The opinion
Schneider, J.
I concur in paragraphs one, two, three and five of the syllabus, but dissent from paragraphs four and six of the syllabus and from the judgment.
One error contained in paragraphs four and six of the syllabus is the proposition that a board of county commissioners may compel the county engineer to perform the duties of sanitary engineer against his will. This proposition is unwarranted by any reasonable reading of the. language and history of Sections 6117.01 and 315.14, Revised Code.
Another error is the failure to recognize that Section 6117.01, Revised Code, contains an express provision for compensating a county engineer for acting as sanitary engineer, in addition to the statutory compensation attaching to the office of county engineer.
This conclusion is supported by a recognition of the history of the second from last sentence of Section 325.14, Revised Code, viz., “When such engineer [the county engineer] performs service in connection with ditches or drainage works, he shall charge and collect the per diem allowances or other fees provided by law and shall pay all such allowances and fees, monthly, into the county treasury to the credit of the general county fund.” The antecedent of that section was first adopted in 107 Ohio Laws 69, 110, and read as follows: “When the county surveyor performs service in connection with ditches or drainage works under the provisions of Sections 6442 to 6822 i/nclusive of *260 the General Code of Ohio, he shall charge and collect the per diem allowances or other fees therein provided for, and shall pay all such allowances and fees monthly into the county treasury to the credit of the general county fund.” (Emphasis supplied.)
It is significant that at the time of that enactment, Section 6602-1, General Code [the antecedent of Section 6117.01, Revised Code], authorizing the employment of a sanitary engineer, had been in existence for four years.. (103 Ohio Laws 734.) Nevertheless, in 107 Ohio Laws 69, 110, the General Assembly was careful to limit the requirement that a county engineer pay monies over to the county general fund to those fees and allowances collected by him for services performed “in connection with ditches or drainage works.” An examination of the sections of the General Code, in effect immediately prior to the adoption of the Act in 107 Ohio Laws 69, and designated by numbers included within the range from 6442 to 6822 reveals that all of them related to ditches and drainage works, except Section 6602-1 et seq., General Code, relating to county sewers.
Therefore, I would affirm the judgment below.
Brown, J., concurs in the foregoing dissenting opinion.