
    COMPENSATION OF COUNTY COMMISSIONERS.
    Common Pleas Court of Adams County.
    State of Ohio, ex rel Shively, Prosecuting Attorney, v. G. B. Lewis.
    Decided, 1914.
    
      County Commissioners — Construction of Statute Fixing their Official Year and Rate of Compensation.
    
    1. The phrase “for the year 1911” in Section 3001, General Code, as amended May 31, 1911 (Yol 102, O. L., 514), means the official year of the county commissioners beginning on the third Monday of September, 1910, and ending on the third Monday of September, 1911; and the phrase “for the year 1912” means the succeeding official year for said officers, or the first year of the term of those commissioners elected in 1910.
    2. The clause “that the compensation of each county commissioner for the year 1912, and each year' thereafter, shall not in the aggregate exceed 115 per cent, of the compensation paid to each county commissioner for the year 1911” is a proviso, and controls and over-rides the purview or general provisions of the áct fixing the minimum compensation at nine hundred dollars with an additional compensation of three dollars on each full one hundred thousand dollars of the tax duplicate above five million dollars on December 20, 1911.
    3. The compensation paid each county commissioner of Adams county, Ohio, for the year 1911 being seven hundred and fifty dollors, it follows that the compensation of each county commissioner beginning the term on the third Monday of September, 1911, and thereafter is but eight hundred and sixty-two dollars and fifty cents, and any amount drawn from the county treasury above that sum must be refunded.
    
      F. A. Shively, Prosecuting Attorney, for plaintiff.
    
      Stephenson & Mehaffey, contra.
   Corn, J.

Heard on demurrer to tbe answer.

This is a friendly action brought for the purpose of determining the compensation of the county commissioners of Adams county for the term beginning the third Monday in September, 1911, and for subsequent terms, and necessarily involves the construction of Section 3001 of the General Code of Ohio as amended May 31, 1911 (102 O. L., 514) .

The county commissioners claim that >a proper construction of this section permitted them to receive the sum of $1,131 per annum upon a tax duplicate of $12,700,000 on December 20, 1911, and they, in fact, did draw that amount of money for each year of their term. The salary paid the county commissioners for the year 1911 as shown by the petition was $750, and the claim of the prosecuting attorney is that a proper construction of said section authorizes a compensation of $862.50 per annum and no more, and the commissioners having drawn $1,131, they have overdrawn their salary to the extent of $268.50 each year, and therefore each of them should return to the county treasury the sum of $537. The question is raised by a demurrer to the answer.

The section before the amendment provided a minimum salary of $750 per annum and an additional $3 for each full $100,000 in excess of $5,000,000 on the tax duplicate of the county on the 20th day of December preceding the date of assuming the office. It was evidently the intention of the Legislature by the amendment to make the minimum salary $900, but at the same time to prevent an increase over the former salary of more than fifteen per cent.

When the defendánt Lewis came into office, September 18, 1911, the section as amended was the only statute in force fixing his compensation, the other having been repealed, and it is conceded that upon the amount of the tax duplicate of Adams county on December 20,1911, he would be entitled to $1,131 per annum, but for the limitation of one hundred and fifteen per cent, of the compensation paid “for the year 1911.”

The amendment in question could not apply to the commissioners in office at the time of its enactment. Section 20, Article II, Ohio Constitution; State, ex rel, v. Raine, Auditor, 49 O. S., 580.

To ascertain the meaning of this act we must understand what the Legislature intended by the phrases “for the year 1911” and “for the year 1912.” These can not mean the calendar years, for commissioners are not paid an annual compensation based upon tbe calendar year; besides, in tbe calendar year of 3911 two commissioners served and under this law two different salaries are paid in monthly installments — one to the incumbent at the time of the passage of the act and another and different compensation paid to the commissioner assuming office on the third Monday in September,' 1911. Therefore, if any meaning at all may be given this phrase it must be read “for the (official) year 1911.” Such interpolation of words is permissible where the meaning of the Legislature is plain and unmistakable, and is necessary to carry out that meaning and make the statute sensible and effective. Black on Interpretation of Laws, 84.

I can not say that the meaning of the Legislature in this instance is plain and unmistakable, but to give it any meaning at all the word “official” must be supplied. The Attorney-General of Ohio reached the same conclusion in an opinion of the Board of Inspection and Supervision of Public Offices, dated August 10, 1911. Hence, we conclude the phrase “for the year 1911” means the official year of the county commissioners, beginning on the third Monday in September, 1910, and ending on the third Monday in September, 1911, and the phrase “for the year 1912”' means the official year beginning on the third Monday in September, 1911, or the first year for the commissioners elected in 1910.

It is true that the actual salary is based upon the amount of the tax duplicate on December 20, 1911, although they begin, their terms in September, and it may be said that such a construction makes it impossible to be performed, because the salary is payable in monthly installments, and for the first three months it is impossible to know the amounts to pay. This provision as to monthly payments is directory only, and even if mandatory the difficulty would be" temporary and ought to yield in favor of the validity of a legislative enactment.

A more serious question, however, arises here. It appears that the Legislature intended to fix a minimum salary of $900, but it also appears that the Legislature just as fully intended that there should not be-an increase of more than fifteen per cent, over the salary of the preceding year. The salary paid in Adams county for the year 1911 being $750, it follows that the salary for the year 1912 and thereafter can not exceed $862.50, if the one hundred and fifteen per cent, clause prevails. So far, therefore, as Adams county is concerned, and perhaps other counties in the state, one or the other of these clauses in the section must yield.

Immediately following the clause fixing the minimum compensation and the additional compensation for a tax duplicate over $5,000,000 is this clause: “That the compensation of each county commissioner for the year 1912, and each year thereafter, shall not in the aggregate exceed one hundred and fifteen per cent, compensation paid to each county commissioner for the year 1911.” This clause is the latest expression of the Legislature on the subject and is in the nature of a proviso which is defined by Black on Interpretation of Laws, 270, to be “¡a clause added to the statute or to ,a section or part thereof which introduces a condition or limitation upon the operation of the enactment, or makes special provision for cases excepted from the general provisions of the law, or qualifies or restrains its generality or excludes some possible ground of misinterpretation of its extent.” The same author on page 273 says the natural and appropriate office of a proviso to a statute or to a section thereof is to restrain or qualify the provisions immediately preceding it; and it is further stated on page 278 of' the same authority: “But a proviso which is repugnant to, the purview of the act will over-ride and control the latter.”

I am aware that our Supreme Court have said that the rule, that a repugnant proviso nullifies the body of the act, is a rule of necessity and last resort, .and that to apply it in any case is to stultify the Legislature, yet it is impossible to give force and effect in Adams county, at least, to both clauses of this act, one providing a minimum compensation of $900 and the other limiting the compensation to one hundred and fifteen per cent, of that paid for the year 1911.

It follows, therefore, that the proper annual compensation for the county commissioners of Adams county beginning with the term of the defendant Lewis is $862.50, and that the demurrer to the answer is well taken and must be sustained; and it is judgment of the court that the plaintiff recover from the defendant the sum of $537 and costs of this action. The same entry may be made in the cases of the other two commissioners.  