#### Hull, Exrx., Appellee, *v.*City of Cleveland, Appellant.

(No. 20224

Decided June 12, 1946.)

*Messrs. Docker & Schivarts,*for appellee.

*Mr. Lee C. Rowley*and *Mr. Charles W. White,*for appellant.

Hildebrant, P. J.

This is an action for money only, instituted in the Municipal Court of the city of Cleveland, for a claimed deficiency of $1,500, under the *88minimum required, by Section 1579-3, General Code, in salary as municipal judge for the year 1934.

Defendant interposed a demurrer, specifically setting up as a bar to the action the six-year statute of limitation, Section 11222, General Code, or the ten-year statute, Section 11227, General Code. The court overruled the demurrer, and the defendant declining to plead further, entered judgment for plaintiff for the full amount.

The appeal is here on questions of law.

The petition shows on its face plaintiff’s fiduciary capacity, the election, qualification and service of plaintiff’s decedent as municipal judge for a six-year term, beginning January 1, 1933, and ending December 31, 1939, and pleads that part of Section 1579-3, General Code, requiring the city to pay its municipal judges “not less than six thousand dollars per annum payable .in monthly instalments out of the treasury of the city of Cleveland, as the council may prescribe.” It further alleges that in the year 1934 only $4,500 in salary from the city was paid, leaving the deficiency of $1,500 sued for here.

This suit was filed July 2, 1945. Viewing the facts most favorably to plaintiff, the deficiency consists of the salary instalments due for the last three months of the year 1934,.so that the cause of action accrued at the latest on January 1, 1935.

It is contended for the demurrer that the suit being for a deficiency of salary required by the statute, it forms the basis of plaintiff’s claim and is obviously barred by Section 11222, General Code, providing as follows:

“An action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within *89six years after the cause thereof accrued.”

It is further claimed that if Section 11222, General Code, be not applicable, then the claim is also obviously barred by Section 11227, General Code, providing:

“An action for relief not hereinbefore provided for, shall be brought within ten years after the cause thereof accrued. This section does not apply to an action on a judgment rendered in another state or territory.”

Plaintiff makes the bare, unsupported contention that neither of the above statutes is applicable, but contends that if any statute of limitation may be applied it is Section 11221, General Code, as follows: “An action upon a specialty or an agreement, contract or promise in writing shall be brought within fifteen years after the cause thereof accrued.”

Plaintiff’s theory is that the relationship between the public official and the municipality is contractual, and plaintiff relies solely on the following statement contained in the body of the opinion in *City of Cleveland*v. *Luttner,*92 Ohio St., 493, at page 494, 111 N. E., 280, supporting that theory and as being the law of Ohio:

“A public officer is a public servant, whether he be a policeman of a municipality or the president of the United States. His candidacy for appointment or election, his commission, his oath, in connection with the law under which he serves, and the emoluments of his office constitute the contract between him and the public he serves.”

It is further* argued that the statute of limitation as to contracts in writing applies, because the judge was elected by written ballot and certified as elected and commissioned in writing:

Plaintiff’s contractual theory of public office, while *90long ago advanced, in fact never became established but the contrary view has become universally recognized and long followed by the Ohio courts. 22 Ruling Case Law, 379, Section 11; 32 Ohio Jurisprudence, 869, Section 11, and 872, Section 14. Again, at pages 875 and 876, Section 15, the following is stated:

“A public office, on the other hand, is never conferred by contract, but finds its course and limitations in some act or expression of the governmental power.”

■ In *State, ex rel. Attorney General,*v. *Hawkins,*44 Ohio St., 98, 5 N. E., 228, it is stated at page 110:

‘ ‘A public office and its creation is a matter of public, and not of private, law.”

In *City of Steubenville*v. *Culp,*38 Ohio St., 18, at page 23, 43 Am. Rep., 417, it is stated:

“Offices are held, in this country, neither by grant nor contract, nor has any person, a vested interest or private right of property in them. ’ ’

This court will reiterate here that a public office is a public trust, to which the compensation attaches but as an incident toNthe office tending to promote the better performance of duty in the interest of the public, and .that no vested right to the office or the emoluments thereof exists in the officer. That legal title to the emoluments or the right thereto accrues only after service rendered.

In *Fisk*v. *Jefferson Police Jury,*116 U. S., 131 (29 L. Ed., 587, 6 S. Ct., 329), the following appears at pages 133 and 134:

“We do not assert the proposition that a person elected to an office for a definite term has any such contract with the government or with the appointing body as to prevent the legislature or other proper authority from abolishing the office or diminishing its duration or removing him from office. * * *

*91“But, after the services have been rendered, under a law, resolution, or ordinance which fixes the rate of compensation, there arises an implied contract to pay for those services at that rate.”

In *Mississippi, ex rel. Robertson,*v. *Miller,*276 U. S., 174 (72 L. Ed., 517, 48 S. Ct., 266), at page 179, Justice Butler states:

“But after services have been rendered by a public officer under a law specifying his compensation, there arises an implied contract under which he is entitled to have the amount so fixed. * * * This case is ruled by *Fisk*v. *Jefferson Police Jury,*116 U. S., 131.”

The *Luttner case,*relied upon by'plaintiff, turned on the fact of wrongful discharge of the officer, and, while in the body of the opinion the word “contract” is gratuitously used, by reading on, we find the court attempting to vindicate the principle that for every wrong a remedy must exist, and using the terms “wrongful,” “wronging,” and “wronged” and “wrong,” which is the language of tort, as distinguished from that of contract. It, therefore, appears that the use of the word “contract” in the statement, *supra,*was merely a resort to the language of contract to describe a relationship having many incidents similar to a contractual relationship, but loosely used and without the necessity or intention of determining the technical status of a public officer. In *Ecker*v. *City of Cincinnati,*52 Ohio App., 422, *3*N. E. (2d), 814, the Court of Appeals for the First Appellate District, through Judge Hamilton, discussed the *Luttner case,*coming to a similar conclusion.

In *Hansen*v. *City of Cleveland,*132 Ohio St., 625, 9 N. E. (2d), 619, the Supreme Court indicates its dissatisfaction with the language used in the *Luttner case.*

It appearing on the face of the petition that the *92right to compensation here claimed grows out of the statute, and that an implied contract arose after services performed, the six-year statute of limitation applies and the demurrer should have been sustained, the ten-year statute not being applicable.

*Wright*v. *City of Lorain,*70 Ohio App., 337, 46 N. E. (2d), 325, is approved and followed.

Judgment reversed and cause remanded with instructions to enter final judgment for defendant.

*Judgment reversed.*

Hildebrant, P. J., Matthews and Boss, JJ., concur in the syllabus, opinion and judgment.

Hildebrant, P. J., Matthews and Boss, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District.