Gobrecht v. City of Cincinnati

• Decision Date: 27 February 1894
• Citation: Gobrecht v. City of Cincinnati, 51 Ohio St. 68, 36 N.E. 782 (Ohio 1894)
• Parties: GOBRECHT v. CITY OF CINCINNATI.
• Court: Ohio Supreme Court

36 N.E. 782

51 Ohio St. 68

GOBRECHT v. CITY OF CINCINNATI.

Supreme Court of Ohio.

February 27, 1894

Error to circuit court, Hamilton county.

Action by one Gobrecht against the city of Cincinnati to recover a balance alleged to be due as salary. A judgment for defendant on demurrer to the petition was affirmed at circuit, and plaintiff brings error. Reversed.

The plaintiff's petition, filed in the court of common pleas of Hamilton county, August 6, 1892, set forth that he then was, and since prior to February 19, 1892, had been, a member of the board of legislation of the city of Cincinnati; that he had attended all regular meetings of the board on and subsequent to the above date, being present during the entire session of each meeting; that he had been compensated for each of said attendances, at the rate of five dollars per meeting; that defendant has refused to pay plaintiff any greater compensation, and asking judgment for $125. A demurrer to the petition was sustained, and a judgment for defendant rendered, which, upon error to the circuit court was affirmed.

Syllabus by the Court

1. Compensation of a public officer fixed by a provision that ‘ each member of the board who is present during the entire session of any regular meeting, and not otherwise shall be entitled to receive five dollars for his attendance,’ is not ‘ salary’ within the meaning of section 20, art. 2, of the constitution, which provies, that: ‘ 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.’

2. An increase in the compensation of such officer during his term is not prohibited by the constitution.

3. An action at law against the city is a proper form of remedy to determine plaintiff's right to the increased pay.

Wm. H. Pope, for plaintiff in error.

Theodore Horstman, for defendant in error.

SPEAR, J. (after stating the facts).

Two questions arise upon the record: (a) Can the compensation of members of the board of legislation be increased during the existing term? (b) Is an action at law the proper form of remedy to recover compensation, where payment is refused by the city, or must resort be had to a proceeding in mandamus? At the commencement of the term of plaintiff as a member of the board of legislation, the compensation provided by statute was five dollars for attendance during the entire session of any regular meeting. By the act of February 19, 1892, it was provided that ‘ each member of the board who is present during the entire session of any regular meeting, and not otherwise, shall be entitled to receive ten dollars for his attendance, and shall receive no other compensation whatever.’

1. It is contended that section 20, art. 2, of the constitution prohibits an increase of compensation during the existing term. That section is 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.’ The question, therefore, is whether or not the pay of a member of the board is ‘ salary’ within the meaning of the above section. We think it is not. A...