
    OFFICERS — SCHOOL EXAMINERS.
    [Hamilton Circuit Court,
    1901.]
    Cox, Swing and Smith, JJ.
    State ex rel. Ferry v. Board of Education.
    1. “Officers” not VS[ithin Sec. 20, Art. 2 of the Constitution.
    The term “officer” as used in Sec. 20, Art. 2 of the constitution, providing that the general assembly shall not affect the salary of any officer during his existing term, does not refer to such officers as members of a board of school examiners or to officers of a municipal corporation, such as mayor, marshal, clerk, treasurer, etc., but to those created and whose salaries are fixed by the general assembly.
    2. School Examiners — Salary May be Changed.
    Members of board of examiners of teachers are provided for in Part 2, Title 3, Rev. Stat., under the head “schools,” by which no provision is made prohibiting a change in the compensation during term of office. Hence a board of education has the right to reduce the compensation of a member of such board during his term of office, but such change should not be retroactive.
    3.' School Examiners not Within Secs. 1716 and 1717, Rev. Stat.
    Members of a board of school examiners are not within Secs. 1716 and 1717, Rev. Stat., which provide that municipal councils shall prescribe what fees or compensation officers of municipal corporations shall receive, and which shall in no case be increased or diminished during their terms of office.
    4. Legislative Construction of Constitution.
    Sections 1716 and 1717, Rev. Stat., providing that municipal councils shall prescribe what fees or compensation officers of municipal corporations shall receive, and which shall in no case be increased or diminished during term of office, amount to a legislative construction of Sec. 20, Art. 2 of the constitution, providing that “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,” indicating that officers referred to in the statutes are not those referred to in the constitutional provision; otherwise legislation would have been unnecessary.
    Mandamus.
    
      Merrill & ICue/inert, tor plaintiff.
    
      Horstman, Galvin, Whittaker and O'Connell, for defendant.
   Smith, J.

Thé petition of the relator alleges that on April 16, 1888, he was a member of the board of examiners of teachers for the school district of Cincinnati, a city district of the first class, having been appointed and qualified for a term, which, by law passed April 16, 1888, would expire August 31, 1890; that the duties of said office were greatly changed by said statute, and that after the passage the board of education duly fixed the compensation of the relator and other members of the board at $300 per annum, such compensation to commence April 16, 1888; that he held such office and faithfully performed his duties until August 31,1890, and that the duties of the office were in no way changed between the time of the fixing of his said compensation and the end of his said term.

That on September 9, 1889, the board, by resolution of that date, assumed to reduce the compensation of the relator and the other members of the board of examiners to $120 per annum, and from September 1, 1889, till the expiration oi said term, unlawfully withheld from him the difference between said amount and the lawful compensation, amounting to $180 due to him, and refuses to pay him the same, though demanded; that there are funds in the hands of the treasurer of said board, under its control, not otherwise appropriated, sufficient to pay relator’s claim. Wherefore, he prays that a writ of mandamus issue, commanding the board to appropriate said sum of $180, and to provide for the payment of the same, with interest from August 31, 1890.

To this petition a general demurrer was filed, and the question is, Does it state facts sufficient to constitute a cause oi action against the respondent ?

The claim of counsel for the relator is that the board of education, having, in pursuance of the requirement ol the statute, fixed the compensation or salary of the members of the board of examiners, that it had no right during the continuance of his term to lower the same; and we understand that the claim (in part at least) is founded on the provisions of Sec. 20, Art. 2 of the constitution, which is 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 aflect the salary of any officer during his existing term, unless the office be abolished.”

We are of the opinion that this section does not apply to a case like his;- that the office and officers spoken of therein do not refer to such officers as a member of a board of examiners or to the officers of a municipal corporation, for instance, mayor, marshal, clerk, treasurer, etc., but to those created by the general assembly, and whose salary is to be fixed by that body. That this is the true meaning of this section and the legislative construction placed upon it, we think is shown by Sec. 1716 and 1717, Rev. Stat., which provide that the councils of municipal corporations shall prescribe what fees or compensation officers of municipal corporations shall receive for their services, which shall in no case be increased or diminished during the term for which the officer was elected or appointed. It such officers came within the provisions of Sec. 20, Art. 2, such legislation would be unnecessary. Nor does a member of a board ol examiners come within the designation oi officers of municipal corporations. They are provided for in Part 2, Title 3, under the head “Schools,” and not under Part 1, Title 12, regulating municipal- corporations. And we see no provision in the school laws prohibiting a change in the compensation of an officer during his term of office.

We think then that the board of education had the right to reduce the compensation to be paid to the relator during his term of office. But the change could not be retroactive. The allegation of the petition is that the change was made September 9, 1889, and that the board of education from September 1, 1889, withholds from the relator the difference between his salary at $300 and at $120.

We think he was entitled to the salary at the rate of $300 per annum until September 9, 1889, and the amount for those nine days so withheld should be paid to him. Unless the relator wishes to have the judgment of the Supreme Court upon this question, we have no doubt but that this matter can be arranged without further order of the court.  