
    Village of Newcomerstown et al. v. The State, ex rel. Blatt.
    
      (Decided April 21, 1930.)
    
      Messrs. Willcin, Fernsell, Fisher & Limbach, for plaintiffs in error.
    
      Mr. Ed. C. Seihel, for defendant in error.
   Lemert, P. J.

This is an action in mandamus, which comes into this court on petition in error and hill of exceptions, with all original papers, from the court of common pleas of Tuscarawas county, Ohio. The original action was instituted in the court of common pleas by the State, ex rel. John Blatt, on the 27th day of February, 1929. After certain preliminary matters were disposed of, the cause was submitted to the court of common pleas of Tuscarawas county on the pleadings, evidence, proofs, and arguments of counsel; and the court upon consideration adjudged and decreed that a peremptory writ of mandamus issue against the defendants, the village of Newcomerstown et ah, for the performance of the acts theretofore alternatively ordered, and assessed the costs of said action against the defendant village of Newcomerstown.

Under the pleadings and the undisputed evidence, the following state of facts is disclosed:

The relator, John Blatt, was duly elected as marshal of the village of Newcomerstown for a term beginning January 1, 1928. He qualified and served as such marshal until the 26th day of November, 1928, at which time he tendered his resignation, which was accepted.

At the time the relator assumed office on January 1, 1928, and acted as marshal of said village, there was a valid and subsisting ordinance of the village, known as Ordinance No. 159, fixing the salary of said marshal at $1,800 per annum, payable in twenty-four equal installments.

On January 9, 1928, the village council passed its appropriation Ordinance No. 162, appropriating $1,800 for the year 1928, in accordance with said ordinance, and again on July 15, 1928, adopted a tax budget for the year 1929, estimating an expenditure of $1,800 for the compensation of the village marshal, and filed the same with Tuscarawas county budget commission. And the defendant paid the relator at the rate of $1,800 a year until the 1st day of November, 1928.

On the 29th day of October, 1928, the council of the defendant village attempted to suspend the relator, by resolution, for a period of fifteen days; at which time, however, there were no written charges filed by the mayor or any proceedings pending before that body. On November 12,1928, the mayor of the village filed charges with the council against the relator, but no proceedings were had on such charges.

The relator was present at the police station and willing to perform services as marshal of the village from the 29th of October, 1928, to the time of his resignation, November 26, 1928.

No action was taken whatsoever by the council of the defendant village on the written charges which were filed on November 12,1928.

On the 26th day of December, 1928, the mayor of the defendant village duly appointed the relator as marshal for the said village for the unexpired term, the term of such appointment to begin January 1, 1929, and thereafter, within ten days, to wit, on January 4, 1929, the relator filed his oath and bond with the clerk of the village, but began his duties and actually served as marshal from January 1, 1929.

On December 29, 1928, the council of the defendant village met in special session and attempted to repeal Ordinance No. 159 by passing an alleged emergency ordinance fixing the marshal’s salary at $240 per annum.

So that upon the aforesaid statement of facts the issues in this case are presented, which brings this court to consider:

1. "Whether or not the relator is entitled to his salary at $1,800 per annum from the time the council of the defendant attempted to suspend him on October 29,1928, until the relator resigned, November 26, 1928.

2. Whether or not the relator is entitled to a salary at the rate of $1,800 per annum from the effective date of his appointment, January 1, 1929, until he resigned on March 8, 1929, or, in other words, whether Ordinance No. 174, passed December 29, 1928, was legally effective in diminishing the salary of the relator, who had prior thereto been appointed marshal of the village.

3. Whether or not mandamus was the proper remedy for the relator under such a state of facts.

On proposition No. 1 we have to say that any elective or appointive officer, properly qualified and serving, is such officer until removed, or the office becomes vacant by operation of law. The relator was not legally suspended by the council of the village at the meeting of October 29, 1928, because council at that time did not have, under the law, any power to suspend the relator, or even to order the mayor to suspend him, for the reason that at said time there was no written charge filed against the relator; and there being no written charge pending against him neither the mayor nor the council of the village had any legal right or power to suspend him.

Section 4263, General Code, provides when and how an officer may be removed or suspended. Section 4264 provides for the hearing, with whom filed, etc.; and Section 4265 provides as to how such removal or suspension may take place.

So we must conclude from the aforesaid sections that before the marshal of the village could have been suspended there must have been charges or proceedings, as provided for in Section 4263 of the General Code, pending and filed with the council of the village prior to the order of suspension. Consequently, it must follow that the action of the defendant village in suspending the relator was without legal authority, and therefore illegal and void.

The record discloses that no action was taken by the village to suspend the marshal after charges had been filed on November 12, and he served as marshal of the village until the date of his resignation, November 26, 1928. It therefore follows that he is entitled to his salary at the rate of $1,800 per annum from the 1st day of November until the 26th day of November, 1928.

It has been held in City of Cleveland v. Luttner, 92 Ohio St., 493, 111 N. E., 280, Ann. Cas., 1917D, 1134, that a public officer is a public servant, whether he be a policeman of a municipality or the President of the United States. His candidacy for appointment or election, his commission, his oath, in connection with the law under which he serves, and the emoluments of his office, constitute the contract between him and the public he serves.

The record discloses that on the 26th day of December, 1928, the relator, after his resignation, as hereinbefore referred to, was appointed by the mayor, and he thereafter qualified and served as marshal from January 1, 1929, to March 8, 1929. We note that at the time of his appointment Ordinance 159, providing for a salary of $1,800 per annum, was still in force and effect. The appointment was accepted by the relator on December 26, 1928; then three days later, to wit, December 29, 1928, the village council attempted to repeal Ordinance 159 and enacted Ordinance No. 174, fixing $240 per annum as the marshal’s salary, and enacted it as an emergency measure; whereby they attempted to diminish the relator’s salary during the term for which such officer may have been elected or appointed. Therefore the question presents itself as to whether or not this action on the part of the village council was not in direct contravention of Section 4219, General Code.

In the case of State, ex rel. Pugh, v. Tanner, 27 O. C. A., 385, 29 C. D., 255, the Court of Appeals of the Fifth Appellate District of Ohio held:

‘ ‘ The salary of an appointee to a vacancy in a public office is controlled by the law in effect at the time his appointment was made, and not by the law in effect at the time his predecessor was elected for the term which he is to complete.”

The court in that case declares in effect that were it otherwise council could in effect nullify an election or an appointment, by reducing salary to a minimum, between the time of the election or appointment and the time of the commencement of the term of office.

In the above case the court was construing Section 4213, General Code, whereas in the instant case Section 4219 is before us, and we believe the language to be even stronger than in Section 4213.

As a matter of public policy it seems only reasonable that an officer accepts his office on the basis of the law at the time of his election or appointment. Otherwise, such officer might be confronted by councils or other legislative bodies indulging in such tactics as might or would greatly embarrass him.

We believe that all courts practically agree that this was the idea which prompted the Constitution makers to enact similar provisions in state Constitutions, and also prompted the Legislature in enacting Sections 4213, 4219, and other similar statutes.

Again, if Ordinance 174 is not in contravention of Section 4219, it would still be invalid as an emergency measure, for the reason that it is in contravention of Section 4227-3, which provides, in part:

“And emergency ordinances or measures necessary for the immediate preservation of the public peace, health or safety in such municipal corporation, shall go into immediate effect.”

This Ordinance 174 was not and could not be classed as an emergency ordinance. It is an emergency ordinance in name, only, and is not and could not be such an emergency ordinance as contemplated by law.

On the third and last proposition presented, whether or not mandamus was the proper remedy for the relator under such a state of facts, we find and hold that, inasmuch as the salary of the relator was fixed and determined, proper action to compel the payment of it to him would be by way of mandamus to compel the issuance of a warrant. It is well-settled law in Ohio that one within a classified service who is wrongfully deprived of his employment or position by reason of' an absolutely void and illegal ouster, from which there is no appeal, may be restored to his employment or position and the emoluments thereof in an action by way of mandamus. City of Toledo v. Osborn, 23 Ohio App., 62, 155 N. E., 250.

We therefore find and hold that the common pleas court properly resolved all of the aforesaid issues in favor of the relator; and we therefore find and hold that the finding and judgment of the court below should be, and the same hereby is, affirmed, and this cause is remanded to that court to carry this judgment into execution.

Judgment affirmed.

Sherick, J., and Cushing, J. (of the First Appellate District), concur.  