
    INCREASE OF SALARIES OF POLICE FORCE.
    Common Pleas Court of Montgomery County.
    The State of Ohio, ex rel Charles Ferris et al, v. George W. Bish, as Auditor of the City of Dayton, Ohio, et al.
    Decided, March 9, 1912.
    
      Municipal Corporations — Merit System, and the Police Department — Increase in Salaries of Police and Firemen — Provisions of the Statute as to Dismissals Limited to Individuals — Purpose of the Statute— Right of Dismissal Taken from the Appointing Power, hut. Still Rests in Organizing Power — Tenure of Office of 'Policemen — Bad Policy of Denying Increase in Compensation During Service — Confusion in the Holdings of the Upper Courts with Reference to Official Status of Policemen and Firemen.
    
    1. Policemen and firemen do not hold their positions for a fixed and definite term, and hence, are not subject to the provisions of Section 4213, P. & A. Anno. General Code, which forbids the increase or diminishing of salaries of officers, clerks or employes of a municipality during the term for which they were appointed or elected.
    2. A municipal council has authority to pass an ordinance providing for the number, salaries and bonds of members of the police department, repealing at the same time the former ordinance under which the department was operated; and where such action is taken by council all members of the police force lose their positions as of the date of the repeal of the former ordinance under which the departnient was theretofore operated, this method of removal being excluded under Section 4484, P. & A. Anno. General Code, which refers only to individual removals for cause; and it thereafter becomes the duty of the board of public safety to appoint members of the force under the contemplated reorganization and upon such terms as council has provided.
    
      Mattern & Brumbaugh, for relators.
    
      F. S. Breene, City Solicitor, and A. J. Dwyer, Assistant City Solicitor, contra:
   Sprigg, J.

This proceeding is in mandamus, brought upon the relation of one Charles Ferris, on behalf of himself and some hundred and sixty-six other persons, against the city auditor and city treasurer of Dayton, to compel the auditor to issue and deliver warrants and vouchers to the relator and his fellow complainants in their favor for the various amounts which he claims are due them for salaries as members of the police force of the city of Dayton, and to compel the treasurer to pay such warrants. These amounts are set out in the petition opposite the respective names of the various claimants.

The petition was quite skillfully drawn, so that only a bare statement of the actual facts, necessarily involved in the obtaining of a writ of mandamus, is therein set out. That is to say, the pleader alleges that the relator and his fellow complainants are duly constituted and qualified members of the police force of the city of Dayton; that by a certain ordinance passed by the city council their salaries were fixed at certain amounts; that these salaries were paid bi-monthly; that in February, 1912, the city auditor failed and refused to issue warrants and vouchers for more than a certain proportion of such bi-monthly amounts, although the .services therefor had been performed; that the city treasurer refused to pay any greater sums than the warrants of the city auditor called for and that therefore there is due and owing to each of the one hundred and sixty-seven claimants a certain balance, to obtain the payment of which they are entitled to the writ of mandamus as prayed for. This statement of facts standing alone is, in the opinion of the court, sufficient to constitute a cause of action and therefore the demurrer filed by the defendants will be and is hereby overruled.

With the understanding that this demurrer would probably be overruled, the defendants filed an answer and proceeded with the hearing upon the merits, it being understood by all parties and the court that this is an amicable proceeding to test the question of the right of the city to increase the salaries under any circumstances of the various members of its police force after they have been duly appointed. This answer, therefore, admits all of the facts so .alleged in the petition, but sets out further that the relator and his fellow claimants were all members of the police force prior to the city ordinance set out in the petition as b.eing the ordinance regulating positions and fixing the salaries; that at the time of their respective appointments their salaries were not as fixed by the ordinance • pleaded in the petition, but in fact were the exact amounts paid them on February 17, 1912, by the city treasurer upon the warrant of the city auditor; that the complainants are officers or employes of the city, appointed for regular terms; that their salaries could not be increased during such terms; that, therefore, the ordinance pleaded in the petition, so far as the increase in the salaries of the police force is concerned, is void and of no effect; that the salaries, as warranted by the auditor and paid by the treasurer on February 17th, are, therefore, the correct salaries to which the claimants are entitled, and hence, that the writ of mandamus should be refused and the petition dismissed. • s

The facts in the case are about as follows: prior, to December 21, 1906, there had been an ordinance, passed by the city coun'eil of Dayton, providing for the number, salaries and bonds of the members of the police department of the city. Naturally, as time passed and conditions changed, as the standard of life improved and the cost thereof advanced, as the population of the city increased and the limits o.f its territory were enlarged, it became evident to the city fathers that a larger police force was necessary' for the proper protection of the citizens and their property; and that the members of this force — because of the changing conditions, and perhaps also, to some extent, because of meritorious service — were entitled to greater remuneration for their labors. Therefore, on December 21, 1906, the city council passed an ordinance numbered 705Q, and entitled “An ordinance to provide the number, salaries, and bonds of the members of the police department, and to repeal certain ordinances therein named."

As the title would imply, the entire force is provided for by this ordinance, salaries and bonds fixed, and Section 21 thereof repeals the former last preceding Ordinance No. 6789, which provided the number, salaries and bonds of the members of the police department, and also repealed Ordinance No. 6853 which had been passed to supplement and amend Ordinance 6789, Section 22 of Ordinance 7050 providing that it should take effect on January 1, 1907.

After the passage of this ordinance, the police department was reclassified and reorganized, the members either appointed or reappointed, and the department resumed the even tenor of its way under the new classification and salaries. Then suddenly after having performed their duties for five years under the increased salary rate, the police force of the city of Dayton was notified, on February 12th, that the auditor and treasurer could no longer pay them at this increased rate, but could only issue warrants to them for the various amounts which they had received prior to the passage of the ordinance of December 21, 1906. This made a difference to the members of the force in amounts ranging from five to fifty dollars a month, and naturally meant so much to the very existence of themselves and their families, that legal advice was sought and action taken which finally eventuated in this suit.

To be called upon to decide this matter, places the court in not the most enviable position, since it raises questions of vital importance to the parties .and of great moment to the citizens of the municipalities of the state, which have all, however, been heretofore, presumably, presented to the supreme tribunal of this commonwealth.

The questions, while not new in the state, are, to say the least, novel. Among the various judicial reforms which are now being suggested at the Constitutional Convention and in the public press, we might perhaps, in our humility, be allowed to offer this further one, to take precedence over all of the rest, upon the theory that every reform should begin at the source, and that is, to require the Supreme Court to give its reasons for all decisions upon new questions, and when any decision is based upon a prior ruling of that court, that it give the title of such case and where the same is to be found. This would not only facilitate litigation, by aiding the attorneys in their presentation of causes, and the nisi prius courts in deciding them, but would also protect the supreme.tribunal itself from being led into the absurdity of conflicting decisions without a specific overruling of a former opinion.

Before entering into a discussion of the case itself, we might say that this court feels bound by the decisions of the circuit courts of the state, only so far as we may agree with the logic and legal reasoning upon which their conclusions are based. Furthermore, in view of the fact that the Supreme Court, both by decision and rule, has said that only the syllabi of its reported cases comprise the law of the state, we do not feel bound to follow its rulings in cases covering important points, which that tribunal is supposed to have decided, but which it did not see fit to dignify with the reasons and authorities for its conclusions. Adelbert College v. Wabash R. R. Co., 171 Federal, 112; 39 O. S., 141-145; Rule 6, 5 O. S., Preface 7; 73 O. S., Preface 10.

The question now before us is, as to whether or not the members of the police department of the city of Dayton are such officers, employes, or agents, as would preclude them from having their salaries increased or decreased during their service.

In the first place, it might become important to discover where and how the police department of the municipality gains its origin. It is entirely a creature of statute, and is provided for in Sections 3617 and 4374 of the General Code, which grant such general powers to municipalities, and read as follows:

, “To organize and maintain police and fire departments, erect the necessary buildings and purchase and hold all implements and apparatus required therefor.”
“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 are provided by ordinance or resolution of council. ’ ’

From these it may be seen that, while the police department of each city is provided for by statute, the Legislature delegated to the city council the power to provide the number of policemen which should comprise the force of its municipality.

The Legislature then further provided (Section 4214 of the General Code) that council should also have the power to fix the various salaries of its officers, clerks, or employes, and by Section 4213 provided that none of these salaries so fixed should be increased or diminished during the term for which the incumbent was elected or appointed.

For the purpose then of relieving council from the distracting and corrupting influences which would probably issue from the dispensation of official patronage, and also to lessen the opportunities for endangering the efficiency of the various departments of the city, and in a measure to prevent the upbuilding of political machines, the Legislature provided, by Section 4211, that council should have legislative powers only, and should have no right to either appoint or confirm any officer or employe in the city government except those of its own body.

Section 4367 of the General Code then provides for the director of public safety, and in the next section states what his powers and duties shall be, giving him, however, no direct control over the force itself, but leaving that to be taken care of by Section 3272, which provides that the chief of police shall have exclusive control of the stationing and transferring of the force itself; with reference, however, to such rules and regulations as the director of public safety might prescribe.

We thus find ourselves at this point: a police department authorized by statute in cities; the number of members and their salaries to be fixed by council; the provision for a director of public safety, but no method of appointing persons to occupy the places provided by the city council. Where, then, does this power lie ? It is provided for in Chapter 12 of the General Code of Ohio, Section 4477, et seq., which creates what is known as civil service in cities. This chapter provides for a civil service commission, the method of appointing the same, a classified and unclassified list of appointees, examination, appointments, dismissals, and in fact everything relating to what is known in the state as the “merit system.”

On the question of dismissal, Section 4484 reads as follows:

“Nothing herein shall prevent the dismissal or discharge of any appointee by the removing board or officer, except that the chiefs and members of the police and fire departments and of the sanitary police shall be dismissed only as provided by law, and the appeal therefrom shall be made to the civil service commission under such rules as the commission may adopt. ’ ’

Section 4484 provides that the chief of police and director of public safety may suspend a member of the police force for thirty days, pending an investigation, while Section 4489 defines the method by which a member may be suspended, reduced in rank, or dismissed from the department.

These, then, about cover the statutory provisions pertaining to the police department of a municipality which become in any wise important in the case at. bar; and we will therefore proceed to take up the decisions which have actuated this suit and brought it before us, together with the reasoning upon which those decisions are based.

In the year 1910 a contention arose in the city of Painesville, in Lake county — which city by the way contained some five thousand inhabitants — between the auditor and treasurer and a man by the name of Spaller, who was at that time a patrolman on the police force of that city. 13 C.C.(N.S.), 577.

Mr. Spaller had been appointed a police officer at a fixed salary in the same manner as had the claimants in the ease at bar. Several years after his appointment the city council, feeling perhaps that his services had been meritorious, and probably recognizing that the scale of living had greatly advanced in this country, increased his salary from $720 to $840 per year. It .would seem that no question arose at the time, but that some three years later the council in a wave of economy, or, perhaps to test the question, passed another ordinance reducing his salary to its original amount. To this Mr. Spaller took exception, claiming that council had no right to reduce his salary, demanded a warrant from the auditor, which was refused, and thereupon instituted a suit in mandamus to compel the auditor and treasurer to pay him his salary at the increased rate. The suit seems to have originated in the Circuit Court of Lake County, and instead of filing a petition, such ras we have in the case at bar, counsel for Mr. Spaller set out' all of the facts attending his appointment, increase, and subsequently decrease in salary, and to this petition a demurrer was filed.

Just what Mr. Spaller’s ideas on the question were is hard to conceive, as it would appear that no matter which way the court decided the case, that gentleman was bound to be the-loser. Nevertheless, the circuit court took up the question and decided, first, that a duly appointed patrolman of the police department of the city is an officer within the meaning of the laws of Ohio; and, second, that a city council has no power to' increase or diminish the salary of a police officer appointed under the civil service provisions of the municipal code during the term for which he was appointed, which is during good behavior.

There do not seem to have been any briefs filed in the case. At any rate, none .are reported by the circuit court. But the reasoning of the circuit court was about to this effect: that a policeman is an officer of the city government, because he is so spoken of every place in the statutes of Ohio. Thus, General Code, 5251, speaks of “any constable or police officer”; and Section 13474 speaks of a “sheriff, constable, marshal or police officer. ’ ’

We do not know whether the circuit court, reasoning a priori, would be forced to the conclusion that a sheriff or constable could not be a public officer, because the code does not speak of them as being sheriff officers or constable officer, but we do know that any line of reasoning which attempts to fix a person as a public officer, simply because of his name, is faulty, and bound to lead to absurdities. We do not say that a policeman is not a public officer, since, in our opinion, that appellation usually involves the broad consideration whether the incumbent of the particular position in question' owes' some general duty to the public .at large, and is not entirely circumscribed by the rules and regulations of the appointing power. That is, a public officer is one who is elected or appointed to discharge a public duty, and upon whom the public has the right to call for the discharge of that duty.

This definition, of course, might well include the members of the police and fire' departments. However, we do not believe that the court was called upon to decide that question unless they were fearful lest the ruling in the case of State of Ohio, ex rel Attorney-General, v. Craig, in the 69 O. S., at page 263, might force them into holding that a policeman was a public officer, in order to bring him within the purview of the statute. That they did not consider the Craig ease, however, is apparent since they say that, even if a patrolman is not an officer, he certainly comes within the designation of the term “employe.”

As we before noted Section 4213 of the General Code provides that the salary of no officer, clerk or employe may be increased or diminished during his term. The Craig case above cited holds that a health officer is not an employe but an appointee; in fact the Supreme Court in that case, on page 246, says as follows : '

"Is the health officer an employe, as that word is used in the statute? We think not. He is known as the health officer throughout the statute, and, in Section 2115 is spoken of as an appointee, but nowhere as an employe.”

The Supreme Court in this case does not state whether a health officer is a public officer or not, but such might appear to be their idea by implication, because of the fact .that that proceeding was an action in quo warranto against the health officer.

, This would seem to leave us in an interminable tangle, so far as the upper courts are concerned, as to just what a policeman is. But while this court does not feel that it is necessary to decide that point in order to reach a proper conclusion in this case, we will say, as mere dicta, that in view of the very important duties which a policeman has to perform, and the grave obligations which he owes to the public, there might be good reason for holding that he is a public officer.

The circuit court in the Painesville case then proceeds • with its reasoning as to why a policeman, being an officer or employe, may not have his salary increased or diminished during the term for which he is appointed. It is of course admitted that the section of the statute which interdicts the increasing or diminishing of salaries refers to those officers or clerks or employes who hold their positions for a term. The circuit court says, that it was argued that a patrolman holding his position during fitness or good behavior was not appointed for any term, but that they could not concur in that reasoning, since in view of the fact that a patrolman once appointed serves until he is removed for cause, it necessarily follows that he is appointed for a term, to-wit: for that period of timé during which he is permitted to hold his office.

To this proposition .we only desire to say that it is an illogical conclusion based upon a false premise. In the first place a policeman may not serve as such until he is removed for cause; and in the second, place, if this reasoning were logical, it would be difficult to see how it could ever be said that any position was not held for a term, since even those incumbents who hold their positions at the pleasure of the appointing power, certainly hold them for that period of time during which they are permitted to hold them. Moreover, this conclusion of the circuit court would certainly not represent the law of this state.

In 2 Ohio C.C.(N.S.), at page 167, there is reported a decision by the Circuit Court of Stark County — of -which court -Judge Donahue, now on the Supreme bench, was then a member — -which holds that a health officer is not such an officer as will come within the purview of the statute relating to the increasing or diminishing of the salary of an office during the term thereof; and this for the reason that such officer only holds during the pleasure of the health board; and that, therefore, he has no term of office.

The court might add that this case is well considered and we know of no reason why Judge Donahue, who concurred therein, should have any different views -on the questions there decided, at this time.

Here again we find that the conclusions of the Lake county circuit court, in the Painesville case, whether right or wrong, are based upon the most questionable logic. It was on such logic as this that the case was decided, and it was upon such reasoning that it was taken into the Supreme Court of the state of Ohio, and there affirmed without report.

Leaving that case for the time being, let us look at the case of State of Ohio, ex rel, v. Searcy, Mayor of Portsmouth, reported in the 11 C. C. Reports (N. S.), at page 521. The facts in that case, in brief, were as follows:

The police force of the city of Portsmouth, prior to November, 1908, consisted of a chief and twenty patrolmen. In November, 1908, however, the city council passed an ordinance repealing the former ordinance, and reduced the force of patrolmen from twenty to eleven. Under this ordinance the board of public safety reclassified its police force, and chose the eleven members of the old force who pleased it the best, sent their names to the mayor for appointment on the reorganized force, and notified the nine remaining'patrolmen that their names had been dropped from the pay roll. These men then brought suit in mandamus, to be restored to their rank and place upon., the police force, claiming that they had been appointed under the merit system, and were entitled to all of the rights accorded thereunder. The relators themselves, in that ease, never seemed to question the right of the city to reduce its force, but claimed that this reduction could only be made along the lines of seniority and service. In other words, that if the force was reduced, the discharging of the members would have to be done in the reverse order of their appointment. .

The circuit court, however, in deciding this case, held that in the municipal code, city councils were, authorized to fix the number of employes in the department of public safety, and that this gave them the further authority to reduce the number of patrolmen as council might see fit; and, also, that in reducing the force in this manner, the board of public safety might reclassify and reorganize the department, retaining or discharging any members of the old' department at its pleasure.

This seems to us to be a well reasoned case. Like the Painesville case, it also was carried to the Supreme Court of the state of Ohio, and there affirmed without report. (80 O. S., p. 740.)

Now, in what position do we find ourselves by reason of these two cases, both affirmed by our Supreme Court ? A police force in the city, appointed by the board of public safety, under and by virtue of an ordinance of the city council, the members of which force are officers who hold their positions during fitness or good behavior, that is for a term, since they can not be discharged save for cause, and being thus appointed for a term, their salaries may not be increased or diminished by ordinance; but the city council may by reorganizing and reducing the number of the force at its pleasure end this so-called term of office at its will. And, further, this reduction in the force may affect any of the members which the board of safety may desire to get rid of. In other words, a-policeman has a term and at the same time he has not, and it may thus be seen that the circuit court in the Painesvillé ease was reasoning on a false premise when it said that a policeman might continue as such during life and fitness for the position.

. It appears to- this court that it is the height of contradiction to. say that a man holds his position for a term, because one branch of the city government can not discharge him except for cause, and in the same breath, to say that another branch of the city government may discharge him any time it pleases, by merely reorganizing that branch of the service and changing the number of positions. This might be the case if the Legislature had and could have delegated to council the power to entirely abolish the office of policemen in the various municipalities, but as will be seen later, we do not think that this was done.

The truth of the matter seems to be that .the Circuit Court of Lake County did not consider the question thoroughly; and we are forcibly impressed, at this time, with the prophetic words of Judge Price of the Supreme Court' of Ohio, in the case of Railway Company v. Greenville,, 69 O. S., p. 487. In this ease, after a long discussion of the various points upon which a case was supposed to have been affirmed, the learned judge apparently in a philosophic vein, says, upon page 499:

“This investigation of, that record may illustrate the value of an unreported case as an authority.”

And it is a fact, that whenever a case is decided by our Supreme Court without report, the bench and bar are at a loss to know upon what grounds the lower court was affirmed; and very often the affirmance is due to reasons and circumstances entirely different from those reported in the lower court’s opinion.

We, therefore, feel at liberty to take up this question de novo, and decide it according to our own lights. It is not our desire to indulge in judicial legislation, nor do we believe that it is our province to read into the statutes anything which the Legislature did not intend should be there, for, as our Supreme Court has said in the case of State v. Baldwin, 77 O. S., p. 552:

“We have only to determine what the Legislature in its wisdom has prescribed.”

But we do think that since the courts continually refer to the wisdom of the Legislature, they should endeavor to accord that body the quality as well as the term.

The question before us involves a great public interest in the larger municipalities of this state, which we are convinced the Legislature in its wisdom realized, but which the Supreme "Court in its affirmation of the Painesville case never considered.

As we have before stated, the city of Painesville has only some five thousand inhabitants, and we can not believe that the Supreme Court would have affirmed that case without report, had it realized the far reaching effect which it might have on the public of this "state.

The two organizations involved in this" question, that is, the police and fire departments, constitute the two great arms of government, for the protection of the persons and property of the 'Citizens; and'"any act or decision calculated to affect their efficiency or integrity is aimed not only at the members of those organizations, but at the entire citizenship of the commonwealth. The construction placed upon the law by the Painesville case, would mean to give a bad effect to an otherwise good law — an effect which we do not believe the Legislature éver intended. By this decision the civil service law of this state, which has come to be known as’the “merit system,” might better be termed the “demerit system.” Members of the police and fire departments, not being able to receive increased pay during good behavior of fitness, would have no incentive, other than the dictates of their own conscience, to remain good so long as they were not detected. It is placing a premium on dishonesty to say that a man may never receive an increase in compensation during his fitness or good behavior; and we do not not believe that the Legislature of this state so intended.

Times change and men and conditions change with them. Families increase in size, the cost of living advances, but the first principle of self-preservation continues forever; and this court is not willing to go on record as holding that the Legislature of the state of Ohio intended to place the department of public safety in this state in the same condition which it is now in, in some of the larger cities of this country, where members of the police force, after having received one hundred dollars a month for twenty years, died leaving two and three hundred thousand dollar estate,, with an astonished public inquiring, “Where did they get it?” The constabulary of this state in general, and of this municipality in particular, has always borne the highest reputation, and we do not believe that it was the intention of the Legislature to pass any law which might tend to affect the integrity or efficiency of the force.

There is in our mind just one legal question in this case which needs to be decided; and, in deciding this, we hope to give reasons which will show that our conclusion is drawn from sound logic, and not from any feelings of bias or prejudice.

As we have heretofore stated in this opinion, the Legislature provided for a police force in all municipalities in the state (Sections 3617 and 4374, General Code.) Then realizing, of course, that different municipalities would require greater or less protection; and also, that as municipalities increase or decrease in size, they might need a greater or smaller force; and, recognizing the fact that these conditions would be foreign to the'Legislature's knowledge and power of action, it delegated this power of fixing and increasing or decreasing the number of men on the respective forces, to the councils of the various municipalities.

For the reasons stated in another portion of this opinion, the appointing power was forbidden the city council and was placed in the board of public safety, to be exercised, however, only under the regulations of the civil service laws. That is to say, the Legislature created the office of “policeman” and “fireman” —if we may be permitted so to designate them — and gave city councils the right to say how many of such officers there should be in the respective municipalities; but gave to the board of public safety the power to appoint incumbents to fill these offices after the .number had been fixed by council.

Now, whether these policemen and firemen are officers or employes, who employs them, and who do they serve? To our mind, the answer to this is, the state and the cities, and their inhabitants. That is, we do not think that they are employes of the city council or of the board of public safety, but" of the people at large; and, further, that the Legislature bestowed upon each municipality the right to have such organizations, delegating to several different branches of the municipal government the duty of establishing their number, and appointing the members.

To be sure, tbe police department and fire department, being created by statute, they are wholly within the control of the Legislature creating them. That is to say, the mode of appointment may be altered at pleasure, the office may be abolished, and the compensation taken away from the • incumbent unless forbidden by the Constitution. This power, however, is. inherent in the Legislature, and no attempt was ever made to.delegate this power, namely, of abolishing the office or employment of policemen, to any branch of any municipal government. That is to say, the Legislature said that municipal corporations should have a police force, in such number as council saw fit, which might be changed from time to time when the necessities of the occasion required.

What power was it then that was delegated to the city council when they were given the right, to increase or decrease the number of the force at pleasure? As may be seen, it was not the right to abolish the office or employment itself, because if this were so, upon a decreasing of the force, the remaining incumbents would have no right to.serve, since the office had been abolished/

No, the power that was delegated to the city council can be construed into nothing other than a power to remove men from or add men to the force, by simply decreasing or increasing the number of positions to be filled. To say that this right applies to the position .and not to the incumbent, takes you back then to the proposition that if this be so, the Legislature must have delegated to council the right to abolish the office or employment itself, and this we do not think the Legislature did or intended to do; and we doubt if it had the power to do it if it would desire.

Let us consider then Section 3617 of the General Code of Ohio, empowering city councils to establish police and fire departments. As we before noted, it reads as follows:

‘ ‘ To organize and maintain police and fire departments, erect the necessary buildings, and purchase and hold all implements and apparatus, required therefor.”

Referring back now to the preceding section of the code, 3616, we find that it reads as follows:

“All municipal, corporations shall have the general powers mentioned in this chapter, and council may provide by ordinance or resolution for the exercise and enforcement of them.”

Thus, 3617 creates the offices of policemen and firemen, and delegates to the city council not the power to create or abolish those offices, but to organize and maintain them. While, on the other hand, Section 3616 makes it obligatory upon city councils to so organize and maintain such departments as created by Section 3617.

It is true that Section 3616 says, “and council may provide by ordinance or resolution for the exercise and enforcement of these powers,” but we believe that this language, although permissive in form, is peremptory in fact in its relation to Section 3617. That is, where power is given to public officers by act of the Legislature, whenever the public interest or individual rights call for its exercise, the language used, though permissive in form is in fact peremptory and permits of no discretion. Supervisors v. United States, 4 Wall, 435-445-446-447; Mason v. Fearson, 9 Howard, 249-259; Mayor v. Furze, 3 Hill, 612; Turnpike Co. v. Miller, 5 John's Chancery, 100.

Certainly, the establishing and maintaining of a police and fire department involved a great public interest, and we do not believe that under Section 3617 the city council would have any right to abolish the police or fire department entirely; and therefore, when they reduce the number-of either force, they are merely changing the personnel and not affecting the position or the office.

We are then confronted with this situation: a municipality with its various branches of government, one of which, the board of safety, has the right to appoint members on the police or fire departments; and the other of which may, in a circuitous manner, perhaps, but none the less may discharge them by reducing the force at its pleasure; and this is as it should be, for what an egregious situation would a municipality be in, if a sudden financial boom should affect a city in such a manner that an increased force was necessary, and yet this force could not be decreased when a financial stringency had reduced the population of the city to perhaps less than its normal condition.

It may thus be seen that the power of council to increase and decrease the police force is, on the grounds of public policy, a wise one, and when we consider this power in the light of the Searcy ease, in the 11 Circuit Court Reports, heretofore cited, we are forced to the conclusion that whensoever council désires to reduce its police force for any reason, no member of that force has any prior right to his position thereon. And, further, that upon the- reduction in number, the board of public safety may reorganize, reclassify, and reappoint without any consideration, for the length of service, meritorious conduct, good behavior or anything of the kind. This being true, can it be said that the members of the police or fire departments hold their position for a term? We think not.

In deciding the Searcy case above cited — which case, as we have heretofore said, was affirmed by our Supreme Court — the circuit court uses the following language:

"It is insisted that the action of the city authorities, if upheld, would tend to destroy the entire purpose of the merit system. It is undeniable that the police force might be radically changed and new members placed thereon, but after all that may or can be done, the merit idea is not destroyed, for in any event as in this case, the patrolmen retained must be merit-men — men who passed the requisite examinations.”

And further on:

"The merit system was to meet the contingency of increase in the force and of individual removals for cause.”

This language in effect admits that the tenure of a policeman’s office is, to say the least, precarious, since he may lose it at any moment at the will of council, but that the merit system! was not adopted for the purpose of fixing the tenure of office, but-to maintain a high efficiency among its members and to prevent the individual members from being discharged for personal reasons, at the whim of every mayor or director of public safety, the political complexion of which officers may change at eacñ succeeding election. That is to say, the Legislature took the right to discharge, except for cause, aw.ay from the appointing power, but left it in the hands of the organizing power, the city council, to change the number; and, consequently, the membership of the force, at its will.

We, therefore, come to the question at this time as to what was meant by the Legislature in Section 4213 when it said that salaries of an officer, clerk or employe shall not be increased or diminished “during the term for which he was elected or appointed.” The word “term,” when used in reference to the tenure of office, means ordinarily a fixed and definite time; that is, a specific period of time during which the incumbent is certain of holding the position, providing the position itself be not abolished by the creating power. This definition has been held to be the law in a long line of decisions which may be found in “Words and Phrases,” Vol. 8, p. 6920.

“Term of office” has been defined in this state, in the case of Miller v. Massillon, heretofore cited, as meaning “to limit.” In that ease, in speaking of the health officer, the court says:

“The word ‘term’ has significance. It simply means to limit. That is, during the period that the office is limited. During that period his salary shall not be increased; but in this case, there is no limit fixed by law, and it is not a term for the reason there is no limitation.”

In that case, to be sure, the health officer served during the pleasure of the board, while in the case at bar, the claimants, in effect, serve at the will of council. In so far as the civil service rule' — -namely, that they shall serve during fitness — is concerned, we are free to confess that a very difficult question arises as to whether or not the words “during fitness or good behavior” establish a term of office.

As we have noted, the circuit court in the Painesville .case decided that they did, and we might add, simply for the purpose of evidencing a more or, less thorough examination of the subject, that the 'Supreme Court of Illinois likewise seemed to be of that opinion, in the case of The People, ex rel, v. Loeffler, 175 Ill., at page 603, although the remarks of the court on that question are probably only dicta.

We admit of some uncertainty upon this proposition ourselves. In the construction of the statutes, words and phrases shall be taken in their plain,. ordinary or usual sense unless they are technical words and phrases, which shall be understood accord-, ing to their technical import. In a day’s travel one would: probably not encounter a man of ordinary éducation, but would say that holding an office during fitness of good behavior was not holding it for a term. And yet," of course, public opinion is not the source from which the meaning of our language is to be derived, according to the law, although that, in fact, is probably the greatest source of legislative diction.

Going, however, to Webster’s Dictionary — one of the standards of our language — -we find that a term means the time for which anything lasts, any limited time, such as the term of life; and it occurs to us that where the courts have probably gone astray is not in the defining of the word “term,” but in a misunderstanding of the definition itself. That is, the term must have a certain ending. It must have a specific limitation, and not be based upon a limitation which arises by reason of some possible contingency. Take for instance the term' of life. We are certain we are going to die. In one way or another our lives may be prolonged or shortened a few years more or less, but that we will die is certain. While, on the other hand, the phrase “during fitness or good behavior” carries no positive limitation as to duration. A person may behave himself properly for-a day, for a year or for a lifetime, and no person is qualified to' state definitely when any other person’s good behavior is going' to end. This, if sound, would of course preclude the phrase “during fitness or good behavior” from having any fixed limitation, unless we read into the statute, as did the circuit court in the Painesville case, the meaning that policemen' should hold their positions during life or so long as they are fitted therefor; thus making the term of life the real limitation on the tenure of office.

This strikes us as reading something into the statute which is not there, and moreover, which is not true in law, since a policeman though perfectly fitted for duty and of the highest moral character, may at any time lose his office by a reduction of the force at the will of the city council.

However, we do not believe that in the case at-bar it becomes necessary to decide this mooted question; for having found that. a term is a fixed and definite period during which the incumbent is certain of his place, the fact that a policeman is liable to lose his position at any time by reason of an action in the city council, makes his tenure of office so uncertain and indefinite as to preclude him from being brought within the purview of the statute, making it unlawful to increase or diminish the salaries of any officer, clerk or employe during the term for which he was elected or appointed. We do not believe that any official who may lose his position at any time at the will of any branch of the municipal government was ever intended by the Legislature to be included in this statute, and to say, as did the court in the Painesville case, that they are so included, and that the object and purpose of including them was to make them independent of the whim of council or the.influence of public officials, and to free council and the public officials from importunities and harassments by such office holders for increased compensation', is, to say the least, begging the question. That policemen and firemen are not made independent of the whim of the city council and the board of public safety, is clearly shown in the Searcy case, which holds that the entire complexion of the police force may be changed at will; and to deny them the right to strive for increased remuneration is to take from them the hope which every human being, who has devoted himself to a life work, has to better his condition and improve the surroundings of himself and family by efficient service and loyalty to his trust.

The true purpose of the law was to prevent office seekers who accept an office, for a fixed term of years, at a specific salary, from using their official powers, after having entered upon the duties of such office, for the purpose of increasing their own salaries or decreasing those of political opponents.

We do not believe that.it was ever intended to affect the patrolmen or firemen of any municipalities of this state, and, in our opinion the Legislature placed them in a position where a proper construction of the law would leave them unaffected thereby.

The position we take is more strongly impressed upon us at the present timé, by reason of a pending crisis now confronting the board of public safety, and concerning which we believe judicial notice may be taken for tbe purpose of illustration. For some reason, unimportant in this connection, the funds of our safety department have reached the low ebb and it may become necessary in the near future to retrench. The population of the city has not decreased, nor have its limits in any way been narrowed, That is to say, the public needs demand as large a number of patrolmen for the protection of the citizens and their property today as they did in the days of a more plethoric safety fund. And still, under the apparent holdings of the- various unreported decisions of the Supreme Court, there can be no reduction of salaries, even if absolutely necessary, but the force itself may be so reduced as to cover the financial stringency and tax-payers left with inadequate police protection, to become the prey of marauders and social parasites. This we do not believe to have been the intention of our Legislature. In our opinion, in Section 3617 of the General Code of Ohio, the power to organize and maintain, includes the power to reorganize, and that council may reorganize in any way that it sees fit. If in its reorganization it absolutely repeals a former ordinance organizing the police force, on the day this repeal goes into effect all of the members of the force lose their positions, and upon the reorganization they must be reappointed by the board of public safety, either at the same or an increased or diminished salary, as council may have provided. This is undoubtedly the theory that the various city councils have adopted, and this theory has been fully acquiesced in by the public for years. We know of few better methods for construing a law than by that of practical construction.

The Supreme Court of Wisconsin, in the case of Scanlan v. Childs, 33 Wis., 663, says in its first syllabus, “that the general understanding of a law, and constant practice under it, unquestioned by any public or private action, is strong if not conclusive evidence of the true meaning:” See, also, Rogers v. Goodwin, 2 Mass., 475; Ry. Co. v. Mills, 85 Mich., 635 (2d Syllabus).

It is our opinion, therefore, that when the council of the city of Dayton passed Ordinance No. 7050 on December 21,1906, reorganizing the public force and repealing the former ordinance of organization, it was acting fully within its powers. That, by reason of such, action, all of the members of the police force lost their positions on January 1st, 1907, and it became necessary for the board of public safety to appoint members under the reorganization upon such terms as council had provided; and further, that this method of removing the incumbents was excluded from Section 4484 of the General Code of Ohio, which only ■refers to individual removals for cause.

We, therefore, find that policemen and firemen in municipalities do not hold their positions for a term, namely, for a fixed and definite period of time, and hence, that they are not subject to the provisions of Section 4213 of the General Code, denying the power to increase or diminish the salaries of officers, clerks or employes of a municipality during the term for which they were appointed or elected.

They are, therefore, entitled to a peremptory writ of mandamus as prayed for, which shall hereby issue, and judgment be entered accordingly.  