State v. Yates.

Now it is urged here by one of counsel for the relator, that since the county officials, including the county auditor of Pickaway county, is a constitutional officer, one made by the constitution, that that reflects upon the question whether or not this law is of a general or special nature with reference to his compensation. But we find that argument disposed of in Hart v. Murray, supra, passing upon an act fixing the compensation of the justices of the peace, an officer created by the constitution of 1851, and this special act fixing the compensation of the justices of the peace, in and for Cuyahoga county, was held to be constitutional, and they cite in that case the dictum in the case of Cricket v. State, supra, which is afterwards made the law in the case of the state against the judges. They cite as follows: "There is nothing in the constitution prohibiting appropriate local legislation," and cite Judge White as saying: "And for myself I will say, that it seems to me the amount of compensation to be attached to a local office, is a question in its nature local, and that a law to regulate such compensation cannot properly be regarded as a law of a general nature."

If these words used in 1871, twenty years prior, by Judge White, were mere dictum, there is no question that it is now a stare decisis, for this case has been approved by every court since, where the question has arisen, and no division occurred until 1897.

Now coming to the last case upon this question, Pearson v. Stephens, supra, it must be said that the opinion of a majority of that court is sustained by precedent in favor of the constitutionality of laws of this character; furthermore it applies to the case at bar.

That was a case brought by a taxpayer for an injunction and not to obtain a writ of mandamus. The common pleas judge rendered an opinion deciding that the statute in question was unconstitutional, and it was taken to the circuit court; and that court held the statue unconstitutional, and yet, although the decisions of the two courts below were in favor of the unconstitutionality of this statue, the Supreme Court of Ohio reversed both of the courts and held that the statute was constitutional.

Judge Bradbury, whom we regard as a very able and eminent judge, rendered the opinion, and rendered it, too, with an able argument in support of this proposition, and was abundantly supported by legal precedent in this state.

As to whether or not laws of this character should be local or general, Judge Bradbury said: "Good government requires that any efficient and economical system brought into successful operation should be equally enjoyed by all the inhabitants of the state irrespective of county lines. On the other hand, the taxpayers or inhabitants of one county have no appreciable material interest in the amount of compensation paid to its officers by another county."

You cannot judge matters in Jackson county by what the taxpayers in Pickaway county may wish to pay its officers. It cannot be inferred at this point, as I said before, that this means bringing to Pickaway county inefficient officers, because it has been decided absolutely that the necessary conditions must exist in the county that brought the law into effect.

Judge Bradbury says: "On the other hand, the taxpayers or inhabitants of one county have no appreciable material interest in the amount of compensation paid to its officers by another county. No part of the burden rests upon them. Each county pays its own officers, and no

Pickaway Circuit Court

other county is called to contribute anything to that end. The amount of service required varies in the several counties, and chiefly depends upon the conditions existing in the county where rendered. Population doubtless, is an important factor in this connection, but wealth and the occupation of the inhabitants, whether agricultural, manufacturing, mining or commercial, also bear materially upon the question of the extent of service required. What would be adequate compensation for a particular officer in a small agricultural county, would be a mere pittance to one filling the same office in the counties of Hamilton or Cuyahoga."

Further upon this subject of a special statute, he says: "That a particular subject of legislation can be as well, or better, regulated by a local statute as by a general one, may bear on the question of power, however, upon the ground that it tends to stamp upon such subject a local character. That is, the circumstance, alone, that a particular subject of legislation is specially adapted to regulation by a local statute is, of itself entitled to consideration in determining the character of such subject whether local or general. In the case under consideration, the subject may not only be as well or better regulated by a local as by a general statute but is also, as we have seen, one that primarily and immediately concerns the inhabitants or taxpayers of the county to which it relates. Moreover, the law itself should be moulded to suit the conditions found to exist in such county."

Now, without reference to the other authorities upon the question of the constitutionality of this statute, and upon the main question whether or not it is of a general nature and should have uniform operation in this state, we unhesitatingly hold with Pearson v. Stephens, supra.

But it has been said that there are invalid sections in this special act of 1896; and indeed twenty-two various reasons were alleged, denying the constitutionality of this special act by counsel for the relator. Some of them went merely to the question of irregularities found in the statute; others were urged on the constitutional ground, but following the decision in Pearson v. Stephens, supra, if the criminal features added by Sec. 12 are unconstitutional, that does not of itself effect the scheme of the general act-the scheme of compensation. The scheme of compensation can still stand, even if the criminal features are stricken out. In other words, it is a perfect scheme and could have been adopted without the criminal feature.

So, as to the matter of official bonds. Whether that section is retroactive or not, it could be stricken out and still leave the feature of compensation intact; and following the manner in which the Supreme Court of Ohio disposed of them in Pearson v. Stephens, supra, in deciding these two questions, and applying the same reasons to the other uncon stitutional features, this court is not required or called upon to pass upon the unconstitutionality of these other sections until a proper case is presented for consideration by this court. For that reason we think, without going more fully into the case than has been done, that the demurrei to the petition should be sustained.

Chas. Gerhardt, for A. R. Vancleaf, probate judge, and Geo. B Thompson, clerk of courts, cited:

The act 92 O. L., 597, does not contravene Sec. 26, Art. 2, consti tution of Ohio: State v. Judges, 21 Ohio St., 1; Cricket v. State 18 Ohio St., 22; Hart v. Murray, 48 Ohio St., 605 [20 N. E. Rep., 576];

Guilbert v. Y

Pearson v. Stephens, 56 Ohio St., 126 [46 N. E. Rep., 511]; Secs. 1069, 1070, Rev. Stat.; Sec. 1157, Rev. Stat.; Sec. 1230, Rev. Stat.; Sec. 1260, Rev. Stat.; Sec. 546, Rev. Stat.; Sec. 1289, Rev. Stat. Amount of salary can have nothing to do with the nature of the services required of him. Anderson v. Commissioners, 25 Ohio St., 13. Act does not contravene Sec. 5, Art. 10 of constitution; nor Secs. 2 and 3, Art. 12, of the constitution: State ex rel. v. Judges, 21 Ohio St., 1.

MASTER AND SERVANT.

[Mahoning Circuit Court, April Term, 1901.]

Burrows, Laubie and Cook, JJ.

ANDREWS BROTHERS Co. v. MATTHew Burns.

1. RELATION of Master AND SERVANT—AMALGAMATED ASSOCIATION RULES. Where a rolling mill company employs a boss roller under the rules and regulations of the amalgamated association, the boss roller to employ his own assistant roller, roughers and heaters; the compensation to be an agreed price per ton for labor performed divided among the boss roller and his assistants, a certain percentage to each as provided by the rules of such association; the work to be continuous and the output of the mill to be under the direction of the general superintendent and to his satisfaction; the relation between the company and the employee is that of master and servant and not that of contractor and contractee.

2. SAME-WHEN SERVANT CAN RECOVER FOR INJURIES.

In such case when a rougher is injured through the negligence of the assistant roller who is the superior of the rougher, and without fault upon the part of the rougher, the company is liable.

Thos. N. Sanderson, for plaintiff in error.

William Anderson and E. H. Moore, for defendant in error.

Cook, J.

The only question made in this case is whether or not under the circumstances as shown by the pleadings and bill of exceptions the relation of master and servant existed between plaintiff in error and defendant in error at the time of the injury of which defendant in error complains.

The evidence shows that plaintiff in error was engaged in the manufacture of bar iron and for that purpose had a large rolling mill at Hazelton in the county of Mahoning, the iron being rolled into different sizes and shapes therein. One John Ramsey was engaged by the plaintiff in eror as the boss roller in one of the mills of such rolling mill, the rolling mill being divided into a number of small mills; the part of the general mill which had a train of rolls being denominated a mill. John Ramsey was engaged as boss roller over a mill or train of rolls and was employed under the rules and regulations of the amalgamated association, and, under these rules, he selected his own assistant roller, the roughers and beaters. The iron, when rolled and finished, was to be paid for by the ton, the boss roller receiving forty-nine per cent., the heater twenty-four and one-half per cent. and the two roughers twenty-six and one-half per cent. of the amount paid for the rolling or manufacturing of the iron, as prescribed by the scale of the amalgamated association. Out of the forty-nine per cent. Ramsey was to pay his assistant 20 O. C. D. Vol. 12

Mahoning Circuit Court.

nt.

roller and the laboring men employed in the work. This amount, of forty-nine per cent. to the boss roller, twenty-four and one-half pr to the heaters, and twenty-six and one-half per cent. to the roughers was paid at the office of the company, the same being delivered to he roller, roughers and heaters in envelopes.

It was the duty of the company, the plaintiff in error, to furnish all the machinery and to keep it in repair. The company also gave li- s of the size and character of the iron to the boss roller that was required to be manufactured, this list being hung up in the mill for the inform tion of the workmen.

Over the whole mill, comprising the small mills or train of rods was a general superintendent, employed by the company and paid by it. w. ose business it was to see that all the iron was properly manu actured and the machinery kept in proper condition.

There was no specified time as to how long the mills should continue in operation, the same being run from month to month, the ame as mills are generally run, and was entirely subject to the control of the company in that regard, it having the right to continue or discontinue the work at its pleasure. The boss roller could discharge the men engaged by him and hire others at his pleasure. At the same time the company would have a right to complain of the manner in which the men were doing their work and it would be the duty of the boss rol er, upon complaint, to discharge the men complained of, and if he did not discharge the same he would be subject to discharge himself.

Matthew Burns, defendant in error, the man injured, at the time of his injury was engaged in the mill under Ramsey, as a rougher, and at the time of the injury was engaged in adjusting a set of roils, as it was his duty to do, and was doing the same under the direction of one Thorn Smith, the assistant roller, employed by Ramsey and acting under him, and while so adjusting the rolls he was injured by a bar of iron being negligently run through the rolls, by the order of the assistant roler, Thorn Smith, who had control over and authority to direct Burn-.

It is conceded in argument that this injury occurred by reason of the negligence of Thorn Smith; and the only question made is that the relation between plaintiff in error and John Ramsey was that of independent contractor and contractee, and not that of master and servant, and that, therefore, plaintiff in error is not liable.

It will be observed that there was no definite time fixed for the continuance of this work; that the mill was to be run as long as the plaintiff in error might desire to run it; that it was a continuous work, to continue for a longer or shorter period, as might be profitable to the company. That it was not an independent undertaking might be suggested by the work being done in the same manner as is ordinarily done in mills of like character, except the amalgamated association fixed the price to be paid for the labor and the boss roller selected his assistants.

It was not a job, as termed in the books, in any sense of the word, such as the building of a house, the construction of a division of railroad or other undertakings of that character. Moreover the company furnished all the machinery and all the material, directed the manner and sizes into which the material should be rolled; had a general superintendent over the entire works and at least had the power and authority to dismiss at any time the boss roller or any of his assistants; also all the men were paid at the office of the company.

Andrews Bros. Co. v. Burns.

Under these circumstances we think the relationship of master and servant obtained, and not that of contractor and contractee.

In Tiffin v. McCormack, 34 Ohio St., 638, 642, Judge McIlvaine, in delivering the opinion, uses this language, which we think is directly applicable to this case: "But we are of opinion that the true relation between the city, as proprietor of the stone quarry, and Ardner, was that of master and servant, instead of employer and independent contractor within the principle of the rule above stated. There was no ' job' or defined quantity of work contracted for. The services of Ardner were subject to be determined at the pleasure of either party. The compensation was to be measured by the quantity of labor performed. It appears to us to have been an ordinary contract for work and labor, which creates, between the employer and employed, the relation of master and servant within the meaning of the law in regard to that subject. It is true that the service, namely, the quarrying of stone in the employer's quarry, was to be done by the use of powder and tools furnished by the emplove; but this condition in the contract, did not affect the legal relation between the parties. It was significant only as a matter affecting the rate of compensation."

In that case Ardner was to receive so much a perch for the quarrying of the stone and was to furnish his own powder and tools and yet the court held that, there being no "job" or defined quantity of work contracted for, as in this case, but a continuous service, the relation of master and servant obtained.

In Brackett v. Lubke, 4 Allen, 140 [81 Am. Dec., 694], Bigelow, C. J., uses this language:

"The distinction on which all the cases turn is this: If the person employed to do the work carries on an independent employment, and acts in pursuance of a contract with his employer by which he has agreed to do the work on certain specified terms, in a particular manner and for a stipulated price, then the employer is not liable. The relation of master and servant does not subsist between the parties, but only that of contractor and contractee. The power of directing and controlling the work is parted with by the employer, and given to the contractor. But, on the other hand, if work is done under a general employment, and is to be performed for a reasonable compensation or for a stipulated price, the employer remains liable, because he retains the right and power of directing and controlling the time and manner of executing the work, or of refraining from doing it, if he deems it necessary or expedient. This distinction is recognized in the cases adjudged by this court. Sproul v. Hemmingway, 14 Pick., 1 [25 Am. Dec., 350]; Stone v. Codman, 15 Pick., 299; Hilliard v. Richardson, 3 Gray, 349 [63 Am. Dec., 743]; Linton v. Smith, 8 Gray, 147."

In the case at bar, as in that of Brackett v. Lubke, supra, the work was done under a general employment and was for a stipulated price and the employer had the right and power of controlling the manner and time of executing the work, or of refraining from doing it, if he deemed it necessary or expedient. The payment to Ramsey and the heaters and roughers, or the division of the amount per ton between them, was a mere matter of fixing the price or wages, as arranged between the amalgamated association and the Andrews Brothers Company; and from the entire evidence, it appears that the employment in this case only differed from the manner in which employees are generally employed in the particular that the boss roller was to receive a certain