Summary
applying G.C. 10216 [G.C. 10216 is the successor of R.S. 4951 and the predecessor of R.C. 1.14 ]
Summary of this case from Cox v. Dayton Pub. Sch. Bd. of Educ.Opinion
No. 24218
Decided November 8, 1933.
Constitutional law — Referendum — Ninety-day period computed, how — Section 1c, Article II, Constitution — Salary Reduction Act effective January 2, 1933 — Common pleas judge, assuming office January 1, 1933, not affected — Salary cannot be reduced during term — Section 14, Article IV, Constitution.
1. Under Section 1 c, Article II, of the Constitution of Ohio, providing that no law shall go into effect until ninety days after it shall have been filed in the office of the secretary of state, and further that when a petition, signed by six per centum of the electors, shall have been filed with the secretary of state within ninety days after any law shall have been so filed, such law shall be submitted to a referendum, the prescribed ninety day periods embrace ninety full days, and such time should be computed by excluding the date upon which the law was filed.
2. The so-called Salary Reduction Act (114 Ohio Laws, pt. 2, 70), passed by the General Assembly September 30, 1932, and approved and filed in the office of the secretary of state on October 3, 1932, was subject to the filing of a referendum petition until at least the last moment of January 1, 1933, and, therefore, such law did not become effective until at least the first moment of January 2, 1933.
3. A judge of the court of common pleas, whose term of office began on January 1, 1933, was not affected by such Salary Reduction Act, since it would decrease his salary during his term of office, contrary to the provisions of Section 14, Article IV, of the Constitution of Ohio.
ERROR to the Court of Appeals of Hamilton county.
This is an action in mandamus originally brought by Alfred Mack, as relator, in the Court of Appeals of Hamilton county by authority of Section 6, Article IV, of the Constitution of Ohio.
The amended petition alleges, in substance, that on November 8, 1932, the relator was duly elected a judge of the court of common pleas of Hamilton county, Ohio, for a term of six years beginning January 1, 1933; that prior to December 31, 1932, the Governor of Ohio issued to relator a commission for such office, and that before such date he took his oath of office and transmitted a certificate thereof to the clerk of the court of common pleas of Hamilton county; that by virtue of Sections 2251 and 2252, General Code, relator is entitled to receive compensation as such judge in the sum of $694.26 for the month of January, 1933, and it is the duty of the respondent, Robert Heuck, as auditor, to issue him a warrant in that amount, sufficient funds having been appropriated and being on hand for the purpose; and that the respondent has failed and refuse to issue ralator a warrant for $694.26, but, instead, has tendered him one for $579.92, which relator has refused, and has demanded the larger amount; that the auditor bases his action on all act of the General Assembly of Ohio passed September 30, 1932, and approved and filed in the office of the secretary of state on October 3, 1932 (114 Ohio Laws, pt. 2, 70), providing for the reduction in compensation of certain elective officers, etc.
Relator further alleges that under Section 1c, Article II, of the Constitution of Ohio, such law did not become effective until after his term as judge had commenced, and that the provisions of the law relied upon are inapplicable by reason of the provisions of Section 14, Article IV, of the Constitution of Ohio; that, if the law relied upon by the respondent should be held to apply to relator, the same is unconstitutional and void because in conflict with Section 14, Article IV, of the Constitution of Ohio, since it provides for an increase of compensation after December 31, 1934, which will be during the term of office of the relator.
The prayer asks for a writ of mandamus commanding Robert Heuck, as auditor, to issue relator a warrant on the treasurer of Hamilton county for $694.26, representing compensation due relator as judge for the month of January, 1933, and for any and all other relief.
The respondent filed a demurrer to the amended petition, which was overruled.
Respondent not desiring to plead further, the court proceeded to make a final order that a writ of mandamus issue, commanding Robert Heuck, as auditor, to issue a warrant on the treasurer of Hamilton county in favor of the relator for $694.26, as and for compensation due and owing him for services rendered as judge of the court of common pleas of Hamilton county for the month of January, 1933.
The case was brought to this court by petition in error filed as of right under Section 2, Article IV, of the Constitution of Ohio.
Mr. John W. Bricker, attorney general, Mr. Joseph V. Ralston, Mr. W. Dale Dunifon, Mr. Raymond J. Kunkel, Mr. Louis J. Schneider, and Mr. Walter M. Locke, for plaintiff in error.
Mr. Bert H. Long, Mr. Henry B. Street, Mr. Floyd C. Williams, and Mr. Frank F. Dinsmore, for defendant in error.
On September 30, 1932, the General Assembly passed an act, 114 Ohio Laws, pt. 2, page 70, "To provide for reduction in compensation of certain elective officers," etc., which was duly approved and filed in the office of the secretary of state on October 3, 1932. The act was not declared to be an emergency measure. So much thereof as is necessary to a decision in this case is as follows:
"Section 2. During the period beginning January 1, 1933, and ending December 31, 1934, the compensation of all judges which is fixed, limited or determined, in whole or in part, by Sections 2251, 2251-1, 2252, 2252-1, 2253, 2253-2, 2253-3 of the General Code shall be reduced according to the schedule set forth in section 3 of this act, the provisions of such sections of the General Code to the contrary notwithstanding. Said schedule shall be applied to the total compensation of each such judge and the amount paid toward his total salary by the state, county or counties shall be reduced in the ratio that each such political unit contributes to such total salary."
Section 3 contains the schedule of the percentages of reduction to be applied to given annual salaries.
Section 1c of Article II of the Constitution of Ohio provides, in part:
"No law passed by the general assembly shall go into effect until ninety days after it shall have been filed by the governor in the office of the secretary of state, except as herein provided. When a petition, signed by six per centum of the electors of the state * * * shall have been filed with the secretary of state within ninety days after any law shall have been filed by the governor in the office of the secretary of state, * * * the secretary of state shall submit to the electors of the state for their approval or rejection such law * * *."
A part of Section 14 of Article IV of the Constitution of Ohio reads:
"The Judges of the supreme court, and of the court of common pleas, shall, at stated times, receive, for their services, such compensation as may be provided by law, which shall not be diminished, or increased, during their term of office."
It is conceded that the relator, Alfred Mack, was duly elected a judge of the court of common pleas of Hamilton county for a term of six years, beginning on January 1, 1933. The dispute arises over the date upon which the Salary Reduction Act, referred to, became effective. If it became operative during relator's term of office, he is not affected by it within the clear meaning and intent of Section 14, Article IV, of the Constitution, and should prevail.
The general policy of this state in computing time is expressed in Section 10216, General Code, which says:
"Unless otherwise specifically provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; except that the last shall be excluded if it be Sunday."
This court, in Neiswander v. Brickner, 116 Ohio St. 249, 156 N.E. 138, held that such law was of general application.
Methods of computing time are comprehensively discussed in the case of State v. Elson, 77 Ohio St. 489, 83 N.E. 904, 15 L.R.A. (N.S.), 686, and it is there stated that, in the absence of any contrary intention, the generally recognized rule is to exclude the first day and include the last. The court, in applying such rule, held that under a statute (Section 409j, Revised Statutes) making it unlawful to catch, kill, injure, or pursue certain game, except "from the fifteenth day of November to the fifth day of December," November 15th should be excluded and December 5th included, making the period of the "open season" twenty days.
The following additional authorities are cited in support of the general proposition that, where an act is to be done within a given time, the usually adopted mode of computation is to exclude the first day and include the last: 62 Corpus Juris, 984; 26 Ruling Case Law, 745; Tuttle v. City of Boston, 215 Mass. 57, 102 N.E. 350; State, ex rel. Evans, v. Superior Court for King County, 168 Wn. 176, 11 P.2d 229; Lewis, Secy. of State, v. Cozine, 234 Ky. 781, 29 S.W.2d 34; Anderson Mill Lumber Co. v. Clements, 101 Fla. 523, 134 So. 588.
It becomes necessary to construe and harmonize certain expressions used in Section 1c of Article II of the Constitution of Ohio. The first part of that section provides: "No law * * * shall go into effect until ninety days after it shall have been filed * * * in the office of the secretary of state * * *." Then follows immediately the further statement: "When a petition, signed by six per centum of the electors, * * * shall have been filed with the secretary of state within ninety days after any law shall have been filed * * * in the office of the secretary of state [for the purpose described], the secretary of state shall submit to the electors * * * for their approval or rejection such law * * *."
If we apply the computation of time as contained in Section 10216, General Code, and the authorities cited thereafter, which we believe to be proper here, an act filed with the secretary of state on October 3, 1932, would be subject to a referendum petition signed by six per centum of the electors, at least until midnight of January 1, 1933.
Expressions of this court as contained in the following cases: State, ex rel. Donahey, Aud. of State, v. Edmondson, County Aud., 89 Ohio St. 93, 105 N.E. 269, 52 L.R.A. (N.S.), 305, Ann. Cas., 1915D, 934, County of Miami v. City of Dayton, 92 Ohio St. 215, 110 N.E. 726, and State, ex rel. Davies Mfg. Co., v. Donahey, Aud. of State, 94 Ohio St. 382, 114 N.E. 1037, are in harmony with this conclusion.
A holding that the two ninety-day periods mentioned in Section 1 c, Article II, of the Constitution, are not intended to, and do not, cover the same period of time within the fraction of a second, would be patently inconsistent and absurd, and destructive of the intent and purpose of this section taken as a whole.
From what has been said it logically and necessarily follows that the "ninety days" first mentioned in Section 1 c, Article II, of the Constitution, means ninety full days, and that an act of the General Assembly filed in the office of the secretary of state on October 3, 1932, would not become effective until at least the first moment of January 2, 1933.
This is in accordance with the statement appearing in 26 Ruling Case Law, at page 746, which we consider applicable:
"And where it is provided that a certain result shall not accrue until after the expiration of a given number of days from a stated date, then both the first and last days must be excluded, so that the full number of days will be given."
We have not overlooked the fact that January 1, 1933, fell on Sunday. The determination of whether or not such coincidence extended the effective date of the Salary. Reduction Act is not necessary to a decision in this case, and is not decided.
Counsel for respondent contend that the construction we have adopted is in conflict with the decisions in State, ex rel. Jones, v. Board of Deputy State Supervisors and Inspectors of Elections of Montgomery County, 93 Ohio St. 14, 112 N.E. 136, and Thrailkill, a Taxpayer, v. Smith, Secy. of State, 106 Ohio St. 1, 138 N.E. 532. With this we are unable to agree. In the Jones case a statute (Section 5004, General Code [103 Ohio Laws, 843]), was under consideration which required that "nomination papers of candidates shall be filed * * * not less than sixty days previous to the day of election," and it was determined in connection with this particular language, which is entirely different from that under consideration in the instant case, that in computing the prescribed period the last day should be excluded and the first included. A reverse count was thus involved. What was said in the Thrailkill case, at page 6 of 106 Ohio State, is mere obiter based entirely upon obiter from the Jones case, and we do not consider it controlling.
The matters passed upon in the cases last cited, and the question with which we are now confronted, are so totally different as to make those cases inapplicable. Here we have a situation which requires a computation of the space of time from the filing of an act passed by the General Assembly within which electors may be permitted to test such act by referendum petition under the Constitution, and, in connection therewith, the time at which such act becomes effective. The precise question has not before been directly decided by this court.
We consider it expedient to comment on the case of Elder v. Shoffstall, 90 Ohio St. 265, 107 N.E. 539, where propositions one and two of the syllabus disclose a computation of time in conflict with the one adopted in the instant case. While we do not deem it necessary or proper expressly to overrule such propositions in their entirety, we do disapprove them in so far as the statement as to the effective date of the statute referred to therein is concerned. Such effective date should have been denoted as May 15, 1913, in accordance with the correct expression of the court in the opinion, at
Since the relator's term of office as judge of the court of common pleas of Hamilton county began on January 1, 1933, since the Salary Reduction Act did not become effective until after such date, and since Section 14, Article IV, of the Constitution, is clear that the salary of a judge of the court of common pleas shall not be diminished during his term of office, the Court of Appeals committed no error in overruling the demurrer to the amended petition and allowing the writ of mandamus. The judgment will be affirmed.
Judgment affirmed.
WEYGANDT, C.J., ALLEN, STEPHENSON, JONES, MATTHIAS and BEVIS, JJ., concur.