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Opinion of the Court.

had been in possession long before the action for compensation was commenced. There is but one important respect in which the Oliver case resembles a condemnation case, and that is, that each looks to compensation to the owner for lands taken. But one reaches the end by statutory methods and machinery to appropriate or condemn against the will of the land owner. Such is a condemnation of property case, and naturally is the kind of case contemplated by the legislatur in Sections 101, 108 and 110, supra, for they appear as part of the same code that prescribes the proceedings to secure the appropriation of property, by a municipal corporation and were more likely to have been before the minds of the law makers than a common law action to recover for wrongful entry and possession. It is quite probable that cases for condemnation or appropriation, according to the terms and formula of the statute, and in which final judgment is rendered, were in view, when Section 101 and the kindred sections were adopted. At least, we believe that their restrictions do not apply to a judgment at common law for trespass on real estate and its wrongful possession.

We are but following the principles laid down by this court in Longworth v. Cincinnati, 48 Ohio St., 637. In fact we are governed by that case, if it was well decided, and of that we entertain no doubt. The first paragraph of the syllabus is:

"Where, in an action for compensation for land unlawfully taken by a municipal corporation without knowledge of the owners, and devoted to public uses by constructing thereon a street, it appears

Opinion of the Court.

that the owners, upon learning that the land has been so taken, acquiesced in the appropriation as an accomplished fact, and ratified it by tendering a sufficient deed of the premises conveying title to the corporation, and by offering to allow judgment that, upon the value of the premises being fixed and payment of the same, plaintiffs should be ordered to convey to the corporation, a case is made entitling the plaintiffs to recover the value of the land. Railroad v. Robbins, 35 Ohio St., 531, distinguished.”

We are reminded that mandamus is one of the extraordinary remedies, and in the language of Section 6744, the writ must not be issued where there is a plain and adequate remedy in the ordinary course.

We have observed that if the judgment rendered is final, and is not within the exception made in Section 101, sipra, it is the statutory duty of the sinking fund trustees to pay it. This is made plain by Section 110 of the code above referred to. No other recourse than mandamus has been suggested, unless it be ejectment, and that would be a barren remedy in a case like this. No writ of ejectment could remove the sewer, or eject the city from its possession and control. Its wrongful possession has culminated in a title in fee by conveyance to the city, and the judgment for compensation was substituted. The suit of the Olivers was for compensation and it was not an action or proceeding in condemnation. The statutes defining the authority and duties of sinking fund trustees, some of which we have cited, provide for the payment of such judgments, and the Olivers


may not be turned away by the observation that a judgment against the city can be enforced in some other way. The trustees say in their answer that they have sufficient funds to pay the judgment, and we think they should do so.

The judgment of the circuit court is reversed, and this court allows the writ of mandamus as prayed for.

Judgment reversed.

CREW, C. J., SUMMERS, SPEAR and Davis, JJ.,




Repeals by implication not favored-Earlier legislation gives way

to later, whenSection 4903, Revised StatutesCompensation for county commissioners-Repugnant to Section 26 of Article II of constitution-Effect of act of April 21, 1904Constitutional law.

1. Although repeals by implication are not favored, earlier legisla

tion 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 0. 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

Statement of the Case.

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.

Argument for Plaintiffs in Error.

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 by other emoluments of the office. Clark

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

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