Citations
- 71 Ohio St. 203
Full opinion text
Crew, J.
The sole question involved in this case is that of the constitutionality of an act of the general assembly passed April 25, 1904, entitled an act “Fixing the salaries of the county surveyors in various counties of the state.” This act, found in 97 Ohio Laws, pages 313 and 314, omitting the enacting and repealing clauses, is as follows:
“Section 1. The county surveyor in each county of the state of Ohio shall receive in full compensation for his services a salary not to exceed $3,000 per annum, and the judges of the court of common pleas of each county are hereby constituted a commission to fix the amount of compensation of the surveyor of the county. Such annual compensation shall he so fixed once each year. When such a commission shall deem .it necessary the county surveyor may appoint deputies, not exceeding three (3) in number, as prescribed in section 1166 of the Revised Statutes of Ohio, at a salary for one, not exceeding two-thirds of the salary of the surveyor; and for the other two, not exceeding for each, one-half of the salary of the surveyor per annum; and shall appoint such other assistants as are provided for in this act.
“Section 2. Said commission shall fix an aggregate sum to he expended for the compensation of such assistants, engineers, draftsmen and inspectors as may he deemed necessary to properly carry out the official duties of the office. The compensation of the surveyor, his deputies and other employes shall be paid monthly on the warrant of the county auditor out of the various improvement funds of the county in such amounts as may he pro rated by the-county auditor, to the various improvement funds. The county surveyor shall be responsible for the inspection of all public improvements, planned by him. The board of county commissioners shall allow the-surveyor and' said other employes their actual and necessary traveling expenses while engaged on county work, a statement of which expenses shall be-verified under oath by the person incurring the same. ’ ’ that the powers and duties of each, shall he separate-from and independent of the powers and duties of the other co-ordinate branches, and the distribution so made to the several departments, by clear implication operates as a limitation upon and a prohibition of the right to confer or impose upon either powers that belong distinctively to one of the other co-ordinate branches. Kilbourn v. Thompson, 103-U. S., 168. Judge Cooley in his work on Constitutional Limitations, page 126, speaking of this distribution of powers, says:
By the provisions of this act the county surveyor of each county of this state shall receive, in full compensation for his services, a salary not to exceed $3,000 per annum, the amount thereof to be fixed and determined by the judges of the court of common pleas of each county, who are by said act constituted a commission for that purpose and charged with the-duty of determining and fixing the amount of compensation that shall be paid to the county surveyors-in their respective counties. The first question perhaps that naturally suggests itself upon a consideration of this statute is, Are the powers conferred and the duties imposed upon the judges of the court of' common pleas by this act, legislative or judicial in their character? If purely legislative in their nature, then their delegation to a commission or tribunal other than the legislature itself is unauthorized, because inhibited by the constitution, for while-the constitution of Ohio does not in express terms forbid the conferring of powers belonging to one branch of the state government on any co-ordinate branch,, yet the fact that these governmental powers have been severally distributed by the constitution to the legislative, executive and judicial departments of our state government, clearly evidences a purpose--
“One of the most noticeable features in American constitutional law is the care which has been taken to separate legislative, executive and judicial functions. It has evidently been the intention of the people in every state that the exercise of each should' rest with a separate department. The different classes of power have been apportioned to different, departments, and as all derive their authority from the same instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others.”
The power attempted to he conferred upon the-judges of the court of common pleas of the several counties of this state by the statute here under consideration is, by the express terms of the statute, the-power to fix and determine the amount of compensation to he paid to county surveyors in their respective counties. The power so given, and the