
    Steubenville v. Culp.
    A. police officer, suspended from office, by the mayor of a city, under the authority granted by sections 121 and 211 of the municipal code (66 Ohio L. 170, 184), is not entitled to wages during the period of such suspension, notwithstanding the council afterward declared the cause of suspension insufficient.
    Error to the District Court of Jefferson County.
    Defendant in error filed his petition in the court of common pleas of Jefferson county against the city of Steuben-ville, on appeal from the judgment of a justice of the peace, to recover $128, which he claimed to be due him for wages as a policeman between tbe 30th of April, 1877, and the 4th of July, 1877.
    To his petition the city answered as follows:
    “ The said defendant, for answer to the petition of the plaintiff, says, that on the 6th day of June, a.d. 1876, the plaintiff was appointed by the mayor of said city of' Steubenville, by and with the consent of the council of said city, a day policeman, in pursuance of the ordinance of said city, and continued in the discharge of his duties as such until the 8th day of May, a. d. 1877; that his compensation as such policeman was two dollars per day, and that his compensation was fully paid him by the defendant up to and including the 30th day of April, a. d. 1877; that on the 8th day of May, a. d. 1877, the said plaintiff was by the mayor of said city of Steuben-ville, in the discharge of his duties as mayor, suspended from his position as said policeman, until the next meeting of the council thereafter; that he remained under such suspension and did not discharge any duty as policeman from the 8th day of May until the 22d day of May, 1877; that at a regular meeting of the council of said city, held on the 22d of May, 1877, the said mayor reported the said suspension of the plaintiff to the council aforesaid, together with his reasons therefor, and that by a vote of the said council at said meeting, the said reasons so submitted by the said mayor were deemed insufficient; that on the 23d day of May, a. d. 1877, the plaintiff was again by said mayor, in the discharge of his duties as mayor, suspended from his position as policeman until the then next regular meeting of the said council, and remained under such suspension and discharged none of the duties of policeman from that day until the 6th day of. June, 1877, when, at a regular meeting of the council aforesaid, the fact of such suspension, together with the reason therefor, was reported by the said mayor, and the said council then, without any trial, by a vote, determined that the reason submitted by the said mayor was insufficient; that afterwards, and on the 6th day of June, 1877, the said plaintiff was again, by said mayor, in the discharge of his duties as mayor, suspended from his position as said noliceman, and remained under such suspension, diseharg ing none of the duties of said policeman, until the 4th day of July, 1811, at which time the ordinances under which he was appointed were, repealed by said council; that upon the occasion of each of said suspensions, the position of policeman, for .' which plaintiff is claiming compensation, was filled by the appointment of said mayor, until the next regular meeting of said council, and the duties of said position were discharged by the person so appointed during all the time the plaintiff was so suspended, who is now claiming compensation therefor, but said plaintiff was always ready and willing to perform said services.
    “ This defendant says it is not indebted to plaintiff in any manner or form, except the sum of $19, for which it offered to confess a judgment before the justice of the peace before whom the case was tried, unless the facts above set forth render it liable; and it prays that it may be discharged from the payment of any part of the claim of the plaintiff, except that $19 aforesaid, and that it may recover its costs made since said offer to confess judgment.”
    To this answer no reply was interposed. At the trial it was agreed that any sum the plaintiff might recover for services rendered the defendant as a policeman, after the 31st day of May, a. d. 1811, should not in any manner affect the offer of the defendant in writing, to confess judgment for the sum of $19, and the cost made up to the time of the offer, as appears by the transcript' of the proceedings had before the justice in this action, and that, in case the plaintiff failed to recover more than $19, for services rendered by him from the 1st to the 31st days of May, both inclusive, judgment should be rendered against him for all costs-made since said offer to confess judgment.
    The plaintiff below thereupon introduced in evidence the ordinance of council authorizing the mayor to appoint policemen, and it w7as agreed that under this authority the appointment was made. No further testimony wras offered, and, the case having been submitted to the court, judgment wuis rendered in favor of the plaintiff for the full amount of his claim. This judgment was afterwards affirmed in the district court, and the latter judgment is now before us for review.
    
      A. H. plaintiff in error:
    By the provisions of the municipal code of 1877, sections 210, 211, 121, the mayor had authority to suspend.
    An appointment to office is not a contract. The plaintiff below accepted the appointment subject to the provisions and conditions of the statutes and ordinances, and whilst he should be permitted to discharge the duties of his appointment, he would be entitled to- the compensation provided by the ordinance for such services. Smithy. Mayor, cbe., 37 N. Y. 518. When Culp accepted the appointment of policeman, he took it subject to the power of the mayor to suspend him, as provided by the statute, and the power of the council to remove him at pleasure. When he was suspended by the mayor, his office became, during tlie period of suspension, vacant. He was not, during the time of its vacancy, a policeman. The vacancy in the office was filled'by the mayor, and the person so appointed by the mayor was, for the time being, policeman, appointed by competent authority, and entitled to discharge all the duties of the office, and to all the emoluments thereof. The office could be filled by one person only ; but one salary for the office can be paid by the city, for the same period, and that must be paid to the person who filled the office and discharged its duties during the period. Culp was, by legal authority, deprived of discharging any of the duties of the office, and another person, by legal authority, was the incumbent of the office, and entitled to all the emoluments thereof. Westerberry v. Kansas City (April term, 1877); Auditor v. Benoitt, 20 Mich. 176; Primm v. Carondolett, 23 Mo. 22; State v. Davis, 44 Mo. 131.
    
      John F. Oliver, for defendant in error:
    • This defendant in error claims the salary as a policeman during the whole time he served, including the time whilst under said suspension, on the principle that he always. considered himself no less an officer of the law (during the suspension), and that he was liable to be called upon as such at any time by the mayor to perform active duty ; and this liability, to be so called, never permitted him at any time to absent himself from the easy call of his superior officer; nor did it permit him to undertake any other vocation or business in life, which would interfere with his duty to the city as a policeman, until released from this unfortunate position, where he was placed, by this contest between -the mayor and the council, as it were, between the upper and nether millstone. He claims this pay on the principle that the council nor any other authority ever declared that he had forfeited the same by any neglect, misconduct or negligence of his official duties. He claims this pay on the principle of the analogous case of a military officer, who can only lose his pay by sentence of a regular court, however long he may be under arrest.
   Longworth, J.

By the laws in force in the year 1877, (Municipal Code, §§ 205, 209, 211,121, — 66 Ohio L. 184,170), the mayor was authorized to suspend any policeman for “ neglect of duty, misconduct or other sufficient cause, ” until the next regular meeting of council, and to appoint other persons to fill the temporary vacancy caused thereby. Beyond this his power did not extend ; the right to remove from office being in the council alone.

Two questions arise for our consideration: first, had the mayor authority to make the suspension complained of? and if so, second, what is the effect of such suspension upon the policeman’s right to wages during the period of suspension?

It is clear that the mayor’s authority to suspend is limited to cases in which there exists sufficient cause for its exercise— it ought not to be exerted from mere whim or caprice, or for personal or political reasons. In the case before us, the answer alleges that the suspension was made by the mayor in the discharge of his duties as mayor.” No reply is interposed, and the allegations of the answer are taken as confessed. In the absence of averment to the contrary we are bound to presume that the facts justified the official action of the mayor, and that the suspension was for sufficient cause. No doctrine is better ■established than that the acts of an officer, within the scope of his powers and authority, are presumed to be rightly and legally performed until the contrary appears. By the terms of the statute, however (§ 121), this suspension terminated with the next regular meeting of council, and that body having declined to remove Culp, having declared the reasons for his suspension insufficient, he became thereby reinstated in office. This took place twice, as shown in the answer, and on each occasion the mayor forthwith suspended him again.. It nowhere appears what was the cause, or causes, of these suspensions ; and if it be true, as claimed, that the mayor had no authority to suspend a second time for a cause which the council had declared insufficient, then we are bound to presume that the subsequent suspensions were for other and different causes. Taking the averments of the answer to be true, we must conclude that the plaintiff below was legally suspended from office from May 8, 1877, to July 4, 1877, because, if there existed sufficient cause, in fact, for the suspension, the declaration of council that such cause did not exist, would not have such a retroactive effect as to render it invalid during the time of its continuance.

Second. Was he entitled to wages during this period ? In Smith v. Mayor of New York, 37 N. Y. 518, it was held that no claim could be brought for salary or perquisites against a municipal corporation, covering any period when the complainant was not actually in office, for the reason that salary and perqrdsites are the reward of express or implied services, and therefore cannot belong to one who could not lawfully perform such services. To this extent the doctrine of the case cited was announced in Auditor v. Benoist, 20 Mich. 176; Shannon v. Portsmouth, 58 N. H. 183; Attorney General v. Davis, 44 Mo. 131; and is clearly laid down and justified in-the later case of Westberg v. City of Kansas, 64 Mo. 493. Indeed, I have been unable to find any case in which a contrary rule has been upheld. Offices are held, in this country, neither by grant nor contract, nor has any person a vested interest or private right of property in them.

The statute speaks of the suspension creating a vacancy, and provides how that vacancy shall be filled. If the office is vacant it becomes, as to tbe suspended person, for tbe time being, as though it did not exist, and as to tbe public tbe person appointed to fill such vacancy is tbe sole incumbent of tbe office.

The court below therefore erred in rendering judgment for mor¿ than the amount admitted to be due.

Judgment reversed.

Okey, C. J., concurs, but expresses no opinion except as to tbe question stated in tbe syllabus.  