
    Moxon et al. v. The State, ex rel. Binyon
    (Decided June 9, 1930.)
    
      Mr. Charles A. Colvin, for plaintiffs in error.
    
      Mr. Edward A. Binyon, for defendant in error.
   Sullivan, J.

This cause is here on error proceedings from the common pleas court of Cuyahoga county, which decreed a peremptory writ of mandamus against the plaintiffs in error and in favor of the defendant in error, compelling John R. Moxon and J. Frank Pease, two of the plaintiffs in error, to qualify as “Trustees of the Firemen’s Pension Fund” and “Trustees of the Police Relief Fund” under an appointment duly made under the provisions of Sections 4600 and 4616 of the General Code of Ohio.

Section 4600, as amended July 11, 1929 (113 Ohio Laws, 62), reads:

“Sec. 4600. In any municipal corporation having a fire department supported in whole or in part at public expense, the council by ordinance may declare the necessity for the establishment and maintenance of a firemen’s pension fund. Thereupon a board of trustees, who shall be known as ‘trustees of the firemen’s pension fund’ shall be created, which shall consist of six members who shall be chosen in the following manner: Two members shall be chosen by the city or village council, or other legislative body from among its own members; two members shall be elected by the fire department from members of its own department; two other members shall be residents of the municipality and not members of the council or other legislative body or of the city or village fire department, one of whom shall be chosen by the two members chosen by the municipal council or other legislative body, and one shall be chosen by the two members elected by the members of the fire department. In the event of a tie vote on any matter whatsoever, the six members so chosen shall choose a seventh member, whose vote shall decide the question.”

Section 4616, General Code, as amended July 11, 1929 (113 Ohio Laws, 64), has a similar provision, the one provision relating to the “firemen’s pension fund” and the other to the “police relief fund.”

The city of East Cleveland, under constitutional authority, adopted a charter for the administration of its municipal affairs, and it provided that the city government be vested in a commission of five members, whose election is determined by popular vote of the electors of the city, and there is a provision which is of moment in the instant case because it raises the issue as to a conflict between it and the sections of the General Code herein noted. Referring to the qualification of a member it reads, “He shall not hold any other public office or employment except that of notary public or member of the State Militia. ’ ’

The two plaintiffs in error whose names have been noted have been appointed under the statute, but have refused to qualify for fear that the provision of the charter above noted might disqualify them from legally holding membership in the commission to which they have been elected by popular vote of the electors of the city, and the question arises whether membership on either one or both of the boards of trustees constitutes a “public office or employment.” The second question that arises is whether, if this membership constitutes a public office or employment, will the commissioners in question in qualifying under the trusteeships be violating that provision of the charter which prohibits the holding of public office or employment other than that of notary public or member of the state militia?

In State, ex rel. Armstrong, v. Holliday, Aud., 61 Ohio St., 171, 55 N. E., 175, it is laid down that what distinguishes a public office is that the incumbent is clothed with an independent capacity equal to an act of sovereignty derived from the state and exercised under the authority of law in the interest of the public.

It has been held in Smith v. Lynch, Treas., 29 Ohio St., 261, that membership in a board of health is an office, and in State, ex rel. Kohler, Atty. Gen., v. Anderson, 45 Ohio St., 196, 12 N. E., 656, that the presidency of the city council is a public office, and we find similar decisions in Commonwealth v. Evans, 74 Pa., 124, and State, ex rel. Wingate, Atty. Genl., v. Valle, 41 Mo., 29.

It may be that if the members of the commission in question were not already part of the constituency of the commission the trusteeship would be a public office, but in that event there would be an independent capacity which might éxert acts of sovereignty of the state under the laws. We must consider the question, however, from the standpoint whether appointment and qualification under the trusteeship is a mere adjunct to the office of membership in the commission.

In other words, is the appointment and qualification to the trusteeship one of the instrumentalities by which the commission exercises its power in relation to the pension funds of the firemen and the police? It may be that the members of the trusteeship selected from the body politic under Section 4600 and Section 4616 hold a public office by reason of the fact that they have an independent official identity, but this situation distinguishes itself from the trusteeship of the two members of the commission, because as members of the commission they are clothed with all the paramount powers relating to pensions that control and direct the funds, and it can not be said that the commission under proper procedure cannot, in an ancillary way, in order to accomplish its purpose, choose in conformity to law an instrumentality to carry out and eventuate the legislative purpose.

Under Sections 4605 and 4621, General Code, it is the council, and not the board of trustees, that in each instance levies the tax not to exceed three-tenths of a mill in order to provide funds for the payment of the pensions for the policemen and firemen. This shows that the authority of the commission over the creation of the fund and the purpose of the fund is supreme, and the creation of the trusteeships is the vehicle by which the legislative body fulfills the purpose for which the funds are created.

That a legislative body has the authority to create independent bodies to act as instrumentalities to carry out its purposes there can be no question, and the trend of opinion has gone in this direction so far that even Congress creates many commissions, which, in a technical if not in a practical sense, exercise legislative authority, and a special instance is where there is ample authority for the President, even though an executive, to lower and increase tariff rates under the authority of what is known as the flexible provisions of the Tariff Act.

Thus, it is our judgment that membership in the board, so far as the two plaintiffs in error who have membership in the trusteeship are concerned, is not the holding of an office under the law, and therefore we see no conflict in the provisions of the General Code noted and the provisions of the Charter which prohibit the members of the commission from holding any other office or employment except that of notary public or membership in the state militia. This view is accentuated by the fact that it was not the intention of the legislative body of East Cleveland to include membership on the part of the trustees as violative of that provision of the Charter which excludes office holding in addition to membership on the commission except in the two instances named, and a reading of the language of Section 31 of the Charter maintains this view. We quote this section as follows:

“Relief of Policemen and Firemen. See. 31. The Commission may provide by ordinance for the relief, out of the police or fire pensions, of members of police, fire and sanitary forces temporarily or permanently disabled in the discharge of duty. Nothing in this section shall impair, restrict or repeal any provision of general law authorizing the levying of taxes to provide for police, firemen and sanitary police pension funds and to create and perpetuate boards of trustees for the administration of such funds.”

This section, of course, is part of the charter, and refers to police and fire pensions, and in order to eradicate any intention on the part of the legislative body to create a conflict in the laws, there is inserted the negative provision that there would be no impairment or repeal of any provision of the general law relating to the pension funds or to the creation and perpetuation of the board of trustees for the administration of the fund.

Hence it is our judgment that the plaintiffs in error are not holding an additional office by qualifying for membership on the board of trustees for the disbursement of the pension funds. The trustees are merely the instruments to carry into effect the purposes for which the commission levied taxes to create the fund to be disbursed in the manner provided by Section 4628, General Code, and the other provisions relating to the firemen’s pension fund.

Prom the views expressed it is immaterial whether there is a conflict in the provisions, because that question would only become vital should plaintiffs in error by qualifying under the appointment to the trusteeship become the incumbents of an additional office, instead of simply assuming duties which were consistent with and derived from their powers and duties under the law relating to the funds in question as members of the commission created by popular vote.

Thus holding, the judgment of the common pleas court is hereby affirmed.

Judgment affirmed.

Vickery, P. J., concurs.

Levine, J., not participating.  