State, ex rel Wilder, v. Struble et al. [Vol. IX, N. S. the employment and payment of counsel or attorney at law should be submitted. This portion of Section 1274 merely reiterates what has long been the law as enacted in Section 894, towit: "No claims against the county shall be paid otherwise than upon the allowance of the county commissioners," etc. Section 1274 therefore appears to allow the county clerk, county auditor, county treasurer, county sheriff or any other county officer or board, to determine when, in his judgment, it is expedient for the interests of his office that counsel or an attorney at law be employed. Such determination is then communicated to the county commissioners, and if they sanction it, the contract may be made upon such terms as the commissioners fix.. And as far as this section of the statutes indicates or permits, such counsel or attorney at law may act either in conjunction with or in opposition to the prosecuting attorney in the transaction of the legal business for which he is employed, and for which the county officer feels him to be necessary. The evidence presented in the case at bar shows that the employment of Messrs. Ireton and Schoenle was in the nature of the employment of attorneys at law to appear for the county auditor and represent the rights and duties of that office in certain litigation. In his communication to the commissioners the county auditor says: # "As auditor of this county, I request your honorable board for authority to employ Louis A. Ireton and Walter M. Schoenle, attorneys at law, to represent the auditor in the following pending cases: These two cases involve important principles of the law of taxation, and will, if successfully prosecuted, increase the tax duplicate of this county to a large extent. The gentlemen above named have given considerable time to the preparation of these two cases, and I think it is to the best interests of the county that they be retained to conclude the same. Trusting you will grant the authority asked for, at a compensation to be fixed by your honorable board, I am, etc. The Journal of the commissioners shows the following action: RESOLUTION. Whereas, the auditor of this county has requested this board to grant to him authority to employ Louis A. Ireton and Walter M. Schoenle as attorneys at law to represent the County Auditor in the following pending cases: The City of Cincinnati vs Rudolph K. Hynicka, Treasurer of Hamilton County, Ohio and Charles C. Richardson, Auditor of Hamil 1909.] State, ex rel Wilder, v. Struble et al. ton County et al, No. 132880 Court of Common Pleas of Hamilton County; and-The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. vs Eugene L. Lewis, Auditor of Hamilton County, et al. No. 52596, Superior Court of Cincinnati. "Whereas, Honorable A. B. Benedict, attorney at law, and Honorable Henry T. Hunt, Prosecuting Attorney, appeared before this board and stated in support of said request of said auditor that said cases involved grave and important legal propositions as to the right of the state to tax certain real estate of the city of Cincinnati, and certain railroad properties located in this county, used for depot purposes, the successful determination will be of great importance to the county, and that in their opinion it was for the best interests of the county that said Louis A. Ireton and Walter M. Schoenle, who have charge of said cases up to the present time as legal counsel of Hamilton county be retained by the said county auditor until the conclusion of said cases; although in a communication to this board, under this date, the said Henry T. Hunt has changed his mind. and now advises this board that said employment 'would be inexpedient and a useless expenditure of public money'; and "Whereas, this board deems it for the best interest of the county that said counsel be employed by the county auditor to conclude said cases: "Therefore Be it Resolved, That the county auditor be and he hereby is authorized and directed to employ Louis A. Ireton and Walter M. Schoenle as attorneys at law, to represent the county auditor in all courts of record in the aforesaid cases and prosecute the same to final judgment, said employment commencing on the 19th day of January, 1909, or so soon after said date as this resolution shall take effect. The compensation of said attorneys is hereby fixed as follows: "The sum of $2,000 to be paid to said counsel in the case of the City of Cincinnati v. Rudolph K. Hynicka, Treasurer et al. No. 132880 Common Pleas Court, and the sum of $2,000 in the case of the Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. vs Lewis et al. No. 52596, Superior Court of Cincinnati. Said compensation to be paid said counsel out of the treasury of the county upon completion of the services herein specified. "CINCINNATI, O., January 12, 1909. "I hereby certify that the amounts mentioned in the aforesaid employment of Louis A. Ireton and Walter M. Schoenle as attorneys at law amounting to $4,000, is in the treasury of Hamilton county to the credit of the fund from which it is to be drawn and not appropriated for any other purpose. "C. C. RICHARDSON, County Auditor, "Tanner, Aye. Comer, Nay. Struble, Aye. "P. S. State, ex rel Wilder, v. Struble et al. [Vol. IX, N. S. Above resolution not being passed by unanimous consent, the same is continued for twenty days. (By order of the board.) Vol. 42, page 210. Tuesday, February 2d, 1909. 'HAMILTON COUNTY COMMISSIONERS OFFICE. "CINCINNATI, O., Tuesday, February 2d, 1909. "The board met in session this a. M. Present, Messrs, Tanner, Comer and Struble, and Assistant Legal Counsel, Alfred Bettman. The minutes of the previous meeting were read and approved. The matter with reference to the appointment of Louis A. Ireton and Walter M. Schoenle as special counsel for the county auditor in case No. 132880, Court of Common Pleas, Hamilton County, Ohio, and case No. 52596, Superior Court of Cincinnati, Ohio, heretobefore passed on January 12th, 1909, by resolution (see Vol. 42, pages 170-171), and same not receiving the unanimous vote of the board and on which final action was deferred for twenty days, namely, the second day of February, 1909, was taken up and approved by the following vote: Tanner, Aye. Comer, Nay. Struble, Aye." In further explanation of the request of the county auditor, it might be well to note that the attorneys named had been the "legal counsel" of Hamilton county, but their terms of office were about to expire; hence their preparedness in these cases, which the auditor notes. Does the employment of these defendants as attorneys at law to represent the county auditor in these two pending cases (one had been filed November 20th, 1905, and the other February 1st. 1905) come within the inhibition laid down by the Supreme Court as decided in the case of State, ex rel Cline, v. Cannon et al, 7 O. L. Rep., 118? As shown by this decision the judgment of the Supreme Court affirms the judgment of the circuit court for the reasons set forth in the opinion of the circuit court as found in 12 C. C.-N. S.. 163. The syllabus of that case is as follows: In so far as Section 845 attempts to authorize the appointment of legal counsel by county commissioners, it contravenes the provision of Section 2 of Article X of the Constitution of the state of Ohio, that all county officers shall be elected by the electors of their respective counties." And the court held specifically that under the terms of employment and with the duties incumbent on them as disclosed by the evidence, the defendants were in fact performing the func 1909.] State, ex rel Wilder, v. Struble et al. tions of county officers and hence, not having been elected, were holding office illegally. But an examination of that case shows that the board of county commissioners of that (Cuyahoga) county, selected and employed the defendants in that case. The resolution of that board reads: "Resolved, That this board employ as legal counsel at an annual compensation of $3,000, and that it further employ as assistant legal counsel at an annual compensation of $2,000. "The terms of employment herein made shall be for the term of three (3) years, beginning on the 15th day of August, 1908. and fully to be completed and ended on the 14th day of August, 1911. "This board shall provide offices for such legal counsel and his assistants, together with stenographer, telephone service and all necessary law books and stationery and supplies for the proper management and conduct of said office. * * # the compensation of said legal counsel shall be paid semi-annually out of the county treasury upon the allowance of the board." I can not agree with counsel for plaintiff in the case at bar that the action of the county auditor in selecting and recommending an attorney at law to appear for him in a pending suit and requesting the commissioners for authority to employ him and to fix the compensation, as permitted by Section 1274, is exactly parallel to and equally unconstitutional with Section 845, wherein the county commissioners at the request of the prosecuting attorney select and appoint a legal counsel with all the rights. privileges and duties devolved upon such an officer. It will be further noted that the employment is not by the commissioners, but by the county officer; the language of the statute being that such officer has the authority to employ; he names the attorney or counsel; provided he obtains the sanetion and assent of the commissioners and upon their order. Their sanction may have been deemed by the Legislature to be necessary for a number of reasons, such as the fact that they must be satisfied of the actual necessity of the employment; that funds for the payment are available and other reasons which may suggest themselves. This section of the statutes having apparently given this discretion to the county officers and boards of county commissioners, the court can not interfere with the lawful exercise of such discretion. School Board v. Peter et al. [Vol. IX, N. S. For the reasons therefore, that in Section 1274 the Legislature recognizes the fact that at certain times or in a given instance a county officer may feel the necessity of the assistance of an attorney at law in the proper administration of the duties of his office, other than or in addition to the prosecuting attorney. and that in acting upon his request under said section, the county commissioners are but performing duties already conferred upon them by Section 894 and kindred sections. And for the further reason that such request, concurrence and employment are not similar to the action provided for in Section 845, which the Supreme Court has declared unconstitutional. I am of the opinion that application of the plaintiff for an injunction should be denied. CONDEMNATION BY SCHOOL BOARDS. Probate Court of Stark County. SCHOOL BOARD OF THE VILLAGE OF NEW BERLIN V. JACOB PETER AND FLORA PETER. Decided, October, 1909. Eminent Domain-Exercise of Right of, by School Board-Necessary Steps to Give the Probate Court Jurisdiction-What Constitutes Necessity for the Land Sought to be Appropriated. 1. The probate court acquires jurisdiction in a condemnation proceeding brought by a school board by determining before the jury is summoned: First, that the school board has passed the necessary resolution; second, the inability of the board to agree with the owner on the question of price; third, the necessity for the ap propriation for the purpose described in the petition; and, fourth, that all parties having an interest in the property have been legally notified. 2. Necessity for acquiring the property is not shown and jurisdiction by the court is not obtained, where it appears that the property is not now needed for either building or play-ground purposes, but the real object of the board in seeking to acquire the property is to prevent the building thereon of a blacksmith shop adjoining the school grounds. Hubert Pontius, Assistant Prosecuting Attorney, for plaintiff. Seeman & Seeman, contra. Bow, J. The plaintiff in this action filed its petition for the appropriation of a strip of ground off the west side of the defendants' |