
    Gobrecht v. Cincinnati.
    
      Public Officers — Salary'—Compensation—Increase of — Not Unconstitutional — Remedy of Officer.
    
    1., Compensation of a public officer fixed by a provision that “ each member of the board who is present during the entire session of any regular meeting, and not otherwise, shall be entitled to receive five dollars for his attendance,” is not “ salary” , within the meaning of section 20, of article 2, of the constitution, which provides 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 tbe salary of any officer during bis existing term, unless tbe office be abolished.”
    2. An increase in tbe compensation of such officer during bis term is not prohibited by the constitution.
    3. An action at law against the city is a proper form of remedy to determine plaintiff’s right to the increased pay.
    (Decided February 27, 1894.)
    Error to the Circuit Court of Hamilton county.
    The .plaintiff’s petition, filed in the court of common pleas of Hamilton county, August 6, 1892, set forth that he then was, and since prior to February 19, 1892, had been, a member of the board of legislation of the city of Cincinnati; that he had attended all regular meetings of the board on and subsequent to the above daté, being present during the entire session of each meeting; that he had been compensated for each of said attendances, at the rate of five dollars per meeting; that defendant has refused to pay plaintiff any greater compensation, and asking judgment for one hundred and twenty-five dollars.
    A demurrer to the petition was sustained, and a judgment for defendant rendered, which, upon error to the circuit'court, was affirmed.
    
      William H. Pope, for plaintiff in error:
    An action of debt is generally conceded to be the proper remedy to recover compensation for official services rendered to a municipal corporation. People v. Thompson, 25 Barb. 73; Steubenville v. Culp, 38 Ohio St. 18, 43 Am. Rep. 417; O'Leary v. New York Board of Education, 93 N. Y. 1, 45 Am. Rep. 156.
    
      Acceptance of a less sum does not estop to claim amount actually due. Montague v. Massey, 76 Va. 307.
    The presumption is that the legislative power is not restricted and the burden is on the party asserting the existence of a limitation to establish the fact. Lehman v. McBride, 15 Ohio St. 573.
    In Thompson v. Phillips, 12 Ohio St. 617, the supreme court, considered the meaning of the word “salary” as used in the section of the constitution under consideration.
    We must give to the language employed in the constitution its plain and natural import as understood by its framers and the people who adopted the instrument. And we may look to the debates as aids to ascertain that meaning. Cass v. Dillon, 2 Ohio St. 621; State v. Kennon, 7 Ohio St. 563.
    Salary is defined to be “ the recompense or consideration stipulated to be paid to a person for periodical services, usually a fixed sum to be paid by the year, half year, or quarter.” 5 Century Dict. 5310.
    In Indiana a per diem allowance would be termed fees or wages. Cowden v. Huff, 10 Ind. 85.
    
      Theodore Horstman, for defendant in error:
    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 is abolished. Const, art. 2, § 20.
    The following are the definitions of the word “salary,” as given in the leading lexicons:
    
      “The recompense or consideration stipulated to be paid to a person for services; annual or periodical wages or pay; hire. ”
    Webster.
    “An annual or periodical payment for services; —a stipulated periodical recompense.”
    Worcester.
    “The recompense or consideration stipulated to be paid to a person periodically for services.”
    Century Diet.
    “The reward paid to a public officer for the performance of his official duties.” Bouvier, Law Dict. 492; State v. Raine, 49 Ohio St. 580.
    The remedy of plaintiff in error, if any, was mandamus. Merrill, Mandamus, § 136, citing Huff v. Knapp, 5 N. Y. 65; McBride v. Grand Rapids, 47 Mich. 236; State v. Cleveland, 22 Week. L. Bull. 113.
   Spear, J.

Two questions arise upon the record: (a) Can the compensation of members of the board of legislation be increased during the existing term? iff) Is an action at law the proper form of remedy to recover compensation, where payment is refused by the city, or must resort be had to a proceeding in mandamus?

At the commencement of the term of plaintiff as a member of the board of legislation the compensation provided by statute was five dollars for attendance during the entire session of any regular meeting. By the act of February 19, 1892, it was provided that “each member of the board who is present during the entire session of any regular meeting, and not otherwise, shall be entitled to receive ten dollars for his attendance, and shall receive no other compensation whatever.”

It is contended that section 20, of article 2, of the constitution, prohibits an increase of compensation during the existing term. That section 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 affect the salary of any officer during his existing term, unless the office be abolished. ”

The question, therefore, is, whether or not the pay of a member of the board is “salary” within the meaning of the above section?

We think it is not. A general definition of salary includes compensation. General definitions, do not, however, cover all cases. Salary is compensation, but, under the section quoted, compensation is .not, in every instance, salary. The point is emphasized by this court in the case of Thompson v. Phillips, 12 Ohio St. 617, where it is said that “it is manifest from the change of expression in the two clauses of the section that the word ‘salary’ was not used in a general sense, embracing any compensation fixed for an officer, but in its limited sense, of an annual or periodical payment for services — a payment dependent on the time and not on the amount of the service rendered.” And it was there held that a percentage compensation allowed by law to a public treasurer for official duties, could be altered during his term. It is the “salary” which shall not be changed during the term, not necessarily, the compensation.

We think the compensation in the ease at bar comes within the principle of the case cited, although a per diem compensation. It is not, within the meaning of the section quoted, “salary. ” Hence, an increase in the pay of a member during his term, is not prohibited by the constitution.

Nor is this conclusion inconsistent with the holding in The State ex rel. v. Raine, 49 Ohio St. 580. The act of April 8, 1886, gave to the commissioners of Hamilton county a salary of $2,000 per year each, and necessary traveling expenses when traveling outside the county' on official business. The amendment under review undertook to give them, for expenses, $1,000 per annum additional. The holding is that the addition, though in terms for expenses, was in effect an increase of salary, which was unauthorized as applied to the existing term of a commissioner in office when the increase was made.

We see no reason why an action at law was not proper. A real question as to the right of the plaintiff to the increased pay existed. It is not important to determine whether or not plaintiff would have been entitled to a writ of mandamus against the officer of the city charged with the duty of issuing warrants for the pay of the city officers. It is enough to know that the plaintiff has a clear legal right to pursue the ordinary and approved remedy of an action at law against the city. Ordinarily, where such right exists, and the remedy by its enforcement is adequate, mandamus will not lie. And it is not difficult to imagine a case where, by reason of the existence of a real question as to the relator’s right to additional compensation the refusal of an accounting officer to issue a warrant until the question of the plaintiff’s right to it had been determined in the ordinary way, might be sustained even though the court might be of opinion that, in an action at law, the claimant would be entitled to recover.

The judgment will be*, reversed a/nd the cause remanded with direction to overrule- the demurrer to the petition and for fu/rther proceedings.  