, the entire build-
ing being generally open to the public?
Section 2408, General Code, reads as follows :
"The board of county commissioners may sue and be sued,
plead and be impleaded in any court of judicature, bring, main-
tain and defend all suits in law or in equity, involving an injury
to any public, state or county road, bridge, ditch, drain or water-
course established by such board in its county, and for the pre-
vention of injury thereto. The board shall be liable in its official
capacity for damages received by reason of its negligence or
carelessness in not keeping any such road or bridge in proper
repair, and shall demand and receive, by suit or otherwise, any
real estate or interest therein, legal or equitable, belonging to the
county or any money or other property clue the county. The
money so recovered shall be paid into the treasury of the county,
and the board shall take the treasurer's receipt therefor and
tile it with the county auditor."
97
'(; nder this statute a recovery against the county commissioners in
their official capacity is permitted if a plaintiff received an injury proxi-
mately resulting from carelessness or negligence in failing to keep a road
or bridge in proper repair.
I direct your attention to the following language in Opinion No. 2995,
Opinions of the Attorney General for 1931, page 303:
"It has been the consistent holding of this office that the
premium on public liability insurance may lawfully be paid from
98
OPINIONS
public funds if there is a real liability to be insured against, but
if not, it is a sheer \Yaste of public funds to pay such premiums
and it is unlawful to expend those funds for the payment of
premiums on insurance against a liability that does not in fact
exist."
The opinion referred to held that by reason of the liability created
by Section 3298-17, General Code, boards of township trustees may law-
fully protect themselves against liability for damages by procuring liabil-
ity or property damage insurance upon township owned motor vehicles
and road building machinery while such vehicles are being operated in
furtherance of the official duties of said trustees.
This office has rendered a number of opinions over the past twenty-
five years dealing with the problem of county, township and municipal
:officials purchasing public liability insurance. A brief review of these
opinions would serve well to point up the law herein involved.
In Opinion No. 494, Opinions of the Attorney General for 1927,
page 814, it was held that county commissioners were unauthorized to
J)ay insurance premiums covering injury to persons caused by the negli-
gent operation of county-owned motor vehicles. At page 817 of the
opinions, reference was made to the fact that liability has been imposed
upon county commissioners by Section 2408, General Code, for negligent
upkeep of roads and bridges. After making this observation the then
Attorney General states :
"I find no statute, however, which permits recovery of clam-
ages from a county for an injury to persons or property caused by
the negligence of an agent or servant in the county in the opera-
tion of county owned motor vehicles."
In Opinion No. 5949, Opinions of the Attorney General for 1943,
at page 182, 1 find the following language:
''As is suggested in the letter, the real question for deter-
mination is whether the board of county commissioners would be
liable for da11wges and injuries sustained by persons attending
the various events which are performed in the Memorial Build-
ing. This question, I believe must be answered in the negative."
(Emphasis added.)
Opinion No. 48o, Opinions of the Attorney General for 1945, page
6o7, was concerned with the question of whether township trustees had
ATTORNEY GENERAL
99
legal authority to spend public funds in procuring insurance protecting
the township from liability for damages by reason of the death of or injury
to a fireman in the employ of such township. I direct your attention to
the following language at page 61 I :
"I think it proper to say that there appears to be no risk of
liability falling upon the township trustees in the case you pre-
sent, against which any insurance could lawfully be taken."
In Opinion No. 4122, Opinions of the Attorney General for 1948,
page s63, it was held that the trustees of a municipal library have author-
ity to procure liability insurance against possible liability created by
Section 3714-1, General Code, for injury or loss to persons or property
growing out of the operation of a bookmobile or other vehicle used on
the public highways of the state. The statute referred to imposes lia-
bility upon the city for the negligence of its agents, except policemen and
firemen in certain instances, in the operation of vehicles. The same
opinion held that no liability attaches to boards of trustees of county,
township, public school or county district libraries or to the political
subdivisions which create and support them for damages to persons or
property, growing out of the operation of bookmobiles, and accordingly,
said boards of trustees are without authority to procure liability insurance.
The distinction made between the case of municipal library trustees
and township library trustees was that in the case of the former, a statu-
tory liability existed, and hence the Attorney General found authorization
to protect against the liability by procuring liability insurance; but in the
case of township library trustees there was no statutory liability, and
hence by enjoying the common law tort immunity accorded public officers,
no authorization was found to purchase liability insurance.
Opinion No. 412, Opinions of the Attorney General for 1949, page
152, held that township trustees have no authority to pay premiums on a
liability insurance policy covering a town hall and surrounding property.
The following statement appears on page r 52:
"The fundamental question becomes 'is there a liabilit'v or
f'ossibi!ity of liability attaching under the law to township-s or
township trustees in connection with the ownership of a town hall
and surrounding property?' " (Emphasis added.)
The most recent opinion on the general subject is Opinion No. 803,
TOO OPINIONS
Opinions of the Attorney General for 1951, page 563, the third and fourth
paragraphs of the syllabus reading as follows:
"3. By virtue of Section 3714, General Code, a municipality
may incur liability to one \\ho suffers injury \\"hile using its
parks or playgrounds. where such in jury is caused by a nuisance
created or permitted to exist by the municipality or its employees.
"4. A municipality has authority to purchase insurance to
protect itself against such liability, and may pay for the same
out of public recreation funds."
It would appear, therefore, that the basic proposition is that where
tort liability may be asserted against a county or township because of
negligence, the county commissioners or the township trustees, as the
case may be, may legally expend public funds for the payment of liability
insurance premiums to an insurance company insuring the political unit
against tort liability.
Inasmuch as the board of county commissioners are liable in their
official capacity for the failure to keep roads and bridges established by
the county in proper repair, I am compelled to advise that they may law-
fully contract for and cause to be paid the premiums on policies of public
liability insurance covering such roads and bridges.
Your second question concerns the contracting for public liability
insurance on a county owned building, part of which serves as the office
of the county agricultural agent, and the balance of which is leased to
various state and federal government agencies.
The basic question involved in your request 1s whether tort liability
may be asserted against a county because of negligence in the maintenance
or operation of such a building.
At common law neither counties nor county commissioners are liable
for negligence. It follows, therefore, that liability, if any, must be im-
posed by statute. II Ohio Jurisprudence, 536; \Veiher v. Phillips, et a!.,
103 Ohio St., 249. I find no statute which would impose liability upon
county commissioners for negligent maintenance or operation of a building
housing offices such as you describe.
With the enactment of Section 9921-ra, General Code, in 1929, the
legislature provided for the employment by trustees of Ohio State Uni-
versity of "county extension agents, including agricultural agents * * *
ATTORNEY GENERAL
IOI
and such other employees as said trustees may deem necessary * * * and
provide for the payment of their reasonable compensation and expenses
incurred in the discharge of their duties, including the maintenance of
proper offices and equipment and supplies therefor, from said agricul-
tural extension fund." The duties of county extension agents, and hence
of agricultural agents, etc., are to render educational service to the farmers
concerning marketing, distribution and utilization of farm products. The
agricultural extension fund is comprised of funds from federal, state and
county treasuries. It would appear that a county extension agent or an
agricultural agent is engaged in a governmental function of great public
concern to the county and its inhabitants.
It is difficult to determine in what manner the county commissioners'
common law exemption from tort liability is affected by the fact that
federal and state bureaus and agencies rent a portion of the space in a
county owned building. For injuries sustained by the public while upon
leased premises, liability, if any, would rest upon the tenant. This general
rule is laid clown in the case of Burdick v. Cheadle, 26 Ohio St., 393
In specific answer to your questions, it is my opinion that:
I. County commissioners are not authorized to purchase public
liability insurance in the absence of a statute imposing tort liability upon
the county or its officials.
2. Inasmuch as Section 2408, General Code, imposes liability upon
county commissioners for damages resulting from negligence in not keep-
ing a road or bridge in proper repair, the commissioners may lawfully
pay the premium on a policy of public liability insurance covering the same.
3 County commissioners may not pay the premium on a policy of
public liability insurance covering a county-owned building occupied
partly by a county agricultural agent and various federal and state agencies,
since there is no statute imposing tort liability upon county commissioners
for the negligent maintenance of county buildings.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
102
OPINIONS
CHARTER-DUTY OF COUNCIL TO PROVIDE BY ORDI-
NANCE FOR SUBMISSION TO ELECTORS QUESTION OF
CHOOSING COMMISSION TO FRAYJ:E CHARTER-PETITION,
TEN PER CENTUM OF ELECTORS OF CITY FILED:-ARTICLE
XVIII, SECTION 8, CONSTITUTION OF OHIO-WHERE COUN-
CIL INITIATES ORDINANCE IN ABSE:-.JCE OF PETITION,
TWO-THIRDS VOTE OF MEMBERS OF COUNCIL REQUIRED.
SYLLABUS:
Where, under the provisions of Section 8, Article XVIII of the Constitution, a
petition of ten per centum of the electors of a city has been filed, requesting the council
thereof to .provide by ordinance for the submission to the electors of the question of
choosing a commission to frame a charter, it is the duty of the council to so provide.
In such case there is no requirement that such ordinance be passed by two-thirds of
the members of council, the requirement of a two-thirds vote being applicable only to
those situations where council itself initiates such ordinance in the absence of such a
petition.
Hon. Ted \ ~ T . Brown, Secretary of State
Columbus, Ohio
Dear Sir:
Columbus, Ohio, March 25, 1953
I am in receipt of your communication of recent date which, in effect,
requests my opinion as to whether, under the provisions of Section 8 of
Article XVIII of the Constitution, an ordinance passed by a city council
upon petition of ten per cent of the electors, providing for submission to
the electors of the question "shall a commission be chosen to frame a
charter" requires a two-thirds vote of the members of such council.
The specific question under consideration .is set out in a letter to you
from the Jefferson County Board of Elections which, in part, reads as
follows:
''The Jefferson County Board of Elections met in special
session wednesday, March 18, 1953. at 2:oop.m. At this meet-
ing the board was confronted with several inquiries relative to
the ordinance passed by the Steubenville City Council. Article
XVIII. section 8, of the Constitution of the State of Ohio states
that the ordinance establishing a charter form of government re-
ATTORNEY GENERAL
quires two-thirds vote of council. A certified copy of the ordi-
nance together with the minutes of the meeting were forwarded
to the board by the clerk of council and the minutes containing
the entire proceedings of that meeting. The vote was recorded
as four councilmen against and four in favor of the ordinance
and the president of the council cast the deciding vote. The
board feels that since the clerk of council submitted the minutes
of the meeting attached to the ordinance it should take cognizance
of the fact it wasn't passed by a hvo-thirds vote of council.
Therefore, the board is of the opinion that council should be
advised that the ordinance lacks the two-thirds vote of council
as set forth in the Constitution. * * * The board has checked the
petitions filed originally with the council containing 2,025 names
and has approved said petitions. The only question remaining
to be clarified is the lack of two-thirds vote of council on the
ordinance."
103
Section 8 of Article XVIII of the Ohio Constitution, m pertinent
part, reads as follows:
"The legislative authority of any city or village may by a
two-thirds vote of its members, and upon petition of ten per
centum of the electors shall forthwith, provide by ordinance for
the submission to the electors, of the question, 'Shall a commis-
sion be chosen to frame a charter'. The ordinance providing for
the submission of such question shall require that it be submitted
to the electors at the next regular municipal election if one shall
occur not less than sixty nor more than one hundred and twenty
clays after its passage; otherwise it shall provide for the submis-
sion of the question at a special election to be called and held
within the time aforesaid. * * *"
It will be noted that the above quoted language authorizes a city
council, by a two-thirds vote, to provide for the submission to the elec-
tors of the question of whether a commission should be chosen to frame
a charter, and compels the city council to submit such question upon peti-
tion of ten per centum of the electors.
I assume that since the "board has checked the petitions filed orig-
inally with the council containing 2025 names and has approved said
petitions," such petition contained the names of at least ten per cent
of the electors of such city. It is clear from the language of the Con-
stitution that upon the filing of a petirtion of ten per cent of the electors,
it becomes the mandatory duty of the city council to provide, by ordinance,
for the submission to the electors of the question of choosing a commis-
sion to frame a charter. Can it be said that a vote of two-thirds of the
I04
OPINIONS
members of council would be necessary m order to comply with this
mandatory duty? The plain language of the Constitution compels a negative
answer to this question.
It is quite clear, from the language of the Constitution, that the
requirement of a t\Yo-thirds vote of the members of council is applicable
only to a situation where the council, in the exercise of its own discretion,
determines to submit such question to the electors and that such require-
ment of a two-thirds vote is not applicable to a situation where, by the
filing of a petition of ten per cent of the electors, a mandatory duty is
imposed upon the council to submit such question.
This view, I believe, is fully supported by the decision of the Supreme
Court in the case of State, ex rei. MoCormick v. Fouts, 103 Ohio St., 345
The first paragraph of the syllabus of this case reads as follows:
"'\\.here a petition has been filed with the legislative author-
ity of a city praying the passage of an ordinance for submission
to the electors of the city of the question 'shall a commission be
chosen to frame a charter' and the legislative authority in fact
passes an ordinance by a two-thirds vote of its members, no in-
quiry may thereafter be made into the form, substance or suffi-
ciency of such petition."
I believe the following language from the opinion by Marshall, C.J.,
appearing at page 347, is particulat1ly pertinent:
"* * * By the provisions of Section 8, Article X VIII of the
Constitution, the city council has discretionary power to pass an
ordinance to submit the question of a charter to the people, and
the purpose of a petition of ten per cent. of the electors is to
compel such action. * * ~ , ,
If, as held by the Supreme Court in the Fouts case, it is not neces-
sary to make an inquiry into the sufficiency of the petition in case of a
two-thirds vote, it would follow that in the case where there is no question
as to the sufficiency of the petition, a two-thirds vote of the members of
council would not be required. This is true for the reason that the two-
thirds vote is only required where the council, by its own initiative, passes
such an ordinance.
In specific answer to your inquiry, it is my opinion that where, under
the provisions of Section 8, Article XVIII of the Constitution, a petition
of ten per centum of the electors of a city has been filed, requesting the
council thereof to provide by ordinance for the submission to the electors
ATTORNEY GENERAL
105
of the question of choosing a commission to frame a charter, it is the
duty of the council to so provide. In such case there is no requirement
that such ordinance be passed by two-thirds vote of the members of
council, the requirement of a two-thirds vote being applicable only to
those situations where counsel itself initiates such ordinance in the absence
of such a petition.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
).10TOR VEHICLES OWNED BY UNITED STATES, THIS
STATE, OR ANY POLITICAL SUBDIVISION OF STATE, OR
ANY MUNICIPALITY-DRIVERS, SECTION 6298-91 GC NOT
SUBJECT TO PROVISIONS OF MOTOR VEHICLE SAFETY
H.ESPONSIBILITY ACT-REQUIREMENT, REPORTING OF AC-
CIDENT, SECTION 6298-17 GC, AND DEPOSITING OF FINAN-
CIAL SECURITY-SECTIONS 6298-23 THROUGH 6298-41 GC.
SYLLABUS:
By virtue of the .provisions of Section 6298-91, General Code, dri,ers of motor
yehicles owned by the United' States, this state, or any political subdivision of this state,
or any municipality therein are not subject to the provisions of the :VIator Vehicle
Safety Responsibility Act requiring (1) the reporting of accidents, as provided by
Section 6298-17, General Code, and (2) the depositing of financial security, as provided
by Sections 6298-23 to 6298-41, inclusive, General Code.
Columbus, Ohio, :March 26, 1953
Hon. R. E. Foley, Registrar, Bureau of Motor Vehicles
Columbus, Ohio
Dear Sir:
I have before me your communication which, in effect, requests my
opinion as to whether, in view of the language of Section 6zg8-91, General
Code, the drivers of motor vehicles owned :by the United States, the state,
ro6 OPINIONS
a political subdivision of the state or a municipality who are involved in an
accident, as defined by the Motor Vehicle Safety Responsibility Act, while
driving such vehicle are required (I) to forward a written report of such
accident to the Registrar, as provided by Section 6298-I7, General Code,
and ( 2) to deposit with the Registrar the amount of security determined
by the Registrar, as provided by Sections 6298-23 to 6298-4I, General Code.
The ~ l o t o r Vehicle Safety Responsibility Act, Sections 6298-I to
6298-93, General Code, was enacted by the 99th General Assembly on May
24, 1951, to take effect on March I, 1953. In general, that portion of the
Act here under consideration requires that the driver (and in the event of
physical incapacity of the driver, the owner) of a motor vehicle involved
in an accident resulting in personal injury or death, or damage to the prop-
erty of one person in excess of $Ioo, shall file a written report of such
accident with the Registrar. It provides that the Registrar shall determine
the amount of security sufficient, in his judgment, to satisfy judgments
against the driver or owner resulting from such accident (with a maximum
requirement of $5,000 for bodily injury to or death of one person in one
accident, $ro,ooo for bodily injury to or death of two or more persons in
one accident, and $5,000 for property damage in one accident.) In making
this determination, the Registrar does not determine who was to blame for
the accident, his sole function being to appraise, in money, the damage or
injury resulting from the accident.
In case the driver or owner is not wholly covered by an insurance
policy or bond, failure to deposit the required security in money or bonds
of the Cnited States. the State of Ohio, or a political subdivision of the
State of Ohio results in suspension of the driver's license of such person
and the registration of all motor vehicles owned by such person, be he the
driver or the owner.
Other portions of the Act provide for the suspension of the registra-
tion of owners whose drivers' licenses are suspended by a court upon con-
viction of an offense enumerated in Section 62-17, General Code, and
for the suspension of both driver's license and registration upon failure
to satisfy certain judgments arising out of the ownership, maintenance or
use of a motor vehicle. For the purposes of this opinion, however, these
other portions of the Act need not concern us.
Section 6298-91, General Code, to which you have directed my atten-
tion, reads:
ATTORNEY GENERAL
"This act shall not apply with respect to any motor vehicle
owned by the United States, this state or any political subdivision
of this state or any municipality therein."
107
In view of the fact that the Act provides, in certain cases, for the sus-
pension of the registrations of motor vehicles, as well as the suspension of
drivers' licenses, for failure to deposit the required security, it becomes
readily apparent that fhe questions yvu present involve a consideration of
whether the albove quoted language has reference only to the application
of the Act to suspension of registrations, or has reference a:lso to the appli-
cation of the Act to the suspension of drivers' licenses and the requirement
of reporting accidents.
There certainly could be no dispute as to the fact that the language
of Section 6298-91 is ambiguous. It states that the Act, not just
certain sections of the Act but the entire Act, shall not apply with respect
to any motor vehicle owned by certain governmental units. It may be
argued that this language does not say that the Act does not apply to the
dri71ers of suC:h vehicles, but neither does it say that it shall not apply 'vith
respect to the owners of such vehicles.
A detailed consideration of all of the language of the Act, and a com-
parison of its specific provisions with those of somewhat similar acts in
force in other states, leads me to the conclusion that the driver of a govern-
ment vehicle is not required, by the terms of the Act, to comply with the
proYisions of Section 6298-17 or Sections 6298-23 to 6298-41, inclusive,
General Code. :-1y reasons for such conclusion follow.
I. The _-\ct does not purport to regulate motor vehicles per se. In-
stead, all of its provisions are directed at the drivers and owners of certain
111otor vehicles. The provisions of the Act relating generally to the nequire-
ments that a person deposit security following an accident, if he is not
already :protected by an insurance policy or bond, are contained in Sections
6298-23 to 6298-41, General Code. Section 6298-23, reads :
''The provisions of sections 6298-23 to 6298-41, inclusive,
shall apply to the driver and owner of any motor vehicle which
is in any manner involved in a motor vehicle accident within this
state." (Emphasis added.)
Note the use of the word "which" in the above quotation. The sentence,
as it stands, speaks of the motor vehicle itself as 1being "involved in a motor
vehicle accident." The requirements as to the deposit of security which
ro8 OPINIONS
follo1Y apply to the drivers and owners. Such requirements, ho11eyer. do
not come into play until we first find that a motor vehicle, within the
meaning of the Act, is involved in a motor vehicle accident. Section
6298-23, of course, is a part of "This act," as referred to in Section
6298-9r. Let us put the two sections together. They then would read:
''The provisions of sections 6298-23 to 6298-41, inclusiYe,
shall apply to the driver and owner of any motor vehicle >Yhich
is in any manner involved in a motor vehicle accident within this
state. This act (this section) shall not apply with respect to any
motor vehicle owned :by the United States, this state or any
political subdivision of this state or any municipality therein."
(Parenthetical matter added.)
_-\s these two sections are read in pari materia and so joined together,
I believe it clear that the exception as to government owned Yehicles in
Section 6298-91 necessarily applies to a "11wtor vehicle which is in any
manner involved in a motor vehicle accident within this state," as referred
to in Section 6 2 ~ - 2 3 . Thus, it would appear to .follow that neither the
clri1er nor the owner of a government owned motor vehicle would be a
''driver and owner of any motor vehicle which is in any manner imolved
in a motor vehicle accident" within the scope of the Act, and that neither
would be subject to the provisions of Sections 6298-23 to 6298-41 relative
to the requirement of depositing financial security.
2. Section 6298-29, General Code, provides, inter alia that the re-
quirements as to security shall not apply "To any police officer who 11hile
responding to an emergency call assumes custodianship of a motor yehicle
and is the driver thereof at the time of the accident." Since a police officer
driving a municipally owned police cruiser does not assu111e custodianship
of a motor vehicle, such vehicle !being assigned to him in the regular course
of his duties, it is clear that this provision was inserted into the Act in
order to relieve policemen from the requirements of depositing financial
security because of an accident while driving a privately owned vehicle
commandeered by such policemen. Could it be said that the General .\s-
sembly intended to exempt a policeman-driver from the requirements of
depositing financial security while driving a commandeered privately owned
vehicle, while at the same time requiring a policeman-driver of a mu-
nicipally owned police cruiser to make such deposit? I do not think so.
A.nd, yet, such would be the necessary result unless the policeman-driver
of a municipally owned motor vehicle is exempted from the requirements
ATTORNEY GENERAL 109
of depositing financial security by virtue of the prov1s1ons of Section
6298-91, even though by virtue of the provisions of Section 3714-1, Gen-
eral Code, such policeman would not be personally liable for injury, death
or property damage caused while engaged in the operation of such motor
vehicle in responding to an emergency call.
3 Section 625)8-92, General Code, permits any person in whose name
more than twenty-five motor vehicles are registered, with the approval of
the Registrar, to qualify as a self-insurer. This section authorizes the Regis-
trar to issue a certificate of self-insurance "upon the application of any
such person who is of sufficient financial a!bility to pay judgments obtained
agai11sf such person."
It will he noted that a self-insurer is not required, by the .provisions of
Section 6298-92, to guarantee the payment of judgments obtained against
the dri7cr of a motor vehicle owned by such self-insurer. And, yet, under
the provisions of Section 6298-27, both the driver and owner are relieved
from the requirements of depositing financial security "to the extent that
the owner of the motor vehicle at the time of the accident was a self -insurer."
The exemption of both the driver and the owner of a motor vehicle
owned by a self-insurer, even though the self-insurer is only required to
demonstrate sufficient financial aJbility to pay judgments dbtained against
himself, would indicate that the General Assembly considered the various
units of the government as being, in effect, self-insurers with sufficient
financial ability to take care of injury or damage caused by the operation
of their vehicles.
In reaching this conclusion, I am fully cognizant of the fact that not
all gonrnmental units are subject to suit for damages arising from the
operation of their motor vehicles. In the case of municipal corporations,
the provisions of Section 3714-1, General !Code, impose such liability, with
the exception of police and fire vehicles. In the case of counties, no
statutory liability is imposed, although under the provisions of Section
2412-3, General Code, the county commissioners are authorized to procure
policies of insurance insuring their officers and e111ployes against liability
occasioned by the operation of a county owned motor vehicle. In the case
of the state, the injured party is relegated to file a claim with the Sundry
Claims Board as provided by Section 270-6, General Code. Suits against
the Federal gov;ernment are specifically authorized by the Federal Tort
Liability Act.
ITO OPINIONS
Even though as to the state and counties the injured party may not
successfully maintain a suit, the General Assembly, by the enactment of
Section 6298-91, does not appear to have made any distinction between
the governmental units. All are placed in the same category.
4 In the State of Illinois, drivers of government vehicles are required
to deposit financial security. The Illinois act, however, does not contain
language similar to Section 6298-91. Instead, it provides that the penalties
for .failure to deposit security shall not apply "to such owner if the motor
,ehicle involved in such accident was owned by iihe United States. this
state, or any political subdivision of this or any municipality therein."
Smith-Hurd Illinois Annotated .Statutes, Section s8r (c) 7 The difference
between the language of the Illinois statute and the language of the Ohio
statute is quite apparent. If it were the intent of the General Assembly of
Ohio to exempt only the owners of government vehicles from the applica-
tion of the Act, it would seem that the language of the Illinois statute would
have been employed.
The ::VIinnesota act contains language almost identical to that of Sec-
tion 6298-9r. It reads:
"This act does not aprpl y with respect to any motor vehicle
owned and operated by the United States, this state or any political
subdivision of this state, or any municipality therein." (Minn.
Stat., 1945, Section r70.5I.)
The Attorney General of Minnesota, m Opinion No. 632-a-12, ren-
dered June 27, 1945, held that the act was applicable to drivers of govern-
ment owned vehicles. The Minnesota Supreme .Court, however, in the
case of City of St. Paul v. Hoffman, 223 Minn. 76, held:
"L. 1945, c. 285, Sec. 31 (Minn. St. 1945, Sec. 170.51), the
safety responsibility act, exempting motor vehicles owned and
operated by the United States, this state, any political subdivision
thereof, or any municipality therein from the application of the
act, must be construed to exclude the drivers of such vehicles from
suspension of their drivers' licenses under the provisions of the
act. * * *"
I quote from the opinion of Loring, C. J.:
''* * * The purpose of the act was to effect financial responsi-
bility to injured persons. The city is liable for injuries inflicted by
negligent acts performed in the discharge of its corporate or pro-
ATTORNEY GENERAL
prietary functions. (Citing cases) In cases involving the pro-
prietary functions of cities, it would be futile to require additional
security to the public. City employes are personally liable for their
negligence when engaged in the performance of the city's govern-
mental functions. (Citing cases) The city is authorized by statute,
but not required, to cover its employes against liability in such
cases. :\Jinn. St. 1945, Sec. 471.42, 471.43. It seems quite obvious
to us that Sec. 31 was inserted in the act to relieve municipalities,
and others that are exempted, from embarrassment in the per-
formance of their functions by finding the discharge of such func-
tions hampered by the lack of licensed drivers.
"If the law is to completely achieve its avowed purposes,
the legislature could either waive governmental immunity from
suit in negligence cases the United States has done in the Federal
Tort Claims Act (U.S.C. Public Law 601, Title IV, 79th Con-
gress, 28 USCA, Sec. 921) which the legislature could do not only
in behalf of the state but of cities and other governmental sub-
divisions, or it could require such municipalities or subdivisions to
cover their drivers with insurance. We therefore hold that the trial
court was right in holding the drivers of vehicles owned or oper-
ated by the city exempt from the provisions of the act."
I I I
It should be pointed out that the Minnesota act does not provide .for
the suspension of registration of any motor vehicles, but only subjects the
drivers and owners of such vehicles to loss of drivers' licenses. It may be
urged, therefore, that the Ohio Act could be distinquished and that a con-
clusion similar to that reached by the Minnesota 'Supreme Court should not
be follm,ed in Ohio.
Let us, however, compare the language of the Ohio Act with the State
of New York act. The New York act provides that :
''This article, except sections ninety-four f, * * * shall not
apply * * * to any motor vehicle owned by the United States, the
state or any political subdivision thereof." (McKinney's Con-
solidated Laws of New York, 62-A, Article 6A, Sec. 94ff.)
Section 94f. referred to in Section 94ff, contains language similar to that
of Section 6298-I 7 requiring the reporting of accidents. The New York
Attorney General, in 1942 Opinions of the Attorney General, page 241,
held that \Yhile by virtue of Section 94f drivers of government vehicles
were required to report accidents, by virtue of Section 94ff the other pro-
visions of the X ew York act did not a:pply to motor vehicles owned1by the
United States, the state or any political subdivision thereqf.
IT2 OPINIONS
Section 1277.33, Pennsylvania Statutes Annotated, contains identical
language to that of Section 6298-91. I am informed hy the office of the
Attorney General of Pennsylvania that while no opinions or court decisions
have been issued as to this matter, it is the administrative practice of the
Pennsylvania officials not to require the drivers of government owned
vehicles to deposit financial security.
As heretofore noted, it would seem that if the General Assembly 111-
tended to require the drivers of government vehicles to deposit financial
security, such purpose easily could have been accomplished by the use of
the language of the Illinois statute. The interpretation of language either
somewhat similar or identical to that of Ohio by the states of }dinnesota,
New York and Pennsylvania would seem to support the view previously
expressed that the Ohio Act does not require the drivers of such govern-
ment vehicles to deposit .financial security.
:l
I turn now to a discussion of whether drivers of such government
vehicles are required to report accidents under the terms of Section 6 2 ~ - 1 7 ,
General Code.
In this connection I should state that I have been informed by the
office of the Attorney General of Pennsylvania that it has been the admin-
istrative practice of that state to require such reporting. \Vithout regard
to whether such conclusion is or is not supported hy the Pennsyhania act,
I am unaible to reach the same conclusion as to the Ohio Act.
Section 6 2 ~ - 1 7 , like Section 6298-23, heretofore referred to, speaks
of the driver "of any motor vehicle which is in any manner involved in a
motor vehicle accident." I have previously concluded that by virtue of the
language of Section 6298-91, the provisions of Section 6298-23 would not
be applicable to the driver of a government owned vehicle. The same rea-
sons would apply equally to any interpretation of Section 6298-r;.
It should be pointed out that Section 6298-91, as originally introduced,
in addition to containing its present language, provided:
"* * * nor, except for sections 6 2 ~ - 1 7 and 6298-79, with
respect to any motor vehicle which is subject to the requirements
of sections 614-99 and 6q-1 15 of the General Code."
Sections 614-99 and 614-II5, General Code, have reference to certain motor
vehicles under the control of the Public Utilities Commission. It is clear,
ATTORNEY GENERAL 113
by the use of the words "except for sections 6298- I7 and 6298-79" that
the drivers of such vehicles would have been required to report accidents,
had such language been adopted, even though they would not have been
required to deposit financial security. In this respect the language would
have been somewhat similar to that of the State of New York, except that
no provision for reporting would have been made for drivers of govern-
ment ,-ehicles. It is clear, therefore, that the authors of the original bill
recognized that the broad language of Section 6z98-9I would exempt
clrinrs from reporting accidents unless it contained an exception as to
Section 6298-17. The statute, as adopted, contains no such exception.
\Vhile there would seem to be little question as to the desirability of
compelling drivers of government owned vehicles at least to report such
accidents, it does not appear that the General Assembly has done so by the
actual language employed. If it were the intention of the General Assembly
so to do, the language of the New York statutes stands as a model for
accomplishing such purpose.
:\nother consideration which leads me to this conclusion is the fact
that by virtue of Section 6298-85, General Code, the failure to report a
motor Yehicle accident may be punished lby a fine not to exceed $roo. Thus,
the failure to report is made a crime. It is fundamental that criminal
statutes must be strictly construed and that no person can be convicted for
the Yiolation of a criminal statute in the absence of a statute which, by
clear and unambiguous language, defines the crime.
In Yie\Y of the foregoing, I am impelled to the conclusion that by virtue
of the provisions of Section 6298-91, General Code, drivers of motor ve-
hicles O\med by the United States, this state, or any political subdivision
of this state, or any municipality therein are not subject to the provisions
of the :Motor Vehicle Safety Responsibility Act requiring (I) the reporting
of accidents, as provided by Section 6298-I7, General Code, and (2) the
depositing of 1financial security, as provided 1by Sections 6298-23 to 6298-41,
inclusive, General Code.
Very truly yours,
c. WILLIAM O'NEILL
Attorney General
IJ4
OPINIONS
r. TRUSTEES-AUT H 0 R I ZED TO GUARD
AGAINST OCCURRENCE OF FIRES-FURTHER AUTHOR-
IZED TO PROTECT PROPERTY AND LIVES AGAINST
DAMAGES AND AOCIDENTS-MAY ACQUIRE AND OPER-
ATE EMERGENCY VEHICLES OR "RESCUE CARS"-SEC-
TION 3298-54 GC.
2. TOWNSHIP TRUSTEES-MAY ENTER INTO AGREEMENT
vVITH VOLUNTEER FIRE COMPANY TO OPERATE ANY
SUCH EQUIPMENT AS TOWNSHIP AUTHORIZED TO
OPERATE-PROTECTION AGAINST FIRES, DAMAGES
AND ACCIDENTS.
SYLLABUS:
I. Under the provisions of Section 3298-54, General Code, township trustees, in
addition to being authorized to guard a.gainst the occurrence of fires, are further au-
thorized to pmtect property and lives against damages and accidents; and under such
authority may acquire and operate emergency vehicles or "rescue cars" for such pur-
poses.
2. Township trustees may enter into an agreement with a volunteer fire company
for the operation of any such equipment as the township itself is authorized to operate,
designed to protect against fires, damages and accidents.
Columbus, Ohio, March 26, 1953
Hon. Harry Friberg, Prosecuting Attorney
Lucas County, Toledo, Ohio
Dear Sir:
I have before me your request for my opinion which !'eads as follows:
"For many years there has been discussed in Lucas County
(and no doubt in other parts of the state) the right of Volunteer
Fire Departments to use township equipment for the purpose of
driving to the scene of accidents and assisting injured persons in
cases that did not involve fires. It has always been my opinion
that such use of township property was improper. Since the
amendment of the first paragraph of General Code 3298-54 it
has been contended by many volunteer fire officials that such sen-
ice is now authorized.
"In order to clear up any doubt, will you kindly giYe me
your opinion on the following:
ATTORNEY GENERAL
'' r. i\'Iay volunteer fire departments lawfully use township
'rescue cars' to drive to the scene of highway accidents in order
to assist injured persons where no fire is involved?
"2. If the answer to question No. I is in the affirmative,
may injured persons be lawfully driven to hospitals in township
owned rescue cars?"
The portion of Section 3298-54, General Code, material to this opin-
ion, reads as follows:
"'Township trustees may estabiish all necessary regulations
to guard against the occurrence of fires, protect the property and
lives of the citizens against damages and accidents and may, with
the approval of the specifications by the county prosecuting at-
torney, purchase or otherwise provide such fire apparatus, or me-
chanical resuscitators, or other equipment, appliances, materials,
fire hydrants and such water supp'ly for fire fighting purposes as
may seem to the trustees to be advisable. in which event they shall
provide for the care and maintenance thereof. and, for such pur-
r-oses, may purchase, lease or construct and maintain necessary
buildings * * *. Such township trustees may employ one or more
persons to maintain and operate fire fighting equipment; or they
may enter into m ~ agreement with a volunteer fire company for
the use and operatio11 of such equip111e11t.'' (Emphasis added.)
Does this statute permit volunteer fire departments to use township
"rescue cars" to drive to the scenes of highway accidents in order to
assist injured persons where no fire is involved?
Undoubtedly, the statute is prima,rily concerned with the guarding
against the occurrence of fires. Yet it must be conceded that the township
trustees may establish regurlations to "protect the property and lives of
the citizens against damages and accidents," and "damages and accidents"
are not limited to those caused by fire.
Prior to the enactment of Section 3298-54, General Code, in its present
form in I95I, 124 Ohio Laws, 397, it commenced as follows:
"Township trustees may establish all necessary regulations
to guard against the occurrence of fi.res, protect the property
and lives of the citizens against damages and accidents resulting
therefrom * * *.'' 108 Ohio Laws, Pt. II, I r 52. (Emphasis aclclecl.)
It will be observed that the township trustees under the earlier version
of the statute had no opportunity to establish regulations except in so far
as the damages or accidents result from fire. The statute reads this way
II6 OPINIONS
from 1920 to 195 r when, as already noted, the words "resulting therefrom"
were dropped.
In more recent years the activities of fire departments and fire com-
panies have expanded. Under the 1920 statute township trustees were
authorized to purchase "such fire apparatus and appliances as may seem
* * *advisable." See ro8 Ohio Laws, Pt. II, 1152.
The statute in 1951 authorizes purchase of "such fire apparatus or
mechanical resuscitators, or other equipment, appliances, materials, fire
hydrants and such water supply for fire fighting purposes as may seem
* * *advisable." Fire departments today, through their emergency squads,
attend to a great variety of mishaps. A record of an average day's "runs"
may well include a rescue from drowning, resuscitation of persons over-
come by gas fumes, aiding persons who have fallen from ladders, etc. In
short, I am of the opinion that township trustees have authority, by and
with the approval of the prosecuting attorney, to purchase "rescue cars"
for the township. If it be objected that "rescue cars" are not specifically
mentioned in the statute, it might be noted that "fire engines" are not
specified either, and yet it has never been questioned that the township
trustees might purchase fire trucks under Section 3298-54, General Code.
It is true that fire trucks are used to fight fires, while rescue cars with
their pulmotors and other equipment are not necessarily designed for
ftghting fires, but instead are most often used in instances of emergencies
not involving fires.
A strictly narrow and literal interpretation of Section 3298-54, Gen-
eral Code, might exclude the purchase of "rescue cars" as not falling
within the definition of "fire apparatus * * * or other equipment * * * for
fire fighting purposes." Yet the legislature was undoubtedly concerned
with apparatus or equipment for emergency purposes, i.e., instances of
injuries and accidents suffered by citizens. The 'legislature meant to au-
thorize the purchase of more than fire trucks and fire hydrants, as is
manifest from the inclusion of mechanical resuscitators in the enumera-
tion.
If township trustees may purchase "rescue cars" for the township, it
would seem to follow that they may enter into an agreement with a
volunteer fire company for the use and operation of the "rescue cars"
which would include driving the cars to the scenes of highway accidents
in order to assist injured persons where no fire is involved.
ATTORNEY GENERAL II/
The trustees are authorized by Section 3298-54, General Code, to
employ one or more persons to maintain and operate "fire fighting equip-
ment" or they may enter into an agreement with the volunteer fire com-
pany for the operation of such equipment. The meaning of the term
"fire fighting equipment" is more readily ascertained by reading it with
the other portions of the statute which comprise a unified scheme or
purpose. The sentence of the statute immediately preceding the term
and quoted earlier in this opinion, after authorizing township trustees to
establish necessary regulations to guard against fires and protect the prop-
erty and lives of the citizens against accidents, further authorizes the
purchase of "fire appa;ratus, or mechanical resuscitators, or other equip-
ment." The purpose of Section 3298-54, General Code, being to protect
the citizenry against fires and accidents, and the township trustees having
been authorized to implement this purpose by purchasing the equipment
they deem advisable, it would appear that the trustees may enter into an
agreement with a volunteer fi.re company to operate any or all of this
equipment.
Thus, the term "fire fighting equipment" as used in that portion
of the statute pertaining to an agreement with a volunteer fire company
takes on a more liberal or enlarged meaning than that usually accorded
the term when it stands alone and isolated from any context such as is
present in the instant case.
It has been the modern trend to give legislation enacted for the public
safety a liberal interpretation in favor of its objectives. See Sutherland,
Statutory Construction, 3rd Ed., Section 7204.
In Opinion No. 92, Informal Opinions of the Attorney General
for 1946, page 214, it was held that township trustees may purchase and
maintain an inhalator and permit it to be operated by a township volunteer
fire company under Section 3298-54, General Code, as it read at that time.
In 1946 the statute did not even contain a reference to mechanical resas-
citators, \vhich are for all intents and purposes synonymous with pul-
motors or inhalators which mean oxygen tanks used to pump oxygen into
the lungs for resuscitation.
It was stressed in the 1946 opmwn that Section 3298-54, General
Code, is not confined to protecting property, but also extends to protect-
ing the lives of citizens against damages and accidents "resulting from
fires."
liS OPINIONS
Since I946, as already mentioned, the legislature saw fit to amend
the statute by removing the words "resulting therefrom" which referred
to accidents caused by fire, thus opening the door to protecting the lives
of citizens against all kinds of accidents.
As to your second question, I fail to see any legal distinction to be
drawn between driving the "rescue car" to the scene of the highway acci-
dent in order to assist injured persons where no fire is involved and driving
the injured persons to hospitals in the "rescue car."
In conclusion, it is my opinion that :
I. Under the provisions of Section 3298-54, General Code, township
trustees, in addition to being authorized to guard against the occurrence
of fires, are further authorized to protect property and lives against dam-
ages and accidents; and under such authority may acquire and operate
emergency vehicles or "rescue cars" for such purposes.
2. Township trustees may enter into an agreement with a volunteer
fire company for the operation of any such equipment as the township
itself is authorized to operate, designed to protect against fires, damages
and accidents.
2422
Respectfully,
c. WILLIAM O'NEILL
Attorney General
LIQUOR CONTROL, BOARD OF-AN AGENCY, SECTION
I54-62GC-:.1AY IN REASONABIJE EXERCISE OF DISCRETION
DETERMINE THE DATE, TIME AND PLACE OF EACH AD-
JUDICATION HEARING REQUIRED BY EITHER THE ADMIN-
ISTRATIVE PROCEIDURE ACT OR OHIO LIQUOR CONTROL
ACT-SECTIONS I54-62 ET SEQ., 6o64-1 ET SEQ., GC.
SYLLABUS:
The board of liquor control, being an "agency" as defined in Section 154-62, Gen-
eral Code, may, in the reasonable exercise of its discretion, determine the date, time
and place of each adjudication hearing required under the provisions of either the
administrati,e procedure act (Section 154-62, et seq., General Code) or the Ohio
liquor control act (Section 6064-1, et seq., General Code).
ATTORNEY GENERAL
II9
Columbus, Ohio, :March 27, 1953
Hon. A. A. Rutkowski, Director
Department of Liquor Control
Columbus, Ohio
Dear Sir:
I have for consideration an mqUJry addressed to me by your prede-
cessor, as follows:
"I haye been asked by the members of the Board of Liquor
Control to submit to you the question ,,hether the Board in its
official capacity has the right to hear cases in any other city than
Columbus, Ohio.
''It has been the practice of the Board to schedule and conduct
hearings in the larger centers of population in this state, thus
saving time and money for those who otherwise would have to
travel to 'Columbus to take pa-rt in cases before the Board. The
legality of the Board sitting in Cleveland, Cincinnati, Toledo and
other cities has been questioned and therefore I have been re-
quested to ask your opinion whether the Board has the authority
to sit in any city other than Columbus, Ohio, in its official de-
liberations."
In Section 154-62, General Code, we find the following definition of
"agency":
" 'Agency' 11/eans and includes, except as hereinafter limited,
any official, board or commission havi11g authority to promulgate
rules or make adjudications in the bureau of unemployment com-
pensation, the state civil service commission, the department of
industrial relations, the depart111ent of liquor control, the depart-
ment of taxation, the industrial commission, the functions of any
admini-strative or executive officer, department, division, bureau,
board or commission of the government of the state of Ohio
specifically made subject to the provisions of the administrative
procedure act, and the licensing functions of any administrative
or executive officer, department, division, bureau, board or com-
mission of the government of the state of Ohio having the author-
ity or responsibility of issuing, suspending, revoking or cancelling
licenses. * * *" (Emphasis added.)
In subparagraph I of Section 6064-3, General Code, we find that the
board of liquor control is authorized "to adopt and promulgate, repeal,
120 OPINIONS
rescind and amend, in the manner herein required, rules, regulations,
standards, and orders necessary to carry out the provisions of the liquor
control act." Under the third subparagraph of this section the board
determines certain appeals from orders of the department, and complaints
seeking the revocation of permits issued under authority of the liquor
control act. In view of these provisions it is abundantly plain that the
board is an "agency" within the definition of Section 154-62, supra, and
it must necessarily follow that the remaining general provisions of the
administrative procedure act, Sections 154-62 to 154-74, General Code,
are applicable to the proceedings of the board except to the extent that
conflicting special provisions are found in the liquor control act.
On the subject of the place at which an agency may conduct hearings
the following provisions are found in Section 154-69, General Code:
"The date, time and place of each adjudication hearing re-
quired by this act shall be determined by the agrncy. However,
if requested by the party, in writing, the agency may in its dis-
cretion designate as the place of hearing the county seat of the
county wherein such person resides or a place within fifty miles
of such person's residence." (Emphasis added.)
Because I find no special provision in the liquor control act which is
111 any way in conflict with the language just quoted, I am impelled to
conclude that this provision relative to administrative agencies generally
IS applicable to the board.
A word is perhaps in order regarding the peculiar language in Sec-
tion 154-69, supra, which in the first sentence provides for the exercise
of an unlimited discretion by the agency in the matter of determining
the place of a hearing, and in the second sentence attempts to "add" to
such descretion in special circumstances. I am unable to perceive how
anything can be added to an authorization as broad as that set out in the
first sentence of this section, and since the second sentence does not pur-
port to constitute a limitation on such authorization, I am unable to per-
ceive how any effect can be given to it.
Accordingly, in specific answer to your inquiry, it is my opinion that
the board of liquor control, being an "agency" as defined in Section 154-62,
General Code, may, in the reasonable exercise of its discretion, determine
the date, time and place of each adjudication hearing require! under the
ATTORNEY GENERAL 121
provisions of either the administratiYe procedure act, Section 154-62,
et seq,. General Code, or the Ohio liquor control act, Section 6o64-1,
et seq., General Code.
2426
Respectful! y,
c. \VJLL1AM O'NEILL
Attorney General
AID TO DEPEKDENT CHILDREN LA \V-PROVISIONS OF
SEICTION 1639-47 GC MANDATORY-PAYMENT OF FUNDS
UNDER SECTION MADE BY JUVENILE JUDGE-DUTY OF
COUNTY TO MAKE PAYMENT IN ACCORDANCE WITH
STATUTE-NO EXCEPTION WHERE AID TO DEPENDENT
CHILDREN IS CURREKTL Y EXTENDED UNDER SECTION
1359-31 ET SEQ., GC.
SYLLABUS:
The provisions of Section 1639-47, General Code, are mandatory and where an
order for the payment of funds under the provisions of this section is made by the
juvenile judge, it becomes the duty of ~ h e county to make payment in accordance
therewith without regard to the fact that aid to the dependent children concerned is
currently being extended under the .proyisions of Section 1359-31, et seq., General Code.
Columbus, Ohio, March 30, 1953
Ron. Charles vV. Ayers, Prosecuting Attorney
Knox County, Mount Vernon, Ohio
Dear Sir:
Your request for my opinion reads as follows :
"On March j. 1953, in the Juvenile Court of Knox County,
Ohio, a father of four minor children was sentenced to the Co-
lumbus \Vorkhouse for one year under Ohio General Code Sec-
tion 1639-46 for failure or neglect to support his minor children.
These same children ha Ye been and will continue receiving aiel
for dependent children from Knox County.
"Ohio General Code Section 1639-47 provides that when an
122 OPJNIONS
adult is sentenced under Section 1639-46 the County shall pay
fifty cents for each day said prisoner is confined for the mainte-
nance of the dependent children of such prisoner.
"I submit the following two questions for your opinion:
"J. Is the fifty cent provision mandatory in Ohio General
Code Section 1639-47?
"2. If the children of such prisoner, ,,ho has been sentenced
under Ohio General Code Section 1639-47, are receiving A DC
from the county from which such prisoner is sentenced, is it
mandatory for the county to make additional payment of fifty
cents per day under Section 1639-47 of the Ohio General Code?"
Section 1639-47, General Code, to which you refer, reads as follows:
"V/hen an adult is convicted and sentenced to imprisonment
in a jail or workhouse for any violation of the provisions of the
next preceding section, the county from which such person is so
sentenced, on the order of the judge, shall pay f.rom the general
revenue fund fifty cents, for each day such prisoner is confined,
to the juvenile court of such county, for the maintenance of the
dependent children of such prisoner. Such expenditures shall
be made under the direction of the judge, who shall designate an
employe for such purpose. The county commissioners of such
county sh<rll make an appropriation for such cases, and allow-
ances therefrom shall be paid from the county treasury upon the
warrant of the county auditor."
In 37 Ohio Jurisprudence, 326, Section 29, it is said:
" '-:\[ ust' is a stronger word to indicate an intention that the
provision is mandatory than the word 'shall' and it is accordingly
so interpreted, except where the inter:tion of the legislature, as
gathered from the entire act, appears to be otherwise. But even
the use of the word 'shall' is usually interpreted to make the pro-
vision in which it is contained mandatory, especiaNy if frequently
repeated * * *." (Emphasis added.)
In the per curiam opinion 111 Railway v. Brescia, roo Ohio St., 267,
we find the following statement at page 270:
'"The legislature in the wording of these t\YO sections used
the verb 'shall' nineteen times and the language is as mandatory
as it could select, and it specifically required of the commission
that it exercise its judgment as to the competency of each person
selected. To hold that the selection of a jury as this jury was
selected is a substantial compliance with the law is to nullify its
every provision, for if the commission can ignore as many of its
ATTORNEY GENERAL
essential provisions as it here ignored, it can ignore them all and
inaugurate a system all its own."
123
The repeated use of the word "shall" m Section, 1639-47, supra,
would rather clearly indicate the legislative intent that the provisions
therein enacted are to be mandatory.
It may be helpful to point out that this apparently mandatory pro-
vision was enacted as early as 1908, 99 Ohio Laws, r and prior to 1937
was codified in Section 1656, Genera'! Code. In 1937 this section was
reenacted as Section 1639-47, General Code, in Amended Senate Bill No.
26S, 117 Ohio Laws, 520, the title of which act is as follows:
''To revise, consolidate and codify the juveniie laws of the
state of Ohio by enacting sections 1639-1 to 1639-60, General
Code, inclusive; and to repeal sections 1639 to 1683-1, inclusive,
of the General Code <Jf Ohio, relating to minor children."
Prior to this "codification" the General Assembly, in 1936, enacted
House Bill No. 610, n6 Ohio Laws, Pt. II, rSS, the title of which reads:
"To conform the plan of the State of Ohio for aid to de-
pendent children to the requirements of title IV of the act of
congress of the United States, appr-oved August 14, 1935, and
known and styled as the 'Socia:! Security Act' in order to obtain
the federal aiel provided by said act and for such purpose to re-
peal sections 1683-2 to 16S3-10, both inclusive, of the General
Code. and to declare an emergency."
This act was codified, by the Attorney General, as Sections 1359-31
to 1359-45, inclusive, General Code, and is commonly known as the "Aid
to Dependent Children Law." In general this statute provides for the
extension of financia-l aid to dependent children from funds raised by
taxa-tion at the county level and sums made available by appropriation by
the General Assembly both from state funds and from federal grants
in aiel to the state. The plan in general is administered by the state de-
partment <Jf public welfare under a "state plan" which is subject to ap-
proval of the federal social security board. In short, a comprehensive
:plan for the support of all dependent children of the state was intended
to be established by this act.
It is significant, however, that the legislature in providing for the
establishment of such a plan failed to disturb the mandatory provisions
of Section 1639-47, supra. It must be presumed, of course, that the
124
OPINIONS
General Assembly legislated in this matter with full knowledge of cur-
rently existing statutory provisions on the same subject and the new
enactments are thus to be interpreted in pari materia with those previously
existing. See 37 Ohio Jurisprudence, 594, Section 33 I. It must be re-
membered, however, .that repeals by implication are not favored and that
unless two statutes relating to the same subject are clearly irreconcilable,
a repea:l by implication will not result. 37 Ohio Jurisprudence, 397,
Section 136.
In the instant case there is clearly an inconsistency between the two
statutes to the extent that they are mutually duplicate. This inconsistency
is by no means irreconcilable, however, and it cannot therefore be sup-
posed to effect a repeal by implication of Section 1639-47, General Code,
especially in view of the reenactment of such section after the original
enactment of the so-called aid to dependent children law. It may be
pointed out, with respect to the duplicative effect just mentioned, that
under the provisions of Section 1359-33, General Code, the amount of
aid payable in respect to any child is to be determined on the basis of
actual need, and i.t can be anticipated, therefore, that such actual need
will be determined with regard to such payments as are made pursuant
to Section 1639-47, General Code.
Accordingly, in specific answer to your inquiry, it is my opinion that
the provisions of Section 1639-47, General Code, are mandatory and where
an order for the payment of funds under the provisions of this section
is made by the juvenile judge, it becomes the duty of the county to make
payment in accordance therewith without regard to the fact that aid to
the dependent children concerned is currently being extended under the
provisions of Section 1359-31, et seq., General Code.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
1. COURTS-COiviPENSATION OF JUDGES AND
CLERKS-AMOUNTS PAYABLE MONTHLY TO COUNTY
LA 'V LIBRARY ASSOCIATION - SECTIONS 1591, r6ro,
3056 GC.
2. AUTHORITY OF MUNICIPAL COURT-SECTION 11728
GC DOES NOT LIMIT ESTABLISHMENT OF SCHEDULE
FEES AND COSTS AUTHORIZED IN SECTION r6o5 GC-
OPINION 82o OAG 1939, PAGE 93, DISTINGUISHED.
SYLLABUS:
1. The compensation of judges and clerks of municipal courts for which provision
is made in Sections 1591 and 1610, General Code, should be taken into account in the
determination, as .provided in Section 3056, General Code, of the amounts payable
monthly to a county law library association.
2. The provisions of Section 11728, General Code, do not limit the authority of a
municipal court to establish a schedule of fees and costs as authorized in Section 1605,
General Code. Opinion No. 82, Opinions of the Attorney General for 1939, p. 93,
distinguished.
Columbus, Ohio, April 2, 1953
Bureau of Inspection and Supervision of Public Offices
Columbus, Ohio
Gentlemen:
Your request for my opinion reads as follows:
''Two questions have arisen in connection with the examina-
tion of the accounts and records of the Municipal Court of Z ..
Ohio.
"Section 3056 of the General Code provides in part as follows:
"'All monies collected by a municipal corporation, accruing
from fines, penalties, forfeited deposits or forfeited bail bonds or
forfeited recognizances taken for appearances :by a municipal
court, police court or mayor's court for offenses and misdemeanors
brought for prosecution in the name of a municipality under a
penal ordinance thereof, where there is in force a state statute
under which the offense might be prosecuted, or prosecuted in the
name of the state, except a portion thereof, which plus all costs
collected monthly in such state cases, equals the compensation
allowed b)' count}' commissioners to the judges of the municipal
126 OPINIONS
court presiding in police court, clerk and prosecuting attorney of
such court in state cases, shall be retained by the clerk of such
municipal, police or mayor's court, and be paid by him forth,,ith
each month to the trustees of such law library association in the
county in which such municipal corporation is located * * *.'
"Under the provisions of the above quoted section, it has been
the practice to deduct the amount of the compensation allowed
to the police judges, the clerk and the prosecuting attorney 1by the
county commissioners, from the amount of the costs, fines and
forfeitures collected in ordinary state cases, each month, and to
remit the balance of the ordinary state fines and forfeitures to the
law library association, each month, until the full amount allotted
iby the county auditor has been paid.
"Section 1591 of the General Code, effective on January I,
1952 (Municipal Court Act), provides, in part, as follows:
"'The compensation of municipal judges shall be paid in
semi-monthly installments, three-fifths of said amount being pay-
able from the city treasury and two-fifths of such amount being
payable from the treasury of the county in which such city is
located.'
"Section r6IO of the General Code provides, in part, as fol-
lows, referring to the compensation of the municipal court clerk:
"'Such compensation shall be payable, in semi-monthly in-
stallments, from the same sources and in t:he same manner as pro-
vided in Section I 591 of the General Code.'
"Section 1613 provides that the city solicitor, city attorney or
director of law, acting as prosecutor in the municipal court, or his
assistants, shall receive for such services additional compensation
as the board of county commissioners may prescribe to be paid
from the county treasury.
"The question in this connection is as follows:
"Shall the Clerk of the Municipal Court, before making pay-
ment of ordinary state .fines and forfeitures, each month, to the
law library association, deduct the total of the monthly salaries
paid by the county to the police judges, the clerk of court and
police prosecutor, and remit same to the county treasurer to re-
imburse the county, before paying any amount of ordinary state
fines and forfeitures to the law library association, or should the
clerk of the court remit the entire amount of the fines and for-
fei.tures in ordinary state cases, each month, without making any
deduction for the monthly salaries of the police judges, the clerk
of court and the police prosecutor?
"It will ibe noted that the county commissioners were previ-
ously allowed to :pay part of the salaries of these officers of the
ATTORNEY GENERAL
municipal court, out now they are required to pay two-fifths of
the salaries of the police judges and the clerk of court, and may
pay part of the salary of the police prosecutor.
"The second question .pertains to fees chargeable hy the clerk
of court in trusteeship cases.
"Cnder the provisions of Seeton II/28-I of the General
Code, it has <been held that the clerk of the municipal court is
limited to a charge of two per cent of the amount paid in on each
trusteeship, as fees of the court for handling such trusteeships.
"Under the provisions of Section 16o5 of the General Code,
Section (A), the municipal court, by rule, may establish a sched-
ule of fees and costs to be taxed in an:v action or proceeding,
either civil or criminal, which in no case shall exceed the fees and
costs provided oy law for a similar action or proceeding in the
court of common pleas.
"Under the provisions of this section 16os, General Code, the
court in Z. has established a fee of $;.so for the original filing of
a trustee account, and also charges two per cent of all moneys
handled, which is computed and charged each time distributions
are made to the various creditors.
;;The question that arises, in this connection, is as follows:
"Cnder the provisions of Section I6oS, General Code, can
the :-runicipal Court of Z. collect the $;.so schedule of costs upon
the filing of a trusteeship account in such court, and in addition
thereto charge the two percent of monies handled in the account,
provided for by Section rr;28-1?
;'Your consideration of these two questions involving the
operation of the new :Municipal Court Act will be greatly appre-
ciated."
127
In your inquiry you have quoted the initial portion of the first para-
graph of Section 3058, General Code. Because this paragraph is couched
in somewhat awkward language, it is somewhat ambiguous unless exam-
ined in its entirety. Accordingly we may note that this paragraph continues
in the following language:
"* * * but the sum so retained and paid by the clerk of said
municipal, police, or mayor's court to the trustees of such law
library association shall in no month he less than 25% of the
monies arising from such fines, penalties, and forfeited deposits,
forfeited !bail bonds and forfeited recognizances, taken for appear-
ances, in that month, without deducting the amount of the allow-
ance of the county commissioners to said judge, clerk and prose-
cutor."
128 OPINIONS
It will be seen that this paragraph consists of a single long and in-
volved sentence the meaning of which is not readily clear. Nevertheless,
by considering this paragraph in its entirety it becomes possible to ascertain
that it provides for the following:
I. The retention 'by the municipal officer concerned of a portion of
the funds collected as fines, penalties, etc., in (a) state cases, and in (b)
ordinance cases where prosecution could have been made under a state law,
the funds so retained to be paid to the law library association.
2. In determining the amount to be so retained and paid to the library
association there is to be deducted from the fines, etc., "accruing * * * for
offenses * * * prosecuted in the name of the state," a sum which, plus the
sums collected as costs in such state cases, is equal to the "compensation
allowed .by county commissioners to the judges of the municipal court pre-
siding in police court, clerk and prosecuting attorney of such court in state
cases," such deduction to be subject to the proviso that the payments
monthly to the library association shall not be less than 25% of such funds
so collected each month.
Although this statute does not contain any express provision relative
to the disposition of sums thus deducted from funds accruing from the
prosecution of state cases, it appears fairly evident that the sums thus
remaining in the municipal officer's custody were to he made available
eventually, whether directly or indirectly, to meet the county's obligation
to the several court officers concerned with respect to the compensation
allowed them by the county commissioners. Whether such sums are dis-
bursed directly to the ultimate beneficiaries or whether paid into the county
treasury and then disbursed to such beneficiaries would appear to be a
matter of no moment so long as credit is given the county in the final
accounting with respect to its obligation to pay the allowances made 1by
the commissioners.
What is clearly evident, however, with respect to the funds thus de-
ducted from the aggregate of funds arising in state cases, is that they
should be withheld from the computation of the amounts due the library
association, subject, of course, to the "25% monthly minimum" provision
above noted.
One of the effects of thus withholding these sums from this computa-
tion is that the payments to the library association will he made up, to a
relatively greater extent than would otherwise be the case, of those funds
ATTORNEY GENERAL 129
accruing from the prosecution of ordinance cases which could have been
prosecuted under a state law. Thus it would appear to he the legislative
intent to insure a contribution to the library association by the municipal
corporation which is to some extent related to the county's contribution to
the ex,pense of operating the court, and this I deem to be the purpose of
this provision in the statute.
As you have pointed out, the "allowance" of funds from the county
treasury for a portion of the compensation of municipal court judges
and clerks is now fixed by law, the county's share thereof being two-
fifths of the amount so fixed. In the case of the prosecutor and his
assistants, however, the compensation received from the county treasury
is such "as the board of county commissioners may prescribe." The
precise question thus raised is whether that part of the compensation
received by the judges and clerks from the county .treasury is "aHowed
by the county commissioners" within the meaning of Section 3056, Gen-
eral Code.
Provision for the allowance of claims by the county comtmsswners
is found in Section 2400, General Code, as follows:
"X o claim against the county shall be paid otherwise than
upon the allowance of the county commissioners, upon the war-
rant of the county auditor, except in those cases in which the
amount due is fixed by law, or is authorized to be fixed by some
other person or tribunal, in which case it shall be paid upon the
warrant of the county auditor, upon the proper certificate of the
person or tribunal allowing the claim. No public money shall
be disbursed by the county conunissioners or any of them, but
shall be disbursed by the county treasurer, upon the warrant of
the county auditor, specifying the name of the party entitled
thereto. on what account, and upon whose allowance, if not fixed
by law."
From the foregoing language it must be concluded that where the
fact and amount of a claim is fixed by law there is no necessity for an
"allowance of the county commissioners." It may weH be doubted, how-
ever, whether the Legislature, in the use of the expression "allowed by
the county commissioners" in Section 3056, supra, intended to restrict
the application of that section to instances where the commissioners, acting
in their discretion, "allowed" a claim against the county treasury.
The purpose of the "deduction provision" in Section 3056, supra,
as already pointed out, is to withhold from the computation of the amounts
OPINIONS
clue the library association a sum equal to the county's contribution to
the expenses of the court, and thereby to insure that a relatively greater
proportion of the sums received by such association would be paid from
funds accruing in ordinance cases which could have been prosecuted under
a state law. Such being the general purpose or scheme of the statute,
i-t should not be regarded as the intent of the Legislature to discard it
unless such intent is manifest from the terms of the latter enactment,
111 this instance the municipal court act.
If those provisions in this later enactment which change the "allow-
ance" of the county commissioners toward the expenses of operating the
court to an amount fixed by law are given an ultra technical interpretation,
it must be conceded that a portion of the formula set out in Seotion 3056,
supra, can no longer be used because, in a strict sense, there is no longer
any "allowance" made with respect to the judges and clerks of such courts.
It is to be doubted, however, whether any such ultra technical interpre-
tation can be justified which would result in the abolition of the general
system or scheme represented by Section 3056, General Code. On this
point it is said in 37 Ohio Jurisprudence, 66s .. 666, Section 366:
"] n interpreting a statute. courts sometimes refer to the
system or scheme of the legislation. As a general rule, where
the legislation dealing with a particular subject consists of a
system of related general provisions inclicati ve of a settled policy,
new enactments of a fragmentary nature on that subject are to be
taken as intended to fit into the existing system and to be carried
into effect conformably to it, and they should be construed so as
to harmonize with the general tenor or purport of the system
unless a different puq.;ose is plainly sh0\n1.
In the application of this rule, it becomes possible to harmonize the
pertinent proYisions of the municipal court act by regarding any of the
sums contributecl by the county to the compensation of the judges, clerks
and prosecuting officers of municipal courts as "allowed by the county
commissioners" within the meaning of Section 3056, General Code.
In your second question the ruling to which you apparently refer
is Opinion ~ o . 82, Opinions of the Attorney General for 1939, p. 93, the
syllabus in which is as follows:
"The municipal court of Barberton may not set a schedule
of fees in trusteeships created under Section II728-r, General
Code, which exceeds two per cent of the payments made by the
debtor."
ATTORNEY GENERAL
131
In that case the writer was concerned with the Ba.rberton Municipal
Court which, as provided in then existing Section 1579-1164, General
Code, was authorized to tax: fees and costs, in cases in which a justice of
the peace had jurisdiction, in the same amounts allowed to the justice
of the peace.
Section I 1728-I, General Code, then provided, as it does now, in part:
"If application for a trustee be made to a judge in a municipal
court such judge shall designate the clerk of such municipal court
to act as trustee and said clerk shall serve without additional
compensation and his official bond shall be construed as con-
ditioned upon the fulfillment of the trust and no additional bond
shall be required. If application for a trustee be made to a
justice of .the peace, such justice may receive as full compensation
for his services as justice o the peace therein, two per cent of
the total amount of the debtor's payment on claims as herein pro-
vided, and may appoint any suitable person to act as trustee.
Such trustee shall give bond as the justice shall fix, conditioned
upon the fulfillment of the trust, to be paid for by the debtor
applicant, and said trustee shall receive as fu.JI compensation for
his services as such trustee, two per cent of the total amount of
the payment on claims as herein provided, all said com-
pensation to be paid before distribution to creditors as above
provided."
In view of the limitation in .this section of the justice's fees to 2% of
the debtor's payments, the writer of the 1939 opinion, supra, concluded
that the Barberton court was likewise limited to such amounts.
In the instant case we find no such limitation. In Section r6os,
General Code, municipal courts may establish a system of fees and costs
in its discretion which do not "exceed the fees and costs provided by
law for a similar action or proceeding in the court of common pleas."
I am unable to find any statutory provision relating to fees and costs
which may be charged by a common pleas court in trusteeship cases and
so conclude that the establishment of the fee schedules you have de-
scribed cannot be deemed to be contrary to law.
Accordingly, in specific answer to your inquiry, it is my opinion that:
r. The compensation of judges and clerks of municipal courts for
which provision is made in Sections r 591 and r6ro, General Code, should
be taken into account in the determination, as provided in Section 3056,
OPINIONS
General Code, of the amounts payable monthly to a county law library
association.
2. The provisions of Secti,on II728, General Code, do not limit the
authority of a .municipal court to establish a scheclule of fees and costs
as authorized in Section r6o5, General Code. Opinion No. 82, Opinions
of the Attorney General for 1939, p. 93, distinguished.
2459
Respectfully,
.C. \VrLLI.HI
Attorney General
FIRE UNDER PROVISIONS OF SEC-
TION 3298-54 GC-TO C0::\1PRI;SE ONLY PORTION OF TOWN-
SHIP-TO\VNSHIP TRUSTEES NOT A"CTHORIZED TO PRO-
VIDE BY .CONTRACT FOR FIRE PROTECTION TO AREAS OF
TO\VNSHIP NOT INCLUDED IN DISTRICT-SECTION 3298-6o
GC.
SYLLABUS:
Where a fire district has been created under the pro\'lslOns of Section 3298-54,
General Code, so as to comprise only a portion, of a township, the trustees of such
township are not authorized, under the provisions of this section and .Section 3298-60,
General Code, to provide by contract for fire protection services to be supplied by such
fire district to areas of the township not included in such district.
Columbus, Ohio, April 7, 1953
Hon. Harry Friberg, Prosecuting Attorney
Lucas County, Toledo, Ohio
Dear Sir:
Your request for my opinion reads as follows :
"General Code 3298-j4 provides for the creation of fire dis-
tricts by township trustees and au-thorizes the trustees to enter
into contracts for fire protection for such fire district in the same
manner as provided in Section 3298-60. The latter section author-
izes contracts between to\Ynships, villages or cities for a supply
ATTORNEY GENERAL
or an interchange of additional fire protection m times of emer-
gency.
"Under the above statutes the Trustees of Providence Town-
ship in Lucas County created a fire district known as 'Provi-
dence Township Fire District' which comprises a portion of Provi-
dence Township. Jt is now the desire of the trustees of the town-
ship to enter into an arrangement whereby the fire protection
services of the fire district might be made available to the areas of
the township not included in the first district.
"The question which has arisen is this: Inasmuch as the
township .trustees are the governing body of both the district
and the township, would they not in effect be entering into a
contract with themselYes in two different capacities, and if so
would such a contract be illegal?"
133
I find that a question somewhat similar to that here raised was under
consideration in Opinion No. 3957, Opinions of the Attorney General
for 1948, p. 524, the syllabus in which is as follows:
''The trustees of a tO\\nship who have established a fire dis-
trict in a portion of their to\vnship as provided in Section 3298-54.
General Code. are \\ithout authority to contract on behalf of such
fire district for the services of the fire department of said town-
ship, but may make such contraot with a municipality located in
such township or with another political subdivision."
At .the date this opinion was written, Section 3298-54, General Code,
authorized the organization of fire districts only in townships "in which
there is located a municipal corporation or corporations," but was other-
wise, in pertinent part, identical with the present statute. The precise
question under study by my predecessor in this opinion was the authority
of the township trustees to contract for fire protection to be supplied to
such district by the township fire department. In the course of the opinion
the writer said, p. 527:
"As has already been pointed out, such contract if made on
behalf of a fire district must be made by the township trustees
a:cting for it. Accordingly, if ,,,..e are to consider a contract to be
made between a township having a township fire department and a
fire district located \Yithin the same township, then we would have
the township trustees contracting with themselves.
"I.t appears to me that such a contract would be not onlv an
anomaly, but quite inconsistent with the fundamental c h a r ~ c t e r
of a contract, and quite out of accord with the manifest intention
of the legislature in making the provisions to which I have called
134
OPINIONS
attention. I cannot escape the conviction that the General As-
sembly had in mind the fact that the city located within the town-
ship would have its own fire department and that the outlying
territory of the township would need protection which could
hardly be furnished by the city. If it \\"ere possible for the city
to furnish protection, it ought not to be b)' contract <tith the whole
township because in such case the cit:; would be bearing a share
of the expense 011 both sides of the contract.'' (Emphasis added.)
It will be observed that all of the criticisms thus pointed out are
present in the instant case despite the circumstance that we are not patently
concerned with the status of a municipal corporation located within the
township. The arrangement which you suggest would involve a contract
by the trustees with themselves, a situation which, as said in the 1948
opinion, supra, is not only anomalous but inconsistent with the funda-
mental character of a contract. ::VIoreover, such an arrangemet would
result in the fire district "bearing a share of the expense on both sides of
the contract," since the funds to be paid to the district thereunder would
be raised by taxation on all the property within the township, including
that within the fire district. This objection is clearly analogous to that
pointed out in the 1948 opinion, and for this reason and because I concur
in the reasoning therein set out, I am impelled to conclude, in specific
answer to your inquiry, that where a fire district has been created under
the provisions of Section 3298-54, General Code, so as to comprise or.Jy a
portion of a township, the trustees of such township are not authorized,
under the provisions of this section and Section 3298-60, General Code,
to provide by contract for fire protection services to be supplied by such
fire district to areas of the township not included in such district.
Respectfully,
C. \iVILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
I35
EDUCATION, CLERK, BOARD SCHOOL DIS-
TRICT-'FAILURE TO SUBMIT STATEMENTS OF FISCAL OP-
ERATIONS AND FINANCIAL CONDITION OF BOARD-BU-
REAU SHOULD NOTIFY COUNTY SUPERINTENDENT OF
SCHOOLS-IF DERELICTION OF DUTY, SUPERINTENDENT
:VJAY APPOINT ANOTHER CLERK-SECTIONS 484r-6, 4843-5
GC.
SYLLABUS:
Where the Bureau of Inspection and Supervision of Public Offices is of the
opinion that the clerk of a board of education of any district within a county school
district has failed to render the statements of fiscal operations and financial condition
of such board, as required .by the .provisions of Section 4841-6, General Code, the
Bureau may .properly bring the matter to the attention of >!!he county superintendent
of schools with the request that that officer determine whether there has been such a
dereliction of duty on the part of such clerk as would require the superintendent to
appoint another person to make such reports under the .provisions of Section 4843-5,
General Code.
Columbus, Ohio, April 10, 1953
Bureau of Inspection and Supervision of Public Offices
Columbus, Ohio
Gentlemen:
Your request for my opinion reads as follows :
"Not infrequently the State Examiners in the Bureau of In-
spection and Supervision of Public Offices find when they make
an audit, especially in some of the local school districts, that the
clerk neglects or fails to keep the records in such shape as to
enable us to make an intelligent audit. It then devolves upon the
examiner to do the clerical work necessary to be clone to get the
records in such shape that an audit can be made. Obviously, this
was not the intent of the law providing for inspection and it be-
comes expensive to the State since the Examiner can only charge
a portion of his salary to the school district being audited and the
Bureau must wbsorb the remainder of his per diem charge.
"G.C. Section 4841, et seq., provides for the election and
duties of clerks, particularly Section 4841-8, and by these sections
it would seem that clerks of boards of education have certain
duties and responsibilities which they must perform before taking
office.
OPINIONS
''Under Chapter 7, School Reports, of the school laws, Sec-
tion 4843, et seq., there is found in Section 4843-5:
" 'Upon the neglect or failure of the clerk of the 'board of
education or executive head of the schools of any district within
the county school district to make the reports required by law,
by the time specified, the county superintendent must appoint some
suitable person to make such reports, who shall receive a reason-
able compensation therefor to be paid from the county board of
education fund. The amount of such compensation shall be wi,th-
held by the county auditor from the funds due such district at the
time of the next tax settlement and be credited to the county board
of education fund.'
"An opinion is requested as to whether or not Section 4843-5
is broad enough in its application to clerks of Boards of Educa-
tion to cover a situation where an Examiner finds that the rec-
ords have not been kept in such a manner as to insure an intelli-
gent audit from the examination of such records so that the Ex-
aminer could request the county superintendent to appoint some
suitable person to make such reports of receipts and expendi-
tures, or whether the phrase 'to make the reports required by
law, by the time specified' is applicable only to the school reports
covered by G.C. Sections 4843-1, 4843-2, 4843-3 and 4843-5.
"* * * I know of no other remedies which might be invaked,
however, if there are other statutory provisions whereby it could
be insured that these records would be properly kept, I would
appreciate your advice on the matter."
The prior statute analogous to Section 4843-5, General Code, quoted in
your inquiry, was Section 779I, General Code. Prior to the enactment of
House Bill Xo. 288, Eighty-Ninth General Assembly, I 14 Ohio Laws, 77,
this section was made applicable by its terms to "reports required in this
title," reference thus being made to Title V, Part Second of the General
Code as codified in I9IO. In the amendment effected by House Bill No.
288, supra, this section was made applica:ble to "reports required by law."
Also included in House Bill No. 288 was an amendment of Section
7787, General Code, which was amended to read:
"On or before the first day of August in each year, the
board of education of each city and exempted village school dis-
trict shall report to the director of education, and the :board of
each rural and village school district shall report to the county
superintendent of schools, the school statistics of its district.
Such reports shall set forth the receipts and expenditures, the
ATTORNEY GENERAL
length of the school term, the enrollment of pupils, including in
the case of districts situated in more than one county the enroll-
ment in each county, the aggregate days of attendance, the num-
ber, qualifications and salaries of teachers and other employees,
the mu111ber of school houses and school rooms, and such other
items as the director of education requires.
"The aggregate days of attendance of pupils in a school which
is closed for more than five consecutive school days during the
year on account of an epidemic of disease or other emergency
requiring such closing shall be ascertained by multiplying the
average daily attendance at such school by the number of days
such school would have been in session but for such emergency.
"In computing the aggregate days of attendance in night
schools, summer schools and other special schools operated on an
abnormal daily time 1basis, four hours of attendance on the part
of a pupil shall be taken as the equivalent of one day's attendance.
"It shall be the duty of the clerk of the board to prepare and
transmit the annual report of receipts, expenditures and other fi-
nancial information, and the duty of the executive head of the
schools of the district, if any, to prepare and transmit the report
of other school statistics, and if there be no suoh executive head
such duty shall devolve upon the county superintendent of
schools."
137
In the amendment of these sections by this enactment there is clearly
evident an intent that the provisions of Section 7791, supra, should be
applicable to the financial reports which the clerk was "required by law"
to prepare and make. These provisions of Section 7791, General Code,
were reenacted without change as Section 4843-5, General Code, in the
recodification in 1943 of the school laws in House Bill No. 217, 120 Ohio
Laws, 475
In this recodification of 1943, however, Section 7787 was not retained
as a single section, a portion thereof relating to school statistics being
reenacted in Section 4843-2, General Code, and a portion thereof relating
to the preparation and submission of financial reports being reenacted m
Section 4841-6, General Code. This section reads as follows:
"The clerk of each hoard of education shall keep an account
of all school funds of the district upon such forms as may be pre-
scribed and approved hy the bureau of inspection and supervision
of public offices. The clerk shall receive and preserve all vouchers
for payments and disbursements made to and by the board. The
clerk shall render a statement to the board of education monthly,
OPINIONS
or oftener if required, showing the revenues and receipts from
whatever source derived ; the various appropriations made by the
board, the expenditures and disbursements therefrom, the pur-
poses thereof, the balances remaining in each appropriation and
the assets and liabilities of the school district. At the end of the
fiscal year such statement shall be a complete exhibit of the fi-
nancial affairs of the school district which may lbe published and
distributed with the approval of the board of education."
I perceiYe nothing in this recodification of 1943 which could be sup-
posed to limit the application of Section 4843-5, supra, to the reports pro-
vided for in Sections 4843, 4843-1, 4843-2 and 4843-3, General Code, all
of which relate chiefly to statistics of school attendance and scholastic
data. Indeed, it would appear that such section could not apply to statistical
reports such as these, since they are required to be made either by the
teachers, the board of education, or by the superintendent concerned, rather
than by the clerk. For this reason, and because the 'Provisions of Section
4841-5, as previously enacted in Section 7791, General Code, were clearly
applicable to financial reports required to he made by the clerk, I conclude
that they are presently applicable to the reports required of the clerk under
the provisions of Section 4841-6, supra.
Accordingly, in specific answer to your inquiry, it is my opinion that
where the Bureau of Inspection and Supervision of Pu!blic Offices is of
the opinion that the clerk of a board of education of any district within
a county school district has failed to render the statements of fiscal opera-
tions and financial condition of such board, as required by the :provisions
of Section 484r-6, General Code, the Bureau may properly bring the
maHer to the attention of the county superintendent of schools with the
request that that officer determine whether there has been such a derelic-
tion of duty on the part of such clerk as would require the superintendent
to appoint another person to make such reports under the provisions of
Section 4843-5, General Code.
Coming now to your general question relative to other statutory pro-
visions whereby it could be insured that school records are properly kept,
your attention is invited to the provisions of Sections 4841-1 and 4843-4,
General Code, which are applica;ble to the clerks of boards of education
of all school districts. Although these statutes do not confer any authority
on the bureau to initiate action in the circumstances you have described,
I perceive no reason why the bureau should not, in a proper case, bring
ATTORKEY GENERAL
I39
the matter of a clerk's dereliction to the attention of the officers who are
authorized to initiate such action, together with the bureau's recommenda-
tions in the matter.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
LIBH.ARY-PUBLIC SCHOOL, BOARD OF TRUSTEES-AU-
THORIZE TO CONSTRUCT ON LAND OWNED IN FEE OR BY
PERPETUAL LEASE, BUILDING FOR LIBRARY PURPOSES-
WITHOUT AUTHORITY TO ERECT BUILDING ON LAND
l-JELD "CNDER TEMPORARY LEASE-SECTION 7630 GC.
SYLL:\ BCS:
The board of trustees of a public school library is authorized by Section 7630.
General Code. to construct on land owned in fee or by perpetual lease a building for
library purposes, but is without authority to construct such library building on land
held under a temporary lease.
Columbus, Ohio, April I I, I953
Bon. Bernard VI. Freeman, Prosecuting Attorney
Huron County, Norwalk, Ohio
Dear Sir:
I have before me your communication requesting my opm10n as to
the power of a school district library board to build an addition to a library
building which they now occupy under a temporary lease. Briefly stated,
your letter indicates that the property in question is now held under a 99
year lease renewable forever, by two corporations not for profi-t, to wit, the
Young Men's Library and Reading Room Association and the Firelands
Historical Society. A 99 year lease renewable forever, in Ohio, -..vhile it
does not convey a fee, yet for ordinary purposes is regarded and treated
as ownership. As a matter of fad, under Section 10503-II, General Code.
such a lease is subject to the same laws of descent as estates in fee. It is a
I40
OPINIONS
matter of common knowledge that a large part of the industrial and com-
mercial buildings are built upon grounds so leased.
The school district public library occupies a portion of this building
under a lease dated January r, 1927, from the Young Men's Library and
Reading Room Association, being for a term of three years, and auto-
matically renewable .for like terms, subject to the right of either party to
terminate upon giving notice.
It will be noted that although said Association is a tenant in com-
mon with the historical society the lease to the library board is by one of
such owners only.
The laws relative to public libraries generally underwent somewhat
extensive revision in an Act found in 122 Ohio Laws, page r66, Section
7630, General Code, a part of that Act, deals with the powers of boards
of library trustees, whether county, municipal or established by boards of
education or by district boards. It will be noted that the powers given to
these various boards are very liberal in their scope. Section 7630, in so
far as pertinent, reads:
"The boards of library trustees appointed pursuant to the
pro\isions of sections * * * 4840-r * * * of the General Code shall
have the following general powers to wit: * * *
"3. To purchase or lease buildings or parts of buildings and
other real property and to purchase automobiles and other
personal property necessary for the proper maintenance and
operation of the free public libraries under their jurisdiction and
to pay the purchase price .therefor in installments or otherwise;
"4. To purchase lease, lease with an option to purchase,
or erect buildings or parts of buildings to be used as main libraries,
branch libraries or library stations pursuant to the requirements
of the next following section; * * *
"9. To establish and maintain a museum in connection with
and as an adjunct to the free public library under their jurisdic-
tion;***."
Here, it will be noted that the board has power to purchase, lease, or
lease with an option to purchase property for library purposes and also
to erect buildings or parts of buildings. While this is quite tbroad in its
provisions, I cannot conclude that there is any grant of authority to use
public funds for the erection of a building on land which the board neither
ATTORNEY GENERAL 141
owns nor to which it has any permanent right. In the case you present,
the board only enjoys a lease from one of two joint owners, and that only
for a short period, which is subject to termination at any time, upon pre-
scribed notice. Consequently, it has only an imperfect leasehold, even for
a temporary period.
Library boards like other public bodies created by the statutes, are
subject to the general rule that they have only such .powers as the legis-
lature has seen fit to grant, and such implied '{JOwers as are essential to the
exercise of the powers granted. See 36 Ohio Jurisprudence, page I88,
as to boards of education; I I Ohio J uris'{Jrudence, page 244, as to counties;
25 Ohio Jurisprudence, page 302, as to library boards. That the powers
of a school district library 1board are so measured and limited was held
in Opinion Xo. 2003, Opinions of the Attorney General for I924, page 652.
In conclusion it is my opinion that the board of trustees of a public
school library is authorized by Section 7630, General Code, to construct on
land O\med in fee or by .perpetual lease a building for library purposes, but
is without authority to construct such library building on land held under a
temporary lease.
249I
Respectfully,
c. WILLIAM O'NEILL
Attorney General
JUDG1viENT CREDITOR-ANY MuNICIPAL COURT OF STATE
-HAS RIGHT TO REQUIRE CLERK OF COURT TO ISSUE EX-
ECUTION AGAINST PERSONAL PROPERTY OF JUDGMENT
DEBTOR-FOREIGN COUNTY-DUTY OF SHERIFF TO RE-
CEI\"E AND EXECUTE JUDGMENT.
SYLL:\Bl.."S:
A judgment creditor in any municipal court of the state, has a right to require
an execution to be issued by the clerk of that court against the personal property oi a
judgment debtor situated in another county, and it is the duty of the sheriff oi such
county to receive and execute the same.
OPINIONS
Columbus, Ohio, April q, I953
Bon. John Rossetti, Prosecuting Attorney
Stark County, Canton, Ohio
Dear Sir:
I have beiore me your request for my opinion reading as follows:
"Please render this office an informal opinion on the follow-
ing question:
'\Vhere a money judgment has been recovered in the
".\1unicipal Court of a foreign county and said Municipal
Court in the foreign county issues an execution on prop-
erty located in Stark County directly to the Sheriff of
Stark County, is it proper for the Sheriff to levy on said
execution?'
''In the case at hand a judgment was recovered in Cleve-
land Court, and the bailiff of that court issued an exe-
cution directly to the Sheriff of Stark County. The sheriff re-
quested an opinion from our office as to whether or not it should
honor such execution. We gave a tentative opinion to the effect
that it was not proper to honor such execution. I am enclosing a
copy of our opinion, plus a reply to a later letter supporting the
execution received from Cleveland Municipal Court, plus a copy
of a still later letter received by our office from Mr. S., Attorney,
who secured the judgment in the Cleveland Municipal Court.
"X eedless to say, various conflicting attitudes in regard to
the legality of the execution have been secured from local attor-
neys, and all parties concerned, including Mr. S., our Sheriff's
office and our own office, are interested in having this point of
Ia w determined."
The right to an execution for the enforcement of a judgment and
the proceedings relatiYe thereto are matters of statutory 'Provision. It is
said in I 7 Ohio J uris<prudence, page 736:
"Executions and proceedings under them are the suJbject of
minute statutory regulation of which it has been said that no laws,
especially in new states, are more frequently reversed and
amended than those relating to judgments and executions."
The act of the General Assembly which became effective June 13,
195 r, completely reorganized all of the municipal courts of the state and
ATTORNEY GENERAL
I43
repealed all of the laws theretofore enacted establishing municipal courts
in a large number of the cities of the state. This new enactmnt compnses
Sections rsSr to r6r7, inclusive, of the General Code.
\ Ve therefore look to the terms of that act to discover \vhat if any
powers are granted to municipal courts relative to executions and what
procedure is set forth relative thereto. It might be noted that the municipal
court laws theretofore in force differed considerably in their provisions
relati,e to executions. In a number, the section outlining the jurisdiction
of the court included a provision substantially as follows:
"The municipal court shall have jurisdiction within the limits
of the county * * * to issue execution on its own judgments.''
In some, there was a general provision that the laws relative to the
court of common pleas as to various matters of procedure, including "the
issuing of execution against personal property," should apply to the mu-
nicipal court. Such provision was found in the act creating the Cincinnati
?vlunicipal Court and in a number of others. See former Sections I ssS-9
and I ssS-28. In others there was a provision for county-wide jurisdiction
"to issue execution on its own judgments, against property other than
realtv."
ln the new Municipal Court Act above referred to, we find in Section
I595, General Code, the following:
''Subject to section 1593 of the General Code a municipal
court shall have jurisdiction within the limits of the county or
counties in which its territory is situated:
" (A) To compel attendance of witnesses in any pending
action or proceeding, the same as the court of common pleas;
'' (B) To issue executions on its own judgments;
"(C) In any action or proceeding, whether legal or equi-
table. to enforce the collection of its own judgments; * * *."
It will be noted that the above provision does not either define or
limit the scope of an execution which may be issued .from a municipal court,
nor does it throw any light upon the character of property which may be-
come the subject of an execution. It does not in terms limit the process
of execution to personal property. It does not e ~ p r e s s l y confine the is-
suance of the writ to the county in which the court is established.
144
OPINIONS
It appears to me that the matter of enforcement of a judgment of the
court by execution and levy is hardly an exercise of the jurisdiction of
the court, but is rather a part of its incidental ministerial procedure. The
judge of the municipal court having heard a cause, renders his judgment.
If the successful party desires to have an execution issued, it does not
appear that there is any necessity of coming to the judge of the court
relative to its issuance, or that he has any power or duty in the matter.
On the contrary, the practice well established in the courts generally, is for
the judgment creditor to file a precipe with the clerk, and in response
thereto he issues an execution directed to the bailiff or sheriff as the case
may be, who proceeds to make the required levy and connrt the property
into money. The a:bove provision of Section 1595 giving the municipal
court county wide jurisdiction "to issue executions on its O\Yn judgments"
applies, in my opinion to the ministerial functions of the court exercised
by the clerk and bailiff and does not prevent the issuance of a writ of ex-
ecution to another county.
Attention is directed to Section 16o3, General Code, \vhich provides:
"* * * In any civil action or proceeding at law in which the
subject matter of the action or proceeding is located within the
territory or a defendant resides or is ser-ved with Sli/1111/0ilS -z(ritlzill
said territory, the court may issue summons, orders of inter-
pleader, all other writs, and mesne and final process iucludi11g cxc-
wtions necessary or proper for the complete adjudication of the
issues and determination of the action, to the bailiff for seruicc in
the county or counties in which the court is situated and to the
sheriff of any other county against one or more of the remaining
defendants. * * *." (Emphasis added.)
This section does not afford a direct answer to the question we are
considering, since it appears to relate to the process of getting service on
non-resident parties, hut it does indicate that any of the writs referred to,
including an execution, may issue to the sheriff of another county.
Going a little further into the }'vJunicipal Court Act, we find this pro-
\ision in Section 1599, General Code:
"In any civil case or proceeding if no special proviSion is
made in sections rs8r to I6J7, inclusive, of the General Code. the
practice and procedure shall be the same as is provided for in
courts of common pleas. If no practice or procedure is provided
for in the courts of common pleas, then the practice or procedure
of justice of the peace courts shall apply." (Emphasis added.)
ATTORNEY GENERAL I4j
The portion of the General Code relating to practice and procedure
in the common pleas court is comprised in Title IV of Part Third, of the
General Code. Chapter I, of Title IV contains among others, Section r I.
6.=;3, General Code, which reads a-s follows:
"'A.n execution is a process of the court, issued by the clerk,
and directed to the sheriff of the county. Executions may be is-
sued to the sheriffs of different counties at -the same time."
Inasmuch, therefore, as the Municipal Court Act adopts for the pur-
pose of procedure all of the provisions of the General Code relative to
practice and procedure in courts of common pleas, it seems to me that the
conclusion is irresistible that the successful party in a municipal court has
a right to apply to the clerk of that court for an order of execution, \Yhich.
according to the statute just quoted, may be issued to the sheriff of any
county.
It is true that the judgment of a municipal court does not of itself
giye a lien upon real estate either within the county or outside thereof.:
but neither does a judgment of a court of common pleas. Under the pro-
visions of Section r r,656, any judgment creditor, in order to obtain a
lien on real estate, must file with the clerk of the court in the county where
the real estate is situated, a certificate of the clerk of the court rendering
the judgment, giving the names of t'he parties, the amount of judgment and
other facts required. That statute in its terms relates only to "judgments
rendered by any court of general jurisdiction" ibut Section u,656-2 ex-
tends that right to inferior courts, including municipal courts. It provides
in part:
Judgments of probate courts, municipal courts, justices of
the peace and other com11:s inferior to the court of common pleas
may be made liens upon lands and tenements of a judgment debtor
\\"ithin any county of this state in the manner provided in section
1 r6.=;6 of the General Code, and not otherwise. The certificate of
such judgment shall he made by the clerk of any such court or
justice of the peace, as the case may be, * * *. When any certi-fi-
cate of a judgment of any such court made by the clerk of such
court or justice of the peace, as the case may be, shall have been
filed in the office of the clerk of the court of common pleas of
any county, and docketed and indexed therein, execution may he
issued out of such court of common pleas upon such judgment
and such further proceedings to enforce said judgment may be
had. as if the same had been rendered in such court of common
pleas... (Emphasis added.)
!46
OPINIONS
It is possible, however, that a judgment creditor may obtain a lien
for satisfaction of his judgment without the filing of such certificate. This
is accomplished by seizing the property pursuant to a writ of execution.
Provision for this practice is found in Section rr656-r, General Code,
which reads as follows:
"Lands and tenements of a judgment debtor shall also be
bound with a lien for the satisfaction of any such judgment of
any court of general jurisdiction (including district courts of the
United States) within this state, without the filing of such certifi-
cate as is provided for in the next preceding section, from the
time when the same are seized in execution; and goods and chat-
tels of a judgment debtor shall be bound from the time they are
seized in execution."
It is to be noted that this right of direct se1zure and sale of real
property pertains only to a judgment of a court of "general jurisdiction"
and a writ of execution from a municipal court could, therefore, only be
executed on personal property. While this section is found among the pro-
cedural statutes governing courts of common rpleas, which are, by the
terms of Section 1599 supra, adopted for municipal courts, yet in so far
as it confers a power on courts of "general jurisdiction," I must conclude
that it was intended to exclude municipal courts.
Something should be said as to -the special provisions of the la,, rela-
tive to the 1Cleveland Municipal Court as distinguished from the others .
.'\ number of sections of the law give the Cleveland court jurisdiction in
actions relating -to realty, whereas the others are limited to personalty.
For instance in .Section 1594, General Code, which sets .forth the "original
jurisdiction within its territory," of all municipal courts, the follmYing is
included:
" (B) In any action or proceeding at law for the recovery
of money or personal property of which the the court of common
pleas has or may be given jurisdiction; * * *
" (D) In any action or proceeding for the sale of personal
property under chattel mortgage, lien, encumbrance, or other
charge; and for the foreclosure and marshalling of liens thereon,
and for the rendering of personal judgment therein;
" (E) In any action of proceeding to enforce the collection of
its own judgments, or the judgments rendered by any court within
the territory to which such municipal court has succeeded, and to
ATTORNEY GENERAL
subject the interest of a judgment debtor in personal property to
satisfy judgments enforceable by the municipal court; * * * ."
(Emphasis added.)
I4/
The same section gives the Cleveland court the additional po,ver to fore-
close mortgages and other liens on real property, and to entertain actions
for the recovery of real property.
Likewise, Section I595, General Code, defining the county wide juris-
diction of all such courts, gives them the power to act:
" (G) In any action or proceeding in the nature of credi-
tors' bills, and in aid of execution to subject the interest of a
judgment debtor in personal property to the payment of a judg-
ment of the court;" (Emphasis added.)
The Cleveland court 1s given the additional power, in proceedings
in the nature of creditors' bills, to subject real or personal property of the
debtor to the satisfaction of a judgment of such court.
However, I do not find in the statutes any special powers g1ven the
Cleveland Municipal Court so far as the use of the process of execution
is concerned, differing from those enjoyed by municipal courts, generally.
Section I 1,666, General 'Code, makes it the duty of the sheriff, upon
receipt of a writ of execution, to "proceed immediately to levy it on the
goods and chattels of the debtor." He is further required, if no chattels
can be found, to levy on lands and tenements of the debtor "which are
Jia,ble to satisfy the judgment."
It is accordingly my opinion, and you are advised that a judgment
creditor in any municipal court of the state, has a right to require an exe-
cution to be issued by the clerk of that court against the personal property
of a judgment debtor, situated in another county, and that it is the duty
of the sheriff of such county to receive and execute the same.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
148
OPINIONS
HOUSING PROJECT FOR VETERANS - \VORLD WAR II
EMERGENCY HOUSING FOR VETERANS ACT-SECTIOl\S
1078-62 THROVGH ro78-7o GC-BOARD OF COUNTY COMMIS-
SIONERS \VITHOUT POWER TO OPERATE HOUSING PROJ-
ECT-NO POWER TO AOCEPT FROM FEDERAL GOVERN-
MENT GIFT OF FEDERAL HOUSING DEVELOPMENT-NOT
LIMITED TO EMERGENCY HOUSING FOR VETERANS OF
WORLD \V AR Il-----'OPERATED AND MAINTAINED BY COUNTY
COMMISSIONERS.
SYLLABUS:
Except for the authority to operate a housing project for veterans of World \Var
II, as provided in the Emergency Housing for Veterans Act, Sections 1078-62 to
1078-70, General Code, a board of county commissioners is without power to operate a
housing project and, therefore, has no power to accept from the Federal Government
a gift of a federal housing development, not limited to emergency housing for veterans
of World \Nar II, to be operated and maintained by the county commissioners.
Columbus, Ohio, April rs, 1953
Hon.]. H. De\Veese, Prosecuting Attorney
Miami County, Troy, Ohio
Dear Sir:
I have before me your request for my opinion, reading as follows:
"Do the county commissioners have authority on behalf of
the county to accept a Federal housing development from the
United States government, and thereafter to operate and maintain
the same:
"I have clone some investigation of this matter and it is my
opinion that the county commissioners do not have such authority,
especially in vie\v of the holdings that the authority of county com-
missioners is strictly construed since they do not have the broad
powers available to municipalities under the so-called 'Home Rule'
provisions of law. The only authority that I can find under which
the county might possibly accept this housing would be G. C.
1078-66, but in that case the use of the premises would be con-
fined strictly to honorably discharged veterans of \Vorld \Var II."
\Ve may start with the proposition, which I consider to be well founded
ATTORNEY GENERAL
149
and too familiar to require extensive discussion, to-wit, that counties are
political organizations created hy the Legislature through which a portion
of the sovereignty of the state is represented and exercised, that they
possess only such powers as may be delegated or conferred upon them
by statute, together with such implied powers as are necessary to carry
into effect the powers specifically granted. I I Ohio Jurisprudence, 244;
Lake County v. Ashtabula County, 24 Ohio St., 393; Portage County v.
Gates, 83 Ohio St., 19.
As indicated in your letter, the only specific statutory authority for
the Board of County Commissioners to operate a housing project is that
contained in the Emergency Housing for Veterans Act, Sections 1078-62
to 1078-7o, General Code. However, as you have stated, such act is con-
fined to an authorization to the county commissioners to operate only
emergency housing for veterans of vVorld War II, and you have informed
me that the contemplated operation would not be limited to such purpose.
Your question, therefore, in effect, is whether there is any authority for
the county commissioners to operate any sort of a housing project other
than that authorized by the Emergency Housing for Veterans Act.
vVhile the General Assembly has chosen to authorize the creation
of metropolitan housing authorities to operate housing .projects not limited
to veterans of World War II under the Housing Authority Law, Section
1078-29, et seq., General Code, and \vhile by the provisions of Section
1078-33, the county commissioners are authorized to loan to such housing
authority a sum not to exceed $20,000 for the purpose of paying expenses
of organization and supervision during the period of initial construction,
no statute has tbeen enacted which would authorize the county commis-
sioners themselves to perform those functions authorized to be performed
by a metropolitan housing authority. Bearing in mind that we must find
such authority in the statutes, I must conclude that no such authority
exists.
In expressing the above view, I am fully cognizant of the provisions
of Section 18, General Code, which, inter alia, authorizes the county to
receive, by gift, moneys, lands or other properties "for their benefit or
the benefit of any of those under their charge, and hold and a,pply the same
according to the terms and condition of the gift."
\Vhile counties, as well as other public bodies, may unquestionably
receive gifts of property, it appears to me that the uses they make of such
IjO OPINIONS
gifts must he limited to those powers which they are authorized by law
to exercise. They may receive property or money, the use and purpose
of which is not limited by the terms of the gift and, as indicated by the
statute, they may receive gifts to be used for such lawful purposes as in-
dicated by the donor. However, if the gift carries with it an obligation to
establish and maintain an enterprise wholly foreign to the powers and
purposes that are within the provisions of the law and may involve the
expenditure of additional public funds, it is my opinion that they reach
a point where a gift so conditioned can not be legally accepted by them.
I can conceive of an unconditional gift to a county, of a hotel or
apartment house which it is free to dispose of, and of the right of the
county, in such case, to use the proceeds for any legitimate county pur-
poses; but if a gift of such building were offered to a county under any
condition which obligated it to continue its operation and maintain it at
county expense, .then it would appear to me that the county would be
entering upon a project in which it has no authority to engage, and that
the expenditure of public money which might be required from time to time
to keep the property in condition, and the payment of the costs and ex-
penses of operation, would be without legal sanction.
In conclusion, it is my opinion that except for the authority to operate
a housing project .for veterans of World War II, as provided in the Emer-
gency Housing for Veterans Act, .Sections 1078-62 to ro78-7o, General
Code, a iboard of county commissioners is without power to operate a
housing project and, therefore, has no power to accept from the Federal
Government a gift of a federal housing development, not limited to emer-
gency housing for veterans of World War II, to be operated and main-
tained by the county comm1ss1oners.
Respectfully,
C. WILLIAM: O'NEILL
Attorney General
ATTORXEY GEXERAL Ijl
2496
SICK LEAVE CREDIT-PUBLIC SCHOOL TEACHER-ACCU-
MULATED DURING TIME TEACHER ABSENT FORM DGTY
THROUGH ILLNESS- SAME AS DURING TDrE WHE:\'
TEACHER AT woRK-SECTION 486-r;c GC.
SYLLABUS:
The sick leave credit to which a public school teacher is entitled under Section
486-17c, General Code, is accumulated during the time that the teacher is absent from
duty because of illness, the same as during the time when he is at his work.
Columbus, Ohio, April 17, 1953
Hon. Hugh I. Troth, Prosecuting Attorney
Ashland County, Ashland, Ohio
Dear Sir:
I have before me your communication submitting for my opinion, the
following question:
"Under G. C. 486-17c, where a school teacher has accumu-
lated sick leave time up to 35 work days and is sick for a period
in excess of the 35 work days, does that teacher accumulate sick
leave time while she is on sick leave? In other words, does that
teacher get 1,% days sick leave time for the period she is not in
school but is being paid under G. C. 486-r;c?"
The pertinent portions of Section 486-r;c, General Code, reads as
follows:
"Each full-time employee, whose salary or wage is paid in
whole or in part 1by the state of Ohio and each full-time employee
in the various offices of the county service and municipal service,
and each full-time employee of any board of education, shall be
entitled for each completed month of service to sick leave of one
and one-fourth (r,%) work days with pay, * * * Unused sick
leave shall be cumulative up to ninety ( 90) days unless more than
ninety ( 90) days are approved by the responsible administrative
officer of the employing unit. * * * Provisional appointees or those
who render part-time, seasonal, intermittent, per diem, or hourl)'
service shall be entitled to sick leave for the ti111e actually worked
at the same rate as that granted full-time employees herein. * * *"
(Emphasis added.)
Ij2 OPINIONS
In Opinion No. r6o5, Opinions of the Attorney General for 1950,
page 173, it was held:
"Teachers employed to teach one hundred and twenty days
a year, commonly referred to as an eight-months school year, or
longer periods in a given school year, are full time employees of
a board of education within the meaning of Section 486-17c,
General Code, as amended by the 98th General Assembly, House
Bill 109, effective October 25, 1949."
A number of authorities were discussed m that opmwn relative to
"full time employment'' or "full time employee," and I concur in the
opinion of my predecessor that in the eyes of the law a school teacher who
is employed by contract to teach during the portion of the year which
usually constitutes a school year, is a full time employee.
It will be noted that as to full time employees of a board of education,
it is provided that each such employe is entitled "for each completed month
of service to sick leave of one and one-fourth (r}i) work days with pay."
Sick leave credit may be accumulated up to 90 days, and the administra-
tive head of the employing unit may allow even more.
The purpose and effect of a statute of this character IS to permit an
employee to remain away from his work a certain number of days on
account of illness, and receive his pay while so prevented from working.
ln my opinion the fact that he is prevented by illness from working, does
not prevent him from !being in the service while so detained.
The statute does not assume that an employee must be injured or
sick in order to acquire sick leave credit, nor does it suggest that being
ill at any time separates him from service or prevents the operation of
the statute.
An examination of the further provisions of Section 486-17c shows
an attempt to adapt the statute to those employes who render part time,
seasonal, intermittent, per diem or hourly service. Plainly, if these em-
ployees are to be entitled to sick leave, it must be calculated on a some-
what different basis. It is provided that they shall be entitled to sick leave
for the time actually worked at the same rate as that granted full time em-
ployes herein. The words "time actually worked" do not appear in the
provision relative to full time employees. I do not consider that the legisla-
ture manifested an intent to undertake to hold them to the same rule.
ATTORNEY GENERAL
I 53
Accordingly, in answer to your question, it is my opmwn that the
siok leave credit to which a public school teacher is entitled under Section
486- I ;c, is accumulated during the time that the teacher is absent from
duty because of illness, the same as during the time when he is at his work.
Respectfully,
c. vVILLIAl\1 O'NEILL
Attorney General
MUNICIPAL COURT JUDGES - PROPORTION, COMPENSA-
TION PAID BY CITY AND COUNTY-SECTION I59I GC-EF-
FECTIVE JANUARY I, I952-APPLICABLE TO ALL MUNICI-
PAL COuRTS-CERTAIN JUDGES ELECTED UNDER PRIOR
ANALOGOUS SPECIAL STATUTES INELIGIBLE TO RECEIVE
AMOUNT OF COMPENSATION PROVIDED IN SECTION.
SYLLABUS:
The proYision in Section 1591, General Code, relative to the proportion in which
the city and county concerned shall pay the compensation of municipal court judges,
became effective on January I, 1952, as to all municipal courts in existence on that
date regardless of the fact that certain of such judges were, on such date, serving in
a term to which they had been elected under prior analogous special statutes, and
thus were ineligible, during the remainder of such terms, to receive the amount of
compnsation provided in such section.
Columbus, Ohio, A!pril 20, I953
Hon. Richard P. Faulkner, Prosecuting Attorney
Champaign County, Urbana, Ohio
Dear Sir:
Your request for my opinion reads as follows :
"I would like your official opinion concerning the interpreta-
tion of Section I 59 I, General Code of Ohio, covering com-
pensation of municipal judges in regard to when it becomes the
obligation of the county to begin paying their two-fifths of the
compensation of the municipal judge.
154
OI'JNIONS
"The above section of the Code became effective June 13,
I95I. This effective elate was during the present term of the mu-
nicipal judge of Urbana, Ohio, whose present term does not ex-
pire until December 31, 1953.
"The question to be determined is whether or not the county
is liable for the two-fifths of his present salary, which is being
paid under the provisions of the Act in effect at the time of his
election, or whether -this obligation to pay the two-fifths of the
salary does not begin until the beginning of the municipal judge's
new term on January I, 1954."
In my opinion No. 756, Opinions of the Attorney General for 1951,
p. 493, I expressed to you the following conclusion:
''The General Assembly, by providing in Amended Senate
Bill No. 14 that the existing terms of municipal judges shall not
be diminished but shall continue for the period for which they
\vere created, did not intend to and did not abolish the office of the
incumbent municipal judge of Urbana and thus the General As-
sembly intended to and did recognize that the limitations as to
change of compensation contained in Section 20, Article II of the
Constitution would forbid any increase in compensation of such
judge during his existing term, which term does not expire until
December 31, 1953."
In reaching this conclusion I pointed out, p. 497 :
''It will be noted that Section 1591, General Code, does not
specifically provide that the compensation therein prescribed shall
be paid to incumbent judges who, by other provisions of the act,
continue in office until the end of their existing terms. Neither
does it specifically provide that such judges shall not receive the
benefits of any increased compensation provided therein. How-
ever, it must be presumed that if the provisions of Section 20,
Article II of the Constitution would forbid such increase, the
General Assembly acted with full knowledge of this fact and did
not intend any increase in compensation to affect the salaries of
incumbent municipal judges."
I proceeded thereafter to consider the effect of pertinent judicial de-
cisions and on the basis of such decisions reached the conclusion that Sec-
tion 20, Article I, Ohio Constitution, was applicable, and that the pro-
visions of Section 1591, General Code, must be interpreted so as to avoid
any conflict therewith.
In the matter of the source of the funds to be applied toward the pay-
ATTORNEY GENERAL 155
ment of the judges' compensation, as distinguished from the amount of
such compensation, there is no constitutional difficulty, and hence no neces-
sity for an interpretation which would have the effect of delaying the ap-
plication of this portion of the statute to the end of the presently existing
terms of office of the judges concerned. It remains, therefore, only to
ascertain when the provision in Section 1590, General Code, relative to
the source of the compensation of judges, became effective.
In Section 3 of Amended Senate Bill No. 14, the municipal court act,
124 Ohio Laws, 5'89, the act is declared to be an emergency measure. It
was signed hy the governor and so became effective on June 'IJ, 1951.
The emergency clause clearly indicated, however, that it was adopted to
permit the election in I95I of judges of courts to be newly estalblished on
January I, I952. It can well be supposed, therefore, that the act in its
entirety became effective when signed by the Governor only in such
limited sense as would permit such election, and that all other provisions
were not intended to be effective until January I, I952. But whether this
be the case or not, it will be observed in Section 2 of the act that pro-
vision was made for the repeal, effective January I, I952, of the several
acts under which the then existing municipal courts had been established.
Among such special acts was that relating to the Urbana Municipal Court,
\Yhich act, in pertinent part, provided in Section 1579-I630, General Code:
"Said municipal judge shall receive such compensation, pay-
able out of the treasury of the city of Urbana not less than nine
hundred dollars per annum, payable in monthly installments, as
the council of Urbana city may prescribe, and out of the treasury
of Champaign county not less than one hundred dollars per an-
num, payable in monthly installments, as the county commission-
ers may prescrilbe."
This special provision must, of course, be deemed controlling during
the period June IJ, I95I, to January I, I952, despite the conflicting general
provisions in Section I59I, General Code, since the later enactment as a
whole does not evince any plain intent to the contrary. See 37 Ohio Juris-
prudence, 4o8, section 149.
Accordingly, in specific answer to your inquiry, it is my opinion that
the provision in Section I 591, General 'Code, relative to the proportion in
which the city and county concerned shall pay the compensation of mu-
nicipal court judges, became effective on January I, 1952, as to all munici-
OPINIONS
pal courts in existence on that date regardless of the fact that certain of
such judges were, on such date, serving in a term to which they had been
elected under prior analogous special statutes, and thus were ineligible
during the remainder of such terms, to receive the mnount of compensa-
tion provided in such section.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
HISTORICAL SOCIETY, COUNTY-MAY USE MOl\EY RE-
CEIVED UNDER SECTION 2457-I GC TO PURCHASE OLD
HOUSE - EXAMPLE OF EARLY ARCHITECTURE - HOUSE
MAY BE USED TO STORE AND DISPLAY COLLECTION OF
HISTORICAL RELICS.
SYLLABUS:
A County Historical Society may use the money paid to it under Section 2457-1,
General Code, to purchase an old house for the purpose of preserving said house as an
example of early architecture, and, as an incident thereto, may use said house as a
place of storage and display for its collection of historical relics.
Columbus, Ohio, April 20, 1953
Han. H. Dennis Dannley, Prosecuting Attorney
Medina County, ?11edina, Ohio
Dear Sir:
I am in receipt of your recent request for my opinion which is quoted
in pertinent part as follows :
"I have received a request from the Medina County Histori-
cal Society of Medina, Ohio, for an opinion as to whether they
may legally use funds which they have received in the past years
from the County Commissioners under Section 2457-I
and also funds which they expect to receive in the future under
the same section for the purpose of purchasing a home in Medina
for use in storing and displaying their relics."
ATTORNEY GENERAL I 57
From the Medina County Historical Society's letter, which is attached
to your request, I note that the Society wishes to purchase this home for
the additional reason of preserving it as an example of early architecture.
That part of 'Section 2457- I, General Code, which sets forth how funds
appropriated by the county commissioners for a historical society are to be
spent is quoted as follows:
"* * * to be used for the promotion of historical work within the
borders thereof, and for the collection, preservation, and publica-
tion of historical material, and to disseminate historical informa-
tion of the county, and in general to defray the expense of carry-
ing on historical work in such county.
"Provided, that such funds may not be used for the construc-
tion of buildings * * * ."
The only part of the above quoted statute which bears close examina-
tion is that part which contains the proviso that the funds appropriated
may no,t be used for the construction of buildings. It is significant to note
that the Legislature in writing this prohibition into this la\v did not pro-
hibit the acquisition of real estate altogether. This being true, it logically
follows that the Legislature clearly contemplated that the money so pro-
vided might well be used for the purchase of a 1building of historical sig-
nificance.
I assume that the purchase of the old Medina home, which is for the
purpose of preserving it as an example of early architecture, involves the
purchase of a building of historical significance.
For the reasons hereinabove stated, it is my optmon, and you are
accordingly advised, that a County Historical Society may use the money
paid to it under Section 2457-I, General Code, to purchase an old house
for the purpose of preserving said house as an example of early architec-
ture, and, as an incident thereto, may use said house as a place of storage
and display for its collection of historical relics.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPINIONS
2534
r. EDUCATION, BOARD OF - PROPERTY OWNED, NOT
NEEDED FOR SCHOOL PURPOSES-BOARD MAY LA \V-
FULLY PERMIT TEMPORARY USE OF PROPERTY FOR
PURPOSE OTHER THAN SCHOOL USE AND ACCEPT
MONEY FOR USE - AGREEMENT SHOULD CONTAIN
LIMITATION ANY TIME PROPERTY NEEDED FOR
SCHOOL PURPOSES, OR IF IT SHOULD BE SOLD, THE
RIGHT TO THE USE OF THE PREMISES BY THIRD PART-
IES WOULD TERMINATE.
2. TEMBORARY USE OF PROPERTY UXDER REVOCABLE
UCENSE-MAY INCLUDE CONSTRUCTION AND OPERA-
TION OF SWIMMING POOL-BY AGREEMENT FACILI-
TIES TO BECOME PROPERTY OF BOARD BY WAY OF
GIFT UPON UNILATERAL TERMINATION OF LICENSE
BY BOARD.
SYLLABUS:
1. Except as the power may be implied as being necessary to carry into effect
some expressly granted power a board of education is not authorized to rent or lease
property held by it for the public school purposes of its district; but where a board of
'Cducation finds itself in possession of property which is not needed for school purposes
and which it cannot advantageously dispose of by sale, it may lawfully permit the
temporary use of said property for some purpose other than a school purpose, and it
may lawfully accept money for such use. Any agreement whereby third parties arc
permitted to use said premises under circumstances as mentioned, should contain a
limitation to the effect that at any time the school board might determine that the
property was needed for school purposes, or that it should be sold, the right to the use
of the premises by said third parties would terminate. Opinion )Jo. 4588, Opinions of
the Attorney General for 1932, p. 1006, approved and followed.
2. Such temporary use under such revocable license may properly include the
construction and operation of swimming pool facilities by the licensee, which facilities,
by agreement of the parties, are to become the property of the board by way of gift
upon the unilateral termination of such license by the board.
Clumbus, Ohio, April 24 .. 1953
Hon. Frank H. Karns, Prosecuting Attorney
Franklin County, Columbus, Ohio
Dear Sir:
Your request for my opinion reads as follows :
"I have Jbeen requested by members of the \Vorthington
School Board to request your opinion as to the authority of the
ATTORNEY GENERAL
\Yorthington Board of Education leasing a por.tion of an eighty-
acre school farm, located on the north side of State Route 161, to
the \Vorthington Cardinal Booster's Association to
1
be used by
said group under the incorporated name of Swimmic, a corpora-
tion not for profit, for the construction and operation of a swim-
ming pool and allied parking and play areas.
"I have examined the Opinions of the Attorney General for
1927, page 101; Opinions of the Attorney General for 1929, page
J-+03; Opinions of the Attorney General for 1930, page 1871;
Opinions of the Attorney General for 1931, page 127, and Opin-
ions of the Attorney General for 1932, page 1006."
I 59
The general question of the power of a board of education in acquir-
ing, holding and disposing of real and personal property was discussed in
Opinion ?\o. 4588, Opinions of the Attorney General for 1932, p. 1006,
the syllabus of which is as follows:
"r. Except as the power may be implied as 1being necessary
to carry into effect some expressly granted power a 1board of edu-
cation is not authorized to rent or lease property held by it for
the public school purposes of its district.
"2. \Vhen a board of education finds itself in possession of
property which is not needed for school purposes and which it
cannot advantageously dispose of by sale, it may lawfully permit
the temporary use of said property for some purpose other than
a school .purpose, and it may lawfully accept money for such use.
Any agreement whereby third parties are permitted to use said
premises under circumstances as mentioned, should contain a
limitation to the effect .that at any time the school board might
determine that the property was needed for school purposes, or
that it should be sold, the right to the use of the premises by said
third par.ties would terminate."
The conclusion stated in paragraph one of the syllabus of this opinion
is based primarily upon the rule that the boards of education possess only
statutory powers, the writer being unable to find any such power in the
then existing statutes, either by expression or by necessary implication.
The statutes do not appear in the meantime to have :been broadened to
any extent with respect to such power, and I am inclined, therefore, to
conclude that the general rule thus stated is still declarative of the law.
In support of the conclusion stated in paragraph two of the 1932
opinion, supra, we find the following statement in the opinion, pp. 1007,
roo8:
r6o OPINIONS
"There are circumstances, however, which in my opm10n,
justify a board of education in leasing property where such leasing
is a mere incident to .the ownership of such property. When a
board of education finds itself in possession of property which is
not needed for school purposes and which it cannot advanta-
geously dispose of by sale, it may ,be said, in my opinion, that the
power to lease that property temporarily, until it may be advanta-
geously sold, is an incident to the possession of the property. If
such property cannot be advantageously sold, and may be leased
so that the school district receives some benefi.t from the owner-
ship of the property which it would not receive if it lay idle, it
certainly cannot be said that the board exceeds its power in so
leasing the property. This often happens where a new school
building is erected on a new location, leaving the board in posses-
sion of a school lot and building which are not needed at that time
for school.purposes and which, on account of business conditions,
may not at that time be advantageously sold. This of.ten happens,
especially in city school districts. Any such lease should, in my
opinion, be limited so that it would terminate at any time the
school board might determine that the property was needed for
school purposes, or that it should be sold.
"To acquire property, however, which the board does not
intend to utilize for school purposes, and which is not needed for
school purposes, merely for rhe purpose of renting or leasing the
same is, in my opinion, wholly unauthorized, and beyond the
powers of the board."
In the instant case, I am informed, the land in question IS a portion
of an "8o acre school farm" and is a part of a tract which was conveyed
nearly one hundred fifty years ago by way of gift in a partition deed to
the local school authorities for school purposes. I am further informed
that the portion of the .tract involved is not presently needed for school
purposes and that the board does not deem it advantageous to sell it. This
being the case, I perceive no reason why the rule stated in the second para-
graph of the syllabus of the 1932 opinion should not be deemed applicable.
In the application of such rule to the facts in the case at hand, I note
the following statement in a letter from counsel for the proposed lessee:
"I enclose proposed articles of incorporation of the corpora-
,tion not for profit, the proposed lessee.
"The lease would be for a portion of the lot, the use of which
.for the purposes of the lessee would in no way interfere with
school activities and would be terminwble 'by the Board of Edu-
cation upon a reasonable notice. It would provide for only nominal
rental or other consideration."
ATTORNEY GENERAL r6r
The purpose clause in the proposed corporation not for profit, the
proposed lessee, is as follows:
"The purpose or purposes for which said corporation 1s
formed are :
"To lease from the Board of Education of the
School District ground required for the construction of a swim-
ming pool and related facilities ; to construct and operate a swim-
ming pool and related facilities; to borrow and pledge assets and
revenues of the corporation to secure the repayment of funds
borrowed; to receive and accept donations and contributions for
the accomplishment of the foregoing purposes and to perform all
acts and engage in all activities necessary or desirable in connec-
tion wi,th the foregoing.
''To transfer, convey and turn over to the Board of Educa-
tion of the Worthington School District or its nominee, all prop-
erty and assets of t'he corporation if, as and when requested so to
do by said Board of Education of the v.,r orthington School Dis-
trict."
Assuming that the proposed instrument of conveyance to the proposed
corporation is drawn in such a way as to give the board a legal right to
terminate the arrangement at such time as it is determined that the land
involved is needed for school purposes, or that it can be sold to advantage,
I perceive no objection to the proposed arrangement, for it would appear
that such a provision in the conveyance would be sufficient notice to the
lessee, and to parties claiming under the lessee, to estop the assertion of
any claim against the board on the basis of fixed improvements installed
on the premises while the lessee is in possession. In passing, it may be
observed that such a conveyance may more properly be deemed a mere
license revocable at the option of the grantor, rather than a lease in the
ordinary sense.
\Vhen the protposed arrangement is viewed as a wlhole, it becomes ap-
parent as a device whereby funds will be raised by a civic group to finance
the construction of a swimming pool which will eventually become the
property of .the Jboard by way of gift. Boards of education are, of course,
authorized by statute to accept gifts of property. See Section 4834-9, Gen-
eral Code. Nor is it necessary to anticipate any difficulty in connection
with the power of the board .to operate such swimming pool facility when
the gift is consummated, since the board is required, under the provisions
of Section 4837, General Code, to prescribe courses in physical education,
OPINIONS
and it has become common practice, in those districts where funds are
available .to provide the proper facilities, for such physical education pro-
grams to include instructions in swimming.
For these reasons I conclude, in specific answer to your inquiry, that:
I. Except as the power may be implied as being necessary to carry
into effect some expressly granted power a board of education is not au-
thorized to rent or lease property held hy it for the public school purposes
of its district; but where a board of education finds itself in possession of
property which is not needed for school purposes and which it cannot
advantageously dispose of by sale, it may lawfully permit the temporary
use of said proper,ty for some purpose other than a school purpose, and it
may lawfully accept money for such use. Any agreement whereby third
parties are permitted to use said premises under circumstances as men-
tioned, should contain a limitation to the effect that at any time the school
board might determine that the property was needed for school purposes,
or that it should 1be sold, the right to the use of the premises by said third
parties would terminate. Opinion No. 4588, Opinions of the Attorney Gen-
eral for 1932, p. 1000, approved and followed.
2. Such temporary use under such revoca,ble license may properly in-
clude the construction and operation of swimming pool facilities by the
licensee, which facilities, by agreement of the parties, are to become the
property of the board by way of gift upon the unilateral termination of
such license by the board.
Respectfully,
C. \VrLLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
2569
1. TAX LEVY, SPECIAL VOTED-TO PROVIDE DEFICIENCY
IN REVENUES- GENERAL HEALTH DISTRICT- REG-
ULA:R LEVY WITHIN TEN MILL TAX LIMITATION-IN-
ADEQUATE TO SUPPLY DISTRICT WITH FUNDS FOR
OPERATION-SPEGAL LEVY LIMITED TO AN
NECESSARY TO SUPPLY SUCH INSUFFICIENCY-SEC-
TION 1z61-4oa GC.
2. GENERAL HEALTH DISTRICT- TRUSTEES- NO AU-
THORITY TO SURRENDER FUNDS AVAILABLE TO IT
TEN MILL LIMIT ATION-?I'!A Y NOT OBTAIN
SPECIAL VOTED LEVY GOVIERING ENTIRE OPERA TlNG
BUDGET FOR ENSUING H6CAL YEAR.
SYLLABUS:
1. The provision of Section 1261-.:!0a, General Code, for a special mted tax leq
is for the purpose only of .providing for a deficiency in the revenues of a general
health district when the regular levy within the ten mill tax limitation \vill not supply
such district with sufficient funds for its operation, and such special levy is limited to
an amount necessary to supply such insufficiency.
2. The trustees of a general health district have 110 authority to surrender the
funds available to it within the ten mill limitation, and seek to obtain under the pro-
visions of Section 1261-40a of the General Code, a si)ecial voted levy co\ering their
entire operating budget for the ensuing fiscal year.
Columbus, Ohio, fl'lay J' 1953
Hon. Howard G. Eley, Prosecuting Attorney
Darke County, Greenville, Ohio
Dear Sir:
I have before me your request for my opinion on the following ques-
tion:
"Can a general health district surrender the funds availa;ble
to it within the ten mill limitta:tion and meet its entire .fiscal budget
from funds derived from a levy passed under Section 1261-
40- (a), .providing the tax duplicate of t'he general health district
is of sufficient size to provide the health district's entire budget
with a levy of less than 5/IO of one mill?"
OPINIONS
Section 126I-40, General Code, reads in part, as follows:
"The board of health of a general health district shall, an-
nually, on or before the first Monday of April, estimate in itemized
form the amounts needed for the current expenses of such dis-
tricts for the fiscal year beginning on the first day of January next
ensuing. Such estimate shall be certified to the county auditor and
<by him submitted to the budget commissioners which may reduce
any item or items in such estimate but may not increase any item
or the aggregate of all items. The aggregate amount as fixed by
the budget commissioners shall be apportioned by the county
auditor among .the townships and municipalities composing the
health district on the basis of taxable valuations in such townships
and municipalities. The district board of health shall certify to
the county auditor the amount due from the state for the next
fiscal year as provided in section I 26r -39 of the General Code,
which shall be deducted from the total of such estimate before an
apportionment is made. * * *"
Section 126I-40a, General Code, reads in part as follows:
If the aggregate alllount necessary to meet the current ex-
penses of the fiscal year beginning on the first day of January next
ensuing, as set by the budget commissioners pursuant to section
1261-40 of the GeneralCode, will not be forthcoming to the board
of health of such district out of the district health fund because the
amount of ta.1:es to be raised during the ensuing year 1.vithin the
ten mill limita-tion will be insufficient, the board of health of the
general health district shall certify the .fact of such insufficiency to
the county commissioners of the county in which such general
health district is located who are hereby ordained to be a special
taxing authority for the purposes of this section only, and notwith-
standing any other provisions of law to the contrary, the board of
county commissioners of any county in which a general health
district is located shall be the .taxing authority for such special levy
outside the ten mill limitation. The county commissioners shall
thereupon, at any time prior to September fifteenth of the year
preceding that in which the insufficiency will exist, by vote of
t\\o-thirds of all the members of said body, declare by resolution
that the amount of ta.1:es which may be raised 'lvithin the ten mill
limitation will be insufficient to provide an adequate amount .for .the
necessary requirements of such <health district within the county,
that it is necessary to levy a tax in excess of such limitation in
order to provide the board with sufficient funds to meet its current
expenses.
"Such resolution shall specify the amount of increase in rate
which it is necessary to levy, which levy shall not exceed five-
tenths of one mill, and shall be submitted to the electors of the
ATTORNEY GENERAL
health district at any general election. The additional levy, if ap-
proved by the electors, shall not be for a longer period than one
year. * * *" (Emphasis added.)
It will be noted that the budget referred to in Section 1261-40 is in-
tended to cover the amount needed for the entire expenses of the year
following. The estimate is submitted by the board of health but is subject
to reduction by the budget commissioners.
Section r261-40a contemplates that the amount that will be realized
by the board of health for its operation, out of the tax levy based on such
revised budget, together with the state subsidy provided by Section 1241-39,
General Code, may be found insufficient for its needs, by reason of the ten
mill tax limitation contained in Article XII, Section 2, of the Constitution.
This insufficiency, so caused, is the sole 1basis for a special levy ap-
proved by the electors of the health district. And that fact, which must be
found and declared by the board of health, is in my opinion, not only the
basis, but also the measure of the right to secure the special levy.
It appears clear .from the language of these two sections, that the only
purpose of the submission of this extra levy is to suppl'}' the deficiency so
caused_: and except for that purpose there is no authority given to the
board of health or to the county commissioners acting for it, to submit
such a proposal to the electors. This appears to me particularly true when
we consider that the procedure above outlined, covers the entire fiscal opera-
tion of the district 'board of health. Such board has no function except to
take care of the health of the district. In that respect, it differs from the
various taxing subdivisions in that their functions cover a variety of pur-
poses and operations, including the making of improvements, etc.
By way of contrast, I turn to the statutes which authorize taxing sub-
divisions, generally, to provide extra finances both by the issuance of bonds
and by special levies of .taxes upon the approval of the electors. In Sec-
tion 5625-I5, General Code, we find provisions authorizing the taxing au-
thority of any subdivision to submit a proposition to the electors for the
levy of taxes outside of the ten mill limitation of the Constitution. Sec-
tion 562 5- I 5 provided in part, as follows :
"The taxing authority of any subdivision at any time prior
"to September I 5, in any year, by vote of two-thirds of all the
members of said body, may declare by resolution that the amount
of taxes which may be raised within the ten mill limitation will be
insufficient to provide an adequate amount for the necessary re-
166 OPINIONS
quire111ents of the snbdivisio11, and that it is necessary to levy a
tax in excess of such limita,tion for any of the following purposes:
"I. Current expenses of the subdivision.
"2. For the payment of debt charges on certain described
bonds, * * *
"4. For a public library * * *
"j. For a municipal university * * *
"6. For the construction or acquisition of any specific
permanent improvement * * *
"7. For the general construction * * * of roads and bridges
in counties.
"8. For recreational purposes,***" (Emphasis added.)
Here, it will be noted that the basis of the right to submit this extra
levy is a finding that the taxes that may be raised within the ten mill
limitation will be insufficient to provide an "adequate amount for the
necessary requirements of the subdivision," meaning evidently, all of the
many functions and operations which the subdivision has a right to provide
for, and which its legislative body may from time to time find desirable.
This language opens the way for the taxing strbdivisions to submit such
proposition for a special tax outside the ten mill limita.tion for any of the
authorized purposes, wholly irrespective of fhe fact that they have not
presently used up the entire ten mill allowance. In other words, with the
approval of the electors, any of these levies could be placed entirely out-
side the ten mill limitation, leaving a margin for necessary and desirable
levies and expenditures within that limitation.
The extra taxes so authorized are not confined to supplying a "de-
ficiency" in revenues otherwise available.
\Ve turn now to the statutes relative to .the issuance of bonds by the
yarious subdivisions which might exceed the amount which a sulbclivision
i,: authorized to have outstanding without a vote of the people, or might
imolve a tax in excess of the one mill limitation or both. We note Section
2293-19, General Code, which provides in part, as follows:
"The taxing authority of any subdivision may submit to the
electors of such subdivision the question of issuing any bonds
which said subdivision has power to issue. vVhen it desires or is
required by law to submit any bond issue to the electors, it shall
pass a resolution, declaring the necessity of such bond issue and
fixing the amount, purpose and approxima.te elate, interest rate
and maturity, and also the necessity of the levy of a tax outside of
ATTORNEY GENERAL
the limitation imposed by Article XII, section 2 of the constitu-
tion to pay .the interest on and to retire the said bonds. * * *"
Here it will be noted that specific authority is given to the taxing au-
thority of any subdivision "to submit to the electors the question of issuing
any bonds which said subdivision has power to issue." Such extra levy
may and may not cause the amount of outstanding bonds to exceed the
amount allowed by law, and may and may not immediately involve a tax in
excess of the constitutional limitation, but if it does, that proposition is also
submitted to the electors for their approval. Again, such submission is not
confined to a "deficiency" in the revenues of the subdivision.
Your letter speaks of a "surrender" of the funds available to the
board of health within the ten mill limitation. I have no means of knowing
to whom or for what purpose such surrender is proposed. However, I think
it safe to assert that in view of the provisions of the statutes above dis-
cussed, the board has no right to resort to the extra tax levy contemplated
by Section I 26I -40a of the General Code, until it has allocated to its require-
ments the funds provided by the regular levies, and it has been determined
that there will be a deficiency.
I know of no authority whereby trustees of a health district may sur-
render their ordinary revenues in order to increase the amount that they
may raise through a special voted levy.
In specific answer to your question it is my opinion:
r. The provision of Section I26I-40a, General Code, for a special
voted tax levy is for the purpose only of providing for a deficiency in the
revenues of a general health district when the regular levy within the ten
mill tax limitation will not supply such district with sufficient funds for its
operation, and such special levy is limited to an amount necessary to supply
such insufficiency.
2. The trustees of a general health district have no authority to sur-
render the funds available to it within the ten mill limitation, and seek to
obtain under the provisions of Section I26I-40a of the General Code, a
special voted levy covering their entire operating budget for the ensuing
fiscal year.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
168 OPINIONS
2573
QUAIL AND GROUSE-LEGALLY RAISED AND COMMER:CI-
ALLY SLAUGHTERED IN ANOTHER STATE-IDENTIFI-
ABLE-l'dAY BE LAWFULLY SOLD IN OHIO.
SYLLABUS:
Quail and grouse legally raised and commercially slaughtered in another state, and
identifiable as such, may be lawfully sold in Ohio.
Columbus, Ohio, May 7, 1953
Charles A. Dambach, Chief, Division of Wildlife
Department of Natural Resources
Columbus, Ohio
Dear Sir:
This will acknowledge receipt of your letter of recent date requesting
my opinion as follows:
"The question has arisen concerning the interpretation of
Sub-Section D of Section 1396 of the Ohio General Code and Sec-
tion 1390 of the General Code relative to the sale of quail and
grouse in Ohio which have been legally raised in another state
and legally acquired from that state. Accordingly your opinion is
requested as to whether or not it is legal to market such birds in
this state."
Sub-section d, Section 1396, General Code, provides:
"d. No person within the state shall buy, sell, expose for
sale, offer for sale or have in possession for any such purpose any
of the fish, or any part thereof, mentioned in this section \vhether
taken within or without the state, except such fish as are pro-
tected by law and taken by licensed commercial fishermen in the
Lake Erie fishing district and in other waters wherein fishing with
nets is licensed by law. Nothing in this section shall prohibit the
sale of fish taken by angling in the Lake Erie fishing district which
are of a length provided by law and permitted .to be taken and
sold by licensed commercial fishermen. No person within the
state shall buy, sell, expose for sale, offer for sale or have in
possession for any such purpose any game bird or game quad-
ruped, or any part thereof, whether taken within or without the
state. Each such fish, game bird or game quadruped or part
thereof, bought, sold, exposed .for sale, offered for sale or had in
ATTORNEY GENERAL
possession for any such purposes, contrary to the provtstons of
this section or council order then in effect shall constitute a sepa-
rate offense."
r6g
From a reading of the provisions of this subsection it will be seen that
the sale of game birds or game quadrupeds, whether "taken" within or
without the state, is prohibited in Ohio. There can be no question but that
quail and grouse are game birds as this term is defined in Section r 390,
General Code, and the only question presented is whether these birds raised
commercially in another state, according to the laws of such state, are game
birds "taken" in such state within the meaning of the sub-section quoted
above. In this regard it is necessary to consider the definition of the word
"take" or "taking" as defined in Section 1390, General Code. It is provided
therein:
"Words and phra-ses as used in this chapter shall be con-
strued as follows : * * *
"Take or taking: Includes pursuing, shooting, hunting, kill-
ing, trapping, angling, fishing with a trot line, or netting any clam,
mussel, crayfish, aquatic insect, fish, frog, turtle, wild bird or
wild quadruped, and any lesser act, such as wounding, or placing,
setting, drawing, or using any other device for killing or capturing
any such wild animal, whether it results in such killing or captur-
ing or not; includes also every attempt to kill or capture and every
act of assistance to any other person in killing or capturing or
attempting to kill or capture any such wild animal."
As defined in this section the word "take" or "taking" would seem
to have reference only to the seizure or slaying, in any manner, of anrimals
living in a wild state. \i\Thile the word "killing" if used unrestrictedly is of
broad import and could conceivably embrace the butchering of commerci-
ally raised quail and grouse its use in Section I 390, General Code, would
seem to be qualified by the vmrds preceding and following it and limited,
accordingly, to acts of slaying animals found in an unrestrained or wild
state. This qualification by association, whereby a word of general reason-
ing is limited by special or qualified words with which it is grouped, is a
rule of interpretation finding in the maxim "noscitur a sociis."
The application of this rule is discussed in Horack's Sutherlrand Statutory
Construction, Vol. 2, at page 393, as follows:
"In case the legislative intent is not clear, the meaning of
doubtful words may be determined by reference to their associa-
tion with other associated words and phrases. Thus, when two or
qo OPINIONS
more words are grouped together, and ordinarily have a similar
meaning, but are not equally comprehensive, the general word
will be limited and qualified by the special word. But this is so,
only if the result is consistent with the legislative intent, for the
maxim 'noscitur a sociis' is a mere guide to legislative intent. The
rule will not be applied where there is 'no ambiguity' or to thwart
the legislative intent, or to make general words meaningless. * * *
"As the Supreme Court of the United States has said, 'These
rules are not masters of the cour.ts but merely their servants to aid
in <l!Scertaining the legislative intent. They afford a mere sugges-
tion to the judicial mind that where it clearly appears that the
lawmakers were thinking of a particular class of persons or objects
their words of general description may not have been intended to
embrace any other than those within the class.'"
As stated by the author of this quotation the rule represented by this
maxim is merely a guide to a determination of the intent of the legislature
and a purely formalistic application of the rule is to be avoided. Its appli-
cation in this instance, however, is in my opinion consistent with the legis-
lative purpose behind the enactment of the fish and game laws as a whole.
Section 1390 et seq., General Code, was enacted to protect, preserve
and promote animal and aquatic life within the state of Ohio. That pro-
hibition, contained in sub-section d, Section 13, General Code, on the
sale in Ohio of game birds and quadrupeds taken without the state would
appear to be a measure designed to .forestall the poaching of Ohio game
and its sale under the guise that it was taken in another state. This threat
is largely eliminated, however, in the situation here considered and similar
instances where game birds or quadrupeds are commercially raised in an-
other state. \iVhile your letter is silent on this point it would seem likely
that these commercially raised birds are butchered, dressed and packaged
out of state and stamped or marked accordingly. No problem of identity
would arise in such case. If these birds are not so marked or identified the
wild life council could promulgate a rule requiring that they be stamped
in a manner which would clearly indicate their origin. AuthDrity for such
an order can be found in Section 1438-1, General Code. It is provided
in pertinent part therein:
"* * * The wild life council shall have authority to regu-
late * * *
" (c) Buying, selling, offering for sale or exposing for sale
any such animal or part thereof."
ATTORNEY GENERAL
The question presented by your letter is similar to the question con-
sidered by my immediate predecessor in office in Informal Opinion No.
I29, for I9.)0. That question concerned the legality of selling, in Ohio,
rabbits or hares imported .from Australia. It was concluded that such
sales '"ere lawful. In the body of the opinion at page 5 I I, it was stated:
''* * * It is clearly evident also that the construction of Sec-
tions I39I and 1396, General Code, in a way wij1ich would forbid
the importation into Ohio of a food product consisting of the
flesh of \Yild rabbits taken in Australia would in no wise promote
the purpose of the Conservation Act nor accord with the con-
serYation policy of the state of Ohio. Such interpretation would
do nothing whatever 'to guarantee a future supply for such wild
animals and to provide for their present use and development for
public recreation and food suppl'J.' Indeed, such interpretation
\\ould have the opposite effect with respect to the food supply
available to the public. It would deny to the people of Ohio a
source of inexpensive meat products which, in view of current
prices of domestic meats, would probably be grea.tly welcomed in
this state, especially by citizens in the lower income groups. * * *
"It is true that the statute forbids sale or possession in Ohio
of hare or rabbits, out of season, which have been taken 'wirhin
or ,,ithout the state.' This is apparently a measure designed to
aid in enforcement of the law based on a notion that the identity
of game taken in Ohio could only with great difficulty be distin-
guished from that taken in a neighboring state. It is clear that no
such problem of identification would exist with respect to the
Australian rabbit products since they are individually packaged
and so stamped as to indicate their origin."
I am in accord with the conclusion reached in the above opinion and
think the reasoning upon which it was based applicable, in part at least, to
the present case.
Based upon the foregoing considerations and in specific answer to your
question, I am of the opinion that quail and grouse legally raised and com-
mercially slaughtered in another state, and identifiable as such, may be
lawfully sold in Ohio.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPJNIONS
?----
-J/J
r. TEACHER FIRST EMPLOYED IN SCHOOL DISTRICT-
LESS THAN EIGHT HUNDRED PUPILS- SUBSEQUENT
TO SEPTEMBER r, 1941-EFFECTIVE DATE, FORMER SEC-
TION 7690-2 GC, NOW SECTION 4842-8 GC- TEACHERS'
TENURE ACT- EMPLOYMENT AND REEMPLOYMENT
GOVERNED BY PARAGRAPHS a, b, c, d, SECOND PROVISO
CONTAINED IN SECTION.
2. TEACHER UNDER ABOVE C 0 N D IT I 0 N S vVHO IS
ELIGIBLE UNDER LAW FOR CONTINUING CONTRACT,
::\1A Y BE RECOMMENDED BY COUNTY <SUPERINTEND-
ENT FOR REEMPLOYMENT ON CONTINUING CON-
TR.A!CT-BY MA.JORITY VOTE OF MEMBERSHIP, BOARD
OF EDUCATION MAY REJECT RECOMMENDATION.
3. TEACHER AFTER ORIGINAL EMPLOYMENT \VAS RE-
EMPLOYED ON THREE YEAR CONTRACT-MAY BE
REEMPLOYED-BOARD UNDER NO OBLIGATION TORE-
E::\IPLOY HIM-IF REEMPLOYED UNDER SECTION 4842-8,
PARAGRAPH d, HE MUST BE GIVEN A FIVE YEAR CON-
TRACT OR BOARD MAY AT ANY TIME GRANT CONTINU-
ING
SYLLABUS:
I. \\
1
here a teacher is first employed in a school district of less than eight hundred
pupils, subsequent to the first day of September, 1941, the effective date of former
Section 7690-2, now Section 4842-8, of the General Code, known as the Teachers
Tenure Act, his employment and reemployment are governed by the provisions of para-
graphs a, b, c and d, of the second proviso contained in such section.
2. :\ teacher who was first employed in a school district of less than eight
hundred pupils, subsequent to the first day o{ September, 1941, the effective date of
the Teachers Tenure Act, and who is eligible under the law for a continuing contract,
may be recommended by the county superintendent for reemployment on such continu-
ing contract, but the board of education may reject such recommendation by a majority
vote of its membership.
3. Such teacher, who. after his original employment was reemployed on a three
year contract, may upon the expiration of that contract, be reemployed, but the board
is under no obligation to reemploy him. However, if he is then reemployed under the
provisions of paragraph "d" of the second proviso of Section 4842-8, General Code, he
must be given a five year contract or the board may at any time grant him a continuing
contract.
ATTORNEY GENERAL
I/3
Columbus, Ohio, May 8, 1953
Hon. Hugh I. Troth, Prosecuting Attorney
Ashland County, Ashland, Ohio
Dear Sir:
I have before me your letter, requesting my opinion and reading as
follows:
"I hereby request your opmwn on the following questions
under O.G.C. 4842-8:
'":Must a school board of a school district of under &lo pupils
give a continuing contract .to a teacher eligible for continuing
service, by reason of the fact that he has had two three-year con-
tracts and is recommended by the county superintendent of
schools, if the vote of the school board is three against hiring
the teacher and two for hiring the teacher?
"Under the same circumstances, must a school board give the
teacher a contract for a five year period under subsection (d) of
4842-8 ?"
Under the provisions of Section 4842-6, General Code, all .teachers are
to be employed only upon the nomination of the superintendent, in the
case of local districts, upon the nomination of the county superintendent.
There is nothing in that section which requires the board to employ a
teacher merely because the superintendent recommends his employment.
Section 4842-7, General Code, requires vhat teachers are to be em-
ployed under contracts and divides such contracts into limited contracts
and continuing contracts. Limited contracts are for terms of years not
exceeding five; continuing contracts are defined as follows:
"* * * A continuing contract shall be a contract which shall
remain in full force and effect until the teacher resigns, elects to
retire, or is retired pursuant to section 7896-34 of the General
Code, or until it is terminated or suspended as provided by law
and shall be gmnted only to .teachers holding professional, perma-
nent or life certificates. * * *"
Section 4842-8, General Code, reads as follows:
"Teachers eligible for continuing service status in any school
district shall be those teachers qualified as to certification who
within the last 1five years have taught for at least three years in the
district, and those teachers who, having attained continuing con-
174
OPINIONS
tract status elsewhere, have served two years in the district, but
the board of education, upon the superintendent's recommenda-
tions, may at the time of employment or at any time within such
two-year period declare any of the latter teachers eligible.
"Upon the recommendation of the superintendent of schools
that a teacher eligible for continuing serz;ice status be re-employed,
a continuing contract shall be entered into between a board of
education and such teacher unless the board by a three-fourths
vote of its full membership rejects the superintendent's recom-
mendation. However, the superintendent may recommend re-
employment of such teacher, if continuing service status has not
previously been attained elsewhere, under a limited contract for
not to exceed two years, provided that written notice of the in-
tention to make such recommendation 'has been given to the
teacher with reasons .therefor on or before the thirtieth dav of
April, but upon subsequent reemployment only a continuing ~ o n
tract may be entered into.
"Provided, however, that on or before September I, 1941, a
continuing contract shall be entered into by each board of educa-
tion wi.th each teacher holding a professional, permanent or life
certificate who, at the time of the passage of this act, is complet-
ing five or more consecutive years of employment by said board.
"A limited contract may be entered into by each board of
education with each .teacher who has not been in the employ of
the board for at least three years and shall be entered into, re-
gardless of length of previous employment, with each teacher
employed by the board who holds a provisional or temporary
certificate.
"Any teacher employed under a limited contract shall at the
expiration of such limited contract be deemed re-employed under
the provisions of this act at the same salary plus any increment
provided by the salary schedule unless the employing board shall
give such teacher written notice of its intention not to re-employ
him or her on or before the thirtiet:h day of April or thirty days
prior to the termination of such teacher's school year, which-
ever date occurs the earlier. Such teacher shall be presumed to
have accepted such employment unless he shall notify the board
of education in writing to the contrary on or before the first day
of June, and a contract for the succeeding school year shall be
executed accordingly. Provided, however, that in school districts
of under eight hundred pupils, the folloanng contract system shall
control:
a. Beginning teachers, who have not previously been em-
ployed as a teacher in any school, shall be hired for one year.
b. New teachers, who have had at least one year's experience
as teachers in other schools, shall be employed for a period of time
ATTORNEY GENERAL
commensurate with their past experience at the discretion of the
hiring board of education, provided that no such contract shall
be for more than five years.
"c. U 1 ~ o n re-employment after the termination of the first
contract, the new contract shall be for not less than two years
nor more than five years provided that the teacher's educational
qualifications have been fulfilled and the teacher's work has been
satisfactory.
''cl. l.ipon re-employment after the termination of the sec-
ond contract, the teacher's contract shall be for five years and
subsequent renewal thereof shall be for five-year periods, or the
board of education may at any time grant a continuing contract."
(Emphasis added.)
I/j
This section as enacted in the new school code of 1943, 120 0. L.,
47 5, "as substantially the same as former Section 7690-2, r 19 Ohio Lav.;s,
452. The new section has undergone slight amendment, but without sub-
stantial change of its general provisions.
It will be noted that the first four paragraphs and all but the last
sentence of the fifth paragraph of Section 4842-8, are general in their
terms and, standing alone, would apply to all school districts, regardless
of their number of pupils. But the last sentence of the fifth paragraph
introduces an exception:
'Provided, however, that in school districts of under eight
hundred pupils, the follouring contract system shall control."
(Emphasis added.)
At first thought, it might appear that the legislature intended to
take these small districts entirely out of the provisions of the fore part
of the section, and establish a wholly different procedure and quite dif-
ferent rights. There is some support for that conclusion in the fact that
whereas the general provisions give teachers certain definite rights to
continuing contracts under certain conditions, paragraph "d", relating
to these small schools, concludes with the statement that "the board of
education may at any time grant a continuing contract." Furthermore,
these lettered paragraphs "c" and "d'' give these teachers certain special
rights not enjoyed by teachers generally, as to the term of their renewal
contracts. It appears, however, upon a close analysis 0f the section that the
special provisions relative to the small districts relate only to the term
for which they are to be employed, and that they have some of the rights
1J{} OPINIONS
set out m the general provisions. State ex rei. Foster v. Board of Edu-
cation, ISI Ohio St., 413.
It becomes important to note the date of the passage of the original
act, to wit, June 2, I941; also the date when it took effect, to wit, Sep-
tember I, 1941. The first is the time as of which each teacher who had
had "five or more consecutive years of employment" by any board was to
be given a continuing contract.
That this right belonged to a teacher in the districts having less than
eight hundred pupils was held by the Supreme Court in the case of State
ex rei. Bis'hop v. Board of Education, 139 Ohio St., 427. There were
three other teachers' claims which were considered with the claim of
Bishop, all involving the right of the four teachers to receive continuing
contracts under that provision of Section 7690-2, later Section 4842-8,
which then read:
"* * * Provided, however, that on or before September I,
194I, a continuing contract shall be entered into by each hoard of
education with each teacher holding a professional, permanent or
life certificate who, at the time of the passage of this act, is com-
pleting five or more consecutive years of employment by said
board.***"
That provision was introduced into the teachers Tenure Act, with the
obvious purpose of giving to all teachers who at the time of the passage
of the original act, ihad taught in a given district for five or more con-
secutive years, continuing contracts without any nomination hy the super-
intendent and independent of the will of the board.
The court found that each of the four claimants qualified for the
continuing contracts which they claimed under that provision, and held:
"r. Under the first proviso of Section 7690-2, General Code
(II9 Ohio Laws, 45I), a part of the Ohio Teachers' Tenure Act,
a teacher in the public schools holding a professional, permanent
or life certificate, who was completing 1five or more consecutive
years of employment by any board of education at the time of the
passage of the act, was entitled to the tender of a continuing con-
tract of employment by such board on September r, 1941, or
"ithin a reasonable time thereafter."
But in the course of the opinion, at page 442, it was said:
''In the Oscar M. Bishop case, two additional reasons are
advanced as to why he should not succeed in his action. First. it
ATTORNEY GENERAL
is urged that since the ::\lt. Orab Village School District has an
average daily attendance of less than 8oo pupils, relator cannot
claim the benefit of the first proviso of Section 7690-2, General
Code. From an aual;,sis of that part of the section relating to
school districts of under 8oo pupils and embracing subdivisions
a, b, c and d, we are satisfied that it has reference only to be-
ginning teachers, new teachers, and to their reemployme11t, and
docs not affect the relator Bishop." (Emphasis added.)
177
The court used practically the same language as paragraph j, of its
syllabus, in the following words:
;;The second proviso of Section 7690-2, General Code, re-
lating to a contract system in school districts of less than eight
hundred pupils, has reference to beginning teachers, new teachers
and to their re-employment, and is without application to a certifi-
cated teacher completing five or more consecutive years of em-
ployment in such a school district."
The reason why paragraphs a, 'b, c and cl, of the second proviso could
not affect Bishop is obvious when we note that he had been employed by
the board in question for a number of years before the Teachers Tenure
Act came into being. Until it was enacted, there was no such classifi-
cation in the school laws as to "beginning teachers" and "new teachers."
Consequently, the regulation as to re-employment of these teachers could
have no bearing on him.
In other words, and putting it generally, those teachers who were
employed in any school district ;prior to September 1, 1941, the effeotive
date of that Act, were thereafter to have tihe generwl rights as to reemploy-
ment, set out in the fore part of Section 4842-8 supra, and the related
sections to which I ha-ve referred, whiie those teachers who came into
service of a school district 'having less than eigiht hundred pupils, after
September I, 1941, came in either as "beginning teachers" or "new
teachers" as defined by the statute, and thereafter, if re-employed, were
to be governed by the provisions of p a r a g r ~ p h s "c" and "d" of the
"second proviso."
This distinction IS rather clearly pointed out in Opinion No. 4025,
Opinions of the Attorney General for 1941, page 627. The opinion was
rendered shortly prior to the decision of the Bishop case, hut it bears
a striking resemblance to the court's pronouncement. The second paragra;ph
of the syllabus reads ws follows:
;;Under the terms of Section 7690-2, General Code, as enacted
OPINIONS
in House Bill No. 12r, of the 94th General Assembly, effecti,e
September r, 1941, teachers in the public schools of all school
districts other than 'new teachers' and 'beginning teachers,' as
those phrases are defined in the exception therein relating to dis-
tricts of under eight hundred pupils, are subject to the tenus of
the act genera:lly, exclusive of this exception, with respect to their
right to be granted what are termed therein 'continuing con-
tracts.' " (Emphasis added.)
My attention has been ca:lled to an unreported case decided in 1944,
by the Court of Appea>ls of Athens County, being No. 482, State, ex rei.
\Villiams v. Board of EducatiQn. Trhe relator showed that she held a life
certificate and had been employed as a teacher in !lhe schools of the district
from the r8th day of January 1937, until the time of filing her petition,
August 29, 1944, exceQ)t during the school years of 1940 and 1941; that
the school district had less than eight hundred pupils. She further claimed
that Sihe was duly nominated by the superintendent for reemployment for
the school year 1944-1945; that the respondent board had not rejected
the recommendation by a three-fourths vote, but had refused to grant a
continuing contract. Tlhe prayer was for a writ of mandamus commanding
the granting of such continuing contract.
It should be noted that she had only four and one-half years of
teaching credit in <the district prior to June 1, 194r, and therefore could
not and did not claim the right to the automatic grant of a continuing
contract. The record of the case shows no pleading by the board but an
entry was filed November ro, 1944, wherein the court ordered the re-
spondent tboard to grant relator a continuing contract. The entry does not
disclose the grounds upon which the court based its decree, but it is quite
consistent with the conolusions which I have indicated and the distinction
which I have pointed out. The teacher in that case was not a "new
teacher" or a "beginning teacher", and therefore did not come within the
second proviso of Section 4842-8 supra, but was entitled to the rights
given by the general provisions of that section, including the right to a
continuing contract on the recommendation of the superintendent unless
rejected by a three-fourths vote of the entire board. In other words, she
was in the same position in that respeot as was the relator in the Bishop
case.
Let us now consider how the conclusion above indicated affects the
situation set out in your request. I understand .from your letter and from
a letter from the county superintendent attached rt:o it, that the teacher in
ATTORNEY GENERAL
1/9
question was first employed by the present board six years ago, and that
he had had a continuing contract in the district where he had previously
taught. It is very dear therefore that when he came to the present board
he came as a "new teacher" as defined in paragraph "b" of the section
under consideraition. His employment and reemployment if the hoard sees
fit to reemploy him, would be governed by the provisions of paragraphs
":b", "c" and "d", unless his status was affected by the fact that he had
enjoyed a continuing contract status under another board.
I find nothing in the law that would give a teacher \v1ho has !had a
continuing contract with a given district, any specific right, on that account,
to receive a continuing contract when he terminates such employment.
It will be recalled that under the definition of "continuing contract", it is
to remain in effect "until the teacher resigns, elects to retire or is retired"
etc. The case of State, ex rei Ford v. Board of Education, 141 Ohio St.,
124, appears to determine that the effect of a resignation by a teacher who
had a complete right to a continuing contract is to put an end to that right.
It was held:
"A certificated public school teacher, having been employed
by a school hoard for more than five consective years, ,,ho, after
the effective date of ~ t h e Ohio Teachers' Tenure Act in 1941, vol-
untarily accepted a contract for the balance of the school year and
at a!bout the same 1time tendered her resignation operative at the
close of such year, whidh resignation was accepted, is concluded
thereby and is not thereafter entitled to a writ of mandamus
directing sudh board of education to issue her a continuing con-
tract under the first proviso of Section 7690-2, General Code.''
I am of the opinion that the teacher in ~ ! : h e oase you present, termin-
<Uted his continuing contract status w:hen he quit his former position to
enter into new employment.
Accordingly, it seems dear that the teacher in question, although
eligi
1
ble for a continuing contract status, has no st!iperior right to it under
the genera! provision of Section 4842-8, General Code, and that in the
event he is recommended for reemployment by the superintendent the board
may by a mere majority vote of its members, refuse to reemploy him.
Coming to your second question it appears that the teacher m
question, having come 'to the district six years ago as a "new teacher",
was properly given a three year contract as authorized by paragraph "b".
At the conclusion of that term he was given a further contract for three
I8o OPINIONS
years, pursuant to ,paragraph "c". If he 1s now recommended by the
superintendent for reemployment, .the board is under no obligation to
reemploy him, but if it decides to do so the contract must under the pro-
vision of paragraph "d", be for five years, or the board may grant a con-
tinuing contract.
Your attention should be called to the further provisiOn of said
Section 4842-8, as to giving of notice of bhe hoard's intention not to re-
employ a teacher. It was held by the Supreme Court in the case of State,
ex rei Foster v. Board of Education, I5I Ohio St., 413, that the pr<YVision
of the statute as to such notice applies to all districts, including those
having less than eigtht hundred pupils. I have no information whether
such notice was given in this case and therefore do not consider it neces-
sary to discuss that situation further.
In specific answer to your questions, it is my opinion and you are
advised:
I. where a teacher is first employed in a school district of less than
eight :hundred pupils, subsequent to the first day of September, 1941, the
effective date of former Section 769<>-2, now Section 4842-8, of the
General Code, known as the Teaohers Tenure Act, his employment and
reemployment are governed by the provisions of paragraphs a, b, c and cl,
of the second proviso contained in such section.
2. A teacher who was first employed in a school district of less
than eight hundred pupils, subsequent to tihe first day of September, I94I,
the effective elate of the Teachers Tenure Act, and who is eligible under
the law for a continuing contract, may be recommended by the county
superintendent for reemployment on such continuing contract, burt: the
board of education may reject such recommendation by a majority vote
of its membership.
3 Such teacher, who, after his original employment was reemployed
on a three year contract, may upon .the expiration of that contract, be re-
employed, but the board is under no obligaJt:ion tto reemploy him. However,
if he is then reemployed under the provisions of paragraph "d" of the
second proviso of Section 4842-8, Geneml Code, he must be given a five
year contract or .the board may at any time grant him a continuing contract.
Respectfully,
c WILLIAM O'NEILL
Attorney General
ATTORKEY GENERAL
RETIREiviENT SYSTEM, PUBLIC EM.PLOYES-El'viPLOYE
CLAIMED EXEMPTION FROM MEMBERSHIP- PERIOD OF
YEARS PRECEDING INDUCTION INTO ARMED FOR!CES OF
UNITED STATES-UPON DISCHARGE AND RETURN FROM
ARMED FOlKES RESUMED PUBLIC EMPLOYMENT-MADE
BACK PAYMENTS, WITH REGULAR INTEREST IN AMOUNT
EQUAL TO PAYMENTS HE WOULD HAVE MADE DURING
ABSENCE-EMPLOYE ENTITLED TO MILITARY SERVICE
CREDIT-SECTION 486-33a, 486-47 GC.
SYLLABUS:
\Vhere a public employe claimed exemption from membership in the Public Em-
ployes -Retirement System over a period of years immediately preceding his induction
into the armed forces of the United States, and upon his discharge and return from
the armed forces .promptly resumed his public employment, elected to become
a member of the system, and made t-he back payments, with regular interest, to
the system, pursuant to Section 486-33a, General Code, equaling the amount he
would have paid into the system had he been a member of the system during the
period for which he claimed exemption, such employe is entitled, pursuant to Sec-
tion 486-47, General Code, to the military service credit therein provided.
Columbus, Ohio, May 8, 1953
Hon. Fred L. Schneider, Executive Secretary
Public Employes Retirement System
Columbus, Ohio
Dear Sir:
I have before me your request for my opinion which reads as follows:
"Section 486-47 of the General Code (section 145.30 of the
Revised Code) proYicles for the allowance of service credit to
members of the Retirement System who have served with the
armed forces.
"At the last meeting of the Retirement Board the writer was
instructed to secure your opinion on the following question:
''Is a present member of the System entitled to credit for
military service in case membership in the Retirement System was
established subsequent to the return from military service?"
OPINIONS
The memorandum attached to your letter of request indicates that
a county employe claimed exemption fom membership in the Public
Employes Retirement System in 1938. This employe entered the military
service several years later, and upon his discharge from the service in
1945, asked that his exemption be withdrawn. The exemption from mem-
bership was withdrawn and on December 31, 1945, the initial contribu-
tion to the system was made. Early in 1946 the employe made the back
payment covering the amount he would have paid into the system over
the years the exemption was in effect. The member now claims he is
entitled to credit for his years of military service, pursuant to Section
486-47, General Code. His claim appears to be based upon the fact that
though he did not actually become a member of the system until after
his return from the military service, he did in 1946 make the back pay-
ments covering the amount he would have paid into the system as a county
employe had he been a member of the retirement system during the period
for which he claimed exemption (i.e. from 1938 to the time he entered
the service). Thus, he is in effect claiming membership in the system, elat-
ing back to the period before his induction into the military service.
The back payment was made pursuant to Section 486-33a, General
Code, which read at the time, early in 1946, in part as follows:
"* * * Any employe who heretofore exempted himself from
membership shall have the right to withdraw such exemption at
any time prior to August 31, 1946, and to make such payments,
with regular interest thereon, as he would have made if he had
been a member continuously * * * ."
In the early years of the Public Employes Retirement System, a
public employe was permitted under the law .to claim exemption from
membership in the system. Today, membership in the system is com-
pulsory. Section 486-33a, General Code, supra, was designed to allow a
person who claimed exemption to become a member of the system retro-
actively as well as prospectively. The employe is thus placed upon the
same footing as one who had been a member of the system over the same
period, so long as he makes the payments, with interest, as he would have
made had he been a member continuously. The employer, of course, must
then match these contributions, for the purpose of building up his re-
tirement benefits.
ATTORNEY GENERAL
The statute which provides for military service credit for public
employes IS Section 486-47, General Code, which reads in material part
as follows:
''* * * Upon re-employment in the public service as covered
by this system, the state teachers retirement system or the state
school employes retirement system, within two years after an
honorable discharge the presentation of an honorable discharge
and subject to such rules and regulations as may be adopted by
the retirement board, any member of this retire111ent s;stem who
maintained his membership in this retirement system as provided
by section 486-6sa of the General Code, and who was or is out
of active service as a public employe by reason of having become
a member of the armed forces of the United States on active
duty or service shall have such military service, not in excess of
seven years, considered as the equivalent of prior service."
(Emphasis added.)
It will be observed that this section allows military service credit,
a" the equivalent of prior service, in a situation where a member of the
retirement system maintained membership in the system upon becoming
a member of the armed forces of the United States.
The military service credit statute, Section 486-47, General Code,
supra, speaks of maintaining membership in the system "as provided by
Section 486-6.=;a, General Code * * *." This latter section, which defines
when membership in the system shall cease, also governs the procedure
to be followed in obtaining a leave of absence. The section provides, in
substance. that a member who separa-tes from his service as a public em-
ploye for any reason other than death or retirement may leave his ac-
cumulated contributions on deposit with the retirement board and, for
the purpose of the system, be considered on a leave of absence for a
period of fi ,.e years.
Reading Section 486-47, General Code, in isolation, the statute's
technical and literal interpretation would appear to be one whereby only
those public employes who in fact were members of the retirement sys-
tem at the instant of induction into the armed forces, are entitled to
veterans military service credit. Such employes most assuredly are en-
titled to military service credit, since they held membership in the sys-
tem at the time, and left their contributions on deposit with the system in
pursuance of Section 486-65a, General Code. In my opinion, however,
the legislature, by enacting Section 486-47, General Code, did not intend
OPINIONS
to limit veterans' service credit to the case of actual contributing mem-
bership in the system at the moment of the employe's induction into the
armed forces.
lt is an undeniable fact that the employe, in the case you recite, held
no membership card in the retirement system at the elate of his induction
into the armed forces. It is nevertheless possible under the law to attain
retrospective membership in the public employes retirement system, as
demonstrated earlier in this opinion. An exempted public employe may
withdraw his exemption and become a member of the retirement system
not only prospectively, but also retrospectively, if he makes the back
payments. The statute, as already noted, deems such an employe, once
he pays the backlog, as a member of the system continuously. Hence,
there is no question but that the county employe, herein involved, by
paying in 1946 the backlog for the years from 1938 to the year he entered
the armed forces, could claim membership in the retirement system for
that past period. Does the fact that he was called into the armed forces
for several years deny him membership in the system for the war years,
for the purpose of claiming veterans' military service credit? I think not.
For the purpose of focusing the fact pioture presented by your re-
quest, and for the purpose of gaining insight into the applicable law,
allow me to draw upon a hypothetical set of facts. Let us suppose that
t\\'O men, A and B enter the public employment on the same clay in 1938 .
.:-\ immecliaely elects to become a member of the retirement system. l\
chooses to assert his right of exemption from membership in the system.
A, of course, makes the regular contributions to the system. On the same
clay in 1942 A and B are drafted into the army. They both come back to
their public employment in 1945, on the same clay. B decides to withdraw
his exemption from membership, and pays in the amount he ,,ould have
paid for the period from 1938 to 1942, with interest. Both A and B are
now members of the retirement system; both have paid in exactly the
same amount; both served in the armed forces. Has the legislature mani-
fested an intent to allow military credit only to A. the employe "ho had
contributed over a period of years, while denying the same credit to B
who contributed the same amount, though in one lump sum? In my opinion
the legislature has provided nothing of the sort.
In the alternative, let us examine another hypothetical situation. Let
us suppose that both A and B elect to remain exempt from membership
ATTORNEY GEl\ER.-\L
in the system until 1946, whence both decide to withdraw the exemption
and become members. Let us further suppose that A was not called into
the armed forces, but that B was drafted in 1942. A, in 1946, pays in
an amount equal to the amount he would have paid in to the system had he
been a member during the period 1938-1945, inclusive. B, in 1946, pays
in the amount he would have paid in to the system had he been a member
during the period 1938-1942, inclusive, the latter being the elate of induc-
tion into the armed forces. Can it be said that B is denied any sort of
credit for the four years he served his country? I think not.
In slhort, I an1 of the opinion that tlhe pervading intent of the legisla-
ture as related to the entire public employes retirement law is to sanction,
in proper cases, the application of a nunc pro tunc doctrine with regard to
membership in the system. This can be seen in Section 486-33a, General
Code, relative to withdrawing one's exemption from membership in the
system, and by making back payment, becoming a member thereof retro-
spectively. The same intent can be seen in Section 486-47, General Code,
which, in effect, considers an employe as a member of the system during
his military service years, thus granting him the benefits of inoluding
tJhose \Yar years in the computation of total years of service when the
time arrives for payment of retirement benefits.
The legislative attitude is further revealed in Seotion 486-16a, General
Code, which seotion concems resroration to office or pos,ition and civil
service rating after military service. The third paragraph of this section
reads as foHows :
"\Vhenever 'the time or period of employment in the classified
service affects the status, rank, rating, increments or qualifications
in any respect of any person whlo has served in the armed services
of the United States, * * * such person shall be given credit for
the period in which :he served in such armed services as rthough
such time were served in the course of his regular employment.''
Though this section is aimed at securing for a civil servant his rating
and rank even thougih he was or is called into service, and is, therefore, not
immediately concerned with !(:lhe calculation .of a public employe's retire-
ment benefi1ts, it points the way toward a Iibera! and generous outlook
by the legislature in the field of public employes who are veterans. Further
evidence of the legislative intent in this area appears in the form of Sec-
tion 5266-r, et seq., General Code. These sections have as their object
I86 OPINIONS
tlhe restoration to tJhe saJllle or similar position of a pulblic employee who
lef.t the public employment on or subsequent to June 27, 1950.
I am brought to the conclusion that for the purpose of being entitled
to military service credi.t, aJS provided for in Section 486-47, General Code,
an individual who claimed exemption from membership in the public
employes retirenrent system down to the date of induotion into the armed
forces of the United States, may he considered as a member of tihe system
at the time of his incluotion by withdrawing that exemption upon return
from the service if he pays into the system an amount equal to that which
he would have paid into the system, with regular interest, had he been
a member of the system at the date of call to the service; it being the legis-
lative intent to authorize retrospective membership in the public employes
retirement system. In other words, an individual who was not in fact a
member of the system on a certain elate, is nevertheless looked upon in the
eyes of the law as a member of the system on that elate, if he fulfills certain
obligations owing to the system.
Accordingly, it is my opinion that where a public employe claimed
exemption from memlbership in the Public Employes Retirement System
over a period of years immediately preceding his induction into the armed
forces of the United States, and upon his discharge and return from the
armed forces promptly resumed his public employment, elected to become
a member of the system, and made the back payments, with regular interest,
to the system, pursuant to Section 486-33a, General Code, equaling the
amount he would have paid into the system had he been a member of the
system during t!he period for which he claimed exemption, such employe
is entitled, pursuant to Section 486-47, General Code, to the mi.litary
service credit therein provided.
RespectfuHy,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
1. HOSPITALS, TUBERCULOSIS-SECTIONS 17, 5625-33 GC
APPLICABLE TO CONTRACTS FOR CONSTRUCTION, AD-
DITIONS AND BETTERMENTS TO HOSPITALS ESTAB-
LISHED UNDER SECTION 3139-1 ET SEQ., G.C.
2. CONTRACTS MAY BE EXECUTED BY BOARD OF TRUS-
TEES ANY TIME AFTER COUNTY OOMMISS'IONERS OF
PARTICIPATING COUNTIES HAVE APPROPRIATED
FUNDS-COUNTY'S SHARE OF COST-FUNDS ~ ' l U S T BE
EITHER IN COUNTY TREASURY OR IF RAISED BY TAX-
A. TION AND IN PROCESS OF COLLECTION CERTIFICA-
TION MUST BE MADE BY FISCAL OFFICERS OF SEV-
ERAL COUNTIES-SECTION 5625-33 G.C.
SYLLABUS:
1. The provisions of Section 17 and Section 5625-33. General Code. are applicable
tc contracts for the construction, additions and betterments to tuberculosis hospitals
established under the provisions of Section 3139-1, et seq., General Code.
2. The board of trustees may proceed with the execution of such contracts at any
time after the county commissioners of the participating counties have appropriated
iunds to meet each such county's share of the cost of such project .prO\ided the funds
so appropriated are either in the county tr,easury or, if being raised by taxation, are in
process of collection, and provided certification to such effect is made by the fiscal
officers of the s,everal counties concerned as provided in Section 5625-33, General Code.
Columbus, Ohio, May !4, 1953
Hon. Robert L. Perdue, Prosecuting Attorney
Ross County, Chillicothe, Ohio
Dear Sir:
Your request for my opinion reads as follows :
''The Board of Trustees of Mt. Logan Sanatorium, Chilli-
cothe, Ohio, have had tentative drawings made for the construc-
tion of a building and placing therein of a new heating plant,
together with an incinerator, the erection and completion of which
\Yill cost between $30,000.00 and $35,000.00.
''The Joint Board of County Commissioners assembled in the
Ross County Commissioners Office lha'Ve approved the plan and
authorized the Board of Trustees to have plans and specifications
completed, and five ( 5) of the counties represented in the meeting
r88 OPINIONS
on April I 5, 1953, agreed to furnish the funds \\ith ,,hich to pro-
ceed, and one ( r) county Jackson, while willing to furnish the
money, if they could dev.ise a way to raise the money, are to re-
pmt back to tlhe Board of Trustees on April 29, I953
"'Bhe Board of Trustees desire to proceed with this work
immediately and have requested that I furnish them \rith an
opinion as to whether they can proceed at this time.
"I therefore request your opinion on the follm,ing t\\'0
specific questions :
"I. Can the Board of Trustees proceed with the construc-
tion work and bill the counties participating for the cost of the
same when it is completed?
"2. Can a contract be present-ly let by the Board of Trustees
for this proposed construction pr.ior to a certification by the fiscal
officers of all t'he counties participating that there has been an ap-
propriation of funds for the construction and that such funds arc
availa1ble to pay for the same?
"Question No. 2, of oourse, is directed to you with refer-
ence to the provisions of G. C. Section 17 and G. C. Section
5625-33
"I would appreciate an early reply since the Trustees desire,
if possible, to proceed immediately."
It is assumed that the Mt. Lognn Sanitorium has been oonstructed
and is now !being operated rby a joint county district organized as pro-
vided in Section 3139-1, General Code. This section is as follows:
"The commissioners of any two or more contiguous counties,
not to exceed five, may, and upon the favorable vote of the
electors thereof in the manner hereinafter provided, shall form
themselves into a joint :board for tJhe pur.pose of constructing.
equipping and maintaining a district hospital for the care and
treatment of persons having vuberculosis, provided, that no oounty
in wlhich there is a municipal or county tuberculosis hospital
shall be included in any such district. Provided, however, that
districts now existing containing more than five counties may
continue in e:x,istence under all .the provisions of this act. If the
boards of county commissioners fail to provide for the care of the
tuberculous, two per cent of the electors of any proposed joint
district may file a petition witJh the board of deputy state super-
visors of elect.ions of the most populous oounty in such proposed
district, designating vhe counties in sucih district. Such board shall
at once certify such fact to t<he election boards of the counties
comprising such proposed district and such proposition shall be
placed on the ballot at the next special or general election oc-
ATTORNEY GENERAL
curring more than sixty d ~ y s after the filing of such petlt!Dn. If
a majority of the electors vDting on the proposition in each oounty
of the proposed dis-trict vote in favor thereof, such district shall
be established. After the estaJblishment of sudh joint district, either
by voluntary action of the commissioners or as a result of such
election, such joint board of county commissioners shall provide a
site or the necessary funds for the purchase of a site and also shall
provide the necessary funds for the acquisition, erection and
equipment of the necessary huild.ings thereon. Sudh expenses as
may be incurred by the county commissioners in meeting with the
commissioners of other counties for consideration of the proposal
to establish a district tuberculosis hospital shail he paid from the
general fund of the county. After the organization of the joint
board such expenses shall be paid from the funds provided for the
erection and maintenance of such hospitals."
In Section 3139-3, General Cooe, it is provided that the joint board of
county conunis-sioners of such district shall appoint a board of trustees
-who shall be vested with the management and control of the district
hospital. Authority is given in Seotion 3139-4, General Code, to such
board of trustees to select rlle site on which to ereot a district hospital, to
prepare plans and specifications of the structure, and to "proceed to acquire
or erect and equip the necessary buildings."
The appor.tionment Qf the cost of such hospital projects 1s provided
for in Section 3139-5, General Code, whidh reads as follows:
''T'he first cost of the hQspital, and the cost of all better-
IIJcnts. repairs and additions thereto, as determined by the board
of trustees. shall be paid by tthe counties comprising the district,
in proportion to the taxwble property of eaoh county as shown by
their respective duplicates. To meet the expense incurred in the
purchase of a site or enlargement thereof, and for the erectiQn and
equipment of buildings, or for the punpose of enlarging,. improv-
ing or rebuilding thereof, or for purchasing an interest in a dis-
trict tuberculosis hospital, the .commissioners may borrow suclh
sum or sums of money as may ibe apportioned to the county, at
a rate of interest not to exceed five per cent per annum, and issue
and sell the bonds of the county to secure the payment of 1Jhe
principal and interest thereof. Such principal and interest shall be
paid as provided in section 2293-8 of the General Code. A state-
ment shall be prepared annually showing the per capita daily cost
for the current expenses of ma;intaining sucth hospital, including
the cost of ordinary repairs, and each county in tlhe district shaH
pay its share of such cost as determined by tlh.e nwnber of days
the total number of patients from such county :have spent in the
hospital during the year, but any sums paid thy the .patients from
suoh county for their treatment therein s:hall be deducted from
190
OPINIONS
this amount. The boards of county commissioners of counties
jointly maintaining a district hospital for tuberculosis shall make
annually an appropriation or otherwise provide sufficient funds to
su.ppor.t, and to defray the necessary expense, of maintenance
of such hospital." (Emphasis added.)
I,t a,ppears that the construction project described in your inquiry IS
within one or tlhe other of tihe categories "betterment," "additi'ons," or
"improvements," uhe expense of which this section requires the county
commissivners of the several counties to make provision for.
Further provision for the apportionment of the expense of "a new
hospital building * * *, !betterments and additions" is found m Section
3139-9, General Code, which reads as foHows:
"\oVhenever, after any district tuberculosis hospital has been
destroyed or become inadequate for the needs of !'he district or has
been established or operated for a continuous period of five or
more years, and !'he board of trustees of sudh hospibal decides that
a new site, a new hospital lmilding or buildings, betterments and
additions to an existing building or buildings, or ne\\' equipment
has or have become necessary, any county in the district may
complain by proper petition to the court of common pleas of tJhe
county in \\'hioh said district tuheroulosis hospital is located.
stating tJhat it is unjust and inequita!hle that such complaining
county slmuld pay for tJhe said expense incurred or to be in-
curred in proportion to its taxa:hle property, as provided for in
foregoing sections of this act. Jn such petition the complaining
county shall he the plaintiff and all Other counties of said district
shall be defendants, and each county shall be required to answer
said petition wit'hin the ordinary answer day required in civil
actions. Upon answer or in default thereof, the matter shaM come
up for hear.ing before said court of common pleas. and upon full
hearing said court of common pleas may make such order of ap-
portionment of said expense between the counties as may be just,
proper and equitable, and tlhereupon such order shall be binding
as .between the counties, and in lieu of the apportionment pre-
scribed by foregoing sedions of this act."
It would appear tlhat this section is intended .to apply in those sit-
uations in wihich the ;board of trustees has decided upon the necessity
for addition or betterment .project but where there is a disagreement
among the commissioners as to the proper slhare of the anticipated expense
to be borne by each of the several counties concerned ; and the provisions
of Section 3I39-5, supra, would appear to be applicable in the absence of
sudh disagreement in the instant case.
ATTORNEY GENERAL
Your .inquiry relates to the authority of the board of trustees to
proceed to let contracts for an addition and betterment project in advance
of the appropriation of necessary funds by the several boards of county
commissioners to finance such projects; and specifically you ask whether
the provisions of Sections I7 and 5625-33, General Code, are a:pplicaJble.
Section 17, General Code, reads :
''An offiLer or agent of the state or of any county, towns1hip
or municipal corporation, who is charged or intrusted with the
construction, improvement or keeping in repair of a building or
work of any kind, or wit1h the management or providing &or a
public institution, shall make no contract binding or pu.rporting
to bind the state, or such county, township or municipal corpora-
t.ion. to pay any sum of money not previous,ly appropriated for t:he
purpose for which such contract is made. and remaining unex-
pended and applicable thereto, unless such officer or agent has
been duly authorized to make such contract. If such officer or
agent makes or participates in making a contract without such ap-
propriation or autJho.rity, he shall ibe persona.!ly .J,iable thereon, and
t'he state, county, township or municipal conporation in whose
name or behalf the contract was made, shall not be liable thereon."
Section 5625-33, Geneml Code, reads in part as foHows:
.. .\J o subdivision or taxing unit shall :
* * * " (d) :Make any contract or give any order involving
the expenditure of money unless there is attaohed thereto a
certificate of the fiscal officer of the subdivision that t:he amount
required to meet the same (or in the case o.f a continuing contract
to be performed in \vlhole, or in part, in an ensuing fiscal year,
the amount required to meet the same in the fiscal year in whicih
the contract is made), has lbeen lawfully appropriated for sudh
pur.pose and is in the treasury or in process of collection to the
credit of an appropriate fund free from any previous encum-
brances. Every such contract made without such a certificate shall
be void and no warrant shall be issued in payment of any amount
due tlhereon. In case no certificate is furnis1hed as hereinbefore
required, upon receipt by the taxing authority of the subdivision
or taxing unit, of a certificate of the fiscal officer that there was
at the time of the making of s.uch contract or order, and at the
time of the execution of such certificate a sufficient sum appro-
priated for the purpose of such contract and in t:Jhe treasury or in
process of collection to tJhe credit of an appropriate fund free
from any previous encumbrances, such taxing authority may
authorize the issuance of a warrant in payment of amounts due
upon suoh contract ; but sudh resolllltion or ordinance shall ibe
passed within thirty days from the receipt of such certificate;
OPINIONS
provided, however, that if the amount involved is less than one
hundred dollars, the fiscal officer may authorize it to be paid wivh-
out the affim1ation of t'he taxing authority of the subdivision or
taxing unit, if such expenditure is otherwise valid. * * *''
As to Section 17, General Code, it is plain that the board of trustees_.
althougih a public organization created for a pu'blic purpose, and so to
some extent a legal entity, is neither a "county, (nor a) townSihip."
A.rthough t.J1e hoard could he considered a "municipal corporation" in an
extremely broad sense, this term has been held to refer only to a "city
or incorporated village," and to be so l ~ m i t e d as to exclude such a public
agency as a board of education. See Dayton et a!. v. Thomas, 20 O.N.P.
(N.S.) 539 (543, 544).
In Section 5625-33, General Code, the pertinent \\ords in this re-
spect are "subdivision" and "taxing unit." These terms are defined in
Section s6zs- I' General Code, as follows:
"The following definitions shall be applied to the terms
used in this act :
''(a) 'Subdivision' shall mean any county. school district.
except the county school district, municipal corp0ration. t0\n1ship,
township fire district or township \Yaste disposal district in the
state. * * *
'' (i) 'Taxing unit' shall mean any subdivision or other gov-
ernmental district having authority to levy taxes on the property
in such district or issue bonds which constitute a charge against
the property 0f such district including conservancy districts.
metropolitan park districts. s-anitary districts, road districts and
other districts."
These definitions do not patently include a board of trustees of a dis-
trict tuberculosis hospital as such. It is by no means clear, however, that
this is dispositive of your questions. An examination of the several statu-
tory provisions which set out the powers and functions of such boards
of trustees quite clearly show 1lhat they are without authority to raise funds
by taxation or t0 expend any such funds except such as are so raised and
appropriated to their use by the county authorities. It is true that they
enj0y the statutory riglht to have :the several boards of county commis-
sioners provide sufficient funds for the sntpport of the hospital concerned,
but in tJhis respect they are in no more favorable or authoritative position
than many other statutory offices, departments and institutions whic!h are
required by law to be supported by a particular county. This being so. it
ATTORNEY GENERAL
193
must be concluded that such a board of hospital trustee is, in a very real
sense, an agent, or agency, of eacJh of the counties which have joined to-
gether to create it, and so, a.s such agent, in tlhe expenditure of public
monies, is su!bject to the same statutory Iimitations as are applicable to
its several principals. It follows, therefore, that both sections 17 and
5625-33, General Code, being applicable to counties, are applicable also
to such board of hospital trustees. Under this view it cannot be supposed
that the board is authorized to let a !building construction contract prior
to a certification by the fiscal officers of the several participating counties
that tlhere has been made an appropriation of funds by the commissioners
of all of such counties to meet the cost of the construction .proposed, and
that such funds are "in the (county) trea:sury or in the process of
collection."
.-\s to your first question, assuming that all of the counties involved
have appropriated sufficient funds to cover the share of each in the cost of
construction, I perceive no reason w!hy the trustees should not proceed
with the execution of a construction contract in advance of the actual re-
ceipt of the funds so appropriated, provided the funds so appropriated
are either "in the treasury or in the process of collection." By reference
to Section 3139-5, General Code, we find provision for the allocation
of the cost of "betterments, repairs and additions" among the several
counties "in propontion to the taxable property of each oounty." This
section provides, also, that t!he county commissioners may raise the
amounts so apportioned .by !borrowing and that they may issue bonds for
such purpose. Although this section does nat expressly aut'horize a tax
levy to provide such funds, or to repay bhe amounts 1borrowed for such
purpose, we find the foJ.lowing language in the section immediately fol-
lowing, i. e., in Section 3,139-6, General Code:
"All taxes levied by the county commissioners of any county
under the provisions of section 6 (G. C. 3 r 39-5) of this act shall,
when collected, be paid over to the trustees of the district tuber-
culosis hospital upon the warrant of the county auditor, at the
same time that school and township moneys are paid to the re-
spective treasurer; and the board of trustees shall recei.pt there-
for and deposit said funds to its credit in banks or trust cmnpanies
to be designated by it and said banks or trust companies shall give
to said board, a 'bond therefor in an amount at least equal to the
amount as so aforesaid deposited; and thereupon said funds may
he disbursed by said board of trustees for the uses and purposes
of said district tuberculosis hospital, and accounted for as pro-
vided in the foregoing sections. * * *"
OPINIONS
From this language it would appear that the commissioners may
either (I) borrow the necessary funds, Cllppropriate them to t'he use of
t:he hospital, and pay !:!hem orver to the trustees at once, or ( 2) appropriate
such funds in a11Jticipation of t'he receipt of proceeds of current levies. In
either situation no practical problem would be involved, for I assume, in
the first instance, that but a short time would intervene between the
appropria1tion and the payment to tlhe trustees; and in the second in-
stance no waiting period would be involved because in suoh case, as pro-
vided in Section 5625.-33, supra, the contract could be let at any time after
the funds to be raised hy taxation are "in pr-ocess of collection."
Accordingly, in specific answer to your inquiry, it is my opinion that:
I. The provisions of Section I7 and Section 5625-33, General Code,
are applicaJble to contracts for uhe construction, additions and betterments
to tuberculosis !hospitals established under the provisions of Section 3 I 39- I,
et seq., General Code.
2. The board of trustees may proceed with the execution of such
contracts at any time after t:he coul1ity commissioners of the participating
counties have appropriated funds to meet eaoh such c-ounty's share of the
cost of such project provided the funds so appropriated are either in the
county treasury or, if :being raised by taxation, are in process of col-
lection, and provided certification to such effect is made by the fiscal
officers of the several counties concerned as provided in Section 5625-33,
General Code.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
195
2
597
FIRE PROTECTION SERVICE-EXCEPT AS PROVIDED IN
SECTIO.K 32S)S-6o GC., WHICH AUTHORIZES COUNTY TO
GONTRACT WITH TOWNSHIP FOR FIRE PROTECTION,
COUNTY WITHOUT AUTHORITY TO EXPEND PUBLIC
FCNDS I:\1' SUPPORT OF TOWNSHIP FIRE DEPARTMENT-
COUNTY PROPERTY LOCATED OUTSIDE OF BOUNDARIES
OF TOW:i\'SHIP--SECTION 3298-6o GC.
SYLLABCS:
Except as provided in Section 3298-60, General Code. which authorizes a county
to contract with a township for fire protection sen-ice with respect to county property
"located outside the boundaries of such township," a county is without authority to
expend public funds in support of a township fire department.
Columbus, Ohio, May r 5, 1953
Hon. John D. Sears, Jr., Prosecuting Attorney
Crawford County, Bucyrus, Ohio
Dear Sir:
Your request for my opinion reads as follows:
'"I have been requested to obtain your opinion on the fol-
lowing questions:
"r. Can the county contribute toward the maintenance of a
fire department which is owned and operated by four adjoining
townships when the county has property located in the townships
which would receive protection from the said fire department
owned and operated by said rownships?
"2. If the county can contrihute toward the maintenance
of this fire department, to what extent and amount would be
allowable?"
The primary method of providing revenue for the support of town-
ship fire protection service is by the levy of taxes as provided in Section
32S)S-55, General Code. This section reads:
'"The trustees of a township are authorized to levy in any
year or years a sufficient tax UipOn all taxa'ble property in the
townSihip or in a fire district, or districts. to provide protection
against fire and to provide and maintain fire appara:tus and ap-
OPINIONS
pliances and buildings and sites therefor and sources of water
supply and materials therefor, and the establishment and main-
tenance of lines of fire alarm telegraph and the payment of penna-
nent, part-time or volunteer fire fighting companies to operate
satne."
In providing this method of financing township fire protection serv-
ices, it is to be presmned t'ha;t the Legislature realized that no part of such
expense would fall on the county within whioh the township concerned is
located for the reason that any property in such township owned by the
county is exempt ,from taxation under tJhe provisions of Section 5351 et
seq., General Code.
An auxiliary method of providing revenue for the support df town-
ship fire protection services is found in Section 3298-6o, General Code,
which authorizes the township trustees to enter into contracts with
municipalities or other townships whereby the services of the fire depart-
ment maintained by one party will be made availcuble to the other. In 1945
this section was amended to include t<he fol,lowing provisions:
''The county commissioners of any county or the superin-
tendent or other administrative head of any state institution,
rollege or university, \\'hen authorized by the hoard or <l!uthority
charged with the care and maintenance of such institution, col-
lege or university, may make a contract with a township, city or
village having a fire department, or with a private fire company,
for the service of such department, or private fire company in
affording fire protection or additional fire protection in times of
emergency for property, located outside the boundaries of such
township. city or village. belonging to such county or to such in-
stitution, college or university, such contract to be made only
when authorized by the respective hoards of trustees, councils or
other legislative bodies of said township, muncipalities, or officers
of private fire companies, and for a period not to exceed two
years. A copy of such contract or contracts sha.Jl be filed in the
office of the state fire marshal at Columbus. Ohio. * * *
The provision in this language limiting its application to property
"located outside the boundaries of such tO<Wnship" is a clear indication
that any county property located within the township is -to be afforded
fire protection without charge to the county.
I am unaJble -to find any statutory authority other than that above
indicated for the expenditure of county funds in support of township fire
protection services. In this situation it must be borne in mind that a county
ATTORNEY GENERAL
197
IS a creature of statute, and so possesses only statutory powers. I 1 Ohio
Jurisprudence, 244, Section 7 Moreover, the authority of county com-
missioners to act in financial transactions must he clear and distinctly
granted and where such authority is of doubtful import the doubt is to
be resolved against its exercise. See State ex rei Locher v. Menning, 95
Ohio St., 97; State ex rel Bentley Co. v. Pierce, Ohio St., 44 In this
situation I am impelled to conclude, in specific answer to your inquiry,
that except as provided in Section 3298-6o, General Code, which authorizes
a county to contract with a township for fire protection service with re-
spect to county property "located outside the boundaries of such town-
ship," a county is without authority to expend public funds in support of a
township fire department.
26:21
Respectfully,
c. vVrLLIAM O'NEILL
Attorney General
MU:\ICIPALITY -TIME LIMITATIONS-ADOPTION OF
EITHER ONE OF THREE SPECIAL FORMS: OF GOVERNMENT
SET OUT IN SECTION 3515-1 THROUGH 35I5-71 GC-SECTION
3515-2 GC PROVIDES PROPOSITIOK MAY BE SUBMITTED AT
SPECIAL ELECTION TO BE HELD ON SAME DAY AS REGC-
LAR NOVEMBER lVIUNICIPAL ELE,CTION-OAG 2755, 1925.
PAGE 56r, OVERRuLED IN PART.
SYLLABUS:
1. Under the prO\isions of Sections 3515-1 and 3515-2, General Code, and with
clue regard to the limitations as to time therein contained, the proposition for the
adoption by a municipality of either one of the three special forms of government set
out in Sections 3515-1 to 3515-71, General Code, may be submitted at a special election
to be held on the same day as the regular November municipal election. (Opinion
~ o . 2i55, Opinions of rhe Attorney General for 1925, page 561, overruled in part).
2. vVhere the electors of a municipal corporation at a special election held on the
same day as the general municipal election in November, 1953, adopt one of the special
forms of government set out in Sections 3515-1 to 3515-71, General Code, officers for
such newly adopted form of government will .be elected at the general municipal elec-
tion in November, 1955.
OPINIONS
Hon. Ted \11/. Brown, Secretary of State
Columbus, Ohio
Dear Sir:
Columbus, Ohio, May 20, I953
I have before me your request for my opinion, reading as follows:
'A group of electors of the city of Celina, ;vrercer County,
are circulating petitions pursuant to General Code Section 35 I 5- I
et seq. for the submission of the question of organizing their
municipality under the city management form of government. The
Board of Elections of that. county has been asked if this question
may be submitted at the November General Election.
''The Board was also asked when and in what manner candi-
dates for City Council will be nominated and elected in view of
the provisions of General Code Section 35 I 5-4 which states that
such plan, if approved, 'shall go into effect immediately, in so
far as it applies to the nomination and election of officers pro-
vided for herein and in all other respects it shall go into effect
upon the first day of January following the next regular municipal
election.'
"At this November General Election, Celina will elect city
officials under their present form of government, which is the
statutory municipal plan. These officers will consist of: Mayor,
President of Council, Council (both at large and from wards),
Treasurer and Solicitor.
"vVe find an Attorney General's Opinion No. 2755, rendered
in 1 92 5 which disallowed the submission of this question at a
general election. However, at that time the law provided for
candidates filing ninety days before a general election, which
provision has since been changed."
Sections 3515-1 to 3515-7I, of .the General Code, were enacted pur-
suant to the provisions of .Section 2, of Article XVIII of the Constitution
of Ohio, with the obvious purpose of giving the electors of any municipality
an opportunity to seleot a form of municipal organization differing from
the general form set up by the Municipal Code. Section 3515-I, General
Code, reads as follows:
"\Vhenever electors of any municipality, equal in number to
ten percentum of those who voted at the last regular municipal
election, shall file a petition with the board of deputy state super-
visors of elections or board of deputy state supervisors and in-
ATTORNEY GENERAL
spectors of election, as the case may be, of the county in which
such municipality is situated, asking that the question of organ-
izing the municipality under any one of the plans of government
provided in this act be submitted .to the electors thereof, said
board shall at once certify that fact to the council of the mu-
nicipality and the council shall within thirty days, provide for sub-
mitting such question at a special election to be held not less than
sixty nor more than ninety clays after the filing of such petition.
Any such election shall be conducted in accordance wi.th the
general election lmcs of the state except as otherwise provided in
this act and the council of any municipality holding such an elec-
tion shall appropriate whatever money may be necessary for the
proper conduct thereof." (Emphasis added.)
Section 35 I 5-2, General Code, reads as follows:
"The proposi.tion to adopt a plan of government provided in
this act shall not be submitted to the electors of any municipality
Jess than ninety clays before a regular municipal election. If in
any municipality, a sufficient petition is filed, requiring that the
question of choosing a commission to frame a charter be submitted
to the electors thereof, the proposition to adopt a plan of govern-
ment provided in this act shall not be submitted in that munici-
pality as long as the question of choosing such commission or
adopting a charter framed thereby is pending therein. In any
municipality while the proposition of adopting any one of the
three forms of government herein provided for is pending, then
no other proposition herein provided for shall be submitted until
said pending proposition is adopted or rejected."
199
It will -be observed that .the petition of the electors for the submission
of the question of organizing a municipality under one of the three special
forms provided in these statutes is to be filed with the board of elections,
and that the board shall "at once certify that fact" to the council of the
municipality and the council is required within thirty days thereafter, to
provide for submitting such question at a special election to be held not
less than sixty days nor more than ninety clays "after the filing of such
petition." There is no provision for ,filing the petition with the council.
In view of the language of this section and the particular provisions above
noted, it seems impossible to resist the conclusion that the "filing" above
referred to, must relate to the time when the petition is filed with the board
of elections and not to the time when the fact of filing is certified to the
council. I appreciate the fact that if the board of elections should not act
promptly as the law requires, the time allowed the council for its action
might, without its fault, be ahbreviated. But I think we must assume that
the board of elections will perform its duty.
200 OPINIONS
In Section 35I5-2, General Code, another stipulation as to the time
of the election is introduced, which might plainly conflict with the time
schedule set out in Section 35 I 5-I. It is provided that the proposition in
question shall not be submitted to the electors of any municipality less
than ninety clays before a regular municipal election. It is manifest that a
petition for such submission might be filed with the 'board of elections at
such time .that the council of the municipality could not perform the duty
required of it within the period-not less than sixty clays nor more than
ninety days-without encountering the time of a regular municipal elec-
tion, and the time for the special election might have to be postponed.
There is nothing in the statute that appears to cover this contingency
directly, but it is my opinion that if the elate of the special election could
not be fixed within the time limit prescribed by Section 35 I 5- I without
conflicting with the provisions of Section 35I5-2, General Code, it would be
the duty of the council to fix a elate for the special election as soon there-
after as possible.
This might result in fixing the time of this special election on the day
immediately following the regular municipal election, which would be
manifestly an unfortunate result entailing undue expense and possible con-
fusion.
I come, therefore, to the question which you propound, to wit, whether
this special election could be ordered for the same day on which the regular
municipal election is to be held. That would escape the barrier set up by
Section 35I5-2 supra.
I can see no good reason why this should not be clone. The election
in question is a special election and is no part of the general election for
municipal officers. If we turn to the general election laws, we find this
provision in Section 4785-3, General Code:
"d. The term 'special election' shall mean any election other
than the elections required by law to be regularly held on the clay
of a general or primary election, provided, however, that a special
election may also be held on the clay of a general or primary
election."
Section 35I5-3, General Code, provides the form of the ballot and also
provides for mailing copies of the proposed plan of government to each
elector, together with a facsimile of the ballot and the date and hours of
ATTORNEY GENERAL 201
the election and a copy of a written argument, if any has been submitted,
for or against .the proposition.
I note your reference to Opinion 2755, Opinions of the Attorney Gen-
eral for 1925, page 561, in which it was held:
''Under the provisions of sections 3515-1 and 3515-2, Gen-
eral Code, a proposition to adopt a plan of government for a mu-
nicipality may not be submitted to the eleotors of a municipality
less than ninety clays before a regular municipal election, nor on
the regular municipal election day." (Emphasis added.)
The then Attorney General quoted the two sections of the statute
which I have above set out and adopted the clear language of Section
3515-2, providing that said proposition could not be submitted a.t an elec-
tion to be held less than ninety days before a regular municipal election.
He then proceeded to the further conclusion that such special election
could not be held on .the same day as the regular municipal election. For
that conclusion I can see no good reason. His entire argument consisted
of the following paragraph:
''At this time the regular election machinery is set in motion
to elect the municipal officers at the next municipal election. If a
plan of government as proposed in the above section should be
adopted at the November election, your city would be in the
peculiar position of having elected its municipal officers for a term
of two years and if a new plan of city government should be
adopted on the November election day it would be two years be-
fore another municipal election would be held to elect officers
under the new plan of government. It is believed that the same
reason that forbids the election to be held looking to the adoption
of a plan of government less than ninety clays before a regular
municipal election, would operate against it being held on the
regular municipal election clay."
While it may be admitted that the electors will have decided on a new
plan of government and that it would be two years before another municipal
election would be held to elect officers under this new plan, that does not
seem to me to be a serious result. It is obvious that if this special election
should be postponed for a day, a week or a month after the general election,
the same result would ensue.
I direct attention to Section 35 r 5-4, General Code, which describes
the results of a favorable vote at the special election. I.t reads as follo\\"s:
202 OPlNIONS
"If, when submitted in any municipality the propositiOn of
adopting a plan of government provided in this act is approved by
a majority of those voting thereon, such plan, ,together with any
of the supplementary propositions that may have been approved
by a majority of the electors voting thereon, shall become the
charter of such municipality. vVhen so adopted, this aot shall
go into effect immediately, in so far as it applies to the nomination
and election of officers provided for herein and in all other re-
spects it shall go into effect upon the first clay of January following
the next regular municipal election. All officers of any plan of
government superseded by the adoption of any plan provided in
this act, except members of the commission or council, shall con-
tinue in office and in the performance of their duties until the
commission or council elected hereunder shall have provided by
ordinances for the performance of the duties of such officers,
whereupon the terms of all such officers shall expire and their
offices be deemed abolished."
This establishes the order of procedure, and the only effect of holding
this special election on the clay of the regular municipal election, is that
the municipality would continue under the regular municipal organization
until in clue course it has nominated and elected the officers provided for
in the new plan, and they would take their office on the first day of January
following the next municipal election.
Attention might be called to Section 3515-8, General Code, which is
one of the provisions applicable to all three of the optional forms of gov-
ernment. It reads as follows :
"Regular municipal elections shall be held on the first Tues-
day after the first Monday in November in the odd numbered
years, and shall be conducted and the results canvassed and an-
nounced by the regular election authorities. Candidates to be
voted for at the regular municipal elections shall be nominated
as provided by law."
You state that at the time of the 1925 opinion, the law provided for
candidates filing ninety days before a general election, which provision has
since been changed. I presume that you have reference to the fact that,
effective January 1, 1952, .Section 4785-92, General Code, was amended
to require all nominating petitions to be filed not later than 6 :30 P.M.,
of the ninetieth day before the first Tuesday after the first Monday in
May immediately preceding a general election. \Vhile, in view of the
conclusion I have reached, it is not necessary to give any further con-
ATTORNEY GENERAL
203
sideration to the effect, if any, of such amendment to the question pre-
sented, the present requirement that nominating petitions be filed in
February does help to illustrate the accuracy of my conclusion.
At the time of the 1925 opinion Section 5004, General Code, au-
thorized the filing of nominating petitions for municipal officers up to
sixty clays before the election, not ninety days as stated in your letter.
Section 4785-92, the successor of Section 5004, continued to authorize
such filing up to sixty clays before the election until amended in 1947,
122 0. L 119. to require such filing ninety clays before the election. As
heretofore noted, this section was again amended in 1951, effective
January 1, I952, 124 0. L. 686, to require such filing in February.
At the time of the 1925 opinion, therefore, where a municipality,
ninety clays before the election, voted to adopt one of the forms of govern-
ment set out in Sections 3515- I to 3515-7 I, General Code, a period of
thirty clays remains in which candidates could qualify for the new offices
thereby created by filing nominating petitions. This, of course, is no
longer true. so that unless the proponents of such new plan of government
are content with setting in motion a plan which will result in the election
of new municipal officers by a write-in vote, it now is necessary that
the vote on such new plan of government be held at some time prior to
the ninetieth clay before the -:\
1
Iay primary. This would result in a delay
from the time of the adoption of such plan of government until the
assumption of office of the new officers, of at least a period of almost
eleven months. If such election for a new plan of government be adopted
at the 1953 municipal election, there would be a delay of
almost twenty-five months, i.e., until January I, 1956, until the new officers
could assume office. Whether the allowance of such delay is or is not
wise, is a question of legislative policy. Under the 1925 opinion it would
be possible to hold such election on \Veclnesday, November 4, 1953, and
I feel it necessary, therefore, to disagree with the conclusion reached by
my predecessor in the 1925 opinion aforesaid, and must therefore overrule
the same.
Specifically answering your question, it IS my opm10n :
I. Under the provisions of Sections 35 I 5- I and 35 I 5-2, General
Code, and with due regard to the limitations as to time therein contained.
the proposition for the adoption by a municipality of either one of the
204 OPINIONS
three special forms of government set out m Sections 3315-I to 33IS-7I.,
General Code, may be submitted at a special election to be held on the
same clay as the regular November municipal election. Opinion No.
2755, Opinions of the Attorney General for I925, page :;6r, overruled
in part.
2. \Vhere the electors of a municipal corporation at a special election
held on the same clay as the general municipal election in November, 1953,
adopt one of the special forms of government set out in Sections 35I5-I to
35I5-7I, General Code, officers for such newly adopted form of govern-
!) ment will be elected at the general municipal election in November. I935
Respectfully,
c. WILLIAM O'NEILL
Attorney General
JUVENILE COURT- JURISDICTION TERMINATED- CHILD
DD1EDIA TEL Y ACQUIRES LEGAL SETTLEMENT IN COUNTY
OF RESIDENCE OF PARENTS-SURVIVING PARENT, PAR-
ENT HAVING CUSTODY, GUARDIAN OF MINOR-SECTIONS
1 6 3 9 ~ 6 , I639-I6, 339I-I6 GC.
SYLLABUS:
When a Juvenile Court exercising jurisdiction over a child under the provisions
of 1639-16 General Code, terminates such jurisdiction, said child by virtue of Section
1639-6 Ohio General Code, and Section 3391-16 Ohio General Code immediately ac-
quires a legal settlement in the county of residence of the .parents, surviving parent,
sole parent, 'Parent having custody awarded by a Court having jurisdiction, or guardian
of the person of such minor.
Columbus, Ohio, May 28, 1953
Hon. J. H. Lamneck, Director, Department of Public Welfare
Columbus, Ohio
Dear Sir:
I am in receipt of your recent request for an opinion relative to the
responsibility of counties to support dependant children now living within
the territorial limits of such county. Your request reads as follows:
ATTORNEY GENERAL
.. :\ question has arisen relative to the legal settlement of
children who were under the j uriscliction of the \V ood County
Juvenile Court, between \Voocl and Hancock Counties.
"?II r. and :\-Irs. A. and their children lived in \Vood County
and had a legal settlement there. She obtained a divorce from her
husband in 1946, and obtained custody of her children. In 1950,
her children were committed to the \Vood County Department of
Public \Velfare for temporary care and custody. In February,
1952, :\Irs. A. married a resident of Hancock County and moved
to that county. In January, 1953, Ivirs. A.'s children were re-
turned to her by the \Vood County Juvenile <Court and its jurisdic-
tion terminated.
sections 339r-r6 and r639-6 of the General Code both relate
to legal settlement. It now appears that the children are again in
need of assistance. \Ve, therefore. desire your opinion on the
following questions:
''First. did the children of ?drs. A. automatically acquire a
legal settlement in Hancock County at the time of her marriage
and remO\al to that county?
'''Second, if they did not automatically acquire the legal settle-
ment of the mother at the time of her marriage and removal to
Hancock County, did such children immediately acquire a legal
settlement in Hancock County at the time the Juvenile Court of
\Vood County terminated its jurisdiction and returned the chil-
dren to Mrs. A. in Hancock County, or would it be necessary for
these children to reside in Hancock County for a period of one
year without public support before they acquired legal settlement
there:"
20j
The facts as set forth in your letter indicate that the mother and
father of the children in question were divorced in \Vood County in 1946
and that as a result of this divorce the custody of the children was
awarded to the mother.
Subsequent to the divorce the Juvenile Court of Wood County assumed
temporary care and custody of the children during the period from 1950
to January of 1953, at which elate the \Vood County Juvenile Court re-
turned the children to the mother and terminated jurisdiction over the
children.
Subsequent to her divorce, the mother, in February of 1952, married
a lV[r. A., who was a resident of Hancock County, and in February of 1952
moved to Hancock County where she has lived since that date.
Section 3391- r6 of the Ohio General Code provides in part:
206 OPINIONS
"* * * A woman who marries a man with a legal settlement
in any county shall immediately acquire the settlement of her
husband."
It would appear, .therefore, that Mrs. A., the mother of the children,
acquired legal settlement in Hancock County in February of I9j2, assum-
ing the husband to have a legal settlement in that county.
1 n view of the fact that the mother immediately moved to Hancock
County following her marriage in February of 1952, she has, in any event,
resided in Hancock County for over one year without receiving public
assistance, and thereby has gained legal residence in Hancock County.
In answer to your first question as to whether or not the children
automatically acquired legal settlement in Hancock County at the time of
Mrs. A.'s marriage, I must reply in the negative since, at that time, the
children were wards of the vVood County Department of \Vel fare, and
such department had the exclusive care and custody of the children. In
January of 1953 the Wood County Juvenile Court terminated jurisdiction
over the children and returned them to the home of the mother in Hancock
County. At this time the legal settlement of the children reverted to the
mother, who was awarded custody of the children by virtue of the 1946
divorce action. Section 1639-6 of the Ohio General Code reads as follows:
"For the purposes of this chapter, a child shall have the same
residence or legal settlement as its parents, legal guardian of its
person, or its custodian who stands in the relation of loco-parentis,
except as otherwise provided for by statute."
This section should be considered along with Section 3391-16, Ohio
General Code, which reads in part as follows :
"The legal settlement of a minor shall be that of the parents,
surviving parent. sole parent, parent having custody awarded by
a court having jurisdiction or guardian of the person of such
minor * * *."
In view of the above facts I am of the opinion, and you are advised:
1. That during the period that the Juvenile Cour.t exercised jurisdic-
tion over the children, said children did not acquire a legal settlement out-
side of Wood County.
2. V/hen the Juvenile Court terminated its jurisdiction, the children,
by virtue of Section 1639-6 General Code and Section 3391-16 General
Code, immediately acquired a legal settlement in Hancock County, the
ATTORNEY GENERAL 207
county of residence of the mother who was awarded custody by the Court
granting her a divorce and it is unnecessary for such children to reside in
that county for a year without public support before they acquire legal
settlement there.
2679
Respectfully,
C. WILLIAM O'NEILL
Attorney General
r. HEALTH, DISTRICT BOARD OF - AUTHORIZED TO
ENACT REGCLATIONS RELATIVE TO REMOVAL, TRANS-
PORTATION AND DISPOSAL OF GARBAGE - TERMS,
PROTECTION OF PUBLIC HEALTH-MAY NOT DISCRIM-
I ~ A T E IN FAVOR OF RESIDENTS AS AGAINST NON-
1\ESlDE:\'TS OF DISTRICT-SECTION 126I-42 GC.
2. REGULATION, DISTRICT BOARD OF HEALTH - TO
IviERELY FORBID ANY PERSON, FIRM, CORPORATION
OR POLITICAL SUBDIVISION OUTSIDE OF COUNTY
FROM TRANSPORTING OR DISPOSING WITHIN COUNTY
OF .-\.\'Y GARBAGE OR REFUSE, IS INVALID.
SYLLABUS:
1. A district board of health is authorized by Section 1261-42, General Code, to
enact regulations relative to the removal, transportation and dis[Xlsal of garbage, but
such regulations mus.t be designed hy .their terms to protect the public health, and must
not discriminate in favor of residents as against non-residents of the district.
2. A regulation of a district board of health which merely forbids any person.
firm, corporation or political subdivision outside the county from transporting thereto
or disposing \\'ithin such county of any garbage or refuse, is invalid.
Columbus, Ohio, June 3, I953
Hon. Robert E. Cook, Prosecuting Attorney
Portage County, Ravenna, Ohio
Dear Sir:
J have before me your letter, requesting my opinion, and reading as
follows:
2 0 ~ OPINIONS
"I am enclosing a Regulation which has been proposed by
the Portage County Board of Health to become one of their
rules and regulations, as authorized by G. C. 1261-42.
"Since there is doubt in the minds of some of the members
of the Board of Health as to whether the proposed Regulation is
a legal exercise of their power under G. C. IWI-42, I would
appreciate your opinion as to whether the proposed amendment
may be adopted by the County Board of Health and become part
of its regulations."
The regulation to which you refer, which your district board of
health proposes to adopt, reads :
"It shall bet unlawful for any person, firm, or corporation or
political subdivision outside of Portage County, Ohio. to trans-
port, deliver or deposit garbage or refuse into or within the
territory under the jurisdiction of the Board of Health of the
General Health District of Portage County, Ohio, or to dispose
of same by any means whatsoever within the Portage County Gen-
eral Health District."
The authority of a district board of health to adopt and enforce
regulations having to do with the health of the public is found in Section
1261-42, General Code, which reads as follows:
"The board of health of a general health district may make
such orders and regulations as it deems necessary for its own
government, for the public health, the prevention or restriction
of disease, and the prevention, abatement or suppression of
nuisances, and shall have the power to require that no human
waste, animal waste, or household wastes from sanitary installa-
.tions within the district be discharged into a storm sewer. open
ditch or water course without a permit therefor ha \'ing been first
secured from the board of health of the health district under such
terms and conditions as the board may from time to time re-
quire. * * *"
A study of this section makes it very clear that any regulation
adopted by a board of health must have for its sole purpose the protection
of the public health, and its validity will be tested in the first instance by
the question whether it is intended to and does accomplish this purpose.
There is no question but that garbage can reach a condition that
makes it a menace to the public health and therefore its collection and
disposal may properly be regulated by the public authorities: and I am
ATTORNEY GENERAL
clearlY of the opm10n that regulations of that character, designed to
protect the public health, may be adopted and enforced by the council of
a municipality or by a board of health. In State, ex rei. Moock v. Cin-
cinnati. 1 20 Ohio State, soo, it was held:
""The adoption of regulations pertaining to health and sanita-
tion. including the process of collection and disposal of garbage.
is within the proper exercise of the police powers of the state
and of its municipalities."
In the course of the opinion it was said by Judge Jones:
'"The overwhelming weight of authority, both state and fed-
eral, upholds the municipal right to regula:te, supervise, and
control sanitation, including the collection and disposal of garbage,
under the police power of the city and state; * * *"
This case upheld a contract with the City of Cincinnati, whereby the
contracting party was to have the exclusive right to collect and haul to a
farm outside the city, all garbage, which was to be fed to hogs.
Any ordinance or similar regulation, undertaking to protect the public
health, must be such as will be conducive to that encl. It is manifest that
garbage. in order to be collected and properly disposed of must be trans-
ported in some manner. It would therefore be wholly unreasonable to
attempt to prohibit its transportation. It would be quite proper for a
board of health to provide some regulation as to the manner in which the
removal and disposition should be accomplished, with such precautions as
will tend to prevent the garbage while in transportation or in process of
disposal from becoming a nuisance or menace.
It is said in 28 Ohio Jurisprudence, page 448, that it is a fundamental
!Jrinciple of law that all p<Jlice regulations must be reasonable; and they
must not be arbitrary or oppressive. Citing Froelich v. Oeveland, 99 Ohio
St., 376. In 20 Ohio J urispruclence, page 542, we find this statement:
"'A health law must have some relation to the end it seeks to
accomplish, for personal rights and private property cannot be
arbitrarily affected under the guise of police regulations."
The principle suggested by this quotation is well illustrated by the
decision and ruling in the case of weber v. Board of Health, 148 Ohio St.,
389. The facts in the case are also closely related to the situation that
appears to be aimed at in the proposed resolution which you submit. The
210 OPINIONS
plaintiff, \Veber, a resident of Hamilton County, owned a farm in Butler
County. He hac\ for years collected garbage in Cincinnati and hauled it
to his farm where he fed it to his hogs. The ooard of the general health
district of Butler County passed a resolution undertaking to regulate the
transportation and disposal of garbage in the district. \Veber brought
suit for a declaratory judgment holding the regulation unconstitutional
and void so far as it prohibited the transportation of garbage, for the
purpose of feeding swine or other animals, into or within the territory
under the jurisdiction of the Board. The holding of the court as shown
by the third branch of the syllabus was as follows:
"under the provisions of Section 1261-42, General Code, the
board of health of a general health district has a wide latitude in
making and enforcing rules and regulations for the public health,
the prevention or restriction of disease, and the prevention, abate-
ment, or suppression of nuisance, but when such board passes a
resolution which prohibits a business not unlawful in itself and
which is susceptible to regulations which will prevent it from be-
coming either a health menace or a nuisance, such board trans-
cends its administrative rule-making power and exercises legis-
lative functions in violation of Section r of Article II of the
Constitution of Ohio."
It is a rule applicable to all legislation, whether state or local, that a
statute or other measure must have uniform operation, and must not
discriminate in favor of or against classes of people. ."\n ordinance
exacting a greater license fee from non-residents than from residents for
the use of vehicles on streets, of the same kind, class and size. has been
held to be unreasonably discriminatory. Columbus v. Jeffrey, 1 Ohio :\' .P.
( :\ .S.), 265. And see generally, 28 Ohio Juris prudence, r 57. .-\n ordin-
ance or similar regulation may not discriminate against non-residents. In
McQuillin on Corporations, Section 19.16 it is said:
"Constitutional protection of persons by guaranty of equal
protection of the law extends to all persons, and includes nonresi-
dents and aliens. *. o:< *
''Municipal legislation discriminating against nonresident
business in favor of resident business is unconstitutional. Also,
an ordinance which discriminates between residents and nonresi-
dents respecting a license tax is bad."
It will be observed .that the proposed regulation undertakes to forbid
the transportation of any garbage or refuse into the territory under the
ATTORNEY GENERAL 2II
jurisdiction of the board of health of the general health district, and
further undertakes to forbid the disposition of any garbage or refuse so
brought into the district, by any means whatsoever, within said health
district. It does not undertake to establish any methods or precautions
that are to be observed in transporting or disposing of such garbage or
refuse. In so far as I can discover, it establishes no rule or regulation
,,hich is designed to protect the public health.
Under the terms of the proposed regulation, even if garbage were
transported in a receptacle that is hermetically sealed, and upon being
brought into the district were immediately destroyed by burning or bury-
ing, so as to be wholly inoffensive, yet such transportation and disposal
would be unlawful. At the same time a resident of the district might
with impunity haul his garbage in an open wagon and dump it where he
pleases.
It seems plain that the operative effect of the proposed regulation
would be solely upon political subdivisions located, and persons residing
outside the district. It is obvious that what would he unlawful for a
political subdivision or individual resident outside the district would be
quite permissible and legitimate for those political subdivisions situated,
and individuals residing within the terrtory of the district. It is well
knO\vn that cities and villages have to take steps to collect and dispose of
their garbage and other refuse. The methods of disposal in common
practice include incineration, burying, and feeding to hogs. None of
these processes is ordinarily carried on within the limits of the corporation.
It is common practice in cities, particularly, to acquire lands located out-
side of their limi.ts for the purpose of garbage disposal. They are given
authority by the statutes to acquire such lands and may, if deemed neces-
sary, acquire them by condemnation outside of the corporate limits. See
Sections 3677 and 3678, General Code.
Accordingly, if a city or village owns a tract of ground located outside
of its corporate limits, whether within the same county or in some other
county, it should have the right to convey its garbage to that land and there
dispose of it in a sanitary manner. I do not believe any authority can be
found whereby a board of health could prevent this from being clone.
Obviously, the board would have the right, in the interest of the public
health, to surround these processes with such regulations as are reasonable,
212 OPJNIONS
to prevent a nuisance arising, or to guard against imperiling the public
health.
Because the proposed regulation does not undertake .to establish any
measure designed to protect the public health, and because it undertakes
to discriminate against certain classes of persons and corporations, it is
my opinion that a district board of health would have no power to enact
or enforce it.
You are accordingly advised:
I. A district board of health is authorized by Section 1261-42, Gen-
eral Code, to enact regulations relative to the removal, transportation and
disposal of garbage but such regulations must be designed by their terms to
protect the public health, and must not discriminate in favor of residents
as against non-residents of the district.
2. A regulation of a district board of health which merely forbids
any person, firm, corporation or political subdivision outside the county
from transporting thereto or disposing within such county of any garbage
or refuse, is invalid.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL 213
26<)7
EXAMINER-BUREAU OF INSPECTION AND SUPERVISION
OF PUBLIC OFFICES-NO AUTHORITY TO MAKE FINDINGS
FOR RECOVERY IN FAVOR OF MUNICIPALITY AGAINST
ABUTTING PROPERTY OWNERS - AMOUNT OF SPECIAL
ASSESSl\'rENTS AB>ATED AND ENJOINED AS ILLEGAL AND
VOID-ORDER, COMMON PLEAS COURT-ACTION UNDER
SECTION 12075 GC-COMPROMISE AGREED UPON BY PAR-
TIES IN OPEN COURT-CITY SOLICITOR-CITY COUKCIL.
SYLLABUS:
An examiner of the bureau of inspection and supervision of pU:blic offices is with-
out authority to make findings for recovery in favor of a municipality and against
abutting .property owners for the amount of special assessments abated and enjoined
as illegal ami mid by an order of the common pleas court in an action brought under
the provisions of Section 12075, General Code, even though the court's action was the
result of a compromise agreed upon by the parties in open court, the city solicitor
participating therein upon the authorization and under the direction of city council.
Columbus, Ohio, June 8, 1953
Bureau of Inspection and Supervision of Public Offices
Columbus, Ohio
Gentlemen:
Your request for my opinion reads as follows:
"In connection with the examination of the accounts and
records of municipalities of .the state of Ohio, our examiners
frequently encounter situations in which the municipal councils
will authorize the abatement of assessments levied against the
property owners for their share of the cost of public improve-
ments, after special assessment bonds have been issued and sold
and assessments have been certified to the county auditor, to be
placed upon the tax duplicate and to be collected by the city
treasurer, as are other real 1)roperty taxes.
"In this connection, I wish to call attention to the opinion of
the Supreme Court Case No. 32961, decided on June 11, 1952,
in the case of The State, ex rei. Donsante, a taxpayer, appellant,
v. Pethtel, Auditor, et a!., appellees, the first syllabus of which
reads as follows :
'' 'Where taxes are legally assessed, the taxing authority is
without power to compromise, release or abate them, except as
specifically authorized by statute.'
2J4
OPINIONS
"The petition filed in this case set forth the facts that, during
the years 1942 to 1947, the auditor of Lake County, pursuant to
the direction of the council and officials of the village of Wickliffe,
abated, discharged and removed from the tax list of the village,
without payment having been made, certain of such special assess-
ments theretofore duly levied and assessed, in a total amount in
excess of $46,000.00.
"In several cities of Ohio, our examiners have found that
several years after certain improvements had been completed,
special assessment bonds had been issued, assessments had been
levied and certified to the county auditor, said assessments had
been placed upon the tax duplicate, and several installments of
said assessments had been paid by the property owners, some
controversy had arisen between certain property owners and the
city about the amount of such assessments.
"As the result of said controversies, several property owners
filed suits in the common pleas court to enjoin the collection of
said assessments.
"Subsequent to the filing of these suits, the city councils
passed numerous ordinances and resolutions, authorizing the city
solicitors to approve journal entries in the common pleas court,
upon agreed ,erdicts in open court, whereunder the city agreed to
the abatement of as much as thirty three percent of these assess-
ments, upon the ground that the assessments were excessive.
"Accordingly, such journal entries were drawn and approved
by both the city solicitors and by the attorneys for the property
owners, and .the abatement of said assessments, in part, was
ordered by the court.
"A typical journal entry approved by the court reads some-
what as follows:
" 'Upon the finding by this court that at the time of the enact-
ment and passage of the resolutions and ordinances leading to the
assessments and reassessments of said amounts of municipal
paving assessments against said lots, the amounts so assessed and
reassessed and certified were, in each case, when added to the
county special assessments then levied and assessed against such
lots, in excess of the .true value of said lots, and each of them, and
that by reason thereof, said municipal paving assessments and re-
assessments were therefore a violation of the plaintiff's constitu-
tional rights and that said assessments and reassessments were
illegal, void and of no effect.'
"\\Therefore, it was ordered that the county auditor should
abate all of said assessments and reassessments then standing on
his records against such lots, and all defendants in this action were
forever permanently enjoined from thereafter a-ttempting to as-
ATTORXEY GEXERAL
sess, certtty or collect any and all of said assessments and reas-
sessments against such lots, and said assessments and reassess-
ments were declared illegal, unlawful and void.
"These entries were filed and approved by the common pleas
court, prior to the decision of the court of appeals in the case of
Henri L. Mock, -plaintiff, \". John J. Boyle, et a!., No. 20737, 53
Ohio Abstract, page 567, appealed to the Supreme Court on July
r8, 1949, Case 31889. The Supreme Court refused to revie\v
the Mock case.
"The question that now arises is this:
"Does an examiner of the Bureau of Inspection and Super-
vision of Public Offices have authority to make findings for re-
covery in favor of a municipality and against abutting property
owners for the amount of the special assessments abated under
order of the common pleas court, where the journal entry made
by the court was based on an agreed compromise abatement.
authorized by city council and agreed to in open court, by the city
solicitor and the attorneys for the property owners?''
2Ij
The action in the Boyle case, mentioned in your inquiry, was initiated
by certain property owners to enjoin the collection of assessments levied
upon real estate within a municipality. Judgment was rendered for the
plaintiff in the common pleas court and upon appeal to the court of appeals
judgment was reversed on the ground that the property owners concerned
were estopped, in their attempt to enjoin, by the conduct of their prede-
cessors in title in participating in action by which the assessments were
initially imposed. It is true that in the instant case the several property
owners might well have been similarly defeated had the city chosen to
contest their daims. This, however, was not done and the city actually
consented to judgment in which the assessments were judicially declared
tc be invalid.
In State ex rei. Donsante v. Pethtel, rs8 Ohio St., 35, the first para-
graph of the syllabus is as follows:
"r. taxes are legally assessed, the taxing authority
is without power to compromise. release or abate them except as
specifically authorized by statute."
In view of this plain statement of the law and because I do not under-
stand that any claim is raised in the instant case as to the illegality of the
assessment, it may be conceded that in none of the cases covered by your
216 OI'INIONS
inquiry was there any authority in law for the city council, solely by its
own action, to abate or compromise any of the special assessments con-
cerned.
This concession, however, is by no means dispositive of the matter for
it clearly appears that the several city councils did not undertake, by their
own action, to remit, abate or compromise such assessments but on the
contrary merely consented, on behalf of the city, to such action by the
common pleas court. The basic questions presented in your inquiry are,
therefore, whether that court possesses such power of abatement, and
whether a judgment .to that effect is conclusive as to any action under the
provisions of Section 286, General Code, in which the effectiveness of the
judgment is questioned.
The jurisdiction of the common pleas court in actions to enjoin the
collection of taxes and assessments is found in Section 1207 j, General
Code, which reads as follows:
;;Common pleas and superior courts may enJ0111 the illegal
levy or collection of taxes and assessments, and entertain actions
to recover them back when collected, without regard to the amount
thereof, but no recovery shall be had unless the action be brought
within one year after the taxes or assessments are collected."
In view of the plain language of this statute, it must be conceded that
the court, in the cases described in your inquiry, had jurisdiction of the
subject of the action. No question is raised, as I understand it, that the
cGurt likewise had jurisdiction of the parties and I assume that such was
the case. Because the subject is not mentioned in your inquiry, I must
assume also that there was no question of fraud, collusion or mistake in
any of the litigation involved.
In these circumstances, the common pleas court, by the approval of a
journal entry, made a finding that certain assessments were Hillegal. void
and of no effect," and for such reason "permanently enjoined" their
assessment, certification and collection.
In 23 Ohio Jurisprudence, 823, et seq., Section 521, we find the follow-
ing statement:
;,* * * 1 n the absence of fraud, collusion, or mistake at least,
a judgment upon the merits, rendered by a court of competent
jurisdiction, is a final determination or adjudication of the claims,
A T T O R ~ E Y GENERAL
and rights of the parties, of the fact and amount of indebtedness
and remedies of the parties, of the issues, or material facts, or
matters necessarily, properly, or directly in issue, and, under prop-
er circumstances, of questions which might have been litigated
therein, but not of those matters which could not have been adjudi-
cated therein; and is conclusive and binding as between the parties
and privies, .though subject to vacation or modification, while the
judgment remains in force; that is to say, unless an appeal has
been taken, or until the j uclgment is reversed or set aside by a
direct proceeding for that purpose in a court of competent jurisdic-
tion. * * *"
21/
I am informed that no action was taken seeking to vacate these
judgments during the term in which they were rendered, nor any action
to vacate them after .term on any of the grounds stated in Section II631.
General Code, nor was any appeal prosecuted within the time permitted by
law. Such being the case, it would appear that such judgments became
final and conclusive so far as the several cities were concerned, and this is
so regardless of any claim presently raised .that such judgments were
erroneous, for even erroneous judgments are binding between the parties
and privies until vacated or reversed. 23 Ohio Jurisprudence, 837, Section
528.
In your inquiry you state that the several judgments with which we are
here concerned were brought about by action of the several ci.ty councils in
passing certain ordinances and resolutions authorizing the city solicitors to
approve journal entries in the common pleas court upon agreed verdicts in
open court. The effect .of j uclgments by consent is described in 23 Ohio
Jurisprudence, 760, section 422, as follows:
"The law has been broadly laid clown that as between parties
sui juris. and in the absence of fraud, a judgment or decree of a
court having jurisdiction of the subject matter and rendered by
consent of the parties, though without any ascertainment by the
court of the truth of the facts averred, is binding and conclusive
between the parties and their privies. In fact, such a judgment is
considered as binding and conclusive as one rendered in an ad-
versary suit. in which the conclusions embodied in the decree had
been based upon controverted facts and clue consideration thereof
b, the court."
Cited m support of this statement in Sponseller v. Sponseller, no
Ohio St., 395, the second paragraph of the syllabus in which is as follows:
218 OPINIONS
;;2. Where a court acquires jurisdiction over such subject-
matter and the parties, a consent decree adjusting alimony can
!'lot be collaterally attacked."
In view of these statements of law, there would appear to be no
ground for questioning the effectiveness of the judgments in the instant
case merely on the ground that they have been entered by consent of parties.
VI/ e may next consider the effect of this situation on the authority to
take a finding under the provisions of Section 286, General Code, against
the several property owners and in favor of the municipality as to the
assessments the collection of which has been permanently enjoined.
While it is true that judgments are not binding as to strangers, it can
scarcely be said that the bureau of inspection and supervision of public
offices is a stranger in the instant cases. It will be observed that any action
which may be brought, as provided in Section 286, supra, based on a finding
by the bureau, will be prosecuted by the city solicitor or specially employed
counsel in the name of the city concerned. Thus it is clear that the inter-
ests of the bureau and of the city are identical and that the bureau may
assert a claim only in the name of and for the benefit of the city. Such
being the case, it is clear that the bureau is without authority to assert any
claim which the city is estopped to assert.
As to the city, however, it is clear that its claims against the several
property owners concerned are res judicata. This doctrine is described m
23 Ohio Jurisprudence, 961, 2, .Section 730, as follows:
"Briefly stated, the doctrine of res judicata is that an existing
final judgment or decree, rendered upon the merits, and without
fraud or collusion, by a court of competent jurisdiction, is conclu-
sive of rights, questions, and facts in issue, as to the parties or
their privies, in all other actions or suits in the same or any other
judicial tribunal of concurrent jurisdiction. The rule has been
said to be well expressed as follows: ;The judgment of a court
of concurrent jurisdiction directly upon the point is, as a plea in
bar or as evidence, conclusive between the same parties, on the
same matter, directly in question in another court. But neither
the judgment of a court of concurrent or exclusive jurisdiotion is
evidence of any matter incidentally cognizable, nor of any matter
to be inferred by argument from the judgment."
The reason for the rule is stated in the same work, p. 963, Section 731,
as follows:
ATTORNEY GENERAL
"* * * The doctrine of res judicata rests upon the ground
that .the party to be affected, or some other with whom he is in
privity, has litigated, or had an opportunity to litigate, the same
matter in a former action in a court of competent jurisdiction, and
should not be permitted again to harass and vex his opponent in
a second action involving the same matter."
2I9
It is clear from the facts stated in your inquiry that the several cities
concerned are effectively estopped as to the claims in question and could
not successfully prosecute an action, as provided in Section 286, General
Code, on the basis of the bureau's finding with respect to such claims. Any
such finding and any action prosecuted thereon would, therefore, constitute
<L mere harassment and vexation of the property owners concerned in a
second action involving the same matter, a proceeding which is wholly at
variance with the policy of the law.
Accordingly, in specific answer to your inquiry, it is my opinion that
an examiner of the bureau of inspection and supervision of public offices
is without authority to make findings for recovery in favor of a munici-
pality and against abutting property owners for the amount of special
assessments abated and enjoined as illegal and void by an order of the
common pleas court in an action brought under the provisions of Section
I20JS, General Code, even though the cour.t's action was the result of a
compromise agreed upon by the parties in open court, the city solicitor
participating therein upon the authorization and under the direction of city
council.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
220
OPINIONS
2698
DENTISTS AND PHYSICIA);S-GROCP SH.ARIJ'\G COMMON
OFFICE FACILITIES-DESIGNATED "X CLINIC"-COlVBION
NAME OK STATIONERY, BILLS TO PATIENTS, RECEIPTS,
DIRECTORIES, ON AND ABOUT BUILDING WHERE OFFICES
LOCATED - EACH DENTIST IS PRACTICING DENTISTRY
OTHER THAN "UNDER HIS NAME ONLY"-VIOLATION OF
SECTION 1329-1 GC.
SYLLABUS:
Where a group of dentists and physicians sharing certain common office facilities
practice their professions under the group designation of "X Clinic" by using in com-
mon the clinic name on their stationery, on bills to .patients for fees, on receipts to
patients for payment of fees. in professional directories, and on and about the building
in which their professional oflices are located, each of the dentists concerned is prac-
ticing dentistry otherwise than ''under his name only" in ,iolation oi Section 1329-1.
General Code.
Columbus, Ohio. June 9 1953
Hon. Hugh B. 'Smith, Secretary, Ohio State Dental Board
Columbus, Ohio
Dear Sir:
This will acknowledge your request that I review Opinion No. 4081,
Opinions of the Attorney General for 1948, p. 559, and include therein a
consideration o-f the legality of the use by a dentist in the private practice
of the word "clinic" as the designation of the office in which such private
practice is carried on.
In considering the designation of an office where private dental
practice is carried on as a "clinic," we may first observe the provisions of
Section 1329-1, General Code, which reads:
"]t shall be unlawful for any person or persons to practice or
offer to practice dentistry or dental surgery, under the name of
any company, association, or corporation, and any person or per-
sons practicing or offering to practice dentistry or dental surgery
shall do so under his name only and he shall not conduct a dental
office in his name or advertise his name in connection with any
dental office or offices unless he is himself personally present in
said office operating as a dentist or personally overseeing such
operations as are performed in said office or each of said offices
ATTORNEY GENERAL
during a majority of the time said office or each of said offices is
being operated by him; any person convicted of a violation of the
provisions of this section shall be fined for the first offense not
less than one hundred dollars, nor more than five hundred dollars,
and upon a second conviction therefor, his license may be sus-
pended or revoked, as provided in section r 325 of this act."
221
Prior to the amendment of this section in 1935, I r6 O.L. 82, this
section read :
"It shall be unlawful for any person or persons to practice or
offer to practice dentistry or dental surgery, under the name of
any company, association, or corporation, and any person or per-
sons practicing or offering to practice dentistry or dental surgery
shall do so under his name only; any person convicted of a viola-
tion of the provisions of this section shall be fined for the first
offense not less than one hundred dollars, nor more than two hun-
dred dollars, and upon a second conviction therefor, his license
may be suspended or revoked, as provided in section 1325 of this
act."
This section was under scrutiny 111 Ex Parte Craycraft, 24 N.P.
(N.S.) 513 (C.P. Hamilton County, 1916), the fourth paragraph of the
headnotes in which is as follows :
"Section 1329-r, making the pactice of dentisty unlawful
unless carried on under the name of the individual practitioner, is
an abuse of the police power and unconstitutional."
In the course of t'he opinion by Judge Nippert we find the following
statement, p. 522:
"The provision of the statute requiring that the name of the
dentist should appear in readable letters in connection with the
'advertising name' might be considered a salutary provision of the
statute to protect the public against fraud and imposition. But we
are not called upon to decide this particular question in the case at
bar as Section I 329- I contains no such qualification. Section
r 329-I virtually prohibits any dentist from practicing dental sur-
gery under any other name except his own. If this was held to be
a proper exercise of police power, all of the 'good will' attached
to such names as 'New York Dental Parlors,' 'Albany Dentists,'
etc .. would be wiped out; the property rights in these names \vould
be nil. and an irreparable loss would be suffered by those who for
years have used these names and built up a large and legitimate
practice under these designations. \Vhat is there to prevent the
legislature of the state of Ohio from passing a law requiring all
soap manufacturers to sell their soap under their own names only,
222 OPINIONS
so that the purchasing public might know where to look for re-
course in case a certain soap should contain ingredients detri-
mental to the user's health? If our Constitution would permit the
enactment of such a law, the most extensive industry for which
Cincinnati is noted would be put out of business instanter.
"Section 1329-1 is certainly an abuse of the police power of
the state, and therefore unconstitutional."
This decision does not appear to have been accorded much \veight in
subsequent cases such as Taylor v. New System Laboratory, 29 N.P.
(N.S.) 451 (C.P. Cuyahoga County, 1932) and Brown v. Sta<te, 30 N.P.
(N.S.) 439 (CP. Cuyahoga County, 1933.) In the Taylor case rhe first
paragraph of the headnotes is as follows :
"\\There a certain occupation, such as rhe practice of den-
tistry, has a direct bearing on the public health and requires special
knowledge and skill, it is within the power of the state to regulate
such ocrupation. The state dental code, Sections 1314-1333, Gen-
eral Code, and Section 1329-1, forbidding .the practice of dentistry
except under the individual name of the practitioner, are constitu-
tional."
In the course of the opinion m this case Judge .lVfcMahon said, pp.
453, 454:
"This court is not impressed by the reasoning in the Cray-
craft case. In the first place much of the argument used by the
cour.t in arriving at its opinion, does not apply to the case at bar,
in that at the time the defendant corporation was formed the
sections of the Code referred to in plaintiffs' petition were in full
force and effect and had been so for a period of fifteen years.
"The analogy attempted to be drawn by the court in the Cray-
crof.t case, between the .profession of dentistry and the making of
soap, is not at all applicable. The profession of dentistry has a
direct relation to the public health.
"In Volume 8, Ohio Jurisprudence, 412, par. 2B9, we find the
following language :
" 'It is a well-settled principle of law that the legislature has
the power for the protection of the public, to regulate the practice
of any particular profession which requires the possession of
special knowledge, skill and training in its exercise. Such pro-
fessions include those of attorneys at law, dentists, pharmacists
and physicians and surgeons.'
"\iVhat logical reason can any professional man have for
\Vanting to substitute some impersonal trade name or proprietary
ATTORNEY GENERAL
name for his own? One of the certain effects in so doing being
t:<he concealment of his identity from the public. This court ac-
cepts the reasoning of the Kansas Supreme Court in the case of
vVinslow v. Kansas State Dental Examiners, I I 5 Kan., 450,
wherein it is said:
" 'Dentistry is a profession having to do with the public
health, and so is subject rt:o regulation by the state. The purpose
of regulation is to protect the public from ignorance, unskillful-
ness, unscrupulousness, deception and fraud. To that end the
state requires that the relation of the dental praotitioner to his
patients and patrons must be personal.' "
223
In the Brown case the first two paragraphs of the headnotes are as
follows:
"r. The purpose of Section 1329-1, General Code, is to re-
quire dentists to advertise in their individual capacity and not
under a trade name.
"2. The restriction so imposed is within the authority of
the legislature."
Judge Harris said in the opinion of this case (pp. 440, 441) :
"I do not agree with the views expressed by Judge Nippert in
Ex parte Craycraft, decided March 12, 1916, and published in 24
N.P. (N.S.) page 513 and do heartily concur with the views
expressed by Judge McMahon of this court in the case of Taylor
et al. v. The New System Prosthetic Dental Laboratory, Inc., et
al., 29 N.P. (N.S.) 451.
"It seems quite dear to me that the word 'only' contained in
the foregoing section of the General .Code means something. To
my mind it means that a dentist may only offer himself to the
public as a practitioner of dentistry under his genuine name. In
this case it is perfectly evident that Dr. Brown offered himself as
a practitioner of dentistry under the name of The New Method
Dental Parlor and also under his own name. Consequently he
violated the statute.
"The plain purpose of the statute was to require dentists,
who see fit to advertise themselves in any manner, to do so in
their individual capacity and not under a trade name. Obviously,
if the public seeking dental services can be invited into a dental
parlor called The New Method Dental Parlor, whioh today Dr.
Carl F. Brown is operating, but next month another dentist may
be operating and the following month still another, patients would
be likely to be misled, possibly, indeed probably, to their injury.
224 OPINIONS
"Dentistry is a learned profession, so recognized by our
General Assembly, our courts and the people at large. Therefore.
it is perfectly proper for a legislature to impose a restriction such
as contained in Section 1329-1, and it is incumbent upon all den-
tists to conform thereto."
I am inclined to agree with the rules t:hus stated in the Taylor case
and in the Brown case. I am inclined to agree with Judge Harris also that
the employment of the word "only" in .Section 1329-1, General Code, has
the effect of prohibiting the use of a trade name even when the practitioner
uses his own name also. YVe may, therefore, next inquire whether the
designation of a dental office as a "clinic" constitutes the use of a trade
name.
The '.vord "clinic" is defined in Webster's New International Diction-
ary, 1949 Edition, as follows:
'' 3 Med. a Instruction of a class of medical students by the
examination and treatment of patients in the presence of the
pupils. b A gathering of a number of students at a clinical lec-
ture. c An institution or station, often connected with a hospital
or medical school, for the examination and treatment of outpa-
tients.
"4. An institution usually connected with a school, court or
settlement, in which concrete cases or problems of a special type
are studied, and expert advice or treatment given; as, a vocational
child-guidance, or psychiatric clinic."
In Dorland's The American Illustrated Dictionary, 22nd
Edi-tion, 1951, the word clinic is defined as:
"I. A clinical lecture; examination of patients before a class
of students; instruction at the bedside. 2. An establishment
where patients are admitted for special study and treatment by a
group of physicians practicing medicine together. ambulant c.,
one for patients not confined to the bed. dr:;' c., a clinical lecture
with case histories but without the presence of the patients de-
scribed."
From these definitions it is abundantly clear that an office where a
dentist is engaged solely in the private practice of his profession is not a
clinic in the usual and ordinary meaning of the wore\.
In this connection it may be noted that the application of Section
1329-1, GeneraltCode, to the use of the designation of "clinic" in connection
\vith the private practice of dentistry, was very briefly considered in Opin-
ATTORNEY GENERAL 225
1011 ?\ o. 4081, Opinions of the Attorney General for 1948, p. 559, the
opinion which you have asked me to review.
The recited factual situation in the 1948 opm10n IS set out m the
inquiry therein as follows:
"The Ohio State Dental Board is concerned with the exist-
ence of a number of so-called clinics and respectfully requests
your formal opinion concerning the legality of their operation. The
facts relating to the conduct and operation of the most flagrant of
these clinics is briefly as follows:
""Clinic C:
This clinic is incorporated not for profit under the laws of
Ohio. The purpose as set forth in the charter is quite lengthy,
but its main purpose seems to be to 'own and conduct hospitals
for sick and disabled persons-and charging and receiving com-
pensation for services, care, treatment and accommodations for
the purpose of maintaining said hospitals not for profit.' This
clinic, of course, employs a number of physicians and surgeons. It
also employs a dentist on a salary basis. The dental equipment is
owned by the clinic. The clinic purchases and pays for all the
dental supplies, and any other expenses incident to the cost of
operation of the dental department.
"Clinic Cu:
This clinic is incorporated not for profit under the laws of
Ohio. Its purpose as set forth in the charter is briefly 'to operate,
manage and own clinics, dispensaries and hospitals for reception,
medical treatment and care of patients.' This clinic is owned and
operated by a number of physicians and one dentist. This clinic
is admittedly a group practice. The clinic as such owns the dental
equipment, buys all supplies and pays all the bills. The cash re-
ceipts, including those from the operation of the dental office, are
deposited in a common fund from which all expenses are paid.
The owners of the clinic are paid by means of a drawing account
on some undesignated point system. The clinic employs a number
of other physicians on a salary basis, and it may be observed here
that the dentist is sharing in this expense, as well as in the income
provided through the efforts of these physicians; likewise the
dentist is sharing in the income and expenses incident to the effort
of the physician. All other salaries are paid by the clinic. In
addition to the clinic's name on the building, letterheads, etc., the
name of the dentist also appears on the outside of the building.
E Clinic:
This clinic is not incorporated. A number of physicians ancf
dentists occupy the same building, and this group is nominally
226 OPINIONS
tided 'T:he E Clinic.' Each dentist and physician has his own
separate practice, but the waiting room, receptionist, bookkeeper
and stenographer are shared by all and paid for by the clinic.
Monthly each doctor is assessed his proportionate share of the
expenses. All of this group use the same stationery, headed 'E
Clinic.' Receipts for all work are given in the name of the clinic,
and in some cases the services rendered by them, medical or
dental, are billed in the name of the clinic. In addition to the
name of the clinic appearing about the building, in directories,
etc., the names of the incliviclual dentists or physicians also appear.
"L. Clinic
This clinic is incorporated not for profit under the laws of the
State of Ohio. Its purpose as set forth in its charter are similar
to those hereinbefore referred to. This clinic is owned by several
physicians. The clinic pays for the bookkeeping and billing, and
buys all dental supplies, and pays all expenses, including the salary
.of the dental assistant. The dentist owns the dental equipment
and receives a depreciation allowance from the clinic. He then
.divides the net profit from the operation of the dental office with
the clinic, and from his share the dentist employs another dentist.
In aclcli.tion to the display of t'he name of the clinic, the names of
the dentists employee! there also appear on the outside of the
.building.
''The question confronting the Ohio State Dental Board is
whether the dentists connected with .these clinics are violating the
provisions of the dental law, particularly Sections 1329 and
1329-1, General Code.''
In considering the application of Section 1329-1, General Code, to
these facts, the writer of t'he 1948 opinion had only the following comment,
P s6s:
"The recited factual situation is such that it cannot reason-
ably be asserted aforesaid Section 1329-r, General .Code, is being
violated in that a dentist is practicing or offering to practice dentis-
try 'under the name of any company, association or corporation.'
"1\or does it appear that a dentist is advertising his name with any
particular office without being personally present .therein a major-
ity of his time. Nor does it appear that other prohibited aots are
in fact being committee!."
Here it will be observed that no consideration was given to that pro-
vision in Section 1329-r, General Code, requiring that "any person * * *
practicing * * * dentistry * * * shall do so under his .own name only" ; nor
was any consideration given to the judicial decisions in interpretation of
this provision.
ATTORNEY GENERAL 227
The limited scope of the 1948 opinion will be observed in the non-
committal nature of the "syllabus" and in the care-fully limited language of
the conclusions reached. The of this opinion reads:
"Discussion as to whether certain clinics are being operated in
violation of the dental practice act, Section 1314 et seq., General
Code, and as to whether the dentists connected therewith are vio-
lating said law."
In expressing the vtew that the corporate clinics involved were not
engaged in the practice of dentistry (p. s63), and that there was not in-
volved any division of fees with unlicensed persons (p. s66)' the writer
emphasized the fact that such conclusions were based on the facts recited.
I have already expressed, in my opinion No. Ji51, dated August 20,
1952, my disagreement with the basic reasoning in the 1948 opinion relative
to the coPporate practice of a profession. In that opinion I said:
"There is an implication in the 1948 opinion, supra, to the
effect that the corporations may lawfully contract with patients to
supply medical services generally and may contract with physicians
to furnish treatment to such patients. This implication is found
in the fact that the writer quotes with approval from State ex rel
Sager v. Lewin ( 1907), 128 Mo. App., 149, ro6 S.W. 581, the
following passage:
'' '* * * In all the larger cities, and connected with most of the
medical colleges in the country, hospitals are maintained by private
corporations, incorporated for the purpose of furnishing medical
and surgical treatment to the sick and wounded. These corpora-
tions do not practice medicine, but they receive patients and em-
ploy physicians and surgeons to give them treatment. No one has
ever charged that these corporations were practicing medicine.
The respondents are chartered to do, in the main, what these hos-
pitals are doing every day-that is, contracting with persons for
medical treatment and contracting 'With physicians to furnish
treahnent,-ancl the fact that Dr. W. A. Lewin is the principal
stockholder and the manager of respondent corporation, and is
employed iby it to furnish medical and surgical treatment to the
patients who may contract with it for such treatment, does not
alter the legal status of the corporation, or show it has violated
the terms of its charter.'
"The decision in this case is probably representative of the
minority American rule, but however this may be it can hardly be
said to be the rule followed in this state. In the Buhl Optical
Company case, supra, the court says in the syllabus that 'a corpo-
ration may not * * * employ an optometrist to do optometrical
228 OPINIONS
work in connection with its business * * * ' In the optmon by
\Villiams, J., in the same case we .find this statement:
" 'This court has never held and does not hold in the instant
case that companies incorporated to engage in the business of an
optician may not employ optometrists in connection therewith.
They may; but since they cannot incor.porate to engage in optom-
etry, they cannot do indirectly what they are forbidden to do di-
rectly. They cannot employ optometrists to engage in the prac-
tice of optometry. The optometrists employed can as employees
do only the work the employers are authorized by law to do.'
''In the opinion in the Dworken case, supra, it is said (p.
II9):
"'Now if a corporation cannot be formed in Ohio for the
purpose of practicing law directly, it cannot practice la.w indirect-
ly by employing lawyers to practice for it, as that would be an
evasion which the law would not tolerate.'
"In the Land Title Abstract & Trust Company case, supra,
the court said in paragraph 3 of the syllabus:
'' '3 The practice of law involves a personal relation which
cannot be fulfilled by a corporation, * * * .'
"In view of these clear expressions of the law, I am bound
to conclude that in this state corporations, whether or not organ-
ized and operated for profit, may not practice a profession indi-
rectly by hiring licensed members of such profession to do the
actual professional work involved."
The first paragraph of the syllabus in my opinion No. I751, supra, IS
as follows:
"I. A corporation, whether or not organized for profit. may
not lawfully engage in the practice of medicine in this state."
:\1oreover, in my opinion No. l7I7, dated August 5, 1952, I held:
''3. A corporation, whether or not partially supported by a
local community fund, is not authorized to engage in the practice
of dentistry, and such corporation would be unlawfully engaged
in the practice of dentistry where it has undertaken to operate a
dental clinic by utilizing the professional services of licensed
dentists and to charge and collect a fee for such professional
services.
"4. Under the provisions of Section I329, General Code, a
licensed dentist may not lawfully accept employment from a cor-
poration or association of persons not licensed as dentists under
the terms of which employment such employee performs profes-
sional dental services for which such corporation or association
charges and collects a fee."
ATTORNEY GENERAL 229
As to the three incor.porated clinics which were under scrutiny in the
1948 opinion, therefore, it would appear to be in order first to ascertain
their status under the rule prohibiting the corporate practice of a pro-
fession.
It cannot be said tha't dentistry, under the Ohio statutes, is any the
less a profession than the practice of medicine, and for this reason I con-
clude that the rule quoted above from Opinion No. 1751 is equally appli-
cable to the practice of dentistry.
ln the case of ".Clinic C," because the professional personnel involved
are mere employes of the corporation, it is clear that the corporation itself
i" unlawfully engaged in the practice of dentistry; and under the rule
quoted above from Opinion No. 1717, the dentist concerned would be
acting in violation of Section 1329, General 'Code. In these circumstances
it is not necessary to consider the possible applica-tion of Section 1329-1,
General Code, to the operations of a dentist in a clinic thus organized and
operated.
In the case of "Clinic Cu," 'because some of the professional personnel
concerned are employed by the corporation, it is clear here, too, there is an
instance of illegal corporate practice of a profession; and the same con-
clusion as stated above as to "Clinic C" must be reached with respect to
the salaried professional personnel involved.
As to the physicians and the one dentist who "own" the "non-profit"
corporation, and as such owners "are paid by means of a drawing account
on some undesignated point system," since we have already concluded that
the corporation is not authorized to practice a profession, it must neces-
sarily follow that the "owners" of the corporation are not authorized to
utilize the corpora.te organization as the vehicle through which their own
practice is carried on; and the dentist who is one of such "owners" is, of
course, practicing otherwise than "under his own name only" in violation of
Section 1 329- I, General Code.
In the case of the "L clinic" it will he observed that the dentist "di-
vides the net profit from the operation of the dental office with the clinic."
This division of "net profit" is a clear indication that the corporation is
unla\\'fully engaged in the practice of dentistry; and since such unlawful
practice is made possible only through the consent and cooperation of the
dentist concerned, it cannot be said that the dentist's operations under this
arrangement is authorized by law.
230 OPINIONS
In the case of the "E Clinic," which is unincorporated, it is stated that
"each dentist and physician has his own separate practice." This appears
to be an instance in which several professional .practirtioners utilize certain
office facilities in common and share the expense of such facilities propor-
tionately. There is nothing objectionable, of course, in this arrangement.
It is indicated, however, that all1Jractitioners, including the dentists, "use
the same stationery, headed "E Clinic"; that receipts are given in the name
of the clinic, and that in some cases patients are billed in the name of the
clinic. It is further indicated that "in addition to the name of the clinic
appearing about the building, in directories, etc., the names of the indi-
vidual dentists * * * also appear."
All of these arrangements appear to me to be calculated to build up
good will in the name of the clinic as an organization entirely separate
from the individual dentists. For this reason it seems to me that this
arrangement is subject to the same criticism made by Judge Harris in the
Brown case, supra, where he said, pp. 440, 44I :
"Obviously, if the public seeking dental services can be in-
vited into a dental parlor called The New Method Dental Parlor,
which today Dr. Carl F. Brown is operating, but next month
another dentist may be operating, and the following month still
another, patients would be likely to be misled, possibly, indeed
probably, to their injury."
I concur in this view of the purpose of Section I 329- I, General Code,
and conclude, therefore, that in the case of the "E Clinic," each of the
dentists concerned is practicing dentistry otherwise than "under his own
name only" in violation of this section.
Accordingly, in speci,fic answer to your inquiry, it is my opinion that
where a group of dentists and physicians sharing certain common office
facilities practice their professions under the group designation of "X
Clinic" by using in common the clinic name on their stationery, on bills to
patients for fees, on receipts to patients for payment of fees, in profes-
sional directories, and on and about the building in which their professional
offices are located, each of the dentists concerned is practicing dentistry
otherwise than "under his name only" in violation of Section IJ29-I,
General Code.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
r. NEW-WHEN SET OFF, DUTY OF COUl\'TY
COMMISSIONERS TO ORDER ELECTION OF OFFICERS
-OFFKERS SHALL HOLD OFFICE UKTIL NEXT REG-
l:LAR TOWNSHIP ELECTION AND UNTIL SUCCESSORS
ELECTED AND QUALIFIED-SECTION 3259 GC.
2. KEXT REGULAR ELECTION FOR TOWNSHIP OFFICERS,
NOVEMBER, 1953, TWO TOWNSHIP TRUSTEES SHOULD
BE ELECTED FOR TERM OF FOUR YEARS-ONE FOR
TERM OF TWO YEARS-SECTION 3268 GC.
3 NO PRIMARIES MAY BE HELD FOR NOMINATION OF
TOWNSHIP OFFICERS-PROVISO, UNLESS PETITIONS
HAVE BEEN FILED-SECTION 4785-67 GC.
SYLLABUS:
1. When a new township is set off, it is the duty of the county commissioners
under the provisions of Section 3259, General Code, forthwith to order an election of
officers for such township. Such officers shall hold office until the next regular town-
ship election and their successors are elected and qualified.
2. At the next regular election for township officers held in November, 1953,
two township trustees should be elected for a term of four years, and one should be
elected for a term of two years pursuant to the provisions of Section 3268, General
Code.
3. By reason of the provision of Section 4785-67, General Code, no primaries
may be held for nomination of township officers, unless petitions for such primary have
been duly filed as provided in such section.
Columbus, Ohio, June 9, 1953
Hon. Mathias H. Heck, Prosecuting Attorney
:l'vJontgomery County, Dayton, Ohio
Dear Sir:
I have before me your communication, requesting my opm10n in
regard to the legal procedure for the appointment and election of town-
ship trustees for the newly created township of Moraine, in Montgomery
County. Briefly stated, it appears that the entire area of the township
of Van Buren was, by proceedings held in 1952, duly incorporated as
a village and that the incorporation of such village has been completed,
232 OPINIONS
recently, by the election of village officers. It also appears that prior
to such election of village officers, proceedings were had under Section
3577-1 of the General Code, whereby a portion of the territory of said
village was detached therefrom, and erected into a new township, to be
known as Moraine Township. Based upon these facts, you present the
following questions:
"1. \ Vhat is the proper legal method of supplying town-
ship trustees to act temporarily until trusteess can be elected at
the general election in the township in November, 1953?
"2. "Yfust the election of the trustees be staggered, two
trustees elected for a term of four years at the general election
held in November, 1953. and one trustee be elected in November,
1955, for a term of four years?
"3. Can a special primary election be held in Moraine
Township for the nomination of candidates to be elected for
the township offices at the general election to he held in N ovem-
ber, 1953?
"4. If so, who has the authority to call ancl fix the date
for this special primary election ?''
I. I direct your attention to Section 3259 of the General Code,
which reads as follows:
"\i\Then a new township is set off, the county commissioners
shall forthwith give at least ten clays public notice by advertise-
ment, in three public places in such township, of the time and
place of holding an election for township officers. At such time
and place the electors of the township shall assemble, and elect
officers, who shall hold their offices until the next regular town-
ship election and their successors are elected ancl qualified."
It will be noted that t.his section has not been amended smce its
enactment in 51 Ohio Laws, 489. There is no ambiguity about its
terms, as it appears to provide generally, for the procedure ''when a new
township is set off." And it is made the mandatory duty of the county
commissioners forthwith to provide for an election for township officers.
It is manifest that this procedure is intended to be summary, and there
is no opportunity for the presentation of candidates for these offices.
Accordingly, it would appear that at this election the only method of
presenting and electing candidates would be by writing their names
in on the ballot.
ATTORNEY GENERAL
233
Your letter raises the question as to the possibility of appointing
tr:.tstees to act temporarily until trustees can be elected at the general
election to be held in November, 1953. The only section which suggests
such a procedure is Section 3262, General Code, which reads as follows:
''\Vhen for any cause a township is without a board of
trustees or there is a vacancy in such board, the justice of the
peace of such township holding the oldest commission, or in
case the commission of two or more of such justices bear even
elate, the justice oldest in years s.hall appoint a suitable person
or persons, having the qualifications of electors in the township
to fill such vacancy or vacancies for the unexpired terlll. \Vher-
ever in any township a municipal court shall replace and super-
sede .the justices of the peace, the municipal judge or the pre-
siding municipal judge if there be more than one, shall have
power to fill vacancies on the board of trustees. In those town-
ships wherein there are no justices of the peace or municipal
judges the probate judge shall have the power to fill vacancies
on the board of trustees." (Emphasis added.)
W"hile the first few words of this section, "\Vhen for a11y cause a
township is without a board of trustees" may suggest that the authority
of appointment vested in the officers named could be resorted to, yet a
consideration of the entire language of the section convinces me that it
relates only to a situation where a vacancy has been created by the
resignation or removal of one trustee, or where by reason of the resigna-
tion, death or removal of all the trustees there results a situation in which
a township is without a board of trustees. This conclusion is strengthened
by the fact that the appointment referred to, is spoken of as an ap-
pointment ''to fill such vacancy or vacancies," and also by the fact that
these appointments are for the unexpired term. In the case you present,
evidently no vacancy has occurred, and there is no unexpired term to be
filled. Accordingly, it is my conclusion that Section 3262 supra, does
not give power to make temporary appointments in the situation pre-
sented. This conclusion is further strengthened by the summary pro-
cedure that is authorized by Section 3259 supra.
2. Referring to your second question, whether at the election of
trustees in November, 1953, the terms of the trustees are to be staggered,
so as to permit two members to be elected for four years and one for
a term of two years, I call your attention to Section 3268, General Code,
which reads as follows:
234 OPINIONS
"In each township there shall be a board of township trus-
tees consisting of three members. Two of such trustees shall
be elected at the general election in 1949 and quadrennially
thereafter, in each township, who shall hold office for a term of
four years, commencing on the first day of January next after
their election. The third trustee shall be elected at the general
election in 1951 and quadrennially thereafter, in each township,
who shall hold office for a term of four years, commencing on
the first clay of January next after his election.''
It is plain from the provisions of this section that at the general
election held in November, 1953, two trustees will be elected for a term
of four years, and in order to get in tune with the system there estab-
lished, it appears equally plain that at that election the third member
should be elected for a term of two years. Thereafter the election will
recur in strict accordance with the provisions of the law.
3 As to your third question, relative to a primary election for the
nomination of trustees, you will note that by the provisions of Section
4785-67, General Code, no primaries may be held for the nomination of
candidates for township offices, unless a petition for such primary has
been duly filed as provided therein. It is also to be noted that owing to
the imminence of the general election, there will be insufficient time for
the presentation of candidates by petition, since under Section 4785-92,
General Code, such nominating petitions must be filed ninety clays be-
fore the first Tuesday after the first :Monday in May. Accordingly, the
only method of voting for persons to fill these offices will be by writing
their names on the ballot. You will note that this is permitted by Sec-
tion 4785-101, General Code, where no candidate has been nominated
for an office.
4 In view of the above conclusion it IS unnecessary to answer
your fourth question.
Accordingly, it is my opm10n and you are advised:
r. \\'hen a ne\\. township is set off, it is the duty of the county
commissioners under the provisions of Section 3259, General Code,
forthwith to order an election of officers for such township. Such officers
shall hold office until the next regular township election and their suc-
cessors are elected and qualified.
2. At the next regular election for township officers held in Novem-
ber, 1953, two township trustees should be elected for a term of four
years, and one should be elected for a term of two years pursuant to
the provisions of Section 3268, General Code.
ATTORNEY GENERAL
235
3 By reason of the provision of Section 4785-67, General Code,
no primaries may be held for nomination of township officers, unless
petitions for such primary have been duly filed as provided in such section.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
1. \VISCONSIN INVESTMENT BOARD, STATE OF-"BODY
- POSSESSES ESSENTIAL ATTRIBUTES
OF CORPORATION - OHIO FOREIGN CORPORATION
ACT-SECTION 8625-1 ET SEQ., GC.
2. CORPORATION ENGAGED IN INVESTING FOR PROFIT
OF \VISCO:\SIN STATE RETIREMENT SYSTEM -PAY-
ME?\TS TO BENEFICIARIES - PROFIT ACCRUES TO
CORPORATION AS LEGAL ENTITY - CORPORATION
NOT FOR PROFIT.
3 FO}(ElGN CORPORATION - TRANSACTING BUSINESS
IK OHIO WHEN IT PURCHASES AND HOLDS FOR IN-
PURPOSES REAL EST ATE LOCATED IN
OHIO-TRANSACTION IN FULFILLMENT OF CORPOR-
ATE PURPOSES-PART OF ORDINARY BUSINES.S-SEC-
TIO?\ 8625-1 ET SEQ., GC.
SYLLABUS:
1. The State of Wisconsin Investment Board, being designated by Wisconsin
statutes as .. a body corporate," is thereby constituted a legal unit and recognized as
a11 entity by the law of its creation, and .possesses the essential attributes of a corpora-
tion within the meaning of such term as used in the Ohio foreign corporation act.
(Section 8625-1, et seq., General Code.)
2. Vvhere such corporation is engaged in the business of investing for a profit
certain funds of the Wisconsin state retirement system, which profit accrues to the
benefit of such state systems without directly affecting the statutory formulae by which
payments to the beneficiaries thereof are determined, such profit must :be deemed to
accrue to the corporation as a legal entity apart from its members, and the corporation
must be regarded as a corporation not for profit.
3. A foreign corporation is transacting business in Ohio within the meaning of
the Ohio foreign corporation act, Section 8625-1 et seq., General Code, when it pur-
chases and holds for investment purposes real estate located in Ohio, when the trans-
action is in fulfillment of its corporate .purposes and is a part of its ordinary business.
(Opinion No. 578, Opinions of Attorney General for 1949, .p. 282, approved and fol-
lowed; Opinion No. 3566, Opinions of Attorney General for 1948, p. 412, overruled.)
OPJNIOJ\S
Columbus, Ohio, June 12, 1953
Hon. Ted \V. Brown, Secretary of State
Columbus, Ohio
Dear Sir:
This will acknowledge your request for my opinion with respect to an
inquiry addressed to you by the Attorney General of \'\'isconsin, as
follows:
"On December 30 I directed a lett-er to the Honorable
C. \Villiam O'Neill, Attorney General of Ohio, concerning the
right of the State of \Visconsin Investment Board to acquire
real estate in Ohio and to lease the same in connection with the
investment of public employes retirement funds under the con-
trol of said board. I enclose a copy of my letter to
"In reply to that letter the Attorney General \\'rote to me on
January 13 enclosing copies of opinions No. 578, cited as Opin-
ions of the Attorney General for r949, page 282, and ?\ o. 3566,
cited as Opinions of the Attorney General for 1948, page 4r2.
The later opinion No. 578 would indicate that the activity
contemplated by the State of \Visconsin Investment Board might
be construed as doing business in Ohio.
"As indicated in the letter which I wrote to the Hon. C.
vVilliam O'Neill, the State of \Visconsin Investment Board is an
agency of the state of \Visconsin created by a legislative act.
It does not appear to the writer that this board could be held
to be a private corporation in any sense of the word. It seems
to me to be clearly a public body.
"The State of vVisconsin Investment Board \VOulcl be ac-
quiring the Ohio real estate strictly for investment purposes.
The property would be leased under a long-term lease with
the expectation that the rent would be such as to produce a
satisfactory income for the benefit of a public employes pension
fund of this state whose money would be used to purchase the
property. The board would not be purchasing this property
for the purpose of establishing an office in the state of Ohio
and would not expect to have an office in the state at any loca-
tion.
''\Vhile the main purpose or business of the State of \Vis-
consin Investment Board is not the acquisition or ownership of
land, such ownership is incident to the investment of the pension
funds.
"The board in all probability would not be considered
to be a 'domestic corporation' by the State of Ohio. If not
ATTORNEY GENERAL
would it be considered to be a 'foreign corporation' within the
meaning of Ohio statutes? The board does not have any articles
of incorporati<ln. It is not a stock corporation and could not
declare any dividends.
In Yiew of the fmegoing, will you kindly indicate your
answers to the following questions:
''I. \Vould the State of \isconsin Investment Board be
considered a 'domestic corporation' within the meaning of Ohio
statutes?
"2. \\.ould the State of \Visconsin Investment Board be
considered a foreign corporation' within the meaning of Ohio
statutes:
'' 3 If the answer to questions 1 or question 2 is in the
affirmative. could said board qualify and obtain a permit or
license to do business in the State of Ohio?
"4. l f the answer to question 3 is in the affirmative, what
would be the cost to the State of \Visconsin Investment Board
of qualifying and obtaining such a permit?
.s. If you are of the opinion that the State of \ ~ \ i i s c o n s i n
InYestment Board could not obtain a license or permit to do
business in the State of Ohio. would you feel that it could
safely proceed with the prop<lsed transaction without any license
or permit. or whether it might be hazardous to do so?
"6. lf your answer to question No. 5 is in the affirmative,
\lould you know -of any taxes other than real estate taxes to
which the State of vVisconsin J nvestment Board might become
subject under the laws of the State of Ohio:
"[n addition to answers to the foregoing questions, I would
appreciate any further frank comments which you might care
to make which would be helpful to us in determining whether
the State of \Visconsin Investment Board should attempt to
purchase Ohio real estate for investment purposes.''
237
The status of a foreign corporation as "doing business" within Ohio
where its sole activity in this state is the ownership of real property, has,
as noted in the inquiry, been the subject of conflicting opini<lns by my
predecessors. l n Opinion No. 3566, Opinions of the Attorney General
for 1948, p. 412, the syllabus is as follows:
"A corporation organized under the laws of another state for
the purpose of holding, selling, improving and leasing real estate,
is not transacting business within the meaning <lf section 8625-4,
General Code, in the state of Ohio by merely owning real estate
located in Ohio <lr by the institution and prosecution of a suit in
the state of Ohio."
OPINIONS
In this optmon the writer quoted, p. 4I 5, from Opinions of the
Attorney General for I9I7, p. 597, as follows:
"A foreign corporation whose only activity in this state is
that of owning real property here, which it leases to others, is not
required to comply with the .provisions of sections I 78 and I83 of
the General Code."
In Opinion No. 578, Opinions of the Attorney General for I949,
p. 282, we find the following conclusions stated in paragraphs one and two
of the syllabus:
''I. \iVhat constitutes transacting or doing business in Ohio
within the purview of the Foreign Corporation Act is a fact ques-
tion to be determined on the basis of all the facts in the particular
case.
"2. A foreign corporation may be said to be doing business
in Ohio when it purchases or deals in real estate within the state,
when the transaction is in fulfillment of its corporate purposes and
is a part of its ordinary business."
In the course of this opinion the writer quoted, p. 284, from Fletcher
Cyclopedia Corporations as follows:
"In purchasing, acquiring or dealing in real property within
the state, a foreign corporation would undoubtedly be doing busi-
ness there, within the meaning of regula,tory laws, when the trans-
action is in fulfillment of its corporate purposes and a part of its
ordinary business."
In 20 Corpus Juris Secundum, pp. 46, 47, Section I829, we find the
general rule (followed by illustrations) stated as follows:
"The general rule is that, when a foreign corporation transacts
some substantial part of its ordinary business in a state, continuous
in character, it is doing, transacting, carrying on, or engaging in
business therein, within the meaning of the statutes under consid-
eration.
"In accord with this principle the following transactions have
been held to constitute doing, transacting, carrying on, or engaging
in business in a state: The making within the state of sales or of
contracts for the sale of goods; the making of loans; the making
of contracts of insurance; the execution of surety bonds; the
acquisition and holding of real estate situated within a state; * * *"
(Emphasis added.)
ATTORNEY GENERAL 2
39
In 23 American Jurisprudence, 358, Section 372, we find the following
statement:
"* * * Concededly, if dealings with respect to property in the
state are undertaken with some regularity and may be regarded as
within the purposes for which the corporation was formed, they
may constitute doing business in the state, particularly if under-
taken for pro-fit. * * *"
In the instant case it is conceded that the board, in investing its funds
in real estate in Ohio, is frankly engaged in a profit-making venture; and in
doing so is transacting a substantial part of its ordinary business. \Vhile
it is true that an isolated transaction will not make a foreign corporation
amenable to state licensing statutes, I am unable to conceive the continued
ownership over a period of years of a valuable parcel of real estate, e\en
though leased to others during such period, to be an instance of an isolated
transaction. For this reason I am impelled to concur with the conclusions
stated in the 1949 opinion, supra, and to conclude that the 1948 opinion
above cited is no longer declarative of the law. This question being re-
solved, we may next inquire whether the state board of investment 1s a
foreign corporation within the meaning of the Ohio statutes.
It is quite clear from an examination of the Wisconsin statutes by
which the investment board is created, Section 25.17 et seq., Wisconsin
statutes, that this agency is a state department which has been clothed \vith
certain broad powers which state agencies do not ordinarily possess. It
may well be supposed, therefore, to be a state agency possessing corporate
powers rather than a corporation the services of which are utilized by the
state. In this connection we may observe the decision in Milwaukee v.
::vfcGregor, 140 \Vis., 35, the fourth paragraph of the syllabus in which
reads:
''A state board empowered to take and hold the title to prop-
erty for state purposes does not own such property in any proprie-
tary sense,-it is state property, to all intents and purposes, the
same as in case of title thereto being formally vested in the state."
It ,,ill be noted, too, that the \Visconsin statutes creating the board
and defining its .powers provide that (I) its operations are to be carried on
for the attainment of the purely public purposes of preservation and
enhancement of certain retirement system funds, and ( 2) it is strictly
subject to control by the state. If, therefore, the board is a corporation at
all, it is a purely public corporation as distinguished from private corpora-
OPINIONS
tions. Fletcher, Cyclopedia Corporations, Volume I, p. 90, et seq., Section
67; Dartmouth College v. \Voodward, 4 Wheat. (U.S.), sr8. We thus
come to the question of whether the Ohio Foreign Corporation Act, Sec-
tion 8625-r et seq., General Code, is applicable to purely public corpora-
tions created by the act of a sister state.
Because in the instant case the corporate entity concerned is so
closely identified with the state by which it has been created, we may first
examine the status of the state itself in the ownership of real property
located in a sister state. In 59 C.J. r66, Section 277, we find the following
statements:
"A state cannot hold land in another state if the latter state
objects thereto; but it may do so with the consent of such other
state; and where a state has acquired land in another state with the
tacit consent of the latter, its title can be divested only by some
proceeding by that state in the nature of office found; it cannot be
impeached by a private individual in the absence of any action by
the state. When a state purchases land in another state from a
private person, it holds such land as a subject and not as a so-
vereign. So, also, where a state grants land within its territory to
a sister state, reserving the right and title of government, sov-
ereignty, and jurisdiction, the grantee state assumes merely the
position of a private proprietor, and holds its estate subject to all
the incidents of ordinary ownership."
In Dodge v. Briggs, 27 Fed. Rep., r6o ( r886), we find the following
statements, pp. I7I, 172:
"It is said, however, that the state of Indiana cannot own
lands in Georgia. The right of a state to hold lands in another
state has never been expresslv decided. It has been held that the
government of the United States cannot accept a legacy to lands
in a state, and that such legacy is void. U. S. v. Fox, 94 U. S.
315. It is said, and with great show of reason, that it is abnormal,
and contrary to public 'l)()licy, that a state should be permitted
to hold lands in another state; and it is also said that a state can
own nothing that is not necessary to its existence, and the proper
conduct of its affairs.
''\iVith regard to the last ground of objection, it can be re-
plied that a state has many of the powers of a private corporation,
and I do not see why a state may not buy lands as well as
bonds. * * *
"* * * It must be understood also that when the state of
1 ndiana bought these lands it came as a subject, and not as a
sovereign. * * *"
ATTORNEY GENERAL
In County Court of \Vayne County v. Bridge Co., Inc., 46 Feel. Sup ..
r (I 942), paragraphs r, 2 and 3 of the headnotes read :
"r. The power of eminent domain is an attribute of sov-
ereignty and within its own jurisdiction each state possesses such
sovereign power.
"2. Each state holds all the property within its territorial
limits free from the eminent domain of all other states, so that
no state can take or authorize the taking of property located in
another state.
"3. A state cannot own or acquire property 111 another
state without the latter's consent."
In State of Georgia v. Chattanooga, 264 U. S., 472, the headnotes are
in part as follows:
"I. Land acquired and held for railway purposes by one
state \Yithin the borders of another with the latter's consent re-
mains subject to the eminent domain of the state in which it lies
and subject to be condemned by that state, or her authorized
municipality, for a public street, in proceedings against the owner
state. even .though she has not consented to be sued. P. 479
''2. Acceptance by Georgia of permission given her to ac-
quire railroad land in Tennessee, is inconsistent with an assertion
of her own sovereign privileges in respect of such land, and
amounts to consent that it may be condemned as may like prop-
erty of others. P. 482"
In the course of the opinion in this case the court said :
"Land acquired by one state in another state is held subject
to the laws of the latter and to all the incidents of private owner-
ship. The proprietary right of the owning state does not restrict
or modify the power of eminent domain of the state wherein the
land is situated. See Burbank v. Fay, N.Y. 57, 62; United States
Y. Railroad Bridge Co., 6 McLean, 517, 533; United States v.
Chicago, 7 How. r85, 194. Tennessee by giving Georgia per-
mission to construct a line of railroad from the state boundary to
Chattanooga did not surrender any of its territory or give up any
of its governmental power over the right of way and other lands
to be acquired by Georgia for railroad purposes. The sovereignty
of Georgia was not extended into Tennessee. Its enterprise in
Tennessee is a. private undertaking. It occu.pies the same position
there as does a private corporation authori:::ed to mcm and operate
a railroad; and, as to that property, it cannot claim sovereign
privilege or immunity. Bank of United States v. Planter's Bank,
9 Wheat. 904, 907; Bank of Kentucky v. \Vister, 2 Pet. 318,
OPINIONS
323; Louisville C. & C. R. R. Co. v. Letson, 2 How. 497, 550;
South Carolina v. United States, I99 U. S., 437, 463."
(Emphasis added.)
The role assumed by a sovereign state when it engages in purely busi-
ness transactions is aptly described by Mr. Justice Sutherland in State v.
Helvering, 292 U. S. 36o (369), in the following language:
"* * * The argument seems to he that the police power 1s
elastic and capable of development and change to meet changing
conditions. Nevertheless, the police power is and remains a gov-
ernmental power, and applied to business activities is the power to
regulate those activities, not to engage in carrying them on. Rippe
v. Becker, s6 Minn .. roo, III, I I2, 57 N. W. 331, 22 L. R. A.
857. If a state chooses to go into the business of buying and sell-
ing commodities, its right to do so may be conceded so far as the
federal constitution is concerned; but the exercise of the right is
not the performance of a governmental function, and must find its
support in some authority apart from the police power. vVhen a
state enters the market place seeking customers it divests itself of
its quasi sovereignity pro tanto, and takes on the character of a
trader, so far, at least, as the taxing power of the federal govern-
ment is concerned. * * *"
From all of t'he foregoing it becomes clear that a state merely by virtue
of its ownership of land located in a sister state enjoys no privileges or
immunities whatever by reason of its sovereignty within its own borders.
This 'being so, it must follow that its corporate creatures, even though
they be purely agencies designed to discharge purely public functions, can
enjoy no greater privileges and immunities than their creator.
\<\Te may next consider whether the board is a corporation \\ithin the
meaning of the Ohio laws or whether, because it is a department of a sister
state having corporate powers, it could not be so classified. In Perkins v.
Benguet Consolidated Mining Co., ISS Ohio St., II6, the court stated the
test hy which a corporation is recognized as follows:
"2. An organization, organized under the laws of another
state or country, is a foreign corporation if it has the essential
attributes of a corporation, within the meaning of that word as
used in the Ohio statutes, even though it does not have all the
attributes of an Ohio corporation.
'' 3 In order to be a corporation, an organization must be a
legal unit under or be recognized as an entity by the law of the
state or country in which it was organized."
ATTORNEY GENERAL
In Section 25. I 7 Wisconsin statutes, it is provided that, '"The 'state
of vVisconsin Investment Board' shall be a body corporate * * * ."
Quite clearly the state of \iVisconsin has, hy this provision, created a "legal
unit," and has "recognized as an entity" the agency with which we are
here concerned, and even though the board may not possess all of the
attributes of an Ohio corporation, I must conclude that it possesses "the
essential attributes of a corporation, within the meaning of that word as
used in the Ohio statutes."
In Section 8625-2, General Code, we find the following definitions:
"\\Then used in this act (G. C. Sections 8625-1 to 8625-33),
the following words shall have the following meanings :
" 'Domestic corporation' shall mean a corporation incor-
porated under the laws of this state;
"'Foreign corporation' shall mean a corporation incorporated
under the laws of another state;
" 'State' shall mean any state, territory, insular possession,
or other political subdivision of the United States, including the
District of Columbia, and any foreign country or nation whose
political sovereignty is recognized by the United States, and any
province, territory or other political subdivision of such foreign
country or nation; * * *"
This definition of "foreign corporation" is quite broad in scope and
it makes no distinction in the matter of classification of corporations as
private, public, quasi-public, business or eleemosynary. M orever, it will
be observed that the exemptions set out in this act make no reference to
purely public corporations. Such exemptions are stated in Section 8625-3,
General 'Code, as follows:
"This act shall not apply to corporations engaged in this
state solely in interstate commerce, including the installation,
demonstration, or repair of machinery or equipment, sold by them
in interstate commerce, by engineers or employees especially ex-
perienced as to such machinery or equipment, as part thereof. nor
to banks, trust companies, building and loan associations, title
guarantee and trust companies, bond investment companies, in-
.surance companies, nor to public utility companies engaged in this
state in interstate commerce."
Here it is appropriate to note the objeot of legislation imposing
conditions on the admission of foreign corporations to carry on their affairs
within a state other than that of domicile. In 23 American Jurisprudence,
203, Section 234, we find the following statement:
244
OI'JNTONS
"* * * Such legislation affords protection to those with whom
such corporation does business or to whom it incurs liabilities
arising from its wTongful acts. It is intended to relieve, in a
measure, the disadvantages of citizens dealing \vith foreign cor-
porations. It has been said that the chief purpose of requirements
imposed as conditions precedent to the right of foreign corpora-
tions to do business in the jurisdiction is to subject such corpora-
tion to inspection, so that their condition, standing, and solvency
may be known; an incidental purpose may be to provide revenue.
iVIany such statutes are designed to obviate the difficulty, under
common law rules of bringing a foreign corporation within the
jurisdiction of any court other than that of the incorporating state.
The state may also wish to limit the number of such corporations
or to subject their business to such control as would be in ac-
cordance with the policy governing domestic corporations of a
similar character, even though the business itself is not unlaw-
ful according to the local law. Although the state's plenary power
with respect to corporations is sufficient to justify such laws,
many of them when rightfully made, are evidently mere police
regulations, designed to protect the citizens of the state in which
they are enacted from loss or imposition, and on this ground also
their legality cannot be drawn in question."
By referring again to the provisions of Section 8625-3, supra, it will
be noted that \vith the exception of certain corporations engaged in inter-
state commerce, all the exempted classes of corporations there listed are
subject to registration and regulation under special statutes relating to each.
The interstate commerce exemption is, of course, made to avoid a consti-
tutional conflict. It will be seen, therefore, that there is no inconsistency
between these exemptions and an interpretation of the statute which would
indude purely public corporations of a sister state.
There is, morever, as to such foreign public corporations, a proper and
salutary objective to be attained by the imposition of a licensing or regis-
tration requirement on them as a condition of admission. Such registration
would establish the jurisdiction of the Ohio courts in controversies which
might arise between such corporations and Ohio residents, and would
facilitate the service of summons on such corporations in local jurisdictions.
That such controversies might well arise from the operations proposed to
be undertaken in the instant case can scarcely be doubted. It would appear,
therefore, that there is nothing in the inherent nature of the corporate
organization nor its proposed business operations in the instant case which
is inconsistent with the evident legislative purpose in setting up the regis-
tration requirements of foreign corporations generally. This being so, there
ATTORNEY GENERAL 24.)
being no exemption provision applicable, and in view of the test as to
corporate recognition stated in the Benquet case, supra, I am impelled to
conclude that the State of Wisconsin Investment Board is a foreign cor-
poration as defined in Section 8625-2, General Code. Accordingly, I per-
ceive no reason why such Board could not lawfully be issued a license under
the provisions of Section 8625-1, et seq., General Code.
A further question has been raised as to the cost by way of license
fees, etc., of compliance with the foreign corporation act. This requires a
determination of whether the board is to be deemed a corporation for profit
or one not for profit.
-:\fanifestly the object of the board's investment activities in Ohio will
be to realize a pecuniary profit. Under the \Visconsin Laws, however, such
profit will accrue to the benefit of the state rather than to any private
person. This is true despite the fact that a portion of the funds to be in-
vested by the board will have come into its custody by virtue of contribu-
tions made by the several beneficiaries of the pension systems concerned,
for it appears that under the Wisconsin statutes the rights of such bene-
ficiaries are fixed by law according to formulae which are affected, only
indirectly if at all, by the earnings realized from the board's investments.
It is true that in State ex rei Russell v. Sweeney, I 53 Ohio St., 66, the
court held that where a profit accrued to members of so-called non-profit
corporations, such profits being in the form of a saving of expense or obtain-
ing a service of cost, the corporation concerned could not be regarded as
one not for profit. However, in Cattle Club v. Glander, I 52 Ohio St., 506,
the court held :
"The fact, that a corporation is organized and operated as one
not for profit, does not mean that its enterprises may not be con-
ducted for gain, profit or net income to the corporation as a legal
entity apart from its members."
In the instant case I have no difficulty m concluding that all of the
board's profit will accrue to "the corporation as a legal entity, apart from
its members"; and that this is true despite the purely incidental benefit flow-
ing to the beneficiaries of the state pension systems concerned by reason of
the circumstance that profits from the board's investments will materially
aid the state in maintaining an actuarily sound pension fund 'vith a propor-
tionate diminution of the need to use public funds raised by taxation for
such purpose. It is my opinion, therefore, that the board must be regarded
OPINIONS
as a corporation not for profit, and a license issued to it as such, under the
provisions of Section 8625-27, General Code.
Accordingly. in specific answer to your inquiry, it is my opinion that:
1. The State of \Visconsin Investment Board, being designated by
vVisconsin statutes as "a body corporate," is thereby constituted a legal
unit and recognized as an entity by the law of its creation, and possesses
the essential attribute of a corporation within the meaning of such term
as used in the Ohio foreign corporation act. Section 8625-1, et seq., Gen-
eral Code.
2. Where such corporation is engaged in the business of investing .for
a profit certain funds of the Wisconsin state retirement systems, which
profit accrues to the benefit of such state systems without directly affecting
the statutory formulae by which payments to the beneficiaries thereof are
determined, such profit must be deemed to accrue to the corporation as a
legal entity apart from its members, and the corporation must be regarded
as a corporation not for profit.
3 A foreign corporation is transacting business m Ohio within the
meaning of the Ohio foreign corporation act, Section 8625-1 et seq., Gen-
eral Code, when it purchases and holds for investment purposes real estate
located in Ohio, when the transaction is in fulfillment of its corporate
purposes and is a part of its ordinary business (Opinion No. 578, Opinions
of Attorney General for 1949, p. 282, approved and followed; Opinion No.
3566, Opinions of Attorney General for 1948, p. 412, overruled).
Respectfully,
c. WILLIAM O'NEILL
Attorney General
.-\ TTORKEY GEKER:\L
HOUSING FOR VETERANS ACT, EMERGENCY-AM. HB r6;,
roo GA-BOARD OF COuNTY COMMISSIONERS AUTHORIZED
TO CONTINUE OPERATION OF TEMPORARY E1VIERGENCY
HOUSING UNTIL DECE:'viBER 31, 1955-NO OBLIGATION TO
DO SO-BOARD AUTHORIZED TO SELL ANY OR ALL OF
PROPERTY ACQUIRED IN OPERATION OF TEMPORARY
EMERGENCY HOUSING-PROCEEDS OF SALE-SHOULD BE
DEPOSITED IN GENERAL REVENUE FUND OF COGNTY-
SECTION ro78-7o GC.
SYLLABUS:
While a hoard of county commissioners is authorized by the Emergency Housing
for Veterans Act, as amended by House Bill No. 167 of the 100th General Assembly,
to continue the operation of temporary emergency housing for veterans until December
31, 1955, it is not obligated to do so and, under the terms of Section 1078-70, General
Code, the board is authorized to sell, at such time as it determines to be proper, any
or all of the property acquired in the operation of temporary emergency housing for
veterans and deposit the proceeds of such sale in the general revenue fund of the
county.
Columbus, Ohio, June r6. 1953
Hon. Robert L. Perdue, Prosecuting Attorney
Ross County, Chillicothe, Ohio
Dear Sir:
I have before me your request for my opinion, which reads as follows:
"I have been asked by the County Commissioners of Ross
County to obtain an opinion from you concerning the .following
problem:
"In 1946 the County Commissioners, using an appropriation
by the State of Ohio and under the authority of Section 1078-62
of the Ohio General Code, purchased twenty ( 20) house trailer
units to provide emergency housing for veterans. These trailers
were placed in an area provided .for in the City Park in the City
of Chillicothe, Ohio. The commissioners now deem it expedient
to sell these trailer units at public sale and to place the proceeds
of such sale in a general revenue fund of the County pursuant to
Section I078-7o of the General Code. The specific questions for
your consideration are :
" (I) Do the Commissioners have the authority to sell these
trailer units at public sale and place the proceeds in the general
OPJNIONS
revenue fund of the County even though there is a shortage of
housing for veterans in this particular County?
" ( 2) Do the Commissioners have the power and right to sell
these trailer units at public sale prior to the expiration of the
Emergency Housing for Veterans Act even though housing short-
age still exists?
" ( 3) vVho determines when a housing shortage ceases to
exist within the meaning of this Act?
''I am aware of an opinion of your predecessor, Attorney
General's Opinion No. II97, elated 1946. There seems to be suf-
ficient ambiguity in this opinion to make it desirable to obtain a
recent opinion from your office with reference to the power of the
Commissioners to sell the emergency housing units acquired under
the authority of Sections 1078-62 et seq. of the General Code."
The Emergency Housing for Veterans Act, Sections 1078-62 to
ro78-7r, General Code, was passed in 1946. By the terms of Section
1078-68, Sections 2, 3 and 4 of the Act, Sections 1078-63, 1078-64 and
1078-65, expired on December 31, 1949. By the terms of Section 1078-&),
Sections 1078-66 and 1078-67 were originally scheduled to expire on De-
cember 3 r, 195 r. Since Section 1078-66 is the section which authorizes
the county commissioners to rent, manage and control such facilities, it is
clear that the General Assembly, in 1946, contemplated that there no longer
would be any temporary emergency housing shortage for veterans after
December 31, 1951 in any o,f the counties of Ohio. Thus, under the Act
as originally passed, all such facilities would have been compelled to cease
operation on December 31, I95'I.
It is equally clear, however, that although the General _-\ssembly
authori:::cd such continued operation until December 31, 1951, it did not
compel such or attempt to declare, as a matter of law, that a temporary
emergency housing shortage for veterans (I) existed in any specific county,
or ( 2) would continue to exist in such specific county until December 3 I,
1951. As stated in Opinion No. II97, Opinions of the Attorney General
for 1946, page 66o, at page 665:
''For the purpose of accomplishing what was intended, the
county commissioners are given a considerable measure of dis-
cretion. * * *"
Such discretion IS evidenced throughout the Act. Discretion would
have to be exercised by the county commissioners in determining initially
\rhether to make application to the Treasurer of State for a portion of the
ATTORNEY GENERAL
249
moneys appropriated by Section 1078-62; in determining what portion of
such moneys to expend under the terms of Section 1078-63; in determining
what housing facilities to erect, purchase or lease and what rules to make
to govern the letting in accordance with the authority of Section 1078-66;
and, finally, in determining when to sell the property so acquired.
The authority of the commissioners to sell is contained in Section
1078-70, General Code, which reads:
"The county commissioners of any county which has ac-
quired property in accordance with provisions of this act may sell
any or all of said property so acquired and deposit the proceeds
of such sale in the general revenue fund of the county."
Thus, the Act, as originally passed, clearly autlzori.zcd the commission-
ers to sell any housing facilities so acquired without waiting until the com-
pulsory termination of the entire program on December 31, 195r. In the
1946 opinion the then Attorney General held, and I believe correctly so,
that since Section 1078-70 provided for the deposit of the proceeds of the
sale in the general fund of the county, and since the Act contained no au-
thority for the use of such general fund for the acquisition of other facili-
ties .. the commissioners were not authorized to sell the houses or buildings
acquired under the provisions of such Act for the purpose of re-investing
the proceeds of such sales in other properties to be used for the purposes
of the Act.
I belie,e the statement of the Attorney General in the 1946 opinion
with reference to the right of the commissioners to sell such facilities and
place the money in the general fund of the county is free from any am-
biguity. I quote from such opinion at pages 668 and 669:
" ( 5) As I have already indicated, it appears that the au-
thority given to sell one or more of the properties so acquired and
to deposit the proceeds in the general revenue fund was intended
to be exercised after the emergency calling for the acquisition and
use of such properties has passed and there is no longer need for
providing temporary emergency housing for the veterans. The
general assembly did not, however, see fit to limit the commis-
sioners in the exercise of their discretion, and it is conceivable
that a county might use the funds allotted to it in the acquisition
of lands and buildings, and immediately sell them in disregard of
the trust committed to it, and to its own enrichment. If too much
discretion has been committed to the county commissioners in this
respect, the responsibility must rest with the general assembly."
2j0 OPINIONS
The only changes in the Act since I946 have been by way of amend-
ments of Section 1078-69. The 99th General Assembly, in I95I, amended
this section to provide that Sections I078-66 and ro;8-67 should expire on
December JI, 1953 instead of on December JI, 1951, and the present 1ooth
General Assembly only recently, by the passage of House Bill No. 167,
again extended the expiration date to December JI, 1955.
\;\,Thile such amendments now authorize the commissioners to continue
temporary emergency housing for veterans until December 31, 1955, obvi-
ously it does not compel them to do so. The question of whether to termi-
nate the use of the facilities in question and, under authority of Section
1078-;o, General Code, sell the same and place the proceeds of the sale in
the county treasury is a matter solely for the sound judgment and discretion
oi the county commissioners.
I believe that the foregoing fully answers the specific questions you
have propounded. Your first and second questions as to the powers of the
commissioners to sell "even though there is a shortage of housing for
veterans in this particular county" assumes a fact, the detem1ination of
which, under the law, is vested in the county commissioners. If they deter-
mine, in accordance with Section I078-7o, General Code, to sell at this
time, it must be assumed that they found, as a matter of fact, that a
temporary emergency housing shortage for veterans no longer exists in
Ross County such as to warrant a continuation of such housing. But, in
any event, as pointed out in the 1946 opinion, the General Assembly did
not see fit to limit the commissioners in the exercise of their discretion as
to when to sell such housing facilities.
In conclusion, it is my opinion that while a board of county commis-
sioners is authorized by the Emergency Housing for Veterans Act, as
amended by House Bill No. 167 of the 100th General Assembly, to continue
the operation of temporary emergency housing for veterans until December
31, 1955, it is not obligated to do so and, under the terms of Section
1078-70, General Code, the board is authorized to sell, at such time as it
determines to be proper, any or all of the property acquired in the operation
of temporary emergency housing for veterans and deposit the proceeds of
such sale in the general revenue fund of the county.
Respectfully,
c. \hhLLIAM O'NEILL
Attorney General
ATTORNEY GENERAL 2jl
S:E:CURITIES ACT, OHIO-CONSENT TO SERVICE-FEDERAL
SECuRITIES ACT-CANADIAN CORPORATION S T O C K ~ S E C
TIONS 8624-13, 8624-18 GC.
SYLLABUS:
Sections 8624-13 and 8624-18, General Code, relative to consent to service under
Ohio Securities Act, discussed.
Columbus, Ohio, June 17, I9j3
Hon. Margaret A. Mahoney, Chief of the Division of Securities
Columbus, Ohio
Dear Miss :.Jahoney:
I have before me your communication requesting my opm1on. In
view of the length of your request, due to the inclusion of explanatory
material in the nature of a memorandum, I shall summarize the request
so as to avoi<l repetition later.
Canadian counsel has sought information regarding registration and
licensing requirements relative to the offering of a Canadian corporation's
stock for sale in Ohio. The requirements are found in Sections 8624-1
to 8624-49, inclusive, General Code of Ohio. The corporation intends to
make offerings of its securities in the United States, not exceeding
$300,000 in any one year. The offering therefore is exeunpt from regis-
tration under the Federal Securities Act of 1933, by virtue of the
promulgation of Regulation D by the Securities and Exchange Commis-
sion, released March 6, 1953. The securities so exempted are still subject
to certain of the anti-fraud provisions of the Federal Securities Act of
r933, and the issuing Canadian corporation must execute a consent to
service of process upon the Securities and Exchange Commission. It is
the Ohio Division of Securities' understanding that the "feasibility" of
Regulation Dis based upon the Supplementary Extradition Treaty entered
into between Canada and the United States which was designed to cover
securities frauds.
The Ohio Securities Act, notably Section 8624-13, General Code, 111
substance, provides in the case of a securities issuer not domiciled 111
Ohio, that an irrevocable written consent must be executed thereby ap-
2j2
OPINIONS
pointing the Secretary of State of Ohio as an agent for service of process
with respect to suits and actions growing out of fraud in connection with
the sale of securities. Section 8624-18, General Code, contains substan-
tially the same requirement as to an applicant for a securities dealer's
license. The question advanced for my opinion is whether a consent to
service, executed by a Canadian issuer of or dealer in securities, pursuant
to Sections 8624-13 and 8624-18, General Code, in connection \Yith an
application filed with the Division of Securities pursuant to Sections
8624-10, 8624-13, or 8624-18, General Code, is valid and binding and of
lawful effect upon it in either or both Federal and State courts, or
Canadian courts, Provincial or Dominion, in equal degree as a consent to
service executed by an applicant of United States domicile, in united
States courts, State or Federal?
Section 8624- r 3, General Code, reads as follows :
"If the applicant for qualification under section 10 of this
act, be an incorporated issuer not domiciled in this state or an
unincorporated issuer having the situs of its principal place of
business outside this state, there shall be filed with such appli-
cation the irrevocable written consent of such issuer executed
and acknowledged by an individual duly authorized so to con-
sent for such issuer, that suits and actions growing out of a fraud
in connection with the sale of such securities in this state may
be commenced against it in the proper court of any county in
this state in which a cause of action may arise or in which the
plaintiff may reside, by serving on the secretary of state of Ohio
any process or pleading authorized by the laws of this state. said
consent stipulating and agreeing that such service of such process
on the secretarv of state shall be taken and held in all courts to
be as valid and binding as if service had been made upon the
issuer itself. If such issuer 'be a corporation or an unincor-
porated association, the consent shall, in such case, be accom-
panied by a certifi.ed copy of the resolution of the board of
directors, trustees or managers of the corporation or association,
authorizing such individual to execute the same.
,. Senice of any process or pleadings may be made on the
secretary of state by duplicate copies, one of which shall be filed
in the office of the secretary of state and the other immediately
forwarded by the secretary of state by registered mail to the
principal place of business of such issuer, or if it has a principal
office in this state, then to such principal office; provided, how-
ever, that failure to mail such copy shall not invalidate such
service.
"A.ny issuer having filed the consent to service above re-
quired, may apply for cancellation of the same when it appears
ATTORNEY GENERAL
that the qualified securiities are entitled to exemption or to regis-
tration. Such application shall set forth the facts entitling such
securities to exemption or registration, and, if proved to the
satisfaction of the division, the division shall cancel such consent
to service. Such cancellation shall only apply to causes of action
thereafter arising in respect to the sale of such securities."
253
This section requires an incorporated issuer of securities not domi-
ciled in Ohio or an unincorporated issuer having the situs of its principal
place of business outside Ohio, to file with its application for qualification
to sell securities in Ohio, an irrevocable written consent to service upon
it by serving the Secretary of State of Ohio with process and pleadings
in suits growing out of a fraud in connection with the sale of such
securities in this state. It will be observed that the act provides that
such service upon the Secretary of State shall be taken and held in all
courts to be as valid and binding as if service had been made upon the
issuer itself.
Section 8624-18, General Code, which deals with application for a
dealer's license, provides, inter alia.:
''Every applicant, not a resident of this state, shall name a
person within this state upon whom process against such applicant
may be served, and give the complete residence and business ad-
dress of the person designated.
"Every applicant shall file an irrevocable consent to service
of process on the secretary of state of this state in the event
that such applicant, if a resident of this state, or the person so
designated by the non-resident applicant, cannot be found at
the address given. Such consent shall be given and service
thereunder shall be made as provided in section 862c1--1 3 of this
act."
Thus, the Ohio Securities Act is designed to insure that Olzio courts
have jurisdiction over foreign or alien issuers of or dealers in securities
in suits arising out of fraud in connection with an offering of securities
for sale in this state. In the case of the issuer, a statutory agent is
appointed to receive service of process. In the case of the dealer, his
named resident agent shall be served with process, or in the event such
agent cannot 1be found, the secretary of state, statutory agent, is substituted
as the agent for service of process. The Ohio Securities Act was enacted
m order that Ohio investors might be protected from fraudulent sales
of securities.
OPINIONS
T:he Federal Securities Act of 1933, 73rd :Congress, Ist Session, Ch.
38, is, as its title discloses: "An act to provide full and fair disclosure
of the character of securities sold in interstate and foreign commerce
and through the mails, and to prevent frauds in the sale thereof, and for
other purposes." The federal legislation was enacted pursuant to Con-
gress' power over interstate and foreign commerce and its po,Yer over
the mails. See Art. I, Sec. 8, Constitution of the Unittxl States.
The Federal Securities Act of 1933 imposes civil liabilities on account
of false registration statement; civil liabilities arising in connection with
prospectuses and communications.
Section 17(a) of the Federal Securities Act of 1933, deals with
fraudulent interstate transactions, and provides in material part as
follows:
"It shall be unlawful for any person in the sale of any se-
curities by the use of any means or instruments of interstate
commerce or by the use of the mails, directly or indirectly * * *
( r) to employ any device, scheme or artifice to defraud, or * * *
( 2) to obtain money or property by means of any untrue state-
ment of a material fact or any omission to state a material fact
necessary in order to make the statement made, in the light of
the circumstances under which they were made, not misleading,
or (3) to engage in any transaction which operates or would
operate as a fraud or deceit upon the purchaser * * *."
For willful violation of the provisions of the act, i.e., Section I 7 (a)
as well as the false registration statement section, Section 24 of the Act
provides a maximum penalty of $5,000 or five years in prison, or both,
upon conviction.
Section r8, Federal Securities Act of 1933, provides:
"Nothing in this title shall affect the jurisdiction of the
securities commission (or any agency or office performing like
functions) of any State or Territory of the United States, or
the District of Columbia, over any security or any person.''
This section indicates clearly that the federal act is not an exclusive
enactment in the field of control over securities.
Section 22a of the Federal Securities Act covers jurisdiction of
offenses and suits, both civil and criminal. This section gives the district
courts of the United States jurisdiction of offenses and violations under
ATTORNEY GENERAL
255
the title and under the rules and regulations promulgated by the commis-
sion in respect thereto, and concurrent with state and territorial courts,
in suits at law and in equity brought to enforce any liability created by the
title. Any such suit or action may be brought in the district wherein the
defendant is found or is an inhabitant or transacts business, or in the
district where the sale took place.
At this point it would be well to analyze the purpose of Regulation
D promulgated by the Securities and Exchange Commission March 6,
1953. I would summarize Regulation D, which I have before me, by
enumerating its four most important and relevant features.
r. The Regulation exempts from the registration requirements of
the Securities Act of 1933, offerings of securities, not exceeding $300,000
m any one year, made by Canadian issuers.
2. The Regulation requires the filing with the Securities and Ex-
change Commission of copies of notification and offering circulars, at
least fifteen days before any offering is made under the Regulation.
3 The new Regulation requires the filing of semi-annual reports
showing the progress of the offering. No further reports are required
after completion or termination of the offering and the filing of a final
report.
4 The sixth paragraph of the Regulation reads as follows:
"In order to give full effect to the civil liability provisions
of the Act, the new regulation requires that each non-resident
connected with an offering made thereunder, file a written irre-
vocable (Onsent and power of attorney which would authorize
the commencement of any civil actions or suits arising out of
any offering made or purported to be made under the regulation
or any purchase or sale of any security in connection therewith,
by the service of process upon the Securities Exchange Com-
mission, which would 1Je authorized to receive service of all
papers in such litigation and which, in turn, would forward
copies thereof to the appropriate persons by registered mail."
I believe it is evident, from a reading of the principal provisions of
the Federal Securities Act, as well as a reading of Regulation D, that
the federal act and regulation does not supersede or nullify provisions of
the Ohio Securities Act. Both acts are aimed at protecting the investor
in securities against fraudulent statements and inducements perpetrated
by issuers or dealers in securities. The various state "blue sky laws",
2j6 OPINIONS
including that of Ohio, cover the offering of securities for sale in the state.
The Federal .-\ct was prompted into law by reason of certain inadequacies
existing in many of the state laws. The Federal Act covers offerings of
securities made through the instruments or means of interstate com-
merce, including the mails, and provides for rather heavy criminal penal-
ties in instances of interstate fraud. Many state "blue sky laws" have no
criminal sanctions. It is quite conceivable that a given securities transac-
tion might constitute a violation of both the Ohio and the Federal Securi-
ties Act.
The fact that Regulation D requires a consent to service to be exe-
cuted, designating the Securities and Exchange Commission as agent to
receive service of process, does not obviate the provisions of the Ohio
Securities Act requiring a consent to service to be executed, designating
the Secretary of State of Ohio as agent to receive service of process. The
Ohio Division of Securities has no administrative discretion with refer-
ence to requiring or not requiring an issuer or dealer to execute the con-
sent to service. The Division could not take the position that it would
be a vain act to require the Canadian applicant to execute Division Form
No. I 3 (Consent to Service) merely because a similar consent is required
to be executed naming the Securities and Exchange Commission. As
was noted above, the federal act specifically recognizes the jurisdiction of
securities commissions or divisions of the several states over securities
and persons.
Your letter of request refers to the recently ratified amendment to
the Extradition Treaty between the United States and Canada. In order
to insure against any misunderstanding as to the possible effect this treaty
might have on the problem at :hand, I should like to point out that this
treaty amendment merely enlarges the Jist of crimes on account of which
extradition may be granted under the Convention concluded July 12, 1889
and the Convention concluded December 13, 1900, between the United
States and Great Britain. Extradition is now granted for the offense
of obtaining property, money or valuable securities by false pretences
or by defrauding the public or any person by deceit or falsehood, whether
such deceit would or would not amount to a false pretence; the amend-
ment further provides extradition for making use of the mails in connec-
tion with schemes devised or intended to deceive or defraud the public.
This amendment makes more effective, therefore, the criminal pro-
ATTORNEY GENERAL
257
\isions of the Securities Act of 1933, and as such has no effect upon civil
liabilities arising under state blue sky laws. The treaty has nothing to
do with consePt to service in civil cases.
The Division of Securities of the State of Ohio is concerned chiefly
with civil liabilities arising out of the Ohio .Securities Act for fraudulent
statements in prospectuses and circulars with regard to offerings in Ohio.
\Vith respect to the validity of the "consent to service" provision found
in Section 8624-13, General Code, I would call your attention to the follow-
ing statement from the Restatement of the Law of Judgments, Section 14b,
at page 8o, to wit:
''It is to be noted that the situations in which a State had
such power over a person as to justify the courts of the State in
rendering a judgment against him are not immutably definitely
fixed. The question is whether the relationship of the person
to the State is such that it is reasonable for the courts of the
State to exercise such jurisdiction over him.
"In three situations it has long been recognized that the
courts can properly exercise such jurisdiction, namely, where
the defendant is present and served with process within the State,
and 'where he has consented to the exercise of jurisdiction over
hi111. In other situations it is now recognized that the courts can
properly exercise jurisdiction, as for example where a person
not present or domiciled in the State carries on business in the
State or does acts or owns things in the State."
(Emphasis added.)
Perhaps more in point is the following language found in jO Corpus
] uris Secundum, Judgments, Section 893 (7), to wit:
"In order that a judgment against a foreign corporation
may be entitled to recognition in other states, it is necessary and
sufficient either that the corporation consent to, or vvaive objec-
tions to lack of, jurisdiction, or that it shall be doing business
within the state so as to be subject to the jurisdiction of the
courts thereof generally, and that jurisdiction shall be acquired
in the particular case by proper and sufficient service of process
within the state, as by service on a duly authorized resident agent
or officer of the company or on the Secretary of State, commis-
sioner of Insurance, or other officer, as provided by statute."
It would certainly appear that the provisions of Section 8624-13,
General Code, relative to consent to service, are valid and binding upon
a Canadian issuer of or dealer in securities. As a condition to the enjoy-
2j8 OPINIONS
ment of the right to offer securities for sale in Ohio, the issuer or dealer
consents to service of process upon the secretary O'f state. The right
to come into Ohio and offer securities for sale is a valid jurisdictional
base upon which Ohio courts could render a judgment. Section 8624-13,
General Code, most certainly covers alien issuers of securities. This
section commences :
"If the applicant for qualification under section 1 o of this
act, be an incorporated issuer not domiciled in this state * ':' *
There shall be filed with such application the irrevocable writ-
ten consent of such issuer * * * " (Emphasis added.)
It will be noted that the act is not limited to foreign issuers of
securities, but -instead comprehends all issuers not domiciled in Ohio.
I see no logical reason why a Canadian applicant would be placed
111 a preferred position by an Ohio cour-t, as regards the validity of its
consent to service. The investing public requires as much protection
from Canadian issuers and dealers as it does from United States issuers
and dealers. In many instances, of course, a judgment obtained in Ohio
against a Canadian issuer or dealer, will be of little immediate value. I
refer to the strong probability that the applicar.t has no property within
Ohio which could be subjected to levy or attachment.
It seems that the general rule as to the validity of statutes providing
for substituted service of process upon foreign corporations is that the
form of service provided for by the statute must be such as to be rea-
sonably calculated to bring notice of the suit to the ,foreign corporation.
See 89 A.L.R., 660. It will be observed that Section 8624-13, General
Code, provides that the secretary of state shall immediately fon,ard the
duplicate copy of the process or pleading by registered mail to the principal
place of business of the issuer of the securities. Section 8624-18, General
Code, relative to dealers in securities, incorporates the above mf erred
to procedure for notification.
It is true that Section 8624-13, General Code, contains a further
provision to the effect that failure to mail such copy shall not invalidate
such service. For the purposes of this opinion it is unnecessary to
speculate upon the validity of a default judgment rendered by an Ohio
court against a Canadian applicant in a case where the secretary of state
failed to mail a copy of the service to the defendant.
ATTORXEY
259
Assuming a judgment is obtained in an Ohio court against a
Canadian issuer of or dealer in securities, following compliance with the
consent to service statute and notification by the secretary of state of
the pendency of a civil action against the issuer or dealer, such a judg-
ment must be given full faith and credit by the courts of another state
in a suit upon the judgment. Article IV, Section r, Constitution of the
United States. Full faith and credit will be accorded the Ohio judg-
ment where the Ohio court had valid jurisdiction over the parties. Again,
I know of no reason why a foreign state would discriminate in favor of a
Canadian defendant as opposed to a United States defendant. The Ohio
court rendering the judgment either has jurisdiction over all applicants,
Canadian or domestic, or it has jurisdiction over none.
Federal courts must give full faith and credit to the judgment of
state and territorial courts. Huron Holding Corp., v. Lincoln Mine
Operating .Co., 312 U. S., 183 (1941); Davis v. Davis, 305 G. S., 32
(I938).
Perhaps the most effective means of realizing upon an Ohio judg-
ment against a issuer or dealer would be for the plaintiff to
institute a suit upon the Ohio judgment in a Canadian court in the province
wherein the defendant has assets or proper,ty. You inquire whether the
consent to service executed by the issuer or dealer in Ohio would be
validly binding on the issuer or dealer in Canadian courts. In other
words, will a Canadian court recognize the validity of the Ohio judgment
against a Canadian domiciliary, where the Ohio court rendering the judg-
ment based its jurisdiction over the Canadian upon a written consent
to service?
On this point I am impelled to reply that it is not within the province
of this office to interpret Canadian law. \ V ere I to render an opinion on
foreign or alien law it would be merely speculative. No law has any
force of its own outside the limits of the sovereignty from which its
authority is derived; a foreign judgment of itself has no ,force or effect
outside the country wherein it is rendered, and each sovereign power
determines the force and effect to tbe given to judgments rendered by the
courts of other countries. Hence, this office cannot pass upon the
question of what force 1s given to Ohio judgments by the courts of
Canada. The :full faith and credit clause of the federal constitution has
no application to courts outside the United States and its territories.
Ol'lNIONS
lf Canadian courts enforce American judgments, it would be upon the
principle of comity only.
Accordingly, it would appear that as a condition precedent to issuing
or dealing in securities in this state, an applicant of alien domicile is
required by Sections 8624-13 and 8624-18, General Code, to file with its
application an irrevocable written consent that suits growing out of a
fraud in connection with the sale of such securities in this state may be
commenced against it in the proper court in this state by service of
process upon the Secretary of State of Ohio.
Thus, judgments may be obtained in the Ohio courts, pursuant to
service on the Secretary of State, binding upon and of equal force either
against alien applicants or those domiciled in another state.
Under the full faith and credit clause of the United States Constitu-
tion, judg;ments of a state court must be given full faith and credit by
the courts of another state. Under decisions of the United States
Supreme Court a judgment of a state court must be given full faith and
credit by the federal and territorial courts.
Whether a judgment of a state court 1s or 1s not recognized and
given full faith and credit by the courts of a foreign country is a matter
of comity to be determined, in the absence of treaty, by the courts of
such foreign country.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL 261
2734
CONTR.-\CT -CONTir\UING-TEACHER-TEACHER ACTING
AS PRINCIPAL, LOCAL SCHOOL DISRICT- UPON REtCOl\I-
MENDATION OF COUNTY SUPERINTENDENT, PRINCIPAL
MAY BE TRANSFERRED TO TEA:CHING POSITION-SECTION
4842-9 GC.
SYLL:\BGS:
\\'here a teacher holding a continuing contract, has for a time been acting as
principal of a local school district, and it is desired by the hoard of education to trans-
fer him to a teaching .position, such action may :be taken under the provisions of Section
4842-9 of the General Code, but only upon the recommendation of the county super-
intendent.
Columbus, Ohio, June r8, 1953
Hon. Calvin W. Hutchins, Prosecuting Attorney
Ashtabula County, Jefferson, Ohio
Dear Sir:
I have before me your request for my opinion, reading as follows:
"Mr. K. was employed as a teacher and princi.pal by the
Board of Education of Andover Local School District, Ashta-
bula County, Ohio, in September, 1930. He is now serving under
a continuing contract, elated March 12, 1942. On July II, 1947,
an additional contract was entered into between the Board and
the teacher, which provided in part as follows:
'The said teacher hereby agrees to teach and act as
executive head of the public schools of said district for a
term of five years.'
"This latter contract was renewed by resolution adopted by
the Board at its January meeting of 1952.
"VI/e are advised that the appointment of Mr. K., as execu-
tive head, was the action of the Board of Education. His appoint-
ment as executive head had not been recommended by the County
Superintendent of Schools. The question of such appointment had
not been discussed with the County Superintendent of Schools,
and the appointment in 1952 was not brought to his attention
until some six weeks after it had been made.
"The Board of Education of Andover Local School District
now wishes to demote Mr. K. from his position as Executive
Head, to that of a teacher. We understand that had the Board
acted upon the recommendation of the County Superintendent of
262 OPINIONS
Schools, :Mr. K. could not be removed from his position as execu-
tive head except upon the recommendation of the Superintendent
of the County School System.
"No recommendation of his appointment having been given,
can the Board now demote the acting head to a teaching position?"
I note from your letter that the teacher in question was employed as
a teacher and principal, in September, 1930, and that in 1942 he was given
a continuing contract. In 1947 the board undertook to make him what
they called, "executive head of the public schools of said district", and
entered into some kind of an agreement with him to that effect. I also
understand that this was done without the express recommendation of the
county superintendent.
At that time, there was no express provision in the law for the appoint-
ment of a teacher or principal as "executive head", and I can not see that
that action of the board could have amounted to anything more than
possibly an enlargement of his duties. I understand that for some years,
the district has maintained a high school as well as an elementary school
all under the same roo,, and operated as one unit, and I assume that the
duties of the so-called "executive head" would be to supervise this entire
school.
Effective August J7, 1951, Section 4842-r, General Code, was
amended, the last two sentences reading as follows:
"* * * The board of education of each city, exempted village
and local school district shall appoint principals for all high
schools and for such other schools as the board may designate.
Upon recommendation of the county superintendent, a local board
of education may designate a principal as executive head who may
be employed as .such by said board for a period of twelve months."
The last sentence, giving a local board of education the right to "desig-
nate the principal as executive head," was added by the amendment. It
will be noted that when this is done he may be employed as such by the
board for a period of twelve months, and it is further to be noted that this
can only be clone upon the recommendation of the county superintendent.
It \vould appear, therefore, that the action of the Board in 1947
amounted to nothing except by way of designating the duties of the
principal, and that the action taken in January, 1952, subsequent to the
amendment of Section 4842-r, purporting to renew the appointment of
ATTORNEY GENERAL
1947, was of no effect because it was not recommended by the supenn-
tendent. Furthermore, even though so recommended, such a designation
would only have been effective for a period of twelve months.
Regardless of the past status of this teacher as "executive head," his
original appointment as principal of the schools of the district has continued
to the present time, and can only be changed upon the recommendation of
the Superintendent.
Section 4842-9, General Code, provides the only process by which a
principal can be demoted to the position ocf a teacher. That section provides
in part as follows:
"A teacher employed as assistant superintendent, principal,
supervisor or other administrative head may be transferred to a
lesser administrative position or to a teaching position upon recom-
mendation of the superintendent of schools and approval of the
board of education." (Emphasis added.)
Accordingly, you are advised that where a teacher holding a continuing
contract, has for a time been acting as principal of a local school district,
and it is desired by the board of education to transfer him to a teaching
position, such action may be taken under the provisions of Section 4842-9
of the General Code, but only upon the recommendation of the county
superintendent.
Respectfully,
c. \iVILLIAM O'NEILL
Attorney General
OPJNIONS
2700
HEALTH, BOARD OF -GENERAL HEALTH DISTRICT-
POWER GIVEN BY IMPLICATION TO REQUIRE LICENSE OF
PERSONS WHO ENGAGE IN PLUMBING IN DISTRICT-SEC-
TIONS 1261-3, 1261-42 GC.
SYLLABUS:
The board of health of a general health district, under the .provisions of Sections
1261-3 and 1261-42, General Code, is given by implication the power to require a license
of persons who engage in the occupation of plumbing in such district.
Columbus, Ohio, June 24, 1953
Hon. Richard P. Faulkner, Prosecuting Attorney
Champaign County, Urbana, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"\iVill you kindly furnish me with an opinion as to the legal
authority of the Board of Health of the Champaign County,
Ohio, General Health District to pass rules and regulations as to
the licensing and bonding of plumbers to do plumbing in the Gen-
eral Health District?
"I have read your opinion No. 1729, issued August r, 1952,
to the Prosecuting Attorney of Hamilton County. However, you
do not directly decide the above point.
"In surveying the general situation, of course, I find that
municipalities can license plumbers but such licensing is only
effective within the corporate limits of the municipality and while
I find no specific authority to the General Health District for the
licensing of plumbers under the General Section granting powers
to the General Health District, Section 1261-4 states that the
Board of Health is authorized to make such orders and regulations
as it deems necessary for the public health, the prevention or
restriction of disease, etc.
"In other opinions issued by the Attorney General's office,
while this point has not been directly decided, the opinions seem
to infer that the General Health District had such authority. * * *
"Of course in the Hamilton County case the question .finally
decided there was the invalidity of the specific ordinance they had
which delegated the power of licensing to some other subdivision.
"My question is if the Board of Health of the General Health
ATTORNEY GENERAL
District passes direct legislation covering the licensing of plumbers
and in general setting up the examinations and licensing directly
from the Board of Health, if such legislation is legal. This is a
matter of urgent importance in our Health District as our present
licensing regulation is almost identical with that of Hamilton
County and we have no other plumbers licensing system either
in the county or any of the municipalities therein and I would
therefore appreciate an early reply."
Because in your inquiry you have referred to the ''legislative" power
of the Board of Health, it is proper, at the outset, to note the observations
of the courts regarding the essential nature of the powers of such boards.
In ?!1atz v. Cartage Co., 132 Ohio St. 271, Judge Williams stated, at
page 279:
''It is an accepted doctrine in our constitutional law that the
law-making prerogative is a sovereign power conferred by the
people upon the legislative branch of the government, in a state
or the nation, and cannot be delegated to other officers, board or
commission, or branch of government. Thus neither the Con-
gress of the United States nor the General Assembly of Ohio can
delegate its legislative power, but may confer administrative power
on an executive, a board or commission."
In '"'eber v. Board of Health, 148 Ohio St., 389, the first paragraph
of the syllabus is as follows:
''Section 1261-42, General Code, which provides that 'the
board of health of a general health district may make such orders
and regulations as it deems necessary for its own government,
for the public health, the prevention or restriction of disease, and
the prevention, abatement or suppression of nuisances * * *' but
does not provide spe6fic standards for guidance, is a valid and
constitutional enactment."
In the course of the opinion by Judge Stewart, we find the following
statement at page 397:
""''e hold, therefore, that Section 1261-42, General Code, is
a constitutional enactment and that under it the Board of Health
of the Butler County General Health District had authority to
enact reasonable, nondiscriminatory and legal rules and regula-
tions in reference to garbage and hog feeding within its district."
From the foregoing, it will be seen that although the courts preserve
the fiction that Boards of Health possess no legislative power, they recog-
nize the authority of such agencies to promulgate and enforce "administra-
266 OPINIONS
tive rules" having the force and effect of law, and this without the prescrip-
tion of any guides or standards by the Legislature.
Before proceeding to an examination of the specific question here
presented, it is proper first to observe that it has long been settled that
the business of plumbing is one so nearly related to the public health that
it is subject to regulation under the police power. In this connection, the
Supreme Court held in State v. Gardner, 58 Ohio St. 599:
"The business of plumbing is one which is so nearly related
to the public health that it may, with propriety, be regulated by
la\v, and reasonable regulations, tending to protect the public
against the dangers of careless and inefficient work, and appro-
priate to that end, do not infringe any constitutional right of the
citizen pursuing such calling."
In view of this close relationship between this business and the public
health, and in view of the broad statutory powers of boards of health in
the promulgation of health measures, it can scarcely be doubted that such
boards have the power to regulate the business of plumbing within their
respective districts.
As you have pointed out in your inquiry, 111 my Opinion No. 1729,
elated August r r, 1952, I discussed the power of a board of health of a
general health district to require a licensing system as an aiel in the enforce-
ment of its rules regulating the occupation of plumbing, but did not find
the resolution of that question to be necessary in answering the precise
question there presented. As I pointed out in that opinion, because the
statutes do not expressly confer on boards of health the power to license
as an aid to the enforcement of health regulations, the question arises
whether such power is implied in the power to regulate.
It is generally held that local health authorities possess implied, as
well as express powers and that the powers conierred on them by statute
should be liberally construed. 20 Ohio Jurisprudence 557, Section 26; 39
Corpus Juris Secundum, 822, 823, Section 9. Moreover, in 53 Corpus
Juris Secundum, 478, Section ro, we find the following statement:
"Unless some other provision of law forbids the exercise of
the power to license, the power of a municipal corporation to
license an occupation or privilege and impose a license fee or
tax thereon is generally implied from power to regulate such
occupation or privilege, * * * "
ATTORNEY GENERAL
In commenting on the Ohio decisions in my Opinion No. 1729, supra,
on the po\Yers of boards of health, I said:
''In }Jartin v. Bowling Green, 12 Ohio Law Abstract, 191
(6th District Court of Appeals, 1932), the court was concerned
with the case of an alleged violation o.f an order of the board
of health of the city of Bov,;ling Green, forbidding the sale of
milk for household beverage purposes without having first ob-
tained a permit to do so, as required by the resolutions of said
board. ln the opinion by the court in this case, we find the fol-
lowing statements. pp. 19 I, 192:
'* * * 1VIartin claims that he \Yas wrongfully refused
a permit and also that the resolution of the Board of Health
is invalid because it delegates to the Health Commissioner
c l u t i ~ s that can be created only by ordinance of the City
Council, and further claims, as we understand it, that the
resolution is innlicl and unconstitutional in that in addition
to that required to obtain the permit, a fee is required for
inspection and that the fee charged therefor is greater for in-
spection deemed necessary to be made in a county other
than that in which Bowling Green is situated, when the
supply of milk sold in Bowling Green is there obtained.
'\Ve find no provision of law prohibiting reasonable
fees for such inspections and certainly it is la.wj1tl as a
health measure to require that those selling milk shall first
obtain a permit. * * *'
''Because the statute then under consideration did not ex-
pressly grant to the board of health the power to require a license
of such Yenclors, it is clear that the court found such power to
exist by implication.
''In Opinion No. 4380, Opinions of the Attorney General
for 1941, p. 886, the syllabus is as follows:
'District boards of health of general health districts
may by order or regulation in the interest of public health
or for the prevention or restriction of disease provide for
the inspection of trailer camps and impose reasonable stand-
ards in connection therewith. The cost of such inspeotion
and the issuance of a permit certifying that there has been
compliance with the standards may be charged to the opera-
tors of said camps.'
''In the course of the opinion the writer said, pp. 889, 8go:
'\.Vhile the statute does not expressly authorize the
board to charge a fee for the costs of inspection and the
issuance of a permit certifying that there bas been a com-
pliance with the orders or regulations this authority is
implied:'
268 OPlNIONS
"In Harrison vs. Rhodes, et a!., an unreported decision of
the Common Pleas Court of Franklin County, Ohio, No. r;6570
( 1952), the court upheld the validity of a regulation of the board
of health of Columbus, Ohio, providing for a system of permits
and inspection fees for the operation of eating and drinking es-
tablishments. In that case the defense appears to have been based
primarily on the lack of power in the board, in the absence of
express statutory provision, to impose a system of inspection
fees, and the discussion in the opinion is directed primarily to
this point. Nevertheless, the judgment upholding the validity of
the regulation necessarily involved a decision as to the Yalidity
of that portion of the regulation providing for a system of licens-
ing. Here again the existence of the power to provide for a
system of licensing must necessarily have 1been found by implica-
tion in the statutes <to which we have al-ready referred.
"In Heilman's Restaurant, Inc. v. Lefever, an unreported
decision in the 9th District Court of Appeals (Lorain County
No. I 209, 1950), the court was concerned with the validity of
a regulation of the board of health of the city of Lorain prescrib-
ing a licensing system for restaurants. ln that decision the court
held the regulation invalid primari/;1 on the ground that the sys-
tem of licensing of restaurants had abead;' been established
nndcr the provisions of Section 843-2 et seq., General Code. The
reasoning of the court was that since the state had preempted
the field covered by the board's regulation, such regulation "ot!Icl
be in conflict therewith and hence invalid. The court does not
appear to have considered the question of whether, in the absence
of such a statute, the health board might lawfully have pre-
scribed such licensing system; and there is nothing in the decision
to indicate that the court in any way questioned the possibility that
such licensing power might have been conferred upon the board
of 'health by a necessary implication in the statute prescribing
the power of such board." (Emphasis added.)
Certain of the material in the foregoing was quoted with approval by
the court in McGowen v. Shaffer, III N. E. (2nd) 615. This was an
action in the Common Pleas Court of .Summit County to enjoin a general
board of health from enforcing the provisions of a sanitary code which
provided in part for t'he licensing of plumbers. In the course of the
discussion on the implied power of such board in this respect, the court
said:
"This court is of the opinion that while the statutes do not
expressly give the defendant Board the right to license master
plumbers and register journeymen for a fee, by reason of the
powers given the Board by statute there is an implied authority
to so license and register, as well as the fact that it constitutes a
proper and inherent exercise of police power."
ATTORXEY GENERAL
It will be observed that in both the Bowling Green and the Rhodes
cases, supra, the powers of a city board of health were under scrutiny.
It is \\'ell settled, however, that city boards of health are agencies of the
state and although municipalities, under their home rule powers, are
authorized to enact local sanitary regulations not in conflict with the
general laws, city boards of health, as distinguished from the municipal
legislative authority, operate under a statutory grant of power. Accord-
ingly, the decisions above noted 'holding that city boards of health possess
the po\\'er to license by implication in the power to regulate, must be
deemed to apply with equal force to boards of health of general health dis-
tricts. This being so, and in view of the necessity of according a liberal
construction to the statutes enumerating the powers of such boards, I am
impelled to the conclusion that boards of health of general health districts
may la,dully prescribe by regulation a requirement for the licensing of
plumbers as a condition of carrying on their occnpation in such district.
It should be borne in mind, however, that in setting up any such
licensing system, the board will find it necessary to prescribe standards
and guides by which it is to be determined whether a license is to be
issued or denied in particular cases. In this connection, your attention
is directed to the fourth paragraph of the syllabus in the \V eber case,
supra, which reads:
".-\ resolution of the Board of Health of the Butler County
Health District, which makes it unlawful to transport, deliver or
deposit collected garbage for the purpose of feeding the same
in whole or in part to swine or other animals into or within the
territory under the jurisdiction of such board, but authorizes
the health commissioner, without any standards for his guidance,
to approve a system of collection and disposal of garbage and
provides that after snch approval the continnance of such system
of collection and disposal shall not constitute a violation of the
provisions of the prohibitory regulations, is an attempted dele-
gation of legislative power and is violative of the equal-protection
guaranties of the state and federal Constitutions.''
In commenting on the application of the vVeber decision to the
regulation under scrutiny in my opinion No. 1729, supra, I said:
"T,he only standard required under the board's regulation
is that a municipality issuing the license be one which has a
licensing board which requires a written and practical examina-
tion, without prescribing the subjects in which the applicant is to
be examined and without prescribing the amou11t, if any, of prac-
OPINIONS
tical experience required. I am impelled to conclude that these
standards are not sufficient to sustain the delegation of power and
that the regulation must, therefore, be considered invalid under
the rule stated in the Vveber case, supra."
Assuming, therefore, that no difficulty will be encountered on this
point, it is my opinion, in specific answer to your inquiry, that the board
of health of a general healbh district, under the provisions of Sections
1261-3 and 1261-42, General Code, is given by implication the power to
require a license of persons who engage in the occupation of plumbing
in such district.
Respect ully,
c. WILLIAM O'NEILL
Attorney General
HEALTH BOARD DISTRICT- AUTHORITY TO ADOPT AND
ENFORCE PLUMBING REGULATIONS- UNINCORPORATED
PORTION OF COUNTY -COUNTY COMMISSIONERS WITH-
OUT ANY SUCH AUTHORITY-SECTIONS 1261-42, 248o GC.
SYLLABUS:
A district board of health has authority by virtue of Section 1261-42, General
Code, to adopt and enforce plumbing regulations in the unincorporated portion of a
county, but the county commissioners do not have such authority under the provisions
of Section 2480 of the General Code, or under any other provision of the statutes.
Columbus, Ohio, June 24, 1953
Hon. Mathias H. Heck, Prosecuting Attorney
::..rontgomery County, Dayton, Ohio
Dear Sir:
I have before me your communication, requesting my opmwn, and
reading as follows:
"The Board of County Commissioners of Montgomery
County, Ohio, have requested this office for an opinion as to their
authority under and by virtue of Section 248o and 2481 of the
Ohio General Code to create a plumbing inspection department
ATTORNEY GENERAL
"ithin the office of the Montgomery County Building Inspector
and grant to said officer the authority to issue plumbing permits to
inspect and approve instaUations within unincorporated parts of
the countv.
In re. Section 2480, your attention is called to the following
clause within the said Section which reads as follows:
'In no case shall said regulations go beyond the scope
of regulating the safety, health and sanitary conditions of
such buildings.'
This office, in turn, is requesting an opinion from the At-
torney General for the reasons subsequently given.
, ''The issuance of plumbing permits and the inspection and
installation approval of plumbing is now being handled by the
local health district as created by Section 1261-16 of the Ohio
General Code.
''The District Board of Health, by emergency legislation,
adopted regulations extending their authority to types of private
d\\'ellings. The elate of said regulations was January 6, 1942.
Enclosed is a copy of said regulations. Section 18 of said regu-
lations specifically concerns itself wilih the issuance of plumbing
permits and Section 19 sets 1:he fees which are to be paid for said
inspection and permit. Your a.ttention is called to Section I 261-42
relative to rules and regulations.
"It is of interest to note that in the Montgomery County
Building Code as adopted on the IJth day of June, 1947, Section
121. paragraph c, entitled 'Plumbing Permits', states that:
'(] nless and until otherwise prescribed, plumbing and
private sewage disposal permits, inspection and installation
approval must be secured from and the required fees paid to
the Plumbing Inspector of the Board of Health of the Mont-
gomery County Health District.'
"The above is quoted to give to your office the history of
plumbing permits in this county since the adoption of regula-
tions bv the Health District and the adoption of the Montgomery
Count}: Building Code.
"Your attention is further called to Section 1261-2 through
and including Section I26I-I5 relative to the State Inspector of
Plumbing.
"The District Board of Health by Section 1261-26 is granted
authority to charge a fee for the service of inspection and pre-
sumably for permits.
"If the Building Inspector can issue permits, he can pre-
sumably charge fees for such service.
OPINIONS
''The questions to which we respectfully request your con-
sideration are :
"r. Does the Board of County Commissioners have authority
under Section 248o or any other section of the Code to
create a county plumbing inspection department?
"2. Does the Board of County Commissioners have authority
by virtue of Section 248o to pass sanitary regulations for
the purpose of plumbing inspection?
"3 Is such plumbing inspection and installation approval
exclusive with the local Health District for the county
under Section r26r-r6 through and including Section
!261-43?
"The situation is one which has statewide application and
needs clarification due to the apparent lack of clarity in reference
to county commissioners under Seotion 248o and the laws rela-
tive to local health districts and state plumbing inspection rules
under the state department of health, Section 1232 through and
including 1261-68."
The question you present requires consideration of the powers granted
to the local or district health authorities on the one hand, and the county
commissioners on the other, relative to sanitary regulations.
I note from your letter that up to the present time the district board
of health has exercised its power of establishing plumbing regulations, the
issuance of plumbing permits, and the inspection and approval of plumbing
installations, and that the county commissioners have not seen fit to exer-
cise their authority, if any, in these matters. I note further that the board
of health has adopted quite comprehensive regulations of this matter and
that the present code of regulations has been in effect for approximately
ten years.
These regulations are adopted under the provisions of Section 1261-42
of the General Code, which reads as follows:
"The board of health of a general health district may make
such orders and regulations as it deems necessary for its own
government, for the public health, the prevention or restriction
of disease, and the prevention, abatement or suppression of
nuisances, and shall have the power to require that no human
waste, animal waste, or household wastes from sanitary installa-
tions within the district be discharged into a storm sewer, open
ditch or water course without a permit therefor having been first
secured from the board of health of the health district under such
ATTORNEY GENERAL
terms and conditions as the board may from time to time require.
All orders and regulations not for the government of the board,
but intended for the general public, shall be adopted, recorded
and certified as are ordinances of municipalities and record thereo,
shall be given in all courts of the state the same force and effect
as is given such ordinances, but the advertisements uf such orders
and regulations shall be by publication in one newspaper published
and of general circulation within the general health district. Pub-
lication shall be made once a week for two consective weeks and
such orders and regulations shall take effect and be in force ten
clays from elate of first publication. Provided, however, that in
cases of emergency caused by epidemics of contagious or infectious
diseases, or conditions or events endangering the public health.
such boards may declare such orders and regulations to be emer-
gency measures and such orders and regulations shall become
immediately effective without such advertising, recording and
certifying."
273
The above section 1s a part of the Act known as the Hughes Act,
108 Ohio Laws, 236, as amended <by the Griswold Act, 108 Ohio Laws,
1o85, establishing health districts for cities and counties. Under the pro-
visions of these acts every city is a health district, and the townships and
villages in every county outside of the cities constitute what is called a
general health district. The entire plan contemplates a statewide organi-
zation for public health under the general supervision of the state de-
partment of health, and the organization of these local health districts
1s mandatory.
Referring to this section, the Supreme Court held in Weber v. Board
of Health, 148 Ohio St., 389:
'General Code 1261-42 which provides that 'the board
of health of a general health district may make such orders and
regulations as it deems necessary for its own government, for
the public health, the prevention or restriction of disease, and
the prevention, abatement or suppression of nuisances * * *,'
but does not provide specific standards for guidance, is a valid
and constitutional enactment."
The court further held that such board has wide discretion m enact-
ing regulations for the protection of public health.
By an Act of the General Assembly originally passed in 1941, II9
Ohio Laws, 671, Sections 248o to 2483, inclusive, of the General Code
were enacted, giving authority for building regulations to be established
2i4
OPINIONS
by the county commissioners, to be operative m the unincorporated por-
tions of their respective counties. Section 248o, General Code, reads in
part, as follows :
"The board of county commissioners of any county, in ad-
clition to the powers already granted by law, may adopt, adminis-
ter and enforce regulations, not in conflict with the Ohio state
building code, pertaining to the erection, construction. repair,
alteration and maintenance of residential buildings. offices, mer-
cantile buildings, workshops or factories including public or
private garages, within the unincorporated portion of any county.
In no case shall said regulations go beyond the scope of regulating
the safety, health and sanitary conditions of such buildings. * * *
"\!Vhoever violates any such regulation of the board of county
commissioners under sections 248o to 2483 inclusive of the Gen-
eral Code shall be guilty of a misdemeanor and upon conviction
shall be punished by a fine not exceeding three hundred dollars,
and every day during which such illegal erection, construction,
repair, alteration or maintenance continues may be deemed a
separate offense. * * *"
Section 2481 General Code, authorizes the appointment of a building
inspector. It will be O'bserved that these provisions are not mandatory but
are simply powers given to the county commissioners of any county to be
exercised or not, at their option. It will be noted also that primarily the
regulations to be adopted by the county commissioners relate to the erec-
tion, construction, alteration and maintenance of residential buildings, etc.
By way of restriction, it is provided that such regulations may not "go
beyond the scope of regulating the safety, health and sanitary conditions
of such buildings."
The words just quoted are the only words in the entire law which
suggest any intention on the part of the legislature to confer po\Yer on
the commissioners to deal with problems of health and sanitation. vVe
may call attention to the well settled rule that a county is merely an ad-
ministrative agency, created for limited purposes of political organization
and local administration. Futhermore, it has only such powers as the
legislature has seen fit to confer upon it. As said in II Ohio Jurisprudence,
244:
'Generally speaking, the function of the county is to serve
as an agency or instrumentality of the state for purposes of po-
litical organization and local administra1ion, through which the
legislature may perform its duties in this regard more under-
standingly, efficiently, and conveniently than it could if acting
ATTORNEY GENERAL
directly. As such agency, the county is a creature in the hands of
its creator, su1bject to be molded and fashioned as the ever-vary-
ing exigencies of the state may require. Except as restricted by
the state Constitution, the power of the legislature, through which
the sovereignty of the state is represented and exercised, over
counties, is supreme, and that body may exercise plenary power
with reference to county affairs, county property, and county
funds. Counties, therefore, possess only such powers and privi-
leges as may be delegated to, or conferred upon them by statute."
275
Citing State, ex rel. Treadwell v. Hancock County, II Ohio St., 183;
Lake County v. Ashtabula County, 24 Ohio St., 393; Portage County v.
Gates, 83 Ohio St., 19.
As to county commissioners, their powers are strictly limited to those
granted to them by statute, and such powers are administrative, purely,
and not legislative; and in case of doubt as to the existence of a power,
the doubt is resolved against it. Jones v. Lucas County. 57 Ohio St., r89;
Peter v. Parkinson, 83 Ohio St., 36; State ex rel. Locher v. Menning,
95 Ohio St., 97
Accordingly, since I can find no specific grant of power given to the
commissioners to promulgate rules as to health involving such a technical
calling as plumbing, I must conclude that the reference in Section 248o
supra, to health and sanitation is not sufficient to authorize the county
commissioners to adopt and enforce a plumbing code, or require permits
for plumbing installation, and that their powers, so far as they pertain
to health and sanitation should be confined to measures concerning the
cleanliness of buildings and premises. This conclusion will, I believe, be
fortified by a consideration of the attitude of the courts and other author-
ities toward plumbing as a part of the problem of public health. It has long
been recognized by our courts that the business of plumbing is so closely
related to the health of the public, that it is the proper subject of regula-
tion by law. In the case of State v. Gardner, 58 Ohio St., 599, it was held:
''The business of plumbing is one which is so nearly related
to the public health that it may, with propriety, be regulated by
law, and reasonable regulations, tending to protect the public
against the dangers of careless and inefficient work, and appro-
priate to that end, do not infringe any constitutional right of the
citizen pursuing such calling."
The case there presented involved only the validity of a statute re-
quiring licenses of persons engaged in plumbing or house drainage, and
OPINIONS
so did not directly touch the powers of a subdivision or a board of health
to require such license. However, the opinion by Judge Spear indicates
the seriousness with which the court regards the business of plumbing,
as related to the public health. Speaking O'f the plumber and his qualifi-
cations, the court said :
"That it is of the highest importance that the drainage and
sewerage of our public buildings and private tenements should be
as skillfully planned and executed as the modern standard of
science admits, would seem not to be open to question. And surely
it is reasonable to suppose that one who has been educated to
understand the scientific principle necessarily involved in work
of this character, and to comprehend the reasons and teachings of
experience upon which it is based, and the evil results which may
follow neglect to observe it, will be more likely to provide the
needful safeguards than one who is ignorant upon the subject.
It is conceded by those who doubt the power as well as the pro-
priety of regulation of the work itself, that the legislature has
power to provide for a careful sanitary inspection of plumbing
work, and in this way secure a result, as to its system and suf-
ficiency, which will tend toward the protection of the health of
the general public. But it is difficult to perceive a reason for the
exercise of the power last referred to which does not as well apply
to the other, for if it be wise to devise means by which a good
result may be obtained by careful inspection, it would seem clear
that methods which are calculated to reduce the hazards of care-
less inspection would tend in the same direction. And, defects
revealed by inspection would, it would seem be more likely to
be remedied if the hands which should be called upon to do the
work of correction, were guided by minds trained in the science
of the business as well as skilled in the mere manipulation of the
tools."
vVhile I do not find any specific language in the statutes which grants
to boards of health the power to adopt regulations governing the business
of plumbing, requiring permits and inspection, and even the licensing
of plumbers, I am convinced that they have these powers, by a fair im-
plication from the general powers granted them by the statutes, particu-
larly Section 1261-42 supra. Local health authorities are held to possess
implied powers as well as express powers, in conserving the public health
and the powers conferred upon them by statute should be liberally con-
strued. 20 Ohio Jurisprudence, 557, 39 Corpus Juris Secondum, 822, 823.
In Opinion Xo. 438o, Opinions of the Attorney General for 1941,
page 886, it was held:
ATTORNEY GENERAL
"District boards of health of general health districts may by
order or regulation in the interest of public health or for the pre-
vention or restriction of disease provide for the inspection of
trailer camps and impose reasonable standards in connection
therewith. The cost of such inspection and the issuance of a per-
mit certifying that there has been compliance with the standards
may be charged to the operators of said camps."
In the course of the opinion it was said:
;;\-Vhile the statute does not expressly authorize the board
to charge a fee for the costs of inspection and the issuance of a
permit certifying that there has been a compliance with the orders
or regulations this autlzorit')' is implied." (Emphasis added.)
In a letter subsequent to your original request, you haYe called my
attention to an unreported decision of the Common Pleas Court of Sum-
mit County. This was the case of McGowen v. Shaffer, et al., No. 187,507.
It was an action brought against the board of health of the general health
district of Summit County, to determine the validity of a sanitary code
adopted by that board, which provided, among other things, for licensing
of master and journeyman plumbers, for requiring permits for plumbing
installations and for the payment of fees for inspection.
The court in a somewhat ex.haustive opinion held the regulations to
be within the implied powers of such board of health, saying:
HThis court is of the opinion that while the statutes do not
expressly give the defendant board the right to license master
plumbers and register journeymen for a fee, by reason of the
powers given the Board by statute there is an implied authority
to so license and register, as well as the fact that it constitutes a
proper and inherent exercise of police power."
\Vhile the question you present to me does not directly call for a
ruling as to the power of the board of health to require licensing of plumb-
ers, yet that decision does strengthen the conclusion which I have above
indicated, that such board has broad powers in the regulation of plumbers
and plumbing as a part of its function as guardian of the public health.
Concurring with the ruling of the court in the case last cited, I have held
in Opinion No. zf'6o, issued June 24, 1953, that district boards of health
do possess the implied power to license plumbers.
By way of contrast let us compare the statutes granting powers to
the board of health on the one hand and to county commissioners on the
OPINIONS
other. As to the first, it is provided that such board "may make such orders
and regulations as it deems necessary * * * for the public health, the pre-
vention or restriction of disease, and the prevention, abatement or sup-
pression of nuisances." All such orders or regulations are to be adopted
with the same formality as are ordinances of municipalities. And Section
4414, General Code, provides for fine and imprisonment for violation of
any such regulations.
On the other hand, note that the county commissioners are merely
authorized to adopt and enforce regulations relating to the "erection, con-
struction, repair, alteration and maintenance" of certain buildings, and
"in no case shall said regulations go beyond the safety, health and sanitary
conditions of such buildings." This reference to "health and sanitary con-
ditions" appears to be rather by way of limitation than affirmative granL
My immediate predecessor in Opinion No. 1983, Opinions of the
Attorney General for 1950, page 473, had occasion to consider Section
248o, General Code, which I have quoted, in answer to a question as to
the power of the county commissioners to license plumbers and prohibit
plumbing being done anywhere in the unincorporated area of the county
by unlicensed plumbers. His holding was as follows:
"A board of county commissionrs has no authority under
the provisions of Section 248o, General Code, to adopt regula-
tions which would prohibit carrying on the business of plumbing
anywhere in the unincorporated area of the county by unlicensed
plumbers."
This opinion did not hold affirmatively that county commissioners
have the power under said Section 248o, to adopt and enforce plumbing
regulations, although it is apparent that he considered that they do have
that power. His holding was merely against the power to license plumbers.
Even as against municipalities, which have by explicit legislative
grant, Section 3637, General Code, as well as under their broad home
rule powers the power to license plumbers, it was held that regulations
of like oharacter promulgated by a district board of health should have
preeminence in case of conflict. In Opinion No. 5564, Opinions of the
Attorney General for 1942, page 759, it was held:
"3. The council of a village has concurrent jurisdiction
with the board of health of a general health district in the en-
actment of regulations affecting sanitation and the public health,
ATTORNEY GENERAL
including the regulation of plumbing, but such ordinances, to the
extent that they are inconsistent with the regulations of such
general health district, will be invalid."
279
In the light of the foregoing, it is my opinion that a district board of
health has authority by virtue of Section 1261-42, General Code, to adopt
and enforce plumbing regulations in the unincorporated portion of a
county but that the county commissioners do not have such authority
under the pr<lvisions of Section 2480 of the General Code, or under any
other provision of the statutes.
2768
Respectfully,
c. WILLIAM O'NEILL
Attorney General
I. HEALTH OF FOOD ES-
TABLISHMENTS-LAWS FULLY EFFECTIVE AND OP-
ERATIVE-PORTION OF HEALTH DISTRICT WITHIN
SPECIAL SANITARY DISTRICT-SECTIONS 483-2, 1261-42
GC.
2. STATE NOT BOUND BY TERMS OF GENERAL STATUTE
UNLESS IT BE SO EXPRESSLY PROVIDED-HEALTH
REGULATIONS - ADOPTED BY LOCAL BOARD OF
HEALTH-NOT BINDING ON STATE ITSELF-APPLIC-
ABLE TO AND MAY BE ENFORCED AGAINST LESSEES
OF 1261-16 ET SEQ., 1261-42 GC.
SYLLABUS:
1. Health regulations relative to the operation of food esta,blishments, adopted
under provisions of Section 1261-42, General Code, are fully effective and opera-
tive within such portion of the health district concerned as lies within a special sani-
tary district created' by the enactment of Section 483-2, General Code.
2. The state is not bound by the terms of a general statute unless it be so ex-
pressly provided by statute. Because there is no such ex.press .provision in Section
1261-16, et seq., General Code, the health regulations adopted by a local board of
health, as provided in Section 1261-42, General Code, are not binding on the state
itself but are applicable to and may be enforced against lessees of the state.
28o OPINIONS
Columbus, Ohio, June 26, 1953
Hon. Richard L. Davis, Prosecuting Attorney
Highland County, Hillsboro, Ohio
Dear Sir:
Your request for my opinion reads as follows:
''There is located in Highland County Ohio Rocky Fork
Lake which is surrounded by an area of land owned by the
State of Ohio which is approximately 300 feet wide. Said prem-
ises are within the area governed by the Board of Health of the
Highland County General Health District.
"The Division of Parks is operating certain concessions and
also contemplating leasing same to private individuals on said
premises whereby soft drinks and other foods are and will be
sold 'to the public. Under the authority of General Code Sec-
tion 1261-42 the Highland County Board of Health has estab-
lished regulations governing food establishments which provide
for inspection and approval by the Highland County Board of
Health before any such food establishment may operate.
''General Code Sections 472 and 483-1 grant certain author-
ity to the Division of Parks with respect to such land but make
no specific reference to the governing of food establishments.
"General Code Section 483-2 creates a special sa:nitary dis-
trict under the control and management of the State Depart-
ment of Health for the territory extending back one mile from
said area. The subdivisions a, lb and c under t'his section likewise
makes no mention of the control of food esta!blishments.
"Query: Is the Division of Parks and its lessees subject
to being governed by the regulations governing food establish-
ments of the Highland County, Ohio Board of Heahh? If the
answer to this question is yes, by what procedure and against
whom would the Highland County Board of Health enforce their
regulations?"
The statutes to whioh you refer in your inquiry are as follows:
Section 472 :
"All lands and waters now or hereafter dedicated and set
apart for pulblic park or pleasure resort purposes, or which may
hereafter be acquired for such purposes, shall be under the
control and management of the division of parks, w!hich shali pro-
tect, maintain and keep them in repair. The division of parks
&hall have the following powers over all such lands and waters,
to-wit: To make alterations and improvements thereof, to con-
struct and maintain dikes, wharves, landings, docks, dams and
ATTORNEY GENERAL
other works, and to construct and maintain such roads and drives
in, around, upon and to such lands and waters as shall make
them conveniently accessible and useful to the public."
Section 483- r :
"No ,person or lessee of the state shall injure, alter, destroy,
remove or change any tree, building, dock or land or part there-
of within such reservoir park or other body of water under su-
pervision and control of division of parks or construct any
!building or dock within such reservoir park, without written
permission of rthe chief of the division of parks. All lessees of
state lands or lots shall keep the .premises in good condition and
free of weeds, inflamma:ble stt!bstances, garbage and all other
unsightly or dangerous things. Proof that any state premises
under lease is used for illegal or inumoral purposes shall be just
cause for the chief of the division of parks to cancel the lease-
hold for such state property."
Section 483-2:
"T'he territory included within any state park or pleasure
resort and surrounding lands extending back one mile there-
from, is hereby designated a special sanitary district, to be under
the control and management of the state department of health
for sanitary purposes, and any failure to comply with the notices
of said department relating to sanitary conditions, shall be
deemed a violation of the terms of this act.
a. Tihe state department of heal<tl1 shall have powers to
make and enforce rules and regulations relating to the location,
construction and repair of stockyards, hog pens, stables, privies,
cesspools, sinks, plumlbing, drains and all other places where of-
fensive substances or liquids may accumula:te within such sani-
tary district and said department of health shall have power to
a;bate all suoh nuisances, and may remove or correct all unsani-
tary conditions detrimental to tlhe health and well-being of the
community included in such sanitary district, and may, when
necessary, certify the costs and expenses thereof to the county
auditor, to 1be assessed against the property of the offending
party and thereby made a lien upon it and collected as other
taxes.
"b. When any specific order of the state department of
health is neglected or disregarded by parties, after due notice,
the director of :health may cause the arrest and prosecution of
all persons so offending in accordance with the terms of this
act. Notice by the state department of health to abate or correct
a nuisance shaH be served upon parties offending in accordance
with the terms of section 4422 of 1:'he General Code.
"c. No sewer, drain or other connection with closets, cess-
pools, sinks, privies or other .places Where offensive or unsanitary
OPJNIONS
matter accumulates, shall be drained or discharged into any
state reservoir, and no garbage, offal or filth of any kind shall
be thrown or discharged, in any rnanner, into any such reser-
voir or immediate tributary thereto, and this rule shall apply to
all houseboats and 'buildings erected over the waters of any state
reservoir."
The authority of a !bo<trd of health of a general health district m
the promulgation of health regulations is found in Section 1261-42, Gen-
eral Code, which reads as follows :
''The board of health of a general health district may make
such orders and regulations as. it deems necessary for its own
government, for the public health, the prevention or restriction
of disease, and the prevention, abatement or suppression of
nuisances, and shall have the power to require that no human
waste, animal waste, or household wastes from sanitary installa-
tions within bhe district be discharged into a storm sewer, open
ditch or watercourse wivhout a permit therefor having been first
secured from the hoard of health of the health district under
such terms and conditions as the board may from time to time
require. All orders and regulations not for the government of the
board, but intended for the general public, shall he adopted, re-
corded and certified as are ordinances of municipalities and rec-
ord thereof shall be given in all courts of the state the same force
and effect as is given such ordinances, but the advertisements of
such orders and regulations shall be by publication in one news-
paper published and of general circulation within the general
health district. Publication shall be made once a week for two
consecutive weeks and such orders and regulations shall take
effect and be in force ten clays from date of first publication.
Provided, however, that in cases of emergency caused by epidemics
of contagious or infectious diseases, or conditions or events en-
dangering the public health, such boards may declare such orders
and regulations to be emergency measures, and such orders and
regulations shall become immediately effective without such ad-
vertising, recording and certifying."
From a reading of these statutes it 1s readily apparent that both
sections 1261-42 and 483-2 relate in general to the protection of the
public health, and are to some extent inconsistent with each other. In
this situation the question arises whether the special provisions of Sec-
tion 483-2, supra, are to be considered as effecting a repeal by implica-
tion of the general provisions of Section 1261-42, supra, to the extent
that any of the provisions therein are in conflict. It is well established
that repeals by implication are not favored and are recognized only in
cases of clear and irreconcilable conflict.
ATTORNEY GENERAL
A further refinement on this rule is that where the two statutes may
be enforced together and effect given to each there is no such irreconcil-
atble conflict as would effect a repeal by implication.
In considering the extent of inconsistency in these statutes, we may
first observe that Section 483-2, General <Code, creates a special sanitary
district, whereas in the sta1:ute which defines the powers of a board of
health provision is made for the constitution of a health district. While
it cannot be douibted that both sanitary districts and health districts
have been provided for by statute for the same fundamental purpose,
i.e., for the protection of the .public health, the organization, powers and
functions of the governing 1body of eaoh are quite different. Provision was
made by statute for the erection of sanitary districts as long ago as
I9I9, by the enactment of Section 66o2-34, et seq., General Code, in
what is known as the "sanitary district act of Ohio." The purposes for
which suc:h districts may !be organized is set out in Section 66o2-35, Gen-
eral Code, as follows :
" (a) To .prevent and correct the pollution of streams ;
"(b) To clean and improve stream channels for sanitary
purposes;
"(c) To regulate the flow of streams for sanitary pur-
poses;
" (d) To pwvide for the collection and disposal of sewage
and other liquid wastes produced within the district;
" (e) To provide a water supply ,for domestic, municipal
and public use within the district, and incident to such purposes
and to enable their accomplishment, to construct reservoirs,
trunk sewers, intercepting sewers, siphons, pumping stations,
wells, intakes, pipe lines, purification works, treatment and
di51p0sal works; to maintain, operate and repair the same, to ac-
quire additional water supplies by purchase, and do all other
nhings necessary for the fulfillment of the purposes of this act.
" (f) To exterminate or prevent mosquitoes, flies, and
vther insects and wbate their breeding places; and incident to
such purposes to purchase SUipplies, materials and equipment,
employ technicians and laiborers, and build, construct, maintain
and repair such strudures, devices and improvements, and to do
such vther 1:hings, as may be ne-Cessary or proper to accomplish
said punpose.
"(g) To collect and dispose of garbage.
"(h) To collect and dispose of any other refuse that may
become a menace to 'health."
OPINIONS
It is evident from a reading of the foregoing that provision has
been made for the erection of sanitary districts primarily for the pur-
pose of dealing with hazards to the public health which arise in connec-
tion with lakes, streams and water drainage generally. The powers and
functions of a hoard of health of a general health district on the other
hand are by no means so restricted, but are sufficiently broad to en-
compass th,e full field of health regulation.
In considering the legislative purpose m the creation in Section
483-2 General Code, of special sanitary districts, it is to be observed
that under the provisions of Section 66o2-3'4 et seq., General Code, the
decision to erect a sanitary district rests with the common pleas court
in whioh the district concerned is to be erected, such court acting on a
petition of the interested freeholders. Because in numerous instances
state parks and lakes lie within the limits of more than one county, it
can be presumed that the Legislature recognized the necessity for the
erection of a special sanitary district which could operate in more than one
county with greater effectiveness than two locally created sanitary dis-
tricts and that the enactment of Section 483-2, General Code, was de-
signed to provide a substitute for such locally created sanitary district
rather than to provide a substitute for the local general health district.
It is true that Section 483-2, General Code, provides that the
"department of health shall harve power to albate all such nuisances, and
may remove or correct aH unsanitary conditions detrimental to the health
and well-being of the community included in such sanitary district."
By considering this language, however, in association with the language
immediately preceding it, providing for the powers of the department
to make rules relating to "stock yards, hog pens, stahles, privies, cess
pools, sinks, plumbing, drains," we may consider such general language
limited to the same field in which such specially designated powers
operate. In this view of the matter, therefore, it would appear that the
state department of health, under the provisions of Section 483-2, General
Code, is authorized to deal with all health matters which may be af-
fected by lakes, streams, sewage, and water drainage problems generally;
and that local boards of health are left with authority to deal with all
other phases of health problems in the counties concerned. I do not,
therefore, regard any of the provisions of Section 483-2, General Code,
as limiting the power of the 1board of health of a general health dis-
ATTORNEY GENERAL
trict to establiSih and enforce wJthin suoh district health regulations per-
taining to the operation of restaurants and other food establishments.
VI/ e may next oonsider the status of ~ h e division of parks and its
lessees with respect to such local health regulations. In State ex rei Par-
rott v. Board of Public Works, 36 Ohio St., 409, the third paragraph
of the sylla1bus is as follows:
"3. The state is not bound .by the terms of a general statute,
unless it be so expressly enacted."
This language has been referred to with approval in State ex rei
Ogelvee v. Cappe11er, 39 Ohio St., 207, in State ex rei. Janes v. Brown,
112 Ohio St., 590, and in State ex rei Nixon v. Merrell, 126 Ohio St.,
239, 246. It may therefore be regarded as setded law in Ohio.
Under this rule, since the statutes relating to the powers and func-
tions of local boards of health do not expressly provide that the state is
to be bound thereby, it must be concluded that if the state were to en-
gage in some business, activity or practice which was thought to cause
a hazard to the public health, the health regulations of local boards of
health could not be enforced against it.
While such a conclusion may appear to operate to bad effect in
certain circumstances, it should be borne in mind that the reason for the
rule that the state is exempt from the terms of the general statute, unless
such statute expressly provides to the contrary, is, as stated in the Parrott
case, supra (p. 415), "because it must tbe assumed that the state will be
ever ready and willing to act justly toward its citizens in the absence of
statutes or the intervention of courts." In the instant case, therefore, I
should think it could he assumed that the division of parks will take prompt
steps to correct any unsanitary conditions with respect to its own activities
which the local board of health may !bring to its attention.
The status of the division's lessees, however, is a distinctly different
matter.
The reason for the rule that the state is not bound by general
statutes unless expressly so provided is that such exemption is inherent
in the nature of a sovereignty. 49 American Jurisprudence, 301, Section
91. It cannot be supposed on any theory, 'however, that the execution of
a lease by the sovereign thereby confers on the lessee any of the at-
OPINIONS
tributes of sovereignty. Irideed, .the extension of a part of the sovereignty
of the government can be effected only by legislative grant in express
terms, and such enactments are interpreted most strongly against the
grantee and in favor of the government. 37 Ohio Jurisprudence, 739,
740, Section 418. I. conclude, therefore, that lessees of the state division
of parks are bound by the health regulations relating to food establish-
ments promulgated by the boards of health of the districts in which such
lessees are located.
In the matter of enforcement of the local boards' regulations it
will be necessary, of course, to proceed against the lessees themselves
rather than ;J.gainst the division of parks or its officers and employees.
As provided in Section I 261-30, General Code, all provisions relative
to "powers, duties, procedure and penalties" which were formerly ap-
plicable in the case of a municipal board of health are now applicable as
to boards of city and general health districts. Such powers, duties, pro-
cedure and penalties are set out in Section 4404, et seq., General Code.
Penalties, for example, a,re provided for in Section 4414, General Code,
and in Section 4420, General Code, provision is made for the abatement
of nuisances. For a further discussion of the provision noted above in
Section 1261-30, General Code, your attention is invited to Opinion
No. 7185, Opinions of the Attorney General for 1944, p. 583.
Accordingly, in specific answer to your inquiry, it is my optmon
that:
I. Health regulations relative to the operation of food establish-
ments, adopted under the provisions of Section 1261-42, General Code,
are fully effective and operative within such portion of the health dis-
trict concerned as lies within a special sanitary district created by the
enactment of Section 483-2, General Code.
2. The state is not bound by the terms of a general statute unless
it be so expressly provided by statute. Because there is no such express
provision in Section 1261-16, et seq., General Code, the health regula-
tions adopted by a local board of health, as provided in Section 1261-42,
General Code are not binding on the state itself but they are a,pplicable to
and may be enforced against lessees of the state.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
BANKS, STATE - NOT MEMBERS OF FEDERAL RESERVE
SY6TEM-l\1A Y LAWFULLY PURCHASE REVENUE BONDS
OF LOCAL HOUSING AUTHORIT,IES OUTSIDE OF OHIO-
\VHERE HOUSING AUT\HORITIES HAVE GONTRhCTED
WITH PUBLIC HOUSING AUTHORITY FOR ANNUAL CON-
TRIBUTIONS, U?\'ITED STATES HOUS!ING ACT OF I9J7, AS
AMENDED, TITLE 42, SECTION I40I ET SEQ., USC-SECTION
7 I 0-l II (I ) GC.
SYLLABUS:
Pursuant to the provisions of Section 710-111 ( 1), General Code, and the regula-
tions promulgated thereunder, state banks not members of the Federal Reserve System
may lawfully purchase revenue bonds of local housing authorities situated outside
Ohio, when such housing authorities have contracted with the Public Housing Au-
thority for annual contributions pursuant to the provisions of the United States
Housing Act of 1937, as amended, Title 42, Section 1401, et seq. U. S. C.
Columbus, Ohio, June 30, I953
The Hon. Thurman R. Hazard, Superintendent of Banks
Columbus, Ohio
Dear Sir:
I have before me a request that I reconsider my Informal Opinion #43
rendered to you on August !4, I95I. The request upon which that Opinion
was rendered read as follows:
"\Vould the Public Housing Authority bonds to be issued under
the United States Housing Act of 1949, in amount of $I6o,-
ooo,ooo par value, to be offered on July J7, I95I by 58 separate
local housing authorities in 28 states and Hawaii, and which bonds
are not to be issued by local housing authorities within the state
of Ohio, be eligible for investment by state banks not members
of the Federal Reserve System?"
At this point, a digression to establish an exact definition of terms is in
order:
The so-caHed Housing Act of I949, Chap. 338, P. L. 17'1, 8rst Con-
gress, is set out in 63 Stat. 413. So far as pertinent to the question which
you have raised, that Act made certain amendments to the United States
OPINIONS
Housing Act of I 937 ( jO Stat. 888), which Act as amended is set out m
Title 42, U. S. C. Chap. 8, Section 140I, et seq. So, the basic provisions
governing the bonds in question are found in the 1937 Act as amended.
Essentially those provisions are as follows :
"Section 1409 The (Public Housing) Administration may make
loans to public housing agencies to assist the development, acqui-
sition or administration of low-rent-housing or slum-clearance
projects by such agencies. * * *"
"Section 1410. (a) The Administration may make annual con-
tributions to public housing agencies to assist in achieviug and
maintaining the low-rent character of their projects. * * * The
Administration shall embody the provisions for suoh annual con-
tributions in a contract guaranteeing their payment over such
fixed period. * * *"
The exact question which you raise is whether state banks subject tu
your jurisdiction properly may purchase revenue bonds of local housing au-
thorities located outside Ohio, when those local auvhorities have entered into
contracts with the Public Housing Administration pursuant to the Cnited
States Housing Act, supra.
Permjssible investments for state banks are set out in Section 710-III,
General Code, which provides in part as follows :
''A bank may invest its funds in the following securities: * * *
" (I) Bonds or other obligations of any state or political sub-
division thereof, of a public corporation, or governmental agency,
body or commission which are payable solely out of anticipated
revenues, commonly known as 'revenue bonds' under such further
conditions and restrictions as may from time to time be prescribed
by the superintendent of banks, with the approval of the banking
advisory board."
Regulation IV -A of the Division of Banks, elated September 12, 1945,
signed by the Superintendent of Banks and by the Banking Advisory
Board, provides in part as follows:
"* * * By virtue of the authority vested in the Superintendent of
Banks under the provisions of sub-paragraph (L) of Section
710- r II of the General Code of Ohio, the following conditions
and restrictions relating to revenue bonds have been prescribed
by the Superintendent of Banks with the approval of the Banking
Advisory Board, investments heretofore legally made shall not
be affected by this regulation."
ATTORNEY GENERAL
SECTION II.
"* * * Bonds of public housing authorities supported by fixed
annual contributions of the federal public housing authority shall
be eligible for purchase by banks."
It is my opinion that in view of the provisions of Section 7IO-I II (I),
supra, and the nature of the obligation assumed by the United States,
the quoted regulation was validly adopted, and authorizes the purchase
of the bonds in question.
There remains only one question, and that is whether there has been
any amendment of the federal law since I945 \Vhich would render your
quoted regulation invalid. I have examined the Housing Act of I949 and
other amendments to the Act of I937, and find that they have strengthened
rather than weakened the position of the bondholders. For example, Section
1410( f) of Title 42, U. S. C. now provides that:
"Payments under annual contributions contracts shall be pledged,
if the Administration so requires, as security for any loans ob-
tained by a public housing agency,* * *."
And Section 1421 a(b) now provides that the Administration may
contract to continue the annual contributions even though the local author-
ity may be in default under its contract.
In view of the above, it is therefore my opinion that pursuant to the
provisions of Section 7 IO- II I (I), General Code, and the regulations
promulgated thereunder, state banks not members of the Federal Resene
System may lawfully purchase revenue bonds of local housing authorities
situated outside Ohio, when such housing authorities have contracted
with the Public Housing Authority for annual contributions pursuant to
the provisions of the United States Housing Act of 1937, as amended,
Title 42, Section qor, et seq. U. S. C.
Inasmuch as I find that my Informal Opinion #43, dated August q,
I95I was rendered without knowledge of Regulation IV-A and without a
proper consideration of Section 7IO-I I I (I), General Code, that Opinion is
overruled.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPINIONS
TUBERCULOSIS HOSPITAL - COUNTY - BOARD OF TRUS-
TEES-NO AUTHORITY TO EMPLOY COLLECTION AGENCY
TO COLLECT UNPAID CHARGES AGAINST PATIENTS AND
FORMER PATIENTS IN HOSPITAL- CLAIMS NOT COL-
LECTED BY ORDINARY ADMINISTRATIVE MEANS SHOULD
BE COLLECTED BY PROSECUTING ATTORNEY-SECTIONS
292, 3139-13 GC.
SYLLABUS:
The board of trustees of a county tuberculosis hospital operated, managed and con-
trolled as provided in Section 3139-13, General Code, is without authority to employ a
collection agency to collect unpaid charges against patients and former patients in such
hos;pital, but any such claims as cannot be collected by the board by ordinary adminis-
trative means should be collected by the prosecuting attorney of the county concerned,
as pro\'ided in Section 2921, General Code.
Columbus, Ohio, June 30, 1953
Hon. Paul J. Mikus, Prosecuting Attorney
Lorain County, Elyria, Ohio
Dear Sir:
'{our request for my opinion reads as follows:
"I have been requested by the Board of Trustees of the Lo-
rain County Tuberculosis Hospital to give them an opinion as to
the legality of employing a collection agency to collect unpaid
charges of former patients of aforesaid hospital.
'' J have consulted General Code Sections 3439- IO and
3139-13, which are referable but do not find any statutory author-
ity for such employment. Vhll you kindly advise our office."
Provision for the management and control of a county tuberculosis
hospital is found in Section 3139-13, General Code, by which section all
laws applicable to the operation of district tuberculosis hospitals are made
applicable to such county hospitals. The only reference in this section to
the payments made by patients is the following:
" * * * An accurate account shall be kept of all moneys re-
ceived from:.patients or from other sources, which shall be applied
ATTORNEY GENERAL
toward the payment of maintaining the tuberculosis hospital. The
board of trustees shall, on the first Monday in February of each
year, file with the county commissioners and wi,th the state de-
partment of health an annual report of the operation of the county
tuberculosis hospital including a statement of receipts and dis-
bursements during the past calendar year."
In Section 3139-10, General Code, provision is made for the designa-
tion by the hospital board of trustees of an operating staff to consist of
a superintendent, physicians, nurses, and other employees. In the matter
of payments to be made by patients, this section provides:
"* * * The medical superintendent shall investigate all ap-
plicants for admission to the hospital for tuberculosis and shall
require satisfactory proof that they have tuberculosis and are in
need of hospital care. The board of trustees may require from
any applicant admitted from the county or counties maintaining
the hospital, payment not exceeding the actual cost of care and
treatment, including the cost of transportation, if any. If, after
investigation, it shall be found that any such applicant or patient
or any person legally responsible for his support is unable to pay
the full cost of his care and treatment in the district hospital,
the board of trustees may determine the amount, if any, said
applicant, or patient or any such person legally responsible for
his support, shall pay. The difference between such amount, if
any, and the actual cost of care and treatment shall be paid by
the county in which such applicant or patient has a legal residence.
The amount so determined shall be paid on the order of the
county commissioners. An accurate account shall be kept of
moneys received from patients, or from other .sources, which shall
be applied toward the payment of maintaining the district tubercu-
losis hospital."
These provisions refer only to the ''receipt" of payments from pa-
tients and make no reference to collection. It may be conceded that the
statutory duty to administer a public facility, the operation of which gives
rise to claims against the beneficiaries of such operation, will include by
necessary implication a duty on the part of the administrator to make a
reasonable effort to collect such claims. However, the expenditure of
public funds to employ a private collection agency to make such collections
is distinctly another matter.
lt will be observed that county hospitals are supported in large part
by public funds raised by taxation and are staffed by public officers and
employees. They are created by the action of public officers, or by vote
of the electors, under authority of a state statute. They must, therefore,
OPINIONS
be regarded as purely i)tlblic organizations and any revenues realized from
their operations must be regarded as public funds. This being so, it follows
that claims against patients in favor of a coi:tnty hospital constitute public
. r
property, and when such claims are paid, the moneys so received become
public funds. Accordingly any arrangement whereby a percentage allow-
ance is made to a collection agency for the collection of such claims would
be an expenditure of public funds.
The authority to make such expenditure, however, must be provided
by statute in terms that are free of doubt. In State ex rei A. Bentley Co.
v. Pierce, 96 Ohio St., 44, the third paragraph of the syllabus is as follows:
"3 In case of doubt as to the right of any administrative
board to expend public moneys under a legislative grant, such
doubt must be resohecl in favor of the public and against the
grant of power."
In the instant case the language of the pertinent statutes is such as
to raise a serious doubt, to say the least, as to the authority of the board
of trustees of a county tuberculosis hospital to expend public funds in the
!mployment of a private collection agency, and such doubt under the rule
in the Bentley case must be resolved against the grant of power.
This view is further supported by consideration of the provision found
111 Section 2921, General Code, as follows:
''Upon being satisfied that * * * money is due the county,
the prosecuting attorneys of the several counties of the state may
apply, by civil action in the name of the state, to a court of com-
petent jurisdiction * * * to recoYer such money due the county."
This provision appears to be the only means provided by statute, 111
addition to the administrative efforts of the executive officers concerned,
for the collection of funds clue the county, its seYeral departments and
institutions. In this situation it is to be presumed that the express pro-
vision of this means of collection and the failure to mention any other
means, is indicative of intent to make such express provisions exclusive.
Accordingly, in specific answer to your inquiry, it is my opinion that
the board of trustees of a county tuberculosis hospital operated, managed,
and controlled as provided in Section 3139-13, General Code, is without
authority to employ a collection agency to collect unpaid charges against
patients and former patients in such hospital, but any such claims as
ATTORNEY GENERAL
293
cannot be collected by the board by ordinary administrative means should
be collected by the prosecuting attorney of the county concernecl, as pro-
vided in Section 2921, General Code.
2778
Respectfully,
C. \VrLLIAM O'NEILL
Attorney General
I. HEALTH, STATE DEPARTMENT OF-TRUNK OR MAIN
SEWER NECESSARY IN COUNTY FOR SANITARY PUR-
POSES -COUNTY COMMISSIONERS - AUTHORITY TO
CONSTRUCT AND MAINTAIN SAME AT COUNTY EX-
PENSE-MAY REGULATE TAPPING AND PRESCRIBE
CONDITIONS-SECTIONS 6s96 THROUGH 65
99
GC.
2. COUNTY COMMISSIONERS-HAVE AUTHORITY TO ES-
TABLISH SEWER DISTRICT AND CONSTRUCT SANI-
TARY SEWER-COST-ASSESS ON SPECIALLY BENE-
FITED PROPERTY-SECTION 66o2-r ET SEQ., GC.
3. COUNTY COMMISSIONERS MAY CONTRACT WITH CITY
HAVING SEWAGE DISPOSAL PLANT-TO CONNECT
ANY SANITARY SEWER CONSTRUCTED OR TO BE CON-
STRUCTED IN COUNTY WITH SEWER SYSTEM OF
CITY-DISCHARGE SEWAGE INTO CITY'S SEWAGE DIS-
POSAL PLANT-TERMS OF PAYMENT AGREED UPON-
SECTION 66o2-ro ET SEQ., GC.
SYLLABUS:
1. Under the provisions of Sections 6596 to 6599, inclusi,e, of the General Code.
when the state department of health (formerly .the state board of health) finds that
a trunk or main sewer is necessary in a county for sanitary purposes, the county com-
missioners have authority to construct and maintain the same a.t county expense, and
to regulate the tapping thereof by persons des1ring to use the same, and prescribe the
conditions of such tapping.
2. Under the provisions of Section 6602-1 et seq. of the General Code. county
commissioners ha \'e authority to establish a sewer district and construct therein a
sanitary sewer, and assess the cost thereof on specially benefited property in such
district.
3. Under the provisions of Section 6602-10 et seq. the county commissioners may
contract with a city having a sewage disposal plant, to connect any sanitary sewer
constructed or to be constructed by said county, with the sewer system of such city,
and to discharge the sewage of said county sewer into the city's sewage disposal plant,
upon such terms of payment as may be agreed upon.
294
OPINIONS
Columbus, Ohio, July 2, 1953
Hon. Robert D. Schuck, Prosecuting Attorney
Hancock County, Findlay, Ohio
Dear Sir:
I have before me your request for my opinion, reading as follows:
"Within Hancock County and adjoining the city of
Findlay, but outside the corporate Emits of Findlay, there is a
platted territory covering approximately 54 acres on w1hich
there are now about 75 dwelling houses all of which are occupied.
This built up area extends beyond the Findlay corporation
limits approximately 3021 feet. As the sewage from all these
dwellings is now handled through individual septic tanks, there
is somewhat of a sanitary problem which will become worse as
the population in this area increases.
"There are plans to build, within the year a factory which
will employ 500 to r,ooo persons at the edge of this built up
area and 3021 feet from the corporate limits of the City of
Findlay. There is also some likelihood of the construction of ad-
ditional dwellings adjoining and to the north of this built up
area wlhich will also be outside the corporate limits.
"Bearing these facts in mind, would you please ghe me
your opinion on the following questions:
"r. Assuming. the State Board of Health finds that a
trunk or main sewer is necessary, may the Commissioners of
Hancock County, pursuant to Sectio.ns 6596 to 6599, both inclu-
sive, General Code, proceed to construct a trunk or main sani-
tary sewer which will serve this built up area outside the city
of Findlay corporation limits, including the proposed factory?
If the commissioners may so proceed, could the cost of such
sewer he paid for out of the county general fund?
"2. If the Commissioners cannot legally proceed to build
the sewer pursuant to Sections 65g6 to 6599, both inclusive,
General Code, may the County Commissioners proceed to build
such sanitary sewer pursuant to Sections 66o2- r to 66o2-9, both
inclusive, General Code.
"3. If the Commissioners may legally proceed to build
such sanitary sewer in accordance with either group of statutes
mentioned, may the County Commissioners contract with the
City of Findlay pursuant to Sections 66o2-ro to 66o2-14 botJh in-
clusive, General Code, for the connecting of such county sewer
to rhe sewer of the City of Findlay at the corporate limits and
ATTORNEY GENERAL
for the disposal of said sewage from the county by the City of
Findlay?"
295
- The statutes of Ohio appear to provide two methods of procedure
whereby the county commissioners may supply a territory outside of a
municipal corporation \vith sewage facilities. Sections 65 to 6599, in-
clusive, of the General Code, authorize the county commissioners to pro-
vide a main or trunk sewer either within or without the limits of a munici-
pality. lt is to :be noted that this authority -is to be exercised only when
the state board of health finds that such sewer .is riecessary for sanitary
purposes.
Section 65, General Code, reads as follows:
"When the state hoard of health finds that a trunk or main
sewer is necessary in a county for sanitary purposes, the board
of county commissioners of such county may cause surveys to
be made thereof and plans and specifications thereof prepared.
Upon approval by the state ;board of health of such plans and
specifications, the commissioners may construct and maintain
said trunk or main sewer or part thereof, within or without the
limits of a municipal corporation, regulate the tapping thereof
by lateral sewers and prescribe the conditions of such tapping."
Section 6597, General Code, reads as follows:
"The county commissioners may acquire, by purchase or
appropriation proceedings, all real and personal property neces-
sary for the proper construction and maintenance of such trunk
or main sewer; and for such trunk or main sewer or part thereof
may occupy any public road, street, avenue or alley."
Section 6598, General Code, authorizes rhe commissioners where
necessary, to procure a right-of-way or easement for such trunk or
main sewer by appropriation proceedings, and Section 6599, General Code,
outlines the procedure therefor. The aJbove sections comprise an Act
found in 97 Ohio Laws, 533, and none of them has been changed since
their enadment.
There is no specific provision m those sections for financing the
cost of acquiring the land and constructing such trunk or main sewer.
Accordingly, we must assume that the legislature expected the county
commissioners to finance the same either :by appropriation from the gen-
eral- fund or by the issuance of bonds. Section 5625-5, General Code, pro-
vides that out of the general fund of a subdivision there may be paid the
cost of the acquisition or construction of any permanent improvements
OPINIONS
except, m the case of counties, the construction or repair of roads or
bridges.
Section 2293-2, General Code, authorizes all political SUJbdivisions
to issue bonds for the purpose of "acquiring or constructing any perman-
ent improvement which such subdivision is authorized to acquire or con-
struct." Manifestly a main or trunk sewer is included within that pro-
vision.
There IS no prov1s1on in the statutes above quoted and referred to,
which seems to contemplate any assessment of the cost of such trunk or
main sewer on 'benefited property. It wnll be noted, however, that in
Section 65 supra, the commissioners are authorized to "regulate the
tapping thereof by lateral sewers and prescribe the conditions of such tap-
ping." This would appear to give the commissioners a wide discretion in
fixing the charges .for tapping and using the sewer, including the cost
of sewage disposal, whenever any person or corporation desires to con-
nect with it.
Section 66o2-1 et seq., General Code, provide for the establishment
by the county commissioners of sewer districts outside of incorporated
municipalities, and for the assessment of the cost thereof upon specially
benefited properties within tihe district established by them. If the cost
is to
1
be assessed upon property specially benefited, the procedure set
out in Section 66o2-2 et seq., General Code, W1iH be followed. These sec-
tions provide for the preparation of tentative assessments, for notice to
property owners of the same, for filing objections thereto, and for ap-
peals to the probate court as to the necessity of the improvement and the
tentative apportionment of the assessments.
Furthermore, it may be noted that special assessments on property
are always to be kept within the special benefit conferred; otherwise
they are subject to the action of a court of equity, enjoining their col-
lection, in whole or in part, as an unlawful taking of private property in
violation of the constitutional prohibition contained in Article I, Section
19. Walsh v. Barron, 61 Ohio St. IS; Railroad v. Keith, 67 Ohio St.
279; Coal Co. v. Kozad, 79 Ohio St. 348.
I note the case of State ex rei. Bowman v. Commissioners, 124 Ohio
St., 174, where proceedings under Section 66o2-1 et seq. of the General
Code, were under consideration, and it was claimed that the commis-
ATTORNEY GENERAL
297
swners in laying out a sewer district and assessing the cost of a system
of sewers, had included land that could not possibly be benefited. It
was held:
"2. Systems for water supply and storm and sanitary sew-
ers, to be established in thickly populated districts outside of
municipalities, have a real and substantial relation to the public
healvh and public welfare.
"6. It's a gross abuse of the exercise of that discretion to
establish such a sewer system in a sparsely inhabited district or
as a part and parcel of a plan to promote a private enterprise, or
where there is no substantial menance to health; and where such
abuse can be fairly made to aippear, a court of equity may enjoin
the construction, at any time before the issuance of negotia:ble
obligations to provide the funds for same."
'Dhis case, as will he noted, recognized the propriety of establishing
such districts but pointed out the possibility of an abuse of discretion on
tlhe part of the commissioners. It does not in any degree prevent the
conclusion that the commissioners have the power to lay out such dis-
trict, and assess the costs upon benefited property, but only points to
the necessity of being sure that the property to be assessed will be bene-
fited in the amount of the assessment.
Section 6602-1 contains the following, among other provisions :
"The commissioners may fix reasonable rates or charges of
rents to be paid to the county for the use of such sewer or sew-
age treatment or d,isposal works by every person, firm or cor-
poration whose premises are served by a connection to suoh
sewers or sewage treatment or disposal works, and may change
such rates or charges from time to time as they may deem ad-
visable. * * *"
This section further provides that moneys collected as rents for the
use of such sewers and sewage treatment works in any such district,
shall be used for the payment of the cost of management, maintenance
and operation of the same, and any surplus of such income may be used
for their enlargement or replacement and for the payment of interest
or principal on any debt incurred for the construction of such sewer
or disposal works.
Section 66o2-10 et seq., General Code, make provision for a con-
tract between the county commissioners of any county and the proper
authorities of any city or village, to connect any sewer of such county
OPINIONS
with the sewer of a city and for the disposal of sewage through the
sewage treatment or disposal works belonging to such city. Section
6602-Io, General Code, reads as follows:
';That the board of county commissioners of any county
in this state or the council of any city or village may enter into
a coutract, upon such terms and conditions and for such period
of time, as may be mutually agreed upon, with any other county,
city or village, to prepare all necessary plans and estimates of
cost, to connect any sewer or sewers of such county, city or vil-
lage, with any sewer or sewers constructed, or to be constructed,
by any other county, city or village, and to provide for the joint
use by such contracting parties of such sewer or sewers and of
any sewage treatment or disposal works of such county, city
or village." (Emphasis added.)
In order to indicate the direct manner m which a program such as
you present, may be accomplished by this contract procedure, I have
italicized the words which appear to me to cover the proposition. I think
it is worthy of note that the language of the above section is broad enough
to cover the connection of a county sewer built under the provisions of
Section 6596 supra, as well as one which may have been built by the
procedure outlined in Section 66o2- I supra, which contemplates the estab-
lishment of a sewer district. Section 66o2-IO, General Code, with its
broad language, "to connect any sewer or sewers of such county," seems
to me to afford abundant authority to make this contract with reference
to a sewer constructed by the county under the general authority con-
tained in Section 6596. This appears to me the more evident in view of
the fact that Section 6602-10 was passed long after the enactment of
Section 6596 et seq., and the legislature in using the language it did must
have known and contemplated that the county might desire to connect a
main or trunk sewer which it had built at its own expense, with the
sewage disposal works of a city. Section 66o2-I2 provides that a county
so contracting may "provide for payment of the agreed compensation by
the levy of taxes, special assessments or sewer rentals," and may issue
bonds in anticipation of such taxes and assessments.
Accordingly, it is my opinion and you are advised:
r. Under the provisions of Sections 6596 to 6599, inclusive, of the
General .Code, when the state department of health (formerly the state
board of health) finds that a trunk or main sewer is necessary in a county
ATTORNEY GENERAL 2
99
for sanitary purposes, the county commissioners have authority to con-
struct and maintain the same at county expense, and to regulate the
tapping thereof by persons desiring to use the same, and prescribe the
conditions of such tapping.
2. Under the provisions of Section 66o2-r et seq., of the General
Code, county commissioners have authority to establish a sewer district
and construct therein a sanitary sewer, and assess the cost thereof on
specially benefited property in such district.
3 Under the provisions of Section 66o2-ro et seq. the county
commissioners may contract with a city having a sewage disposal plant,
to connect any sanitary sewer constructed or to be constructed by said
county, with the sewer system of such city, and to discharge the sewage
of said county sewer into the city's sewage disposal plant, upon such
terms of payment as may be agreed upon.
2819
Respectfully,
c. vVrLLIAM O'NEILL
Attorney General
GO.MMISSIONERS, COUNTY - AUTHORIZED TO INSURE
COUNTY AGAINST LOSS OF MOTOR VEHICLES BY FIRE
AND THEFT- AUTHOR,IZED TO INSURE EMPLOYES
AGAINST LIABILITY ON ACCOUNT OF DAMAGE OR INJURY
TO PERSONS OR PROPERTY - CQM,l\US!SIONERS NOT AU-
THORIZED, SECTION 2412-3 GC TO PAY PREMIUMS ON
POLICIES OUT OF COUNTY'S ALLOTMENT FROM GASO-
UNE TAX EXCIISE FUND NOR FROM AUTO LICENSE TAX
FUNDS-SECTIONS 5537, 6309-2 GC.
SYLLABUS:
vVhile county commissioners are authorized to procure policies of insurance insur-
ing the county against loss of its motor vehicles by fire and theft, and are authorized to
procure policies of insurance insuring the employes of the county against liability on
account of damage or injury to persoru or property, the county commissioners are
not authorized by the provisions of Section 2412-3, General Code, or any other statute,
to pay the premiums on such policies of insurance out of the county's allotment from
the gasoline tax excise fund provided for in Section 5537, General Code, nor out of
the county's allotment from the auto license tax funds provided for in Section 6309-2,
General Code.
300
OPINIONS
Columbus, Ohio, July 10, 1953
Hon. \Vray Bevens, Prosecuting Attorney
Pike County, Waverly, Ohio
Dear Sir:
I have before me your request for my opinion. You state that the
Pike County Commissioners contemplate procuring fire, theft, personal
liability and property damage insurance covering county road equipment
which consists of 'trucks, road maintainers, caterpillar tractors, pull graders
and gasoline shovel. The question advanced for my opinion is: :.'lay the
county commissioners pay the premiums for such insurance out of monies
derived from the gasoline tax and auto license tax instead of from the
county's general fund?
The question initially presents itself as to whether or not a county
has the authority to enter into a contract of insurance for the kinds of
insurance mentioned in your letter. So far as insuring the cou11t;.' is con-
cerned, a distinction should be made between fire and theft insurance on
the one hand, and property damage and public liability insurance on the
other. In the first case, the insurance is for the protection and preservation
of the property owned by the political subdivision. In the second, the
insurance is for the purpose of protecting the county against liability for
injttry to persons or their property.
\Vhile there is no express statutory provision authorizing a county
to insure its road machinery, Section 7200, General Code, vests in the
county commissioners the authority to acquire, possess and hold road
machinery.
It is well settled that the express authority extended to political sub-
divisions to acquire, possess, and hold property includes the power to
protect such property so as to secure the political subdivision in case of
loss. Couch on Insurance, Vol. I, paragraph 226. See also Opinion No. 787,
Opinions of the Attorney General for 1937, Vol. II, page 1454, which
held that under Article VIII, Section 6 of the Ohio Constitution, political
subdivisions may insure public buildings or property in mutual insurance
associations or companies. The 1937 opinion held that "insurable property"
contemplated in Article V:III, Section 6, Ohio Constitution, includes per-
ATTORNEY GENERAL 301
sonal property such as road machinery and equipment and public-owned
motor vehicles, assuming that such personal property is acquired by the
political subdivision in a manner prescribed by law. Hence, there is no
question but that an expenditure of county funds for the payment of fire
and theft insurance premiums on county road machinery is a proper and
lawful expenditure, since the power to purchase property for the county
carries with it the implied power to protect the county against its loss
resulting from fire or theft, by procuring insurance upon the same.
:\s to property damage and public lia!bility insurance, this office has
consistently held that a political subdivision cannot legally enter into a
contract and expend public monies for the payment of premiums on public
liability or property damage insurance covering damages to property and
injury to persons unless there is a tort liability created against the political
subdhision b)' statute. In this connection, see Opinion No. 787, Opinions
of the :\ttorney General for 1937, Vol. II, page 1454, and Opinion No.
24o6. Opinions of the Attorney General for 1953.
I find no statute which permits recovery of damages from a county
for an injury to persons or property caused by the negligence of an agent
or senant in the county in the operation of county-owned road machinery.
The question next presents itself as to whether the county commis-
sioners are authorized to procure liability and property damage insurance
insuring county employes who operate the county road machinery.
In this respect, I would call your attention to Section 2412-3, General
Code, \Yhich reads as follows:
"The board of county commissioners of any county may pro-
cure a policy or policies of insurance insuring officers and em-
ployes of the county against liability on account of damage or
injury to persons a.nd property, including liability on account of
death by wrongful act, occasioned by the operation of a motor
vehicle, motor vehicles with auxiliary equipment, or all self-pro-
pelling equipment or trailers owned or operated by the county.
\Vhenever the board of county commissioners deems it necessary
to procure such insurance, it shall adopt a resolution setting forth
the necessity thereof, together with a statement of the estimated
premium cost thereon, and upon adoption of said resolution the
board of county commissioners may purchase said insurance.
The premium for such insurance or any other insurance covering
county vehicular equipment may be paid out of the county road
fund." (Emphasis added.)
302 OPINIONS
This section clearly empowers the commissioners to contract for
lia;bility insurance and property damage insurance insuring county em-
ployes who operate vehicles and equipment. The section at
the time of its enactment in 1943 provided that "the premium for such
insurance shall be paid out of the general fund of the county."
In 1945 this sentence was amended to provide that such insurance,
. liability and property damage, "or any other insurance covering county
vehicular equipment may be paid out of the county road fund." This amend-
ment had a dual purpose. First, it authorized the commissioners to pay for
"other insurance" on county vehicular equipment out of the county road
fund. The words "other insurance" presumably comprehend fire and
theft insurance upon the equipment, which forms of insurance, prior to
the enactment, could be procured only by paying the premium from the
yeneral fund. Secondly, the amendment authorized the commissioners to
pay for liability or property damage insurance covering county employes
either out of the general fund or out of the county road fund. It was held
in Opinion No. 1692, Opinions of the Attorney General for 1947, page
135, that money in the county general fund, and in the county road mainte-
nance and repair fund provided for in Section 6956-ra, General Code,
may be used by the county commissioners for the purpose of paying
premiums on policies of insurance procured by them under authority of
Section 2412-3, General Code.
The 1947 opinion, supra, does not quite dispose of the question you
haYe advanced, for the reason that there was no specific mention of
yasoline ta.r and auto license tax monies constituting a source from which
lJremiums might be paid.
The question thus narrows to this : Are the gasoline and auto license
tax revenues part of the county "road fund"? Putting it in still simpler
terms, just what is the "road fund"?
Section 6956-ra, General Code, reads 111 material part as follows:
"The board of county commissioners of each county shall
provide annually by taxation an adequate fund for the mainte-
nance and repair of improved county highways. Such fund shall
be provided by levies made under sections 6926, 6927 and 6956-r
of the General Code and the several sections amendatory thereof
or supplementary thereto * * *.
"The fund produced by such levy or levies for maintenance
and repair purposes shall not be subject to transfer by order of
ATTORNEY GENERAL
court or otherwise and shall be used solely for the maintenance
and repair of the improved catmty roads within the county. The
provisions of this section shall not prevent the county commis-
sioners from using any other available road funds for the mainte-
nance and repair of improved county roads." (Emphasis added.)
303
Sections 6926, 6927 and 6956-1, General Code, referred to in the
above quoted statute as the sections providing the levies for county road
maintenance, are all sections dealing with annual levies upon the taxable
property of the county and townships. The sections of the code apportion-
ing part of the gasoline and auto license taxes to the counties, notably
Sections 5537 and 6309-2, General Code, are not specifically mentioned
as comprising a part of the road maintenance and repair fund.
Section 6309-2, Genera:! Code, allots 25ro of all auto license funds
for the use of the city or county which constitutes the d ~ s t r i c t of registra-
tion. This section specifies as follows :
"* * * In the treasuries of such counties, such moneys shall
constitute a fund which shall be used for the maintenance and re-
pair of public roads and highways * * * and for no other purpose,
and shall not be subject to transfer to any other fund excepting
to the extent temporarily authorized by paragraph (3a) hereof.
'J11aintenance and repair' as used in this section, includes all work
done upou any public road or highway in which the e.t:isting foun-
dations thereof are used as a sub-surface of the improvement
thereof, in 'lthole or in substantial part * * * ." (Emphasis added.)
It is my opinion that this section is not sufficiently broad to allow the
commissioners to use auto license tax funds for the payment of fire and
theft insurance premiums upon county road machinery or the payment
of liability insurance premiums protecting the county employes while
operating the machinery. Neither of these contemplated uses qualifies as
an expenditure "for the maintenance and repair of public roads and high-
ways," as the words "maintenance and repair" are defined in this statute.
It would appear that the words "maintenance and repair" as used in the
section are to be interpreted literally since the legislature has specified
that those \\"Ords include all work done upon the roads in which the exist-
ing foundations thereof are used as a subsurface. In view of this provision
I can only conclude that the legislature did not intend that the auto license
funds be applied for uses indirectly or remotely related to the maintenance
and repair of roads, but rather intended that the funds be used for the
actual maintenance and repair work which is done upon the subsurface.
OPINIONS
Section 5537, General Code allots 25% of the gasoline tax excise fund
to counties, and that section earmarks this money :
"* * * for the purpose of maintaining and repairing the
county system of public roads and highways within such counties,
the construction and repair of walks or paths along county roads
in congested areas, the construction and maintenance of a suitable
building or buildings for the housing of county road machinery
and the purchase, installation and maintenance of traffic signal
lights, shall be within this purpose." (Emphasis added.)
Though this statute, unlike Section 6309-2, General Code, does not at-
tempt to define the words "maintenance and repair," I am nevertheless
brought to the conclusion that it should be construed strictly, thus narrow-
ing the scope of possible uses for the gas tax monies. It will be noted that
the legislature deemed it necessary to specifically mention that the con-
struction and maintenance of a suitable building for the housing of road
machinery shall be within this purpose (i.e. the purpose of maintenance
and repair of roads).
Housing of county road machinery and insuring the county upon its
county road machinery against loss by fire and theft, are both precautions
taken to protect the county against damage or loss to the road machinery,
both being designed to preserve the road machinery essential to the actual
upkeep of the roads. The day to day housing of road machinery bears a
more immediate and direct relationship to the maintenance and repair of
county roads, through preservation of the road machinery, than does the
insuring of the road machinery against fire and theft and the insuring
of the operators of the machinery against tort liability. Since the legisla-
ture thought it necessary to specifically provide that the gas tax funds
might be used for the construction and maintenance of a suitable building
for the housing of county road machinery, even though an earlier portion
of the gas tax statute allows the funds to be used for the purpose of
maintaining and repairing the county system of roads, the conclusion would
seem inescapable that had the legislature intended to authorize the county
to pay for insurance premiums upon road machinery out of the gas tax
funds it would have so provided by express language.
It would seem therefore that when the legislature m 1945 proYided
m Section 2412-3, General Code, that insurance premiums might be paid
out of the "county road fund," the intention was merely to permit the
ATTORNEY GENERAL
county commissioners to pay the premium out of the county maintenance
and repair fund provided for in Section 6956-Ia, General Code, which
fund is comprised of levies on taxable property of the county and town-
ship.
It ,,ill be recalled that Section 2412-3, General Code, in authorizing
the county commissioners to procure policies of insurance and to pay for
the same out of the "county road fund," is not limited to insurance cover-
ing county road maintenance and repair machinery alone. That section
embraces all county-owned vehicles. If the gasoline and auto license taxes
were to be considered as part of the county road fund from which the
insurance premiums might be paid upon these non-road maintenance
vehicles, such an interpretation would run directly counter to Article XII,
Section sa. Ohio Constitution, effective January I, 1948, which reads as
follows :
. ; ~ o moneys derived from fees, excises, or license taxes
relating to registration, operation or use of vehicles on public high-
ways, or to fuels used for propelling such vehicles, shall be ex-
pended for other than costs of administering such laws, statutory
refunds and adjustments provided therein, payment of highway
obligations, costs for construction, reconstruction, maintenance
and repair of public highways and bridges and other statutory
higJnyay purposes, expense of state enforcement of traffic laws,
and expenditures authorized for hospitalization of indigent per-
sons injured in motor vehicle accidents on the public highways."
(Emphasis added.)
This constitutional provtston reinforces my opinion that the gasoline
tax of Section 5537, General Code, and the auto license tax of Section
6309-2. Ceneral Code, do not constitute part of the "county road fund''
within the meaning of Section 2412-3, General Code .
. Accordingly, it is my opinion that while county commissioners are
authorized to procure policies of insurance insuring the county against
loss of its motor vehicles by fire and theft, and are authorized to procure
policies of insurance insuring the employes of the county against liability
on account of damage or injury to persons or property, the county com-
missioners are not authorized by the provisions of Section 2412-3, General
Code, or any other statute, to pay the premiums on such policies of in-
surance out of the county's allotment from the gasoline tax excise fund
OPINIONS
provided for in Section 5537, General Code, nor out of the county's allot-
ment from the auto license tax funds provided for in Section 6309-2,
General Code.
iRespectfull y,
c. WILLIAM O'NEILL
Attorney General
r. TOWNSHIP TRUSTEES-NO AUTHORITY TO LET CON-
TRACT FOR !QONSTRUCTION OF FIRE HOUSE UNLESS
CERTIFICATE CAN BE SUPPLIED'-PRESENT AVAIL-
ABILITY OF FUNDS- SECTIONS 3298-54, 5625-33 GC.
2. COST OF CONSTRUCTING FIRE HOUSE-WHERE IN EX-
CESS OF $I,ooo.oo-TRUSTEES MAY NOT SPLIT PRO-
JECT INTO NUMBER OF SMALLER CONTRACTS TO
A VOID REQUIREMENTS OF COMPETITIVE BIDDING-
SECTIONS 3298-54, 3298-59. 422I GC.
SYLLABUS:
I. A hoard of township trustees is without authority to let a contract for the
construction of a fire house as provided in Section 3298-54, General Code, unless a
certificate as to the present availability of funds therefor can be supplied in conformity
with the requirements of Section 5625-33, General Code.
2. Where it is anticipated that the cost of constructing a township fire house
under authority of .Section 3298-54, General Code, will be many times in excess of
$1.000.00, the trustees may not split such .project into a number of smaller contracts
so as to avoid the necessity of complying with the statutory requirements of competi-
tiYe bidding, as set out in Sections 3298-59 and 4221, General Oxle.
Columbus, Ohio, July 1 7, I953
Hon. James K. Leedy, Prosecuting Attorney
\Vayne County, \Vooster, Ohio
Dear Sir:
Your request for my opinion reads as follows :
HAt vhe general election in I952, the voters of Chippewa
Township, Wayne County, Ohio, voted a levy for the purchase
of fire equipment and the construction of a new fire house. The
Board of Township Trustees of said township have received the
ATTORNEY GENERAL
sum of $6,000.00 from said levy, and by the end of August, 1953,
they will have received the sum of $12,000.00. It is anticipated
that the entire cost of the new fire house and eqruipment will
amount to $4-S,ooo.oo. The Board of Township Trustees of said
township have a:sked me whether they can commence the con-
struction of said fire house before they have realized the entire
$4-S,ooo.oo. They plan to construct said building as the money
comes in, thereby dispensing with any indebtedness on their
part.
"vVould you please give me your informal opinion concern-
mg the following questions:
"Can the Board of Township Trustees of Chippewa
Township, Wayne County, Ohio, commence construction of a fire
house which will cost approximately $30,000.00 when only
$12,000.00 of the $30,000.00 is actually on hand in the general
fund?
"Can said Board of Township Trustees let contracts for
said construction without advertizing for bids if each contract is
less than $I ,ooo.oo? 2 (Said Board is of the opinion that they can
contract for the construction of this building by letting individual
contracts not to exceed $1,000.00. The purchase of said building
and equipment is forthcoming pursuant to Section 3298-54 of the
General Code of Ohio.)"
It would appear that your first inquiry may be disposed of by refer-
ence to Section 5625-33, General Code, whioh provides in part:
"No subdivision or taxing unit shall: * * *
"Make any contract or give any order involving the ex-
penditure of money unless there is attached thereto a certificate
of the fiscal officer of the subdivision that the amount required
to meet the same (or in tlhe case of a continuing contract to be
performed in Whole, or in part, in an ensuing fiscal year, the
amount required to meet the same in the fiscal year in which t>he
contract is made), has been lawfully appropriated for such pur-
pose and is in the treasury or in process of collection to the
credit of an appropriate fund free from any previous encum-
brances. Every such contract made without such a certificate
shall be void and no warrant shall be issued in payment of any
amount due thereon." * * *
In the situation you have described above, it would appear that the
subdivision concerned has only $6ooo.oo of the amount required "in the
treasury," and a like amount "in process of collection." As to the
amounts \V'hich are expected to he collected in the future, under authority
308 OPINIONS
of the favorable vote of the electors in the 1952 election, it will be ob-
served that such amounts will actually be levied by resolution of the
taxing authority of t!he township in each succeeding year as provided in
Section 5625-25, General Code, and such amounts could not, therefore,
be deemed presently to be "in process of collection." Accordingly, I con-
clude that your first question must be answered in the negative.
In reaching this conclusion I have proceeded on the assumption that
the board is proposing to accomplish a piecemeal construction of a single
integrated structure. I may point out, however, that if the proposed
structure is so planned that it can 'be divided into units each of which is
sufficiently complete in itself to be used and useful "for the care and
maintenance" of fire apparatus, and if one of such units can he con-
structed within the limits of funds presently in the treasury or in pro-
cess of collection, there would appear to be no legal objections to such
procedure. \Vhether such a division into several self-sufficient units is
practicable in the instant case is, of course, a question of fact to be de-
cided by the trustees.
In consideration of your second question, we may first note the pro-
visions in Section 3298-59, General Code:
"The proceeds of such bonds, other than any premium and
accrued interest which shall be credited to the sinking fund, shall
be placed in the township treasury to the credit of a fund to be
known as 'the fire equipment fund.' Such fund shall be paid out
upon the order of the township trustees. The township trustees
shaH have power to enter into contracts for the purpose set
forth in this act, but shall be subject to the provisions Qf law in
reference to competitive bidding as to village councils in regard
to the purchase of fire apparatus and appliances in so far as they
are applicable.''
The words "this act" in the language a:bove have reference to House
Bill No. 332, Eighty-third General Asset11Jbly, I08 Ohio Laws, Part II,
II52, enacted in 1920. Sections I and 2 of this act, afterward codified
as Sections 3298-54 and 3298-55, General Code, read as follows:
"Section I. Township trustees may establish all necessary
regulations to guard against the occurrence of fires, protect the
property and lives of the citizens against damages and accidents
resulting therefrom, and, when a volunteer fire company has
;been organized for service in the township, of such character as
to give assurance of permanency and efficiency, may purchase
and provide, for the use of such company, such fire apparatus
ATTORNEY GENERAL
and appliances as may seem to the trustees advisa:ble, in which
event they shall provide for nhe care and maintenance thereof,
and, for such purpose may purchase, lease or construct and
maintain necessary buildings; and they may establish and main-
tain lines of fire alam1 telegraph within the limits of the town-
ship."
"Section 2. The trustees of a township are authorized to
levy in any year or years a sufficient tax upon all the taxable
property in nhe township to provide protection against fire and to
provide and maintain fire apparatus and appliances and buildings
and sites therefor for t'he use of volunteer fire companies."
These sections have since been amended so as to eliminate that pro-
vision which makes the authority of the trustees dependent upon the
organization of a volunteer fire company, and authority is now given
either to employ a force of tawnship firemen or to utilize the services
of a volunteer fire c01111pany, Thus, Section 3298-55, General Code, now
reads:
"The trustees of a township are authorized to levy in any
year or years a suffi,cient tax upon all taxable property in the
township or in a fire district, or districts, to provide protection
against fire and to provide and maintain fire apparatus and ap-
pliances and buildings and sites therefor and sources of water
supply and materials therefor, and the establishment and main-
tenance of lines of fil'e alarm telegraph and the payment of per-
manent, part-time or volunteer fire fighting companies to operate
san1e.''
Our preliminary question remains, m v1ew of the purpose of the
original act and in view of the subsequent amendments, whether the
competitive bidding provision in Section 3298-59, supra, is applica:ble to
contracts for t'he construction of a fire house under authority of Section
3298-54, General Code. Although the precise language involved is far
from a model of clarity, I am unable to concede that it was the legisla-
tive intent, at the time of the original enactment, to make the competitive
bidding provision applicable only to purchases made with the proceeds of
a bond issue, or only to the purchase of "fire apparatus and applicances."
At most, it is necessary to conclude that this language is ambiguous, and
that the authority of the trustees to contract for the construction of a fire
house without competitive bidding is subject to serious doubt. In this situa-
tion the doubt must be resolved in favor of the public and against the grant
of power. State ex rei. Bentley Co. v. Pierce, 92 Ohio St., 44 I conclude,
therefore, that the limitations on the contracting powers of village councils,
3IO
OPINIONS
as set out in .Section 422I, General Code, are applicable in the case at hand.
Coming now to the second specific question you present, I may say
that I am una:ble to conceive how it would be possible, as a practicable mat-
ter, in the erection of an integrated structure at an expected cost of
$30,000.00, so as to divide the project that thirty or more separate con-
tracts would he awarded for the whole. But even if such a division were
practicable, such a course of procedure would, in my opinion, represent
such an apparent circumvention of the requirements of the statute as to be
clearly invalid. See 33 Ohio Jurisprudence, 637, Section I3, and Soeder
v. Cleveland, I6 O.C.C. (N.S.) 26o.
Accordingly, in specific answer to your inquiry, it is my opinion that:
1 . A board of township trustees is without authority to let a con-
tract for the construction of a fire house as provided in Section 3298-54,
General Code, unless a certificate as to the present availctbility of funds
therefor can be 'Supplied in conformity with the requirements of Section
5625-33, General Code.
2. Vvhere it is anticipated that the cost of constructing a township fire
house under authority of Section 3298-54, General Code, will be many times
in excess of $I,ooo.oo, the trustees may not split such project into a number
of smaller contracts so as to avoid the necessity of complying with the
statutory requirements of competitive bidding as set out in Sections 3298-59
and 422I, General Code.
Respectfully,
c WILLIAM O'NEILL
Attorney General
TURNPllffi GOMMISSION, OHIO-PROPERTIES ACQUIRED
UNDER PROVIISIONS OF OHIO TURNPIKE ACT-EXEMPT
FROM TAXATION WITHIN STATE OF OHIO-SECTION I2I2
GC.
SYLLABUS:
By virtue of the provisions of Section 1212, General .Code, .properties acquired or
used by the Ohio Turnpike Commission under the provisions of the Ohio Turnpike Act
are exempt from taxation within the State of Ohio.
ATTORNEY GENERAL
JII
Columbus, Ohio, July 17, 1953
Hon. Frank T. Cullitan, Prosecuting Attorney
Cuyahoga County, Cleveland, Ohio
Dear Sir:
I have before me your request for my opinion, which reads as follows:
''In carrying out his duties under Section 5561 of the General
Code to deduct from the value of lands the amount occupied and
used as a public highway the County Auditor has raised the ques-
tion of whether or not property acquired by the Ohio Turnpike
Commission may be exempt from taxation under the provisions
of Article XII, Section 2 of the State Constitution and the statutes
purporting to grant such exemption but which are limited by
such constitutional injunction. The Auditor points out that tolls
will be charged for the use of the Turnpike and that the Supreme
Court of Ohio has held in the Cleveland and Shwker Heights
Transit cases and in the Stadium case that such property owned
and operated by a municipality in its proprietary capacity was
held not to be exempt from taxation.
"Inasmuch as the Turnpike will cross the northern part of
Ohio and the question will arise generally throughout all of the
counties through which it is located, I am requesting your legal
opinion as to whether or not lands acquired by the Ohio Turnpike
Commission to be used for a highway on which tolls will be
charged are exempt from taxation under the Constitution and
laws of Ohio."
Section 556o, General Code, provides in part that each parcel of real
property shall be valued at its true value in money. Section 5561, General
Code, referred to in your letter, reads:
"The county auditor shall deduct from the value of such
tracts of land, as provided in the next preceding section, lying
outside of municipal corporations, the amount of land occupied
and used by a canal or used as a public highway, at the time of
such assessment."
Thus, it will be seen that Section 5561 does not pertain to the exemp-
tion of property from taxation, but, instead, pertains to the method by
which a single parcel of real property is valued for the purposes of taxa-
tion. This statute declares that in arriving at such a vahwtion, the auditor
JI2 OPINIONS
should deduct the amount of land occupied or used as a public higlmay.
The purpose of this statute was to exclude such lands in determining the
value of a parcel of land standing for tax purposes in the name of the
owner of the fee. By such process the owner of the fee was not obligated
to pay taxes based partly on a valuation of lands covered by an easement
or right-of-way for highway purposes and actually so used, and which
lands, therefore, would be of no actual value to the fee holder.
Where a conveyance in fee simple of a portion of a single tract IS
made, however, such former single parcel becomes, for tax purposes, two
separate parcels and Section 5561 has no application. In that event a
question of exemption is involved, instead of one merely of valuation.
Section 1207, General Code, authorizes the Ohio Turnpike Commis-
sion to acquire, by purchase, any land, property, rights, rights-of-way,
franchises, easements or other interests in land as it may deem necessary
or convenient for the construction or operation of any turnpike project.
Section 1208, General Code, authorizes the Commission to acquire
by appropriation any land, rights, rights-of-way, franchises, easements
or other property necessary for the construction or efficient operation of
any turnpike project.
Thus, it will be observed that the Turnpike Commission is authorized
to acquire either by purchase or appropriation, title in fee simple, as con-
trasted, for example, with the authority of the Director of Highways who,
by virtue of Section I 178-2, General Code, is limited to acquiring only
an easement.
I have been informed that all lands which will be occupied by the
turnpike proper and on which tolls will be charged are being acquired by
the Turnpike :Commission in fee simple and, as provided by Sections
r 207 and I zo8, in the name O'f the State of Ohio. While certain easements
are also being acquired by the Commission, such easements do not cover
any of the property where the toll highway will be located and, thus, have
no application to the question which you have presented, i.e., the effect
of toll charges on the question of tax exemption.
I believe that the answer to your question is contained 111 the unam-
biguous language of Section 1212, General Code, which reads:
"The exercise of the powers granted by this act will be 111
all respects for the benefit of the people of the state, for the
ATTORNEY GENERAL
increase of their commerce and prosperity, and for the impro,e-
ment of their health and living conditions, and as the operation
and maintenance of turnpike projects by the commission will
constitute the performance of essential go,ernmental functions,
the commission shall not be required to pay any taxes or assess-
ments upon any turnpike project or any property acquired or
used by the commission under the provisions of this act or upon
the income therefrom, and the bonds issued under the provisions
of this act, their transfer and the income therefrom (including
any profiit made on the sale thereof) shall at all times be free
from taxation within the state."
3
1
3
Here we find that the General Assembly has exempted from taxation
any turnpike project or any property acquired or used by the Commission
under the provisions of the Ohio Turnpike Act. No distinction is made
in this statute between properties on which a toll is charged and any other
properties. In view of the express language of Section r2r2, one could
say that the lands of the Turnpike Commission would be subject to taxa-
tion only by concluding that the General Assembly exceeded its constitu-
tional power in enacting this statute.
Because of Section 2 of Article IV of the Constitution, which requires
the agreement of six of the seven members of the Supreme Court of Ohio
to declare a statute unconstitutional, except in the affirmance of a judgment
of a Court of Appeals declaring a law unconstitutional and void, even
five of the seven members of the Supreme Court, in certain cases, may
not declare a statute unconstitutional. For example, see In Re Application
for Exemption from Taxation of Real Property of Cincinnati Metropoli-
tan Housing Authority, 155 Ohio St., 570, wherein the constitutionality
of Sections 5356 and 1078-36, General 'Code, was upheld although five o.f
the seven members of the 'Court were of the opinion that such statutes
were in violation of Section 2, Article XII of the Ohio Constitution. With
such constitutional limitations even on the power of the Supreme Court,
it should be readily apparent that, as an executive officer of the state govern-
ment, I would be exceeding my constitutional and statutory power by
attempting to declare a statute enacted by the General Assembly uncon-
stitutional.
I might add, however, that the reported cases would indicate to me,
beyond doubt, that no successful challenge of the constitutionality of
Section 1212, General Code, could be made. While there is a split of
op11110n in the Supreme Court as to whether, since the 1929 amendment
314
OPINIONS
of Section 2, Article XII, the legislative power to determine exemptions
from taxation is limited by that section, as held by the majority, or whether
it is limited only by Article I, as held by the minority, (see In Re Exemp-
tion, etc., supra; City of Cleveland v. Board of Tax Appeals, 153 Ohio
St., 97,) and while the members of the Court have disagreed at times in
particular cases as to whether, within the meaning of Section 2, Article
XII, certain property was "public property used exclusively for any pub-
lic purpose," I do not believe that any of the decisions of the Supreme
Court could be construed as leading to the conclusion that Section 1212
would be unconstitutional.
In the Cleveland Transit case, Zangerle v. City of Cleveland, 145
Ohio St., 347, the Court denied exemption by holding that the property
of the Cleveland Transit Company, being used in the field of a private
competitive business for profit, was not public property used exclusively
for a public purpose within the meaning of Section 2 of Article XII. The
decisions in the Shaker Heights Transit cases, City of Shaker Heights v.
Zangerle, 148 Ohio St., 361, and the Cleveland Stadium case, City of
Cleveland v. Board of Tax Appeals, 153 Ohio St., 97, were predicated on
the same basis, i.e., that bhe property in question was not used exclusively
for a public purpose. In arriving at such conclusion, the Court made a
distinction between the proprietary functions and the gm,ern111C1ltal func-
tions of a municipal corporation. I know of no cases in this state making
such distinction as to the functions of the state government. The claim
that such a distinction could be made as to the Department of Liquor
Control was rejected by the Supreme Court in State, ex rei. \Villiams v.
Glander, I 48 Ohio St., r88, wherein Turner, J. stated, at page 203:
"Too much emphasis has been placed upon the claimed dis-
tinction between the governmental and proprietary functions of
state government. * * *"
It is true that in the case of Division of Conservation and Natural Re-
sources of Ohio v. Board of Tax Appeals, 149 Ohio St., 33, certain real
property owned by the state was held to be subject to taxation, but here
the property had been rented to a private citizen who used it exclusively
for private purposes.
Returning to Section 1212, General Code, we find that the General
Assembly has declared that:
ATTORNEY GENERAL
;;The exercise of the powers granted by this act will be in all
respects for the benefit of the people of the state, for the increase
of their commerce and prosperity, and for the improvement of
their health and living conditions, and as the operation and main-
tenance of turnpike projects by the commission will constitute the
performance of essential governmental functions. * * *
(Emphasis added.)
Bearing in mind that the Supreme Court could declare Section I2I2
unconstitutional only by finding that the property in question was not
"public property used exclusively for a public purpose," the holding of
this Court in the case of State, ex rei. Kauer v. Defenbacher, I 53 Ohio St.,
z68 should be noted. The tenth paragraph of the syllabus of this case
reads as follows :
"The Ohio turnpike commiSSIOn IS a public organization
created for a public purpose."
This holding was reaffirmed by the Court in the case of State, ex rei. Allen
Y. Ohio Turnpike Commission, ISS Ohio St., I68.
In view of the specific language of Section I2I2, General Code, and
the pronouncement of the Supreme Court that the Ohio Turnpike Com-
mission is a public organization created for a public purpose, it would be
difficult to perceive how any argument could successfully be advanced as
to the unconstitutionality of Section I 2I2, General Code.
In conclusion, it is my opinion that by virtue of the provisions of
Section I2I2, General Code, properties acquired or used by the Ohio
Turnpike Commission under the provisions of the Ohio Turnpike Act
are exempt from taxation within the State of Ohio.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
316
OPINIONS
2862
ATTORNEY IN FACT-TO SELL, LIST OR OFFER TO SELL
REAL ESTATE-DULY EXECUTED POWER OF ATTORNEY
FROM OWNER-NOT A REAL ESTATE BROKER-SECTION
6373-25 GC-JNOT REQUIRED TO BE LICENSED, SBCTIO?\
6373-26 GC-WHERE PERJSON SOLICITS REAL ESTATE OWK-
ERS TO EXECUTE POWER OF ATTORNEY-ACT OF SOLICI-
TATION-REAL ESTATE BROKER-REQUIRED TO BE LI-
CENSED.
SYLLABUS:
An attorney in fact who sells, lists or offers to sell, etc., real estate in pursuance
of a duly executed power of attorney from the owner thereof is not thereby deemed
to he a "real estate .broker" as defined in Section 6373-25, General 'Code, and is not
required to he licensed as provided in Section 6373-26, General Code ; but where a
person in the regular course of business solicits real estate owners to execute such
powers of attorney for such listing or sale, such person, by such solicitation, is acting
as a "real estate broker" and is required to be licensed as such.
Columbus, Ohio, July 2I, 1953
Mr. L. F. Waldbauer, Secretary, Board of Real Estate Examiners
Columbus, Ohio
Dear Sir:
I am in receipt of your request for my opinion which reads in part
as follows:
"It has come to the attention of the Board that throughout
the State there is a growing practice of certain auctioneers who
offer real property for sale without being licensed as real estate
brokers or salesmen by securing powers of attorney.
"We respectfully ask your opinion as to whether such auc-
tioneers are permitted to operate a regular real estate business
in such manner under Section 6373-25, paragraph (b), G. C.
Ohio."
vVe may first note that the statute prohibits any person to "act as a
real estate broker" without a license as such. Section 6373-26, General
Code. The term "real estate broker" is defined in Section 6373-25, General
Code, in pertinent part as follows:
ATTORNEY GENERAL
"The term 'real estate broker' shall include any person, part-
nership, association, or corporation, foreign or domestic, who for
another and for a fee, commission, or other valuable consideration,
or who \vith the intention or in the expectation or upon the prom-
ise of receiving or collecting a fee, commission or other valua:ble
consideration, sells, exchanges, purchases, rents or leases, or ne-
gotiates the sale, exchange, purchase, rental, or leasing of, or
offers, or attempts, or agrees to negotiate the sale, exchange, pur-
chase, rental, or leasing of, or lists or offers or attempts or agrees
to list, or auctions, or offers or attempts or agrees to auction, any
real estate, or the improvnnents thereon * * *"
"The term 'real estate' shall include leaseholds as well as
any and every interest or estate in land. whether corporeal or
incorporeal, whether freehold or non-freehold, and whether said
land is situated in this state or elsewhere.
"The term 'real estate salesman' shall mean and include any
person associated with a licensed real estate broker to do or to
deal in any act, acts, or transactions set out or comprehended by
the definition of a real estate broker as set forth in this act, for
compensation or otherwise. * * *
"Neither of the terms 'real estate broker' or 'real estate sales-
man' hereinbefore defined includes a person, firm or corporation,
or the regular salaried employes thereof, who performs any of
the aforesaid acts: * * *
"(b) In pursuance of a duly exewted power of attorney
franz the o ~ v n e r of the real estate or mzy interest therein; * * *"
(Emphasis added.)
317
The provisions of the exception noted above in subparagraph (b)
of this section are so plain and unambiguous as to leave no doubt that the
Legislature did not intend that a license under the real estate licensing
act should be required of persons who, acting in pursuance of a power
of attorney from a real estate owner, performed any of the acts listed in
such section. I must conclude, therefore, that such an attorney in fact may
sell. list, offer to sell, etc., the real estate described in his power of appoint-
ment \Yithout a real estate broker's license.
I note, however, that in your inquiry you refer to auctioneers who
"operate a regular real estate business" by making sales at auction. From
this language I think it is fair to assume that the persons concerned follow
the practice of regular solicitation of business by soliciting owners of real
estate to execute powers of attorney under authority of which the auction
sale may be accomplished. Now it may be noted ( 1) that such solicitation
3I8
OPINIONS
is an offer to sell, or an offer to list, or an offer to auction real estate,
and (2) such solicitation, by its very nature, takes place prior to the exe-
cution of a power of attorney by the owner concerned. Such being the
case it follows that a person who engages in such solicitation is a "real
estate broker" and is required to be licensed as such.
Accordingly, in specific answer to your inquiry, it is my opinion that
an attorney in fact who sells, lists or offers to sell, etc., real estate in pursu-
ance of a duly executed power of attorney from the owner thereof is not
thereby deemed to be a "real estate broker" as defined in Section 6373-25,
General Code, and is not required to be licensed as provided in Section
6373-26, General Code; but where a person in the regular course of busi-
ness solicits real estate owners to execute such powers of attorney for such
listing or sale, such person, by such solicitation, is acting as a "real estate
broker" and is required to be licensed as such.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
HOSPITAL- TRUSTEES OF ANY PARTICIPATING TO\VN-
PAYMENT MADE TO OF JOINT
TOWNSHIP HOSPITAL DISTRJitCT-UNBNCUMBERED FUNDS
-HOSPITAL TRUSTEES-NOT LIMITED IN USE OF FUNDS
TO MAINTENANCE OF HOSPITAL BUILDINGS-FUNDS MAY
BE USED FOR GENERAL MAINTENANCE AND OPERATIOK
OF HOSPITAL-SECTIONS 3414-2 G.C-513.I2 RC.
SYLLABUS:
Under the provisions of Section 3414-2, General Code, (513.12 Revised Code),
where .the trustees of any participating township have paid over to the trustees of a
joint township hospital district, unencumbered funds in their hands, said hospital trus-
tees are not confined, in the use of such funds, to maintenance of the hospital buildings
but may use the same for the general maintenance and operation of the hospital.
ATTORNEY GENERAL
3
1
9
Columbus, Ohio, July 22, 1953
Hon. Reeder C. Hutchinson, Prosecuting Attorney
Defiance County, Defiance, Ohio
Dear Sir:
I have before me your request for my opinion reading as follows:
"Several townships in the west end of Defiance County have
established a joint township hospital district and have erected a
hospital. The boards of trustees of several townships participating
in said hospital district have agreed among themselves to furnish
money from their general funds amounting to a stated millage
for each township to the hospital board for the purpose of the
maintenance and operation of such hospital. The question then
presents itself, for what purposes may these funds be expended?
"General Code section 3414-2 in its second paragraph pro-
vides that necessary expenses for the operation of the general
hospital may be paid out of moneys derived from a special levy
* * * 'or from any unincumbered funds from any other source.'
The paragraph then goes on further to state that the boards of
trustees of the several townships are authorized to appropriate
to and pay over to said joint township hospital board any unin-
cumbered funds that they may have for maintenance of said hos-
pital. It is in reliance upon that statement that I have advised the
trustees of the several townships that they may pay over the funds
previously mentioned. The question is whether the expenditure
of these funds is limited to maintenance only or whether it is the
contemplation of the statute that the word maintenance means
the general operation of the hospital.
"If the statute limits the hospital board in the expenditure
of this fund to maintenance only, what expenditures would be
included under maintenance? I have suggested to them that it
might include fuel for the heating of the building, payment of
janitor, payment for cleaning supplies and possibly part af the
cost of the administrative salary in that he supervises the main-
tenance. I also think there is some possibility that it might include
electricity for lighting the building, perhaps the water bill and the
sewage bill."
It appears to me that the complete answer to your question is to be
found in the proper definition of the word "maintenance" as used in the
statute to which you refer. Section 3414-1, General Code, 513.07 Revised
Code, reads in part as follows:
320
OPINIONS
"The trustees of any two or more contiguous townships in
any county may by a two-thirds favorable vote of each of said
board of trustees, form themselves into a joint township district
hospital board for the purpose of establishing, constructing and
maintaining a joint township district general hospital, and afore-
said contiguous townships wherein said two-thirds favorable
votes shall have been taken, shall become and be a part of a joint
township hospital district. * * *." (Emphasis added.)
This section further provides that the board of trustees of such hos-
pital district shall be comprised of the members of the boards of trustees
of all of the townships participating.
Section 3414-2, General Code, 513.12 Revised Code, provides in part
as follows:
"Upon the establishment of such township hospital district
and a:fter the organization of said township district hospital board,
as aforesaid, the joint township hospital board of the joint to\vn-
ship hospital district shall determine the amount of bonds to be
issued, and such other matters as pertain thereto. and shall issue
and sell said bonds to the extent and in the amount so determined
when approved by the vote of the electorate of said hospital dis-
trict voting as a subdivision, for the purchase of a site and for
the constructing and equipping of a hospital building thereon.
Such bonds shall be issued and sold under the same manner and
conditions and within the limitations prescribed by the uniform
bond act, sections 2293-1 to 2293-86, inclusive, of the General
Code of Ohio.
"All necessary expenses for the operation of such general
hospital may be paid out of any moneys derived from the special
levy approved for such purposes by the voters of said joint town-
ship hospital district, voting as a subdivision, or out of any other
moneys received from hospital income or services rendered. or
from any unencumbered funds from any other source. The board
of trustees of the several townships participating in said hospital
district are hereby authorized to appropriate and pay over to said
joint township hospital board any unencumbered funds that they
may have, for 'maintenance of said hospital. * * *"
(Emphasis added.)
The "special levy" referred to in the last above quoted section is pro-
vided for by .Section 3414-3, General Code. When authorized by a resolu-
tion of the joint township district hospital board, the question of levying
a tax of not to exceed one mill outside the ten mill limitation, "for the
purpose of providing funds for the payment of necessary expenses in-
curred in the operation of said district hospital" shall be submitted to the
electors of such joint township hospital district.
ATTORNEY GENERAL
321
From the above statutes, it appears clearly that the bond issue is for
the purchase of a site and the erection and equipping of a hospital build-
ing, the voted tax levy is for operating expenses, and that for the purpose
of operation, the funds derived from the special levy may be amplified by
"any unencumbered funds from any other source." The second paragraph
of Section 3414-2, supra, which authorizes the hospital trustees to use
"any unencumbered funds" for operation, further authorizes the trustees
of the several participating townships to "pay over to the hospital board
any unencumbered funds they may have for maintenance of said hospital."
The question that appears to give rise to your request is whether the
use of the word "maintenance" in the connection in which it is used, limits
the use of such "unencumbered funds" to maintenance or upkeep of the
hospital buildings.
It will be noted that the statute does not say "maintenance of the
hospital buildings," 'but rather, "maintenance of said hospital." Obviously,
there is a wide difference between the maintenance of an institution such
as a church, a college or a hospital, and the maintenance of a building be-
longing to such an institution. I am convinced that the legislature used
the word in the paragraph referred to in the broader sense. Certainly the
"unencumbered funds" referred to in the first sentence of the paragraph
in question, are the same "unencumbered funds" referred to in the second
sentence. The first sentence gives the hospital trustees authority to use
these funds for operation of the hospital, and the second sentence merely
gives the township trustees explicit authority to turn them over to the
hospital trustees. If the sentences were reversed in order, there would be no
question as to the legislative intent. In my opinion "maintenance" as here
used is equivalent to "operation."
It is said in 54 Corpus Juris Secundum, p. 904:
"l\Iaintenance is a large term whose meaning depends on the
surrounding circumstances and the connection in which it is ap-
plied. ~ J aintenance has been defined as meaning act of maintain-
ing; keeping up, supporting or upholding, also aiel, assistance,
livelihood, means of sustenance, preservation, subsistence,
support, sustenance."
Cases are cited which set forth all these varying shades of meaning.
I do not consider that it is necessary to go into any further examination
of authorities to reach the conclusion that when the word "maintenance"
322 OPINIONS
is used in connection with an institution, its meaning is not confined to
the upkeep of buildings unless that meaning is clearly expressed, hut that
the word means the support and operation of the entire institution, includ-
ing its buildings and all of its functions.
Accordingly, it is my opinion that under the provisions of Section
3414-2, General Code, 513.12 Revised Code, where the trustees of any
participating township have paid over to the trustees of a joint township
hospital district, unencumbered funds in their hands, said hospital trus-
tees are not confined, in the use of such funds, to maintenance of the hos-
pital buildings but may use the same for the general maintenance and
operation of the hospital.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
323
r. JUSTICES OF WIDE JURISDICTION-
CONSERVATION LAWS- AFFIDAVIT OR COMPLAINT
MADE BY PROSECUTING ATTORNEY, SHERIFF, PARTY
INJURED OR ANY AUTHORIZED REPRESENTATIVE OF
STATE OR FEDERAL DEPARTMENT- IN EVENT NO
OTHER COURT OF CONCURRENT JURISDICTION OTHER
THAN COMMON PLEAS COURT, POLICE COURT OR
-:\IAYOR'S COURT-SECTION 13422-2 GC.
2. SECTIONS 469-1 THROUGH 484 GC,
LAWS WITHIN PURVIEW OF SECTION 13422-2 GC.
3 DIVISION OF PARKS- VIOLATION OF LAWFUL RULE
OR REGULATION-PUNISHABLE AS MISDEMEANOR-
VIOLATION, LAW RELATING TO OFFENSES FROM OR
GROWING OUT OF VIOLATION OF CONSERVATION
LA \VS-SECTIONS 46<)-1 ET SEQ., 13422-2 GC.
SYLLABUS:
1. The county-wide jurisdiction conferred on justices of the peace by the 18th
proviso of the last sentence of Section 13422-2, General Code, in all cases arising from
or growing out of the violation of conservation laws, is in addition to and in no way
limited by the provisions of the first sentence of Section 13422-2, General Code, con-
ferring county-wide jurisdiction on justices of the peace upon affidavit or complaint
made by the prosecuting attorney, the sheriff, the party injured, or any authorized
representative of a state or federal department "only in the event there is no other
court oi concurrent jurisdiction other than the common pleas court, police court or
mayor's court." Opinion No. 1791, Opinions of the Attorney General for 1938, page
131, approved and followed.
2. Sections 469-1 to 484, inclusive, General Code, are conservation laws within
the purview of Section 13422-2, General Code.
3. The ,iolation of a lawful rule or regulation of the division of parks adopted
pursuant to the provisions of Section 469-1, et seq., General Code, being punishable
as a misdemeanor as provided in Section 483-3, General Code, is the violation of a law
relating to offenses arising from or growing out of the violation of conservation laws
within the meaning of Section 13422-2, General Code.
Columbus, Ohio, July 28, I 953
Mr. A. V/. Marion, Director, Ohio Department of Natural Resources
Columbus, Ohio
OPINIONS
Dear Sir:
I have before me your request for my opinion, reading m part as
follows:
"Blue Rock State Park, which is under the administration
of the Department of Natural Resources, Division of Parks, is
located in Blue Rock Township, Muskingum County, Ohio.
"Query: Does the Justice of the Peace for Falls Township,
:VIuskingum County, Ohio, (there being no Justices of the Peace
in Blue Rock Township, Muskingum County, Ohio) have juris-
diction over an offense committeed in Blue Rock State Park where
the park patrolman files an affidavit charging an individual with
(I) violating a rule or regulation of the Department of Natural
Resources, Division of Parks, which rule or regulation was pro-
mulgated in accordance with the Administrative Procedure Act
under authority of Sections 469-I, 475, 479, and 482, General
Code (2) violating Sections 479-I, 479-2, or 479-3, General
Code?"
Apparently, some doubt has arisen as to the jurisdiction of a justice
of the peace in such cases in view of the fact that there is a municipal
court at Zanesville; that while the territory and basic jurisdiction of this
municipal court is confined to the mrporate limits of Zanesville by virtue
of Section I 582, General Code, Section I 598 provides that it "shall also
have jurisdiction within the limits of the county or counties in which its
territory is situated of those crimes and offenses which are now or may
hereafter be within the county-wide jurisdiction of justices of the peace";
and that the first sentence of Section I3422-2 provides that a justice of the
peace shall "have jurisdiction in criminal cases throughout the township
in which he is elected and where he resides, and county-wide jurisdiction
in all criminal matters only upon affidavit or complaint filed by the prosecu-
ting attorney or upon affidavit or complaint made by the sheriff, the party
injured, or any authorized representative of a state or federal department,
in the event there is no other court of concurrent jurisdiction other than
the common pleas court, police court, or mayor's court."
The above language from Section 13422-2 has been the subject of
interpretation in Opinion No. 1652, Opinions of the Attorney General for
1937, page 2684; Opinion No. I79I, Opinions of the Attorney General
for I938, page I3I; Opinion No. 2I82, Opinions of the Attorney General
for I952, page 779; State, ex rel. \Villiams v. Gillette, 59 Ohio Law Abs.,
ATTORNEY GENERAL
435 (Common Pleas Court of Lawrence County;) State v. \Vheelock,
64 Ohio Law Abs., 129 (Municipal Court of Piqua); and State, ex rei.
Dinella v. Bailey, Justice of the Peace, 64 Ohio Law Abs., 225 (Court of
Appeals, Wood County.)
\Vhile the case of State, ex rei. \Villiams v. Gillette, supra, is not
in accord with the other cases and opinions of the Attorney General re-
ferred to above as to the meaning of the language of the first sentence of
Section 13422-2, none of such cases or opinions holds that such language
limits in any way the county-wide jurisdiction of justices of the peace
conferred by the last sentence of Section 13422-2. This sentence reads m
part:
"* * * Provided, further, however, that justices of the peace
shall have jurisdiction within their respective counties in all cases
of violation of any law relating to: * * *
"18. Offenses arising from or growing out of the violation
of conservation laws."
In the 1938 Opinion it was pointed out that the limitations of the first
sentence providing county-wide jurisdiction of justices of the peace on
afficlaYit of certain persons "in the eYent there is no other court of con-
current jurisdiction other than the common pleas court, police court, or
mayor's court" was not applicable to the eighteen enumerated cases con-
tained in the last sentence of Section I 3422-2. I quote from pages I 35 and
136 of that opinion:
"* * * It should be here noted that the foregoing discussion
relative to the county-wide criminal jurisdiction of justices of the
peace has application only to the general provisions contained in
Section 13422-2. supra, and in no event should be construed as
being determinative of any question that might arise as to the
county-wide criminal jurisdiction of justices in those eighteen
special cases enumerated in the latter part of the section.
" * * * An examination of Section 13422-2, supra, discloses
that the Leg,islature in the enactment of said section specifically
limited the county-wide jurisdiction of justices to those cases
that arise upon the filing or making of an affidavit or complaint by
any of the parties therein designated and only in the event there
is no other court vested with concurrent jurisdiction than the
common pleas, police or mayor's court. However, in the latter
part of the section, the Legislature by the introduction of the pro-
viso unqualifiedly conferred upon justices of the peace county-wide
jurisdiction in all cases of violation of law relating to eighteen
special cases therein enumerated.
OPINIONS
"* * * It is apparent that in applying the foregoing rule of
statutory construction to the proviso, as contained in Section
13422-2, supra, the conclusion is inescapable that it was the intent
and purpose of the Legislature in its enactment, to except from
the general provisions of the section (relating to the conditions
and circumstances under which justices of the peace assume
county-wide criminal jurisdiction) those eighteen special enu-
merated cases as herein contained. * * *"
(Emphasis added.)
\Ve find, therefore, that a justice of the peace has been given county-
wide jurisdiction, without qualification, "in all cases of violation of any
law relating to: Offenses arising from or growing out of the violation
of conservation laws."
Do the cases in question fall within this scope? The question thus
presented is twofold: (r) whether the laws in question are conservation
laws, and ( 2) whether, in any event, the violation of a mle or regulation
of the Department of Natural Resources, Division of Parks, would con-
stitute the violation of any law.
At the present time the sections of the General Code referred to in
your letter are contained in the laws relating to the Department of Natural
Resources, Division of Parks. This Department, however, is the successor
to the Division of Conservation, formerly a part of the Department of
Agriculture. Section 13422-2 was amended to its present form in 1937.
At that time the parks of Ohio were under the Division of Conservation.
I think it clear, therefore, that the statutes in question are "consenation
laws" as that term was employed by the General Assembly.
The sole remaining question is whether a violation of a rule or regu-
lation would constitute the violation of any law within the purview of
Section 13422-2. It must be remembered, of course, that there are no
crimes in Ohio except those provided by statute; that a regulatory board
cannot provide a criminal penalty for the violation of its rules or regula-
tions; and that the violation of a rule or regulation is a crime only if
made so by specific act of the General Assembly. The violation of rules
and regulations of the Division of Parks is made a crime by Section 483-3,
General Code, which reads:
"\Vhoever violates any of the provisions of sections 47 5 to
483-2, both inclusive, of the General Code, or rules and regula-
tions of the division of parks shall be fined not less than ten
dollars, nor more than one hundred dollars and stand committeed
until such fine and costs are paid."
ATTORNEY GENERAL
J27
For the reasons heretofore stated, I am of the opinion that Section
483-3 is a "conservation law." It would appear that any person in violating
a lawful rule or regulation of the division of parks would not only be
violating the rule or regulation, per se, but also would be in violation of
a specific statute in the nature of a conservation law. While the rule or
regulation is violated, the statute making it a crime to violate a rule or
regulation is likewise violated, and it is only by virtue of the statute that
a penal offense has been committed.
My conclusion in this respect IS supported by the holding of the
Court of Appeals of Butler County in the case of State v. Waller, 44 Ohio
Law Abs., 591. You will note that the thirteenth proviso of Section 13422-2
states that a justice of the peace shall have county-wide jurisdiction "for
the violation of any law relating to public health." On the basis of this
language, the court held that a justice of the peace was given county-wide
jurisdiction in criminal cases involving a regulation of a county health
board issued under authority of Section 1261-42, General Code, and thus
the justice of the peace had authority to take jurisdictional notice of such
regulation.
Here, as in the \Valier case, Section 13422-2 refers to "violation of
any law." Here, as in the Waller case, a statute makes the violation of a
rule or regulation a crime. Compare Section 486-3, General Code, with
Section 4414, General Code. The tCourt of Appeals held that a justice of
the peace had county-wide jurisdiction of cases of violations of the regula-
tions of the board of health. It would follow that this same county-wide
jurisdiction would exist as to violations of regulations of the division of
parks.
The above conclusion is predicated upon the fact that the offenses in
question did not take place within the "territory" of the municipal court
as defined by Section I 583, General Code. Within the limits of the "ter-
ritory" of a municipal court, a justice of the peace would be precluded from
taking jurisdiction by reason of the provisions of Section rs84, General
Code.
In specific answer to your question, it is my opinion:
I. The county-wide jurisdiction conferred on justices of the peace
by the r8th proviso of the last sentence of Section 13422-2, General Code,
in all cases arising from or growing out of the violation of conservation
OPINIONS
laws, is in addition to and in no way limited by the provisions of the first
sentence of Section 13422-2, General Code, conferring county-wide juris-
diction on justices of the peace upon affidavit or complaint made by the
prosecuting attorney, the sheriff, the party injured, or any authorized
representative of a state or federal department only "in the event there is
no other court of concurrent jurisdiction other than the common pleas
court, police court or mayor's court." Opinion No. 1791, Opinions of the
Attorney General for 1938, page 131, approved and followed.
2. Sections 469-1 to 484, inclusive, General Code, are conservation
laws within the purview of Section 13422-2, General Code.
3 The violation of a lawful rule or regulation of the division of
parks adopted pursuant to the provisions of Section 469-1, et seq., General
Code, being punishable as a misdemeanor as provided in Section 483-3,
General Code, is the violation of a law relating to offenses arising from
or growing out of the violation of conservation laws within the meaning
of Section 13422-2, General Code.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
2906
I. SALARY-ANY CHANGE BY GENERAL ASSEMBLY
SHALL NOT AFFECT SALARY OF ANY OFFICER DUR-
ING HIS EXISTING TERM - ARTICLE II, SE1CTION 20,
CONSTITUTION OF OHIO.
2. DIRECTOR OF HEALTH-APPOINTED FOR FIVE YEAR
TERM-AN OFFICER-SECTION I54-I2 GC.
3 GOVERNOR-AUTHORIZED TO FILL VACANCY, EXIST-
ING OFFICE, DIRECTOR OF HEALTH, WHICH ARISES
\VHEN SENATE NOT IN SESSION-SECTION I2 GC.
4 ~ W H E N GOVERNOR FILLS VACANCY-OFFICER, DIREC-
TOR OF HEALTH, BY APPOINTMENT WHEN SENATE
NOT IN SESSION-APPOINTEE, CONFIRMED BY SEN-
ATE, NEXT REGULAR SESSION, DOES NOT ASSUME
NEW TERM OF OFFICE-CONTINUES TO HOLD OFFICE
FOR FULL TERM TO WHICH HE WAS PREVIOUSLY AP-
POINTED-SECTION I2 GC-ARTICLE II, SBCTION 20,
CONSTITUTION OF OHIO.
INCUMBENT, DIRECTOR OF HEALTH-INCREASE IN
SALARY NOT APPLICABLE-EVEN THOUGH CON-
FIRMED BY SEN ATE-HE NOW IS AND WILL CONTINUE
TO BE INCUMBENT OF FULL TERM OF OFFICE, FIVE
YEARS FROM AUGUST I, I952 TO JULY 3I, I957-SEC-
TIONS 2250, I54-I2 GC, AMENDMENTS, AMENDED HB 94,
roo GA, EFFECTIVE JULY 13, I953
SYLLABUS:
1. Under the provisions of Article II, Section 20, Constitution of Ohio, any
change hy the General Assembly in the salary of an officer shall not affect the salary
of any officer during his existing term.
2. The director of health, being appointed for a five year term by virtue of Sec-
tion 154-12, General Code, is an officer within the purview of Article II, .Section 20,
Constitution.
3. By virtue of the provisions of Section 12, General Code, the gO\erno.r is au-
thorized to fill a vacancy existing in the office of the director of health which arises
when the Senate is not in session.
4. When the governor fills a vacancy in the office of the director of health by
appointment made during the time the Senate is not in session, such appointee, upon
confirmation by rhe Senate at its next regular session, does not assume a new term
of office within the meaning of Article II, Section 20, Constitution, hut, in accordance
with the provisions of Section 12, General Code, continues to hold the office for the
"full term" to which he was thus previously appointed.
330
OPINIONS
5. By virtue of the provisions of Article II, Section 20, Constitution, the increase
in salary provided by the amendments of Sections 2250 and 154-12, General Code, by
the enactment of Amended House Bill No. 94, of the 100th General Assembly, effective
July 13, 1953, will not be applicable to the incumbent director of health, even though
confirmed by the Senate after the effective date of such amendments, in view of the
fact that he now is, an<i will continue to be .the incumbent of a full term of office of
five years from August 1, 1952 to July 31, 1957.
Columbus, Ohio, July 30, 1953
Mr. W. H. Veigel, Secretary, Public Health Council
State of Ohio, Department of Health
Columbus, Ohio
Dear Sir:
I have before me your request for my opinion as follows:
"Dr. John D. Porterfield's term as Director of Health ex-
pired on July JI, 1952.
"On June r6, 1952 the Public Health Council, in compli-
ance wit'h the provisions of Section 154-4 of the General Code,
certified an eligible list of names to the Governor, from which
the Governor on July 15, 1952 reappointed Dr. Porterfield as
Director of Health for a term to begin on August I, 1952, and to
end July JI, 1957.
"Dr. Porterfield accepted reappointment to the office of Di-
rector of Health and executed the Oath of Office before a notary
public on July rS, 1952. The Governor's nomination of Dr.
Porterfield for reappointment to a five-year term beginning
on August I, 1952, was submitted to the Senate for confirmation
on July 13 of this year and was referred to the Rules Committee.
Presumably the Senate will act on his confirmation Friday,
July 31, 1953.
"Amended House Bill No. 94, which increases the salary
of the Director of Health from $8,6oo to $r2,ooo per year was
passed by both Houses of the General Assembly as emergency
legislation and the engrossed bill was signed by the Governor
and became effective July 13, 1953.
"I should like to receive your opinion and advice on the
following question :
'Is Dr. Porterfield, the present incumbent of the office of
Director of Health, entitled to receive the increase in salary
authorized by the enactment of Amended House Bill No.
94?'"
ATTORNEY GENERAL
33
1
Prior to July 13, 1953, Section 2250, General Code, as last amended,
effertive Febrhary 9, 1951, read in pertinent part:
"The annual salaries of the appointive state officers and em-
ployees herein enumerated shall be as follows: * * *
Department of health.
Director of health, six thousand five hundred dollars.
"* * * For the period beginning with the effective date of
this act and ending on June 30, 1953, or in the event there are
any unexpired terms on said elate said period shall continue for
each of said terms until the expiration date thereof, the annual sal-
ary of the superintendent of public works as director of public
works, the superintendent of public instruction as director of
education and the director of health shall be eight thousand six
hundred dollars."
As amended by Amended House Bill No. 94, effective July 13, 1953,
Section 2250, General Code, now contains no reference to the director
of health. Instead, Section 154-12, General Code, was amended by add-
ing a sentence providing that the annual salary of the director shall be
twelve thousand dollars.
The basic question presented by your letter is whether, in view of
the proYisions of Article II, Section 20, of the Ohio Constitution, the pres-
ent incumbent of the office of director of health may receive the increase
in pay provided by the recent amendments of Sections 2250 and 154-12.
This constitutional provision reads:
"The General assembly, in cases not provided for in this
constitution, shall fix the term of office and the compensation of
all officers; but no change therein shall affect the salary of any
officer during his existing term, unless the office be abolished."
(Emphasis added.)
It is now well established that this constitutional provision applies
to appointive offices as well as to elective offices. State, ex rei. McNamara
v. Campbell, 94 Ohio St., 403; Donahey v. Srtate ex rei. Marshall, 101
Ohio St., 473; State, ex rel. Glander v. Ferguson, I48 Ohio St., 58 I.
It is clear that the director of health is appointed for a term of office.
This is true today under existing legislation and was true at the time Dr.
Porterfield was reappointed to the office of director of health by the
Governor on July 15, 1952. Section 154-12, General Code, reads:
332
OPINIONS
"The director of health shall be a physician holding the de-
gree of doctor of medicine from a medical college approved by
the state medical board and who, before assuming his duties, shall
have been licensed to practice medicine in the state of Ohio. He
shall have had experience in pursuing some phase of medical
practice, and additional experience in public health administra-
tion. The tenn of office of the director of health shall be five
years and he shall be removed only for incompetence or gross
neglect of duty. The annual salary of the director shall be twelve
thousand dollars." (Emphasis added.)
.-\s noted before, the only change made in Section 154-12 by the recent
amendment was to acid the last sentence relative to the salary of the
director.
It would seem clear, therefore, that the recent increase in the salary
of the director of health would be a change affecting "the salary of any
officer during his existing term," as applied to the incumbent director,
and thus would be specifically forbidden by Article II, Section 20, of the
Constitution, unless Dr. Porterfield could be said to enter upon a new
trrm of office upon confirmation by the Senate. It is necessary, therefore,
to inquire into the legal status of the director prior to Senate confirmation.
The office of the director of health is created by Section 154-3, General
Code. By the terms of Section 154-4, General Code, the director of health
is appointed by the Governor by and with the advice and consent of the
Senate from a list giving the names and qualifications of not less than
six physicians, which list has been certified to him by the Public Health
Council.
The Senate, of course was not in session in July or August, 1952 to
give its "advice and consent." Such contingency is governed by .Section
12, General Code, which reads:
"When a vacancy in an office filled by appointment of the
governor, with the advice and consent of the Senate, occurs by
expiration of term or otherwise during a session of the senate,
the governor shall appoint a person to fill such vacancy and forth-
with report such appointment to the senate. If such vacancy occurs
when the senate is not in session, and no appointment has been
made and confirmed in anticipation of such vacancy, the governor
shall fill the vacancy and report the appointment to the next ses-
sion of the senate, and, if the senate advise and consent thereto,
such appointee shall hold the office for the full term, otherwise
a new appointment shall be made."
ATTORNEY GENERAL
333
You will note that where a vacancy in an office filled by appointment
by the Governor, with the advice and consent of the Senate, occurs during
a session of the Senate, both the appointment by the Governor and the
advice and consent of the Senate are required in order to fill the vacancy.
On the other hand, when the vacancy occurs when the Senate is not in
session, and no appointment has been made and confirmed in anticipation
of such vacancy, the Governor alone is authorized to .fill the vacancy, sub-
ject to confirmation or rejection by the Senate at its next session. This
latter procedure is commonly spoken of as a "recess appointment."
It will be observed that by the terms of Section 12, the appointee
does not assume a "new" term after confirmation. Instead, this section
provides that if confirmed at the next session of the Senate, the appointee
"shall hold office for the full term." This language would clearly appear
to have reference to the "full term" to which the person had already been
appointed by the Governor, in this case, the term beginning August I,
I952 and ending July 3I, I957 The submission by the Governor of the
name of Dr. Porterfield to the Senate gave full recognition to this fact.
Note that the confirmation is sought not for a term of five years beginning
at some date subsequent to July 13, 1953, but for the five year term be-
ginning August I, I952 and ending July 31, 1957.
Nate further that under Section I2, no additional appointment by
the Governor is required subsequent to the "recess appointment" unless
the Senate at its next session does not "advise and consent thereto," in
which event "a new appointment shall be made."
I am lead, therefore, to the inevitable conclusion that if confirmed
by the Senate on July 3 I, I 953, Dr. Porterfield will not assume a new
term of office, but instead will merely continue as the lawful incumbent
of the "full term" to which he was appointed by the Governor on July
IS, I952.
Some additional reference to the case, State, ex rei. Glander v.
Ferguson, I48 Ohio St., 581, probably should be made in order to illustrate
the fact that such case is completely distinguishable from the facts here
under consideration. That case involved the application of Article II,
Section 20, to the salaries of the tax commissioner and a member of the
public .l1tilities commission. Since the basic facts involving the salaries of
each of these officers was similar, I shall limit my discussion to the status
of the tax commissioner.
334
OPINIONS
The original term of Mr. Glander, as tax comm1sswner, ended on
the second Monday in February I947 It will be noted, therefor, that the
vacancy in such office occurred during a session of the Senate and not,
as here, when the Senate was not in session. The Governor reappointed
Mr. Glander as tax commissioner on June 30, I947 for a term to begin
on July I, I947 and end on the second Monday in February I95I. Such
appointment was confirmed by the Senate that same day.
In the meantime, the General Assembly had enacted legislation which
increased the salary of the tax commissioner, which legislation became
effective on June 23, I947 Thus, both the appointment and the confirmation
of Mr. Glander to the new term occurred subsequent to the effectiYe date
of the legislation increasing the pay of the tax commissioner.
The issue involved in that case was whether during the interim from
the second Monday in February I947, until the new appointment and
confirmation on June 30, 1947, Mr. Glander was occupying the same term
of office as he continued to occupy subsequent to the reappointment and
confirmation. The Supreme Court held that he was not, and held that the
provisions of Article II, Section 20, applied "strictly to the term to which
the officer is appointed or elected, and not to the period constituting the
statutory term of the office."
Had no reappointment occurred at the termination of Dr. Porterfield's
prior term of office which ended July 3I, I952, it would appear that by
the provisions of Section 8, General Code, he would have continued to
hold office until his successor was appointed and qualified. In the Glander
case, it was held that Mr. Glander continued to hold office from the second
Monday in February I947 until June 30, 1947 by virtue of this statute.
Here, however, pursuant to the authority given him by Section 12, General
Code, the vacancy was filled by appointment by the Governor on July 15,
1952. It is clear, therefore, that since August r, 1952 Dr. Porterfield has
been holding office by virtue of the appointment of July I5, 1952 and not,
as in the Glander case, by virtue of holding over from a previous term
of office.
In conclusion it is my opinion:
1. Under the provisions of Article II, Section 20, Constitution, any
change by the General Assembly in the salary of an officer shall not affect
the salary of any officer during his existing term.
ATTORNEY GENERAL
335
2. The director of health, being appointed for a five year term by
virtue of Section I54-12, General Code, is an officer within the purview
of Article li. Section zo, Constitution.
3 By virtue of the provisions of Section 12, General Code, the
governor is authorized to fill a vacancy existing in the office of the director
of health \\"hich arises when the Senate is not in session.
4 \Vhen the governor fills a vacancy in the office of the director
of health by appointment made during the time the Senate is not in session,
such appointee, upon confirmation by the Senate at its next regular session,
does not assume a new term of office within the meaning of Article II,
Section 20, Constitution, but, in accordance with the provisions of Section
I2, General Code, continues to hold the office for the "full term" to which
he was thus previously appointed.
J By virtue of the provisions of Article II, Section 20, Constitution,
the increase in salary provided by the amendments of Sections 2250 and
I54-12, General Code, by the enactment of Amended House Bill No. 94,
of the IOoth General Assembly, effective July 13, 1953, will not be ap-
plicable to the incumbent director of health, even though confirmed by
the Senate after the effective elate of such amendments, in view of the
fact that he now is, and will continue to be the incumbent of a full term of
office of five years from August I, I952 to July 3I, I957
Respectfully submitted,
c. WILLIAM O'NEILL
Attorney General
TUBERCULOSIS HOSPITAL, DISTRICT - FUNDS TO MEET
COUNTY'S APPORTIONED SHARE OF EXPENSE-IMPROVE-
MENTS, REPAJIRS, ADDITIONS TO HOSPITAL- MAY BE
RAISED BY LEVY IN EXCE6S OF TEN MILL LIMITATION-
SErCTIO?\ 5625-15a GC.
SYLLABCS:
Funds for use in meeting a county's apportioned share of the expense of improve-
ments, repairs and additions to a district tuberculosis hospital may be raised by a levy
in excess of the ten mill limitation, as provided in Section 5625-lSa, General Code.
OPINIONS
Columbus, Ohio, July 3 r, 1953
H<Jn. Rodney R. Blake, Prosecuting Attorney
Shelby County, Sidney, Ohio
Dear Sir:
Your request for my <Jpinion reads as follows :
"Shelby County along with several other counties has estab-
lished a district tuberculosis hospital which is located in Allen
C<Junty, Ohi<J. This hospital is in need of improvements, repairs,
and additions. Shelby county contributes annually from the gen-
eral fund for care, treatment and maintenance of Shelby County
patients at this hospital, but a larger sum is needed for the pro-
posed improvement (i.e., apportioned share of Shelby County),
and it will theref<Jre be necessary t<J ask for a levy outside of the
ten mill limitation for such purpose.
"Section 5625-I5a, Ohio General Code, provides in part as
follows:
" 'The board of county commissioners of any county * * *
may declare * * * that the amount of taxes which may be raised
within the ten mill limitation will be insufficient to pr<Jvide an
adequate amount for the support of tuberculosis hospitals, or for
the care, treatment and maintenance of residents of the county
* * *'
"Section 3139, Ohio General Code, defines 'maintenance,
care and treatment' to include proper housing.
"Section 3139-5 w<Juld seem, however, to limit the authority
of the commissioners to borrow money in meeting the expense of
such improvements and repairs.
"We therefore request your opinion as to the following
questions:
"1. For the purpose <Jf repamng, impmving and adding
to a tuberculosis hospital, may the county commissioners proceed
under Section 562 s- I sa?
"2. If not, is it proper to proceed under Section j62j-Ij ?"
Section 3139-5, General Code, to which you have referred, reads m
part:
"The first cost of the hospital, and the cost of all betterments,
repairs and additions thereto, as determined by the board of trus-
tees, shall be paid by the counties comprising the district, in pro-
ATTORNEY GENERAL
portion to the taxable property of each county as shown by their
respective duplicates. To meet the expenses incurred in the pur-
chase of a site or enlargement thereof, and for the erection and
equipment of buildings, or for the purpose of enlarging, improv-
ing or rebuilding thereof, or for purchasing an interest in a
district tuberculosis hospital, the commissioners may borrow such
sum or sums of money as may be apportioned to the county, at a
rate of interest not to exceed five per cent per annum, and issue
and sell the bonds of the county to secure the payment of the
principal and interest thereof. * * *"
337
The proyision in this language that the commissioners may borrow
funds needed to meet the cost of additions,
1
bettennents and repairs at
once suggests that such method of raising funds is discretionary, and that
alternate methods are available. In considering the import of this section
in my opinion N 0. zs86, dated May I4, I953, I said:
'.-\!though this section does not expressly authorize a tax
levy to provide such funds, or to repay the amount borrowed for
such purpose, we find the following language in the section im-
mediately following, i.e., in Section 3139-6, General Code:
" AJl taxes levied by the county commissioners of any county
under the provisions of section 6 (G. C. 3139-5) of this act shall,
'"hen collected, be paid over to the trustees of the district tubercu-
losis hospital upon the warrant of the county auditor, at the same
time that school and township moneys are paid to the respective
treasurers; and the board of trustees shall receipt therefor and
deposit said funds to its credit in banks or trust companies to be
designated by it and said banks or trust companies shall give to
said board, a bond therefor in an amount at least equal to the
amount as so aforesaid deposited; and thereupon said funds may
be disbursed by said board of trustees for the uses and purposes
of said district tuberculosis hospital, and accounted for as pro-
vided in the foregoing sections. * * *'
"From this language it would appear that the commissioners
may either (I) borrow the necessary funds, appropriate them to
the use of the hospital, and pay them over to the trustees at once,
or (2) appropriate such funds in anticipation of the receipt of
proceeds of current levies. * * *"
If the commissioners may raise funds for the purpose above indicated
either by borrowing or by use of the proceeds of current levies, as I con-
clude they may, then I perceive no basis for the supposition that the
language in Section 3139-5, supra, relative to borrowing, is in any essential
respect a limitation on the tax levying power for such purposes, provided,
of course, that the aggregate amounts levied do not exceed the county's
apportioned share.
OPINIONS
The authorization to make a levy in excess of the ten mill limitation
for tuberculosis hospital purposes is found in Section 5625-I5a, General
Code, which reads :
"The board of county commissioners of any county, at any
time prior to September IS in any year, after providing the nor-
mal and customary percentage of the total general fund appropria-
tions for the support of tuberculosis hospitals, or for the care,
treatment and maintenance of residents of the county who are
suffering from tuberculosis at hospitals with which the county
commissioners have contracted pursuant to the authority granted
in section 3I39 of the General Code, by vote of two-thirds of all
the members of said board may declare by resolution that the
amount of taxes which may be raised within the ten-mill limita-
tion will be insufficient to provide an adequate amount for the
support of tuberculosis hospitals, or for the care, treatment and
maintenance of residents of the county who are suffering from
tuberculosis at hospitals with which the county commissioners
have contracted pursuant to the authority grantee\ in section 3 I 39
of the General Code, and that it is necessary to levy a tax in
excess of the ten-mill limitation to supplement such general fund
appropriations for such purposes, but the total levy for this pur-
pose shall not exceed sixty-five one hundredths of a mill.
"Such resolution shall conform to the requirements of section
5625-I5 of the General 'Code and be certified and submitted in
'the manner provided in section 5625-I7 of the General Code.
"If the majority of electors voting on a levy to supplement
general fund appropriations for the support of tuberculosis hos-
pitals, or for the care, treatment and maintenance of residents of
the county who are suffering from tuberculosis at hospitals with
which the county commissioners have contracted pursuant to the
authority granted in section 3 T 39 of the General Code, vote in
favor thereof, the board of county commissioners of said county
may levy a tax within such county at the additional rate outside
the ten-mill limitation during the period and for the purpose
stated in the resolution or at any less rate or for any of the said
years."
In Section 3I39, General Code, we find the following pro\ision:
"* * * By maintenance, care and treatment is meant proper
housing and nutrition, the use of approved and modern medical
and surgical methods of treatment, skilled nursing attention, and
such educational and pre-vocational rehabilitation, or other sen-
ices, as the medical superintendent of each tuberculosis institu-
tion may prescribe. * * *"
\Vhen these provisions are considered in pari materia, the argument
might be advanced in support of a strictly technical view that the "main-
ATTORNEY GENERAL
339
tenance of residents of the county who are suffering from tuberculosis at
hospitals" should include only provision for housing improvements which
are necessary to adequate care of patients who are now actually "suffering
* * * at hospitals," and does not authorize a levy to provide additions for
the purpose of providing facilities for the treatment of an added number
of persons not yet admitted to such hospitals.
It does not appear necessary, however, to resolve this point, for we
may observe that Section 5625-15a, supra, authorizes a special levy not
only for the purpose noted above, but also "for the support of tuberculosis
hospitals, or for the care, treatment and maintenance of residents," etc.
(Emphasis added.) The word "support" is defined, in the sense in which
I deem it here to be used, in \V ebster's New International Dictionary, as
follows:
"Act of providing means of maintenance; maintenance."
In my opinion No. 2877, elated July 22, 1953, I expressed the v1ew
that:
"* * * when the word 'maintenance' is used in connection
with an institution, its meaning is not confined to the upkeep of
buildings unless that meaning is clearly expressed, but that the
word means the support and operation of the entire institution,
including the buildings and all its functions."
Applying a similar view in the instant case, it becomes necessary to
conclude that "support of tuberculosis hospitals" comprehends expenditures
for the "improvements, repairs and additions" mentioned in your inquiry.
Accordingly, in specific answer to your inquiry, I conclude that funds
for use in meeting a county's apportioned share of the expense of improve-
ments, repairs and additions to a district tuberculosis hospital may be
raised by a levy in excess of the ten mill limitation as provided in Section
5625-I5a, General Code.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
340
OPINIONS
SALES TAX AGENT-APPOINTED BY TEASURER OF STATE
- UNACCOUNTABLE SURPLUS OF PREPAID SALES TAX
STAMP FORMS IN HIS POSSE1SSION - OVER AND ABOVE
QUANTITY DELIVERED BY TREASURER OF STATE-LESS
QUANTITY SOLD BY AGENT TO LICENSED VENDORS-
TREASURER OF STATE AUTHORIZED TO CONFISCATE
SUCH SURPLUIS STAMPS-TREASURER OF STATE AND TAX
COMMISSIONER MAY AGREE UPON METHOD OF DISPOSI-
TION-SECTION 5546-7 GC-5739.o6 RC.
SYLLABUS:
Where a sales tax agent, appointed by the Treasurer of State, pursuant to Sec-
tion 5546-7, General Code, Section 5739.06, R. C., has in his .possession an unaccount-
able surplus of prepaid sales .tax stamp forms, over and above the quantity delivered to
such agent by the Treasurer of State, less the quantity sold by the agent to licensed
vendors, the Treasurer of State is authorized to confiscate such surplus stamps, to be
disposed of in such manner as may be agreed upon between the Treasurer of State
and the Tax Commissioner.
Columbus, Ohio, July 31, 1953
Hon. Roger vV. Tracy, Treasurer of State
Columbus, Ohio
Dear Sir:
Your letter of request for my opinion refers to a 1941 request from
the then Auditor of State for an opinion by the Attorney General concern-
ing the right of the Auditor of State to formulate a system of accounting,
authorizing examiners from that office to confiscate prepaid tax stamp
forms in the custody of sales tax agents and county treasurers, which
forms could not be identified as a portion of the prepaid tax stamp inven-
tory which the records of the Treasurer of State indicated the particular
agent was charged with possessing.
It was held in Opinion No. 4004, Opinions of the Attorney General
for 1941, page roo8, that there is no provision of law authorizing the
Auditor of State to confiscate prepaid tax stamps found in the possession
of a sales tax agent, even though such prepaid tax stamps are determined to
be illegally in the possession of such agent.
ATTORNEY GENERAL
341
Y<mr letter of request emphasizes the point that since 1941, the num-
ber of stamps so held has shown a marked increase so that at the present
time almost every sales tax agent has in his possession more stamps than
have been charged to his account. In order to protect the interest of the
State you have requested a re-examination of the problem and advice as
to what steps may be taken, if any, to authorize destruction of such surplus
stamps or to return them to the Treasurer of State for cancellation.
I concur in the reasoning set forth in the 1941 opinion as to lack of
power of the State Auditor to confiscate such stamps. At page 1014 my
predecessor said :
''However, if it be assumed for the purposes of argument that
the possession of the stamps by the agent is illegal, such fact
alone would not give to the auditor of state the authority to con-
fiscate the stamps so illegally possessed. It must be remembered
that public officials have such authority and powers as have been
given them by the statutes creating their offices."
After examining the sections of the code dealing with the duties of
the Auditor of State with reference to auditing accounts and transactions
of the Treasurer of State, my predecessor found no express or implied
authority to confiscate such surplus stamps.
It was remarked at the close of the opinion that when in the course
of an examination of the accounts of an agent of the Treasurer of State
it is determined that the agent had violated or is violating the provisions
of statute, the Auditor of State should report such fact and the evidence
thereof "not only to the Treasurer of State but to the county prosecuting
attorney so that they may take such steps as may be required of them by
law."
Section 5546-7, General Code, Section 5739.06, R. C., defines the
powers and duties of the Treasurer of State, the county treasurers, and
sales tax agents with respect to prepaid retail sales tax stamps. This section
provides that all prepaid tax stamps procured by the Department of Taxa-
tion shall be delivered to the Treasurer of State, who shall execute dupli-
cate receipts therefor for the department and the Auditor of State.
Section 5546-7, General Code, further provides:
"* * * The treasurer of state shall be accountable for all
prepaid tax receipts received and unsold by him. He may appoint
342
OPINIONS
agents for the sale of prepaid tax receipts at such places in the
state as he may deem expedient, and require of each such bond
or other security as he may deem necessary * * *. The treasurer
of state shall deliver to each county treasurer and to each agent,
such number and denomination of prepaid tax receipts as in his
judgment may be required for sale in each county * * * and 11W}'
prescribe such regula,fions and forms of receipts and reports as
he Jn<J,y deem necessary and advisable for the transaction of the
business of selling such pre paid tax receipts. * * * Each county
treasurer and each agent of the treasurer of state, shall pay on the
first business day of each week to the treasurer of state all moneys
arising from the sale of prepaid tax receipts by him during the
preceding week, together with a report showing all sales, the
names of the purchasers and the aggregate face value purchased
by each, which the treasurer of state shall include in his monthly
report***." (Emphasis added.)
It will be noted that the Treasurer of State appoints agents whose
function it is to sell prepaid tax stamps to licensed vendors. These agents
act for and on behalf of the Treasurer of State in this regard. A sales tax
agent receives only such number and denomination of tax stamps as the
Treasurer of State decides to allot him. The Treasurer of State may pre-
scribe "such regulations and 'forms of receipts and reports as he may deem
necessary." The sales tax agent has a duty to account weekly for the
moneys received from vendors who purchased the tax stamps. Thus it
is apparent that the Treasurer of State has the power to exercise a great
deal of control over the conduct and activities of the sales tax agents.
Section 5546-7, General Code, places the Treasurer of State under a
duty to account for all prepaid tax stamps received and unsold by him.
Section 5546-5, General Code, Section 5739.05, R. C., provides that the
Tax Commissioner has the duty of enforcing and administering the pro-
visions of the Ohio Retail Sales Tax Act. Since the Treasurer of State
must account in the manner aforesaid, he most certainly has the power
to order his own agent to return to him the unaccountable surplus of pre-
paid sales tax stamps still in his
An agent's possession of sales tax prepaid stamps m excess of the
quantity delivered to such agent by the Treasurer of State, less the quantity
sold by the agent to licensed vendors, is clearly an irregularity. As pointed
out in the 1941 opinion, such a situation could arise through the neglect
or failure of a licensed vendor, for some reason, to take the prepaid tax
stamps purchased by him. Yet these sales tax stamps are not the agent's
ATTORNEY GENERAL
343
to do with as he pleases. As agent, he occupies a position of trust, and
accountability to his principal. It is my opinion that you, as the principal ..
are given ample authority by Section 5546-7, General Code, to require
sales tax agents to return to you all of such surplus stamps.
Since the Tax Commissioner is charged by Section 5546-5, General
Code, with the enforcement and administration of the Sales Tax Act, and
since he has been given the power to adopt and promulgate rules and regu-
lations necessary to carry out the provisions of the Sales Tax Act, and
since such stamps are delivered to you by the Tax Commissioner, I would
advise you to confer with him as to the particular method to be utilized
in destroying, cancelling, or otherwise disposing of such tax stamps after
they have been called in by your office.
Accordingly, it is my opinion that where a sales tax agent, appointed
by the Treasurer of State, pursuant to Section 5546-7, General Code,
Section 5739.06, R. C., has in his possession an unaccountable surplus
of prepaid sales tax stamp forms, over and above the quantity delivered
to such agent by the Treasurer of State, less the quantity sold by the agent
to licensed vendors, the Treasurer of .State is authorized to confiscate such
surplus stamps, to be disposed of in such manner as may be agreed upon
between the Treasurer of State and the Tax Commissioner.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
R!ECORDER, GOUNTY-TORRENrS ACT-L,IEN CERTIFICATE
- SEJCT'ION 1359-4 GC - LEGAL DESCR,IPTION OF LANDS
SOUGHT TO BE 'CHARGED - RECORDER SHOULD NOTiE
CERTIFICATE UPON :RtEGISTEREID CERTIHCATE OF TITLE
OF PARCELS-SECTION 8572-89 GC-P.EE PROVIDED IN SEC-
TION 1359-4 GC.
SYLL\BUS:
The county recorder, upon receipt of a lien certificate submitted to him under the
provisions of Section 1359-4, General Code, in instances in which such certificate con-
tains a legal description of the lands sought to be charged, should note such certificate
in the case of lands registered under the Torrens law upon the registered certificate
of title of the parcels concerned, as provided in Section 8572-89, General Code; and
the fee of the county recorder for such senices is that provided in Section 1359-4,
General Code.
344
OPINIONS
Columbus, Ohio, July 31, 1953
Ron. Frank T. Cullitan, Prosecuting Attorney
Cuyahoga County, Cleveland, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"The recorder of this county has received from the Division
of Aid for the Aged four certificates of lien together with a tender
of a fee of twenty-five cents for each certificate. It seems that the
real property involved has been torrenized and the recorder has
advised the Division of Aid for the Aged that inasmuch as such
certificates do not conform with the provisions of the Torrens
law the respective liens are not memorialized on the torrens regis-
try and as a consequence the Division of Aid f.or the Aged does
not have good liens on such property.
"The lien certificates have been filed 111 the recorder's office
in his general records but we have grave doubts as to whether or
not effective liens have been imposed upon the respective parcels
of torrenizecl lands and we respectfully submit for your legal
opinion the following questions :
"r. Is the county recorder required under the facts stated
to note the certificates of lien on the torrens registry pertaining
to each of said parcels?
"2. Should not the Division of Aid for the Aged submit its
trust deeds or mortgages in the form required by the Torrens law
together with a fee prescribed by the Torrens law to the County
Recorder?
"3. \.Yhat, if any, steps should the County Recorder take
other than filing the said lien certificates in his general records
(apart from the torrens registry) in order to protect the interests
of the Division of Aiel for the Aged?
''As there may be intervening rights by judgment or other
lien holders before the trust or mortgage deeds to the Di,ision of
Aid for the Aged are placed on the torrens registry for each of
the respective parcels may we have your opinion at the earliest
possible elate."
Provision for the attachment of a lien on real property of recipients
of aiel to the aged, and for the legal effect of such language, is found in
Section I 359-4, General Code, which reads in part as follows :
ATTORNEY GENERAL
"Aid paid to any recipient under sections of this act shall
become and constitute a lien as hereafter provided and shall re-
main a lien until it is satisfied.
''\Vhen aiel is granted to any person under this act the name
and residence of the recipient and his or her spouse, the elate
\Yhen aiel is granted, the legal description of all real estate owned
by the recipient and his or her spouse, and such other information
as the division of aid for the aged shall require, shall be entered
upon a certificate, signed by the recipient and his or her spouse
the form of which shall be prescribed by the division. The division
shall cause such certificate, or a certified copy thereof, to be filed,
recorded and indexed in the real estate mortgage records in the
office of the county recorder in every county in the state in which
real property of the recipient or his or her spouse may be situated,
or in which he may reside. From and after the time of filing of
such certificate in the office of the county recorder the lien herein
imposed shall attach to any and all real property of the recipient
or his or her spouse presently owned or subsequently acquired,
including point tenancy interests, in any county in which such
certificate is filed for any and all amounts of aid which thereafter
may be paid, and shall remain such lien until it is satisfied.
"C pon the filing of such certificate in the office of the county
recorder all persons shall thereby be charged with clue notice of
the lien and the rights of the division thereunder.
'"The several recorders shall keep a record of every certifi-
cate so filed showing its elate, the time of filing, the name and
residence of the recipient or his or her spouse, and any releases,
waivers or satisfaction of the lien. The fee for filing and record-
ing each such certificate shall be twenty-five cents, which amount
shall be payable by the ricipient." * * *
345
As pointed out in my opinion No. 939, Opinions of the Attorney
General for 1951, p. 789, the county recorder is required to keep five sets
of records, as follows :
I. A record of deeds.
2. A record of mortgages.
3
A record of powers of attorney.
4
A record of plats.
J
A record of leases.
In that opinion I concluded, as indicated m the third paragraph of
the syllabus:
"3. The certificate of lien or certified copy thereof provided
OPINIONS
for by section 1359-4, General Code, must be indexed and re-
corded m the set of records designated real estate mortgage
records."
In the instant case, however, we are concerned with the attachment
of liens on real property, owned by recipients of aid, which has been
registered under the provisions of the so-called Torrens law, i.e., Section
8572-r et seq., General Code. This act provides in some considerable
detail for a special method of registration of land titles and numerous
special procedures in the transfer of titles and the conveyance of estates
less than a fee simple in registered land. Some appreciation of the pur-
pose and the general scheme of such special system of the registration
of land titles and the effect of the special provisions of the Torrens
Law with relation to general provisions of law, can be gained from the
following passage from Judge Matthias' opinion in Curry v. Lybarger,
T 33 Ohio St., 54 (58, 59) :
"* * * The purpose of the so-called Torrens system is inter-
esting and important. It has thus been stated in 5 Thompson on
Real Property. 192, Section 4154:
'''The objects of the system are the creation of an indefeas-
ible title in the registered owner, simplification in the transfer of
land, certainty and facility in the proof of title by reference to a
certificate issued by a government official made conclusive by law
and finally the saving to the community of the cost of a new
examination of title in connection with each transfer or transac-
tion affecting the land. * * * "One of the primary and funda-
mental purposes of the registration of land under the Torrens
system is to secure to the owner an absolute, indefeasible title,
free from all incumbrances and claims whatsoever, except those
mentioned in the certificate of title; and, so far as it is possible, to
make the certificate issued to the owner by the court, absolute
proof of such title." '
"A very concise and pertinent statement of the purposes
of the system is that of the Supreme Court of \Vashington in
the case of Brace v. Superior Land Co., 65 \Vash., 68r, 688,
1 r8 P., 910, which is as follows:
" 'Our construction of this section is in keeping with the
obvious purpose of the Torrens Act to create an absolute pre-
sumption that the certificate of registration in the registrar's
office at all times speaks the last word as to the title, thus doing
away with secret liens and hidden equities. This is accomplished
by t.he simple plan of making the act of conveyance and the fact
of notice by record simultaneous in performance and effect. The
ATTORNEY GENERAL
Torrens system makes this simultaneous quality inevitable by
making both conveyance and notice of record perfom1able, and
performable only, by the one act of registration. This is the dis-
tinctive feature, the vital principle of the Torrens system. It is
the very essence of the plan. For the courts to refuse to recognize
and enforce it would be to emasculate the law, and, by construc-
tion, make it not the Torrens system of land titles, but a mere
change in 'the form of the record, a mere modification of the re-
cording act.'
"The Torrens Act, therefore, cannot be treated as a mere
modification of the recording act. Among other things, it specifies
the procedure essentia:l to the vesting of assessment liens upon
registered lands, and in that respect the language employed is
clear and mandatory. The authority to levy special assessments
is conferred only 'by statute, and the validity of such assessments
is conditioned upon compliance with the requirements of these
statt11tory provisions. Additional requirements are prescribed by
the provisions of the Torrens act and made prerequisite to a valid
imposition of such lien upon registered land.''
347
The impressment of registered land with a lien based on a mortgage
or trust deed, and the procedure for recording and registration of such
liens, is provided for in Sections 8572-44 and 8572-45. These sections
are as follows :
Section 8572-44:
"Vlhenever any registered land or estate or interest therein
is intended to be charged or made security in favor of any mort-
gagee, the mortgagor shall execute a mortgage deed in any form
recognized by law; and whenever any such land is intended to
be charged with, or made security for the payment of an annuity,
rent charge, sum of money, or any other charge or lien, in favor
of any incumbrance or lien holder, the encumbrancee shall exe-
cute an instrument Of encumtbrance in any form recognized by
law. Every instrument aforesaid shall contain a pertinent descrip-
tion of the land and an accurate statement o.f the estate or interest
intended to be mortgaged, charged or encumbered. and when
duly registered shall operate as a lien or charge upon and bind
the land covered thereby for the period ending twenty-one years
after the maturity of the last debt or obligation secured thereby;
and 'thereafter as to subsequent bona fide purchasers, mortgagees
and other persons dealing with such land for value, the lien of
such mortgage shall be deemed to have expired ; the mortgage
creditor, however, shall have the right, at any time within one
year next preceding the expiration of such period of hventy-one
years, to refile in 'the recorder's office the mortgage or a sworn
copy thereof, together with an affidavit thereon, stating the
OPINIONS
amount remaining due thereon and the due date thereof, as ex-
tended if it be extended, and thereupon, such refiling. after reg-
istration has been duly made upon the certificate of title, shall
operate as a lien or charge upon and bind the land then covered
thereby only for a period of twenty-one years after the expira-
tion of such period of twenty-one years; provided, however, that
as to mortgages which are reg-istered at -t:he time of the effective
date of this act, the constructive notice of their registration shall
not be deemed to have expired in any event prior to two years
from and after the effective elate of this act. The recorder is
hereby authorized and directed to cancel any such mortgages
which have not been refilecl as herein provided.
"A trust deed in vhe nature of a mortgage shaH be deemed
to be a mortgage and :he subject to the same rules as a mortgage,
for all purposes under this act."
Section 8572-45:
"On the filing in the recorder's office of such mortgage,
incumbrance, or other instrument intended to create a lien upon
or charge against such registered land, and the production of the
owner's duplicate certificate of title, and it appearing to the
recorder that the person intending to create the lien or charge set
forth in such instrument, has such right, and that the person
in whose favor the same is sought to be created is entitled by the
terms of this act (G. C. sec. 8572-r to 8572-n8) to have the same
entered as a memorial upon the register, the recorder shall enter
upon the proper folium of the register, where such title is reg-
istered and also upon the owner's duplicate certificate of title, a
memorial accurately stating the purport and nature of the lien or
charge created, the date of filing the instrument and its file num-
ber. The recorder shall also note upon the instrument filed with
him the volume and folium of the register where the memorial
is entered. The recorder shall also at any time after registration
of a mortgage, upon the request of the mortgagee and the tender
of the proper fee therefor, make and deEver to the mortgagee a
duplicate of the owner's registered certificate of title but having
endorsed, stamped and printed thereon in large letters the words
'Mortgagee's Duplicate Certificate' instead of 'Owner's Duplicate
!Certificate,' and shall note on the registered certificate of title the
fact and elate of making and delivering such duplicate and to
whom delivered. And in case of the loss or destruction of
such mortgagee's duplicate' certificate another may be issued to
him in like manner as provided in Section twenty-eight (G. C.
Sec. 8572-28) in reference to the loss or destruction of an own-
er's duplicate certificate."
In Sections 8572-50 and 8572-51, General Code, provision 1s made
for the impressment of registered lands with liens resulting from judg-
ATTORNEY GENERAL
349
ments or decrees of courts of record and inferior courts; and in Section
8572-54 provision is made for the filing and registration of mechanics'
or material man's or laborer's liens. In Section 8572-68 provision is
made for the filing and registration of all claims or liens against registered
lands for which express provision is not otherwise made in the act. This
section is as follows :
"Any person desiring to assert any interest in or claim or lien
against registered Janel adverse to the title of any registered
owner, and not shown upon the register when no provision is by
this act (G. C. sees. 8572-1 to 8572-rr8) made for registering
the same in the recorder's office, may make affidavit thereto,
setting forth his interest, right, title, claim, lien, charge or de-
mand, and how and under whom derived, and the character
and nature thereof. The affiant shall state his full name, place of
residence and postoffice address and shall designate the place
within the state at which all notices relating thereto may be served
upon him; or if he be a non-resident cf the state, the name,
re,;idence and postoffice address of some person residing within
the state upon whom service may be made as his agent and by
which service he will be bound the same as if made upon the
claimant within the state. Upon the filing of such affidavit
in the recorder's office the recorder shall enter forthwith a memo-
rial thereof, upon the registered certificate of title, stating the
exact time when said affidavit was filed and the purport and
nature thereof."
.-\t this point the specific question presented is whether or not all
of these statutory requirements are applicable to liens accruing by opera-
tion of law in favor of the State of Ohio.
It is first to be remembered that "the state 1s not bound by the
terms of a general statute, unless it be so expressly enacted." State ex rel.
Parrott v. Board of Public Works, 36 Ohio St., 409 However, in the
matter of the effectiveness of all liens asserted against registered lands,
we find the following provisions in Section 8572-89, General Code.
"No statutory or other lien of whatever kitui or nature
except taxes and assessments, lawfully levied, and liens, claims
or rights arising or existing under the laws or constitution of
the United States prior to October 4, 1933, shall affect the title
to regist!'recl land, until after the same is noted upon the reg-
istered certificate of title." (Emphasis added.)
The use of the expresion "other lien of whatever kind or nature,"
followed by a limited list of exceptions, makes it abundantly clear that
350
OPINIONS
the Legislature by this language intended to comprehend all liens of
whatever kind without regard to the identity of the parties asserting
them, including the state of Ohio, and I conclude that this language is
sufficiently broad to constitute such an express enactment that the state
is bound by it within the meaning of the rule stated in the Parrott case,
supra.
At this point we are confronted with the. question of whether the
later enactment of Section 1359-4, General Code, has the effect of repeal-
ing by implication the provisions of Section 8572-89, General Code.
It is a settled rule of statutory construction that the later enactment
of a general statute will not have the effect of repealing by implication
any of the inconsistent provisions of a prior existing special statute unless
the intention to effect such repeal is plainly evident from the provisions
of such later general enactment. In the instant case I perceive no such
intent in the provisions of Section 1359-4, General Code, especially when
it is considered that the Legislature, in the enactment of this section, must
be presumed to have been aware of the special provisions theretofore
enacted in Section 8572-89, General Code.
As stated by Judge Day in Gough Lumber Co. v. Crawford, 124
Ohio St., 46, it is necessary "to so construe statutes and parts thereof that
the same may be reconcilecl and held harmonious, if this can be done and
their purpose be ma:intained." In that case the court was concerned with
the operation of certain inconsistent provisions of the mechanics' lien law
and the Torrens law, and the conclusion was reached that the requirements
of both statutes must be met in order to impress the registered land con-
cerned with a valid lien. In the instant case it is readily possible to recon-
cile the two statutes involved and to give full effect to each. In this connec-
tion it must be noted that although Section 1359-4, General Code, requires
the division ofaid for the aged to cause a certificate of lien or a certifiecl
copy thereof "to be filed and recorded in the real estate mortgage records
in the office of the county recorder," it may be readily concluded that by
reason of the necessity of giving effect to the provisions of Section 8572-Sg,
General Code, requiring such certificate to be "noted upon the registered
certificate of title," it is easily possible to construe the expression "real
estate mortgage records," as used in Section 1354-4, General Code, to in-
clude the register of land titles maintainecl by the county recorder under
the provisions of the Torrens law.
ATTORNEY GENERAL
351
Accordingly, with respect to your first question, it is my opinion that
the county recorder i:s required to note the certificates of lien, filed under
the provisions of Section 1359-4, General Code, on the Torrens Tegistry
pertaining to such parcel of land involved.
It should be observed at this point, however, that although Section
r 359-4, General Code, provides for the inclusion in a certificart:e of lien a
"legal description of all real property owned by the recipient," it provides
also that the lien "hereby imposed shall attach to * * * property * * *
subsequently acquired." Quite obviously if property be acquired by a
recipient subsequent to the accomplishment of such certificate, no legal
description of such could be included therein. Nonetheless the statute
clearly provides for the attachment of a lien in such case.
It is quite clear that the provisions of Section 8572-89, supra, could
not be complied with in the case of certificart:es which contain no !ega,!
description of the registered lands concerned, since such compliance is
dependent upon the possibility of identifying the parcel concerned :by refer-
ence to the location in the recorder's records of the registered certificate of
title pentinent thereto. I find nothing in any of the statutes here involved
which would impose on the recorder the duty, ir. the case of registered
13Jilds "subsequently acquired" by a recipient, to search out such instances
and to note the certificate of lien on the registered certificate of title thereof.
Accordingly, I conclude that in the case of registered lands acquired by a
recipient sHbsequent to the accomplishment of the lien certificate provided
for in Section 1359-4, General Code, and which lien certificate contains
no description thereof, there is no duty on the recorder to note such lien
on the registered certificate of title as provided in Section 8572-89, General
Code, and tha,t under the provisions of such section the mere filing of a
lien certificate with the rewrder, as provided in Section 1359-4, General
Code, would not affect the title to such registered land.
In your second question you suggest that the division of aiel for the
aged should be required to submit trust deeds ami morrtgages in the form
required by the Torrens law and to pay the fee presoribed by that statute
to the county recorder. Here, again, we may recall the rule in the Parrott
case, supra, that the sta,te is not bound by the general statute unless ex-
pressly so enacted. It wiJ,J be observed that the e.xpress enactment in Sec-
tion 8572-89, General Code, which we have already concluded was appli-
cable to the state, provides that all statutory and other liens be "noted
OPINIONS
upon the registered certificate of title." I find no such express and all-in-
clusive provision in the Torrens law with respect to the form in which
liens are to be made up. Th<llt is to say, there is no express provision in the
Torrens law relative to the form in which liens and other claims are to be
st<llted which would indicate that such required formality applies in the
case of the state. Such being the case, I conclude, by reason of the rule
staJted in the Parrott ca:se, supra, that the provisions of Section 1359-4,
General Code, relative to the form of the certificate of lien in cases in which
such certificate contains a legal description of the land sought to be charged,
are applicable even though the lands sought to be are registered.
In the matter of .fees to be paid to the county recorder, I find in Sec-
tion 8572-n2 a fairly complete schedule of fees to be charged by that officer
for the various services required of him in connection with of
titles and the notation on the registered certificates of title of mortgages,
leases, liens, releases, etc. Nowhere in this section, however, is there any
reference made to statutory liens accruing in favor of the state nor is there
any express provision in this section that such fee schedule shall be appli-
cable in the case of claims asserted by the state. This section does, however,
contain the following provision :
"The recorder shall receive the following fees : * * *
"For filing, recording and indexing any papers or instru-
ments other than those provided, * * * the same fees as
may be allowed by law for like services."
In this situation, because the fee schedule provided in the Torrens
law is not made especially applicable to the filing, etc., of liens in favor of
the state, I conclude that the fee of 25 provided in Section 1359-4, General
Code, is the only fee provided by law for the services of the county recorder
in noting such lien upon the registered certificate of title in the case of
registered lands.
Accordingly, in specific answer to your inquiry, it is my opinion that
t:he county recorder, upon receipt of a lien certificate submitted to him
under the provisions of .Section 1359-4, General Code, in instances in
which such certificate contains a legal description of the lands sought to
be charged, should note such certificate in the case of lands registered
under the Torrens law upon the registered certificate of title of the parcels
ATTORNEY GENERAL
353
concerned, as provided in Section 8572-89, General Code; and the fee
of the county recorder for such services is that provided in Section I359-4,
General Code.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
TURNPIKE PROJECT- GRADE SEPAR:\TION- INTERSEC-
TION, TURNPIKE A.ND PUBLIC ROAD-OVERPASS-STRUC-
TURE-PAVED SURFACE-PART OF SUCH PROJBCT---'MAIN-
TENA.NCE AND REPAIR RESPONSIBILITY OF TURNPIKE
COMlviiSSI0:0;.
SYLLABUS:
\Vhere. in the construction of a turnpike project, it becomes necessary to effect a
grade separation at the intersection of such turnpike and a public road, whereby such
public road is carried over the turnpike by means of an overpass, the paved surface
on such overpass does not become such a part of the turnpike project as defined in
Section 1204, General Code, as to require such paved surface to be kept in maintenance
and repair under the provisions of Section 1218, General Code; but the structure by
which such pa\ed surface is supported is a part of such project and its maintenance
and repair is the responsibility of the turnpike commission.
Columbus, Ohio, July 31, 1953
Hon. Thomas F. Dewey, Prosecuting Attorney
Sandusky County, Fremont, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"Mr. L. R., Engineer of Sandusky County, Ohio, has re-
quested me to obtain an opinion from your office concerning the
following question:
"Mr. R., as Sandusky County Engineer, has a duty to main-
tain and dean counrty roads, about thirty of which will go over
the new turnpike w:hich wiU be. constructed through Sandusky
County. According to present plans the approaches to the over-
passes will be constructed at a 5 degree grade, which will neces-
sitate cleaning and ice removal during icy and snowy weather.
354
OPINIONS
"Section 5537.17 (1218) of the General Code of Ohio states
as follows: 'Each turnpike project when constructed and open to
traffic shall be maintained and kept in good condition and repair
by the Commission.'
"Section 5537.0 ( 1204) Paragraph B says 'Turnpike proj-
ect means any express highway, super highway, or motor way
constructed under Sections 5537.01 to 5537.23 inclusive, of the
Revised Code, at such location as is approved by the Governor,
including all bridges, tunnels, overpasses, underpasses, inter-
changes, entrance plazas, approaches, etc.'
''Under the statutes, who has the duty to clean, maintain
and keep in repair the approaches and the overpass bridges on
the county roads going over the turnpike? Does the county engi-
neer have the duty to maintain the approaches and bridges over
the county roads, or are the approaches and :bridges on the county
roads going over the turnpike included in the definition of the
turnpike project, which under Section 5537.17 shall be maintained
and kept in good condition and repair by the Turnpike Com-
mission?"
Paragraph (b) of Section 1204, General Code. to which you refer in
your inquiry, reads as follows:
'(b) The word 'project' or the words '.turnpike project'
shall mean any express highway, super-highway or motor way
constructed under the provisions of this act, at such location as
shall be approved by the governor, including all bridges, tunnels,
overpasses. underpasses, interchanges, entrance plazas, ap-
proaches, toll houses, service stations, and administration, storage
and other buildings and facilities which the commission may deem
necessary for the operation of the project, together with all prop-
erty, rights, easements and interests which may be acquired by the
commission for the construction or the operation of the project.
Each project or turnpike project shaJI be separately designated
by name or number and may be constructed or extended in such
sections as the commission may from time to time determine."
(Emphasis added.)
It would 1be technically possible, of course, to construct and operate
a limited access toll turnpike without a grade separation at numerous
points of intersection of such turnpike with roads open to the public use
without charge, but this could not be clone without destroying the use
of such public roads at such intersection. It is quite clear, of course, that
the Legislature did not intend :to permit such destruction, and thus it may
be said that it would be impossible lawfully to construct and operate a
toll turnpike without such grade separation. In this sense it could be
ATTORNEY GENERAL
355
said :that any overpass which carries a public road over such turnpike is
"necessary for the operation of the project." Such being the case it fol-
lows that such overpass is a part of a turnpike project which, under
the provisions of Section 12r8, General Code, is required to "be mam-
tained and kept in good condition and repair by the commission." In this
situation the next question to be examined is whether the paved, or
traveled, surface of a public road carried ever a turnpike project by
means of an overpass is itself a part of the overpass.
\\"hen such an overpass is considered solely as a physical structure
and when it is considered solely from the engineering viewpoint. it is
difficult to conceive it to be other than a single physical entity. In seeking
to ascertain the legislative intent on the question of responsibility of
maintenance, however, it may well be borne in mind that the sole purpose
of the structure is to make possible the relocation, in point of elevation,
of a separate and complete structure previously existing, i. e., the paved
portion of the public road concerned. By means of such overpass such
paved portion has been removed from direct contact >vith the supporting
soil and now is borne by an artificial structure with only indirect contact
with the earth. Such paved portion is, however, so reconstructed as again
to become an integrwted part of the traveled surface of a public road, and
the operation may thus be regarded, in a very real and definite sense, as
the reconstruction of a previously existing physical entity which is separate
and distinct from the newly created structure which supports it.
In the matter of the structure upon which the paved portion of public
road is supported, we can easily recognize a new creation which quite
clearly is necessary, by requirement of statute, to the construction and
operation of the toll road. Such being the case the responsibility for the
maintenance of such supporting structure is clearly that of the com-
mission under the provisions of Section 1218, General Code.
In the case of the paved portion of the public road, however, it will
be observed that although its relocation, and its continued support in the
plane where relocated, is necessary to the operation of the turnpike, its
maintenance in good repair is not so necessary, such maintenance being
necessary only to the continued operation of the public way.
it should ,be recalled that the maintenance of the paved
surface of the public road, prior to such relocation, was the responsibility
OPINIONS
of the public authorities concerned, and that this, in the case of public
roads, represented the established policy of the state. In the provisions
in the turnpike act defining turnpike projects and fixing the responsibility
for their maintenance, I perceive no clear intent to require the
commission to assume an expense which had theretofore been met by
the expenditure of public funds. Even if the statute could be conceded
to be ambiguous in this respect, it would he necessary to resolve such
ambiguity in harmony with the established policy of the state. 37 Ohio
Jurisprudence, 677, Section 372. I must conclude, therefore, that although
the commission has :the responsibility to maintain the supporting struc-
tures by which a public road is carried over a turnpike project, it has no
such continuing duty as to the paved portion of such road which has thus
been relocated and reconstructed by the commission.
This conclusion does not, however, entirely dispose of the \\hole
question here presented. In Section 1206, General Code, ,,.e find the
following provision:
"The commission shall have authority to construct grade sep-
arations at intersections of any turnpike project with public roads,
state highways and railroads and to change and adjust the lines
and grades of such public roads, state highways, railroads and
public utility facilities, which change and adjustment of lines and
grades of public roads and highways shall he subject to the ap-
proval of the director of highways so as to accommodate the same
to the design of such grade separation. The cost of such grade
separation and any damage incurred in changing and adjusting
the lines and grades of such roads, highways, railroads and public
utility facilities, shall be ascertained and paid by the commission
as a part of the cost of such turnpike project."
Moreover, in Section 1218, General Code, it is provided:
"All public or private property damaged or destroyed 111
carrying out the powers granted by this act shall be restored or
repaired and placed in its original condition as nearly as prac-
ticable or adequate compensation made therefor out of funds pro-
vided under the authority of this act."
It can scarcely be doubted that where it has been found necessary to
carry a public road over a turnpike project by means of an overpass so
as to create a substantial grade, which grade did not previously exist, it
is not practicable to restore such public road absolutely to its original
condition. It is clear, too, rt:hat if it be asserted that the creation of such
grade on the public road is such as to cause "damage incurred in changing
ATTORNEY GENERAL
357
and adjusting the lines and grades of such roads," the question of fact
thereby raised must be determined by the parties in particular cases. The
pecuniary amount of such damage, if any, should "be ascefll:ained and paid
by the commission as a part of the cost of such turnpike project" as pro-
vided in Section Izo6, General Code .
. \ccordingly, in specific answer to your inquir.y, it is my opinion that
where, in the construction of a turnpike project, it becomes necessary
to effect a grade separation at the intersection of such turnpike and a
public road, whereby such public road is carried over the turnpike by
means of an overpass, the paved surface on such overpass does not become
such a part of the turnpike project as defined in Section 1204, General
Code, as to require such paved surface to be kept in maintenance and
repair nnder the provisions of Section I2I8, General Code; but the struc-
ture by which such paved surface is supported is a part of such project
and its maintenance and repair is the responsibility of the turnpike com-
mission.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPINIONS
2934
r. COUNTY COMMISSIONERS, BOARD OF- PETITION TO
. DETACH TERRITORY,-JURISDICTION SPECIAL-CON-
DITIONED UPON CONSENT AT TIME OF BOARD'S OR-
DER OF DETA<CHMENT-MAJORITY OF FREEHOLDER
ELECTORS CONCERNED - FREEHOLDERS MUST BE
ELECTORS OF ::\1UNICIPALITY- FREEHOLDER ELEC-
TORS HAVE RIGHT PRIOR TO BOARD'S ORDER OF DE-
TACHMENT TO WITHDRAW CONSENT-SECTION 3577
GC.
2. CONVEYANCE - INCONSIDERABLE FRACTIONS OF
LAND-SEVERAL INDIVIDUALS-TO PROMOTE OR IM-
PEDE PROCEEDINGS TO DETACH TERRITORY FROM
MUNICIPAL CORPORATION-INEFFECTIVE TO CONSTI-
TUTE INDIVIDUALS FREEHOLD ELECTORS-MOTIVE A
QUESTION OF FACT TO BE DETERMINED BY COUNTY
COMMISSIONERS-SECTION 3577 GC.
SYLLABUS:
1. The jurisdiction of a board of county commissioners, under Section 3577, Gen-
eral Code, is special and is conditioned upon the consent at the time of the board's
order of detachment, of a majority of the freeholder electors concerned: such free-
holders must be electors of the municipality concerned; and such freeholder electors
haye the right, at any time prior to the board's order of detachment, to withdraw such
consent.
2. The conveyance of inconsiderable fractions of land to several individuals solely
ior the purpose of promoting or impeding proceedings to detach territory from a
municipal corporation under the provisions of Section 3577, General Code, is ineffective
to constitute such individuals "freehold electors;" and the question of whether a par-
ticular conveyance was made for such purpose, or was made in good faith, is a question
of fact to be determined in the first instance by the county commissioners.
Columbus, Ohio, August J 1953
Hon. \Villiam Ammer, Prosecuting Attorney
Pickaway County, Circleville, Ohio
Dear Sir:
I have your request for my opinion relative to certain proceedings
to detach territory from a municipal corporation. From an examination
ATTORNEY GENERAL
359
of the factual situation you have described it appears that the following
questions are presented :
"r. Do the words 'freehold electors' as appearing in Sec-
tion 357i of the General Code of Ohio indicate that the signers
of the petition must be electors of the municipality?
"2. Under the provision of Section 3577 of the General
Code of Ohio is a hearing by the County Board of Commission-
ers on said petition necessary or proper to determine if there is a
majority of the freehold electors asking for the detachment?
"3. May names be withdrawn from an original petition for
detachment if such petition has been submitted to the Board of
County Commissioners and 1City Council but before action is
taken by either body?
"4. At what point in the proceedings can it be determined
as to the number required for a majority of the freehold elec-
tors?
"5 After the initial petition is filed, can the number of free-
hold electors necessary for detachment be increased by one pur-
chasing a piece of property in said area and dividing such property
into several lots whereby there will be three or four .free-hold
electors of that lot instead of the one at the time. the original
petition was circulated and this being done so as to increase the
number of signatures required?
"6. At what point in the proceedings should it be deter-
mined if one is a freehold elector?
"7. \Vould land owners who are not 'freehold electors'
have any right to participate and object to the actions of the
Board of County Commissioners?
"8. In view of the witrhdrawal of petition whereby the
number of freehold electors consenting to detachment is below
the majority, would the Board of County Commissioners have
any authority to act in any way on the original petition of de-
tachment?
Section 3577, General Code, reads in pertinent part as follows:
"U pan petition of a majority of the freehold electors own-
ing land in any portion of the territory of a 1nunicipality, accur-
ately described in such petition with an accurate map or plat
thereof, praying to have such portion of territory detached there-
from the commissioners of the county in which such portion of
territory is situated, with the assent of the council of the munici-
pality given in an ordinance passed for that purpose, shall de-
taoh such portion of the territory therefrom and attach it to any
township contiguous thereto, or, if the petition so requests, they
OPINIONS
shall erect the territory into a new township, the boundaries of
which need not include twenty-two square miles of territory:"
(Emphasis added.)
Your first question may be disposed of by reference to my informal
opinion No. 286, addressed to you this date, in which I expressed my
concurrence in the conclusion stated in the second paragraph of the sylla-
bus of Opinion No. JOOI, Opinions of the Attorney General for 1928,
page 29I I, as follows :
"2. In order to detach territory from a municipality under
the provisions of Section 3577 of the General Code, the petition
for such action must be signed by a majority of the owners of
the lands in the portion of the territory of the municipality so
proposed to be detached, which owners must also be electors of
the municipality involved."
As to your second question I perceive no requirement m the statute
that the board hold a hearing to determine whether the petition before them
is in fact that "of a majority of the freehold electors owning lands" in the
municipality concerned. There is, of course, a clear duty on the board's
part to make such detenmination, and if they should conclude that such
determination can best be made by holding a hearing on the matter, I
perceive no basis on which an objection could be made to such method
of proceeding. In this connection, with respect to your seventh question,
in view of the conclusion stated above that the board is under no duty
to hold a hearing it necessarily follows that no claim of a right to be
heard at such hearing could be established by anyone, whether or not a
"freehold elector." I do not hesitate to suggest, however, that considera-
tions of common courtesy, fair play, and good administrative practice all
indicate the desirability of allowing all who claim an interest in the matter
to be heard.
On the matter of the right of a signatory to withdraw from a peti-
tion, although the statute is silent on the matter, the law as established
in the judicial decisions appears to be well settled. In the per curiam de-
cision in State ex rei. Kahle v. Rupert, 99 Ohio St., I/, we find the fol-
lowing statement, p. 18:
"In the absence of statutory prov1s10ns to the contrary an
elector signing a petition authorizecl by the statutes of this state,
invoking either official or judicial action, has a right to withdraw
his name fr0i!l1 such petition, or, if he be the sole petitioner, to
dismiss the same at any time before judgment has been pro-
ATTORNEY GENERAL
nounced, or before oificial action has been taken thereon. Duten
v. Village of Hanover, 42 Ohio St., 215; Ha.ys et al. v. Jones et
al., 27 Ohio St., 218, and M cGonnigle et al. v. Arthur et al., 27
Ohio St., 251, 256."
In the instant case the final "offical action * * * thereon" is to be
taken by the board of county commissioners, and under the rule above
noted in the Rupert case, it would appear, with reference to your fourth
question, that it must be determined by the >board on the date of its of-
ficial action on a petition submitted for action under authority of Sec-
tion 3577. supra, that such petition does in fact constitute one "of a
majority of the freehold electors" etc.
The effect on the jurisdiction of a board of county commissioners
to proceed where there have been withdrawals of signatories to a petition
which invokes such ju6scliction was under consideration in Hays v. Jones,
27 Ohio St., 2r8. the second paragraph of the syllabus in which is as
follows:
''2. The jurisdiction of the board of county commissioners
to make the final order for the improvement, under these sta-
tutes, is special, and conditioned upon the consent, at the time the
final order is to be made, of a majority of the resident land-
holders, who are t<l be charged with the costs of the improve-
ment."
In discussing the right of signatories to withdraw and the effect of
such withdrawal in the Hays case, Judge Ashburn said:
"The second question in this case is the right and effect of
remonstrance by any portion of the petitioners upon their rela-
tion to the prayer of the petition for the improvement.
"The right to remonstrate is not questioned, but the effect
of remonstrance, as viewed by defendants, is certainly ingenious.
If a petitioner for the improvement can have his name erased
from the petition, as to him it has no vitality. If he signs the
petition, and he afterward subscribes a remonstrance against the
affim1ative action of the commissioners upon the petition, it is
claimed he is still petitioning for the improvement in the atti-
tude of one trying to convince the commissioners that it would
not be advisable to grant their prayer as petitioners, but rather
to grant their prayer as rem<lnstrants. This view of the case is
not sound. They are for the improvement as prayed for, or
against it, and can not be allowed to occupy any middle ground.
The statute can not mean that, if there is a majority of qualified
persons at some time between the commencement of the pro-
ceedings and the time the final order is to be made, whether
OPINIONS
there be such a majority at that time or not, the improvement
may be ordered. As held on the first proposition, this jurisdic-
tional majority must be found in the attitude of asking for the
improvement at the time the proposed final order is to be made;
and one who has subscribed the petition may, at any time before
the board makes the final order, by remonstrance or other unmis-
takaible sign, signify his change of purpose. His assent is within
his Dwn control up to the time the commissioners move to make
the final order. He could nDt, after having signed the petition
for the improvement, be silent until after the order had been
made for the improvement, and then put in a remDnstrance that
would avail him anything. The form or manner in which his
dissent is made known is immaterial. If it is clearly made known
to the board of commissiDners, that is sufficient. Story on
Agency, treating upon the subject of revoking an agency, section
474, says:
'It may be express as by a direct and formal declaration
publicly made known, or by an informal writing, or by
parol or it may be implied from circumstances.' * * *."
This reasoning, and the cDurt's CDnclusion noted above, is primarily
based on a consideration of the circumstance that the applicable statute
provided in part, Act of March 31, r868, 65 Ohio Laws 41, 42:
"* * * but such order shall not be made until a majority of
the resident land-holders * * * shall have subscribed the petition
* * *"
In the instant case the language is not so explicit as this but it does
provide:
"Upon petition of a majority of the freehold electors * * *
the commissioners * * * shall detach such portion * * * "
This language is easily sufficient to indicate beyond the least doubt
that (I) the board's jurisdiction can be invoked only by such a petition,
and (z) the board loses such jurisdiction to make an order of detachment
when the petition before it no longer constitutes one "of a majority of
freeholders." Accordingly, the point in the proceedings at which a
determination must be made as to what number constitutes a "majority
of freeholders" is the date of the board's action; and on this date, too, a
determination must be made as to the status of the several signatories as
"freehold electors." These conclusions thus dispose of your fourth and
sixth questions.
I do not, however, regard the jurisdiction of the municipal council
to give assent to the detachment to be similarly affected by such a defect
ATTORNEY GENERAL
m the petition. I find no statutory requirement that such petition be
filed with or presented to the council and I assume, therefore, that the
request for such assent may be made in any practicable manner which
will apprise the council of the pendency or imminence of the detachment
proceedings before the commissioners. Indeed, I perceive no reason why
such municipal assent should not be given even prior to the filing of such
petition with the commissioners, but it is obvious, of course, that such
assent could not be effective unless, at the time of the commissioners'
action, the petition before them was actually that of a majority of the
freehold electors.
As to your fifth question it is seriously to be doubted whether the
multiple subdivision therein contemplated would be effective to constitute
the transferees as freeholders. The test to be applied in any such case
where inconsiderable fractions of land have been conveyed is whether
such conveyances were made in good faith, or merely for the purpose of
qualifying them for participation in the detachment proceedings. Thus
111 18 American Jurisprudence 226, Section 71, it is said:
"* * * Some courts have taken the view that the ownership
of an equitable interest only in real estate does not constitute
one a freeholder, within the meaning of a statute prescribing
qualifications for voting. The same has been held with respect
to the holders of inconsiderable fractions of land conveyed to
them merely for the purpose of qualifying them to vote."
In Jones v. Carver, Texas Court of Civil Appeals, 1902, 67 S. Vv.
78o. the first paragraph of the headnotes reads:
"At an election to determine whether stock may be allowed
to run at large, voters to whom land has been conveyed for the
sole purpose of enabling them to vote are not 'freeholders' and
qualified to vote."
In the opinion by Rainey, C. J., we find the following statement:
"Two grounds are urged against its validity:
"First, that the judges of election rejected the votes of a cer-
tain number of freeholders, which if they had voted would have
changed the result of the election. No statement of facts is found
in the record. The record, however, contains the conclusions of
the trial judge, who found on this issue that a few days before
the election one Davis, who owned an undivided half interest in
100 acres of land within the proposed stock law district, 'exe-
cuted and delivered to each of seven men, who were otherwise
qualified to vote in stock law elections, severally, a deed to an
OPINIONS
undivided interest of one acre in his undivided half interest in
the one hundred acres. The purpose of the vendor was to thereby
make each of said vendees a "freeholder," so that they could vote
and defeat t.he stock law. They had no other purpose. The one
acres (undivided) was fit for no other purpose, eit:her of farm-
ing or other useful purpose and the deeds were made for the
sole purpose of defeating the election by making the seven per-
sons technically "freeholders," but not substantially so, in so far
as the land was contemplated to be of utility.' This clearly shows
a fraudulent attempt to defeat the wishes of a majority of the
bona fide freeholders of the district, and is contrary to the spirit,
if not the letter, of the law giving to freeholders only the right of
suffrage in such elections. Vve are of the opinion that the deeds
to such a fraction of real estate, made for the purpose as stated
by the trial judge, did not make the grantees therein such free-
holders, under the law, as entitled them to vote in said election,
and their votes were properly rejected. The trial court erred in
holding to the contrary. McGraw v. Commissioners Ala., 8,
South, 852."
In the McGraw case, cited above, the court said with respect to a
similar situation:
"And we think the court of county commissioners * * *
rightly refused to count or consider as freeholders those persons
to whom an inconsiderable fraction of land had been conveyed
solely for the purpose of enabling them to vote * * *."
In view of these authorities I conclude that the rule of good faith
is applicable in the instant case and thus the determination of the factual
question whether the conveyances described in your fifth question were
made (I) in good faith or ( 2) merely for the purpose of blocking the
detachment proceedings is one which must be made in the first instance
by the county commissioners.
For these reasons, therefore, I conclude m specific answer to your
inquiry, that:
I. The jurisdiction of a board of county commissioners, under
Section 3577, General Code, is special and is conditioned upon the con-
sent at the time of the board's order of detachment, of a majority of the
freeholder electors concerned; such freeholders must be electors of the
municipality concerned; and such freeholder electors have the right, at
any time prior to the board's order of detachment, to withdraw such
~ o n sent.
ATTORNEY GENERAL
2. The conveyance of inconsiderable fractions of land to several
individuals solely for the purpose of promoting or impeding proceedings
to detach territory from a municipal corporation under the provisions of
Section 3577, General Code, is ineffective to constitute such individuals
"freehold electors;" and the question of whether a particular conveyance
was made for such purpose, or was made in good faith, is a question of
fact to be determined in the first instance by the county commissioners.
2975
Respectfully,
c. WILLIAM O'NEILL
Attorney General
I. TAXES-REAL ESTATE-STATE OF OHIO NOT LIABLE
-PROPERTY WITHIN MUNICIPALITY- STATE AC-
QUIRED PERPETUAL EASEMENT FOR HIGHWAY PUR-
POSES.
2. NO AUTHORITY IN LAW FOR ENTRY OF ESTATE REP-
RESENTED BY SAID EASEMENT ON TAX LIST AND DO-
PLICATE-TRACT OR PARCEL INVOLVED SHOULD BE
RETAINED ON TAX LIST UNDER NAME OF OWNER OF
SERVIENT ESTATE.
3 LAND DESCRIBED MAY NOT BE EXEMPTED FROM TAX-
ATION AS "PUBLIC PROPERTY USED EXCLUSIVELY
FOR PUBLIC PURPOSES"-DUTY OF COUNTY AUDITOR
TO REASSESS VALUE OF SERVIENT ESTATE AT TRUE
VALUE IN MONEY-DIMINUTION IN VALUE TO FEE
OWNER-PUBLIC EASEMENT ESTABLISHED-SECTION
5548 ET SEQ., G. C.
4 LAND DESCRIBED-NO AUTHORITY, SECTION 567I G. C.
FOR APPORTIONMENT OF TAXES THEREAFTER
LEVIED, NOR FOR APPORTIONMENT OF LIEN FOR AC-
CRUED TAXES-NO LIABILITY FOR ACCRUED TAXES
ATTACHES TO STATE
OPINIONS
SYLLABUS:
1. The state of Ohio is not liable for .real estate taxes on property within a
municipality over which the state has acquired a perpetual easement for highway
purposes.
2. Where the state of Ohio has acquired a perpetual easement for. highway pur-
poses over land lying within the limits of a municipality, there is no authority in law
for the entry of the estate .represented by such easement on the tax list and duplicate,
but the tract or parcel involved should be retained on such tax list under the name
of the owner of the servient estate.
3. Where the state of Ohio has acquired a perpetual easement for h(ghway pur-
poses over land lying within a municipality, such land may not be exempted from
taxation as "public property used exclusively for public purposes"; but in such case
it is the duty of the county auditor, under the provisions of Section 5548, et seq., Gen-
eral .Code, to reassess the value of the servient estate at its true value in money, and
so as to reflect the diminution in value to the fee owner resulting from the establish-
ment of such .public easement.
4. Where the state of Ohio has acquired a perpetual easement for highway pur-
poses over lands lying within the limits of a municipality, there is no authority under
the provisions of Section 5671, General .Code, for the apportionment of taxes there-
after levied against such land nor for the apportionment of a lien for accrued taxes
thereon; and no liability with respect to accrued taxes attaches to the state in such
case.
Columbus, Ohio, August 25, 1953
Hon. S. 0. Linzell, Director, Department of Highways
Columbus, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"On July 27, 1950, the State Department of Highways filed
for record two easement deeds in the county of Cuyahoga. As
a part of the consideration for said easements certain amounts of
money were placed in escrow for the purpose of paying the real
estate taxes and assessments on the property over which said
easements were taken. The amounts placed in escrow were deter-
mined hy prorating the amount due and owing for said taxes and
assessments to the day said easements were filed for record.
''Upon tender of the money the Auditor of Cuyahoga County
refused to accept same on the ground that he lacked statutory
authority to accept a partial payment of real estate taxes and
maintained that the full amount of the existing lien for taxes must
be paid. The Auclitor further m<Untains that the Department
of Highways should pay the balance of the existing ta.x lien.
"The money set aside as a partial payment is still being held
ATTORNEY GENERAL
in esorow. As the Auditor has refused to accept this money and
the Title Company holding the money does not want it, the
problem arises of who is liable for the real e&tate tax on the said
property, the State of Ohio or the owner of the fee.
"vVhile the foregoing is the exact question in point there are
a number of que&tions concerning this situation on which we would
like your opinion not only to answer the current problem but to
guide our actions in the future acquisitions of easements for high-
way purposes within municipalities.
"Therefore will you please give us your opinion on the
following specific questions:
"I. Is t:he State of Ohio liable for real estate taxes on prop-
erty within a municipality over which it has acquired a perpetual
easement for highway purposes?
"2. Is the owner of the underlying fee liable .for real estate
taxes on property within a municipality over which 1lhe State of
Ohio has a perpetual easement for highway purposes?
"3. May real property within a municipality over which the
State of Ohio has a perpeJtual easement for highway purposes be
exempted from taxation?
"4. If real property within a municipality over which the
state of Ohio has a perpetual easement for highway purposes
may be exempted from taxation, how much of the lein for real
estate tax existing at 'the time of the acquisition of the easement
by the State of Ohio must be paid?
"5. If real property within a municipality over which the
State of Ohio has a perpetual easement for highway purposes
may not be exempted from taxation may the value of the under-
lying fee be reduced to zero on the tax duplicate?
"6. If the value of the underlying fee of real property within
a municipality over which the State of Ohio has a perpetual
easement for highway purposes may be reduced to zero for tax
purposes, how muoh of the lien for real estate tax existing at the
time of the acquisition of the easement by the State of Ohio must
be paid?"
3
6..,
' I
It is provided m Section 2583, General Code, that "each tract, lot
or parcel of real estate" shall be entered by the county auditor on the
general ta..x list and duplicate in the names of the owners. For taxation
purposes the term "real estate" is defined in Section 5322, General Code,
as follows:
"The terms 'real property' and 'land' as so used, include not
only land itself vvhether laid out in town lots or otherwise, and
OPINIONS
all growing crops, including deciduous <l!nd evergreen trees, plants
and shrubs, with all things contained therein but also, unless
otherwise specified, all buildings, structures, improvements, and
fixtures of whatever kind thereon, and all rights and privileges
belonging or appertaining thereto."
There appears to be a marked scarcity of decisions in Ohio on the
question of what is comprehended by the language ''and all rights and
privileges belonging or appertaining thereto," as used in this section.
In Cincinnati College v. Yeatman, 30 Ohio St., 276, the syllabus reads
in part as follows:
"* * * 2. \"!hen, in consideration of a gross sum in ad-
vance, an estate for years, renewable forever, is granted in realty,
it is real and not personal property, within the meaning of the tax
laws of Ohio." * * *
In Opinion No. 1852, Opinions of the Attorney General for 1921,
p. 124, the syllabus reads:
"An ordinary lease for a term of years is not a separately
taxable interest in land under the propePty taxation laws of this
state."
In this opinion the writer, after noting the provisions of numerous
of the pertinent real property tax statutes, said, p. 127:
"The foregoing is not a complete catalogue of the sections
which might be referred to, but it is believed that nothing ma-
terial to the present inquiry has been omitted. The only excep-
tions to the general principle above laid down which are made
expressly by the statutes cirt:ed, are the cases of mineral rights
in land, which are to be separately assessed, and lands held under
lease for a term exceeding fifteen years belonging to exempt
owners (Section 5330). It has been held, however, that the effect
of Section 8597, above quoted, together with the other sections
which have been mentioned, is to make pennanent leasehold
estates, renewable forever, equivalent to freehold estates for the
purpose of taxation. This is not really an exception to the rule laid
clown, but is equivalent merely to saying that the pennanent
lessee is to be treated as the owner rather than the owner of the
technical fee or ground rent. In this respect the decision is merely
in line with sections 5680 and 5688, above quoted, which imlXlSe
the duty of paying taxes upon owners of life estates. No similar
duty is imposed by law upon lessees of ordinary estates for years;
hence the practice, departed from in the case about which you
inquire, of inserting a covenant to pay taxes in such leases. Even
if there were such a section, however, it would not affect the ques-
ATTORNEY GENERAL
tion raised by you, which is as to whether or not there should be
separate assessments of the interest of the lessee and the interest
of the owner in fee, respectively .
. ;It may be repeated, then, that save as to mineral rights,
etc., and with the exception based upon the case of CincinnaJti
College v. Yeatman, 30 0. S. 276, which was peculiar in that the
perpetual leasehold therein involved was such that it made a
horizontal division of the tract instead of a perpendicular one,
there is to be no separation of an entire tract for the purpose of
the assessment of real property taxes." (Emphasis added.)
If the rule stated in the emphasized portion of the quotation above
IS accepted as correct, it would appear that the estate represented hy a
public road easement could not be regarded as a separate "tract, lot or
parcel of real estate" as this language is used in Section 2583, supra. In
this connection it may be observed that the owner of the fee which is
subject to a public road ea:sement enjoys property rights to some con-
siderable extent in addition to the mere possibility of reverter. Thus in 25
Ameriec<n Jurisprudence, 432, 433, Section I 35, we find the following
statement:
"\Vhere the fee is in the abutting owner, his tide is not a
contingent interest or a mere expectancy, but is a present sub-
sisting ownership of the fee. He has full dominion and control over
the land, and all the rights of an absolute owner of the soil, sub-
ject only to the easement and servitude in favor of the public. He
may use the land for his own purposes in any way not inconsistent
with the public easement, and is entitled to all profit and ad-
vantage which may be derived therefrom. But his right in the
street or highway as a highway in so far as respeots the right of
passage and travel thereover is simply equal to and in no sense
greater than that of the general public."
The Ohio decisions are uniformly in aocord with this v1ew. See
Telephone Co. v. vV<I!tson Co., II2 Ohio St., 385; Daily v. State, 51 Ohio
St., 356; Railroad Co. v. O'Harra, 48 Ohio St., 343; Railroad Co. v.
Williams, 35 Ohio St., 168; and many others.
It is true that virtually all of the Ohio decisions m which the rights
of the fee owner have been considered have dealt with land located beyond
the limits of a municipal corporation, but I do not regard this circum-
stance to be of any moment since you indicate that the public way was
acquired in the instant case by "easement deeds". It is true, also, that
the decisions often mention the distinction between country highways and
370
OPINIONS
streets within municipal corporations, .pointing out that in the latter case
"the fee * * * rests in trust in the municipality * ':' *." See Telephone
Co. v. Watson Co., supra, p. 389. This result in the case of municipal
streets, however, necessarily flows from the several statutory provisions
by which the property is acquired for street purposes. In the chapter on
the powers of municipal corporations to appropriate property for specified
public use, including use for street purposes, for example, we find the
following provision in Section 3691, General Code:
''Upon the payment or deposit, by the corporation, of the
amount assessed, as ordered by the court, an absolute estate in fee
simple shall he vested in such corporation, unless a lesser estate
or interest is asked for in the application, in which case such lesser
estate or interest as is so asked for shall he vested."
In the instant case it is quite clear, because the property m question
was acquired by "easement deeds," that the mere fact that it is located
within a municipal corporation would not result in the extinguishment
of the legal ownership of the fee in the grantor in such deeds.
In Section 556r, General Code, we find the following provision:
"The county auditor shall deduct from the value of such tracts
of land, as provided in the next preceding section, lying outside
of municipal corporations, the amount of land occupied and used
by a canal or used as a public highway, at the time of such assess-
ment."
This section, by its express terms, is not applicable in the instant case
where the lands involved lie within the limits of a municipal corporaJtion,
but this section is, nevertheless, of considerable significance in the present
inquiry. It may be observed that under the provisions oi Section 5548,
General Code, it is the duty of the county auditor, as the assessor of real
property, to fix valuations of individual tracts of real property at true
value in money. This section was first enacted in Senate Bill i\o. t77,
8znd General Assembly, 107 Ohio Laws, 29. In the same act Section 556r
was enacted in its present form.
It is quite plain that if the public road easement should be considered
such a separate estate, or tract of real property as would require it to he
entered on the tax list in the name of the new owner, then there would have
been no necessity for the provision noted above in Section 556 r, for the
provisions of Section 5548, General Code, would have required a revalu-
ation of the fee owner's tract at the time the original tract was subdivided
ATTORNEY GENERAL
371
for entry on such tax list. The significance of Section 556r in this respect
was noted in Opinion No. 461 r, Opinions of the Attorney General for
1932, p. 1042, in the following language:
"It is self evident that land over which a perpetual easen1ent
has been granted, for highway purposes, does not come within any
of these classes unless it be 'public property used exclusively for
any public purpose.' Section 5351, General Code, enacted pursuant
to this constitutional provision, in so far as material, reads:
" '* * * public property used exclusively for a public
purpose shall be exempt from taxation.'
"There is little doubt that when land is used for a public high-
way it is used for a public purpose. It is not so clear that where
an easement is granted to the state for highway purposes the
land becomes 'public property' within the meaning of Section 2,
Article XII, of the Constitution. Section 5561, General Code,
makes specific provision for the deduction in valuation where land
is used as a public highway. Such section reads:
" 'The county auditor shall deduct from the value of such
tracts of land, as provided in the next preceding section, lying
outside of muncipal corporations, the amount of land occupied
and used by a canal or used as a p u ~ l i c highway, at the time of
such assessment.'
"It is hardly probable that the legislative intent was to in-
clude highways within the meaning of Seotion 5351, General
Code, for if such intent had existed no reason would have existed
for the enactment of Section 556r, General Code, supra. It is
never to be presumed that the legi-slature intended to enact a
meaningless statute and Section 5561, General Code, would
clearly have been meaningless if la:nd used for public highway pur-
poses had been intended to -be included within the meaning of Sec-
tion 2, Article XII, or Section 5351, of the General Code."
For these reasons it seems clear that the Legislature, by the enact-
ment of Section 5561, General Code, recognized that where a public road
easement is acquired, the entire tract remains on the tax duplicate in the
name of the fee owner; and I conclude, therefore, that such is the result
in the instant case. In this situation it clearly becomes the duty of the
county auditor, under the provisions of Section 5548, General Code, to
reassess such entire tract so as to reflect its current value to the fee owner.
\Vrhether in such process the new valuation is precisely an amount equal
to its prior valuation less .the loss occasioned by the granting of the ease-
ment is a matter for the judgment of the auditor. Technically speaking, of
course, it is not possible to "reduce to zero" the value of the property
372
OPINIONS
conveyed, for i>t is not this tract separately, but the value of the whole
tract which is to be reassessed.
_ vVith respect to exemption of property over which the state has
acquired a perpetual highway easement, it is sufficient to note, in vie,v of
the conclusions already stated, that although such property is almost en-
tirely "used for a public purpose," it is not publicly owned. The prablem
is thus one of rather than exemption as pointed out in my opinion
No. 2840, dated July I7, 1953 ; and this is so even though the provisions
of Section 5561, General Code, are not directly applicable in the situa-
tion.
In the matter of the real estate tax lien existing at the time of the
acquisition of the easement, we may note the following provisions in Sec-
tion 567 I, General Code :
"The lien of the state for taxes levied for a.Jl purposes, in each
year, shall attach to all real property subject to such taxes on the
day the Se{)oncl Monday in April, annually, and continue
until such taxes, with any penalties, interest or other charges
accruing thereon, are paid; but taxes, assessments, penalties, in-
terest or other charges may be apportioned in case of transfer of
a part of any tract or lot of real estate, in which case the lien of
such taxes, special assessments, penalties, interest or other charges
shaH extend to the >transferred part or parts and the remaining
part only to the extent of the amounts allocated to such respective
parts. All personal property subject to taxation shall be liable to
.be seized and sold for taxes. The personal property of a deceased
person shall be liable, in rt:he hands of an executor or administrator,
for any ta.-x clue on it from the testator or intestate.
"Taxes charged on any tax duplicate, other than those upon
real estate specifically as such, shall be a lien on real property of
the person charged therewith from the cla.te of bhe filling of a
notice of such lien, as provided by law."
Because of the conclusion already stated that the acquisition of a
public road easement does not involve the division of the property in-
volved for the purposes of entry on the tax list, it is clear that we are not
concerned with a "transfer of a part of any tract or lot of real estate" and
there would thus appear to be no authority for an apportionment of the
lein as provided for in this section. In this situation we may properly ob-
serve the provisions of Section 5762, General Code, to ascertain the effect
of the existing tax lien as to the highway easement. This section reads:
"The county auditor on making a sale of a tract of land to
ATTORNEY GENERAL
any person, under this chapter, shall give suoh purchaser a cer>ti-
ficate thereof. On producing or returning to the county auditor
the certificate of sale, the county auditor, on payment to him by
the purchaser, his heirs, or assigns, of the sum of one dollar and
twenty-five cents shall execute and deliver to such purchaser, his
heirs, or assigns, a deed therefor, in due form, which deed shall be
prima facie evidence of title in the purchaser, his heirs, or assigns.
\Vhen a tract of land has been duly forfeited to the state and sold
agreeably to the provisions of this chapter, the conveyance of such
real estate by the county auditor shall extinguish all previous title
thereto and invest the purchaser with a new and perfect title, free
from all liens and encumbrances, e.'<cept taxes and installments of
special assessments and reassessments not due <l!t the time of such
sale, and except such easements and covenants running with the
land as were created prior to the time the .taxes or assessments,
for the non-payment of which the land was forfeited, became due
and payable."
373
This reference to "easements * * : created prior to the time the
taxes * * * became due and payable" might indicate that in the case of a
tax sale the state's easement would be extinguished, but it must be re-
membered that "the sta;,te is not bound by the tenns of a general statute
unless it be expressly so enacted." State ex rei Parrott v. Board of Public
Works, 36 Ohio St., 409
It is to be noted that the .to appropriation of st<llte
highway easements, Section I r;8-37;'et: seq., General Code, make no pro-
visions for the payment by the director of accrued taxes, nor do they re-
quire the court to make an order with respect thereto.
For all of these reasons, therefore, I conclude that no liability attaches
with respect to accrued taxes on land over-wnicn the state
acquires a highway easement.
Accordingly, in specific answer to your inquiry, it is my opinion that:
r. The state of Ohio is not liable for real estate taxes on property
within a municipality over which the state has acquired a perpetual ease-
ment for highway purposes.
2. Vilhere the state of Ohio has acquired a perpetual easement for
highway purposes over land lying within the limits of a municipality, there
is no authority in law for the entry of the estate represented by such
easement on the tax list and duplicate, but the tract or parcel involved
should be retained on such tax list under the name of the owner of the
servient estate.
3 vVhere the state of Ohio has acquired a perpetual easement for
highway purposes over land lying within a municipality, such land may not
374
OPINIONS
be exempted from taxation as "public property used exclusively for public
purposes"; but in such case it is the duty of the county auditor, under
the provisions of Section 5548, et seq., General Code, to reassess the
value of the servient estate at its true value in money, and so as to reflect
the diminution in value to the fee owner resulting from the establishment
of such public easement.
4 V/here the state of Ohio has acquired a perpetual easement for
highway purposes over lands lying within the limits of a municipality,
there is no authority under the provisions of Section 567I, General Code,
for the apportionment of taxes thereafter levied against such land nor for
the apportionment of a lien for accrued taxes thereon; and no liability ''rith
respect to accrued taxes attaches to the state in such case.
Respectfully,
C. WILLIAM O'NEILL
Attorney General
I. CEMETERY - MAY BE CONSIDERED ABANDONED -
WHEN ALL OR PRACTICALLY ALL BODIES HAVE BEEN
REMOVED-NO BODIES BURIED THERE FOR MANY
YEARS -CEMETERY LONG ABANDONED- IDENTITY
LOST- NO DONGER KNOWN, RECOGNIZED AND RE-
SPECTED AS CEMETERY-SECTIONS 3465 GC-517.21 RC.
2. TOWNSHIP TRUSTEES REQUIRED TO NOTIFY NEXT
OF KIN-PERSONS BURIEID IN CEMETERY-BEFORE
REMOVING BODIES- NOTICE TO REMOVE BODIES-
IF WITHIN THIRTY DAYS NEXT OF KIN FAlL TO RE-
MOVE BODIES TOWNSHIP TRUSTEE MAY DO SO.
3 ABANDONED PRIVATE CEMETERY-NO STATUTORY
DUTY IMPOSED ON TOWNSHIP TRUSTEES TO TAKE
OVER OR MAINTAIN SUCH CEMETERY.
ATTORNEY GENERAL
375
SYLLABUS:
1. A cemetery may be considered as abandoned within the purview of Section
3465, General Code, Section 517.21, Revised. Code, when all or practically all of the
bodies have been removed therefrom and no bodies have been buried therein for a
great many years, and the cemetery has 'been so long neglected as entirely to lose
its identity as such, and is no longer known, ,recognized and respected by the public
as a cemetery.
2. Before removing bodies from an abandoned. cemetery, the township trustees
are required to notify the next of kin of the persons buried therein, to remove such
bodies, but if the next .of kin fail to do so within the time specified, not less than
thirty days, the towns:hip trustees may do so.
3. The statutes impose no duty on the trustees of a township to take over or
maintain an abandoned priYate family cemetery.
Columbus, Ohio, August 26, 1953
Hon. Dorothy Kennedy, Prosecuting Attorney
Brown County, Georgetown, Ohio
Dear :lVIadam :
I have before me your request for my opinion, reading 111 part, as
follows:
"The Board of Trustees of Perry Township have been re-
quested to take over and maintain a private, family cemetery by
the next of kin of the deceased persons buried therein, which
cemetery is located in the country and could in no way be con-
sidered detrimental to the public health or welfare, on the theory
that said cemetery has been abandoned by them as a burial
ground for at least the past twenty years and that they have no
intention of ever using it again for burial purposes. I) What
constitutes abandonment, within the meaning of Section 3465 of
the General Code of Ohio? 2) What procedure is necessary to
establish abandonment under Section 3465? 3) When abandon-
ment is established, is it the mandatory duty of the township
trustees to maintain such private, abandoned cemetery? * * *"
I note your further statement that the next of kin of persons who
are buried in this cemetery, are anxious to have the trustees take over
the cemetery, and that the trustees are disposed to take over and main-
tain the same, if they have authority to do so. I note, further, your state-
ment that the cemetery in question is not in any way detrimental to the
public health or welfare.
In all civilized countries, great respect Is shown to the memory of
Ol'JNIONS
the dead and elaborate and sometimes lavish expenditures are made to
beautify the grounds and buildings incidental to their burial.
To a very great extent, also, the laws of this and other states have
made provisions for the establishment of publicly owned cemeteries, and
regulations have been enacted for the maintenance of such grounds by
private persons and associations. I am not, however, able to find any ele-
ment of sentiment in the laws relating to public participation in establishing
such institutions. The following statement found in Volume ro, page 487,
of American Jurisprudence is perhaps typical of the entire attitude of the
law toward the matter:
''\Vherever there exists a status of organized society, it has
been found necessary to provide for the establishment and main-
tenance of a burial place for the dead. Burial grounds are of con-
cern from the standpoint of the public health, and if such places
are not prepared by private enterprise, it then becomes the duty
of the state to meet the necessity."
From the earliest days in the history of Ohio, there have been statu-
tory enactments providing in one way or another for cemeteries, and
authority has been conferred upon townships, cities and villages, as well
as upon private associations or corporations to establish and maintain
such cemeteries. A partial review of these provisions may be found in
my Opinion #817, Opinions of the Attorney General for 1951, page 6o6.
The particular situation which you present is covered by Section 3465, Gen-
eral Code. This section was originally enacted in somewhat similar form
111 1876, 101 0. L., 20r. It reads as follows:
"vVhen any burial ground, public or private, has bee11 aban-
doned, or when the trustees of a township, or the trustees or di-
rectors of a cemetery association, are of the opinion that the
further use for burial purposes of any cemetery or burial ground
will be detrimental to public welfare or health, and a cemetery or
burial ground in the near vicinity thereof is open for public use,
such township trustees in every such case, or, in case of a ceme-
tery association, the trustees or directors thereof, may order such
cemetery or burial ground to be discontinued, and provide for
the removal of all bodies therein buried, and for the removal of
all stones and monuments marking the graves thereof, and for
the re-interment of such bodies and the re-erection of such
stones and monuments in suitable and public ground in the near
vicinity, and pay therefor from the township treasury. They shall
before providing for any such removal, first cause notice to be
given to the family, friends or kindred of the deceased, if known
ATTORNEY GENERAL
to them of such order and of the time within which, not less than
thirty days, such removal must be made, and that it is desired
that such removal be made by the friends or kindred of the
dead. If at the expiration of such time such removals have not
been made, the trustees or the board, as the case may be, may
cause them to be made as hereinbefore provided."
(Emphasis added.)
377
As you suggest in your letter, this statute appears to set out two
conditions under either of which the township trustees are authorized to
act in the manner therein set forth : (I) When a cemetery has been aban-
doned, and ( 2) \Vhen the trustees are of the opinion that further use for
burial purposes of any cemetery or burial ground will be detrimental to t h ~
public health or welfare.
By your statement you have eliminated the second of these condi-
tions, so \Ye may confine our inquiry strictly to a consideration of an
abandoned private or public burial ground.
Accordingly, I shall turn to the several questions which you pro-
pound, and discuss them in their order.
I. \Vhat constitutes "abandonment," within the meaning of Sec-
tion 3465, General Code? Neither this statute nor any other, so far as
I have found, throws any direct light on this question. \Vhen we turn to
authorities dealing, generally, with the significance of the \vord "abandon-
ment,"' \Ye almost invariably find ourselves confronted with a discussion
relating to the abandonment of property or some property right. Thus,
it is said in I Ohio Jurisprudence, 2d, page 7: "The fundamental princi-
ple in determining whether an owner has lost title to property or a prop-
erty right by abandonment of it, is his intention to abandon." It is evi-
dent, however, that authorities relative to abandonment as affecting
rights to property do not throw much direct light upon the use of this
term as applied to the abandonment of a cemetery. Here, there is no
effort to deprive a person of any property or of any right whatsoever in
the property or otherwise. The principle underlying abandonment of a
cemetery is more nearly akin to the case in which one abandons some
legal duty, such as the abandonment of a child or of a husband or wife.
There, also, the element of intent is essential, but there is no element of
loss of a right; rather there is implied an escape from something in the
nature of an obligation. It can hardly be said that the next of kin of de-
ceased persons who have been buried, owe any legal obligation of rever-
ence, or of keeping their place of burial attractive, but assuming that
OPINIONS
there is a measure of moral responsibility, it would appear that abandon-
ment in such case implies an escape therefrom, and an abandoned ceme-
tery is one in which those responsible for the burial of a deceased person
or those standing in such relation that they might be expected to take
care of the final resting place, either deliberately or by pure indifference or
neglect or for some other reason fail .to render any such ,service.
After all, we have to deal with a piece of ground which has been in
some way dedicated to the burial of the dead, and is no longer useful for
that purpose, or is totally neglected. I find in Volume 14, Corpus Juris
Secundum, page 82, a discussion of the principle of abandonment, as applied
to a cemetery. It is there stated:
"A cemetery does not lose its character as such from mere
disuse or because further interment in it has ceased or become
impossible, and where premises have been dedicated as a grave-
yard, they remain subject to that use so long as bodies remain
buried there, and until they are removed by public authority, or
by friends or relatives."
This authority continues with the following statement, which seems
to me to go a long way toward answering your question:
"So long as a cemetery is kept and preserved as a resting
place for the dead, with anything to indicate the existence of
graves, or so long as it is known or recognized by the public as a
cemetery, it is not abandoned, but it may be said to be abandoned
where all the !bodies have lbeen removed, or the cemetery has
been so neglected as entirely to lose its identity as such, and is no
longer known, recognized, and respected by the public as a ceme-
tery. Abandonment may result from inconsistent use, as where
the public and those interested in a cemetery have permanently
appropriated it to a use or uses entirely inconsistent with its pur-
pose as a cemetery, so that it has become impossible to use it
longer for cemetery purposes."
The Ohio authorities throw a somewhat negative light on the sub-
ject. In 7 Ohio Jurisprudence, page 39, it is said:
"A cemetery will not be regarded as abandoned merely be-
cause interments have not been made therein for many years;
because many bodies have been removed therefrom; because the
municipality in which it is located has failed to keep it properly
fenced; or has dug, or permitted others to dig gravel from its
surface; or has installed therein water-pipes, poles, electric light
wires, lights, fountains, cement walks and steps, provided such
improvements are not inconsistent with its continued use and
preservation as a graveyard."
ATTORNEY GENERAL
379
In the two cases of Newark v. Crane, 92 Ohio St., 537, and Newark v.
Burnette, 92 Ohio St., 539, which are apparently related to the same con-
troversy, it was held as shown by the court's entry:
"The court finds that, notwithstanding interments have not
been made in said graveyard for many years, and that many
bodies previously buried there have been removed therefrom; it
appearing that many bodies still remain, there has not been a
complete abandonment of said premises to purposes inconsistent
with its preservation as a graveyard."
I find it impossible to give a clear, precise definition of "abandon-
ment" as used in the statute to which reference has been made. Perhaps
it is sufficient to say that a cemetery has been abandoned when most or
all of the bodies have been removed or no burials have been made therein
for a long period of time and the cemetery has been so neglected as en-
tirely to lose its identity as such, and is no longer known, recognized, and
respected by the public as a cemetery.
2. Your second question is as to the procedure contemplated by
Section 3465, General Code. If the trustees, in the exercise of a reasonable
discretion, find that a cemetery has been abandoned they may, as the
statute provides, order the removal of the bodies buried therein, and the
removal of all stones and monuments marking the graves, and the inter-
ment of such bodies and the re-erection of such stones and monuments
in suitable and public ground in the near vicinity. Earlier in the section, it
appears that their action in this respect is conditioned on the existence of
a cemetery or burial ground in the near vicinity, which is open for public
use. It is further provided that before ordering such removal, they shall
first cause notice to be given to the family, friends or kindred of the de-
ceased, of the time within which, not less than thirty clays, such removal
must be made, and that it is desired that such removal be made by the
friends or kindred of the deceased. If such friends or kindred fail within
the time limited to do so, then the trustees may cause that to be clone at the
expense of the township.
Outside of these provisions of the statute there is nothing in the law
that prescribes any procedure. It is manifest that the notice to the friends
and kindred of the deceased, is not an order which may be enforced, but
rather a concession to their possible wishes.
3. Your third question is, when abandonment of a private cemetery
OPINIONS
is established, is it the mandatory duty of the trustees to JJUJinta.in such
private, abandoned cemetery? In the first place, I find nothing in the
statute which either requires or authorizes the trustees, when they find
that a private cemetery has been abandoned, to take it under their care
and maintain it The only action mentioned, is to cause the bodies therein
to be removed, and the monuments to be removed also, to another ceme-
tery. It is well settled that a public body, such as a board of township
trustees, has only such power as the legislature has seen fit to give it;
and that in case of doubt as to the right of such board to expend public
funds, the doubt is resolved against the grant of power. 32 Ohio Juris-
prudence, page i34, and cases cited.
Certainly, there is no language m Section 3465 supra, and no other
provision of the law so far as I can find, that makes it the mandatory
duty of the township trustees to do anything with reference to a private
cemetery, no matter how completely it may be abandoned or how sorely
it may be neglected. This would furnish a sufficient answer to your third
question.
I note from your letter that in the particular case you have before
you, the trustees are willing to take over and maintain the private family
cemetery, but I question the right of the trustees to spend township funds
for the benefit of the next of kin of persons buried in a private cemetery.
That might open the way for an elaborate and extended discussion. I do
not consider it necessary to enter that field except to suggest that the ex-
penditure of public funds should, as a matter of general principle, be
confined to the accomplishment of a public purpose, and I know of no
authority whereby public funds may be devoted to the betterment of
private interests. I recognize the fact that the statute which we have been
considering, suggests the right of tovmship trustees to remove and re-
inter bodies from any burial ground-public or private-but the fact that
the statute predicates such right in part upon a finding that further use
of such burial ground would be detrimental to the public health or wel-
fare suggests to my mind that in any case action must be predicated upon
a consideration of public health or welfare and not purely on the en-
hancement of a private interest.
3. The statutes impose no mandatory duty on the trustees of a
township to take over and maintain an abandoned private cemetery, and
do not authorize the trustees so to do.
ATTORNEY GENERAL
Accordingly, in specific answer to the questions submitted, it is my
opinion and you are advised:
I. A cemetery may be considered as abandoned within the purview
of Section 3465, General Code, Section 5I7. 2I, Revised Code, when all
or practically all of the bodies have been removed therefrom and no
bodies have been buried therein for a great many years, and the cemetery
has been so long neglected as entirely to lose its identify as such, and IS
no longer known, recognized and respected by the public as a cemetery.
2. Before removing bodies from an abandoned cemetery, the town-
ship trustees are required to notify the next of kin of the persons buried
therein, to remove such bodies, but if the next of kin fail to do so within
the time specified, not less than thirty days, the township trustees may do
so.
3. The statutes impose no duty on the trustees of a township to
take over or maintain an abandoned private family cemetery.
2979
Respectfully,
c. WILLIAM O'NEILL
Attorney General
JUDGMENT- PERSONAL EARNINGS OF DEBTOR, OTHER-
WISE EXEMPT-LIABLE FOR ACTUAL COSTS OF PROCEED-
INGS BROUGHT TO RECOVER JUDGMENT FOR WORK, LA-
BOR AND NECESSARIES-PROCEEDINGS TO SATISFY JUDG-
lVIENT-SUM NOT TO EXCEED TWO DOLLARS AND FIFTY
CENTS FOR EACH SUIT, GARNISHMENT OR PROCE1EDING
-AID OF EXECUTION BROUGHT TO ENFOR<CE PAYME'NT
OF JUDGMENT-OAG 3905, PAGE 557, 1926, 2I68, PAGE I239,
I930; 6470, PAGE 6o7, I943 OVERRULED.
SYLLABUS:
Under the provisions of Section 10271, General Code, the personal earnings of a
debtor, otherwise exempt, are liable for the actual costs of any proceedings brought to
recover a judgment for work and labor or necessaries and for any proceedings to
satisfy such judgment, in a sum not to exceed two dollars and fifty cents for each
suit garnishment or proceeding in aid of execution brought to enforce payment of such
judgment. Opinions No. 3905, page 557, for 1926, No. 2168, page 1239, for 1930, and
No. 6470, page 607, for 1943 overruled.
OPINIONS
Columbus, Ohio, August 27, 1953
Hon. Danny D. Johnson, Prosecuting Attorney
Tuscarawas County, New Philadelphia, Ohio
Dear Sir:
This will acknowledge receipt of your letter in which you request an
interpretation of Section I02/I, General Code, and specifically ask whether
this section sets the maximum amount that can be taxed as costs in a pro-
ceeding to recover and satisfy a judgment from the personal earnings of
a debtor based on a claim for work and labor, or necessaries.
Section I I 72'1, General Code, provides in part:
''Every unmarried person resident of the state may hold
property exempt from execution, attachment, or sale, to satisfy
a judgment or order as foJ,Jows: * * *
"3. Personal earnings of the debtor for services rendered
within thirty days before the issuing of an attachment or other
process, the rendition of a judgment, or the making of an order,
under which the attempt may be made to subject such earnings
to the payment of a debt, damage, fine or amercement, in an
amount up to but not in excess of thirty dollars."
Regarding heads of families, Section II725, General Code, provides
in part:
"Every person who is the chief support of a family, or who
is a person paying alimony, maintenance, or other allowances for
the support of a divorced or separated spouse, or for the support
of a minor child or children, or is the chief support of any de-
pendent person, and every widow, may hold property exempt
from execution, attachment or sale. for debt, damage, fine or
amercement, as follows : * * *
"6. Eighty per cent of the first two hundred dollars and
sixty per cent of the balance of the personal earnings of the
debtor for services rendered within thirty days before the issuing
of an attachment or other process, the rendition of a judgment,
or the making of an order under which the attempt may be made
to subject such earnings to the payment of a debt, damage, fine
or amercement, but in no event shall the amount of such personal
earnings exempt be less than sixty dollars."
Section I02/I, General Code, provides:
"The personal earnings exempted by law shall be liable to
ATTORNEY GENERAL
the plaintiff for the actual costs of any proceedings :brought to
recover a judgment for work and labor, or necessaries, and for
any proceedings to satisfy said judgment in any sum not to exceed
two dollars and the necessary garnishee fee for each suit, attach-
ment, aid of execution or other proceedings. Such garnishee may
pay to such debtor an amount equal to the personal earnings of such
deibtor exempted by law, less the sum of two dollars and the neces-
sary garnishee fee not to exceed fifty cents, if the same is demanded
by the garnishee, for actual costs as herein provided, due at the
time of the service of process or which may become due there-
after and before trial and be released from any further liability
to such creditor, or to the court or any officers thereof, in such
proceeding, or in any other proceeding brought for the purpose of
enforcing the payment of the balance of the costs due in said
original action. Both the debtor and the creditor shall like'Wise
be released from any further liability to the court or any officers
thereof in such proceedings or in any other proceeding brought
for the purpose of enforcing the payment of the balance of the
costs due in said original action. However, the exemption of thirty
dollars or less provided for in section I I72I of the General Code
of Ohio and the minimum exemption of sixty dollars or less pro-
vided for in section I I 725 of the General Code of Ohio shall
not be subject to the payment of costs of any proceedings brought
to recover a judgment for a debt nor for any proceedings to
satisfy said judgment." ('Emphasis added.)
In the enactment of the General Code in I9IO, former Section 650I
of the Revised .Statutes became Section 1027I, General Code, reading as
follows:
"The personal earnings now exempted by law, in addition
to the ten per cent for necessaries, shall be further liable to the
plaintiff for the actual costs of any proceedings brought to recover
them in any sum not over four dollars. Such garnishee may pay
to such debtor an amount equal to ninety per cent of such personal
earnings, less the sum of four dollars for actual costs as herein
provided, clue at the time of the service of process or which may
become clue thereafter and before trial, and be released from any
liability to such creditor. R. S. 'Section 6501."
In the year 1913, 103 0. L. 567, this section was amended so as to
decrease the amount of costs which might be held from otherwise exempted
earnings of the debtor to $2.00 plus a garnishee fee of not to exceed fifty
cents. This amendment also added at the end of the section the following
language:
"* * * or to the court or any officer thereof, in such proceeding,
or in any subsequent proceeding brought for the purpose of en-
OPINIONS
forcing the balance of the costs in said original action. Both the
debtor and the creditor shall likewise be released from any further
liability to the court or any officer thereof in such proceeding or
in any other proceeding brought for the purpose of enforcing
the payment of the !balance of the costs clue in the original action."
In 1933, 115 0. L. 431, this language was further supplemented by
the addition of the last sentence now contained in Section 10271 General
Code, providing that the exemption of thirty dollars to an unmarried
debtor and sixty dollars to a married debtor should not be subject to the
payment of costs of any proceeding to collect a debt whether brought to
recover a judgment or to satisfy said judgment.
Said Section 10271 was the subject of consideration in Opinion 3905,
Opinions of the Attorney General for 1926, page 557. It was there held
as shown by the sylla:bus :
"Under the amended garnishee law $2.50 is the maximum
amount that may be charged for costs, including the garnishee fee,
in any proceeding to garnishee wages irrespectiYe of the incidental
actions instituted to enforce the judgment."
In the course of this opinion the then Attorney General in analyzing
the original law in comparison with its form after the 1913 amendment,
said:
"In analyzing the two provisions there is no doubt in my
mind but that $2.00 is the maximum amount that may be charged
for costs in such a case, whether it be in connection with securing
judgment alone, or whether there is in connection with the same,
other proceedings to satisfy said judgment.
"In view of the language used, there seems to be some ground
for argument that probably a garnishee fee might be charged for
each suit, attachment, aiel of execution or other proceeding. In
other words, in the first sentence of the amended law it is argu-
able that the garnishee might be entitled to his fee in issuing the
original service, and further, collect his fee in the proceeding in
aiel of execution, etc. However, it is not believed that this is the
real intent of the law. While the law has been amended so as to
impose greater burdens upon the wage earner, it is not believed
that the la.nguage used justifies the conclusion that any additional
costs are to be imposed other than the maximum of $2.50 in a.ny
case, irrespective of the incidental proceedings that may be neces-
sary in order to collect or enforce the judgment."
(Emphasis added.)
ATTORNEY GENERAL
In Opinion #2r68, Opinions of the Attorney General for 1930, page
1239, this same section was again considered, and it was held:
"The sum of $2.50 for costs and garnishee fee is the maxi-
mum amount that may be taxed as costs in any proceeding to
recover and enforce a judgment from the personal earnings of
a debtor, based upon a claim for work and labor or necessaries."
The opinion quoted, with approval, the syllabus and the above extract
from the 1926 opinion.
Again. in Opinion 6470, Opinions of the Attorney General for 1943,
Section I027I was under consideration, and it was held:
"By reason of the provisions of Section 10271 of the General
Code when the personal earnings of a judgment debtor have
been garnisheed or attached and there has been withheld by the
judgment debtor's employer, for the payment of the judgment,
the portion of such wages not exempt from execution or attach-
ment under authority of Sections II72I and I I 725 of the General
Code. plus the sum of Two Dollars and not to exceed fifty cents
for garnishee fee, neither the creditor nor the debtor is further
liable for the court costs in the action, even though such excess
costs include costs paid to a printer under authority of Section
1697 of the General Code which have been taxed as costs in such
action." (Emphasis added.)
The two previous optmons above referred to, were discussed and
approved. Tracing the history of the legislation and referring particularly
to the amendment of I913, which I have set out, the then Attorney General
said:
"From the history of such Section ro271 it would appear
that the original purpose of the section was to permit the garnishee
to pay over to the debtor all of his wages other than that portion
which was subject to the satisfaction of .the judgment and costs,
without liability to the creditor for so doing. The amendment in
I03 0. L. 567, not only released the garnishee from liabi:lity to
the judgment creditor, but to the court as well for all costs then
due or subsequently accruing in the original action or in any other
action brought to enforce payment of costs. Such amendment
further provides that when a garnishee has so withheld the sum
of Two DoHars and the garnishee fee from the exempted earnings
of the debtor employe neither the debtor employe nor the creditor
shall be further Hable for the costs due in such original action."
(Emphasi.s added.)
OPINIONS
The above opmwns are quite convincing, and would appear clearly
to establish the proposition that the sum of two dollars and fifty cents by
way of costs and garnishee fee is the maximum and entire deduction which
a debtor employe could suffer by way of court costs in a suit by a creditor,
no matter how many supplementary proceedings were required to obtain
full satisfaction of the judgment.
However, it appears to me that m each case the writers of those
opinions overlooked another radical change that had been made in the
language of Section I02?I, in 1925. After its amendment in 1913, to
which reference has been made, 103 0. L. 567, the section was again
amended in 1925, I 1 I 0. L. 385. Prior to this amendment, the first sen-
tence of the section read as follows :
''The personal earnings now exempted by law, in addition
to the ten per cent for necessaries, shall be further liable to the
plaintiff for the actual cost of any proceeding brought to recover
a judgment of such necessaries, in any stun not to exceed two
dollars and the necessary garnishee fee. * * *"
As amended, it was made to read as follows:
''The personal earnings now exempted by law, in addition
to the twenty per cent for work and labor, or necessaries, shall
be further liable to the plaintiff for the actual costs of any pro-
ceedings brought to recover a judgment for such work and labor,
or necessaries, and for any proceedings to satisfy said judgment
in any sum not to exceed two dollars and the necessary garnishee
fee for each suit, attachment, aid of execution or other pro-
ceeding.***'' (Emphasis added.)
In its present form the sentence just quoted from Section 10271 has
undergone slight changes in reading, :but its meaning does not appear to
have been altered with respect to the matter here under consideration. The
first sentence of that section now reads :
"The personal earnings exempted by law shall be liable to
the plaintiff for the actual costs of any proceedings brought to
recover a judgment for work and labor, or necessaries, and for
any proceedings to satisfy said judgment in any sum not to exceed
two dollars and the necessary garnishee fee for each suit, attach-
ment, aid of execution or other proceeding. * * *"
(Emphasis added.)
A!fORNEY GENERAL
Here, it is to be noted that in the old law provision was made only
for the "actual cost of any proceeding brought to recover judgment,"
in the amendment there was added, "and for any proceedings to satisfy
such judgment," and there was further added the words, "for each suit,
attachment, aid of execution or other proceeding."
It appears to follow that as the law read in the I9I3 form, only one
payment of $2.50 was contemplated or allowed; whereas, according to
the I925 amendment and the present reading, costs amounting to $2.50 are
to be paid by the garnishee, "for each suit, attachment, aid of execution
or other proceeding;" and to the extent of such amounts, the personal
earnings of a debtor, otherwise exempt, become liable.
Accordingly, I find it impossible to follow the opinions aforesaid,
and must overrule them. It is therefore my opinion and you are advised
that under the provisions of Section 1027I, General Code, the personal
earnings of a debtor, otherwise exempt, are liable for the actual costs of
any proceedings brought to recover a judgment for work and labor or
necessaries and for any proceedings to satisfy such judgment, in a sum
not to exceed two dollars and ,fifty cents for each suit, garnishment or
proceeding in aid of execution brought to enforce payment of such judg-
ment. Opinions No. 3905, page 557, for I926, No. zi68, page I239, for
I930, and No. 6470, page 6o7, for 1943, overruled.
2994
Rlespectfully,
c. WILLIAM O'NEILL
,A_ttorney General
LIBRARY DISTRICT, COUNTY-ESTABLISHED UNDER SEC-
TION 7643-I ET SEQ., GC---'A "POLITICAL SUB<DIV:ISION" AS
TER:vi IS EMPLOYED IN SECTION 629<'3-9I GC.
SYLLABUS:
A county library district established under the .provisions of Section 7643-1 et seq.,
General Code, is a "political subdivision" as that term is employed in Section 6298-91,
General 'Code.
OPINIONS
Columbus, Ohio, August 27, 1953
Hon. C. \Vatson Hover, Prosecuting Attorney
Hamilton County, Cincinnati, Ohio
Dear Sir:
Your request for my opinion reads as follows :
"\Ve have been requested by the County Library District
of Hamilton County, Ohio, to render an opinion as to the appli-
ca!bility of Ohio General Code 6298-91 to automobiles owned
and operated by the said Library District.
"Section 6z<}8-91 exempts from the l\'[otor Vehicle Financial
Responsibility Act:
" 'any motor vehicle owned by the United States, this state,
or any political subdivision of this state or any municipality
therein.'
"In the belief that this problem is of concern to many other
quasi governmental bodies in the State of Ohio such as library dis-
tricts, conservancy districts, or sewer districts, we respectfully
request an opinion from you."
The precise question here presented is whether a county library dis-
trict may be classed as a "political subdivision" within the meaning of
the exemption provision quoted in your inquiry.
This term is not defined in the motor vehicle safety responsibility act,
Section 6298-r et seq., General 'Code, and it is somewhat surprising to
find that this expression, so commonly employed in numerous other legis-
lative enactments, is nowhere defined either by statute or by judicial de-
cision in this state. Some of the decisions do refer to the expression in
general terms as including particular governmental units but nowhere
does it appear that general definition has been attempted. Thus in State
v. Powers, 38 Ohio St., 54, we find the following statement by Judge
1vicElvaine, at page 62 :
"On the other hand, school districts are constituted so as
to partake rather of the character of counties and townships,
which are provided for in the 10th article of the constitution. not
as corporations, but as mere subdivisions of the state for political
purposes, as mere agencies of the state in the administration of
public laws. Hunter v. Mercer County, ro Ohio St., srs; State
ATTORNEY GENERAL
v. Cincinnati, 20 Ohio St. 18. In this article reference is made to
'similar boards' in connection with the commissioners of counties
and tntstees of townships." (Emphasis added.)
389
In the absence of a precise judicial statutory definition of the term
"political subdivision," it would appear necessary to accord it its usual
and ordinary meaning.
The term ''subdivision c.f this state" can obviously refer only to a
geographical district of less extent than that of the state as a whole. The
term "political" is defined as upertaining to* * * the conduct of govern-
ment." Thus it \vould appear that the term, in its ordinary and usual
sense, refers to a territorial district established for the conduct of some
function of the state government therein. This notion is strongly supported
by the follo,,ing language in 72 Corpus Juris Secundum, 223:
"The term is broad and comprehensive and denotes any
division of a state made by the proper authorities thereof, acting
within their constitutional powers, for the purpose of carrying
out those functions of the state which by long usage and inherent
necessities of government have always been regarded as public;
a division of a parent entity for some governmental purpose. The
term may be used in more than one sense, and it may designate a
true governmental subdivision such as a county, township, etc.,
or it may have a broader meaning, denoting any subdivision of
the state created for a public purpose although authorized to exer-
cise a portion of the sovereign power of the state only to a limited
degree.''
The same sort of broad and general meamng was attached to this
term in Commander et al. v. Board of Commissioners, Supreme Court of
La., 1942. 1 I Southern Rep., znd, 6o5, the headnotes in which are as
follows:
'' 1. A 'political subdivision of a state' is a subdivision
thereof to which has been delegated certain functions of local
government.
"2. :-\ levee district having under constitutional and statu
tory authority broad powers of taxation, appropriation and other
gO\ernmental functions was a 'political subdivision of the state'
within statute enacted pursuant to constitutional authority ex-
pressly prohibiting the issuance of any process to restrain the
collection of any tax imposed by the state of any political sub-
division thereof under authority granted by the legislature or by
390
OPINIONS
the constitution. Act No. 18 of 1894, sees. 7 to 10 and 12 et seq.;
Act No. 72 of 1922; Act No. 330 of 1938; Const. 192I, art. 10,
sec. 18, art. I6, sees. I -3, 6." * * *
Again, in t.Maribu v. Nohowec, et a!., 293 New York Supp., 457,
paragraph 9 of the headnotes reads:
"Vvords 'political subdivision,' as used in section of Public
\'Yorks Law, concerning opening and reading of bids for contracts
for public works, are not to be construed in any narrow or techni-
cal sense, in view of sweeping character of that section, but are
to be construed in light of purpose aimed to be accomplished,
and according to ordinary use of the words (Public Works Law,
sec. 26-a) . "
In the instant case we find the term ".political subdivision" employed
in a statute which imposes a special duty on the drivers of motor vehicles
generally, but which provides in equally general language for an exemption
in the case of drivers of publicly owned vehicles. In short, the subject of
the statute is such as to make no suggestion that the term is employed
in a restrictive sense, and I conclude that it is actually used in the statute
in the broad sense described in the language above quoted from 72 Corpus
Juris Secundum.
Even a cursory reference to the statutes under which library districts
are organized and operated is sufficient to make clear that they are utilized
for the conduct of a governmental function in the field of education. More-
over the governing board of such district is required, under the provisions
of Section 7643-3, General Code, to levy a tax annually on all property
of the district for the support of the district's activities. We may readily
conclude, therefore, that a county library district is a territorial district
"of a parent entity ( esta;blished) for some governmental purpose."
Accordingly, in specific answer to your inquiry, it is my opinion that
a county library district established under the provisions of Section 7643- I,
et seq., General Code, is a "political subdivision" as that term is employed
in Section 6298-9I, General Code.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
391
2999
AUDITOR OF DEPUTY-OFIFICE INCOM-
PATIBLE WITH OFFICE OF MAYOR OF VILLAGE IN SAME
COUNTY.
SYLLABUS:
The office of chief deputy in the office of auditor of a county is incompatible with
the office of mayor of a village in the same county.
Columbus, Ohio, August 29, 1953
Hon. Don W. Montgomery, Prosecuting Attorney
Mercer County, Celina, Ohio
Dear Sir:
I have before me your request for my opinion which reads as fol-
lows:
"On August I, 1953, the Auditor of Mercer County, Ohio,
appointed as his Chief Deputy, a person who is now mayor of
a village in the same county and the question arises as to whether
these two positions are compatible and I am unable to find au-
thority which will definitely answer this question either way.
"1949 Attorney Generals Opinion number 3, Syllabus
number I, seems to lay down a general rule which might be fol-
lowed in this case. Since the mayor of a town, unlike the mem-
ber of the council or a fiscal officer, does not handle money
direotly, nor does he certify olaims or have budget functions with
the Budget Commission, I am inclined to believe that the positions
are incompatible. There is no question in our case about the
physical ability to perform tlhe duties of both jobs.
"To resolve any doubt about the matter I am asking for your
informal opinion on the compatibility of the two positions above
described."
The test of incompatibility of public offices most commonly applied
in Ohio is that stated in State, ex rei. Attorney General vs. Gebert, 12
O.C.C. (N . .S.), 274, 275, as follows:
"Offices are considered incompatible when one is subordi-
nate to, or in any way a check upon, the other; or when it is physi-
cally impossible for one person to discharge the duties of both."
392
OPINIONS
The point of contact between the two offices here involved, \vhich at
once suggests a possible basis of incompatibility, is in the preparation of
the annual budget of the village, an operation in which the office of the
county auditor has an important function. By the terms of Section 5625-1,
General Code, the term, "taxing authority" is defined as meaning, in the
case of a municipal corporation, the "council or other legislative authority
of such municipal corporation." Assuming that the village in question is
organized under the general statutory plan of government set out in Sec-
tion 4215, et seq., General Code, the office of mayor must be deemed a
part of such "legislative authority" by reason of the provision in Section
4255, General Code, which provides that the mayor shall preside over
council meetings and shall cast the deciding vote therein in the event of
a tie.
In the matter of the adoption and approval of the budget of a village,
you may note that in Section 5625-19 to 5625-26, General Code, inclusive,
a budget commission is established in each county to consist of the county
auditor, county treasurer, and county prosecuting attorney, and these
sections provide in some detail the various duties of such commission.
The statutes require that each year the taxing authority of the sev-
eral subdivisions shall prepare a tax budget for the next succeeding fiscal
year. The statutes provide in some detail the information to be included
therein with respect to the financial condition of the taxing subdivision
for the ensuing fiscal year and, when such budget is adopted, it is adopted
to be submitted to the county auditor. That officer is required thereafter
to lay before the budget commission the annual tax budget thus submitted
to him, together with an estimate prepared by the auditor of the amount
of certain other levies required by law. The authority of the budget com-
mission to act on such proposed budgets is set out in Section 5625-2.+,
General Code, which reads in part as follows:
"The budget commission shall so adjust the estimated
amounts required from the general property tax for each fund,
as shown by such budgets, as to bring the tax levies required
therefor within the limitations specified in this act for such levies,
but no levies sha:ll be reduced below a minimum fixed by law. It
shall have authority to revise and adjust the estimates of balances
and receipts from all sources for each fund and shall determine
the total appropriations that may be made therefrom. * * *"
In the event that the budget commission should be inclined to make
certain adjustments in a village budget, as provided in this section, it is
ATTORNEY GENERAL
393
impossible to suppose that the village mayor would not be keenly interested
in the matter since it is under his executive supervision that a considerable
portion .of the village revenues are expended. Accordingly, if the com-
mission should propose to reduce such budget below the amounts re-
quested by the village authorities, it could well happen that the mayor
\vould wish to appear before the commission to defend the estimates
originally submitted. In this situation it is apparent that the office of
county auditor is a check on that of the mayor and that the two are clearly
incompatible.
\\re may next inquire whether this incompatibility is such as to extend
to the office of chief deputy county auditor as well. "Deputy" is defined
in Bouvier's Law Dictionary as follows:
"One authorized by an officer to exercise the office or right
\vhich the officer possesses, for and in place of the latter."
Section 9, General Code, provides in part:
"A deputy, when duly qualified, may perform all and singu-
lar the duties of his principal * * *."
In opinion No. 2573, Opinions of the Attorney General for 1925,
page 400, the syllabus is as follows:
"A deputy treasurer or a deputy auditor may not act in the
place of a treasurer or auditor as members of a county budget
commission or the county board of revision."
An examination of this opinion indicates that this conclusion was
based largely on the following language in Hulse vs. State, 35 Ohio St.,
421, 425:
"A duty enjoined by statute upon a ministerial officer, and
an act permitted to be done by him, may be performed by his law-
ful deputy."
The writer then went on to say, page 407:
"\Vhile this decision does not state in so many words that a
judicial function may not be exercised by a deputy, is has been
ci<ted in numerous instances as authority for such rule by reason
of the statement in the alternative.
"It is, therefore, believed t:hat the rule in this state is that a
deputy may perform a purely ministerial duty of his principal
394
OPINIONS
but that he may not exercise a duty enjoined upon his principal
which is of a judicial or quasi-judicial nature or a duty requiring
the exercise of judgment or discretion."
This ruling was wholly disregarded in Opinion No. 35o6, Opinions
of the Attorney General for I93I, page 1072, in which the question of the
compatibility of the offices of deputy auditor of a county and member of
a board of education of the city school district was under consideration.
In that opinion the writer pointed out the statutory provisions relative
to budget preparation already noted herein, and having concluded from
them that the offices of county auditor and member of such board were
incompatible, it was said, with respect to the auditor's deputy, pages
1072, 1073, that:
"A deputy county auditor acts for and in place of the au-
ditor, and may perform all and singular the duties of .the auditor.
It is possible for a deputy auditor to act for the auditor in any
circumstances, and his acts will be the acts of his principal. It is
probable that the occasion often arises when it is necessary for a
deputy auditor to act in place of the auditor himself.
"It is a well known fact that in some counties the deputy
auditor, by reason of long experience in the position, is more
familiar with the duties of the auditor's office than the auditor
himself and does in fact perform the more technical duties of the
office. In any case, he is required, by reason of his powers as
fixed by Section 9, General !Code, supra, to hold himself in readi-
ness, and be at all times qualified, to act for and in the stead of
his principal. He should be qualified the same way and to the
same extent as the latter. Commenting on this fact, a former At-
torney General, in speaking of a deputy city auditor, was
prompted to say:
'Hence, if the person who fills the office of city auditor
is disqualified by reason thereof from holding some other
office or position, it would seem to follow clearly that the
one who acts as his deputy would be likewise prohibited from
doing so.'
Opinions of the Attorney
General, 1917, p. 1744.
"To the same effect is the opinion of the Attorney General
found in the Annual Report of the Attorney General for 1914,
at p. 383, where it is said:
'The disability of a city auditor to hold certain positions
would pass to his deputy who has the right to act for and in
place of his principal, as to his official duties.' "
ATTORNEY GENERAL
395
In Opinion No. 379I, Opinions of the Attorney General for I93I,
page J4I(, the syllabus is as follows:
"The same person may not simultaneously bold positions of
city auditor and deputy auditor of the county in which the city is
located."
The writer of this opinion took note of the conclusions reached in
the 1925 opinion, supra, and with respect to it, had the following to say:
''1 am not unmindful of an opinion found in 1925 O.A.G.
4o6, which held that a deputy auditor may not act in the place of
an auditor as the member of a county budget commission. In the
body of such opinion reference was made to the case of Hulse
v. State, 35 O.S. 42I, which held in part as disclosed by the first
branch of the syllabus:
'I . Neither a deputy clerk of the court of common
pleas, nor a deputy county auditor, has any power to act in
selecting the names of persons for a struck jury. That duty
must be performed by the clerk, auditor, and recorder in
person, except as otherwise provided in the statute. (75
Ohio L. 642, 27; Rev. Stats. 5I86.)'
"The then Attorney General declared:
'vVhile this decision does not state in so many words
that a judicial function may not be exercised by a deputy,
it has been cited in numerous instances as authority for such
rule by reason of the statement in the alternative.' See also
Davies, ex rei., v. Scherer, II O.C.C. (n.s.) 209.
"The case of Hulse v. State, supra, involved the construc-
tion of Rev. Stats. SI85 and SI88, relative to selecting and
striking juries, and the latter statute read in part 'if the clerk,
auditor or recorder is interested in the cause, sick, absent from
the county, related to either of the parties, or does not stand in-
different between them, a judge entitled to hold such court may
in term time or vacation appoint some judicious disinterested
person to take the place of the officer so disqualified, * * *.'
"It is apparent from an examination of this statute that a
specific manner is set forth relative to the action to be taken in
case the county officials mentioned in such section are unable or
disqualified to act, which section would control Rev. Stat. 4949,
analogous to Section 9, General Code, which read at that time:
'A duty enjoined by statute upon a ministerial officer
and an act permitted to be done by him may be performed
by his lawful deputy.'
"A consideration of the foregoing principles leads to the
conclusion that the I925 opinion, insofar as it prohibits a deputy
OPINIONS
auditor from performing the duties of the county auditor on the
county budget commission, is not tenable since there is no des-
ignated method to be followed in case of the inability on the part
of the county auditor to serve on the county budget commission.
It is also evident that Section 9, General Code, above quoted, con-
fers a larger scope of authority upon deputies than that formerly
conferred by Rev. Stat. 4949" Page I419.
The reasoning and conclusions in this opinion were approved and fol-
lowed in Opinion No. 36o5, Opinions of the Attorney General for 1934,
page 1721, the syllabus of which is as follows:
"The chief deputy county treasurer may, in the absence of
the treasurer, serve as member of the county budget commission.
Opinions of Attorney General for I9JI, Vol. III, page 1417, af-
firmed."
After a careful consideration of these opmwns, I find myself in
accord with the conclusions stated in the two latter opinions and, in any
event, I must conclude that the office of deputy auditor is one so closely
identified with the office of county auditor that the office of the deputy
should be deemed incompatible with any office with which the office of
county auditor is incompatible; and I am clearly of the opinion that the
office of mayor of a village is incompatible with that of auditor of a
county.
Accordingly, in specific answer to your inquiry, it is my opinion that
the office of chief deputy in the office of auditor of a county is incompati-
ble with the office of mayor of a village in the same county.
Respectfully yours,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
397
r. TITLE GUARANTEE AND TRUST COMPANIES-FORMED
UNDER PROVISIONS OF SECTION 9850 ET SEQ., GC., SEC-
1735.01 RC, PRIOR TO AUGUST 6, 1941-INSURE TITLES
TO PROPERTY AGAINST LOSS BY REASON OF DEFECTS,
ENCUMBRANCES OR OTHER MATTERS-INSURE COR-
RECTNESS OF SEARCHES FOR INSTRUMENT-S, LIENS,
CHARGES OR OTHER MATTERS AS TO TITLE TO PROP-
ERTY-NOT UNDER SUPERVISION OF SUPERINTEND-
ENT OF INSURANCE-TITLE INSURANCE COMPANIES-
SECTION 9510, PARAGRAPH 5 GC-SECTION 3939.01 RC.
2. TITLE GUARANTEE AND TRUST COMPANIES-ORGAN-
IZED SINOE AUGUST 6, 1941-SECTION 985o ET SEQ., GC,
SECTION 1735.01 RC - UNAUTHORIZED TO INSURE
TITLES TO PROPERTY IN OHIO.
3. SUPERINTENDENT OF INSURANCE-NO DUTY TO VER-
IFY FACT AND DETERMINE ADEQUACY OF DEPOSIT
~ 1 A D E WITH TREASURER OF STATE-TITLE GUARAN-
TEE AND TRUST COMPANIES-INSURING, GUARANTEE-
ING TITLES, CORRBCT'NESS OF SEARCHES-SECTION
9851 GC.
SYLLABUS:
1. Title guarantee and trust companies, formed under the provisions of Section
9850 et seq., General Code, Section 1735.01, R.C. prior to August 6, 1941, which insure
titles to property in this state against loss hy reason of defects, encumbrances or other
matters, and insure .the correctness of searches .for instruments, liens, charges or other
matters affecting the title to property within this state, are not under the supervision
of the superintendent of insurance in the same manner as title insurance companies
formed under Section 9510, paragraph 5, General Code, Soction 3939.01, R.C., in so
far as the insuring and/or guaranteeing of titles and the insuring and/or guaranteeing
the correctness of searches are concerned.
2. Title guarantee and trust companies, forming under the provisions of Section
9850 et seq., General :Code, Section 1735.01, IR.C, since August 6, 1941, are unauthorized
to insure titles to property in this state.
3. The superintendent of insurance has no duty to verify the fact and determine
the adequa:cy of the deposit made with the treasurer of state pursuant to Soction 9851,
General Code, by title .guarantee and trust companies insuring and/or guaranteeing
titles or insuring and/or guaranteeing the correctness of searches.
OPINIONS
Columbus, Ohio, August 31, 1953
Hon. Walter A. Robinson, Superintendent of Insurance
Columbus, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"r. Did the addition of Paragraph 5 to Section 9510 have
the effect of placing title guarantee and trust companies, formed
under the provisions of Section 9850 and following, which insure
titles to property in this state against loss by reason of defects,
encumbrances or other matters, and insure the correctness of
searches for instruments, liens, charges or other matters affecting
the title to property within this state, under the supervision of
the Superintendent of Insurance in the same manner as title in-
surance companies formed under Section 9510 insofar as the
insuring of titles and the correctness of searches of records is
concerned? Is your answer the same whether the guarantee title
and trust company was organized before or after the effective
date of the act amending !Section 9510 by the addition of Para-
graph 5?
"2. In determining the answer to question No. I, wha:t dis-
tinction, if any, do you make between guarantee title and trust
companies which 'insure' titles and those which merely guaran-
tee the correctness of the search of certain records?
"3. vVhat duty, if any, does the Superintendent of Insurance
have to verify the fact and determine the adequacy of the deposit
made with the Treasurer of State pursuant to Section 985 I by
title guarantee and trust companies insuring titles and/or insur-
ing the correctness of searches and/or guaranteeing titles and/or
guaranteeing the correctness of searches?
"4. Is a title guarantee and trust company, organized under
Section 9850, since the amendment of Section 9510 by the addi-
tion of Paragraph 5 became effective, insofar as the insuring of
titles and/or insuring the correctness of searohes is concerned,
subject to the supervision o.f the Superintendent of Insurance
and to the insurance laws in the same manner as a title insurance
company organized under Section 9510? If not, is the deposit of
securities with the Superintendent of Insurance the only require-
ment of the insurance laws with which such a company must
comply?
"5 May a guarantee title and trust company which has
made the deposit with the Treasurer of 'State required by Section
98 5 I insure the correctness of searches of records in addition
to insuring titles?"
ATTORNEY GENERAL
399
Title guarantee and trust companies are formed under Section 9850
et seq., General Code, Section 1735.01 et seq., R.C., Section 9850, General
Code, which deals with the powers of such companies, reads as follows:
'A title guarantee and trust company may prepare and fur-
nish abstracts and certificates of title to real estate, bonds, mort-
gages and other securities, and guarantee such titles, the validity
and due execution of such securities, and the performance of
contracts incident thereto, make loans for itself or as agent or
trustee for others, and guarantee the collection of interest and
principal of such loans; take charge of and sell, mortgage, rent
or otherwise dispose of real estate for others, and perform all the
duties of an agent relative to property deeded or otherwise en-
trusted to it."
Section 9851, General Code, requires title guarantee and trust com-
panies to deposit with the treasurer of state fifty thousand dollars m se-
curities before commencing business.
J n determining whether title guarantee and trust companies now
come under the supervision of the division of insurance with regard to
their insuring titles, a useful purpose would be served by tracing the
legislative history of those provisions dealing with such compames and
those provisions dealing with the insuring of titles to realty.
A glance at the r898 Revised Statutes discloses no separate or special
chapter of the code dealing with the organizing of title guarantee and trust
companies, I find, however, in Section 3641, Revised Statute (a section
dealing with the organization and underwriting powers of insurance com-
panies) a clause in paragraph two thereof, to the effect that a company may
organize to ''guarantee the validity of titles to real estate." This section was
the forerunner of Section 9510, General Code, discussion of which must
be deferred temporarily.
There was also at this time a section 364rd, Revised Statutes, to the
effect that a company organized for the purpose of guaranteeing titles to
real property should deposit an amount equal to one-half of its capital
stock wid1 the superintendent of insurance. In 1902 this section was re-
pealed. In the repealing act, 95 Ohio Laws, 222, the legislature also sup-
plemented Section 3821, Revised Statutes, which theretofore dealt with
savings and loan associations, by adding paragraph ggg, which section
enumerated the powers of title guarantee and trust companies. Section 382 I
400
OPINIONS
ggg, Revised .Statutes, provided for reports to the auditor of state, and
stated that these companies "shall be governed by this Act, and section
364r of the Revised Statutes shall not apply to such companies."
In repealing Section 3641cl, the deposit section referred to above, the
legislature substituted under Section 3821 ggg, the following provision:
"Any company heretofore organized for the purpose of guar-
anteeing titles to real property, which may have made deposits
with the superintendent of insurance, as required by Section
3641cl of the Revised Statutes, may request said superintendent
to transfer said deposit to the treasurer of state * * * ."
V/hen the General Code became effective in 1910, the msurance sec-
tion, which was Section 3641, Revised Statutes, became Section 9510,
General Code, and the title guarantee and trust section, namely, Section
3821 ggg, Revised Statutes, became Sections 9850 to 9856, inclusive,
General Code. It is worthy of note that at this time companies could no
longer organize under the insurance acts to guarantee the validity of titles
to realty, clue to the fact that the language of paragraph two, Section 3641,
Revised Statutes, authorizing the organization of an insurance company
for the purpose of guaranteeing titles, had been removed.
It was the opinion of one of my predecessors, in Opinion No. 426,
Opinions of the Attorney General for 1917, page IIS7, that a title guaran-
tee and trust company formed under Section 9850, General Code, is not
in the insurance 'business in the sense that it is under the control and
supervision of the insurance department of the state. The guaranteeing
of a title by such a company is collateral to the furnishing of an abstract.
It was emphasized in that opinion that the company guarantees the correct-
ness of its own work, and hence it is actually not guaranteeing titles
generally.
Even though Section 9850, General Code, appears to preclude these
companies from doing a general title insurance business, it should be
recognized that a few title guarantee and trust companies did in fact write
contracts of title insurance long before the enactment of paragraph 5, Sec-
tion 9510, General Code, evidently basing their authority upon certain
language found in Section 9853, General Code, which read as follows:
"Any company so organized shall be limited in its operation
to only one county in this state, which shall be designated in its
application for a charter, except, that if it desires to issue its poli-
ATTORNEY GENERAL
cies of title insurance in more than one county it may issue them
in such other county or counties upon depositing with the treas-
urer of state an additional sum of $50,000 in securities as a:bove
provided, for each additional county in which it proposes to
operate." (Emphasis added.)
401
Opinion No. 1049, Opinions of the Attorney General for 1923, page
842, held that a title guarantee and trust company chartered to operate in
a designated county, may insure titles to real estate situate in another
than the designated county without making an additional deposit of se-
curities, if such policies are issued in the designated county. The opinion
assumed that such companies were empowered to insure titles generally,
and was concerned only with the deposit aspects of the law.
Summarizing the state of the law just prior to the amendment of
Section 9510, General Code, in 1941, I find that there was no provision
in the insurance code authorizing the organization of a title insurance
company; that title guarantee and trust companies, formed under Section
9850, General Code, did in fact write title insurance, apparently basing
their authority upon Section 9853, General Code.
Section 9510, General Code, being an enumeration of purposes for
which an insurance company might organize, the enactment of paragraph
.=; in 1941 added the authority to organize for the purpose of insuring titles.
Section 9510, General Code, Section 3929.01, R. C., in so far as pertinent
to this opinion, reads as follows:
''A company may be organized or admitted under this chapter
to:
::J Insure titles to property in this state against loss by rea-
son of defects, encumbrances or other matters, and insure the
corectness of searches for instruments, liens, charges or other
matters affecting the title to property within this state. A company
organized or admitted to transact the business of insuring titles to
property as aforesaid, shall deposit with the superintendent of
insurance for the benefit and security of all of its policy holders,
fifty thousand dollars in bonds of the United States or of the state
of Ohio, or of a county, township, city or other municipality in
this state * * *.
"Provided, however, that a title guarantee and trust com-
pany organized and now engaged in -business in this state under
and by virtue of sections 9850 to 9855 of the General Code, both
inclusiYe, and having on deposit with the treasurer of state the
sum of $5o,ooo.oo as provided in section 9851 of the General
Code, in addition to its present powers, may, write title insurance
withont making an additional deposit therefor."
(Emphasis added.)
402 OPINIONS
Your basic question IS whether the proviso of paragraph j, Section
95ro, General Code, had the effect of placing title guarantee and trust
companies under the supervision of the !Superintendent of Insurance, in
so far as they insure titles.
It should be recognized that Section 9853, General Code, limiting
the operation of title guarantee and trust companies to one county desig-
nated in its charter, was repealed in the same act which added paragraph
5 to Section 9510, General Code. See II9 Ohio Laws, 165.
It is my opinion that regardless of whether or not title guarantee and
trust companies were empowered to write title insurance prior to 1941
under authority of Section 9853, General Code, the legislature, by en-
acting paragraph 5, Section 9510, General Code, intended to make it clear
that those companies organized under Section 9850, General Code, prior
to the enactment, have the power to write title insurance risks, and further-
more that these companies may write it under cover of their original
deposit of $50,000 made with the treasurer of state. Even more important
was the intention to remove the "one county operation" limitation, and
the burdensome requirement of putting up a $50,000 deposit for each
county wherein the company proposed to operate by issuing title insurance
policies therein. By the repeal of Section 9853, General Code, a company
may now operate in as many counties as it desires, all under the original
qualifying and single deposit provided for in Section 9851, General Code,
Section 1735.02, R. C.
Hence, I am of the opinion that the wording at the end of the proviso,
to the effect that a title guarantee and trust company "may write title
iusurance without making an additional deposit therefor," is clearly as
refera:ble to the old requirement of an "additional deposit" for title in-
surance operation in counties other than the charter county, as it is to the
requirement of a $50,000 qualifying deposit .provided for in the title in-
surance company portion of Section 9510, General Code.
The placing of the change in the title guarantee and trust law under
Section 9510, General Code, is misleading. Upon initial examination of
Section 9510, General 'Code, one might naturally conclude that title guar-
antee and trust companies having been given authority to write title in-
surance, now come under the supervision of the insurance division, though
they are exempted from the $50,000 deposit requirement.
ATTORNEY GENERAL
It should be recognized that the proviso of paragraph 5, Section 95 IO,
General Code, could just as readily have been placed under :Section 9850
or 985I, General Code, the Title Guarantee and Trust Company chapter,
and that its true position in the legislative scheme is in that chapter.
This interpretation is fortified by the fact that Section 95 IO, General
Code, commences :
"A company may be organised or admitted under this chap-
ter to * * * ." ('Emphasis added.)
Manifestly, a title guarantee and trust company is organized under
Section 9850 et seq., General Code. Of course, any title insurance company
organized under Section 95IO et seq., General Code, being an insurance
company, is clearly subject to supervision by the superintendent of in-
surance.
Although Section 625, General Code, Section 3901.07, R.C, grants
the superintendent of insurance broad powers of examining into the affairs
"of any insura.nce company doing business in this state," it would appear
that the legislature contemplated placing under the superintendent's super-
vision only those companies organized or admitted under the insurance
laws of the state.
Title guarantee and trust companies have for many years come under
the supervision of the state auditor. Section 7IO-I7I, General Code, reads
as follows:
"Title guaranty and trust companies shall make such reports
to the auditor of state as are required to be made by trust com-
panies to the superintendent of banks, and shall he subject to like
examination, penalties and fees; such examination to be made
by and such fees and penalties assessed by and paid to the auditor
of state."
Section 7IO-I7I, General Code, Section II07.23, R. C., was inter-
preted in an opinion of one of my predecessors in Opinion No. 977,
Opinions of the Attorney General for I93'3, page 9(So, as granting the state
auditor the authority with relation to title guarantee and trust companies
to require reports, to impose the penalties prescribed by Section 710-33,
General Code (Sec. I I I I .24, R. C.), for failure to make such reports, to
make examinations, as provided in Section 710-I53, General Code, and
assess fees for making such examinations, as provided in :Section 710-I7,
General Code. Companies organizing under Section 9850, General Code,
OPINIONS
having been placed under the general supervision of the auditor of state.
it is my opinion that they remain under his supervision even though the
legislature has clearly empowered such companies to engage in the business
of title insurance.
Certain other considerations merit mention with respect to the ques-
tion regarding supervision of title guarantee and trust companies which
write title insurance. Title guarantee and trust companies have always paid
only the general corporation franchise tax provided for in Section 5495
General Code, Section 5733.0I, R. C. Domestic insurance companies pay
an annual franchise tax upon the privilege o.f "being an insurance com-
pany" pursuant to Sections 5414-8 and 5414-9, General Code, Sections
5725.01 and 5725.18, R. C. Although rthe statutory definition of "insur-
ance company" accompanying these latter sections might conceivably be
held broad enough to include a title guarantee and trust company writing
contracts of title insurance, it should be recognized that no provision
has been made in the code requiring annual statements to be filed by title
guarantee and trust companies with the superintendent of insurance.
Since title guarantee and trust companies are not required to file annual
statements with the insurance division, there is nothing from which the
division might compute the annual franchise tax levied upon domestic
insurance companies. This is in contrast with title insurance companies,
organized or admitted under Section 9510, General Code, which are re-
quired to file reports with the division, pursuant to Section os6I-I, Gen-
eral Code, Section 3929.12, R. C.
To require title guarantee and trust companies to pay the domestic
insurance company franchise tax in addition to the general corporation tax
they now pay, would in effect be the equivalent of "double" or "discrimina-
tory" taxation, since both taxes are based upon the capital and surplus of
the company. I would also point out the fact that Section 5414-10, General
Code, provides that the domestic insurance company franchise tax shall be
in lieu of all other taxes on the property and assets of such company and
of all other taxes, charges and excises on or against such companies.
In answer to the first part of your first question, it is my opinion that
the addition of paragraph 5 to Section 9510, General Code, in 1941, did
not have the effect of placing existing title guarantee and trust companies,
formed under the provisions of Section 9850 et seq., General Code, under
the supervision of the superintendent of insurance in the same manner as
title insurance companies formed under Section 9510 et seq., General Code,
ATTORNEY GENERAL
111 so far as the insuring of titles and the insuring of the correctness of
searches of records is concerned.
I understand that the division of insurance has never undertaken to
supervise the activities of title guarantee and trust companies in so far as
they write title insurance. The effect of my opinion on this matter would
be to leave these companies where it finds them, and where, in my opinion
the legislature intended to keep them, namely, under the general supervision
of the auditor of state.
The second part of your first question and the first part of your fourth
question appear to be identical. In short, who supervises the writing of
title insurance done by title guarantee and trust companies which form
under Section 9850, General Code, since the enactment of paragraph 5,
Section 9510?
I am brought to the inescapa!ble conclusion that title guarantee and
trust companies forming under Section 9850, General Code, since August
6, 1941, (the date upon which paragraph 5, Section 95 ro, General Code,
took effect), may not write title insurance at all. It will be recalled that
Section 9510, General Code, speaks in terms of those companies
and now engaged in 'business in this state under Sections 9850 to 9855, Gen-
eral Code, and having on deposit the sum of $50,000." It is my opinion
that the legislative intent was to make it plain that existing title guarantee
and trust companies might write title insurance under cover of their orig-
inal deposits made with the treasurer of state, and leaving them under the
supervision of the auditor of state, but that henceforth incorporators de-
sirous of forming a company for the purpose of insuring titles, must form
under the insurance laws, notably Section 9510, paragraph 5, General Code.
A title guarantee and trust company forming since 1941, under the provi-
sions of Section 9850 et seq., General Code, is limited to transacting only
those forms of business therein enumerated, which most certainly does not
include the insuring of titles generally.
You next ask what distinction, if any, is to be made (relative to the
division's supervisory powers) between title guarantee and trust companies
which "insure" titles and those which merely guarantee the correctness of
the search of certain records.
All of the foregoing material has been concerned with the insuring of a
title by a title guarantee and trust company. Suffice it to say that there is
OPINIONS
no question 1but that title guarantee and trust companies could always
guarantee the correctness of their searches. Such a transaction is not insur-
ance so much as it is warranty. Whether the company "insures" titles or
"guarantees" a title incident to an abstract it gives, it appears that no
supervisory powers reside in your division concerning either type of trans-
action.
In answer to your third question, you are advised that the superin-
tendent of insurance has no duty to verify the fact and determine the
adequacy of the deposit made with the treasurer of state pursuant to Sec-
tion 9851, General Code, by title guarantee and trust companies insuring
titles and/or insuring the correctness of searches or guaranteeing titles
and/or guaranteeing the correctness of searches.
It was held in Opinion No. 977, Opinions of the Attorney General for
1933, page <;l6o, that the treasurer of state has the duty to determine the
value and sufficiency of securities deposited by title guarantee companies
under Section 9851 to 9854, General .Code. I find nothing ,since that time
which would grant the superintendent of insurance any concurrent duty
in the matter.
As part of your fourth question you inquire, 111 effect, whether the
deposit of securities with the superintendent of insurance is the only re-
quirement of the insurance laws with which a title guarantee and trust
company organized since 1941 must comply. Since I have held that those
companies organizing since 1941 are not authorized to write title insurance,
your question has been rendered meaningless.
It is my opinion that only those companies forming under the first part
of paragraph 5, Section 9510, General Code, which are organizing to write
title insurance exclusively, and are not abstracting, etc., need make the
deposit with the division of insurance.
In answer to your fifth and final question, it is my opinion that a title
guarantee and trust company formed prior to 1941, which has made the
required deposit with the treasurer of state pursuant to Section 9851, Gen-
eral Code, may insure the correctness of searches of records in addition
to insuring titles. The proviso in paragraph 5, Section 9510, General Code,
empowers title guarantee and trust companies to write "title insurance,"
and it is my opinion that the term is to be defined by the opening words
of paragraph 5, "insure titles * * * and insure the correctness of searches
* * * " Such companies could always guarantee their own searches.
ATTORNEY GENERAL
Terminology fails us in this area, for the words "guarantee the correct-
ness of searches" and "insure the correctness of searches" are often, in
practice, used interchangeably. To look through the form to the substance,
I would say that in so far as the company insures or guarantees the correct-
ness of others' searches, it engages in what is known as "title insurance."
It seems both logical and equitable that if a new company organizing
to do business solely under Section 9510, General Code, may insure titles
and insure tlze correctness of searches, a title guarantee and trust company,
which is empowered by statu-te to "write title insurance" must likewise be
deemed granted authority to insure both.
Regrouping your various related questions so as to avoid repetition
in answering them, I am of the opinion, and you are advised:
r. Title guarantee and trust companies, formed under the provisions
of Section 9850 et seq., General Code, Section I735.0I, R. C., prior to
August 6, I94I, which insure titles to property in this state against loss by
reason of defects, encumbrances or other matters, and insure the correct-
ness of searches for instruments, liens, charges or other matters affecting
the title to property within this state, are not under the supervision of the
superintendent of insurance in the same manner as title insurance com-
panies formed under Section 9510, paragraph 5, General Code, Section
3939.01 R. C., in so far as the insuring and/or guaranteeing of titles and
the insuring and/or guaranteeing the correctness of searches are concerned.
2. Title guarantee and trust companies, forming under the provisions
of Section 9850 et seq., General Code, Section I735-0I, R. C., since August
6, I94I, are unauthorized to insure titles to property in this state.
3 The superintendent of insurance has no duty to verify the fact
and determine the adequacy of the deposit made with the treasurer of state
pursuant to Section 9851, General Code, by title guarantee and trust com-
panies insuring andjor guaranteeing titles or insuring and/or guaranteeing
the correctness of searches.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPINIONS
3009
EXTRADITION REQUISITION-GOVERNOR OF OHIO-PER-
SON FOR WHOM ISSUED RECEIVED FROM STATE WHERE
THERE IS THE UNIFORIM DEPENDENT'S ACT- REQCEST
FOR RETURN OF PERSON TO DEMANDING STATE-CHARGE
DESERTION OR NON-SUPPORT-WHERE PERSON SUBMITS
TO COURT OF RECORD OF THIS STATE AND COMPLIES
WITH COURT'S ORDER OF SUPPORT, PERSON MUST BE
RELIEVED OF EXTRADITION-SECTION 6 OF ACT-COURT
TO OBTAIN JURISDICTION MUST COMPLY WITH SECTIONS
8oo7-10, 8oo7-u, 8007-12 GC-WHERE NO COMPLIANCE, OBLI-
GOR MAY NOT' BE RELIEVED OF EXTRADITION BY OFFER
TO SUBMIT TO JURISDICTION OF .COURT OF RESPONDING
STATE.
SYLLABUS:
A person for whom an extradition requisition has been received by the Governor
of Ohio, from a state which has enacted the Uniform Dependent's Act, asking for the
person's return to the demanding state for desertion or non-support, must be relieved
of extradition under Section 6 of the Act, where such person submits to a court of
record in this state and complies with the court's order of support. Such court cannot,
however, obtain jurisdiction to make such order of support otherwise than in the man-
ner designated in Sections 8007-10, 8007-11 and 8007-12, General Code; and where
there has been no compliance with the provisions of these sections an obligor may not
be relieved of extradition by a mere offer to submit to the jurisdiction of the court of
the responding state.
Columbus, Ohio, August 31, 1953
The Honorable John 'vV. Keefe, Executive Secretary to the Governor
Columbus, Ohio
Your request for my opinion reads as follows:
"During hearings which are conducted by me as Executi\e
Secretary to Governor Frank J. Lausche, acting as his designee,
in extradition and rendition matters and their relationship to the
Reciprocal Act for Support of Dependents (Uniform Dependent's
Act), the question has arisen as to whether or not there is a con-
flict between the language contained in Section 3 of said Act and
Section 6 thereof. The latter section (our Ohio General Code
8oo7-6) provides that any obligor who submits himself to the
jurisdiction of a court authorized by the Uniform Dependent's Act
shall be relieved of extradition for desertion or non-sup}X>rt dur-
ATTORNEY GENERAL
ing the period of such compliance. Section 3 of the Act (our Ohio
General !Code 8oo7-3) establishes the law that the remedies pro-
Yided in the Uniform Dependent's Act are in addition to and not
in substitution for any other remedies.
"The specific question which we submit to you is whether or
not an alleged fugitive for whom an extradition requisition has
been received by the Governor of Ohio asking for the fugitive's
return to the demanding state for desertion or non-support must
be relieved of extradition, that is, relieved from returning to the
demanding state, if he submits to any court of record in this state.
There is no problem where the requesting state is willing to drop
the extradition request if the accused submits to the jurisdiction
of the court in the asylum state. The problem arises in cases where
there is an unwillingness to drop the extradition request and the
Governor of the demanding state mges the rendition of the fugitive
even though the latter is willing to submit to the authority of an
appropriate court. Is the accused relieved of extradition which, I
suppose so far as the mechanics of the situation are concerned,
could be accomplished by the Governor of Ohio's denial of the
request of the demanding state, or may the demanding state, rely-
ing upon the provisions of Section 3 of the Uniform Dependent's
Act, successfully insist upon the extradition remedy and right
which it has under the Federal Constitution, Federal Statutes and
particularly Ohio General Code Section 109-2 (part of the Uni-
form Criminal Extradition Act), which states that it is the duty
of the Governor of this state to have arrested and delivered up
to the executive authority of any other state of the United States
any person charged in that state with treason, felony, or other
crime, who has fled from justice and is found in this state.
"If it is your opinion that the right of a state to demand
extradition is not such a remedy as is contemplated by .Section 3
of the Uniform Dependent's Act, then to what, in your judgment,
does the word 'remedies' in Section 3 refer, and what does it
include.
"It is well to note that the question which we are propound-
ing is concerned only with a situation in which both the states in-
volved have enacted the Uniform Dependent's Act.
".:\1ay we please have your formal opinion as to these mat-
ters? Your prompt attention will be appreciated."
409
The precise question which I understand to be presented is whether
relief of extradition can be had in a case where ( 1) no petition has been
.filed in the courts of the demanding and receiving states, ( 2) the obligor
offers to submit to the jurisdiction of the court of the responding state,
and (3) the demanding state insists upon the obligor's rendition despite
such offer.
410
OPINIONS
Sections 8007-1 to &>o7-6, inclusive, General Code, read as follows:
Section 8oo7-1.
"This act may be cited as the reciprocal act for suppDrt of
dependents.
Section 8oo7-2.
"As used in this act unless the context reqmres otherwise.
" (I) 'State' includes any state, territory or possession of
the United States and the District of Columbia in which this or a
substantially similar reciprocal law has been enacted.
"(2) 'Initiating state' means any state in which a proceeding
pursuant to this or a substantially similar reciprocal law is com-
menced.
"(3) 'Responding state' means any state in which any pro-
ceeding pursuant ro the proceeding in the initiating state is or
may be commenced.
" ( 4) 'Court' means any court of record of this state and
when the context requires, means the court of any other state as
defined in a substantially similar reciprocal law.
" ( 5) 'Law' includes both common and statute law.
" ( 6) 'Duty of support' includes any duty of support im-
posed or imposable by law, or by any court order, decree or
judgment, whether interlocutory or final, whether incidental to a
proceeding for divorce, legal separation, separate maintenance or
otherwise.
"(7) 'Obligor' means any person owing a duty of support.
"(8) 'Obligee' means any person to whom a duty of support
is owed."
Section 8oo7-3.
"The remedies herein provided are in addition to and not in
substitution for any other remedies."
Section &>o7-4.
"The duty of support imposed by the laws of this state or
by the laws of the state where the obligee was present when the
failure to support commenced as provided in section 8oo7-7 of
the General Code and the remedies provided for enforcement
thereof, including any penalty imposed thereby, bind the obligor
regardless of the presence or residence of the obligee."
Section 8oo7-5.
"The governor of this state may demand from the governor
of any other state the surrender of any person found in such other
state who is charged in this state with the crime of failing to pro-
vide for the support of any person in this state and may surrender
on demand by the governor of any other state any person found
in this state who is charged in such other state with the crime of
ATTORNEY GENERAL
failing to provide for the support of a person in >Such other state.
The provisions for extradition of criminals not inconsistent here-
with shall apply to any such demand although the person whose
surrender is demanded was not in the demanding state at the
time of the commission of the crime and although he had not fled
therefrom. Neither the demand, the oath nor any proceedings for
extradition pursuant to this section need state or show that the
person whose surrender :is demanded has fled from justice, or at
the .time of the commission of the crime was in the demanding
or the other state."
Section 8oo7-6.
"Any obligor contemplated by section 8oo7-5 of the General
Code, who submits to the jurisdiction of the court of such other
state and complies with the court's order of support, shall be re-
lieved of extradition for desertion or non-support entered in the
courts of this state during the period of such compliance."
411
Section 109-2, General Code, provides for interstate rendition of per-
sons charged with crimes in other states as follows :
"Subject to the provisions of this act, the provisions of the
constitution of the United States controlling, and any and all acts
of congress enacted in pursuance thereof, it is the duty of the
governor of this state to have arrested and delivered up to the
executive authority of any other state of the United .States any
person charged in that state with treason, felony, or other crime,
who has fled from justice and is found in this state."
Oearly a person charged with failure to support dependents where
such failure is made a crime in another state may, upon proper demand
made, be subject to rendition by the Governor of Ohio under Section 109-2,
General Code. Section 8oo7-5, General Code, specifically provides for the
surrender to the authorities of another state one charged with failure to
provide support.
However, under Section 6 of the Uniform Dependent's Act, it is pro-
vided that one who submits to the jurisdiction of the court of the refuge
state and complies with the court's order of support, shall be relieved of
extradition for desertion or non-support entered in the courts of the de-
manding state. Relief from extradition then is given by the law of the
demanding state, where that state has enacted the Uniform Dependent's
Act. Ohio must give full credit to the laws of her sister states.
In the case of demands made on other states by Ohio, relief of extra-
clition is given by Section 8oo7-6, General Code. While the laws of Ohio
provide generally for the making of demands for the return of persons
4I2 OPINIONS
charged with crimes in this state, and non-support is such a crime, effect
will be given the special provisions of Section 8oo7-6, General Code, and
such persons may he relieved of extradition where they comply with the
provisions of that statute.
The first paragraph of the syllabus in The Acme Engineering Co., v.
Jones, Adm'r., ISO Ohio State 423, reads as follows:
"A special statutory provision which applies to a specific
subject matter constitutes an exception to a general statutory pro-
vision covering other subjects as well as the specific subject matter
which might otherwise be included under the general provision.
(State, ex ref. Stellar et al., Trustees, v. Zangerle, Aud., IOO Ohio
St., 4I4, and paragraph one of the syllabus in State, e.v rel. Elliot
Co., v. Conuar, Supt., I23 Ohio St., 3IO, approved and followed.)"
You raise the question as to what is meant by the word "remedies"
contained in Section 3, Uniform Dependent's Act (Section 8oo7-3, General
Code of Ohio) ?
A "remedy" is the means employed to enforce a right or redress an
injury. Words and Phrases, Volume 36, page 829.
As herein contemplated the right to support is the "right" involved or
the right to punish for failure to support. The "remedy" to be employed
to enforce the right or to redress the injury is not extradition, but rather a
criminal action for non-support, a civil action for support or reimburse-
ment, a contempt proceeding where there is non-compliance with an order
for support made by a court, or some other action designed to obtain sup-
port for dependents or punish for failure to support them. Strictly speak-
ing, the extradition for which provision is made in the Uniform Act, is not
a "remedy." It is, however, in many instances of non-support, a necessary
and indispensable means of acquiring jurisdiction so that some "remedy"
for non-support may be employed. when so employed it is clearly remedial
in nature, and when it is considered that the primary objective of the uni-
form dependent's act, as disclosed by its title (Amended Substitute House
Bill No. I, I24 Ohio Laws II2), is "to secure support for dependent wives,
children and other relatives from .persons legally responsible for their sup-
port," I am strongly inclined to the notion that the extradition provision in
this act was intended by the Legislature to be included among the "remedies
herein provided."
ATTORNEY GENERAL
I do not deem it necessary to resolve this point, however, for the pur-
poses of the present inquiry. By reference to Section 8oo7-6, supra, it will
be observed that relief of extradition can be had only if the obligor (I) sub-
mits to the jurisdiction of the court of the responding state and ( 2) com-
plies with such court's order of support. Quite clearly such court cannot
make any such order until it has obtained jurisdiction in a case properly
before it. The procedure whereby the responding state acquires such juris-
diction is plainly set out in Sections 8oo7-I0, 8oo7-II and 8oo7-I2, General
Code. These sections read :
Section 8oo7-ro.
"The petition shall be verified and shall state the name and,
so far as known to the plaintiff, the address and circumstances of
the defendant and his dependents for whom support is sought and
all other pertinent information."
Section 8oo7- I r.
"If the court of this state acting as an initiating state finds
that the petition sets forth facts from which it may be determined
that the defendant owes a duty of support and that a court of the
responding state may obtain jurisdiction of the defendant or his
property, he shall so certify and shall cause certified copies of the
petition, the certificate and an authenticated copy of this act to be
transmitted to the court of the responding state."
Section 8oo7-I2.
"vVhen the court of this state, acting as a responding state,
receives from the court of an initiating state the aforesaid copies,
it shall (I) docket the cause, ( 2) notify the prosecuting attorney
or his representative who shall thereafter represent the initiating
state, ( 3) set a time and place for a hearing, and ( 4) take such
action as is necessary in accordance with the laws of this state to
obtain jurisdiction."
The plain import of Section 8oo7-I2, supra, is that the court of the
responding state acquires jurisdiction in particular cases only after the
action designated in 'Sections 8oo7-IO and 8oo7-rr, supra, has been taken
in the court of the demanding state. These provisions are plain and unam-
biguous and .provide no basis or necessity for such a construction as would
permit the court to obtain such jurisdiction in any manner other than that
which is thus provided. Moreover, these provisions contain not the slightest
suggestion that the process may be reversed, so to speak, by allowing the
obligor to initiate an action in the court of the responding state in order
to answer a supposed demand in a situation in which no actual demand has
4I4
OPINIONS
been made. I am bound to conclude, therefore, that the obligor in such
case has no right of election but rather that such right of election as is
provided in this act between (I) extradition and ( 2) affording the obligor
the opportunity to be relieved of extradition under the provisions of Sec-
tion 8oo7-6, General Code, lies with the demanding state.
Accordingly, in specific answer to your inquiry, it is my opinion that
a person for whom an extradition requisition has rbeen received by the Gov-
ernor of Ohio, from a state which has enacted the Uniform Dependent's
Act, asking for the person's return to the demanding state for desertion or
non-support, must be relieved of extradition under Section 6 of the Act,
where such person submits to a court of record in this state and complies
with the court's order of support. Such court cannot, however, obtain
jurisdiction to make such order of support otherwise than in the manner
designated in Sections 8oo7-I0, 8oo7-I I and 8oo7-12, General Code; and
where there has been no compliance with the provisions of these sections
an obligor may not be relieved of extradition by a mere offer to submit to
the jurisdiction of the court of the responding state.
30!0
Respectfully,
c. WILLIAM O'NEILL
Attorney General
TOWNSHIP TRUSTEES-NOT LIABLE UNDER SECTION
3298-I7 GC, SECTION 557I.IO RC, INDIVIDUALLY OR IN OFFI-
CIAL CAPACITY TO PERSONS INJURED THROUGH NEGLI-
GENT MAINTENANCE OR OPERATION OF TOWNSHIP
OWNED STONE QUARRIES - TRUSTEES U);AUTHORIZED
TO PROCURE LIABILITY INSURANGE 'COVERING QUARRIES.
SYLLABUS:
Township trustees are not liable under Section 3298-17, General Code, Section
5571.10 R.C, or any other section, either individually or in their official capacity to
persons injured through the negligent maintenance or operation of township-owned
stone quarries ; therefore, township trustees are unauthorized to procure policies of
liability insurance covering quarries.
ATTORNEY GENERAL
Columbus, Ohio, September 2, 1953
Hon. Sumner J. \Valters, Prosecuting Attorney
Van Wert County, Van Wert, Ohio
Dear Sir:
I have before me your request for my opinion which reads as follows:
"Ridge Township, in Van Wert County, is one of the few
Townships of the State of Ohio which operates a stone quarry in
connection with the Township road system. On the land which
they own for vhis purpose is situated two holes; one hole is an
abandoned quarry and is filled with water; the other hole is an
active hole from which stone is presently being quarrie-d. The
general pu1blic has access to both of these quarries. The active
quarry they remove stone from on occasion and the abandone-d
quarry the public fishes in and on occasions members of the
general pu1blic swim in this quarry, although it is posted with
signs saying, 'No swimming allowed.'
"The Trustees of Ridge Township have consul1:ed me with
respect to their liability to persons who might be injured around
these quarries, and I 1have explained to them their general non-
liability as a governmental subdivision, however, we are wonder-
ing in view of General Code of Ohio, Section 3298-17 whether or
not this quarry operation is so closely connected with their duties
in vhe maintenance and upkeep of roads that there might not be
some liability. There.ore, would you please render your Opinion
for us with respect to the following questions :
"r. May the Trustees be liable as individuals to per-
sons who might be injured through negligent operation
of these quarries.
"2. Are the Township Trustees liable in their official capac-
ity to persons who might be injured through negligent
operation of these quarries.
"3. May the Township Trustees purchase liability insurance
to compensate persons who might be injured through the
negligent operation of vhese quarries and pay for the
same from Township funds.''
At common law neither townships nor township trustees are -liable
for negligence, since townships are but political subdivisions of the state,
organized as a part of i'he machinery of the government for the perform-
416 OPINIONS
ance of functions of a public nature, and, as suoh, they partake of the
State's immunity from liability. It follows, therefore, that liability, if any,
must be imposed by statute. See 39 Ohio Jurisprudence, Townships, Sec-
tion 88, page 337
Section 3298-17, General Code, Section S57I.IO, R.C., to which refer-
ence is made in your letter of request, reads as follows:
"Each board of township trustees shall be liable, in its official
capacity for damages received by any person, firm or corporation,
by reason of the negligence or carelessness of said board of trus-
tees in the discharge of its official duties."
The foregoing section is a part of an act passed in 1915, ro6 Ohio
Laws, 574, 647, "to provide a system of highway laws for the state of
Ohio."
It was held in Opinion No. 2498, Opinions of the Attomey General
for 1950, page 730, that the statutory liability of the township trustees
created by Section 3298-17, General Code, is limited to roads, and road
machinery or equipment used with relation to roads. The request prompt-
ing the 1950 opinion indicated that township trustees proposed to procure
liability insurance coverage on such property as the township offices, fire
houses, voting booths, and similar property. My predecessor held that
lia:bility insurance might not be taken out upon such property due to the
fact that Section 3298-17, General Code, is actually directed at township
negligence in the construction, maintenance and repair of township roads.
Under Section 3370, General Code, Section 5571.02, R.C., township trus-
tees are placed under the duty to keep township roads in good repai'L
The abandoned quarry, which is filled with water, bears no relation-
ship to the improvement or maintenance of township roads. With regard
to the other quarry, from which t'he township occasionally removes stone
for the purpose of improving township roads, it is my opinion that Section
3298-17, General Code, does not impose tort liaJbi.Jity upon township trus-
tees for the negligent operation or maintenance of the quarry. Section
3298-17, General Code, imposing liability for negligence upon the town-
ship trustees, is in derogation of common -law and should be strictly con-
strued. Washington Township v. Rapp, 50 Ohio App., r. It would appear
that the legislature was concerned solely with injury to persons or damage
to property traveling the towns'hip roads, which injury or damage results
ATTORNEY GENERAL
from the negligent upkeep of the road or negligent operation of road
machinery or equipment. The stone quarry is merely the source from
which the road material is obtained.
Evidently the legislative -purpose with reference to township trustees,
was to parallel the liability of county commissioners found in Section 2408,
General Code, Section 305.12, R.C., which section specifically imposes
liability upon the commissioners for damages resulting from negligence in
not keeping a road in repair.
Since there is no statute imposing tort liability upon the township
trustees in their official capacity for Vhe negligent maintenance or operation
of a township stone quarry, it follows that the township trustees may not
lawfully pay the premium on a policy of public liability insurance covering
the quarry. See Opinion No. 2406, Opinions of the Attorney General for
1
953
You have asked further whether the township trustees as individuals
might be liable to persons who might be injured through the negligent
operation of t'he quarries. I presume that this question is not directed at
a situation where the township trustee in person negligently injures a
person at the quarry site. I shall assume that you are concerned with a
situation where a person is injured through negligence upon the part of a
township employe who is engaged in the operation of the township quarry.
Suffice it to say .that a public officer is not personally liable in tort to an
injured party unless a statute imposes a public duty upon the officer and
the officer wilfully neglects to pedorm that duty. See 32 Ohio Juris-
prudence, Public Officers, Sec. ro8, p. 966. Since I find no statute imposing
a duty upon the township rt:rustees with respect to the maintenance of a
quarry, this question, like the others, must be answered in the negative.
Accordingly, it is my opinion that township trustees are not liable
under Section 3298-17, General Code, Section 557I.IO, R.C., or any other
seotion, either individua1ly or in their official capacity to persons injured
through the negligent maintenance or operation of township-owned stone
quarries ; therefore, township trustees are unauthorized to procure policies
of liability insurance covering quarries.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
418
OPINIONS
MUNICIPAL UNIVERSITY- COUNTY TAXING DISTRICT-
COUNTY COMMISSIONERS TAXING AUTHORITY-MUST
SUBMIT TO ELECTORS QUESTION OF LEVYING A TAX TO
PAY DISTRICT'S SHARE OF ANY AGREEMENT FOR MAIN-
TENANCE OF MUNICIPAL UNIVERSITY-{;OUNTY COMMIS-
SIONERS WITHOUT AUTHORITY TOT AKE ACTION BEFORE
EFFECTIVE DATE OF LAW, OCTOBER 13, 1953-AMENDED
SUBSTITUTE HB 721, 100 GA.
SYLLABUS:
In view of the fact that Amended Substitute House Bill No. 721, 100 General
Assembly, which designates that part of a county lying outside of a municipality in
which a municipal university is situated as a "county municipal university taxing dis-
trict," designates the county commissioners as the "taxing authority" of such a district
and authorizes such commissioners to submit to the electors of such district the
question of levying a tax to pay the district's share of any agreement for the mainte-
nance of a municipal university, will not :become effective until October 13, 1953, the
county commissioners are without authority to take any action as such "taxing
authority" before the effective date of such law.
Columbus, Ohio, September 10, 1953
Hon. Harry Friberg, Prosecuting Attorney
Lucas County, Toledo, Ohio
Dear Sir:
I have before me. your request for my opinion, which reads as .follows:
"Amended Substitute House Bill 721 permits county com-
missioners to participate financially in the operation of municipal
I do not have. a complete copy of rhe bill as enacted,
hut I do know that the funds for this purpose are to be secured
by levy outside the ten mill limitation to be approved by the people.
The hill in question does not become. effective until October 13,
1953
"General Code Section 5625-15 (5705.19) requires any
resolution for the submission to the voters of proposals for out-
side levies to be adopted 'prior to the fifteenth day of September
in any year.'
"In view of the aJbove, I would appreciate your opinion as
to whether it is legaJly possible to submit a proposed levy to the
voters of Lucas County in the November, 1953 election."
ATTORNEY GENERAL
Amended Substitute House Bill No. 721, 100 General Assembly,
enacted Sections 3349.23, 3349.24, 3349.25 and 3349.26, Revised Code,
as follows:
Section 3349.23 :
"The board of county commissioners of any county in which
a municipal university is situated may enter into an agreement
with the hoard of directors of suc:h municipa1 university for par-
ticipation by such county in the development, maintenance, and
operation of such municipal university.
Section 3349.24 :
"Any agreement authorized by section 3349.23 of the Re-
vised Code may provide for the amounts of such participation by
such county in the development, maintenance, and operation
of such municipal university, and the rights and priviieges to be
enjoyed by the county and its inhabitants by virtue of such
participation, to the end that all residents of said county shall
be entitled to the educational advantages of said municipal uni-
versity at the same rate of tuition, fees, and other charges as are
provided for residents of the municipal corporation in which suoh
university is situated.
Section 3349.25 :
"For the purpose of levying any tax which may be found
necessary to meet fiscal obligations under any agreement author-
ized 1by section 3349.23 of the Revised Code, that portion of said
county 'lying outside of the corporate limits of such municipality
sh31ll be a taxing district to be known as the county municipal
university taxing district.
''The board of county commissioners of such county, which
shall 'be the taxing authority, shall submit to the electors of said
taxing district, in the manner provided by sections 5705.01 to
5705.26, inclusive, of the Revised Code, the question of author-
izing the county commissioners to levy a tax for such purpose,
within the constitutional ten mill limitation.
"In the event such issue is approved by the percentage of
vote required in section 5705.26 of the Revised Code the board
of county commissioners shall levy such tax upon all lands within
such district, and they shall order from time to time the transfer
to the board of directors of the municip31l university, by warrant
of the auditor, such sums of tax moneys collected as are neces-
sary to meet county obligations under such contract.
"The board of county commissioners, as such taxing author-
ity .for the purposes of the agreement authorized by section
3349.23 of the Revised Code, may also submit to the electors of
such taxing district in the manner provided for by sections 5705.01
420 OPINIONS
to 5705.26, inclusive, of the Revised Code, a proposal to levy a >tax
outside the ten mill limitation at a specified rate and for a specified
period, not to exceed five years.
Section 3349.26:
"Sections 3349.23 to 3349.25, inclusive, of the Revised Code
shall not he construed to limit in any respect the powers of the
municipality, or the council wherein such municipal university
is located, to provide by tax levy or otherwise for the financial
support of such municipal university."
This bill was filed in the office of the Secretary of State on July 14,
1953 and, thus, under the provisions of Article II, Section rc of the Ohio
Constitution, can not go into effect until ninety clays after such date, that
is, on October 13, 1953.
vVhile, assuming that no referenclw11 petition Is filed to such act
within the period of ninety clays authorized by this same section of the
Constitution, such act will :be in full force and effect on and after October
13, 1953 and, thus, will be in effect on November 3, 1953, the day of the
general election this year, nevertheless, I am lead to the inescapable con-
clusion Vhat the county commissioners are powerless to .take any official
action prior to the time the act .becomes effective with regard to sub-
mitting any proposed tax levy to a vote of the electors on November 3, 1953.
Until such time as the act becomes effective, a "county municipal tax-
ing district" does not exist and the board of county commissioners of
Lucas County is not the "taxing authority" for such district. The county
commissioners 'take action to submit the matter to the board of elections
under Sections 5705.01 .to 5705.26 of the Revised Code not as county
commissioners, but by virtue of their special designation in the act as the
"taxing authority" of the "county municipal university taxing district."
Amended Substitute House Bill No. 721 specifically provides that the
submission to the electors shall be "in the manner provided by Sections
5705.01 to 5705.26, inclusive of the Revised Code." As you point out in
your letter, Section 5705.19, Revised Code, Section 5625-15, General Code,
requires that any resolution for the submission to the voters of proposals
for outside levies be adopted "prior to the fifteenth day of September of
any year." It will be noted that Section 5705.25, Revised Code, Section
5625-16, General Code, provides that such resolution shall be certified by
the taxing authority to the board of elections prior to the fifteenth day of
September in any year.
ATTORNEY GENERAL 421
In view of the specific requirements of Sections 5705.19 and 5705.25,
Revised Code, as to the adoption of the resolution and its certification to
the board of elections prior to the fifteenth day of September, it would
appear quite clear that the board of county commissioners, at such time,
would not be authorized to take such action.
It is true that Sections 5705.19 and 5705.25, Revised Code, deal specifi-
cally with tax levies outside of the ten mill limitation, whereas under the
terms of Amended Substitute House Bill No. 721, in addition to the power
given by the fourth paragraph of Section 3349.25, Revised Code, to the
board of county commissioners to submit to the electors a proposal to levy
a tax outside the ten mill limitation, the second paragraph of said section
provides that such board, as the taxing authority "shall submit to the elec-
tors of said taxing district in the manner provided by Sections 5705.01 to
5705.26, inclusive, of the Revised Code, the question of authorizing the
t:ounty commissioners to levy a tax for such purpose, within the constitu-
tional ten mill limitation." (Emphasis added.) Since the only "manner"
provided for the submission of any tax levy to the electors by Sections
5705.01 to 5705.:26, inclusive, is that contained in .Sections 5705.19 and
5705.25, which require the passage of a resolution by the taxing authority
and a certification of the same to the board of elections prior to the fifteenth
day of September, it must be concluded that the "manner" provided by
these two sections is governing as to proposals within the ten mill limita-
tion, as well as those outside the ten mill limitation, in so far as Amended
Substitute House Bill No. 721 is concerned.
In conclusion, it is my opinion that in view of the fact that Amended
Substitute House Bill No. 721, roo General Assembly, which designates
that part of a county lying outside of a municipality in which a municipal
university is situated as a "county municipal university taxing district,"
designates the county commissioners as the "taxing authority" of such a
district and authorizes such commissioners to submit to the electors of
such district the question of levying a tax to pay the district's share of
any agreement for the maintenance of a municipal university, will not
become effective until October 13, 1953, the county commissioners are
without authority to take any action as such "taxing authority" before
the effective date of such law.
Respect ully,
c. WILLIAM O'NEILL
Attorney General
422 OPJNIONS
3039
CLERKS-COMMON PLEAS AND PROBATE COURTS-EACH
COUNTY-REQUIRED TO PAY TO TRUSTEES OF LAW LI-
BRARY ASSOCIATION OF COUNTY MAXIiMUM SUM OF
$125o.oo PER ANNUM-APPLICATION IS TO PAYMENTS OF
EAJCH CLERK, NOT TO AGGREGATE CONTRIBUTIONS-
OPINION 1788, OAG 1940, PAGE 116, OVERRULIE1D-SECTION
3056-2 GC, SECTION 3375.52 RC.
SYLLABUS:
Under the provisions of Section 3056-2 General Code, Section 3375.52 Revised
Code, the clerks of .the common pleas and probate courts, respectively, of earn county,
are required to pay to .the trustees of the law library association of the county from
the sources therein set forth, up to a maximum sum of $1250.00 per annum, and such
maximum sum applies to the payments of each of said clerks and not to their aggregate
contributions. Opinion No. 1788, Opinions of the Attorney General for 1940, page 116,
o\erruled.
Columbus, Ohio, September 15, 1953
Hon. Stanley N. Husted, Prosecuting Attorney
Clark County, Springfield, Ohio
Dear Sir:
I have before me your communication, requesting my opmwn and
reading as follows :
"The Board of Trustees of the Clark County Law Library
have requested me to ask you for your opinion on the interpreta-
tion which is to be given Section 3056-2 of the General Code of
Ohio, relative to the amount of monies which is to be paid over
to the Library Trustees by the clerks of the Probate Court and
Common Pleas Court. The specific question is this :
"Is Section 3056-2 of the General Code of Ohio to be inter-
preted to mean that the clerks of the Common Pleas Court and the
Probate Court shall pay over to the trustees of the law library a
sum not to exceed $1,250.00 each, or whether the clerks of each
of these courts should pay combined sums not to exceed $1,250.00?
"Some months ago, I rendered an opinion to the Clerk of the
Common Pleas Court of Clark 1County, Ohio, and held that each
of the clerks of the two courts, under the provisions of Section
3056-2 of the General Code of Ohio, should pay over sums not to
exceed $1,250.00.
ATTORNEY GENERAL
"There is a recent Common Pleas Court decision on the ques-
tion which I have propounded to you, and it is the case of Van
Wert County 'Law Library Association v. Stuckey, 42 0. 0., I.
There has been an earlier opinion given on this question by a
former Attorney General in 1940, and it is to be found in the 1940
Opinions of the Attorney General, No. 1788."
It will be helpful, I believe, in arriving at the correct interpretation of
Section 3056-2 General Code, to trace briefly the history of this legislation
and to note the changes. Section 3056 General Code, originally provided
for certain payments by police courts to the county law library association.
That section was amended on several occasions, but it was not until the
amendment in 1910, 101 Ohio Laws, 295, that a duty was placed on the
clerk of the probate and common pleas courts to contribute directly to the
support of such organization. By that amendment, there was incorporated
in said Section 3056 the following language :
"* * * In all counties the fines and penalties assessed and col-
lected by the common pleas court and probate court for offenses
and misdemeanors prosecuted in the name of the state, shall be
retained and paid quarterly by the c l e r l ~ of such courts to the
trustees of such library association, but the sum so paid from the
fines and penalties assessed and collected by the common pleas and
probate courts shall not exceed five hundred per annum. The
moneys so paid shall be expended in the purchase of law books and
the maintenance of such association."
Said Section 3056 was further amended 111 1929 and 1930, but the
above quoted language was not cl1anged in any particular. In 1939, n8
Ohio Laws, 453, the section was divided and what is now Section 3056-2
was taken out and set up as an independent provision. Section 3056, after
providing for certain contributions by the clerks of all the municipal, police
and mayors' courts in the county, reads as follows:
"* * * Provided, however, that the total amount paid here-
under in any one ca-lendar year by the clerks of all municipal,
police a.nd mayor's courts in any one county to the trustees of
such law library association shaH in no event exceed $7,500.00
and the maximum amount paid by any one of such courts shaH
in no event exceed $3,000.00 in any one Ca!lendar year. The maxi-
mum amount to be paid hereunder by each such clerk shall be de-
termined by the county auditor in December of each year for the
next succeeding calendar year, and shall bear the same ratio to
-$7,500.00 as the total fines, costs and forfeitures received by the
corresponding municipality, bear to the total fines, costs and for-
OPINIONS
feitures received by all the municipalities in the county, as shown
for the last complete year of actua:l receipts, on .the latest avai-lable
'budgets of such municipalities; and payments in the fuU amounts
hereinbefore provided shaH be made monthly by each clerk in each
calendar year until the maximum amount for such year shall have
been paid. When such amount, so determined by >tthe auditor,
shall have been paid to the trustees of such law library association,
then no further payments shaH he required thereunder in that
calendar year from the clerk of such court."
Section 3056-2, General Code, reads as ,foHows :
"In each county of the state, all monies arising from fines
and penalties .Jevied, and from cash deposits, bail bonds and
recognizances taken by the common pleas and probate courts of
such county, which have become forfeited, on account of offenses
and misdemeanors brought for prosecution in such courts in the
name of the state, shall be retained and paid monthly by the clerk
of such courts to the trustees of such law library associaJtions, hut
the total sums so paid therefrom shaH not exceed $r25o.oo per
annum, and when tha,t amount shaH have been paid to the trustees
of such law library association, in accordance with the provisions
of this section, then no further payments shall be required there-
under in that calendar year from the clerks of such respective
courts." (Emphasis added.)
I wou1ld call particular attention to two changes that were made m
the former reading, relative to the contribution by the clerks of the court of
common pleas and the probate court. First, the word "sum", in the former
aot was changed to "total sums." Secondly, the word "respective" was
imerted. For !better comparison I quote again the pertinent portions of
the old and new statutes : Section 3056 provided :
"* * * but the sum so paid from the fines and penalties
assessed and collected by the common pleas and probate courts
shaH not exceed five hundred dollars per annum."
Section 3056-2, reads in part:
"* * * but the total sums so paid therefrom shaH not exceed
$1250.00 per annum, and when that amount shall have been paid
to the trustees of such law library association, in accordance with
the provisions of this section, <then no further payments shall be
required thereunder in that calendar year from the clerks of such
respective courts." (Emphasis added.)
Under the language of the original section, it could have been possible
to conclude that the legislative intent was to group the two courts together
and apply the maximum of $500 to the combined contribution of both
ATTORNEY GENERAL
courts. The use of the word "sum" would seem to suggest that a tota'l
contribution by the clerk of both courts was the measure to be applied.
When the legislature reenacted <these provisions in their present form and
sta1ed th<l't when the "total sums" of $1250.00 per annum had been paid to
the Association "then no further payments shaH be required thereunder
in the calendar year from the clerks of such respective courts," it appears
to me that the legislature recognized that in the cumulative contributions
by two independent courts, two distinct sums of $1250.00 would be reached,
and intended that the contribution up 1o the maximum named by each
of !:he respective clerks would relieve them from further obligation.
The word "respective" has been defined by the Standard Dictionary
as meaning "singularly and severally considered," As defined by Webster
the word means: "As relating to each." Both of these definitions have been
adopted by numerous courts, including our own. vVeeks v. Thompson,
66 Ohio App., 1, 12; Wartic v. Miller, 48 Ohio App., 494, 505; Wolf v.
Ry. Co., 55 Ohio St., 517.
It is my opinion that the -legislature meant to make it clear that
the obligation of each court and each clerk was to be "singularly and
severally considered."
It appears to be clear that the statute in its present form was enacted
for the purpose of requiring the payment up to $1250.00 by the clerk of each
of 1he two courts named. If it were the legislative intention to make this
obligation a joint one, it is obvious that confusion would result because
there is no means provided by the law for allocating to each of these courts
the portion which it should contribute. The proceeds from fines, for-
feitures, me., in one court might 'be greatly in excess of those arising in the
other, and they might vary greatly from month to month.
An examination of the present provisions of Section 3056, Genera'!
Code, which I have quoted, will, I believe, greatly strengthen my con-
clusions on this subject. There, a number of municipal courts, police and
mayor's courts are involved and the statute provides that t:he combined
contributions from all of them are not to exceed $7500.00. Accordingly,
the statute goes on to provide th<l't the amount to be contributed by each
such court in any year is to be determined 'by the county auditor, in advance,
based upon the total received 'by aU the municipalities in the county during
the last year of actual receipts. I am convinced that ,if the legislature had
426 OPINIONS
intended to place the clerks of the common pleas and probate courts in the
position of joint contributors up to the stated maximum, it would have
made some similar provision with reference to their contributions. In
this connection, it must be kept in mand that the two sections, in their
present form, were part of the same aot.
As indicated by your letter, we have two opuuons on this subject
which are contrary to each other. The first is Opinion No. I 788, Opinions
of the Attorney General for I940, page I I6, wherein it was held:
"Under the provisions of Section 3056-2, General Code, the
clerks of the common pleas and probate courts together shall con-
tribute to the trustees of the county law Library association not
to exceed $I250.00 per annum out of the moneys arising from
fines and penalties levied, and from cash deposits, bail bonds and
recognizances taken by said courts, which have become forfeited,
on account of offenses and misdemeanors brought for prosecution
in such courts in the name of the state."
In that opinion the then Attorney General discussed the change in the
reading of the statute from "sum" to "total sums" but he brushed it aside
and did not comment upon the possilble effect of the word "respective."
In the case of Van Wert Law Library Association v. Stuckey, 42 Ohio
Opinions, I, decided in I949, the precise question here before us, together
with a considerable list of other questions relating to the general subject
was submitted to the Common Pleas Court of Van Vvert County. Judge
MeN eil, passing on the question, held as indicated by paragraph I I of the
headnotes:
"Under Section 3056-2, General Code, the probate court of
each county must pay yearly up to $I250 to the county law library
association from monies arising from violations of the criminal
laws, and the clerk of the court of common pleas must likewise
pay up to $I25o.oo."
In the body of the opinion the court dealing with this question said :
"IS. G. C. 3056-2 provides that the probate court of each
county shaH pay yearly up to $I250.00 to a county law library
association from monies arising from violations of the criminal
laws, and in addition, the clerk of the court of common pleas shall
likewise pay up to $I250.00 to such law library association from
monies arising from violations of the criminal laws. Such pay-
ments should be made directly to such law library association and
not to the county treasurer."
ATTORNEY GENERAL
\iV;hile the decision of the common pleas court is perhaps not binding
except in the county where rendered, I feel that it is the correct conclusion
and that I must accordingly overrule the opinion of my predecessor a;bove
referred to. Accordingly, in specific answer to your question you are
advised that under the provisions of Section 3056-2, General Code, Sec-
tion 3375.52 Revised Code, the clerks of the common pleas and probate
courts, respectively, of each county are required to pay to the trustees of
the law library association of the county from the sources therein set forth,
up to a maximum sum of $I250.00 per annum, and that such maximum
sum applies to the payments of each of said olerks and not to their aggregate
contritbutions. (Opinion No. I788, Opinions of the Attorney GeneraJl for
I940, page I I6, overruled.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
BOKDS-UNIFORIM BOND AICT-TO REMODEL, EQUIP AND
FURNISH MEMORIAL BUILDING-ERECTED SHORTLY
AFTER YEAR I9IO UNDER THEN EXISTENT STATUTES-
COUNTY COMMISSIONERS-MAY ISSUE THE BONDS, SEC-
TION 2433 GC, SECTION 307.02 RC-THE BONDS MAY NOT BE
ISSUED UNDER SECTION 3059-I GC, SECTION 345.02 RC.
SYLLABUS:
Bonds may be -issued by the board of county commissioners under the provisions
of Section 2433, General Code, Section 307.02, Revised Code, a,nd under the provisions
of the Uniform Bond Act and particularly under Section 2293-2 tihereof, Section 133.24,
Revised Code, for the purpose of remodeling, equipping and a memorial
building erected shor.tly after the year 1910 under the statutes as they then existed;
such bonds, however, may not be issued under Section 3059-1, General Code, Section
345.02, Revised :Code.
OPINIONS
Columbus, Ohio, September I,), I953
Hon. 'Mathias H. Heck, Prosecuting Attorney
Montgomery County, Dayton, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"The Memorial Building of Montgomery County was erected
shortly after the deed for the property was acquired January 4,
1910. It is located on East First Street between Jefferson and
St. Clair Streets, Dayton, Ohio.
"The building has become old and out of date for present use
and the County Commissioners desire to remodel and re-equip the
same to install air conditioning to it. The remodeling will neces-
sitate the tearing out of the rear wall for the purpose of resetting
the stage, etc. The total cost the Board estimates will be about
Three Hundred Thousand Dollars. About one-half would be for
remodeling and one-half for equipping. The Board desires to sub-
mit a bond issue to the electors for that purpose.
"Section 3059- I provides that the power to issue bonds is for
the purpose of purchasing a site, erecting, equipping and furnish-
ing, or for establishing a memorial to commemorate the services
of all members and veterans of the armed forces of the United
States.
"The authority to remodel the building is not mentioned in
the authority conferred by the Section to issue bonds. The im-
provements considered by the Board of County Commissioners
would make the building suitable for all the purposes for which
memorial buildings are intended. The present condition of the
building makes it a burden on the taxpayers.
"I desire your opinion as to whether Section 3059-1 permits
a bond issue for the purpose of remodeling, equipping and furnish-
ing the building. Can the authority to erect, construct or build be
construed to include the authority to reconstruct or rebuild-at
least partially rebuild?
"The Board desires, if possible, to submit the matter to the
electors this coming November."
Your request states that the memorial building mentioned therein was
erected shortly after the year I910. At that time Section 3o68, General
Code, see Page and Adams Annotated Code for 1910, Vol. I, provided
ATTORNEY GENERAL
429
that after the completion of the memorial building, the trustees "shall turn
it over to the county commissioners who shall provide for the maintenance,
equipment, decoration and furnishing thereof * * *." Later, this section
was amended to provide that upon completion the building trustees "shall
transfer the same to the county and the title of such site and buildings shall
thereupon vest in the county" ; and further provided for the appointment
of a permanent board of trustees by the Common Pleas Court, to manage,
control and supervise such memorial buildings and grounds. The above
mentioned statutes and amendments thereto were repealed in I 945, I 2 I
Ohio Laws, 294, and new statutes with reference to the erection of me-
morials were enacted, such statutes being presently numbered Sections
3059 to 30Ci9-I, General Code, Sections 345.01 to 345.18, Revised Code.
You now desire to know whether a bond issue for the purpose of
"remodeling, enlarging and furnishing" a memorial building erected under
the former sections, is permitted under the present act, and particularly
under Section 3059-1, General Code.
Before rendering an interpretation of Section 3059-I, General Code,
I should point out that it is my opinion that under the facts which you have
presented, the county commissioners have authority to remodel the memor-
ial building under the provisions of Section 2433, General Code, Section
307.02, Revised Code. That section authorizes county commissioners to
"construct, enlarge, improve, rebuild, equip and furnish" certain designated
buildings and "other necessary buildings." Under the facts of this case,
whereby the commissioners have had placed upon them the duty of main-
taining an old memorial building which they did not construct, I believe
that they have considerable discretion in designating such a structure as
an "other necessary building" within the meaning of Section 2433.
The provisions of the Uniform Bond Act, Section 2293 et seq., Gen-
eral Code, Section I33.0I et seq., Revised Code, are applicable to the
issuance of bonds for the purpose of paying for such remodeling. Section
2293-2, General Code, in particular should be noted. The pertinent part of
this statute is as follows:
"The taxing authority of any subdivision shall have power
to issue the bonds of such subdivision for the purpose of acquiring
or constructing, any permanent improvement which such sub-
division is authorized to acquire or construct. * * *"
Permanent improvement is defined in Section 2293-1 (e) as "in-
430
OPINIONS
eluding reconstructions, enlargements and extensions thereof having an
estimated life or usefulness of five years or more."
You have asked in particular, however, as to the authority to 1ssue
bonds for the remodeling, under Section 3059-I, General Code. This
section reads in part as follows :
"The taxing authority of any municipality, township or
county shall have power to issue the bonds of such subdivisions
for the purpose of purchasing a site, erecting, equipping and
furnishing, or for establishing a memorial to commemorate the
services of all members and veterans of the armed forces of the
United States. * * *"
Shortly after the enactment of the present statutes there was pre-
sented to this office, among other questions, the question with regard to
the status of memorial buildings constructed under the former sections.
See Opinion No. 702, Opinions of the Attorney General for 1946, page 25.
The then Attorney General concluded that the control of county memorial
buildings erected under the old sections was cast upon the county com-
missioners, and further stated that the new statutes were not relevant
to memorial buildings previously erected, but related only to those erected
or to be erected after the effective elate of the new law. With this view I
am in accord.
Even were I to assume that Section 3059-I, General Code, applies
to memorials erected prior to the date of its enactment, it is further to be
noted that this section does not provide for rebuilding or remodeling of
any building, nor does it contain any specific provision permitting a bond
issue for the purpose of remodeling of an existing memorial building
erected under the former statutes.
Accordingly, it is my opinion that bonds may be issued by the board
of county commissioners under the provisions of Section 2433, General
Code, Section 307.02, Revised Code, and under the provisions of the Uni-
form Bond Act and particularly under ,Section 2293-2 thereof, Section
133.24, Revised Code, for the purpose of remodeling, equipping and
iurnishing a memorial .building erected shortly after the year 19Io under
the statutes as they then existed; such bonds, however, may not be issued
under Section 3059-I, General Code, Section 345.02, Revised Code.
Respectfully yours,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL 431
r. HIGHWAY SAFETY, DEPA'RTMENT OF - SECTIONS OF
AMENDED HOUSE BILL 243, roo GA, WHICH REMAIN IN
FORCE AFTER JULY r, 1954, ADEQUATELY PROVIDE FOR
CONTINUATION OF DEPARTMENT - TO BE EST A B-
USHED OCTOBER 2, I953
2. THE SECTIONS OF THE BILL WHICH WILL REMAIN IN
FOR'CE AFTER JULY I, I954, TOGETHER WITH SECTION
141.03 (0) RC, ADEQUATELY PROVIDE AFTER THAT
DATE FOR POSITION, DIRECTOR OF HIGHWAY SAFETY.
3 GOVERNOR HAS POWER TO A P P 0 I NT A DIRECTOR
SHOULD VACANCY OCCUR AFTER JULY I, I954 - AP-
POINTED TO SERVE AT PLEASURE OF GOVERNOR.
SYLLABUS:
1. The sections of Amended House Bill No. 243, 100th General Assembly, which
will remain in force after July 1, 1954 adequately provide for continuation of the De-
partment of Highway Safety which is to be established October 2, 1953.
2. The sections of Amended House Bill No. 243 which will remain in force after
July 1, 1954 together with Section 141.03 (0), :Revised Code, adequately .provide for
the position of Director of Highway .Safety after that date.
3. Should a vacancy occur in the position of Director of Highway Safety after
July 1, 1954, the power to appoint .to fill such vacancy is in the Governor, the appointee
to serve at the pleasure of the Governor.
Columbus, Ohio, September r6, 1953
Honorable Frank ]. Lausche, Governor, State of Ohio
Columbus, Ohio
Dear Sir:
I have your request for my opinion as to the legal effect of the follow-
ing facts. The One Hundredth General Assembly enacted into law
Amended House Bill No. 243 and Amended Senate Bill No. 155. Amended
House Bill No. 243 creates a new Department of Highway Safety and
is effective October 2, 1953. Among the sections of that bill are Sections
121.02 and I2I.03, Revised Code. These sections of the bill read in per-
tinent part as follows :
432
OPINIONS
Section I2I.02 (IS4-3).
"The following administrative departments and their respec-
tive directors are hereby created: * * *
"(L) The department of highway safety, which shall be ad-
ministered rby the director of highway safety.
"The director of each department shall exercise the powers
and perform the duties vested by law in such department."
Section I2I.03
"The following directors of administrative departments shall
be appointed by the governor, by and with the advice and consent
of the senate, and shall hold their offices during the pleasure of
the governor : * * *
"(8) The director of highway safety. * * *"
Subsequent to the enactment and executive approval of _-\mended
House Bill No. 243, Amended Senate Bill No. rss which creates a new
Department of Mental Hygiene and Correction was enacted and passed
over the executive veto. Amended Senate Bill No. ISS is effective July I,
I9S4 Among the sections enacted by this later legislation are the same
Sections I2I.02 and I2I.03, Revised Code. These sections of Amended
Senate Bill No. ISS read in pertinent part as follows:
Section I2I.02 (IS4-3)
"The following administrative departments and their respec-
tive directors are hereby created : * * *
"(L) The department of mental hygiene and correction,
which shall be administered by the director of mental hygiene ::mel
correction.
"The director of each department shall exercise the po\Yers
and perform the duties vested by law in such department.""
Section I2I.03:
"The following directors of administrative departments shall
be appointed by the governor, by and with the advice and consent
of the senate, and shall hold their offices during the pleasure of
the governor : * * *
" ( 8) The director of mental hygiene and correction. * * *"
In short, the legislature by its later and therefore controlling enact-
ment has omitted the language of Section I2I.02, Revised Code, creating
the Department of Highway Safety, the director of the department, and
the language of Section I2I.03, Revised Code, providing for appointment
of the director. In view of this, your specific inquiry is as follows:
"First, in the absence of further legislation, will the Depart-
ment of Highway Safety be in existence after July I, I954?
ATTORNEY GENERAL
"Second, in the absence of further legislation, will the posi-
tion of Director of Highway Safety continue to exist after July
I, 1954?
"Third, if you should rule that the Department of Highway
Safety and the position of Director of Highway Safety continue
after July I, 1954, who appoints the Director and what is his term
of office?
"Fourth, if the position of Director of Highway safety does
not exist after July I, I954, and the Department of Highway
Safety continues to exist, who shall perform the duties of Director
of Highway Safety after July I, I954 ?"
433
It must be pointed out that the authority to establish the Department
of Highway Safety and to appoint the director of that department after
October 2, 1953 is clear. I take it that this authority is recognized by your
request. The department obviously may operate without any question as
to its authority untily the effective date of Amended .Senate Bill No. I55,
July I, I954
.-\ few further preliminary observations must 'be made. Article II,
Section I6, Ohio Constitution provides in part:
~ o bill shall contain more than one subject, which shall
be clearly expressed in its title, and 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. * * *"
Amended Senate Bill No. ISS represents the last a;ction of the legisla-
ture \\ith respect to Sections I2I.02 and I2I.03, Revised Code, and that
bill is thus controlling in the event of conflict with previous enactments
even of the same session of the legislature. State, ex rei. Guilbert v.
Halliday, 63 Ohio St., I65. Under the Constitution therefore, it is clear
that an express repeal of Sections I2I.02 and I2I.03, Revised .Code, as
they appear in Amended House Bill No. 243 will be effected by the re-
enactment of the same sections in Amended Senate Bill No. IS'S when the
latter becomes effective on July I, I954
Amended House Bill No. 243 contained some twenty one other sec-
tions dealing with the same subject matter which are as follows: Sections
5502.01, J4I.03, 4501.02, 4501.04, 4503.04, 4503.IO, 4503.2I, 4503.22,
4503.26. 4503.37, 4505.I4, 4505.17, 4505.03, 4513-37, 4517.IO, 5SOI.02,
5503.01, 5503.03, 5503.05, 5503.20 and 5503.23. These twenty one sec-
434
OPINIONS
tions of the Revised Code which are included in Amended House Bill No.
243 are in no way affected by Amended Senate Bill No. I 55 and are there-
fore without question effective before and after July I, I954 These
twenty one effective sections not only est<l!blish new governmental duties
in the Department of Highway Safety, but in addition effectively transfer
the entire operation of the State Highway Patrol and the Bureau of Motor
Vehicles to the department. Thus the underlying problem which you
present is the effect of sheer legislative inadvertence in repealing two out
of the twenty three sections of a complete and comprehensive highway
control program.
Of course, as m any problem of this sort, we are governed by the
intent of the legislature. This intent, however, must be discovered in the
effective action taken by the legislature. Slingluff et al v. Weaver et al.,
66 Ohio St., 62r. Neither I nor a court, as a general rule, can correct a
legislative mistake. The Christ Diehl Brewing Co. et al. v. Schultz, 96
Ohio St., 27. We are left to interpret that which remains, mistake or not.
Obviously if by similar inadvertence all of the sections of Amended House
Bill No. 243 had been subsequently re-enacted without reference to the
Department of Highway Safety, a complete repeal would have been ef-
fected and that department would have suffered a quick demise. Such is
not the case here. In spite of its error, we are left to determine the intent
of the legislature in effectively enacting the remaining twenty one sections
of Amended House Bill No. 243.
r. Will the Department of Highway Safety continue in effect after
July I, I954 even though Section I2I.02, Revised Code, as it applies to that
department is repealed as of that date? The provisions of the remaining
effective sections of Amended House Bill No. 243 referred to above
are determinative of this question. Do those sections standing alone effec-
tively provide for such a department? Several of these sections must be
considered. Section 5502.0I, Revised Code, vests extensive powers and
duties in a "department of highway safety". It reads as follows:
''The department of highway safety shall administer and en-
force the laws relating to the registration, licensing, sale and
operation of motor vehicles and the laws pertaining to the licens-
ing of drivers of motor vehicles.
"The department shall compile, analyse, and publish statistics
relative to motor vehicle accidents and the causes thereof, pre-
pare and conduct educational programs for the purpose of pro-
ATTORNEY GENERAL
moting safety in the operation of motor vehicles on the highways,
assist and encourage the operation of driver training instruc-
tion in the public schools and conduct research and studies for
the purpose of promoting safety on the highways of this state."
435
Section 4501.02, Revised Code, creates a bureau of motor vehicles in a
"department of highway safety" and empowers the director of such
;lepartment to appoint a registrar of motor vehicles. By this same sec-
tion the issuance of all rules and regulations for administration of the
bureau of motor vehicles is made dependent upon the approval of a
director of highway safety, and approval by the same official is needed
before any personnel can be employed to administer the motor vehicle
laws and before any expenses can be incurred. Section 450I.04, Revised
Code, specifies that certain revenues be available to defray the expenses
of "the department of highway safety." Section 4503.10 (F), Revised
Code, authorizes the registrar to deposit funds in local banks, but again
only with the approval of "the director of highway safety" and the deposit
is "to the credit of the state of Ohio department of highway safety".
Every person owning a motor vehicle must, under the provisions of Sec-
tion 4503.21, Revised Code, display on the vehicle a number or registra-
tion mark furnished by the "director of highway safety" and the "director
of highway safety" is given the sole power under Section 4503.22, Revised
Code, to prescribe the color of license plates. Section 4503.26, Revised
Code, gives the "director of highway safety" sole power to advertise
for and accept bids for the preparation of registration lists and the bids
must be opened by the director "at the office of the department of high-
way safety". (Emphasis added.) Section 4503.37, Revised Code, au-
thorizes the "director of highway safety" together with other officials to
enter into reciprocal agreements with other states regulating the use of
Ohio highways by vehicles owned in other states. Section 4513.37,
Revised Code, provides for filing information relative to certain viola-
tions of motor vehicle laws. This informatio!1 is to be filed with the
"department of highway safety" on forms prescribed by the department
and the department is charged with the duty of maintaining a file of this
information. Section 4517.IO, Revised Code, places the motor vehicle
dealers' and salesmen's licensing board in the "department of highway
safety". Of even more importance, Section 5503.01, Revised Code,
creates a state highway patrol in the "department of highway safety",
gives the "director of highway safety" the power to appoint the .super-
OPINIONS
intendent of the patrol, and makes the director's approval a necessary
prerequisite to the appointment of patrolmen. This section together with
the following Sections 5503.03, 5503.05, 5503.2I and 5503.23 generally
speaking make the whole operation of the state highway patrol dependent
upon the department of highway safety. As 1. final summary it might
be noted that these twenty-one sections of Amended House Bill No. 243,
which were not disturbed by Amended Senate Bill No. I 55, specifically
mention the department of highway safety a dozen times and the director
of that department some three dozen times.
It is apparent from this examination that the legislature has made
extensive provision for a department of highway safety in statutes which
will continue in force after July I, 1954. If this is not the case, let us
examine the consequences of the alternative. No unit of state government
would have the power or responsibility for enforcement of the laws relat-
ing to registration, licensing, sale or operation of motor vehicles. There
would in fact be no bureau of motor vehicles, no funds with which to
operate such a bureau and no authority to employ personnel even if the
burecvu did exist. This would in effect mean an end to the entire motor
vehicle licensing system in Ohio and the revenues derived therefrom. In
addition there would be no state highway patrol in Ohio, for the authority
to appoint a superintendent, to appoint patrolmen, to obtain equipment, to
employ other personnel, to train men, to conduct driver's license examina-
tions and to conduct driver training schools would ,cease. These are but
the major areas in which some form of anarchy would prevail. Nor
would it be possible to conclude that these operations could be continued
in the absence of a department of highway safety for aside from the
authority given the department there is no independent power granted.
These subordinate divisions coulci not be transferred back to their in-
dependent status without statutory authorization which is lacking. If
the department fails so do the subordinate divisions.
The force and effect of the remaining sections of Amended House
Bill No. 243 can be destroyed only if we were to hold that these sections
suffered an implied repeal when the legislature mistakenly effected an
express repeal of those portions of Section 121.02 and 121.03, Revised
Code, which relate to the Department of Highway Safety. It must be
remembered that repeal by implication is never favored. Ohio v. Dudley,
I Ohio St., 437 Upon considering the chaotic consequences therefore it
ATTORNEY GENERAL
437
c<mnot be said that the legislature intended an implied repeal of the
remaining part of Amended House Bill No. 243. Added support for this
conclusion is found in the established rule of construction that absurd
or unreasonable results are to be avoided where an alternative exists.
Sawyer v. State, 4S Ohio St., 343
It is therefore my opinion and you are advised that the sections of
Amended House Bill No. 243 which will remain in force after July I,
I9S4 adequately provide for continuation of the Department of Highway
Safety which is to be established October 2, I9S3
2. The analysis set out above is of course equally applicable to your
second question. In fact the force of the reasoning is the greater when
the position of director is considered. Although there could hardly be
a director without a department, nevertheless, it is the director who is
charged with the important powers which make the department and its
divisions operative. It is, if anything, clearer therefore that the sections
of Amended House Bill No. 243 w,hich provides for the continuation of
the Department of Highway Safety after July I, 1954 provide also for
the position of director of that department. One further thing should
be noted. Amended Senate Bill No. ISS which effected the inadvertent
repeal specifically provides for the salary of tbe Director of Highway
Safety in Section I41.03 ( o), Revised Code. This bill being the later
enactment, and not taking effect until July I, I9S4, makes doubly clear
that the position was to continue beyond that date.
It is therefore my opinion and you are advised that the sections of
Amended House Bill No. 243 which will remain in force after July I,
1954 together with Section 14I.03 ( o), Revised Code, adequately provide
for the .position of Director of Highway Safety after that date.
3 The power to appoint the director of highway safety 1s spe-
cificaily given to the Governor on the effective date of Amended House
Bill No. 243. The problem presented there.fore could only arise if a
vacancy occurred after July I, 1954. It would follow, however, that if
the legislature has created a department, the functions of which depend
upon a director, and a director to head that department, they must have
Intended that tJhat official could be brought into existence. Conversely,
if the inadvertent repeal of Section I2I.o3, Revised Code, prevents the
of a director should a vacancy occur, then it -must be said
OPINIONS
that the legislature by that repeal intended to negate the entire effect
of the remaining sections of Amended House Bill No. 243 as discussed
above. This obviously is not the case. The Department of Highway
Safety is an integral part of the executive branoh of state government.
Article III, Section 5, of the Constitution of Ohio vests the supreme
executive power of the state in the Governor. The conclusion is there-
fore apparent that where the legislature creates a position in the executive
branch of government and further provides the duties and salary of that
position without setting forth the specific means of appointment to the
position, the power of appointment comes within the executive authority
of the Governor and depends upon that official's pleasure.
It is therefore my opinion and you are advised that should a vacancy
occur in the position of Director of Highway Safety after July I, I954,
the power to appoint to fill such vacancy is in the Governor, the appointee
to serve at the pleasure of the Governor.
4 The answers given above make unnecessary a discussion of yOtir
fourth question.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
439
3052
1. .MUNICIPAL LIBRARY DISTRICT-DGTY OF CLERK TO
DEPOSIT MONEYS OF LIBRARY DISTRICT, RECEIVED
FROM ANY SOL'RCE, IN A DESIGNATED DEPOSITORY-
BOARD OF TRUSTEES OF LIBRARY DISTRKT - l:'NI-
FOR:M DEPOSITORY LAW - SECTIONS 22-r ET SEQ.,
7627-r, GC-SECTIONS I35.01, 3375.32 RC.
2. MONEYS DERIVED FROM GIFTS OR BEQUESTS-UN-
LESS RESTRICTED BY DONOR. lVIAY BE INVESTED AS
ENDO\VMENTS- SECURITIES- CLERK, .MUNICIPAL
LIBRARY DISTRICT-- TRUSTEES -J.VIUST EXERCISE
SOUND DISCRETION TO DETERMINE TYPE OF INVEST-
MENT.
SYLLABUS:
1. Under the terms of Section 7627-1 General Code. Section 3375.32, Revised
Code, it is the duty of the clerk of a municipal library district to deposit rhe moneys
of such library district -received from any source whatsoever. in a depository desig-
nated by the board of trustees of such. district, and it is the duty of such board of
trustees to designate such depository in accordance with the provisions of the Uniform
Depository Law, as set forth in Section 2296-1, et seq. of the General Code, Section
135,01, Revised Code.
2. :Moneys coming into the hands of the clerk of a municipal library district,
derived fr-om gifts or bequests, may, unless restricted by the donor, be invested as
endowments in such securities as the trustees of said library district, in the exercise
of a sound discretion, may determine.
Columbus, Ohio, September r8, 1953
Hon. Charles 'vV. Ayers, Prosecuting Attorney
Knox County, Mount Vernon, Ohio
Dear .Sir:
I have before me your request for my opinion, reading as follows:
"We have in the City of Mount Vernon, Ohio, a municipal
library created under Ohio GeneralCode Section 4004. The ques-
tion has arisen concerning investments which can be made by the
board of library trustees.
440
OPINIONS
"Ohio General Code Section 7627-I provides that the clerk
shall place all monies in a depository designated by the board of
library trustees. However, this does not inform the trustees as
to the types of investments which they can make. Are the trus-
tees bound by the so-called 'legal investments' of the statutes in
the Probate Code or can the trustees invest funds in their sound
discretion ?
"Your opinion concerning this matter at your earliest con-
venience will be greatly appreciated."
Section 4004, General Code, Section 3375.12, Revsied Code, provides
for the appointment by the mayor of a board of trustees of a municipal
library; provides that such board shall organize, in accordance with the
provisions of Section 7627 -of the General Code; and provides further,
that in the exercise of its powers it shall be governed by the provisions of
Sections 7627- I through 7630- I, General Code.
Section 7627, General Code, Section 3375.32, Revised Code, provides
that such board of trustees shall organize in January of each year by
electing a president, vice president and secretary. It is further provided:
"* * * At the same meeting they shall elect and fix the com-
pensation of a clerk, who may be a member of the board, and
who shall serve for a term of one year. The clerk, before entering
upon his duties, shall execute a bond in an amount and with surety
to be approved by the board of library trustees, payable to the
board of library trustees, conditioned for the faithful performance
of all the official duties required of him."
Section 7627-r, General Code, reads as follows:
"The clerk of the board of library trustees of a free public
library shall be the treasurer of the library funds. All monies
received by such clerk for library purposes, from any source
whatsoever, shall be immediately placed by him in a depository
designated by the board of library trustees. Such clerk shall keep
an account of the funds credited to said board upon such forms
as may be prescribed and approved by the bureau of inspection
and supervision of public offices. Such clerk shall render a state-
ment to the board of library trustees monthly showing the reve-
nues and receipts from whatever sources derived, the disburse-
ments and the purposes thereof and the assets and liabilities of
the board. At the end of each fiscal year the clerk shall submit
to the board of library trustees a complete financial statement
showing the receipts and expenditures in detail for the entire fiscal
year."
ATTORNEY GENERAL
441
Section 7630, General Code, sets out the powers of such board of
trustees, which include, among others, the acquisition and ownership of
real property, the construction of library buildings and the control and
operation of such library .
.Section 7628, General Code, provides :
"The boards of library trustees appointed pursuant to the
provisions of sections 2454-1, 3405, 4004, 4840-r and 7643-2 of
the General Code shall be bodies politic and corporate, and, as
such, capable of suing and being sued, contracting and being con-
tracted with, acquiring, holding, possessing, and disposing of
real and personal property and of exercising such other powers
and privileges as are conferred upon them by law."
All of the above sections are part of an act of the Legislature, effec-
tive September 4, 1947, and found in 122 Ohio Laws, page r66.
Referring to Section 7628, supra, it was held by the Common Pleas
Court of Summit tCounty, in Miller v. Akron Public Library, 6o Ohio
Law Abs., 364:
"Under Section 7628, General Code, the legislature made all
the various library boards bodies politic and corporate, and as such
capable of suing and being sued, contracting and being contracted
with, acquiring, holding, possessing and disposing of real and per-
sonal property, and of exercising such other powers and privileges
as are conferred upon them by law thus making them separate
and distinct entities or bodies politic and corporate, separate and
apart from the municipality, the county, the school board, etc., and
not agents of said bodies politic."
It is manifest that the new law governing all these libraries has worked
radical changes in the status of public libraries, and in their financial pro-
cesses. It will be noted that the treasurer of a municipality, who is regu-
larly the custodian of all public moneys of the municipality, no longer has
custody of the funds of the library. This responsibility clearly devolves
on the clerk of the library board. See Opinion No. 2549, Opinions of the
Attorney General for 1947, page 639.
However, the municipal library district does not cease to be a public
body, nor do the moneys of such library district cease to be puiblic funds.
Accordingly, we look to the statutes governing the deposit of public funds.
442
OPINIONS
The Uniform Depository Act set out in Section 2296-1, et seq. of the
General Code (Section 135.0I, Revised Code), provides for the deposit
in certain depositories of public moneys generally. Section 22-1 defines
the scope of the law. It reads in part:
"* * * (a) 'Public moneys' means all moneys in the treas-
ury of the state, or any subdivision thereof, or coming lawfully
into the possession or custody of the treasurer of state, or of the
treasurer of any such subdivision. 'Public moneys of the state'
includes all such moneys coming lawfully into the possession of the
treasurer of state; and 'public moneys of a subdivision' includes
all such moneys coming lawfully into the possession of the treas-
urer of the subdivision.
"(b) 'Subdiuision' 1neans any county, school district, mu-
nicipal corporation (excepting a municipal corporation or a county
which has adopted a charter under the provisions of article XVIII
or article X of the Constitution of Ohio having special provisions
respecting the deposit of the public moneys of such municipal
corporation or county), township, municipal or school district
sinking fund, special taxing or assessment district or other district
or local authority electing or a.ppointing a treasurer in this state.
* * *
"(g) 'Treasurer' includes the treasurer of state and the
treasurer, or other officer exercising the functions of a treasurer,
of any subdivision * * *.
" ( i) 'Governing board' means * * * in the case of any other
subdivision electing or appointing a treasurer, the directors, trus-
tees, or other similar officers of such subdivision. * * *"
(Emphasis added.)
It seems clear that the General Assembly undertook to make this law
all inclusive, so as to include every body or agency which handles public
money. It broadened the usual definition of "subdivision" so as to include
not only the usual political or taxing subdivisi,ons, but every "loca1l au-
thority electing or apj_Xlint,ing a treasurer in this state." lt broadened the
normal definition of public moneys by including 'all suoh monies coming
lawfully into the possession of the treasurer."
It appears, therefore, that the funds of a municipal library district are
"public moneys," that the board of trustees are the 'governing body" and
that the clerk of such district is the "treasurer," all within the purview
of Section 2296-1, et seq. of the General Code, and that the deposit of
ATTORNEY GENERAL
443
the funds of such library district required 'by Section 7627-1, supra, and
the designation of a depository wiH be governed by the provisions of Sec-
tion 2296-1, et seq., General Code.
Section 2296-7, Genera-l Code, and the sections which follow, outline
l'he dunies and procedure of the governing hoard in designating depositories,
and prescribe the qualifications of financial institutions which may be so
designated.
Recurring to Section 7627- I, supra, it is to be noted that the duty
placed upon the clerk relative to the deposit of funds, is not limited to
monies which are derived ,from taxes. On the contrary, the statute requires
that "all monies received by such clerk for library purposes, from wny
source whatsoever, shaH be immediately placed by him in a depository
designated by the board of library trustees."
I recognize a di-stinction between monies that may be considered
strictly as public monies, and monies which may come into the hands of
the trustees by gifts or legacies to be used for the benefit of the library. It
appears clear, however, that the despository statute is designed to provide
for the immediate safekeeping of all monies which come into the hands
of vhe clerk, whatever their character or purpose. Of course, they are sub-
ject to withdrawal for proper expenditure.
Having been placed in the depository, the question arises as to what
if any of these monies may he "invested" by the trustees. It has long been
the settled doctrine of the State that strictly public money cannot, in the
absence of specific authority in the law, be loaned or invested by the officers
in charge thereof. Thus, ,it was held in the case of State of Ohio v. Buttles,
3 Ohio St., 309:
"The policy of this State, in view of all our statutes regulat-
ing the coHeotion, safekeeping and disbursement of the public
money, has always been to prohibit its officers and agents from
loaning or dealing in its funds, on public or private account; a
few exceptions where officers have been authorized by special
statutes to loan or otherwise improve particular funds, only make
the genera-l rule the more manifest."
'Public money'' would certainly embrace all momes raised ;by legal
processes, such as levy of taxes, and sale of bonds. It is said in 42 Ameri-
can Jurisprudence, 718:
444
OPINIONS
"Public funds are monies belonging to the United States or a
corporate agency of the Federal Government, a state or suhdivi-
'Sion thereof, or a municipal corporation. They represent moneys
raised by operation of law for the s-upport of the government or
for the discharge of its obligations. * * *"
Accordingly, as to such money, there is no right m the board of trus-
tees of a l ~ b r a r y to invest the same in any form of security unless specifi-
cally authorized by the statute. Upon careful examination of the statutes,
I do not find that any such authority has been grantee!.
The trustees of a :public library, however, may and frequently do re-
ceive gifts or bequests which may be either unlimited as to their use or
expressly designated as endowment funds. As to gifts or bequests, Sec-
tion 7630, General Code, expressly gives the trustees of any library the
authority to receive them and to use the same in accordance with the con-
ditions set out !by the donor. Section 7630, General Code, Section 3375-40,
Revised Code, provides in part:
"The boards of library trustees appointed pursuant to the
provisions of sections 2454-r, 3405, 4004, 4840-r and 7643-2 of
the General Code shall have the following powers to wit: * * *
"ro. By the adoption of a resolution accept any bequest,
gift or endowment upon the conditions and stipulations connected
with such bequest, gift or endowment; provided, however, no such
bequest, gift or endowment shall be accepted by such boards if
the conditions thereof shall remove any portion of the free public
library under their jurisdiction from the control or such board
or if such conditions, in any manner, limit the free use of such
library or any part thereof by the residents of the county or count-
ies in which such library is located. * * *"
Here, it will be noted, library boards are authorized to accept be-
quests, gifts and endowments, upon the conditions and stipulations pre-
scribed by the donor. If the gift or bequest is designated as an endowment,
the principal to be held without diminution and the interest or income to
be used for the benefit of the library, then it would appear that the library
board would hold the same as a trust, and in the absence of specific direc-
tions by the donor, as to the form of investment, should invest it in such
manner as to produce the largest return consistent with safety. If such
gift or bequest is wholly unrestricted as to the use of either the corpus
or the income therefrom, the board would have the right either to apply
ATTORNEY GENERAL
445
it directly to the maintenance or improvement of the library, or to invest
it as other endowment funds are handled.
Accordingly, in specific answer to your question, it IS my opinion
and you are advised:
I. Under the terms of Section 7627-1, General Code, Section
3375.32, Revised Code, it is the duty of the clerk of a municipal library
district to deposit the moneys of such library district received from any
source whatsoever, in a depository designated by the board of trustees of
such district, and it is the duty of such board of trustees to designate such
depository in accordance with the provisions of the Uniform Depository
Law, as set forth in Section 229(}-1, et seq. of the General Code, Section
135.0I Revised Code.
2. Moneys coming into the hands of the clerk of a municipal library
district, derived from gifts or bequests, may, unless restricted by the donor,
be invested as endowments in such securities as the trustees of said li-
brary district, in the exercise of a sound discretion, may determine.
Respect ully,
c. WILLIAM O'NEILL
Attorney General
OPJNIONS
3054
1. FIRE DEPARTMENT-TOWNSHIPS A AND B-NEITHER
HOUSES A FIRE DEPARTMENT - THEY PARTICIPATE
WITH TOWNSHIP C AND VILLAGE X IN JOINT PUR-
CHASE AND MAINTEKANCE OF FIRE FIGHTING EQUIP-
MENT HOUSED WITHIN VILLAGE X - VOLUNTEER
FIREMEN FROM VILLAGE X AND TOWNSHIP C OPER-
ATE FOR PROTECTION OF TOWNSHIPS A, B, C AND \TIL-
AGE X - TOWNSHIPS A AND B DO NOT HAVE AND
MAINTAIN A FIRE DEPAR'DMENT WITHIN MEANING
OF SECTION 4647-1 GC-SECTTON 741.81 RC.
2. TOWNSHIP TRUSTEES OF A AND B TO"VVNSHIPS lVIAY
CONTRACT TO REIMBURSE TOWNSHIP C FOR Al\Y
PENSION OR INDEMNITY AWARD ASSESSED AGAI?\ST
TOWNSHIP C FOR INJURIES OR DEATH OF FIRE DE-
PARTMENT MEMBER- SEJCTION 3298-6o GC- SECTION
505-44 RC.
SYLLABUS:
1. Where neither township "A" nor township "B" houses a fire department, but
participate with township "C" and village "X" (located within township "C'),
in the joint purchase and maintenance of fire fighting equipment housed within
village "X" and operated by volunteer firemen from village "X" and township
"C," for the protection of townships "A," "B," and "C" and village "X," neither
township "A" nor township "B" is a towonship "having and maintaining therein a
fire department within the meaning of Section 4647-1, General Code, Section
741.81, R.C.
2. By virtue of Section 3298-60, General Code, Section 505.44, R.C, the township
trustees of townships "A" and "B" may, by contract, provide for reimbursement
of township "C," for any pension or indemnity award assessed against township
"C" for injuries or death of a fire department member.
Columbus, Ohio, September 18, 1953
Bon. Gale B. \iVeller, Prosecuting Attorney
Morrow County, Mt. Gilead, Ohio
Dear Sir:
I have before me your request for my opinion which reads as follows:
"I respectfully submit the following facts and questions for
consideration by you and your staff:
ATTORNEY GENERAL
"FACTS:
The townships of Peru and \;v'estfield, Morrow County, Ohio,
township of Oxford in Delaware County, Ohio, and the village
of Ashley, Ohio, said village being entirely contained within the
township of Oxford, have for some years maintained fire-fighting
equipment at their mutual expense as provided by General Code
Section 3298- 54 The equipment has been and is manned by volun-
teer firemen of the Ashley fire department, who reside either in
the village of Ashley, Ohio, or in the township of Oxford in
Delaware County, Ohio. The equipment is housed permanently
''"ithin the corporate limits of the village of Ashley.
"QCESTIONS:
( r) Under the above facts is there a mandatory duty exist-
ing wherein the trustees of Peru and \;v'estfield Townships, Mor-
row County, Ohio, must establish a 'Firemen's Indemnity Fund'
as provided by General Code Section 4647-1 et seq.?
447
" ( 2) If such a duty exists, is it possible for the trustees to
act jointly with the trustees and council of the other interested
subdivisions, and establish one fund to which all parties would
contribute on a pro rate basis?
"(3) If a joint fund may be established, what formula must
be used in computing each corporation's contributory share, i.e.,
should they contribute in equal fractions of the whole, or in rela-
tion to their total tax valuation?
" ( 4) If said corporate entities cannot act to establish a
joint fund, is there a duty on each participating group to establish
their own 'Firemen's Indemnity Fund'?
'' (5) Even if there exists no mandatory duty under these
facts, is it permissible for the township of Peru and/or township
of Westfield to voluntarily establish such a fund and provide for
assessment of taxes to service said fund?
' (6) Assuming that all the foregoing questions may be
answered in a manner favorable to the establishment of a fund,
in what manner is the 'total' amount of said fund, as referred to
in Section 4647-4 to be determined?
"I will appreciate any and all considerations you may be able
to give this matter, as it is submitted on behalf of this office, the
office of the Delaware County Prosecutor, and the solicitor from
the village of Ashley, Ohio.
. I understand that all of the sub?_ivisions mentioned l!nited
in the purchase of the fire fighting equipment. I am also given to under-
OPINIONS
stand that the equipment is not manned by a private fire company, so
that your reference to "volunteer firemen of the Ashley fire department"
signifies only that the fire department is manned by part-time employes.
Section 4647-1, General Code, Section 741.81, RC, relative to the
established of a "Firemen's Indemnity Fund" reads as follows:
"That in all municipalities or townships having no firemen's
pension fund created under the provisions of Chapter I, title
12, division 6 of the General Code of Ohio ( GC Section 6400
et seq., and having and maintaining therein a fire department sup-
ported in whole or in part at public expense, a firemen's indemnity
fund shall be created and disbursed as herein provided."
(Emphasis added.)
Section 46oo, General Code, applies to municipalities employing two
or more full-time firemen. Section 4615-2, General Code, enacted in 1947,
applies to townships which employ two or more full-time employes. These
two sections, therefore, do not apply to the facts you present.
Section 4647-1, General Code, it will be noted, imposes a duty upon
townships "having and maintaining therein" a fire department, where
that fire department is supported to some extent at public expense. The
legislature inserted the word "townships" in this statute in 1937, II7 Ohio
Laws, 158, at which time there was no authorization to be found in the
law for several townships or villages, or a combination of both, to pur-
chase fire fighting equipment through joint action. A township having no
fire department of its own could, nevertheless, contract with another
township or village for fire protection.
In my opinion Section 4647-1 et seq., General Code, was not enacted
with a view toward requiring or allowing a township to establish a fire-
men's indemnity fund for the benefit of firemen housed in, and operating
from, a village in another township, even though the township thus pro-
tected against fire by service from without, participates in the purchase
and maintenance of the fire-fighting equipment.
Only by referring to other statutes enacted subsequent to Section
4647-1, General .Code, do I gain any insight into the legislative solution
to the problem. I refer to certain parts of Sections 3298-54, General Code,
Section 505.37, R<C and 3298-6o, General Code, Section 50544, RC
ATTORNEY GENERAL
449
The following provision was added to Section 32g8-54, General Code,
in 1939 in II8 Ohio Laws, 273, 274:
"* * * The trustees of any hvo or more townships or the
council or other legislative authorities of any two or more political
subdivisions or any combination thereof, are authorized through
joint action to unite in the joint purchase, maintenance, use and
operation of fire-fighting equipment, or for any other purpose
designated in this act, and to pro-rate the expense on such terms
as may be mutually agreed upon. * * *"
In 1939 the following was added to Section 32g8-6o, General Code,
which section deals with contracts between townships, villages or cities
for fire protection :
"* * * and said contracts may provide for the reimbursement
of the subdivision, or private fire company wherein the fire de-
partment members are employed for a-ny pension or indemnity
award or premium contribution assessed against the employing
subdivision, or private fire company, for workmen's compensa-
tion benefits, or casualty insurance premiums, for injuries or
death of its fire department members occurring while engaged in
rendering service in pursuance thereof." (Emphasis added.)
Reading these provisions alongside Section 4647-1, General Code, it
is my conclusion that the townships of Peru and Westfield, in Morrow
County, are authorized to contract with the township of Oxford, Delaware
County, for the reimbursement of the township for any pension or indem-
nity fund for injury or death occurring to a member of its fire department.
It might well be asked why Oxford Township is the proper subdivi-
sion to establish the indemnity fund, or why the Village of Ashley, located
therein, is not also under a duty to establish a fund. It must be admitted
that the Township of Oxford and the Village of Ashley together "have
and maintain a fire department therein." The township, in levying the
three-tenths of a mill tax, provided for in Sections 4647-3 and 4647-4,
General Code, would levy on property within the Village of Ashley, which
of course, is entirely within the township. Were Ashley also to levy the tax
upon village property, in pursuance of a separate indemnity fund for the
village, the result would be a double taxation of the villagers. In order
to avoid such an unreasonable result, it would appear that substantial
compliance with the law would be met were the township to levy the tax,
taxing all of the property within its bounds. Thus, the township establishes
450
OPINIONS
the fund, even though the Village of Ashley might also be looked upon
as having and maintaining a .fire department within its village limits. The
legislative intent is still carried out, in this instance, by allowing the larger
political subdivision to include the lesser.
At this point I would call to your attention Opinion No. 6603, Opin-
ions of the Attorney General for I944, page I I, where at page I 5 I find
the following statement:
"* * * it seems quite clear that where a village is furnishing
fire protection to adjoining townships under a contract authorized
by law, the members of its fire department, whether employed on
a part time or volunteer basis or on full time, are entitled to the
benefit of the indemnity fund established by the village and also
to the benefit of the workmen's compensation law in case of in-
jury, although such injury is suffered outside the municipality by
which they are employed." (Emphasis added.)
The quoted language would seem to indicate that the township of
Oxford must meet its indemnity fund obligation no matter where the
injury to the fireman actually takes place. It then becomes a matter of
contract to be worked out among the various political subdivisions which
are within the orbit of the fire department's protection, as to how and in
what manner reimbursement shall be made. It is not the purpose of this
opinion to dictate or suggest the contractual terms.
I should point out in passing, and with particular reference to your
fifth question, that not only is there no duty resting upon the township
trustees of Peru and vVestfield Townships, Morrow County, to establish
the fund provided for by Section 4647-I, General Code, there is also no
authorization in law for the township trustees to voluntarily establish such
a fund and provide for assessment of taxes to service said fund. Public
officers have only such powers as are expressly delegated to them by
statute, and such as are necessarily implied from those so delegated. 32
Ohio Jurisprudence, Public Officers, Section 7 4, page 934 The township
trustees most emphatically \voulcl not have authority on their own voli-
tion to levy the three-tenths of a mill tax provided for in Section 4647-4,
General Code.
Accordingly, it is my opinion that:
I. vVhere neither township "A" nor township "B" houses a fire
ATTORNEY GENERAL
451
department, but participates with township "C" and village "X" (located
within township "C'), in the joint purchase and maintenance of fire fight-
ing equipment housed within village "X" and operated by volunteer fire-
men from village "X" and township "C," for the protection of townships
"A," "B," and "C" and village "X," neither township "A" nor township
"B" is a township having and maintaining therein a fire department"
within the meaning of Section 4647-1, General Code, Section 741.81, RC.
2. By virtue of Section 3298-60, General Code, Section 505-44, RC,
the township trustees of townships "A" and "B" may, by contract, provide
for reimbursement of township "C," for any pension or indemnity award
assessed against township "C" for injuries or death of a fire department
member.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
EDUCATION, BOARD OF - FAILURE TO GIVE TEACHER
WRITTEN NOTICE OF INTENTION NOT TO REHMPLOY
TIME LIMITED-RESULT-AUTOMATIC RE-
EMPLOYMENT FOR SUCCEEDING YEAR-PROVISO, IF E:iVI-
PLOYEJD IN SCHOOL DISTRICT WHERE LESS THAN 8oo
PUPILS-IN THAT CASE, TERM OF AUTOMATIC
MENT WILL BE FOR MINIMUM PERIOD SPECIFIED FOR
REEMPLOYMENT IN DISTRICT- SECTION 4842-8 GC- SEC-
TION 3319.11 RC.
SYLLABUS:
Under the provisions of Section 4842-8, General Code, Section 3319.11, R.C., the
failure of .t:he board of education to give to a .teacher written notice of its intention
not to reemploy him, within the time limited, will result in his automatic reemploy-
ment for the succeeding year; unless he is employed in a school district having fewer
than 800 pupils, in which case .the terrm of his automatic reemployment will be for the
minimum period specified for reemployment in such district.
452
OPINIONS
Columbus, Ohio, September 21, 1953
Hon. Hugh I. Troth, Prosecuting Attorney
Ashland County, Ashland, Ohio
Dear Sir:
I have before me your request for my opinion, reading as follows:
"If a school board has failed to give the 30 day notice as
requested by 0. G. C Sec. 4842-8, of their intention not to rehire
a teacher, is the new contract period for the next year only, or is
he automatically rehired for a three year term like that which just
terminated?"
Section 4842-8 of the General Code, m so far as pertinent reads as
follows:
"Any teacher emp!O}red under a limited contract shall at the
expiration of such limited contract be deemed re-employed under
the provisions of this act at the same salary plus any increment
provided by the salary schedule unless the employing board shall
give such teacher written notice of its intention not to re-employ
him or her on or before the thirtieth clay of April or thirty days
prior to the termination of such teacher's school year, whichever
date occurs the earlier. Such teacher shall be presumed to have
accepted such employment unless he shall notify the board of
education in writing to the contrary on or before the .first day of
June, and a contract for the succeeding school year, shall be exe-
cuted accordingly. Provided, however, that in school districts of
under eight hundred pupils. the following contract system shall
control:
"a. Beginning teachers, who have not previously been em-
ployed as a teacher in any school, shall be hired for one year.
"b. New teachers, who have had at least one year's expe-
rience as teachers in other schools, shall be employed for a period
of time commensurate with their past experience at the discretion
of the hiring board of education, provided that no such contract
shall be for more than five years.
"c. Upon re-employment after the termination of the first
contract, the new contract shall be for not less than two years nor
more than five years provided that the teacher's educational quali-
fications have been fulfilled and the teacher's work has been satis-
factory.
"d. Upon re-employment after the termination of the
ATTORNEY GENERAL
second contract, the teacher's contract shall be for five years and
subsequent renewal thereof shall be for five-year periods, or the
board of education may at any time grant a continuing contract."
(Emphasis added.)
453
It may be noted that a "limited contract" is defined by Section 4842-7,
General Code, as being "one for a term not to exceed five years." It may
be noted further that as to teachers, generally, there is no minimum term
fixed by law for a limited contract with a teacher. The latter part of the
section above quoted provides for certain definite terms for teachers in
school districts having less than 8oo pupils. It will be observed that in
these smaller districts, a beginning teacher may be employed for one year;
a new teacher for not more than five years; and upon reemployment of
either a beginning teacher or a new teacher, the contract must be for not
less than two nor more than five years, and upon subsequent reemploy-
ment, the teacher's ,contract must be for five years.
In the first paragraph of Section 4842-8 supra, provision 1s made
for an automatic reemployment in case the board of education fails within
the time limited, to give written notice to a teacher of its intention not
to reemploy him. And there follows the provision that unless the teacher
shall fail to notify the board in writing to the CGntrary, on or before the
first day of June, then he shall be deemed to have accepted such automatic
reemployment. Then follow the words, "and a contract for the succeeding
school year shall be executed accordingly."
This last quoted phrase might appear to lead to the conclusion that
this automatic reemployment would require in all cases, a new contract
for one year only. But we must not overlook the fact that in the next
sentence the statute proceeds, by a proviso, to the effect that in school
districts of less than 8oo pupils a "different contract system sha,Jl control."'
If the terms set out in this proviso are to be given effect, it appears that
the term of the automatic renewal which in the case of teachers generally,
would be for only one year, is enlarged in favor of those teachers who
have been employed in the smaller districts. In other words, if the situa-
tion in question arises as to a "beginning teacher" or a "new teacher"
and he is automatically reemployed by reason of the failure of the board to
notify him that he is not to be retained, then his reemployment would
appear to fall within the terms of paragraph (c) and he would be entitled
to a contract for two years. Furthermore, if he has already been reem-
OPJNIONS
played under paragraph (c) then his automatic reemployment would ap-
pear to be for a term of five years, as provided in paragraph (d).
The precise question which you have submitted has not, as far as I
can find, been presented to the courts, however, the Supreme Court has
in several cases dealt with this provision of the statute in question as to
automatic reemployment of a teacher. The case of State ex rei. Ruther-
ford v. Board of Education, 148 Ohio St., 242, was an action in mandamus
to compel the board of education of the city of Barberton to tender the
relator a limited contract for the school year 1946-1947 It is stated that
the relator had been employed under a limited contract in that school for
the year 1945-1946 and that the board had failed to give him notice that
he was not to be retained in the manner and within the period set forth
m Section 4842-8 supra. The court held as shown by the second syllabus:
"A teacher employed under a limited contract shall automati-
cally be deemed re-employed for the ensuing school year, where
his board of education has failed to give him on or before the 31st
clay of March in the year of his employment a written notice of its
intention not to re-employ him for the succeeding year, as per-
mitted by Section 4842-8, General Code, which notice was author-
ized by a resolution expressing a determination of such intention."
The statute at that time required notice to be given the teacher on
or before the 31st clay of ~ h r c h . The court affirmed the judgment of the
Court of Appeals granting a writ of mandamus. It will be observed that
the relator only asked for a contract for one year, and the court granted
his prayer for such one year contract. This was strictly in accordance with
the language of the first paragraph of the section under consideration,
which stated that a contract for the succeeding school year should be exe-
cuted. Manifestly, under the circumstances the teacher could not have
his contract renewed for a longer term because he was not teaching in
a school district having less than 8oo pupils, but rather in a school district
in a city which had upwards of 25,000 population, and certainly more than
Soo pupils.
The court m the course of its opinion had no occasiOn to consider
what would have been the situation if the teacher had been a teacher
in one of the smaller districts covered by the proviso. As a matter of fact,
at the time of the decision there never had been any judicial determination
that the provision as to automatic reemployment applied to these smaller
districts.
ATTORNEY GENERAL
455
In the case of State ex rei. Foster v. Board of Education, rsr Ohio
St., 4r3, this question of the applicability of this provision of the statute
to a district having less than 8oo pupils was first raised, and the court
held:
"r. Under the provisions of Section 4842-8, General Code,
any teacher employed under a limited contract shall at the expira-
tion of such limited contract be deemed re-employed unless the
employing board of education shall give such teacher written
notice on or before the thirty-first clay of March of its intention
not to re-employ him.
"2. This requirement as to notice is applicable irrespective
of whether a school district has fewer than eight hundred pupils."
This was also an action in mandamus brought in the Court of Appeals
of Perry County, in which the relator showed that he had had two two-
year periods in the employ of the respondent board of education, and that
on June 8, r948, he was notified that he would not be reemployed. He
alleged that under the provisions of Section 4842-8, General Code, he was
automatically re-employed for five years, by reason of the failure of the
respondent to give him rhe required notice on or before :V[arch 3rst of
that year. The question, therefore, was squarely presented to the court,
whether this statutory procedure did or did not apply to school districts
having fewer than 8oo pupils. The court affirmed the order of the Court
of Appeals, granting the writ prayed for.
I do not consider that the two decisions above referred to are 111 any
way inconsistent with each other. In the first case, the court apparently
took it for granted that the renewal would be for one year, and made
the order accordingly. In the second case, the court, while not directly
discussing the difference between the larger and smaller districts as af-
fected by the provision for notice, did use language which I believe clearly
indicates that the court recognized that there wa,s a difference. At page
4IS, of the opinion the court said:
"The respondent contends that the lettered paragraphs of
the section provide a separate, complete and unrelated plan for
the employment of teachers in school districts having fewer than
eight hundred pupils.
"A careful study of the quoted language together with the
context has convinced this court that these paragraphs are an in-
tegral part of the section and relate to the matter of term alone.
OPINIONS
No mention is made concerning an exception to the earlier unam-
biguous provision that 'any teacher employed under a limited
contract shall at the expiration of such limited contract be deemed
reemployed under the provisions of this act * * * unless the em-
ploying board shall give such teacher written notice on or before
the thirty-first day of March of its intention not to reemploy
him.'" (Emphasis hy the court.)
I feel that I am quite justified in reaching the conclusion that was
indicated by these two decisions and holding that in any case in which
the teacher is not entitled, if reemployed, to a definite minimum term,
his automatic reemployment effected by the statute will be only for the
succeeding year, whereas, if under the statute his reemployment is to be
for a definite minimum term his automatic reemployment will be for that
same term.
Accordingly, it is my optmon and you are advised that under the
provisions of Section 4842-8, General Code, Section 33 I9. I I RC, the
failure of the board of education to give to a teacher written notice of
its intention not to reemploy him within the time limited, will result in
his automatice reemployment for the succeding year, unless he is employed
in a school district having fewer than 8oo pupils, in which case the term of
his automatic reemployment will be for the minimum period specified for
reemployment in such district.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
457
r. LEVIES-ADDITIONAL FOR SPECIFIC PURPOSES-AP-
PROVED BY VOTE OF ELECTORS IN YEAR OF REAS-
SESSMENT OR IN ANY YEAR PRIOR THERETO-APPLI-
CABLE THROUGHOUT LIFE OF SUCH VOTED LEVY-
SECTION 5548-2 GC.
2. EXISTING ADDITIONAL LEVY FOR SPECIFIC PURPOSES
-RENEWED BY VOTE OF ELECTORS OF TAXING SUB-
DIVISJON- YEAR SUBSEQUENT TO YEAR OF REAS-
SESSMENT-LEVY DEEMED TO BE SEPARATE AND
DISTINCT FROM PREVIOUSLY EXISTING LEVY- PRO-
VISIONS, SECTION 5-548-2 GC, NOT APPLICABLE TO RE-
NEWED LEVY THROUGH FACT PROVISIONS WERE AP-
PLICABLE TO PREVIOUSLY EXISTING LEVY.
3 NO STATUTORY REQUIREMENT RESOLUTION PROPOS-
ING ViOTE ON ISSUE OF ADDITIONAL LEVY FOR SPE-
CIFIC PURPOSE SHOULD CONTAIN STATEMENT OF
TOTAL DOLLAR AMOUNT TO BE RAISED-BALLOT-
FORM - NOT REQUIRED TO CONTAIN STATEMENT,
TOTAL DOLLAR AMOUNT PROPOSED TO BE RAISED
BY LEVY-SECTIONS 5625-r6, 5625-17 GC.
S Y:LJLABUS:
1. The provisions of Section 5548-2, General Code, are applicable to additional
levies for specific .purposes approved by a vote of the electors in the year of reassess-
ment or in any year prior thereto and are applicable .throughout the life of such voted
levy.
2. Where an existing additional levy for specific -purposes is "renewed" by a vote
of the electors of a taxing subdivision in a year subsequent to the year of reassessment,
such levy is deemed to .be one separate and distinct from the .previously existing levy,
and the provisions of .Section 5548-2, General Code, a.re not applicable to such "renewed
levy" solely by reason of the fact that such provisions were applicable to the previously
existing levy.
3. T'here is no statutory requirement that a resolution .proposing a vote on the
issue of an additional levy for specific purposes, adopted under the provisions of Sec-
tion 5625-15, General .Code, should contain a statement of the total dollar amount
proposed to be raised by such levy, or that the ballot to be used at the election at which
such issue is submitted, the form of which ballot is prescribed in Section 5625-17,
General Code, should contain such statement of the total dollar amount proposed to be
raised by the levy.
458
OPJNIONS
Columbus, Ohio, September 21, 1953
Hon. C. Watson Hover, Prosecuting Attorney
Hamilton County, Cincinnati, Ohio
Dear Sir:
I have your request for my opinion as follows:
"On behalf of our local Auditor, we are requesting your
opinion on the following questions relative to the general tax re-
appraisement program since we feel the questions raised have
general statewide significance.
"r. Levies heretofore voted outside the ten mill limit are re-
quired to be reduced proportionate to increased duplicates occa-
sioned by the re-appraisal orders of the Board of Tax Appeals.
Should such reduction be effected only in the year of re-appraisal
upward or should the reduced figure be carried throughout the life
of the levy?
"2. \"!hen a renewal of an existing levy is approved by the
voters subsequent to a re-assessment year or subsequent to a re-
valuation ordered by the Board of Tax Appeals, is the renewal
levy subject to the proportionate reduction required by statute?
.. 3 Is it required that the resolution proposing a vote on an
outside levy carry the total amount proposed to be raised by the
levy in addition to carrying the proposed amount in millage and
per hundred dollars of valuation?
4 Is it necessary that the ballot to be voted specify the
total amount proposed to be raised by the extra levy?
"'vV e feel rather certain that the answer to the two last ques-
tions is in the negative, but since the questions are intimately
involved with the two preceding questions, it seems desirable to
consider them together.''
The statutory proviSIOn for a proportionate reduction in the rate
of voted additional tax levies is found in Section 5548-2, General Code,
Section 57IJ.II, Revised Code, which reads as follows:
"When the people of any taxing subdivision have voted ad-
ditional levies for specific purposes in the year of re-assessment
or any year prior thereto, and said additional levies are effective
in the year of re-assessment or thereafter and are to be calculated
on a total valuation of property higher than that of the year before
re-assessment, the rate of said additional levy shall be reduced
ATTORNEY GENERAL
in the same proportion in which the total valuation of property
in said taxing subdivision is increased by the re-assessment over
the total valuation of the year preceding the re-assessment."
(Emphasis added.)
459
The statutory language emphasized above indicates to me quite
clearly that the proportionate reduction is to apply to any such additional
levies as are effective in the year of reassessment or are effective thereafter.
This whole section is indicative of the legislative notion that where the
voters of a taxing subdivision have voted additional levies for specific
purposes, they wiH have been able, by reason of having constructive knowl-
edge of the ourrent property valuations, to estimate the approximate dollar
amounts which will be realized from such levies. Furthermore, it seems
to be the scheme that where the voters, with this estimate in mind, have
approved a particular levy, such approval should not be deemed to justify
the realization by the taxing authorities of a greater amount of revenues
than would have been realized had no increase in valuation occurred. It is
apparent, of course, that this scheme would be defeated by a oonstruction
of this statutory language in such a way as to make the proportionate
reduction applicable only in the year of reassessment and not applicable
"thereafter" throughout the life of the voted levy. For this reason I con-
clude that such proportionate reduction, if applicable to a particular levy,
is applicable throughout the life of such levy.
vVe next come to the question of instances where the voters approve
the renewal of existing levies, to which existing levies the provisions of
Section 5548-2, General Code, had been applicable. It is true that Section
5625-17. General Code, refers specifically to the "renewal of an existing
levy" but I do not regard this language to have the effect of constituting
such renewed levy as a mere extension of the old. Having in mind the
legislative scheme and purpose above indicated, it will be observed that
when the voters are asked to approve the "renewal of an existing levy.,
they then have constructive knowledge of the current property valuations,
valuations which have been increased in prior years by way of reassess-
ment, and by reason of such knowledge they can form an estimate of the
approximate dollar amount which will be realized by the proposed re-
newal levy. Accordingly, a vote of approval on such issue clearly would be
one in favor of the application of the full amount of the proposed rate to
such current property valuations. For this reason I conclude that where
there has ,been a favorable vote on the renewal of an existing levy sub-
OPINIONS
sequent to the year of reassessment, the provisions of Section 5548-2,
General Code, would not be applicable to such levy.
\iVith respect to your third and fourth questions, we may refer briefly
to Sections 5625-15 and 5625-17, General Code. The pertinent portion
of the former section relative to the resolution of the taxing authority in
the matter of a proposed levy is as follows :
"Such resolution shall be confined to a single purpose, and
shall specify the amount of increase in rate which it is necessary
to levy, the purpose thereof and the number of years during '"'hich
such increase shaH be in effect which may or may not include a
levy upon the duplicate of the current year. The number of years
shall be any number not exceeding five, except that when the
additional mte is for the payment of debt charges the increased
rate shall,be for the life of the indebtedness." * * *
I find nothing in this language which would indicate a necessity for
a statement of the total amount in dollars proposed to be raised by the
levy and so conclude that such statement is not necessary.
The form of ballot to be used at an election at which the issue of the
approval of additional levy is submitted, is prescribed by Section 5625-17,
General Code, which section in pertinent part is as follows:
"* * *
"The form of the lballots cast C ~ J t such election shall be :
"'An additional tax for the benefit of (name of subdivision
........ for the purpose of (purpose stated in the resolution
........ a:t a rate not exceeding ...... mills for each one dollar
of valuation, which amounts to (rate expressed in dollars and
cents) .............. for each one hundred dollars of valua-
tion, for .......... (life of indebtedness or number of years
the levy is to run.'
For the Tax Levy
Against the Tax Levy
"Provided, however, if the levy submitted is a proposal to
renew, increase, or decrease an existing levy, the form of the
ballot herein specified may be changed by substituting for the
words 'An additional' at the beginning of the form the words
'A renewal of a' in the case of a proposal to renew an existing
levy in the same amount, the words 'A renewal of. ..... mills
ATTORNEY GENERAL
and an increase of ...... mills to constitute a' in the case of an
increase, or the words 'A renewal of part of an existing levy,
being a reduction of. ..... mills, to constitute a' in the case of
a decrease in the proposed levy.
''The question covered by such resolution shall tbe sub-
mitted as a separate proposition, hut may be printed on the same
ballot w i ~ h any other proposition submitted at the same election
other than the election of officers. More than one such question
may be submitted at the same election."
Here again I find no requirement for a statement on the 'ballot of a
total dollar amount proposed to be raised by the additional levy and so
conclude that such statement on such ballot is not necessary.
For these reasons, and in specific answer to your inquiry, it 1s my
opinion that :
I. The provisions of Section 5548-2, General Code, are applicable
to additional levies for specific purposes approved by a vote of the elec-
tors in the year of reassessment or in any year prior thereto and are
applicable throughout the life of such voted levy.
2. \lv'here an existing additional levy for specific purposes 1s "re-
nevved" by a vote of the electors of a taxing subdivision in a year subsequent
to the year of reassessment, such levy is deemed to be one separate and
distinct from the previously existing levy, and the provisions of Section
5548-2, General Code, are not applicable to such "renewed levy" solely by
reason of the fact that such provisions were applicable to the previously
existing levy.
3 There is no statutory requirement that a resolution proposing a
vote on the issue of an addition<llllevy for specific purposes, adopted under
the provisions of Section 5625-15, Geneml Code, should contain a state-
ment of the total dollar amount proposed to be raised tby such levy, or
that the ballot to be used at the election at which such issue is submitted,
the form of which ballot is prescribed in Section 5625-17, General Code,
should contain such statement of the total dollar amount proposed to be
raised by the levy.
Respectfully,
C. WILLIAM O'NEILL
Attorney General
OPINIONS
3063
WELFARE, COUNTY DEPARTMENT OF-DIRECTOR-
COUNTY COMMISSIONERS-NEITHER AUTHORIZED BY
LAW TO CONTRACT WITH PERSON OR ORGANIZATION
OUTSIDE OF STAFF TO MAKE SURVEY OF WELFARE DE-
PARTMENT.
SY:LiLABUS:
Neither the director of the county department of welfare nor the commissioners
of the county authorized by law to contract with a person or organization outside of
the staff of the welfare department or of the commissioners, for the purpose of making
a survey of the welfare department.
Colmnbus, Ohio, September 23. 1953
l-ion. Richard P. Faulkner, Prosecuting Attorney
Champa,ign County, Urbana, Ohio
Dear Sir:
I have before me your letter, requesting my opinion and reading as
follows:
"I would like your official opinion on the foll01wing question:
''The Champaign County \iVelfare Department is an inte-
grated department hancU,ing the following programs : (I) the
Cham1)aign County Children's Home; ( 2) poor relief; ( 3) aiel
to dependent children ; ( 4) aid to the needy blind ; ( j) aiel to
the permanently disabled.
"The files and records of most of these programs are hy
statute made confidential and the contents are not to ibe divulged
or used by any persons not connected with the administration of
the various programs.
''Tihe Board of County Commissioners would like to know
whether or not it is possible for vhem to employ an outsider,
such as a university professor who has no connection Wlith the
county administration or any other governmental unit, to make a
survey of the 'vVelfare Department having, of course, access to
its records, and to pay him therefor.
"I have advised the commissioners that it was my opinion
t>hat inasmuch as the files were by statute made confidential that
no persnn not with the administration thereof had any
right to access to the records 'nor did I find any statutory provi-
sion whereby the county commissioners could pay such an out-
sider for suoh work."
ATTORNEY GENERAL
The county department of welfare when established by the county
commissioners of any county pursuant to Sections 25II-1 et seq. of the
Ceneral Code, is to be operated under the control and direction of the
county commissioners, by a county director of welfare, who shall have full
charge oi the department. Provisions of Section 2511-2, General Code,
give the director very broad authority in providing himself witJh all neces-
sary assj.stants. This section reads in part as follows:
* * * The director, wit.Jh the approval of the board of county
commissioners, shall appoint a.JI necessary assista.nts, superin-
felldents of institutions, if any. under rhe jurisdiction of the
department, and all other employees of the department, excepting
that the superintendent of each such .institution shall appoint all
employees therein. The assistants and other employees of the
county department of welfare Slhall be in the classified civil serv-
ice. and may not be placed in or removed to the unclassified
service. * * *" (Emphasis added.)
It appears from your letter that in addition to this broad authority for
the employment of a staff of assistants and other employes, the commis-
sioners desire to know whether they may employ an outsider for the
specific task of making a survey of the welfare department, and you raise
t1w questions : ( 1) whether t!he director of welfare with the approval
of the county commissioners has rhe legal authority to employ such outside
help for that purpose, and ( 2) whether such special employe could have
access to the records and files oi the office which, under the law, are to be
kept confidential, and not open to examination or inspection by outsiders.
Obviously. if the first question is decided .in rhe negative, it will not be
necessary to give particular attention to rhe second.
T'here can be no doubt but that the director of welfare may have in
his hands a large variety of responsibi!.ities and it appears probable that a
careful survey of the entire department might be productive of greater ef-
ficiency and economy. In this connection it may 1be noted that under Section
251 1-4, General Code, such director has certain specific powers and duties,
to wit: (a) aid to dependent children, (b) aiel to the needy blind, (c)
poor relief and burials, (d) cooperation wirh state and federal authorities
in all matters relating to public welfare, (e) an annual account of work,
ami report to the county commissioners and to the state department of
public welfare, (f) such other powers and duties relating to public welfare
as may be imposed upon the department by law, resolution of the county
commissioners, or by order of the Governor during emergencies.
OPINIONS
In ascertaining the pof\vers that may be exeroised by a county or by
any of its hoards or commissions, we are not permitted to indulge, in any
degree, the consideration of convenience or desira:bility, or e\en the goal
of greatest effioiency. Counties are strictly creatures of the legislature,
and the county commissioners and ooher officers of the county have only
those powers which the legislature has seen fit to grant and those which
are clearly implied and essential to the carrying out of the powers granted.
I I Ohio Jurisprudence, page 332. This rule is particularly emphasized
in matters involving the expenditure of public money. In r r Ohio Juris-
prudence, page 573, it is said:
"The authority to act in financial transactions must be clear
and distinctJly granted, and if such authority is of doubtful import,
the doubt is resolved against .its exercise in all cases where a
financial obligation is sought to be imposed upon the county.
State ex rei. Locher v. Menning, 95 Ohio St., 97 These principles are,
I believe, too well settled and recognized to require extensive citation of
auvhority.
In the case of Gorman v. Heuck, 41 Ohio App., 453. it appears that
the county commissioners entered into a contract with the Cincinnati
BurOOJu of Governmental Research, to furnish to the county (a) a study
and report of all the county institutions for the benefit and use of the
county commissioners, (b) to furnish for the benefit and use of the
county treasurer, expert advice, and a report on the study of the .;prepara-
tion and installation of a system of biilling and collecting taxes," and (c)
to furnish for the use and benefit of the auditor a report on ;;preparation
and installation of a system of billing and collecting taxes."' In considera-
tion of these services the Bureau was to be paid the total sum of $6500.
It was shown in the evidence presented, and the court found that
the surveys and reports thus to be furnished would be of great value
to the county and its officers and that each of the proposed surveys cov-
ered matters as to which they were not personally qualified or informed.
It appeared that the of the system recommended \\oulcl result
111 a net saving of $88,000 in the first year.
The court made a ruling, embodied in its as to each of
the three elements of the contract. Typical of all, I quote the paragraph
regarding the survey and report for the county commissioners :
ATTORNEY GENERAL
"Although county commissioners lacked technical knowledge
neces-sary to efficiently administer their office, they could not
secure outside e ~ p e r t advice and cause consideration therefor
to be paid out of public funds."
The court said at page 458, of the opinion:
'If, then, there be no statutory author.ity penmttmg such
expenditures out of public funds, alii that is contended and in-
troduced in evidence can be but strong impelling matter for tJhe
consideration of the Legislature, but unavailing to a court limited
to approval of drafts upon the treasury authorized by the statute
la\\"S of this state."
The court discussed the proposition which was urged, that authority
for this contract could be found in the implied power of the commissioners,
but the court suggested that the only basis on which such claim could rest
was the admitted inability of the officers to do the work themselves, and
the theory of implied powers was accordingly rejected. At page 46o of
the opinion, the court refers to t
1
he fact that the law gave the cormnis-
sioners abundant authority to employ clerks and deputies to assist them,
and said:
'Especially are we assured of our positiOn in this matter,
as full authority is given all officers to employ derks and
deputies to aid and assist them, and it is reasonaible to suppose
that if they themselves do not possess the technical knowledge
necessary to economically and efficiently administer their duties,
they will secure among suoh employees and deputies technical ex-
perts, with sufficient ability to furnish the required advice and
suggestions. Such consideration must have been before the
Legislature."
The motion to certify this case was denied by the Supreme Court,
so that "e may take it as a very clear expression of the attitude of the
highest courts on the subject. And while the court appeared to be strongly
impressed by the admission of the seveml officers that they were not per-
sonally capable of making the surveys and reports, yet the court plainly
rested its decision on the lack of statutory author.ity to go outside of their
own staffs for assistance. Therefore, I regard the decision as squarely in
point on the situation which you present.
It is manifest from the provisions of Section ZSII-2 supra, that the
director of a county department of welfare has very ample authority to
employ such regular assistants as may be necessary to accomplish all the
466 OPINIONS
work of the department, including one or more who have the qualifica-
tions necessary for making the survey in question.
In v.iew of the conclusion which I have indicated. 1 do not deem it
necessary to discuss the question of authority to allow an outside investi-
gator to !have access to the confidential files of the department, relating to
any of the matters under the control of that department.
Accordingly, it is my opinion and you are advised that neither the
director of the county department of welfare nor the commissioners of
the county are authorized by law to contract with a person or organization
outside of the staff of the welfare department or of the commissioners, for
the purpose of making a survey of the welfare department.
3074
Respectfully,
C. \oVrLLIAM O'NEILL
Attorney General
HIGHWAY CONSTRUCTION COUNCIL, STATE- NO .'\U-
THORlTY TO EXPEND FUNDS IN PAYMENT OF OFFICE
RENT, EMPLOYMENT OF ADMINISTRATIVE ASS1ISTANTS,
OFFICE STAFF, CLERICAL AND STENOGRAPHIC SERVICES
-.'\MENDED SUBSTITUTE HB 619, roo GA.
SYLLABUS:
Under the provisions of Amended Substitute House Bill No. 619, oi the IOOth
General Assembly, the state highway construction council provided for therein is
without authority to expend funds in the payment of office rent or in the employment
or administrative assistants, an office staff, and clerical and stenographic senices.
Columbus, Ohio, September 25. 1953
~
1
I r . \V. M. Cotton, Secretary, Ohio Highway Construction Council
Colu'mbus, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"At a meeting of the Highway Construction Council. on
September 2, 1953, the Council adopted a motion that the Attor-
ATTORNEY GENERAL
ney General be requested to advise this Council whether it has
autJhority to authorize expenditures for payment of office rent,
employment of 0ffice staff and other expenses necessary to proper
operation of the Council.
"Jn our discussion of organizing the Council to perform the
duties imposed by statute, it appears that it would be necessary
for the Council to employ at least an administrative assistant and
a stenographer, in order to put into effect the apparent intent of
the General Assembly in its enactment of this legislation. On
the other hand, the Act seems to be silent on the question except
by implication. vVe, therefore, desire to have your opinion on
the matter so that there can be no question of our procedure."
The Ohio Highway Construction Council was created by the enact-
ment of Amended Substitute House Bill 619, enacted July 9, 1953, and
approved by the Governor July 16, 1953. The sections within this act
particularly relating to the creation of the council and the description of
its functions and responsibilities, are as follows:
Section 5512.01, Revised Code:
''There is hereby created a 'state highway construction coun-
cil' consisting of three members to be appointed by the governor
\\'ith the advice and consent of the senate. No member shall
hold any appointive or elective office or l){)Sition. for which he
receives compensation, in the service of the state or any of its
political subclivisions.
"Immediately after this act becomes effective the governor.
with the advice and consent of the senate, shall appoint three
members of the state h i ~ h w a y constructi0n counciL one for a
term ending on the third Monday in January. 1955, one for a
term ending on the third Monday in January, r956, and one for
a term ending on the third lVIonclay in January, 1957. Succes-
sors of each of such members of the highway construction council
shall be appointed by the governor witJh the advice and consent
of the senate, for terms of three years.
"Any member of the council may be removed from office
for any of the causes and in the manner provided for in section
3.04, Revised Code. Any vacancy in the office of member of
council shall he filled pursuant to section 3.03 of the Revised
Code. An appointment to fill a vacancy shall ;be for the remainder
of the term in which the vacancy exists.
"Each member of the council shall receive as compensation
for his services fiftv dollars for each fuH dav spent in the per-
formance of his official duties and shall 1be reimbursed for his
actual expenses incurred in the performance of >his official duties.
OPINIONS
Such compensation and expenses shall be paid out of moneys to
the oredit of the highway construction and bond retirement fund
on vouchers signed by the chairman of the council.
"Within thirty days after the original members of the coun-
cil have been Clippointed they shall meet and select from am-ong
their membership a chairman and a secretary who shall senre
until the third Monday in January of 1955. On the third Mon-
day in January, 1955, and on the third Monday in January in
each year thereafter vhe council! shall meet and organize by select-
ing from among its membership a chaim1an and a secretary to
serve for a term of one year.
"The chairman shall preside at all meetings of the council.
"The secretary shall keep or cause to be kept a c-omplete
record of the official proceedings of the council.
"The council may adopt such rules and regulations govern-
ing its procedure as it may deem necessary.
"Upon request of the wuncil vhe director of highways shall
furnish clerical and stenographic assistance to the council.
"The council may request and obtain from any department,
agency, board, hureau or commission of the state government
any information which it deems necessary to assist in the per-
formance of its official duties."
Section 5<512.02, Revised Code:
"Prion- to the first day of Oct-ober, 1953, the director of
highways shall present to the highway construction council a
general plan for the classification of highways on the state
highway system. Such plan shail establish, within the state
highway system, a system of major thoroughfares which shall
include the entire mileage of the interstate highway system.
"The council shall review the plan of classification sub-
mitted by the director and shall approve such plan or some modi-
fication .thereof as the general plan for the classification of high-
ways within the state high:way system.
"Within ten days after the approval of a general plan for
the classification of highways on the state highway system the
council shall offici<l'lly notify the director of highways of such
approval and furnish to the director of highways a copy of such
plan including a complete description of the routes denominated
as major thoroughfares on t>he state highway system.
"The wuncil in cooperation with the director of highways
shall adopt a system of establishing priorities for construction of
highway projects on the major thoroughfares of the state high-
way system."
ATTORNEY GENERAL
Section 5513.03, Revised Code:
"Prior to the first day of December, 1953 and prior to the
first day of December in each year thereafter the director of
highways shall submit to the highway construction council a high-
way construction program containing reconunendations for con-
struction of highways on the major thoroughfares and u11ban
extensions thereof in the state highway system. Such program
shall contain :
" (A) Brief description of each project;
"(B) Estimated .total cost of each project;
" (C) Estimated amount of funds, other than state funds,
avail;rble to defray the total cost of each project;
"(D) The priority for construction fm each project."
Section 5512.04, Revised Code:
"The highway cons,truction council shall review the program
for the construction of highways submitted to it by the director
of highways.
"\Vithin thi,rty days after the receipt of such highway con-
struction program the council shall designate the projects to be
financed from moneys to the credit of t>he higlmvay construction
and bond retirement fund and approve the expenditure of such
1noneys from the fund to pay the state's .share of the cost of such
projects.
"The council shall notify the director of highways in writ-
ing of such designation and approval of expenditures and upon
receipt thereof, t>he director of highways shaH be authorized to
encumber an amount sufficient to pay the state's share of such
project out of moneys to the credit of the .state highway con-
struction and 'bond retirement fund.
"The state's share of the cost of such project shall be paid
out of moneys credited to the state highway construction and
bond retirement fund created pu['suant to the provisions of sec-
tion 17 of this act. An:y moneys accruing from the provisions of
this act during the present biennium, are hereby appropriated for
the p1t-rposes for which they were levied a.nd coTlectcd under
this act." (Emphasis added.)
469
The purposes for whioh the moneys were "levied and collected under
this act" may 1be ascertained by reference to certain provisions in Section
5728.o6, Revised Code, with respect to the axle tax, and in Section
5-728. 6 ~ Revised Code, with reference to the additional motor vehicle
fuel excise tax. These sections in pertinent pa['t read as follows :
470
OPINIONS
Section 5728.06, Revised Code:
'For the purpose of providing revenues to pay the cost of
administering and enforcing the laws pertaining to the .levy and
collection of the tax imposed by this section, to defra.y the ex-
penses of the higlrway construction council, to provide funds to
pay the state s share of the cost of constructing or reconstructing
highways and eliminating railway grade crossings on the major
thoroughfares of the state highway system and urban extensions
thereof and to pay interest, charges and principal of bonds issued
to provide funds to pay the state's share of the cost of such
construction, reconstruction and elimination of raihvay grade
crossings, ,there is hert'by levied a use tax upon each
commercial car with three or more axles, each commercial car
used as part -of a commercial .tandem and each commercial tractor
used as part of a commercial tractor combination or commercia,]
tandem at the following rates * * *."
(Emphasis added.)
Section 5728.16, Revised Code :
"For the purpose of providing funds to pay the state's share
of the cost of constructing and reconstructing highways and
eliminating railway grade crossings on the major thoroughfares
of the state highway system and urban extensions there-of; to pay
interest. charges and principal of bonds issued to provide funds
to pay the state's share of the cost of and recon-
structing highways, including but not limited to .the elimination
of grade crossings on the state highway system and urban ex-
tensions thereof, and to pa.y t!ze expenses of the hi.r;hwa.y con-
structi.oll council, an excise tax is hereby levied on all dealers
in motor vehicle fuel, upon .the use, distribution, or sale within
the state by them of motor vehicle fuel, at the rate of one cent
per gallon so used, distributed or sold * * *."
(Emphasis added.)
It will be observed that in each of these sections is a clear statement
that the purposes of the lev-ies include meeting the "expenses of the high-
way construction council," and this is one of the purposes, therefore,
for which ,the Legislature has expressly appropriated funds arising under
such levies. This gives rise to the question of what expenses may properly
be incurred by the council.
It must be remem'bered that the counci<l is a creature of statute and
any auth-ority which it may have in the matter of expenditure of public
funds must be found in a statutory grant of power. The only such grant
ATTORNEY GENERAL
471
of ,power which I find in this act appears to be the following
m Section 5512.or, Revised Code:
"Each member of the council shall receive as compensation
.for his services fifty dollars for eaoh full day spent in the per-
fonnance of his official duties and shall be reim:bursed for his
actual expenses incurred in the performance of his official duties.
Such compensation and expenses shaM ibe paid out of moneys to
the credit of t'he highway construction and bond retirement fund
on vouchers signed by the chairman of the council."
It will be observed that rhe expenditures for expenses .thus author-
ized are for the actual expenses of individual members of the council,
rather than the expenses of the counci,J as a whole. That it was the
legislative intent that no further expenses should be inourred by the
council is apparent from the further provision in this section that even
suoh minor and incidental expense as that WJhich is incident to the em-
ployment of clerical and stenographic assistance is to be borne not by
the council but by the director of highways, who -is required to make
available to the council such clerical and stenographic assistance as the
council shaH request.
In this situation it becomes necessary to conclude that there is
serious doubt as to the authority of council to ex.pend funds appropriated
under Amended Substitute House Bill No. 6r9 for payment of office
rent, employment of office s.taff and other expenses. In this situation
the rule stated by the court in State ex rei. Bentley v. Pierce, 96 Ohio
St. 44, becomes applicable:
"In case of doubt as to ,the right of any administrative board
to expend .public moneys under a legislative grant, such doubt
must be resolved in favor of the public and against the grant
of power."
\iVtih respect to the provision of office space for the council, reference
may be made to Section r 54-41, General Code, Section 123.02, Revised
Code, which reads in part as follows:
"The department of public works shall have the super-
vision and control of the state house and heating plant therein,
the fix-ing and placing of all departments and offices of the state
therein, and full control and supervision of fixing and placing
all departments and offices in offices, buildings and rooms outside
of state house when the same cannot be placed therein,
472 OPINIONS
materials and persons employed in and <11bout the state house,
the grounds and appurtenances thereof and all work or materials
required in or ctbout them. * * *"
In v1ew of the provisions of this section, it would appear to be
necessary for the council to apply to the director of public works for the
assignment of office quarters in the state house or in some state-owned
building. Certainly it is clear that in the absence of any statutory
authorization the council could not legally contract for rental of office
space in a privately owned building and of course the council is without
any appropriation of funds to pay the rental on any such .privately owned
office space as the department of public works may secure for the use
of the council.
For the reasons heretofore stated, it is my opmwn that under the
provisions of Amended Su'bstitute House Bill No. 619, of the IOoth
General Assembly, the state highway construction council provided for
therein is without authority to e:x,pend funds in the payment of office
rent or in the employment of administrative assistants, an office staff,
and clerical and ,stenographic services.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
473
I. TRAFFIC CONTROL SIGNAL UPON EXTENSION OF
STATE HIGHWAY SYSTEM WITHIN VILLAGE- \iVITH
EXCEPTION, SECTION 45II.II IK, SECTION 6307.11 GC,
NO LEGAL REQUIREMENT FOR MUNICIPALITY TO
OBTAIN PERMISSION FROM DIRECTOR OF HIGHWAYS
TO PLACE TRAFFIC CONTROL DEVICE TO REGULATE
TRAFFIC ON STATE ROUTE WITHIN MUNICIPALITY.
2. DIRECTOR OF HIGHWAYS AUTHORIZED TO ERECT
STATE HIGHWAY ROUTE MARKERS AND TO DIRECT
TRAFFIC AS HE THINKS PROPER WITHIN MUNICIPAL-
ITY-NOT AUTHORIZED TO REGULATE TRAFFIC ON
STATE ROUTES WITHIN MUNICIPALITY OR CONTROL
GORPORATIONS IN REGULATION OF
TRAFFIC-SECTION 55rr.or RC, SECTION rr78-zo GC.
3 :viUNICIPALITY NOT REQUIRED TO OBTAIN PERMIS-
SlOK OF DIRECTOR OF HIGHWAYS TO FORBID LEFT
HAND TURN AT INTERSECTION OF STATE ROUTES
\''ITHIN MUNICIPALITY.
SYl.JLABUS:
1. With the exception provided by Section 4511.11, Revised Code, Section 6307-11,
General Code, as to a village desiring to place a traffic control signal upon an extension
of the state highway system within such village, there is no requirement of law that
a municipality first obtain the permission of the director of highways before placing a
traffic control device, regulating traffic under a local traffic ordinance, on a state route
within such municipality.
2. The provisions of Section 5511.01, Revised Code, Section 1178-20, General
Code, authorizing the director of highways to "erect state highway route markers and
such other signs directing traffic as he thinks proper" within municipal corporations
does not authorize the director of highways to regulate traffic on state routes within
such municipal corporations or in any way .to control such municipal corporations in
the regulation of traffic.
3. A municipality, therefore, need not obtain the permission of the director of
highways in order to lawfully fol'bid a left hand turn at the inter.section of state routes
within such municipality.
474
OPINIONS
Columbus, Ohio, September 29, 1953
Hon. S. 0. Linzelil, Director, Department of Highways
Columbus, Ohio
Dear Sir:
I ha:ve before me your request for my opinion reading as follows :
"Section II78-2o G. C. (SSII.OI R. C.) authorizes the
Director of H igh,vays to establish routes through municipal cor-
porations and 'W'hen so esta:blished are 'declared ,to be state high-
ways and a part of the state highway system'. !Said section, in
the concluding paragraph, provides that with the exception of
the authority conferred upon the director .to erect state high-
way markers 'and signs directing traffic', that no provision of
the act shall be held to in any way modify, limit or restrict the
authority confenred by the General Code under Section 3714
G. C. (7z3.01 R. C.).
"The language of the section has been construed by the
department to mean that on state highways the Director of High-
ways may control traffic. However, in certain municipalities
where bhere are two inter-secting state highways, by ordinances,
said municipalities have refused to permit left turns.
"The seriousness of the situation is demonstrated by the fol-
lowing letter "'"'hich the Chief Engineer of the Division of Traffic
and Safety has received from a Division Engineer, which reads:
'vVe have in this division some twenty locations in
various cities where the local authorities have prohibited
left turns at intersections of U. S. and State Highways. One
city prohibits all turns except one, during pea:k periods only.
In many cases a temporary or permanent loo1p around the
square is impossible, which places foreign traffic under a
handicap by these restrictions.
'vVe do not mind the restrictions if there are streets
available to mark and guide traffic around the
square, but when they are not available or the streets that
could he used are in poor condition, we seem to be carrying
the ;burden of complaints.
'Please advise if t:he cities have the authority to place
resurictions of this nature without a public hearing or per-
mission of the Director of Highways.
"Apparently said municipa:lities construe Section 6307-7
G. C. ( 45 I 1.07 R. C.) as their authority to regulate the traffic on
state highways.
ATTORNEY GENERAL
"In view of the foregoing will you please advise whether or
not municipalities may 1regulate the traffic on state highways
within municipalities when such regulation is in conflict with the
signs directing traffic erected by the Director of Highways."
475
There, of course, can be no question as to the power and authority
of a municipal corporation, in the p.roper exercise of its police power, to
enact ordinances regula,ting traffic, including ordinances prohibiting vehicles
kom making left hand turns at designated intersections.
This basic .power is derived from Article XVIII, Section 3 of the
Ohio Constitution which reads:
"Municipalities shall have authority to exercise all powers of
local self-government and to adopt and enforce within their limits
suoh ~ o c a l police, sanitary and other similar regulations, as are
not in conflict with general Iaws."
Such power has ibeen recognized by the General Assembly in the
enactment of the Uniform Traffic Act, Sections 45I I.OI to 45 I 1.99, Re-
vised Code, Sections 6307-1 to 6307d,IO, General Code, and particularly
by Section 4511.07, Revised Code, Section 6307-7, General Code. Section
45 r I .07 reads in pa,rt:
"Sections 45rr.or to 4511.78, inclusive, 4511.99 and 4513.01
to 4513.37, inclusive, of the Revised Code do not prevent local
authorities from carrying out the following activities with res-pect
to streets and highways under their jurisdiction and within the
reasonable exercise of the police power: * * *
"* * * (B) Regulating traffic by means of police officers or
traffic control devices ; * * *"
''Traffic control devices" are defined by Section 4511.01, paragraph
( NN), Revised Code, as meaning "all signs, signals, markings and de-
Y ices placed or erected by authority of a public body or officiab having
jurisdiction, for the purpose of regulating, warning, or guiding traffic,
including signs denoting names of streets and highways."
Section 451 I. II, Revised Code, reads as follows:
"Local authorities in their respective jurisdictions may place
and maintain traffic control devices upon highways under their
jurisdictions as are .necessary to indicate and to carry out sections
4'5 I r.or to 4511.78, inolusive, and 4J5I L99 of the Revised Code,
local traffic ordinances, or to regulate, warn, or guide traffic. No
OPINIONS
village shall place or maintain any traffic control signal upon an
extension of the state highway system wivhin such village without
first obtaining the permission of the director of highways. The
director may revoke such permission and may .remove or require
to be removed any traffic control signal which has been erected
without his permission on an extension of a state highway within
a village, or whioh, if erected under a pem1it granted by the eli-
rector, does not conform to the state manuaJl and specifications,
or which is not operated in accordance with the terms of the per-
mit. All traffic control clevices erected after September 6. 1941,
shall conform to the sta,te manual and specifications."
(Emphasis aclcled.)
Section 451 I.I2 provides:
"No pedestrian, driver of a vehicle, or operator of a street-
car or trackless trolley shall disobey the instructions of any traf-
fic control device placed in accordance with sections 45,rr .or to
45 r 1.78, inclusive, and 45 r 1.99 of the Revised Code, unless at
,the time otherwise directed by a po<lice officer. When both traffic
control signals and stop signs are erected at intersections, traffic
shall <be governed by the traffic control signal while it is in
operation.
"No .provision of such sections for which signs are required
shall be enforced against an alleged violator if at vhe time and
place of the alleged violation an official sign is not in proper posi-
tion and sufficiently <legible to be seen by an ordinarily observant
person. Whenever a particular section does not state that signs
are required, such section shall be effective even though no signs
are erected or in place."
It is clear, therefore, that these sections of the Uniform Traffic Act
fully recognize the power of a municipal corporation to regulate traffic
by means of "traffic control devices". It will ibe noted that the only con-
trol of the director of highways over municipalities in this regard is the
provision of Section 45 I r. H that no itllage shall place or maintain any
traffic control signal upon an extension of the state hig.hway system within
such village without first obtaining the permission of the director of
highways.
It is equally clear that under vhe Uniform Traffic Act the "jurisdic-
tion" of local authorities to place traffic control devices includes the
jurisdiction to place suoh devices on extensions of the state highway
system within a municipality, with the single limitation as to traffic
control signals within villages as noted above. That the General Assembly
intended that the basic "jurisdiction" of "state routes" wivhin munici-
ATTORNEY GENERAL
477
palities be in the local authorities of such municipalities is further indicated
by the fact that wihereas "state route" is defined as meaning "every high-
way which is designated with an official state number and so marked,"
Section 451 I.OI, paragraph ( HH), Revised Code, "state highway" is
defined as "a highway under the jurisdiction of the department of high-
ways, outside the limits of municipal corporations * * *" Section 45I I.OI,
paragraph ( GG), Revised Code.
Your question in essence, therefore, ts whether despite the broad
powers given municipal conporations by Article XVIII, Section 3, of
the Constitution, and despite the obvious intent of the General Assembly
in the enactment of the Uniform Traffic Aot not to interfere, beyond the
limitations specifically provided therein, with the power of such municioal
corporations to regulate traffic by means of police officers or traffic control
devices, such power is limited by the language o.f Section ssrr.or, Revised
Code (Section I I 78-20, General Code) .
Section 55! r .o 1, Revised Code, reads in pertinent part :
';* * * The state highway routes into or through municipal
corporations, as designated or indicated lby state highway route
markers erected thereon on October 11, 1945, are state highways
and a part of the sta,te highway system. The director may erect
state highway route markers and such other signs directing
traffic as he thinks proper upon those portions of the state high-
way system lying within municipal corporations, and the consent
of such municipal corporations to such erection and marking
shall not be necessary. No change in the route of any highway
through a municipal cor.poration shall be made except after
notice and hearing. No duty of constructing, reconstructing,
maintaining, and repairing such state highways within munici-
pa'l corporations shall attach to or rest upon the director; but
he may enter upon such state highways within any municipatl
conporation and construct, reconstruct. widen, improve, main-
tain, and repair the same provided the municipal corporation
first consents thereto by resolution of its legislative authori,ty.
The director shall place in the files of the department a record
of the routes of all suoh state highways within municipal cor-
porations, and shall cause ,them to be corrected and revised to
show all ohanges and additions to the date of such correction. A
copy of suoh record or any pertinent part thereof, certified
by the director to be a true and correct copy, shaU he admis-
sible in evidence in any court of the state for the purpose of
proving the e ~ i s t e n c e and location of any state highway within
a municipal corporation.
OPINIONS
"* * * When the director proposes to change an extstmg
state highway within a municipal corporation he shall ma:il to
the mayor or other chief executive officer of such municipal
corporation a copy of the notice which shall be mailed by first-
class mail, postage prepaid, and registered with return receipt
requested, at least two weeks before the time fixed for hearing.
"With the exception of the authority conferred upon the
director by this section, to erect state highway route markers
and signs directing traffic, Chapters ssor., 5503., 5505., ssr r.,
55I3., 5515., 5517., 5519., 5521., S52J., 5525., 552/., 5529., 553I.,
and 5533 of the Revised Code, shal1! not in any way modify.
limit, or restrict t'he authority conferred by section 723.01 of
the Revised Code upon municipal corporations to regulate t<he
use of streets and to have the care, supervision, and control of
public highways, streets, avenues, alleys, sidewalks, public
grounds, birdges, aqueducts and viaducts within such municipal
corpora.tion and to keep the same open, in repair, and free from
nuisance."
I believe the conclusion inescapable that the language of Section
55 r r.or does not require a municipal corporation to seek permission
of the director of highways in order to forbid a left hand turn at a point
where two extensions of the st;vte highway system intersect within the
municipality. Bearing in mind the broad power given municipalities by
Article XVIII, Section 3, of the Constitution and the entire scheme for
the regulation of traffic set forth in the Uniform Traffic Act, it is clear
rhat the authority of the director of highways to "erect state highway
route markers and such other signs directing traffic as he ;thinks proper"
within municipal collPorations is merely an authorization to place direc-
tional signs indicatng the locaton of state routes. By the use of the word,
"other," ii1: is clear that the General Assembly considered "state highway
route markers" to be "signs directing traffic." Such "state highway
route markers" of course, do not regulate traffic, but only direct it in the
same sense that a map directs traffic. Lt follows, therefore, that the
authorization of the director of highways to erect "other signs directing
traffic" is limited, insofa:r as this section is concerned, to a similar type
of sign. Such language cannot be construed as granting the director
of highways any power to regulate traffic, the author-ity of the director
in this regard being limited to that specifically conferred upon him by
the Uniform Traffic Act.
The authority to regulate, of course, must include the authority to
enforce. Section 551 r .or and related sections contain no language provid-
ATTORNEY GENERAL
479
ing for punishment of .one who drives a motor vehicle in disregard of
"state highway route markers and such other signs directing traffic." It
might be pointed out ;that, as contrasted with Sections 45II.07, 45II.II
and 45II.I2, Revised Code, Section 55II.OI is placed in a series of sec-
tions which have nothing to do with the regulation of traffic. It must be
concluded, therefore, that the director of >highways is without power by
means of "state highway route markers and such other signs directing
traffic" to instruct a motorist to disregard a traffic control device of a
municipal corporation placed on a state route pursuant to the specific
authorization of Sections 45IL07 and 45II.II, Revised Code.
In specific answer to the question propounded by your letter, it is
my opinion that:
r. \Vith the exception provided by Section 45II.II, Revised Code,
Section 6307-rr, General Code, as to a village desiring to place a traffic
control signal upon an extension of the state highway system within
such village, there is no requirement of law that a municipality first
obtain the permission of the director of highways before placing a traf-
fic contrnl device, regulating traffic under a local traffic ordinance, on
a state route within such municipality.
2. The provisions Of Section 55 I I.OI, Revised Code, Section II78-
20, General Code, authorizing the director of highways to "erect state
highway route markers and such other signs directing traffic as he thinks
proper" within municipal corporations does not authorize the director
of highways to regulate traffic on state routes within such municipal
corporations or in any way to control suoh municipal corporations in the
regulation of traffic.
3 A municipality, therefore, need not obtain the permission of the
director of 1highwa)'is in order to lawfully forbid a left hand turn at the
intersection of state routes within such municipality.
Respectfully yours,
c. WILLIAM O'NEILL
Attorney General
4&>
OPINIONS
3099
SHORE EROSION, CHIEF OF DIVISION OF-SECT.ION 4I2-28
GC, I507.03 RC, PROVISIONS NOT SUFFICIENT TO AUTHOR-
IZE CHIEF TO GRANT PERMITS TO REMOVE OIL OR GAS
DEPOSITS FROM PORTION OF LAKE ERIE WHICH LIES
WITHIN STATE BOUNDARIES.
SYLLABUS:
T:he provisions of Section 412-28, General Code, 1507.03 Revised Code, are not
sufficient to authorize the chief of the division of shore erosion to grant permits for
the removal of oil or gas deposits from that por.tion of Lake Erie which lies within
the boundaries of the state of Ohio.
Columbus, Ohio, September 30, I953
Hon. A. \V. ivlarion, Director, Department of Natural Resources
Columbus, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"The Chief of the Division of Shore Erosion is authorized
by section I 507.03 of ;the Revised Code, subject to the limitations
of section I 507. I I, to issue permits-' for permission to take and
remove sand, gravel, stone, minerals, and other substances from
vhe 'bottom of Lake Erie, * * *'
"The second paragraph of section 1507.03 reads as follows:
'No person shaH remove minerals from and under the bed of
Lake Erie without first obtaining permission therefor from the
Chief.'
"A formal opinion is requested as to whether section 1507.03
authorizes the Chief of the Div.jsion of Shore Erosion to issue
permits for the drilling and removal of oil and/or gas from that
portion of Lake Erie within .the boundaries of the State of
Ohio.''
The sections m the Revised Code to whioh you refer above are to
become effective October r, 1953, and when effective are to lbe deemed
merely as restatements of applica!ble existing statutory provisions and
not as new enactments. Section 2, Amended House Bill No. 1, rooth
General Assembly. We may, therefore, properly refer to the presently
existing statutory provisions analogous to those to which you have
invited attention.
ATTORNEY GENERAL
Section 412-28, Genera:l Code, provides in part:
"* * * Subject to the limitations set forth, in section 412-29
of the General Code, aut.hority is hereby granted to the chief of
shore erosion to issue permits to parties making application
therefor, for permission to take and remove sand, gravel, stone,
minerals and other substances from the bottom. of said lake, either
upon a royalty basis or for a fixed annual rental as he may
deem for the best interests of the state; said permits for sand,
gravel, stone, minerals and other substances, shall be issued for
terms of not less .than one nor more than ten years, to be taken
within certain fixed boundaries that do not conflict wirh the
rights of littoral owners. Upon request from the holder of such
permit, the same shall 1be canceHed, but any equipment or build-
ings owned by ,the lessee shall be held as security by the chief of
the division of shore erosion for payment of all rentals or royal-
ties c\.ue the state of Ohio at the time of application for cancel-
lation.
''It shall be unlawful to remove minerals from and under
the bed of said Lake Erie without first obtaining permission
therefor f.rom the chief of the division of shore erosion. * * *"
(Emphasis added.)
This section was enacted in Amended Senate Bill No. 13, 98th
.General Assembly, an act designed to create the department of natural
resources and to correlate the activities of the several divisions therein.
(, '
In this act ;the division of beach erosion was created by the amertdrrient
of Section 154-6, General Code. Some indication of the legislative pur-
pose m creating this division is found in Sections 412-24 and 412-28,
General Code. The former section reads as follows :
"The office of the chief of the division of shore erosion is
hereby authorized and directed to act as the erosion agency of
the state of Ohio for the purpose of cooperating with the Beach
Erosion Board of the United States 'vVar Department, as pro-
vided for under the provisions of section 2 of the 'River and
Harbor Act' adopted by rhe Congress of the United States, and
approved July 3, 1930, and known as House Resolution No.
n781, of ;the second session of the 71st Congress of the United
States of America, and said chief of the division of shore ero-
sion and engineers under his direction, shall cooperate with said
Beach Erosion Board of the United States War Department
in carrying out investigations and studies of present conditions
along the main shore lines of Lake Erie and of the bays and
projections therefr.om, and likewise of the islands therein, within
the territorial waters of the state of Ohio, with a view to
devising and perfecting economical and effective methods and
OPINIONS
works for preventing and correcting such shore erosion and
damages therefrom and to prevent inundation of improved prop-
erty by the waters of Lake Erie."
Section 412-28, General Code, reads 111 part:
"* * * The state of Ohio, acting 1by and through the chief
of the division of shore erosion, subject to the provisions of
section 412-29 of the General Code, may enter into agreements
with counties, munioipalities, townships, park boards and con-
servancy distrricts for the purpose of constructing projects
to prevent, correct and arrest erosion along the south shore
of Lake Erie, in any rivers which are connected with Lake Erie,
bays connected with said lake, and any other water courses which
flow into said lake; and these ,projects may also he constructed
on any Lake Erie islands which are situated within the boundaries
of the state of Ohio. * * * ."
These statutory provisions lead to the inference that the primary
purpose of these enactments, to the extent that Lake Erie is concerned,
is to prevent erosion of the shore line, and, as an incident of such primary
purpose, to conserve the sand, gravel, stone, minerals, etc., the removal
of which would affect erosion at such shore line. It is true that authority
is given in very general language to license the removal of "minerals and
other substances," and this expression is quite clearly susceptible, stand-
ing alone, of an interpretation Which would include petroleum and gas.
However, in Black's Law Dictionary, Fourth Edition, we find the follow-
mg statement with respect to the term "mineral" :
"* * * The word is not a definite term and is susceptible
of limitations or extensions according to intention with which it
is used. Standing alone it might by itself embrace .the soil, hence
include sand and gravel, or, under a strict definition, it might
be limited to metallic substances. Puget Mill Co. v. Duecy, r
Wash. 2d 421, g6 P. zd 571, 573, 574"
Accordingly, if the ru1e of ejusdem generis is applied to this language,
as I think it proper to do, the quoted words a!bove must be deemed to be
limited to the rocky sedimentary deposits usually associated with deposits
of gravel and sand at or near the surface of the soil beneath the lake. In
this connection it is of some significance that this statute provides for
the removal of such "minerals and other substances from the bottom of
said lake," even though it is also prQI\Toided that "It shall be unlawful to
remove minerals from and under the bed of said Lake Erie without first
ATTORNEY GENERAL
obtaining permission therefor from the Chief of the Division of shore
erosion." It is a matter of common know[edge that petroleum and gas
deposits are not found on the "bottom" of ibodies of water but rather are
found far beneath the surface of t!he soil forming such bottom.
It can well be supposed that the Legislature would have chosen to
employ more specific language .to indicate an intent to authorize the sa-le
of gas and petroleum rights 'by the division. While I have no information
regarding the probable existence of gas and petroleum deposits in the
soil beneath Lake Erie there can be little doubt that if such deposits are
found to exist .there in substantial amounts they would represent ex-
tremely valuable assets of the state. I find it most difficult to suppose
that the Legislature wouid have undertaken to make provision for dis-
posing of such valuable assets of the state in any but express and specific
language descriptive of the property to be disposed of. The statutory
language here in question is not so express and specific. In this situation
we may properly observe that legislative grants of administrative power
to expend public funds are strictly construed and that any doubt as to
vhe extent of such grant must be resolved in favor of the public and
against the grant of .power. State ex rei. Bentley Co. v. Pierce, 9(5 Ohio
St., 44 There appears to be no logical reason, in my opinion, why the
same mle should not he applied in the interpretation of legislative grants
of power to administrative officers to dispose of public property ; and I
conclude, therefore, that the rule in .the Bentley case, supra, may be
deemed sufficiently ibroad to be applicable in the instant case.
Accordingly, in specific answer to your inquiry, it is my opinion
that the provisions of Section 412-28, General Code, 1507.03 Revised
Code, are not sufficient to authorize .t!he ohief of the division of shore
erosion to grant .permits for the removal of oil or gas deposits from that
portion of Lake Erie which lies within the boundaries of the state of Ohio.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPINIONS
3!00
I. HIGH SCHOOL-PUPIL RESIDING IN SCHOOL DISTRICT
-NO HIGH SCHOOL-MAY ATTEND HIGH SCHOOL IN
ANOTHER DISTRICT UNDER CONTRACT FOR SCHOOL-
ING-WHERE NO CONTRACT OR DESIGNATED SCHOOL
IS MORE THAN THREE MILES FROM RESIDENCE, PUPIL
MAY CHOOSE HIGH SCHOOL.
2. BOARD OF EDUCATION MAY CONTRACT WITH AN-
OTHER DISTRICT TO ADMIT HIGH SCHOOL PUPILS
WHERE DISTRICT HAS NO HIGH SCHOOL-WHEN HIGH
SCHOOL PUPIL MAY CHOOSE HIGH SCHOOL-EXPENSE
FOR TUITION-SECTION 4855-3 GC-SECTION 3327.04 RC
--OAG I95I, OPINION 5'52, PAGE 292 MODIFIED.
3. NO OBLIGATION UNDER ANY CIRCUM6TANCES FOR
BOARD OF EDUCATION TO FURNISH TRANSPORTA-
TION FOR HIGH SCHOOL PUPILS-BOARD AUTHOR-
IZED BY SECTION 4855 GC, SECTION 3327.or RC TO FUR-
NISH TRANSPORTATION TO ANY HIGH SCHOOL
WHERE BOARD LIABLE BY CONTRACT OR OPERATION
OF LAW FOR TUITION-WHERE NO SUCH LIABILITY,
BOARD, DISTRICT OF NOT AUTHORIZED
TO FURNISH TRANSPORTATION.
SYLLABUS:
1. A pupil residing in a school district which has no high school may attend a
high school in another district with "Wfuich his district has entered into a contract for
such schooling and if no such contract has been entered into, or the school designated
is situated more than three miles from his residence, he may attend a high school of
his own choosing.
2. The board of education of a school district having no high school may, under
the provisions of Section 4855-3, General Code, Section 3327.04, R. C., contract
with another district for admission and schooling of its high school pupils; and if no
such contract is made, or if the high school so designated is more than three miles from
the residence of certain pupils, they may attend any other high school of their choosing
at the expense for tuition of the district of their residence. Opinion No. 552, Opinions
of the Attorney General for 1951, page 292 modified.
3. A board of education is under no obligation to .provide transportation for its
high school pupils under any circumstances, but is authorized by Section 4855, General
Code, Section 3327.01 R C., to furnish transportation to any high school where such
board is liable by contract or by operation of law for the tuition of such pupils.
The board of the district of residence is not authorized .to furnish transportation to
pupils who are attending a school where there is no such liability.
ATTORNEY G E N E R A ~
Columbus, Ohio, October I, 1953
Hon. ?dorris 0. Gibby, Prosecuting Attorney
Harrison County, Ca;diz, Ohio
Dear Sir:
I have before me your request for my opinion, reading as follows:
"'The following question :has come up: ln our county there
is a local school district which has no high school of its own.
Therefore, to furnish high school education to its resident pupils,
it has made a contract with a high school in another county to
furnish their education. The high school is at least six miles
away from any of the resident pupils.
"Some of the pupils desire to attend al1')ther high school
in the same vicinity as the high school designated by !!he >board
of education but :the other high schoo1 is controlled by a different
board of education than the one contracted with.
"Section 4855-3 of the General Code of Ohio s110uld cover
this situation in my o.pinim1. However, it would be appreciated
by this office if you would interpret Section 4855-3 according to
the set of circumstances given above. Naturally yonr opinion
would have to deal also with the transportation of the pupils.
Your advice on this matter is requested.''
From your statement of facts, without the presentation of definite
questions, I can only infer that you desire my opinion on (a) the right
of a pupil to attend a !high school, other than the one which has been
designated by the district of his residence, (lb) the obligation of the board
of residence to pay his tuition, and (c) the payment of the expense of
transportation to the school to which he is assigned or which he chooses
to attend.
r. Tlhere are several provisions of the statutes which authorize
attendance of pupils at a school outside the district of residence. Section
4848-5 of the General Code provides in part:
"Pursu.(].nt to law, a pupil may attend school outside his dis-
trict of school residence, and for such pupil his board of educa-
tion shall pay tuition, not more than that which shall be computed
as follows : * * *" (Emphasis added.)
Here follows a rather elaborate formula for computing tuition.
4&5-
OPINIONS
Section 4855-3, General Code, provides:
"The board of education of any city, exempted village or
local school district may_ contract with the board of another dis-
trict for the admission or transportation or both, of pupils into
any school in such other district, on terms agreed upon by such
boards within the limitations of law. \Vhenever a board of
education not maintaining a high school enters into an agreement
with one or more boards of education maintaining such school
for the schooiing of all its high school pupils, the board of edu-
cation making such agreement shall be exempt from the payment
of tuition at other high schools of pupils living wivhin three miles
of the school designated in the agreement; provided, however,
that in case no such agreement is entered into, the high school
to be attended can be selected by the pupil holding an eighth
grade diploma, and t'he tuition shall be paid by the board of
education of the district of school residence."
Section 4855-3b, General Code, provides as foliows:
"vVhen a pupil attends school, pursuant .to the prov1S1ons
of section 4855-3 of the General Code, in a district other than
the district in which he is a school resident, tuition for such at-
tendance shall 1be credited and paid in the manner provided in
sections 484'8-4 and 4848-5 of the General Code.
"vVhen the board of education of a city, exempted village
or local school district admits to the schools of its district any non-
resident pupil for whose attendance tuition is not an obligation,
as provided iby law, of :the board of education of the district of
the pupil's residence, such board of education shall collect tuition,
for the attendance of such pupil, from t'he parents or guardian o.f
the .pupil and the amount of tuition collected shall be not more
nor less than the amount con1.puted in the manner prescribed by
section 4848-5 of the General Code.
"If a board of education admits to the schools of its district
any non-resident pupil for whose attendance tuition is not an
obligation of the board of education of vhe district of the pupi.J's
residence, and fails to collect tuition, as required by t
1
he provi-
sions of the second paragraph of this section, from the pupil's
parents or guardian, the attendance of such pupil shall be deemed
to be unauthorized attendance. \Vhen a school district provides
instruction for a non-resident pupil whose attendance is unau-
thorized attendance, as defined by this section, the membership
of such .pupil shall not be -included in the membership figure
used in determining the amount of state support to be paid to such
district under the provisions of the foundation program act. The
membership of such pupil shall be credited, however, to the school
district in which such pupil is a legal school resident."
(Emphasis added.)
ATTORNEY GENERAL
. vVhiie the a:bove sections appear to contemplate a contract on the part
of the board of the district of residence, yet it does appear that the pupil
may attend school in a district other than that of his residence even in
the aJbsence of such contract or in disregard thereof.
2. As to i'he obligation on the part of the district of residence to
pay tuition for a pupil attending school in a district other than that of
his residence, I would call particu'lar attention to the provision of Section
4855-3 supra, to the effect that where a board of education not maintaining
a high school has entered into an agreement with another board, main-
taining a high school, for t:he schooling of all its high school pupils, the
board of the district of residence shall be exempt from the payment of
tuition of pupils who go to other high schools, and live within three miles
of the schoO'l designated in tJhe agreement. The fact that a board w
1
hich
has made such contract is exempt from the payment of tuition of pupils
who live within three miles of the school designated but who choose to
attend some ol'her high ,school, would give rise to the inference that as
to pupils who live more than three miles from the school, the 'board shall
be liable for their tuition at such other high school. I feel that that
assumption is correct. It is true that in the >last sentence of the section
there is a provision that where no suoh agreement is entered into, the
high school may be selected iby the pupil and the tuition must be paid
by the board of residence. That might seem to negative the first as-
sumption, but it appears to me that in effect, the legislature has provided
two conditions under which a pupil may attend some high school other
rhan that contracted for, at the expense of the board of .the district of
his residence; otherwise there would he no provision in the law covering
the case of the pupil who lives more than three miles from a designated
school and who chooses to attend a more convenient high school. I am
informed by the superintendent of public instruction 1!hat this has been
the view of his department and the general practice for many years.
The justice underlying the above conclusion will, I think, be em-
phasized when we come to consider the question of the expense of trans-
portation. Further light is thrown upon this question !by a consideration
of iihe second and third paragraphs of Section 4855-3b supra. There, it
is provided that if the hoard of education admits to its schools a non-
resident pupil whose tuition is not a legal obligation of the board of resi-
dence, such board so admitting the pupil must mllect tuition from such
OPINIONS
pupil or from his parents or guardian and failing to do so, such attendance
will be what the law styles "unwthorized attendance," the penalty for
which is, that the school admitting such pupil will not receive credit for
such attendance under the provisions of the school foundation program
act, Sections 4848-4 and 4848-5, General Code. The membership of
such pupil shall !be credited, however, to the school district in which such
pupil is a legal sohool resident.
T:hese sections were under discussion in Opinion No. 552, Opinions
of the Attorney General for I95I, page 292, where it was held:
"I. The board of education of a school district is author-
ized to admit pupils resident of another district either pursuant
to a contract made with the district of residence, pursuant to
Section 4855-3, General Code, or by agreement with the parents
of such children.
''2. If non-resident pupi'ls are admitted to the schools of a
district without a contract with the district of their residence,
it is the duty of the hoards receiving them to collect from the
parents or guardian of such pupils tuition at the rates fixed in
Section 4848-5, General Code, and a failure to collect such tuition
will constitute unauthorized attendance as to such pupils as de-
fined by Section 4855-3b, General Code."
The second branch of t:he syllabus of the opinion ~ b o v e quoted, which
opinion did not involve the question which you have presented, does not
appear to go quite as far in its interpretation of Section 485-5-3 as does
the conclusion which I have indicated, as to pupils Eving more than three
miles from the school specified in the contract. The statute uses the words,
"for whose attendance tuition is not an obligation," whereas the above
syllabus uses the phrase, "without a contract." Because the obligation
may arise as to such pupils, even where there is a contract, the opinion
aforesaid should be modified by substituting t:he lang;uage of the statute.
It is therefore my conclusion that even though a school district
having no high school has contracted with another district for high sohool
tuition for its resident pupils, pupiis living more than three miles from
the school so designated, may attend another high school of their choosing
at the expense of the district of residence.
3 As to the cost of transportation of pupils to a high school I
direct your attention to Section 4855 of the General Code. In t!he first
paragraph of this section provision is made making it obligatory on a
ATTORNEY GENERAL
board of education, with certain reservations, to provide transportation
to and from school for its elementary pupils who live more than three
miles from the school to which they are assigned. The second paragraph
of !:'his section reads as follows :
"In aH city and exempted village and local school districts,
the board of education ma.y provide transporfa.tion for resident
high school pupils to the high school to which they are assigned."'
(Emphasis added.)
It will be observed from :the language of this provision !:'hat no
obligation whatsoever is placed on the 1board of education to provide
transportation for the high school pupils of their district under any cir-
cumstances. In Opinion No. 1789, Opinions of the Attorney General for
1947, page 203, it was held by one of my predecessors:
"A local board of education is under no legal obligation
to furnish transportation for resident high school pupils attend-
ing
1
high school in another district when the district of their resi-
dence maintains no high school of its own."
This authority, however, is limited to those pupils who attend another
high school, under circumstances where the board is obligated to pay for
their tuition. However, Section 4855-3, General Code, which I have
quoted, provides that the board of any district may contract with the
board of another district for admission or transporta.tion or both, of
pupils to any school in such other district upon terms agreed upon "within
the limitations of law." The "limitations of law," I believe relates to the
provisions of Section 4848-4, as to the amount of tuition !:'hat may be
charged by one district to another. I know of no limitation provided by
law upon the cost of transportation, which manifestly is incapable of any
specific formula. Accordingly, it would follow that the board of the dis-
trict of residence would have a right to pay for transportation of pupils
to a high school in another district whenever they have been assigned to
such other district and whenever under the law such board is liable for
the tuition of such pupils. It will be observed that the provision of
Section 4855 supra, authorizing a board to provide transportation for its
high sohool ~ u p i l s , is limited to "the high school to which they are
assigned." "Assigned" in my opinion, should not be given too narrow a
meaning. It should include those schools which the pupils have the right
under the law to attend, at the expense for tuition of their own board as
OPINIONS
weH as those to wthich such board has by contract definitely assigned them.
It is accordingly my opinion and you are advised:
I. A pupil residing in a school district which has no high school
may attend a high school in another district with which his district has
entered into a contract for such schooling, and if no such contract has
been entered into or the school designated is situated more than three
miles from his residence, he may attend a high school of his own choosing.
2. The board of education of a school district having no high school
may, under the provisions of Section 4855-3, General Code, Section
3327.04, R. C., contract with another di,strict for admission and schooling
of its high school pupils; and if no such contract is made or if the high
school so designated is more than three miles from the residence of
certain pupils, they may attend any other high school of their choosing at
the expense for tuition of the district of their residence. Opinion No.
552, Opinions of the Attorney General for 1951, page 292 modified.
3 A board of education is under no obligation to provide trans-
portation for its high ochool pupils under any circumstances, but is
authorized hy Section 4855, General Code, Section 3327.01, R. C., to
furnish transportation to any high school where such board is liable either
by contract or by operation of law for the tuition of such :pupils. The
board of the district of residence is not authorized to furnish transportation
to pupils who are attending a school where there is no such liability.
RespectfuUy,
c. WILLIAM O'NEILL
Attornev General
ATTORNEY GENERAL
491
JIOI
BUREAu OF UNEMPLOYMENT COMPENSATION-APPLICA-
T,ION FILED TO DETERMINE BENEFIT RIGHTS-PRIOR
110 OCTOBER 30, 1953-CLAIMANT WHO FILED APPLICA-
TION AFTER OCTOBER 30, 1953, ENTITLED TO INCREASED
WEEKLY BENEFIT RATES-TOTAL BENEFITS TO WHICH
ENTITDED SHALL BE INCREASED PROPOR-
TIONATELY TO PROVIDE FOR INCREASED WEEKLY BENE-
FITS- SECTIONS 414r.28, 4141.30 RC- AMENDED SB 174,
100 GA.
SYJ..LABUS:
\\There an application for determination of :benefit rights shall have been filed with
the Bureau oi Unemployment O:lmpensation pursuant to the provisions af Section
4141.28, Revised Code, prior to October 30, 1953, the claimant, in claims for benefits
filed pursuant to such application after October 30, 1953, shall be entitled to the in-
creased weekly benefit rates provided in Section 4141.30, Revisro Code, as amended
by Amended Senate Bill 174 of the 100th General Assembly; and the total benefits to
which such claimant is entitled shall be increased proportionately to provide for such
increased weeki}" benefits.
Columbus, Ohio, October 5, 1953
Hon. Ernest Cornell, AdminiS>trator, Bureau of Unemployment
Compensation
Columibus, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"I desire that you advise as to :the construction of the follow-
ing section of the new Unemployment Compensation Law which
is effective October 30, 1953. The new section is as follows:
'Section 4141.25 of this act shall become effective Oc-
tober 2, 1953, and the remaining sections of this Act shall
become effective at the earliest date permitted by law; in
cases where the application for determination of benefit rights
was filed prior to the effective date of this act the claimant in
claims for !benefits filed pursuant to such application after
the effective date of this act shall be entitled to the increased
weekly benefit rates and increased total amount of benefits
492
OPINIONS
provided in Section 4141.30 of the Revised Code and the
administrator shall amend his original determination to allow
the increase in weekly benefit rates and total amount of
benefits.'
"There is some difference of opinion among our experts as
to the intent of this statute and how it should be construed and
administered."
The problem which you have presented anses under the following
statutes as amended 1by Senate Bill No. 174 of the rooth General Assembly.
Section 4141.28, Revised Code, 1346-4, General Code, provides in
part as follows :
"Applications for determination of benefit rights and claims
for benefits shall 'be filed with a deputy of the administrator of
the bureau of unemployment compensation designated for the
purpose. * * *
"The administrator or his deputy shall promptly examine
any application for determination of benefit rights filed, and on
the basis of any facts found by him shall determine whether or
not such application is valid, and if valid the elate on which the
benefit year shall commence and the weekly benefit amount. All
interested parties shaH promptly be notified of the determination
and the reasons therefor. * * *"
Section 4141.29, Revised Code, 1345-6, General Code, provides 111
part as follows :
"Each eligible individual shall receive benefits as compensa-
tion for loss of remuneration due .to total or involuntary partial
unemployment in the amounts and subject to the conditions
stipulated in sections 414I.OI to 4141.46, inclusive, of the Re-
vised Code. * * *"
Section 4141.30, Revised Code, 1345-8, General Code, provides m
part as follows:
"* * * (B) Benefits are payaJble to each eligible and quaii-
fied individual on account of each week of total unemployment
after the specified waiting period at the weekly benefit amount
appearing in column B following on the same horizontal line on
which in column A there appears the total wages paid such em-
ployee in covered employment in that quarter of the base period
in which such total wages were higher.
ATTORNEY GENERAL
Column A
Wages Paid in Highest
Quarter of Base Period
$ 6o.OC>---$r8o.99
* * *
* * *
6i I .00- 700.99
;or .oo- 730.99
73 I .00 and over
Column B
Weekly
Benefit Amount
$ro.oo
* * *
28.00
29.00
3o.oo"
493
As pointed out in your request, the last two brackets were added by recent
action of the General Assembly to become effective October 30, 1953.
Continuing, subsections (C) and (D) of Section 4141.30, Revised
Code, provides in part as follows :
" (C) Benefits are paya:ble to each partially unemployed
individual otherwise eligible on account of each week of involun-
tary partial unemployment after the specified waiting period in
an amount equal to his weekiy benefit amount less that part of the
remuneration payable to him with respect to such week which is
in excess of two dollars increased to the next higher even mul-
tiple of one dollar.
"(D) Subject to division (E) of this section, the total
;benefits to which an individual is entitled in any benefit year,
whether for partial or total unemployment, or bot:h, shall be com-
puted by multiplying the wages paid such individual by each of
the employers in his :base period by one-half, which, in the aggre-
gate, for any benefit year, shall not exceed an amount equal to
twenty-six times his weekly benefit amount shown in column B
of the ta:ble in division (B) of this section. * * * In addition to
the benefit amount ,payable under division (B) of this section with
respect to any week of total or partial unemployment, each
eligible and qualified individual shall receive, with respect to such
week, two and one-half dollars for each of his dependent children,
but in no event shall such additional allowance exceed five dollars
for any one week nor for more than twenty-six \Veeks in any
;benefit year. * * *"
The problem created by this recent increase in weekly benefits is
well stated in the memorandum whioh was attached to your request. That
statement is as follows :
"The increased weekly rates of $29 and $30 therefore, also
provide new total benefit increases, .for claimants with sufficient
non-excluded base period wages to qualify.
494
Weekly Benefit
Amount
$28.00
29.00
30.00
OPINIONS
Total Benefits
26 x Weekly Amount
$728.00 if
754.00 if
78o.oo if
Total Non-Excluded
Base Period Wages
$r456.oo or over
r jo8.oo or over
Ij6o.oo or over
"A claimant with earnings of $8oo. in his highest quarter
and $2000 in his base period, obtained the top of $728 under the
former act, under the amended act he would be entitled to
$780.-an increase in total of $52.
" T ~ h e a:bove weekly and total benefit amounts are estab-
lished, at the beginning of a claimant's benefit year. For claim-
ants with benefit years esta:blished prior to October 30, 1953,
effective elate of this Section, and with portions of those benefit
years extending beyond October 30, you have the question as
to the extent that these 'old law' claimants can participate in the
increased rates. * * *"
The literal language of the new statute dealing with this problem is
that "the claimant in claims for benefits filed pursuant to such application
after the effective elate of this act shall be entitled to the increased weekly
benefit rates and increased total amount of benefits provided in Section
4141.30 of the Revised Code and the administrator shall amend his
original determination to allow the increase in weekly benefit rates and
tota:l amount of tbenefits."
If this were a matter of first impression, a strong argument could
be made that by .the language used a:bove the General Assembly intended
to apply the full benefits of the new law to these "holdover" cases. How-
ever, the courts have already passed upon the question of retroactively
applying increased unemployment ;benefits. In the case of General In-
dustries v. Jones, Administrator, 89 Ohio App., 43, motion to certify
overruled 23 Ohio Bar, 33, November 20, 1950, the second syHa.'bus pro-
vides as follows:
"To the extent that Section 2 of Senate Bill 348 ( r2r Ohio
Laws, 703) imposes upon employers the duty to pay unemploy-
ment compensation benefits for the period from August Ij, 1945,
to September 5, 1945, according to the increased schedule of
benefits set out in Section I of said bill (which amended Section
1345-1 et seq., General Code, effective September 5, 1945), it is
retroactive in operation and unconstitutional."
This case was ibased upon constitutional considerations, and it has
consistently tbeen held by this office that the Attorney General cannot pass
ATTORNEY GENERAL
495
upon constitutional questions. However, when the courts have ruled
upon a constitutional matter, this office properly can follow such a
precedent and can use it in giving a constitutional construction to a legis-
lative act. Applying ~ h e General Industries case to the present problem,
therefore, it is my opinion that the language in question must be construed
as .prohibiting you from doing two things after October 30, 1953; ( r)
You cannot aHow increases in benefits for weeks in which benefits were
paid prior to October 30, 1953; and ( 2) You cannot-in such cases where
benefits were paid prior to October 30, 1953-increase total benefits to
the full extent of multiplying the new rate by twenty-six.
I reach this second conclusion as a necessary corollary to the first.
If the Legislature cannot allow retroactive increases in benefits, it cannot
allow future benefits which are simply accumulations of increased retro-
active benefits. Furthermore, if the new maximum total benefits were
applied to these "holdover" cases, it could result in cases in which com-
pensation for total unemployment would be paid for a period in excess
of 26 \\eeks. I do not believe that such a result would be consistent with
rhe provisions of Section 4141.30 (D), Revised Code, set out above.
Having dealt with the things which you cannot do, we come to the
problem of determining what you can and should do after October 30,
1953. There seems no doubt that weekly benefits paid after that date will
be paid according to the new table set out in Section 4141.30 (B), supra.
The real difficulty comes in re-determining the total benefits pursuant to
sub-section (D).
There is some precedent for the solution of ~ h i s problem of a pro-
portional re-determination of total benefits following a change in the
statute which increases benefits during a benefit year. In Opinion No.
953, Opinions of the Attorney General for 1949, page 6oo, the syllwbus
provides as fo]]o,vs :
"A person who filed a valid claim for unemployment com-
pensation based upon unemployment in the week beginning
August 28, 1949, who had filed a claim for benefits prior to
August 22, 1949 and which application was allowed with the
benefit year commencing July 3, 1949, is entitled to ~ h e increased
weekly benefit provided for by subsection b of Section 1345-8,
General Code, and the total benefits paycrble to such person dur-
ing his bene-fit year should be recomputed proportionally from
and after August 22, 1949 in accordance with the increase pro-
OPINIONS
vided for 1by subsection d of said section, as amended by Amended
Senate Bill 142 of the 98th General Assembly."
I am informed by your department that following this opinion total bene-
fits in cases such as are here under consideration were re-determined as
follows: (For punposes of clarity I am using the elate of Oct<Yber 30 as
the effective elate of the new law.)
r. The total amount of compensation paid prior to October
30 was determined.
2. This amount was subtracted from the total benefits as
originaHy allowed.
3 The resulting difference was divided by the maximum
weekly rate under the old law.
4 The resulting quotient was multiplied by the maximum
rate under th,e new law.
5 The resulting product was added to the original amount
of compensation paid prior to October 30.
6. The resulting sum was the re-determined total benefit.
Since this computation deals with amounts of money paid rather than
with weeks in which compensation was paid, it is equally applicable to
cases in which partial as well as total oompensation will have been paid
prior to October 30, 1953.
It is my opinion that the above method of computation is accurate
and comports with the legal principles set out aibove, and that it should
be applied in this case.
It is therefore my opinion and you are advised that where an appli-
cation for determination of benefit rights shall have been filed with the
Bureau of Unemployment Compensation pursuant to the provisions of
Section 4I4r.28, Revised Code, prior to October 30, 1953, the claimant,
in claims for benefits filed pursuant to such application after October 30,
195'3, shall be entitled to the increased weekly benefit rates provided in
Section 4141.30, Revised Code, as amended by Amended Senate Bill 174
of the rooth General Assembly; and the total benefits to which such
claimant is entitled shall ;be increased proportionately to provide for such
increased weekly benefits.
Respectfully yours,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
497
3123
MILITARY DISTRICTS OF OHIO-BRIDGES WHICH CROSS
OHIO RIVER-COMPACT---"OHIO, WEST VIRGINIA, KEN-
AID IN CASE ENEMY ATTACK OR INVA-
SION-COMPhCT PROVIDES ONLY FOR USE AND INTER-
CHANGE OF SERVIOES OF CIVIL DEFENSE ORGANIZATIONS
OF THE SEVERAL STATES-DOES NOT CONTEMPLATE OR
AUTHORIZE MUTUAL EMPLOYMENT OF MILITIA OR
OTHER LA \V ENFORCEMENT AGENCIES.
SYLLABUS:
The compact which has been entered into between the states of Ohio, West Vir-
ginia and Kentucky for mutual aid in case of enemy attack or invasion provides for
mutual assistance between the contracting states only by the use and interchange of
services of the civil defense organizations of .the :several states, and does not contem-
plate or authorize the mutual employment of the militia or other law enforcement
agencies of the several states.
Columbus, Ohio, October 8, 1953
Major General Albert E. Henderson
Adjutant General and State Director of Civil Defense
Columbus, Ohio
Dear Sir:
I have before me your request for my opinion, reading as follows:
"Some few months ago the Military Districts of Ohio, west
Virginia and Kentucky, each of which are divisions of the Second
Army, Fort George G. Meade, Md., 'became concerned as to the
defense of the various !bridges which cross the Ohio River be-
tween our respective states. This concern is apparently founded
on an apprehension that in the event of an active program of
sabotage the bridges might be destroyed.
"It has been my belief that the protection of these bridges is
a responsibility of our Civi-l Defense forces rather .than something
our ?\ ational Guard should undertake as, in my opinion, they
will not actually lbe attacked in strength by an organized force
of an enemy, at least prior to an i11'vasion when the United States
Army would be involved. If we -are to require our Civil Defense
organization to assume such a mission, it would rbe my personal
OPINIONS
opinion such a project could be covered by the Civil Defense
compacts between the respective states. It would seem to me it
might aJso be possible to supplement Civil Defense law eliforce-
ment personnel with such other forces as may be available to us,
if necessary, and not go ibeyond .the terms of the compacts.
"I novv have a letter from the Adjutant General of \Vest
Virginia attaching a copy of an opinion of their Assistant Attor-
ney General, which General Fox believes necessitates a separate
compact between the States. A copy of this correspondence is
attached for your information. You will note a conference will
be scheduled to resolve the matter of arranging for the joint
protection of the bridges.
"My question is, does the present compact, copy attached,
cover a joint arrangement for the protection of these structures
or if such :plans are prepared and put into effect, wiH a new one
be required? There is also the question of supplementing Civil
Defense forces as may be necessary with any and all Ia w enforce-
ment agencies available to us in times of emergency.
"Your consideration of this matter and the receipt of your
Opinion as to the limitations of the existing Compact will be
greatly appreciated as the Department of Defense, through its
Second Army, is most anxious that the bridges be protected."
I understand from your letter and from data submitted therewith
that there are a number of bridges crossing the Ohio river into the states
of \Vest Virginia and Kentucky, some of which bridges belong to the state
of Ohio, some to the states of \Vest Virginia and Kentucky, respectively,
and some to private ownership.
I understand, furthermore, that the eastern and southern boundary
of Ohio, so far as it touches the Ohio River, is at low watermark on the
western and northern bank of the river, 111 other \vords, that the terri-
tory occupied by the river itself belongs to the states of Kentucky and
West Virginia, respectively.
The statutes of Ohio relative to civil defense,
tions 5291 to 5315, inclusive, of the General Code.
Code, reads as follows :
are comprised in Sec-
Section 5294, General
"The governor may enter into mutual aid arrangements
with other states and shall coordinate mutual aid plans between
political subdivisions vf this state, other states and the L: nited
States."
ATTORNEY GENERAL
499
The Congress of the United States by an Act entitled "Federal Civil
Defense Act of 1950, Public Law 920, 8rst Congress, Second Session,
approved January 12, 1951," has granted its consent to the making of
civil defense compacts between the various ,states.
Pursuant to the foregoing authority, various states, including as I
am advised, the states of Ohio, Kentucky and West Virginia, have entered
into the form of compact su'bmitted with your letter, portions of which
are as follows :
"ARTICLE I. The purpose of this compact is to provide
mutual aid among the states in meeting any emergency or disaster
from enemy atta.ck or other cause (natural or otherwise) in-
cluding sabotage and subversive acts and direct attacks by bombs,
shellfire, and atomic, radiological, chemical, bacteriological means,
and other weapons. The prompt, full and effective utilization
of the resources of the respective states, including such resources
as may he available from the United States Government or any
o ~ h e r source, are essential to the safety, care and welfare of the
people thereof in the event of enemy action or other emergency,
and any other resources, including personnel, equipment or sup-
plies, shall be incorporated into a plan or plans of mutual aiel
to be developed among the Civil Defense agencies or similar
bodies of the states that are parties hereto. The Directors of Civil
Defense of all pa;rty states shall constitute a committee to formu-
late p.Jans and take all necessary steps for .ttbe implementation of
this compact."
"ARTICLE 3 Any party state requested to render mutual
aid shall take such actiGn as is necessary to provide and make
availa:ble rhe resources covered by this compact in accordance with
the terms hereof; provided that it is understood that the state
rendering aiel may withhold resources to the extent necessary to
provide reasonable protection for such state. Each party state
shall extend to the civil defense forces of any other party state,
while operating within its state limits under the terms and condi-
tions Gf this compact, the same powers (except that of arrest
unless specifically authorized by the receiving state), duties,
rights, privi'leges and immunities as are extended to the civil de-
fense forces of such state. Civil defense forces will continue under
the command and control of their regular leaders but the or-
ganizational units will come under the operational control of the
civil defense authorities of the state receiving assistance.
"ARTICLE 4 whenever any person holds a license, cer-
tificate-or other permit issued by any state evidencing the meeting
of qualifications for .professiona.l, mechanical or other skills, such
person may render aid involving such skill in any party state
soo OPINIONS
to meet an emergency or disaster and such state shall give due
recognition to such license, certificate or 0t'her permit as if issued
in the state in which aid is rendered." (Emphasis added.)
With further reference to the ,statutes of Ohio, it appears that the
primary purpose of such civil defense organization is for the protection
of the state and its people against possible enemy action and that t'he
primary area of its operations is the State of Ohio. It is only Jby virtue
of the authority given by Section 5294 supra, and the agreements entered
into pursuant thereto, that it would have authority to operate beyond the
state limits.
Accordingly, but for the compact in question it seems clear that the
defense organization of Ohio would have the sole duty to protect persons
and property within its territorial boundaries and would have neither the
right n0r the duty to go beyond its boundaries for such purpose. In
such case the authority to protect the bridges in question would end at
the state line, irrespective of the fact that the State of Ohio or any of its
citizens owned certain bridges located in another state.
Presumwbly the civil defense organizations of the states in which the
bed of the river is located, would have and exercise the authority and
duty to protect the property lying wirhin their limits irrespective of the
fact that it might be owned either by the state of Ohio or by some private
person or corporation. The compact clearly implies that whenever re-
quested by either of the contracting states, the adjoining state would send
its personnel and equipment into the other state, and join in the common
defense. For this purpose it appears to me that the compact contains
.rbundant provisions.
As to the question of using not only the facilities of the civil defense
organization but also "any and all law enforcement agencies availa!ble"
and sending them into another state, I cannot agree that the compact in
question contemplates or sanctions such action. This would evidently
involve the use of the state militia.
Section 4 of Article IX of the Constitution makes the following
prOVISIOn:
"The Governor shall commission aU officers of the line and
staff, ranking as such; and shall have power to call forth the
Militia, to execute the laws of the State, to suppress insurrection,
and repel invasion."
ATTORNEY GENERAL
501
The power to call the mi-litia into action is lodged m the GDvernor
by Section 5202 of the General Code, which reads as follows:
"The organized militia may he ordered by the governor to
aid the civil authorities to suppress or prevent riot or insurrection,
or to repel or prevent invasion, and shall be called into service
in all cases before the unorganized militia."
A careful consideration of the compact in question seems to make
it clear that it contemplates only the use of the civil defense organization
as a cooperative agency between the several states, and has no reference
to the use of the militia or other law enforcement agencies of a neighboring
state.
Accordingly, 111 specific answer to your question it is my opinion
and you are advised that the compact which has been entered into between
the states of Ohio, West Virginia and Kentucky for mutual aid in case
of enemy attack or invasion provides for mutual assistance between the
contracting states only by the use and interchange of services of the civil
defense organizations of the several states, and does not contemplate or
authorize the mutual employment of the militia or other law enforcement
agencies of the several states.
RespectfuHy,
c. WILLIAM O'NEILL
Attorney General
VACATION-ANY STATE EMPLOYE HAVING FIFTEEN OR
::\10RI YEARS OF SERVICE, ENTITLED TO THREE CALEN-
DAR WEEKS OF PAID VACATION DURING I953-AM. SUB.
HB 40, IOO GA-SBCTION I2I.I6 RC-SECTION I54-20 GC-
EFFECTIVE OCTOBER 29, I953
SYLLABUS:
The prodsions of Amended Substitute House Bill No. 40, 100th General Assembly,
amending Secti()n 121.16, Revised Code, formerly 154-20, General Code, are effective
as of October 29, 1953 and thereby any state employe having fifteen or more years of
service is entitled to three calendar weeks of paid vacation during 1953.
502 OPINIONS
Columbus, Ohio, October 9, 1953
Hon. Carl W. Smith, Chairman, Civil Service Commission of Ohio
Columbus, Ohio
Dear Sir:
I have lbefore me your request for my opnuon which presents the
question as to the time of the effective application of the provisions of
Amended Substitute House Bill No. 40, passed by the One Hundredth
General Assembly as it pertains to paid vacations for state employes with
fifteen or more years of service.
Amended !Substitute House Bill No. 40 was passed by the General
Assembly, July J4, I953, approved by :the Governor July 30, I953 and
filed with the Secretary of State on July 30, 1953. This Act was codified
as Section I2I.I6, Revised Code, and reads in pertinent part:
"* * * Each state employee after service of one year is en-
titled during each year thereafter, to two calendar weeks, exclud-
ing legal holidays, vacation leave with full pay. Employees having
'fifteen or more years of service are entitled to three calendar
weeks of such leave * * *."
The precise question to which my consideration has 'been called by
your inquiry is whether employes who have :had or wiH have fifteen or
more years of service as of the effective date of this Act are entitled to
the three calendar weeks of paid vacation leave in the year I953
The effective date of legislation enacted by the General Assembly 1s
determined by the Ohio Constitution, Article H, Section Ic, which reads
in part:
"* * * No law passed by the general assembly shall go into
effect until ninety days a.fter it shaH have been filed by bhe gov-
ernor in the office of the secretary of state, except as herein pro-
vided. * * *"
Section Id of Article II provides that tax levies, appropriations for
current e ~ p e n s e s of the state government and institutions, and emergency
laws necessary for the immediate protection of public peace, health or
safety shall go into immediate effect.
ATTORNEY GENERAL
503
In the instant case, as it is not an emergency measure, the former
section, Article II, Section 1c, applies and the provisions of this act
become effective on the 29th of October, 1953, being ninety days after
the filing with the Secretary of State. Determining the effective date of
this act is not, however, dispositive of the question without a construc-
tion of the :tem1s of the enactment.
Looking to the literal language of the act, I am of the opm10n that
the General Assembly has presently granted to state employes having
fifteen years or more service three weeks of paid vacation. I find no
qualifying or prospective language which would in any way delay the
immediate operation of this act. It must be concluded, therefore, that
the intention of t'he General Assembly was that any person so qualified
by length of service is therefore entitled to three weeks vacation during
the year 1953.
For these reasons, It IS my opmwn that the provisions of Amended
Substitute House Bill No. 40, rooth Genera! Assembly, amending sec-
tion 121.16, Revised Code, formerly 154-20, General Code, are effective
as of October 29, 1953, and thereby any state employe having fifteen
or more years of service is entitled to three calendar weeks of paid vaca-
tion during 1953.
Respectfully,
C. WILLIAM O'NEILL
Attorney General
OPINIONS
I. COUNTY AUDITOR-DUTY TO ADD AN ITEM REPRE-
SENTING ESTIMATED COLLBCTION EXPENSE TO TAX
LIST AND DUPLICATE-SPECIAL ASSESSMENTS MADE
BY MUNICIPAL CORPORATIONS- MANDATORY DUTY
lS CONTINUING ONE - WHERE COUNTY AUDITOR
FAILED TO ADD ITEM IN PRIOR YEARS, IT SHOULD BE
ADDED BOTH TO CURRENT AND DELINQUENT TAX
LISTS-SECTIONS 727.01, 727.65 RC, 38r2 ET SEQ., 3852 GC.
2. FEE-PROVISION MADE IN SECTION 2624, PARAGRAPH
(A), GC-319.54 RC, SHOULD BE COMPUTED ON BASIS OF
ALL MONEYS COLLECTED ON ANY TAX DUPLICATE OF
COUNTY - DELINQUENT TAX LISTS INCLUDED --
MONEYS COLLECTED ON ACCOUNT OF :MUKICIPAL
ASSESSMENTS NOT INCLUDED-COMPENSATION FOR
COLLECTION PROVIDED BY SECTlONS 727.65 RC, 3852
GC-OPINION 3852, OAG 1945, PAGE 340 OVERRULLED.
SYrLLABUS:
1. The provisions of Section 3852, General Code, Section 727.65, Re,ised Code,
are mandatory and they impose on the county auditor the duty to add an item repre-
senting his estimated collection expense to the tax list and duplicate with respect to
all special assessments made tby munici.pal cor[>Orations under the provisions of Section
3812, et seq., General Code, Section 727.01 et seq., Revised Code . .Such mandatory duty
is a continuing one and where the county auditor has failed to add such item in prior
years, it should be added both to the current tax lists and to delinquent tax lists.
2. The fee for which provision is made in Section 2624, General Code, paragraph
(A), Section 319.54, Revised Code, should be computed on the basis of all moneys
collected on any tax duplicate of the county, including delinquent tax lists, but not
including money collected on account of municipal assessments, the compensation for
the collection of such assessments being specially provided for by Section 3852, General
Code, Section 727.65, .Revised Code. Opinion No. 324, Opinions of the :\ttorney Gen-
eral for 1945, p. 340, overruled.
ATTORXEY GENERAL
505
Columbus, Ohio, October !4, 1953
Hon. Oliver R. Marshall, Prosecuting Attorney
Painesville, Lake County, Ohio.
Dear Sir:
Your request for my opinion reads as follows :
"Section 2624 of the Ohio General Code provides that in his
annual settlement tJhe County Auditor shall be allowed certain
compensation for his services.
"Section 3852 of the Ohio General Code, referring to the
collection by a county auditor of special assessments, provides as
follows:
" '3852. Expenses of collecting to be added to assessment.
-In placing such assessment on the tax list, the county auditor
is required to add to each assessment such percent as he deems
necessary to defray the expenses of collecting it.'
"I a.m unable to find in the Ohio General Code any pro-
cedure for the County Auditor to follow in keeping accounts of
special assessments collected or for the allowance of auditor's
fees on such collections.
"I am familiar with the opinion of your predecessor con-
tained in 1945 Opinions of the Attorney General, page 340,
Opinion No. 324, in which it is held that collections made on
special assessments shall be included in determining fees to be
allowed to the county auditor as compensation for his services
under the provisions of Section 2624 Ohio General Code. In the
course of this opinion it is stated that since tJhe County Auditor
is required to add collection costs to the amounts of special as-
sessments certified to him, the possibility of creating a deficiency
in the special assessment fund is thereby eliminated.
"The Auditor for Lake County, Ohio, has not heretofore
added collection charges to special assessments on his tax list, and
has not requested nor been credited with any fees for the collec-
tion of special assessments. \Vith increased costs, however, he is
currently adding collection charges to special assessments in the
preparation of his tax lists, in accordance with Section 3852
Ohio General Code, and expects to claim a credit in his annual
settlement for money so collected, in accordance with Section
3852 Ohio General Code and in accordance with the opinion of
your predecessor referred to above. Tlhe Auditor feels that the
fees provided in Section 3852 Ohio General Code are adequate
to compensate him for the expense oi collecting special assess-
ments. My question relates to the correlation, if any, between the
so6 OPINIONS
above mentioned sections of the Code and with particular re-
spect to the collection of delinquent assessments. The Auditor
would like to charge the taxpayer a fixed percentage on all col-
lections as provided in Section 3852 Ohio General Code. At first
glance it would seem that to permit the Auditor to claim his fees
upon total collections, would result in a fee upon delinquent col-
lections w1here no provision had been made in the tax list for
such collection from the taxpayer. However, let me point out that
no deficiency in any special assessment fund would result from
such practice. When an assessment becomes delinquent, our Au-
ditor adds a penalty of IOlJ'o the first year and charges interest at
the rate of 8% per annum on each delinquent instalLment there-
after. Therefore, the allowance of the Auditor's fees on collec-
tions of delinquencies would result only in a reduction in the
amount of the penalties and interest paid over to the taxing au-
thority.
"If I am correct that the legislature has not provided any
correlation between the above mentioned sections of the Code, it
appears to me that the Auditor's proposed solution is both legal
and practical and the Auditor should be permitted to now add
his collection expenses to all current tax bills, which expenses shall
be placed upon his current tax lists and that he should further be
permitted to add similar collection charges to delinquencies at the
time delinquent tax bills are issued. He would then be enabled to
claim his statutory fee (Section 2624 O.G.C.) upon the total
amount of his collections for general real estate taxes and special
assessments. Therefore my specific questions are as follows :
"1. l'viay a County Auditor who has not heretofore added
collection expenses to his tax list of special assessments, now add
to current lists a percentage charge to cover his collection ex-
penses?
"2. May a County Auditor who has not heretofore added
collection expenses to his tax list of special assessments, now add
to delinquent bills a percentage charge to cover his collection ex-
penses?
"3. If the answers to my first questions are in the affirma-
tive, then may the County Auditor in his annual tax settlement
compute his fee from his total collections from general real estate
taxes, plus special assessments, plus delinquencies on each?"
Provision for the allowance of compensation for the services of the
county auditor for the collection of taxes are found in Section 2624,
General Code, which reads as follows:
"On all moneys collected by the county treasurer on any
tax duplicate of the county, other than the liquor, inheritance and
ATTORNEY GENERAL
cigarette duplicates, and on all moneys received as advance pay-
ments of personal property and classified property taxes, the
county auditor on settlement with the county treasurer and audi-
tor of state, shall be allowed as compensation for his services the
following percentages :
"On the first one hundred thousand dollars, one and one-
half per cent; on the next two million dollars, five-tenths of one
percent; on the next two million dollars, four-tenths of one per
cent; and on all further sums, one-tenth of one per cent. Such
compensation shall be apportioned ratably by the county auditor
and deducted from the sha:res or portions of the revenue payable
to the state as well as to the county, townships, corporations and
school districts."
Vve may first examine the question of the application of this section
to t:he collection of delinquent taxes by the county auditor. Because Sec-
tion 2624, supra, is by its terms expressly made applicable to "any tax
duplicate of the county," I have no difficulty in concluding that it is ap-
plicable not only to the general tax list and duplicate compiled as provided
in Sections 2583 and 2584, General Code, but is applicable as well to the
tax list and duplicate of delinquent personal and classified property made
up as provided in Section 5694, General Code.
In case of delinquent real property taxes, provision is found in Sec-
tion 5704, General Code, for the compilation by the auditor of a delinquent
land list and duplicate thereof, the original of such list being retained by
the auditor and the duplicate being delivered to the treasurer. Collection
of delinquent real property taxes by the treasurer is provided for in Sec-
tions 5704-1 and 5723, General Code. These sections read:
Section 5704-1 :
"T,he office of the county treasurer shall be kept open, to re-
ceive the payment of delinquent real estate, personal and classified
property taxes, from the date of the delivery of the delinquent
land lists and the delinquent personal and classified property tax
lists, provided for in sections 5694 and 5704 of the General Code,
until the final publication of any of such delinquent tax list, as
provided in said sections, in order that the name of any taxpayer,
paying such taxes prior to forty-eight hours before the first pub-
lication of any such list, may be stricken from suoh list; and in
case payment i,s ma:de subsequent to the first publication and at
any time prior to forty-eight hours before the second publication
of any such list the name of such taxpayer shall be eliminated
from the second publication."
508
OPINIONS
Section 5723 :
"It shall be the duty of the county treasurer, upon receipt by
him of all moneys due him for delinquent taxes, assessments,
penalty and interest on any tract of land, city or town lot, to enter
upon the tax duplicate and upon his copy of the delinquent land
list the word 'redeemed,' and it shall be the duty of the county
auditor, af.ter each settlement period, to revise the list of delin-
quent lands, city or town lots, by writing the word 'redeemed'
(in the margin provided for that purpose) on all such tracts of
land, city or town lots entered 'redeemed' upon the treasurer's
duplicate, and he shall make a like entry on his tax list."
The provision in Section 5723, supra, for an entry "on the tax
duplicate" by the treasurer with respect to payments of delinquent real
property taxes is sufficient, in my opinion, to constitute such collection by
him an instance of moneys "collected by the county treasurer on any tax
duplicate of the county" as this language is used in Section 2624, General
Code. I conclude, therefore, that this section is applicable to collections of
delinquent taxes.
In Title XII of the General Code, relating to municipal corporations,
we find that Division III therein relates to the special powers of such
corporations. Within Division III we find Chapter 5 on the subject of
special assessments, such chapter consisting of Sections 3812 to 391 r,
General Code. In this chapter provision is made for the imposition of
special assessments by municipal corporations to meet the expense of
certain public improvements, and provision is made also for the entry of
such assessments on the tax list and duplicate and the collection thereof
by the county auditor. In the matter of entry of such assessments on the
tax list, we find the following provision in Section 3852, General Code:
"In placing such assesment on the tax list, the county auditor
is required to add to each assessment such per cent as he deems
necessary to defray the expenses of collecting it."
In your inquiry you indicate that the county auditor has not hereto-
fore added to his tax list of special assessments any item as required by
this section. I am unable to perceive how the failure to do this in prior years
would affect his statutory duty to make current entries, as required by
this section, on the tax list and duplicate currently being compiled. In
view of the plain requirement of the statute, I conclude, therefore, that
in making up such current tax list arrd duplicate of special assessments
ATTORNEY GENERAL
the auditor is not only authorized but is required to add to each assess-
ment such per cent as he deems necessary to defray the expense of col-
lecting the unpaid balance thereof.
In this connection it should be borne in mind that Section 3852,
supra, is applicable only in case of special assessments made by municipal
corporations and is not applicable to special assessments made by other
taxing authorities.
In your second question you ask whether oollection expense may be
added under the provisions of Section 3852 to delinquent bills for special
assessments. It is to be presumed that "the delinquent bills," to which you
refer in the second specific question set out in your inquiry, constitute
statements of the balances due and owing as special assessments made by
a municipal corporation, and that all of such amounts have been regularly
entered on the tax list and duplicate. Such being the case, I see no reason
why the auditor should not enter on such tax list and duplicate a charge,
as required by Section 3852, General Code, to cover the expense of col-
lection of any amounts still uncollected, regardless of the year in which
the liability for payment of the several component parts of such balance
accrue.
In this connection also we may note that the balance due in the case
of delinquent special assessments will include penalty and interest items.
This circumstance, however, is scarcely sufficient to alter the matter, since
under the provisions of Section 5678, General Code, the penalty charges
on delinquent taxes and assessments are included in the total amounts
which "constitute the delinquent taxes and assessments on such real estate
to be collected in the manner prescribed by law," and under the provisions
of Section 5679, General Code, interest which accrues on unpaid taxes
and assessments "shall be charged on the duplicate from the expiration
of such year until such taxes, assessments, penalties and interest are paid."
In the per curiam opinion in State ex rei Crotty v. Zangerle, 133
Ohio St., 532, we find the following statements, pp. 537 and 538:
"* * * It is true that in certain jurisdictions a distinction has
been drawn between taxes on one hand and interest and penalties
on the other. But the controlling question here is whether they
are so considered by the statutes of Ohio. Counsel agree that in
this state the law requires that such interest and penalties be
cha.rged upon the tax duplicate, that they be collected as a part
of the ta:res, and that they be distributed as ta:res. As illustrative
5IO
OPINIONS
of this view of the Legislature, Section 5678, General Code, pro-
vides that when taxes, assessments and penalties are not paid 'the
total of such amounts shall constitute the delinquent taxes and
assessments on such real estate to be collected in the manner pre-
scribed by law.'"
"* * * Clearly interest and penalties upon delinquent taxes
must be considered as part of the taxes for the purpose of solving
the question here presented."
In view of this language we may readily conclude that any penalty and
interest items which are included in the balance of special assessments due
in cases of delinquency, are to be regarded as delinquent assessments. As
such, they are required to be entered annually on the delinquent land list
under the provisions of Section 5704, if and when the county treasurer
is required, under the provisions of Section 5723, General :Code, to make an
entry to that effect not only on the delinquent land list but upon the tax
duplicate as well.
For these reasons I conclude that where a county auditor has not
heretofore added collection expense to his tax list of special assessments,
as required by Section 3852, General Code, he should currently enter a
charge for such expense on the tax list and duplicate of special assessments
made by municipal corporations as to all parcels listed thereon, including
delinquent lands; and that such percentage may be applicable to the entire
amount clue on any such parcel, including the penalty and interest which
has accrued on such delinquent special assessments.
I realize that the addition of the service or expense charge to assess-
ments which haYe already been on the tax duplicate, and which have
already been paid in part, may seem harsh and unfair to purchasers of
property who have relied on the record as to the amount of the balance of
the assessment, but suoh hardship, or the neglect of the auditor to perform
his duty, cannot change the law, and I can find no theory under which the
property owner should escape a liability which the law imposes, even
though the county is slow in asserting it. A county cannot be estopped
by the wrongful act of its officers. 16 Ohio Jurisprudence, 652. In the
case of Neil v. Barron, 7 0. N. P., 84, it was held that the wrongful action
of the county treasurer in reporting taxes and assessments on property
as paid, did not discharge the lien, or estop the state or the city from
enforcing it.
ATTORNEY GENERAL
5II
\ ~ T e come now to your third specific inquiry which, for the purpose of
convenience, is herein again set out:
"If the answers to my first two questions are in the affirma-
tive, then may the county auditor in his annual tax settlement
compute his fee from his total collections from general real estate
taxes, plus special assessments, plus delinquencies on each?"
If the auditor does his duty under Section 3852, he will charge and
collect from the property owners the entire county expense involved in
collecting the assessments, and if, further, the percentages set out in Sec-
tion 2624 are applied to the amount of the assessments collected, as well
as to taxes and other moneys, the municipality will pay the same expense
so far as the auditor's services are concerned. And it should be noted in
this connection that Section 2685, General Code, allows the treasurer the
same fees as are given the auditor by Section 2624 on all collections. Thus
the county would be paid twice for the same service.
If we hold that the basis for applying the percentage "compensation"
provided by Section 2624 as to the auditor and 2685 as to the treasurer,
is to include all moneys collected on account of assessments, then it would
include also the expense percentage contemplated by Section 3852, and the
county would be receiving a percentage based on the expense charge which
the auditor adds for the collection of assessments.
I cannot believe that the Legislature intended any such injustice.
Rather, I should regard the expense allowance provided by Section 3852
as a special provision for reimbursement to the county for its service to
the municipality, and taking the place, pro tanto, of the general provisions
of Section 2624.
It is said in so American Jurisprudence, Statutes, .Section 367, p. 371:
"It is an old and familiar principle, closely related to the rule
that where an act contains special provisions they must be read as
exceptions to a general provision in a separate earlier or subse-
quent act, that where there is in the same statute a specific pro-
vision, and also a general one which in its most comprehensive
sense would include matters embraced in the former, the particular
provision must control, and the general provision must be taken
to affect only such cases within its general language as are not
within the provisions of the particular provision. * * *"
In arriving at the conclusion which I have indicated, I find myself in
disagreement with an opinion of one of my predecessors, to wit, Opinion
No. 324, Opinions of the Attorney General for 1945, page 340, where it
was held:
512
OPINIONS
"Collections made by the county treasurer on special assess-
ments of municipalities which have been certified to the county
auditor for collection, should be included in determining the fees
to be allowed to the county auditor as compensation for his serv-
ices, under the provisions of Section 2624, General Code."
In reaching that conclusion the then Attorney General apparently over-
looked the fact to which I have called attention, that such construction of
the law would give the county a double reimbursement for its expense.
He also appeared to consider that the imposition and collection of the
service charge imposed by Section 3852, supra, would eliminate the possi-
bility of a deficiency in the assessment fund. I see no substance in that
theory, because under Section 3892, General Code, all that the county
treasurer can remit to the municipality is the "assessment, together with
interest and penalty, if any," and the municipality would under no circum-
stances receive any part of the service charge aurhorized by Section 3852,
General Code.
Accordingly, I feel under the necessity of overruling the 1945 opinion
above referred to, and answering your third question in the negative.
For these reasons, in specific answer to your inquiries, it is my opinion
that:
r. The provisions of Section 3852, General Code, Section 727.65,
Revised Code, are mandatory and they impose on the county auditor the
duty to add an item representing his estimated collection expense to the tax
list and duplicate with respect to all special assessments made by municipal
corporations under the provisions of Section 3812, et seq., General Code,
Section 727.01 et seq., Revised Code. Such mandatory duty is a continuing
one, and where the county auditor has failed to add such item in prior
years, it should be added both to the current tax lists and to delinquent tax
lists.
2. The fee for which provision is made in Section 2624, General
Code, paragraph (A), Section 319.54, Revised Code, should be computed
on the basis of all moneys collected on any tax duplicate of the county,
including delinquent tax lists, but not including moneys collected on account
of municipal assessments, the compensation for the collection of such
assessments being specially provided for by Section 3852, General Code,
ATTORNEY GENERAL
Section 727-65, Revised Code. Opinion No. 324, Opinions of the Attorney
General for I945, p. 340, overruled.
3I34
Respectfully,
c. WILLIAM O'NEILL
Attorney General
LEA,SES-STATE LANDS-BUCKEYE LAKE, INDIAN LAKE,
LAKE ST. MARYS, GUILFORD LAKE, LAKE LORAMIE, PORT-
AGE LAKES-EXISTING LEASES IN MATTER OF COMPUTA-
TION OF ANNUAL RENTAL RESERVED THER_!EUNDER
ONLY IN INSTANCES WHERE LESSEE CONSENTS TO NOVA-
TION-SECTION I541.08 RC-AM. SUB. HE 6I8, Ioo GA, EF-
FECTIVE NOVEMBER 7, I953
SY,LLABUS:
The provisions of Section 1541.08, Revised Code, as amended in Amended Sub-
stitute House Bill 618, 100th General Assembly, effective November 7, 1953, are
applicable to existing leas'es in the matter of the computation of the annual rental
reserved thereunder only in instances where the lessee consents to a novation for such
purpose.
Columbus, Ohio, October I4, I953
Bon. A. W. Marion, Director, Department of
Natural Resources
Columbus, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"The former Division of Conservation and Natural Re-
sources, pursuant to Section 47I, General Code, 113 0. L. 55I
(553), and the Department of Natural Resources, Division of
Parks, pursuant to Section 47I, General Code, I23 0. L. 84
(1<15), leased certain lands in and adjacent to Buckeye Lake,
Indian Lake, Lake St. Marys, Guilford Lake, Lake Loramie, and
Portage Lakes to certain individuals. The lease forms which were
OPINIONS
used in leasing these parcels of land were all approved by you or
by your predecessors in office. Copies of these lease forms are
being enclosed herewith.
"Query: \\'here the former Division of Conservation and
Natural Resources and/or the Department of Natural Resources,
Division of Parks, entered into a lease with an individual, pur-
suant to existing law, which lease provided for a specific rental,
can the State of Ohio demand a rental different from that called
for in the lease? Does Article II, Section 28, of the Ohio Con-
stitution limit the application of Section I54L08, Amended Sub-
stitute House Bill No. 6r8, effective November 7, 1953, to 'new
leases'; i.e., to leases entered into after November 7, 1953 ?"
Amended Substitute House Bill No. 6r8, rooth General Assembly,
effected the repeal, effective November 7, 1953, of existing Section 154I.o8,
Revised Code, Section 471, General Code, and its reenactment in the fol-
lowing language :
Section 1541.o8 (471)
"* * * State lands in or adjacent to Buckeye Lake, Indian
Lake, Lake St. Marys, Guilford Lake, Lake Loramie, or the
Portage Lakes * * * may be leased. The division of parks may
lease such lands, including marginal strips and marshlands around
said lakes, the outer slopes of artificial embankments, islands, bor-
row pits, and state lands adjacent thereto as it deems proper
* * * to responsible parties. Such leases shall be for a term of
not less than fifteen years or multiples thereof. The annual rental
shall be six percent of the appraised actual value of such lands.
Such lands shall be reappraised at the same time and by the same
authority as the reappraisement of the real estate of the county
is made for tax purposes, and it shall be the duty of the board of
tax appeals to furnish to the division of parks the most recent
appraised values of the state owned lands described in this sec-
tion. The division of parks shall pay to the county auditor of the
respective counties wherein the state owned lands are located the
sum of ten per cent of the proceeds of the annual rentals derived
from the leases.
"The leases shall be terminated only with the written con-
sent of both parties to the leases, for violation of state statutes,
or for violation of the provisions of the leases and shall not be
canceled for the operation of a business licensed heretofore by any
other state agency.
"All leases executed in accordance with this section shall be
approved by the attorney general and the original copy of the
leases shall remain in the possession of the division of parks.
ATTORNEY GENERAL
"The provisions of this section shall apply to any leases now
in effect in or adjacent to Buckeye Lake, Indian Lake, Lake St.
Marys, Guilford Lake, Lake Loramie, or the Portage Lakes.
"Leases which have been executed under the provisions of
statutes governing the leasing of canal lands, and which have
been continuously renewed upon the dates of expiration, shall be
renewed in the same manner as provided in the statutes which
governed the execution of the original leases.'"
Because of the provision in this act that it "shall apply to any leases
now in effect," it becomes necessary to give consideration to the pro-
visions of Section 28, Article II, Ohio Constitution, which reads as
follows:
"The General Assembly shall have no power to pass retro-
active laws, or laws impairing the obligation of contracts; but
may, by general law, authorize courts to carry into effect, upon
such terms as shall be just and equitable, the manifest intention
of parties, and officers, by curing omissions, defects and errors,
in instruments and proceedings, arising out of their want of con-
formity with the laws of this State."
Quite clearly the application of the proviSIOns of Section I54-08,
Revised Code, with respect to the method of computation of the annual
rental to be paid by the lessees, raises the question of the possible impair-
ment of the terms of such existing leases within the meaning of the pro-
visions of Section 28, Article II, supra. It must be remembered, how-
ever, that in any situation of this sort the terms of the statute must be so
construed as to harmonize it, if possible, with controlling constitutional
provisions. Thus it is said in 37 Ohio Jurisprudence, 624 et seq., Sec-
tion 344:
"* * * a construction rendering a statute unconstitutional
should be avoided, unless the plain language of the statute forbids
any other construction. vVhere an act is fairly susceptible of two
constructions, one of which will uphold its validity while the other
will render it unconstitutional, the one which will sustain the
constitutionality of the Ia w should be adopted, even though such
construction may not be the most obvious or natural one. * * *"
(Emphasis added.)
In the instant case I do not regard the language of the statute pro-
viding that "The provisions of this section shall apply to any leases now
in effect" to be so definite and certain in meaning as not to be susceptible
sr6 OPINIONS
of more than one construction, and I conclude, therefore, that this lan-
guage must be construed in such a way as will sustain its validity under
the constitution.
I am more strongly impelled to this conclusion by reason of the pre-
smnption which obtains that the Legislature, having knowledge of the
constitutional provision in question, must be deemed not to have intended
to enact an unconstitutional law. For this reason I conclude that it was
the legislative intent, by the enactment of the provision above referred to,
to make the provisions of amended Section I54I.08, Revised Code, ap-
plicable to existing leases to the extent that such could be done without
impairing the obligations of any such agreements. From this it follows
that it would not be possible to apply the provisions of this section with-
out the consent of the lessee.
It may be pointed out, also, that the state, as lessor, has, by this legis-
lative enactment, consented to the revision of the terms of existing leases
as to the method of computation of rentals. Accordingly, in order to give
the fullest possible effect to the statutory language here under scrutiny,
it becomes necessary to conclude that the provisions of Section 1548.o8,
Revised Code, may be applied in the recomputation of the annual rental
under such leases provided the lessees consent to such revision.
To this extent, therefore, in response to the second specific question in
your inquiry, the provisions of Amended Substitute House Bill No. 6r8
would be applicable to existing leases and not solely to leases executed
on or after the effective date of the amendment.
Accordingly, in specific answer to your inquiry, it is my opinion that
the provisions of Section I 541 .o8, Revised Code, as amended in Amended
Substitute House Bill 618, rooth General Assembly, effective November 7,
1953, are applicable to existing leases in the matter of the computation
of the annual rental reserved thereunder only in instances where the lessee
consents to a novation for such purpose.
Respectfully,
c. WILLIAM O'NEILL
Attorney General.
ATTORNEY GENERAL
517
3135
I. DIVORCE CASE-COURT APPOINTED INVESTIGATOR-
COMPENSATION MAY BE PAID INVESTIGATOR UPON
WARRANT OF COUNTY AUDITOR THROUGH PROPER
CERTIFICATE OF JUDGE OF COMMON PLEAS COURT
ALLO\VING 3, OPINION 913, OAG,
1951, PAGE 724, MODIFIED-SECTIONS 307.55, 3ros.o8, RC,
246o, 8oo3-9 G. C.
2. COURT REPORTER, ASSISTANT-NOT INCOMPATIBLE
\i\'ITH POSITION, COURT CONSTABLE-ASSIGNED TO
INVESTIGATE DIVORCE CASES-INVESTIGATOR AP-
POINTED BY VIRTUE OF INHERENT POWER OF COURT
TO CONDUCT INVESTIGATION-SECTIONS 27or.o7 RC,
r692 GC.
1. \Vhere a court has appointed an investigator to make an investigation in a
divorce case, as is provided by Section 3105.08, Revised Code, Section 8003-9, General
Code, compensation may be paid such investigator under the provisions of Section
307.55, Revised Code, Section 2460, General Code, upon the warrant of the county
auditor upon the proper certificate of the Common Pleas Court judge allowing the
claim. Syllabus No. 3, Opinion No. 913, Opinions of the Attorney General for 1951,
page 724, modified.
2. The position of assistant court reporter is not incompatible with the position
of court constable, appointed by authority of Section 2701.07, Revised Code, Section
1692, General Code, and assigned to the investigation of divorce cases, or the position
of an investigator in such divorce cases, appointed by virtue of the inherent power of
the court to conduct such investigation.
Columbus, Ohio, October r6, 1953
Hon. Ray Bradford, Prosecuting Attorney
Clermont County, Batavia, Ohio
Dear Sir:
This will acknowledge receipt of your request for my opinion as to the
authority of the Judge of the Common Pleas Court of Clermont County to
appoint an assistant court reporter, who is salaried, as a salaried investi-
gator in divorce cases.
OPINIONS'
Section 3105.08, Revised Code, Section 8003-9, General Code, pro-
vides that on the filing of a petition for divorce or for alimony, the Court
of Common Pleas may, and in cases where there are children under four-
teen years of age involved shall, cause an investigation to be made as to
the character; family relations, past conduct, earning a!bility and financial
worth of the parties to the action.
This section has been the subject of interpretation in Opinion No.
913, Opinions of the Attorney General for 1951, page 724, and in the case
of Smith v. Smith, 93 0. App., 294, Court of Appeals of Clinton County.
As pointed out in the Smith case, the statute, while commanding an investi-
gation and report thereof in certain cases, includes no direction to the
court in the selection of an investigator, nor does it make any provision
for payment of any expense or compensation which would appear to be a
necessary incident thereto and which one must assume was within the
contemplation of the Legislature.
In Opinion No. 913, I enumerated two possible methods by which
the court could cause such an investigation to be made and pay the cost
thereof; first, by the appointment of a constable under the provisions of
Section 1692, General Code, Section 2701.07, Revised Code, and the pay-
ment of compensation as authorized by Section 1693, General Code, Sec-
tion 2701.08, Revised Code, and second, by the appointment of an in-
vestigator for a particular case with payment to be made upon the allow-
ance of the county commissioners as provided in Section 246o, General
Code, Section 307.55, Revised Code.
The Court of Appeals in the Smith case indicated agreement as to
the authority of the court to so appoint a constable under Section 1692,
General Code, but pointed out that in such case no such appointment had
been made. The court also indicated general agreement as to my conclu-
sion as to the inherent power of the court to appoint an investigator for
a particular case, but held that under the language of Section 2460, Gen-
eral Code, "except in those cases in which the amount due is fixed by
law, or is authorized to 1be fixed :by some other person or tribunal," the
approval. of the county commissioners is not necessary and that payment
may be made upon the warrant of the county auditor upon the .proper
certification of the Common Pleas Court judge allowing the claim. The
court stated at page 296 :
ATTORNEY GENERAL
"Under the language of the statute it, therefore, becomes
the judicial prerogative and the .duty of the Common Pleas Court
to exercise its sound discretion in the selection of an investigator
and to direct and control any and all expenditures necessary
thereto, including the mode and manner of payment."
Upon reconsideration, I am inclined to agree with the Court of Ap-
peals in this regard. In any event, it is the only judicial construction of
the statutes on this question to my knowledge. I, therefore, modify the
rhird paragraph of the syllabus of Opinion No. 913 accordingly.
Regardless of whether an assistant court reporter appointed as con-
sta!ble by authority of Section 2701.07, Revised Code, be assigned as such
to- the investigation of divorce cases as provided in Section 3105.o8, and
be paid compensation under Section 2701 .o8, or whether he be appointed
as investigator by virtue of the inherent power of the court to make such
appointment and be paid compensation under ,the provision of Section
307.55, the basic question presented by your request is the same. Is the
position of assistant court reporter compatible with that of such constable
or investigator?
I know of no statute which would specifically prohibit the holding
of both positions at the same time. Your question, therefore, must be
answered upon the basis of the common law rule of incompatibility. This
rule is weH stated in .the case of State, ex rel. v. Gebert, 12 O.C.C. (N.S.),
274, as follows :
"Offices are considered incompatible when one is subordi-
nate to, or in any way a check upon the other; or when it is
physically impossible f.or one person to discharge the duties of
both."
The question of whether it is physically possible for one person to
discharge the duties of both of the positions here under consideration is
a question of fact to 'be determined by the court which makes the appoint-
ment in each case. I believe it apparent, from an examination of the stat-
utes relating to the duties of the assistant court reporter, that neither of
the positions in question is subordinate to or in any way a check upon
the other. The basic duty of a court reporter or an assistant court re-
porter, as stated in Section 2301.20, Revised Code, is to "take accurate
notes of bhe oral testimony or other oral proceedings, which
notes shaH 'be filed in the office of the official shorthand reporter and care-
520 OPINIONS
fully preserved." An assistant court reporter is, of course, appointed by
the court and responsible :to the court. The same would be true as to a
constable assigned to the investigation of divorce cases, or an investigator
appointed for this specific purpose.
In conclusion, it is my opinion that:
I . Where a court has appointed an investigator to make an in-
vestigation in a divorce case, as is provided !by Section 3!05.08, Revised
Code, Section 8oo3-9, General Code, compensation may be paid suoh in-
vestigator under the provisions of Section 307.55, Revised Code, Section
2460, General Code, upon the warrant of the county auditor upon the
proper certificate of the Common Pleas Court judge allowing the claim.
Syllwbus No. 3, Opinion No. 913, Opinions of the Attorney General for
I95I, page 724, modified.
2. The position of assistant court reporter is not incompati'ble with
the position of court constable, appointed by authority of Section 2701.07,
Revised Code, Section I692, General Code, and assigned to the investi-
gation of divorce cases, or the position of an investigator in such divorce
cases, appointed by virtue of the inherent power of the court to conduct
such investigation.
3I45
Respectfully,
c. WILLIAM O'NEILL
Attorney General.
A ZONING COMMISSIONS-ZONING ORDINANCES-DESIG-
NATED PORTION OF TOWNSHIP ZONES-NOTHING TO
PREVENT ZONING BY SAME PROCEEDINGS OF ANOTHER
PORTION OF SAME TOWNSHIP-SUCCESSIVE ACTIONS
MAY BE TAKEN AS TO OTHER REMAINING PORTIONS OF
TO\VNSHIP-SECTION 5I9.02 RC-SECTION 3180-26 ET SEQ.,
G.C.
SYLLABUS:
Where proceedings have been had under Section 519.02, 1Revised Code, Section
3180-26 G. C., et seq., .pursuant to which a designated portion of a township has been
zoned, there is nothing to prevent the zoning by the .same proceedings of another por-
tion of the same township, and successive actions may be taken as to other remaining
portions of the to'Wnship, looking to the same end.
ATTORNEY GENERAL .)21
Columbus, Ohio, October 19, 1953
Ron. Vv m. A. Ambrose, Prosecuting Attorney
Mahoning County, Youngstown, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"The following request received from the Planning Di-
rector of the Mahoning :County Planning Commission, is here-
with submitted to you for your opinion:
''The Smith Township Trustees and myself would like to
obtain the State Attorney General's interpretation of certain
sections of the Ohio General Code which pertain to the pro-
cedure to be followed by Township Trustees in a:ppointing Zon-
ing Commissions and adopting Zoning Ordinances. Particular
reference is made to Section 3180-26 which reads in part, "for
said purposes may d i ~ t i d c all or any part of the unincorporated
territory of the Township into districts or zones of such number,
shape and area as said Township Trustees may determine;" and
to Section 3180-28 which reads in part "said commission shall
be composed of five members who reside in the unincorporated
area. of the Township to be zo11ed." '
"The Smith Township Trustees, proceeding under the pre-
mise that it is legal to zone any part of a township, appointed a
Zoning Commission composed of residents in the area to be
zoned, which in this case was an area of about one and a half
( r ) square miles, from which a petition for zoning had been re-
ceived. The Zoning Commission prepared a Zoning Ordinance
for the area to be zoned and made their recommendation, held
the public hearing required, then referred the Ordinance to the
County Planning Commission for its recommendation, after
which the Ordinance was submitted to the Township Trustees
who held their public hearing and then certified the Ordinance
to the Board of Elections to be placed on the ballet at a special
election held the 15th of May, 1953. The election was held and
the ordinance vvas adopted.
"Subsequent to the above action, residents of the area ad-
jacent to the one zoned wished to adopt a zoning ordinance for
their area. After discussing the matter with the Township
Trustees, they submitted a petition to the Trustees requesting
zoning for their area. The Township Trustees, after giving
additional study to Sections 3180-26 and 3180-28, appointed a
Second Zoning Commission composed of residents of the unin-
corporated area from which the petition was submitted. Tl1is
522 OPINIONS
second Zoning !Commission has drawn up a Zoning Ordinance.
much of the wording of the Ordinance was taken verbatim from
the Ordinance of the adjacent section of the township which was
zoned. The new Zoning Commission has held the required public
hearing on its Zoning Ordinance for the area under its jurisdic-
tion, submitted the same to the County Planning Commission
for the Commission's recommendation, and the Township Trus-
tees have placed a notice for their public hearing on the Ordi-
nance in the near future. They intend to certify the Ordinance
to the Board of Elections for placement on the ballot at the
forthcoming election in November.
"The principal question with regard to interpretation of
the sections of the Ohio General Code referred to, or other
pertinent sections, is whether the procedure followed in Smith
Township is in accordance with the Ohio General Code? The
question of secondary interest is, how many different Zoning
Commissions and different zoning ordinances does the law per-
mit in any one township?"
The statutes relative to township zoning are found in Sections 5 I9.0I
to 5 r9.25, inclusive, of the Revised Code. The corresponding sections of
the General Code were Sections 3I8o-26 to 3I80-50, inclusive.
It appears from your letter that on and prior to May 15, I953, pro-
ceedings were had in compliance with the provisions of the law, whereby
a designated portion of Smith Township was duly zoned. Said proceed-
ings were ratified by the electors of the area included in the resolution of
the township trustees, on May IS, I953.
Subsequent thereto, a like proceeding was begun, affecting a portion
of Smith Township not included in the original zoning. lt appears from
your statement of facts that all of the steps prescribed by statute looking
to the esta.Jblishment of this new district and the adoption of a zoning plan
for it have been taken excepting the final hearing 'by the trustees, their
adoption of the zoning resolution, the certifying of such resolution to the
board of elections and the submission to the electors, which as you state,
is to be at the time of the regular municipal election in November.
It appears to me that when these last steps have been taken, the pro-
ceedings will be in all respects regular and in conformity with the law,
except for the one question which you present, viz., may this second zon-
ing procedure be taken when there has already :been a completed zoning
of a portion of the township? It is to be noted that in every step leading
to the adoption of a zoning plan the particular area proposed to be zoned
ATTORNEY GENERAL
ts treated as a separate entity. Section 519.02, Revised Code, Section
3180-26, G . .C., provides that the board of trustees of any township is
empowered to adopt regulations for zoning "all or any part of the unin-
corporated territory of the township." In Section 519.04, Revised Code,
Section 3180-28, G.C., provision is made for the preliminary appointment
by the township trustees of a township zoning commission, which shall be
composed of five members residing "in the unincorporated area of the
township to be zoned," whose duty it is to prepare and submit a plan of
zoning regulations for the proposed district.
Under the provisions of Section 519.Il, Revised Code, Section
3 r8o-35, G. C., the right of voting on the ratification of the plan adopted
by the township trustees is definitely limited to the electors "residing in
the unincorporated area of the township included in the proposed plan
of zoning."
Section 519.37, Revised Code, Section 3180-37, G. C., provides for
appointment by the to\vnship trustees of a township board of zoning ap-
peals of five members, who shall be residents of the "unincorporated ter-
ritory in the township included in the area zoned," and whose duties re-
late to the enforcement of an adopted plan.
All of these provisions make it very clear that the entire proceed-
ing that was originally had for zoning a certain area of Smith Township,
related to, and concerned that area alone. If, thereafter, the residents in
all or part of the remaining area of the township desire to avail them-
selves of the rights given by the law to establish zoning regulations for
their area, I can see no reason why they should not have the same right
to do so. An attempt to foreclose that right would appear to be a clear
invasion of the fundamental right of all citizens to enjoy equal rights
and the equal protection of the law. There is certainly nothing in the
law that purports to give the residents of a portion of a township any
preemptive right to resort to this procedure on their own behalf, and
thereby preclude residents of another part of the township from exercis-
ing the same right.
The fundamental basis underlying all zoning laws and regulations is
that they enhance and protect the public health, public safety and public
morals. 42 Ohio Jurisprudence, p. 807. (Citing Pritz v. Messer, II2 Ohio
524 OPINIONS
St., 628, and many other cases.) Certainly no law could permit the resi-
dents in one area of a township by any process, to deny to the residents of
an adjoining area the equal right to those benefits.
The proceedings referred to in your letter and above considered,
appear to afford the only process whereby any portion of a township may
secure the 1benefits of zoning. An examination of the entire law relative
to township zoning does not disclose any provision that would make it
possible to add to a zoning .district once estaJblished, aodditional territory
of the township. Section 519.12, Revised !Code, Section 3180-36, G. C.,
contains certain provisions looking to amendments or supplements to a
"zoning resolution." That section reads:
"Amendments or supplements to the zoning resolution may
he made as provided by sections 519.02 to 519.II, inclusive, of
the Revised Code, except that they may be made without sub-
mitting them to a vote of the electors, unless within thirty clays
after the adoption of the amendment or supplement there is
presented to the board of township trustees a petition, signed
by a number of qualified voters residing in the unincorporated
area of the township or part thereof included in the zoning plan
and affected by the amendment or supplement equal to not less
than eight per cent of the total vote cast for all candidates for
governor in such area at the last preceding general election at
which a governor was elected, requesting the board of county
commissioners to submit the amendment or supplement to the
electors of such area for approval or rejection at the next pri-
mary or general election. Any person adversely affected by an
order of the board of township trustees adopting, amending, or
rescinding a regulation may appeal to the court of common pleas
of the county in which such township is located on the ground
that such board of township trustees failed to comply with the law
in adopting, amending, rescinding, publishing, or distributing
such regulation, or that the regulation as adopted or amenc!ecl
by the board of township trustees is unreasonable or unlawful,
or that the revision of the regulation was unreasonable or unlaw-
ful." (Emphasis added.)
It will be noted that this section contains no suggestion of adding
new territory to a district which has been zoned. On the contrary, the
amendments or supplements are to the "zoning resolution" which has
established certain restrictions in the zoned area. Note particularly the
provision as to appeal -to the court in case someone claims to be .inju-
riously affected by "a regulation" which has been adopted, amended or
rescinded by the trustees. Aside from this provision I see nothing in the
ATTORNEY GENERAL
law that could even suggest a process whereby the boundaries of the orig-
inal district could be affected, and it is my opinion that the section last
quoted cannot be construed to affect in any way the territorial boundary
of such district.
In reaching this conclusion ,I am not unmindful of the fact that
throughout the township zoning statutes frequent reference is made to "the
township zoning commission", which could be construed as being indica-
tive of a legislative assumption that there would be but one such zon-
ing commission in each township. By the language actually employed in
these statutes, however, the legislature has in effect fof'bidden the zoning
of any particular area of the township until after the appointment of a
commission to be composed of five members who reside in the area to be
zoned. Even if Section 519.12, Revised Code, Section 3180-36, G. C.,
were considered as authorizing the adding of new territory to a district
already zoned, such section would require that ''Amendments or supple-
ments to the zoning resolution may be made as provided by Section
519.02 to 519.11, inclusive, of the Revised Code" except as to the
requirement of a vote of the electors, and wouldo thus require that the pro-
visions of Section 519.04 be complied with and that a commission be ap-
pointed of persons "who reside in the unincorporated area of the town-
ship to be zoned." Obviously the area "to be zoned" is not the area already
zoned and it \vould appear clear that the zoning commission first ap-
pointed for the area which has already been zoned does not contain resi-
dents of the area now sought "to be zoned."
In conclusion and in specific answer to your question it is my opinion
that where proceedings have been had under Section 519.02, Revised
Code, Section 3180-26 G. C., et seq., pursuant to \v'hich a designated por-
tion of a township has been zoned, there is nothing to prevent the zon-
ing by the same proceedings of another portion of the same township, and
successive actions may be taken as to other remaining portions of the
township looking to the same end.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPINIONS
I. TOWNSHIPS, SEVERAL WITHIN STATE CURRENTLY
ENTITLED TO DISTRIBUTION OF AGGREGATE AMOUNT
OF $5oo,ooo.oo FROM REVENUES COLLECTED UNDER
SECTIONS 450r., 4503., 4505., 4507., 4509., 45I r., 45I3., 45,15.,
45I7., RC, OR UNDER PRIOR ANALOGOUS STATUTfES-
PERIOD MARCH 1, 1953, TO NOVEMBER 6, 1953-DISTRI-
BUTTON TO BE MADE IN RATIO AND IN MANNER PRO-
VIDED IN SECTION 45or.o4 RC - TOWNSHIP ROADS -
MOTOR VEHICLE LICENSE TAX-SECTIONS 45or.o4 RC,
6309-2 GC.
2. REVENUES REALIZED BETWEEN PERIOD NOVEMBER
7, 195'3 AND FEBRUARY 28, 1954, SHOULD BE DISTRIB-
UTED, SECTION 4501.04 R<C, AM. SUB, HB 734, 100 GA, EF-
FECTIVE NOVEMBER 7, 1953.
SYLLABUS:
1. Under the provisions of Section 4501.04, Revised Code, Section 6309-2, Gen-
eral Code, the several townships within the state are currently entitled to a distribu-
tion of the aggregate amount of $500,000 from such revenues as are collected under
the provisions of Chapters 4501., 4503., 4505., 4507., 4509., 4511., 4513., 4515., and
4517. of the Revised Code, or under prior analogous statutes during the period March
1, 1953, to November 6, 1953, both inclusive, such distribution to be made in the ratio
and in the manner currently provided in Section 4501.04, Revised Code.
2. Any such revenues realized between the period No\'ember 7, 1953, and
February 28, 1954, both inclusive, should be distributed as provided in Section 4501.04,
Revised Code, as amended, effective November 7, 1953, by the enactment of Amended
Substitute House Bill 734, lOOth General Assembly.
Columbus, Ohio, October 20, I953
Bon. R. E. Foley, Registrar, Bureau of Motor Vehicles
Columibus, Ohio
Dear Sir:
Your request for my opinion reads as follows :
"With reference to the provisions of Section 4501.04 (6309-
2) of the . Revised Code, '\viU you please give us your formal
opinion as to whether or not the total sum of $500,000 should
be distributed to the several townships in the ratio as now pro-
vided for under this section of the code.
A T T O R ~ E Y GENERAL
"Section 4501.04 states in part:
" 'From the remainder of vhe revenue collected under chap-
ters 4501., 4503., 4505., 4507., 4509., 4511., 4513., 4515., and
4517. of the Revised Code, after payment of the expenses of the
bureau of motor vehicles, including the payment of claims author-
ized by Section 4515.o8 of the Revised Code, there shall be dis-
tributed a:nnually (we underline this for emphasis) to the sev-
eral townships within vhe state five hundred thousand dollars in
the ratio which the total number of mi-les of township roads under
.the jurisdiction of the 1board of township trustees in the town-
ship bears to the total number of miles of township roads certi-
fied to the director of highways on or before the first clay of
October of each year.' etc.
"Am. Sub. House Bill No. 267 of the 99th General Assem-
bly ( 124 O.L. 840) cl'eated the provision for the distribution of
the $5oo,ooo.oo to the several townships. All provisions includ-
ing the distribution of this $soo,ooo.oo of Am. Sub. House Bill
No. 267 were effective only until June 30, 1953.
"Am. Sub. House BiH No. 24 enacted by the 100th General
Assembly, continued in full force and effect beyond June 30,
1953, the provisions of Am. Su'b. House Bill No. 267 of the 991:<h
General Assembly.
"Am. Su'b. House Bill No. 73'4 enacted by the 100th General
Assembly, deleted the sum of $5oo,ooo.oo to be distributed to
the several townships and amended the formula for distributing
the motor vehicle 'license tax fund, the provisions of this bill to
become effective November 7, 1953.
"Your opinion is requested whether or not the total sum of
$5oo,ooo.oo shall be distributed to the several townships. The
township trustees of the several counties have complied with the
requirements in the statutes and have certified in writing to the
Director of Highways, the actual number of miles of township
roads under their control and jurisdiction.
"It is desired to make a distribution of the funds to the
townships and your early opinion will be appreciated."
We may first briefly note vhe legislative history of the statutory pro-
visions here in question. Prior to the recent session of the 1ooth Generai
Assembly, the provision for the distribution of revenues arising under the
chapter relating to registration, etc., of motor vehicles was found in
Section 6309-2, General Code. This section provides in part:
"From the remainder of the revenue collected under the pro-
visions of vhis chapter, after payment of the expenses of the
bureau of motor vehicles, including the payment of claims author-
ized by section 63o8-12 of the General Code, there shall be dis-
OPINIONS
tributed annually to the several townships within the state the
sum of $500,000.00 in the ratio which the total number of miles
of township roads under the control and jurisdiction of the town-
ship trustees in the township bears to the total number of miles
of township roads certified to the highway director on or :before
October first of each year. The number of miles of township
roads within townships and the total number of miles of township
roads to be used in the computation of such ratio shall be the
aggregate number of miles of township roads in the township
which apply for distribution of funds. Before distribution shall
be made under the provisions of this paragraph the township
trustees shall certify in writing to the director of highways the
actual number of miles of township roads under their control
and jurisdiction which are kept open and maintained for public
use. Upon receipt of such certification, the director of highways
shall transmit to the auditor of state, a statement showing the
proportionate distributive share of funds to which each township
of the several counties is entitled, such share to be paid on
vouchers and warrants drawn by the auditor of state to each
county treasurer for the total amount payable to the townships
within the county * * *."
It may be noted in passing that the language "from the remainder of
the revenue collected" is used in the opening sentence in vhis section for
the reason that the preceding section, Section 6309, General Code, re-
quired the reservation from these revenues by the treasurer of state of
amounts sufficient to defray the expense of the bureau of motor vehicles
and .the state highway patrol "for the current fiscal year."
In February, 1953, vhe rooth General Assembly enacted House Bill
No. r with .the purpose and effect of recodifying the entire statutory law
of the state in what was designated as the Revised Code of Ohio. This bill
\\"as not an emergency measure and by its terms became effective October
r, 1953. In this enactment there was very little change in the language
noted wbove in Soction 6309-2, supra, the principal one being the deletion
of the expression "revenue collected under vhe provisions of this chapter"
and the substitution in lieu thereof of the expression "revenues collected
under Chapters 4501., 4503., 4505., 4507., 4509., 45II., 4513., 4515., and
4517. of the Revised Code."
On May 19, 1953, the rooth General Assembly enacted Amended
House Bill 243, thereby effecting the amendment of certain sections of
the Revised Code, among them Section 4501.04, supra. This bill was ap-
A T T O R ~ E Y GE)<ERAL
proved by the Governor June 6, I953, and filed m the office of the sec-
retary of state on June 9, I953 The bill was not an emergency and by its
terms became effective Octo'ber 2, I953
The principal change in Section 4501.04, Revised Code, effected by
this enactment, was the substitution of the director of highway safety for
th,e director of highways as the officer to whom the township officials
were to make their certification as to nhe total number of miles of town-
ship roads under their jurisdiction, the principal purpose of the enact-
ment of Amended House BiH 243 being to create the new department of
highway safety.
Thereafter it was brought to the attention of the Legislature that
under the provisions of Section 2 of Amended Substitute House Bill 267,
99th General Assem'bly, certain statutory provisions, including Section
6309-2, General Code, would expire lby operation of law on June 30, I953
Accordingly, with the obvious purpose of providing stopgap legislation
for the period July I, I953 to the effective date of the Revised Code, the
Legislature enacted Amended Substitute House BiH 24 as an emergency
measure on June 29, I953 This act was approved by the governor and
became law on June 30, I953 The act by its terms continued in effect the
statutory provisions above referred to, and reenacted Section 6309-2, Gen-
eral Code, with one important change. This change consisted of the re-
quirement that the township trustees were to supply their "mileage cer-
tificates" to the highway director on or before August Ist of each year
rather than October Ist, as previously provided.
The change of this date appears to me to be of considerable signifi-
cance, for it leads to the inference (I) that the Legislature regarded
Amended Substitute House Bill 24 as stopg3ip legislation which would
e:JGpire October I, I953, when the Revised Code became effective; and (2)
that the two-month period intervening between August I and October I
was provided for the purpose of completing the distribution of the $5oo,-
ooo.oo to the severa:l townships within the state in advance of the date
on whioh the Revised Code would take effect.
It should perhaps be observed in passing that Amended Substitute
House Bill 24 was the most recent expression of the legislative will among
the several enactments mentioned above; and that it contained no pro-
vision for its termination. It may be pointed out also that it can hardly be
supposed that the two prior enactments, i.e., Amended House Bill No. I
530
OPINIONS
and Amended House Bill 243 could have the effect of repealing Section
6309-2, General Code, as amended by Amended Substitute House Bill 24,
even though rhe prior acts became effective after the date of the emergency
act, this for the reason that at the time such prior enactments were under
consideration by the Legislature, Amended Substitute House Bill 24 had
not been enacted.
It is true that the Ohio courts ordinarily give effect to the latest ex-
pression of the legislative wiU, hut this rule is by no means without ex-
ception. Thus in State v. Lathrop, 93 Ohio St., 79 (85), the court cited
with approvaJl the holding in Southwark Bank v. Commonwealth, 26 Pa.
St., 446, as follows:
"I . The general rule is that where two statutes contain re-
pugnant provisions, the one last signed by the governor is a re-
peal of the one previously signed.
"2. This is so merely because it is presumed to be so in-
tended by the lawmaking power; :but where the intention is other-
wise, and that intention is apparent from the face of either enact-
ment, the plain meaning of the legislative power thus manifested
is the paramount rule of construction."
In the instant case I am of the opinion that the intention of the Legis-
lature that the provisions of Amended Substitute House Bill 24 should
expire on October I, I953, is apparent from the face of the enactment
itself. This intention is evidenced first by the change in the reporting date
from Octo1ber I to August I, thus evincing an intention that the distribution
of the $500,000 .to the township authorities should be completed well in
advance of October I, thereby indicating a legislative notion, or under-
standing, tohat Amended Substitute House Bill 24 would expire on that
date.
The second indication is the placing of the responsibility for receipt
of the reports of the township officials with the director of highways rather
than the director of highway safety. The Legis-lature may be presumed
to have had in mind, in this connection, its previous enactment of Amended
House Bill 243, under the terms of which the department of highway
safety was created. For these reasons I conclude that the provisions of
Amended Substitute House Bill 24 expired by operation of law on Oc-
tober I, I953
We now come to a third legislative enactment by which the provi-
sions of Section 450I.04, Revised Code, were changed by the Iooth Gen-
ATTORNEY GENERAL
53 I
era! Assembly. This enactment is Amended Substitute House Bill 734,
passed July 9, 1953, vetoed by the governor July 27, 1953, and passed
notwithstanding the objections of the governor on August 7, 1953. This
enactment will become effective on November 7, 1953.
By this enactment the entire distribution formula of motor vehicle
license fee revenues will be changed. Stricken out entirely is the provision
for the payment of the aggregate sum of $soo,ooo to the township authori-
ties, and the formula to be established will provide for a percentage dis-
tribution of these revenues among the municipal corporations, the coun-
ties and the townships of the state, the townships' share lbeing sro of the
remainder of all such revenues after provision for the expenses of the de-
partment Of highway safety. In this situation your precise question is
whether or not, under presently existing legislation, i.e., Section 4501.04,
Revised Code, as amended in Amended House Bill 243, and effective dur-
ing the period October 2, 1953, to November 6, 1953, inclusive, the dis-
tribution of the aggregate of $5oo,ooo to the township authorities as therein
provided should now be made.
It is my opinion that su:ch distribution should be made, for it appears
to me to be the plain purpose and intent of the Legislature, by the en-
actment of Amended Substitute House Bill 24, supra, and particularly by
the change therein of the reporting date from October rst to August 1st,
to insure that the townships should receive their share on the basis of the
old formula prior to the date when the Revised Code was expected to take
effect. This, I understand, has not been done, but it very clearly appears
to me that the right of the townships to such distribution, having once
been established by law, cannot be defeated by a mere failure of the ad-
ministrative officers concerned to carry out the Iegal duties imposed upon
them. Particularly is this true when, as in the instant case, the statute,
Section 4501.04, Revised Code, now provides, and will provide until
November 7, 1953, that such $500,000 distribution to the townships shall
be made.
I am impelled, therefore, to answer your inquiry on this point in the
affirmative.
There is latent in your inquiry a further question which perhaps
should 'be disposed of. This question concerns the application of the new
statutory formula on and after November 7, 19S3
532
OPINIONS
It is axiomatic that laws operate prospectively from the date on which
they take eftect, and effect must of course be given ito the provisions of
Section 2, Article II, Ohio Constitution, inhibiting rhe Genera:! Assembly
in the passage of retroactive laws. This being the case,. it seems to me
tha<t: it will become necessary to make a segregation of the revenues which
are real<ized from the source in question up to and including November
6, 1953, and those revenues which are thereafter realized. As to the former,
I rhink it is plain that they must be distributed under the formula set
ourt in the several prior enactments already noted, and it appears equally
plain to me that the latter revenues should be distributed under the for-
mula set out in Section 4501.04, Revised Code, as amended, effective No-
vember 7, 1953, by the enactment of Amended Substitute House Bill 734
In this connection we may note that the earlier formula referred to
the payment of the aggregate of $soo,ooo to the township authorities
"annually." Nowhere in the act do I find any indication whether this is
to tbe on the basis of the calendar year, or the starte' s fiscal year of July
I to June 30, or on the basis of the so-called "motor vehicle license tax
year.'' The concept of suoh a "license year" finds some support in the pro-
visions of Section 4503.02, Revised Code, Section 6291, General Code,
under the terms of which "an annual Iicense tax" is levied; and in the
provisions of Section 4503. IO, Revised Code, Section 6294, General Code,
to the effect that the owner of a motor vehicle may use the license plac-
ards of either the current registration year or the next succeeding regis-
tration year from the rst day of March :to the Ist day of April in any
given year. By reason of these provisions, I am informed, it has for many
years been the practice of the Bureau of Motor Vehicles to regard the
period of March I to the last day of February next following as a "license
year." Moreover, it appears vhat i:t has long been the practice of the
Bureau to use the last day of February in each year as the end of an
accounting period for the purpose of calculating the amount of revenues
available for distribution "annually" under the provisions of Section
6309-2, General Code, now Section 4501.04, Revised Code.
In this situwtion, tbecause the statute is clearly ambiguous as to the
precise meaning of the word "annually," because there is a logical basis
for the concept for the "license year" above described, and because such
concept lends itself to administrative efficiency and certainty, I am in-
dined to the view rha:t the distribution of revenues on .this basis represents
a long continued administrative interpretation of the statute which "is not
ATTORNEY GENERAL
533
to lbe disregarded or set aside unless judicial construction makes it lm-
perart:ive to do so." Industrial Commission v. Brown, 92 Ohio St., 309
(311). For this reason I conclude that in the instant case the prior formula
should be applied to the distribution of the revenues here involved which
were realized during the period March I, 1953, to November 6, 1953, both
inclusive; and that the new formula should be applied to the distrrbution
of such revenues as will be realized during the period Novernber 7, I953,
to February 28, 1954, both inclusive, and thereafter.
Accordingly, in specific answer to your inquiry, it IS my opinion
that:
I . Under the provisions of Section 4501.04, Revised Code, Section
6309-2, General Code, the several townships within the state are currently
entitled to a distr-ibution of the aggregate amount of $500,000 from such
revenues as are collected under the provision of Chapters 4501., 4503.,
4505., 4507., 4509., 4511., 4SI3., 45I5. and 45I7. of the Revised Code, or
under prior analogous statutes during the period March I, 1953 to Novem-
ber 6, 1953, both inclusive, such distribution to be ma:de in the ratio and
in vhe manner currently provided in Section 4501.04, Revised Code.
2. Any such revenues realized between the period November 7,
1953, and February 28, I954, both inclusive, should lbe distrrbuted as pro-
vided in Sectron 4501.04, Revised Code, as amended, effective N overnber
7, 1953, by the enactment of Amended Substitute House Bill 734, Iooth
General Assembly.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
534
OPINIONS
r. SCHOOL DISTRICT, LOCAL-NO LEGAL PROCESS FOR
ELECTORS OF DISTRICT, OR ANY PORTION THEREOF,
TO REQUIRE DIVISION OF TERRITORY INTO SMALLER
DISTRICTS OR TO ERECT NEW DISTRICT OUT OF ANY
PORTION OF EXISTING DISTRICT.
2. COUNTY BOARD OF EDUCATION MAY CREATE ONE
OR :YlORE NEW LOCAL SCHOOL DISTRICTS FROM ALL
OR PARTS OF EXISTING LOCAL SCHOOL DISTRICT-AC-
TION SHALL NOT TAKE EFFE'CT IF MAJORITY OF
QAULIFIED ELECTORJS RESIDING IN TERRITORY IN-
CLUDED \iVITHIN NEWLY CREATED DISTRICT VOTING
AT LAST GENERAL ELECTION SHALL FILE WITHIN
THIRTY DAYS FROM TIME ACTION T A K E ~ A YVRITTEN
REMONSTRANCE AGAINST ACTION-SECTIONS 33rr.26
RC, 483r-r GC.
SY,LLABUS:
1. There is no process provided by the law whereby the electors of a local school
district or of any portion thereof, may require the division of such territory into
smaller districts or the erection of a new district out of any portion of the existing
district.
2. Under the provisions of Section 3311.26, Revised Code, Section 4831-1 G.C.,
a county board of education may create one or more new local school districts from
all or parts of an existing local school district; but such action of the board shall not
take effect if a majority of the qualified electors residing in the territory included
within such newly created district voting at the last general election shall within
thirty days from the time such action is taken, file with said board a written remon-
strance against such action.
Columbus, Ohio, October 21, 1953
Ron. Charles W. Ayers, Prosecuting Attorney
Knox County, Mount Vernon, Ohio
Dear Sir:
Your request for my opinion reads as follows :
''YVe have in Knox county a new centralized school district
known as the Kokosing Valley Schooi District. This is composed
of the formed Gambier, Ho\\'ard, Amity and Bladensburg
ATTORNEY GENERAL
School Distriots. This new school district was created pursuant
to Ohio General Code Section 483I, and being Section 33I !.22
of the Revised Code.
"Is it possible under the present School Code, to decentral-
ize and go back to the former school districts? This procedure
was provided for in Ohio General Code Section 4727 hut this
was repealed by H. B. No. 217, 95th General Assembly. Section
3311.23 of the Revised Code sets forth a procedure by which
qualified electors residing in the Kokosing Valley School District
may petition to transfer a part of, or all of the Kokosing Valley
School District to another e.risthtg county scho-ol district but I
am unable to find any procedure in the School Code which will
restore the Gambier, Hmvard, Amity and Bladensburg School
Districts."
535
Your letter speaks of the restoration of certain named districts which
you state were at one time consolidated into what is known as the Kokos-
ing VaJ.ley School District, and you indicate that it is desired to decentral-
ize this district and restore the constituent districts.
In the adoption of the School Code of I947, 120 0. L., 475, some-
what ela:borate provisions were made for district planning. Section 483 I
et seq. of the General Code, required each county board of education
biennially to adopt a plan of territorial organization of the school dis-
tricts under its supervision. Provisions were made for publication of the
proposed plan and for protests by groups of electors affected by the
changes in boundary lines of the local districts. Under those provisions it
is manifest that the changes desired in the territory mentioned in your
Jetter, could readily have been accomplished.
However, by legislation, Sections 4831 to 4831-I2, Gen-
eral Code, covering district planning were repealed and there were sub-
stituted new provisions, found in Sections 483 I and 483 r- I. In the first
of these sections authority was given to the county board to transfer
part or all of a school district of the county district to an adjoining dis-
trict or districts, and by Section 483 I- I to create new school districts
from one or more l<Xal districts or parts thereof.
The only section of the present law which appears to me to provide a
process whereby the desired end may be accomplished is Section 33 II .26
Revised Code, Section 4841- r G. C. This section reads as follows:
"A county board oi education ma-y create a. new local school
district from o11e or more local school districts or parts thereof,
OPINIONS
and in so doing shall make an equitable division of the funds
and indebtedness between the newly created district and any dis-
tricts from which any portion of such newly created district is
taken. Such action of the board shall not take effect if a majority
of the qualified electors residing in the territory included in such
newly created district voting at the last general election shall,
within thirty clays from the time such action is taken, tile with
the board a written remonstrance against such action. \Nhen :1
new local school district is created within a county school dis-
trict, a board of education for such newly created district shall
be appointed by the county ;board of education. The members
of such appointed hoard of education shall hold their office until
their successors are elected and qualified. A board of education
shall be elected for such newly created district at the next general
election held in an odd numbered year occurring more than thirty
clays after the appointment of the board of education of such
newly created district. At such election two members shall be
elected for a term of two years ami three members shall be
elected for a tenn of four years, and, thereafter, their successors
shall be elected in the same manner and for the same terms :1s
members of the board of education of a local school district."
(Emphasis added.)
It will be noted that the power to create a new local school district
from one or more local districts is vested in the county board of education.
\iVhile the language of the statute seems to suggest that it is intended to
proYide a method whereby a new district may be created by adding to-
gether one or more local districts or parts thereof, yet it appears to me
that it is equally capable of a construction that would authorize the crea-
tion of several local districts out of an existing district and thereby in
effect accomplish a decentralization into districts that formerly con-
stituted the present larger district. However, it would not follow that if
action \vere taken under this section, the several districts thus to be
created would correspond in their boundaries with the original districts.
The power and discretion of the county board in this respect would ap-
pear to be unlimited, except for the further provision of the section
providing for a formal protest by a majority of the electors.
The statute provides that "such action of the board shall not take
effect if a majority of the qualified electors residing in the territory in-
cluded in such 1ur&ly created district voting at the last general election
shall, within thirty days from the time such action is taken, file with the
board a written remonstrance against such action." It is plain that this
procedure reserved to the electors can only be applied by way of blocking
ATTORNEY GENERAL
537
the action of the board and affords no process whatsoever by which they
may either compel action by the county board or produce the desired
result by proceedings initiated by the electors.
It is to be noted that this action on the part of the electors is avail-
able only to a majority of the qualified electors residing "in the newly
created district." Accordingly, it would appear to me that if the county
board of education should undertake to create several districts out of the
territory of an existing district, the protest if any, might come from the
electors in one or more of the districts so created, acting independently, but
would not affect the action of the board as to any other newly created dis-
tricts which do not protest. Also it may be observed that the electors of
the entire district which is to be divided, have no right as a whole to make
any protest against the proposed division.
In your letter you refer to Section 33 r 1.23 of the Revised Code,
Section 4831-13 G. C., as affording a method whereby qualified electors
in the present Kokosing Valley School District might petition to transfer
a part or all of the territory of that district to an adjoining count)' school
district or to an adjoining cit)' or e.retnpted village school district. In that
section authority is given to the electors to file with the county board a
petition praying for such transfer signed 'by seventy-five percent of the
qualified electors residing in the territory which they seek to have so
transferred. The filing of such petition will force the 1board to take action
either transferring the territory as requested by the petition, or adopting a
resolution objecting to the requested transfer. If the latter action is taken
their objection must be certified to the superintendent of public instruc-
tion, who has authority to veto the objections of the 'boar.d, which is then
required to adopt a resolution transferring the territory as prayed for.
As I understand the facts set forth in your letter this section could
not in any way apply to the situation there set forth.
Accordingly, in specific answer to your question, it IS my opmwn
and you are advised that :
I. There is no process provided by the law whereby the electors of
a local school district, or of any portion thereof, may require the division
of suoh territory into smaller districts, or the erection of a new district
out of any portion of the existing district.
OPINIONS
2. Under the provisions of Section 33 I 1.26. Revised Code, Section
4831- r G.C., a county board of education may create one or more new
local school districts from all or parts of an existing local school district;
but such action of the board shall not take effect if a majority of the
qaulifiecl electors residing in the territory incluclecl within such newly
created district voting at the last general election, shall within thirty clays
from the time such action is taken, file with said board a written remon-
strance against such action.
I call your attention to House Bill 218 passed by the General As-
sembly on July 14, 1953, which amends Sections 3311.07 and 33II.Q9,
and enacts several supplementary sections dealing with reorganization
of school districts. Inasmuch, however, as this act 1by its terms does not
take effect until June I, 1954, I do not consider it necessary to discuss its
provisiDns at this time.
3151
Respectfully,
C. WrLLIA!Ii O'NEILL
Attorney General
HOSPITAL, COUNTY-MONEYS RECEIVED FOR OPERA-
TIO)J OF HOSPITAL-PUBLIC YI:ONEYS WITHIN MEANING
OF UNIFORM DEPOSITORY ACT-BOARD OF TRUSTEES OF
COUNTY HOSPITAL SHALL RECEIVE AS SECURITY FOR
DEPOSITS FROM DESIGNATED DEPOSITORY, BOND IN
AMOU:\T EQUAL TO FUNDS SO DEPOSITED-SECTIONS
135.01, ET SEQ., 339.06 RC, 2296-r ET SEQ., GC-AM. HB 355,
100 GA, EFFECTIVE OCTOBER 13, I953
SYLLABUS:
Under the provisions of the Amended House Bill No. 355, 100th General Assembly,
effective October 13, 1953, appearing as section 339.06, Revised Code, moneys received
for the operation of a county hospital created and organized under the provisions of
sections 339.01, et seq., Revised Code, are public moneys within the meaning of the
Uniform Depository Act, section 135.01, et seq., Revised Code, section 2296-1, et seq.,
General Code, and must be deposited as provided in the Uniform Depository Act; pro-
vided, however, that the board of trustees of the county hospital shall receive as se-
curity for such deposits from the designated depository, a .bond in an amount equal to
the funds so deposited, as provided in Section 339.06, Revised Code.
ATTORNEY GENERAL
539
Columbus, Ohio, October 22, 1953
Hon. Harry Friberg, Prosecuting Attorney
Lucas County, Toledo, Ohio
Dear Sir:
I have before me your request for my opinion which pertains to the
manner in which funds of a county hospital are to be deposited in banks
and trust companies under the provisions of Amended House Bill Ko.
355, enacted June 29, 1953, and effective October 13, 1953. This act ap-
pears as .Section 339.06, Revised Code, and amends former Section 3137
of the General Code. The act places all control of the hospital property
and moneys received for use in the operation and maintenance of the
hospital in the Board of Trustees of such hospital. Specifically, the ques-
tion presented is whether by the operation of this act, the Board of Trus-
tees of a County Hospital must now follow the provisions of the Uniform
Depository Act in making deposits of the moneys under their oontrol for
the operation and maintenance of the county hospital.
Prior to the amendment, Section 3137, General !Code, now appearing
as Section 339.06, Revised Code, provided that moneys for the operation
of a county hospital were deposited with the county treasurer to the credit
of the hospital operating fund and the money was paid out only for the
maintenance and operation of such hospital on the warrant of the county
auditor issued pursuant to the order of the board of trustees of the county
hospital. The amendment to this method of holding moneys of the hos-
pital was accomplished by Amended House Bill No. 355, snpra, and Sec-
tion 339.06, Revised Code, now reads in pertinent part:
"* * * The board of county hospital trustees has control of
the property of the hospital, * * * and all funds used in its opera-
tion. The board of county hospital trustees shall deposit all
moneys received from the operation of the hospital or appropr-
iated for its operation by the board of county commissioners, or
resulting from special levies submitted by the board of county
commissioners as provided for in section 5705.22 of the Revised
Code, to its credit in banks or trust companies designated by it,
which fund shall be known as the hospital operating fund. Such
banks or trust companies shall give the board of county hospital
trustees a bond in an amount equal to the funds so deposited.
The board of trustees shall not expend such funds until its
budget for that calendar year is submitted to and approved by the
540
OPINIONS
board of county commissioners. Thereafter such funds may be
disbursed by the board of county hospital trustees for the uses
and purposes of such hospital, on a voucher signed by the ad-
ministrator, provided for in this section, regularly approved by
the 1board of county hospital trustees and signed by two mem-
bers of the board of county hospital trustees. All moneys ap-
propriated by the board of county commissioners or from special
levies by the board of county commissioners for the operation
of the hospital, when collected shall be paid to the hoard oi
county hospital trustees on a warrant of the county auditor and
approved by the board of county commissioners .. ,
The purpose of this amendment is to take the control of the funds of the
hospital from the county treasurer and place it with the hoard of trustees
of the county hospital.
In giving the Board control of the moneys received for the operation
of the hospital, amended section 339.o6, Revised Code, supra, requires
that such moneys be deposited in banks and trust companies designated by
it. The question is then clearly presented as to the manner in which such
deposits are to be made.
The general procedure by which public moneys are to be deposited is
set out in section I35-0I, et seq., Revised Code, Section 2296-r, et seq.,
General Code, commonly known as the Uniform Depository Act. To de-
termine the scope and effect of this act, reference must be made to the
definitive section, section 135.0I, Revised Code, which reads in part:
" (A) 'Public moneys' means all moneys in the treasury of
the state or Oil}' subdivision o.f the state, or moneys coming law-
fully into the possession or custody of the treasurer of state or
of the treasurer of any subdivisi-on. * * *
"(B) 'Subdivision' means any county, school district, munic-
ipal corporation, except a municipal corporation or a county
which has adopted a charter under Article XVIII or Article X,
Ohio Constitution, having special provisions respecting the de-
posit of the public moneys of such municipal corporation or
county, township, municipal or school district sinking fund,
special taxing or assessment district, or other district or local au-
thority electing or appointing a treasurer.
"* * * (G) 'Treasurer' includes the treasurer of state an:!
the treasurer, or officer exercising the functions of a treasurer
of any subdivision.
"* * * (I) 'Governing Board' means, in the case of the state,
the state board of deposit, in case of the county, the board of
ATTORNEY GENERAL
county commissioners; * * * and in the case of any other sub-
division electing or appointing a treasurer, the directors, trus-
tees, or other similar officers of such subdivision. * * *''
54 I
In providing for a uniform system by which public moneys are to
be deposited, it appears clear that the legislature used Yery broad and
inclusive language. The usual meaning of the term "subdivision" was
broadened to include not only the usual political or taxing subdivisions,
but in addition every "local authority electing or appointing a treasurer."
Beyond this, the term "public mDneys" was made to include all moneys
which come intD the hands Df a treasurer of such a "subdivision." The
issue then becomes whether a county hospital is a local authority as used
in the Uniform Depository Act. Considering the authority vested in the
board of trustees of the hospital, to control both property and funds of
the institution, it would seem that it is the "local authority" for the pur-
pose of operating a portion of county government, i. e., in the operation
of a county hospital.
I must conclude fmm these inclusive definitions that a county hos-
pital is a "subdivision., within the meaning of the act and that such funds
as come within the control of the administrator as "treasurer" are "public
moneys." The designation then of a proper depository is within the power
of the board of trustees Df the county hospital as the "governing board"
and must be governed by the provisions of section I35-0I, et seq., Revised
Code. In this regard, reference should also he made to a recent opinion,
Opinions of the Attorney General for 1953, No. 3052, rendered Septem-
ber 18, 1953, in which I held that the funds of a municipal library dis-
trict are "public moneys" and such district a "local authority'' within the
meaning of the Uniform Depository Act.
Having found as I do that the deposit of funds of a county hospital
1s \vithin the provisiDns of the Uniform Depository Act, consideration
must now be given to any possible inCDnsistency or incompatibility be-
t\veen the provisions of the act, and section 339.06, Revised Code, as it
pertains to the deposit of such funds. In construing together the provi-
sions of a statute of general application, and a later special statute such
as are present here, the rule is generally stated that the pwvisions of both
statutes shall be applied except where there is an irreconcilable conflict be-
tween the two. In such a situation, the rule has been that the special
statute shall prevail on the theDry that being a later enactment; it must
542
OPINIONS
be presumed that the legislature intended to work an exception to the
general statute in this one particular. 37 Ohio Jurisprudence, 407.
Section 339.06, Revised Code, as amended, speaks generally in terms
of a delegation of authority to the board of trustees to deposit such funds
as are received by the county hospital. Failing to specify any specific pro-
cedure for such deposits gives rise to the inference that the provisions of
the Uniform Depository Act were intended to apply as I have held, supra.
However, in one particular, the legislature has specifically provided in
this section as follows :
"Such banks or trust companies shall give the board of
county hospital trustees a bond in an amount equal to the funds
so deposited."
This portion of section 339.06, Revised Code, imposes then, a more
rigorous requirement in this regard than the comparable provision in
section 135.16, Revised Code, Uniform Depository Act, which sets the
requirement as to security .for such deposits. There, security is required
in the form of eligible securities or at the discretion of the treasurer the
depository may furnish a surety bond, .both of which are to be in the
amount of the excess of the deposit over the amount insured by the fed-
eral government. There is then a conflict between the two provisions of
law and in view of the rule stated above, I am of the opinion that the
precise language of section 339.06, supra, as it pertains to security for
the deposit, must be followed. It does not appear that this later special
enactment may be reconciled with the similar provisions of the Uniform
Act and I must, therefore, hold that the board of trustees of the county
hospital must secure bond in the amount of the deposit from the deposi-
tory as required by section 339.06.
For the reasons stated above, I am of the opinion and you are so
advised, that :
Under the proviSIOns of Amended House Bill No. 355, effective
October 13, 1953, appearing as section 339.o6, Revised Code, moneys re-
ceived for the operation of a county hospital created and organized under
the provisions of section 339.01, et seq., Revised Code, are public moneys
within the meaning of the Uniform Depository Act, section 135.0I, et
seq., Revised Code, Section 2296-1, et seq., General Code, and must be
deposited as provided in the Uniform Depository Act; provided, how-
ATTORNEY GENERAL
543
ever, that the board of trustees of the county hospital shaH receive as
security for such deposits from the designated depository, a bond in an
amount equal to the funds so deposited, as provided in Section 339.06,
Revised Code.
RespectfuJly,
c. WILLIAM O'NEILL
Attorney General
OHIO DEFENSE CORPS-GOVERNOR HAS AUTHORITY TO
ORGANIZE AND MAINTAIN MILITARY FORCES WITHIN
THIS STATE KNOWN AS OHIO DEF,ENSE CORPS-BASIS
PROVIDED IN SECTIONS 5920.01, 5923.01 RC, 5I76, 5304 GC.
SYLLABUS:
Under the provisions of Section 5920.01, Revised Code, Section 5304, General Code,
and Section 5923.01, Revised Code Section 5176, General Code, authority is given to
the Governor to organize and: maintain within this state the military forces known
as the Ohio Defense Corps on the basis therein provided.
Major General A. E. Henderson
Adjutant General of Ohio
Columbus, Ohio
Dear Sir:
Columbus, Ohio, October 22, I953
Your request for my opinion reads as follows :
"A question has arisen concerning the legal status of the
Ohio Defense Corps in view of the provisions of subparagraphs
(a) and (b) of Section I94, Title I2, United States Code.
"Enclosed herewith is a copy of the memorandum opinion of
The Judge Advocate of this Department.
"Upon examination of the memorandum you will note that
there appears to be no decisions precisely in point by courts of
competent jurisdiction. I therefore would appreciate your official
opinion."
544
OPINIONS
The provision of subparagraphs (a) and (1b) of Section 194, Title
32, United States Code, in pertinent part are as follows:
" (a) No state shall maintain troops in time of peace other
than as authorized in accordance with the organization prescribed
under this Act (this title). Nothing contained in this Act shall be
construed to limit the rights of the States in the use of the National
Guard: within their respective borders in time of peace or to pre-
vent the organization and maintenance of State police or con-
stwbulary.
"(b) Effective for a period of two years after the date of
enactment of this amendment (September 27, 1950), and under
such regulations as the Secretary may prescribe for the organiza-
tion, standards of training, instruction, and discipline, the organ-
ization by and maintenance within any State of such military
forces other than a National Guard as may be provided by the
laws of such State is hereby authorized while any part of the
National Guard of such State is in active Federal service * * *."
The statutory authorization for the organization and maintenance of
the Ohio defense corps is found in Section 5920.01, Revised Code, Section
5304, et seq., General Code, which reads as follows:
"The governor shaH organize and maintain within this state
on a cadre or reserve basis military forces capable of being ex-
panded and trained to defend this state whenever the Ohio na-
tional guard, or a part thereof, is employed so as to leave this
state without adequate defense. In case of an emergency pro-
claimed by the president, or the Congress of the United States,
or the governor, or caused by enemy action or imminent danger
thereof, the governor, as commander in chief, shall e ~ p a n d such
forces as the exigency of the occasion requires. Such forces shall
be organized and maintained under regulations which shall not
be inconsistent with such regulations as the secretary of defense
prescri'bes for discipline and training and shaH be composed of
officers com m i s s ion e d and assigned, and such able-bodied
citizens of the state as are accepted therein. Such forces shall be
equipped with suitable uniforms not in violation of federal laws
or contrary to the reguJations of the secretary of defense. Such
forces shall be known as the Ohio defense corps. During the pe-
riod of organization on a cadre or reserve basis the commander in
chief may fix lesser rates of pay for armory drill purposes or for
service in encampments and maneuvers. In the event that the
regulations of the department of defense are modified so as to
recognize the Ohio defense corps as a part of the Ohio national
guard not subject to induction into federal service, the laws per-
taining to the Ohio national guard shall apply to the Ohio de-
fense corps and it shall be known as a component of the Ohio
national guard."
ATTORNEY GENERAL
545
It wiU be observed that this state legislative enactment employs broad
general terms in providing authority for the establishment of the Ohio
defense corps and that it contains no limitation similar to that provided
in subparagraph (b) of Section 194, Title 32, supra. That is to say, it
would appear to be the legislative intent that the authority therein con-
ferred upon the governor to organize and maintain such corps is to be
of indefinite duration. In the memorandum which you have submitted with
your inquiry the question is raised whether these two statutory enactments
are in conflict and whether the effectiveness of the state legislation was
not destroyed at the termination -of the two-year period following Septem-
ber 27, 1950, the elate of the enactment of subparagraph (b), Section 194,
Title 32, United States Code.
In Section I, Article II, Ohio Constitution, provision is made for the
organization by law of the state militia "in such manner, not incompatible
wi1:h the constitution and laws of the United States, as may be prescribed
by law."
The congress is given power under Section 8, Article I, United States.
Constitution, to "provide for the common defense * * * of the United>
States." In 6ection 10, Article I, United States Constitution, we find the
provision that "No State shall, without the consent of Congress * * * keep
Troops, or Ships of War in time of Peace * * *."
In the second amendment of the United States Constitution it is pro-
vicled that:
"A well-regulated militia being necessary to the security of
a free State, the right of the people to keep and bear arms shall
not be infringed."
It would appear that Section 194, Tide 12, United S'tates Code, here-
inbefore quoted in pertinent part, was enacted by the congress under
authority of the constitutional provisions above indicated. Moreover, it
would appear that the provisions of Section (a), fonbidding the States to
"maintain troops in time of peace," except as authorized iby the national
defense act, is based on the provision just noted in Article I, Section 10,
requiring the consent of the congress for a state to "keep troops * * * in
time of peace"; and that the purpose of the congress in enacting subpara-
graph (b) in Section 194, Title 32, was to extend their consent for a
limited period of time for the several states to "keep troops" in addition
to those the organization of which was provided for in the national de-
fense act.
OPINIONS
It will be noted that in the enactment of subparagraph (b) of Sec-
tion 194, Title 32, the language employed does not refer in terms to the
keeping of troops but rather that authorization is given for the "organiza-
tion by and maintenance within any state of such military forces other
than a Nationa:l Guard as may be provided iby the la:Ws of such state* * *."
It must be remembered, however, that this language is found in the same
section with an inhibition against the keeping of troops in time of peace,
and that the constitutional author.ity for the enactment refers only to the
keeping of troops and not to the organization and maintenance of all
military forces. The question thus presented is whether the terms "keeping
troops" and "organizing and maintaining military forces" are synonymous,
and further whether, in view of the federal constitutional and statutory
provisions already pointed out, any power is left to the states to provide
for a military organization such a:s the Ohio defense corps.
In 36 American Jurisprudence, pp. 213, 214, Section 44, the power
of the states to provide for the organization and maintenance of militia
1s discussed in the following language :
"The Constitutions of the several states universally provide
for the organization and maintenance of a well-regulated militia,
and grant to the legislatures the necessary authority to carry that
provision into effect. The power of state governments to legislate
concerning the militia existed and was exercised before the adop-
tion of the Constitution of the United States, and as its exercise
was not prohibited by that instrument, it remains with the states,
subject only to the paramount authority of acts of Congress en-
acted in pursuance of the Constitution of the United States. It
seems to be indispensable that there should be concurrent control
over the militia in both governments within the limitations im-
posed by the Constitution. Accordingly, it is laid down by text
writers and courts that the power given to Congress to provide
for organizing, arming and disciplining the militia is not exclu-
sive. It is defined to be merely an affirmative power, and not in-
compatible with the existence of a like power in the states; and
hence the conclusion is that the power of concurrent legislation
over the militia exists in several states with the national gov-
ernment. 'i\Then Congress has once acted within the limits of the
power granted in the Constitution, its laws for organizing, arm-
ing, and disciplining the mHitia are supreme, and all interfering
regulations adopted by the states are thenceforth suspended, and
for the same reasons all repugnant iegislation is unconstitutional.
That principle applies, however, only where Congress has as-
sumed control of the militia under granted powers, and does not
militate against the construction uniformly given to the Constitu-
ATTORNEY GENERAL
tion t:hat a state may organize and discipline its own militia, in
the absence of or su'bordinate to the regU'lations of Congress. It is
only repugnant and interfering state legislation that must give
way to the paramount la;ws of Congress constitutionally enacted.
Thus it is competent for a state to provide by statute that the
militia shall be subject to the Articles of War and that its mem-
bers shall be triable by a general court-marshal for a violation
thereof. The reservation in the Federal Constitution of the power
to the states, respectively, of the appointment of the officer-s and
the authority to train the militia according to the discipline pre-
scribed by .Congress does not put any restriction upon the states in
respect to the concurrent legislation concerning the militia. That
reservation constitutes an exception merely from the power given
to Congress to provide for organizing, arming, and disciplining the
militia, and is a limitation upon the authority whioh would other-
wise have devolved upon it as to the appointment of officers. The
exception from a given power cannot, upon any fair reasoning, be
considered as an enumeration of aH the powers which belong to
the states over the militia. In the exercise of its reserved powers,
a state may enact and enforce legislation designed to prevent any
hindrance or interference with the raising of armies and military
forces by the nation."
547
Many of vhe statements set out in the foregoing comments are based
on the decision in the case of Dunne v. The People, 94 Ill., 120, the
second and fifth paragraphs of the headnotes reading as follows :
"2. The power in Congress to provide for organizing, ann-
ing, equipping and disciplining the militia, is not exclusive. It is
merely an affirmative power, and not incompatible with the ex-
istence of a like power in the Sta:tes; and hence the States have
current power of legislation not inconsistent with that of Congress.
It is only repugnant and interfering State legislation that must
give way to the paramount laws of Congress constitutionally
enacted."
"5. There is no question of the power of a State to organ-
ize such portion of its militia as may be deemed necessary in the
execution of its laws, and to aid in maintaining domestic tran-
quility within its borders. The power given to the chief executive
of the State to call out the militia to execute the laws, etc., by im-
plication recognizes the right .to organize a State militia."
Moreover, it is interesting to observe that in the opinion by Mr.
Justice Scott, a distinction is drawn between the keeping of troops in time
of peace and the organization of an active militia. On this point it is said
at page 138:
OPINIONS
"An objection broader in its scope than either of those noted
is, that the active militia organized under the statute comes within
the prohibition of the second clause, section ro, art. I of the Con-
stitution of the United States, which withholds from the States
the power to keep 'troops' in time of peace. Our understanding
is, the organization of the active militia of the State conforms
exactly to the definitions usually given of militia. Lexicog-
raphers and others define militia, and so the common under-
standing is, to be 'a body of armed citizens trained to military
duty, who may be called out in certain cases, but may not be kept
on service like standing armies, in time of peace.' That is the
case as to the active militia of this State. The men comprising it
come from the body of the militia, and when not engaged at stated
periods in drilling and other exercises. they return to their
usual avocations, as is usual with militia, and are subject to
call when the public exigencies demand it. Such an organiza-
tion, no matter by what name it may be designated, comes within
no definition of 'troops,' as that word is used in the constitution.
The word 'troops' conveys to the mind the idea Of an armed
body of soldiers, whose sole occupation is war or service, an-
swering to the regular army. The organization of the active
militia of the State bears no likeness to such a body of men. It
is simply a domestic force as distinguished from regular 'troops,'
and is only liable to be called into service when the exigencies
of the State make it necessary."
It is thus to be seen that a very strong argument can be made for
the proposition that the reference in subparagraph 2 of Section I94, Title
32, to organization and maintenance of "military forces," must be deemed
to be limited to the organization and maintenance of military forces in
such a way as to constitute the "keeping of troops" within the meaning
of the federal constitution; and that the organization of the Ohio de-
fense corps, as a rpart of the active state militia, cannot be deemed, under
the rule in the Dunne case, supra, to be forbidden by this federal
enactment.
I do not, however, deem it necessary to resolve this question for the
purpose of your inquiry. You will observe that the militia of the state
of Ohio is defined in Section 5923.0I, Revised Code, Section 5I76, Gen-
eral Code, which provides as follows:
"The militia of the state shall consist of all able-bodied male
citizens of the state, who are more than eighteen years of age,
and not more than forty-five years of age except as provided
in section 5923.03 of the Revised Code. The militia shall be
divided into four classes:
ATTORNEY GENERAL
(A) The Ohio national guard;
(B) The Ohio naval militia;
(C) The Ohio defense corps;
(D) The unorganized militia.
"The Ohio national guard, the Ohio naval militia, and the
Ohio defense corps shall be known collectively as the organized
militia.
"'Military forces' includes the Ohio national guard, the
Ohio naval militia, the Ohio defense corps, and the unorganized
militia.
" 'National defense act' means an act of congress, entitled
'An act for making further and more effectual provision
for the national defense and for other purposes,' approved by
the president June 3, 1916, and all acts amendatory thereof and
supplementary thereto.
''No troops shall be maintained in time of peace other than
as authorized and prescribed under the national defense act.
Such limitation does not affect the right of the state to the use
of the militia within its borders in time of peace as prescribed
in the military laws of this state. This section does not prevent
the organization and maintenance of police."
549
This statute, it may be noted, was enacted effective June 5, 1951,
and the Legislature must be presumed to have been aware not only of
the federal constitutional limitation on the keeping of troops, already
pointed out herein, 'but aware also of the restrictive provisions of Section
194, Title 32, United States Code. With this in mind, we may observe
that in the final paragraph of this section the Ohio Legislature has recog-
nized the constitutional inhibition against the keeping of troops and has
provided therein that "no troops shall ibe maintained in time of peace
other than as authorized and prescribed in the national defense act;". This
language is immediately followed, however, by the following proviso:
"Such limitation does not affect rhe right of the state to use
the militia of Ohio within its borders in time of peace as pre-
scribed in the military laws of this state.''
The militia, the use of which the Legislature thus deemed to be out-
side the inhibition with respect to the keeping of troops, is defined in the
same section as including the Ohio defense corps. This enactment is,
therefore, a plain legislative declaration that the organization, maintenance
and use of the Ohio defense corps was not deemed to be within the
inhibition in the federal constitution and statutes relative to the keeping
of troops in time of peace. Moreover, this declaration of policy plainly
550
OPINIONS
appears to have been repeated by the Iooth General Assembly by the
inclusion in the provisions of Amended House Bill 8r6, approved by the
governor July 30, I953, of an appropriation item of $I50,000 for the
Ohio defense corps for the I953-I955 biennium. Finally it may be pointed
out that the statutory authorization for the creation of the Ohio defense
corps, Section 5304, General Code, was enacted in Amended Senate Bill
259, 99th General Assembly, effective May 26, 1949, suoh enactment being
made more than a year prior to the enactment by congress of the permis-
sive provisions of subparagraph (b), Section I94, Title 32, United States
Code. This circumstance is likewise a clear legislative declaration of the
notion that the creation of the Ohio defense corps was not within the fed-
eral constitutional and statutory inhibitions against the keeping of troops
by states in time of peace. Accordingly it becomes clear that rhe only
basis upon which the validity of presently existing Ohio legislation on the
subject of the Ohio defense corps can be questioned is that of a possible
conflict with the federal constitutional and statutory provisions already
noted. In Ohio the power to declare a statute unconstitutional, even by
the Supreme Court, is sharply limited by the constitution; and such power
is, of course, wholly beyond the province of my office. For this reason,
and in view of the plain legislative indications already pointed out that
the maintenance, organization and use of this corps was not deemed by
the Legislature to be in conflict with the constitution, I have no alternative
but to adopt the view which upholds its validity; and this I am more readily
disposed to do by reason of the presumption which always obtains as to
the constitutional validity of the legislative enactments, and by reason as
well of the distinction pointed out in the Dunne case, supra, between (a)
the keeping of troops and (b) organization, maintenance and use of the
state militia.
Accordingly, in specific answer to your inquiry, it is my opinion that
under the provisions of Section 5920.01, ReYisecl Code, Section 5304,
General Code, and Section 5923.0I, Revised Code, Section 5I76, General
Code, authority is given to the Governor to organize and maintain within
this state the military forces known as the Ohio defense corps on the
basis therein provided.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL jji
3181
REGULATIONS-OHIO WIIJDLIFE COUNCIL-AUTHORIZED
TO PROMULGATE AND ENFORCE ON AREAS ADMINIS-
TERED BY DIVISION OF WILDLIFE, REGULATIONS AFFECT-
ING SWIMMING, BOATING, CAMPING, PICKNICKING AND
COMPARABLE RECREATIONAL ACTIVITIES- PROVISO, TO
EXTENT REGULATIONS REASONABLY CALCULATED TO
REGULATE TAKING, PROTECTION, PRESERVATION, POS-
SESSION OR PROPAGATION OF WILD ANIMALS-SECTION
Ij3I.OI RC.
SYLLABUS:
The Vlildlife Council is authorized to promulgate and enforce on the areas admin-
istered by the Division of wildlife, regulations with respect to swimming, boating,
camping, picnicking and comparable recreational activities only to the extent that
such regulations are reasonably calculated to regulate the taking, protection, preserva-
tion, possession or propagation of "wild animals" as defined by Section 1531.01, Re-
Yised Code.
Columbus, Ohio, October 26, 1953
Hon. Charles A. Dambach, Chief, Division of wildlife
Columbus, Ohio
Dear Sir:
I have before me your request for my opinion which reads as follows:
"The Ohio Division of Wildlife as you know has under its
administration certain areas which, although maintained primarily
for hunting and fishing purposes, also afford opportunity for pub-
lic swimming, boating, camping, picnicking and comparable rec-
reational use. It is our desire that all areas under our administra-
tion be utilized to the fullest extent for the public so long as that
use is not inconsistent with the primary purpose for wrhich the
areas were acquired or for which they are managed. It is im-
portant therefore that if these activities are to be permitted on
areas under the administration of the Division that they be prop-
erly supervised and that certain rules and regulations be adopted
to assure proper utilization.
"For this reason I wish to request a formal opinion from you
as to what authority the Ohio Wildlife Council has to promulgate
552
OPINIONS
and enforce regulations with respect to swimming, boating, camp-
ing, picnicking and similar recreational activities on areas under
its administration."
Under the statutes of Ohio the violation of a lawful order of the
Wildlife Council is made a crime, punishable as a misdemeanor. I presume,
therefore, that your question as to the authority of the Wildlife Council
to "promulgate and enforce" such regulations is directed to the authority
of the council to adopt regulations, the violation of which would be a
misdemeanor and punishable as such.
In Section 1531.00, Revised Code, Section 1435-1 G.C., we find
language which standing alone could possibly be construed as granting
the vVildlife Council almost unlimited power to adopt orders. This section
provides in part:
"* * * The council may make and issue orders benefiting
\Vile! animals, fish or game management, preservation, propaga-
tion, and protection, outdoor and nature activities, public fishing
and hunting grounds, flora and fauna preservation, and regulating
the taking and possession of wild animals on any lands or waters
owned or leased or under its supervision and control, and may
for a specified period of years prohibit or recall the taking and
possession of any \Yild animal or (on) any portion of such lands
or waters. * * *"
In the literal language of this statute, the council is given the power
to make and issue orders benefiting "outdoor and nature activities," a grant
of power which if literally construed would be almost limitless. I cannot
so construe the power of the council. In the first place, such an unlimited
grant, without even the semblance of legislative guide posts, would con-
stitute an unconstitutional delegation of legislative power. Matz vs. Curtis
Cartage Co., 132 Ohio St., 271. In the second place, I believe it clear
from a detailed study of the numerous statutes relating to the Division
of Wildlife that the General Assembly itself intended the power of the
wildlife Council to adopt rules to be limited to such rules as relate to the
taking, possession, protection, preservation or propagation of "wild an-
imals" as defined by Section 1531.01, Revised Code.
Obviously, in construing a statute granting rule-making power to
an administrative agency, such statute must be read in pari materia with
those statutes providing a penalty for the violation of such a rule. Although
the general power of the Wildlife Council to adopt rules is contained in
ATTORNEY GENERAL
553
Section 153r.o6, Revised Code, and further supplemented by Sections
1531.o8 and 1531.09, the only penalty contained in 'Chapter 1531. is Sec-
tion 1531.99 which provides that whoever violates Section 1531.II shall be
fined, etc. Section 1531.II reads:
"No person shall take, kill, possess, transport, buy, or sell
any clams and mussels, crayfish, acquatic insects, fish, frogs,
turtles, or game animals contrary to any order, rule, or regula-
tion of the wildlife council made in conformity to law."
It is clear, therefore, that under Section 1531.99 all rules and regula-
tions of the Wildlife Council may not be enforced by criminal proceed-
ings, but only such rules and regulations as relate to the killing, possessing,
transporting, buying or selling of certain animal life.
We find, however, that other penalty provisions are contained in the
succeeding Chapter 1533. Section 153399 paragraph (J) reads:
"\i\Thoever violates any section of the Revised Code relative
to the taking, protection, preservation, possession, or propagation
of wild animals or the use or possession of unlawful devices for
such taking or any order of the wildlife council, for which no
penalty is otherwise prescribed, shall be fined not less than fifteen
nor more than two hundred dollars."
While the specific language of paragraph (J) quoted above speaks
of "any order of the Wildlife council," without any specific limitation, it
would appear that the type of order the General Assembly had in mind
was that relative to the taking, protection, preservation, possession, or prop-
agation of "wild animals." That this is true is indicated by the fact that
this same sentence makes it a misdemeanor to violate "any section of
the Revised Code relative to the taking, protecting, preservation, posses-
sion or propagation of "wild animals." It would appear that the General
Assembly in speaking of "any order of the wildlife council" had in mind
orders of a similar character.
This conclusion is further fortified by an examination of Sections
1533.69 and 1531.02 of the Revised Code. Section 1533.69 reads as fol-
lows:
"Prosecution for violation of an order of the wildlife council
made and established as provided by the Revised Code, relative
to the taking, possession, protection, preservation, or propagation
of wild animals, shall be under section 1531.02 of the Revised
554
OPINIONS
Code. The affidavit charging the violation shall describe the of-
fense and cite the number by which such order its designated
and set out the provisions of such order."
Section 153 r.oz reads in part as follows :
"* * * A person doing anything prohibited or neglecting to
do anything required by sections 1531.0I to 1531.26, inclusive,
and I 533.0I to 1 53'3-69, inclusive, of the Revised Code, or con-
trary to any council order violates this section. * * *"
Thus it will be noted that in the entire scheme of things the orders
of the \Vildlife Council which can be prosecuted under Section 153399
paragraph (J), Revised Code, are orders relative to the taking, protec-
tion, preservation, possession or propagation of wild animals. It follows
that the \Vildlife Council does not have cart blanche authority to promul-
gate and enforce by way of criminal prosecution, any and all regulations
as to swimming, boating, camping, picnicking and similar recreational
activities on areas under its administration. It also follows that to the
extent such regulations would reasonably fall within the scope of regula-
tions relative to the taking, protection, preservation, possession or propaga-
tion of wild animals, the vVildlife Council could promulgate and so enforce
such regulations regardless of the fact that incidentally they would also
result in the regulation of such recreational activities. The question of
whether a particular regulation would so qualify is a question of fact to
be determined in the first instance by the wildlife Council, acting in the
exercise of a sound discretion.
In conclusion and in specific answer to your question, it is my opinion
that the Wildlife Council is authorized to promulgate and enforce on the
areas administered by the Division of Wildlife, regulations with respect
to swimming, boating, camping, picnicking and comparable recreational
activities only to the extent that such regulations are reasonably calculated
to regulate the taking, protection, preservation, possession or propagation
of "wild animals" as defined by Section I53I.OI, Revised Code.
Respectfully yours,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
555
3183
RESIDE)JCE-SBCTION 3503.02 RC, FORMERLY 4785-31 GC,
DOES NOT AUTHORIZE MOVE FOR TEM.PORARY PURPOSES
WITHIX COUNTY-MOVE FOR TEMPORARY PURPOSES
INTO ANOTHER STATE OR COUNTY OF THIS STATE FOR
PERIOD NOT TO EXCEED THREE YEARS WITHOUT LOSS
OF VOTING RESIDENCE AUTHORIZED.
SYLLABUS:
Section 3503.02, Revised Code, 4785-31, G.C., while authorizing a move for tem-
.porary purposes into another state or county of this state for a period of not to exceed
three years without loss of voting residence, does not authorize a move for temporary
purposes within a county.
Columbus, Ohio, October 28, 1953
Ron. Ted Vv. Brown, Secretary of State
Columbus, Ohio
Dear Sir:
I am m receipt of your request for my opinion, which reads as fol-
lows :
''This office has, in the course of administering elections, is-
sued instructions to the county Boards of Elections regarding
voting residence. In construing Sections 3503.02, Revised Code
( 4785-3 r, G. C.) we have ruled that a person may make a 'tem-
porary' move from one county to another, but that the statute
does not authorize a 'temporary' move within a county. It is our
thought that the legislature did not intend to allow such 'tem-
porary' moves within a county, due to the chances of fraud that
might occur in non-registration areas and the necessity, in regis-
tration counties, of having persons registered from their actual
residence. \\' e have discovered numerous cases of 'ward-hop-
ping, where a person is registered from a residence within a city,
but actually resides outside the city. The city registration many
times is a requisite for holding a city office, and these persons
have thus claimed a 'temporary' move within the county.
"In view of the importance of uniformity of construction
of this statute throughout the state, I respectfully request your
opinion on whether or not a person may lawfully move for 'tem-
porary' purposes within a county, and thus maintain a voting
residence in a precinct other than the one in which he actually
resides."
Section 3503.02, Revised Code, 4785-31, G.C., reads as follows:
OPINIONS
"All registrars and judges of elections, in determining the
residence of a person offering to register or vote, shall be goY-
erned by the following rules:
" (A) That place shall be considered the residence of a per-
son in which his habitation is fixed and to which, whene\er he
is absent, he has the intention of returning.
"(B) A person shall not be considered to have lost his resi-
dence who leaves his home and goes into another state or county
of this state, for temporary purposes only, with the intention
of returning.
"(C) A person shall not be considered to have gained a resi-
dence in any county of this state into which he comes for tem-
porary purposes only, without the intention of making such
county his permanent place of abode.
"(D) The place where the family of a married man or wo-
man resides shall be considered to be his or her place of resi-
dence; except that when the husband and wife have separated
and live apart, the place where he or she resides the length of
time required to entitle a person to vote shall be considered to
be his or her place of residence.
"(E) If a person removes to another state with the intention
of making such state his permanent residence, he shall be con-
sidered to have lost his residence in this state.
" (F) If a person removes to another state with the intention
of remaining there an indefinite time and making such state his
place of residence, he shall be considered to have lost his resi-
dence in this state, notwithstanding the fact that he ma.v enter-
tain an intention to return at some future period.
" (G) If a person removes to the District of .Columbia, or
other federal territory, to engage in the government service, he
shall not be considered to have lost his residence in this state
during the period of such service, and likewise should he enter
the employment of the state, the place where such person resided
at the time of his removal shall be considered to be his place of
residence.
"(H) If a person goes into another state and while there ex-
ercises the right of a citizen by voting, he shall be considered
to have lost his residence in this state.
"All questions of the right to vote shall be heard and de-
termined by the judges nf election in the precinct where the
question arises.
" 'Temporary purposes,' as used in this section, shall be
construed to permit a period of absence not in excess of three
years."
ATTORNEY GENERAL
557
It might be stated parenthetically that this section has been amended,
effective January r, 1954. Paragraph (G) will then read as follows:
"If a person removes out of the county to engage in the serv-
ices of the United States government, he shall not be considered
to haYe lost his residence in this state during the period of such
service, and likewise should he enter the employment of the
state, the place where such person resided at the time of his re-
moval shall be considered to be his place of residence."
The provision of the present statute that "All questions of the right
to vote shall be heard and determined by the judges of election in t):le pre-
cinct where the question arises." will be eliminated from Section 3503.02
at that time and Section 350I.II, Revised Code, pertaining to the duties
of the boards of elections, will provide, in paragraph (Q) thereof, that
the board shall ''Investigate and determine the residence qualifications of
electors."
In Opinion No. 1499, Opinions of the Attorney General for 1950,
page ro6, it was held that residence qualifications of an elector are ques-
tions of fact and should be determined in accordance with Section 4785-
31, General Code, cases of doubt to be determined by the judges of the
election in the precinct where the question arose. While this conclusion is
correct, it \Yould not follow that the precinct judges are given unbridled
discretion in such matters. Under Section 3501.05, Revised Code, 4785-7,
G. C., you, of course, are given the power to advise me1nbers of boards
of elections as to the proper method of conducting elections and to pre-
pare rules, regulations and instructions for the conduct of elections. Such
authority being vested in you by virtue of Section 3501.05, as chief elec-
tion officer of the State of Ohio, it would follow that your rulings 111
such capacity should be adhered to, unless clearly contrary to law.
A careful analysis of Section 350J.02, Revised Code, reveals that the
General Assembly has provided a basic definition of "voting residence"
in paragraph (A) and that the remaining paragraphs, (B) through (H),
constitute either (I) guides or ground rules which assist in determining
residence qualifications under the terms of paragraph ('A), or (2) ex-
ceptions to paragraph (A).
It will be noted that while provision is made in paragraph (B) for
one who leaves his home and goes into another state or county for "tem-
porary purposes" only, with the intention of returning, the statute con-
OPINIONS
tains no such provision as to one who leaves his home and goes to another
part of the same county. Under the doctrine of expressio unius est ex-
clusio alterius, it must reasona;bly be presumed that the General Assembly
did not intend to authorize similar absence by removal from one part of a
county to another for "temporary purposes."
It will also be noted that paragraph (G), which in effect constitutes
an exception to paragraph (A), makes reference only to federal or state
employment. While paragraph (G), as amended effective January r, 1954,
is not existing law, the language employed therein is further indicative
of a legislative intent not to authorize a movement within a county with-
out a change of voting residence. It will be observed that such paragraph
will require a removal "out of the county."
With the exception of paragraph (D), dealing with the place of
residence of a married man and woman, paragraphs (B) through (H)
have no application to the question of determining residence where a per-
son has moved from one location to another within the same county. In
essence, therefore, such question must be determined within the meaning
of paragraph (A). This paragraph provides that the place shall be con-
sidered the residence of a person in which his habitation is fixed and to
\Yhich, whenever he is absent, he has the intention of returning.
Did the General Assembly, by this language, intend to permit a per-
son to move from X to Y within the same county and still maintain a
voting residence at X merely because of some remote intent to return to
X at some future period? I believe not. For a discussion of remote, as dis-
tinguished from immediate intention, see the concurring opinion of Taft,
J. in the case of State, ex rei. Klink v. Eyrich, 157 Ohio St., 338, at page
342.
If the intention referred to in paragraph (A) be merely a remote in-
tention, it would follow that such condition could continue to exist almost
indefinitely as to a person moving from one place in a county to another
and would not be limited even to the three year limitation for the re-
movals for "temporary purposes" to another state or another county, as
authorized by paragraph (B). Such an interpretation would make the test
of voting residence, in cases of movements within the same county, en-
tirely a subjective one. As a practical matter, so long as the individual
stated that he intended eventually to return to X, the election officials
would be forced to accept him as a qualified voter at X, regardless of
his actual daily residence at Y.
ATTORNEY GENERAL
55<)
The only statutory language authorizing a person to vote in one part
of a county after moving to another part of the same county is that con-
tained in Section 3503.01, Revised Code, 4785-30, G. C., which reads:
"'* * * provided that any qualified elector who in good faith
moves his residence from one precinct to another precinct in
the same county at any time subsequent to the fortieth day
preceding an election may vote at such election in the precinct
from which he moved wherein his voting residence had been
legally established. * * *"
This language was under consideration 111 the case of State, ex rei.
Ehring Y. Bliss, !55 Ohio St., 99, the fourth paragraph of the syllabus
therein reading:
''Under the provisiOns of amended Section 4785-30, Gen-
eral Code, any qualified elector who in good faith removes from
one precinct to another precinct in the same county at any time
subsequent to the fortieth clay preceding an election shall have
the right to vote at such election in the precinct .from which he
moved wherein his voting residence had been legally estab-
lished .. ,
Presumably the failure of the General Assembly to authorize move-
ments for "temporary purposes" within the same county or to provide
that upon employment by the CDunty the place where a person then re-
sided should be considered his place of residence was based on the notion
that ali of the Ohio counties are sufficiently small as not to compel a
change of daily residence in order to accept employment within the
county. Regardless, however, of the motivation of the General Assem-
bly, it is clear that no such statutory authorization has been given.
To the extent that this opinion is in variance with Informal Opinion
No. 76 for 1951, said informal opinion is hereby overruled.
In specific answer to your question, it is my opinion that Section
3503.02, Revised !Code, 4785-31, G. C., while authorizing a move for
temporary purposes into another state or county of this state for a period
of not to exceed three years without loss of voting residence, does not
authorize a move for temporary .purposes within a county.
Respectfully,
c WILLIAM O'NEILL
Attorney General
OPINIONS
I. COUNTY COi\H\1ISSIONERS-AUTHORITY FOR SALE OF
ANY PROPERTY ACQUIRED UNDER AUTHORITY OF
VETERANS EMERGENCY HOUSING ACT, 1946, MAY BE
EXERCISED ONLY FOR PURPOSE OF LIQUIDATION
AFTER HOUSING SHORTAGE HAS BEEN RELIEVED
A.ND PURPOSES OF ACT ACCOMPLISHED-OPINION
u97, OAG 1946, PAGE 66o, APPROVED AND FOLLO\VED-
SECTIONS 3735.61 RC, 1078-70 GC.
2. COUNTY COMMISSIONERS- AUTHORITY TO SELL
PROPERTY IS DISCRETIONARY-IF AUTHORIZED BY
LAW, COUNTY COMMISSIONERS MAY PURCHASE PROP-
ERTY FOR USE IN OTHER COUNTY ACTIVITIES, BY EX-
PENDITURE OF FUNDS FROM GENERAL REVENUE
FUND-LIQUIDATION OF PROPERTY-MAY BE COM-
PLETED BY ASSIGNMENT OF PROPERTY TO PROPER
USE BY COUNTY COMMISSIONERS.
3 HOUSE TRAILERS-IN LIQUIDATION OF PROJECT :\JAY
BE WITHHELD FROM SALE-ASSIGNED DIRECTLY FOR
USE BY COUNTY ENGINEER OR COUNTY CIVIL DE-
FENSE ORGANIZATION -DISCRETION OF COUNTY
COMMISSIONERS-SECTIONS 3735.61 RC, ro78-7o GC.
SYLLABUS:
1. The authority given to county commissioners by Section 3735.61, .Revised Code,
Section 1078-70, General Code, for the sale of any property acquired under authority
of the Veterans Emergency Housing Act of 1946, 121 Ohio Laws, 806, may be exer-
cised only for the purpose of liquidation after the shortage of housing for veterans has
been relieved and the purposes of the act accomplished. Opinion No. 1197, Opinions
of the Attorney General for 1946, 660, approved and followed.
2. The authority given to sell such property is discretionary in the county com-
missioners, and where any of such property is such that its purchase by the county
commissioners, for use in other county activities, by the expenditure of iunds from
the general revenue fund of the county would be authorized by law, then the liquida-
tion of such property may be completed by the assignment by the county commission-
ers of such .property directly to such use.
3. House trailers acquired pursuant to the provisions of the Emergency Y eterans
Housing Act of 1946, 121 Ohio Laws, 806, may, in the liquidation of such project under
the provisions of Section 3735.61, Revised Code, Section 1078-70, General Code, in the
discretion of t'he county commissioners, be withheld from sale and assigned directly for
use by the county engineer or by a county civil defense organization.
ATTORNEY GENERAL
Columbus, Ohio, October 28, 1953
Hon. Charles W. Ayers, Prosecuting Attorney
Knox County, Vernon, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"The Board of County Commissioners of Knox County,
Ohio, are advertising for public sale under Ohio General Code
Section 1078-;o house trailers acquired pursuant to Ohio Gen-
eral Code Section 1078-62.
'"The County Engineer of Knox County would like to use
one of the trailers to house tools used in county road work. Can
the County Commissioners purchase a trailer for the use of the
engineer? Can the County Commissioners withhold from the
sale one trailer to be used by the Engineer without continuing
to make the reports provided for under Ohio General Code
Section ro;S-67?
"The local .Civil Defense organization would like to have a
trailer for use at their aerial observation post. Can the local
Civil Defense use its funds to purchase one of these trailers?
Can the County Commissioners make a gift of a trailer to a local
CiYil Defense post?"
The so-called emergency Housing .for Veterans Act was enacted in
1946, 121 0. L. 8o6, and was formerly codified as Section 1078-62, et
seq., General Code. By this act certain moneys were appropriated by the
Legislature for distribution to the several counties upon application of
the county commissioners to the treasurer of state; and all moneys thus
allocated to the county were required to be placed in a special fund in the
treasury of the county to !be known as the county veterans housing fund.
Under the provisions of Section 1078-63, General Code, the commis-
sioners were authorized to "expend all or any part of their county vet-
erans housing fund for .the purpose of providing immediate temporary
emergency housing facilities for residents of their counties who were
members of the armed forces of the United States who have served in
\Yar II and have been discharged other than dishonorably, and for
their families." The powers and duties of the county commissioners m
the operation of an emergency veterans housing project are set out in
OPINIONS
Section 3735.58, Revised .Code, Section 1078-66, General Code, which
reads as follows:
"The board of county commiSSioners, in order to provide
housing facilities, may acquire by purchase, lease, gift, or other-
wise, improved or unimproved land, structures, materials, equip-
ment, facilities, and services and may erect structures for the
purpose of making such temporary emergency housing aYailable.
The title to said property shall be in the board. The board shall
provide for the maintenance and management of the property
acquired under this section, shall make and publish rules govern-
ing the letting of the premises to veterans, subject to sections
3735.58 to 3735.61 inclusive, of the Revised Code, and shall fix
and collect rents from tenants which rents shall be fair and equi-
table considering the services provided, the type of housing, and
its condition and location. All rents collected shall be deposited
in the county veterans housing fund and not to exceed ninety
per cent of such rents collected may be used for the maintenance
and operation of the property.
"The board may evict tenants as provided by law."
The commissioners are also required to make certain reports to the
treasurer of state, Section 3735.59, Revised Statutes, Section 1078-67,
General Code, providing in this respect as follows:
"The board of county commissioners shall report to the
treasurer of state, semiannually, on the ;provisions which have
been made for veterans housing within the county. Such reports
shall be made not more than .forty-five clays after the last clay of
each half of the calendar year and shall include receipts. dis-
bursements, and balances of the funds, the number of units of
housing provided, the number of veterans housed, and a schedule
of rentals."
In Section 1078-68, General Code, it was provided that Sections
1078-63, 1078-64 and 1078-65, General Code, should expire on Decem-
ber 31, 1949.
By the tenns of Section 3735.60, Revised Code, Section 1078-69,
General Code, Sections 3735.58 and 373559, Revised Code, Sections
1078-66 and 1078-67, General Code, "shall expire on December 3 I, 1955."
By reason of these provisions limiting the life of the law, only Sections
1078-66, 1078-67, 1078-69 and 1078-70, General Code, were retained in
the recodification of 1953, and these sections were reenacted as Sections
3735.58, 373559, 3735.60 and 3735.61, Revised Code, respectively.
In Section 3735.61, Revised Code, Section 1078-70, General Code,
,,.e find the following provision :
ATTORNEY GENERAL
"The .board of county commiSSIOners of any county which
has acquired property in accordance with volume 121, Ohio Laws,
.page 8o6, sections I to IO, inclusive, may sell any or all of said
property and deposit the proceeds of such sale in the general
revenue fund of the county.''
In Opinion No. II97, Opinions of the Attorney General for 1946,
p. 66o, one of my predecessors in office ruled that the authority of the
county commissioners to sell any and all the property acquired under this
program could be exercised only for the purpose of liquidation of the
project after the shortage of housing for veterans had been relieved.
In view of this holding, with which you are no doubt familiar, it is as-
sumed that in the instant case the veterans housing shortage has been
relieved in Knox county, and that the commissioners have resolved upon
the liquidation of the project as authorized in Section 3735.61, Revised
Code, supra.
I deem it to be a matter of considerable significance that this so-called
liquidation section provides that the proceeds of the sale of the property
by the county commissioners are to be paid into the general revenue fund
of the county. \iVith this provision in mind we may examine the question
of the use of certain of this property, presently to be liquidated as a
housing project, hy the county engineer.
It will be observed that under the proviSIOns of Section 5549.01,
Revised Code, Section ;zoo, General Code, the county commissioners
are authorized to purchase machinery, tools and other equipment for the
construction, improvement, maintenance or repair of highways. bridges
and culverts under their jurisdiction and that they are also authorized in
their discretion to purchase or lease automobiles, motorcycles or other
conveyances and maintain .the same for the use of the county engineer and
his assistants when on official business. By this same section the com-
missioners are required to provide a suitable place or places for storing or
housing machinery, tools, equipment, etc. Under the provisions of Section
5543.02, Revised Code, Section 7187, General Code, the county engineer
is required to report to the county commissioners annually, on or before
the first day of April, "the condition of the county roads, bridges, and
culverts, and estimate the probable amount of funds required to maintain
and repair or to construct any new roads, bridges, or culverts required
within the county."
OPINIONS
In Section 5555.91, Revised .Code, Section 6956-1, General Code,
we find the following provision:
"After the annual estimate ior the county has been f1led
with the board of county commissioners by the county engineer,
and the board has made such changes and modifications in the
estimate as it deems proper, the hoard shall then make its levy,
for the purposes set forth in the estimate, upon all taxable prop-
erty of the county, not exceeding in the aggregate two mills upon
each 'dollar of the taxable property of said county. Such levy
shall be in addition to all other levies authorized for said pur-
poses, but subject to the limitation upon the combined maximum
rate for all taxes. This section docs not pre7/ent the board frotn
using any surplus in the general funds of the county for the pur-
poses set forth in said estimate." (Emphasis added.)
A reference to the history of these three statutes discloses that all
were originally enacted as a part of Amended Senate Bill 125, 8oth
General Assembly, ro6 Ohio Laws, 574 Section 5543.02, supra, was
enacted as Section 144 of this act and required the county highway super-
intendent to make an annual report to the county commissioners, contain-
ing an estimate of the probable amount of "road funds" required for the
current year. This section was subsequently amended to place this duty
on the county engineer.
Section 5549.01, supra, was originally enacted as Section 157 of the
act; and Section 5555-9I, Revised Code, was originally enacted as Section
238, being placed in Chapter JO of the act under the heading "General
Provisions." From this it may he concluded that these sections are inter-
related and may he regarded in pari materia.
In view of the express provision in Section 5555-9I, supra, for the
transfer of surplus funds from the county general fund for use "for the
purposes set forth in said estimate," I conclude that whatever limitations
may be placed on the expenditure of the proceeds of special excises on
motor vehicle fuel, auto registration, etc., it is still within the power of the
county commissioners to use the proceeds of general property tax levies
for highway construction, maintenance, etc.
At this point it is proper to observe the following provision set out in
subparagraph (F) of Section 5705.14, Revised Code, Section 5625-13,
General Code :
"(F) Money appropriated for the general fund may be
ATTORNEY GENERAL
transferred from such fund to a fund authorized by Section
570j.I2 or 5705.13 of the Revised Code, or to the proper fund of
a district authority."
In view of this provision, it will be seen that \vhenever the county
commissioners, in the liquidation of a veterans housing project, have
received the proceeds thereof in cash and have deposited such proceeds
in the general revenue fund of the county as provided by law, they may
immediately thereafter, under authority of the statutory provision just
noted, transfer such funds as surplus to the county road fund or to such
other authorized fund as they may choose, and that they may thereafter,
as authorized by the provisions of Section 5549.0I, supra, expend such
funds to purchase either (a) machinery, tools and other equipment for
the construction, maintenance, etc., of highways, etc., or (b) automobiles,
motorcycles or other conveyances for the use of the county engineer.
In this situation it becomes apparent that the county is the equitable
as well as the legal owner of the property of a veterans housing project
which is in the course of liquidation. From this it would appear to fol-
low that the cash proceeds realized in such liquidation, as a part of the
general fund of the county, may be utilized for any proper purpose of
the county. The question thus arises whether it is necessary to proceed
with such liquidation to the point where the value of all such property is
realized in the form of money, or whether the property in liquidation can
itself be utilized for any proper purpose of the county. A holding that
the conversion of this property into cash is a necessary step in liquidation
would be one based on an ultra-technical interpretation of the statute,
since it would deny to the county commissioners the authority to do
directly that which they are very clearly authorized to do indirectly. This
becomes apparent when it is observed that upon the realization of the ':ash
proceeds of the sale of a trailer, for instance, the commissioners would
be authorized to utilize such money for the purchase of another trailer
and, perhaps, the identical vehicle which was sold. Such a requirement
of the statute would be clearly absurd, and would entail also the proba-
bility that the county would be required to expend more to re-acquire
the vehicle sold than was realized from its sale in the liquidation process.
In this connection it must be remembered that the court will not assume,
or presume, that the Legislature intended doing a vain, useless or pur-
poseless thing. 37 Ohio Jurisprudence, 634, section 348. It is to be
borne in mind, also, that an interpretation of the law producing unrea-
OPINIONS
sonable or absurd consequences is to be avoided. 37 Ohio Jurisprudence,
643, section 352. In the instant case it seems to me that an ultra-technical
interpretation of the statute here in question, i.e., one which would require
a complete liquidation of the property in question to the point where cash
proceeds are received and deposited in the county general fund, and the
expenditure of such funds thereafter in the acquisition of property which
is identical with or similar to that which was sold in the course of the
liquidation, would be productive of unreasonable and absurd consequences.
For this reason I conclude that where the county commissioners are
engaged in the liquidation of a veterans housing project, as authorized
in Section 3735.61, Revised Code, Section ro78-7o, General Code, the
sale of the whole amount of such property is discretionary with the com-
missioners, and if a need for such property exists for a use for which
the county commissioners would be authorized to purchase such property
from the general revenue funds of the county, the commissioners may, in
the completion of such liquidation, devote such property directly to such
use without the sale and repurchase thereof.
_-\ll that has been said above is applicable with equal force to the
use of such property by a county civil defense organization. By reference
to the provisions of Section 29I5.09, Revised Code, Section 5298, General
Code, it will he observed that "Each political subdivision may make ap-
propriations for the payment of the expenses of its local organization for
civil defense." The several statutes relating to civil defense activities
are in broad general terms and are such as to lead to the conclusion that
a wide discretion has been given to the local organizations for civil de-
fense and to the subdivisions charged with their maintenance in the
matter of deciding what machinery, equipment, supplies, etc., are to be
regarded as necessary or useful in civil defense activities. Accordingly,
if the county commissioners should be convinced, as a matter of fact,
that the use of one of the trailers here in question would be necessary or
useful in the operation of the local civil defense activities, it would seem
plainly within their authority to utilize the funds in the general fund of
the county to provide for the purchase of such trailer. Such being the
case, it becomes necessary to conclude in this instance also that what the
commissioners may do indirectly they may as readily do directly, and to
conclude that it is not necessary for the commissioners to proceed to such
a liquidation of the housing authority property to the point where it is
wholly converted into cash, but rather that such liquidation may be com-
ATTORNEY GENERAL
pleted, as to particular items of property, by making it directly available
to the county civil defense organization.
Accordingly, and in specific answer to your mqmry, it is my opinion
that:
1. The authority given to county commissioners by Section 3735.6r,
Revised Code, Section 1078-70, General Code, for the sale of any property
acquired under authority of the veterans emergency housing act of I946,
IZI Ohio Laws, 8o6, may be exercised only for the purpose of liquidation
after the shortage of housing for veterans has been relieved and the pur-
poses of -the act accomplished. Opinion No. II97, Opinions of the At-
torney General for I946, 66o, approved and followed.
2. The authority given to sell such property is discretionary in the
county commissioners, and where any of such property is such that its
purchase 'by the county commissioners, for use in other county activities,
by the expenditure of funds from the general revenue fund of the county
would be authorized by law, then the liquidation of such property may be
completed by the assignment by the county commissioners of such property
directly to such use.
3 House trailers acquired pursuant to the provisions of the emer-
gency veterans housing act of I946, IZI Ohio Laws, 8o6, may, in the
liquidation of such project under the provisions of Section 3735.6I, Re-
vised Code, Section I078-7o, General Code, in the discretion of the county
commissioners, be withheld from sale and assigned directly for use by
the county engineer or by a county civil defense organization.
Respect ully,
c. WILLIAM O'NEILL
Attorney General
s68 OPINIONS
3193
WAGES-PHRASES, "MECHANICS AND LABORERS" USED
IN SECTIONS 4II5.04 RC, 17-4 GC AND "LABORERS, \\TORK-
MEN OR MECHANICS" USED IN SECTIONS 4115.05 RC, r7-4a
GC-DO NOT AUTHORIZE DEPARTMENT OF INDUSTRIAL
RELATI0:0:'S TO ASCERTAIN AND DETERMINE PREVAILING
RATES OF WAGES FOR A SURVEYING OR ENGINEERING
PARTY, CHAINMAN, RODMAN, INSTRUMENT ~ f A N AND
PARTY CHIEF.
SYLLABUS:
The phrases "mechanics and laborers" used in Section 4115.04, Re1ised Code,
Section 17-4, G.C., and "laJborers, workmen or mechanics" used in Section 4115.05,
Revised Code, Section 17-4a, G.C., do not authorize the department of industrial rela-
tions to ascertain and determine the prevailing rates of wages for the following mem-
bers of a surveying or engineering party, to wit, chainman, rodman, instrument man
and party chief.
Columbus, Ohio, October 30, 1953
Hon .. Margaret :.!Jahoney, Director, Department of Industrial Relations
Columbus, Ohio
Dear Miss Mahoney :
I have before me a communication from your department requesting
my opinion and reading in part, as follows :
"The Department of Industrial Relations in performing its
duties pursuant to the provisions of Sections 17-3 to 17-6 of the
General Code, receives collective .bargaining agreements between
bona fide organizations of la.bor and employers for the purpose
of certifying prevailing wage rates that are to be paid in connec-
tion with construction of public improvements in Ohio. Recently
this department received an agreement made by and between
the International Union of Operating Engineers. Local l:"nion
18 and 18c. representing employees, and two contractors' associa-
tions and 24 individual contractors, representing employers. This
agreement contains the following statement:
'The purpose of this agreement is to establish \\age
rates and conditions of employment to apply in the construc-
tion industry for work:Jnen of the following classifications:
Classifications Weekly Salary
Chainman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 72.00
Rodman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8;.oo
ATTORNEY GENERAL
C lassificatiolls W eekl:v Salary
Instrument Man ........................ $I02.00
Party Chief . . . . . . . . . . . . . . . . . . . . . . . . . . . I22.oo'
"I underscore the word "workmen" as the designation given
by the contracting parties to the classifications of chainman, rod-
man. instrument man and party chief.
"I call your attention to Attorney General's Opinion No.
809. elated October 9, 195 I. wherein these classifications, among
others, are discussed. * * *
"1 call your attention to the definition of the classifications
of chainman, rodman, instrument man and party chief as con-
tained in the Dictionary of Occupational Titles. Definitions of
Titles. Volume I. Second Edition, March. 1949, published by
the U. S. Bureau of Employment Security:
'CHAINMAN: Surveyor assistant. surveyor helper,
tape man, measures distance by steel tape and doth tape, sets
stakes, clears brush and trees from surYey line. etc.
'RODMAN: Surveyor assistant, surveyor helper,
handles level rod, drives stakes. clears brush and trees from
survey line. etc.
'INSTRUMENT ~ L A . N : Sets up, adjusts and operates
engineers' level, transit or other surveyor's instrument; es-
tablishes angles and elevations, secures data pertaining to
angles and elevations for construction, map making, mining
or other purposes. Keeps notes, sketches or records of
work performed or data secured. Exercises limited super-
vision or direction over chainman, rodman or other lesser
members of surveying party.
'I'-'\ RTY CHIEF: Surveyor \Yho establishes lines.
points and grades for highway construction work.'
"Do the phrases 'mechanic' and 'laborer' usee! in Section
17-4, G. C., and 'laborers, workmen and mechanics' as used in
Section I7-4a, G. C., authorize the Department of Industrial
Relations to ascertain and determine the prevailing rates of wages
for persons classified as :
I. Chairman.
2. Rodman.
3 Instrument Man.
4 Party Chief."
Section 4I I5.04, Revised Code, Section 17-4, G. C., reads m part,
as follows:
''Every public authority authorized to contract for or con-
struct with its own forces a public improvement, before adver-
570
OPINIONS
tlsmg for bids or undertaking such construction with its own
forces, shall have the department of industrial relations determine
the prevailing rates of wages of mechanics and laborers for the
class of work called for by the public improvement, in the
locality where .the work is to be performed * * * ."
(Emphasis added.)
Section 4II5.05, Revised Code, Section 17-4a, G. C., reads in part
as follows :
"The wages to be paid for a legal day's work, as prescribed
in section 4II5.04 of the Revised Code, to laborers, workmen, or
mechanics upon public works shall not be less than the wages
paid in the same trade or occupation in the locality where such
public work is being performed, under collective agreements or
understanding, between bona fide organizations of labor and
employers, at the date a contract is made. * * *"
(Emphasis added.)
It may be noted that in the first of the above quoted sections the
legislature has used the words "mechanics and laborers," whereas in the
second it has used the words "laborers, workmen or mechanics." I have
no doubt that bol'h sections contemplate the same classes. As will hereafter
be shown, it would appear that the word "workmen" might include both
of the other named classes.
Your letter refers .to my former opinion No. 8og, Opinions of the
Attorney General for I95I, page sSo. The syllabus of that opinion is as
follows:
"The phrase 'mechanic and laborer' as used in Section 17-4.
General Code, and the phrase, 'laborers, workmen and mechanics'
as used in Section 17-4a, General Code, do not authorize the
Department of Industrial Relations to determine the prevailing
rate of wages of technical and professional engineers in connec-
tion with work on public improvements."
That opinion was rendered in answer to the following question:
"Does the phrase 'mechanics and laborers' as used in Section
17-4, G. C., authorize the Department of Industrial Relations to
ascertain and determine .the prevailing rate of wages for technical
and professional engineers as classified in the schedule above re-
ferred to?"
It is obvious that I had no occasiOn m that opinion to ascertain the
precise duties and determine the correct classification of the four em-
ployes to whom your present inquiry is directed. You now ask that I
ATTORNEY GENERAL
571
determine specifically whether the following employes of a surveymg
party, to wit, chainman, rodman, instrument man and party chief, are
included in the phrase "mechanics and larborers", as used in Section
4II5.04, Revised Code, Section 17-4, G. C, and the phrase ''laborers,
workmen or mechanics" as used in Section 4115.05, Revised Code, Sec-
tion 17-4, G. C, and whether those sections authorize and require your
department to ascertain the prevailing rates of wages for chainman, rod-
man; instrument man and party chief.
The answer to this question makes it necessary to determine the
proper classification of the four employes named in your letter, and also
to determine the legal significance of the words, "laborers, workmen and
mechanics," as used in the statutes from which I have quoted.
I note the definitions which you quote in your letter from the "Dic-
tionary of Occupational Titles, Definitions of Titles, Volume I, Second
Edition, March, 1949,'' published by the United States Bureau of Em-
ployment Security. I note further that these definitions as contained in
your letter are not the full definitions set forth in the publication referred
to, and for purposes of clarity I set out here the full text of the same:
"RODMAN: Survevor assistant; surveyor helper. Holds
level rod or stadia rod at .points designated by Instrument Man
(profess. & kin.) or Surveyor for purposes of establishing or
obtaining the elevation of those points. Reads rod and calls out
readings to Note Keeper or Surveyor. Marks points with eleva-
tion or an identifying mark. Carries and sets stakes if this is
not done by Stakeman. Clears brush and trees from survey
line if this is not done by Axman, Surveying. Locates points of
established elevations with reference to other points by making
measurements between the points. Performs other duties relat-
ing to surveying work as directed by Surveyor. The duties of
this worker and those of Chainman, Surveying are interchange-
a!ble in most surveying parties.
"CHAINMAN, SURVEYING-Surveyor assistant; sur-
veyor helper; tapeman, Measures distances as directed by Sur-
veyor, using steel tape, cloth tape, or surveyor's chain. Marks
measuring points with keel (marking chalk), scratches, tacks,
or stakes. Carries and sets stakes, if this is not done by Stake-
man. Cut and clears brush and trees from survey line, if this
is not done by Axman, Surveying. Performs other duties re-
-lating to surveying work as .directed by Surveyor. The men
work in pairs, the head chainman holding the advanced end of
tape and establishing the most advanced measuring point, while
572
OPINIONS
the rear chainman holds the rear end of tape at last esta:blished
measuring point. These duties and .those of Rodman are inter-
changeable in most survey parties.
"INSTRUMENT MAN-Sets up, adjusts, and operates
an alidade, engineer's level, transit, and other surveying instru-
ments to establish angles and elevations, or to secure data pertain-
ing to angles and elevations for construction map making, mining,
or other purposes. Keeps notes, sketches, and records of work
performed or data secured (Note Keeper). Exercises limited
supervision and direction over Chainman, Surveying: Rodman
(any incl.) .: and lesser members of survey party. Is frequently
.the Surveyor, has full supervision over other members of the
surveying party, and is responsible for the quality of work clone.
May perform duties of Chainman, Surveying.
"PARTY CHIBF-SURVEYOR-Chief of party; party
chief. Supervises, directs, and is responsible for the accuracy
of the work of an engineering survey party engaged in deter-
mining the exact location and measurements of points, elevations,
lines, areas, ancl contours on the earth's surface for purposes of
securing data for construction, map making, Janel valuation,
mining, or other purposes. Calculates in formation neeclecl to
conduct survey from notes, maps, cleecls, or other records. Keeps
accurate notes, recDrcls, and sketches of work performed or data
secured. Verifies by calculations the accuracy of survey data
secured. Adjusts surveyirig instruments to keep them accurate,
or oversees the adjustments (Instrument Man) as a regular part
of his duties. Different branches and types of surveying require
special techniques gained through experience or trammg and
Surveyors are designated by title according to the type of sur-
veying work performed."
Here, "party chief" is treated as synonymous with "surveyor," who
1s certainly not a laborer, workman or mechanic, but rather the head of
a surveymg crew.
There have been furnished to me affidavits of several registered
professional engineers and surveyors, all with many years of practical
expenence, describing the character of work required of these several
employes.
Typical of these statements I quote from the affidavit of one:
"Roclman, Chainman, Instrument men and Chiefs of Party
are usually employed as a crew, each one of whom must be
familiar with the job of transferring land measurements to
notes for the use of designers and then transferring the finished
ATTORNEY GENERAL
designs to .the ground for construction purposes. Each member
of the crew must exercise judgment and know basic principles
of survey, design and construction. There are many different
phases to this work, such as land surveying, taking topography,
making location surveys, and lay-out work for construction. In
these several operations the various positions become critical at
times because of the accuracy required. For instance in land sur-
veying it is not unusual for a head Chainman to be a professional
man. In taking topography the Rodman must know what points
on the ground it is necessary to reflect 'by measurement and
elevation in order to secure a contour map projection. The
Instrument man likewise must know what angles it is necessary
to turn, where his base lines are located and have some knowl-
edge of astronomy. In fact, each member of the crew acts as
an assistant surveyor. There are incidental jobs of a manual
nature which may be performed by a member of the group, such
as carrying stakes, driving stakes, brushing out a line, etc.
However, if any one o these tasks becomes arduous or time
consuming, it is normal practice to hire laborers to do
the work * * *
"Affiant further says that historically the duties of Rodman
and Chainman have been considered to be of a professional
nature and, therefore, in most instances these positions are
filled with apprentice engineers or those people interested in
eventually obtaining the right to practice as a professional en-
gineer."
The others fully bear out his statement.
573
In my former opinion, to which reference has been made, a number
of cases were cited indicating the view of the courts as to the definition
of the terms "laborer," "workmen" and "mechanic."
Referring particularly to "workman," it was said in Cohen v. Rosal-
sky, 246 1\'.Y.S., 299, that a "workman is one employed in manual labor,
skilled or unskilled, an artificer, mechanic or artisan." To like effect,
Railway Company v. Wallace, 38 Okla., 233; State v. Ottawa, 84 Kan.
roo; 71 C. J., 176.
Many other cases might be cited bearing on the same subject. Among
others I note the case of Sim v. State, 254 N.Y.S., rso, in which the
court held that an inspector of engineering work was not a laborer or
workman within the meaning of the statute authorizing claims against
the state for failure to pay prevailing rates of wages. In the course of
the opinion, the court said that the fact that this employe sometimes per-
formed manual labor in connection with his work did not change the
574
OPINIONS
general nature of his employment, which was of a professional character.
In the case of Railway Company v. Leuffer, 84 Pa., 168, the court dis-
tinguished between employes who were engaged in engineering work and
those denominated as laborers or workmen. That was a case where the
law gave the workmen and laborers a lien on the property of a railroad
for their wages. The court, in the course of its opinion said :
"When we speak of the laboring or working classes, we
certainly do not intend to include therein persons like civil en-
gineers, the value of whose services is rather in their scientific
than in their physical ability. vVe therefore intend those who are
engaged not in head but in hand work, and who depend upon
such hand work for their living."
Many like cases are cited in "vVords and Phrases." The gist of all
these cases is to the effect that the terms "laborer," '\.,orkman," and
"mechanic" include those whose work depends on strength of body or
skill of hands, and exclude those whose work is of a more or less pro-
fessional character.
Further light is thrown upon the proper classification of the employes
referred to in your request by the manual of the Ohio Society of Pro-
fessional Engineers, where reference is made to "engineers in training"
who occupy in the surveying party such positions as chainman, rodman,
and instrument man. Among the minimum qualifications for entrance
into what is called "Grade I - Engineer in Training," are that the candi-
date must be a graduate of an accredited senior high school, and must
have the "ability to carry out written and oral directions and some
knowledge of engineering terms and equipment." As examples of the
work performed by these, the following is given:
"Under immediate supervision, to assist in engineering work
by performing simple technical tasks and manual work in office.
field or laboratory as assigned ; to perform the usual work of a
rodman, chainman, tracer or junior laboratory assistant.
"Assisting in a survey party as rodman or chainman; acting
as weighmaster or load checker; plotting sections, reducing
notes, computing earthwork sheets, checking areas, and checking
such work done by others; making tracings of drawings, plans.
etc., made :by others; working at laboratory with materials; or
generally doing work of equal difficulty and responsibility."
In the light of the above considerations I must conclude that the
generally accepted qualifications and duties of rodman, chainman, instru-
ATTORNEY GENERAL
575
ment man and party chief make them essential parts of an engineering
or surveying crew, that their duties are professional in nature, and that
they are not properly classed as laborers, workmen or mechanics within
the purview of the laws relating to prevailing wages and the duties of
your department in fixing the scale of such wages.
It should also 'be noted that the statutes aJbove quoted refer only to
employes who are to be used in the "construction" of a public improve-
ment. The work of a surveying crew would appear to be preliminary not
only to "construction" but in many cases even to the preparation of
plans for a contemplated improvement. It may readily happen that the
survey and plans which follow will develop reasons which cause the
public authority to decide not to construct the proposed improvement.
Therefore, it does not appear that this preliminary work, or the employes
engaged in it could be brought within the purview of those statutes.
Accordingly, in specific answer to the question submitted, you are
advised that in my opinion the phrases "mechanics ando laborers," used
in Section 4II5.04, Revised Code, Section 17-4, G. C., and "laborers,
workmen or mechanics" used in Section 41 rs.os, Revised Code, Section
17-42, G. C., do not authorize the department of industrial relations to
ascertain and determine the prevailing rates of wages for the following
members of a surveying or engineering party, to wit, chainman, rodman,
instrument man and party chief.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPINIONS
MUTUAL PROTECTIVE ASSOCIATIONS:
1. AUTHORIZED TO COLLECT INITIAL CHARGE ON EACH
CONTRACT OF INSURANCE-THE AMOUNT TO BE IN
ACCORDANCE WITH IT1S CONSTITUTION AND BY-LAWS
PLUS AN AMOUNT NOT IN EXCESS OF ONE-TENTH OF
ONE PER CENT OF AMOUNT OF CONTRACT OF INSUR-
ANCE-TOTAL CHARGE NOT TO EXCEED FIFTEEN DOL-
LARS-SECTIONS 3939.01 R>C, 9593 GC.
2. ASSOCIATIONS FORMED UNDER SECTIONS 3939.01 RC,
9593 GC, AUTHORIZED TO INSURE DWELLINGS OTHER
THAN DETACHED FARM DWELLINGS.
3 MEMBER OF ASSOCIATION-POLICY CANCELLED-NO
RIGHT TO SHARE IN AS60CIATION'S SURPLUS AT TIME
OF CANCELLATION.
4 ASSOCIATIONS FORMED UNDER SECTION 3939.01 RC,
9593 GC, MAY INSURE AGAINST LOSS PROXIMATELY
RESULTING FROM FIRIE.
SYLLABUS:
1. Mutual protective associations are authorized by Section 3939.01, Revised
Code, Section 9593, G.C., to collect an initial charge, on each contract of insurance,
being an amount in accordance with its constitution and by-laws, plus an amount not
in excess of one-tenth of one per cent of the amount of the contract of insurance, which
total charge shall never exceed fifteen dollars.
2. Mutual protective associations, formed under Section 3939.01, Revised Code,
9593, G.C, are unauthorized to insure dwellings other than detached farm dwellings.
3. A member of a mutual protective association, whose policy has been cancelled
by the association, has no right to share in the association's surplus at the time of
cancellation.
4. .Mutual protective associations, formed under Section 3939.01, Revised Code,
Section 9593, G.C., may insure against loss resulting proximately from fire.
Columbus, Ohio, November 3, 1953
Hon. Walter A. Robinson, Superintendent of Insurance
Columbus, Ohio
Dear Sir:
I have before me your request for my opinion which reads as foHows:
"A number of questions have arisen regarding the proper
interpretation of Section 9593 and following sections of the Gen-
ATTORNEY GENERAL
era! Code of Ohio relating to mutual protective assoc1atwns.
Accordingly, we would appreciate your opinion on the following
questions:
"I. Section 9593 provides in part as follows :
'Any association organized under the provisions of this
section may collect an mitial charge, on each contract of
insurance, in accordance with its constitution and by-laws
and in addition thereto an amount not in excess of one-tenth
( 1/10) of one per cent of the amount of each individual
contract of insurance; provided, however, that the total
amount of such charges shall not exceed the sum of fifteen
($rs.oo) dollars.'
"a. Does the statute mean that the initial charge plus all
other charges shall not exceed $15, or that all charges excluding
the initial charge shall not exceed $15?
"b. Are such associations authorized to make charges for
reappraising property and rewriting policies or are the charges
authorized by the last paragraph of 5:Jection 9593 to be assessed
only once when a person becomes a member of the association,
and mu'st all subsequent expense be collected through assess-
ments?
"c. In this connection, please also advise whether, if
the amount of coverage under a particular policy is increased
sometime after the policy is written, additional charges may
be levied against the member holding the policy and if so,
whether the total charges may exceed $15.
"d. Also, if the association cancels a policy upon which
it .has collected its charges and immediately writes a new
policy covering the same property, may the charges set forth
in the .Jast paragraph of Section 9593 again be made?
"2. Vvould it be proper for an association to refuse to issue
policies affording coverage in excess of $rs,ooo, but to issue
separate policies aggregating over $rs,ooo and collect up to $15
in initial charges on each policy?
"3 Section 9593 .provides that mutual protective associa-
tions may insure 'detached dwellings.' Does t:his mean that such
associations may insure dwellings other than farm dwellings?
"4. If the association cancels a policy issued to a member
for reasons other than failure to pay assessments or to abide by
the provisions of the contract, does the association have any
responsibility to pay to the member, whose policy has been can-
celed by the association, his pro rata share of the association's
surplus at the time of cancellation?
"5 Is it proper under the provisions of Section 9593 for
577
578 OPINIONS
an assoCiatiOn to insure against loss by (a) removal from
premises endangered by fire, (b) acts of destruction at the time
of and for the purpose of preventing the spread of fire?"
Section 9593, General Code, of which you speak, has now become
Section 3939-0I, Revised Code. Section 3939.01, Revised Code, which
deals with the organization of mutual protective associations, the scope
of t!heir business, and limitation on charges which such associations may
make, reads as follows :
"Any number of persons of lawful age, not >less than ten in
number, owning insumble property in this state, may associate
themselves together for the purpose of insuring eaoh other against
}oss on property in this state caused by fire and lightning, smoke,
smudge, cyclones, tornadoes or wind storms, hail storms, explo-
sion except explosion by steam boilers or fly-wheels, riot, riot
attending a stnike, civil commotion, and falling or moving bodies
except loss or damage to motor vehicles caused by collision, and
also to assess upon and collect from each other sums of money,
lfrom time to time, as are necessary to pay expenses and losses
which occur from such causes. The assessment and collection of
such sums of money shall he regulated by the constitution and
by-laws of the crssociation, which shall require such assessments
to be made directly and specifically upon the members, and to
be paid directly and specifically by them and not out of any fund
deposited 'With the association or other trustee in anticipation of
assessments, nor in a11y other manner except rhat any such asso-
ciation may borrow money for the payment of losses and ex-
penses, but such loans shall not be made for a longer period than
the collection of their next assessment. Such association may also
accumulate a surplus ,from [ts as'sessments not exceeding five
dollars on each one thousand dollars of insurance in force, such
surplus to be used in paying losses and expenses that occur.
Such surplus, if invested, shall be under sections 3925.05 and
3925.08 of the Revised Code. Such associations may only insure
farm buildings, detached dwellings and outbuildings, school
houses, churches, township build[ngs, grange buildings, farm
implements, farm products, live stock, household goods, furniture,
pleasure and utility vehicles, motor vehicles, steam, gas, gasoline
oil engines, motor trucks, tractors, electric motors, electric appli-
ances, lighting systems and other similar property except prop-
erty used exclusively for commercial or industrial purposes.
"Such property may ;be classified only for the purpose of
determining and levying assessments and such property may be
located within or without the limits of any municipal corporat,ion.
An association whose membership is restricted to persons en-
gaged in any particular trade or occupation, and whose insurance
is confined in any particular kind or description of property, may
ATTORNEY GENERAL
insure property located in any county in this state which is used
exclusively for such commercial or industrial purposes. An asso-
ciation whose membership is so restricted and whose insurance
is so confined and which insures such property may also accumu-
late from its assessments a surplus not exceeding five times the
average yearly losses and expenses of the association, as shown
by the reports of the association to the division of insurance for
the preceding three years. Such surplus shall be used in paying
losses and expenses that may occur and, if invested, shall be
under sections 3925.05 and 3925.o8 of the Revised Code.
"Any association organized under this section may collect
an initial charge on each contract of insurance in accordance
with its constitution and by-laws, and in addition thereto an
amount not in excess of one-tenth of one per cent of the amount
of each indi,vidual contract of insurance, provided that the total
amount of such charges shall not exceed fifteen dollars."
579
Your first two numbered questions require an interpretation of
the last paragraph of Section 3939-0I, Revised Code, quoted above. This
paragraph authorizes certain cha.rges to be made by the association on
"each contract of insurance."
The .first question in effect is this: Does the last paragraph of Sec-
tion 3939.0I, Revised Code, mean that the initial charge in accordance
with the association's constitution and by-laws plus the amount not in
excess of one-tenth of "One per cent of the amount of each contract of
insurance shall not togebher exceed the sum of fifteen ($I5.00) doHars,
or does the proviso mean that the one-tenth of one per cent figure alone
may not be more than fifteen ($I 5.00) dollars?
It is my opinion that the fifteen dollar limitation means that the sum
total of charges on a contract of insurance may not exceed fifteen dollars.
The proviso as found in Section 9593, General Code, follows a semicolon
and states: "provided, however, that the total amount of such charges shall
not exceed the sum of fifteen ( $15.00) dollars." The provision, therefore,
1111ust lbe deemed to qualify or modify the entire paragraph dealing with
charges. It will also be observed that the word "charges" is used, signify-
ing at least two amounts. Section 9593, General Code, was not amended
in the session of the General Assembly just concluded. The section did,
of course, come in for rC'Vision, as did all the sections of the General Code,
upon the adoption of the new "Revised Code,'' effective October I, I953
This revision, however, was not intended to change the legal effect or
meaning of the General Code section as it has previously read. The revi-
58o
OPINIONS
sion was intended essentially as a streamlining of Ohio's laws, and I note
that the chief revisions made in Section 9j93, General Code, are punctua-
tional in nature, and to the extent that any of these changes might deviate
from the legal meaning attributable to Section 9593, General Code, the
previous text Section 9593, G. C., must prevail.
The next question raised asks whether such associations are author-
ized to make charges for reappraising and rewriting policies or are the
charges authorized by the last paragraph of Section 3939.0I, Revised
G:Jde, to 1be assessed only once when a person becomes a member of the
association, with all subsequent expense to be collected through assess-
ments upon the members?
It must be recognized that there is no specific statutory authoriza-
tion to make charges for reappraising property and rewriting policies.
Unless it can be said that the one-tenth of one per cent charge may be
made at any time and need not necessarily 1be charged initially, there could
be no statutory basis for a charge sought to be collected after the con-
tract of insurance has been entered into, for the purpose of meeting the
expense of reappraising and rewriting the policy. I assume that by reap-
praising property already insured, and increasing or decreasing the
amount of coverage only, no ne--& contract of insurance is effected.
On the surface of Section 3939.0I, Revised Code, formerly Section
9593, G. C., the legislative intent is at best undarified as to whether the
one-tenth of one percent charge must be made initially, alongside the
amount charged in accordance with the by-laws, or whether it may be
charged at a later date. After speaking of an initial charge, in accordance
with the constitution and by-laws, the legislature which enacted Section
9593, General Code, went on and in the same breath, without even insert-
ing a oomma, allowed "in addition thereto an amount not in excess of
one-tenth of one per cent * * *." Taking into consideration the nature of
these associations as well as other portions of Section 3939.0I, Revised
Code, I must condude that all charges must be made initially if they are
going to be charged at all. Thus, it is my opinion that the .phrase "and in
addition thereto" does not purport to authorize a charge made subsequent
to the uniform charge, but rather it means that the association may make
an initial charge on the contract which shall consist of (a) the uniform
or flat fee stipulated in the constitution or by-laws plus ("b) an amount
not in excess of one-tenth of one per cent of the amount of the individual
ATTORNEY GENERAL
58r
contract of insurance. The two figures, taken together, may not exceed
fifteen dollars.
The charges made by an association in accordance with its constitu-
tion and by-laws are generally understood as constituting the member-
ship fee of the member taking out insurance in the association. It does not
necessarily follow, however, that the other charge, (the one-tenth of one
per cent,) is therefore permitted to be made at any time. It would not be
wbsurd at all for the legislature to break the initial charge down into two
categories, i.e., a flat fee charged every member pursuant to the by-laws
and another charge bearing some correlation to the amount of insurance
coverage desired. It is quite possible that the one-tenth of one per cent
fee is provided for in order to make allowance for possible increased
exlpense in appraising a sizable risk as opposed to a small risk.
It will be recalled that in the earlier portion of Section 3939.01,
Revised Code, the legislature has provided that the method of operation
is "to assess upon and collect from each other sums of money, from time
to time, as are necessary to pay expenses and losses." Again, in the same
section the association is authorized to borrow money "for the payment
of losses and eNpenses." In the same statute I also find a provision to the
effect that surplus is to be used "in paying losses and expenses that
may occur.''
These provisions, therefore, indicate that expenses incidental to and
arising out of the actual conduct ofthe business of insurance are to be met
out of assessment upon a:ll the members, or out of borrowed funds or sur-
plus. There is no statutory definition of the terms "expenses" and ''inci-
dental purposes." A mere reappraisal of the member's property and the
consequent increasing or decreasing of the amount of coverage under the
policy would not necessarily work a cancellation of the existing contract.
It would appear therefore that the expense of reappraising the member's
pmperty may not be met by the association's collecting an additional
charge from the member already insured, but rather such an expense
should be classified as an incidental expense of the association itself, to be
met alongside other reappraisals, by levying an assessment from time to
time on all memibers. It is my opinion that the legislature, in enacting
the paragraph of Section 3939.01, Revised Code, dealing with charges, did
not intend to. open the door to frequent or numerous charges ; this is to
say that by reading Section 3939.01, Revised Code in its entirety, it be-
582
OPINIONS
comes apparent that the charges which may be collected are in reality
rather limited and are intended as initial charges on each contract of insur-
ance.
Question number "d" asks in effect whether the association, upon
cancellation of an existing policy and the prompt rewriting of a new
policy which is in all material respects identical with the cancelled one,
may again make the charges hy Section 3939.01, Revised Code.
In this area it is impossible to lay down an automatic and fixed rule
of law. The most that can be said is that in those instances wherein the
cancellation is made, solely as a means toward justifiying the coHection of
an additional fifteen dollars upon a purported new contract, such a further
charge is improper. There is a substantial doubt in my mind as to
whether -the cancellation of one policy and the writing of a new policy
essentially identical in coverage, effects a new "contract of insurance"
w.ithin the meaning of Section 3939.01, Revised Code. Tearing up an
existing policy only to hand the insured another policy which is in all
material respects identical with the destroyed policy does not necessarily
work a new contract.
Question number 2 asks whether it would "be proper for an associa-
tion to refuse to issue policies affording coverage in excess of $15,000, but
to issue separate policies aggregating over $15,000 and collect up to
$r 5 in initial charges on each policy?" I presume you have in mind
a situation where a member desires insurance coverage amounting say, to
$6o,ooo. If the association were to stay within the authorized charges,
it could charge only fifteen dollars which is the maximum fee permitted
on any contract. The association couold not charge the one-tenth of one
per cent charge, .for that would amount to sixty dollars. Thus, the asso-
ciation determines that it will not issue policies in an amount greater than
fifteen thousand dollars, which is the highest coverage upon which the
association can realize the permissible fifteen dollar charge while using
the one-tenth of one per cent rate. The association then issues to the
member four policies, each in the amount of fifteen thousand dollars, and
a charge of fifteen dollars is collected on. each policy, thus netting sixty
dollars in total charges.
It is my opinion that the 'legislature has determined that no matter
how -great the coverage may be, the maximum charge is never to exceed
fifteen dollars. If, in the hypothetical situation above, the association's
ATTORNEY :GENERAL
division of the one risk into four separate risks, is a mere subterfuge and
is designed to circumvent the state law relating to permissible charges,
then the repeated charges of fifteen dol'lars are improper. That is to say,
if each policy reads substantially the same, each insuring the same
property, with oll'ly the aggregate amount of coverage ($6o,ooo) split up
and apportioned among the policies, then it could be said that the four
policies together constitute the contract of insurance, in which event the
association may charge but one fifteen dollars. This question, like the
previous ones, can best be answered by remarking that the association must
act in good faith in its dealings with its members. If the member is to
successfully resist collection of more than one fifteen dollar charge, the
claim would necessarily be 1based upon the proposition that no new con-
tract of insurance has been effected; or in the case of several policies on
the same property, that there is but one contract of insurance in effect.
It should be borne in mind that the charges allowed by Section
3939.or, Revised Code, are not the true consideration furnished by the
member in exchange for the insurance coverage he obtains, since the charge
is not in the nature of a premium. A member of a mutual protective asso-
ciation does not pay a level annual premium for his insurance protection.
In becoming a member, and thereby an insured as wel'l, the member in
effect exchanges promises with all the other members that in the event
of loss occurring to any of them, each agrees to be bound through an
assessment, to pay his or her proportionate share of the loss. This is the
essence of doing an insurance business upon the assessment plan.
I come now to your third numbered question which inquires whether
mutual protective associations may insure dweHings other than farm
dwellings.
In this respect I would direct your attention to the following language
found in Section 3939.0!, Revised Code:
"* * * Such association ma.y only insure fa:rm buildings, de-
tached dwellings, and out-buildings, school houses, churches,
township buildings, grange buildings, farm implements, farm
products, live stock, household goods, furniture, pleasure and
utility vehicles, motor vehicles, steam, gas, gasoline and oil en-
gines, motor trucks, tractors, electric motors, electric appliances,
_lighting systems and other similar property except property used
exclusively for commercial or industrial purposes.
OPINIONS
"Such property may be classified only for the purpose of de-
termining and levying assessments and such property may be
located within or without the limits of any municipal Corpora-
tion." (Emphasis added.)
The question IS whether the legislature in employing the term
"detached dwellings and outbuildings" intended to authorize mutual pro-
tective associations to insure dwellings in general, (including urban, sub-
urban and fam1,) or whether the term is limited to farm dwellings.
It should be recognized that the statute quoted, supra, is susceptible
to two interpretations. Though the legislature initially enumerates "farm"
buildings as insurable property, the next category is "detached dwellings
and outbuildings." One possible approach to the problem is that since
the legislature specifically inserted the word "farm" before the word
"buildings," and it did not employ the adjective "farm'' in its enumera-
tion of "detached dwellings and outbuildings," the legislature therefore
did not intend to limit mutual protective associations in their insuring of
dwellings to those only which fall within the classification of farm dwell-
ings. On the other hand, the statute might just as readily be read in such
a manner that the word "farm" modifies not only "buildings" but "de-
tached dwellings and outbuildings" as well.
lt is stated in Sutherland, Statutory Construction, Vol. II, Sec. 4908,
page 393, that :
"In case the legislative intent is not clear, the meaning of
doubtful words may be determined by reference to their associa-
tion with other associated words and phrases, * * * But this is
so, only if the result is consistent with the legislative intent, for
the maxim noscitur a sociis is a mere guide to legislative intent."
Applying this rule of statutory construction to the instant question, I
am of the opinion that the legislature did not intend to permit mutual pro-
ective associations to insure dwellings other than farm dwellings. The sen-
tence in question commences with the words "farm buildings," and pro-
ceeds directly to add "detached dwellings and outbuildings." While it is
true that the enumeration contains such structures as churches and school
buildings, the remainder of the insuraJble property is farm property or
property intimately associated with farming, such as the grange hall. The
legislature doubtless meant to direct that the association is not to insure
farm dwellings unless they are detached from other farm buildings. The
ATTORNEY GENERAL
word "detached" when used in speaking of an insured building in a fire
policy, means "separate or not adjoining another building." Burleigh v.
Gebhard Fire Insurance Co., 12 Weekly Digest, 235.
It will be observed that the legislature .provided that "such property
may be located within or without the limits of any municipality." This
clause should not be interpreted as an authorization to insure urban
dwellings. Quite frequently farm dwellings are situated within the limits
of an incorporated village or torwn. It would appear that the legislative
intent was to recognize the fact that many farm dwellings are located
within municipalities, and that these dwellings may be the subject of
insurance as well as those located in a rural area.
The nature of mutual .protective associations was discussed in the
case of State ex rei. v. Manufacturers' Mutual Fire AsSIOciation, 95 Ohio
St., 145, at page 149, as follows:
"The officers are selected by the members, and the whole
scheme contemplated by the statute seems to be an association of
rather a local nature, one in which the members are likely to be
more or less acquainted with the standing of each other, and not
scattered all over the country or the world. The success and sol-
vency of such an association depends in a large measure upon the
standing and responsibility of its members, the promptness with
which they pay their assessments, and confidence which each has
t:hat all the others will in the future continue to comply with the
requirements of the association."
Thus, the widespread insuring of residences in large metropolitan
centers is a concept totally foreign to the nature and origin of these asso-
ciations.
The fourth question asks whether the association has any responsl-
bility to .pay to a member whose policy has been cancelled by the associa-
tion for reasons other t:han failure to pay assessments or to abide by the
provisions of the contract, his "pro rata share of the association's sur-
plus at the time of cancellation." I am uncertain as to just what specific
grounds for cancellation are comprehended by your question. Certainly
there is no provision in the code requiring the association to pay a mem-
ber his pro rata share of the association's surplus at t:he time of cancella-
titm of the member's policy.
It should be !borne in mind that mutual protective associations are
non-profit organizations. The members are not stockholders. Each mem-
OPINIONS
ber is both an insurer and an insured, i.e. each agrees to pay his propor-
tionate share of 'losses occurring to other members during his member-
ship. The surplus is accumulated for the pur.pose of meeting expenses and
losses. In this regard I would call to your attention the case of State ex
rei. v. Monitor Fire Association, 42 'Ohio St., 5-55 The fourth paragraph
of the syllabus reads as follows:
"These sections (mutual protective associations) do not
authorize the organization of cor.porations with a view to profit
to its officers or members; therefore any plan or scheme by which
profits are made or divided is unauthorized."
The Ohio Supreme Court, in referring to Section 3686 et seq., Revised
Statutes, the predecessor of Section 9593, G.C. which has, in turn, be-
come Section 3939.01, R.C., said at page 564:
"These sections, however, do place a specific limitation on
the powers of such corporations. So far as these limitations apply
to the case at bar we wi'll state them.
"1. They do not authorize the organization of a corporation
having a capital stock, and its me1nbers are not stockholders in
that sense which subjects them to individual liability to an
amount equal to his stock in addition thereto. 2. Such mrpora-
tions cannot lbe organized with a view to profit. The law imposes
a trust upon the officers for the mutual benefit of all the members,
and permits insurance, the losses to be paid by specific assess-
ments upon members. They may assess and collect upon and
from each other such sums of money, from time to time, as may
be necessary for incidental purposes, as well as losses 'which
occur to its members."
As was noted earlier in this opinion, Section 3939.01, Revised Code,
provides that surplus shall be used for the payment of losses.
It is therefore my opini.on that a member whose policy is cancelled for
any reason (save dissolution,) has no claim upon the surplus of the asso-
ciation, since the association is a nonprofit organization organized only
to meet losses sustained by its members. I might add that one whose
policy has been cancelled is no longer a member of the association and
he cannot be assessed to pay a loss which did not occur during his mem-
bership.
Your last question inquires whether it is proper under the provisions
of Section 3939.01, Revised Code, to insure against loss by " (a) removal
ATTORNEY GENERAL
from premises endangered !by rfi.re" and "(b) acts of destruction at the
time of and for the purpose of preventing the spread of fire."
In this regard Section 3939.01, Revised Code, states only that the
association may insure "against loss on property in this state ca.used by
fire * * *.'' There is no elaboration by the legislature as to what consti-
tutes a fire loss.
The legislature omits any reference to "indirect" or "direct" causa-
tion. It is my opinion that these associations are authorized to insure
property against loss resulting naturailly or proximately from fire. The
proximate cause of a result is that which in a natural and continued se-
q.uence produces the result, and without which it would not have happened.
Hocking VaHey Co. v. Helber, 91 Ohio St., 231. Hence, it would seem
that the insurer mi.ght insure against a loss produced either immediately
by fire or by fire setting other events in motion, all of which constitute
a natural and continuous chain of events, each having a close causal con-
nection \Vith its immediate predecessor. The loss is caused as the natural
and probable result of the fire. Hence your questions concerning insur-
ance against loss by "removal from premises endangered by .fire" and
insurance against the risk of loss to property by reason of t:he destruction
of same for the purpose of preventing the spread of fire, cannot be
answered categorically. The association may insure against losses result-
ing proximately fr.om fire.
Parenthetically, I might add that the powers of orher fire insurance
companies are found in Section 3925.34, Revised Code, Section 9556, G.C.
That section commences :
"All! companies, organized or admitted to do business for
the .purpose of insuring against loss or damage by fire, may in-
sure against any of the following: * * *
" (c) All direct, indirect, or consequential loss or damage
to dwelling houses, stores, and all kinds of buildings and house-
hold furniture * * * ."
It is my opinion that this section is not the measure of the powers of
mutual protective associations. These associations derive t:heir powers
from Section 3939.01, Revised Code, which lam is peculiar to these asso-
ciations, and which law must be read as the exclusive measure of their
powers. It will 'be noted that section 3925.34, Revised Code, supra,
authorizes fire coverage on certain structures (such as "stores") which
s88
OPINIONS
are not included in the enumeration of insured property found in Section
3939.0I, Revised Code. It will also be noted that Section 392534, supra,
authorizes the fire companies to insure against aH "direct, indirect, or
consequential loss or damage." Such language is absent from the mutual
protective association section. I do not believe, however, that the ab-
sence of similar language from Section 3939.0I, Revised Code, indicates
that these associations are restricted to insuring property against loss re-
sUJ!ting solely from an actual burning. Within the mutual protective section
itself is the only true answer to your question. I reiterate that it is but
a question of fact, i.e., did the loss result proximately from fire?
The addition to Section 9556, General Code, now Section 3925.34,
R.C., of the language regarding "direct, indirect, or consequential loss"
was accomplished in I929, 113 Ohio Laws, 54 As disclosed by the title,
this was an act "to amend section 9556 of the General Code, relative to
insurance companies other than life and mutual protective associations."
The title indicates that the legislature did not consider its amendment to
Section 9556, General Code, as affecting the powers of mutual protective
associations, which associations, I understand, have never been considered
by the Division of Insurance as deriving any fire underwriting pmvers from
Section 9556, General Code. I have some doubt as to whether the addition
of the words "direct, indirect, and consequential loss" means anything more
than the words "caused by fire." The chief object of the amendment in
1929 was to enlarge the list of insurable property and also to enlarge the
powers to include loss by hail, flood, earthquake, riot, etc.
Accordingly, it is my opinion that:
I. Mutual protective associations are authorized by Section 3939.0I,
Revised Code, Section 9593, G.C., to coJlect an initial charge on each
contract of insurance, being an amount in accordance with its constitu-
tion and by-lwws, plus an amount not in excess of one-tenth of one per
cent of the amount of the contract of insurance, which total charge shall
never exceed fifteen dollars.
2. Mutual protective associations, formed under Section 3939.01,
Revised Code, Section 9593, G.C., are unauthorized to insure dwellings
other than detached farm dwellings.
3. A member of a mutual protective association, whose policy has
been cancelled has no right to share in the association's surplus at the
time of cancellation.
ATTORNEY GENERAL
4 Mutual protective associations, formed under Section 3939.01,
Revised Code, Section 9593, G.C., may insure against loss resulting prox-
imately from fire.
3209
Respectfully,
c. WILLIAM O'NEILL
Attorney General.
CHILDREN IN PRIVATE OR PAROCHIAL SCHOOIJS-HOURS
OF TERM AND ATTENDANCE-DETERMINED BY BOARD
OF EDUCATION-TERM MUST BE MINIMUM OF THIRTY-
TWO WEEKS-BOARD OF EDUCATION MAY DETERMINE IF
IT SHOULD BE FOR LONGER TERM-PENALTY IMPOSED
ON PARENT OR GUARDIAN-FAILURE TO SEND CHILD TO
SCHOOL FOR REQUIRED TERM - STATUS, ADDITIONAL
PERIOD WHICH BOARD MAY PRESCRlBE - SECTIONS
3321.04, 3321.07, 3321.38 RC, 4849-3, 4849-6, I2974 GC.
SYLLABUS:
Under the provisions of Section 3321.07, Revised Code, Section 4849-6, General
Code. the General Assembly has provided that the hours and term of attendance
required for children in private or parochial schools must be equivalent to the hours
and term of attendance required of children in the public schools of the district, as
determined by the board of education, which term must be a minimum of thirty-two
weeks, as provided by Section 3321.04, Revised Code, Section 4849-3, General Code,
but may be for such longer term as the board of education may determine. However,
the provision of Section 3321.38, Revised Code, Section 12974, General Code, imposing
a penalty on the parent or guardian who fails to send his child to school for the
required term, only embraces the provisions of Section 3321.04, Revised Code, and
does not include the additional period which a board of education may prescribe under
the provisions of Section 3321.07, Revised Code.
Columlbus, Ohio, November 6, I953
Hon. James W. Dinsmore, Prosecuting Attorney
Geauga County, Chardon, Ohio
Dear Sir:
I have before me your communication requesting my opinion and
reading as follows :
"A question has arisen as to the required time of attendance
in parochial school.
OPINIONS
"Section 4849-3. G. C. provides in part, as follows:
'* * * must send chilld to a public, private, or parochial
school for the full time the school attended is in session, which
shall in no event be for less than 32 weeks per school year.'
"Section 4849-6, G.C., provides in part, as follows:
' * * * and the hours and term of attendance exacted shall be
equivalent to the hours and term of attendance required of
children in the public schools of the district.'
"The term of attendance required of children in the public
schools of the district is 36 weeks, and the term of four Amish
parochial schools is of a lesser duration.
"I would like to have your opinion as to which of the two
above cited sections applies and, correspondingly, whether or
not the Amish parochial schools must provide a term of the mini-
mum 36 week duration."
At the outset, a precise delineation of the question which I will seek
to answer should ibe made. Although your question is litera1ly "whether
or not the Amish parochial schools must provide a term of the mini-
mum 36 weeks duration," the solution to that problem does not rest with
you. I believe that your inquiry must be interpreted as asking whether
the failure of the Amish parochial schools to provide a term in excess
of 3i2 weeks involves any punishable violation of the compulsory school
attendance laiWs.
The two sections to which you refer, are part of the law relating to
compulsory attendance of school pupils. Both of these sections were en-
acted as a part of the new school code of 1943. The pertinent portion of
Section 3321.04, Revised Code, formerly Section 4B49-3, General Code,
reads as fol'lows :
"Every parent, guardian, or other person having charge of
any child: of compulsory school age who is not employed under
an age and schooling certificate and who has not been detem1ined
to be incapaJble of profiting 'sulbstantially by further instruction,
must send suoh child to a public, private, or parochial school for
the fuJ,J time the school attended is in session, which shall not be
for less than thirty-two weeks per school yea.r. * * *"
(Emphasis added.)
Section 3321! .07, Revised Code, formerly Section 48.49-6, General
Code, in so far as pertinent, reads as follows:
"If any child attends upon instruction elsewhere than in a
public school such instruction shall be equivalent to the instruc-
ATTORNEY GENERAL
tion given children of like age and advance1nent in the public
schools of the district in which ,such child resides. The hours and
term of a.ttendance exacted shall be eqttivalent to the hours and
term of attendance required of children in the public school of
the district. * * *" (Emphasis added.)
59 I
The last clause of Section 3321.04, "which shall not be for less than
vhirty-two weeks per school year" corresponds with the provisions of
Section 33;13-48, which is a part of the same school code, and relates to the
powers and duties of the boards of education of the severa:l school dis-
tricts. That section reads as follOIWs:
"The board of education of each city, exempted village, and
local school district shall provide for the free education of the
youth of school age within the district under its control, at such
places as will be most convenient for the attendance of the largest
number thereof. Every day school so provided shall continue not
less than thirty-two weeks in each school year."
This section, you will note, requires every board of education to pro-
vide for the education of the youth of school age within its district, and
then m a ~ e s the mandatory .provision that every day school so provided
shall be maintained for not less than thirty-two weeks in each school year.
This provision plainly does nothing but establish a minimum term and
does not in any way restrict or limit the discretion of vhe board of edu-
cation in establishing and maintaining its schools for a longer period.
This minimum term of thirty-two weeks constitutes what is familiarly
known as an eight months school year, comprising one hundred and sixty
days, whereas a large portion of the schools throughout the state have been,
and are being maintained for a period of thirty-six weeks, which is known
as a nine months school year, comprising one hundred and eighty days.
Section 3321.07, supra, evidently recognizes the fact that schools
may ;be and frequently are continued for a longer period than thirty-two
weeks. If, therefore, in a given district a board of education has established
the one hundred and eighty day school year for its public schools, the
provision of Section 332.1.07, Revised Code, plainly has the purpose and
effect of providing that pupils who by their own choice or the choice of
their parents, are attending a private or parochial school, shall have the
same advantages and be under the same obligations as to attendance as
the pupils in public schools. There is no inconsistency, so far as I can see,
between the two sections.
592 OPINIONS
By way of side-light on the situation that has doubtless arisen in the
district to which your letter refers, and as strongly indicative of the gen-
eral legislative policy, I call attention to a change which has :been made
in the law hy the root>h General Assembly. This change is embodied in
Amendment Substitute Senate Bill No. 23, passed July 13, 1953. This
Act amends Section 3317.02, Revised Code, Section 4848-r, G.C., to
read as follows :
"Section 33<1 7.02 ( 4848- I). There shall be paid to each
school district in each calendar year an amount equal to t\venty-
five cents a ,day for not to exceed one hundred eighty days for
each pupil of school age in average daily membership in part-
time, continuation, and evening schools, and, for regular day
school, an amount equal to sixty dollars for each pupil in average
daily membership in grades one to eight, inclusive, an amount
equal to thirty dollars for each pupil five years of age or over in
average daily membership in kindergarten classes, and an amount
equal to seventy dollars for each pupil in average daily member-
ship in grades nine to twelve, inclusive, during the school year
next preceding such payments. No payment shall be made under
this section for one-teacher and two-teacher elementary schools
maintained in local school districts.
"The payment shall be made only for a school year of not
less than one hundred eighty days, inclusive of such legal school
holidays established by section 3313.63 of the Revised Code as
occurred during regular school w e ~ k s and on \vhich clays schools
were not in session; inclusive of such other days, not exceeding
two, approved by the superintendent of public instruction for the
professional meeting of teachers when such days occurred during
a regular school week and the schools were not in session ; and
inclusive of all clays that schools were not in session because of
disease epidemic, temporary circumstances rendering the build-
ings unfit for school use. Dr Dther public calamity."
(Emphasis added.)
Section 4848-r, General Code, Section 3317.02, R.C., prior to this
amendment, contained substantially the same provisions with a slightly
different twble of payments, but contained in addition, the following
sentence:
"* * * If the board Df education of any school district
maintains a school year of less than r8o clays, the payments
under this section and the amounts cmnputecl under paragraphs
(a), (:b), (c), and (cl) of section 4848-4 of the General Code
shall be such fraction of the amounts specified therein as is de-
termined by using the number of clays of the district's school year
as the enumerator, and r8o as the denominator."
ATTORNEY GENERAL
593
There it will be noted that while the foundation program payment
was based on a school year of not less than one hundred eighty days, a
provision was made giving to those schools which maintained a school
year of less extent, a proportionate allowance from the school foundation
both that provided for in that section and also the benefits provided for
by Section 4848-4. But under the amendment, school districts which
failed to provide a full one hundred and eighty clay term, would be de-
prived of any participation whatever in the foundation program. Ac-
cordingly, it would be most natural, and in fact almost compulsory for
the board of education in every school district to reform its plan so as
to come within the provision of the new law, and have a share in the
very substantial benefits of the school foundation program.
Returning to your basic inquiry, the question naturally arises as to
the extent to which the obligation which appears to be imposed upon
private and parochial schools by the statutes above quoted, may be en-
forced. The penalty for violation of the requirement that a parent or
guardian must send the child to a public, private or parochial school is
found in Section 3321.38 of the Revised Code, Section 12974, G. C.
Section 3321.38 reads as follows:
" (A) .\To parent, guardian, or other person having care
of a child of compubory school age shall violate section
3321.01, 3321.04, 3321.10, 3321.19, 3321.20, or 3321.14 of the
ReYised Code. The court may require a person convicted of
violating this section to give bond in the sum of one hundred
dollars \Yith sureties to the approval of the court, conditioned
that he will cause the child under his charge to attend upon in-
struction as provided by law, and remain as a pupil in the school
or class during the term prescribed by law.
"B" No parent, guardian, or other person shall fail or re-
fuse to pay a fine and costs for violating division (A) of this
section of the Revised Code or fail to give bone\ as provided for
in this section.
".['' This section does not relieve from prosecution and
conviction any parent, guardian, or other person upon further
violation of such sections; nor shall forfeiture of the bond re-
lieve such person from prosecution and convictions upon further
violation of such sections.
Sections 4109.05 to 4109.07, inclusive, of the Revised Code
apply to this section."
It is significant that Section 3321.04 1s mentioned but not Section
3321 .o;. \.Vhile I have no doubt that the legislature intended to couple to-
j94 OPINIONS
gether the provisions of these two sections, yet, the failure of the penalty
statute to include Section 332r.07 forces me to the conclusion that it does
not subject a parent or 'guardian to the penalty of the law for failure to
comply with the latter section. Neither does it impose any penalty upon
those in charge of a private or parochial school if they fail to give in-
struction for that period longer than thirty-two weeks which has been
established by the board of education of the district.
Accordingly, it is my opinion and you are advised that under the
provisions of Section 332r.07, Revised Code, Section 4849-6, General
Code, the General Assembly has provided that the hours and term of
attendance required for children in private or parochial schools must be
equivalent to the hours and term of attendance required of children in
the public school of the district, as determined by the board of education,
which term must be a minimum of thirty-two weeks, as provided by Sec-
tion 332r.04, Revised Code, Section 4849-3, General Code, but may be
for such longer term as the board of education may determine. However,
the provision of Section 3321.38, Revised Code, Section 12974, General
Code, imposing a penalty on the parent or guardian who fails to send
his child to school for the required term, only embraces the provisions of
Section 332I .04, Revised Code, and does not include the additional
period which a board of education may prescribe under the provisions
of Section 332 I .07, Revised Code.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
595
3216
1 . HOSPITAL, .COUNTY- FUNDS- AMENDMENT, HB 355,
100 GA, SECTION 339.06 RC, 3137 GC-DOES NOT AFFECT
PROCEDURE FOR PREPARATION OF BUDGET-SECTION
5705.28 ET SEQ., R!C, 5625-20 GC.
2. COUNTY COMMISSIONERS-NO DUTY TO APPROPRI-
ATE FUNDS TO SUPPORT COUNTY HOSPITAL-MAY
PROVIDE FOR PROPER MAINTENANCE AND OPERA-
TION-APPROPRIATION FROM GENERAL FUND, SUF-
FICIENT AMOUNT TO SUPPLEMENT OTHER INCOME
OF HOSPITAL.
3 STATUTORY AUTHORITY-TRUSTEES, COUNTY HOS-
PITAL, ENTITLED TO IMMEDIATE PAYMENT OF FUNDS
REMAINING IN COUNTY TREASURY-APPROPRIATION
-OPERATION OF HOSPITAL, 1953.
SYLLABUS:
1. The amendment hy House Bill No. 355, effective October 13, 1953, of Section
339.06, Revised Code, 3137, G.C., relating to the funds of county hospitals, does not
in any way affect the procedure for the .preparation of the budget required by Section
5705.28 et seq., .Revised Code, 5625-20, G. C.
2. The county commissioners have no duty as .to appropriation of funds to the
support of a -county hospital, except to appropriate from the general fund a sufficient
amount of supplement the other income of the hospital, so as to provide for its proper
maintenance and operation.
3. Under the terms of Section 339.06, 1Revised Code, 3137, G. C., as amended
by the lOOth General Assembly in House Bill No. 355, the trustees of a county hospital
are entitled to the immediate payment of any balance remaining in the county treasury,
of the appropriation made by the county commissioners for the operation of such hos-
pital for the year 1953.
Columbus, Ohio, November 9, 1953
Hon. John S. Bath, Prosecuting Attorney
Fayette County, \i\Tashington C. H., Ohio
Dear Sir:
I have before me your communication, requesting my opinion and
reading as follows :
OPINIONS
"I have received a letter elated October r4th from the
County Commissioners, requesting me to write to you for your
opinion on the questions presented therein. Their letter is as
follows:
'\,Yill you please secure an opinion for us from the
Attorney General in regard to House Bill #355, which
becomes operative October 13, 1953.
'First, wiH the Trustees Hospital Budget be submitted
and handled as all other subdivisions of the county?
'Second, can the Commissioners appropriate money to
the Board of Hospital Trustees, when that money does not
come into the hands of the Commissioners, the Auditor. or
the Treasurer of the county?
'Third, how can the existing years operation he ter-
minated, when appropriations are made for the full year of
1953? Shall the propor.tional amount of the appropriation
be granted to the hospital, or the actual months of operation
from January 1 to October I 4; or shall the full appropriation
be deemed an obligation of the county to the "
House Bill No. 355, to which you refer, amended Section 339.06,
Revised Code, Section 3137, G.C. This section, both before and after
its amendment, provided that the board of county hospital trustees which
had been appointed pursuant to Section 339.02, Revised Code, to erect
a county hospital, should "have the entire management and control of
the hospital" after its construction. The board is authorized to employ
an administrator and other necessary employees, and to fix the compensa-
tion to be paid by patients for services and treatment. The section, prior
to its amendment, contained the following language:
"The board has control of the property of the hospital, and
shall deposit all money with the county treasurer to the credit
of the hospital operating fund, and money shall be paid out only
for the maintenance and operation of such hospital on the war-
rant of the county auditor issued pursuant to the orders of the
board."
In the amendment the sentence quoted was stricken out, and there
was substituted for it the following:
"The board of county hospital trustees has control of the
property of the hospital, and all funds used in its operation. The
board of county hospital trustees shall deposit all moneys received
from the operation of the hospital or appropriated for its opera-
tion by the board of county commissioners, or resulting from
ATTORNEY GENERAL
special levies submitted by the board of county commissiohers as
provided for in section 5705.22 of the Revised Code, to its
credit in banks or trust companies designated by it, which fund
shall be known as the hospital operating fund. Such banks or
trust companies shall give the board of county hospital trustees
a bond in an amount equal to the funds so deposited. The board
of trustees shall not expend such funds until its budget for that
calendar year is submitted to and approved by the board of
county commissioners. Thereafter such funds may be disbursed
by the board of county hospital trustees for the uses and purpGses
of such hospital, on a voucher signed by the administrator,
pmvided for in this section, regularly approved by the board of
county hospital trustees and signed by two members of the board
of C<Junty hospital trustees. All moneys appropriated by the
board Gf county commissioners or from special levies by the
board of county commissi<Jners for the operation of the hospital,
when collected shall be paid to the board of C<Junty hospital
trustees Gn a warrant of the county auditor and approved by
the board of cmmty commissioners."
597
In other respects, the secti<Jn was not substantially changed. This
amendment became effective Gn October 13, 1953.
This amendment was under consideration 111 Opinion No. 3151,
which was released Gn the 22d day Gf October, 1953. In the course of
that opini<Jn it was said:
"The purpose of this amendment is to take the contml of
funds of the hospital from the county treasurer, and place it
with the board of trustees of the county lwspital.'"
In my opinion, the change above noted was the only change that
was intended or acC<Jmplished by the amendment. It will be observed
that in its miginal form all m<Jneys belonging to the hGspital board were
to be deposited with the C<Junty treasurer to the credit of the hospital
operating fund, and were to be paid out only upon the warrant of the
county auditor, pursuant tG the order of the board.
In the opinion to which I have referred, it was held that all funds
bel<Jnging to the hospital, are now to !he depGsited in accordance with the
provisions of the Uniform DepGsitary Law, Section 135.01 et seq., R. C.
I. Treating your questions in their order, I note the first inquiry
'which is, whether the trustees' hospital budget is to be submitted and
handled as is required of all other subdivisions of the county.
598
OPINIONS
Section 5705.28, Revised Code, Section 5625-20, G.C., requires
the taxing authority of each subdivision or other taxing unit, on or before
the I5th day of July, in each year, to adopt a tax budget for the next
succeeding fiscal year. This section then contains the following provision :
"* * * To assist in its preparation, the head of each depart-
ment, board, commission, and district authority entitled to par-
ticipate in any appropriation or revenue of a subdivision shall file
with the taxing authority, or in the case of a municipal corpora-
tion, with its chief executive officer, before the first day of June
in each year, an estimate of contemplated revenue and expendi-
tures for the ensuing fiscal year, in such form as is prescribed by
the taxing authority of the subdivision or by the bureau of
supervision and inspection of public offices. * * *"
I do not consider it necessary to elaborate the succeeding steps
leading up to the final determination of the allowances to the several
subdivisions and their various agencies by the county budget commis-
sion. The amendment to which you have called attention, does not in
any way change or abridge those proceedings. Accordingly, it is clear
that the budget procedure provided for "each department, board, com-
mission and district authority," in reference to the budget, must be
followed by the hospital trustees.
2. Your second question is, as to the scope of the power and duty
of the county commissioners in appropriating money to the board of
hospital trustees. In my opinion the county commissioners have no power
or duty in the making of appropriations for a couunty hospital excepting
as to the amount that they find it necessary to appropriate from the
general fund to supplement the other revenues of the hospital board so as
to enable it to meet the cost of maintaining and improving it for the
ensuing year. The last paragraph of Section 339.06, Revised Code both
before and after its amendment, reads as follows :
"The board of county hospital trustees shall annually on the
rfirst day of March, file with the board of county commissioners
a statement of its receipts and expenditures for the preceding
year and shall submit to such board of county commissioners
an estimate of the financial requirements of such hospital for the
ensuing year."
This provision IS very similar to the provision of Section 339-IO,
Revised Code, which reads as follows :
ATTORNEY GENERAL
"On the first Monday in April, each year, the board of
county hospital trustees shall file with the board of county com-
missioners a report of its proceedings with reference to the
hospital, and a statement of the receipts and expenditures of the
board of county hospital trustees during the year. At such time
the board of county hospital trustees shall certify the amount
necessary to maintain and improve the hospital for the ensuing
year."
599
.\s to the proceeds of a special tax levied under the provisions of
Section 5705.22, Revised Code, Section 5625-I5c, G.C., referred to 111
the amendment in question, it appears that .that section, which is a part
of the Uniform Tax Law, authorizes the county commissioners, "after
providing the normal and customary percentages of the total general fund
appropriated for the support of county hospitals," to submit to the
electors a proposal for an extra tax levy for that purpose, not to exceed
sixty-five hundredths of a mill.
\Vhile all taxes levied for the support of the hospital would be col-
lected by the treasurer and the money would therefore come into his
hand, such proceeds would not be subject to any disposition by the county
commissioners, but under the provision of Section 5705.10, Revised Code,
Section 5625-10, G.C., are to be "credited to a special fund for the pur-
pose for which the levy was made." Accordingly, in the light of the
amendment to Section 33906 supra, all of these funds coming into the
hands of the treasurer would belong immediately to the hospital trustees,
and they would have the right to have them paid over into their custody.
This would not require any action by the county commissioners by way
of appropriation, but would be done as provided in Section 321.15, Revised
Code, Section 2674, G.C., upon the warrant of the county auditor.
Accordingly, the answer to your second question is that the county
commissioners have no duty in making appropriations to the board of
hospital trustees, except such appropriations from the general fund as
may be required to supplement the other revenues of the hospital board
as revealed by their annual report to the county commissioners.
3 I understand your third question to deal with the payment to
the trustees of the proportional amount of the annual appropriation that
may have 1been made by the county commissioners to the hospital trustees
for the year 1953. I may assume that up to October 13, 1953, the
effective elate of House Bill No. 355, the hospital trustees have drawn
6oo OPINIONS
on the funds theretofore appropriated, and in the custody of the county
treasurer to their credit, in the payment of operating expenses, and
there remains an unexpended balance of such appropriation.
In view <lf the plain provisions of Section 339.06 supra, that the
trustees are to have control <lf all funds used for the operati<ln of the
h<lspital, and are required to deposit them in a depositary, and are
authorized to disburse them upon vouchers signed by the administrator
and appwved by the trustees, I am of the <lpinion that all funds remain-
ing in the custody <lf the county treasurer when this amendment took
effect, including any balances of appropriations made f<lr the current
year, should be paid over to the hospital trustees forthwith. I do not
consider that it was the intenti<ln of the legislature that they should
continue, even for the balance of the current year, to maintain two
depositaries of the funds which they have a right to have in their custody,
and to disburse in the operation of the hospital. For the purposes of
the transfer of the funds to the custody of the trustees, no action by the
commissi<lners is required, and such funds should be paid over on the
warrant of the county auditor.
In specific answer to the questions submitted, it is my opinion:
I. The amendment by House Bill No. 355, effective October 13,
1953, <lf Section 339.06, Revised ;Code, Section 3137, G. C., relating to
the funds of county hospitals, does not in any way affect the procedure
for the preparation of the budget required iby Section 5705.28 et seq.,
Revised Code, Secti<ln 5625-20, G.C.
2. The county commissi<lners have no duty as to appropriations of
funds to the support <lf a county hospital, except to appropriate from the
general fund a sufficient amount to supplement the other income of the
hospital, so as to provide for its proper maintenance and operation.
3 Under the terms of Section 339.06, Revised Code, Section 3137,
G.C., as amended by the IOoth General Assembly in House Bill No.
355, the trustees of a county hospital are entitled to the immediate pay-
ment of any 'balance remaining in the county treasury, of the appropria-
tion made -by the CQUnty commissioners for the operation of such hospital
for the year I953
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
6or
3217
r. MUNICIPAL CORPORATION-LOT ESTABLISHED, DES-
IGNATED, NUMBERED-LAY OUT-VILLAGE OR SUB-
DIVISION- SECTION 7rr.or ET SEQ., RC- DISTINCT
BODY OR PARCEL OF LAND-TORRENS LAW-SECTION
5310.15, PARAGRAPH B, RC.
2. TRANSFER OF LANDS-SECTION 5309.01 ET SEQ., RC-
ACCOMPLISHED BY SINGLE DEED OR CONVEYANCE-
DESCRIPTION, TWO OR MORE PLATTED LOTS-AGGRE-
GATE COULD COMPRISE CONTINUOUS TRACT IN ONE
POSSESSION-TRANSFER RELATES TO MORE THAN
ONE "DISTINCT BODY OR PARCEL OF LAND."
SYLLABUS:
1. A lot esta:blished, designated, and numbered in proceedings to lay out a village
or subdivision or addition to a municipal cor.poration under the provisions of Section
711.01 et seq., Revised Code, is a "distinct body or parcel of land" as this language is
used in the Torrens Law, paragraph (B) of Section 5310.15, Revised Code.
2. vVhere a transfer of lands, registered under the provisions of .Section 5309.01,
et seq., Revised Code, is accomplished by a single deed or conveyance which describes
the lands to be conveyed by the designation of two or more platted lots, whether or
not in the aggregate comprising a continuous tract in one possession, such transfer is
one relating to more than one "distinct body or .parcel of land" within the meaning of
the Torrens Law paragra:Ph (B) of Section 5310.15, !Revised Code.
Columbus, Ohio, November 9, 1953
Hon. Robert E. Cook, Prosecuting Attorney
Portage County, Ravenna, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"A question has been raised by our County Recorder as to
an interpretation of the recently amended Section 5310.15 of the
Revised Code relative to the schedule of fees to be charged for
handling transfers of Registered Land Titles. This question
concerns paragraph (B) in the list of fees to be charged which
reads 'for examining and registering each transfer of registered
land, including the filing of all papers therewith, handling me-
morials, issuing new duplicate certificate of title and indexing it,
6o2
OPINIONS
$5.00 for the first distinct body or parcel of land contained in
such certificate, and $1.00 for each additional distinct body or
.parcel of land contained in such certificate.'
"His question is whether by the words 'distinct body or parcel
of land' is meant each individual lot mentioned in the transfer
or what is commonly known as a parcel, which may include
several lots within the same general description of the 'parcel'
involved in the transfer.
"I would appreciate your opinion as to the correct interpre-
tation of the above mentioned section."
Vve may first observe the statutory method by which a transfer of
title of registered lands is ordinarily accomplished, i.e., in the case of a
fee simple estate. The requirements are set out in Section 5309-40, Re-
vised Code, Section 8572-37, General Code, as follows:
"A registered owner in fee of real property, in order to
transfer his whole interest in such property or in any part thereof.
or any undivided interest therein, shall execute to the intended
transferee a deed or instrument of conveyance which in case of
transfer of the whole of the land may be on the duplicate cer-
tificate of title, in any form authorized by law. \Vhen such
transferee presents such deed or instrument to the county re-
corder of the county where the land is situated, such recorder
shall file the same, and if he finds that such transferor is entitled
to make the transfer as provided in sections 5309.02 to 5310.2!,
inclusive, of the Revised Code, the recorder shall register the
title, in accordance with such deed or instrument of conveyance,
in the transferee, upon a new folium .in the register of titles,
and enter thereon all memorials, notations, and memorandums, to
which the land is subject at the time of the transfer, and shall
issue a new certificate of title to the transferee, stating therein
his full name, residence, and post-{)ffice address, whether married,
and if so, the name of husband or wife. If the transferee is a
minor, his exact age must be given, or if under other disability
the nature and character of such disability must be stated.
Before a transfer can be registered, the transferor or the trans-
feree must deliver to the recorder the duplicate certificate of title
of the transferor, and the recorder shall enter upon the folium of
the register where such title of the transferor is registered, and
upon the duplicate certificate of title, a memorial or memoran-
dum canceling the same, in whole or in part, as the interest of
the transferee may appear from the deed or other instrument of
transfer, with such particulars of the transfer as may be neces-
sary for identification. together with the date of transfer, the
name and residence and post-office address of the transferee, and
volume and folium of the register in \vhich the transferee's title
is registered."
ATTORNEY GENERAL
In your inquiry you have invited attention to one of the provisions
of paragraph (B) of Section 5310.15, Revised Code. The provision
analogous to this prior to October 2, 1953, was set out in Section
8572-112, General Code, as follows:
"* * * The recorder shall receive the following fees: * * *
"For examining and registering each transfer of registered
land, including the filing of all papers therewith, entering me-
morials, issuing new duplicate certificate of title and indexing
the same, $s.oo."
In the recodification of 1953, by the enactment of _!\mended House
Bill I, IOoth General Assembly, this provision was included as paragraph
(B) in Section 53IO.IS, Revised Code, and as amended in House Bill 29,
effective October 2, 1953, the provision now in effect is set out in the
following language:
"For examining and registering each trans fer of registered
land, including the filing of all papers therewith, entering memo-
rials, issuing new duplicate certificate of title and indexing it,
$5.00 for the first disti11ct body or parcel of land contained in
such certificate, and $I.OO for each additional distinct body or
parcel of fa,nd contained in such certificate; * * *."
(Emphasis added.)
The portion of the quotation emphasized above indicates the material
which was added by the amendment which became effective October 2,
1953
It is apparent that the Legislature, by the addition of the language
indicated above, intended to make provision for the collection of addi-
tional fees where a transfer of title was effected in one instrument de-
scribing two or more parcels. Actually the statutory language is "distinct
body or parcel of land" and your specific question is whether this lan-
guage means (a) individual lot or (b) a parcel which might include several
lots within the same general description.
The expression "parcel of land" ordinarily means "a continuous
tract or plot of land in one possession, no part of which is separated from
the rest by intervening land in another possession." 31 Words and
Phrases, 6o; Restatement, Torts, section 843. Under this definition it
is readily apparent that if a single instrument conveys a number of lots
which in the aggregate constitute a continuous tract in one possession,
OPINIONS
the aggregate so conveyed could be deemed to be a parcel. It should be
pointed out, however, that we are not concerned only with the definition
of the word "parcel" but rather with the entire expression "distinct body
or parcel of land."
The word "distinct" is defined in vVebsters New International Dic-
tionary as "distinguished; separated by a visible sign; marked out." And
again, as "that which may be clearly seen or discerned; clear; plain; well
defined; well marked * * *." The word "distinguish" is defined in the
same work as "to recognize or discriminate (one thing from or among
others) by marks, signs, or characteristics."
The term "lot" is commonly understood as designating a compara-
tively small area of land set out and numbered in the course of proceed-
ings to plat a subdivision, provision therefor :being found in Sections
7I I.OI to 7I 1.38, inclusive, Revised Code. In Chapter 7II, Revised
Code, provision is made for the surveying of a tract or subdivision to
be platted, and for the making of a plat or map thereof particularly
describing the streets, alleys, commons, public grounds and all lots into
which the area is divided. In Section 7I 1.29, Revised Code, Section 3605,
General Code, provision is found for the renumbering of lots of a sub-
division included within a municipal corporation in such a manner as to
harmonize those of the original plat of such corporation. Moreover, in
Section 7I 1.30, Revised Code, Section 3606, General Code, following
such revision and renumbering of lots, it is provided that each of such
lots is to be assessed and entered on the tax list for taxation according
to their new numbers; and it is expressly provided that conveyance of
such lots rby the new numbers shall be sufficient to pass the title.
From these provisions it is abundantly clear that a lot which has
been established by the statutory platting procedure and which has been
assigned a distinctive number, becomes a body or parcel of land which is
readily capable of being distinguished from other land; and in this sense
it is clear that it is also a "distinct" body or parcel of land. Accordingly,
where a transfer of registered land is effected by a single conveyance,
and where the body or parcel of land is described therein, not as one
!body or parcel or tract, rbut by designation by number of numerous lots
of platted land, it would appear that the provisions of paragraph (B) of
Section 53IO.I5, Revised Code, would require the collection of the addi-
ATTORNEY GENERAL
6os
tional fee as to the second and any additional lots thus conveyed by such
instrument.
Accordingly, and in specific answer to your inquiry, it is my opinion
that:
I. A lot established, designated and numbered in proceedings to
lay out a village or subdivision or addition to a municipal corporation
under the provisions of Section 7II.OI et seq., Revised Code, is a "dis-
tinct body or parcel of land" as this language is used in the Torrens law,
paragraph (B) of Section 53IO.I5, Revised Code.
2. Where a transfer of lands, registered under the provisions of
Section 5309.0I, et seq., General Code, is accomplished by a single deed
or conveyance which descri'bes the land to be conveyed by the designation
of two or more platted lots, whether or not in the aggregate comprising
a continuous tract in one possession, such transfer is one relating to
more than one "distinct body or parcel of land" within the meaning of
the Torrens law, paragraph (B) of Section 53IO.I5, Revised Code.
3245
Respectfully,
c. WILLIAM O'NEILL
Attorney General
TURNPIKE PROJECT:
I. CONSTITUTES "PUBLIC ROAD WORK"-PERSONS WHO
OPERATE MOTOR VEHICLES FOR CONTRACTORS ARE
"ENGAGED IN THE OPERATION OF MOTOR VEHICLES
FOR CONTRACTORS ON PUBLIC ROAD WORK"-CHAP-
TER 5537 RC-SECTION 4923.02 RC.
2. OPERATED AS TOLL ROAD BY OHIO TURNPIKE COM-
MISSION -A "PUBLIC HIGHWAY I.N THIS STATE"-
SECTION 4921.02 R.C.
SYLLABUS:
1. A turnpike project being constructed under the provisions of Chapter 5537.,
Revised Code, constitutes "public road work" within the meaning of that term as used
in Section 4923.02, Revised Code, and persons engaged in the operation of motor
vehicles for contractors on a turnpike project are persons "engaged in the operation
of motor vehicles for contractors on public road work" within the purview of such
section.
2. A turnpike project, operated as a toll road hy the Ohio turnpike commission,
as provided in chapter 5537., Revised Code, is a "public highway in this state" as that
term is employed in Section 4921.02, Revised Code.
6o6 OPINIONS
Columbus, Ohio, 1\'ovember 12, 1953
The Public Utilities Conm1ission of Ohio
Columbus, Ohio
Gentlemen:
Your request for my opinion reads as follo\vs :
"The Public Utilities Commission of Ohio has had numerous
inquiries concerning the Ohio Turnpike. Our interest in this
case is two-fold. First, Section 614-103, subsection 7, of the
Ohio General Code, Revised Code section 4923.02, subsection 7,
exempts private motor carriers from the Public Utilities Commis-
sion's jurisdiction in the operation of motor vehicles 'for contrac-
tors on public road work.'
"The other phase of the Commission's problem deals with
Section 614-84, subsection a, Revised Code Section 4921.02. sub-
section A, giving the Commission jurisdiction over 'motor pro-
pelled vehicles of any kind, including trailers, over any public
:highway in this state.' Section 614-84, subsection b and Revised
Code Section 4921.02, subsection A, further defines public high-
ways.
"Our first question is this: In the operation of motor
vehicles for contractors who have contracts or subcontracts to do
work in building the Ohio Turnpike, is this Ohio Turnpike
project a 'public road work' within the meaning and concept of
Section 6r4-103, subsection 7 of the Ohio General Code and
Revised Code Section 4923.02, subsection 7?
"Our second question is this: Is, or will, the Ohio Turn-
pike be a 'public highway in this state' within the meaning of
Section 614-84, subsection a of the General Code and 4921.02
subsection A of the Revised Code?"
with respect to your first question, it may be observed that Section
4923.04, Revised Code, Section 6r4-104, General Code, provides:
"No private motor carrier shall operate any motor vehicle
for the transportation of persons or property, or both, for hire,
on any public highway in this state except in accordance with
Chapters 4901., 4903., 4905., 4907., 4909., 4921., 4923., and
4925. of the Revised .Code. No such private motor carrier shall
continue or commence its operation as such in this state without
obtaining a permit from the public utilities commission as pro-
vided in sections 4923.05 to 4923.07, inclusive, of the Revised
Code."
ATTORNEY GENERAL
The term "private motor carrier," as used m this section, is defined
m Section 4923.02, Revised Code, Section 614-103, General Code, so as
to exclude "any corporation, company, association, joint-stock associa-
tion, person, firm, or copartnership * * * (7) engaged in the operation
of motor vehicles for contractors on public road work * * *."
The precise question thus presented is whether the construction of
a turnpike project by the Ohio turnpike commission constitutes "public
road work'' within the meaning of this definition.
The concept of turnpikes and toll roads as falling within the term
"public highway" is recognized in numerous American jurisdictions. In
this connection we find the following statement in 54 American Juris-
prudence, 494, Section 2 :
"* * * A turnpike or toll road is a public highway, estab-
lished by public authority for public use, and is to be regarded
as a public easement and not as private property, the acceptance
by a corporation of a franchise to construct such a road and
the operation thereof constituting a dedication of the same as a
public highway. * * * Indeed, the only difference between a
turnpike and a common highway is that while a turnpike is
authorized and laid out by public authority, it is built at the
expense of private individuals in the first instance, the cost and
construction and maintenance being subsequently reimbursed by
a toll levied by public authority for the purpose."
Moreover, in the same work it is said, p. 495, section 3:
"In its :broad, popular sense, the term 'public highways' is
considered as including turnpikes or toll roads, and, generally
speaking, in statutes referring .to public highways the term is
used with that meaning. Thus, for example, turnpikes have
been held highways within the meaning of statutes respecting the
construction of railways upon any 'street or highway,' .the use of
highways by public utilities, the power of public officials to dis-
continue or alter parts of a 'public road or highway' interfering
with other public works, the regulation of cattle running at large
on highways, and the speeding of automobiles on public high-
\vays."
There can be scarcely any question that Ohio is in agreement with
the general rules above stated, the Supreme Court of this state having
twice expressed its views on the matter.
In state ex rei Kauer v. Defenbacher, 153 Ohio St., 268, the syllabus
reads in part :
6o8 OPINIONS
"2. Money expended for the study of turnpike project
represents a capital outlay for additions and betterments for
highway improvement. * * *
"6. :Money so expended would be 'expended for * * *
costs for construction * * * of public highways and bridges and
other statutory highway purposes,' within the meaning of section
sa of Article XII of the Constitution."
In State ex rel Turnpike Commission v. Allen, 158 Ohio St., 168,
the court held the turnpike act to be a constitutionally valid legislative
enactment, and in the opinion by Chief Justice Weygandt the 6th para
graph of the syllabus in the Defenbacher case, supra, was quoted in full,
and referring to that paragraph, and to numerous other related conclu-
sions stated by the court in earlier cases, the writer said, p. 173:
"It would extend this opinion unnecessarily to repeat the
reasoning on which the foregoing conclusions were based. It is
sufficient to state that a majority of the court adheres to those
pronouncements.''
It is to be noted that the court in each of these cases was concerned
with the expenditure of state funds for the study of a turnpike project,
but it is quite clear that the court's conclusion was that the "expense of
such study was to be included within the costs for construction * * * of
public highways * * *."
In my opinion it clearly follows, a fortiori, that the actual con-
struction work of a turnpike project would constitute "construction * * *
of public highways" ; and I perceive no basis whatever for a distinction
between (1) "construction * * * of pulblic highways," and (2) "public
road work."
For this reason I readily conclude that persons engaged in the opera
tion of motor vehicles for contractors on a turnpike project, authorized
under the provisions of Chapter 5537., Revisec\o .Code, are persons "en-
gaged in the operation of motor vehicles for contractors on public road
work," within the meaning of Section 4923.02, Revised Code.
In your second inquiry the precise question raised is whether a turn-
pike project is comprehended within the term "public highway in this
state" as used in subsection (A) of Section 4921.02, Revised Code. This
section defines "motor transportation company" in part as follows :

ATTORNEY GENERAL
"(A) ':Motor transportation company,' or 'common carrier
by motor vehicle,' includes every corporation, company, associa-
tion, joint stock association, person, firm, or copartnership, and
their lessees, legal or .personal representatives, trustees, and re-
ceivers or trustees appointed iby any court, when engaged or
proposing to engage in the business of transporting persons or
property, or the business of providing or furnishing such trans-
portation service, for hire, whether directly or by lease or other
arrangement, for the public in general, in or by motor-propelled
vehicles of any kind, including trailers, over any public highway
in this state. * * *" (Emphasis added.)
6og
This section defines "public highway" as "any street, road, or high-
way of this state, whether within or without the corporate limits of a
municipal corporation." The latter definition, of course, provides little
if any aid in the present inquiry, since we still are concerned with the
definition of a "road or highway of the state."
Referring again to the authorities already pointed out as dispositive
of your first question, it is readily apparent that there is an equally strong
case for concluding that a turnpike project is comprehended by the term
"public highway," since the Ohio Supreme Court has twice definitely
indicated that the construction of such a project would constitute "con-
struction * * * of public highways * * *" within the meaning of such
term as used in the constitution.
In passing we may note that m the recently enacted "axle tax,"
Section 5728.or, et seq., Revised Code, the Legislature defined "public
highway" as follows :
"(I) 'Public highway' means any highway, road or street
dedicated to public use except a highway under the control and
jurisdiction of the Ohio turnpike commission created by the pro-
visions of section 5537.02 of the Revised Code."
It may be conceded, of course, that we are here concerned with the
intent of the Legislature which enacted the statutes here under considera-
tion rather than with the notion of the rooth General Assembly as to
the meaning of the term "public highway." However, it is believed that
the fact that the rooth General Assembly thought it necessary to define
this term so as to exclude turnpike projects is indicative of the common
understanding that in the absence of such a stated exception, such term
would include toll roads.
6ro
OPINIONS
For all of these reasons I must conclude that your second question
likewise must be answered in the affirmative.
Accordingly, in specific answer to your inquiry, it is my opinion that:
I. A turnpike project being constructed under the provisions of
Chapter 5537., Revised Code, constitutes "public road work" within the
meaning of that term as used in Section 4923.02, Revised Code, and per-
sons engaged in the operation of motor vehicles for contractors on a
turnpike project are persons "engaged in the operation of m o ~ o r vehicles
for contractors on public road work" within the purview of such section.
2. A turnpike project, operated as a toll road by the Ohio turnpike
commission, as provided in Chapter 5537., Revised Code. is a "public
highway in this state" as that term is employed in Section 4921.02,
Revised Code.
Respectfully,
c. 'VILLIAM O'NEILL
Attorney General
I. POLICE RELIEF AND PENSION FUND-BOARD OF TRUS-
TEES-WITHOUT AUTHORITY TO CHANGE RULES IN
EFFECT APRIL r, 1947-MAY NOT AFFECT IN ANY WAY
THE RIGHT TO, OR AMOUNT OF BENEFITS A MEMBER
OF SUCH FUND, OR A MEMBER OF THE POLICE DE-
PARTMENT RETIRED UNDER THE RULES, }lAY RE-
CEIVE.
2. STATUS, MEMBER OF POLICE DEPARTMENT OF MU-
NICIPALITY- OCTOBER 1, 1953- CONTRIBUTIONS-
PERCENT AGES- PENSIONS AND BENEFITS IN FORCE
APRIL r, 1947-ELECTION TO ACCEPT TYPE OF BENFITS
FILED ON OR BEFORE DECEMBER 31, 1953-SECTIONS
741.493, 741.49 RC, 4631-r GC-SB 44, roo GA.
ATTORNEY GENERAL 6r r
SYLLABUS:
1. The board of trustees of a police relief and pension fund is without authority
to change the rules of such board which were in effect on April 1, 1947, so as to affect
in any way the right to, or the amount of benefits which a member of such fund, or
a member of the police department who has retired under said rules, may receive
therefrom.
2. Under the provisions of Section 741.493, Revised Code, enacted by the 100th
General Assembly, Senate Bill 44, a member of the police department of a municipality
who, on October 1, 1953, is contributing four .percent of :his annual salary to a police
relief and pension fund, and who on September 25, 1947, was contributing two percent
of his annual salary to the same fund, may notwithstanding any election made by such
member as provided in former Section 4631-1 of the General Code, elect .to receive
benefits and pensions from said fund in accordance with the rules and regulations gov-
erning the granting of pensions and tbenefits therefrom in force on the first day of
April, 1947, or as provided by Section 741.49 of the -Revised Code, provided such
election. made in writing, is filed with .the trustees of said fund on or before December
31, 1953.
Columbus, Ohio, November 12, 1953
Bureau of Inspection and Supervision of Public Offices
Columbus, Ohio
Gentlemen:
I have before me your letter requesting my opinion and reading as
follows:
"Under the provisions of Section 4631-1 General Code
(74r .3I Rev. Code,) certain members of the police department
have elected to retire under the rules and regulations of the
police pension board, in effect on April I, 1947.
"Now, at this late elate, one man desires to retire, who had
elected to retire under the rules effective on April I, 1947.
"Apparently the pension board is desirous of changing the
rules so that policemen retiring under the old rules can draw in-
creased pensions, in excess of the amounts provided under the
rules effective on April 1. 1947.
"The question is this:
"Can the police pension board, in I953, change the rules in
effect on April I, 1947, so that policemen retiring under the old
rules, can retire on pensions in excess of the amount now pro-
vided by the rules under which they elected to retire?
"I will appreciate your giving this question your attention,
as we have had this question more than once, as it appears that
some policemen who have elected to retire under the old rules
6I2 OPINIONS
seem to think that the pension boards can go back and change
the rules in effect on April I, I947, and grant them higher pen-
sions than the rules provide.
"Another question arises, in this connection:
"Can the police pension board in any municipality, in I953,
increase the pension of a retired policeman, who has previously
retired under the rules in effect on April I, 1947, and is now
receiving the maximum pension allowed under the old rules?"
Section 4631-I, General Code, to which you refer, was enacted m
1947, and ;became effective September 25, I947 It read as follows:
"Persons who, on the effective elate of this act, have been
contributing two per cent of their annual salary to a police relief
and> pension fund may elect to receive benefits and pensions from
said fund in accordance with the rules and regulations governing
the granting of pensions and benefits therefrom, in force on the
first clay of April, 1947. Such election must be in writing and
filed with the trustees of said fund within sixty days after the
effective elate of this act. Provided, however, such person shall
be required to contribute to the fund in the manner and in the
amount provided for in section 4625 of the General Code."
That section was part of an Act found in 122 Ohio Laws, page 614,
which among other drastic changes in the law relative to police and fire-
men's pension systems, made compulsory the organization of a police relief
and pension fund in every municipal corporation having two or more full
time regular members, Section 4616, General Code, and also required
every member of the fund to contribute four per cent of his salary,
instead of the two per cent provided in the earlier law, Section 4625,
General Code.
Section 4628, General Code, contained in the new law, set forth
definite amounts of pensions for members of the fund upon superannua-
tion retirement and allowances for disability, and also fixed the amount
of pensions to be allowed widows and other dependents. The authority
formerly given each pension board to regulate by adoption of rules, the
amount of such pensions and allowances was wholly done away with.
Therefore, it will be seen that the provision of Section 4631-r above
quoted was a concession to members, whereby with full knowledge of
all the provisions of the new law, they could elect, within sixty days from
its effective date whether they would accept the provisions of the new
Jaw or "receive benefits and pensions from said fund in accordance with
ATTORNEY GENERAL
6I3
the rules and regulations governing the granting of pensions and benefits
therefrom, in force on the first day of April, I947"
As already indicated, the pension hoard was stripped of all power
to regulate or fix the amount of pensions. Section 4628 supra, 741.49
R. C., provided:
''The trustees of the police relief and pension fund shall
adopt rules and regulations for the management of the police
relief and pension fund under their jurisdiction and for the dis-
bursement of !benefits and pensions as set forth in this sec-
tion. * * *"
The section then proceeded to set forth a schedule of the amounts
that should 'be paid in each instance. It seems very clear, on examination
of the entire law that a pension board has no authority now to revise
the rules that were effective on April I, I947, so as to increase the benefits
which a member prior to November 25, I947, with full knowledge of
their amount, elected to take. If it were conceded that the board has
such right, then it would follow that it could also revise those rules so as
to decrease such benefits.
It should lbe noted in passing, that the General Assembly, in the
enactment of the Revised Code, recognized that Section 4631-I supra,
was a temporary measure, limited by its terms to a period of sixty days
and accordingly it was dropped in the revision, as obsolete and useless.
Your second question, whether the pension board could now raise
the pension which a member is now receiving under the rules in effect on
April I, I947, appears to require no extended discussion. There is
nothing in the law that would give the board any right to make such in-
crease. Of course, we must apply the familiar rule that a public body
created 'by law, has only such powers as the legislature has seen fit to
grant. 32 Ohio Jurisprudence, page 933, and cases cited.
However, the Iooth General Assembly has seen fit to confer upon
present members of the fund a new right whereby they may secure the
benefits desired, independent of any board action. It enacted in Senate
Bill No. 44, Section 741.493, Revised Code. That section reads as
follows:
"A: member of the police department of a municipal corpora-
tion who, on October I, 1953, is contributing four per cent of
his annual salary to a police relief and pension fund and who
OPINIONS
on September 25, 1947, was contributing two per cent of his
annual salary to the same police relief and pension fund may,
notwithstanding any election made by such member as provided
for in volume 122, Ohio Laws, page 456 (627), section 4631-1
(General Code), elect to receive benefits and pensions from said
fund in accordance with the rules and regulations governing the
granting of pensions and benefits therefrom, in force on the first
day of April, 1947, or as provided for by the provisions of section
741.49 of the Revised Code. Such election must be in writing
and filed with the trustees of said fund on or before December
31, 1953
"A member of the police department who makes an election
pursuant to the provisions of this section shall be entitled to
receive military service credit, in computing years of service in
the police department, as provided for in sections 741-48 and
741.481 of the Revised Code."
It will be noted that the new right of elections provided by this
section, must be exercised on or before December 31, 1953. It is also
notable that it applies only to present contributing members of the de-
partment. Accordingly, it will be of no avail to a member who has
already retired.
Therefore, in specific answer to your questions, it is my opinion :
I. The !board of trustees of a police relief and pension fund IS
without authority to change the rules of such board which were in effect
on April I, 1947, so as to affect in any way the right to, or the amount of
benefits which a member of such fund or a member of the police depart-
ment who has retired under said rules, may receive therefrom.
2. Under the provisions of Section 74L493, Revised Code, enacted
by the 1ooth General Assembly, a member of the police department of a
municipality who, on October I, 1953, is contributing four percent of his
annual salary to a police relief and pension fund, and who on September
25, 1947, was contributing two percent of his annual salary to the same
fund, may notwithstanding any election made by such member as provided
in former Section 4631-1 of the General Code, elect to receive benefits
and pensions from said fund in accordance with the rules and regulations
governing the granting of pensions and benefits therefrom in force on
the first clay of April, 1947, or as provided by Section 741.49 of the Re-
vised Code, provided such election, made in writing, is filed with the
trustees of said fund on or before December 31, 1953.
Respectfully,
c. V h L L I A ~ f O'NEILL
At-torney General
ATTORNEY GENERAL
615
3247
I. RETIREMENT SYSTEM, STATE TEACHERS-PROVI-
SIONS, SECTION 3307.49 RC, APPLY WITH EQUAL FORCE
TO SURVIVOR BENEFICIARIES OF MEMBERS OF THE
SYSTEM WHO DIED SUBSEQUENT TO JUNE 14, 1951
AND PRIOR TO OCTOBER 26, 1953, AS WELL AS TO SUR-
VIVOR BENEFICIARIES OF MEMBERS V/HO DIE AFTER
OCTOBER 26, 1953.
2. WHERE MEMBER'S ACCUMULATED ACCOUNT WAS
WITHDRAWN PRIOR TO OCTOBER 26, 1953- BENE-
FICIARY MAY NOT QUALIFY FOR SURVIVOR BENEFITS
-SECTION 3307-49 R:C.
3 PAYMENT OF RETIREMENT ALLOWANCE TO BENE-
FICIARIES OF MEMBERS DYING BETWEEN JUNE 14,
1951 AND OCTOBER 26, 1953 SHOULD COMMENCE WITH.
MONTH OF NOVEMBER, 1953-ALLOW ANCE COMPUTED
AS OF MONTH OF MEMBER'S DEATH-SECTION 3307-49,
DIVISION (A), RC.
4 WHERE MEMBER OF SYSTEM DIES WHILE RECEIVING
DISABILITY RETIREMENT ALLOWANCE AND ACCUMU-
LATED ACCOUNT IS COMPLETELY EXHAUSTED, SUR-
VIVOR BENEFICIARY ELIGIBLE TO RECEIVE MONTHLY
SURVIVOR ACCUMULATED ACCOUNT,
BENEFICIARY MIGHT ELECT NOT TO TAKE-SECTION
3307-49, DIVISION (B) RC.
SYLLABUS:
1. The ,provisions of Section 3307.49, Revised Code effective October 26, 1953,
apply with equal force to survivor beneficiaries of members of the State Teachers
Retirement System who died subsequent to June 14, 1951 and prior to October 26,
1953, as well as to survivor beneficiaries of members who die after October 26, 1953.
2. A beneficiary may not qualify for the survivor benefits provided for in Section
3307.49, Revised Code, where the member's accumulated account had been withdrawn
prior to October 26, 1953.
3. Payment of the retirement allowance pursuant to division (A) of Section
3307.49, Revised Code, to beneficiaries of members dying between June 14, 1951 and
October 26, 1953 should commence with the month of November, 1953; such allowance
to be computed as of the month of the member's death.
OPINIONS
4. Where a member of the State Teachers Retirement System dies while receiv-
ing a disa!bility retirement allowance, and the member's accumulated account is at that
time completely exhausted, the survivor beneficiary, if otherwise qualified under divi-
sion (B) of .Section 3307.49, Revised Code, is eligible to receive monthly survivor
benefits under that section, since there is no accumulated account which the beneficiary
might elect not to take.
Columbus, Ohio, November 12, 1953
Hon. L. D. Shuter, Executive Secretary
State Teachers Retirement System
Columbus, Ohio
Dear Sir:
I have before me your request for my opinion which reads as follows :
"Amended Substitute House Bill 382, effective October
26, 1953, amends Section 3307-49 of the Revised Code to pro-
vide additional survivor benefits for certain beneficiaries of
members who have died subsequent to June I4, I95 I, as fol-
lows:
'Division (A) ... If the deceased member had attained
fifty-five years of age as of the date of his death subsequent to
June I4, I95I, after completing at least twenty-five years of
service credit, his designated beneficiary, if otherwise qualified,
may elect to receive a retirement allowance computed as the
joint survivor allowance designated as Option I in section
3307.50 of the Revised Code, as if the member had been quali-
fied for commuted superannuation retirement, and provided the
accumulated account has not been refunded to such bene-
ficiary, .. .'
"I. If a member died subsequent to June q, I95 I and
prior to October 26, I953, after completing the age and service
requirements, may the Retirement Board grant his qualified
beneficiary the benefit provided above if the accumulated ac-
count has not been refunded to such beneficiary?
"2. If such benefit is granted, when is the first payment
thereunder clue and payable?
"3. If granted, should the amount of the allowance be
computed as of the month of the member's death, or as of the
month the first payment is due and payable?
"Division (B) provides that a qualified beneficiary of a
member who 'was receiving at the time of death a disa:bility re-
tirement allowance as provided in section 3307.43 of the Re-
vised Code,' may elect to receive monthly survivor benefits.
ATTORNEY GENERAL
"r. May the qualified beneficiary of a member granted
disability retirement prior to October 26, 1953 be granted sur-
vivor benefits und'er this provision?
"2. May such beneficiary qualify if the member died
prior to October 26, 1953?
"3. May such beneficiary qualify if there is no balance
in the member's accumulated account to forfeit for such sur-
vivor 1benefits?
"Divison (B) (2) is an entirely new survivor benefit pro-
vision providing as follows:
'A surviving spouse fifty or more years of age receiving at
least one-half of his support from the member at the time of
the member's death ; married to the member at least three years;
and not remarried subsequent to the member's death, shall be
paid fifty dollars per month if the deceased member had fifteen
of more years of Ohio service credit at the time of death ... '
6!7
"r. If a member died subsequent to June I4, I95I and
prior to October 26, 1953, may the Retirement Board grant his
qualified beneficiary the survivor benefit provided therein? or
"2. Is such beneficiary required to wait until she attains
age sixty-five and then qualify for the benefit under existing
division (B) (I) of section 7896-4Ia of the General Code, effec-
tive June I4, I95 I?
"3. May such beneficiary qualify for such benefit by return-
ing to the member's account the amount of the account paid her
subsequent to her application for same?"
Your various related questions involve an interpretation of Amended
House Bill No. 382 which was approved by the Governor July 27, I953
More specifically you are concerned with the amendment of Section
78-4Ia, General Code, Section 3307-49, R.C.
The portion of Section 3307.49, Revised Code, effective October .26,
I953, material to your first question, reads as follows:
"In lieu of accepting the payment of the accumulated ac-
count of a member who dies subsequent to June I 4, I95I, and
before retirement, as provided in division (A) of section 3307-48
of the Revised Code, the surviving spouse if designated as a
beneficiary or a certain other survivor if designated as a sole
beneficiary and receiving at least one half of his support from the
member at his death may elect to forfeit such payment and to
substitute certain other benefits either under division (A) or
division (B) of this section. If benefits are paid under division
(A) of this section, the accumulated account and the reserve
6r8 OPINIONS
from the normal contribution fund shall be transferred as pro-
vided in section 3307.65 of the Revised Code. If benefits are
paid under division (B) of this section, the accumulated account
of the deceased member shall be transferred to the survivors'
benefit fund.
"(A)* * * If the deceased member had attained fifty-five
years of age as of the elate of his dea.fh snbsequent to June I 4,
I95I, after completing at least twenty-five years of service
credit, his designated beneficiary, if otherwise qualified, may
elect to receive a retirement allowance computed as the joint sur-
vivor allowance designated as option I in section 3307.50 of the
Revised Code, as if the member had been qualified for commuted
superannuation retirement, and provided the accumulated account
has not been refunded to such beneficiary * * * "
(Emphasis added.)
Your first question is whether the retirement board may grant the
qualified beneficiary of a member who dies between June 14, 1951 and
October 26, 1953 the benefit provided in division (A) above, provided of
course that the accumulated account has never been refunded to the
beneficiary.
The new law is unambiguous upon this point. The act expressly
states that if the member "had attained fifty-five years of age at the date
of his death subsequent to June I 4, I95I, after completing at least twenty-
five years of service credit," his designated beneficiarv may elect to
receive the benefit.
June 14, 1951 IS the date upon which survivor benefits were
originally provided for by the legislature. It appears quite conclusively
that division (A) was altered so as definitely to express the legislative
intent to qualify the survivors of members who died between June 14,
195-1 and October 26, 1953 for the same benefits as if the amendment had
been in effect at the time of the member's death occurring during that
two-year period. The statutes governing the Public Employes Retirement
System and the School Employes Retirement System were amended in
1951 to reduce from thirty years to twenty-five years the service require-
ment for members retiring on commuted superannuation after attaining
fifty-five years of age. The service requirement for members of the State
Teachers Retirement System was left at thirty years, however. \Vhen,
later in 1951, the laws governing the three retirement systems were
further amended so as to provide survivor benefits for the spouse or other
dependent of a member whose death occurred after he attained eligibility
ATTORNEY GENERAL
for either commuted or regular superannuation retirement, survivors of
members of the Teachers Retirement System were not placed in as
advantageous a position as were survivors of members of the other two
retirement systems. It was this inequality which the legislature intended
to rectify by the enactment of the provision quoted above. Hence, if a
member died subsequent to June 14, 1951 and prior to October 26, 1953,
after attaining the age of fifty-five years and after completing at least
twenty-five years of service credit, his designated beneficiary, if other-
wise qualified, may elect to receive the benefit provided for in division (A)
of Section 3307.49. Revised 1(ode, provided that the member's accumu-
lated account has not been refunded to such beneficiary.
Since it is clear that the benefit may be granted under the facts pre-
sented, the next question is: when is the first payment thereunder clue
and payable? I find nothing in the act which would suggest retroactive
payments, i.e. payments which would cover the period subsequent to the
death of the member and prior to the effective date of this amendment.
Courts indulge in the presumption that the legislature intended statutes
enacted by it to operate prospectively rather than retroactively. The
general rule is that they are to be so construed if susceptible of such
interpretation or unless the law is retroactive in terms which clearly show
such legislative intention as to permit no possibility of any other con-
struction. See 37 Ohio Jurisprudence, Statutes, Section 500, page 819.
It is provided 111 the case of designated beneficiaries under division
(B) of the act, that benefits to such designated beneficiaries shall be
payable the month subsequent to the death of the member and shall be
terminated at death. l find no provision, however. relative to time of
payment of beneficiaries under division (A) of the act. It is my opinion
that payment should commence with the month following the effective
elate of the amendment, as though the member had died on October 26,
1953-
The question next presenting itself is whether the amount of the
allowance should be computed as of the month of the member's death, or
as of the month the first payment is due and payable.
It is my opinion that the amount of the allowance should be computed
with reference to the month and year in which the member died. I
understand that the amount of the retirement allowance is based upon
the age of the member and the age of the beneficiary. It would seem
620 OPINIONS
more equitable to calculate the amount of the allowance payable to a
beneficiary of a member dying between June I4, I95I and October 26,
I953 by taking the actual date upon which the member died as the refer-
ence point so far as relative ages are concerned, rather than employing
the fiction that the member died October 26, I953 I am of the opinion
that the amendment should read, so far as it is practical to do so, as
though it existed on the legislative books on June 14, I95I. Hence,
though computation is made with reference to the actual date of the
member's death, payment should commence only after the effective date
of the amendment.
The next three questions have to do with the beneficiary of a member
who was receiving at the time of his death a disability retirement allowance
as provided in Section 3307 43 of the Revised Code.
Division (B) of Section 3307-49, Revised !Code, so far as material
to this question, reads as follows:
"If the deceased member * * * was receiving at the time of
death a disability retirement allowance as provided in section
3307-43 of the Revised Code, certain designated beneficiaries
may elect to receive monthly payments, provided they also meet
the following requirements:" (There follows five numbered
paragraphs dealing with particular classifications of bene-
ficiaries.)
You ask whether the qualified beneficiary of a member granted
disability retirement prior to October 26, I953, may be granted survivor
benefits under the above provision. This question is akin to your next
question, which is: "May such beneficiary qualify if the member died
prior to October 26, I953 ?"
I refer back to the first sentence in Section 3307.49, Revised Code,
quoted earlier, which expresses the legislative intent that the survivor
benefit provisions of both divisions (A) and (B) should apply to bene-
ficiaries of members Wlho die subsequent to June I4, I95I. Thus, if the
deceased member was receiving a disability retirement allowance at the
time of his death subsequent to June I4, I95I, the beneficiary, if other-
wise qualified under paragraphs (I) through ( 5) of the division (B), may
elect to receive monthly payments.
It is asked whether such a beneficiary might qualify for the monthly
ATTORNEY GENERAL 621
payments if there is no balance in the member's accumulated account to
forfeit for such survivor benefits.
It should be borne in mind that this particular benefit is granted to
one who is the beneficiary of a member who actually went on disability
retirement and whose accumulated account
to the annuity and pension reserve fund.
ceiving a disability retirement allowance.
was at that time transferred
The member dies while re-
It is quite possible that the
member's entire account has been used up, leaving no balance whatsoever
at the time of the disabled member's death. Such a situation is unlike the
other situation where the 1aw grants survivor benefits. In division (A)
of Section 3307.49, a retirement allowance is payable to the beneficiary
of a member who had not retired, but who had met certain age and service
requirements. Under division (A), the beneficiary receives a retirement
allowance computed as the joint survivor allowance designated as option
I in Section 3307-SO, Revised Code, "as if the member had been qualified
for commuted superannuation retirement." Division (A) also contains
a retirement allowance benefit for the beneficiary of a member who was
eligible for a superannuation or commuted superannuation retirement
allowance, but who had never actually applied for the allowance at the
time of his death.
It will be observed that division (A) involves situations wherein
there should naturally be an accumulated account on deposit with the
system at the time of the member's death, since the member never chose
to retire, an act which if accomplished, would result in the depletion of
his accumulations throughout the retirement, and which eventually might
completely exhaust his accumulated account at the time of his death.
It will be recalled that the benefits provided for in division (A) are
expressly limited to a situation where the accumulated account has not
been refunded to the beneficiary. Division (B) is silent upon this point.
It will also be recalled that Section 3307-49, Revised Code, com-
mences:
"In lieu of accepting the payment of the accumulated account
of a member who dies subsequent to June q, 1951 * * * a bene-
ficiary * * * may elect * * * ."
In a situation wherein a member dies while rece1vmg a disabilit,
retirement allowance, which allowance has entirely used up his accumu-
lations, there is nothing left for his beneficiary to elect not to take.
622 OPINIONS
Therefore, the qualified beneficiary may take the monthly payments pro-
vided for in division (B). If, on the other hand, there exists a balance
in the disabled member's account at the time of his death, occurring
between June I4, I9SI and October 26, I953, and the beneficiary has not
withdrawn the accumulated account, she may elect to forfeit the account
and receive the benefits provided for by division (B) of the section. A
voluntary withdrawal by the beneficiary of the balance of the member's
account would disqualify such beneficiary from eligibility to receive
survivors' benefits. In the case where the member dies receiving a dis-
ability retirement allowance, leaving no balance in his account, it might
be said that his accumulated account has ceased to exist by operation of
law. Certainly, in that instance, it cannot be said that the beneficiary has
withdrawn the account.
The Iast three questions deal with paragraph ( 2) of division (B),
Section 3307-49, Revised Code. This paragraph reads in material part
as follows:
"A surv1vmg spouse fifty or more years of age rece1vmg
at least one-'half of his support from the member at the time of
the member's death; married to the member at least three years;
and not remarried subsequent to the member's death; shall be
paid fifty dollars per month if the deceased member had attained
fifteen or more years of Ohio service credit at the time of
death. * * *"
This paragraph is an entirely new surv1vor benefit provision. .Pre-
vious to the enactment it was necessary for a spouse to have attained
the age of sixty-five years before being eligible to elect the monthly
benefit. It is my opinion that this quoted paragra-ph applies to a situation
where a member dies subsequent to June 14, I95I and prior to October
26, 1953. Again, I arrive at this result due to the fact that the entire
section is qualified by its first sentence which allows benefits to bene-
ficiaries of members who die "subsequent to June 14, I95I." The
beneficiary is not required to wait until srhe attains the age of sixty-five
and then qualify for the benefit now found under division (B) (I) of
Section 3307-49, Revised Code. Therefore, if the qualified beneficiary
was fifty years old at the time of the member's death occurring since
June I4, I951, and if she was receiving at least one-half of her support
from the member at the time and had been married to the member at
least three years, she is eligible for payments of fifty dollars per month,
ATTORNEY GENERAL
provided the deceased member had fifteen or more years of Ohio service
credit at the time of death, and provided the beneficiary has not remarried
subsequent to the member's death.
Your last question presupposes that the beneficiary has received, at
some time subsequent to June 14, I95I, a refund of the accumulated
account of the menuber, and you a'Sk whether the beneficiary might still
qualify for the benefit by returning to the member's account the amount
of the account paid her subsequent to her application for the same.
I find no statute making provision for any beneficiary who has re-
ceived the refund of the accumulated account of a member to repay the
amount of such refund to the system. I must therefore conclude that
such a beneficiary cannot qualify for survivors' benefits. It appears that
the legislature has rewarded certain beneficiaries who left on deposit with
the retirement system the accumulated account of the deceased member,
even though they might have withdrawn the account.
Accordingly, it is my opinion that the provisions of Section 3307-49,
Revised Code, effective October 26, I953, apply with equal force to
survivor beneficiaries of members of the State Teachers Retirement Sys-
tem who died subsequent to June 14, 1951 and prior to October 26, I953,
as well as to survivor beneficiaries of members who die subsequent to
October 26. 1953; that a beneficiary may not qualify for the survivor
benefits provided for in Section 3307-49, Revised Code, where the mem-
ber's accumulated account had been withdrawn prior to October 26,
1953; that payment of the retirement allowance pursuant to division (A)
of Section 3307-49, Revised Code, to beneficiaries of members dying
between June !4, I95I and October 26, I953 should commence with the
month of November. I953; such allowance to be computed as of the
month of the member's death; that where a member of the State Teachers
Retirement System dies while receiving a disability retirement allowance,
and the member's accumulated account is at that time completely ex-
hausted, the survivor beneficiary, if otherwise qualified under division
(B) of Section 3307-49, Revised Code, is eligible to receive monthly
survivor benefits under that section, since there is no accumulated account
which the beneficiary might elect not to take.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPINIONS
3248
I. HYGIENE-NO STATUTORY AUTHORITY AND
NO LEGAL DUTY TO CHARGE OR COLLECT FEE FOR
TREATMENT OF PATIENTS IN RESIDENT AND TRAVEL-
I::.JG MENTAL HYGIENE AND PSYCHIATRIC CLINICS-
SECTION 5123.05 RC.
2. DIVISION OF MENTAL HYGIENE-WITH APPROVAL OF
DIRECTOR OF PUBLIC WELFARE MAY ESTABLISH RESI-
DENT MENTAL HYGIENE AND PSYCHIATRIC CLINIC IN
COMMUNTY -LOCAL CLINICAL IF.A!CILITIES INADLE-
QUATE-TWO CLINICS, THE LOCA:L AND ONE OPER-
ATED BY PRIVATE ORGANIZATION -COOPERATIVE
PROJECT-PRIVATE ORGANIZATIONS COULD COLLECT
A CHARGE FOR NONPROFESSIONAL SERVICES SUP-
PLIED BY PRIVATE CLINIC TO PATIENTS ABLE TO PAY
-SECTION 5123.05 RC.
SYLLABUS:
1. The division of mental hygiene is under no legal duty, and possesses no
statutory authority, to charge or collect a fee for the treatment of ,patients in resident
and traveling mental hygiene and psychiatric clinics established under the provisions
of Section 5123.05, Revised Code.
2. In the event that the division of mental hygiene, with the appro\al of the
director of public welfare, should establish a resident mental hygiene and psychiatric
clinic in a community where the local clinical facilities are inadequate and should find
it practica!ble to participate with a local mental hygiene clinic, operated by a private
organization, in .the operation of the two clinics as a cooperative project integrated for
many practical purposes, lack of statutory authority on the part oi the division
to make a charge for the services Supplied by the public clinic does not operate so as
to prevent such private organization from making and collecting a charge for such
nonprofessional services as may be supplied by the private clinic to patients who are
able to pay such charge.
Columbus, Ohio, November 12, 1953
Hon. J. H. Lamneck, Director, Department of Public welfare
Columbus, Ohio
Dear Sir:
Your request for my opinion reads as follows:
"On March 13, 1953, you rendered this Department an
opinion relating to the establishment and operation of local
mental hygiene clinics.
ATTORNEY GENERAL
"Since then a question has arisen as to whether or not the
Division of Mental Hygiene in this Department may or is obli-
gated to collect fees from persons using such clinics or their
responsible relatives. In connection with this question, will you
please give me your opinion on the following:
"r. Is the Division of Mental Hygiene in this Department
required to charge a fee for the services rendered by local mental
hygiene clinics established under the provisions of Section
j123.05 of the Revised Code?
"2. If the Division is not obligated to charge a fee, may
it charge a fee?
"3 If the Division of Mental Hygiene may or is obligated
to collect fees for the services rendered by a mental hygiene
clinic, \Yhat are the rates to be charged?
"4. If fees are collected for services rendered by a local
mental hygiene clinic, what disposition should be made thereof?
"In this connection I desire to call your attention to Sections
5123.03 to ji23.05, inclusive, of the Revised Code."
62j
Although the specific questions set out above appear upon first
examination to relate only to the collection of fees by the Division of
Mental Hygiene for services rendered to patients in clinics which are
purely state supported and operated, the use of the expression "local
mental hygiene clinics" leads me to suppose that your inquiry is some-
what broader in scope.
It will be observed that the duty of the division in the matter of
local mental hygiene and psychiatric clinics is stated in Section 5123.05,
Revised Code, which provides in part:
"There shall be created a bureau of prevention and educa-
tion under the supervision of the commissioner of mental hy-
giene. The bureau shall : * * *
" (B) Promote and develop a state-wide comprehensive sys-
tem of mental hygiene and psychiatric clinics and establish resi-
dent and traveling clinics to serve communities where local clini-
cal facilities are lacking or inadequate: * * *"
lt would seem that this language recognizes the fact and the pro-
priety of the operation of "local clinical facilities" by agencies other than
the state, and provides for the establishment by the state of "resident and
traveling clinics" to serve the community concerned when local facilities
are "lacking and inadequate." Such being the case, I deem it appropriate
OPINIONS
to consider your inquiry as applicable to each such category of clinics, the
more especially in view of the conclusion stated in my opinion 2366, dated
March IJ, I953, that resident clinics established by the division might be
operated in such close association with a local clinical facility that for
many practical purposes the two might be operated as an integrated
project.
Considering first the authority of the purely state clinics to charge
a fee, we may first invite attention to what appears to be the general
policy of the state in the support of the several state benevolent institu-
tions as set out in Section I, Article VII, Ohio Constitution, in the fol-
lowing language:
"Institutions for the benefit of the insane, blind, and deaf
and dumb, shall always be fostered and supported by the state;
and be subject to such regulations as may be prescribed by the
General Assembly."
In considering the constitutional validity of a statute which imposed
on the patients, or the persons having them in charge, a liability for
clothing e ~ p e n s e of such patients, the court in State v. Keisewetter, 37
Ohio St., 546 ( r882), said at page 549:
"It is also claimed that this construction of the statute
brings it in conflict with section r, article 7 of the constitution,
which declares that 'institutions for the benefit of the insane.
blind, deaf and dumb, shall always be fostered and supported by
the state; and be subject to such regulations as may be pre-
scribed by the general assembly.'
The answer to this objection is that the provision of the
constitution is not self executing, and that the mode in which
such institutions are to be fostered and supported is left to the
discretion of the general assembly. That discretion has been exer-
cised in the passage of the statute now under consideration."'
The rule thus stated was approved and followed in State ex rei
Price v. Huwe, ros Ohio St., 304, (1922).
It may readily be conceded that the constitutional prov1s10n above
mentioned does not by its terms comprehend the various mental hygiene
and psychiatric clinics established and operated by the division, but such
provision, in my opinion, is indicative of the general policy of the state
that the several benevolent institutions and services established and
operated for the benefit of the mentally ill should be wholly at state ex-
pense except as the Legislature shall otherwise direct.
ATTORNEY GENERAL
The extent to which the Legislature has otherwise directed may be
seen in the provisions of Section 5123.40, Revised Code, as follows:
';The support and maintenance of patients confined in re-
ceiving and state hospitals for the mentally ill, state institutions
for the mentally deficient, and state institutions for epileptics, in-
cluding the state hospital for the criminal insane and psycho-
pathic and the state institution for mentally deficient offenders,
excepting those transferred thereto from correctional, penal, and
reformatory institutions, and persons under indictment or con-
viction for crime, shall be collected and paid in accordance with
sections 5I2I.OI to 5I2I.IO, inclusive, of the Revised Code."
By referring to Sections 512I.OI to SI2I.IO, inclusive, Revised Code,
we may note first that provision is made for the maintenance of all
inmates of benevolent institutions at the expense of the state, with the
proviso, however, that where they are able to do so the responsible rela-
tives of such inmates are to be charged with certain enumerated expenses
of maintenance.
The duty of ascertaining the identity of the responsible relatives in
the case of "any person * * * committed to a state hospital for the
mentally ill" is placed on the judge making such commitment under
Section 5121.02, Revised Code.
The rate of support of such inmates is provided for in Section SI2I.OJ,
Revised Code, the amount .being "the average per capita cost of the care
and treatment of such patients, * * *". It is obvious, of course, that the
expression "such patients" refers to "inmates" of the benevolent institu-
tions mentioned in the preceding sections.
Subsequent sections in Chapter 5121, Revised Code, refer to "the
financial condition of the inmates of benevolent institutions," the amount
of "the estate of an inmate or of a relative liable for such inmate's sup-
port,'' "an inmate of a benevolent institution," etc., the import of all such
language being that the provision for support and maintenance which
is found in Section 5123-40, supra, relates to the support and maintenance
of patients who are actually confined in benevolent institutions concerned
as inmates therein.
The word "inmate" IS defined in vVebster's New International Dic-
tionary as "one of a family or community occupying a single dwelling or
home; * * * also one confined or kept in an institution such as an asylum
or poor house." From this definition it is clear that nothing in these
OPINIONS
statutory provisions relates to the support and maintenance of patients
who receive treatment as out-patients in a state operated clinic, nor do
such provisions authorize a charge or collection of a fee for services thus
rendered; nor is there anything in such language which would authorize,
even by implication, the charging of a fee for professional services as
distinguished from support and maintenance.
I am unable to find any other statutory provision which could be
supposed to authorize the division to exact a fee or charge, either for
support or maintenance, or for professional services, of mentally ill patients
who are given treatment at an out-patient basis, i.e., those who are not
actually inmates or resident patients in one of the state hospitals or
benevolent institutions enumerated in Chapter 5121, Revised Code, or in
Section 5123-40, Revised Code. Accordingly, giving effect to the rule
of "expressio unius," I conclude that the division is under no legal duty,
and has no legal authority, to charge and collect a fee for the treatment
of patients in resident and traveling clinics established under the provisions
of Section 5123.05, Revised Code.
In the case of local clinics for the mentally ill, established and oper-
ated by private charitable organizations, however, neither the reasoning
above outlined nor the conclusion just stated would appear to be applicable.
As already pointed out the operation of mental hygiene clinics by
agencies other than the state appears to be clearly recognized by the pro-
visions of Section 5123.05, supra. Such recognition of the propriety of
the operation by private charitable organizations of clinical and hospital
facilities is in complete harmony with the long history of hospital practice
in this state and throughout the country, a field in whioh the participation
of charitable organizations has been most extensive. Such recognition is
in harmony also with the rule stated in 41 Corpus Juris Secundum, 333,
Section 3, as follows :
"In the absence of statute no legislative permission is neces-
sary for the establishment of a private hospital, but the estab-
lishment of such hospitals is a frequent subject of municipal
regulation."
Moreover, it may be pointed out that hospitals are regarded as public
charities even though they receive pay patients as well as charity patients.
26 American Jurisprudence, 588, 599, Section 3 By analogy the same
rule must be regarded as applicable to installations limited to clinical
ATTORNEY GENERAL
services to out-patients as contrasted with full hospitalization services for
resident patients.
By reason of the character of such private hospitals and clinics there
is no necessity for finding statutory authority to charge and collect fees for
services rendered to patients who are able to make payment therefor so long,
of course, as such practice does not contravene the statutes relating to
professional practice. The rule in this respect was stated in my opinion
No. 1751, Opinions of the Attorney General for 1952, p. 6o8, as follows:
"A hospital corporation, wheH1er or not organized for profit,
is entitled to a fair compensation (a) for the use of technical
equipment owned by it and used by a physician in the performance
of professional services, and (b) for non-professional services
supplied to such physician; but where such corporation enters
into an arrangement with a physician whereby it receives com-
pensation for such use and such services which is manifestly in
excess of the fair value thereof, the hospital is unlawfully engaged
in the practice of medicine and .the physician concerned is guilty
of grossly unprofessional conduct under the provisions of Section
1275, General Code."
Subject to this limitation, therefore, I perceive no reason why a
privately established and operated mental hygiene clinic should not charge
and collect fees in the case of patients who are able to pay for the services
supplied to them.
In my opinion No. 2366, supra, I pointed out the legal possibility of
operating a public clinic and a private clinic as a single integrated project.
Specifically I concluded:
"* * * the Division does have authority, under the provisions
of Section 1890-9, General Code, to 'establish resident * * * clinics
* * * where local clinical facilities are * * * inadequate,' and any
such resident clinics may be established in such close association
with a clinic established by a corporation not for profit, and
operated in such close cooperation with it that the two clinics will,
for many practical purposes, be operated as an integrated project.
In any suoh case, however, it will be necessary to preserve the
separate entity of each clinic in matters involving control of
operations and financial support."
Accordingly, if you should find it practicable for the division to par-
ticipate with a locally established private clinic in the operation of such
a cooperative project, I perceive no reason why the lack of statutory
authority on the part of the division to make a charge for the services
OPINIONS
supplied by the public clinic should operate in such a way as to prevent
the private organization from making and collecting a charge for such
non-professional services as may be supplied by the private clinic to
patients who are able to pay such charge.
Accordingly, in specific answer to your inquiry, it is my opinion that:
I. The division of mental hygiene is under no legal duty, and
possesses no statutory authority, to charge or collect a fee for the treat-
ment of patients in resident and traveling mental hygiene and psychiatric
clinics established under the provisions of Section SI2J.OS, Revised Code.
2. In the event that the division of mental hygiene, with rhe ap-
proval of the director of public welfare, should establish a resident mental
hygiene and psychiatric clinic in a community where the local clinic facili-
ties are inadequate and should find it practicable to participate with a
local mental hygiene clinic, operated by a private organization, in the
operation of the two clinics as a cooperative project integrated for many
practical purposes, the lack of statutory authority on the part of the divi-
sion to make a charge for the services supplied by the public clinic does
not operate so as to prevent such private organization from making and
collecting a charge for such nonprofessional services as may be supplied
by the private clinic to patients who are able to pay such charge.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
3249
r. CONSERVANCY DISTRICT, OFFICE OF DIRECTOR-IN-
COMAATIBLE vVITH OFFICE OF CITY ENGINEER OF
MUNICIPALITY I.JOCATED WITHIN DISTRICT-SECTION
6IOI.IO, RC, 6828-8 GC.
2. BOARD OF DIRECTORS OF CONSERVANCY DISTRICT-
OFFIOE OF MEMBER-"AN OFFICE OF PUBLIC TRUST"
-INCUMBENT SHOULD CONTINUE TO SERVE FOLLOW-
ING EXPJRATION OF STATUTORY TERM UNTIL SUCH
TIME AS SUCCESSOR APPOINTED AND QUALIFIED.
SYLLABUS:
.1. The office of director of a conservancy district, appointed under the provisions
of Section 6101.10, !Revised Code, Section 6828-8, General Code, is incompatible with
the office of city engineer of a municipality located within such district.
2. The office of member of the board of directors of a conservancy district,
appointed under the provisions of Section 6101.10, Revised Code, Section 6828-8, Gen-
eral Code, is "an office of .public trust" within the meaning of Section 3.01, Revised
Code, Section 8, General Code, and the incumbent of such office continues to serve
therein following the expiration of his statutory term until such time as his successor
is appointed and qualified.
Columbus, Ohio, November 16, 1953
Maumee vVatershed Conservancy District
Defiance, Ohio
Gentlemen:
Your request for my opinion reads as follows:
"Under authority of Section 6828-8 G.C. the Conservancy
Court appointed O.H.G., Director of the Maumee Watershed
Conservancy District for a term of three years. Mr. G. took his
oath of office and entered upon his duties on October 18, 1950.
His term expires October 18, 1953, and the Conservancy Court
will not convene until February r, 1954, to consider an appoint-
ment.
"Query: Does Mr. G. continue in office as Director until
his successor is appointed and qualified, or is his office vacant
as of October 18, 1953?
"Mr. G. at the present time is engineer of the City of Find-
lay, and among other duties is superintendent of the \Vater vVorks
OPINIONS
and Sewage Disposal Plant. He is under Civil Service. The
City of Findlay, in its entirety, is within the boundaries of the
Maumee Watershed Conservancy District.
"Query: Is the office of City Engineer incompatible with
the office of Director of Maumee \"latershed Conservancy Dis-
trict?"
Section 6ror.ro, Revised Code, Section 6828-8, General Code, which
provides for the appointment of directors of conservancy districts, reads
as follows:
"\Vithin thirty days after entering the decree incorporating
a conservancy district, the court shall appoint three persons, at
least two of whom are resident freeholders within the district,
as a board of directors of the conservancy district, one for a term
of three years, one for a term of five years, and one for a tenn of
seven years. At the expiration of their terms of office, appoint-
ments shall he made for terms of five years. The court shall
fill any vacancy which may occur on the board for the unexpired
tern1."
It will be observed that the only authorization for the filling of
vacancies on the part of the directors of a conservancy district is by
appointment by the conservancy court. There is a statutory declaration
of policy, however, against the existence of vacancies in public offices
where the term of the incumbent has expired and no appointment or
reappointment of a successor has been made by the appointing authority.
In this connection we find the following provision in Section J.OI, Revised
Code, Section 8, General Code:
"A person holding an office or (of) public trust shall cpn-
tinue therein until his successor is elected or appointed and
qualified, unless otherwise provided in the constitution or la\\'S of
this state."
It takes but a cursory examination of the statutes providing for the
organization and operation of a conservancy district to conclude that the
office of director of such district is "an office of public trust'' within the
meaning of this statutory provision. I am unable to discover any provision
in the constitution or statutes of this state which would bring this office
within the proviso above stated, and therefore conclude that the individual
in question will continue in his office beyond the expiration of his statutory
term of October r8, 1953, until such time as his successor is appointed
and qualified.
ATTORNEY GENERAL
Coming now to the question of compatability of the office of director
of a conservancy district and that of engineer of a city located in such
district, we may note that the test of compatability of office most communly
followed in Ohio is found in 32 Ohio Jurisprudence, 908, 909, section 48,
as follO\YS :
" * * * One of the most important tests as to whether
offices are incompatible is found in the principle that incompati-
bility is recognized whenever one office is subordinate to the
other in some of its important and principal duties, or is subject
to supervision or control by the other,-as an officer who pre-
sents his personal account for audit and at the same time is the
officer who passes upon it,-or is in any way a check upon the
other, or where a contrariety and antagonism would result in
an attempt by one person to discharge the duties of both."
In the instant case there can be scarcely any doubt that a contrariety
and antagonism would result in an attempt of one person to discharge
the duties of both of these offices. From an examination of the provisions
of Section 6wr .o8, Revised Code, Section 6828-6, General Code, we find
provision made for a hearing before the conservancy court on a petition
for the establishment of the proposed district; and in Section 6IOI.7I,
Revised Code, Section 6828-63, General Code, it is provided that where
it is desired to construct improvements within the district, subdistricts may
be organized therein upon petition of the property owners concerned. A
hearing is thereafter required to be had before the conservancy court in
the same manner and to like effect as is provided in Section 6wr .08, Re-
vised Code, Section 6828-6, General Code, supra, in the initial hearing to
establish the district. In such hearings objections "may be filed by any
public corporation which has not signed such petition." It is thus conceiv-
able that i'n the conduct of proceedings under the provisions of Section
6IOI.7I, Revised Code, Section 6828-63, General Code, supra, to estab-
lish subdistricts within a conservancy district, the director here involved
would encounter a conflict of interest by virtue of the fact that he is em-
ployed by a public corporation which might wish to register its objections
in the course of such proceedings.
By reference to Section 6ror.rJ, Revised Code, Section 6828-12, Gen-
eral Code, it will be observed that following the organization of the board
of directors that agency is required to prepare or cause to be prepared a
plan for improvements of the district. Thereafter, following the approval
of such plan by the state department of health, the statute requires that a
OPINIONS
hearing be had, at which time objections thereto shall be heard. Here
again, any public corporation affected by the operation of suoh plan is
given the opportunity to register its objections, and in this instance also
it is apparent that such activity could readily raise a conflict of interests
between the board of directors and the agency by which the individual
director here involved is employed.
By reference to Section 6101.24, Revised Code, Section 6828-24, Gen-
eral Code, we find that the board is authorized to permit the use of water
or water courses within the district by landowners, municipal corporations
and other users of water. Specifically this section provides in part as
follows:
"Persons or public corporations desiring to secure such use
of the waters or watercourses of the district, or of the district
rights therein, may apply to the board of directors of the conserv-
any district for lease, purchase, or permission for such use.
Such application shall state the purpose and character of such
use, the period and degree of continuity of such use, the amount
of water desired, and the place of use. In case any party makes
greater, .better, or more convenient use of the waters of the dis-
trict without formal application, the fact of such use shall serve
all purposes of an application, and the board may proceed to de-
tennine a reasonable rate of compensation the same as though
formal application had been made. Where it is not possible or
reasonable to grant all applications, preference shall be given to
the greatest need and to the most reasonable use, as is deter-
mined by the board, subject to the approval of the court.
"Preference shall be given in the following order:
"(A) To domestic and municipal water supply, and no
charge shall be made for the use of water taken by private per-
sons for home and farmyard use, or for watering stock ;
" (B) To supplying water used in processes of manufac-
ture, for the production of steam, for refrigerating, cooling, and
condensing, and for maintaining sanitary conditions of stream
flow;
"(C) For irrigation, power development, recreation, fish-
eries, and for other uses."
From the foregoing provisions it IS quite clear that there would be
a definite conflict of interest in the duties attached to each of the offices
which the individual here in question must discharge. Where in one ca-
pacity, i.e., as a city engineer of Findlay and superintendent of water works
of that city, he is under the duty to promote the city's claim of right to
the use of the waters of the district so as to obtain such water at a favor-
ATTORNEY GENERAL
able rate of compensation, and to convince the board of the need of the
municipality in order to obtain what preference is due, he is scarcely in
a position where he could serve impartially on the board of directors in
determining what is a reasonable compensation and what preference
should be given to such municipality. For this reason it is my view that:
I. The office of director of a conservancy district, appointed under
the provisions of Section 6ror.ro, Revised Code, Section 6828-8, General
Code, is incompatible with the office of city engineer of a municipality
located within such district.
2. The office of member of the board of directors of a conservancy
district, appointed under the provisions of Section 6IOI.IO, Revised Code,
Section 6828-8, General Code, is "an office of public trust" within the
meaning of Section 3.0I, Revised Code, Section 8, General Code, and the
incumbent of such office continues to serve therein following the expira-
tion of his statutory term until such time as his successor is appointed and
qualified.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
OPINIONS
I. MUNICIPAL COURT-JURISDICTION \\'ITHIN LIMITS
OF COUNTY OR OOUNTIES IN WHICH ITS TERRITORY
IS SITUATED-CRIMES AND 0 F FENS E S wiTHIN
GOUNTY-WIDE JURISDICTION OF JUSTICES OF PEACE
-SECTION I9QI.2o ~ C , 1598 GC HAS EFFECT OF DEPRIV-
ING JUSTICES OF PEACE OF COUNTY-vVIDE CRIMINAL
JURISDICTION IN COUNTY WHERE MUNICIPAL COURT
E'STABLISHED-EXCEPTION, CASES LISTED IN PAR..I\-
GRAPHS A TO R INCLUSIVE, SECTION 2931.02 RC, 13422-
2 GC.
2. COUNTY-WIDE JURISDICTION GIVEN BY NAMED STA-
TUTES, NOT ABRIDGED OR DESTROYED BY PROVI-
SION OF SECTION I9QI.20 RC-OOUNTY-WIDE JURIS-
DICTION OF MUNICIPAL COURTS.
SYLLABUS:
1. The provision of Section 1901.20, Revised Code, 1598 G.C., giving to each
municipal court jurisdiction within the limits of the county or counties in which its
territory is situated, of those crimes and offenses which are within the county-wide
jurisdiction of justices of the peace, has the effect of depriving justices of the peace
of county-wide criminal jurisdiction in each county wherein a municipal court has been
est<tblished, except as to those cases listed in paragraphs "A" to "R" inclusive, of the
concluding portion of Section 2931.02 Revised Code, -13422-2 G.C
2. The county-wide jurisdiction specifically conferred upon justices of the peace
in paragraphs "A" to "R" inclusive, of .the concluding provision of Section 2931.02
Revised Code, 13422-2 G.C., is not abridged or destroyed by the provision of Section
1901.20 Revised Code, 1598 G.C., relating to the county-wide jurisdiction of municipal
courts.
Columbus, Ohio, November r6, 1953
Hon. J. L. .:;..tJ:acDonald, Prosecuting Attorney
Columbiana County, Lisbon, Ohio
Dear Sir:
I have before me your request for my opinion, reading as follows:
"Your opinion is respectfully requested concerning the juris-
diction of justices of the peace in criminal matters in counties
wherein there is established a municipal court.
ATTORNEY GENERAL
"In such cases, is not the jurisdiction of the justice of the
peace limited to criminal matters which have arisen in his town-
ship?
"Section 2931.02 of the Revised Code provides, in part:
'A justice of the peace .... has jurisdiction in criminal
cases throughout the township in which he is elected and
where .he resides, and county wide jurisdiction in all criminal
matters only upon affidavit or complaint filed by the prosecut-
ing attorney or upon affidavit or complaint made by the
sheriff, vhe party injured, or any authorized representative
of a state or federal department, in the event there is no other
court of concurrent jurisdiction other tha.n the court of com-
mon plea.s, police court or ma.yors court, .... '
"Section 1901.20 of the Revised Code, defining criminal
jurisdiction of municipal courts, reads in part:
'The court also has jurisdiction within the limits of the
county or counties in which its territory is situated of those
crimes and offenses which are within the county-wide juris-
diction of justices of the peace.'
"It would seem to me that the effect of the above sections,
at least for counties wherein a municipal court is established,
would be to limit the jurisdiction of justices of the peace in
criminal matters to those matters arising within their townships.
"Kindly advise me whether or not this conclusion is correct."
The effect of that portion which you have quoted from Section
293:1.02, Revised Code, 13422-2 G. C., on the jurisdiction of justices of the
peace, was stated in Opinion No. 2182, Opinions of the Attorney General
for 1952, page 779 It was there held:
"Under the provisions of Section 13422-2, General Code,
any of the persons named: therein may file an affidavit or com-
plaint charging a person with the commission of a felony or mis-
demeanor and may file the same with a justice of the peace in any
township, unless there has been established within the county a
court other than the common pleas court, police court or mayors
court, which has jurisdiction of such offense. (Opinion No.
r 791, Opinions of the Attorney General for 1938, approved.)"
In my later opinion No. 2881, released July 28, 1953, I had under
consideration the above quoted portion of what is now Section 2931.02,
Revised Code, and also the concluding provision of the same section
""hich reads in part as follows:
OPINIONS
"Justices of the peace have jurisdiction within their respec-
tive counties in all cases of violation of any law relating to:
"(A) Adulteration or deception in the sale of dairy prod-
ucts and other food, drink, drugs, and medicines; * * *
"(R) Offenses arising from or growing out of the viola-
tion of conservation laws."
In its former wording that sentence began with the words : "Pro-
vided further, however, that" * * *. These words appear to make it
clear that the latter portion of the section was wholly independent of the
first sentence.
In the opinion last mentioned, it was hdd, in effect, that the county-
wide jurisdiction given to justices of the peace in the specific cases men-
tioned was in no way limited by the provisions of the first portion of the
section.
Neither of those opinions mentioned the provision of Section 15<}8,
General Code, now found in Section 1201.20 Revised Code, and reading
as follows:
"The court also has jurisdiction within the limits of the
county or counties in which its territory is situated of those
crimes and offenses which are within the county wide jurisdic-
tion of justices of the peace."
That provision relates to each and every municipal court established
hy the new Municipal Court Act passed by the 99th General Assembly.
As is well known, municipal courts have been established in approximately
half of the counties of the state.
The establishment of these courts in those counties has the effect of
supplying the condition mentioned in the first portion of Section 2931.02
supra, and accordingly the justices of the peace in those counties lose
their county-wide jurisdiction in criminal cases generally.
But the provision giving such municipal courts criminal jurisdiction
co-extensive with that of justices of the peace, can certainly not have the
effect of curtailing or destroying the county-wide jurisdiction which the
law confers upon them in the eighteen classes of cases specifically set
forth in 'Section 2931.02, Revised Code.
Accordingly, it is my opinion and you are advised:
1. The provision of Section I9Q1.20, Revised Code, 1598 G. C.,
ATTORNEY GENERAL
giving to each municipal court jurisdiction within the limits of the county
or counties in which its territory is situated, of those crimes and offenses
which are within the county-wide jurisdiction of justices of the peace, has
the effect of depriving justices of the peace of county-wide criminal ju-
risdiction in each county wherein a municipal court has been established,
except as to those cases listed in paragraphs "A" to "R" inclusive, of the
concluding portion of Section 2931.02 Revised Code, 13422-2 G. C.
2. The county-wide jurisdiction specifically conferred upon justices
of the peace in paragraphs "A" to "R" inclusive of the concluding provi-
sion of Secti-on 2931.02 Revised Code, 13422-2 G. C., is not abridged or
destroyed by the provision of Section 1901.20 Revised Code, 1598 G. C.,
relating to the county-wide jurisdiction of municipal courts.
Respectfully,
c. \iVILLIAM O'NEILL
Attorney General
INCOMPATIBLE OFFICE-COURT CONSTABLE, ASSISTANT
PROSECUTING ATTIORNEY- APPOINTMENT UNDER SEC-
'VION 2701.07 RC, 1692 GC.
SYLLABUS:
The office of court constable, appointed under the provisions of Section 2701.07,
Revised Code, Section 1692, General Code, is incompatible with the office of assistant
prosecuting attorney.
Columbus, Ohio, November 17, 1953
Bon. Frank T. Cullitan, Prosecuting Attorney
Cuyahoga County, Cleveland, Ohio
Dear Sir:
Your request for my opinion reads as follows :
"Recently our Common Pleas Court established a Reciprocal
Uniform Support department to carry out the provisions of the
Lniform Support of Dependents Act (G.C. 8007-1 to 8oo7-19).
OPINIONS
Pursuant to sections 16 and 17 of said Act, the Common Pleas
Court designated one of its court constables appointed under
G.C. to head the department and assist the Court in carry-
ing out its duties under the Act.
"The department, under the supervision of the court, will
interview obligors and obligees, accept for filing and process cases
where the Court is acting as an initiating state, receive and
process cases where this Court is acting as a responding State,
receive and disburse support payments to obligees or the court of
the initiating state, and perform all the other duties prescribed in
the Act.
"Section 12 of the Act provides that when the court of this
state, acting as a responding state, receives from the court of an
initiating state a petition for support, it shall, after docketing
the cause, 'notify the prosecuting attorney or his representative
who shall thereafter represent the initiating state,' set a time and
place for a hearing, and take such action as is necessary to obtain
jurisdiction.
"The designated court in question is an attorney-
at-law. Being an attorney and because of his familiarity with all
phases of the work of the department, in order to carry out the
provision of section 12 of the Act, the Court would like to have
the Prosecuting Attorney appoint this constable an assistant
prosecuting attorney under G. C. 29 r 5, without compensation.
"The question arises whether the positions of court constable
and assistant prosecuting attorney are compatible. Can the court
constable be appointed an assistant prosecuting attorney and
retain his position and rating as such court constable? I con-
sider these questions of state-wide interest and therefore re-
spectfully request your opinion as to the compatibility of these
two positions in the circumstances above described."
The test of incompatibility of public offices most commonly recognized
in Ohio is stated in 32 Ohio Jurisprudence, 908, 909, Section 48, as fol-
lows:
"* * * One of the most important tests as to whether offices
are incompatible is found in the principle that incompatibility is
recognized whenever one office is subordinate to the other in some
of its important and principal duties, or is subject to supervision
or control by the other,-as an officer who presents his personal
account for audit and at the same time is the officer who passes
upon it,-or is in any way a check upon the other, or where a
contrariety and antagonism would result in an attempt by one
person to discharge the duties of both."
Section 2701.07, Revised Code, Section 16g2, General Code, provides
for the office of court constable in the following language:
ATTORNEY GENERAL
"\Vhen, in the opinion of the court, the business thereof so
requires, e.'lch court of common pleas, court of appeals, and, in
counties having at the last or any future federal census more than
seventy thousand inhabitants, the probate court, may appoint one
or more constables to preserve order, attend the assignment of
cases in counties where more than two judges of the court of
common pleas regularly hold court at the same time, and dis-
charge such other duties as the court requires. \Vhen so directed
by the court, each constable has the same powers as sheriffs to
call and impanel jurors, except in capital cases."
From the language it is abundantly plain that the officer in question
IS wholly under the supervision and control of the court making the ap-
pointment, and the extent of the control, under the suggested plan, will
scarcely be lessened by the proposed arrangement whereby he will con-
tinue to receive his sole compensation in his present capacity, and will
receive no compensation as an assistant prosecuting attorney.
It will thus be observed that under the suggested plan the individual
concerned will be charged with duties pertaining to both the judicial and
to the executive departments of the government. The effect of such an
arrangement is referred to in 67 Corpus Juris Secundum, 144, Section 23,
111 the following language:
''* * * Constit.utional and statutory provJsJOns prohibiting
an officer of one department of the government from holding
office in another department are construed in such a manner as
to carry out their intent. Such an incompatibility, moreover, is
often inferred from the co1n11Wn provisions 1 ~ 1 1 the state constitu-
tions intended to secure the distribution of the three powers of
govermnent anwng the three departments of government. * * *."
(Emphasis added.)
On the question of the separation of powers among the three prin-
cipal departments of government in Ohio, we find the following comment
in 8 Ohio Jurisprudence, 231, 232, Section 128:
"The principle as to the separation of the powers of govern-
ment operates in a broad manner to confine legislative powers
to the legislature, executive powers to the executive department,
and those which are judicial in character to the judiciary. The
distri;bution of the powers of the state, by the Constitution,
operates, .by implication, as an inhibition against the imposition
upon any department of those powers which distinctively belong
to one of the other departments. Each of these departments can
exercise such power, and such only, as falls within the scope of
the express delegation. One ;branch of the government cannot
OPINIONS
encroach on the domain of another without danger. The safety
of our institutions is thought to depend in no small degree on a
strict observance of this salutary rule. Each of the three grand
divisions of the government must be protected from encroachments
by the others, so that its integrity and independence may be
preserved. It is incumbent on each officer of the different de-
partments of our government to perform the duties and exercise
the authority of his office without in any wise interfering with the
power, discretion, or authority of rhe officers in either of the other
departments.
"Acquiescence for no length of time can legalize a clear
usurpation of powers where the people have plainly expressed
their will and the Constitution has appointed judicial tribunals to
enforce it."
The contrariety and antagonism which would result by an attempt
by one person to discharge the duties of both offices here involved become
readily apparent when it is recalled (I) that such person serves solely at
the pleasure of the court in the only capacity in which he is compensated
and ( 2) that as an attorney representing a litigant in such court it may
\veil become his duty to question the propriety of the court's action by
appeal or otherwise. The duty of an attorney in this situation to the court
and to his client is commented on in 4 Ohio Jurisprudence, 435, 436,
Section 23, in the following language:
"* * * It is the duty of the lawyer to maintain towards the
courts a respectful attitude, not for the sake of the temporary in-
cumbent of the judicial office, but for the maintenance of its
supreme importance. The obligation of this canon of professional
ethics is usually understood to be implied in the attorney's oath.
This does not mean that the attorney has no recourse against in-
justice by the judiciary, for whenever there is proper ground for
serious complaint against a judicial officer, it is the right and duty
of the lawyer to submit his grievance to the proper authorities.
In such cases, .but not otherwise, such charges should be en-
couraged and the person making them protected.
"If in good faith an attorney believes that a rule of court
circumscribes the rights which the law gives to his client, he has
the right to proceed by ordinary legal methods to test the validity
of the rule, and ought not to he regarded in contempt of court for
doing so. * * *"
The final statement above is taken from the opinion by Judge Parker
in Hunt v. State, 5 C. C. (N.S.) 62I, affirmed without opinion, 72 Ohio
State, 643, which reads in part, pp. 640, 641 :
ATTORNEY GENERAL
"* * * And it seems .to us that an attorney ought not to be
regarded as in contempt of court, nor his client, if they in good
faith ;believe that a rule in some way circumscribes the rights the
law gives them and, thus believing, proceed by ordinary legal
methods to test its validity. And unless there is something very
extraordinary about the case, calling upon t-he court to invoke this
extreme course of proceeding to punish them, we regard contempt
proceedings as quite inappropriate. Haines v. Haines, 35 Mich.,
138; Weeks v. Smith, 3 Abb. Pr. (N. Y.). 211.
''Obviously, an attorney who would refrain from thus pro-
ceeding, or who would induce his client to thus refrain, where he
was acting in good faith and upon an honest belief that such action
was necessary to preserve his client's interests or to maintain his
own rights, an attorney who under such circumstances would fail
to act, through fear of consequences either in the way of disfavor
upon the part of the judge or punishment by fine or imprison-
ment, would and ought to be branded as a craven and a poltroon,
and he would be quite unworthy of his high commission as a
member of the bar. He would be recreant to the honorable tradi-
tions of the bars of England and America, which bodies have
always been in the van in every movement and effort to resist
the tyrannical exercises of arbitrary power by government or its
agents. * * *."
\i\/ith this notion 111 mind as to duty of the officer concerned, in his
capacity as assistant prosecuting attorney, I find it impossible to conclude
that such could be carried on completely free of any subordination to his
superior in his capacity as court constable, and so conclude that the two
offices described are incompatible.
In this situation, for the reasons hereinbefore indicated, it is my
opinion that the office of court constable, appointed under the provisions
of Section 2701.07, Revised Code, Section 1692, General Code, is incom-
patible with the office of assistant prosecuting attorney.
Respectfully yours,
c. \VILLIAM O'NEILL
Attorney General
OPINIONS
POLICE RELIEF AND PENSION FUND:
I. UPON COMPLIANCE WITH CONDITIONS SET FORTH IN
SECTION 741.54 RC, 46JI-4 GC, MEMBER ENTITLED TO
PAYMENT PROVIDED THEREIN FROM STATE TR-EAS-
URY.
z. THE ASSETS OF FUND, IF ANY, ON DECEMBER JI, 1947,
TOGETHER WITH SUM OF $I,ooo.oo MULTIPLIED BY
NUMBER OF :MEMBERS IN FUND AT TIME DISTRIBU-
TION OF STATE FUND IS TO BE MADE, IN OR IMMEDI-
ATELY FOLLOWING MONTH OF MARCH EACH YEAR,
IS TO BE THE BASIS TO COMPARE ASSETS OF FUND
ON NEXT PRECEDING JIST DAY OF DECEMBER.
J. FUND ESTABLISHED AFTER DECEMBER JI, 1947,
AMOUNT TO BE USED TO DETERMINE ELIGIBILITY TO
RECEIVE PAYMENT FROM STATE FUNDS, IS $1,ooo.oo
MULTIPLIED BY NUMBER OF MElVIBERS, CONTRIBU-
TION'S IN FUND-SUM TAKEN AS BASIS TO COMPARE
WITH AMOUNT OF ASSETS OF FUND ON NEXT PRE-
CEDING JIST DAY OF DECEMBER.
SYLLABUS:
1. Under the provisions of .Section 741.54 Revised Code, 4631-4 G.C., each police
relief and pension fund, regardless of the time when it was organized, is entitled upon
compliance with the conditions set forth in said Section 741.54, to the payment from
the state treasury provided therein.
2. In determining the qualifications of a .police relief and pension fund to receive
the benefit provided by Section 741.54 Revised Code, 4631-4 G.C., the assets of such
fund, if any, on December 31, 1947, together with the sum of $1,000 multiplied by the
number of members in said fund at the time when distribution of such state fund is to
be made, to wit, in or immediately <following the month of March in each year, is to be
taken as the basis for comparison with the assets of such fund on the next preceding
31st day of December.
3. In case a police relief and pension fund was established after the 31st day of
December, 1947, then the amount to be used, under the provisions of Section 741.54
Revised Code, to determine its eligibility to receive the payment therein provided from
state iunds, is the sum of $1,000 multiplied by the number of members in said fund,
and such sum is .to be taken as the basis for comparison with the amount of the assets
of such fund on the next preceding 31st day of December.
ATTORNEY GENERAL
Columbus, Ohio, November 23, 1953
Bon. James A. Rhodes, Auditor of State
Columbus, Ohio
Dear Sir:
I have before me your communication requesting my opinion and
reading as follows :
''Section 741.54 R. C. requires the Auditor of State to
distribute the subsidy appropriation made by the General As-
sembly to various Police and Fire Pension Funds who qualify
under a formula established in this and other related sections of
the Code.
"The Auditor's office, of course, desires to make a proper
legal distribution of the appropriation made in House Bill num-
ber 10 for the year 1953-54. This office has made a distribution
to a majority of the pension funds based on reports submitted
in March, 1953. The distribution raised some questions and your
advice is sought for future guidance in such distributions.
"vVe have listed seven cases which present different prob-
lems, hut by no means all, t:hat have come to our attention. The
pension funds in the first four cases were all in existence on
December 31, 1947. The question in each of these cases is:
Should any distribution be made in this case and does the pre-
ceding calendar year (prior to filing a report) determine mem-
bership or should the membership of December 31, 1947 be used?'
''In cases five, six and seven the pension funds were not in
existence in December 31, 1947 and have ,been created by opera-
tion of law. Your opinion is requested as to the proper method
for the Auditor of State to make distributions, provided that this
section, or any other, requires a distribution of such appropriation
to pension funds created subsequent to December 31, 1947. A
further question is, '\Vas the distribution made in case seven to
X Village for the year 1951, a legal payment from the appropria-
tion?'
"Case No. I. A city or village pension fund has assets
of December 31, 195'2 of $4o,ooo. The certification made
to the Auditor of State and the records of this office show
the fund had assets on December 3.1, 1947 of $5,000 plus
$1.000 times 22 members on December 31, 1952 or a total
of $27,000.
"Case No. 2. A city or village pension fund has assets
of December 31, 1952 of $40,000. The certification made
to the Auditor of State and the records of this office show
OPINIONS
the fund had assets on December 31, 1947 of $5,000 plus
$r,ooo times 12 members on December 31, 1947 or a total
of $17,000.
"Case No. 3 A city or village pension fund has assets
as of December 31, 1952 of $r8,ooo. The certification made
to the Auditor of State and records of this office show the
fund had assets on Decmber 31, 1947 of $5,000 plus $r,ooo
times 22 members on December 31, 1952 or a total of
$27,000.
"Case No. 4 A city or village pension fund had assets
as of December 31, I952 of $18,ooo. The certification made
to the Auditor of State and the records of this office show
that the fund had assets on DecenJ>ber 31, 1947 of $s,ooo
plus $r,ooo times 12 members on December 31, 1947 or a
total of $r 7,000. Should a distribution be made in this case?
"Case No. 5. B city or village pension fund was created
in June, 1952 ancl on December 3I, 1952, had assets of
$8o.oo (received from members' contributions) and had 2
members. The mandatory levy has been made .but no tax
money has been received before December 3 I, 1952. Can a
distribution of the legislative appropriation be legally made
to this pension fund?
"Case No. 6. C Village pension fund was created in
Decetnber, 1952 ancl had no assets but 2 members on De-
cember 3 I, 195'2. Can a distribution of the legislative ap-
propriation be legally made to this pension fund?
"Case No. 7 X Village pension fund was created in
September, 1949 and had assets on December 31, 1949 of
$562.00, and had 6 members during the year 1951, and the
office of Auditor of State's records show that this made a
total of $6,562.00. The assets of the fund on December 31,
I95I were $6,I3I.OO and on rhe basis of such figures the
Auditor's office distributed to the Village the sum of $795.00
as its distributive share of the then existing pension appro-
priation. \Vas it correct to use the assets at the close of the
first year the pension system was in existence as the basis
of making a determination of whether or not X Village
was entitled to a distribution as of the close of December
31, I951 ?"
The answers to these questions turn largely upon an analysis of
the provisions of Section 741.54, Revised Code, 4631-4, G. C. This
section reads as follows:
"There is hereby created in the state treasury the 'local
police and firemen's relief and pension fund.' The treasurer of
state shall be the custodian of the fund which shall be distributed
in the manner provided for in this section. The fiscal officer of
ATTORNEY GENERAL
each municipal corporation in which a police or firemen's relief
and pension fund has been established pursuant to section 74r.02
or 74I.32 of the Revised Code shall, in March of each year, certify
to the auditor of state the name of such fund and the total value
of the real and personal property listed for taxation in the munici-
pal corporation.
"The auditor of state shall, t ~ p o n receipt of each certification
issue a warrant on the treasurer of state, payable from the local
police and firemen's relief and pension fund, in favor of each
police and firemen's relief and pension fund in an amout equal
to one tenth of a mill on each dollar value of real and personal
property listed in the certification.
"No distribution shall be made under this section to any
police or firemen's relief and pension fund in any calendar year
if the assets of said fund as of the thirty-first day of December
of the next preceding calendar year are in excess of an amount
equal to the assets of said fund as of December JI, 1947, plus an
amount equal to one thousand dollars multiplied by the number
of members of said fund and no distribution shall be made in any
year if the legislative authority of the municipal corporation in
which the fund has been created fails to comply with section
74JI.09 or 74I.40 of the Revised Code." (Emphasis added.)
Sections 741.09 and 741.40, Revised Code, 4005 and 462r, G. C.,
deal, respectively, with the firemen's relief and pension fund and the
police relief and pension fund. Section 741.09 reads as follows:
"In each municipal corporation in which there is a .firemen's
relief and pension fund established pursuant to section 741.02 of
the Revised Code, the taxing authority thereof shall, each year,
in the manner provided for the making of other municipal levies,
and in addition to all other levies authorized by law, levy a tax
of three tenths of a mill upon all the real and personal property
as listed for taxation in the municipal corporation for the purpose
of providing funds for the payment of benefits and pensions from
the fund. All revenues derived from such levy shall be credited
to the firemen's relief and pension fund of the municipal corpora-
tion.
"If at any time the moneys to the credit of the fund are not
sufficient to meet current relief and pension payments, the legis-
lative authority of the municipal corporation may appropriate,
from the general fund of the municipal corporation to the fire-
men's relief and pension fund, sufficient money to meet such
payments."
Section 741.40 underwent an amendment by the rooth General
Assembly in Senate Bill #44 The section contains a provision sub-
OPINIONS
stantially identical with that contained in Section 741.09, supra, requiring
a tax levy of three-tenths of a mill, and has a further provision which is
to apply in the event a municipal corporation shall have established a
sanitary police fund which shall have been merged by ordinance with the
police relief and pension fund. In such case, the legislative body of the
municipal corporation is required to levy annually a total tax of thirty-
five hundredths of a mill in lieu of the three-tenths of a mill otherwise
required.
Your letter appears to me to present two questions : (I) as to the
distribution of the state's contriibution in case the pension fund was
established after December 31, 1947; and (2) as of what date shall the
total membership of the fund be calculated.
Both of these questions were, in my opinion, fairly covered by Opinion
No. 2641, Opinions of the Attorney General for 1948, page 32, where a
series of questions was presented, the first of which read as follows :
':V\There a firemen's relief and pension fund is established in
a municipal corporation pursuant to Section 4600, General Code,
in any year after the effective date of H.B. 195 (September 25,
I947) and the 4 percent contributions of the members have been
deposited to the credit of said firemen's relief and pension fund,
as provided in Section 4609, General Code, and the tax levy
made as provided in Section 46o5. General Code, hut the pro-
ceeds from such taxes have not been collected and distributed
by the county auditor, is such local firemen's relief fund and
pension fund entitled to receive the distribution provided in
Section 463 I -4, General Code, in an amount equal to I/ IO of a
mill on each dollar value of real and personal property as listed
in the certification by the fiscal officer of such nnmicipal cor-
poration, although the assets of such local fund as of December
31 in such year consisted of members' contributions only?"
The first branch of the syllabus reads as follows:
"I. Upon compliance with the conditions set forth in Sec-
tion 4631-4, General Code, any police or firemen's relief and
pension fund may receive from the State Auditor in March
1948, or in March of any year thereafter, a warrant for the pay-
ment from the state treasury in the amount prescribed by said
Section 463 I -4."
The sections of the General Code, referred to in that opinion were
part of Amended House B111 No. 195, which became effective September
25, I947, and whioh contained a radical revision of the statutes relative to
both the firemen's and the police relief and pension systems. Comment-
ATTORNEY GENERAL
ing on the provisions of Section 46J1-4 General Code, 741.54 R. C., the
then Attorney General said:
"It is to be observed that the fiscal officer of each of these
funds is required during the month of March, 1948 and each
March thereafter, to certify to the Auditor of State the total value
of the property listed for taxation in the municipal corporation
or the outlying portion of the township as the case may be. It
is further provided that the Auditor 'upon receipt of each certifica-
tion provided for herein' shall issue his warrant on the Treasurer
of State for an amount equal to rjro of a mill per dollar of such
taxable property. Before issuing such warrant he is required to
make a comparison of the actual assets in the fund as of December
Jist of the next preceding calendar year with a theoretical sum
arrived at by taking the actual assets in that fund as of December
JI, 1914-7, and adding thereto as many thousands of dollars as
there are members in said fund. He is forbidden to issue the
warrant <Lbove mentioned, if the actual assets in the fund as of
December Jist of the next preceding year are in excess of such
theoretical sum.
"The above provision as to the calculation and comparison
is somewhat confusing. On first impression, it might appear that
no such calculation could be made and no warrant issued earlier
than March of 1949 in favor of a fund which was established
after September 25, 1947, the effective date of the new law.
However, the intention of the General Assembly to authorize the
certificate to the Auditor and the payment by the Auditor in or
immediately following .March of 1948, is too clear to he disre-
garded. There seems to me to be no real difficulty in harmonizing
the several provisions of this section. It is true that in calculating
what might be paid in Maroh of 1948, we are called upon to com-
pare the conditions of the fund as of December J1, 1947, with a
theoretical amount in that fund as of the same date. But that
comparison must plainly result in showing that such fund will be
entitled at least in the first year of the operation of the law, to
the subsidy, because whatever amount has actually come into the
fund by March, 1948, will certainly he less than the same
amount, plus $1,000 multiplied by the number of members in the
system.
"The 'number of members' referred to in this section clearly
refers to the number of members in the system at the time the
calculation is made, and not to the number on December JI,
1947. In the case of a newly organized system such as you sug-
gest, it is manifest that there could be no members in the system
on Decen1:ber JI, 1947 if it had not been organized until a later
time.
"In the light of the foregoing and in specific answer to your
question, it is my opinion that where a firemen's relief and pension
OPINIONS
fund is established in a municipal corporation pursuant to Section
46oo, General Code, at any time after the effective date of H.B.
195 (September 25, 1947) and the tax levy provided in Section
46o5, General Code, has been duly levied, such pension fund may
upon filing with the Auditor of State the certificate required by
Section 4631-4, General Code, receive from the Auditor a warrant
from the subsidy provided by said section."
I concur fully in that statement. It seems necessary for the sake
of clarity to point out that the reference to "March of 1948" grew out of
language contained in the General Code, Section 4631-4, 741.54 R. C.,
which was changed in the revision. The third sentence originally read :
"The fiscal officer * * * shall, during the month of March 1948 and
each March thereafter, certify" etc. In the revision, the sentence reads:
"The fiscal officer shall, in March of each year" etc.
Since the Act became effective September 25, 1947, it IS manifest
that March of 1948 was the earliest date when the certificate of the
fiscal officer could .be filed. As to local pension systems established after
the effective date of the Act, the March following their organization would
be the earliest possible time for such procedure.
The statute provides that "upon receipt of each certification" the
auditor shall issue his warrant ;to each local pension fund. This implies
immediate action but as it is coupled with two conditions, (a) as to the
assets of t:he local fund and (b) that it has made the required levy, we
must assume that ;the Auditor already has the information on these mat-
ters, or has the means of obtaining it at once.
It is to be noted that compliance with Sections 741.09 and 741.40,
Revised Code, does not require that the tax levy shall have been collected,
.but only that it has been levied. Under the provisions of Section 5705.34,
Revised Code, 5625-25, G.C., tax levies must be certified to the county
auditor on or before the first clay of October, or at such later date as may
be approved by the Board of Tax Appeals. It is obvious that a system
which has been organized too late in a calendar year to permit of the
levy of a tax for the succeeding year would not ,!Je able to qualify for the
subsidy in the March next following, ibut that situation would not prevent
it from qualifying in the next following year.
I am convinced that it was not the intention of the legislature to dis-
criminate in the matter of those payments by the state, between local
pension funds established before or after December 31, 1947. That elate,
ATTORNEY GENERAL
for the purpose of estLLblishing a formula or measuring rod was doubtless
adopted merely because it marked the beginning of the operation of the
new law relative to the pension systems, and particularly the subsidy from
the state. There is nothing whatever in the law that would warrant the
suggestion contained in the seventh case which you present, that the date
to be used for fixing the formula should be December 3-1 of the year fol-
lowing the organization of the local fund instead of the date fixed by the
statute.
As to those cases set out in your letter, in which it appears that the
fund was established before December 31, 1947, there would seem to be
no difficulty in applying the formula for determining the amount of the
allowance that is to be made out of the "local firemen's and police relief
and pension fund" in the state treasury. In those cases it is plain that the
fiscal officer of each municipal corporation would during the month of
:March in each year, make the certification to the Auditor of State which
is required by the law, and that the auditor would immediately ascertain
and determine (a) that the municipality in question had levied the three-
tenths of a mill tax required by the law, and (b) whether the assets of
the fund as of December 31st of the next preceding calendar year are or
are not in excess of an amount equal to the assets in said fund as of
December 31, 1947, plus an amount equal to $1,000 multiplied by the
number of members in the system at the time the calculation is made,
which is in :March of the current year. That calculation would determine
whether or not the municipality in question was entitled to .this subsidy
for that year. If it is found to 'be so entitled, payment should be made at
once.
As to the funds that were established subsequent to December 31,
194:7, it is plain that they could not on that date have any assets. There-
fore, the total amount that is to he used for determination of their right
to receive the su,bsidy would consist of the single factor of $r,ooo multi-
plied by the number of members in the system at the time the calculation
is made.
As you state, it appears that the pension funds in the first four cases
instanced by you, were in existence December 31, 1947, while the re-
maining three were organized after that date.
I find it irnpossible on the basis of the facts given in your letter, to
apply the principles and conclusions above set forth to the seven indi-
OPINIONS
vidual cases enumerated. You have appeared to assume that the number
of members in the system is to be taken either as of December 31, 1947
or December 31 of the year immediately preceding the proposed allowance.
Neither assumption is in accord with the conclusion reached in the 1948
opinion, which I consider sound, to wit, that the number which is to be
considered each year for the purpose of applying the formula, is the cur-
rent memJbership, that is, the number of members at the time of the cer-
tification by the fiscal officer of the municipality.
If I could assume that the number of members which you mention
in each case was the number at the time of such certification, my conclusions
as to the right of the several systems to receive the subsidy in 1933 would
be as follows:
Applying the principles <Lbove stated, it would appear to me that in
Cases Nos. r, 2 and 4 the total of the assets of the fund as of December
31, 1952, as compared with the assets on December 31, 1947, plus $r,ooo
multiplied by the number of members in the system, would result in a
denial of the benefits of the subsidy for the year 1953, since their assets
on December 31, 1952, were in excess of the amount arrived at by apply-
mg the formula.
On the contrary, in Cases 3 and 5, those funds would clearly be en-
titled to the subsidy for the year 1953. The fund referred to as Case No.
6, which was not organized until December, 1952, could hardly, prior to
March 1953, have levied the required tax and therefore could not qualify
in March 1953, for the subsidy for that year.
Case No. 7 requires special examination. It appears to deal with
the right of "X" village to receive the payment from the state for the year
1951. The facts given by you do not disclose the amount of the assets
of the fund on December 31, 1950, which would enter into the calculation.
It is stated that during 1951 the system had six members. If I might
assume that the fund had $562 of assets on December 31, I9jO, then it
would appear very clear that that sum was less than the $6,000 which
would be arrived at oby multiplying 6 by r,ooo, and therefore, the fund
of that village would clearly be entitled to the subsidy that was paid to it.
,I do not understand that the amount of the assets in the fund as of De-
cember 31, I9ji, would have anything to do with determining the amount
of the subsidy for 1951. The amount of assets in the system on Decem-
ber 31, 1951, would he one of the elements for determining the right of
ATTORNEY GENERAL
the system to receive the subsidy in the year I952. By supplying the facts
which do not appear, you doubtless will have no difficulty in determining
the legality of the payment you say was made to .that village.
In specific answer to the questions you have submitted, it is my
opinion and you are advised:
r. l!nder the provisions of Section 741.54 Revised Code, 4631-4
G.C., each police relief and pension fund, regardless of the time when it
was organized, is entitled, upon compliance with the conditions set forth
in said Section 741.54, to the payment from the state treasury, provided
therein.
2. In determining the qualifications of a police relief and pension
fund to receive the benefit provided by Section 741.54 Revised Code,
4631-4 G.C., :the assets of such fund, if any, on December JI, 1947,
together \vith the sum of $r,ooo multiplied by the number of members in
said fund at the time when distribution of such state fund is to be made,
to wit, in or immediately following the month of March in each year, is
to be .taken as the basis for comparison with the assets of such fund on
the next preceding 31st clay of December.
3 In case a police relief and pension fund was established after the
31st day of December, 1947, then the amount to be used, under the pro-
visions of Section 741.54 Revised Code, to determine its eligi;bility to
receive the payment therein provided from state funds, is the sum of
$r,coo multiplied by the number of members in said fund, and such sum
is to be taken as the basis for comparison with the amount of the assets
of such fund on the next preceding 31st day of December.
Respectfully,
C. \VrLLIAM O'NEILL
Attorney General
OPINIONS
I. SUBDIVISION-(A) MAY BE CREATED BY CONVEYANCE
OF PART OF SINGLE PARCEL OF LA.ND WHERE EITHER
PART CONVEYED OR PART REMAINING IS LESS THAN
FIVE ACRES-(B) BY SURVEY AND PLAT BY OWNER
WHO ELECTS TO "LAY OUT A V'I'LLAGE, OR SUBDIVI-
SION OR ADDITION TO A MUNICIPAL CORPORATION"
-SECTIONS 7II.OOI, 7II.OI RC.
2. OWNER OF LAND-WHEN HE ELECTS TO LAY OUT A
SUBDIVISION OR ADDITION TO MUNICIPAL CORPORA-
TION-WHEN PROVISIONS OF SECTIONS 7II.OI RC AND
3850 OC ARE MANDATORY-MUNICIPA:L CORPORATION.
3 PROVISIONS OF CHAPTER 711. RC DO NOT PER SE RE-
QUIRE 'SURVEY AND PLATTING OF EVERY SUBDIVI-
SION-RULES AND REGULATIONS-LOCAL JURISDIC-
TION-LOCAL AUTHORITIES-SECTIONS 71L05. 71I.09,
7II.IO RC.
4. ATTEMPTED CONVEYANCE OF REAL PROPERTY-GON-
TRARY TO Ll\ W WHERE THE PROCEDURE WOULD
CREATE A SUBDIVISION-COUNTY RECORDER-SEC-
TION 7II.I3 RC.
SYLLABUS:
1. A "usbdivision," as defined in Section 711.001, Revised Code, may be created
either ( 1) by a conveyance of a part of a single parcel of land whereby either the
part conveyed or the part remaining is less than five acres, or (2) by a survey and
plat thereof by an owner who elects to "lay out a village, or subdivision or addition
to a municipal corporation" as .provided in Section 711.01, Revised Code.
2. When an owner of land elects to "lay out a * * * subdivision or addition to a
municipal corporation" the provisions of Section 7.11.01, Revised Code, with respect to
a survey and plat thereof, being merely restatements without substantive change of
the prior analogous provisions of Section 3580, General Code, are mandatory on such
owner; but .the term "subdivision," in the c o n t e ~ t in which it is used in this section,
has reference only to such a division of land as is involved when an owner thereof
elects to "lay out (an) * * * addition to a municipal corporation" and does not refer
to every division of land comprehended iby the statutory definition of such term set out
in Section 711.001, Revised Code.
3. The provisions of Chapter 711., .Revised Code, do not per se require the
survey and platting of every "subdivision," however created, as such term is defined
in Section 71-1.001, 1Revised ,Code; but such requirement may be established by rules
and regulations promulgated under the provisions of Sections 711.05, 71:1.09 or 711.10,
ATTORNEY GENERAL
Revised Code, in designated local jurisdictions, hy the several local authorities enu-
merated therein.
4. An attempted conveyance of real property is "contrary to the provisions of
Ghapter 711. of the .Revised Code" as this language is used in Section 711.121, Revised
Code, where such attempted conveyance would create a subdivision, as defined in Sec-
tion 711.001, Revised Code, (a) where the grantor has failed to comply with a rule,
promulgated by a local authority as authorized in Sections 711.05, 7H.09, or 711.10,
Revised Code, by the terms of which rule the making and recording of a plat of such
subdivision is required; or (b) where,in violation of Section 711.13, Revised Code,
such attempted conveyance is made "from or in accordance with a plat of a subdivision
as specifically defined in this chapter, before such plat has been recorded in the office
of the c o u ~ t y recorder."
Columbus, Ohio, November 27, 1953
Hon. Mathias H. Heck, Prosecuting Attorney
Montgomery County, Dayton, Ohio
Dear Sir:
I have for consideration your request for interpretation of the provi-
sions of Chapter 71 r., Revised Code, in which the following question is
presented:
To what extent do the proviSions of Chapter 71 I., Revised
Code, impose on the owners of real estate the mandatory duty to
cause surveys to be made of subdivisions of such real estate, to
cause plats of such surveys to be made, to secure the approval of
such plats by :the approving authorities established by law, and
thereafter to cause such plats to be recorded by the county re-
corder?
Chapter /II., Revised Code, consists of Sections 7II.OOI to 711.39,
Revised Code, and is a part of TitJ.e 7 on the subject of "Municipal Cor-
porations.'' Prior to the recodification of 1953 the statutes analogous to
these were Sections 3580 to 3614, General Code, and these two were as-
sembled in a chapter placed in the title on the subject of "Municipal
Corporations."
The sections with w:hich we are here concerned were former Sections
3580 to 3591, General Code, currently recodified as Sections 71 I .OI to
7II.I4, Revised Code, certain of which were amended in many important
respects hy the enactment of House Bill 629, rooth General Assembly,
effective October 16, 1953. This enactment also added certain new sec-
tions to Chapter 71 r.
OPINIONS
An indication of the general subject of this chapter may be seen in
the language of Section 358o, General Code, which section was recodified
as Section 711.01, Revised Code, the language of this section remaining
unchanged in the enactment of House Bill 629, supra. This section prior
to the recodification read as follows:
"When a person wishes to lay out a village, or subdivision
or addition to a municipal corporation, he should cause it to be
surveyed, and a plat or map of it made by a competent Slii'VW)'Or.
The plat or map shall particularly describe and set forth the
streets, alleys, commons, or public grounds, and all in-lots, out-
lots and fractional lots within or adjacent to such village. The
description shall include the courses, boundaries and extent."
(Emphasis added.)
In certain following sections were found requirements as to the con-
tents of plats so made and for the acknowledgment thereof by the owner
and the recording of the plats in the office of the county recorder. All of
these requirements quite plainly referred, of course, to the plats of such
subdivisions as the owners concerned might choose to "lay out" under
the provisions of Section 358o, supra. With this notion in mind we
may observe the provisions of former Section 3591, General Code, as
follows:
'If a person disposes of, offers for sale, or leases for a time
exceeding five years, any in-lot, or out-lot, or any part of either,
in a village, whether incorporated or not, or in an addition to a
municipal corporation, before the requirements of this title are
complied with, he shall forfeit and pay twenty-five dollars for each
lot or part of lot so sold, offered for sale, or leased, to be recov-
ered, with costs, in a civil action, in the name of the county treas-
urer for the use of the county."
It would appear that the reference m Section 3591, supra, to "the
requirements" which must be complied with prior to sale of a lot in "an
addition to a municipal corporation" refers to the making, acknowledg-
ment, and recording of a plat of a subdivision, which under the provisions
of Section 358o, supra, an owner had elected "to lay out."
It may he noted that in the enactment of House Bill 629, supra, the
Legislature did not undertake to change the language of Section 358o,
General Code, beyond that which was effected by the recodification of this
section as Section 711I.OI, Revised Code. The extent of the changes made
ATTORNEY GENERAL
m the code rev1s10n will be noted in the following language m Section
71 I.OI :
'An}' person m<Jy lay out a village, or subdivision or addition
to a municipal corporation, bJ' causing the territory to be surveyed
and by having a plat of it made by a competent surveyor. The
plat shall particularly descri,be the streets, alleys, commons, or
public grounds, and all in-lots, out-lots, fractional lots, within or
adjacent to such village. The description shall include the
courses. boundaries, and extent." (Emphasis added.)
A comparison of the emphasized language in the section as recodified
with that found in the prior analogous section in the General Code is cer-
tainly suggestive of a substantive change, for the mandatory duty to survey
and to plat any subdivision which an owner may "lay out" does not
readily appear from the new language. It must be remembered, however,
that effect must be given to the legislative intent, as expressed in Section
1.24, Revised Code, Section 2 of the Recodification Act, House Bill No.
I, rooth General Assembly, that the new language is to be regarded as a
restatement of existing statutory provisions and not as new enactments
and to the express statement in such section that "it is the intent of the
General Assembly not to change the law as heretofore expressed by * * *
the General Code.''
In vie\\ of this provision I conclude that there is still a mandatory
requirement in Section 71 r.or, Revised Code, to make a survey and a
plat thereof in every instance in which a land owner elects to "lay out"
a "subdivision." The question of whether a subdivision may be created
by some method other than by laying it out by a survey and plat will be
given consideration hereinafter.
Section 359I, General Code, to which reference is made a,bove, was
recodified as Section 71 r. I 5, Revised Code, and as so recodified it re-
ferred to the sale of lots "in a village or in an addition to a municipal
corporation." This section was amended, however, in House Bill 629
to read as follows :
"Any person who disposes of, offers for sale, or leases for a
time exceeding five years, any lot, or any part of a lot, in a sub-
division before sections 7I r.oo1 to 71 r. 14, inclusive of the Revised
Code, are complied with, shall forfeit and pay the sum of not less
than one hundred nor more than five hundred dollars for each lot
or part of a lot so sold, off.ered for sale, or leased, to be recovered,
OPINIONS
with costs, in a civil action, in the name of the county treasurer
for the use of the county."
The effect of this change whereby reference is now made to the sale
of any lot "in a subdivision" can be appreciated only by reference to one
of the new sections enacted in House Bill 629, Section 7'II.oor, Revised
Code, which contains statutory definitions of "plat" and "subdivision."
This section reads as follows :
"As used in sections 71 I.OOI to 711.38, inclusive, of the Re-
vised Code:
" (A) 'Plat' means a map of a tract or parcel of land.
"(B) 'Subdivision' means:
" ( r) The division of any parcel of land shown as a unit
or as contiguous units on the last preceding tax roll, into two or
more parcels, sites, or lots, any one of which is less than five
acres for the purpose, whether immediate or future, of transfer
of ownership, provided, however, that the division or partition of
land into parcels of more than five acres not involving any new
streets or easements of access, and the sale or exchange of par-
cels between adjoining lot owners where such sale or exchange
does not create additional building sites, shall be exempted: or
" ( 2) The improvement of one or more parcels of land for
residential, commercial or industrial structures or groups of
structures involving the division or allocation of land for the open-
ing, widening or extension of any street or streets, except private
streets serving industrial structures ; the division or allocation
of land as open spaces for common use by owners, occupants or
lease holders or as easements for the extension and maintenance
of public sewer, water, storm drainage or other public facilities."
It is thus seen that althoug;h the Legislature has left unchanged the
language of Section 71 r.or, Revised Code, with reference to the laying
out of a village, or subdivision or addition to a municipal corporation, by
causing the surveying of the territory thus laid out, and the making of
a plat based on such survey, there is suggested the question of whether
it has ohanged the meaning of such language indirectly by supplying a
new and much more comprehensive definition of the word "subdivision"
as used throughout Chapter 71 1., Revised Code. The extent to which
this term was expanded by this definition may be seen by a brief reference
to the historical concept of the two words concerned.
The original surveys in that portion of the Northwest Territory
ATTORNEY GENERAL
which later was included within the limits of the State of Ohio were made
under authority of the various acts of Congress, some of which were
enacted prior to the adoption of the United States Constitution. An
instance of this legislation is seen in the Act of Congress of May 20,
1785, I Laws of the United States, 563, an Act entitled"An ordinance
for ascertaining the mode of disposing of lands in the Western Territory."
One of the provisions of this act was as follows:
"The surveyors, as soon as they are respectively qualified,
shall proceed to divide the said territory into townships of six
miles square * * *."
From this we might assume that the township is the original division
in the survey and that any further division of townships would be regarded
as a subdivision, and this, of course, is indicated by the follmving provision
in the same act :
"The plats of the townships, respectively, shall be marked,
by subdivisions, into lots of one mile square, or 640 acres * * *."
This concept of a plat as .being a map of a subdivision, and the con-
cept of a sulx!ivision as constituting a step in the process of surveying
land, is generally recognized in standard works on land surveys. See
Peters' Ohio Lands and Their Su;bdivision, and Clark on Surveying and
Boundaries.
vVith this notion in mind of the hostorical concept of the terms with
which we are here primarily concerned, we may return to the question
of the extent to which their re-definition by statute has affected the provi-
sions of Chapter 71 I., Revised Code.
I have already pointed out that in Section 7II.I5, Revised Code, a
penalty is imposed upon any person who offers for sale any lot in a
subdivision "before Sections 711.001 to 711.14, inclusive, of the Re-
vised Code, are complied with." \h/e thus come to the question of what
requirements are to be found in these sections which must be complied
with, for this language clearly suggests that they contain either a pro-
hibition -or a mandate, or that they authorize the promulgation of a
pmhitbition or mandate.
Section 71 I.OOI, Revised Code, has already been quoted above. It
simply provides definitions for the words "plat" and ''subdivision" and
provides that they shall have the meaning therein designated "as used
66o OPINIONS
in Sections 711.001 to 711.38, inclusive, of the Revised Code." As noted
above, Section 711.01, Revised Code, was not directly changed in the
enactment of House Bill 629; and this section, as already indicated
herein, imposes on owners of land who elect to "lay out * * * a subdivi-
sion or addition to a municipal corporation" the duty to make up a survey
and plat thereof.
It is readily apparent that if the statutory definition of "subdivision"
1s applied to this language then the scope of this section has been vastly
broadened. I am unable to perceive, however, how such definition can be
applied in this instance. In the first place, it must be remembered that
the statutory definition of "subdivision" is such as to comprehend a divi-
sion, or act of dividing, by which one parcel of land is divided into two or
more parcels any one of which is less than five acres. Such a division
could, therefore, very readily be accomplished by a simple conveyance
of a part of a single parcel. The reference in this statute, however, is to
a person who has chosen "to lay out * * * a subdivision or addition to a
municipal corporation." It is extremely difficult, if not imposs1ble, to
suppose that one could "lay out" a subdivision such as this by a simple
conveyance, for this expression quite clearly has reference to the process
of laying out boundaries in the course of a survey and plat thereof.
Moreover, the use of the comma following the word "village," and the
used of the word "or" twice in the phrase immediately following such
comma, is very clearly indicative of the idea that this language was in-
tended to refer to two, rather than three, distinct situations. These
situations are ( 1) the laying out of a ~ i l l a g e , and ( 2) the laying out of
a subdivision or addition to a municipal corporation, the terms "subdivi-
sion" and "addition" being substantially synonymous as here employed.
Both of these situations, it may be noted also, are most commonly en-
countered in (I) proceedings to incorporate a village and ( 2) in
proceedings to annex territory to a municipal corporation; and the
statutes in each instance, Chapters 707. and 709., Revised Code, con-
template the survey and platting of the territory involved. These provi-
sions, incidentally, are wholly in harmony with the view that the provisions
in Section 7II.OI, Revised Code, with respect to a survey and plat thereof,
are mandatory when a subdivision of this particular category is involved.
Finally it must be pointed out that in Section 711. IOI, Revised Code,
reference is made to "plats and plans required by sections 711.05, 711.09
and 711.10 of the Revised Code." The reference to these sections with
ATTORNEY GENERAL 661
no similar reference to any such requirements of Section 711.01, Revised
Code, would indicate the legislative understanding that such section does
not impose the duty to survey and to make up a plat thereof in those
instances in which a subdivision is created merely by a conveyance, as
distinguished from the method described in this section.
For these reasons I am impelled to the conclusion that the context
m which the word "subdivision" is found in Section 711.01, Revisecl
Code, does not permit the statutory definition noted above to be ascribed
to it, and so I conclude that in this instance the word was usecl in the
historical sense whioh I have already pointed out.
Section 711.02, Revised Code, prescribes the contents of the plat
"providecl for in Section 711.01 of the Revised Code," and this, of course,
again refers to the plat which must be made up in cases where owners
have elected to lay out a subdivision in the historical sense. This provi-
sion cannot be considered, therefore, to require a survey and plat in the
case of subdivisions otherwise created.
In Section 711.03, Revised Code, we find the provision for the set-
ting of a corner stone in a surveyed subdivision and in Section 711.04,
Revisecl Code, there is provision for the acknowledgment and recording
of a plat after it has been certified by the surveyor. Both of these provi-
sions quite clearly refer back to the plat of a subdivision which any person
may elect to "lay out" under authority of Section 711.01, supra.
Another provision found in Section 711.04, Revised Code, IS for
the recording of such a plat, which recording is made mandatory; and it
is provided also therein that no such plat may be recorded without the
approval, in the case of lands lying outside a municipal corporation, of
the county commissioners of the county wherein such lands are situated.
In Section 71 I .05, Revised Code, a procedure is outlined for the
submission of a plat for approval in accordance with Section 711.04,
Revised Code, and this also appears clearly to relate back to the provisions
of Section 71 I.OI, Revised C-ode.
A much more important provision in this section is as follows :
"* * * the board (of county commissioners) may adopt gen-
eral rules and regulations governing plats and subdivisions of land
falling within its jurisdiction, to secure and provide for the co-or-
dination of the streets within the subdivision with existing streets
and roads or with existing county highways, for the proper
OPINIONS
amount of open spaces for traffic, circulation, and utilities, and for
the avoidance of future congestion of population detrimental to
the public health, safety or welfare but shall not impose a greater
minimum lot area than 4800 square feet. * * *"
The language in this section relative to the adoption of rules "gov-
erning plats and subdivisions" for the purposes stated in the statute
appears to me to be a broad grant of power and I perceive no reason why
it should not be deemed to include t<he power to promulgate a rule re-
quiring a survey and a plat thereof with respect to any subdivision of
land by the owners thereof, however effected, for it must be remembered
that even though this language is not new it has nevertheless been given
a ne\'v" meaning by reason of the newly added definition of "subdivision"
m Section 7II.ooi, Revised Code.
In this connection it is difficult to see how any such rule could effec-
tively operate to attain the statutory purposes noted above unless provi-
sion were made for making known in some detail the precise extent and
nature of the subdivis1on involved, and this could scarcely be done, and
certainly could not more effectively .be done, otherwise than by a map
or plat of such subdivision.
It may perhaps be conceded that when the provisions of this section,
and of Sections 711.09 and 71 I.IO, Revised Code, relative to rules and
regulations, are considered alone, their interpretation so as to authorize
the requirement of platting may be subject to some doubt, but any such
doubt must be dispelled, however, by the language of Section 71 I. IOI,
Revised Code, referring to "plats and plans required" by these sections,
especially when such language is considered in relation to the circumstance
that such sections contain no language, as we shall presently note, which
per se establishes a requirement for such plats and plans. Accordingly,
I conclude that where such a rule is thus adopted by the board of county
commissioners, a mandatory duty is placed on the owners concerned to
comply with the several provisions in Chapter 71 I., Revised Code, rela-
tive to the approval and recording of plats.
In Section 711.06, Revised Code, we find a provision which might
be thought to 'be one of a mandatory nature. This section is as follows :
"A proprietor of lots or grounds in a municipal corporation,
who subdivides or lays them out for sale, shall make an accurate
plat of such subdivision, describing with certainty all grounds
laid out or granted for streets, alleys, ways, commons, or other
ATTORNEY GENERAL
public uses. Lots sold or intended for sale shall be numbered by
progressive numbers or described by the squares in which sit-
uated, and the precise length and width shall be given of each lot
sold or intended for sale. Such plat shall be subscribed by the pro-
prietor, or his agent duly authorized by writing, and acknowl-
edged before an officer authorized to take the acknowledgement
of deeds, who shall certify the acknowledgement of the instru-
ment, and such plat shall be rec()rded in H1e ()ffice of the county
recorder."
It is to be noted that this section does not actually use the word
"subdivision" but rather refers to a "proprietor of lots or grounds * * *
who subdivides or lays them out f()r sale."
In 37 Ohio Jurisprudence, 72'6, 'Section 405, we find the follmving
statements:
"Those statutes are generally subject to a strict construction
which impose restrictions upon the use of private property, or
which regulate or restrain the disposition thereof, or which, in
general, interfere with private property rights. On the other
hand, exemptions from such restrictive provisions are liberally
construed. In such cases, all doubts are resolved in fav()r of the
property owner, and the scope of such statutes is not to be ex-
tended to include limitations not therein clearly prescribed."
In the instant case we are clearly C()ncerned with a statute which
purports to regulate or restrain the disposition of private property and
this is, therefore, a proper instance for resolution of any doubts in favor
of the property owner.
I consider it to be a matter of some doubt whether the Legislature
intended by the statutory definition of the word "subdivision" to ascribe
the same or a similar meaning to the word "subdivide," and since the
provisions of Section 71 r.o6, Revised Code, were not directly changed
by the enactment of House Bill 629, supra, it might be supposed that the
strict construction which we are required to accord the language in this
section necessitates that it be given the meaning originally ascribed to it
by the Legislature which enacted it, i.e., a meaning in harmony with the
historical concept of the act of stlibdividing lands which we have already
pointed out.
In this same C()nnection it may be observed that the word "subdi-
vide," as used in this section, plainly refers to such a subdivision as is
involved in the making of a plat on which is described (I) all grounds
664
OPINIONS
laid out or granted for streets, alleys, ways, commons, or other public uses
and ( 2) the numbering of lots sold or intended for sale. This would indicate
that reference is made to a subdivision of the sort provided for in Sec-
tion ?I I .OI, supra, rather than to every division of a parcel into two or
more parcels falling within the definition found in Section 7 I 1.00 r, supra.
Finally, it is a matter of some significance that we are here con-
cerned with "a proprietor of lots * * * who subdivides * * * them * * *
for sale." This clearly indicates a future sale and thus is indicative of the
idea that the "subdivision" itself is to be completed before the lots are
sold, and precludes the idea that the subdivision is one which. could be
effected by a conveyance alone. I conclude, therefore, that the statute it-
self does not impose a mandatory duty to survey and to make up a plat
of a subdivision within a municipal corporation merely because a sub-
division by conveyance has been effected within the meaning of the statu-
tory definition of this term as set out in Section 71 I.OOI, supra, as op-
posed to a subdivision in the historical sense of the term.
In Section 7I 1.07, Revised Code, we find merely a proviSion that
upon the recording of the plat the fee of such land designated thereon for
streets, alleys, ways, commons, etc., shall vest in the municipal corpora-
tion concerned; and there is of course nothing in this to suggest in any
way a mandatory duty with reference to platting which would assist us
in the present inquiry.
In Section 7I r.o8, Revised Code, provision is found for the approval
of a plat ,by the city engineer prior to the recording with the county re-
corder, and this, of course, again refers only to the plats of such subdivi-
sions or additions as the owners concerned may elect to lay out under the
provisions of Section 71 I.OI, Revised Code, or to such as may be made
mandatory under a rule adopted by a local authority.
Section 7I 1.09, Revised Cocle, provides for the approval of plats by
a city or village planning commission prior to recording; and authoriza-
tion is given in this section to such planning commission, to a platting
commissioner, or to the municipal legislative authority, as the case may
be, to adopt "rules and regulations governing plats and subdivisions of
land" falling within the jurisdiction of the municipality concerned. Here
again we may perceive the possibility of a mandatory duty to plat a sub-
division being imposed on owners of Teal estate in those cases where a
rule has been promulgated by one of the agencies just mentioned requir-
ATTORNEY GENERAL
mg a survey and plat thereof with respect to any subdivision of land
however effected, for such rule-ma:king authority must be regarded as
being fully as ,broad in scope as that which we have already noted in
Section 711.05, supra. Aside from this possibility I find nothing in the
language of this section which would per se make the procedure manda-
tory.
In Section 71 I.09I, Revised Code, we find provision authorizing a
city, village or county engineer to inspect the construction of streets laid
out by the owner of a subdivision to ascertain whether they have been
constructed in accordance with specifications set forth on the approved
plat; and it is provided that such approval when made shall constitute an
acceptance of the street for public use by the city, village or county, as
the case may .be.
Section '7II.IO relates to the approval of plats of subdivisions in un-
incorporated territory, such approval being required to -be made by the
county or regional planning commission, and these agencies also are given
auvhority to adopt rules and regulations "governing plats and subdivi-
sions of land" falling within their jurisdiction. vVhile there is clearly a
necessity under the provisions of this section of obtaining approval of
these planning agencies in cases where the owner concerned has chosen
to subdivide his land for sale under the provisions of Section 7II.OI, Re-
vised Code, I perceive nothing in any of these provisions which per se
would impose a duty upon such owner to 111'<1>ke up a plat in a situation in
which he has not elected to lay out a subdivision or addition as provided
in such section. Here, again, it is necessary to note an exception in those
cases where a county or regional planning commission has promulgated
a rule requiring a survey and plat thereof with respect to any subdivision
of land, however effected, for their statutory authority in this regard
cannot be deemed less broad in scope than that already pointed out in
Sections 71 r .05 and 71 I .09, Revised Code.
Section 711.101 <l!uthorizes the legislative authority of a municipal
corporation or the board of county commissioners to adopt general rules
and regulations as to land falling within their jurisdiction, setting stand-
ards for the construction of improvements shown on plats and plans "re-
quired by Sections ;rr.os, 711.09 and /II.ro of the Revised Code." This
language clearly indicates that the legislative draftsmen were under the
impression that these enumerated sections either impose or provide for the
666 OPINIONS
impositiOn of a mandatory duty to prepare plats and plans. Moreover, it
may be noted that this section additionally provides that such rules and
regulations ;'may make such installation a condition precedent to the sale
or lease of lots in a subdivision ;" and here again is a very clear indication
of an understanding on the part of the legislative draftsmen that the effect
of this section, considered in relation to Sections 71 r.os, 711.09 and
7II.IO, supra, would .be to forbid, in some instances at least, the sale of
"lots in a subdivision," either. within or without a municipal corporation,
until plats and plans with respect thereto have been prepared, approved
and recorded. The three sections here concerned have already been com-
mented upon above and although in none of them, as we have seen, can
!'here be found any language which can be construed per se to impose
a mandatory duty upon owners who have effected a sulxlivision as defined
in Section 71 r.oor, to make up plats and plans in every case in which a
subdivision is created merely by conveyance, the rule-making authority
therein conferred does authorize the establishment of such duty by action
of the local authorities. For this reason we may conclude that this language
in Section 71 I.IOI, supra, has reference to those cases in which the rule-
making agency concerned has promulgated a rule requiring such pro-
cedure.
It could, perhaps, be argued further that the language noted above
in Section 7 I I. ror is indicative of a legislative understanding, or even of a
legislative intent, to make it mandatory on owners who have effected any
subdivision of their land to have the same surveyed and plats thereof
made regardless of the action or inaction of the local authorities. It must
he remembered, however, that we are here concerned with legislation
which would restrict the right of owners in the sale of property and that
such legislation must .be strictly construed. Accordingly, regardless of what
might seem to have been the understanding of the legislative draftsmen
as to the effect of other provisions of the statute, if there has been omitted
from the statute any language \\"hich clearly imposes such duty, it would
appeaT to be impossible to supply the deficiency by interpretation. This
would appear to be a proper instance for the application of the rule stated
in Slingluff et a!. v. \Veaver, et al., 66 Ohio St., 621, to the effect that
the "question is not what did the General Assembly intend to enact, but
what is the meaning of that which it did enact." The instant case is, of
of course, quite different from that which was before the court in the
Slingluff case, for there the legislative language was clear and without
ATTORNEY GENERAL
667
ambiguity, and the court held that the plain meaning of the legislative
language would not be ignored in an inquiry as to legislative intent. In
the instant case we do have ambiguity, hut such ambiguity arises from
the omission by the Legislature of the keystone, so to speak, of the
structure it might -be thought to have intended to erect, i.e., language
which by any fair interpretation could be supposed to impose the manda-
tory duty of platting in every instance where a subdivision has been ef-
fected. Having failed to enact such a provision, I am unable to see that
the legislative understanding of what had been enacted, or the legislative
intent to enact it, if such -be the case, would be sufficient to remedy the
matter.
Finally, as already pointed out above, this reference to "plats and
plans required by Sections 711.05, 711.09 and 71 I. ro" is readily explained
by the provisions in these sections authorizing, but not requiring, the pro-
mulgation of rules requiring surveys and plats thereof in the case of all sub-
divisions of land. I conclude, .therefore, that the provisions of Section
71 I.I01, supra, indicative though they may be thought to be of a legisla-
tive understanding that Sections 7II.05, 711.09 and 71r.ro, Revised Code,
required the making up of plats and plans, cannot .be relied upon to con-
strue t:he provisions of these sections so as to ma:ke i.t mandatory to sur-
vey and plat a subdivision effected merely by conveyance if the owner
does not choose to do so in a jurisdiction where no rule has been promul-
gated under the provisions of Section 711.05, 711.09 or 71 I. ro, Revised
Code, making such survey and plat a mandatory duty.
Section 711.I02, Revised Code, provides a penalty for the violation
of the rules and regulations adopted pursuant to the next preceding
section.
Section 711. I03 makes proviSIOn for the recording of a plat which
had been tentatively approved prior to June I, 1953.
In Section 71 I. 104 we find a requirement .that lots shown on a plat
which has been recorded as authorized in the next preceding section,
shall be entered on the tax list for taxation according to their lot
numbers and subdivisions, and the further provision that conveyances by
lot number and subdivision shall be sufficient to pass title.
In Section 7II.II is a provision relative to the conveyance of a fee
simple title of all parcels of land shown on plats "mentioned in Section
668
OPINIONS
71 r .or of the Revised Code" as being intended for public use. In none of
the four sections just mentioned is there any language suggestive of
mandatory duty to mwke a plat in a situation other than vhat described
in Section 71 r.or, Revised Code, if the owner of the land concerned does
not choose so to do.
Section 7II.I2 and Section 7II.I2I, Revised Code, read as follows:
Section 71 r. 12:
"A county recorder who records a plat contrary to sections
71 r.or to 711.38, inclusive, of the Revised Code, shall forfeit and
pay not less .than one hundred nor more .than five hundred dol-
lars to be recovered with costs in a civil action by the prosecut-
ing attorney in the name and for vhe use of the county.'"
Section 7II.I2I:
"The county auditor and the county recorder shall not trans-
fer property or record deeds or leases which attempt to convey
property contrary to the provisions of Chapter ?II. of the Re-
vised Code. In case of doubt, the county auditor or county re-
corder may require the person presenting such deed or lease to
give evidence of the legality of a conveyance by metes and
bounds by an affidavit as to the facts which exempt such convey-
ance from the provisions of Chapter 71 I. of the Revised Code.''
(Emphasis added.)
The use of the expression "v.-hich attempts to convey property con-
trary to the provisions of Chapter 71 I. of the Revised Code" is another
instance of language which, it might be argued, is indicative of a legisla-
tive understanding that by the enactment of House Bill 629 statutory re-
strictions have been imposed on the conveyance of land whereby any sub-
division, as defined in the statute, is effected. Certain such restrictions
have already been pointed out in discussing the reference in Section
71 I. ror, supra, to the plats and plans required by Sections 71 I.Oj, 711.09
and 71 I.IO.
Another such restriction was noted also in Section 7II.IOI, supra,
where the installation of certain improvements might, under rules adopted
by a planning commission, the legislative authority of the municipal cor-
poration, or a hoard of county commissioners, be made a condition pre-
cedent to the sale or lease of lots in a subdivision. This restriction, how-
ever, as we have already pointed out, appears to apply only in those in-
stances where a subdivision has been platted either in compliance with the
provisions of Section 71 r.or, Revised Code, or in compliance with a rule
ATTORNEY GENERAL
requmng surveys and plats. Such being the case, it follows that nothing
in Section 7II.I2 or Section 7II.I2I imposes any mandatory duty upon
the owner of land who does not choose to plat such subdivisions of land
as he may create by a mere conveyance in a jurisdiction in which such
procedure is not required by rule.
Section 71 I. 13, Revised Code, contains the following provision:
"Whoever, being the owner or agent of the owner of any
land within or without a municipal corporation, transfers any lot,
parcel, or tract of such land from or in accordance with a plat of
a subdivision as specifically defined in this chapter, before such
plat has rbeen recorded in the office of the county recorder, shall
forfeit and pay the sum of not less than one hundred nor more
than five hundred dollars for each lot, parcel, or tract of land so
sold. The description vf such lot, parcel, or tract by metes and
bounds in the deed or transfer shall not serve to exempt the seller
from the forfeiture provided in this section."
(Emphasis added.)
Here, of course, is a definite restriction on the transfer of land m a
subdivision prior to the recording of a plat thereof.
It is clear in this instance that the Legislature has used the word
"subdivision" in the broadest possible sense permitted in the statutory
definition. The question thus arises, what constitutes a conveyance "from
or in accordance with a plat of a subdivision." Quite obviously the trans-
fer of a lot or parcel of land by lot number and subdivision would be a
conveyance "from or in accordance with a plat of a subdivision." How-
ever, we find the further provision in this section to the effect that a
transfer by metes and bounds shall not serve to exempt the seller from the
forfeiture therein provided. This could perhaps indicate an intent that a
subdivision, i.e., a division of one parcel of land into two or more parcels, ef-
fected by a conveyance by metes and bounds, should not be effected unless
and until a plat of such subdivision has been recorded, were it not for the
fact that the penalty is imposed when a transfer is made "from or in
accordance with a plat." The language thus quoted quite plainly indicates
that a plat must have been in existence prior to the conveyance, and it
would appear to follow that where no such plat is in existence at the time
of the conveyance, i.e., where a subdivision itself comes into existence by
virtue of the conveyance, no penalty was intended. To say the least, this
language is ambiguous, and since it is necessary to accord it a strict con-
struction in favor of the owner, I readily conclude that unless there be an
OPINIONS
unrecorded plat in existence at the time the conveyance 1s made, no pen-
alty will be incurred under the provisions of this section.
Section 7II.IJI, Revised Code, reads as follows:
"Notwithstanding the provisions of sections 7 I I .OOI to
71I.IJ, inclusive, of the Revised Code, a proposed division of a
parcel of lane\ along an existing public street, not involving the
opening, .widening or extension of any street or road, and involv-
ing no more than five lots after the original tract has heen com-
pletely subclividecl, may be submitted to the authority having ap-
proving jurisdiction of plats under the provisions of sections
711.05, 71 I.09 or ?I 1.10 of the Revised Code for approval with-
out plat. If such authority acting through a properly designated
representative thereof is satisfied that such proposed division is
not contrary to applicable platting, subclivicling, or zoning regula-
tions i.t shall within seven working days after submission approve
such proposed division and, on presentation of a conveyance of said
parcel, shall stamp the same 'approved by (planning authority) ;
no plat required' and have it signee\ by its clerk, secretary, or
other official as may be designated by it. Such planning authority
may require the submission of a sketch and such other informa-
tion as is per.tinent to its determination hereunder."
The exception set out in the first sentence of this section is such as
to indicate a legislative understanding that in the absence of such a pro-
vision certain subdivisions effected by a conveyance or series of convey-
ances in the situation therein described would require the owner con-
cerned to plat such subdivision, secure an approval of the plat, and to
record it. Here again, it might be argued, is an indication of the legisla-
tive notion that platting was mandatory in every instance in which a sub-
division as defined by the statute has been effected. As already pointed out,
however, such an understanding on the part of the legislative draftsmen
cannot operate to supply language which by a fair interpertation can be
supposed to impose such duty. Moreover, this reference to Sections 7I 1.05,
7I 1.09, and 7I r. ro, may well have .been made here, as we have concluded
it was in Section 711. IOI, by reason of the rule-making authority con-
ferred on the several local agencies mentioned in these sections.
In Section 7 I 1. I 32 provision is made for the adoption of rules and
regulations by a planning commission following public hearing and the
approval thereof by the legislative authority of a municipal corporation
or the board of county commissioners, as the case may be.
In Section 7I 1.14 provision is found for a penalty for the failure to
ATTORNEY GENERAL
plant cornerstones where a village or addition to a municipal corporation
is laid out, and a penalty for surveying and platting, otherwise than as
prescribecl in Sections 7I I.OI to 711.13, inclusive. Neither of .these sec-
tions, of course, acids anything to the resolution of the ,basic question here
involved.
It is thus to be seen from a thorough examination of the provisiOns
of Sections ;r I.OOI and 7 I I. 14, inclusive, that although Section 71 I.OI,
Revised Code, imposes a duty to make a survey and plat in every in-
stance in which an owner of land elects to "lay out" a subdivision within
the historical meaning of such term, there is nowhere therein to be found
any mandatory duty .to survey and plat every subdivision, as this term is
defined by statute, although provision is made for the promulgation of
rules imposing such duty. Accordingly, the penalty provision in Section
71 I. IS, Revised Code, to which we have already referred, would appear
to .be applicable only in those instances where the owners concerned have
elected under the provisions of Section 7'I 1.01 to st11bdivicle in a particu-
lar way, i.e., 'by surveying a tract of land and by making up a plat of such
tract showing the several divisions thereof into smaller units, or in those
instances where the owner concerned has disregarded a valid rule requir-
ing a survey and plat where a subdivision is created by a mere convey-
ance; and I conclude that such is the legal effect of the enactment of
House Bill 629.
Accordingly, m specific answer to your inquiry, it Is my opinion
that:
I. A "subdivision," as defined in Section /I I.oor, Revised Code,
may be created either ( r) by a conveyance of a part of a single parcel
of land whereby either the part conveyed or the part remaining is less
than five acres, or ( 2) by a survey and plat thereof by an owner who
elects to "lay out a village, or subdivision or addition to a municipal cor-
poration" as provided in Section /II.OI, Revised Code.
2. When an owner of land elects to "lay out a * * * subdivision
or addition to a municipal corporation" the provisions of Section 71 I.OI,
I<.evised Code, with respect to a survey and plat thereof, being merely
restatements without substantive change of the prior analogous provisions
of Section 35'80, General Code, are mandatory on such owner; but the
term "subdivision," in the context in which it is used in this section, has ref-
erence only to such division of land as is involved when an owner thereof
OPINIONS
elects to "lay out (an) * * * addition to a municipal corporation" and
does not refer to every division of land comprehended by the statutory
definition of such term set out in Section 71 I.OOI, Revised Code.
3. The provisions of Chapter 7I 1., Revised Code, do not per se
require the survey and platting of every "subdivision," however created,
as such term is defined in Section 7II.OOI, Revised Code; but such re-
quirement may be established by rules and regulations promulgated under
the provisions of Sections 71 r.os, 711.09 or 7I r. IO, Revised Code, in
designated local jurisdictions, by the several local authorities enumerated
therein.
4 An attempted conveyance of real property is ''contrary to the
provisions of Chapter 7I 1. of the Revised Code" as this language is used
in Section 7II.I2I, Revised Code, where such attempted conveyance
would create a subdivision, as defined in Section 71 I.OOI, Revised Code,
(a) where the grantor ha:s failed to comply wi.th a rule, promulgated by
a local authority as authorized in Sections 71I.05, 7I1.09, or 7II.IO, Re-
vised Code, by the terms of which rule t'he making and recording of a
plat of such subdivision is required, or (b) where, in violation of Section
7I r. I3, Revised Code, such attempted conveyance is made "from or in
accordance wibh a plat of a subdivision as specifically defined in this
chapter, before such plat has been recorded in the office of the county
recorder."
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
3
2
95
RETIREMENT SYSTEM, PUBLIC EMPLOYES:
r. VOLUNTARY DEPOSITS IN SAVING FUND--MADE BY
.:VIE}.fBER UNDER AUTHORITY OF SECTION 145.23 (C)
RC-NOT PART OF ACCUMULATED CONTRIBUTIONS
AS TER?.I IS DEFINED IN PARAGRAPH (J) OF SECTION
I4j.OI RC.
2. WHERE }.1EMBER DIES BEFORE RETIREMENT- HA V-
ING ON DEPOSIT WITH SYSTEM A SUM OF MONEY
VOLUNTARILY DEPOSITED-THE SUM DOES NOT PASS
TO DESIGNATED BENEFICIARY TO RECEIVE ACCUMU-
LATED CONTRIBUTIONS.
3 BENEFICIARY- WHO ELBCTED TO TAKE SURVIVOR'S
BENEFITS-MUST FORFEIT ACCUMULATED ACCOUNT,
THE SUNI DEDUCTED FROM COMPENSATION OF MEM-
BER DURING TERM OF PUBLIC EMPLOYMENT PLUS
ANY PAYMENT MADE BY MEMBER TO RESTORE PRE-
VIOUSLY FORF:E1ITED SERVICE CREDIT-VOLUNTARY
DEPOSITS TO ENHANCE PROSP.ECTIVE A N N U I T Y
RIGHTS PASS TO ESTATE OF MEMBER IN EVENT OF
DEATH BEFORE RETIREMENT.
SY.LLABUS:
1. Voluntary deposits in the employe's savings fund, made by a member of the
public employes retirement system under authority of Section 145.23 (C), Revised
Code, do not constitute a part of the "accumulated contributions" of the member as
that term is defined in paragraph (J) of Section 145.01, Revised .Code.
2. Where a member of the public employes retirement system dies before retire-
ment, having on deposit with the system a sum of money deposited voluntarily, pur-
suant to Section 145.23 (.C), Revised Code, such sum does not pass to .the beneficiary
designated by the member to receive the "accumulated contributions" of the member,
pursuant to Section 145.43, Revised Code.
3. A beneficiary, in electing to take survivors' benefits under Section 145.45,
Revised Code, must forfeit the accumulated account of the member, which is the sum
deducted from the compensation of the member during his term of public employment,
plus any payment made by the member to restore previously forfeited service credit;
however, voluntary deposits made by the member .pursuant to Section 145.23 (C),
Revised Code, for the purpose of enhancing his prospective annuity rights upon retire-
ment, pass to the estate of the member in the event of the member's death before
retirement.
OPINIONS
Columbus, Ohio, December I, 1953
Hon. Fred L. Schneider, Executive Secretary
Public Retirement System, Columbus, Ohio
Dear Sir:
I have before me your request for my opinion which reads as follows:
''The section under which the applicant for this particular
survivor benefit, namely, a widow past 65 years of age, is covered
by Section I45-45 of the Revised Code. In the first sentence of
that section reference is made to the 'accumulated account of a
member.' 'vVe do not find a definition of the phrase 'accumulated
account' hut sub-paragraph (J) of Section I45.01 R.C. defines
'Accumulated contributions' as meaning 'the sum of all amounts
deducted from the compensation of a member and credited to his
individual account in the employees' saving fund together with
regular interest .thereon.'
"Our immediate problem involves the determination of
whether in addition to the amount deducted from the deceased
member's salary and reported to this office by his employer, some
nine hundred dollars of additional annuity contributions as au-
thorized by sub-section (C) of Section 145.23 R.C. must be for-
feited by the widow in order to qualify for the survivor benefit."
Section I45-43, Revised Code, provides in material part:
"' (A) Should a member die subsequent to June 14, I95I and
before retirement, his accm1udated contributions and any pay-
ment he has made to restore previousr}>' forfeited service credit
as provided in section 145.31 of the Revised Code, shall he paid
to such person or persons as he has designated in writing duly
executed, signed by him, and filed with the public employees re-
tirement board prior .to his death. * * *
"A contributor may designate two or more persons as bene-
ficiaries jointly to be paid the accumulated account in a lump
sum. * * *" (Emphasis added.)
Certain survivors are allowed to forfeit acceptance of payment of the
accumulations referred to in the above section and to substitute sur-
vivors' benefits under Section 145-45, Revised Code, which reads in part:
"In lieu of accepting the payment of .the accumulated ac-
count of a member * * * who dies subsequent to June 14, 1951
and before retirement as provided in division (A) of section
145-43 of the Revised Code, the surviving spouse if designated
as a sole beneficiary or a certain other survivor if designated as
ATTORNEY GENERAL
a sole beneficiary and receiving at least one half of his support
from the :member at his death may elect to forfeit such payment
and to sUJbstitute certain other benefits described either in divi-
sion (A) or division (B) of this section. * * * If benefits are
paid under division (B) of this section, the acwmulatcd account
of the deceased member shall be transferred to the survivors'
benefit fund. * * * " (Emphasis added.)
Paragraph (B) ( r) following the above-quoted provision allows a
surviving spouse, sixty-five years of age, monthly payments of fifty dollars
per month, where the deceased member had completed at least five years
of contributing service credit with at least one-fourth such year of credit
within the two years prior to the elate of death.
You have asked whether a widow who is past sixty-five years of
age must forfeit "additional annuity contributions" made by the member,
in order to qualify for the survivor benefit.
The statutes set out, supra, indicate that the designated beneficiary
may receive either the accunHtlated account of the member, (which in-
cludes any payment made by the member to restore previously forfeited
service credit), or certain survivors' benefits in the event the beneficiary
meets the qualifications set out in Section 145-45, Revised Code.
The .term "accumulated account" is not defined any where 111 the
code, although the term "accumulated contriibutions" is defined in sub-
paragraph (]) of Section 145.01, Revised Code, as meaning:
"* * * the sum of all amounts deducted fro,m the compensa-
tion of a member and credited to his individual account in the
Employees' savings fund together with regular interest thereon,''
(Emphasis added.)
The "additional annuity contributions" referred to in your request
are provided for in Section 145.23, sub-section (C), Revised Code, as
follows:
"* * * Any member may deposit in the employees' savings
fund, subject to rules and regulations established by the public
employees retirement board, such amounts in multiples of one
hundred dollars as such member desires and such member, at the
time of superannuation or commuted retirement, shall receive in
return therefor an annuity 'having a reserve equal to the amount
deposited. * * * "
It will be observed that these deposits are made voluntarily by the
member, in order to complement the compulsory contributions deducted
676
OPINIONS
from the member's compensation, the object being to build up a greater
annuity upon retirement.
It is manifest that these voluntary deposits do not come within the
definition of "accumulated contributions" as that term is defined in the
public employes retirement law. This being .the case, such deposits are
not within the subject matter with respect to which the member may
designate a beneficiary-recipient in the event of the member's death be-
fore retirement. The widow-beneficiary, by electing to take survivors'
benefits as provided in Section 145.45, Revised Code, must forfeit the
member's accumulated contributions, i.e., the sum in the employees' sav-
ings fund which is comprised of deductions from the member's compen-
sation during his years of public employment. Inasmuch as the designation
of ,beneficiary does not operate to pass to the beneficiary the mem-
ber's voluntary deposits, the beneficiary has nothing in that respect which
she might elect to forfeit in favor of receiving monthly survivor benefits.
There being no specific provision in the retirement law as to the
disposition of a member's voluntary annuity deposits in the event of his
death before retirement, it would appear that such deposits would pass
to the members estate.
Accordingly I am of the opinion that :
I. Voluntary deposits in the employees' savmgs fund, made by a
member of the public employes retirement system under authority of
Section 145.23 (C), Revised Code, do not constitute a part of the "ac-
cumulated contributions" of the member as that term is defined in para-
graph (J) of Section 14.).01, Revised Code.
2. \'Vhere a member of the public employes retirement system dies
before retirement, having on deposit with the system a sum of money
deposited voluntarily, pursuant to Section 14.).23 (C), Revised Code,
such sum does not pass to the beneficiary designated by the member to
receive the "accumulated contributions" of the member, pursuant to Sec-
tion 145-43, Revised Code.
3. A beneficiary, in electing to take ,survivors' benefits under Sec-
tion 145-45, Revised Code, must forfeit the accumulated account of the
member, which is the sum deducted from the compensation of the mem-
ber during his term of public employment, plus any payment made by the
member to restore previously forfeited service credit; however, voluntary
ATTORNEY GENERAL
6;;
deposits made by the member pursuant to Section I45.23 (.C), Revised
Code, for the purpose of enhancing his prospective annuity rights upon
retirement, pass to the estate of the member in the event of the member's
death before retirement.
Respectfully,
c. "WILLIAM O'NEILL
Attorney General
3299
JUSTICE OF PEACE-NO JURISDICTION-TO HEAR CASES
INVOLVING VIOLATIONS OF VILLAGE ORDINANCE WHERE
VILLADE LIES WITHIN TOWNSHIP IN WHICH HE IS
ELECTED.
SYLLABUS:
A justice of the peace does not have jurisdiction to hear cases involving violations
of an ordinance of a village whiCh lies within the township in which he is elected.
Columbus, Ohio, December 3, 1953
Hon. John H. Barber, Prosecuting Attorney
Fulton County, Wauseon, Ohio
Dear Sir:
I have before me your request for my opinion reading as follows:
"I have a request for your opinion on the question of
whether a Justice of the Peace has jurisdiction to hear cases involv-
ing violations of an ordinance of a village which lies entirely
within the township served by the justice. If the justice does
have such jurisdiction, what di,gposition is to be made of the fines
involved therein?
"Being mindful of the general principle that a justice's court
is a court of limited jurisdiction, possessing only such powers as
are expressly conferred by statute, .J have searched the statutes
to determine if jurisdiction is conferred on justices in village ordi-
nance cases, and can find none. Nor can I find where justices are
definitely precluded from assuming jurisdiction. Sec. rgos.og
Ohio Revised Code. provides the mayor shall have final, but not
OPINIONS
exclusive jurisdiction to hear any prosecution for violation of an
ordinance.
"I have ruled that a justice does not have jurisdiction to hear
ordinance cases and pay the fines into the village treasury. To
resolve any doubt about the matter, I have been asked to seek
your informal opinion on these questions."
The jurisdiction of justices of the peace in matters other than civil,
in so far as it is pertinent to your inquiry, is set forth in Section 293I.02,
Revised Code, \vhich provides in part as follows:
"A justice of the peace is a conservator of the peace and has
jurisdiction in criminal cases throughout the township in which he
is elected and where he resides, * * *" (Emphasis added.)
Since, as you .have pointed out in your inquiry, the justice's court is
one of limited jurisdiction, possessing only those powers expressly con-
ferred by statute, Stahl v. Currey, 135 Ohio St., 253, the right to hear
and determine ordinance violation cases, must be derived from that por-
tion of Section 2931.02 cited supra, or from some indication of legislative
intent that ordinance cases were included within the purview of "criminal
cases" as used in that statute.
From a comparison with other statutes it would appear that the
legislature has considered ordinance cases to be in a somewhat different
category than felonies and misdemeanors which are usually collectively
referred to as crimes. For example, in defining the criminal jurisdiction
of the municipal court, power is expressly conferred to hear and determine
ordinance cases as well as misdemeanors, together with jurisdiction to
discharge, recognize o.r commit in felony cases, Section I90I.20, Revised
Code. The same distinction is incorporated in those statutes defining
the jurisdiction of the police court, Sections 1903.06 and 1903.07, Revised
Code, as well as the mayor's court, Sections I9Q5.0I to I9QS.r6, Revised
Code. In the light of these express grants to the municipal, police and
mayor's courts, the lack of such an express grant to the justice's court
assumes added significance.
It may also be noted that our courts have held that the conviction
of a violation of a municipal ordinance is not a "crime" within former
Section 13444-2, General Code, now Section 2945-42, Revised Code, so as
to allow the record of conviction to be introduced for the purpose of
affecting credibility of a witness. Coble v. State, 31 Ohio St., roo.
ATTORNEY GENERAL
A further indication of legislative intent may be gleaned from Sec-
tion 293 I .o8, Revised Code, providing :
"Fines collected by a justice of the peace shall be paid into
the general fund of the county where the offense was committed
within thirty days after collection * * *"
It will be observed that remittance to the county treasury is manda-
tory, subjecting the justice to penalty for non-compliance, Section 2931.09,
Revised Code. There is no provision whereby the justice is permitted to
pay fines into a village or city treasury. Inasmuch as any fines collected
as a result of conviction in ordinance cases properly belong to the munici-
pality in the first instance, the fact that the legislature has omitted to
provide any machinery whereby a justice could pay a fine imposed in an
ordinance case to the municipality entitled thereto, compels me to conclude
that jurisdiction over such cases was not intended.
Accordingly, in specific answer to your inquiry it is my opinion that
a justice of the peace does not have jurisdiction to hear cases involving
violations of an ordinance of a village which lies within the township in
which he is elected.
Respectfully,
c. VhLLIA:M O'NEILL
Attorney General
PLANNING COMMISSION, REGIONAL-AUTHORIZED TO
ENTER INTO CONTRACT WITH OUTSIDE FIRM AS INDE-
PENDENT CONTRACTOR-TO MAKE SURVEYS, STUDIES
AND REPORTS NECESSARY TO PERFORMANCE OF FUNC-
TIONS OF REGIONAL PLANNING COMMISSION.
SYLLABUS:
A regional planning commission is authorized to enter into a contract with an
outside Jirm as independent contractor for the making of such surveys. studies and
reports as are necessary to the performance of the functions of such regional planning
commiSSIOn.
68o OPINIONS
Columbus, Ohio, December 15, I953
Hon. Frank H. Keams, Prosecuting Attorney
Franklin County, Columbus, Ohio
Dear Sir:
I have before me your request for my opinion, reading as follows :
"In your Opinion No. 3063, dated September 23, I953, you
gave as your opinion that, 'Neither the director of the county de-
partment of welfare nor the commissioners of the county are au-
thorized by law to contract with a person or organization outside
of the staff of the welfare department or of the commissioners, for
the purpose of nia:king a survey of the welfare department.'
"At the present time .the Franklin County Regional Planning
Commission is negotiating a contract with Harland Bartholomew
and Associates, of St. Louis, Missouri, to conduct studies and
prepare reports in connection with the preparation of a Master
Plan for the Planning Commission. I have been advised that the
state examiner considers such a contract to be unauthorized, basing
his determination upon your opinion above referred to.
"In view of the uncertainty as to whether the principle ex-
pressed in that opinion also applies to other county agencies such
as the Regional Planning Commission, I hereby request your
formal opinion on the following questions:
" (I) Is the Franklin County Regional Planning Commis-
sion authorized to enter into a contract with an outside firm to
secure services in connection with surveys, studies, and reports?
"( 2) ,If not, does the City of Columbus, which is repre-
sented on the Regional Planning Commission and which con-
tributes to the appropriation for such commission, have authority
under the 'home rule' sections of the Ohio Constitution to enter
into such a cont.ract on behalf of the Regional Planning Com-
mission?"
Before attempting to formulate a direct answer to your inquiries, it
may be appropriate to summarize some of the salient features of the
statutes which provide for municipal, county and .regional planning com-
missions. All statutory references hereafter made are to the Revised
Code, unless otherwise stated.
Section 7I3.01, Revised Code, provides for the estaHishment of
planning commissions in municipalities of varying forms of political or-
ganization.
ATTORNEY GENERAL
681
Section 713.02, Revised Code, exhaustively defines the powers and
duties of such municipal planning commissions. This section contains a
provision wit:h respect to the extra-territorial jurisdiction of such com-
missions, which has significance in considering your questions, and which
1s quoted in part as follows:
"The planning commission established under section 713.01
of the Revised Code shall make plans and maps of the whole or
any portion of the municipal corporation, and of any land outside
thereof, which, in the opinion of the commission, is related to the
planning of the municipal corporation, and make changes in such
plans or maps when it deems it advisable. * * *."
Section 713.05, Revised Code, provides for the expenditure of funds
for planning purposes, as follows:
"The planning commission may control, appoint, or employ
such architects, engineers, and other professional service, and may
appoint such clerks, draughtsmen, and other subordinates as are
necessary for the performance of its functions. The expenditures
for such service and employments shall be within the amounts
appropriated for such persons by the legislative authority of the
municipal corporation, and such legislative authority shall provide
for the expenses and accommodations necessary for the work of
the commission."
Section 713.21, Revised Code, permits the formation of a regional
planning commission by cooperation of municipal planning commissions
and the county commissioners of a county or contiguous counties ; pro-
visions for expenditures of funds are expressly stated as follows :
"* * * \1\fithin the amounts thus agreed upon and appropri-
ated, the regional planning commission may employ such engi-
neers, accountants, and any other employees as are necessary."
Section 713.22, Revised Code, permits, and in one instance requires
the formation of a county planning commission. Such commission in the
same terms as the regional planning commission has the power to "* * *
employ such engineers, accountants, and other employees as are neces-
sary."
Section 713.23, Revised Code, defines the powers and duties of a
regional and county planning commission in the following terms :
"The regional or county planning commission shall make
plans and maps of the region or county respectively, showing the
682 OPINIONS
commission's recommendation for systems of transportation,
highways, park and reoreational facilities, the water supply,
sewerage and sewage disposal, garbage disposal, civic centers,
and other public improvements which affect the development of
the region or county respectively, as a whole or as more .than one
political unit within the region or county, and which do not begin
and terminate within the boundaries of any single municipal cor-
poration."
Sections 713.24 and 713.25, Revised Code, outline the machinery
whereby a regional or county plan upon completion, is certified to munici-
palities having planning commissions, which plan, if adopted by the
municipal planning c01nmission, has the same force and effect "* * *
within such municipal corporation as is provided by law or charter for
plans prepared and adopted by the local planning commission." The
county commissioners may similarly adopt the plan in so far as it relates
to nmHmmicipal territory.
vVith the foregoing .resume of the applicable legislation in mind, it is
necessary to determine the effect thereof upon the powers of (a) the
municipal planning commission, (b) the regional planning commission,
with respect to their authority to contract with outside firms for services
incidental and necessary to the mission of the respective commissions.
A5 you noted in your letter, I have had the occasion to express an
opinion on the authority of certain agencies to contract for such outside
services, Opinion No. 3003, Opinions of the Attorney General for 1953.
Such question has also been before our courts. Gorman v. Heuck, 41
Ohio App., 453; State ex rei. Manufacturers, etc. v. Sayre, 15 Ohio
C. C., 267; State ex rei. Stilson etc. v. Ferguson, 154 Ohio St., 139.
The opinion above referred to and .the decisions are in unanimous agree-
ment on the principle that no agency, officer, or entity may m<l!ke such a
contract unless the power is expressly granted in, or necessarily implied
from the statutes applicable to them. It is apparent, however, that in
applying this principle to any given case, precedent is of somewhat less
value than analysis of the terminology of the statutes involved.
Revisiting the statutory powers of a municipal planning commission,
m this respect, it is quite clear that the authority to engage an outside,
or independent contractor, is given. The words, "* * * control, appoint
or employ such architects, engineers or other professional service * * *",
as used in Section 713.05 supra, are corroborative of this viewpoint. If
ATTORNEY GENERAL
we were to apply all the common dictionary definitions of the words,
"control," "appoint," and "employ", the only reasonable inference is that
the legislature intended to run the .gamut of all commonly accepted means
whereby the work, labor and service of one person or firm might be
engaged by another. In this connection the term "other professional
service" is likewise significant, since the legislature, here, apparently
intended to denominate the service itself as distinct from the performers
of the service. This brings the terminology squarely within the recog-
nized legal distinction between .the employer-employe relationship on the
one hand and the principal-contractor relationship on the other.
"* * * Thus it will be seen, without any extended analysis
of any of the various lexical definitions, that the significant
element in .the relation of an employe and his employer, spe-
cifically considered, is personal service, while the significant
element in such relation between a contractor and his principal
is the work, as an entirety to be pe.rformed by him." Farmer v.
St. Croix Power, 93 N.W. 830, 834, I 17 Wis., 76.
It is also noteworthy that in the same sentence wherein the power
to "control, appoint or employ" architects and the like is granted, in the
engagement of subordinates such as clerks and draughtsmen the term
"appoint" is used alone without the broadening influence of the words
"control" and "employ." In my opinion this omission is more than acci-
dental and indicates a legislative intent that such subordinates shall be
strictly salaried employees in contrast with the "architects, engineers and
other professional service" which could be engaged on other contractual
bases.
It is considered that this conclusion as applied to a municipal planning
commission is in accord with both my previous opinion No. 3063 and the
court decisions, cited supra.
In opinion No. 3o63 the statute gave the director power to "* * *
appoint all necessary assistants, superintendents * * * and all other
employees of the department. * * *"
Obviously this grant is restrictive m nature similar to the limitation
of a municipal planning commission to appoint "subordinate employees"
without the broader power of such commission to "control, appoint or
employ architects, engineers and other profess'ional service * * *".
In the Gol'man case, supra, it was argued that statutory provisions
OPINIONS
authorizing county commissioners to provide "such facilities as will result
in expeditious and economical administration of the said county offices"
and authorizing the county auditor to "appoint and employ such experts,
deputies and clerks, or other employees" were broad enough to allow the
engagement of an independent corporation for purposes of research and
recommendation of procedures for more efficient and economical operation
of these county offices. The court rejected these arguments, holding that
power to provide facilities and the like did not comprehend the power to
contract for such services, and further holding that an appointment by a
county auditor of an expert must be of a person who could be deputized,
for which deputization a corporation could not qualify. Clearly, the
holding in the Gorman case is not in conflict with the conclusions I have
previously reached.
In State, etc. v. Sayre, supra, the court held that a statute empowering
a tax assessor or board of assessors, to "appoint" an "assistant," or
"expert assistants," did not authorize the engagement of an independent
firm. Here, again, the appointment power was restrictive in its termi-
nology and not opposite to the language employed by the legislature with
respect to municipal planning commissions.
The holding of State, etc. v. Ferguson supra, IS best expressed by
the following quotation of the second branch of the syllabus, as follows:
"The phrase, 'employ such assistants,' as used in Section
II78-I7, General Code, does not authorize the director of high-
ways to enter into a contract with a firm of professional engi-
neers, delegating authority to such firm to make surveys, plans
and contract specifications for the improvement of a state high-
way, for which service compensation is to be a fee based upon a
specified percentage of the cost of the proposed highway im-
provement."
The court, in its opinion based its holding upon the commonly under-
stood meaning of "assistants." This is likewise readily distinguishable
from the broader language used in Section 713.05 supra.
The language used by the legislature with respect to the authority
of a regional planning commission in empowering it to "* * * employ
such engineers, accountants and other employees as are necessary,"
occupies a neutral .territory between the broad implications of the cor-
responding language of Section 713.03 supra, applicable to the municipal
ATTORNEY GENERAL
685
planning comm1sswn, and constructions imposed by my previous opm10n
and the judicial decisions previously summarized. Perhaps the closest in
terms of precedent is the Gorman case, supra, which construed Section
5548, General Code, now Section 57IJ.OI, Revised Code, \vith respect
to the county auditor's power to "* * * appoint and employ such experts,
deputies and clerks, or other employees as he may deem necessary to the
performance of such duties as such assessor * * * ." As previously noted,
however, the court based its finding on the fact that an independent
corporation was not capable of deputization stating, in part, at page 461 :
'The section ( 5548, G.C.) refers to the duties of the county
auditor in the assessment of real estate, and the reappraisal
thereof. The evidence shows that the tax commission of Ohio
approved .the appointment only of such experts as should be depu-
tized by the auditor. As the bureau was a corporation, it could
not be, and was not, deputized, and hence there was not such
compliance with this section of the General Code as would au-
thorize the contracts with the bureau upon the premise that
it was an expert capa!ble of employment."
It would, accordingly, appear that the above language is strongly
susceptible of the implication that had the contractor been an individual
capable of deputization, and retained for the purpose of assessing and
reappraising real estate, the language of the statute would have been held
sufficiently broad so as to allow an engagement on a contractual basis
similar to that now under consideration.
The case of State etc. v. Ferguson, supra, which has also been con-
sidered with relation to the powers of a municipal planning commission,
dealt with a statute, Section II78-I7 General Code, now Section 550I.IO,
Revised Code, providing .that the highway director "may employ such
assistants as are necessary to prepare plans and surveY's * * *," and also
"may appoint additional clerks and stenographers, and such other engi-
neers, inspectors and other employees as he may deem necessary * * *. ''
This case is factually distinguishable since the legislative intent is clearly
and unmist<l!ka:bly expressed in the same section wherein it is stated that
"all employees a.nd appointees hereinbefore mentioned in this act shall, in
addition to their salaries, receive their actual necessary traveling expenses
when on official business." Manifestly the legislature contemplated
J)O.thing more than the employer-employee relationship denoted by the
term "salaries."
686 OPINIONS
Both my previous opinion No. 3o63 and the case of State etc. v.
Sayre, discussed supra, involved statutes using the more restrictive term
"appoint" rather than the term "employ" as used in the statute here
under consideration, and also referred to "assistants" which term is like-
wise not used in the enumeration of the employment powers of the regional
planning commission.
Lacking then, a precise precedent, some indication of legislative intent
may be gleaned from a consideration of the regional planning commission
and its relationship to other statutory bodies having kindred functions.
As an offspring of the marriage between the county commissioners
and the municipal planning commission it is a reasonable assumption that
the regional planning commission was intended to inherit the characteris-
tics of its progenitor in so far as necessary to the performance of its
functions. This is particularly so since its duties are fundamentally the
same as the municipal planning commission. While it is true that the
legal effect of the planning of the regional commission is vastly different
from that of the municipal, in that its plans require adoption by the parent
municipalities or boards of county commissioners in order to become
operative, nevertheless its duties to "make plans and maps of the region
* * *" is expressed in precisely the same terms as the duty of the municipal
planning commission in this respect. Given this identity in mission it is
a reasonable inference that the legislature intended a corresponding identity
in the means to be employed in its accomplishment. Although the drafts-
man of the statutes .has employed somewhat different terminology in those
provisions dealing with employment, it is worthy of note that Section
713.05 and 713.21 differ in the time of their respective. enactments by
approximately eight years and may represent differing modes of expres-
sion of different draftsmen.
Perhaps it is not amiss to digress into the related field of zoning in
order to ascertain a further clue to the probable legislative intent in this
regard. Examination of Sections 713.06 to 713.10, Revised Code, dis-
closes that the planning and zoning functions are closely integrated in the
planning commission on the municipal level. In like manner there is a
similar integrated relationship between the county rural zoning commis-
sion and the regional or county planning commission. Section 303.05,
Revised Code, after requiring the submission of a zoning plan by the county
ATTORNEY GENERAL 68;-
rural zoning commission gives the following unmistakable grant of power
to contract with independent firms in the following language :
* * * The zoning commission may, within the limits of the
moneys appropriated by the hoard for the purpose, employ or
contract with such planning consultants and executive and clerical
assistants as it deems necessary. * * *"'
The statute then later provides :
"* * * In any county where there is a county or regional
planning commission, the zoning commission may request such
planning commission -to prepare or make available to the zoning
commission a zoning plan. * * *"
The conclusion to be drawn from this latter portion of this statute is
that upon request the regional or county planning commission is required
to assume this planning aspect of the rural commission's zoning functions.
It could hardly be supposed that the legislature, in permitting the rural
zoning commission to relieve itself of the duty to prepare a zoning plan
must have considered that the successor to that responsibility already
possessed in the exercise of its planning functions the same means of
discharging such responsibility, i.e., contracting with independent firms.
\Vhile no one of the previously discussed indicia of legislative intent
IS, per se, controlling, their cumulative effect coupled with a lack of evi-
dence of a contrary legislative intent, compels me to conclude that the
regional planning commission possesses the necessary power to contract
with independent firms.
Having reached this conclusion, it becomes unnecessary to consider
your second question.
Accordingly, in specific answer to your mqtnry it is my opinion that
a regional planning commission is authorized to enter into a contract
with an outside firm as independent contractor for .the making of such
surveys, studies and reports as are necessary to the performance of the
functions of such regional planning commission.
Respectfully,
c. \VILLIAM O'NEILL
Attorney General
688 OPINIONS
3343
r. SUBDIVISION-WHERE CREATED BY CONVEYANCE BY
METES AND BOUNDS-TRACT LESS THAN FIVE ACRES
IN EXTENT FROM SINGLE PARCEL OF LAND-NO RE-
QUIREMENT SUBDIVISION BE PLATTED EXCEPT BY
TE'RMS OF RULE PROMULGATED BY LOCAL AUTHOR-
ITY-ANY SUCH RULE SUBJECT TO EXCEPTION SET
OUT IN SECTION 711.131 RC, IN CASE OF SUBDIVISIONS
WHICH DO NOT INVOLVE OPENING OR ALTERATION
OF NEW STREETS AND ROADS NOR MORE THAN FIVE
7II.OOI, 71I.05, 711.09, 71r.to RC.
2. PRDVISIONS OF HB 629, roo GA, CHAPTER 711 RC. EFFEC-
T>IVE OCTOBER 16, 1953, OPERATE PROSPECTIVELY-NO
APPLICATION TO DIVISION OF LAND CREATED BY
CONVEYANCE EFFECTED BY EXECUTION AND DE-
LIVERY OF INSTRUMENT OF CONVEYANCE PRJOR TO
EFFECTIVE DATE.
3 LEASE FOR TERM OF FIVE YEARS, OPTION TO RENEW
FOR FURTHER PERIOD, IS A LEASE ''FOR A TIME EX-
CEEDING FIVE YEARS" AS LANGUAGE IS ENfPLOYED
IN SECTION 71I.I5 RC.
4 SECTIONS 711.05, 71I.IOI RC, AS TO ADOPTION OF
"RULES AND REGULATIONS GOVERNING PLATS AND
SUBDIV,ISIONS" AND "RULES AND REGULATIONS SET-
TING STANDARDS AND REQUIRING AND SECURING
THE CONSTRUCTION OF IMPROVEMENTS SHO\VK ON
PLATS AND PLANS" PERMISSIVE ONLY.
5 BOARD OF COUNTY COMlVIISSIONERS-lVIAY P1<.0PEl{LY
DIVIDE TERRITORY UNDER ITS JUINSDICTION
DISTRICTS-MAY :MAKE RULES APPLICABLE WITHIN
DIFFERENT DISTRICTS.
6. WHERE BOARD OF OOUNTY COMMISSIONERS FAILED
TO ESTABIJISH MINIMUM STANDARDS FOR PLATS AND
SUBDIVISIONS- BOARD WOULD BE \VITHOUT AU-
THORITY TO WITHHOLD APPROVAL OF ANY PLATS
SUBMITTED FOR APPROVAL OR REJECTIOK.
ATTORNEY GENERAL
689
SYLLABUS:
1. Where a subdivision, as defined in Section 711.001, Revised Code, is created
by the conve;:yance by metes and bounds of a tract less .than five acres in extent from
a single parcel of land, there is no requirement under the provisions of Chapter 711,
Revised Code, that such subdivision be platted except as such procedure is required
by the terms of a rule promuLgated by a local authority as provided in Sections 711.05,
711.09 or 711.10, Revised Code; but any such requirement in the rule of a local
authority is subject to the exception set out in Section 711.131, Revised Code, in the
case of subdivisions which do not involve ( 1) the opening or alteration of new streets
and roads, nor (2) more than five lots.
2. The provisions of House Bill 629, 100th General Assembly, by which certain
provisions in Chapter 711., Revised Code, were amended effective 'October 16, 1953,
operate prospectively only and they have no application to a division of land created by
a conveyance effected by the execution and delivery of an instrument of conveyance
prior to such effective date, even though such instrument is not recorded prior to such
date.
3. A lease for a term of five years with an option to renew for a further period
is a lease ''for a time exceeding five years" as this language is employed in Section
711.15, Revised Code.
4. The provisions in Sections 711.05 and 711.101, Revised Code, relative to the
adoption of (1) "rules and regulations governing plats and subdivisions," and (2)
"rules and regulations setting standards and requiring and securing the construction of
imprmcments shown on plats and plans," are permissive only.
5. In the adoption of rules and regulations under the provisions of Section 711.05
or Section 711.101, .Revised Code, the board of county commissioners may properly
divide the territory under their jurisdiction into districts and may make varying r.ules
applicable within different districts, provided such variations are reasonable and non-
discriminatory and are reasonably related to the statutory objectives for the attainment
of which such rule-making power is conferred.
6. Where a board of county commissioners has failed to esta!blish minimum
standards for plats and subdivisions by the exercise of its rule-making power under
the provisions of Section 711.05. Revised Code, such board would be without authority
to withhold its approval of any plats submitted for approval or rejection under the
provisions of Sections 711.04 and 711.05, iRevised Code.
Columbus, Ohio, December 22, 1953
1:-Jon. Viray Bevens, Prosecuting Attorney
Pike County, \iVaverly, Ohio
Dear Sir:
I have for consideration your inquiries relative .to the application of
the provisions of Chapter 711 ., Revised Code, to certain fact situations
therein described. For the sake of convenience I am consolidating m
one -opinion your own and certain other questions recently presented by
other prosecutig attorneys. These inquiries are as follows:
6go OPINIONS
INQUIRY I
'''A' is the owner of a tract of land containing twenty-five
acres situate in .the Military Survey Land of Pike County, Ohio.
The aforesaid twenty-five acres of land is in one survey and ap-
pears on the tax duplicate as one entry, and all of the same is one
contiguous parcel of land.
"'A' conveyed three acres from the aforesaid twenty-five
acre tract on August I, I953, to 'B' by vVarranty Deed.
"Pursuant .to Section 71 I.OOI et seq. of the Revised Code, I
would appreciate it sincerely if you would please forward the an-
swers to the following inquiries :
" (a) Does 'A's' conveyance fall under the category of
'subdivision' as defined by Section 7I I.OOI, thus making it neces-
sary to require platting?
"(h) If the answer to (a) is yes, is 'A' required to plat
the entire twenty-five acre tract of land -owned by him?
"(c) Is 'A' required to plat only the three acre parcel of
land being conveyed?
" (d) In view of the fact the conveyance was made, exe-
cuted and delivered prior to the effective date of Section 7II.OOI.
will 'A' or 'B' be required to comply with Section 7II.OOI before
said conveyance may be transferred and recorded?
" (e) May the County Auditor transfer or the County
Recorder record the foregoing conveyance of three acres until
the same has been platted and approved by the County Commis-
sioners and properly transferred and recorded as the law provides
for transferring and recording plats?"
iNQUIRY IJ
" 'A' is the owner of 202 acres situated in the Congress Lands
of Pike County, Ohio. All of this land is contiguous and adjacent
to each other and bounded by a common line circumscribing the
entirety of it. Portions of this land presently appear on the tax
duplicate in quantities ranging from 8o acres down to 2 acres.
"'A' is desirous of selling go acres out of the aforesaid 202
acre boundary of Janel. When .the go acres have been properly
circumscribed, it appears that there will be transferred from par-
cels of land appearing on the tax duplicate quantities Jess than
5 acres.
''Pursuant to Section 7 I r.oor et seq. of the Revised Code, I
would sincerely appreciate if you would please forward to me the
answers to .the inquiries :
" (a) Is 'A' required to plat the entire farm of 202 acres?
''(b) Is 'A' required to plat the 90 acres being sold?
ATTORNEY GENERAL
"(c) Is 'A' required to plat the parcels of land contained
within the 90 acre boundary which will ibe removed from the tax
duplicate in quantities of less than 5 acres?
" (d) May the County Auditor transfer and the County
Recorder record the foregoing conveyance of 90 acres until the
same has .been platted and approved by the county commissioners
and properly transferred and recorded as the law provides for
transferring and recording plats?"
INQUIRY III
"'A' is the owner of a nine acre tract of land which has not
been subdivided or platted as required by Section 7 r r.oor of the
Revised Code. This land is situate in the county of Pike and
less than three miles from the corporate limits of the Village of
vVaverly, which has a Planning Commission and has an over-all
planning program.
"'A' conveyed to 'B' a one and one-half acre lot by lease for
a term .of five years. The lease contained an option to renew for
an additi-onal five year term, subject to the same terms and con-
ditions.
"Pursuant to Section 7 I I. r 5 of the H.evised Code, I would
appreciate it if you would answer the following inquiries:
" (a) Does a lease ior five years with an option to renew
for an additional period of time create a lease exceeding five
years?
"(b) >Is the Recorder authorized to record said conveyance
by reason of the provisions contained in Section 71 r. I 5 ?"
INQUIRY IV
"I have received a request from .the Board of County Com-
missioners of Jefferson County to write for an opinion from your
office on the following questions regarding House Bill No. 629:
"(a) Do the Courrty Commissioners have to adopt mini-
mum standards for the construction of streets and submission of
plans and specifications for their approval?
"(b) Do the County Commissioners have discretion to ap-
prove and to make one rule for one part of the county, to another
part of the county?
"(c)
tain rules
629?
Do the County Commissioners have to establish cer-
ancl regulations in the county under House Bill No.
" (d) Do the County Commissioners have to use their own
judgment or follow a minimum standard?"
6gr
Certain of the questions thus presented would appear to have been
OPINIONS
disposed of by the conclusions reached in my op1mon No. 3285, elated
November 27, I953, the syllabus in which is as follows:
"I. A 'subdivision,' as defined in Section 71 r.oor, Revised
Code, may be created either (I) by a conveyance of a part of a
single parcel of land whereby either the part conveyed or the part
remaining is less than five acres, or ( 2) by a survey and plat
thereof .by an owner who elects to 'lay out a village, or subdivision
or addition to a municipal corporation' as provided in Section
711.01, Revised Code.
"2. \iVhen an owner of Janel elects to "lay out a * * * sub-
division or addition to a municipal corporation' the provisions of
Section 711.01, Revised Code, with respect to a survey and a plat
thereof, being merely restatements without substantive change of
the prior analogous provisions of Section 358o, General Code,
are mandatory on such owner; but the term 'subdivision,' in the
context in which it is used in this section, has reference only to
such division of land as is involved when an owner thereof elects
to 'lay out (an) * * * addition to a municipal corporation' and
does not refer to every division of land comprehended by the
statutory definition of such term set out in Section 71 r.oor, Re-
vised Code.
"3. The provisions of Chapter 71 1., Revised Code, do not
per se require the survey and platting of every 'subdivision,'
however created, as such term is defined in Section ;rr.oo1, Re-
vised Code; but such requirement may be established by rules
and regulations promulgated under the provisions of Section
7I 1.05, 711.09 or 71 I.IO, Revised Code, in designated local juris-
dictions, by the several local authorities enumerated therein.
"4. An attempted conveyance of real property is 'contrary
to rhe provisions of Chapter 71 I. of the Revised Code' as this
language is used in Section 71 I.I2I, Revised Code, where such
attempted conveyance would create a subdivision, as defined in
'Section 7II.OOI, Revised Code, (a) where the grantor has failed
to comply with a rule, promulgated by a local authority as au-
thorized in Section 711.05, 711.09 or 7II.IO, Revised Code, by
the terms of which rule the making and recording of a plat of
such subdivision is required; or (b) where, in violation of Sec-
tion 71 I. r 3, Revised Code, such attempted conveyance is made
'from or in accordance with a plat of a subdivision as specifically
defined in this chapter, before such plat has been recorded in the
office of the county recorder.'"
INQUIRY I
\'Vith respect to question (a) in this inquiry, it is clear that although
a conveyance of the sort therein described would create a subdivision
;v1thin the statutory definition of that term no platting would be required
ATTORNEY GENERAL
m the absence of a rule of a local authority hy which the duty to plat is
established.
Moreover, it would appear that no platting is required in this situa-
tion for still another reason, i.e., because the conveyance was made on
August 1, I953 Here it is sufficient to note ( 1) that a conveyance is
effected upon delivery of the instrument of conveyance rather than upon
the recording of that instrument, and ( 2) that statutes are presumed to
operate prospectively unless a contrary intention is plainly manifest in
the enactment. Moreover, in Ohio the General Assembly is without
power .to enact retroactive laws. See Sec. 28, Article I, Ohio Constitu-
tion; 37 Ohio Jurisprudence, 819, et seq., Section 500.
Finally, it is to be noted that the conveyance in this instance would
apparently fall within the exception set out in Section 7II.I3I, Revised
Code, since it would not involve more than five lots and presumably
would involve no new or altered street or road, so that the instrument of
conveyance could be approved by the appropriate planning authority for
recording without platting.
The conclusion thus reached with respect to question (a) makes it
unnecessary to give consideration to the remaining questions in this
mqtury.
INQUIRY II
The facts stated in this inquiry are such as to indicate that although
the conveyance in question would create one or more subdivisions, as this
term is defined in the statute, it would not be sufficient to constitute a
conveyance "from or in accordance with a plat," nor to constitute a
subdivision as such term is employed in 6ection 71 I.OI, Revised Code.
Accordingly, assuming that platting is not required by rule of a local
authority, adopted as provided in Sections . 71 I.Oj, 711.09 or 71 r. 10,
Revised Code, it would follow that no platting would be necessary in this
situation.
This conclusion makes it unnecessary, of course, to give further
consideration to the several specific questions in this inquiry.
INQUIRY III
T>l1e principal question in this inquiry is whether a lease for a five
year term containing an option .to the lessee to renew for any term con-
OPINIONS
stitutes a lease "for a time exceeding five years" as this expression 1s
used in Section 71 I. I 5, Revised Code.
Language quite similar to that noted above IS found m Section
5301 .o8, Revised Code, which reads as follows:
"Sections 5301.01 to 5301-45, inclusive, of the Revised Code
do not affect the validity of any lease of school or ministerial
lands for any term not exceeding ten years or of any other lands
for any term not exceeding three years, or require such lease to
be attested, acknowledged, or recorded."
This language is substantially identical to that of former Section
8517, General Code, the proviGions of which were recently under scrutiny
in Corvington v. Reppert, 156 Ohio St., 41 I. The second paragraph of
the syllabus in this case is as follows:
"A lease of real property for a specified number of years
coupled with an option to extend or renew the same for an addi-
tional period gives the lease effect as an original present demise
for the full term for which it might be made inclusive, contingent
on the election to extend or renew."
In the course of the opinion by Judge Zimmerman, we find this
statement, p. 4 r 5:
''The investigation we have made indicates that the weight
of authority is to the effect that a lease of real property for a
specified number of years, coupled with an option to extend or
renew the same for an additional period, ordinarily gives the
lease effect as a.n original present demise for the full term for
which it might be made inclusive, contingent on the election to
extend or renew. So, where, in the particular jurisdiction, a
statute exists requiring a lease for more than a specified number
of years to he recorded to affect others than the parties thereto,
a lease which with its extension or renewal period runs beyond
such specified time comes within the statute and must be re-
corded. * * *"
On the authority of this decision, therefore, I am impelled to conclude
that the lease described in your inquiry must be considered as one "for a
time exceeding five years."
It does not necessarily follow, however, that platting would be re-
quired in this instance. It would appear that although a subdivision, as
defined by Section 711.001, supra, would be created by such conveyance,
such subdivision would not constitute one of the sort contemplated in
ATTORNEY. GENERAL 695
the language of Section 7I I.OI, Revised Code. Accordingly, platting in
this instance would not be required unless such requirement is to be found
in the rules of the local authority concerned.
INQUIRY IV
Question (a) in this inquiry involves a consideration of the fol-
lowing provision in Section 711.101, Revised Code:
"As to land falling within its jurisdiction or the jurisdiction
of its planning commission, the legislative authority of a munici-
pal corporation, or the board of county commissioners, may adopt
general rules and regulations setting standards and requiring and
securing the construction of improvements shown on the plats and
plans required by sections 7I1.05, 7II.09 and 7II.IO of the Re-
vised Code. * * *"
It is thus apparent that rules adopted under authority of this provi-
sion may relate to two subjects, i.e., (I) to the setting of standards for
the preparation of plats and plans and ( 2) to requiring and securing the
construction of improvements shown thereon. The question at hand
relates to the first such subject, and a rule with respect thereto may be
readily enforced by the operation of the following provision in Section
7 I 1.04, Revised Code:
"No plat certifying lands outside a municipal corporation
may be recorded without the approval thereon of the board of
county commissioners of the county wherein such lands are
situated."
It will be observed that the provision quoted above from Section
71 I. IOI, Revised Code, is to the effect that the commissioners "may
adopt" rules setting standards. Although the cour.ts have on occasion
recognized that permissive language may be considered to impose a
mandatory duty, this is only done where the context clearly indicates a
legislative intent that such be done. In the case at hand I perceive
nothing in the context in which this provision is found which would
justify the view that this language is other than permissive only, especially
when it is remembered that provisions of this sor.t must be strictly con-
strued and ambiguities therein must be resolved in favor of the property
owners. I conclude, therefore, that the board of county commissioners
are under no duty to adopt rules setting standards, as authorized in Sec-
tion 7II.IOI, Revised Code, if they should not choose to do so.
6 OPINIONS
All that has been said above with respect to question (a) would be
equally applicable to question (c), for the provision in Section 7I 1.05,
Revised Code, for the adoption of rules "governing plats and subdivi-
sions" is likewise set out in permissive language.
Question (b) in this inquiry would appear to raise the issue of the
power of the commissioners to adopt rules which in effect would be
zoning ordinances. Zoning ordinances, by their very nature, contemplate
the division of a municipality, or other political subdivision, into districts
and the prescription and application of different regulations in each. s8
American Jurisprudence, 940, Section I. The constitutional validity of
reasonable and nondiscriminatory zoning ordinances is well settled by
numerous decisions and the question at hand would appear to be rather
one of the statutory authority of the board to adopt varying rules for
application in different districts, than one of the constitutional validity of
such rules.
The objectives to be attained by rules which the board may adopt are
stated in Section 7 I I.O 5 as follows:
''* * * the board may adopt general rules and regulations
governing plats and subdivisions of land falling within its juris-
diction, to secure and provide for the co-ordination of the streets
within the subdivision with e.1:isting streets and roads or with
existing county highwa-ys, for the proper amount of open spaces
for tra.ffic, circulation, and utilities, and for the avoidance of
future congestion of population detri11wntal to the public health,
safety, or welfare but shall not impose a greater minimum lot
area than 48oo square feet. * * *"
These objectives appear to me to be such as to be attainable only in
rare instances by rules which would operate uniformly throughout a
whole county, for the variation in existing street, utility, traffic and popula-
tion conditions in and < ~ J b o u t the several municipalities located in many
counties would indubitaJbly present a wide variation of problems. For
this reason I conclude that the language here under scrutiny must be
deemed to include by implication the authority to provide for the appli-
cation of varying rules in different districts within a county.
It is assumed that question (d) in this inquiry relates to the action
of the commissioners in extending or withholding their approval of plats
under the provisions of Sections 7 I 1.04 and 7 I 1.05, Revised Code, which
approval is made a condition of such plats being recorded. The necessity
A T T O R ~ E Y GENERAL
of such approval before recording has been noted above m the former
section, and in the latter we find this provision :
"* * * The ground of refusal to approve any plat, submitted
in accordance with section 7 I 1.04 of the Revised Code shall be
stated upon the record of the board and, within sixty days there-
after, the person submitting any plat which the board refuses to
approve may file a petition in the court of common pleas of the
county in which the land described in said plat is situated to re-
view the action of such board."
It would manifestly be impossi1ble to sustain any decision of the board
refusing to approve a plat unless it could be shown to have been predi-
cated on a failure to meet a standard of some sort, for it certainly cannot
be supposed that the board could act arbitrarily in such matters by mak-
ing its own rules and standards in each instance so to speak. Accordingly
since the statute prescribes no standards for use in such cases, but rather
authorizes the board to "adopt general rules and regulations governing
plats and subdivisions," it would appear to follow that unless such stand-
ards were thus established by rule the board would not be justified in
withholding its approval in any instance of a plat being presented to it.
I do not, however, regard this circumstance as sufficient to impose on
suoh board the duty to establish such standards if they should choose not
to do so, for, as already pointed out, the adoption of rules under the pro-
visions of this section is plainly discretionary with the board.
Accordingly, in specific answer to the several inquiries a;bove set out,
it is my opinion that:
r. Where a subdivision, as defined in Section 7I r.ooi, Revised
Code, is created by the conveyance by metes and bounds of a tract less
than five acres in extent from a single parcel of land, there is no require-
ment under the provisions of Chapter 7 I r., Revised Code, that such sub-
division be platted except as such procedure is required by the terms of
a rule promulgated 1by a local authority as provided in Section 7I r.os,
7I I.09 or 7I I. ro, Revised Code; but any such requirement in the rule of a
local authority is subject to the exception set out in Section 7 I r. I 3 I, Re-
vised Code, in the case of subdivisions which do not involve (I) the opening
or alteration of new streets and roads, nor ( 2) more than five lots.
2. The provisions of House Bill 629, rooth General Assembly, by
which certain provisions in Chapter 7I r., Revised Code, were amended
effective October I6, I953, operate respectively only and they have no ap-
OPINIONS
plication to a division of land created by a conveyance effected by the
execution and delivery of an instrument of conveyance prior to such
effective date, even though such instrument is not recorded prior to
such date.
3. A lease for a term of five years with an option to renew for a
further period is a lease "for a time exceeding five years" as this language
is employed in Section 7I 1. I 5, Revised Code.
4 The provisions in Section 7II.05 and 7II.IOI, Revised Code,
relative to the adoption of (I) "rules and regulations governing plats and
subdivisions," and ( 2) "rules and regulations setting standards and re-
quiring and securing the construction of improvements shown on plats
and plans," are permissive only.
S. In the adoption of rules and regulations under the provisions
of Section 7I LOS or Section 7I I.IOI, Revised Code, the board of county
commissioners may properly divide the territory under their jurisdiction
into districts and may make varying rules applicable within different dis-
tricts, provided such variations are reasona,ble and nondiscriminatory and
are reasonably related to the statutory objective for the attainment of
which such rule-making power is conferred.
6. Where a board of county commissioners has failed to establish
minimum standards for plats and subdivisions by the exercise of its rule-
making power under the provisions of Section 7I LOS, Revised Code, such
board would be without authority to withhold its approval of any plats
submitted for approval or rejection under the provisions of Sections
7I 1.04 and 7I LOS, Revised Code.
Respectively,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
334i
MAYOR OF MUNICIPALITY-AFTER JANURAY I, 1954 MAY
NOT RETAIN COSTS COLLECTED IN EXERCISE OF FUNC-
'HONS WHILE 'SITTING AS MAYOR'S COURT-OFFICE IN-
COMPATIBLE-VILLAGE MAYOR AND JUSTICE OF PEACE
OF TOWNSHIP IN WHICH VILLAGE LOCATED - SECTION
I905.2I RC
SYLLABUS:
The enactment of the amendment to Section 1905.21, Revised Code, whereby after
January 1, 1954, the mayor of a municipality may not retain costs collected in the
exercise of 'his functions while sitting as a rnayor's court, renders the office of village
mayor and justice of the peace of the township in which the village is located, incom-
patible.
Columbus, Ohio, December 24, 1953
Hon. \ ~ i l l i a m Ammer, Prosecuting Attorney
Pickaway County, Circleville, Ohio
Dear Sir:
I have before me your request for my opinion, reading as follows :
" 'At the recent election the sole candidate for the position
of }1ayor of (a village) was elected to that office as well as be-
ing elected as justice of the peace for the township in which this
village is located.'
"This is to request your opinion as to whether or not the
offices of village mayor and justice of the peace of the township
are incompatible.
"In checking past opinions of the Attorney General, I find
three bearing on this question, all of which have held that the two
offices are compatible. These three opinions are as follows:
page 284
page 2102
page I38I
"However, there appears to be another matter which has
arisen with the passage of a new statute by the IOOth General
Assembly, this being Section I905.2I of the Revised Code of
Ohio effective October 13, I953, and reading in part as follows:
" 'The mayor of a municipal corporation shall keep a docket.
After January I, I954, he shall not retain or receive for his own
700
OPINIONS
use any of the fines, forfeitures, fees, or costs he collects, but
shall be paid such fixed annual salary as the legislative authority
of the municipal corporation provides under sections 73 r .o8 and
731.13 of the Revised Code of Ohio.'
"It is apparent from this section that the mayor can no
longer retain any of the costs in a case, however, this section in
no way affects the right of .the justice of the peace to retain
costs in a case.
"It is on that fact and clue to the difference in village mayor
and justice of the peace as to retaining costs after January I,
1954, that there would appear to be basis for considering the
office of village mayor and justice of the peace as incompatible.
If one person held both of these positions, it would be possible
for such party to accept the case in whichever court he feels
would be either to the best interest of the village or to his own
best interest.
"I would, therefore appreciate an early reply as to whether
or not the offices of village mayor and justice of the peace are
compatible." (Words in parenthesis, the writer's.)
The test most frequently applied in determining the compatibility of
public offices, is that laid clown in State ex rei. Attorney General v.
Gebert, 12 CC., (N.S.), 274, at page 275:
"Offices are considered incompatible when one is subordi-
nate to, or in any way a check upon, the other; or when it is
physically impossible for one person to discharge the duties of
both."
The amendment to Section rgos.2r, Revised Code, to which you re-
fer in your letter does not change the basic character of the offices of
mayor and justice of the peace so as to require a conclusion that the
offices are now incompatible under the criteria established in the last
cited case. However, the .test above set forth is not the sole and exclu-
sive test to be applied. Thus, it is stated in 32 Ohio J urispruclence, page
9o8, as follows :
"One of the most important tests as to whether offices are
incompatible is found in the principle that incompatibility is rec-
ognized whenever one office is st11borclinate to the other in some
of its important and principle duties, or is subject to supervision
or control by the other, as an officer who presents his personal
account for audit and at the same time is the officer who passes
upon it,-or is in any way a check upon the other, or where a
contrariety and antagonism would result in an attempt by one
person to discharge the duties of both." (Emphasis aclclecl.)
ATTORNEY GENERAL
JOI
It would appear, then, that by operation of Section I9Q.).2I, Revised
Code, as amended, a "contrariety and antagonism" has been created. In
those matters wherein the jurisdiction of the justices' court and the
mayors' court is concurrent, the incumbent is presented with a conflict-
ing choice between his private pecuniary interest to increase the emolu-
ment of his office by sitting as a justice of the peace, and his public interest
and duty to render unto the municipal treasury that which is its due, by
sitting as mayor. In fairness to the incumbent, he should not be faced
with the necessity of making such a choice.
As a matter of practice, the incumbent might well elect to subordi-
nate his private interest and sit as mayor in all .those cases wherein juris-
diction of the respective courts is concurrent. The factor, however, which
is determinative of incompatibility, is not how he actually exercises the
prerogatives of his respective offices, but rather how the statutes creating
or pertaining to the offices permit him to exercise those prerogatives.
There is conceivably, one instance wherein the basic conflict heretofore
noted, would not arise. Where the limits of a township and municipality
become identical and the legislative authority of the municipality pro-
vides by ordinance for the compensation of the justice of the peace, pur-
suant to the provisions of Section 703.22, in such manner that the jus-
tices' emoluments are subject to the same limitations as those of the
mayor under Section I9Q5.2I, Revised Code, then, the grounds for find-
ing of incompatibility would not obtain. It is my understanding that your
inquiry is not predicated on such a state of facts.
Accordingly, in specific answer to your inquiry it is my opinion that
the enactment of the amendment to Section I9QS.2I, Revised Code,
whereby after January I, I954, the mayor of a municipality may not re-
tain costs collected in the exercise of his functions while sitting as a
mayor's court, renders the office of village mayor and justice of the peace
of the township in which the village is located, incompatible.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
702 OPINIONS
RACE TRACK OWNERSHIP-SECTION 3769.07 RC PROHIBITS
ISSUANCE OF A lJICENSE (PERMIT) "TO THE SAME PER-
SON, ASSOCIATION, TRUST OR CORPORATION * * * EX-
CEPT AT ONE RACE TRACK, PLACE OR ENCLOSURE"-PUR-
POSE, TO PRVENT A MONOPOLY OR TENDENCY TOWARD
MONOPOLY OF RACE TRACK OWNERSHIP AND CONTROL
IN THIS TEST BY WHICH ELIGIBILITY
FOR PERMITS IS TO BE DETERMINED - TWO OR MORE
FIRMS OR CORPORATIONS- RULE MAKING POWER OF
STAT.E RACING COMMISSION- PURPOSE AND SPIRIT OF
STATUTE.
SYLLABUS:
The prohibition in Section 3769.07, Revised Code, of the issuance of a license
(permit) "to the same person, association, trust or co!'poration * * * except at one
race track, place or enclosure" is designed to prevent a monopoly, or tendency toward
monopoly, of race track ownership and control in this state. Such provision states
only the minimum test by which eligibility for permits is to be determined in the case
of two or more firms or corporations, and the imposition of a further and more
stringent test, whereby regard is given to a substantial identity of ownership and
control as to two or more corporations, is, therefore, a proper subject of the exercise
of the rule-making power of the state racing commission with the object of promoting
the purpose and spirit of the statute.
Ohio State Racing Commission
Columbus, Ohio
Gentlemen:
Columbus, Ohio, December 29, 1953
Your request for my opinion reads as follows:
"Certain questions have arisen with regard to Section 7 of
the Horse Racing Act (R.C. 3769.07). This commission deems
it wise to seek your guidance by presenting a series of hypotheti-
cals, and asking your opinion as to whether persons, associations,
trusts or corporations encompassed by such hypotheticals come
within the following prohibition contained in Section 7 :
" 'nor shall any license (sic) be granted to the same person,
association, trust or corporation for the holding or conducting
of a horse racing meeting e.rcept at one race track, place or en-
closure in this state.'
ATTORNEY GENERAL
"Attached hereto please find separately stated the three hy-
pothetical fact situations upon which your opinion is sought."
The attached material descriptive of the three hypothetical fact situa-
tions is as follows :
"FIRST HYPOTHETICAL
"Permit Seekers A and B are both corporations. They seek
to operate a running horse meeting and a night harness meeting,
respectively, at different locations, on different dates of the same
year.
"Both corporations have the same president and the same
treasurer. The vice president of A is the secretary of B. The sec-
retary of B is the general manager of A. B's vice president is not
connected with A.
"A has a total of three directors and stockholders all of
whom are directors of B ; B has two additional directors, and all
of its stock is held by a third corporation, the stockholders of
which are undisclosed.
"SECOND HYPOTHETICAL
"Permit seekers C and D are both corporations. They seek
to conduct two running horse meetings at different locations on
different elates of the same year.
"The president of C is vice president of D. One of C's vice
presidents is president of D; C's other vice president is treasurer
of D. One man is secretary of both; Cs assistant secretary is the
second vice president listed above, so also treasurer of D. C's
treasurer is president of D; C's assistant treasurer is neither an
officer nor director of D .but is one of D's five stockholders. C and
D each have two assistant secretaries, and these are the same.
"C has five directors and D has four; all four of D's direc-
tors are also directors of C.
"C has 138 share-holders; D has 5; and four of D's five
share-holders also hold shares in C.
"C also owns the land and buildings where D proposes to
race.
THIRD HYPOTHETICAL
"Permit seekers E, F, G and H are, respectively, a partner-
ship and three corporations, all having their offices and principal
places of business at the same address in the same city. They
wish to conduct four running horse meetings at different loca-
tions on different dates of the same year.
"For the sake of simplicity, the four partners of E are re-
OPINIONS
erred to hereafter as Smith, Jones, Brown and Black. E's profits
are divided evenly between a) the four partners and b) the
owners of the land and buildings upon which E's plant is located.
"The corporate officers of F are: President Smith and Sec-
retary-Treasurer Jones. The directors are Smith, Jones, Brown
and Black. All stock or shares in F is owned by Smith, Jones,
Brown and Black. Land and buildings are not owned hy the cor-
poration.
"The corporate officers of G are: President Jones, Vice
President Black and Secretary Smith. It is presumed that all
stock or shares in G are owned by Smith, Jones, Brown and
Black. Land and buildings are owned by the corporation.
"The corporate officers of H are : President Black, Vice
President Brown, and a close relative of Black's as Secretary-
Treasurer. The corporate directors are Black, Brown and the sec-
retary-treasurer. All stock and shares in H are owned by Black
and the secretary-treasurer. Land and buildings are owned by
the corporation."
Although the statutory provision quoted in your inquiry is set out in
somewhat awkward language, it fairly appears to be designed to pro-
hibit the issuance of a license (permit) to the same person, etc., for the
conducting of a racing meeting at more than one race track, etc.
<In the several hypothetical situations you have described it would
appear that in no case is there a precise identity of applicants for permits
although there is evident in each instance a very substantial identity of
ownership and control of the partnerships and corporations involved.
The statute, however, employs the expression "the same * * * cor-
poration" and .this might be supposed to refer merely to separate cor-
porate entities without regard to identity of ownership and control of two
or more corporations. It may be argued that the Legislature in the choice
of this language was aware of the widespread modern business practice
of interlocking ownership and control of separate corporate organizations
and having chosen to employ the expression "the same * * * corporation"
without further qualification it would not appear that this language could
be construed to fonbid more than the issuance of more than one permit
to .the identical corporate entity.
It will be imediately apparent that such a construction of this pro-
vision relative to "the same * * * corporation" makes largely ineffective,
as a practical matter, the inhibition relative .to "the same person," for it
ATTORNEY GENERAL
would permit a single individual, or a group of individuals, to do indi-
rectly, through two or more corporate organizations, what they could not
do directly. If we may assume that this provision as a whole was in-
tended to prevent the growrh of a monopoly, or a tendency thereto, in the
field of race track operation it must be admitted that the legislative
language employed is markedly inept, although perhaps not distinctively
so in a statute which in its entirety can scarcely be regarded as a model of
precise expression.
The circumstance that the use of this inept language seemingly re-
sults in the failure to attain fully the suggested legislative objective gives
rise .to the question of the power of your commission to impose by rule a
more stringent test by which corporate applicants for a permit may be
considered. The rule-making power of the commission is conferred in
Section 3769.03, Revised Code, which reads in part :
"The state racing commission may prescribe the rules, regu-
lations, and conditions under which horse racing shall be con-
ducted, and may issue, suspend, diminish, or revoke permits to
conduct horse racing as authorized by sections 3'769.01 to
3769.14, inclusive, of the Revised Code."
It may readily be conceded that an executive agency is without power
to promulgate a rule which is contrary to existing law or which under-
takes to repeal or abrogate any provision of law. Rather such agency
is confined to the making of rules designed to promote the spirit and
purpose of the legislation by which the rule making power is conferred.
42 American Jurisprudence, 353, 354, Section 49
In the instant case, therefore, it becomes necessary to inquire whether
a rule of the commission imposing a more stringent test of corporate
identity among applicants for permits would contravene any provision
of existing law.
It will 1be observed that the statute prohibits the issuance of more
than one permit "to the same * * * corporation." I cannot see that a rule
of the commission which would deny, for example, permits to two cor-
porations under substantially identical ownership and control, would be
contrary to this statutory provision. In this connection I do not perceive
in this statutory prohibition any implication that the test therein stated
should be the sole test to be applied. Rather, it seems to me that the
statute states, in this regard, the minimwm test to be applied, and that it
OPINIONS
leaves to the discretion of the commission, in the exercise of its rule-making
power, the imposition of such further and more stringent tests as the
public interest may require.
It may ,be anticipated, of course, that the objection will be raised
that the statutory language here involved, by implication, prescribes the
sole test which may be applied. This argument may be readily met,
however, by recalling that a statute such as that here under consideration
must be strictly construed and every reasonable doubt raised by its pro-
visions must be so resolved as to limit the powers and rights claimed
under its authority. 24 American Jurisprudence, 404, Section 9 I con-
clude, therefore, that the subject of the eligibility of corporate applicants
for permits, where there is a substantial identity of ownership and con-
trol, is a proper subject for the exercise of the rule-making power of your
commission.
As to the part,icular hypothetical situations which you have described,
it is obviously impossible for me to supply a categorical answer, not only
for the reason that the commission has not adopted any rule on the sub-
ject, but also because any decision in the matter could be reached only
after consideration of all the detailed facts and circumstances in each case.
Moreover, such consideration would presumably involve a measure of
administrative discretion by your commission, and is, therefore, a function
which is wholly beyond the province of the Attorney General.
Accordingly, in answer to your inquiry, it is my opinion that the
prohibition in Section 3769.07, Revised Code, of the issuance of a license
(permit) "to the same person, association, trust or corporation * * * ex-
cept at one race track, place or enclosure" is designed to prevent a mo-
nopoly, or tendency toward monopoly, of race track ownership and con-
trol in this state. Such provision states only the minimum test by which
eligibility for permits is ;to be determined in the case of two or more firms
or corporations, and the imposition of a further and more stringent test,
whereby regard is given to a substantial identity of ownership and control
as to two or more corporations, is, therefore, a proper subject of the ex-
ercise of the rule-making power of the state racing commission with the
object of promoting the purpose and spirit of the statute.
Respectfully,
C. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
1. RACING COMMISSION, OHIO STATE - ADMINISTRA-
TIVE RULES - RACING OFFICIALS DESIGNATED AS
STEWARDS AT RUNNING RAGE MEETINGS AND AS
JUDGES AT HARNESS RACE MEETINGS EX E R C I S E
QUASI-JUDICIAL POWERS - PUBLIC OFFICERS - AU-
THORITY- COMPENSATION MAY BE FIXED BY COM-
MISSION AND PAID FROM PUBLIC FUNDS WITHIN
LIMITS OF CURR.ENT APPROPRIATIONS - SECT'ION
376903 :RIC- 10 AG SEPTEMBER 13, 1951 APPROVED AND
FOLLOWED.
2. RACING COMMISSION- GIVEN AUTHORITY T:O "PRE
SCRIBE THE RULES, REGULATIONS AND CONDITIONS
UNDER WHICH HORSE RACING SHALL BE CON-
DUCTED" - AUTHORITY DOES NOT EXTEND TO MAK-
ING OF RULES CONTRARY TO EXISTING LAWS OR
WHICH REPEAL OR ABROGATE STATUTES - SECTION
3769.03 RC.
3. SECTION 3'769.09 RC AUTHORIZES EMPLOYMENT OF A
REPRESENTATIVE TO ATTEND EA!CH HORSE RACING
MEETING-COMPENSATION -TRAVELING EXPENSES
-HOLDER OF PERMIT-PAYMENT FOR SERVICES.
4 ADDITIONAL DUTIES ENUMERATED IN SECTION
3769.09 RC- COMPENSATION AND EXPENSES- LIMI-
TATION AS TO AMOUNTS PAID-ADDITIONAL
AMOUNTS PAID.
5 OF FEE WHICH MAY BE CHARGED INCIDEN-
TAL TO ISSUANCE OF PERMIT - RACING COMMISSION
WITHOUT AUTHORITY TO ALTER STATUTORY PROVI-
SION BY ADOPTION OF ADMINISTRATIVE RULE-SEC-
TION 3769.04 RC.
SYLLABUS:
1. Under .the .provisions of pertinent administrative rules adopted by the Ohio
state racing commission the racing officials designated as stewards at running race
meetings, and as judges at harness race meetings, exercise powers which are quasi-
judicial in nature and which may properly be conferred on public officers and authority
is given under the provisions of Section 3769.03, Revised Code, for the provision by
rule for the appointment of such offu:ials by the Ohio state racing commission. The
OPINIONS
compensation of such officials may be fixed by the commission, and .paid from public
funds within the limits of current appropriations. Informal Opinion of the Attorney
General of September 13, 1951, approved and followed.
2. The Ohio state racing commission is given authority, under the provisions
of Section 3769.03, Revised Code, to "prescribe the rules, regulations and conditions
under w:hich horse .racing shall he conducted" in this state, but such authority does not
ex.tend to the making of rules which are contrary to existing laws, or which repeal or
abrogate statutes.
3. Section 3769.09, Revised Code, authorizes the employment by the Ohio state
racing commission of a representative "to attend each horse racing meeting," and
provides further that "The compensation of such representative, not to exceed twenty
dollars ior each racing day he attends, and :his actual and necessary traveling expenses
shall be charged to and collected weekly, by the commission, from the holder of the
permit at whose racing track said representative serves. Such representative shall be
paid in the same manner as are other employes of the commission. Only one repre-
sentative may be assigned to any one track, at the expense of the permit holder, on any
one racing day."
4. Where the Ohio state racing commission has appointed stewards and
judges for assignment to duty at particular racing meetings, it may properly assign
to such officers the additional duties enumerated in Section 3769.09, Revised Code, and
in such case the compensation and expenses of one of such officers may be charged to
the permit holder concerned to the extent provided in such section; but the limitation
in such section as to the amounts which may be so charged has the effect of denying
to the commission any authority to provide by rule for charging to such permit holder
any additional amounts to provide for the compensation either of such officers or of
stewards and judges generally.
5. The amount of the fee which may be charged incidental to .the issuance of a
permit under the Ohio Horse Racing Act is fixed by the terms of Section 3769.04,
Revised Code, and the Ohio state racing commission is without authority .to alter such
statutory provision by the adoption of an administrative rule.
The Ohio State Racing Commission,
Columbus, Ohio
Gentlemen:
Columbus, Ohio, December 29, 1953
Your request for my opinion reads as follows:
"A question has arisen, as to the advisa!bility, propriety and
desirability of Stewards at Running Horse Race Meetings and
Judges at Harness Horse Race Meetings conducted in the State
of Ohio being selected and employed by this Commission instead
of by Permit Holders as has been .the practice in the past.
"This Commission desires, and hereby makes formal request
of you for an opinion and interpretation of the provisions of the
Horse Racing Act, as to whether :
ATTORNEY GENERAL
" ( 1) The Ohio State Racing Commission may hire Stew-
ards and Judges, charging their salaries against Permit Holders,
and
" ( 2) The Ohio State Racing Commission may, by Rule,
increase the amount charged Permit Holders for Permit Fees,
in order to pay salaries of Commission-Appointed Racing Stew-
ards and Harness Judges."
The statutory authority of your Commission to adopt administrative
rules relative to the conduct of horse racing in this state is set out in
Section 3769.03, Revised Code, in the following language:
"The state racing commission may prescribe the rules, regu-
lations, and conditions under which horse racing shall be con-
ducted, and may issue, suspend, diminish, or revoke permits to
conduct horse racing as authorized by sections 3769.01 to
3769.14, inclusive, of the Revised Code."
The position, or office, of steward is not provided for in the Ohio
Horse Racing Act, Chapter 3769, Revised Code, but is created under
certain of the administrative rules promulgated by the Commission. The
functions and duties of these racing officials may 1be the more readily ap-
preciated by reference to certain of the Commission's rules as follows:
"Rule No. 8o
"The Stewards (who shall always he at least three in num-
ber) or a majority of them shall determine all questions in refer-
ence to racing arising during the meeting and all questions in
reference to licensing, entries, etc., arising before the meeting
has begun, to the extent to which they are authorized to act
under other rules of racing, and in such questions their orders
shall supersede the orders of the officials of the permit holder.
"Rule No. 8r
"All Owners, Trainer(s), Jockeys, Grooms and other per-
sons attendant upon horses shall be under the general supervision
of the Stewards and they also shall have supervision over all
other Racing Officials and over those parts of the premises of
.the Permit Holder used for the conduct of racing. The Ste>vards
shall have free access to any parts of the premises used for rac-
ing."
"Rule No. 84
"The Stewards shall have the power to fine not in excess of
two hundred and fifty ($250.00) dollars, suspend, rule off or ex-
pel at their discretion any person for disorderly conduct or
710
OPINIONS
breach of the peace, or for violations of the Rules of Racing or any
regulations they may establish not inconsistent with the Rules of
Racing. Any such regulations adopted by the Stewards shall be
reported promptly in writing to the Commission, and shall re-
main in effect unless and until the Commission shall otherwise
order.
"Rule No. 86
"The Stewards may suspend or exclude from the stands and
premises, improper and objectionable characters and persons who
have been ruled -off by the racing authority of any other state or
country so long as such ruling of such authority remains in force.
"Rule No. 149
"Any person fined, suspended, expelled or ruled off, shall
have the right to appeal to the Commission for a review of the
decision. Any person aggrieved by any other ruling in the appli-
cation -of the Rules of Racing, may also appeal to the Commis-
sion for a review of same. Such appeals shall be made in writing
and until they can be considered and disposed of by the Commis-
sion, the rulings shall be in effect."
There can scarcely be any doubt that the officials thus provided for
by administrative rule, and authorized thereby to perform the duties and
to exercise the powers therein provided, are engaged in the exercise of
iboth executive and quasi-judicial functions of the sovereign state which
one would normally expect to be lodged in public officers. Thus, as to the
fundamental question implicit in your inquiry as to the power of the Com-
mission to appoint these officials, however they be paid, it would appear
to be a debatable questi-on whether such power of appointment could
validly be lodged elsewhere than in some agency of the state government.
This is true 1by reason of the rule that a quasi-judicial pov,;er delegated
by the Legislature to an administrative agency cannot be redelegated by
such agency. See 42 American Jurisprudence, 387, Section 73 :Moreover,
an attempted redelegation of quasi-judicial power to the officers, agents
or employes of a private organization such as a racing association operated
on a purely commercial basis for profit is of even more doubtful validity.
See, In the Matter of Fink v. Pierce, 302 N.Y., 216.
I find that the appointment of racing stewards by the state racing
commission itself, rather than by the track operators concerned, was the
swbject of a communication which I addressed t-o your Commission on
September 13, 1951, in connection with hearings then being conducted by
the Commission in the matter of one Becknell, a licensed trainer. In that
ATTORNEY GENERAL
711
communication I referred to "the arrangement whereby the stewards of
a particular race meeting, although exercising by virtue of the rules of
the Commission a considerable amount of authority as agents of that
body, are. actually hired and paid 1by the racing association which is con-
ducting a particular meeting." I then said further :
"* * * On this point I deem it proper to advise you that the
commission, in my opinion, has the authority to adopt such rules
as would change this arrangement to one in which the commis-
sion would hire the stewards and assign :them to the several Ohio
race meetings in their discretion. It is my recommendation that
you explore the wisdom of such a policy and give it your serious
consideration."
As to the basic question presented by your present inquiry, therefore,
I am impelled to adhere to the view that I have thus previously expressed
and to conclude that your Commission does have the power to provide
by rule for the appointment by the state racing commission of the racing
officials known as stewards. T;he authority to appoint such officials in-
cludes, of course, the power to fix their compensation within the limits
of appropriations available to the commission.
As to the appointment of the harness horse racing officials known as
judges, although I do not find that your Commission has ever directly
defined their powers and duties by rule, I note the following provision in
the Commission's rule 269:
"All harness racing in Ohio over which the Commission has
jurisdiction and supervision shall be conducted under and in con-
formity with the rules and regulations of the United States Trot-
ting Association except wherein they may conflict with the laws
of Ohio or the Rules and Regulations which the Commission has
set forth for harness racing."
Because none of the other rules of the Commission appear to relate
to the duties and functions of judges at harness race meetings, we may
properly note certain of the rules of the United States Trotting Associa-
tion relative to these officials. In this connection I am informed that the
association's rule 6 provides in part as follows:
"Section 12:
"The judges shall have authority while presiding to inflict
fines and penalties, as prescribed by these rules; to determine all
7I2
OPINIONS
questions of fact relating to the race over which they preside; to
decide any difference between parties to the race, or any con-
tingent matter which shall arise, such as are not otherwise pro-
vided for in these rules; and they may declare pools and bets 'off'
in case of fraud, no appeal to be allowed from their decision in
.that respect, but all their decisions shall be in strict conformity
with the rules, or with the principles thereof. * * *"
Section I3 provides:
"Before the J uclges can impose a penalty of suspension ex-
ceeding two clays or fine in excess of ten dollars upon any party,
such party shall be granted a hearing by the Judges at a desig-
nated time. The Presiding J uclge and at least one Associate
J uclge shall rbe present at all hearings and may inflict the penal-
ties prescribed by these rules. A penalty is imposed from the time
that it is entered in the Judges' Sheet and the same is signed by
the J uclges."
Appeals from the decisions of the judges appear to be provided for in
the association's rule 23 which provides in part:
"Section 6:
"All decisions and rulings of the J uclges of any race, and of
the officers of Member Tracks may be appealed to the District
Board of Review within ten ( IO) clays after the notice of such
decision or ruling. The appeal may 1be taken upon any question
jn the conduct of a race, interpretation of the rules, decision rela-
tive to the outcome of a race, application of penalties, or other
action affecting owners, drivers, or horses, but it must be :based
on a specific charge which, if true, would warrant modification
'Or reversal of the decision. In order to take an appeal under Rule
I8, a driver must have first made a complaint, claim, or objection
as required in Rule r8. The District Board of Review may va-
cate, modify, or increase ;my penalty imposed by the J uclges and
appealed to the Board."
From an examination of these provisions it is abundantly clear that
where a judge is acting under the authority of the rules of the United
States Trotting Association, under which rules harness racing in recent
years has been conducted in this state, such officials exercise quasi-judi-
cial powers and functions substantially similar .in the respects pertinent to
this inquiry to those of stewards at running race tracks. Such being the
case, it would follow that substantially all that has been said hereinbefore
with reference to stewards would be equally applicable to judges.
As to the question of providing by rule f'Or the compensation of
ATTORNEY GENERAL
713
these officials by the several racing associations, it is to be borne in mind
that the appointment of such officials by the commission constitutes a
recognition of their status as public officers. The compensation of public
officers, although it may be fixed in a number of different ways, is nor-
mally paid from public funds raised either by taxation or other charges
exacted 1by law.
In the instant case it is proposed to make such payment one of the
"conditions under which horse racing shall be conducted," i.e., to make
such payment a condition of the granting of a permit to race.
Elsewhere in the statute provision is variously made for the exaction
of charges and fees from permit holders. In Sections 3769.08 and 3769.o81,
Revised Code, we find provision for the levy of two distinct excises on
race track operations, and in Section 3769.04, Revised Code, is a .provision
for a permit fee. These exactions alone are sufficient to suggest that the
"conditions" which the commission may establish by rule do not include
the exaction of further money payments from permit holders otherwise
than under authority of express statutory enactment. Any doubt on this
point, however, would appear to be dispelled by the following provision
in Section 3769.09, Revised Code.
'The state racing commission shall employ a representative
to attend each horse-racing meeting, held under a permit issued
under sections 3769.or to 3769.14, inclusive, of the Revised
Code. Such representative shall give bond in the sum of five
thousand dollars with sufficient sureties to be approved by and
made payable to the treasurer of state, which bond shall be filed
with the secretary of state. The compensation of such represent-
a.tive, not to exceed twenty dollars for each racing day he at-
tends, and his actual and necessary traveling expenses shall be
charged to and collected weekly, by the commission, from the
holder of the permit at whose racing track said representative
serves. Such representative shall be paid in the same manner as
are other employees of the commission. Only one representative
11wy be assigned to any one track, at the expense of the permit
holder, on any one racing dwy. * * *"
(Emphasis added.)
This provision represents a f.ourth instance in which the Legislature
has expressly provided for an exaction from a permit holder, and in this
case the object of the exaction is to provide for the compensation and
expense of a public agent. This provision alone, exclusive of the limita-
tion therein stated, would appear to be sufficient to indicate a legislative
OPINIONS
intent, under the doctrine of "expressio unius," that no further exactions
of this nature were to be made; and when consideration is given to the
express limitation in the language above to the compensation and ex-
penses of a single representative, there would appear to be no room for
doubt that such was, indeed, the intent of the Legislature.
In this connection I conceive to be quite irrelevant the suggestion
that the duties imposed on the commission's representative under the
provisions of Section 3769.09, supra, are materially different from those
provided for !by rule in the case of stewards or judges. It is conceivable,
of course, that the commission might choose to amend its rules so as to
impose on the officials appointed by it all of the duties mentioned in Sec-
tion 3'76909, supra, in addition to the duties presently assigned to stew-
ards by rule. In such case such officials would be none the less the
representatives whose designation is the subject of this section, simply by
reason of the fact that additional duties have been assigned to them. But
however this may be, I am impelled to the conclusion that the application
of the doctrine of "expressio unius" to the statutory language here under
scrutiny has the effect of clearly revealing the legislative intent that no
charge should 1be made of permit holders to defray the expenses and to
provide the compensation of officers or employees of the commission ex-
cept to the extent provided in Section 3769.09, Revised Code.
In this situation it becomes necessary merely to note that administra-
tive agencies are without power to make "rules which subvert the statute
reposing such power, or which are contrary to existing laws * * *." 42
American Jurisprudence, 355, Section 49. It thus becomes necessary to
conclude that any rule on the subject suggested in your first inquiry
would be subject to the statutory limitations set out in Section 3769.03,
Revised Code.
By the application of the rules noted above as to the constitutional
limitations on the rule-making power of an administrative agency, your
second question is readily disposed of. You will observe that on the sub-
ject of fees to be paid by a permit holder, Section 3769.04, Revised
Code, provides in pertinent part:
"Any person, association, corporation, or trust desiring to
hold or conduct a horse-racing meeting, wherein the pari-mutuel
or certificate system of wagering is allowed, shall make applica-
tion to the state racing commission for a permit to do so. Each
ATTORNEY GENERAL
such application, accompanied by a perntit fee of ten dollars and a
cash bond, certified check, or bank draft, shall be filed with the
commission at least five days prior to the first day of each horse-
racing meeting which such person, association, corporation, or
trust proposed to hold or conduct. * * *"
(Emphasis added.)
The nature of the payment of the "cash bond, certified check or bank
draft" mentioned in this section is apparent from the following provisions
m Section 3769.05, Revised Code:
"At the time of making application for a permit to conduct
a horse-racing meeting, the applicant shall deposit with the state
racing commission a cash bond, certified check, or bank draft,
payable to the order of the commission, in an amount equal to
one hundred dollars for each clay, excluding Sundays, petitioned
.for in said application. At the. close of the last clay of the horse-
racing meeting, for which a permit is issued, as provided for in
Section 3769.o6 of the Revised Code, the commission shall re-
fund to such permit holder the sum of one hundred dollars for
each racing day the permit holder paid to the state tax commis-
sioner the tax clue for said clay, as provided for and at the rate
stipulated in section 3769.08 of the Revised Code. If such permit
holder has not paid to the commission the compensation and ex-
penses of the representatives assigned to his track, as provided
for in Section 3769.09 of the Revised Code, the commission shall
withhold such refund until the same has been paid. In harness
horse-racing meetings, if any full clay's racing is declared off by
the judges because of inclement weather or a muddy track, the
commission shall refund to the permit holders the sum of one
hundred dollars of their deposit for each such clay."
From this language it is clear that the permit fee itself 1s fixed by
statute in the amount of ten dollars, and this notion is in full harmony
with the follmYing provision in Section 3769.06, Revised Code :
"Upon the proper filing of an application to conduct a horse-
racing meeting accompanied by a permit fee and a cash bond,
certified check, or bank draft by any person, association, trust,
or corporation, not in default of payment of any obligation or
debt due to the state under sections 3769.01 to 3769.14, inclusive,
of the Revised Code, the state racing commission may issue a
permit to such applicant to hold or conduct a horse-racing
meeting. * * *"
While it may be a matter of some surprise that a purely nominal
fee has thus been established, for what is indubitably a v a l u a ~ b l e and poten-
tially highly profitable franchise, I am unable to find any authority in
OPINIONS
the statute which would authorize the commission to charge any greater
amount; and since an administrative agency is wholly without power to
adopt a rule "contrary to existing laws," I must conclude that your second
inquiry must be answered in the negative.
Accordingly, in specific answer to your inquiry, it is my opinion that:
I. Under the provisions of pertinent administrative rules adopted
by the Ohio state racing commission the racing officials designated as
stewards at running race meetings, and as judges at harness race meetings,
exercise powers which are quasi-judicial in nature and which may properly
be conferred on public officers; and authority is given under the provisions
of Section 3769.03, Revised Code, for the provision by rule for the ap-
pointment of such officials by the Ohio state racing commission. The
compensation of such officials may be fixed by the commission, and paid
from public funds within the limits of current appropriations. Informal
Opinion of the Attorney General of September I3, I95I, approved and
followed.
2. The Ohio state racing commissiOn IS given authority, under the
provisions of Section 31769.03, Revised Code, to "prescribe the rules,
regulations and conditions under which horse racing shall be conducted"
in this state, but such authority does not extend to the making of rules
which are contrary to existing laws, or which repeal or abrogate statutes.
3 Section 3'76909, Revised Code, authorizes the employment by
the Ohio state racing commission of a representative "to attend each horse
racing meeting," and provides further that "The compensation of such
representative, not to exceed twenty dollars for each racing day he at-
tends, and his actual and necessary traveling expenses shall be charged to
and collected weekly, by the commission, from the holder of the permit
at whose racing track said representative serves. Such representative
shall be paid in the same manner as are other employes of the commission.
Only one representative may be assigned to any one track, at the expense
of the permit holder, on any one racing day."
4 \iVhere the Ohio state racing commission has appointed stewards
and judges for assignment to duty at particular racing meetings, it may
properly assign to such officers the additional duties enumerated in Sec-
tion 3769.09, Revised Code, and in such case the compensation and
expenses of one of such officers may be charged to the permit holder
ATTORNEY GENERAL
jij
concerned to the extent provided in such section; but the limitation in
such section as to the amounts which may be so charged has the effect of
denying to the commission any authority to provide by rule for charging
to such permit holders any additional amounts to provide for the com-
pensation either of such officers or of stewards and judges generally.
:> The amount of the fee which may be charged incidental to the
issuance of a permit under the Ohio Horse Racing Act is fixed by the
terms of Section 3769.04, Revised Code, and the Ohio state racing com-
mission is without authority to alter such statutory provision bv the
adoption of an administrative rule.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
JUDGE, COURT OF APPEALS-ASSIGNED BY CHIEF JUSTICE
OF COURT OF APEALS -TO DISTRICT OTHER THAN
WHERE ELECTED-AIDING IN BUSINESS OF SUCH OTHER
DISTRICT-WITHIN SCOPE OF ASSIGNMENT-WHENEVER
ENGAGED IN EXAMINATION AND DECISION OF CASES
HEARD, WHETHER OR NOT DUTIES PERFORMED WITHIN
GEOGRAPHICAL LIMITS OF DISTRICT OF ASSIGNMENT-
ENTITLED TO RECEIVE TWENTY DOLLARS PER DAY FOR
EACH DAY OF ASSIGNMENT-OPINION Io24, OAG I95I, PAGE
872 APPROVED AND FOLLOWED-SECTIONS I4I.Io RC 2253-3
GC, 2501.I4 RC, IS28 GC.
SYLLABUS:
A fudge of a Court of AJ)peals, assigned by the chief justice of the Court of
AJ>peals by virtue of Section 2501.14, Revised Code, Section 1528, General Code, to a
district other than that to which he was elected, is aiding in the business of such other
district, within the scoJ)e of such assignment, whenever he is engaged in the examina-
tion and decision of cases heard by him by virtue of such assignment, whether or not
such be performed within the geographical limits of the district of assignment and,
thus, is entitled, pursuant to Section 141.10, Revised Code, Section 2253-3, General
Code, to receive twenty dollars per day for each day of such assignment. Opinion
No. 1024, Opinions of the Attorney General for 1951, page 872, approved and
followed.
OPINIONS
Columbus, Ohio, Decemlber 29, 1953
Hon. Frank T. Cullitan, Prosecuting Attorney
Cuyahoga County, Cleveland, Ohio
Dear Sir:
Your request for my opinion reads as follows :
"The judges of the Sixth Appellate District Court of Appeals
held court in this district, 1by designation of the Chief Justice of
the Court of Appeals of Ohio, from June 22 to June 27, I953
inclusive. Pursuant to the provisions of Revised Code I4I. IO
(G.C. 2253-3), the judges rendered their :bills .for their per diem
compensation from June 22 to June 27 inclusive for $I20.oo for
each of the judges. They also rendered bills for the additional sum
of $230.00 each, representing ny;; days actually spent by each in
his own county of residence in disposing of the cases in which
they sat in hearing in this district.
"The Presiding Judge of this district approved the bill for
the services covering the six days during which the judges held
court here, and these bills were paid from the treasury of this
county upon the warrant of the County Auditor. The Presiding
Judge, however, withheld his approval of the ibills for the ad-
ditional I r 0 days during which the judges were engaged in study-
ing and deciding the cases submitted to them after they had re-
turned to their own district. The Presiding Judge does not
question the accuracy of the time spent but feels constrained to
withhold his approval of the bills for services for the additional
time spent outside this county, in the absence of some authorita-
tive ruling.
"The Judges of the Sixth District rely upon your Opinion
No. I024, dated December 27, 195I, in the fourth syllabus of
which you held that the judges of the Common Pleas Court were
entitled to receive their per diem compensation of $20.00 while
engaged in the judicial business of a county other than that in
which they reside, whether or not such services are performed
within the geographical limits of such other county. The judges
feel that your 3Jbove-<:ited opinion has equal application to judges
of the Court of Appeals.
"Inasmuch as the question is of statewide interest, I re-
spectfully request your opinion as to whether a Court of Appeals
judge, assigned 1by the Chief Justice of the Court of Appeals of
Ohio to sit in a district other than that .in which he resides, may
receive the per diem compensation of $20.00 pursuant to R. C.
ATTORNEY GENERAL
141. IO for days spent in his own district in disposing of the
cases in which he sat in hearing in such other distr.ict."
719
As noted in your letter, I have had occasion to pass on this same
question as to judges of Common Pleas Courts in Opinion No. 1024,
Opinions of the Attorney General for 1951, page 872. The fourth para-
graph of the syllabus of such opinion reads:
"A common pleas judge, assigned by the Chief Justice by
virtue of Section 1469, General Code, to aid in disposing of the
business of some county other than that in which he resides is aid-
ing in disposing of the business of such other county on all days
when, pursuant to such assignment, he is engaged in the judi-
cial business of such other county, whether or not such he per-
formed within the geographical limits of such other county, and,
thus, is entitled, pursuant to Section 2253, General Code, to re-
ceive $2o.oo for each day of such assignment."
I quote from such opinion at page 879:
"Your second question is whether a judge assigned to a
county in which he does not reside, pursuant to Section 1469,
General Code, may receive the per diem amount of $20.00 per
clay for days physically spent in his own county of residence in
arriving at his conclusions and preparing his decisions and opin-
ions. I understand that, 'based on the 1950 opinion of my prede-
cessor, your office has taken the position that the per diem pay-
ment of $2o.oo cannot be paid for such days of service. From
an examination of this 1950 opinion, however, I do not find that
such question was considered .by the then Attorney General.
"An examination of Section 1469, General Code, reveals that
the Chief Justice is authorized to 'assign a judge or judges from
another county or counties in the state to aid in the disposition
of such business.' Likewise, it will be noted that Section 2253
used the words, 'to aid in the disposition of such business' and
provides for the payment of 'twenty dollars per day for each day
of such assignment.'
"The answer to your question appears to lie in the determi-
nation as to whether such judge is still on 'assignment' and is
aiding 'in disposing of
1
business of some county other than that
in which he resides.'
"No one can deny that research, study and preparation of
opinions and decisions by such judge in or out of his home county
on matters submitted to him as a judge of the court of common
pleas in a county in which he does not reside and to which he has
;been assigned is an aid in the disposition of such other county's
business. The clear meaning of the statutory provision is that
such assigned judge is to 'be paid -for judicial services rendered for
such other county. I find nothing in the statute providing that
/20 OPINIONS
such services must be rendered within the geographical confines
of the county of assignment. Aside from personal reasons, there
may well be official reasons for a judge to follow this course. He
may have a better research library in his home county or at
least one with which he is more familiar, thus expediting his work.
By remaining in his home county he may desire to lessen the
expenses of transportation, meals and lodging which would other-
wise have to lbe paid by the county of assignment."
The language of Section 2253, General Code, being considered in the
1951 opinion was:
"* * * each judge of the court of common pleas who is as-
signed by the chief justice by virtue of section 1469 of the Gen-
eral Code, to aid in disposing of business of some county other
than that in which he resides shall receive twenty dollars per day
for each day of such assignment * * *."
The question you present is whether the reasoning which I adopted
in the 195 I opinion is a;pplic<l!ble to a similar situation involving tempo-
rary assignments of judges of the Court of Appeals to another district.
:Hore specifically, it involves a consideration of whether the language of
the statute authorizing the payment of $20.00 per day to such judges of
the Court of Appeals is distinguishable from the language of the statute
authorizing such payment to judges of the Court of Common Pleas;
Section 2501.03, Revised Code, Section I5r8, General Code, pro-
vides for the annual selection of the chief justice of the Court of Ap-
peals by the judges of such courts. Section 2501.14, Revised Code, Sec-
tion 1528, General Code, authorizes the chief justice of the Court of Ap-
peals to <l!ssign a judge of such court to another district upon request of
the presiding judge of such district. Section 2501.15, Section 1529, Gen-
eral Code, reads :
"A judge assigned under section 2501.14 of the Revised Code
shall he paid his actual expenses for each day he performs judicial
duties, including the time necessarily devoted to going to, and
returning from, such assignment, and to the examination and de-
cision of cases heard by him while he is engaged outside the
district for which he was elected. Such expenses shall be paid
from the state treasury upon the warrant of the auditor of state,
issued upon the certificate of the chief justice of the court of
appeals, or the judge making the assignment."
Here, of course, in language much more explicit than that which
I had under consideration in the 195 I opinion, is a clear recognition that
ATTORNEY GENERAL 721
the perfonnance of all judicial duties, including the examination and de-
cio.ions of cases heard, are duties performed within the scope of .the as-
signment, and a recognition that such assignment is not limited to hold-
ing court in the sense of time devoted only to formal proceedings therein.
It, thus, is clear that had the judges of the Sixth Appellate District re-
mained within the geographical limits of the Eighth Appellate District
during the n0 days spent in disposing of the cases in question, they
would have rbeen entitled to their "actual expenses," including food and
lodging for such II0 days. By returning to their home district and
thus terminating the incurring of "actual expenses," did they forego their
right to per diem payment for such I I 0 days? I believe not. The right
of such judges to per diem payment is governed by the language of Sec-
tion I4I.IO, Revised Code, Section 2253-3, General Code, which, in perti-
nent part, reads as .follows:
"* * * each judge of the court of appeals who is assigned
by the chief justice of the supreme court by virtue of section
2501.14 of the Revised Code, to aiel in disposing of business of
some district other than that in which he is elected or appointed,
shall receive twenty dollars per day for each day of such as-
signment, to be .paid from the treasury of the county to which
he is so assigned upon the warrant of the county auditor of such
countv."
Parenthetically, it might be stated that the reference to assignment
iby the chief justice of the Supreme Court in Section 141.10 obviously is
a legislative inadvertence since by virtue of Section 2501.I4 such as-
signment is by the chief justice of the Court of Appeals and not by the
chief justice of the Supreme Court. The words "of the Supreme Court"
were not contained in Section 2253-3, General Code, but were added at
the time such section was recodified as Section I4I.IO, Revised Code.
The key language here under consideration is identical to that of
Section 2253, General Code, now Section I4I.Of', Revised Code, under
consideration in the I95 I opinion. Both read "shall receive twenty dollars
per day for each day of such assignment." Each provides for such assign-
ment "to aid in disposing of business of some district (county) other
than that in which he resides, (is elected or appointed)." Clearly, the
judges of the Sixth Appellate District could have remained in the Eighth
Appellate District for the II0 days devoted to the examination and de-
cision of the cases submitted and, in addition to their "actual e ~ p e n s e s "
722
OPINIONS
authorized by Section 250I.I5, also received $20.00 per day. During such
time there would have been no question as .to the fact that their "assign-
ment" had not terminated and that they were aiding in disposing of the
1business of the Eighth Appellate District.
I .believe it clear, .for the same reason stated in my I95I opinion, that
by returning to their home district and devoting there I I y.; days to the
examin<Ltion and decision of such cases, the judges in question did not
terminate such assignment and, thus, are entitled to payment therefor at
the rate of "twenty dollars per day for each day of such assignment" foil"
such I I y.; days devoted to aiding in disposing of the :business of the dis-
.trict of assignment.
In specific answer to your question, it is my opmwn that a judge
of a Court of Appeals, assigned hy the chief justice of the Court of Ap-
peals :by virtue of Section zsor.14, Revised Code, Section 1528, Gen-
eral Code, to a district other than th<Lt to which he was elected, is aiding
in the :business of such other district, within the scope of such assign-
ment, whenever he is engaged in the examination and decision of cases
heard hy him by virtue of such assignment, whether or not such be per-
formed within the geographical limits of the district of assignment and,
thus, is entiHed, pursuant to Section I4I.IO, Revised Code, Section 2253-
3, General Code, to receive twenty dollars per day for each day of such
assignment. Opinion No. I024, Opinions of the Attorney General for I95I,
.page 872, approved and followed.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
337
2
DOCK EXTENDING OVER BODIES OF WATER-ANNUAL
FEE CHARGED TO PRIVATE OWNER OF LAND ADJACENT
TO DOCK-IF OWNER HAS MORE THAN ONE BOAT REGU-
LARLY MOORED AT DOCK HE SHALL BE CHARGED A FEE
FOR EACH ADDITIONAL BOAT-SECTION 1541.22 RC, AM.
SB 316, 100 GA-AM. SB 207, 100 GA REPEALED BY AM. SB 316.
SYLLABUS:
Section 1541.22, Revised Code, as amended :by Amended Senate Bill No. 207,
passed July 8, 1953, approved by the Governor July 17, 1953, filed with the Secretary
of State, July 20, 1953 and effective October 19, 1953 has been repealed by Amended
Senate Bill No. 316, passed July 14, 1953, approved by the Governor July 27, 1953,
filed with the Secretary of State July 27, 1953 and effective October 26, 1953; Section
1541.22, Revised Code, as currently in force and effect, is that section as enacted by
Amended Senate Bill No. 316.
Columbus, Ohio, December 30, 1953
Hon. A. W. Marion, Director, Department of Natural Resources
Columbus, Ohio
Dear Sir:
I have before me your request for my opinion as to whether the De-
partment of Natural Resources is authorized to collect an annual dock
fee from private owners of land adjacent to certain lakes as authorized
by the terms of Section 1541.22, Revised Code, as amended by Amended
Senate Bill No. 207 of t'he 100th General Assembly, in view of the later
amendment of Section 1541-22 by the passage of Amended Senate Bill
No. 316, which latter :bill does not contain such authorization.
Amended Senate Bill No. 207 was passed by the General Assembly
on July 8, 1953, approved :by the Governor on July 17, 1953, filed with
the Secretary of State on July 20, 1953 and thus became effective on Octo-
ber 19, 1953. The new language added to Section 1541.22 at that time
read:
"An annual fee of three dollars shall be charged to the pri-
vate owner of land adjacent to and having a dock extending over
the bodies of water listed in section 154r.o6 of the Revised Code.
If such owner has more than one :boat regularly moored at ~ u c h
OPINIONS
dock he shall also :be charged a fee of one dollar for each additional
boat. Under .the provisions of .this section 'dock' is defined as
that part of a superaqueous structure which may be used for the
wharfing of small craf.t."
Amended Senate Bill No. 316 was passed by the General Assembly
on July 14, 1953, approved by the Governor on July 27, 1953, filed with
the Secretary of State on July 27, 1953, and thus became effective on
October 26, 1953. By the terms of this act Section 1541.22 was amended
to read as follows :
"The chief of the division of parks shall collect all rentals
for leases of state lands, and moneys for pipe permits, boat and
motor licenses, dock licenses, concession fees, and moneys .for
special privileges of any nature from all lands and waters oper-
ated and administered by the division of parks or the division of
wildlife. He shall keep a record of all such payments showing
the amounts received, from whom, and for what purpose collected.
Upon transmittal of such funds to the treasurer of state, the
transmittal report shall indicate the purpose for which collec-
tion was made. A duplicate copy of such report shall be sent to
the auditor of state and to the director of natural resources. All
such .funds shall be credited to the 'state park rotary fund' hereby
created. All receipts from the rental of ca:bins and lodges in the
state parks, together with all other moneys derived from the oper-
ation of the lands, waters, facilities, and equipment lby the division
of parks shall accrue to the credit of such fund.
"Such fund shall not be expended for any purpose other than
the administration, operation, maintenance, development, and
utilization of lands and waters, and for facilities and equipment
incident thereto, administered by the division of parks; or for the
further purchase of lands and waters by the state for park and
recreational purposes.
"Such fund shall be subject to the same a:udit as general ap-
.propriation funds and a report properly certified by the auditor
of state showing receipts and expenditures furnished to the gen-
eral assembly."
As pointed out in your letter of request, Section 1541.22, as amended
by Amended Senate Bill No. 316, contains no language authorizing the
charging of a dockage fee. Amended Senate Bill No. 316, also amended
Section 1505.05 and Section 2 of the Act provided:
"That existing sections I505.05 and 1541.22 of the Revised
Code are hereby repealed."
ATTORNEY GENERAL
Bearing in mind the fact that legislation speaks as of the day it be-
comes effective, and the requirements of Article II, Section 16 of the
Ohio Constitution that "no law shall be * * * amended unless the new
act contains the entire act * * *, or the section or sections amended, and
the section or sections so amended shall :be repealed," I believe it clear
that Section 1541.22, in .force and effect at this time, is Section 1541.22
as amended by Amended Senate Bill No. 316, and that Section 1541.22,
as amended by Amended Senate Bill No. 207, was repealed at the time
Amended Senate Bill No. 316 took effect, i.e., October 26, 1953.
In support of this conclusion, I direct your attention to the cases of
State, ex rei. Guilbert v. Halliday, 63 Ohio St., 165, and Rogers v. The
State, ex rei. Lucas, 129 Ohio St., 108.
The Guilber.t case involved a situation where the 74th General As-
sembly had twice amended Section 2813 of the Revised Statutes by bills
passed and signed the same day. The court held the act which was signed
later, even though on the same day, to be controlling as to the then exist-
ing language of Section 2813, Revised Statutes, and held that the act
signed later constituted a repeal of the former act to the extent that Sec-
tion 2813, Revised Statutes, was concerned.
The Rogers case involved a situation where the 90th General As-
sembly had amended Sections 5527 and 5541 of the General Code by two
separate acts, one passed February 27, 1933 and the other on J nne 30,
1933. The act .passed in June was held to be controlling and to have the
effect of repealing Sections 5527 and 5541 as amended by the act passed
in February.
I am aware of the potential argument that smce Amended Senate
Bills Nos. 207 and 316 were pending before the General Assembly at the
same time, and since each amended Section 1541.22 in totally different
respects, the actual intent of the members of the General Assembly was
to effectuate both amendments. As stated in .the case of Slingluff v. vVeaver,
66 Ohio St., 621, however, "The question is not so much what did the
legislature intend to enact, as what did it mean by what it did enact."
In conclusion, it is my opinion that Section 1541.22, Revised Code,
as amended by Amended Senate Bill No. 207, passed July 8, 1953, ap-
proved :by the Governor July 17, 1953, filed with the Secretary of State
July 20, 1953 and effective Ootober 19, 1953 has been repealed by Amended
OPINIONS
Senate Bill No. 316, passed July 14, 1953, approved by the Governor
July 27, 1953, filed with the Secretary of State July 27, 1953 and effec-
tive Octdber 26, 1953, and that Section 1541.22, Revised Code, as cur-
rently in force and effect, is that section as enacted by Amended Senate
Bill No. 316.
3373
Respectfully,
c. WILLIAM O'NEILL
Attorney General
LAND FORFEITED TO STATE-SOLD PURSUANT TO SEC-
TION 5723.01 ET SEQ., RC-PURCHASER PAID PURCHASE
PRICE TO COUNTY AUDITOR-RECEIVED CERTIFICATE OF
SALE, SECTION 5723.12 RC---(ERTIFICATE NOT PRESENTED
TO AUDITOR OF STATE-FEE OF $1.25 NOT PAID-NO DEED
RECEIVED FROM AUDITOR FOR PROPERTY-FORMER OWN-
ER HAS RIGHT TO REDEEM PROPERTY-MUST PAY INTO
COUNTY TREASURY ALL TAXES, ASSESSMENTS, PENAL-
TIES AND INTEREST DUE-SECTION 5723.03 RC.
SYLLABUS:
Where land forfeited to the state has been sold pursuant to the provisions of
Section 5723.01 et seq. of the Revised Code, and the purchaser has paid the purchase
price to the county auditor and received the certificate of sale .provided in Section
5723.12, Revised Code, 5762, G. C., but has not presented said certificate to the
Auditor of State or paid to the auditor the fee of $1.25 prescri<bed by said section
and has not received from the auditor a deed for such property, the former owner
has the right under Section 5723.03, Revised Code, 5746, G. C. to redeem said property,
by .paying into the county treasury all the taxes, assessments, penalties and interest
then due thereon.
Columbus, Ohio, December 30, 1953
Hon. Calvin W. Hutchins, Prosecuting Attorney
Ashtabula County, Jefferson, Ohio
Dear Sir:
I have 'before me your request for my opinion, your letter reading,
in part, as .follows :
ATTORNEY GENERAL
"We have this situation : A property has been sold as for-
feited land, the County Auditor has issued a Certificate to the
Purchaser, and the purchaser has paid into the hands of the
County Auditor, and he, in turn, to the Treasurer, the amount
realized from the sale.
"Section 5723.16 R.C., as you know, provides that the pur-
chaser of forfeited land, his heirs and assigns, from the date of
such purchase, shall :be held in all courts as the Assignee of the
State. The former owner of the property in question has attempted
to pay to the Treasurer those taxes which were a charge upon
the real estate at the time of the sale by the Auditor, such at-
tempt being made after the Treasurer had accepted the proceeds
of the Auditor's sale, but before a deed had been executed and
delivered by the Auditor.
"vVill yon kindly advise whether or not, in your opinion,
the former owner could redeem, the tax lien having passed to
the purchaser at the Auditor's sale?"
The provisions of the Revised Code, relating to forfeited lands, are
found in Sections 5723.01 to 5723.19. These provisions were formerly
embodied in Sections 5744 to 5773, General Code. Section 5723.03, Re-
vised Code, 5746, G.C., reads as follows:
"lf the ,former owner of a tract of land or town lot, which
has been forfeited, at any time before the state has disposed of
such land or lot, pays into the treasury of the county in which
such land or lot is situated, all the taxes, assessments, penalties,
and interest due thereon at the time of such payment, the state
shall relinquish to such former owner all claim to such land or lot.
The county auditor shall then re-enter such land or lot on his
tax list, under the name of the proper owner." (Emphasis added.)
Section 5723.12, Revised Code, 5762, G.C. reads as follows:
"The county auditor, on making a sale of a tract of land to
any person under sections 5723.01 to 5723.19, inclusive, of the
Revised Code, shall give such purchaser a certificate of sale. On
producing or returning to the auditor the certificate of sale, the
auditor on payment to him by the purchaser, his heirs, or assigns,
of the sum of one dollar and twenty-five cents, shall execute and
deliver to such purchaser, his heirs, or assigns, a deed, which
deed shall be prima-facie evidence of title in the purchaser, his
heirs, or assigns. When a tract of land has been duly forfeited
to the state and sold under such sections, the conveyance of such
real estate by the auditor sh.all extinguish all previous title and in-
vest the purchaser with a new and per.fect title, free from all liens
and encumbrances, except taxes and installments of special assess-
ments and reassessments not clue at the time of such sale, and
OPINIONS
except such easements and covenants running with the land as
were created prior to the time the taxes or assessments, for the
nonpayment of which the land was forfeited, became due and pay-
able." (Emphasis added.)
Your letter presents a factual situation, wherein it appears that the
purchaser of the forfeited land in question, had received his certificate of
purchase, and had paid the purchase money into the hands of the county
auditor, and he in turn, had paid same to the county treasurer, but said
purchaser had not presented his certificate to the auditor, and accordingly,
had not received the auditor's deed for the property. In that situation
the former owner of the property has attempted to pay to the treasurer
those taxes which were a charge on the real estate at the time of the sale
by the auditor.
It appears, therefore, that the sole question ts whether the owner
may, by payment of the delinquent taxes, redeem the premises, and thereiby
prevent the completion of the sale by the delivery of the auditor's deed.
This question was squarely before the Court of Appeals for Cuya-
hoga County, in the case of Uhinck vs. Boyle, Treasurer, 84 Ohio App.,
71. In that case, it appeared that after the sale, the purchaser paid into
the hands of the county auditor, the purchase price, and received the cer-
tificate prescri:bed by the statute, but had not presented that certificate
to the auditor or paid the fee of $1.25, as required by the law, and had
not received the deed for the premises.
In this situation, the plaintiff, the former owner, demanded of the
county treasurer, a tax bill showing the correct amount of taxes due, and
tendered payment, which request was refused. She then filed suit, seeking
to enjoin the county auditor .from completing the sale to the purchaser
and to compel the county treasurer to permit her to redeem her property,
by .paying the amount of .taxes legally due. The Common Pleas Court,
upon final hearing entered a decree enjoining the conveyance of the lot
to the purchaser, and directing the county auditor to vacate such sale. The
decree further .provided that the plaintiff !be permitted to redeem her prop-
erty by payment of the amount of the taxes, and ordered the return to the
purchaser of the amount deposited by him pursuant to the forfeited land
sale proceeding. The Court of Appeals affirmed the judgment of the
lower court, holding:
ATTORNEY GENERAL
"The owner of a parcel of land which has been forfeited to
the state for failure to pay taxes levied thereon may redeem such
land by the payment of the taxes legally due thereon to the county
auditor at any time before the county auditor has .prepared and
delivered a deed to the purchaser of such property at a forfeited
land sale in accordance with Sections 5718, 5718-r, 5718-ra, 5718-
rb, 5718-rc, 5746, 5751 and 5752, General Code."
In the course of the opinion the court said :
"Section 5762, General Code, provides in part:
'When a tract of land has been duly forfeited to the state
and sold agreeably to the provisions of this chapter, the con-
veyance of such real estate by the county auditor shall extin-
guish all previous title thereto and invest the purchaser with a
new and perfect title.'
"In other words, forfeited lands are not 'disposed of' under
Section 5746, General Code, until there has been a conveyance
under Section 5762, General Code. The certificate provided for
by Section 5762 does not convey the title to the property to the
purchaser at a forfeited land sale. The certificate is simply evi-
dence that he was the highest bidder entitling him to a deed for
the property. Upon this -point that section provides:
'The county auditor on making a sale of a tract of land to
any .person, under this chapter, shall give -such purchaser a cer-
tificate thereof. On producing or returning to the county auditor
the certifi.cate of sale, the county auditor, on payment to him by
the purchaser, his heirs, or assigns, of the sum of one dollar and
twenty-five cents shall execute and deliver to such purchaser, his
heirs, or assigns, a deed therefor, in due form, which deed shall
be prima facie evidence of title in the purchaser, his heirs, or
assigns.'
"* * * until the county auditor delivered his deed for prop-
erty bought at a forfeited land sale the property had not been
'disposed of,' and until such deed was delivered to the purchaser
the owner of such land may redeem the same by paying the taxes,
penalties and interest then legally due, as .provided by law."
(Emphasis added.)
In the case of Kinney vs. Hoffman, Treasurer, I5I Ohio St., 517,
substantially the same question was presented. In that case, it appeared
that Kinney and wife were the owners of certain property which was
forfeited to the state and sold pursuant to the statutes hereinabove men-
tioned. The purchaser at the sale was Kinney, himself, who was not aware
of his right under Section 5746, General Code, to redeem the property.
It appeared that pursuant to such sale, he paid into the hal(ds of the
730
OPINIONS
county auditor $4,361.85, which was the total of his bid, plus the cost of
transfer and an auditor's deed. Before receiving his deed from the auditor,
on learning of his right he tendered to the treasurer the sum of $3,881.02,
being the amount of the delinquent tax, together with the sum of $1.50
for redemption fee, and demanded the return of the amount which he
had paid on the purchase. Upon the refusal of the treasurer to comply
with this request, he filed his suit in the Court of Common Pleas of Stark
County, against the County Treasurer for the sum of $441.54, being the
difference between the amount paid on the land .sale, and the amount re-
quired for redemption. The court sustained a general demurrer to the
petition and that judgment was affirmed by the Court of Appeals.
Thereupon, it appearing that the judgment in that case was in con-
flict with the judgment of the Court of Appeals in the Uhinck case, supra,
the record was certified to the Supreme Court for review and final de-
termination. The decision of the court as shown by the syllabus is as
follows:
''1. The law providing for the redemption of land sold for
ta..xes is equitable in character and should receive a liberal m-
terpretation.
''2. Under the proviSions of Section 5746, General Code,
if the former owner of a tract of land or town lot which has been
forfeited for nonpayment of taxes, at any time before the state
has disposed of such land or lot shall pay into the treasury of
the county in which such land or lot is situated all the taxes, as-
sessments, penalties and interest due thereon at the time of such
payment, the state shall relinquish to such former owner or own-
ers, all claim to such land or lot.
"3. Such premises are not 'disposed of' within the pur-
view of Section 5746, General Code, until the county auditor exe-
cutes and delivers his deed therefor, which deed, under the
provisions of Section 5762, General Code, becomes prima facie evi-
dence of the title in the purchaser."
In the course of the opinion, the court, after referring to the statutes
which I have quoted, said :
"Under long established procedure, certificates of sale are
first issued and thereafter a deed is executed by the county audi-
tor. The t ~ r m s 'sold' and 'disposed of' therefore refer to two
separate and distinct acts; the first being the sale and issuance of
a certificate and the latter the execution of the deed of convey-
ance.
ATTORNEY GENERAL
"Under the provisions of Section 5746, General Code, the
right to redeem extends until the state 'has disposed of such land,'
no mention being made therein of the sale. All the other sec-
tions relating to the sale of such forfeited lands provide prelimi-
nary steps essential to the final disposition of the lots and use
the word 'sold' or 'sale.' As most generally defined the expression
'dispose of' as used in the connection it is here signifies-alienate,
transfer, relinquish, part with. See 12 Words and Phrases."
731
Thereupon, the court reversed the judgment of the Court of Ap-
peals and remanded the case to the Court of Common Pleas "for further
proceedings in accordance with this opinion."
It appears to me these cases cover precisely the situation presented
111 your communication, and that the decision of the Supreme Court m
the case of Kinney vs. Hoffman, is decisive of the question submitted.
I note your reference to Section 5723.17, Revised Code, which pro-
vides:
"The purchaser of forfeited lands, his heirs or assigns, from
the clay of such purchase, shall be held in all courts as the as-
signee of the state. The amount paid by such purchaser for said
land at such tax sale, with all taxes afterward paid thereon by
such purchaser, his heirs or assigns, with interest thereon, shall
be a lien em said land, and may :be enforced as any other lien."
This section should, in my opinion, be read in connection with the
next section, to wit, Section 5723.17, Revised Code. That section reads:
"When the claimant of any lands sold for the nonpayment of
taxes, assessments, penalties, interest, and costs, or his heirs or
assigns, recovers the land sold, by reason of the invalidity of such
sale, such claimant, or his heirs or assigns, shall refund to the
purchaser, or his heirs or assigns, the amount of the purchase
price, with all other taxes, assessments, penalties, interest, and
costs paid by such purchaser, or his heirs or assigns to the time
of such recovery, with interest. Such sum shall be paid to such
purchaser entitled thereto, 'before he is evicted by any claimant so
recovering such land. This section does not prevent a purchaser
from obtaining the value of any improvements made upon said
lane\ under sections 5303.07 to 5303. r 7, inclusive, of the Revised
Code."
The purpose of the lien provided ,for by the preceding section then
becomes clear. It protects a purchaser who has paid taxes which the former
owner should have paid, in the event the sale is found to be invalid and
732
OPINIONS
he is dispossessed by a successful claimant. This prov1s10n for a lien is
certainly not intended to defeat the right of redemption by the former
owner when he has proceeded strictly pursuant to the right given him by
the statute.
Still another section may be noted which would appear to bear on
the duty of the county treasurer with reference to a refund of the pur-
chase money deposited with the county auditor, where the former owner
has duly exercised his right of redemption. Section 5723.14, Revised
Code, provides :
"The sale of any tract or lot of land under sections 5723.01
to 5723.19, inclusive, of the Revised Code, on which the taxes
and assessments have been regularly paid previous to such sale,
is void, and the purchaser, his heirs, or assigns, on producing the
certificate of sale to the county auditor shall have his money re-
funded from the county treasurer.'"
The word "regularly" used in this connection appears to me to be
equivalent to "lawfully," and not to refer to payment of taxes sen1i-annually
as contemplated by the tax laws. If the owner has exercised the right
which the law gives him to redeem his property before it is "disposed of"
by the state, by paying the delinquent taxes, interest and penalties, then
it appears to me that the same have been paid "regularly" within the pur-
view of the section last quoted, and that it is the duty of the treasurer to
make the refund as provided by the statute.
Accordingly, it is my opinion and you are advised that where land
forfeited to the state has been sold pursuant to the provisions of Section
5723.01 et seq. of the Revised Code, and the purchaser has paid the pur-
chase price to the county auditor and received the certificate of sale pro-
vided in Section 5723.12, Revised Code, 5762, G.C., lbut has not pre-
sented said certificate to the Auditor of State or paid to the auditor the
fee of $1.25 prescri,bed by said section, and has not received from the
auditor a deed for such property, the former owner has the right under
Section 5723.03, Revised Code, 5746, G.C., to redeem said property, by
paying into the county treasury all the taxes, assessments, penalties and
interest then clue thereon.
Respectfully,
c. WILLIAM O'NEILL
Attorney General
ATTORNEY GENERAL
733
3374
1. FIRE DEPARTMENT-TOWNSHIP WHICH EMBRACES
WITHIN ITS BOUNDARIES PORTION OF DELAWARE
RESERVOIR-OWNED BY UNITED STATES-USED BY
STATE UNDER LICENSE AGREEMENT-FIRE DEPART-
MENT AUTHORIZED BY LAW TO SERVE AREA WITH
PROTECTION FROM FIRE-AREA ENTITLED TO SAME
DEGREE OF PROTECTION AS ACOORDED OTHER AREAS
COMPENSATION AICT-SECTION 505-41 RC.
2. FIREMEN OF TOWNSHIP FIRE DEPARTMENT-REGU-
LARLY EMPLOYED OR VOLUNTEERS-ENGAGED IN PRO-
VIDING FIRE SERVICE FOR THE AREA IN TOWNSHIP
IN WHICH THEY ARE EMPLOYED INCLUDED WITHIN
PROVISIONS OF SECTION 4123.01 ET SEQ., RC- EM-
PLOYES OF TOWNSHIP WITHIN SCOPE OF WORKMEN'S
COMPENSATION ACT-SECTION 505-41 RC.
SYLLABUS:
1. The fire department of a township which embraces within its boundaries a
portion of the Delaware Area Reservoir owned by the United States and used by the
State of Ohio under a license agreement, is authorized by law to serve such portion
with protection from fire, and such area is entitled to the same degree of fire protection
as accorded any other areas of the township.
2. Firemen of a township fire department, whether regularly employed, or
volunteers, while engaged in providing fire service within the area of the Delaware
Reservoir located in the township by which they are employed, are by virtue of the
provisions of Section 505.41, Revised Code, included within the provisions of Section
4123.01 et seq., Revised Code, and thus are employes of the township within the scope
of the Workmen's Compensation Act.
Columbus, Ohio, December 30, 1953
Hon. Clyde E. Lewis, Prosecuting Attorney
Delaware County, Delaware, Ohio
Dear Sir:
I have before me your request for my opinion reading as follows :
"The Trustees and Fire Chiefs of several townships have
asked me to inquire of you as to their rights, responsibilities and
liabilities in the Delaware Reservoir area. The Delaware Reser-
voir covers several townships.
734
OPINIONS
"The land is owned in fee by the Federal Government up-
wards of five thousand acres, is leased to the State of Ohio and
is operated Jby the Department of Natural Resources, the Division
of Parks and the Division of Wildlife. All public roads within
the Reservoir area have been abandoned.
"The Trustees and Fire Chie,fs have inquired as follows:
"r. Whether or not the fire departments may lawfully serve
this area.
"2. Are they required !by law to serve this area?
"3. H not required by law, may they contract for provid-
ing fire service ?
"4. Would firemen be protected under Workmen's Com-
pensation?"
Under the provisions of Section 505.37, Revised Code, the board of
trustees of a township is authorized to "establish all necessary regula-
tions to guard against the occurrence of fires, protect the property and
lives of the citizens against damage and accident," and to provide all
equipment necessary therefor. This section further contains the follow-
ing provisions :
"The board may employ one or more persons to maintain
and operate fire fighting equipment, or it may enter into an agree-
ment with a volunteer fire company for the use and operation of
such equipment. The board may compensate the members of a
volunteer fire company on such basis and in such amount as it
deems equitable."
The law recognizes that the men employed to operate such fire equip-
ment may either be regular employees or volunteer firemen, and may be
employed on either a part time or full time
1
ba:sis. Section 505-41 Re-
vised Code, reads as follows :
"Members of volunteer fire companies, or persons employed
by a township on a part-time 'basis to operate or maintain fire-
fighting equipment, or persons employed in any manner incidental
to the operation or maintenance of such equipment, are town-
ship employees for the purposes of workmen's compensation in-
surance, the same as though regularly employed as designated in
section 4123.0i of the Revised Code."
Section 4123.01, Revised Code, referred to in the above quoted sec-
tion, is a part of the law relating to workmen's compensation. In that
ATTORNEY GENERAL
735
section the words ,,.employee, workman or operative" are defined as m-
cluding ,.,every person in the service of the state or of any county, mu-
nicipal corporation, township or school district therein."
I note from your letter that the land comprising the Delaware Res-
ervoir area, is owned in fee by the federal government, and is leased to
the State of Ohio, and is operated !by the Department of Natural Re-
sources, the Division of Parks and the Division of Wildlife. Under the
provisions of Section 159.01 et seq., of the Revised Code, the acquisition
'by the United States, of title to land in the State of Ohio may result in
the United States obtaining exclusive jurisdiction over such land, such
exclusive jurisdiction being, by the terms of Section 159.04, expressly
ceded to the United States for all purposes except the service upon such
sites of civil and criminal process of the courts of the state.
Such jurisdiction is only completed by the filing with the Governor
of the state of a written acceptance of such exclusive jurisdiction. This
IS required by 40 U. S. Code, Section 255, which provides:
"Notwithstanding any other provision of law, the obtain-
ing of exclusive jurisdiction in the United States over lands or
interests therein which have been or shall hereafter be acquired
by it shall not he required; but the head or other authorized offi-
cer of any department or independent estCl!blishment or agency of
the Government may, in such cases and at such times as he may
deem desirable, accept or secure from the State in which any lands
or interests therein under his immediate jurisdiction, custody, or
control are situated, consent to or cession of such jurisdiction,
exclusive or partial, not theretofore obtained, over any such lands
or interests as he may deem desira:ble and indicate acceptance
of such jurisdiction on behalf of the United States by filing a
notice of such acceptance with the Governor of such State or in
such other manner as may be by the laws of the State
where such lands are situated. Unless and until the United States
has accepted jurisdiction over lands hereafter to be acquired, as
aforesaid, it shall be conclusively presumed that no such jurisdic-
tion has been accepted."
Construing this provision, see Adams v. United States, 319 U. S.,
312; Opinion No. 649, Opinions of the Attorney General for 1945, page
8o6.
A careful search of the records and files in the office of the Gov-
ernor, fails to disclose any evidence of the filing of any such notice of
acceptance of the land in question. It would appear, therefore, that the
OPINIONS
United States has not acquired exclusive jurisdiction over the area m
question.
The lease to the State of Ohio, to which you refer, is in fact, a license
executed on the rrth day of April, 1951, by authority of the Undersecre-
tary of the Army, together with a supplemental amendment to such license
adding other territory, and dated the second clay of February, 1952. These
license agreements grant the use of something over 7,000 acres of the
land in question to the Department of Natural Resources of the State of
Ohio, for the .purposes generally stated of recreational development and
management of fish and game. There is contained in said instrument of
license, among others, the following provision :
"4. That the licensee shall protect the property from fire.
vandalism, and soil erosion, and may make and enforce such rules
and regulations as are necessary, and within its legal authority, in
exercising the privileges granted in this license, provided that such
rules and regulations are not inconsistent with those prescribed
by the Secretary of the Army, to govern the public use of the
reservoir area."
Even if the United States had obtained exclusive jurisdiction over
the area in question, it would appear, since the license agreement made
the area available to the general purblic under the control of an agency
of the State, that such license would have returned jurisdiction to the
state. The agreement contains among other things, authority for the De-
partment of Natural Resources to construct upon such land, buildings
and other improvements as may be removed by the licensee when the license
is terminated or relinquished. It would accordingly appear that in addi-
tion to such structures as the United States might erect, the state would
also have an insurable interest in the structures and improvements erected
by it.
Coming then to the question as to the right and duty of a township
fire department to serve the portion of this reservoir area that lies within
the boundaries of the township, I call your attention to Informal Opin-
ion 220, which I rendered on January 22, 1953, where the question was
raised as to the obligation of a township fire department to furnish pro-
tection to county and state properties located within the boundaries of
the township, in the a;bsence of any contract with the county or state
providing payment therefor. In that opinion attention was called to
the provisions of Section 3298-60, General Code, now found in Sections
ATTORNEY GENERAL
737
9.60 and 307.05, Revised Code, authorizing the county commissioners of
a county or the superintendent or other administrative head of any state
institution, college or university, to enter into a contract with a township,
city or village for fire protection. It was, however, pointed out that such
property is located outside of the boundaries of the township, city or vil-
lage. It was further said, in the course of the opinion:
"In confining such authorization to cases where the prop-
erty is located outside of such township, city or village, I be-
lieve it clear that the General Assembly proceeded on the long
and well-founded assumption that the political entity involved
would afford fire protection to all of the property located therein
without reference to its ownership." (Emphasis added.)
In the course of that opinion I quoted with approval the language
of my predecessor, in an informal opinion No. 21, rendered February
20, 1946, where it was said:
"* * * If the township itself maintained a fire department,
it would hardly be open to question that it would be as much its
duty to furnish protection to a public building located within its
limits as it would be to furnish such protection to privately owned
buildings. Fire protection is not for certain individuals or prop-
erties, but for all within the corporate territory."
It is true that the property here under consideration would :be tax
exempt. That fact does not, in my opinion, alter or modify the obliga-
tion of the township having a fire department to protect it. In addition
to .property of the state and nation, we have also school houses and churches,
which, though tax exempt, are certainly entitled to the same fire protec-
tion as other property.
What has been said would appear to answer all of your questions.
Since it is plainly the duty of the township fire department to serve all
property within the boundaries of the township, whether public or pri-
vate, there could of course be no question as to their right to do so. It is a
part of the service for which the members of the fire department are em-
ployed and paid. Since firemen belonging to the department, whether
regularly employed or volunteers, are; under the statutes regarded as em-
ployees within the terms of the workmen's compensation law, there ap-
pears to 'be no open question on that subject.
It may be weU to point out that so far as the township itself is con-
cerned, there is no legally enforceable duty imposed upon it to organize or
OPINIONS
maintain a fire department of sufficient strength to protect adequately all
of the property in the township. In fact, there is no provision in the law
by which others may require it to provide any fire fighting equipment or
take any steps to protect the property or lives of its citizens.
There could be no action in damages against the township for failure
to provide fire protection or for the negligence of its fire department if
one has been established, in handling the equipment. Such has been the
holding of the Supreme Court in reference to police and fire protection
in cities. As to police protection, in Western College v. Cleveland, 14
Ohio St., 375, it was held that the city was not lia:ble in damages rfor the
destruction of property by a riotous assemblage, or for the neglect of its
officers in failing to preserve the .peace. In Wheeler v. Cincinnati, 19
Ohio St., 19, it was held:
"The power conferred by the statute, in cities of this state
to organize and regulate fire companies, and provide engines, etc.,
for extinguishing fires is, in its nature, legislative and govern-
mental; and a city is not l i < ~ J b l e to individuals for damage result-
ing ,from a failure to provide the necessary agencies for extin-
guishing fires, or for the negligence of officers or other persons
connected with the fire department."
In my opinion, whatever duty rests upon public officers as to powers
which are conferred on them by law, but not by the law made mandatory,
arise by implication. These powers are presumably intended for the bet-
terment and protection of the public, and the officer owes it to his con-
stituents to carry them out to the best of his aJbility. But his failure to
do so can only be punished by political action.
As to the township, therefore, the only duty in the matter is the im-
plied obligation which rests on every depart>ment of government to use
the powers which have been conferred upon it, to give its citizens the
benefits of good government and protection in so far as it is able.
Furthermore, while I consider it the duty of the fire department to
protect all property alike, whether public or private, it is realized that it
can only do so to the extent that it is provided with equipment and per-
sonnel which may be lamentably inadequate, and that there may be occa-
sions when it cannot take care of one area, because its entire capacity is
being used in another.
ATTORNEY GENERAL
739
I might also point out that the contractual obligation of the Depart-
ment of Natural Resources, as the licensee of the United States to "pro-
tect the property from fire" does not affect the obligation of the town-
ship to furnish such fire protection as it is able to supply any more than
such a similar agreement of a private tenant with a private landlord would
affect such obligation. Conversely, however, the mere fact that the United
States, as licensor, has imposed such obligation on the Department of
Natural Resources as licensee does not vest in the Department any au-
thority to compel the township to afford some special degree of fire pro-
tection to the area in question.
Accordingly, it is my opinion and you are advised:
I. The fire department of a township which embraces within its
boundaries a portion o.f the Delaware Area Reservoir owned 'by the United
States and used by the State of Ohio under a license agreement, is au-
thorized by law to serve such portion with protection from fire, and such
area is entitled to the same degree of fire protection as accorded any
other areas of the township.
2. Firemen of a township fire department, whether regularly em-
ployed, or volunteers, while engaged in providing fire service within the
area of the Delaware Reservoir located in the township by which they
are employed, are by virtue of the provisions of Section 505-4I, Revised
Code, included within the provisions of Section 4I23.0I et seq., Revised
Code, and thus are employes of the township within the scope of the
Workmen's Compensation Act.
Respectfully,
C. WILLIAM O'NEILL
Attorney General
740
OPINIONS
EMPLOYES IN STATE SERVICE-AMENDMENT OF SECTION
I4J.IO (I) RC-EFFECTED BY ENACTMENT OF AM. SUB. HB
484, Ioo GA-PROVISION THAT BEGINNING JULY I, FOL-
LOWING HIS EMPLOYMENT EACH EMPLOYE WHO HAS
COMPLETED AT LEAST NINETY DAYS OF SERVICE AND
WHO IS BELOW MAXIMUM SALARY STEP IN PAY RANGE
SHALL RECEIVE AN AUTOMATIC SALARY ADJUSTMENT
EQUIVALENT TO NEXT HIGHER STEP WITHIN PAY RANGE
FOR HIS CLASS OR GRADE-NOT RETROSPECTIVE IN AP-
PLICATION-NO APPLICATION TO THOSE EMPLOYES WHO,
ON JULY I, 1953, OR ON ANY PRIOR JULY 1, HAD SUCH
NINETY DAYS OF COMPLETED .SERVICE BUT UNDER THE
LAW IN EFFECT AT THE TIME WERE NOT ENTITLED TO
SUCH SALARY ADJUSTMENT.
SYLLABUS:
The amendment of Section 143.10(1), Revised Code, effected by the enactment
of Amended Substitute House Bill No. 484, effective October 23, 1953, 100th General
Assembly, which provides that "Beginning July 1 following his employment, each
employe who has completed at least ninety days of service in any position, office or
employment and who is below the maximum salary ste.p in the pay range to which
his position, office or employment is assigned, shall receive an automatic salary
adjustment equivalent to the next higher step within the pay range for his class or
grade" is not retrospective in application and, thus, has no application to those
employes who on July 1, 1953, or on any prior July 1, had such ninety days of com-
pleted service, but who, under the law in effect at such time, were not entitled to
such salary adjustment.
Columbus, Ohio, December 30, 1953
Hon. Carl W. Smith, Chairman, State Civil Service Commission of Ohio
Columbus, Ohio
Dear Sir:
I am m receipt of your request for my opinion, which reads as
follows:
"Subsequent to the effective date of Amended Sulbstitute
House Bill No. 484, a supplemental payroll from the auditor of
state was submitted to this Commission for approval bearing the
names of certain employees who had served more than ninety
ATTORNEY GENERAL
days, hut less than the major part of a year, preceding July I,
I953. for payment of automatic salary adjustments equivalent
to the next higher step within their respective pay ranges, for the
period July I, 1953, to the effective date of the aforementioned
act.
"Section 143.II (C) says: 'The new salaries of all employees
affected by new classifications, additional grades within exist-
ing classifications, and the reassignment of classifications to differ-
ent pay ranges, shall be effective as of July I, I953'
"Your opinion is requested to determine whether these em-
ployes are entitled to such ?.utomatic salary adjustments under the
provisions of Section I43.ro(I) of the Revised Code; and if so,
when these adjustments become effective."
741
Amended Substitute House Bill No. 484 \vas enacted by the rooth
General Assembly on July I4, I953, approved by the Governor on July
24, I953, filed in the office of the Secretary of State on July 24, I953 and
became effective October 23, I953 It amended Sections I43-09, I43.IO,
I4J.II and I43 I2 of the Revised Code relative to the classification and
salaries of state employes.
Prior to such amendment Section 486-7b ( 9), General Code, Sec-
tion I43Io(I), Revised Code, read in part as follows:
"* * * Beginning July I, I95I, each employe who has com-
pleted one year, or a major part thereof, in a particular position,
office or employment and who is below step 5 in the pay range
to which his position, office or employment is assigned, shall re-
ceive an automatic salary adjustment equivalent to the next higher
step within the pay range for his class or grade. Each year there-
after, until the highest step in the pay range is reached, each em-
ploye shall receive an automatic salary adjustment equivalent to
the next higher step within the pay range for his class or grade.
The first such adjustment shall become effective as of July I, fol-
lowing completion of the first year's service, or major part thereof,
and as of July I of each year thereafter until the maximum salary
or wage in the pay range is reached. * * *" .
As amended, effective October 23, I953, Section 143-IO(I), Revised
Code, Section 486-7b(9), General Code, now reads in part:
"* * * Beginning July I following his employment, each
employee who has completed at least ninety clays of service in
any position, office or employment and who is below the maxi-
mum salary step in the pay range to which his position, office or
employment is assigned, shall receive an automatic salary ad-
742
OPINIONS
justment equivalent to the next higher step within the pay range
{or his class or grade. On July I o.f each year thereafter, until
the highest step in the pay range is reached, each employee shall
receive an automatic salary adjustment equivalent to the next
higher step within the pay range .for his class or grade. * * *"
It would appear that certain employes of the Auditor of State, on
July I, I953, had not completed a major part of a year in their particular
positions, offices or employments and, thus, under the existing terms of
Section 486-7b ( 9), General Code, were not entitled to an automatic sal-
ary adjustment equivalent to the next higher step within the pay ranges
for their classes or grades. The basic question presented by your request,
therefore, is whether the amendment which authorizes such salary adjust-
ment as to an employe who has completed at least ninety days of service
in such position, office or employment "on July I following his employ-
ment," and which became effective October 23, 1953, authorizes such
salary adjustment for employes who, on July r, I953, had completed such
ninety days but had not completed a major part of a year.
The answer to your question lies in a determination of whether such
legislation is prospective or retrospective in operation.
The general rule, universally followed by the courts, as to whether
a statute may be applied retrospectively or only prospectively is well stated
in 37 Ohio Jurisprudence, pages 8r9 to 822, as follows:
"Courts indulge in the presumption that the legislature in-
tended statutes enacted by it to operate prospectively rather than
retroactively. Indeed, the general rule is that they are to be so
construed if susceptible of such interpretation or unless the law is
retroactive in terms which clearly show such legislative intention
as to permit, by no possibility, of any other construction. When
the intention of the legislature is to give a statute a retroactive
effect, such intention must not be left to inference or construc-
tion, but must be manifested by express and unequivocal expres-
sion. If it is doubtful whether it was intended that the act should
operate retrospectively, the doubt should be resolved against such
operation. A provision in a statute declaring it to 'be an emergency
law and expressly stating the reasons for such action are not suffi-
cient to make the statute applicable to pending proceedings.
These rules are especially true where a construction rendering the
statute retrospective would work injustice."
Is there anything in the -language of Section 143.10 (I), Revised
Code, as amended, which shows a legislative intent to apply it retro-
ATTORNEY GENERAL
743
spectively or retroactively and of such a character as to permit no possi-
bility of any other construction? Clearly not. Note that the past tense
is not employed in any of the verbs. The statute refers to an employe
who "has" completed ninety days of service, not to one who "had" com-
pleted such service. Note, too, that it states that he "shall" receive such
salary adjustment "beginning July I following his employment." while
the "July I" referred to must be at least ninety days following his em-
ployment, the use of the future tense in the verb "shall" clearly indicates
the legislative intent that such "July I" must also be subsequent to the
effective date of the legislation. In any event, it certainly could not be
said that this section contains any language which, by unequivocal ex-
pression, provides that it shall operate retrospectively or retroactively.
It might be pointed out that as a companion measure to Amended
Substitute House Bill No. 484, House Bill No. 483 was introduced at
the same time, on March I8, I953 This bill would have amended Sec-
tion 486-7b to substitute a requirement of ninety days service prior to
July I for the old requirement of service for a major portion of a year.
This -bill was introduced as an emergency measure and had it been passed
prior to July I, I953, it would have had the effect of providing for a salary
adjustment for all employes of the state who, on July I, I953, had com-
pleted ninety days of service in any position, office or employment and
who were 1below step 5 in their respective pay ranges. This 'bill, how-
ever, was not reported out of committee.
Parenthetically it might be .pointed out that if such statute could be
construed so as to give it retrospective effect, there is no language which
would limit such retrospective effect to July r, I953 In other words, if
the language "beginning July I following his employment" is construed
to refer to a July Ist which is already past, it would, of necessity, refer
to July Ist of I952, July Ist of I95I, etc., as well as to July I, I953 lf
it were given such a construction, which in my opinion it can not be,
those persons who were still below step 5 of their particular classifications
and who, on July I following their employment, did not receive a salary
adjustment, but who would have received such salary adjustment under
the existing law, would also be entitled to such adjustment as of the July I
first following their employment and to commensurate adjustments there-
after.
744
OPINIONS
Reference 1s made in your letter to the last paragraph of Section
143. I r (C), Revised Code. This entire subsection reads as follows:
"Where new classifications, or new grades within existing
classifications have been added by section I4309 of the Revised
Code, and pay ranges for new classifications or new grades have
been assigned under section I43 I I of the Revised Code, the com-
mission shall reassign immediately the particular positions affected,
without a public hearing. Such reassignments of such positions
shall 1be made in such a manner as .to prevent any reduction in
salary to affected employes, and the new salaries, following such
reassignments, shall be computed so as to give the same salary
benefits by way of increments and cost-<Jf-living adjustments the
affected employes would have received if no such new classifi-
cations or additional grades within classifications had been made.
"The new salaries of all employes affected by new classifica-
tions, additional grades within existing classifications, and the re-
assignment of classifications to different pay ranges, shall be ef-
fective as of July r, 1953."
It will be noted that this subsection deals only with (I) new classi-
fications, (2) additional grades within existing classifications, and (3) the
reassignment of classifications to different pay ranges. By way of amend-
ment to Section 143.09, Revised Code, the rooth General Assembly, in
Amended Substitute House Bill No. 484, created certain new classifica-
tions and certain additional grades within previously existing classifi-
cations. These newly created classifications and grades were assigned to
certain pay ranges by Section 143.1 r, Revised Code, as amended. The
bill also reassigned certain classifications to different pay ranges, e.g.,
Chief, Division of Mental Hygiene, assigned by the 99th General Assem-
bly to pay range No. 49, was reassigned to pay range No. 51 in Sectiion
I43.II, Revised Code, as amended. The last paragraph of Section 143.I1
(C), Revised Code, provides that the new salaries of employes affected
by the aJbove enumerated changes ''shall >be effective as of July I, 1953."
It has no application to new salaries of employes by virtue of the auto-
matic salary adjustment provided for as of July I of each year, since such
automatic salary adjustment is not predicated upon any new classifica-
tions, additional grades within existing classifications or the reassign-
ment of classifications to different pay ranges. Instead, such automatic
salary adjustment is but an advancement in steps within the same pay
range and is not predicated on a reclassification, new clasification or re-
assignment of a classification to a different pay range.
ATTORNEY GENERAL
745
Such language, of course, is an example of where the Legislature,
by unequivocal expression, has provided that a certain portion of the legis-
lation shall have a retrospective effect. Such retrospective effect, how-
ever, is not accorded to all o the terms of Amended Substitute House
Bill No. 484, but is specifically limited to the situations described in Sec-
tion I43 II (C), Revised Code.
In specific answer to your question, it is my opinion that the amend-
ment of Section I43IO(I), Revised Code, effected by the enactment of
Amended Substitute House Bill No. 484, effective October 23, I953,
which provides that "Beginning July I following his employment, each
employee who has completed at least ninety days of service in any po-
sition, office or employment and who is below the maximum salary step
in the pay range to which his position, office or employment is assigned.
shall receive an automatic salary adjustment equivalent to the next higher
step within the pay range for his class or grade" is not retrospective in
application and, thus, has no application to those employes who, on July
I, I953, or on any prior July I, had such ninety days of completed service,
but who, under the law in effect at such time, were not entitled to such
salary adjustment.
Respectfully,
c. WILLIAM O'NEILL
Attorney General