
    Ide v. The State of Ohio.
    
      Municipal charter — President of city commission — Exercise of judicial functions of mayor — Section 7, Article XVIII, Constitution, 1912.
    
    A provision in a municipal charter, adopted under authority of Section 7 of Article XVIII of the State Constitution, continuing in force the general laws of the state conferring judicial functions upon mayors of cities and villages, to be exercised by the president of a city commission, who is elected a member of that commission by the qualified electors of the municipality, is not in conflict with any provision of the Constitution of Ohio.
    (No. 15442
    Decided January 23, 1917.)
    Error to the Court of Appeals of Erie county.
    On the 28th day of July, 1914, the city of San-dusky, Ohio, adopted a charter which by its terms took effect for all purposes on the 1st day of January, 1916.
    This charter provides for a “Commission-Manager Plan” of government, consisting of a commission of five citizens elected at large, which commission constitutes the governing body with powers to pass ordinances, adopt regulations, appoint a chief administrative officer to be known as the city manager, and exercise all powers provided in the charter.
    The charter further provides, that the city commission shall organize by electing one of its members president, who shall preside at all meetings of the city commission; who may use the title of mayor in any case in which the execution of legal instruments of writing, or other necessity arising from the general law of the state, so requires; and who “shall have the judicial functions of a mayor under ' the laws of Ohio until such time as such judicial' functions can or may be by and under authority of > the constitution and general laws of the state per- ; formed by some other officer appointed or elected for j that purpose.”
    This charter further provides that “all general laws of the state applicable to municipal corporations, now or hereafter enacted, and which are not in conflict with the provisions of this charter, or with ordinances or resolutions hereafter enacted by the city commission, shall be applicable,” and that “all persons holding office at the time this charter is adopted shall continue in office and in the performance of their duties until provision shall have been otherwise made in accordance with this charter for the performance or discontinuance of the duties of any such office,” and that “when such provision shall have been made the term of any such officer shall expire and the office be deemed abolished,” but that the powers which are conferred and the duties which are imposed upon any officer, board or department of the city under the laws of the state, or under any city ordinance or contract in force at the time of the taking effect of this act, shall, if such office or department is abolished by this charter, thereafter be exercised and discharged by the city commission, officer, board or department upon whom are imposed corresponding functions, powers and duties by this charter or by any ordinance or resolution of the city hereafter enacted.
    
      In pursuance of these charter provisions, a city commission was elected, and that commission organized by electing Robert Koegle, one of its members, president.
    On the 20th day of January, 1916, the plaintiff in error, Fred Ide, was charged by affidavit with keeping a place where intoxicating liquors were being unlawfully sold, in violation of Section 13195, General Code.
    The defendant, Ide, filed a motion to quash this affidavit, which motion was overruled, and thereupon he entered a plea of not guilty. The cause was tried on the 2d day of February, 1916, before the said Robert Koegle, president of the city commission of the city of Sandusky, Ohio, who found the defendant guilty, and sentenced him to pay a fine of $500 and costs.
    Motion for new trial was filed and overruled. A bill of exceptions was allowed and signed, and a petition in error filed'in the court of common pleas of Erie county, which court affirmed the judgment. Thereupon error was prosecuted in the court of appeals, which court affirmed the judgment of the common pleas court.
    This proceeding in error is prosecuted in this court for the purpose of reversing the original judgment and the several judgments of affirmance entered by the common pleas and court of appeals.
    
      Messrs. Hart & Schoepfle, for plaintiff in error.
    
      Mr. James Flynn, prosecuting attorney; Mr. E. C. Turner, attorney general; Mr. C. R. Bell and Mr. Frank Davis, Jr., for defendant in error.
   Donahue, J.

The important question presented by the record in this case is the question of. the authority of Robert Koegle, president of the city commission, to exercise judicial functions.

It is contended upon the part of the plaintiff in error:

1. That a city cannot by charter create a judicial office, such power being conferred upon the legislature by Sections 1 and IS of Article IV of the Constitution of Ohio.

2. That even if a municipality has the power to establish by charter a municipal court, that under the provisions of Section 10 of Article IV of the Constitution it has no power to confer judicial authority upon anyone not elected as a judicial officer.

It is sufficient to say in reference to the first contention that this charter does not purport to establish a court, but, on the contrary, provides that the president of the city commission shall have the judicial functions of a rriayor under the general laws of Ohio, and may use the title of mayor in any case in which the execution of legal instruments of writing, or other necessity arising from the general law of the state, so requires. If, therefore, this officer has any judicial powers whatever, they are conferred upon him by the general laws of the state, and not by any provision of the charter further than that it designates him as the municipal officer who shall to this extent be mayor of the city of Sandusky, until such time as his judicial functions can or may be, by and under authority of the constitution and general laws of the state, performed by some other officer appointed or elected for that purpose.

While it is true that he was not elected mayor' of the city of Sandusky, he was elected as a member of the city commission, with the knowledge on the part of the electors that his election as such commissioner would make him eligible to be selected by the city commission to exercise the judicial functions of mayor under the general laws of the state.

Under the provisions of this charter, the judicial powers of a mayor are not conferred upon one not elected by the people to serve in an official capacity including the exercise of judicial functions, when assigned to the performance of such duties in the manner and method provided by the charter adopted by the qualified electors of the city.

This would seem sufficient compliance with the provisions of Section 10 of Article IV of the Constitution.

The power conferred by this charter upon the city commission to elect one of its members, who, in addition to his other duties, shall exercise the judicial functions of mayor, is similar in some respects to the provisions of Sections 4549 and 4569, General Code, but much more clearly in conformity . to the constitutional provisions relating to judicial officers.

The first of these sections authorizes the mayor, in cities having no police judge, to designate a justice of the peace to perform the duties of the mayor in criminal matters in the absence or during the disability of the mayor. The latter section provides that during the absence, inability, or disability of the police judge, the mayor may select for that purpose a reputable member of the bar, or a justice of the peace residing within the city, who shall have the jurisdiction and powers conferred upon judges of police courts.

In Ex parte Strang, 21 Ohio St., 610, it was held that under the provisions of Section 174 of the municipal code an appointment by the mayor of a member of the bar to hold police court, in the absence or disability of the police judge, regardless of the constitutionality of the statute, is an appointment by one having colorable authority, and that the person so appointed is an officer de facto, and as such his authority cannot be collaterally attacked. The question of the constitutionality of the act authorizing such appointment, however, was not decided.

This proceeding in error is prosecuted to reverse the judgment in a cause pending before an officer whose authority to exercise judicial function was challenged before trial and rendition of judgment. Whether the question can be raised in this way or only in an action in quo warranto it is not now necessary to decide.

Under the constitution of this state a lieutenant governor is elected to discharge certain specific duties attached to that office, yet in case of the death, impeachment, resignation, removal, or other disability of the governor, the powers and duties of that office devolve upon the lieutenant governor; and if the lieutenant governor, while executing the office of governor, shall be impeached, displaced, resign or die, or otherwise become incapable of performing the duties of the office, the president of the senate shall act as governor; and if the president of the senate shall be rendered incapable of performing the duties of governor, the same shall devolve upon the speaker of the house of representatives.

Neither of these officers is elected governor of Ohio, although the constitution requires that the governor shall be elected. All of these officers, who succeed in the order named to the office of governor, are elected officers, some of them, however, only being elected in the county or district of their residence, and yet they may in turn succeed to the office of governor.

It is true that this is by reason of specific constitutional provisions, yet, nevertheless, the principle obtains that an elected officer, on the happening of a certain contingency, may exercise additional functions, other than those pertaining to the specific office to which he was elected.

If the office of mayor is retained by the charter to the extent of the judicial functions exercised by mayors of other cities, Under the general laws of the state, then this method of selection is not unconstitutional.

It is claimed, however, that the office of mayor is abolished by the charter. It is true that Section 78 of the charter provides that when the term of any existing officer shall expire, the office shall be deemed abolished, but it further provides that the powers conferred and the duties imposed upon such officer shall thereafter be exercised and discharged by the commission, officer, board, or department upon whom are- imposed corresponding functions, powers and duties by this charter or by any ordinance or resolution of the city enacted after the adoption of the charter. But even if Section 78 sustains the claim of counsel for plaintiff in error, this entire charter must be construed as a whole.

Construing Section 78 in connection with Section 7 it is apparent that this charter retains the office and title of mayor with all the judicial powers of mayors of other cities undér the general laws of Ohio.

It was held by this court in the case of Flotron v. Barringer, 94 Ohio St., 185, that the character of an officer is determined more by the powers and duties of the office than by the name given to the officer; that the city commission provided for in the charter of the city of Dayton, in so far as its legislative authority is concerned, corresponds to the council of other cities, and is, to all intents and purposes, the council of that city, notwithstanding that that commission is vested with further governing powers not possessed by councils of other municipalities and not legislative in character.

There is a clear analogy between the principle announced in that case and the case afe bar. In this case, excepting administrative functions, the president of the city commission is authorized to exercise the authority conferred by the general laws of the state upon mayors in municipalities having no charter. The charter designates him as president of the city commission, but it also authorizes him to use the title of a mayor in any case in which the execution of legal instruments of writing, or other necessity arising from the general law of the state, so requires.

In so far as he exercises judicial functions, he is the mayor of the city of Sandusky, with authority to use that title.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Johnson, JJ., concur.  