Opinion Per Curiam. "It is the duty of the Court to instruct you concerning negative testimony as distinguished from affirmative testimony. Negative testimony is testimony that things were not done, or that a statement was not made, while affirmative testimony is testimony that a thing was done, or that a statement was made. It is a rule of the law of evidence that the affirmative is to be preferred to the negative, and where under all the circumstances it appears to have been the duty of one to speak, and he does not speak, then his silence or failure to speak may be considered together with all the other evidence and all the other circumstances proven in the case in arriving at your verdict. But on the other hand, if, from all of the facts and circumstances in the case, you should be of the opinion that a witness or party was under no obligation or duty to speak, and if he did not speak, his failure to speak in such case should not be taken into account by you in the consideration of the evidence." The court of appeals reversed the conviction for the reason that the trial court committed substantial error in giving the foregoing in its general charge, and remanded the case for a new trial; whereupon error was prosecuted to this court. From an examination of the record we are unable to apply the language in that charge in respect to a party's duty to speak or failure to speak as occasion required. The remaining portion of the quoted charge, when applied to the contradictory evidence of Davies and Treble, respectively, was wholly erroneous and prejudicial. The court, in Opinion Per Curiam. instructing the jury as to the quality of positive and negative testimony said: "Negative testimony is testimony that things were not done, or that a statement was not made, while affirmative testimony is testimony that a thing was done, or that a statement was made. It is a rule of the law of evidence that the affirmative is to be preferred to the negative," etc. This was equivalent to saying, as applied here, that Treble's affirmative evidence, that a thing was done or a statement was made, was preferred to Davies' testimony that such things were not done or that such statements were not made. The jury could have applied the charge in that connection. The judgment of the court of appeals is therefore affirmed. Judgment affirmed. NICHOLS, C. J., JONES, MATTHIAS, JOHNSON, WANAMAKER and ROBINSON, JJ., concur. Opinion Per Curiam. THE STATE, EX REL. METCALFE, V. DONAHEY, AUDITOR OF STATE. Courts of Appeals — Salaries of judges-Section 2251, General -- Code (108 O. L., pt. 2, 1301) — Change during existing term— Section 20, Article II, Constitution-Section 14, Article IV, Constitution. (No. 16832-Decided December 21, 1920.) IN MANDAMUS. Mr. Oscar W. Newman; Mr. Frank F. Dinsmore and Mr. Smith W. Bennett, for relator. Mr. John G. Price, attorney general, and Mr. B. W. Gearheart, for respondent. BY THE COURT. This is a proceeding in mandamus. The cause was heard on demurrer to the petition, from which it is shown that the relator is a judge of the court of appeals of the Seventh Appellate District, having been elected in November, 1914, for the term of six years; that at the time he entered on his duties the annual salary of such judge was six thousand dollars; that on February 4, 1920, Section 2251, General Code, was amended and the annual salary of a judge of a court of appeals was fixed at eight thousand dollars; and that said section as so amended went into effect on the 25th of May, 1920. Relator claims that since that date he is entitled to the increased salary. In support of his demurrer the respondent rests upon Section 20, Article II of the Constitution, viz.: "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 Opinion Per Curiam. therein shall affect the salary of any officer during his existing term, unless the office be abolished." It is of course conceded that the amended Section 2251 is a valid enactment, but it is contended that by reason of the constitutional provision just quoted it can apply only to judges whose terms begin after it is in effect. It is insisted by the relator that the provisions of Section 20, Article II, have no application to an office created by the constitution; and that the authority to fix the salary of judges of the courts of appeals is found in the general grant of legislative power and not in Section 20, Article II. It is undoubtedly true that the authority of the legislature to fix the terms of office and compensation of officers (where those matters are not provided for in other provisions of the constitution) is found in the general grant of legislative power contained in Section 1, Article II of the Constitution. As said in State, ex rel., v. Howe, 25 Ohio St., 588, at page 598: "This section (Section 20, Article II) simply imposes upon that body the duty of exercising the power so granted, and forbids any change in the salary of an officer during his existing term so fixed, unless the office be abolished." The provisions of Section 20, Article II, are clear and comprehensive, and the exercise of the power granted must be in compliance with its requirements. There is nothing to indicate that the provision "no change therein shall affect the salary of any officer during his existing term" shall not apply to offices created by the constitution. The language is "The general assembly, in cases not Opinion Per Curiam. provided for in this constitution, shall fix the term of office and the compensation of all officers." It is obvious that the word "cases" is used here in the sense of "instances" and the language expressly comprehends all officers; that is, where the constitution does not fix the term or the salary the general assembly shall do so. But it is insisted that Section 14, Article IV, the judicial article, by providing that the compensation of the judges of the supreme court and common pleas court shall not be diminished or increased during their term of office, permits the salary of other judges to be increased or diminished, and attention is directed to the case of Fulton v. Smith, 99 Ohio St., 230, in support of that view. That case concerned the validity of votes cast for an incumbent of the office of probate judge, for an elective office other than a judicial one. The constitutional inhibition against such votes expressly applied to judges of the supreme court and the court of common pleas. It was held that under rules which are familiar and sanctioned by experience it must be presumed that when the makers of the constitution took up and considered the subject and specified the two courts as to which the prohibition should apply, they intended that as to the judges of other courts no such prohibition should be made. At the time of the adoption of Section 14, Article IV, the constitution provided for probate courts, but at that time the constitution did not provide for courts of appeals. The constitutional convention, therefore, could not have had the courts of appeals in mind. There is no express mention, and there is no ground |