
    APPOINTMENT — POLICE COURT JANITOR.
    [Cuyahoga Circuit Court,
    December 21, 1899.]
    Caldwell, Marvin and Hale, JJ.
    State ex rel. O’Leary v. Salen, Director of Accounts, etc.
    1. A “ Janitor ” is not an “ Officer.”
    A “janitor ” is not an officer within the meaning of sec. 1645, Rev. Stat., the-federal plan law of Cleveland, authorizing the council to appoint certain, officers.
    2. Head of Department Must Appoint.
    The city council, therefore, has no authority to authorize the police judge to-appoint a janitor of the police court; such appointment must be made by the-head of the police department.
    Appear of relator.
   Caldwell, J.

Dennis O’Leary (The state on relation of) brought this action in. the court of common pleas against Charles P. Salen, director of accounts, etc., by way of mandamus, to compel Salen to issue to him an order upon the treasurer of Cuyahoga county for his pay as janitor of the police court, and he was defeated in the court below and has appealed, to this court and the case has been tried here. The question arises in' this way:

The director of police has been appointing a janitor to take care of the building in which the police court is held, which is a building controlled and managed largely by the police force, if not wholly by the police force, and used largely by the police force. The-council'gave the police court authority to appoint a janitor for his court room and he appointed Dennis O’Leary and the director of accounts has refused to give him a warrant upon the treasurer for his pay, $25, and he brings this action to compel Salen to issue the warrant. The defense is that the police judge had no authority; that the council, in the first place, had no authority to authorize the police judge to appoint O’Leary, and hence the police judge had no authority to appoint, but the appointing of janitor belonged to the police department of the city.

That is the case tried and it depends largely upon the statute; and we are cited to the section of the statute that comprises the federal law-plan, sec. 1545, Rev. Stat., 8 (Miscellaneous Officers):

“The council shall have power to provide tor the appointment of such officers as may be necessary for the enforcement of all provisions of law or ordinance relating to markets, city scales, sealing of weights and measures, harbors and wharves, consumption of smoke and the examination of stationary engineers, and such other officers in the several departments hereby created as it may deem necessary for the good government, of the corporation and the full exercise of its corporate powers, and prescribe their duties and fix their compensation.”

Then we are cited to sec. 1545-28, Rev. Stat. (Appointment of Officers, etc.): “Exceptas otherwise provided in this act, all officers, clerks and emploj^ees of the several departments and subdivisions thereof shall be appointed or employed by the head of the department without the advice and consent of the council.”

Then, in that part of the federal plan law that pertains directly to-the police department; sec. 1545-40, Rev. Slat., we find:

“(Director oí Police.) The department of police shall be under the charge of a director, to be appointed by the mayor as hereinbefore provided, who shall be known as the director of police and who shall be the head of said department.”

And sec. 1545-47, Rev. Stat.: “(Powers of certain officers vested in director.) Except as herein otherwise provided, the powers and duties heretofore vested in the board of police commissioners and the board of health are hereby vested in the director of police, and all the provisions of law pertaining to the said police and health departments shall apply to the police department and be administered by the director thereof.”

Going back to the law as it stood before the federal plan law, we will see what that section confers upon the director of police. We find in sec. 1930, Rev. Stat., as it then stood pertaining to the city of Cleveland: “And the board” (that ps, the board of police commissioners) “shall also appoint such suitable persons to act as door-men, janitors, attorney of police, and telegraph and telephone-operators as the demands of the service may require, who shall receive such compensation as the board may determine, in no case, however, exceeding the salary of patrolmen.” And then as to what property they shall have charge of.

It does not seem to be contested in this case, but that this building generally is under the care and protection of the director of police or the department of police.

Taking these various sections together, we construe that section in regard to the power of the council to appoint, to be limited in its extent to “such officers as may be. necessary for the enforcement of all provisions of law or ordinance relating to markets, city scales, sealing of weights and measure, harbors and wharves, consumption of smoke and the examination of stationary engineers, and such other officers in the several departments hereb3r created as it may deem necessary for the good government of the corporation and the full exercise of its corporate powers, and prescribe their duties and fix their compensation.”

We think the word- “officer” there would not include a janitor within the meaning of that section; and then, that sec. 1545-23, Rev. Stat, “Except as otherwise provided in this act, all officers, clerks and employees of the several departments and subdivisions thereof shall be appointed or employed by the head of the department without the advice and consent of the council.”

As to how far the word “officers” there, would need explanation in connection with the section I- have read, is not for us to determine here, after we have determined- that O’Leary is not an officer, but a janitor, under the express provision of the statute as it stood before the enactment of the federal plan law; that he then comes under the provision of this sec. 1545-23, Rev. Stat., that he shall be appointed by the head of the department. That being true, our construction of the statute, is, that the council has no authority to authorize the police judge to appoint a janitor; he is not one of the officers that they may, under the federal plan law, authorize any one to appoint; but O’Leary is such a help, he is a janitor, and not here understood or denominated as an officer or in these statutes as they have existed for a number of years pertaining to this city.

That being true, his appointment is expressly provided for by sec. 1545-23, Rev. Stat., as being appointed by the head of the department under which he serves.

That being true, we find the city council had no authority to authorize the appointment of the janitor and his appointment is not lawful; and all questions as to whether this question can be raised in this way have been waived in this case by the attorneys simply to get a construction of this statute, We hold that O’heary is not entitled to his pay and we will not order the director of accounts to issue to him an order on the treasurer of the city.  