Kirker v. City of Cincinnati

• Decision Date: 30 June 1891
• Parties: KIRKER v. CITY OF CINCINNATI.
• Court: Ohio Supreme Court

27 N.E. 898

48 Ohio St. 507

KIRKER v. CITY OF CINCINNATI.

Supreme Court of Ohio.

June 30, 1891

Error to superior court of Cincinnati.

Syllabus by the Court

Members of the board of city affairs, before the law was declared unconstitutional, were de facto members of the administrative board of Cincinnati, and their acts valid.

Burch & Johnson, Harmon, Colston, Goldsmith & Hoadly , and Ramsey Maxwell & Ramsey , for plaintiff in error.

Theodore Horstman , City Sol., and J. B. Foraker , for defendant in error.

PER CURIAM.

By the act of the general assembly entitled ‘ An act to create and establish an official board of city affairs in cities of the first grade of the first class,’ passed October 24 1890, the boards of public improvements in cities of that grade and class were abolished; but, by the same act, (section 2231, Rev. St.,) as then amended, all the powers and duties of the board of public improvements were conferred on the board of city affairs, and the latter was made the successor in all respects of the board of public improvements. This act was declared unconstitutional by this court in State v. Smith, 26 N.E. 1069. The question now presented is whether the official acts of this board performed before the act was held invalid and the appointees under it were ousted by the judgment of this court in the above case, are also invalid and of no effect. We think not. The act did not, in a legal sense, create a new office. The board of city affairs was clothed with the same functions as the board of public improvements. If, then, as can hardly be questioned, the identity of an office is to be determined by the functions that belong to it, the board of city affairs is, in law, the same as the board of public improvements; for there is nothing in a name by which the essence of things can be changed. The designation, ‘ board of city affairs,’ is only another appellation for the administrative functions with which it was clothed, as is also the designation, ‘ board of public improvements.’ So that the act of October 24, 1890, held unconstitutional, simply provided a mode for the removal of the then members of this administrative board, and the appointment of new ones. The persons appointed in pursuance of the provisions of the act were, for the time being, members de facto of this board; and the acts performed by them as such members, before they were ousted by the proceeding in quo warranto , are, on principles of public policy, as valid as if they had been performed by the de jure members of the board. State v. Carroll, 38 Conn. 449; State v. Alling, 12...