I dissent from the conclusion reached by the majority.
In 1927 the Supreme Court of Ohio held in State, ex *Page 256 rel. Holmes, v. Thatcher, 116 Ohio St. 113, that judges of a Municipal Court were "cases not provided for in this Constitution" as such phrase was used in Section 20 of Article II of the Constitution, and, therefore, their salaries could not be increased during an existing term.
Section 20 of Article II then, as now, provided:
"The General Assembly, in cases not provided for in thisConstitution, 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. (Emphasis added.)
In an earlier case, State, ex rel. Metcalfe, v. Donahey (1920), 101 Ohio St. 490, a judge of this Court of Appeals brought an action in mandamus against the Auditor of state to compel the payment of an increase in salary voted by the General Assembly after the commencement of his term of office.
Section 20 of Article II was then in effect. The relator argued that the then prevailing provisions of Section 14 of Article IV did not preclude an increase in his salary as an appellate judge because the limitations therein imposed applied only to members of the Supreme Court and the Common Pleas Courts, and a member of a Court of Appeals was not in the class of "cases not provided for in this Constitution."
Section 14, Article IV, then read as follows:
"The Judges of the Supreme Court, and of the Court of Common Pleas, shall, at stated times, receive, for their services, such compensation as may be provided by law, which shall not be diminished, or increased, during their term of office; * * *. All votes for either of them, for any elective office, except a judicial office, under the authority of this state, given by the General Assembly, or the people, shall be void."
In its decision in the Metcalfe case, supra, the Supreme Court referred to an earlier decision, Fulton v. Smith (1919),99 Ohio St. 230, in which it held that the provisions of the last sentence of Section 14, Article IV, relative to votes cast was applicable only to judges of the Supreme *Page 257 Court and the Common Pleas Court, but the provision of Section 20, Article II limiting increases during term would apply to a judge of the Court of Appeals. The court concluded its reasoning by saying, at page 493:
"The question is, What was the intention of the constitution-makers at the time Section 14, Article IV, was adopted? We can conceive of no process of reasoning by which it could be said that the constitution-makers intended by Section 14, Article IV, to give assent to the increase of salaries, during the term, of incumbents of judicial positions not then in existence. * * * There is no other provision of the Constitution relating to the validity of votes which may be cast for judicial officers for any elective office other than a judicial office.But in this case there is an express provision in Section 20, Article II, which directly prohibits the application of a statute which increases the salary of any officer during his term of office. We are admonished that the court shall not by implication extend a provision of the Constitution so as to disregard an express provision." (Emphasis added.)
On May 7, 1968, Section 1 of Article IV, Ohio Constitution, was amended to read:
"The judicial power of the state is vested in a Supreme Court, Courts of Appeals, Courts of Common Pleas, and such courts inferior to the Supreme Court as may from time to time be established by law."
Paragraph (B) of Section 6 of Article IV of the Constitution of Ohio, as adopted May 7, 1968, in pertinent part provides:
"The judges of the Supreme Court, Courts of Appeals, and of the Courts of Common Pleas, shall, at stated times, receive, for their services such compensation as may be provided by law, which shall not be diminished during their term of office."
The situation confronting this court is analogous to that previously discussed in the Metcalfe case, supra.
As was the case in that fact situation where the Court of Appeals was not one of the cases provided for (in accordance with Section 20, Article II), in the instant case *Page 258 County Courts and Municipal Courts are not such courts in which increases of salary during term are permissible — they likewise being officers not provided for.
A proposed amendment to Section 20, Article II, was contained in Amended Senate Joint Resolution No. 11 (101st General Assembly), the same being defeated in the election held in November, 1955. Section 20 stands as previously quoted, and is a valid limitation of the power of the General Assembly to change the salary of any officer "in cases not provided for in thisConstitution" during his existing term.
Where provision has been made, such as the previously referred to amendments of May 7, 1968, said section does not apply, otherwise it remains in full force and effect.
The provisions of Section 6 (B) of Article IV of the Constitution of Ohio are clear, specific and require no interpretation. Had the constitution-makers wished to include the lesser courts, they had only to name them in that section.
My conclusion is reached with much relutance, well recognizing the yeoman service which our brethren are giving daily in the lesser courts of our state. Increasing case loads are fast turning their legislatively intended part-time endeavors into full time service in many of their districts.
In the exercise of my duty, however, I cannot reach a conclusion which would lead to an increase in salaries during term, where the clear mandates of the Constitution and prior decisions of the Supreme Court indicate otherwise.
In my opinion, the judgment of the trial court should be affirmed. *Page 259