City Of Elyria v. Vandemark

• Decision Date: 09 December 1919
• Docket Number: 16801
• Citation: 100 Ohio St. 365,126 N.E. 314
• Parties: The City Of Elyria v. Vandemark
• Court: Ohio Supreme Court

126 N.E. 314

100 Ohio St. 365

The City Of Elyria v. Vandemark

No. 16801

Supreme Court of Ohio

December 9, 1919

Office and officers - Abolishing - Incumbency ceases - Municipal corporations - Constitutional classification exclusive - Merger of offices - Directors of public safety and service - Section 4250, General Code (106 O. L., 483) unconstitutional.

1. When a public office is abolished by duly constituted authority the incumbent thereof ceases to be an officer, for he cannot be a de facto officer of an office no longer in existence.

2. The constitution of the state having classified municipalities on a basis of population, the legislature is without authority to make further classification thereof for the purpose of legislation affecting municipal government.

3. The provisions of Section 4250, General Code, as amended 106 Ohio Laws, 483, purporting to authorize the council in cities having a population of less than twenty thousand to merge the office of director of public safety with that of the director of public service, are in conflict with the provisions of Section 1, Article XVIII of the Constitution of Ohio.

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The defendant in error brought suit in the common pleas court of Lorain county to recover the sum of $630 claimed to be due for services rendered by him as director of public safety of the city of Elyria from February 15,1917, to December 31, 1917. In his petition he avers in substance that pursuant to appointment to such office by the mayor of said city, January 11, 1916, he duly qualified as required by law and entered upon and continued in the discharge of the duties of such office until December 31, 1917, and that at the time of his appointment the salary fixed by ordinance was $720 per annum, payable semimonthly, which was paid up to February 15,1917.

Defendant by answer takes issue with the averments of the petition only as to the service of the plaintiff since February 15,1917 and avers that on February 11,1917, an ordinance of the city of Elyria that merged the office of the director of public service with the office of the director of public safety became effective, which ordinance had theretofore been duly enacted under authority of Section 4250, General Code, as amended 106 Ohio Laws, 483, and that thereupon said respective offices were abolished and ceased to exist, for which reason plaintiff was not entitled to any salary or compensation subsequent to February 11, 1917.

Plaintiff by reply admits that the census of 1910 shows the city of Elyria to have less than 20,000 inhabitants, and also admits the due passage of the ordinance set out in defendant's answer Plaintiff then avers that the mayor made no appointments under said ordinance, and that plaintiff's appointment was for a term of two years and until his successor was appointed and qualified; and that the director of public service, and the plaintiff as director of public safety, continued to perform the duties of their respective offices until December 31, 1917. Plaintiff by proper averment also challenges the constitutionality of Section 4250, General Code, as amended 106 Ohio Laws, 483, under favor of which said ordinance was passed.

A verdict was rendered and judgment entered in the common pleas court in favor of the plaintiff as prayed for in his petition, and that judgment was affirmed by the court of appeals. Error is now prosecuted in this court to reverse that judgment.

Mr. L. H. Webber, for plaintiff in error. Mr. F. A. Stetson, for defendant in error.

MATTHIAS J.

The discussion and decision of the legal questions involved in this case must be based upon the following facts established by the record: The mayor of the city of Elyria on January 11, 1916, appointed R. F. Vandemark, defendant in error, director of public safety:' Vandemark duly qualified as provided by law and entered upon the discharge of his duties. The salary of such officer was fixed by ordinance of the city at $720 per annum, payable semimonthly from the city treasury. The city of Elyria under the last federal census had a population of less than 20,000. The council of the city on January 10,1917, duly passed an ordinance, providing that the office of director of public safety be merged with that of the director of public service, and that one director be appointed for and assigned the duties of the departments so merged. Such ordinance became effective February 11, 1917. The mayor of the city did not appoint a director of the merged departments, and the defendant in error continued to perform the duties which had theretofore devolved upon the director of public safety and continued to discharge such duties until he resigned December 31, 1917. The council refused to appropriate funds for his salary after February 11, 1917, and he received no compensation for his services subsequent to that date.

The ordinance to which we have referred was passed pursuant to the provisions of Section 4250, General Code, as amended 106 Ohio Laws, 483. The mayor is thereby authorized to appoint the director of public service and the director of public safety. The section then provides that "In cities having a population of less than twenty thousand, the council may by a majority vote merge the office of director of public safety with that of public service, one director to be appointed for the merged department."

Said ordinance provided that the office of director of public safety be merged with the office Of director of public service, and that one director be appointed for the departments so merged, who should perform such duties as are required by law of the director of public safety and the director of public service. If the provisions of the General Code above referred to, pursuant to which said ordinance was enacted, constituted a valid and constitutional law, then the passage of such ordinance served to effect a valid merger of the two offices...