The opinion
Schneider, J.,
dissenting.
The distinction between “public employment” and “public office” is historic and abiding. The latter “is a charge or trust conferred by public authority for a public purpose, with independent and continuing duties, involving in their performance the exercise of some portion of the sovereign power.” (Judge Zimmerman in State, ex rel. Herbert, v. Ferguson, Aud., 142 Ohio St. 496 , at page 501.) See authorities cited therein and State, ex rel. Milburn, v. Pethtel, Aud., 153 Ohio St. 1 ; State, ex rel. Atty. Genl., v. Hunt, 84 Ohio St. 149 ; Palmer v. Ziegler, 76 Ohio St. 210 ; State, ex rel. Atty. Gen., v. Jennings, 57 Ohio St. 415 ; State, ex rel. Atty. Gen., v. Kennon, 7 Ohio St. 546 ; compare, State, ex rel. Hile, v. Zangerle, Aud., 115 Ohio St. 33 ; State, ex rel. Landis, v. Board of Comm., 95 Ohio St. 157 ; Annotation, 140 A. L. R. 1076.
That a member of the General Assembly is a public officer, not a public employee, ought to be self-evident. See State, ex rel. Grant, v. Eaton, 114 Mont. 199, 133 (P. 2d) 588; In re Speakership, 15 Colorado 520, 25 P. 707 ; Clark v. Stanley, 66 N. C. 59 ; Morrill v. Haines, 2 N. H. 246. For Ohio cases recognizing this distinction in respect to other officers, see 44 Ohio Jurisprudence 2d 511, Public Officers, Section 22. The list appears endless.
The salary of a public officer, as distinguished from a public employee, is an incident of the office itself, not to its exercise or to the individual discharging the duties of the office. It is payable regardless of sickness or health, duty or neglect, presence or absence. State, ex rel. Clinger, Pros. Atty., v. White, 143 Ohio St. 175 . The rightful incumbent may even recover the salary received by the de facto officer during the latter’s possession thereof. See State, ex rel. Cox, v. Hooper, Aud., 137 Ohio St. 222 ; Cleveland v. Luttner, 92 Ohio St. 493 .
*183 The conclusion is inevitable that the salary of an assemblyman not a resident of Columbus is not “earned # * # for work done or services performed or rendered in the city [of Columbus].” (Italics supplied.) Section 361.19 (b) of the Columbus City Codes, 1959 [Ordinance No. 1516-61]. As has been shown, the salaries in question are not paid as earnings for work done or rendered but as an incident of office. It is, therefore, unnecessary to be concerned with an allocation of the salaries for time spent in Columbus.
It is likewise unnecessary to consider the complex question of the authority of this court to control the discretion of an administrative officer. The relator has failed to show a clear duty specifically enjoined by law upon the respondent so as to entitle the former to the prerogative writ of mandamus originating from this court.
Brown, J., concurs in the foregoing dissenting opinion.