
    Ellis, City Solicitor, v. Urner, Aud., et al.
    (Decided September 21, 1931.)
    
      Mr. John D. Ellis, city solicitor, Mr. Edward F. Alexander and Mr. Milton II. Schmidt, for plaintiff.
    
      Messrs. Zielonka & Kuertz, for defendants.
   Eoss, P. J.

This suit was brought by the city solicitor of the city of Cincinnati to enjoin the city auditor from drawing his warrants upon the treasurer of the city for the payment of any sums to certain deputy clerks and deputy bailiffs of the clerk of the municipal court of Cincinnati in excess of amounts payable to them at salary rates in effect prior to July 5, 1929, and to enjoin the city treasurer from paying such warrants.

The petition alleges the status of such employees prior to said date and the salaries paid each by the city under the state statutes and the municipal ordinances; alleges that such employees, with the exception of the chief deputy clerk, criminal division, were, in accordance with the Constitution of the state, its statutes, and the municipal ordinances, in the classified service, and appointed from eligible lists furnished by the municipal civil service commission of the city, according to merit and fitness, ascertained as far as practicable by competitive examinations; alleges that on July 7 [5], 1929 (113 Ohio Laws, 45), amendments to Sections 1558-30, 1558-32, 1558-33, 1558-34,1558-35, and 1558-39 of the General Code, relating to the municipal court of Cincinnati, became effective, if valid, certain of said sections of the Code being set out in full; alleges that, by virtue of Section 1558-29 of the General Code, the clerk of the courts of Hamilton county is constituted the clerk of the municipal courts of Cincinnati, and in pursuance of such amendments to the General Code has directed increases in the salaries of such employees, allegations being made of the former and new salaries; alleges that pay roll lists have been submitted to the city auditor and city treasurer, directing the payment of such increased salaries to such employees, and that such increases are not authorized by any law or ordinance of the city, and payment of such increases would be in violation of Article XY, Section 10, and Article II, Section 26, of the Constitution of the state of Ohio; that Section 1558-35, as changed, in providing that the deputy clerks and deputy bailiffs in the office of the clerk of the municipal court ‘ ‘ shall serve during the pleasure of the clerk,” and in placing said positions and other positions subject to appointment by said clerk of the municipal court in the unclassified service, was enacted by the General Assembly “in order to make it possible for the clerk of courts of Hamilton county, acting as clerk of the municipal courts of the city of Cincinnati, to appoint and promote persons in the civil service positions under his control for personal and political reasons and without regard to merit and fitness as ascertained by competitive examination or otherwise, contrary to the intent of said constitutional provision;” and alleges, further, that the municipal court of said city of Cincinnati is a court of record in said state, and that the establishment and maintenance of courts of record, including municipal courts, and the offices of such courts, are matters of general law to be provided for by the General Assembly by laws having a uniform operation and effect; that the newly imposed obligation to pay out of the city funds salaries to a large number of employees of an official not chosen by the electors, or representatives of the electors of such city, in depriving the employees of the clerk of the municipal court of the protection of civil service extended to the employees of clerks of municipal courts of other municipalities, is not provided for by laws of uniform operation in the state, and is intended to apply only to the city of Cincinnati; and that the auditor will draw his warrants, and the treasurer pay the same, pursuant to such unconstitutional legislation, unless enjoined, which payment of such increases will constitute a misapplication of the funds of the city.

The answer of the city auditor and city treasurer admits the pertinent facts alleged in the petition, and advances as their defense that in paying such increased salaries, sought to be enjoined, they are acting in accordance with the acts of the Legislature and the duties imposed by,the ordinances of the city of Cincinnati relating to the payment of money from the city treasury. The answer, otherwise, is a general denial.

The answers of the several deputies also admit the pertinent facts of the petition, and further allege that by the laws of Ohio, General Code, Sections 1558-33 and 1558-34, it is provided that, upon failure of the council of the city to prescribe an income in the minimum rate of compensation for such deputies, payable out of the city treasury, the city authorities shall pay such minimum compensation.

As a further answer such deputies allege that each is a deputy of an elective or principal executive officer, and, as such, each is authorized and required by law to act for and in the place of his principal; that each of such employees occupies a position of trust and confidence, and each occupies a confidential and fiduciary relation to his principal, which qualifications cannot be determined by competitive examination, but must be ascertained by personal knowledge and from personal confidence of the appointing officer in the vigilance and faithfulness of the deputy occupying said confidential and fiduciary relation. It is further alleged that it is impracticable to ascertain by competitive examinations the merit and fitness of applicants for such positions and offices.

As a further defense such deputies allege that the laws providing for the creation of courts inferior to the Courts of Appeals and the creation of deputy clerks and bailiffs are not laws of a general nature, and that the legislation for the creation of the municipal court of Cincinnati and the officers and employees necessary to organize and conduct the work and business of such court need not have uniform operation throughout the state.

The constitutionality of acts creating the several municipal courts of cities in the state has been passed upon by the Supreme Court, which sustains such acts. Were this a novel question, an opinion might now be expressed, which, in view of the pronouncement of the highest court in the state, would be completely out of place.

It seems to be plain that if the acts constituting such courts are not laws of a general nature, legislative acts providing for the administration of such courts, the election or appointment of judges, clerks, bailiffs, and deputy employees, are likewise not laws of a general nature, being wholly incident to the purposes and necessary functions of such courts.

The. sole issue presented by the pleadings is: Has the Legislature the power to provide for increase in salaries of deputy clerks and bailiffs of the municipal court of Cincinnati?

It must be borne in mind that injunction of the payment of the marease alone is sought. The right to pay salaries in effect previous to the legislative enactment of 1929 is not questioned.

Section 1558-33, General Code (103 Ohio Laws, 288), previous to the amendment, read as follows:

“The chief deputy clerk and not less than three other deputy clerks shall receive such compensation not less than one thousand five hundred dollars per annum as the council may prescribe and such chief deputy clerk shall receive nine hundred dollars and such three other deputy clerks shall receive six hundred dollars, payable out of the treasury of Hamilton county in quarterly installments. The other deputy clerks shall receive such compensation not less than one thousand, two hundred dollars per annum as the council may prescribe. Such part of said salaries as is payable out of the treasury of the city of Cincinnati shall be paid in monthly installments. If desired by the court, the clerk shall designate one deputy to each court room, who shall perform such duties as may be required by the court. The clerk may require any of the deputy clerks to give a bond of not less than one thousand dollars, the terms whereof shall be subject to the approval of the judges of the court. The sureties on said bonds shall be approved and said bonds shall be filed in the manner prescribed for the approval and filing of the clerk’s bond.”

This section, as amended (113 Ohio Laws, 46), reads:

“The clerk of the municipal court shall have power to appoint the following deputies:
“A chief deputy clerk for the civil division of said municipal court who shall be paid such compensation not less than two thousand three hundred ($2,300.00) dollars per annum, payable out of the treasury of the city of Cincinnati, as council may from time to time prescribe, and such additional compensation not less than nine hundred ($900.00) dollars per annum, payable out of the treasury of Hamilton county, as the county commissioners may from time to time prescribe.
“A chief deputy clerk for the criminal division of said municipal court who shall be paid such compensation not less than two thousand three hundred ($2,300.00) dollars per annum, payable out of the treasury of the city of Cincinnati, as council may from time to time prescribe, and such additional compensation not less than nine hundred ($900.00) dollars per annum, payable out of the treasury of Hamilton county as the county commissioners may from time to time prescribe.
“Two deputy clerks, each of whom shall be paid such compensation not less than one thousand eight hundred ($1,800.00) dollars per annum, payable out of the treasury of the city of Cincinnati, as council may from time to time prescribe, and such additional compensation not less than six hundred ($600.00) dollars per annum, payable out of the treasury of Hamilton county, as the county commissioners may from time to time prescribe.
“Five deputy clerks, each of whom shall be paid such compensation not less than two thousand two hundred ($2,200.00) dollars per annum, payable out of the treasury of the city of Cincinnati, as the council may from time to time prescribe.
“Six deputy clerks, each of whom shall be paid such compensation not less than two thousand ($2,000.00) dollars per annum, payable out of the treasury of the city of Cincinnati, as the council may from time to time prescribe.
“Nine deputy clerks, each of whom shall be paid such compensation not less than one thousand eight hundred ($1,800.00) dollars per annum, payable out of the treasury of the city of Cincinnati, as the council may from time to time prescribe.
“The compensation payable to any chief, deputy clerk or any deputy clerk out of the treasury of the city of Cincinnati as hereinbefore provided, shall be paid in semi-monthly installments, and where a portion of the compensation of a chief deputy clerk or a deputy clerk is payable out of the treasury of Hamilton county, as hereinbefore provided, such portion of said compensation shall be payable in quarterly installments.
“During any period for which council of said city does not prescribe an increase in the minimum rate of compensation of any chief deputy clerk or deputy clerk payable out of the treasury of the city of Cincinnati, as hereinbefore provided, the city authorities of said city shall pay such minimum compensation to such chief deputy clerk or deputy clerk; and during any period for which the county commissioners do not prescribe an increase in the minimum rate of compensation of any chief deputy clerk or deputy clerk payable out of the treasury of Hamilton county, as hereinbefore provided, the county authorities shall pay such minimum compensation to such chief deputy clerk or deputy clerk.
“If desired by the court the clerk shall assign one of said deputy clerks to each court room, who shall perform such duties as may be required by the court.
“Each of said chief deputy clerks and deputy clerks shall give a bond in a sum not less than one thousand dollars to be fixed by the clerk, conditioned for the faithful performance of his duties. Said bond shall be given for the benefit of the city of Cincinnati and of anyone who may suffer loss by reason of a default in any of the conditions of said bond. The form of such bond and the surety or sureties thereon shall be subject to the approval of the presiding judge of said court. Said bonds shall be filed in the office of the city auditor of the city of Cincinnati. The premium charged for any such bond shall be payable by the city of Cincinnati. ’ ’

While the pleadings contain many allegations of fact and conclusions of law involving other matters, the single issue presented is that above mentioned. Among the extraneous questions sought to be injected into the ease is the right of the Legislature to place the deputies mentioned in the unclassified division of the civil service, such employees previous to the enactment of the amendment of Section 1558-35, in 1929, having been in the classified service and required to take examinations to test their merit and fitness.

No new appointments have been made. The provision for a horizontal increase in the salaries of the deputies cannot be considered promotions. There has been no change of employees from one grade or classification to another. The provisions of Section 1558-35, General Code, are not involved, and are not considered.

If the Legislature has the power to create municipal courts for the several cities of the state, and to provide for the personnel and employees to carry on the necessary functions of such courts, it is manifest that it is fully within the power of the Legislature to provide who shall pay such employees and what sums they shall be paid as compensation for their services.

It is equally obvious that possession of such power and possession of the right to so fix such salaries, does not seem to be questioned by the petition. as to the basic salaries, and that the Legislature may from time to time increase or diminish the amount of such salaries.

Under the law as now defined by the Supreme Court, empowering the Legislature to create the several municipal courts, legislation affecting the administration of such courts must be held to be equally within the power of the Legislature and in conformity with the provisions of Article II, Section 26, of the Constitution of the state of Ohio.

The relief prayed for is denied, and the petition will be dismissed.

Petition dismissed.

Hamilton and Cushing, JJ., concur.  