
    FEES DUE TO COUNTY AUDITOR.
    Common Pleas Court of Warren County.
    State, ex rel Stilwell, v. Lewis, Treasurer of Warren County.
    Decided, May, 1910.
    
      County Auditor — Fees Accruing to, upon Semi-annual Settlement Next After Salary Law Became Effective — Construction of Section 1069.
    
    A county auditor who completed the grand tax duplicate for his county prior to October 1, 1906, and continued to be such auditor until after the semi-annual settlement with the treasurer in February, 1907, is not entitled to the entire amount of the percentages accruing at that settlement, as provided by Section 1068, Revised Statutes (General Code, 2624), but only to such proportion of the percentages arising upon such duplicate as the part of his official year that elapsed prior to January 21, 1907, is to the whole official year.
    
      S. W. Brown, for plaintiff.
    
      A. F. Brown, contra.
   Clark, J.

This is an application for a writ of mandamus to compel the defendant treasurer to pay to the relator the amount of a certain warrant for the sum of $697.90.

The application states that relator was the auditor of Warren county, and that while such officer he drew this warrant in his own favor, and that the money mentioned in the warrant is for a balance due him as such auditor, under the provisions of Section 1069, Revised Statutes (Gen. Code, 2624). It appears that relator continued to be such auditor from October 20, 1902, until October 18, 1909, when his term expired. The money which he now claims should be paid to him is the amount of the percentages that would accrue upon the settlement made between the auditor and treasurer on February 15, 1907, under the provisions of the section above referred to.

Had there been no change in the law governing the compensation of auditor, there would be no question that the amount.of this warrant would be due the relator. But on January 1, 1907, the act which is commonly called the salary law went into effect.. This act repealed Section 1069, and substituted- for the percentages therein provided a fixed salary for the auditor.

What effect this legislation has upon the relator’s right-to the percentages ■ accruing upon the settlement made February 15, 1907, is the question presented, and the decision of which must determine relator’s right to the writ-prayed for.

No question is made as to the power of the Legislature to repeal or modify the compensation provided by Section 1069 during relator’s term of.office-, but it is claimed that the percentages accruing upon the settlement of February 15, 1907, were fees earned by relator prior to January 1, 1907, at which time the repealing act went into effect, and that the Legislature did not intend and had not the power to deprive relator of his right thereto.

It is true, that if these percentages were earned by relator prior to January 1, 1907, that is, if specific services to which these percentages were attached as compensation had been rendered by relator prior to that date, then it is beyond the legislative power to deprive him of his property therein.

This leads to a consideration of what is the nature of the percentages provided by Section 1069. Are they fees for specific work, or are they general compensation for all services required of the officer and not otherwise compensated, the amount of which is thus made dependent upon the amount of collections for the year!

Relator claims that these percentages are compensation for preparing the tax duplicates, which work was completed October 1, 1906. The language used in Section 1069 is, that the auditor “shall be allowed for his services the following percentages.” There is nothing in this language that suggests one service rather than another as.the subject of this compensation, and the preparation of the tax duplicate is but one of a great number of services the auditor is required to perform and for which no other compensation is provided than these percentages.

But pursuing the language of the section further, we find it provides that this compensation is- “to be paid as nearly as possible in equal monthly payments, or that monthly estimates in lieu of said salary shall be allowed to said auditor and paid to him by the county treasurer. ’ ’

If these percentages were fees earned or compensation for specific services, there is no reason apparent why they should not be paid whenever the services have been rendered and the amount of compensation determined. From the provision “monthly estimates in lieu of said salary shall be allowed,” etc., it is apparent that the auditor is entitled to be paid such sum monthly as would amount to one-twelfth these aggregate percentages in any one year, even before the taxes have been collected , or the exact amount of his compensation determined. The spirit and intent of this section is to provide a general compensation for the auditor, the amount to be determined as therein provided, and to authorize its monthly payment. For each month he serves, he is entitled to one-twelfth the aggregate percentages that would accrue upon the collections for the current year. Should he die or resign, or should the law allowing his compensation be repealed, he would not lose the amount thus earned for his compensation for the time he served prior to such event. But should any of these events happen to him on January 1, neither he nor his administrator could successfully claim the entire percentages that would accrue on the succeeding February and August settlements, notwithstanding the fact that they accrued out of the collections made upon the tax duplicate, which he had prepared in the preceding October. .

If this view of the nature of the compensation is correct, it follows that relator on January 1, 1907, had not earned the entire amount of the percentages accruing upon the settlement of February following, but had earned only such part thereof as would be proportionate to the part of his official year which had elapsed on January 1, 1907.

But it is claimed that the Legislature did not intend to deprive auditors of this compensation, and that at the time of enacting the law, the Legislature knew that a large part of the work out of which these percentages arose, would have been performed prior to January 1, 1907, and that it could not have intended to cut off such very substantial compensation, which is so closely connected with this work.

If relator is right in his contention that the salary law was not intended to .affect the percentages accruing upon a duplicate already made at the time that act took effect, it necessarily follows that relator would be entitled to these percentages, not only upon the February settlement, but also upon the succeeding August settlement, amounting in all to about $2,419.20. All this sum would be paid to him during the year 1906. During the same year, he would be drawing the salary provided by the salary act; so that under this view, the Legislature intended that the auditors for the first year the new law should be in force, should draw double compensation.-

There is no reason for thinking that this was the legislative intention. The error, we think, in relator’s view is, that he regards these percentages as compensation due him for work he performed in the year preceding the settlement out of which they arose.

As has been above pointed out, they are not of that nature, but are in the nature of an annual salary, payable in monthly installments. Indeed, the compensation provided by Section 1069 would be a salary in the strict sense of the word, but for the fact that the amount thereof is not fixed and definite, but is dependent upon the amount of collections.

It is the judgment of the court that relator is entitled out of these percentages to such amount only as is proportionate to the part of his official year which had elapsed on January 1, 1907, and upon the face of the petition, it -appears that at least such amount has been paid to him upon estimates.

It follows that relator is not entitled to a peremptory writ, which will be denied.  