Theobald v. State

10 Ohio C.C. (n.s.) 175

• Court: Ohio Circuit Courts
• Decided: July 15, 1907
• Status: Published

Opinions

The original action was brought by the State of Ohio, by Edward T. Hall, a tax-payer, against John L. Theobald, recorder of Montgomery county, Ohio, to recover from him moneys received from January 1, 1907, to March 31, 1907, as fees of his office, which sum he refused to pay into the county treasury as public money belonging to said county, under Section 6 of an act passed March 22,1906, entitled, “An act to fix salaries of probate judges, county auditors, county treasurers, county recorders, clerks of the court of common pleas and sheriffs, and to provide for the employment and compensation of the clerks, deputies and assistants” (98 O. L., 89). It is claimed by said defendant, that the law requiring such payment by him is unconstitutional.

To this petition a demurrer was filed on behalf of the defendant, which was overruled by the trial court, and judgment rendered thereon, to reverse which judgment this cause is brought to this court.

It is claimed on behalf of the plaintiff in error that the act in question is unconstitutional, because—

1st. It contravenes Article II, Section 20 of the Constitution, which ..provides: ‘ ‘ The General Assembly in cases not provided for in this Constitution shall fix the term of office and compensation of all officers, but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished”; and

2d. That said act contravenes Article II, Section 26 of the Constitution, which provides, that “All laws of a general nature shall have a uniform operation throughout the state. ’ ’

Upon the first contention we are of the opinion that Article II, Section 20 of the Constitution is not infringed by this act. The act in question makes it incumbent upon the Legislature to fix compensation of all officers, and as this term “officers” is used in the Constitution, we are satisfied that ‘ ‘ deputies, assistants, bookkeepers, clerks and other employes,” are not “officers” as contemplated in the Constitution. An officer is one who is elected or appointed to an office in the state, and the Constitution recognizes that no person can be elected or appointed to an office in the state unless he possesses the qualifications of an elector, and as the subordinates might all hold their positions without being electors, then in the constitutional sense of the word “officer” they would not be such, and the “officer” in question is the individual who takes the oath of office and is responsible for his official acts as well as those of his various employes.

It is therefore within the purview of the Constitution to allow the Legislature to direct the county commissioners to fix the sum to be paid for the compensation of all “deputies, assistants, bookkeepers, clerks and other employes” of said “officer,” leaving it to the Legislature to fix the compensation or salary of the “officer” himself.

Nor do we think the law is unconstitutional because it is claimed it contravenes the second clause of Article II, Section 20 of the Constitution, which provides: “That no change therein shall affect the salary of any officer during his existing term, unless the office be abolished.”

Heretofore the various officers mentioned in this act received their compensation under what was known as the fee system, but it is evident that fees can not be construed as a salary, which is a determined, stipulated sum for a fixed p’eriod, and an examination of the debates of the Ohio Convention of 1851, Yol. 1, page 233, reported by J. Y. Smith, official reporter, shows, that the convention recognized a distinction when this clause was up for debate between an “officer” receiving fees and one receiving-compensation by way of salary. See, also, Thompson v. Phillips, 12 O. S., 617; Gobrecht v. Cincinnati, 51 O. S., 68.

The “officers” mentioned in the act were not upon a salary, but were paid their compensation under certain rules prescribed by the Legislature.

As to the second claim that said act is in violation of Article II, Section 26, that “All laws of a general nature should have uniform operation throughout the state, ’ ’ we are of opinion that the act does have uniform operation throughout tile state. The Legislature simply prescribes the rule by which compensation should be had in various counties. This article in the Constitution does not mean that each officer in each county should receive the same amount of money as salary, but simply that the rules of compensation shall be uniform; and the Legislature having seen fit to base this rule upon population, the exercise of that rule through the various counties of the state must of itself in its action.be uniform. The reason of this is, that the basis of operation is the same, and the result attained by the operation of the rule is the same, although the amount of money in dollars and cents may be different. See Cricket v. The State, 18 O. S., 79.

So long as the rule upon which compensation is based is uni-from throughout the state, it matters not whether in one county of the state the recorder receives more by reason of the increased population, than a recorder in another county receives less by reason of a less population. The compensation belongs to the officer under the act for his services. The fact that there is a limit upon the annual salary, that it shall not exceed a certain fixed sum, does not change the uniformity of the operation of the law, as this also applies to every county in the state.

We are therefore of opinion that there is no error in the judgment rendered below, and the same will be affirmed.