#### Thorniley, Auditor, et al. *v.*State, ex rel. Dickey, Prosecuting Attorney.

*Repeals by implication not favored*— Earlier *legislation gives way to later, when*— Section *4903, Revised Statutes*— Compensation *for county commissioners*— Repugnant *to Section 26 of Article II of constitution*— Effect *of act of April 21, 1904*— Constitu*tional law.*"

1. Although repeals by implication are not favored, earlier legislation must give way when it is necessary to carry out the later expression of the legislative will; and that part of Section 4903, Revised Statutes, which provides for compensation to county commissioners for services rendered as directors of highways must be regarded as abrogated by the later act of April 21, 1904 (97 O. L. 254), giving to the county commissioners a salary and limiting their compensation to the salary designated.

2. Section 4903, being an essential part of a statute providing for the management and control of highways by essentially different methods, in different counties of the state, is void because repugnant to Section 26 of Article II of the constitution that all laws of a general nature shall have a uniform operation throughout the state. *(Hixon*v. *Burson,*54 Ohio St., 470, and *109
      *The State, ex rel.,*v. *Davis,*55 Ohio St., 15, approved and followed.)

(No. 11127

Decided November 9, 1909.)

Error to the Circuit Court of Gallia county.

The defendant in error, as prosecuting attorney of Gallia county, brought suit in the court of common pleas to enjoin the auditor from issuing, and the treasurer from paying, warrants in favor of the three commissioners of the county in payment of bills which they had allowed themselves for services as turnpike directors. The substantial allegations of the petition showed the election and qualification of the officers named to their several positions, the allowance by the commissioners of certain designated bills in their own favor for services as turnpike directors, and that, without warrant of law, such bills were about to be discharged by warrants drawn by the auditor and paid by the treasurer.

To this petition the auditor and treasurer demurred, in the court of common pleas. Their demurrer was sustained and the plaintiff not desiring to plead further, the petition was dismissed.

The prosecuting attorney prosecuted a petition in error to the circuit court where the judgment of the court of common pleas was reversed, and the defendants not desiring to plead further, and the circuit court proceeding to render the judgment which the court of common pleas should have rendered, the issuing and paying of' the warrants were perpetually enjoined.

*110
      *Mr. H. 'C. Johnston*and *Mr. E. D. Davis,*for plaintiffs in error.

The right of public officers to compensation from the public treasury for services officially rendered to the public, has repeatedly received the attention of the supreme and inferior courts of the state, and the resulting decision showed that no rule of law is more firmly established than that such officers are not so entitled unless payment is authorized by statute; and that even where public duties are expressly prescribed by statute to public officers if no statutory provision exists or is made for compensating them they must be rendered gratuitously, the law assuming that they are compensated b}r other emoluments of the office. *Clark*v. *Commissioners,*58 Ohio St., 107; *Debolt*v. *Trustees, 7*Ohio St., 237; *Strawn*v. *Commissioners,*47 Ohio St., 404; *Jones*v. *Commissioners,*57 Ohio St., 189; *Eshelby*v. *Board of Education, 66*Ohio St., 71; *State*v. *Kelly,*32 Ohio St., 421; *Brundige*v. *Ashley, 62*Ohio St., 528.

It may be argued that the additional allowance to county commissioners for ditch work together with the absence from the act of a provision compensating such officers for turnpike work evidences an intention not to provide compensation for the work required of turnpike directors respecting the improved roads for their counties. This inference, however, is hardly reasonable when it is remembered that, prior to the passage of the salary act, county commissioners discharged the duties that devolved upon them in relation to ditches strictly as county commissioners, and were, under the *111general laws of the state, compensated for such work; in the same manner that they were compensated for the time spent in the discharge of their ordinary duties; and that the repeal of the statute allowing the *per diem*compensation, and substituting an annual salary, would unquestionably eliminate any allowance formerly received by them for ditch work, and knowing this to be an unfair discrimination against them and in favor of counties that had ditch work to perform, introduced into the salary act a provision expressly compensating them for that class of work. It is not reasonable to assume that the general assembly was not as solicitous to deal fairly with the commissioners of these counties who were required under the general laws to organize themselves into a board of turnpike directors and to look after the turnpikes of the counties as with those who had ditch work to do.

It is clear that the members of the legislature like individual members of the state are charged with ’knowledge of its statutes. *Lessee of Allen*v. *Parish,*3 Ohio, 191; *Columbus*v. *Board of Education,*13 Low. D., 458; *Bowen*v. *Lease,*5 Hill (N. Y.), 225; 23 Am. & Eng. Ency. Law (1 ed.), 491; Endlich on Interpretation of Statutes, Section 182.

In order to arrive at the trtie legislative intent in construing a doubtful statute, that construction should be' adopted which is most favorable to reason and justice; the legislature will not be presumed to have intended that which is against reason.

*112And in conformity with the foregoing principle whenever a statute is capable of two constructions, one of which would work manifest injustice, and the other would work no injustice, it is the duty of the court to adopt the latter, as it can scarcely be presumed that an injustice was within the legislative intent. 23 Am. & Eng. Ency. Law (1 ed.), 358; *State*v. *Wright, 17*Ohio, 32; *Spicer*v. *Giselman,*15 Ohio, 341; *Insurance Co.*v. *Woolen Co.,*3 Ohio St., 348.

Repeals by implication are not favored and will not be decreed, unless the repugnancy between the two is not only irreconcilable, but also clear and convincing, following necessarily from the language used, unless the latter act fully embraces the subject-matter of the earlier act is beyond the peradventure removed. Hence, every effort must be used to make all acts stand, and if, by any reasonable construction, they can be reconciled, the latter act will not operate as a repeal to the earlier. 23 Am. & Eng. Ency. Law (1 ed.), 489; *Ludlow*v. *Johnson,*3 Ohio, 553; *Dodge*v. *Gridley,*10 Ohio, 174; *State, ex rel.,*v. *Dudley, 1*Ohio St., 437; *Cass*v. *Dillon, 2*Ohio St., 607; *State, ex rel.,*v. *Roosa et al.,*11 Ohio St., 16.

One statute is never repealed by the spirit of another. *Cass*v. *Dillon, 2*Ohio St., 612; State, *ex rel.,*v. *Cincinnati,*19 Ohio, 197; 23 Am. & Eng. Ency. Law (1 ed.), 492.

*113
      *Mr. A. O. Dickey,*prosecuting attorney; *Mr. Wade H. Ellis,*attorney general; *Mr. W. H. Miller*and *Mr. Clarence D. Laylin,*for defendant in error.

Included in Chapter Í0, Title *7,*Revised Statutes, are at least two separate and distinct methods provided for the repair of such roads, the first method being exclusively applicable to certain counties of the state therein designated by name and the second method, beginning with Section 4896, being exclusively applicable to every other county not specifically designated in the other method as provided in the preceding sections of this chapter.

For convenience of the court we cite, in as brief a manner as possible, the various acts passed by the legislature of Ohio from time to. time upon the subject of township trustees and turnpike directors, in so far as they have to do with the management of roads and particularly those acts, the substance of which, are now contained in Sections 4889 and 4896, Revised Statutes. 66 O. L., 131; *77*O. L., 65; 78 O. L., 62; 79 O. L., 39; 80 O. L., 89; 81 O. L., 80, 202; 82 O. L., 49; 83 O. L., 5, 63; 86 O. L., 110; 87 O. L., 324; 91 O. L., 22, 355; 94 O. L., 59. The legislature of Ohio added to or dropped 'from the enumeration of' counties in Section 4889 until said section assumed the form it now is.

The legislature by the revision of 1880 having repealed the act of May 7, 1869 (66 O. L., 131), and having arbitrarily enumerated certain counties from time to time in wdiich township trustees should maintain free roads, inserted in the revision *114what is known as Section 4896, Revised Statutes, by which it was attempted to provide for all other counties, which they had not already arbitrarily enumerated, an entirely different mode of management and control of all free roads in such other counties and attempted to vest such management exclusively in the county commissioners as a board of turnpike directors.

Section 4896, Revised Statutes, is based upon a classification of counties beginning April 20, 1874 (71 O. L., 120).

The other acts of classification will be found as follows: March 17, 1875 (72 O. L., 57); April 3, 1876 (73 O. L., 152); Mav 2, 1877 (74 O. L., 153); May 4, 1878 (75 O. L., 32).

All the classifications were based upon the “last federal census” and as far as any enactment of the legislature is concerned prior to the revision of 1880 there may have been counties which would not be included either within Section 4889 or Section 4896. So that the laws in regard to the management and control of free roads since the repeal of the act of May 7, 1869 (66 O. L., 131), have been in one of two forms, either the act legislated especially for *oné or more*named counties which resulted in Section 4889 or else the act proposed a classification absurd and arbitrary which legislation resulted in Section 4896.

The original act which provides for the compensation of county commissioners as turnpike directors and in which 'the same language is used as found in Section 4903, is the act of April 20, 1874 (71 O. L., 120), already referred to as the act in which the first attempted classification was made *115of counties by population for the purpose of the management and control of free roads.

Having referred to the past legislation on the subject of management of free roads in the various counties of the state, we maintain that beyond all controversy, the original acts as well as the sections of the Revised Statutes are in plain contravention of the provisions of Section 26, Article IT, of the constitution of this state.

From the foregoing statement it will be readily observed that the provisions of the statute under which said board of commissioners claim authority and are attempting to proceed can under no possible circumstances be operative in but a fixed and certain portion of the state.

The subject of roads, or highways and their repair and even specific classes of highways and their repair have been so repeatedly held by this court to be general in their nature as not to require further comment by the defendant in error, but ask to refer the court to the following cases: *Hixon*v. *Burton et al.,*54 Ohio St., 470; *State, ex rel.,*v. *Cowles et al.,*64 Ohio St., 162; *Fields*v. *Commissioners,*36 Ohio St., 481; *Platt*v. *Craig et al.,*66 Ohio St., 75; *Mott et al.*v. *Hubbard et al.,*59 Ohio St., 211; *State, ex rel.,*v. *Davis et al.,*55 Ohio St., 15.

The subject-matter of roads and their repair is certainly of such universal importance to ever)-' section of the entire state that it may be provided for by general, legislation. This is demonstrated by the act of May 7, 1869 *(66 O.*L., 134), which was a general law upon this subject and which applied to each county in the state and conformed *116in every respect to the constitutional limitation in Section 26 of Article II. And it cannot be seriously contended now that a general law governing the subject of road repair and applicable to every county of the state would be in anywise impracticable. In support of this position, we refer the court to the case of *State, ex rel.,*v. *Ellet et al.,*47 Ohio St., 90, and *State, ex rel.,*v. *Spellmire et al., 67*Ohio St., 77, and authorities therein cited.

It certainty cannot be questioned that if there is authority for the organization of the board of turnpike directors, the members thereof are necessarily county, officers, but by the same law by which they are authorized to affect such -anization, this office is confined to a certain fixed portion of the state, viz.: those counties which have not been specifically designated by namp' in the previous sections of this chapter necessitating a local operation of said Section 4896.

The same is true as to Section 4903 which provides for the compensation of the aforesaid turnpike directors. The fact that there can in no event under the present state of the law be a turnpike director except in certain counties necessarily confines the operation of this section to those counties, hence it is purely local in its operation.

The subject of county officers and their compensation have been held to be of a general nature and hence governed and limited by Section 26 of Article II of the constitution.. *State, ex. rel.,*v. *Yates, 66*Ohio St., 546; *Pearson et al.*v. *Stephens,*13 C. C., 49; *Kelley*v. *State, 6*Ohio St., 272.

*117From the examination of the entire act of April 21, 1904 (97 O. L., 254), it seems very clear that the entire subject-matter of compensation of county commissioners was intended to be covered by its enactment.

Section 2 specifically declares that the compensation provided in Section 1 shall.be in full payment of all services rendered as such commissioners, etc.

Shauck, J.

The claim of the commissioners for compensation calls upon them to show legal authority for its payment. In *Debolt*v. *The Trustees of Cincinnati Township, 7*Ohio St., 237, it was held that “An officer whose fees are regulated by statute, can charge fees for those services only to which compensation is by law affixed.” This view of the subject has been constantly adhered to in numerous cases, including *Eshelby*v. *The Cincinnati Board of Education,*66 Ohio St., 71. From all the cases relating to the subject it appears that all duties imposed upon a public officer without provision for compensation are oresumed to be performed iii consideration of the general emoluments ot his office. The considerate opinion of the common pleas judge in the present case is presented to us as the argument for plaintiffs in error, and it shows that he did not overlook this doctrine, or the cases in which it is maintained.

The required authority for the payment of the compensation sought by the commissioners is said to be found in Section 4903 Revised Statutes: “The compensation for. services as such director shall be the same in all respects as county com*118thissioners.” To this authority two objections are urged.

First. That the section relied upon has been repealed by implication by the act of April 21, 1904 (97 *Q.*L., 254), which placed county commissioners upon a salary, instead of allowing them compensation by fees as formerly. That act in its first section (Section 897, Revised Statutes) affixes to the office of county commissioner a prescribed salary in every county of the state, and the second section of the act provides “The compensation provided in the preceding section shall be in full payment of all services rendered as such commissioners.” It is true that the later act does not expressly repeal the former provision now relied upon as authority for the payment of the fees claimed by the commissioners. It is also true that repeals by implication are not favored, the meaning of which is,- and it must be, only that a court will not, in the absence of an express repeal, consider former legislation as repealed by implication when the former and later act may be harmonized by reasonable construction so as to continue both in operation. It is consistent with the elementary rule, always recognized’ as indispensable to the right administration of the written law, that the present will of the legislature is found in its latest expression. The act of April 21, 1904, does expressly repeal the act under which fees had been previously allowed to the county commissioners as compensation for their services, and thus there was removed from the legislation of the state the provision referred to in Section 4903, that the compensation for services of direc*119tors should be the same in all respects as county-commissioners. From this express repeal it resulted that if we should attempt to treat Section 4903 as still in force, we would find it utterly unintelligible and incapable of practicable application because there is no longer any designation of fees for the county commissioners. In giving effect to the second section of the act of April 21, 1904, that the compensation provided in- the act should be in full payment for the services rendered as such commissioners, we cannot resist the conviction that the terms employed indicate the legislative intent that compensation of commissioners shall not, by any statute, exceed that designated in the act. Here is expressed affirmatively by the language employed in the act the legislative will with respect to the subject so comprehensive that it cannot be doubted that the express repeal of Section 4903 was omitted by mere inadvertence. The last named section being incompatible with the later legislation must yield to it because of the impracticability of harmonizing the earlier and the later acts so that they may be enforced tog'ether.

It is further suggested that Section 4903 is void because it is an essential part of a statute upon a general subject, with only a limited operation, and therefore, repugnant to Section 26 of Article II of the constitution, that “all laws of a general nature shall have a uniform operation throughout the state.” This section is a part of Chapter 10, Title *7,*Revised Statutes, which first appeared in approximately its present form in the revision of 1880. It embraces Sections 4876 to 4907; inclusive, all providing as indicated by the heading of *120the chapter, for the repair of improved roads. That the provisions of the chapter do not have a uniform operation throughout the state is apparent from numerous of its provisions. Section 4889, as the act appears in the latest revision, designates thirty-two of the eighty-eight counties of the state within which the control and management of such roads is to be conducted in a manner entirely different from that which it places in operation in the remaining counties of the state. The counties thus grouped for the operation of this special legislation comprise the most, as well as the least, populous in the state. The statute suggests no basis of classification which might be supposed to justify different policies in the control and management of the roads. Indeed, as the counties referred to are plainly designated by their names, and not otherwise, it is entirely manifest that the legislature did not regard the subject of roads as being within this provision of the constitution.

Whether the subject is within the constitutional requirement that laws relating to it shall have a uniform operation throughout the state, was perhaps a matter of doubt at the time of the revision of 1880. But since that time the. question has received full consideration from this court in *Hixon*v. *Burson et al.,*54 Ohio St., 470, and *The State, ex rel.,*v. *Davis et al.,*55 Ohio St., 15. In both of these cases the subject was held to be within Section 26, Article II of the constitution. The conclusion in the latter case being thus stated in the first proposition of the syllabus: “Highway bridges, as well as the highway of which they are a part, are general subjects of legislation within *121the meaning of the constitution.” Certainly further consideration of the subject is not necessary. It could hardly be profitable.

What may be the road laws of the state, in view of this conclusion, we need not attempt to determine, for in no condition could we be relieved of the conclusive effect of two propositions whose soundness all recognize: first, the legislature may not legislate contrary to the provisions of the constitution; second, the courts may not legislate.

*Judgment affirmed.*

Crew, C. J., Summers, Spear, ^Davis and Price, JJ., concur.