
    POLICE AND FIRE CHIEFS.
    [Butler (1st) Circuit Court,
    February 2, 1904.]
    Giflen, Jelke and Swing, JJ.
    State, ex rel. Sipp, v. Charles A. Stroble.
    1. Who Ineligible to Appointment as Chief of Police — No Appointment Unless Service Classified.
    A person is ineligible to appointment as chief of the police or fire department ot a municipality who was not a member of such departments when the new municipal code went into effect, to wit, May 1, 1903, or who has not passed the' examination required by Sec. 159 (Sec. 1536-695 Rev. Stat.) ; and inasmuch as Secs. 149 and 150 (Secs. 1536-685 and 1536-686 Rev. Stat.) require such officers to be appointed from the classified list of such departments, no' appointment can be made when the directors of public safety have failed to classify the service in such departments as required by Sec. 153 (Sec. 1536-689 Rev. Stat.).
    2. Offices of “Superintendent of Police'’ and “Chief of Police" Identical, etc.
    The offices of “superintendent of police” and “chief of the fire department” under the special act of March 25,1898 (93 O. L. 500, applicable only -to the city of Hamilton) and “chief of police” and “chief of fire department,” respectively, created by Sec. 148 et seq. (Sec. 1536-684 Rev. Stat. et seq.) have substantial identity of functions and are identical, and each respective office can he filled by but one incumbent; and as the police and fire departments of all municipalities must be reorganized under Sec. 148 et seq. (Sec. 1536-684 Rev. Stat. et seq.) to meet so far as possible the conditions existing under the repealed statutes and to preserve the personnel of the old departments and standing of the persons composing it, the incumbents of the office of “superintendent of police” and “chief of the fire department” of the city of Hamilton at the time the new code went into effect, to wit, May 1, 1903, are entitled to he continued in office as “chief of police” and “chief of the fire department” of the reorganized departments under the new municipal code and cannot, under Sec. 167 (Sec. 1536-703 Rev. Stat.), be removed of reduced in rank or pay except in accordance with the provisions of the new code; and if such incumbents are removed other than as so provided and others appointed in their stead, the latter will be ousted.from office and the former reinstated.
    3. Incumbent of Office Under Invalid Act is De Facto Officer.
    The incumbents of the office of “superintendent of police” and “chief of the fire department” of the city of Hamilton at the time the new municipal code went into effect, to wit, May 1, 1903, were officers de facto and are within the protection of Sec. 167 (Sec. 1536-703 Rev. Stat.), notwithstanding the act of March 25,1898 (93 O. L. 500), creating the offices and under which they were acting is unconstitutional.
    M. O. Burns, Judge Neilan and Ellis G. Kinkead, for the .relator.
    Richard Shepherd and Warren Gard, contra.
   JELKE, J.

We have had no trouble in coming to a conclusion that the charges filed with the mayor against the relator were insufficient ‘ and that the trial under the same was void and of no effect in law.

We are further satisfied that the appointment of C. A. Stroble was contrary to law, 96 O. L. 70, Sec. 149, providing “The chief of police shall be appointed from the classified list of such department,” because on August 15, 1903, the classified list as required by 96 O. L. 71, Sec. 153, had not been made up and established, and if it had, C. A. Stroble could not have legally been on it as he had neither passed an examination nor been a member of the police department prior to May 1, 1903, the time when the new code went into effect.

The only real difficulty is to determine the official status of Jacob Sipp, the relator herein, between May 1, 1903, the day when the new' municipal code went into effect, and August 15, 1903, the day of the appointment of the said C. A. Stroble, and said Sipp’s right under Sec. 6764 Rev. Stat. to maintain this action. Prior to May 1, on April 28, 1903, Jacob Sipp was duly appointed to the office known as “superintendent of police” as provided by Sec. 18 of the then existing charter of the city of Hamilton, created by, an act of the general assembly passed March 25, 1898.

Section 149 of the new' municipal code (96 O. L. 70) provides that:

“The police department of each city shall be composed of a chief of police and such inspectors, captains, lieutenants, sergeants, corporals, detectives, patrolmen, and other police court officers, station house keepers, drivers, and substitutes as shall have been provided by ordinance or resolution of council.”

The cardinal question is whether or not the office of “superintendent of police” created under the charter is identical with the office of “chief of police” provided in the new code. If the office is identical, since the same permits of but one iheumbent, then Mr. Sipp became by virtue of the new code, going into effect under 96 O. L. 75, Sec. 167, the chief of police of Hamilton. The case of Kirker v. Cincinnati, 48 Ohio St. 507, 508 [27 N. E. Rep. 898] is instructive on this point in distinguishing the case of Reemelin v. Mosby, 47 Ohio St. 570 [26 N. E. Rep. 717] :

“It is argued that the separate character of the two boards is recognized in Reemelin v. Mosbv, 47 Ohio St. 570 [26 N. E. Rep. 717]. This may seem so from the second clause of the syllabus. But no such question was involved, nor considered or necessary to be considered, in that ease. It is true that the members of the new board are there referred to as members of another board. In one sense this is true, in another it is riot: With regard to the personnel, a change in the membership makes another board, but with regard to its functions, the board remains the same so long as its functions remain unchanged.”

Here the court points out, that, under the general law7, where the issue is as to the validity of their acts, the identity of two boards is to be determined by the identity of their functions, no matter what the respective names of such boards may be and regardless of the persons composing them. But here the general law is further modified by the express civil service provisions of the municipal code as to the police department, which provisions concern themselves particularly with the personnel of the office.

These provisions graft onto the law of the organization of the police department the principle of retaining in office those duly appointed to office. 96 O. L. 75, Sec. 167 provides:

“No officer or employe in the department of public safety shall be removed or discharged except for cause; and the cause of removal of any person shall be forthwith stated in writing by the mayor to the board, and shall be filed by the said board in its office, and shall be open to public inspection.
“No officer, secretary, clerk, sergeant, patrolman, fireman or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect shall be removed or reduced in rank or pay except in accordance with the provisions of this ' act.”

In the case at bar we find a substantial identity in the functions of the offices of superintendent of police under the old charter and of chief of police under the new code. We further find explicit statutory direction that the organization of the police department under the new code is to be made to fit so far as possible the conditions existing under the old charter for the purpose of preserving the personnel of the department and the standing of the persons composing it. In this way only can 96 O. L. 75, Sec. 167 be given due effect. It would be impossible in any other way to keep Jacob Sipp on the force without reducing him in rank, as required by this section. Hence we are of opinion that on and after May 1, 1903, Jacob, Sipp was under the law chief of police of the city of Hamilton.

No matter what the Supreme Court might now hold as to the constitutionality of the act of March 23, 1898, the decision of the Supreme Court in State v. McMaken, 58 Ohio St. 731 [51 N. E. Rep. 1101], gave sufficient color of law to make Jacob Sipp a de facto officer on May 1, 1903. We are sustained in this view by what was evidently the view of the mayor and board of public safety at the time when they instituted proceedings against said Sipp. The idea that he could have sustained any other relation to the police department was only invented after the complete illegality and vanity of the proceedings against him became obvious.

We are therefore of opinion that a judgment of ouster should issue against -C. A. Stroble and of reinstatement of Jacob Sipp.  