State v. Roney
| Decision Date | 28 June 1910 |
| Docket Number | 12249 |
| Citation | 92 N.E. 486,82 Ohio St. 376 |
| Parties | The State, Ex Rel. Harness, v. Roney. |
| Court | Ohio Supreme Court |
Presumption statute takes effect - At time it so declares - Court may not substitute different time, when - Construction of statutes - Sections of Paine law (99 O. L., 562) - Meaning of words "from and after" a date named - Officer removed must have notice of removal - Appointment of chief of police by mayor - Interpretation of municipal law.
1. The presumption is that the legislature intends a statute to take effect at the time it declares the statute shall be in effect, and a court may not by construction substitute a different time merely to correct defective legislation. The province of construction is to ascertain and give effect to the intention of the legislature, but its intention must be derived from the legislation and may not be invented by the court. To supply the intention and then give the statute effect according to such intention would not be construction but legislation.
2. The sections of the so-called Paine law (99 O. L., 562), went into effect as therein provided, respectively "On August 1, 1909," and "from and after January 1 1910."
3. A statute, declared to take effect from and after a date named takes effect on the day after the day of the date named.
4. Between July 31, 1909, and January 2, 1910, the exercise of the power of appointment and of removal of the chief of police of a city was at the pleasure of the mayor, excepting that the appointee must be an elector of the city.
5. When an officer is removable at pleasure his removal may be effected, so far as his title to the office or the power of amotion is concerned, by a declaration of removal, but it is not complete, respecting responsibility for his official acts, until he has notice or knowledge of his removal.
6. On December 4, 1909, the mayor appointed H. as chief of police of the city of Marietta to fill a vacancy. On January 1 1910, the succeeding mayor declared H. removed and appointed R. as chief of police. H. received notice of his removal on January 2, and R. duly qualified and entered upon the office on January 3. In a suit in quo warranto by H. to oust R held, that the petition should be dismissed.
The facts are stated in the opinion.
Mr. A. D. Follett and Messrs. Brenan & Middleswart, for plaintiff in error.
Mr. W. E. Sykes; Mr. W. H. Leeper and Messrs. Strecker & Williamson, for defendant in error.
Mr. U. G. Denman, attorney general, and Mr. C. D. Laylin, of counsel, by consent of the court filed a brief, in behalf of the plaintiff in error, involving a similar state of facts in another case pending in this court.
In December, 1909, death caused a vacancy in the office of chief of police of the city of Marietta. On December 4 of that year the mayor filled the vacancy by the appointment of the relator who duly qualified and entered upon the duties of the office. On January 1, 1910, a new mayor entered upon the duties of that office, and as such mayor issued a written notice to the relator that his services as chief of police terminated on that day, and that he had appointed James A. Roney, the defendant, as chief of police. This notice was not delivered to the relator until the morning of January 2. On January 3 the defendant qualified as chief of police and since then has been acting as such. The relator refused to surrender the office and brought suit in quo warranto in the circuit court to oust the defendant. The defendant answered that the relator was not eligible to the office at the time of his appointment, because he was not then a member of the police force or on the classified list of that department of the city government; that the relator at the time of his appointment, and for a year prior thereto, was not a resident of the city; that on the date of the relator's appointment a rule, adopted by the board of public safety, was in force, whereby, when an appointment was made by the mayor to fill a vacancy in the police department, the appointment was on probation for a period of thirty days from and after the date of such appointment, and that the mayor of the city, by and with the consent of the director of safety, had discharged and removed from office the relator within thirty days from his said appointment. The general demurrer to the answer was overruled and the relator then filed a reply in which he averred that in 1903 he had taken the required examination and had been a member of the classified service of the police department, and had served on the police force until he had in the same year resigned to go into business. A general demurrer to the reply was sustained, and, the relator not desiring to plead further, the petition was dismissed.
The municipal code of 1902 provided for the government of municipalities by a mayor and an elected board of public service and an appointed board of public safety. The board of public service had charge of the streets, water-works, workhouse and charitable institutions, and the board of public safety, together with the mayor, had charge of the police and fire departments, and the appointees and employes in the police and in the fire departments were under civil service rules administered by the board of public safety. In 1908 the so-called Paine law was passed (99 O. L., 562). It amended more than twenty sections of the municipal code, but the changes effected may be summarized as follows: The boards of public service and of public safety were abolished and in their stead was substituted a director of public service and a director of public safety, appointed by the mayor. The building inspector's office was transferred from the mayor's control to the department of public safety, and the workhouse and charitable institutions from the department of public service to the department of public safety. The mayor and the two directors constitute a board of control, and contracts in excess of five hundred dollars are subject to its approval. The civil service is extended and its administration transferred from the department of public safety to three civil service commissioners appointed by the presidents of the board of education, of the sinking fund commission and of the city council.
The Paine bill provided that its civil service provisions should take effect from and after June 1, 1908, and the other provisions from and after January 1, 1910. The Paine law provides that the act shall take effect and be in full force on and after August 1, 1909, excepting that the civil service provisions shall be in full force and effect from and after January 1, 1910, and that all elected officers shall serve out their term. In the unreported case, The State, ex rel. Noble, Auditor, v. Slabaugh, 81 Ohio St. 550 where the question was whether a director of public safety could administer that department before January 1, 1910, the contention being that inasmuch as contracts in excess of five hundred dollars were subject to the approval of a board of control that could not come into existence until January 1, 1910, and inasmuch as until then there would not be a civil service commission to administer that system, the legislature, notwithstanding it expressly so declared, could not have...
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