Opinion
Nos. 31215 and 31221
Decided December 10, 1947.
Public officers — Compensation — No change shall affect salary of officer "during his existing term" — Section 20, Article II, Constitution — Inhibition applies to officer's term and not to statutory term — Salary-increase statute enacted while officer holding over from statutory term — Officer appointed to succeed himself for partially expired statutory term.
1. The words, "during his existing term," as used in Section 20 of Article II of the Constitution of Ohio, which inhibits a change of "salary of any officer during his existing term," apply strictly to the term to which the officer is appointed or elected and not to the period constituting the statutory term of the office.
2. The inhibition against change of salary of a public officer in Section 20, Article II of the Constitution of Ohio, does not apply to a person appointed to a partially expired statutory term, where the salary of the office is increased by statute effective during the preceding portion of such term and during the time such person was holding over in the office under his appointment thereto for the preceding statutory term.
IN MANDAMUS.
Each of these cases is an action in mandamus. originating in this court to require Joseph T. Ferguson, Auditor of State, to approve certain supplemental pay-roll vouchers for an increase in the salary of a designated state appointee, authorized by the 97th General Assembly.
In Cause No. 31215, the relator is C. Emory Glander, Tax Commissioner of the state of Ohio. The petition states that the relator was appointed on the first day of January 1945 as Tax Commissioner of the state of Ohio by the Governor, which appointment was confirmed by the Senate, for a term to begin on the first day of January 1945 and to end on the second Monday in February 1947; and that he continued to serve as such Tax Commissioner 'until the 30th day of June 1947, on which day he was appointed as Tax Commissioner, his appointment being confirmed by the Senate, for a term to begin on the first day of July 1947 and to end on the second Monday in February 1951.
It is alleged that on the 14th day of June 1947, the General Assembly enacted Amended Senate Bill No. 348 which increased the salary of the Tax Commissioner; that this bill was approved by the Governor on the 23rd day of June 1947, and by virtue of an. emergency clause therein took immediate effect. It is alleged further that the relator submitted certain supplemental pay-roll vouchers for the amount by which the salary of this position was increased, and that the respondent, Auditor of State, has wholly failed and refused to honor these pay-roll vouchers and to issue warrants thereon as required by law.
The answer of the respondent admits, by restating them in detail, the facts pleaded in the petition and then states that "on the 30th day of June, 1947, he [relator] was appointed Tax Commissioner of the state of Ohio by the then Governor for the unexpired portion of the term commencing the second Monday in February, 1947, and ending on the second Monday in February, 1951." The respondent asks that the application for the writ of mandamus be denied and the action dismissed.
In Cause No. 31221, the relator is the Public Utilities Commission of the state of Ohio. The petition alleges that the relator is a duly authorized department of the state of Ohio; that on the 26th day of January 1941, the then Governor, John W. Bricker, appointed Harry M. Miller a member of the Public Utilities Commission for a term to begin on the second day of February 1941 and to end on the first day of February 1947; that such appointment was confirmed by the Senate; that by virtue of that appointment Harry M. Miller served as a member of the Public Utilities Commission until June 13, 1947; and that the Governor, on June 13, 1947, again nominated Miller as a member of the commission for a term beginning June 13, 1947, and ending February 1, 1953, which appointment was approved by the Senate on the following day.
The petition alleges further that Harry M. Miller, after June 14, 1947, and before entering upon the discharge of the duties of his office under such appointment and confirmation, took the oath of office and furnished the bond required by the provisions of Sections 489 and 492, General Code, respectively; that by the provisions of Amended Senate Bill No. 196, enacted by, the 97th General Assembly, Section 606, General Code, was amended to provide an increase in salary; that this act was passed June 4, 1947, was approved by the Governor on June 11, 1947, was filed in the office of the Secretary of State on the same day and became effective at once by reason of an emergency clause therein; that the relator prepared and submitted to the respondent, Auditor of State, supplemental pay-roll vouchers in the amount that the salary of Harry M. Miller was increased as hereinbefore stated; and that the respondent has wholly failed and refused to honor these pay-roll vouchers and refused to issue warrants thereon as required by law.
The respondent, by answer, admits the allegations of the petition, but denies that Harry M. Miller's service as a member of the Public Utilities Commission until June 13, 1947, was by virtue of his appointment on January 26, 1941, and avers that he continued in office after February 1, 1947, for the reason that his successor had not been appointed and "on the 13th day of June, 1947, he was appointed a member of the Public Utilities Commission of the state of Ohio by the then Governor for the unexpired portion of the term commencing on February 2, 1947, and ending February 1, 1953, and that on the 14th day of June, 1947, the Senate approved said appointment." The respondent asks that the application for a writ of mandamus be denied and the action dismissed.
In each of these cases the relator moves the court for judgment in favor of the relator on the pleadings.
Mr. Hugh S. Jenkins, attorney general, Mr. Harry G. Fitzgerald, Jr., and Mr. R. Brooke Alloway, for relators.
Mr. Hugh S. Jenkins, attorney general, and Mr. Ralph Klapp, for respondent.
The question presented in each of these cases is identical. That question is: Do the provisions of Section 20 of Article II of the Constitution of Ohio preclude payment of an increase of salary of an appointee officer, which increase is authorized by statute effective prior to such officer's appointment, where the salary-increase statute and the appointment of such officer became effective subsequent to the time prescribed by statute for the expiration of the term to which such officer had previously been appointed, and where the officer so appointed occupied such office at the time the salary increase became effective by virtue of holding over beyond the time fixed by statute for the expiration of the term of office to which he had previously been appointed, no successor having been appointed thereto?
The question, stated more concisely, is: Does the inhibition of a change of salary of a public officer, contained in Section 20 of Article II of the state Constitution, apply to an officer appointed to succeed himself to fill a partially expired statutory term where the increase in the salary was authorized by statute enacted prior to such appointment and during the time such person was holding over in the office under an appointment thereto for the preceding statutory term?
Section 20 of Article II of the Constitution of Ohio reads as follows:
"The General Assembly, in cases not provided for in this Constitution, shall fix the term of office and the compensation of all officers; but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished."
The controversy in each of these cases turns upon the meaning of the words, "during his existing term," as used in the above constitutional provision. The relator in each case contends that the expression, " his existing term," is personal and relates to the officer appointed and applies strictly to the term for which the officer is appointed and not to the term of office as designated by the General Assembly. Under the theory of the relators, increases in salary, which take effect before they are appointed to, and qualified for, the offices, do not come within the inhibition of the constitutional provision, for the reason that the law, providing the increases, became effective prior to " his existing term."
The respondent contends that an officer, appointed, after the period designated as the statutory term has begun, to serve out a portion of the period designated as the statutory term, has a tenure within the term, and that such an increase in salary is within the inhibition of the constitutional provision because it occurred during the period designated as the statutory term of office, a portion of which the officer had been appointed to serve.
Under the interpretation and application of the language of the constitutional provision contended for by the respondent, the relators would not be entitled to receive the increases of compensation provided for even if their appointments had been made to fill vacancies of other persons in respective positions who had continued in office past the date for the expiration of the period prescribed by the statute as the term of office. This is conceded by counsel for the respondent.
With reference to the effective date of the statute increasing the salary of each of such appointees, when did the appointee begin " his existing term?" The respondent has cited cases from other jurisdictions which sustain his position, as hereinbefore set forth, and, if this were a question of first impression in this court, those authorities would be quite persuasive.
Section 1464-6, General Code, authorizes the appointment of the Tax Commissioner of Ohio by the Governor for a term of four years "commencing on the day following the second Monday in February in the year 1943 and in each fourth year thereafter." It provides further that "an appointment to fill a vacancy shall be for the remainder of the term in which the vacancy occurs."
It is to be observed that a term of the Tax Commissioner of Ohio expired on the second Monday in February 1947. No appointment was then made and relator Tax Commissioner continued in office, and it was not until June 30, 1947, that he was reappointed.
Section 8, General Code, provides as follows:
"A person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless otherwise provided in the Constitution or laws."
Pursuant to that provision relator continued in the performance of his duties under his original appointment. See State, ex rel., v. Howe, 25 Ohio St. 588, the first paragraph of the syllabus of which is as follows:
"Where an officer appointed by the Governor, by and with the advice and consent of the Senate, is authorized by law to hold his office for a term of three years, and until his successor is appointed and qualified, and no appointment of a successor is made by the regular appointing power at the expiration of his term of three years, the office does not become vacant; but the incumbent holds over as a de jure officer until his successor is duly appointed and qualified."
It clearly follows that, unless otherwise expressly provided, the time of holding over by an elected or appointed officer is a continuation of the old term and not a part of a new term.
In State, ex rel. Bolsinger, v. Oridge, 134 Ohio St. 206, 16 N.E.2d 334, the following pertinent statement of Judge Williams, writing the opinion for the court, appears on page 214:
"The purpose of Section 8, General Code, is to insure that all lawful incumbents of public office shall hold over and thus avoid a hiatus between the end of the term and the qualification of the newly appointed or elected incumbent. It applies to all public offices or positions of public trust, except where there is a provision in the Constitution or statute to the contrary. By its provisions, the term of the person holding the office or public trust ends as soon as the term of service of a duly elected or appointed and qualified successor begins." (Emphasis supplied.)
See, also, State, ex rel. Atty. Genl., v. Bryson, 44 Ohio St. 457, where the same principle was applied.
It was held in the case of State, ex rel., v. Raine, Aud., 49 Ohio St. 580, as follows:
"A statute, whatever terms it may employ, the only effect of which is to increase the salary attached to a public office, contravenes Section 20, of Article II, of the Constitution of this state, in so far as it may affect the salary of an incumbent of the office during the term he was serving when the statute was enacted." (Emphasis supplied.)
What has been said above as to the Tax Commissioner has like application to a member of the Public. Utilities Commission.
The incumbency of the appointee in question in each of these cases, at the time the statute in question was enacted and became effective, was as a holdover from a preceding statutory term of office, and, therefore, the increase provided for was not enacted during the term for which he seeks the benefit of the increased compensation. The appointment for that term, "his existing term," was made subsequently to the effective date of the salary-increasing statute. The amended statute did not become effective "during his existing term." The constitutional provision would of course inhibit the payment of any increase in salary prior to the beginning of the new term for which appointment was made in each instance, but the enactment of such statute and its effective date having been prior to the beginning of the new term, the appointee in each case is entitled to such increase in salary.
This court has heretofore considered and decided a question of similar import.
Section 20 of Article II and Section 14 of Article IV of the state Constitution are similarly phrased. The latter provision, which applies to members of the judiciary, has heretofore been construed by this court.
In the case of Zangerle, County Aud., v. State, ex rel. Stanton, Pros. Atty., 105 Ohio St. 650, it was held that a judge who served a term of office which began subsequent to the enactment of a statute increasing the salary of such office was entitled to the increase of salary therein provided, although his election was for the remainder of an unexpired statutory term during which a statute providing an increase in the salary had been enacted. The record discloses that the judge involved in that case had been elected for two years of an unexpired term. The term of office of the predecessor of such judge had commenced prior to the effective date of the statute providing an increase of salary but the election for the unexpired term occurred subsequent thereto. Therefore, clearly, the question presented, and necessarily decided, was whether the phrase, "his existing term," had reference to the period which constituted the statutory term of office or the period which the judge was elected to serve.
This court held in that case that the service and term of office of the judge, elected for the two-year unexpired term, having begun subsequent to the passage of the statute providing for the increase of salary, that he was entitled to such increase, and, therefore, that the phrase, "his existing term," means the term being served by the officer and not the period constituting the statutory term. The policy indicated has been long continued in this state as disclosed by the opinions of various attorneys general.
Holding that the words, "his existing term," apply to the term being served by the officer in question and not to the period constituting the statutory term, we conclude that the writ of mandamus should be issued in favor of the appointee in each case. However, we direct attention to the fact that in cause No. 31221 the petition alleges that "Relator further says that said supplemental pay-roll vouchers were submitted to cover an increase in salary for the members of the Public Utilities Commission effective under the provisions of Amended Senate Bill No. 196 * * *." No claim is made in regard to the salary of any member of the Public Utilities Commission other than Harry M. Miller. The decision in cause No. 31221 is limited to the claim made on behalf of member Harry M. Miller.
Writs allowed.
WEYGANDT, C.J., TURNER, HART and STEWART, JJ., concur.
SOHNGEN and ZIMMERMAN, JJ., dissent.
I dissent from the majority opinion in these two cases. In my opinion the inhibition against change of salary of a public officer during his existing term in Section 20, Article II of the Constitution of Ohio, refers to the full term of office fixed by the General Assembly, rather than, as is held by the majority opinion, to the term to which the officer is appointed or elected. In my opinion the very purpose of the constitutional inhibition against a change of salary is to prevent such problems as arose in these cases.
Under my view, the persons in these cases appointed and approved by the Senate are holders of a tenure within the terms; the terms prescribed by the General Assembly are units of time, and new terms are not created by the appointment of officers to succeed themselves to fill unexpired statutory terms. Under my view, since the salary-increase bills were adopted by the General Assembly and signed by the Governor during the relators' constituted terms of office, as prescribed by the General Assembly, they are not entitled to the salary increases and the writs should be denied.
ZIMMERMAN, J., concurs in the foregoing dissenting opinion.