
    VALIDITY OF THE APPOINTMENT OF A POLICEMAN.
    Common Pleas Court of Jefferson County.
    Louis DeRomedis et al v. The Incorporated Village of Yorkville, Ohio, et al.
    Decided, November 30, 1918.
    
      Municipal Corporations — Procedure Rendering Valid the Appointment of a Policeman — He is a Public Officer — And Must be an Elector of the Municipality He Serves.
    
    1. In order to render valid the appointment of a policeman, the office must be created and the salary fixed by council, the mayor then appointing and council confirming the appointment.
    2. A policeman is a public officer and must therefore be an elector of the municipality from which he receives his appointment and derives his authority.
    
      Cohen & Rodgers, for plaintiff.
    
      Thomas S. J ones, contra.
   Smith, J.

On May 8 the council of the village of Yorkville hired James Parkinson as policeman. The record of this action is recorded in its minutes as follows:

“Minutes of meeting held May 8, 1918. Council met in special session. Roll call. Present, Bayer, Evans, Tolbert, Nunley; absent, Brooks, Kirkbride. Motion by Evans, seconded by Nunley, that James Parkinson be hired as police for the village of Yorkville at a salary of $135 per month straight time, to be in uniform — uniform to be furnished by Mr. Parkinson. On motion, council adjourned.”

On the 4th day of October, 1918, the plaintiffs as tax-payers of Yorkville secured a temporary injunction against the defendants from paying Parkinson’s salary. It is averred in the amended petition that this alleged appointment is illegal, and inson for the reason that he is not a resident or citizen of York-ville but resides in the city of Steubenville. This fact is admitted.

First, was the action of council on May 8 within its corporate powers ? A municipality is a creature of law. It derives its powers and privileges solely from legislative enactment. Génfurther that said council is without authority to hire Mr. Parkeral Code, Section 4384, provides for the election and qualification of a marshal and for the appointment of deputy marshals and policemen:

“The marshal shall be elected for a term of two years, commencing on the first day of January next after his election, and shall serve until his successor is elected and qualified. lie shall be an elector of the corporation. When provided for by council, and subject to its confirmation, the mayor shall appoint all deputy marshals, policemen, night watchmen and special policement, and may remove them for cause, which shall be stated in writing to council.”

Section 4385 defines the general powers of police officers. Under the provisions of these two sections council has the right to provide for the employment and appointment of police officers. These sections determine the only method by which these policemen receive their appointment.

■ Council must first by appropriate legislation create the offices of policemen or deputy marshals and fix their salaries and terms of office. After the offices are created the mayor may then appoint the deputies or policemen and this action must be confirmed by council. From the minutes of council it appears that it hired James Parkinson as a policeman for the village at a salary of $135 per month, straight time. This is clearly beyond its power. It has the right only to create this office. The mayor must then appoint and the council must confirm that appointment as provided in Section 4384. It follows, therefore, that this action of council in its attempt to employ Parkinson as police officer without having first created the office and fixed its salary was beyond its authority. The .right to appoint vests in the mayor, subject to the subsequent confirmation by council.

Must a policeman be an elector of tbe municipality from which he receives his appointment? General Code, Section 4666, provides that:

“Each officer of the corporation, or of any department or board thereof, whether elected or appointed as a substitute for a regular officer, shall be an elector within the corporation, except as otherwise provided.” * * *

If a policeman is an officer it follows that he must be an elector. It is difficult to define the term officer. Each case should be decided on its peculiar facts and involves necessarily a consideration of the legislative intent in framing the particular statute by which the position, whatever it may be, is created.

Judge Spear in the case of State v. Hunt, 84 O. S., 149, in his opinion recognizes this difficulty and says:

“We have not undertaken to enter the field of definition of office or officer. As given in the books they are multitudinous not to say multifarious. In deed so varied are they scattered through the books that the ingenious barrister may find support to almost any proposition relating to the general subject, which the necessities of his case may seem to demand. But like maxims of the law when used indiscriminately and without judgment, they are apt to mislead. One which seems to have met with most favor perhaps is that an office is a public position to which a portion of the state sovereignty of the country attaches, and which is exercised for the benefit of the public. ’ ’

The Supreme Court in the ease of State, ex rel, v. Brennan, 49 O. S., 33, quoted in State, ex rel, v. Jennings, 57 O. S., 426, says:

“It is safely within bounds to say that where, by virtue of law, a person is clothed, not as an incidental or transient authority, but for such time as denotes duration and continuance, with independent power, to control the property of the public, or with functions to be exercised in the supposed interest of the people, the service to be compensated by a stated yearly salary, and the occupant having a designation of title, the position so created-is. a public office.”

Throughout the opinion in the case of State, ex rel, v. Brennan prominence is given to the fact that a public officer is one who exercises in an independent capacity a public function in the interest of the people by virtue of law, which is only saying in another form that he exercises a portion of the sovereignty of the people delegated to him by law.

Applying what has been said to the instant case it clearly appears that a policeman regularly employed by proper legislation, appointed by the mayor and confirmed by. council as provided for in Sections 4384 and 4385 is a public officer. Does he not exercise a portion of the sovereignty of the people delegated to him by law? He has public duties to perform. He is charged with the duty of preserving public and private property and protecting the people’s interests. He has authority to make arrests on view. He has the right to go outside of his municipality and make arrests throughout the state. He not only has this authority but is charged with this duty, and upon the acceptance of his office he takes an oath to this effect and gives bond for the faithful discharge of these duties. He is clothed with functions to be exercised in the interests of the people. His services are compensated by a stated yearly salary.ITe is designated as a policeman.

When we look for precedents to determine this question we find various opinions in different states as to whether of not a policeman is an officer. A close analysis of these eases, however, discloses that the statutes in the different states and under the different constitutions contain various limitations and prescribe different duties.

In our own state it has been held that the'chief of police is a public officer (8 C.C.[N.S.], 293; 25 O.C.C. 762). Also, that the chief of the fire department is a public officer (20 C.C.[N.S.], 478), and that a member of the municipal board of health is an officer of the municipality (State, ex rel Wind, v. Wichgar, 27 O.O.C., 743). It is held in the cases cited that the chief of police and chief of the fire department are clothed with public functions and vested with a portion of the sovereignty of the people. The same principle applies with equal force to a policeman in a village.

It is uniformly held that a policeman is not only a municipal officer but a state officer as well. I call attention to the notes in the Lawyers Reports Annotated, Volume, 36, at page 881, where the author says:

“The principal duty of a police officer, viz., the preservation of'public peace, is a matter of public concern; and therefore policemen are state or public officers, and not municipal or private officers. They are appointed under authority given by the state, and therefore they are not to be regarded as agents or servants, or as otherwise bearing merely a contractual relation to the municipality. ’ ’

This proposition is supported by numerous authorities. To the same effect is Dillon on Municipal Corporations, Sections 390:

‘ ‘ The office of a police officer is not known to the common law; it is created by statute, and such an officer has, and can exercise, only such powers as he is authorized to do by the Legislature, expressly or derivatively. ITe is an officer of the state rather than of the municipality in which he exercises his office.”

The same doctrine is recognized by Judge Howland in the -case of Alvord, Admr., v. Village of Richmond, 3 N. P., 136.

It follows, therefore that a policeman is a public officer and under the provisions of Section 4666 he should and must be an elector of the municipality from which he receives his appointment and derives his authority. For these reasons the injunction in this case is made perpetual.  