
    AS TO THE APPOINTMENT OF DIRECTORS OF PUBLIC SAFETY.
    Circuit Court of Franklin County.
    The State of Ohio, ex rel Samuel C. Slaybaugh et al, v. Sylvester C. Noble, as Auditor of the City of Columbus.
    Decided, October 12, 1909.
    
      Municipal Corporations — Quo Warranto — Involving Validity of Appointment of Director of Public Safety, where Made August 1, 1909— Section 146 and Other Sections of the Municipal Code as Amended April 29, 190S.
    
    Under the sections of the municipal code as amended, departments of public safety went out of existence on August 1, 1909, and the appointment of directors of public safety on that date was authorized by law.
    
      Williams, Williams & Taylor, Simeon Nash and H. M. Myers, for plaintiff.
    
      George S. Marshall and Edgar L. Weinland, contra.
    Sullivan, J.; Dustin, J., and Allread, J., concur.
    Mandamus.
   The petition of relators shows that they furnished for use of the fire department of the city of Columbus a quantity of oáts, which was’accepted by the city, and that a'vou-ch'er therefor was approved by Foster G-. Burdell, as director of the department of public safety of said city; that they presented said approved voucher to the respondent and demanded that he issue his warrant as city auditor on the treasury of said city for the amount of said approved voucher, which was refused by' said respondent, and that he still refuses to issue the same. They, therefore, pray that they may have the order of this court requiring him to do so.

To this petition the respondent' has demurred, and for his ground of demurrer states that the petition' does not state facts sufficient, to constitute a cause of action, and to entitle the relators to the relief prayed for, Counsel for respondent in support of the demurrer contends that Foster G. Burdell was not at the time he approved said voucher, or at any time theretofore, or now is the director of the department of public safety of said city, and therefore was without authority to approve it, for the reason that his appointment to said position by the mayor of said city was without authority of law; that Section 146 of the municipal code as amended April 29, 1908, by favor of which said appointment is claimed to have been made, does not take effect until the 1st day of January, 1910. Therefore, said appointment was premature and of no effect. Though Section 3 of said act, in language of plain import, provides that the several sections relating to the department of public safety, including Section 146, shall take effect and be in full force on and after August 1st, 1909, yet when the several sections of the act, including Section 146, are construed as a whole, observing the well established, rules of statutory construction, it is claimed that the Legislature did not intend what it said in plain language, but did intend that said section should not take effect until January 1st, 1910.

It is claimed first by respondent’s counsel that this is apparent from the provisions of Section 154a. This section provides for a board of control, to be composed of the mayor, the director of public safety, and the director of public service, and as there can not be an appointment made to the last department until January 1st, 1910, the board of public service, by favor of Section 3 of the act, remains in office and in charge of that department until said date, consequently there can be no board of control until then.'

The duty of this board is simply to determine whether the director of public safety and of the public service shall award contracts involving an expenditure of 'the public money in excess of $500. The mayor is ex officio president. A record of the board’s proceedings is to be kept; all votes shall be by yeas and nays and entered of record, and a majority of all the members shall be necessary to adopt any question.

By Section 154 the director of public safety is positively for- • bidden from creating an obligation in his department against the city in excess of $500, without being first authorized and directecl by ordinance of council; and in making contracts for such an expenditure, he is to be governed by the provisions of Section 143. By the provisions of this section, the director of public safety must first advertise for bids. When the expenditure has been authorized and directed by council, the director shall make a written contract with the lowest and best bidder. The contract shall be between the corporation and the bidder. It would seem from these sections that when the council authorized and directed the expenditure, that the duty enjoined upon the director of public safety was imperative, and the contract would have to be entered into in accordance with the provisions of Sections 143 and 154. These sections are for the purpose of restraint upon the respective directors. When an expenditure exceeding $500 is suggested or said to be needed by either of the directors, the council has the authority to pass upon the wisdom and necessity of the same.

The matter proposed to be safeguarded by Section 154a, ive think finds ample and better protection in Sections 143 and 154, and that the interests of the municipality would not suffer materially if the taking effect of 154a was not only delayed until January 1st, 1910, but indefinitely postponed. We think it more reasonable to assume that the Legislature did not intend 154a to go into effect until January 1st, 1910, than to say it did not intend by the plain language of Section 3 that 146 should take effect August 1st, 1909.

The second ground of respondent’s contention is that if proper force is given Sections 162 and 166, it is clear that the Legislature intended to continue the present system of civil service in force until January 1st, 1910; that Section 162 lends strong color to this conclusion and Section 166 puts it absolutely beyond doubt, and therefore clear, that the contention of respondent is correct as to the legislative intent.

Section 162 provides in effect that chiefs and members of the police and fire departments shall be dismissed for the causes designated in Section 152, and the proceedings in such cases shall be as provided in the latter section, except the appeal shall be to the civil service commission. Dismissals under Section 162 can not be had until it goes into effect, which is January 1st, 1910. When it does take effect the provision of 152, providing for appeals, would not apply to appeals under Section 162, and yet 152/if counsel’s contention was correct, would still be in force by virtue of 166, which provides that no officer, secretary, patrolman, fireman, etc., shall be dismissed at the time it took effect, except in accordance with the provisions of 152. Hence, there would be. two tribunals to which appeals could be-taken. We think this was not intended. The apparent inconsistency between- these sections- furnishes no reason why effect should not be given other sections where the intent of the Legislature is expressed in plain terms capable of literal interpretation.

The several amended sections creating the department of -public safety,-the appointment of a director to administer the department, defining his powers and duties, are sufficient within themselves to be capable of execution without reference to other sections of the act. The sections of the act repealing the old sections and fixing the date when the same shall take effect are in plain and unambiguous- language and easy of interpretation, and -if liter-ally construed, the sections creating the board of public safety, ei seq, were repealed, and the repeal took effect and was in force on and after August 1st, 1909. As the single director is a substitute for the board if the merit system is to continue during the interim, no violence will be done the language of Section 152^ to hold that the appeal therein provided for can as well be taken to the director as theretofore to the board. -

"If the language of the statute is plain and free from ambiguity, and expresses a single, definite and sensible meaning, that meaning is conclusively presumed to be the meaning which the Legislature intended to convey. Tn other words, the statute must be interpreted literally.” Black on Interpretation of Laws, pp. 35 and 36, and cases cited.

Apply this rule in the interpretation of Sections 2 and 3 of the act under consideration, and the conclusion is forced that the amended sections relative to the department of public safety went into force on August 1st, 1909; that the board of public safety went out of existence at that date; and therefore the appointment of a director to that position on the date named was authorized; therefore †-he demurrer to the petition is-overruled at defendant’s costs,  