Donahey v. State ex rel. Marshall
Donahey v. State ex rel. Marshall
Opinion of the Court
The relator, defendant in error, commenced a proceeding in mandamus in the court of appeals of Franklin county to require the auditor' of state to pay him as a member of the public utilities commission the increased compensation provided by Section 2250-2, General Code, passed January 22, 1920.
The petition avers that the relator was appointed to the office March 21, 1917, for the term of six years, at which time his duties were limited to those specified by provisions of the General Code in force at that time, but that since then new duties have been imposed upon relator as a member of the commission, which are not in any way germane or incident to those required of him at the time of his appointment. The petition sets out a number of these duties in detail.
To this petition the plaintiff in error demurred. The demurrer was overruled, and, as the auditor did not desire to plead further, judgment was entered in favor of the relator. This proceeding is brought to reverse the judgment below. The demurrer of the defendant below was predicated on the provisions of Section 20, Article II of the Constitution, viz.: “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 relator contends that this constitutional provision has no application here for two reasons: first, because the constitution refers only to salaries payable out of public funds raised by taxation, and not to special assessments which are in the nature of fees and costs; second, that new duties have been imposed upon the relator as a member of the commission, entirely foreign to those required of him when he became a member.
The amended section, under which the relator claims increased compensation, Section 2250-2,
By the terms of the salary act above quoted, each of the members of the commission is entitled to receive an annual salary of six thousand dollars, payable in the same manner as the salaries of other state officers are paid.
It is conceded that the members of the commission are officers and that this section fixes their salary as such officers. The provisions of Section 20, Article II of the Constitution, are comprehensive. Those provisions prohibiting a change affecting “the salary of any officer during his existing term,” are not limited to officers whose salaries are
In Twiggs v. Wingfield, 147 Ga., 790, it is said: “A public officer takes his office cum onere, and so long as he retains it he undertakes to perform its duties for the compensation fixed, whether such duties be increased or diminished.” See also State, ex rel. Noble, v. Mitchel, 220 N. Y., 86; State, ex rel. Bryant, v. Donahey, Auditor, 96 Ohio St., 247, and Board of County Commissioners of Creek County v. Bruce, 51 Okla., 541, 152 Pac. Rep., 125.
No provision of our statutes has been called to our attention which in our judgment imposes new duties upon the relator not within the scope of the purposes and contemplation of the legislature in the creation of the department of which the relator is a member. The commission has not been invested with a new office. The functions of the office and the object of every new duty are simply to better effectuate the original end desired. It must be remembered that Section 2250-2, General Code, makes no reference to any new duties or to any extra service. It is general and simply fixes the annual salary of the public utilities commission members at $6,000 payable in same manner as salaries of the state officers are fixed.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.