Schultz v. Garrett

J. P. Celebrezze, J. The Ohio Constitution designates the power to establish the salaries of public officers to the General Assembly, subject to constitutional limitations. Pursuant to this authorization, the General Assembly enacted R.C. 1901.31 (C) which established the compensation of the municipal clerks of courts. At times relevant to the present case, R.C. 1901.31 (C) provided in pertinent part: “In territories having a population * * * of one hundred thousand or more * * * the clerk shall receive annual compensation in a sum equal to eighty-five per cent of the salary of a judge of such court. * * *” The section also established a limiting factor which would not permit the salary of a municipal clerk to exceed that of the clerk of courts of the county in which the municipality was located. The stipulated facts reveal that the salary of a county clerk was increased in January 1981. However, appellant’s request for an increase equal to that given the Clark County Clerk of Courts was denied. Section 20, Article II of the Ohio Constitution was cited as the basis of the denial. It states: “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.” Relying on the above-noted section and a prior interpretation of its provisions in State, ex rel. Edgecomb, v. Rosen (1972), 29 Ohio St. 2d 114 [58 O.O.2d 312], the court of appeals upheld the denial of the salary increase requested by appellant. In Edgecomb, the Clerk of the Cuyahoga Falls Municipal Court sought an increase in salary following an Act by the General Assembly which provided for an increase in the salaries paid to municipal court judges. The Edgecomb court determined that the clerk was not permitted to take advantage of the salary adjustment given the judges, which by the percentage formula of R.C. 1901.31 (C) increased her salary, because of the in-term increase prohibition [134] of Section 20, Article II of the Constitution. It was reasoned that any action by the General Assembly which precipitated an in-term salary change triggered the constitutional bar, even though the legislation was not specifically directed towards the salary of the clerk. This court today rejects the reasoning of Edgecomb. A close examination of Section 20, Article II discloses that the prohibition of the section is directed towards a direct legislative adjustment of the formula used in calculating the salary of a clerk. The section states in pertinent part: “The general assembly * * * shall fix * * * the compensation of all officers; but no change therein shall affect the salary of any officer during his existing term * * *.” (Emphasis added.) The language of the section directs that the General Assembly may not institute a “change therein.” However, in the present case no such change is involved in the “fix[ing] * * * [of] the compensation of * * * officers * * What the General Assembly did was change the provisions of R.C. 325.08, the standard used for calculating the salary of a county clerk of courts. This change had an indirect effect on the salary of a municipal clerk in those areas where the county clerk’s salary was a ceiling limit on the municipal clerk’s pay. The change in R.C. 325.08 was in no way a change in the formula used to fix the compensation of a municipal clerk. Thus, it was not a change which, by the provisions of the Ohio Constitution, could not be given to municipal clerks while in term. The dissent in Edgecomb, supra, noted that the act of increasing a municipal judge’s salary was not done by the legislature for the purpose of increasing the salaries of municipal clerks.2 The same can be said of the change present herein involving the adjustment of the salaries of county clerks. Where no intent to provide an in-term salary increase is found in a legislative act, the mere fact that such an increase is an incidental result of the act does not render the increase unconstitutional pursuant to the terms of Section 20, Article II of the Ohio Constitution. As this court held in State, ex rel. Mack, v. Guckenberger (1942), 139 Ohio St. 273 [22 O.O. 311], in paragraph three of the syllabus: “A statute, effective before the commencement of the term of a common pleas judge, whereby his compensation is automatically increased during his term by reason of the increase of the population of his county as shown by a later federal census, is not in conflict with Section 14, Article IV of the Constitution, which provides that the compensation of a judge of the Common Pleas Court ‘shall not be diminished or increased during his term of office.’ ” The increase appellant seeks, occasioned by the amendment of R.C. 325.08, is virtually identical to the increase allowed in Guckenberger. In both cases there was no change whatsoever in the statutory sections which set [135] forth the formula for the calculation of the officers’ salaries. The only change present in the two cases was in one of the factors used in the calculation of the salary of the officers.3 When a statute setting forth the formula for the compensation of an officer is effective before the commencement of the officer’s term, any salary increase which results from a change in one of the factors used by the statute to calculate the compensation is payable to the officer. Such increase is not in conflict with Section 20, Article II of the Constitution when paid to the officer while in term. Section 20, Article II of the Constitution forbids the granting of in-term salary increases to officers when such changes are the result of direct legislative action on the section(s) of the Revised Code which are the basis of the officers’ salaries. Such is not the case in the present appeal. The occasion which changed appellant’s salary was an amendment of R.C. 325.08 — not a change in R.C. 1901.31 (C), the section setting forth the formula for calculating the salary of appellant. For the foregoing reasons, the salary sought by the appellant should have been granted. Accordingly, we reverse the judgment of the court of appeals and hold that appellant is entitled to his salary increase occasioned by the amendment of R.C. 325.08. Judgment reversed. Celebrezze, C.J., Sweeney and C. Brown, JJ., concur. W. Brown, Locher and Holmes, JJ., dissent. Footnotes [2] State, ex rel. Edgecomb, v. Rosen (1972), 29 Ohio St. 2d 114 [58 O.O.2d 312], at 121. [3] In State, ex rel. Mack, v. Guckenberger, supra, the statute which set the formula for calculating the salary of a common pleas court judge used the population of the county as a factor in determining salary. Relator-judge sought an increase in his salary based on the 1940 federal census which reflected a population increase in his county making a pay increase in order. At the time relator sought the increase, the Ohio Constitution had a similar prohibition to in-term salary adjustments for common pleas court judges. The constitutional provision under consideration in Guckenberger is the same which is before the court today. In the present case, appellant’s salary was fixed by a formula set forth in R.C. 1901.31 (C) which did not allow a municipal clerk to earn more than the clerk of courts in the county where the municipality was located. The county clerk’s salary was increased in 1981. It was this change in one of the factors used by the formula set forth in R.C. 1901.31 (C) which formed the basis for appellant’s requested salary increase.