Opinion
Decided March 13, 1933.
Auditor of state — Bureau of inspection of public offices — Judgment entry, in action on findings, to be submitted to attorney general — Section 286, General Code — Error proceedings dismissed, where entry not submitted to attorney general — Municipal judge fees for performing marriages.
1. Statutory requirement that, in city's action to recover money shown by report of bureau of inspection to have been collected and not accounted for, no judgment shall be entered until submitted to Attorney General, held mandatory (Section 286, General Code).
2. In city's statutory action to recover money allegedly shown by report of bureau of inspection to have been collected by municipal court judge and not accounted for, judgment for defendant, entered after overruling of demurrer to answer, held not proper judgment for review where not submitted to Attorney General (Section 286, General Code).
ERROR: Court of Appeals for Hamilton county.
Mr. John D. Ellis, city solicitor, and Mr. Francis T. Bartlett, for plaintiff in error.
Mr. Bert H. Long, Mr. Walter A. Ryan and Mr. Henry B. Street, for defendant in error.
The city of Cincinnati brought suit in the court of common pleas of Hamilton county against Samuel W. Bell, under favor of General Code, Section 286. The claim is that during the period from April, 1924, to December 1, 1927, defendant, in his official capacity as judge of the municipal court of Cincinnati, collected as fees for performing marriage ceremonies in said city the sum of $1,179. Plaintiff asks judgment against the defendant for that sum of money, with interest. To this petition, a demurrer was filed, which was overruled by the trial court, and an entry was placed of record overruling the demurrer. Following the overruling of the demurrer the defendant Bell answered, setting up four defenses. The city of Cincinnati demurred to the answer, and an entry was placed of record overruling the demurrer. The final judgment was entered of record overruling the demurrer, reciting that the "plaintiff not desiring to plead further, judgment is hereby rendered in favor of the defendant, and the petition of the plaintiff is dismissed, to all of which the plaintiff hereby excepts." From that judgment, error is prosecuted to this court.
The last paragraph of Section 286, General Code, under which this action is brought, is as follows: "No judgment or final order shall be entered in any civil action commenced under the authority or direction of this section until such entry shall have been submitted to the attorney general, and the attorney general is hereby constituted an attorney of record in each such action." This provision of the General Code seems to have been disregarded in the proceedings. The record fails to disclose any submission to the Attorney General, or that he was even constituted an attorney of record in the action.
The requirement of the statute is in plain, unambiguous language, and requires no construction. The requirement is as mandatory as any other provision of the section. If we are bound to hold this paragraph of the section directory only, the same construction would be required as to the preceding paragraphs. This court has consistently refused to judically legislate, and we are not willing to do so in this case.
We are not unmindful of the case of Lynch v. Board of Education of City School District of City of Lakewood, 116 Ohio St. 361, 156 N.E. 188.
There being no proper judgment for review, the petition in error will be dismissed, and the cause remanded to the court of common pleas for further proceedings according to law.
Petition in error dismissed and cause remanded.
CUSHING and ROSS, JJ., concur.