State ex rel. Atty. Gen. v. Jennings

• Decision Date: 26 January 1898
• Citation: 49 N.E. 404,57 Ohio St. 415
• Parties: STATE ex rel. ATTORNEY GENERAL v. JENNINGS et al.
• Court: Ohio Supreme Court

49 N.E. 404

57 Ohio St. 415

STATE ex rel. ATTORNEY GENERAL v. JENNINGS et al.

Supreme Court of Ohio.

January 26, 1898

Petition for writ of quo warranto by the state, on the relation of the attorney general, against James Jennings and others. Writ refused and petition dismissed.

Syllabus by the Court

1. An office created by an ordinance is abolished by the repeal of the ordinance, and the incumbent thereby ceases to be an officer.

2. To constitute a public office, against the incumbent of which quo warranto will lie, it is essential that certain independent public duties, a part of the sovereignty of the state, should be appointed to it by law, to be exercised by the incumbent in virtue of his election or appointment to the office thus created and defined, and not as a mere employé, subject to the direction and control of some one else.

3. Where, in pursuance of an ordinance, a fireman is employed by the council, to perform the usual duties of a fireman, who has no control of the fire department or its property, other than in the use of it, performs his duties subject to the chief of the department and the city council, and is paid by the month for his services, he is not a public officer, and cannot be ousted from his employment by a proceeding in quo warranto on the ground that he should have been appointed by the mayor, with the advice and consent of the council.

F. S Monnett, Atty. Gen., J. A. Flory, S. L. James, and B. G Smythe, for plaintiff.

Thos. B. Fulton, City Sol., J. B. Jones, and S M. Hunter, for defendants.

MINSHALL, J.

It is averred by the attorney general, in the petition, that James Jennings and others, specifically named, have been, and are now, unlawfully usurping and holding the offices of firemen in the fire department of the city of Newark, this state; and he asks that they be ousted therefrom, and that Frank Alexander and others, specifically named, and entitled thereto, be inducted into the offices so usurped. The case has been submitted to the court on an agreed statement of facts, from which it appears that in 1895 the city council of Newark passed an ordinance organizing its fire department and by which it was provided that it should consist of ten firemen, one of whom should be elected as chief by the appointment of the mayor with the advice and consent of the council; and it provided for their compensation. The persons whose induction is asked for were appointed under the provisions of this ordinance. The chief is not included in the number, and all were simply appointed as ‘firemen.’ On June 23, 1897, the council adopted an ordinance repealing the former one, and providing for the employment of the firemen by the council; the chief, however, being appointed as formerly. The section as to the firemen is as follows: ‘The said council shall employ as many assistant firemen, from time to time, as to them may seem necessary, who shall receive for their services not to exceed $50.00 per month.’ Afterwards the firemen appointed under the former ordinance were discharged by resolution of the council, and by another resolution the defendants were employed.

The contention of the relator is that a fireman is an officer and therefore, under section 1711, Rev. St., which requires all officers of the municipality not elected by the people to be appointed by the mayor with the advice and consent of the council, the defendants, not being so appointed, have no right to the office, and should be ousted, and the former incumbents inducted, as officers holding over until their successors are duly appointed and qualified. We do not adopt this view. There is no question but that the council had the power to repeal the former ordinance; and this being so, and all the offices created by it, whatever they were, being thus abolished, the incumbents ceased to be officers, for there can be no incumbent without an office. State v. Wright, 7 Ohio St. 333;Gano v. State, 10 Ohio St. 238;State v. Hawkins, 44 Ohio St. 98, 5 N.E. 228. So that the real question in the case is whether a fireman is an officer, or, in this case, whether the firemen for whose employment provision is made in the ordinance of 1897 are officers; for that a position in the fire department of a city may have such duties attached to it as to constitute an office is not questioned. The chief of a fire department performs such duties as make him an officer. But the character of an office cannot be attached to a position by a name, merely. Whether it be an office or not will depend upon the nature and character of the duties attached to it by law. Many efforts have been made to define a ‘public office,’ and it is only the incumbent of such an office whose rights can be challenged in a proceeding in quo warranto. But it is easier to conceive the general requirements of such an office, than to express them with precision in a definition that shall be entirely faultless. But it will be found, however, by consulting the cases and the authorities, that the most general distinction of a public office is that it embraces the performance by the incumbent of a public function delegated to him as a part of the sovereignty of the state. Thus, in Mechem, Pub. Off. § 4, it is said: ‘The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involve a delegation to the invidual of some of the sovereign functions of government, to be exercised by him for the...