
    The State of Ohio ex rel. George W. Louthan v. James Taylor.
    Where a member of the board of directors of a county infirmary was, by said board, appointed to the office of superintendent of the county infirmary, he still continuing to hold the office of director — Held,
    That the duties of the two offices are incompatible, and can not be legally held by the same person at the same time; and such appointment was, therefore, illegal and void.
    Quo Warranto. Error to the district court of Butler county.
    On the 14th day of February, 1859, James Taylor (the ■defendant in error), Samuel Shaffer and James B. Thomas, constituted the board of directors of the infirmary of Butler county. On that day, this board, in pursuance of section 4, of “ an act to authorize the establishment of poor houses,” (3 Curwen’s Stat. 243), proceeded to appoint a superintendent of the county infirmary. By the votes of Taylor and Shaffer, Taylor was appointed to the office in question, Thomas casting his vote for another person. The board then fixed the salary of Taylor, as superintendent, at $600 per annum; whereupon he entered -upon the discharge of the duties of that office, still continuing to hold the post of director, but consenting to serve in the latter capacity without compensation.
    The prosecuting attorney of Butler county, on the relation of Greorge W.' Louthan, the previous superintendent, by leave of one of the judges of the supreme court, on the 24th day of March, 1859, filed in the district court of that county, an information in the nature of a quo warranto, praying the removal of Taylor from the office of superintendent.
    An answer and replication were filed, putting in issue the legality of Taylor’s appointment.
    The case was tried at the May term, 1859, of the district court, when the facts above recited were admitted by the parties. The court decided Taylor’s appointment as superintendent to be valid; and he continued to hold that office, as well as that of director, at the time the cause was tried in the district court.
    To reverse this decision of the district court, the presen! proceeding in error was instituted.
    
      F. Vanderveer, prosecuting attorney, and Clark &¡ Ryan, for the relator, argued as follows:
    Two questions are presented for the consideration of the iourt:
    1. Is the office of superintendent of a county infirmary, one, for intrusion into which, an information in the nature of a quo warranto will lie ?
    2. Was the appointment of the defendant in error to the office in question, a valid and legal appointment ?
    1. Sec. 1, of an ££ act relating to information in the nature of quo warranto, and regulating the mode of proceeding thereon,” provides that an information in the nature of a quo warranto, may be filed in the supreme [district] court of the proper county, “ when any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in any corporation created by the authority of this state.” 1 Cur-wen’s Stat. 562.
    The office of infirmary superiritendent is created, and its duties defined, by section 4, of “ an act to authorize the establishment of poor houses,” (3 Curwen’s Stat. 2431), which reads as follows:
    “ That the board of directors shall appoint a superintendent, who shall reside in some apartment of the poor house, or other building contiguous thereto;-and shall receive such compensation for his services, perform such duties, and give such security for their faithful performance, as the board shall judge proper; he shall be governed in all respects by the rule.s and regulations of the board, and may be removed by them at pleasure; he may require all persons received into the poor house, to perform such reasonable and moderate labor, as may be suited to their ages and bodily strength; the proceeds of which shall be appropriated to the use of the institution, in such manner as the directors may point out.”
    It is claimed that the office of superintendent, thus created and defined, is not a “public office” within the meaning of the quo warranto act.
    What is a public office ?
    “ An office is the right to exercise a public function or employment, and to take the fees and emoluments belonging to it.”
    “ Offices may be classed into civil and military.”
    “ Civil offices may be classed into political, judicial and ministerial.” * * * * *
    “Ministerial offices are those which give the officer no power to judge of the matter to be done, and require him to -obey the mandates of a superior.” 2 Bouv. Law. Diet., Title “ Office.” See, also, State v. Kennon et al., 7 Ohio St. Rep. 556.
    It will not be denied that a county infirmary is a public institution. Its superintendence and management is, therefore, a “public function or employment.” The power to make rules and regulations for its government, and to decide upon the admission of inmates, is vested in the board of directors. The ministerial duty of carrying into effect the regulations of the directors, and the discretionary duty of requiring “ all persons received into the infirmary to perform such reasonable and moderate labor, as may be suited to their ages and bodily strength,” are vested in the superintendent. The superintendent, though subordinate to the directors, and in that respect a ministerial officer, nevertheless as much exercises “ a public function or employment,” as the directors, who prescribe the duties which he is to perform, and the regulations by which he is to be governed. Both directors and superintendent are required by a public statute, to perform their respective parts in the administration of the public charity; the former are required to direct the mode of its administration, the latter is required to execute such direction ; but the discharge of both duties is essential to the complete performance of this “important public function.” It is also provided that the superintendent “ shall receive such-compensation for his services as the board shall judge proper.” Is not, then, the superintendent of a county infirmary, one who, in the language of the definition, has “ a right to-exercise a public function or employment, and to take the fees and emoluments belonging to it ?” If so, he is a “ public-officer.” The facts that he is removable at the pleasure of the-directors, and that the term of his office is of uncertain duration, do not alter the case.
    2. Was the appointment of Taylor to the office in question-legal and valid?
    It must be remembered, that he, in effect, appointed himself, by giving the casting vote in his own favor. It will no doubt be contended that, inasmuch as there is no statute expressly prohibiting this, thé act was- legal. And much will be sought to be inferred from the fact, that the act prohibiting any citizen of this state from holding, at the same time, more than one of certain specified offices, does not enumerate the two offices of infirmary director and superintendent. All, however, that can be inferred from this statutory silence, is, that any citizen of the state is capable of having conferred upon him, any two or more offices, the cotemporaneous holding of which by the same person, is not prohibited; but this is far from saying that any citizen, under any circumstances, may confer upon himself, any office whatsoever. The word appoint, when used in connection with an office, ex vi termini, implies the conferring of authority upon another. It was not necessary, therefore, that the statute should, in express terms, prohibit the infirmary directors from appointing one of their own number superintendent; for the language, ££ the board of directors shall appoint a superintendent,” necessarily means, that the person appointed shall be different from those who appoint.
    
    The precise question here presented, was decided by the .supreme court of Pennsylvania, in the case of The Commonwealth v. Douglass et al., 1 Binn. Rep. 77. An act of the .legislature of Pennsylvania, passed in 1791, provided: <£ That It shall and may be lawful for the mayor and two aldermen ■of the city of Philadelphia, and two justices of the peace of 'the county of Philadelphia, to appoint inspectors of the prison -of the city and county of Philadelphia, on the first Mondays of May and November in every year, and on any other days when vacancies shall happen in the said office, by death, resignation, or otherwise.” On the first Monday of November, 1803, the mayor summoned the requisite number of aldermen ¡and justices, and six inspector's (the legal number), were •appointed, among whom was John Douglass, one of the appointing aldermen. Previously to the day of appointment, several aldermen and justices of the city and county, other than those summoned by the mayor applied to the mayor for Information as to the place and hour at which the appoint¡■ment would be made, which information was refused. Proceedings in quo warranto were instituted to remove the six inspectors so appointed. The case was elaborately argued by counsel; and, after careful consideration, a majority of the court, Judge Brackenridge dissenting, held the appointment illegal as to all the appointees, on the ground of the clandestine manner in which it was made; but the court unanimously held, that whatever doubt there might be as to the other defendants, as to Douglass the case was clear; and, in disposing of that branch of the case, Judge Yeates, who delivered the opinion of the court, used this explicit language:. “ One having discretionary authority to appoint a fit person to a public office, appointing himself, seems a solecism in terms ; and it can not be deemed the fulfillment of his duty.” If it be “a solecism in terms” to say, that five persons may appoint one of themselves to an office within their gift, what an absurdity it is to assert, that one of a board of three invested with appointing power, may, by his own casting vote', confer an office upon himself!
    In conclusion, permit us to call attention to the utter inconsistency of permitting the offices of director and superintendent to be held by the same individual. Such a union of offices gives the defendant a vote, and it may be the deciding one, in fixing the amount of his own salary; in the adoption of rules defining his- own duties, rendering them more or less onerous; in determining the amount and sufficiency of the security which he shall give for the faithful performance of his trust; and in deciding upon the duration of his own term of office : he is invested with visitatorial power over himself ; and, finally, he is made an inspector of his own boohs and accounts. 3 Curwen’s St. 2431, secs. 4 and 5. To permit a man thus to be “judge in his own cause,” would be to convert the very checks and safeguards which t'he law has provided against fraud and peculation, into potent instruments of corruption and iniquity.
    In support of the proposition, that “ a visitor can not visit himself, and inquire into and decide upon the propriety of his own conduct,” see Ang. & Ames on Corp., sec. 688.'
    
      Thomas Millihin, for defendant.
   Brinkerhoee, J.

Concurring with counsel for the relators in their view of the law of the case, the judgment of the district court will be reversed at the defendant’s costs; but, as it is understood that he has ceased to exercise the office of superintendent of the county infirmary under the appointment contested in the case below, there will be no judgment of ouster.

Scott, C.J., and Sutliee, Peck and Gholson, JJ., concurred.  