Opinion
No. 35081
Decided May 22, 1957.
Municipal courts — Judges — Term of office — How affected by Uniform Municipal Court Act — Salary — Change during term of office prohibited.
CERTIFIED by the Court of Appeals for Cuyahoga County.
By this action instituted in the Court of Common Pleas against the city of Cleveland and the treasurer and auditor of Cuyahoga County, plaintiff seeks to recover a sum of money equal to the difference between the salaried compensation for a two-year period of a judge of the Cleveland Municipal Court and a judge of the former Municipal Court of Cleveland.
Plaintiff alleges in his petition that he was a duly elected, qualified and acting judge of the Cleveland Municipal Court (Municipal Court of Cleveland), having been elected, in 1947, for a six-year term commencing January 2, 1948, and ending December 31, 1953; that from 1948 through 1951 he served under and by virtue of Sections 1579-1 to 1579-54, inclusive, General Code, which created the Municipal Court of Cleveland; that in 1951 the General Assembly passed an act, effective January 1, 1952, repealing Sections 1579-1 to 1579-54, supra, and completely abolishing the Municipal Court of Cleveland, together with the terms of judges serving thereon, and enacted Sections 1581 to 1617, inclusive, General Code, the Uniform Municipal Court Act; and that under Section 1581 there was established a Municipal Court in Cleveland, which, by Section 1582, was styled "Cleveland Municipal Court," and new terms of judges were provided for.
Plaintiff alleges further that under Section 1588, General Code, it was provided that each judge who had been elected to office of judge under the repealed sections should continue for the full length of term for which he was elected, and a judge holding office on the effective date of the new law should hold office until his successor was elected and qualified at the time designated in such section; that between January 1, 1952, and December 31, 1953, plaintiff fully and completely performed and discharged his duties as a judge of the Cleveland Municipal Court; that in accordance with the formula established by Section 1591, General Code, plaintiff was entitled to receive from January 1, 1952, to December 31, 1953, the sum of $10,500 per annum; and that he was paid compensation as judge of the Cleveland Municipal Court the sum of $9,000 per annum, and accordingly there is due him $3,000.
The prayer is for a judgment against defendants for the sum of $3,000 with interest.
The city of Cleveland demurred to the petition on the ground that it does not state facts which show a cause of action against the city.
The trial court sustained the demurrer, dismissed the petition and rendered judgment for defendants for their costs.
On appeal, the Court of Appeals affirmed the judgment and, the judges finding that the judgment, on which they agreed, is in conflict with a judgment pronounced on the same question by the Court of Appeals of the Fifth Appellate District in the unreported case of State, ex rel. Hoffman, v. City of Massillon, No. 2529, Stark County, certified the record to this court for review and final determination of the cause.
Mr. S.T. Brinsky and Mr. Paul Mancino, for appellant.
Mr. Ralph S. Locher, director of law, Mr. Joseph H. Crowley and Mr. Daniel J. O'Laughlin, for appellees.
Was the term of office of plaintiff, as a judge of the Municipal Court of Cleveland, whose elected term of office had not expired on the effective date of the Uniform Municipal Court Act, abolished by that act, or was his term of office continued with increased jurisdiction as a judge of the Cleveland Municipal Court until the expiration of the full six-year term for which he was elected?
In considering this question, two constitutional provisions must be kept in mind. Under Section 27 of Article II of the Constitution, the General Assembly does not have power to appoint judges, and under Section 20 of Article II, the General Assembly is without power to increase the salary of a judge during his term of office.
Section 1588, General Code, provided that "each judge" under the old Municipal Court Act "shall serve as such judge, under the terms of this [the Uniform Municipal Court] Act for the full length of the term for which he was elected," and that the "judges" under the old act (Municipal Court of Cleveland) "shall be the incumbent judges under this [Uniform Municipal Court] Act."
Section 1617, General Code, provided that candidates qualifying as such before or after the effective date of the Uniform Municipal Court Act should be candidates for the new court, and that existing terms "shall not be diminished, but shall continue for the period for which they were created," i.e., by election to the Municipal Court of Cleveland, although such a term continues after the new court (Cleveland Municipal Court) is the existing substitute.
It is apparent from the foregoing sections that the General Assembly intended to and did continue the unexpired terms of the judges elected to the old court, rather than to appoint them as judges of the new court in contravention of the constitutional prohibition.
Construing the act as effecting a continuance of the office of plaintiff, he is not entitled to the increased compensation, as the General Assembly is without power to increase the salary of a judge during his term of office.
If the term of office of plaintiff was abolished by the repeal of Section 1579-1 et seq., General Code, and the enactment of the Uniform Municipal Court Act, as contended by plaintiff, the judges serving on the new court would have had to be elected, or appointed by the Governor to serve until an election was had, and a judge of the old court continuing to serve on the new court without being elected or appointed would be either acting without color of office and entitled to no compensation or acting as a de facto judge and entitled to the reasonable value of the services rendered.
The demurrer to the petition was properly sustained.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.