ALLOWANCES TO CONSTABLES IN PROSECUTIONS AFFECTING MINORS.

Court of Appeals for Lucas County.

#### State of Ohio, ex rel William Eugene Stiles, v. Gabe Cooper, as Auditor of Lucas County, Ohio.

Decided, July 22, 1916.

*Fees and Costs—Constables May Recover for Services in Certain Cases ■—’Notwithstanding the Limitation of Section*3019. . . .

The limitation fixed in Section 3019, General Code,' of $100 per year for services rendered by a Constable, does not apply to services- rendered by him under Sections 13436 and 13439, General Code, in ■ prosecutions for neglecting minor children.

*L. E. Mallow*and W. *T. 8. O’Hara,*for plaintiff.

*J. G. D’Alton,*Prosecuting Attorney, and *A. J. Seney,*contra..

Richards, J.

This is an original action in mandamus filed in this court on June'19, 1916. The defendant has filed a demurrer to the petition. The petition sets forth, in substance, that the relator is' a duly elected and acting constable in and for Washington town-' ship, this county, and the defendant is the auditor of the county, and that in February, 1916, Oscar Redding, a justice of the peace in said township, duly issued and delivered to relator a warrant for the. arrest of a defendant upon a charge that such defendant neglecting his minor children, in violation of Section 1297,0, General' Code. The petition further .avers that the relator,"in', obedience to the command of the warrant, arrested .said defendant' and brought him before the justice of the.peace, and that there-, upon the’defendant waived, in writing, a trial by jury 'and'was. tried. before said justice of the peace and adjudged to be not' guilty, and'was discharged from custody. 'The petition further avers that the fees taxed on behalf of. this relator by the justice' of th'e"'peace 'for pursuing" and arresting "the" defendant and sub*463poenaing witnesses áre the same as those allowed by law to the sheriff in criminal eases, as provided for in Section 13436, General Code, and that all other fees therein taxed are the fees allowed by law to constables as provided for by Section 3347, Gen- • eral .Code, the total fees taxed in favor of relator being $3.80, and that this amount was duly certified by the justice of the preace to the defendant as county auditor. The relator further avers that there has been heretofore taxed in his favor- by said" justice of the peace, under Section 13439, General Code, during -, the year 1916, as fees in criminal eases brought before said jus-tice of the peace wherein the defendants were charged with neglecting their minor children, the aggregate sum of $103.05. Relator, avers that the defendant as county auditor neglects, and: refuses to issue a warrant in the amount of $3.80 in favor of re-' lator, on the treasury of Lucas county, and he prays that said deféndant may be compelled to issue his warrant in favor of the relator for said sum.

*t*The action is brought to determine the construction of the statutes relative to fees of constables where defendants are prosecuted for the neglect of minor children. The provisions of the General Code which bear on the matter in controversy are Sections 3016, 3017, 3019, 13436 and 13439. The first three sections cited *supra*have been embodied in -the statutes of the state for.many- years and cover prosecutions under the general criminal laws of the State. ' Section 3019, General Code, is' limited-in its operation, -by. its terms,, to felonies wherein the .state fails, and to misdemeanors wherein the defendant proves insolvent, and the limitation of $100 which may be allowed to a constable in any one year is for services in the class of cases therein enumerated. No provision is made therein for any class of cases except the ones mentioned, to-wit, “felonies wherein the state fails,” an'd “misdemeanors where the defendant proves insolvent. ’ ’ The case set forth in the petition in mandamus does not fall within either of those classes. The sections of the General Code from 13432 to 13440, inclusive, were originally Revised Statutes, Section 3718-a, first enacted in the year 1884 -and were applicable to prosecutions for cruelty to *464children or animals, and for adulteration of food, etc. In that class of cases the General Assembly saw fit to authorize prosecutions without empowering the magistrate to require security for costs, and to allow to constables increased fees therefor, making the same allowances to such officer as are provided for sheriffs.

To further stimulate the prosecution of such offense's, Section' 13439, General Code, not only dispenses with the duty of giving security for costs, but provides that if the defendant be acquitted', or discharged, or convicted and committed in default of paying fine and costs, “all costs of such case shall be certified, under oath, by the proper magistrate to the county auditor who, after' ebrrecting errors therein, shall issue a warrant 'on the county treasury in favor of the person to whom such costs and fees are payable.” 'This section of the General Code and the allied sec-' tiohs are in effect a supplement to Sections 3017 and 3019, Gen-' eral Code, and cover eases not embraced within those sections. ■

We find no limitation in the General Code as to the amount which may be allowed in any one year to a constable for services rendered under Sections 13436 and 13439, General Code. The provisions of the Code fixing salaries for sheriffs and authorizing' annual allowances for them in certain cases, have nothing to do with' the' amount provided by statute for constables.

The demurrer to the petition will be overruled and judgment entered for the plaintiff, awarding a writ of mandamus. ■

Chittenden, J., and Kinkade, J., concur.