State, Ex Rel., v. Skinner

• Decision Date: 16 May 1934
• Docket Number: 24701
• Citation: 128 Ohio St. 325,191 N.E. 127
• Parties: The State, Ex Rel. Newman, State Librarian, v. Skinner Et Al.
• Court: Ohio Supreme Court

191 N.E. 127

128 Ohio St. 325

The State, Ex Rel. Newman, State Librarian, v. Skinner Et Al.

No. 24701

Supreme Court of Ohio

May 16, 1934

Office and officer - "Public officer" and "employee" distinguished - State Librarian not an officer - Appointment and removal by State Library Board - Section 154-52, General Code - Section 98, Article II Constitution.

1. A public Officer, as distinguished from an employee, must be invested by law with a portion of the sovereignty of the state and authorized to exercise functions either of an executive, legislative or judicial character.

2. The position of state librarian is not an office within the contemplation of the provisions of Section 38, Article II of the State Constitution, and Section 154-52, General Code providing that "the state library board shall appoint and may remove a state librarian", is not in conflict with that provision of the constitution.

Mr. Matthew L. Bigger and Mr. Abram Cunix, for plaintiff in error.

Mr John W. Bricker, attorney general, and Mr. Charles F. Ohl for defendants in error.

MATTHIAS J.

The relator was appointed State Librarian by the State Library Board pursuant to the authority vested in that board by Section 154-52, General Code, which provides that "The state library board shall appoint and may remove a state librarian." When the State Library Board sought to discontinue the services of the relator as such librarian this proceeding was instituted in the Court of Appeals to prevent such removal. That court refused the relief sought by the relator and dismissed his supplemental petition. Whereupon error was prosecuted in this court.

The authority of the library board in respect to the appointment and removal of the State Librarian and the summary discontinuance of his service at will is conferred in clear and explicit language and is controlling unless Section 154-52, General Code, is in conflict with Article II, Section 38 of the state Constitution. Relator contends there is such conflict and that Sections 10-1 and 10-2, General Code, passed pursuant to the adoption of the constitutional provision, are controlling and must be followed. Section 38 of Article II of the Constitution is as follows:

"Laws shall be passed providing for the prompt removal from office, upon complaint and hearing, of all officers, including state officers, judges and members of the general assembly, for any misconduct involving moral turpitude or for other cause provided by law; and this method of removal shall be in addition to impeachment or other method of removal authorized by the constitution."

Reference to the proceedings of the Constitutional Convention discloses that this provision for removal of officers was offered for the purpose of meeting in some measure-but in a somewhat modified form-the demand for a provision for the recall of public officers. Its primary purpose was the removal of public officers for misconduct. The provision, "upon complaint and hearing," was subsequently inserted.

The precise question presented is whether the State Librarian is an "officer" within the contemplation of this provision of the Constitution. The principle upon which the question may be determined whether on occupying a given position is an officer or employee is involved in numerous cases, but is most clearly stated in State, ex rel. Monnett, Atty. Genl., v. Jennings, 57 Ohio St. 415, 49 N.E. , 404, 63 Am.St. 723; and State, ex rel. Landis, v. Board of Commissioners of Butter County, 95 Ohio St. 157, 115 N.E. , 919.

A public officer as distinguished from an employee must possess some sovereign functions of government, to be exercised by him for the benefit of the public, either of an executive legislative or judicial character. It is well stated in the Landis case, supra, that "The chief and most-decisive characteristic of public office is determined by the quality of the duties with which the appointee is invested, and by the fact that...