
    CONSTITUTIONAL LAW — OFFICE AND OFFICERS.
    [Montgomery (2nd) Circuit Court,
    1907.]
    Wilson, Sullivan and Smith, JJ.
    (Judge Smith of the first circuit, sitting in place of Judge Dustin.)
    
      John L. Theobald v. State ex rel. Edward T. Hall.
    1. Constitutionality of Act Placing Public Offices on Fixed ,Salary.
    An officer in the constitutional sense is one who is elected or appointed to> a state office, and he must possess the qualifications of an elector; he is the one who takes the oath of office and is responsible for the official acts of himself and subordinates; hence his deputy assistants and other- . employes are not “officers” within the meaning of thé constitution, and the act changing the compensation of all officers from the fee system to a fixed salary is not unconstitutional, as in violation of Art. ,2, Sec, 20-of the constitution, which provides that the compensation of an oflicer shall not be changed during his term.
    2. Uniform Operation of Salary Law.
    The law changing the compensation of public officers from the fee system to a fixed salary, is not unconstitutional as not having uniform operation throughout the state, for the reason that the county commissioners are to fix the salaries according to the population of the county, thus, making the salary for the same officers different in different counties.
    Error to Montgomery common pleas court.
    
      
       Affirmed by Supreme Court, without report, Theobald v. State, 78 Ohio St. 000; 53 Bull. 000.
    
   SMITH, J.

The original action was brought by the state of Ohio by Edward T. Hall, a taxpayer, against John L. Theobald, recorder of Montgomery county, Ohio, to recover from him moneys received from January 1. 1907, to March 31, 1907, as fees of his office, which sum he refused to pay into the county treasury as public money belonging to said county,, under Sec. 6 of an act passed March 22, 1906 (98 O. L. 89; Lan. Rev.. Stat. 2740f; B. 1296-16), entitled: “An act to fix salaries of probate-judges, county auditors, county treasurers, county recorders, clerks of' the court of common pleas and sheriffs, and to provide for the employment and compensation of their clerks, deputies and assistants,” — it' being claimed by said defendant, that the law requiring such payment. by him is unconstitutional.

To this petition a demurrer was filed on behalf of the defendant,, which demurrer was overruled by the trial court, and judgment rendered thereon, to reverse which judgment this cause is brought to this-court.

It is claimed on behalf of the plaintiff in error, that the act in-question is unconstitutional, because,

First. It contravenes Art. 2, Sec. 20 of the constitution, which' provides: “The general assembly, in eases not provided for in this, constitution, shall fix the term of office and compensation of all officers;. but no change therein shall affect the salary of any officer during his. existing term, unless the office be abolished,” and

Second. That said act contravenes Art. 2, Sec. 26 of the constitution, which provides, that “All laws, of a general nature, shalj have a uniform operation throughout the state.”

Upon the first contention we are of opinion that Art. 2, Sec. 20 of the constitution, is not infringed by this act. The act in question makes it incumbent upon the legislature to fix compensation of all officers, and as this term “officers” is used in the constitution, we are-satisfied that “deputies, assistants, bookkeepers, clerks and other employes,” are not “officers,” as contemplated ,in the constitution. An officer is one who is elected or appointed to an office in the state, and the constitution recognizes that no person can be elected or appointed to an office in the state unless he possesses the qualifications of an elector, and as the subordinates might all hold their positions without being electors, then in the constitutional sense of the word “officer,” they would not be such, and the “officer” in question is the individual who takes the oath of office, and is responsible for his official acts as well as those of his various employes.

It is therefore within the purview of the constitution to allow the legislature to direct the county commissioners to fix the, sum to be paid for the compensation of all “deputies, assistants, bookkeepers, clerks, and other employes” of said “officer,” leaving it to the legislature to-fix the compensation or salary of the “officer” himself.

Nor do we tbink the law is unconstitutional because it is claimed it contravenes tbe second clause of Art. 2, Sec. 20 of the constitution, which provides:

“That no change therein shall affect the salary of any officer during his existing term, unless the office be abolished.”

Heretofore the various officers mentioned in this act received their compensation under what was known as the fee system, but it is evident that fees cannot be construed as a salary, which is a determined, stipulated sum for a fixed period, and an examination of the debates of the Ohio convention of 1851, Yol. 1, page 233, reported by J. V.' Smith, official reporter, shows, that the convention reeogfiized a distinction when this clause was up for debate between an “officer” receiving fees •and one receiving compensation by way of salary. See also Thompson v. Phillips, 12 Ohio St. 617; Gobrecht v. Cincinnati, 51 Ohio St. 68 [36 N. E. Rep. 782; 23 L. R. A. 609].

The “officers” mentioned in the act were not upon a salary, but were paid their compensation under certain rules prescribed by the legislature. •

As to the second claim that said act is in violation of Art. 2, Sec. '26, that “All laws, of a general nature, shall have a uniform operation throughout the state,” we are of opinion, that the act does have uniform •operation throughout the state. The legislature simply prescribes the rule by which compensation should be had in various counties. This article in the constitution does not mean that each officer in each county ■should receive the same amount of money as salary, but simply that the rules of compensation shall be uniform; and the legislature having .seen |fit to base this' rule upon population, the exercise of that rule through the various counties of the state must of itself in its action be uniform. The reason of this is, that the basis of operation is the same, and the result attained by the operation of the rule is the same, although the amount of money in dollars and cents may be different. See Cricket v. State, 18 Ohio St. 9.

So long as the rule upon which compensation is based is uniform throughout the state, it matters not whether in one county of the state the recorder receives more by reason of the increased population than a recorder in another county receives less by reason of a less population. The compensation belongs to the officer under the act for his .services. The fact that there is a limit upon the annual salary, that it shall not exceed a certain fixed sum, does not change the uniformity of the operation of the law, as this also applies to every county in the ■■state.

We are therefore of opinion that there is no error in the judgment rendered below, and the same will be affirmed.

WILSON, J.,

concurring in the opinion of Judge Smith.

As to the purpose of the law, prior to the enforcement of this act, county officers were paid by fees which they were permitted to charge the public for the performance of their duties. Necessarily these fees were uniform throughout the state, as one citizen could not be charged. more than another for the performance of the same public duty. The consequence was, that a fee system which would support the offices in a small county afforded an exorbitant compensation to the officers in a large county. It was to remedy this evil more than any other that the act under review was passed.

In the opinion of the legislature the services of the officers in the larger counties were not commensurate with the fees they were permitted to charge and collect. The policy is now, as it was before, to support the offices by fees charged to those demanding the services, and because the existing fee system affords but a meager support to the offices in the smaller counties, the fees were not reduced. The principal purpose of the act is to divert the excess in the larger counties over and above a fair compensation for services from the officers to the county general fund.

As to the unequal operation of the law: It should not be said that the services of an officer must be valued by the standard of fees alone. The larger duties of the offices are common to all the counties. They must be kept open for business, requiring the officers’ tiifie; the same reports must be made by all; the same system of bookkeeping must ■obtain in all; the trust imposed upon the officer is alike in kind, if not in degree. The multiplied fees in the larger counties principally entail more bookkeeping, and for this the law in question undertakes to make ■compensation independently of the officers’ salaries. Of course there is increased responsibility and enhancement of the trust in the larger counties, calling for increased attention and ability in office; but in the •opinion of the legislature the graded salary is a corresponding compensation.

The salaries are not so unequal under the law as to make unreasonable classification. The glaring inequalities enumerated by counsel in argument are based upon a wrong construction of the statute; as for instance, the salary of the auditor in Auglaize county, estimated on a population of 31,192, is $2,530, not $2,475 and of the auditor in Brown county based ón a population of 28,237, is $2,345, not $1,500, as stated by counsel. Tbe salaries of tbe same officer in Allen- (47,976) and Miami (43,105) are respectively $3,390 and $3,190; and so, correspondingly in all tbe other counties until tbe maximum of $6,000 under tbe law is reached. ,

In order that tbe officer may be compensated for each full thousand at the given rate in any fifteen thousand, it is not meant, as conceived by counsel, that tbe fifteen thousand must be full before be can be allowed tbe rate per full thousand. Under this interpretation of tbe law the salaries approach uniformity and equality in a remarkable degree.

As to tbe proposition that tbe act authorizes tbe board of county commissioners to fix tbe compensation of tbe officer when it fixes tbe aggregate to be paid his subordinates for assisting to perform the duties of bis office: Tbe legislature takes absolute control and makes full and final disposition of tbe entire funds arising from fees in all of tbe offices, and this it may do. It prescribes bow much shall be paid therefrom to tbe officer; how much to deputies, assistants, bookkeepers and clerks,, and transfers tbe residue if any to tbe county general fund.

In contemplation of tbe act tbe fees no longer attach to tbe officer, but to tbe office, and to the extent they are not needed to support the office they are devoted to tbe general good.

It cannot be said that tbe officer is entitled to claim the fees as perquisites belonging to him by virtue of bis office. The legislature has always bestowed or denied them at pleasure. Nor can it be claimed in reason that it intended to make an appropriation to tbe officer as part of bis compensation, when it authorized tbe board of county commissioners to fix the compensation, in tbe aggregate, of deputies, assistants, bookkeepers and clerks. The law expressly negatives such intent, when it makes it a crime for tbe officer directly or indirectly to receive or appropriate any part of tbe allowance to bis own use and benefit. It would be an anomaly to charge an officer with a crime for receiving bis own.

i Tbe law recognizes the necessity for an additional working force' in some of the offices of some of tbe counties.' Tbe existence of tbe necessity and its extent are questions of fact local in their character, and should therefore be referred to some local tribunal for determination.

Tbe legislature has conferred upon tbe board of county commis--isiojners in each county the power judicially .to determine these questions. The selection of the tribunal must be left to its wisdom. If, under tbe laiy, an officer should make application to tbe board for assist-anee in the prescribed way, and be refused, then should he be physically unable himself to perform all the duties of the office because of their magnitude, the default would be not his, but that of the board. It-must act with legal, not arbitrary, discretion in the bestowal or refusal' of the fund.

The public have a right to expect and demand a reasonable and proper regard, both by the officer and the board for the amount of labor necessary to be performed in each office. The aggregate sums-allowed in the various counties are not required, or expected, to be' uniform. As is said' by counsel, they should be governed by environ--ments — cost of living, the prevailing wage and the like. It is to the' interest of the officer, and the public as well, that the compensation should be no greater than the wages paid for like services in the particular community to be served, and this may be as variant as the judgment of the boards in the different counties. It must not be overlooked that the officer fixes the compensation of each particular-employe, as well as the number of employes. With that the board has-nothing to do, save that it may limit the -aggregate that may be thus: expended. If not left to it, to whom should be left the determination' of the amount? Manifestly the legislature could not determine it. If left to the officer the tendency would be to expend the whole of the fee fund in this way, defeating the purpose of the law.

I am of the opinion, therefore, that the act does not violate either Sec. 20 or See. 26 of Art. 2 of the constitution, and the judgment should be affirmed.

Sullivan, J., concurs in both opinions.  