State ex rel. Hess v. City of Akron

• Decision Date: 15 July 1936
• Citation: 10 N.E.2d 1,56 Ohio App. 28
• Parties: STATE ex rel. HESS v. CITY OF AKRON et al.
• Court: Ohio Court of Appeals

10 N.E.2d 1

56 Ohio App. 28

STATE ex rel. HESS v. CITY OF AKRON et al.

Court of Appeals of Ohio, Ninth District, Summit.

July 15, 1936

Original action in mandamus by the State, on relation of Russell A Hess, against the City of Akron and others to compel the payment of a certain sum claimed to be due the relator as unpaid salary for services.-[Editorial Statement.]

Writ denied.

F. A Rees and A. J. Koval, both of Akron, for relator.

C. C Benner and Harold L. Mull, both of Akron, for respondents.

MATTHEWS, Judge.

This is an original action in mandamus to compel the officers of the City of Akron to take the necessary proceedings to pay from unappropriated funds in the city treasury to the relator, Russell A. Hess, the sum of $979.07, claimed to be due him as unpaid salary for services as deputy bailiff of the municipal court of Akron during the years 1931, 1932, 1933, and 1934.

The case was presented upon the admissions of the pleadings and an agreed statement of facts.

In the legislative act creating the municipal court of Akron, the judges of that court were authorized to appoint such deputy bailiffs as they should deem necessary to serve during the pleasure of the appointing power. Sections 1579-540 and 1579-542, General Code. Under this authority, the relator was appointed prior to October 15, 1931, and held the position until January 31, 1934. By the terms of section 1579-540, General Code, the salary of deputy bailiffs was fixed at $2,100, payable in monthly installments out of the treasury of the City of Akron.

The law requires the performance of the statutory duty of passing an appropriation ordinance by the city council, and the drawing of a warrant by the director or finance before money can be drawn from the treasury. The writ is sought to compel the passage of such an appropriation ordinance and the drawing of such warrant.

It is conceded that the judges of the municipal court of Akron under the law included in their budget an item for salaries of deputy bailiffs; that during the period involved in this case the council of the City of Akron passed appropriation ordinances in conformity to the budgetary requests of the municipal court of Akron; and that the relator was paid during the period in accordance with the appropriation ordinances enacted in conformity to the court's request.

However, the amount requested, appropriated, and paid was less than the amount of the salary of a deputy bailiff provided by section 1579-540, General Code. The economic condition during those years was the reason for the departure from the statutory standard of compensation.

It appears from the allegations of the answer of the respondents that prior to October 15, 1931, the judges of the municipal court of Akron took cognizance of the reduction in public revenues to such an extent that they were insufficient to meet the normal expenses of the municipal government; and they considered means of reducing the expenses of the court to meet the changed conditions. So far as the deputy bailiffs were concerned, the judges had the clear right to reduce the number of deputy bailiffs and thereby effect an economy, as the deputy bailiffs held office at the pleasure of the judges. This method was not resorted to. By and with the consent of the relator, the court retained the same number of deputy bailiffs, but reduced the amount of their budgetary request for deputy bailiff salaries below the statutory amount for the number of bailiffs retained by the court. By and with the consent of the relator, this aggregate amount was apportioned among the deputy bailiffs pro rata, and for more than three years the relator presented his voucher semimonthly for his proportion and, upon receiving payment, receipted, in all but seven instances, a pay roll sheet which expressly recited that the amount received by him was the ‘am't due,’ and in the other seven instances signed pay rolls reciting above his signature ‘Received pay in full to date.’

In the respondents' brief it is said: ‘The sole defense which respondent presents in opposition to the relator's application for the writ is on the question of implied waiver or waiver by estoppel.’

On the facts presented, we believe the respondents were justified in refusing to act on the demand of the relator, and that the writ should be denied.

We see no essential difference between this case and that of Phillips, Ex'x, v. City of Cleveland, 130 Ohio St. 49, 196 N.E. 416.In that case, certain judges of the municipal court of Cleveland, although protected by constitutional provision against reduction of their salaries, agreed among themselves to accept a reduction. After the death of one of these judges, his executrix sued to recover the amount of the reduction. It was claimed that the agreement was without consideration, and, in any event, was void as against public policy. Discussing these contentions and the contention of the defendant that the transaction was executed and could not be disturbed, the Court of Appeals of the Eighth Appellate District said:

‘It was an agreement entered into for the benefit of the city of Cleveland and its inhabitants. The city accepted this agreement and acted upon it and to some extent at least based its financial expenditures upon this agreement being carried into effect.

‘The contract having been executed cannot now be repudiated.

‘Discussing for a moment the proposition that this was, if anything, a gift without consideration, suffice it to say that when a thing has been given and the title to it has, by such gift, been transferred, it cannot be reclaimed by the donor.

‘It is argued that this arrangement was against public policy and in violation of Article II, Section 20 of the Constitution of Ohio, which Article [section] provides for the fixing of terms of office, and the compensation of officers, but provides...