Opinion
No. 19496
Decided June 8, 1926.
Common pleas courts — Compensation of judges — Section 14, Article IV, Constitution — Compensation cannot be changed during term or vary with services rendered — Payment not dependent upon approval of another official — Statutory provision for quarterly payment, valid — Section 2252, General Code — Requirement for approval by chief justice before warrant issued, unconstitutional — Section 1558, General Code (110 O. L., 52.)
1. Under Section 14, Article IV of the Ohio Constitution, the compensation of common pleas judges can neither be increased nor diminished during their term, and if once fixed it cannot be denied; nor does such compensation vary with the amount of service rendered by the occupant of the office.
2. The provisions of that section require that such judges shall receive the compensation provided by law at "stated times," and not at times depending upon procurement of the approval of another official.
3. Section 2252, General Code, providing that such compensation shall be paid quarterly from the county treasury, is a valid legislative act; but the clause in Section 1558, General Code, (110 O. L., 52), requiring the approval of the chief justice as a prerequisite to the issuance of a warrant by the county auditor, is constitutionally invalid.
ERROR to the Court of Appeals of Cuyahoga county.
Walther, as relator, instituted an action in the Court of Appeals against the respondents, as officials of Cuyahoga county, praying for a writ commanding Cook, as auditor of the county, to issue a voucher to him for additional salary compensation, payable by the county, for the months of August and September, 1925.
The relator was elected as a judge of the court of common pleas and took office under his election on the 1st day of January, 1923; his term expiring December 31, 1928. The petition alleged that in addition to the salary allowed by Section 2251, General Code, there was due him the further compensation provided for by Section 2252, General Code, payable out of the county treasury upon the warrant of the county auditor; that at the time of his election the fixed monthly sum thereof was $416.66; that this amount was due him for the months of August and September, 1925, but that the county auditor refused to pay him such amount, although there were sufficient funds on hand for the payment of said additional salary compensation.
The respondents, the county officials, filed a general demurrer to the petition, but later withdrew the demurrer and filed their separate answers. Both answers are alike. They admitted the facts stated in the petition, but as a defense specially alleged that the chief justice of the Cuyahoga county common pleas court had not certified to the county auditor that he had received and approved the report of the relator as judge for the month of August, 1925, as required by Section 1558, General Code; that relator on June 1, 1925, had been assigned by the chief justice to conduct the business of the court of common pleas, who had fixed the vacation of the relator for the month of July of that year; and that relator failed and refused to perform any work as common pleas judge during July and the August following. There are other allegations in the answer showing the actual time employed by the relator during the various months in the calendar year 1925, but these cannot materially affect the alleged failure to perform work during the other months of that year.
This cause was heard by the Court of Appeals, which found on the issues joined in favor of the plaintiff relator; whereupon error was prosecuted to this court.
Mr. Edward C. Stanton, prosecuting attorney, and Mr. H.E. Parsons, for plaintiffs in error.
Messrs. Anderson, Lamb Marsteller, for defendant in error.
Mr. Newton D. Baker, Mr. Thomas H. Hogsett and Mr. Maurice Bernon, amici curiae.
The Court of Appeals found on the issues of fact in favor of the relator, Walther. The evidence was very brief. In order to understand the real contention between the parties, it may be well to refer briefly to the facts.
The record discloses that the relator had complied with the law by filing with the common pleas chief justice the report required of him by statute. The following colloquy between the various judges of the appellate court and counsel for the parties occurred at the trial:
Judge Vickery: "Is it admitted that a report was filed by Judge Walther?"
(Mr. Parsons, for respondents, stated that if an averment that the report had been filed were made he would admit it.)
Judge Levine: "Mr. Anderson, this answer states, among other things, that the county auditor has not received the sanction and approval of the chief justice. You are proposing to show that the report was filed with the chief justice?"
Mr. Anderson (for the relator): "That is admitted now."
Judge Sullivan: Do I understand you to admit that Judge Walther complied with the law by filing his report?"
Mr. Parsons: "I understand he did and I admit he did file it for the months of August and September."
The main thing to be gleaned from this record is that the county officials, while they admit that relator had complied with the statute in filing his report, claim that they were justified in refusing to pay him his salary until the auditor had received the approval of the chief justice of the common pleas court; and it may also be gleaned that this approval depended upon the amount of work done and the number of days actually spent by the relator in its performance.
The contention of the parties turns upon the validity of a certain clause found in Section 1558, General Code, as amended in 110 Ohio Laws, at page 52. That section provides for the designation of a chief justice by the common pleas judges, for his superintendence and distribution of business among the various judges, and for an annual report by the chief justice of the work performed by the various judges, the number of days and hours engaged thereupon, and such other data as the chief justice may require. The section also requires each common pleas judge to make a report to the chief justice of the duties performed by him, in such form as the chief justice prescribes. The section provides:
"The county auditor shall not issue his warrant for payment of additional salary as provided in Section 2252 for any judge until said chief justice has certified to him that he has received and approved such reports."
Under Section 2251, General Code, the common pleas judges are each paid annually the sum of $3,000 out of the state treasury. Under Section 2252, General Code, they receive an annual compensation from the county, based upon population; and this additional salary is "paid quarterly from the treasury of said county upon the warrant of the county auditor."
If the contention of the county officials should be sustained, manifestly a common pleas judge would never receive his salary or compensation until the chief justice had certified to the auditor that he had approved the reports filed with him. Such an act, if persisted in, would eventually result in a denial of compensation and would contravene the spirit of Section 14, Article IV of the Ohio Constitution. That section provides:
"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."
The compensation of these constitutional judges is attached to the office, not to its occupant. That compensation does not vary with the amount of service rendered by the judicial occupant, nor depend upon the time required in its performance. Furthermore, the requirement of the Constitution is that judicial compensation shall be received "at stated times," for their services. Conforming to the constitutional mandate, the Legislature fixed the "stated times" by requiring that the additional compensation payable out of the county treasury should be paid "quarterly from the treasury of said county upon the warrant of the county auditor." Section 2252, General Code. This was in compliance with the Constitution. If the act of the chief justice should be construed as either diminishing or denying the fixed salary of a judge, such an act would be prohibited by the constitutional section above quoted.
The petition in this case was filed on October 1, 1925. The relator had taken office on the first of January following his election. His quarterly payments from the county treasury, therefore, were due, under the statute, on the 1st days of April, July, and October. It is admitted that for the months of August and September, 1925, the monthly sums of $416.66 were not paid, although they were due on October 1, 1925, the end of the third quarter.
Let us assume that the chief justice should continue to disapprove or fail to approve the report of the relator and refuse to certify the same to the county auditor, can there be any question but that such act, if persisted in, would be a denial of compensation? The Constitution requires this compensation to be paid at "stated times," not at occasional times, or at times dependent upon the approval of any other official. Lexicographers all agree upon the definition of "stated times." The Century says: "Occurring at regular intervals," or "given regularly." The New English Dictionary defines it thus: "Fixed, regular in operation or occurrence, not occasional or fluctuating." If the contention of the respondents were upheld there would be no fixed or stated times wherein this relator would receive his additional salary.
It is urged, however, that the chief justice should be made a party to this mandamus proceeding. Were the approval and certification of the chief justice legally necessary as a prerequisite to action by the county auditor, the chief justice would be a necessary party; but in view of the fact that his approval or disapproval was not necessary the respondents were not justified in refusing to issue and to pay the warrant.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MATTHIAS, DAY, KINKADE and ROBINSON, JJ., concur.
My objection to the first two paragraphs of the syllabus is that they apply perfectly sound principles to a controversy which has no possible relation to the matters which were in the mind of the framers of the Constitution when Section 14, Article IV, was framed.
My objection to the third paragraph of the syllabus is that it places the judicial branch of the government entirely beyond any control or supervision at the hands of the legislative branch. It is therefore entirely out of harmony with the well-settled principles laid down by former decisions of this court and the Supreme Court of the United States. In Village of Fairview v. Giffee, 73 Ohio St. 183, 76 N.E. 865, Chief Justice Davis laid down certain principles which have been generally accepted as sound, in which he stated that while the different branches of the government are separate and distinct it is nevertheless impossible to distinctly define the line of demarcation, and he therefore quoted with approval from the opinion of White, J., in State ex rel. v. Harmon, 31 Ohio st., 250, as follows:
"In so far as the distribution has not been made in the Constitution, the power to make it is vested in the General Assembly, as the depository of the legislative power of the state."
These earlier pronouncements were unanimously approved by this court in the recent case of Stanton, Pros. Atty., v. Tax Commission, 114 Ohio St. 658, 151 N.E. 760.
That the Legislature has the power to fix the jurisdiction of the court of common pleas and to fix the salaries of the judges is so well settled as to make citation of authority unnecessary. The Legislature has enacted many sections which define the duties of common pleas judges, and it is difficult to see how Section 1558, General Code, can be unconstitutional and other sections defining powers and fixing duties of the judges remain valid. The effort of the majority opinion to place judges beyond the reach of the General Assembly will not meet the approval of the legal profession, and will not meet the approval of the majority of the members of the judiciary of Ohio. There is a conviction on the part of the majority of the people that salaries of members of the bench are too low, but the Legislature will never be persuaded to raise the salaries until there is a spirit of willingness to render the service which should call for the payment of higher salaries.
I only wish to state in conclusion that the act which created a chief justice of courts of common pleas in counties having more than one common pleas judge has resulted in great good in Cuyahoga county, and has given the common pleas court of that county a national reputation for promptness and efficiency. Any pronouncements which are in the leastwise calculated to interfere with the splendid work of the courts of that county are to be deplored.
ALLEN, J., concurs in the dissenting opinion.