
    State ex rel. Attorney General v. Jennings et al.
    
      Public office — What constitutes — Quo warranto will lie, when — Fireman not a public offi.cer.
    
    1. An office created by an ordinance is abolished by the repeal of the ordinance, and the incumbent thereby ceases to be an officer.
    2. To constitute a public office, against the incumbent of which quo warranto will lie, it is essential that certain independent public duties, a part of the sovereignty of the state, should be appointed to it by law, to be exercised by the incumbent, in virtue of his election or appointment to the office, thus created and defined, and not as a mere employe, subject to the direction and control of some one else.
    3. Where, in pursuance of an ordinance, a fireman is employed by the council to perform the usual duties of a fireman ; who has no control of the fire department, or its property other than in the use-of it; performs his duties subject to the chief of the department and the city council; and is paid by the month for his services, he is not a public officer; and cannot be ousted from his employment by a proceeding in quo warranto, on the ground that he should have been appointed by the mayor with the advice and consent of the council.
    (Decided January 26, 1898.)
    In Quo Warranto.
    
      F. S. Monnett, attorney general; J. A. Flory, S. L. James and B. G. Smythe, for plaintiff.
    This action is brought by the plaintiff in quo warranto to oust the city council of the city of Newark, Ohio, from exercising rights, privileges and franchises not conferred upon them, and from misusing their privileges and rights as such city council in appointing persons to hold offices in said city in its fire department without appointment from the mayor of said city; and in the appointment of persons to hold offices in the electric light department of said city without the appointment of the mayor of the city under the general statutes, or without the appointment of the trustees of said electric light department as provided for in the act of the legislature of May 9, 1894. 91 Ohio Laws, page 719.
    On the solution of these questions depends the decision of cases No. 5767 and 5768 in this court and they should be considered together, and they all depend upon the question: Has the city coun-
    cil the lawful right to exercise the power to hire the persons to hold these positions in the fire department and the electric lig’ht department of the city ?
    In the organization of municipal corporations in Ohio the legislature has provided a uniform code of laws to govern them.
    And such municipal corporation and its officers have only such powers as are given by these general local laws, and such implied powers only as are absolutely necessary to carry those specifically given into execution and effect. Revised Statutes, section 1678; 45 Ohio St., 118.
    The general powers conferred upon municipal corporations are contained in section 1692 of the statutes, while other special powers and modes of carrying out those provided for in section 1692 are contained in other parts of the statutes bearing on the subject.
    This leaves the only inquiry in considering each of the classes of persons whose appointments are in controversy.
    
      Fwsfr — Can any office be created" except by law or ordinance ?
    
      
      Second — -Are the positions held by these persons, offices, the appointments to which fall within the provisions of section 1711 ?
    The council by paragraph 30 of section 1692, Revised Statutes, is authorized by means of an ordinance £ £to organize and maintain a fire department.” This is also further provided for in section 2470. This provides for a separate department of the municipality which has its own head and corps of persons to operate it, and it must be created, organized and maintained by ordinance.
    To carry out these powers granted in section 1692, the legislature, in order to protect the public and citizens of the corporation, has provided how the persons retained to discharge these public duties shall be appointed. Sections 1707, 1710, and 1711.
    These departments being required to be created, organized and maintained by ordinances, the positions therein are to be filled by appointment or election; if by appointment,then the appointment, under the clear provisions of the above sections, must be first made by the Mayor and cannot be made by the council or a majority of the members thereof.
    The duties of the persons employed in these departments are official duties, necessary, and recognized by all of the ordinances relating to the departments as being necessary to the organizing, maintaining, and to the carrying on of the said departments. The ordinances of June 17, 1895, created the offices and called them such; required the incumbent to take an oath of office and give an official bond. The law stamps upon the positions the office and by no sort of manoeuvering can a majority of the council change it.
    An officer is one exercising the duties of a certain position that is established by law or ordinance.
    The duties to be performed must be prescribed by law or ordinance under sections 1709, 1712 and 1713. The duties they perform appertain to the state, or public at large, as distinguished from mere municipal duties, and persons occupying the position are regarded as state or public officers as well as municipal officers. 7 Am. and Eng. Enc. of Law, first ed., page — . Tiedman on Municipal Corporations, sections 333, 333a; Beach on Public Corporations, section744; Wheeler v. Cincinnati, 19 Ohio St., 19. It is the dutyof the position, and nature of that duty, which makes him an officer. Shelly v. Alcorn, 72 Am. Dec., 133 and note; State v. Kennon, 7 Ohio St,, 548; Ex Rel. v. Brennon, 49 Ohio St., 37; State ex rel. v. Wilson, 29 Ohio St., 347; 2 Burrell Law Dictionary, page 257 ; State ex rel. v. Squire, 39 Ohio St., 197; State ex rel. v. Brady, 42 Ohio St., 504. That they are officers is fully recognized in sections 2474 and 2475 of the statutes.
    
      Thos. B. Fulton, city solicitor; J. B. Jones and S.M. Hunter, for defendants.
    
      First — Did the repeal on the 23d day of June, 1897, of the ordinance of June 17, 1895, ‘ipso facto, put out of office all persons who had previously been appointed by the mayor and confirmed by the council, and were at the time of the repeal serving the city in the various offices repealed ? We think it did. Knoup v. The Piqua Bank, 1 Ohio St., 603 ; The State ex rel. v. Wright, 7 Ohio St., 333; Gano v. State ex rel., 10 Ohio St., 238; State ex rel. v. Hawkins, 44 Ohio St., 98 ; 1 C. S. C. R., 145; 37 Ohio St., 98.
    
      Second — Did the resolutions, passed July 12, 1867, have the effect of discharging the parties sought to be .inducted into the fire department and electric light department, independent of the repeal of the ordinances of June 17,1897?
    The discharging resolutions were in the language following:
    “ Resolved by the City Council of the City of Newark, Ohio, thatthe services of Charles Ritter, as fireman, are no longer desired and the City Clerk is hereby directed to so notify him.” Section 1685, Revised Statutes. These officers removed by the above resolutions were all appointed, and come, as we think, under the first clause of section 1685. Dougan v. District Court, 22 Am. Law Reg., (N. S.) 528.
    
      Third — We think the persons sought to be inducted cannot be placed in the positions, or places, they seek for the reason that they are now enjoined by a court of competent jurisdiction from holding these positions, or entering into either the fire department, or light plant, to discharge the duties of the respective places or positions.
    We claim that the firemen of the fire department and engineer, firemen and trimmers in the electric light plant are not officers under the ordinances of the City of Newark, or the statutes of the state.
    The present ordinances gives them no tenure, and they take no oath, give no bond, and have no rights or obligations different from any ■ ordinary employee. The statute certainly does not make them officers. Section 1707 provides who shall be officers in such corporations as Newark. 49 Ohio St., 33; 7 American Decisions, 179.
    The following have been held not officers: Deputy clerk probate court. 25 Ohio St., 21. Jury commissioners held not officers requiring election. 52 Ohio St., 346; State v. Gardner, 54 Ohio St., 49; The Trustees Cincinnati Southern R. R. Co., 21 Ohio St., 14; The People ex rel. Crane, and said Crane against Rider, 12 N. Y., 433; People v. Perley, 80 N. Y., 624. Quo warranto only lies against the usurper of a public office. It will not lie against a mere employment or agency. 19 Enc. of Law, 668; 14 Pa. St., 177; 30 Ala., 66; State v. Lyons, 31 Ia., 432; Attorney-General v. Salem, 103 Mass., 138; State v. Boal, 46 Mo., 528., 24 Wis., 63; 19 Enc. of Law, 680.
    The writ of quo warranto does not lie against any municipal body exercising- unlawful powers. 7C.C., 152, text, 155.
    In Great Britain, it will not lie for exercising the office of guardian of the poor for a union, under 4 & 5 Wm. IV., ch. 76; 19 Enc. of Law, 671.
    The office of governor and director of the poor of an incorporated district is not such an office as that for the usurpation of which quo warranto will lie. 3 Ad. & EL, 456; 19 Enc. of Law, 671.
    It will not lie against overseers. 1 Bott’s P. L., 324; 19 Enc., 671.
    Nor to inquire into the election of an assistant overseer. Reg. v. Simpson, 19 W. R., 73; 19 Enc. of Law, 671.
    Nor for the office of trustees under a public local act, and which officers exercised extensive public duties, and were under extensive public responsibilities. Reg. v. Hanley, 3 A. & E., 463, n.
    
      Nor will it lie for the office of master of a hospital and free grammar school, established by a royal charter. Reg. v. Mousley, 8 Q. B., 946; 19 Enc. of Law, 671.
    Nor for an office of great trust and pre-eminence within the borough, touching the election and return of burgesses to serve in Parliament. Rex. v. M'Kay, 6D. & R., 432; 19 Enc. of Law, 671.
    Nor for the office of church warden. 19 Enc. of Law, 671.
    Office embraces the idea of rights and powers as well as duties. U. S. v. Hartwell, 6 Wallace, 385.
    Fireman are not officers. People v. Pickney, 32 N. Y., 377, et seq.; Trustees v. Roome, 93 N. Y., 313.
    Chief clerk in the office of assessor of the City of Detroit, although independent of assessor, not an officer. People v. Langdon, 40 Mich., 673.
    Superintending architect of public works of New York not an officer. Olmstead v. Mayor, 42 N. Y. Superior Court, 289.
    A road supervisor is not a public officer. State v. Putman, 35 Iowa, 561.
    The medical superintendent of the asylum for the insane at Ward’s Island is not an officer. McDonald v. Mayor, 32 Hun., 89.
    A bridge tender is not an officer. State v. Board of Public Works, 51 New Jersey Law, 240.
    The enrolling clerk of House of Representatives is not a public officer, but a mere employee. State v. Gardner, 43 Alabama, 234.
    A pilot is not a public officer. Dean v. Healey, 66 Georgia, 503; Bunn v. People, 45 Ills., 397; Opinions of Judges, 3 Maine, 481; 19 Eng. & Am. Enc. Law, 388 and notes.
    While a public printer is not usually a public officer,' it is entirely competent for the legislature to make Mm one. Walker v. Dunham, 17 Ind., 483; State v. Brennan, 49 Ohio St., 33.
    
      Quo loarranto will not lie against a municipality. We contend that the statute has prescribed an absolute and complete remedy to prevent any usurpation of corporate power, by either the council or any of the city officers. Revised Statutes, sections 1777, 1778, 1779, 6761; Ohio ex rel. Board of Education v. Board of Education. Quo warranto, 7 Ohio Circuit Court, 152; 19 Enc. of Law, 674; Dillon Mun. Corp., section 720; State v. Lyons, 31 Ia., 432.
    Nor will the writ of quo warranto lie against the validity of a subscription by a munici pal corporation to railroad stock confirmed by legislative enactment. State v. Mayor, 10 Rich (S. C.,) 491.
    There is a very interesting and exhaustive note to the case of Shelby v. Alcorn, 7 American Decisions, 179, upon the difference between public office and public employment.
   Minshall, J.

It is averred by the attorney-general in the petition that James Jennings and others specifically named, having been and are now unlawfully usurping and holding the offices of “firemen” in the fire department of the city of Newark, this state, and asks that they be ousted therefrom and that Frank Alexander and others, specifically named, and entitled thereto, be inducted into the offices so usurped.

The case has been submitted to the court on an agreed statement of facts, from which it appéars that in 1895, the city council of Newark, passed an ordinance organizing its fire department; and by which it was provided that it should consist of ten firemen, one of whom should be elected as chief by the appointment of the mayor with the advi'ce and consent of the council, and provided for their compensation. The persons, whose induction is asked for, were appointed under the provisions of this ordinance. The chief is not included in thenumber and all were simply appointed as “firemen.” On June 23,1897, the council adopted an ordinance, repealing the former one, and providing for the employment of the ‘ ‘firemen’ ’ by the council, the chief however, being appointed as formerly. The section as to the firemen is as follows : ‘ ‘The said council shall employ as many assistant firemen, from time to time, as to them may seem necessary who shall receive for their services not to exceed $50.00 per month.” Afterwards the firemen appointed under the former ordinance were discharged by resolution of the council, and by another resolution the defendants were employed.

The contention of the relator is that a fireman is an officer, and therefore, under section 1711, Revised Statutes, which requires all officers, of the municipality not elected by the people, to be appointed by the mayor with the advice and consent of the council, the defendants, not being so appointed, have no right to the office, should be ousted, and the former incumbents inducted, as officers holding’ over until their successors are duly appointed and qualified. We do not adopt this view. There is no question but that the council had the power to repeal the former ordinance; and this being so, and all the offices created by it, whatever they were, being thus abolished, the incumbents ceased to be officers, for there can be no incumbent without an office. State ex rel. Flin v. Auditor of State, 7 Ohio St., 333; Gano v. State ex rel., 10 Ohio St., 238; State ex rel. v. Hawkins, 44 Ohio St., 98. So that the real question in the case is, whether a “fireman” is an officer; or, in this case, whether the firemen, for whose employment provision is madein the ordinance of 1897areofficers. For that a position in the fire department of a city may have such duties attached to it, as to constitute an office is not questioned. The chief of a fire department performs such duties as make him an officer. But the character of an office connot be attached to a position by a name merely. Whether it be an office or not, will depend upon the nature and character of the duties attached to it by law.

Many efforts have been made to define a public office; and it is only the incumbent of such an office whose rights can be challenged in a proceeding’ in quo locwranto. But it is easier to conceive the general requirements of such an office, than to express them with precision in a definition that shall be entirely faultless. It will be found, however, by consulting the cases and the authorities, that the most general distinction of a public office is, that it embraces the performance by the incumbent of a public function delegated to him as a part of the sovereignty of the state. Thus inMeachem’s Offices and Officers, section 4, it is said: “The most important characteristic which distinguishes an office from an employment or contract, is that the creation and conferring’ of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.” So in High on Extraordinary Legal Remedies, section 625, it is said: “An office, such as to property come within the legitimate scope of an information in the nature of a quo warranto, may be defined as a public position, to which a portion of the sovereignty of the country, either legislative, executive, or judicial, attaches for the time being, and which is exercised for the benefit of the public.” And in the case of Darley v. The Queen, 12 Cl. & Fin., 520, which is generally cited as a leading case, and where the question was whether the information would lie against the treasurer of the city of Dublin, Tindal, C. J., said : “After the consideration of all the cases and dicta on the subject, the result appears to be that this proceeding by information in the nature of a quo toarranto will lie for usurping any office, whether created by charter alone, or by the crown with the consent of parliament, provided the office be of a public nature, and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others, for, with respect to such an employment, the court certainly will not interfere, and the information will not properly lie.” The fact that a public employment is held at the will or pleasure of another, as a deputy or servant, who holds at the will of his principal, is held, by the judges of the Supreme Court in an opinion delivered to the legislature of the state of Maine, to distinguish a mere employment from a public office, for in such cases no part of the state's sovereignty is delegated to such employees. 3 Greenleaf, 481. The case of State ex rel. v. Brennan, 49 Ohio St., 33, is not at variance with these views. It is quite clear from what has been said that the “Stationery Store-keeper” under consideration in that case was a public officer. He was charged with the purchase and safe-keeping of the stationery required by the county. The judge in delivering the opinion, did not undertake to give an exhaustive definition of a public office; but did say, that “it is safely within bounds to say that where, by virtue of law, a person is clothed, not as an incidental or transient authority, but for such time, as denotes duration and continuance, with independent power to control the property of the public, or with functions to be exercised in the supposed interest of the people, the service to be compensated by a stated yearly salary, and the occupant having a designation or title, the position so created is a public office.” Here, and throughout the opinion, prominence is given to the fact, that a public officer is one who exercises, in an independent capacity, a public function in the interest of the people, by virtue of law, which is only saying in another form, 'that he exercises a portion of the sovereignty of the people delegated to him by law.

Applying what has been said to the case before us, and it clearly appears, as we think, that the fireman, other than the chief, employed by the council under the ordinance of June 23, 1897, are not public officers. They have no control of the fire department, nor of any of its property for any purpose, other than to use it in the extinguishment of fires whenever the occasion requires. They are subject on all occasions and in whatever they do in the course of their employment, to the direction and control of the chief of the department. They receive for their services $50.00 per month, and may be discharged at any time by the council. Hence they are simply persons in the employment of the fire department, and are not public officers of any .kind.

We are, however, cited to some cases where it has been said, as a reason for the non-liability of a city for the acts of its fire department, that firemen are officers. On examination it will be found that this is not the true reason. It assumes that a city is in no case liable for the acts of. its officers. But this is not'true in all cases. A city is liable for the wrongful or negligent acts of its street commissioner. It is true that, in this instance, it is made the duty of a city to keep its streets in repair and free from nuisances, whilst, in this state, it is not required to establish á fire department. But if it organizes a fire department, and levies a tax for its support, it would then seem to become its duty to see that it is properly organized, and that its agents carefully perform their duties in the one case as well as in the other. For it is a general principle, that, though a person may not be bound to do a particular thing, yet if he voluntarily undertake to do it, he is bound to use reasonable care and diligence in its performance, and is liable in damages to one injured from his failure to do so. There is. no statutory duty in cities to construct sewers; but if a city does, it becomes liable to a party injured by the negligence of its officers and agents, in constructing and maintaining them. Dillon, Municipal Corporations, 4th Ed., section 980. The levying of the tax and assuming to act in the premises imposes the duty. Hence the true reason for the exemption of a city from liability for the acts of its firemen, is most probably not referable to the fact that they are officers but to the fact that it would be unwise to burthen the tax-payers of a city with damages resulting’ from the negligence of its agents in such eases; in other words, is simply a limitation suggested by the policy of the law on the maxim respondeat superior, in its application to cities in such eases. In none of these cases was any effort made to determine what, in general, constitutes a public officer. In Dillon on Municipal Corporations, 4th Ed., section 976, it is said: “The exemption from liability in these, and the like cases, is upon the ground that the service is performed by the corporation in obedience to an act of the legislature; is one in which the corporation, as such, has no particular interest, and from which it derives no special benefit in its corporate capacity ; as the members of the fire department, although appointed and employed, and paid by the city corporation, are not the agents and servants of the city, for whose conduct it is liable.” So that the simple fact that a city is not liable for the acts of its fire department does not prove that all of its members are necessarily public officers ; and may, when not properly employed, be ousted from their employment by the state, as usurping on its authority in a proceeding in quo warranto. We are therefore led to the conclusion that none of the firemen proceeded against in this case can properly be termed public officers; they are clothed with none of the requisites of such an officer ; are simply in the employment of the city as laborers, and the right to be so employed cannot be challenged by quo warranto. The fact that their employment requires skill and experience does not alter the case. Skill and experience do not constitute a public office; they are simply requirements of suitableness for the place; and are no more attributes of a public office than of a private employment.

Writ refused and petition dismissed.  