
    The State of Ohio ex rel. William Bellows v. The City Council of Cincinnati.
    An ordinance of the city of Cincinnati passed in pursuance of the twelfth sectionof the act ofMareh 5, 1860, “relatiug to cities of the first class,” etc. 12 S. & O. stat. 1559) providing for the appointment of an inspector and sealor of weights and measures by the city solici tor from among persons designated by the board of officers of the chamber of commerce, is a valid ordinance ; and when such inspector and sealor is duly appointed in accordance with the provisions of such ordinance, and thereupon tenders to the city council for their acceptance an official bond in all respects unobjectionable, the city council hava< no discretion left, and must accept the bond.
    Motion for a peremptory mandamus.
    
      On the motion of the above named relator, an alternative writ of mandamus was, on the 22d day of January 1861, allowed and issued by this court, and reads as follows :
    “ The State of Ohio, ss.
    “ To the city council of the city of Cincinnati.
    “ Whereas it has been represented to us, the judges of the supreme court of the state of Ohio, nowin session at the city of Columbus, Ohio, by information filed in our said court by William Bellows, that he has been lawfully appointed and made inspector and soalor of weights and measures, within and for the city of Cincinnati, county of Hamilton, and State of Ohio, in pursuance of an ordinance of the city council of said city of Cincinnati, passed October 24th, A. D. 1860.
    “And further, that in accordance with the ordinance aforesaid, the board of officers of the chamber of commerce of said city of Cincinnati, did, on the 15th day of November A. D. 1860, designate William Bellows, as a suitable person to discharge the duties pertaining to the office of inspector and sealer of weights and measures, and did recommend him to R. B. Hayes, city solicitor, for appointment to that office.
    “And it is further represented to us that the said R. B. Hayes, city solicitor, in compliance with said ordinance of the city council and said recommendation of the chamber of commerce, did, on the 21st day of November, A. D. 1860, appoint as inspector and sealer of weights and measures, within and for said city of Cincinnati, the said William Bellows, for the term of three years from and after the 21st day of November, A. D. 1860. That on the 6th day of December A. D. 1860, having been lawfully appointed inspector, as aforesaid, he took the oath of office, as prescribed in the 81st section of the charter of said city.
    “ And it is further represented to us that on the ninth and sixteenth days of January A. D. 1861, the said William Bellows presented to the said city council, his bond, with proper penalty and surety, for the faithful discharge of the duties of his office as such inspector and sealer, in conformity to an ordinance of said city council, passed December 12, A. D. 1860.
    
      “And it is further represented to us, that his said bond was a good and sufficient security to said city council, and to said city of Cincinnati, against any failure on his part to do his official duty, but the said city council, refused and still refuses to accept said bond, not by reason of the insufficiency of the bond, but for other and wholly unimportant reasons.
    “ Now, therefore, we being willing that justice may be done in the premises, do command you, the said city council of the city of Cincinnati, without delay, to accept the said bond of the said William Bellows, and to provide him with the proper and necessary standards of weights and measures for said city, or that you show cause why you fail to do so, before our said court, on or before the second day of March A. D. 1861, at the supreme court room, in the city of Columbus, in said State; and have you then and there this writ.”
    The alternative writ having been served and returned, the city council on the first day of March, 1861, filed the following answer:
    “ Now come the city council of the city of Cincinnati, by John F. Torrence, President of said city council, and for answer to the information filed against them by William Bellows, and to show cause why they have hitherto refused to accept the bond of said Bellows, mentioned in said information, state that it is not true that said Bellows, as alleged in said information, ‘ has been lawfully appointed and made inspector and sealer of weights and measures within and for the city of Cincinnati,’ because they sa,y that the said ordinance of the city council of said city of Cincinnati, passed October 24th, A. D. 1860, is null and void: That said ordinance contains the following proviso relating to all appointments made under and by virtue of said ordinance, viz: ‘Provided that such appointments be made from persons designated by the board of officers of the chamber of commerce.’ And respondent says that said board of officers of the chamber of commerce, are not officers of said city of Cincinnati, and said city council has no authority to vest in said board any official powers or duties. Wherefore respondent asks to be hence discharged without .costs.”
    
      Thereupon the relator moved the court for a peremptory writ, and both parties submitted the case upon the allegations of the alternative writ and answer.
    
      Stephenson & Noyes, for the relator.
    
      Hayes & Lippitt, for the defendant.
   Brinkerhoff, J.

It is not controverted that the office of inspector and sealer of weights and measures for the city of Cincinnati, has been legally created by virtue of the laws of the State and certain ordinances of the city passed in pursuance thereof, nor that the acceptance of his official bond is a necessary qualification to entitle him to enter upon his official duties.

Prior to the passage of the act of March 5, 1860, “ relating to cities of the first class, having a population exceeding eighty thousand inhabitants,” (2 Swan and Critchfield’s stat. 1557), the appointment of this office was vested in the city council. But, by the twelfth section of that act, it is provided, that.

The city council of such city shall make no contracts, nor authorize any to be made subject to their approval, nor shall they exercise any appointing or approving power; hut the appointment of officers, and filling vacancies in office, and the making of contracts, shall he provided for hy ordinance.”

This wise statutory prohibition was, doubtless, intended, as it is certainly well calculated, to relieve the municipal legislature from the distracting and corrupting influences almost necessarily issuing from the dispensation of official and pecuniary patronage; and places the municipal legislature, in respect to the appointing power, in a position substantially similar to that in which the general assembly of the State is placed, by the constitution of the State.

-Accordingly, in pursuance of this section of the -statute, the city council, on the 24th day of October 1860, passed the following ordinance, “ to provide for the appointment of inspectors of flour and provisions, and inspector and sealer of weights and measures:”

“ Be it ordained by the city council, of the city of Cincinnati that it shall be the duty of the city solicitor of said city to make all appointments of inspectors of flour and provisions, and inspector and sealer of'weights and measures, which appointments have heretofore been vested in the city council of said city — Provided, that such appointments be made from persons designated by the board of officers of the chamber of commerce. The duties of said inspectors shall be the same as shall be prescribed in the ordinances upon that subject. Done at the council chamber, in the city of Cincinnati, this 24th day of October, A. D. 1860.

John E. Torrence, President.”

Attest: Samuel L. Corwine, City Clerk.

By the allegations of the alternative writ, and the silence of the answer, it stands admitted that the relator was appointed, in all respects, in accordance with the provisions of the city ordinance on the subject, and that his bond and sureties are sufficient and unobjectionable. Why, then, is the bond not accepted ? It would be uncharitable to suppose that the refusal of the city council to accept it, is dictated by a desire to retain the “ approving power,” or, indirectly, the power to dictate an appointment, contrary to the express enactment of the general assembly of the State; and so we must look to their answer for the reason of such refusal. They say their own ordinance, regulating the' appointment of this officer, is null and void, because it requires the appointment to be made by the city solicitor, from “ persons designated by the board of officers of the chamber of commerce.”

We are wholly unable to perceive any connection, either in logic or law, between the premises and the conclusion thus announced. The chamber of commerce is a body corporate, with perpetual succession, required to have a board of officers, and whose corporate existence is in no wise dependent Upon, and whose board of officers are in no way subject to the control of, the city council (48 O. L. L. 554). And consequently it can not be said that the city council, by vesting this power of designation in such board of officers, are retaining in their own hands, indirectly, any portion of the “ appointing or approving power,” which is the thing mainly to be avoided, as it is the thing against which the policy of the general assembly is principally leveled.

The board of officers of the chamber of commerce are not restricted as to the number of persons” whom it shall designate” to the city solicitor, from among whom an appointment shall be made; and the practical effect of the provision is substantially this — that the appointment shall be made from persons whose qualications and fitness the board of officers of the chamber of commerce is willing to indorse. In this we can see nothing in conflict with either the letter or spirit of the act under which the ordinance is framed; and, on the other hand, the provision itself seems to us to be a judicious and politic regulation; for the board of officers of the chamber of commerce, representing, as it probably does, the great mercantile interests of the city, will naturally feel a peculiar interest in promptly designating persons properly qualified for the duties of the office. It is possible, to be sure, that the city solicitor might persistently refuse to appoint any person designated by the board of officers of the chamber of commerce; and this might give rise to a necessity for taking •measures to remove him frpm office, or to compel him to discharge his duty; or the board of officers might neglect or refuse to designate any persons for appointment, and thus render a modification of the ordinance necessary; but, be this as it may, the objection is one which goes to the policy, and not to the validity, of the ordinance.

If the bond tendered for the acceptance of the city council was defective in form or amount; if the sureties were insufficient, or otherwise, for good cause, objectionable, they might well refuse to accept it; but, as nothing of this kind is alleged, it seems to us that the city council have no discretion left them, and must accept the bond.

Peremptory mandamus awarded.

Scott, C.J., and Sutliff and Gholson, JJ., concurred.

Peck, J., having been absent when this case was considered, did not participate in its determination.  