Summary
In State ex rel. Motter v. Atkinson (1945), 146 Ohio St. 11, 14, 31 O.O. 472, 63 N.E.2d 440, the Ohio Supreme Court rejected as a defense that there was not enough money to cover relator's request and at the same time keep open and operate all the other county offices.
Summary of this case from Smith v. CulliverOpinion
Nos. 30281 and 30282
Decided October 31, 1945.
Probate Court — Administrative expense and salaries of appointees as fixed by judge — Juvenile Court — Administrative expense, including expenses of judge and probation officers — Sections 10501-5 and 1639-57, General Code — Mandatory duty of county commissioners to make appropriations, when.
The provisions of Section 10501-5, General Code, requiring the county commissioners to appropriate such sums of money each year as will meet all the administrative expense of the Probate Court which the judge thereof deems necessary, including such salaries of the appointees of the court as the judge shall fix and determine, provided, however, that the total compensation of such appointees in any calendar year shall not exceed the total fees earned by the court during the preceding calendar year, and the provisions of Section 1639-57, General Code, requiring such county commissioners to appropriate such sums of money each year as will meet the administrative expense of the Juvenile Court of the county, including reasonable expenses of the judge and probation officers in attending conferences, are mandatory and it is the duty of such county commissioners to make appropriations for such purposes accordingly.
IN MANDAMUS.
Cause No. 30281 is an action in mandamus originating in this court, brought by the relator, E.C. Motter, as judge of the Probate Court of Vinton county, to require the respondent Board of County Commissioners of Vinton county to appropriate the sum of $960, in addition to the sum of $1,800 already appropriated for the salaries of clerks, assistants and appointees of the Probate Court for the year 1945.
The record consists of the petition, the answer, the reply and the evidence taken by deposition.
The relator was appointed probate and juvenile judge on June 1, 1943, whereupon he executed a bond with surety, which bond was approved by the county commissioners and filed with the county treasurer. Relator took an oath of office and served under this appointment until he was elected to and assumed the same office in 1945. A new bond, signed by a surety but not by relator, and approved by the commissioners, was filed with the county treasurer, and the relator again took an oath of office.
The evidence shows that the relator, under authority of Section 5625-20, General Code, in May or June, 1944, submitted to the respondent board an estimate of the operating expenses of the Probate Court of Vinton county for the year 1945 and on January 1, 1945, he filed his annual report with respondent board and requested it to appropriate the sum of $2,760 for the compensation and salaries of employees of the court for the year 1945; that the respondent appropriated only $1,800 for that purpose although the fees earned by the Probate Court for the preceding year were $4,777.66, and in excess of the amount requested by the relator; and that the total estimated income of the county from all sources for the year 1945 was $56,239.58, while the total appropriations for the year 1945 were $38,228.36, although there are insufficient funds in the treasury of the county to pay all its present indebtedness accumulated over previous years.
The evidence further shows that the Bureau of Inspection and Supervision of Public Offices made all audit of relator's office and accounts, covering the period from June 2, 1943, to March 31, 1945, and made certain findings against the relator as to amounts due the state and to Vinton county, but after these findings were made the amounts so found to be due from the relator were paid by him.
Cause No. 30282, is an action in mandamus originating in this court, brought by the same person as probate judge and judge of the Juvenile Court of Vinton county to require the respondent Board of County Commissioners of Vinton county, to appropriate the sum of $2,260 for the supplies and the salary and traveling expense of F.M. Wallar whom the relator appointed on January 1, 1945, as chief probation officer of the court and whose salary and expense the relator fixed at $2,160.
Relator submitted to respondent board on January 1, 1945, the proposed operating budget for the Juvenile Court for the year 1945 in the total sum of $2,260, covering a salary of the probation officer in the sum of $1,800, traveling expense in the sum of $360 and for Juvenile Court supplies in the sum of $100. The respondent failed to comply with the relator's request and made no appropriation for such purpose. The relator prays for a writ to require such appropriation to be made by the respondent in the sum requested and for counsel fees incurred in prosecuting this action. The record consists of the petition, the answer, the reply and the evidence. The respondent invokes substantially the same defenses in this action as are made in cause No. 30281. The defenses in both actions will be discussed in the opinion.
Messrs. McGhee, Rowe Evans and Mr. C.W. Smith, for relator.
Mr. James W. Darby, prosecuting attorney, and Mr. John W. Bolin, for respondent.
The relator's status as probate judge for Vinton county and his right to maintain the action as such are beyond successful attack. Even if he had failed to give a proper bond upon his election, and for that reason failed to qualify, he held over under his original appointment and was qualified to act as probate judge in fixing the amounts necessary for the operation of the court and in making budget requests.
The fact that he failed to make his budget requests for the year 1945 during the time fixed by Section 5625-20, General Code, is not fatal. The statute in that regard is directory and respondent board was not prejudiced or relieved of its duty to make proper appropriations for the operating expenses of the court, since there remain funds sufficient and unappropriated to cover these expenses. Upon the evidence, the only reason assigned by respondent board for its refusal to appropriate the sums requested by the relator is that there was not enough money to cover relator's request and at the same time keep open and operate all the other county offices.
Furthermore, this court is of the opinion that the matter of the findings of the bureau of inspection against the relator as probate and juvenile judge of the county and as to his financial obligation, if any, to the state or county, is a personal matter, does not affect his status to perform the duties of probate judge and is not an issue in these cases.
The official duty of the respondent as to appropriation of funds for the operation of the Probate Court of the county is fixed by Section 10501-5, General Code, which is as follows:
"* * * It is hereby made the duty of the county commissioners to appropriate such sum of money each year as will meet all the administrative expense of the court which the probate judge deems necessary for the operation of the court, including the salaries of the appointees of the court as the probate judge shall fix and determine; provided, however, the total compensation paid to the appointees of the court in any calendar year shall not exceed the total fees earned by the court during the preceding calendar year * * *."
In the opinion of this court this statute is mandatory and gives the compensation of appointees of the court budgetary preference within the total fees earned by the court during the preceding calendar year. The relator is authorized, within the limitation above pointed out, to fix the sums necessary for the operation of the court and his determination within the limitation, in the absence of an abuse of discretion, is final. The relator made this determination within the terms of the statute whereupon it became the duty of respondent board to make the appropriation accordingly.
The official duty of the respondent as to the appropriation of funds for the administration expense of the Juvenile Court is fixed by Section 1639-57, General Code, which is as follows:
"It is hereby made the duty of the county commissioners to appropriate such sum of money each year as will meet all the administrative expense of the court exercising the powers and jurisdiction conferred in this chapter, including reasonable expenses of the judge and probation officers in attending conferences * * *. All disbursements from such appropriations shall be upon specifically itemized vouchers, certified to by the judge of the court. * * *"
This court is of the opinion that this statute is likewise mandatory; that the amount of the administrative expenses of the court lies within the sound discretion of the juvenile judge; and that it is not a matter to be determined by the respondent. The action of the juvenile judge in this regard was not illegal, and it is the plain duty of the respondent to make the appropriations accordingly. State, ex rel. Clarke, Judge, v. Board of County Commrs. of Lawrence County, 141 Ohio St. 16, 46 N.E.2d 410.
The hardship, if any, visited upon the operation of the other county offices through lack of funds resulting from the appropriation of the amounts requested by the probate judge for the operation of his offices, is a matter over which this court has no control, but is wholly within the province of the General Assembly.
The writs are allowed in both cases.
Writs allowed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, and MATTHIAS, JJ., concur.