
    MUNICIPAL JUDGES NOT STATE OFFICERS.
    Common Pleas Court of Montgomery County.
    State of Ohio, on the Relation of Chilton D. Thompson, v. Hugh Wall, as Director of Finance and as City Accountant of the City of Dayton, and Charles Herbig, as City Treasurer of the City of Dayton.
    
    Decided, February 15, 1914.
    
      Municipal Corporations — Council May he Given Power to Fix the Salary of a Municipal Court Judge — An Ordinance Awaiting Passage of the Referendum' Period is an Ordinance in Effect, When.
    
    1. Inasmuch as the judge of a municipal court is a municipal and not a state officer,- it is competent for the General Assembly to delegate to council the power to fix his compensation.
    2. An ordinance which had been passed in due form by council and signed by the mayor at the time of the taking of effect of the new charter of the city of Dayton, and was only awaiting lapse of the time within which a referendum might be resorted to before going into -force and effect, was among-the ordinances in force at the time of the taking effect of the charter.
    
      Hoy G. Fitzgerald, for relator.
    
      Lee Warren James, contra.
    
      
      Affirmed by the Court of Appeals.
    
   Snediker, J.

This is an action in mandamus. The relator says that he is and lias been since the 31st day of December, 1913, a duly elected, qualified and acting judge of the municipal court of the city of Dayton, state of Ohio; that the defendant, Hugh Wall, is the director of finance and city accountant of the said city, and that Charles Ilerbig is the city treasurer thereof; that the portion of relator’s salary as such judge to be paid by the city of Dayton was- fixed in accordance with Section 1579-49, of the General Code of Ohio laws, at the-sum of $3,500 per annum, payable in monthly installments out of the treasury of said city, by ordinance passed by the city council on the 35th day of December, 1913, and signed by the mayor on the 16th day of December, 1913, and thereafter duly published according to law; that on the 2d day of February, 1914, the relator presented to the defendant, Wall, a voucher for $291.66, the installment of his salary so payable for the month of January, 1914, and demanded a warrant on the city treasurer for that sum which defendant Wall then and there refused to issue solely for the alleged reason that the act providing for enlarging and extending the jurisdiction of the police court of the city of Dayton and changing the name of such court to the municipal court of Dayton passed by the Ohio Legislature April 17th, 1913, is unconstitutional in so far as it directed the council to fix relator’s salary as a local officer of the municipality; that thereupon relator made a demand upon the defendant, city treasurer, for the sum, which was refused; and that there was then and there money and funds in the treasury of the city of Dajdon applicable to said salary.

On the prayer of this petition an alternative writ of mandamus was issued by the court.

In answer to the petition the defendants, admitting the election, qualifications, etc., of the plaintiff as a judge of the municipal court of the city of Dayton, Ohio, and admitting their several official capacities, and admitting the passing of the ordinance of December 15th, 1913, fixing the salary of plaintiff, deny that such ordinance was in force and effect at the time of the taking effect of the charter of the city of Dayton; and aver that by provisions of the charter only such ordinances previously enacted as were in force at the time of the taking effect of the charter were continued in force; deny that there was sufficient funds appropriated by the commissioners of the city of Dayton for the payment-of said salary, and aver that the enactments of the General Assembly of the state of Ohio creating the municipal court of Dayton was in contravention of Article II, Section 20, and other provisions of the Constitution of the state.

Tn the argument of the case the following statements were made by counsel:

“Mr. Fitzgerald: And there is another matter of fact I would like to have the record show, that there was actually sufficient money in the treasury of the city of Dayton to pay the amount of money demanded; that is, whether it was for this particular judge or not, and that there was enough money appropriated in this particular fund to pay this amount of money to this particular judge, although not for that judge’s purpose.
“Mr. James: I think that is the fact.”

It will be observed that the questions here presented are purely of law and not of fact. We are not called upon to determine whether or not the amount of salary fixed by the council by the ordinance of December 15, 1913, is in excess of the amount which should be paid plaintiff. Our determination is to be solely with respect to the constitutionality or the unconstitutionality of the act creating the municipal court, and as to whether or not the ordinance which provided for the payment of salaries to the officers of said court was in force at the time of the enactment-of the charter by the city of Dayton, -and as to whether the payment should be made if (as it was agreed upon by stipulation of counsel) there is sufficient funds in the treasury of the city of Dayton at this time to pay said salary.

The first, and as we think, the most important issue here presented is as to the constitutionality of the provisions of the act creating the municipal court relative to the fixing of the salaries of the judges thereof. This part of the act is found in Section 4 and reads as follows:

“The salary of the judge of the municipal court shall be not less than one thousand dollars per annum, payable out of the treasury'of Montgomery county, in monthly installments, as the county commissioners may prescribe, and such further compensation, not less than two thousand five hundred dollars per annum, payable in monthly installments out of the treasury of the city of Dayton, as the council or other proper legal authority-may prescribe. The chief justice, who shall be specially nominated and elected as such, shall receive not less than one thousand dollars per annum, payable out of the treasury of Montgomery county in monthly installments, as the county commissioners may prescribe, and such further compensation, not less than three thousand dollars per annum, payable in monthly installments out of the treasury of the city of Dayton, as the council or other proper legal authority may prescribe.”

As we have said, the contention of counsel for the city is that this is unconstitutional for the reason that such salary should, under provisions of Article II, Section 20 of the Constitution of the state of Ohio, be fixed and determined by the state Legislature. Counsel for the relator, on the other hand, insist that the section of the Constitution referred to does not apply to the court here established for two reasons: first, because the judges of the municipal court are municipal and not state officers; second, because judges are not such “officers” as are included in the term “officers” as used in Article II, Section 20.

A consideration of the questions thus presented leads us first to inquire how and under what authority the Legislature acted in creating the municipal court of the city- of Dayton. Article IV, Section 15, of the Constitution, provides:

“Laws may be passed to increase or diminish the number of judges of the Supreme Court; to increase beyond one or to diminish to one the number of judges of the court of common pleas in any county, and to establish other courts, whenever two-thirds of the members elected to each house shall concur therein; but no such change, addition or diminution shall vacate the office of any judge; and any existing court heretofore created by law shall continue in existence until otherwise provided.”

Acting in pursuance of this authority, and particularly that part of this section which provides that laws may be passed to establish other courts whenever two-thirds oE the members elected to each house concur therein, the Legislature passed the act creating this municipal court.

The jurisdiction conferred is found at Section 6 of the act which provides that the municipal court shall have the same jurisdiction in criminal matters and prosecutions for misdemeanors or violations of ordinances' as heretofore had by the police court of Dayton, and in addition thereto shall have ordinary civil jurisdiction within the limits of said city of Dayton in the following cases:

The section then proceeds to set out the civil jurisdiction of the court which includes jurisdiction given to justices of the peace, and in addition thereto an extended jurisdiction in cases where the amount claimed by the plaintiff does not exceed five hundred dollars.

"Without going further into detail as to the exact provisions of of the act with reference to jurisdiction, it is apparent that the judges of this court, as such, have both a criminal jurisdiction under the ordinances of the city and laws of the state, and a limited civil jurisdiction.

Does the fact that the jurisdiction is of this dual character make the judge a state officer?

The primary and fundamental idea of a municipal corporation is an institution to regulate and administer the internal concerns of the inhabitants of a' defined locality in matters, peculiar to the place incorporated, or at all events not common to the state or people at large; but it is the constant practice of the states in this country to make use of the incorporated instrumentality, or of its officers, to exercise powers, perform duties, and execute functions that are not strictly or properly local or municipal in their nature, but which»are, in fact, state powers, exercised by local officers, within defined territorial limits.” Dillon on Municipal Corporations, Vol. 1, p. 62.

It was with this in mind that the court passed upon the question presented in 3 Pennewill’s Delaware Reports in the case of State, ex rel, v. Churchman, at p. 361, where it was determined that the city judge of a municipal court for the city of Wilmington is an officer of a municipal corporation. There the jurisdiction of the city judge of the municipal court for the city of Wilmington was in addition to the sole original jurisdiction in all cases of violations of any of the laws, ordinances, regulations, or Constitution of the city, and criminal jurisdiction for state offenses.

The municipal court of Wilmington was established by authority of Section 1 and Section 15 of Article IY of the Constitution of the state of Delaware which provided that:

“The General Assembly may, with the concurrence of two-thirds, establish courts other than the courts specifically named and prescribed the criminal jurisdiction that might be conferred by the General Assembly upon such inferior courts.”

In determining that the judge of that court was a municipal or local officer and not a state officer, Grubb, J., used the following language:

‘ ‘ Does the fact of a municipal corporate officer being clothed and charged with powers and duties of a public, and not merely corporate nature, under the provisions of a charter or of a special or. general state law, make him the less a corporate officer ? The theory and ground upon which every municipal corporation is created is that it is an instrumentality or agency of the state to aid the state in the civil government of that portion of its territory embraced within the prescribed corporate limits. All municipal corporations are emanations of the supreme law making power of the state and created exclusively for the public advantage (Coyle v. McIntyre, 7 Houst., 89, 96.) Therefore, in legal contemplation, every such corporation is a public instrumentality or agency created and empowered solely for public purposes and charged with duties in behalf of the state to which it owes its being, and, consequently, as it can act only through its officers, agents and servants, all these are, logically speaking, public or state agencies. And yet they 'have uniformly been regarded in this state as officers and servants of such municipal corporations and also elsewhere unless there were special constitutional or statutory provisions, or reasons of state policy or policy to the contrary.”

And Chief Justice Nicholson in the principal opinion in the case says:

“As Dillon phrases it, ‘A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the state at large. But it is impossible for municipal agencies not to be agents of the state as well. With reference to the police, see the remarks of the court in Mayor, etc., v. Vandegrift, 1 Marbel, 18. Its agencies and officers, however, do not on that account cease to be corporate officers and corporation agents, and they can not be considered to lose their character of officers of the corporation by reason of their exercise of powers and their performance of duties other than corporate. If such were” the test to be applied to their officers, municipal corporations would be found to possess very few.”

The language of these two learned judges seems to us to be very applicable to the case at bar, and as we do not find any special constitutional or statutory provisions or reason of state polity to the contrary in this state, our opinion is that as a judge of such court the relator is a municipal and not a state officer.

The relator being a municipal officer, is the fixing of his salary properly left by the Legislature to council or other local authority in the terms found in this act?

Counsel for the city, as before stated, contend that Article II, Section 20, controls, and that the salary should have been fixed definitely by the Legislature of the state. This section of the Constitution reads 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.”'

What officers are here meant?

In our opinion only such officers as are referred to as are the incumbents of offices created by the Constitution itself. The relator is not such an officer. The court here created by the Legislature is under its fullest control, and the final determination of what compensation shall be paid to an officer of such court may properly be left to the local authorities by the body which has full power to give the court its existence, regulate its jurisdiction, fix its terms, etc.

As said by Judge Brinkerhoff in the case of State of Ohio, ex rel, v. Francis M. Wright, 30 Ohio State, p. 334:

“The Constitution has not in terms placed any limit upon' the powers of the Legislature over the office and judges of the court established by itself.”

Indeed, that decision goes so far as to determine that a court created, as the municipal court of the city of Dayton was, under the provisions of Article IV, Section 15, of the Constitution, may be abolished and the office of the judges vacated by the Legislature of the state. It can not be intended that the general provisions' with reference to the courts specially named in the Constitution shall apply to such a court as is created by the Legislature under provisions of Article IV, Section 15, if this be the authority of the Legislature over the court. For instance, the provision of Section 15 that no changes, additions, or diminutions shall vacate the office of any judge, can not relate to a court of this character, if the Legislature has the authority, as has been decided by Judge Brinkerhoff, to abolish the court and vacate the office.

The municipal court of the city of Dayton is a creature of the Legislature. Its officers are municipal officers; and we do not find, and it is not our opinion, that this act is unconstitutional, for the reason that in the full authority with which it is vested the Legislature saw fit to leave the fixing of the final amount of the salary, which should be determined on as compensation for the officers of said court, to a local authority which was better qualified to determine as to what that amount should be.

It is also contended by the city, and conceded by the relator, that the ordinance of December 15, 1913, fixing the salary of plaintiff to be paid by the city of Dayton at the sum of $3,500 per annum, was subject to the provision of the act of April 28, 1913, to the effect, ‘ ‘ That any ordinance or other measure passed by the council of any municipal corporation shall be subject to the referendum except as hereinafter provided; no ordinance or other measure shall go into effect after it shall have been filed with the mayor of such municipal corporation, except as hereinafter provided. ’ ’

The city charter which took effect on the 1st day of January, 1914, among its other provisions, contains the following language :

Section 166. “All ordinances' and resolutions in force at the time of taking effect of this charter, not inconsistent with its provisions, shall continue.in force until amended or repealed.”

And the city claims that by virtue of this provision of the charter of the city of Dayton, the ordinance fixing the salary of relator was not so continued in force. This is not our opinion. We do not believe that either the charter commission which formulated the charter for submission to the people, nor the people themselves, in adopting the charter at the polls, intended that an ordinance which had been passed by the city council, and had been signed by the mayor, and was only waiting the time to go by within which a referendum might be resorted to should be not continued in force by Section 166 of the charter. We do not know what ordinances were passed at or about the time of the passage of the ordinance of December 15, 1913. Any other view of this question might become very disastrous to other ordinances passed at or about the same time and which were in the same condition on January 1st, 1914, relating to important matters of interest to the city and its people. To say that the commission, or the people, intended' that such an ordinance should not continue in force would, in .our opinion, be a very unreasonable view.

The only remaining question presented by the pleadings is aa to whether or not the salary of the relator for the month of January should be paid, for the reason that no appropriation had been made by the commission of the city of Dayton for the purpose, to the amount which he claims. The stipulation, agreed to by counsel and already referred to, presents a condition which in our opinion makes it the duty of the officers, against whom the writ was issued, to pay relator’s salary, notwithstanding no appropriation had been made by the commission for that purpose. If there is sufficient money in the fund to pay relator, the ordinance, passed by the council, having been determined to be- valid and in force, his salary should be paid.

Let an entry be drawn in conformity with this finding of the court.  