
    NEW MUNICIPAL CODE — POLICEMEN AND FIREMEN.
    [Montgomery County Circuit Court.]
    The State of Ohio, on the Relation of Charles A. Snyder, as Mayor of the City of Dayton, Ohio, v. Charles S. Hall and Edward G. Durst, as Directors of Public Safety, Constituting the Board of Public Safety of the City of Dayton, Ohio.
    Decided, January 2, 1904.
    
      Municipal Code — Provision Regarding Policemen and Firemen — Forbidding Removal or Reduction in Ranh or Pay — Was Providing for an Emergency — Not an Exercise of the Power of the Appointment —And Not in Contravention of the Constitution.
    
    1. The provision of. Section 167 of the New Municipal Code (96 O. L., 20) that “no officer, secretary, clerk, sergeant, patrolman, fireman or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect, shall be removed or reduced in rank or pay except in accordance with the provision of this act,” is not in contravention of Section 27, Article II, of the Constitution inhibiting the exercise of the appointing power by the General Assembly.
    2. The New Municipal Code was enacted upon the assumption, based upon the decisions of the Supreme Court respecting special legislation, that the acts under which our municipalities were organized were invalid, and in order that as little hardship and inconvenience as possible might result from reorganization, the General Assembly provided that the officers and employes of the police and fire departments under the new code should be appointed from those serving in the departments at the time the new code took effect. It was providing for an emergency, not exercising the power of appointment.
    Summers, J.; Sullivan, J., and Wilson, J., concur.
   This is a proceeding in mandamus. The petition is as follows:

“Charles Snyder, relator herein, states that he is the legally elected, qualified and acting mayor of the city of Dayton, Montgomery county, Ohio, in which capacity he brings this suit in the name of the state. The defendants, Charles S. Hall and Edward G. Durst, were duly appointed directors of public safety on the--day of May, A. D. 1903, the city council of said city having fixed the number of directors for said city at two by ordinance duly enacted, and said defendants have entered upon their office as such directors, and now constitute an organized and acting board of public safety in said city, in which capacity they are made defendants. Said city contains over eighty thousand inhabitants.
“Prior to the enactment providing for the organization of cities and villages, passed October 22, 1902, the police force of the city of Dayton was organized and operated under the act of March 8, 1887, providing for the establishment of a nonpartisan police in the cities of the state of the second grade of the second class, and the subsequent amendments thereto. The city of Dayton was then, under the existing classification of cities, a city of the second grade, second class, and remained in such class as the only city of that class and grade until the passage of the law of October 22, 1902, which repealed all laws providing for the organization of such cities, including the law of March 8, 1887, and all the amendments thereto. By an amendment to said law of March 8, 1887, passed March 17, 1892, to provide for the more efficient government of cities of the second grade, second class, four police directors were put in control of the department of police instead of four police commissioners, in whom this control was put by the law of 1887. Such police directors were appointed by the tax commission provided for such cities by the act of March 17, 1892, and the office of police commissioner was abolished.
“The law of March 8, 1887, created an office called superintendent of police, who was to be appointed by the said board of police commissioners, as provided therein, and later by the board of police directors, as provided by the amendment of March 17, 1892. In both laws there was provision for the appointment, in a similar manner, of a captain of police, with other subordinates in the department.
“Under the provisions of the law of March 8, 1887, as amended, the board of police directors of the city appointed John C. Whitaker, Superintendent of Police on the 21st day of February, A. D. 1901, for the term of one year. At the expiration of said year, about the 26th day of February, 1902, the said board re-appointed said Whitaker to the same position, the term not being designated but left indefinite. Under such appointment the said Whitaker was duly qualified and entered into the said office and upon the performance of the duties and obligations annexed thereto, and continuously acted as such superintendent of police until the law of October 22, 1902, above referred to, took effect, when the said office was abolished, and all the laws providing for the government of cities of the second grade, second class, were repealed or superseded, including all the laws above referred to, except said law of October 22, 1902.
“After said law of October 22, 1902, went into effect, the city council of the city of Dayton, Ohio, to-wit, on the-day of May, 1903, duly passed an ordinance for the organization of a police force of the city of Dayton, in accordance with its provisions. In such ordinance there was provision for a chief of police at a salary of $2,500 a year, the previous salary of the superintendent of police having been the sum of $2,500 a year; and provision for one captain of police at a salary of $1,200 a year, and other subordinates, such as detectives, sergeants, patrolmen, etc. There was no provision in said ordinance, or any other ordinance, making the chief of police the successor in any way of the superintendent of police, nor vesting in him any of the powers of such superintendent, nor submitting him to any of his obligations, nor in any way defining the duties of such chief of police; and while the duties devolved upon the chief of police under the 'general provisions of the law of October 22, 1902, were and are, to some extent, similar to those imposed upon the superintendent of police by the former statute referred to, yet the powers and duties were not the same, and the offices were different offices, as an inspection of the statutes will show.
“Notwithstanding all of the above facts, the said Whitaker, after the law of October 22, 1902, went into effect, entered into and upon the office of chief of police, performing its duties, and assuming its obligations, and he has continuously acted as such chief, in said office up to the present time, with the exception of a brief period during which he did not so act, claiming to be such chief. He was not appointed to said position by the mayor of the city, the relator herein, nor by any authority in the city of Dayton. The said Whitaker has taken no steps to bring himself within the classified service of the said department of public safety, and has submitted to no examination.
“The relator avers, upon the advice of his counsel, that the law in force at the date of the appointment of Whitaker, as stated, was unconstitutional and void; that said police directors were not, in law, officers of the city of Dayton; that the law. creating the office of superintendent of police was not a valid law and did not establish such office, and that in right there was no such office or officer as superintendent of police at any time during his acting as such alleged officer.
“The relator avers further that on December 14, 1903, upon the advice of his counsel, he declared the said office of chief of police to be vacant, and immediately sent a formal notification of the fact of vacancy to the defendants as members of the board of public safety, requesting them to forward and submit to him the names of three persons qualified to receive and accept the appointment as such chief of police under the laws of the state, and the regulations of the board pursuant thereto. The said board held its regular meeting on the evening of December 14, 1903, to which was duly presented the request of the relator as mayor. At said meeting, it refused to recognize the existence of such vacancy, or to forward and submit any names to your relator from which to choose a chief of police; and such board will continue to refuse to submit any names out of which the relator, as mayor, may make a proper appointment, unless ordered by the court so to do, on the ground that no vacancy exists.
“Relator avers that it is a duty enjoined by law upon the defendants, as the board of public safety, to present to him the names of three persons from the classified service from which he shall select a chief of police; and in the ordinary course of law he lias no adequate remedy against them for such refusal.
“■Wherefore, the relator prays that the defendants, Charles S. Hall and Edward G. Durst, as directors of public safety, and members of the board of public safety, be compelled to transmit and submit to him, as mayor of the city of Dayton, Ohio, the names of three persons in the classified service of the said city, qualified to be chosen as chief of police; that an alternative writ of mandamus may first issue to them requiring them to show cause, by a day to be named therein, why they do not transmit and submit to him the names of three persons qualified to receive and accept said appointment as chief of police; and on the final hearing that a peremptory writ be issued to compel the defendants, as such board, to submit and transmit the names of such persons. And he prays for such other or further relief as the nature of the ease may require. ’ ’

Upon motion for allowance of an alternative writ it was suggested that the allowance and issuing of an alternative writ be waived, and that was done.

The answer is quite lengthy, and I do not think it necessary to read it verbatim. I have read the petition, because it is a succinct statement of the legislation that is necessarily under consideration in this case.

The answer admits many of the statements of fact set ont in the petition, and then denies each and every other allegation, and then sets up at some length acts of the mayor in recognizing Whitaker as the chief of police; and then comes this averment:

Defendants further say that said board of public safety within thirty days after the organization of such board, did classify all offices and .places of appointment and employment in the department of public safety in said city, in conformity with the ordinance of the council of said city determining the number of persons to be employed therein, and did immediately thereafter furnish to the mayor, the relator herein, a list of all said places of appointment and employment in any way connected with said department within the classified service, together with the names of the incumbents, their compensation and the nature of their duties; that said John C. Whitaker was named in such classification as chief of police and his salary as such chief of police was fixed at $2,500 per year, and he was to perform all of the duties incumbent upon him as the chief of police of said city; and said John C. Whitaker has ever since been addressed and designated and recognized and empowered to áct as such chief of police of said city in all official communications by said relator as such mayor, and by said board of public safety, and has performed the duties of said office under the direction of said relator as such mayor, and said board of public safety.

Defendants further answering say that said relator, as such mayor, has a full, complete and adequate remedy at law.

Defendants further allege that as there was no vacancy nor any prospect of a vacancy in the office of chief of police, no examination has been held of the applicants for said office, and that no register of candidates for the office of chief of police exists from which names could be certified even if there were a vacancy in such office; and defendants further allege that they have had under consideration the rules governing the police department but that they have not all yet been completed or formulated, and that thus far no rule or rules have been made providing for the promotion of members of the police force' from the classified service of the department of public safety of said city.

Wherefore, defendants ask to be dismissed with their costs.

To this answer a general demurrer was interposed and the case is submitted upon the general demurrer to this answer.

The principal contentions upon the part of counsel for the relator are that all laws relating to cities of the second grade of the second class, including that referred to, that is, the act of 1887, relating to the organization of the police department in the city of Dayton, under which "Whitaker was appointed superintendent of police, are unconstitutional, and that an unconstitutional law is void.

“An unconstitutional act is not.a law; it confers no rights; it imposes uo duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, 118 U. S., 425-442.

That the law, being unconstitutional, there never was any such office as superintendent of police, and that, inasmuch as there must be a de jure office in order that there may be a de facto officer, Whitaker was not even a de facto officer at the time when the new code went into effect, and that therefore he was not entitled by virtue of that act to the office of chief of police — first, because he was not in office when the code took effect, and second, there being no such office, the code did not merely continue an office already in existence, or continue him in an office which was already in existence, but that it repealed the former law and created a new office, and attached new duties thereto, and that Section 167, in so far as it provides that persons in office or employment shall remain in, is unconstitutional in that it attempts to exercise the power of appointment, contrary to the express provision of Section 27 of Article II of the Constitution. That the classification of municipal corporations, under which Dayton was a city of the second grade of the second class, is unconstitutional is said to be put beyond question by the two cases in the 66 Ohio State, pages 453 and 491.

We do not think the Supreme Court has anywhere held that there can be no constitutional classification of cities by the Legislature, nor is it certain that the act in 84 Ohio Laws, page 52, being the act of 1887, providing for a police force in the cities of the second grade and second class, would be held unconstitutional. Similar acts, too numerous to mention, have been sustained; we need refer only to the case of Seifert et al v. Weidner et al, 55 Ohio State, 646, affirming 12 Ohio Circuit Court, page 1, and to the case there referred to.

But assuming that it would be so held, we are not willing even to conjecture as to the extent of the mischief that would follow if all that has been done under such legislation must be declared illegal. If this legislation is to be held void from the beginning, then the acts of all who acted under it were illegal, for there being no de jure office, they were not even de facto officers.

So far as contract rights are involved, the rule that should govern is, in our judgment, laid down in Douglas v. Pike Co., 101 U. S., 677. Reading from page 687, Mr. Chief Justice Waite says:

“The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative enactment; that is to say, make it prospective, but not retroactive. After a statute has been settled by a judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment.” See also Shoemaker v. Cincinnati, 68 O. S., 603.

How far that rule may be extended we do not undertake to determine.

The sections necessary to be considered are so numerous that that I do not know, in the absence of a memorandum and time to prepare one, that I can refer to them in the order in which they should be noticed, to make plain the conclusion we have reached, but referring to the code, I refer to it by section and number.

Section 146 provides that in every city there shall be a department of public safety, which shall be administered by two or four directors, as council shall by resolution or ordinance determine.

Section 147 provides that all powers and duties connected with and incident to the appointment, regulation and government of the police and fire departments of the city, together with the regulation and control of the fire alarm telegraph and telephone system, shall be vested in the mayor and the board of public safety, as hereinafter provided.

Section 149 provides:

“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 shall have been provided by ordinance or resolution of council.”

Section 148 provides:

“That the chief shall be the executive head of the department, under the direction of the mayor; provided that the chief shall have exclusive control of the stationing and transfer of ail patrolmen and other officers and employes in the department, under such general rules and regulations as may be prescribed by the board of public safety.”

Section 152 provides:

‘ ‘ That the chief of police and chief of the fire department shall have exclusive right to suspend any of the deputies, officers or employes in their respective departments and under his management and control, for incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given him by the proper authority, or for any other reasonable and just cause.”

I think we may assume that the office created by this act is a public office, and the chief of police a public officer. That would seem to follow from State, ex rel, v. Jennings, 57 O. S., 415.

Now we have found that the code provides for a police department, for its control by the board of public safety, that it specifies what the force shall consist of, and what the duties of the chief are. The next- question that would arise is: How is this police force to be constituted or appointed? It will be noticed that it says it shall be composed of the chief of police and such captains and lieutenants, etc., and patrolmen and other officers as shall have been provided by ordinance or resolution of council.

It appears from the facts admitted in the pleadings that the council of the city of Dayton, since the adoption of this code, has by ordinance provided for these officers and employes. Now, how are they to be appointed ? Section .153 provides:

“The directors of public safety shall classify the service in the police and fire departments in conformity with the ordinance of council determining the number of persons to be employed therein, and shall make all rules for the regulation and discipline of such departments and for the qualification and examination of all appointees thereunder, except as otherwise provided in this act. ’ ’

Section 158 provides:

“That the board of public safety shall, within thirty days after tlie organization of such board, classify all officers and places of appointment and employment in each city in the department of public safety with reference to the examinations hereinafter provided for. The offices, employment and places so classified by the said board of public safety shall constitute the classified service of the department of said city, and no appointments to such places shall be made except under and according to the rules hereinafter mentioned. ’ ’

The section further provides:

“Immediately upon the classification of such department, such board shall furnish to the mayor a list of all offices, employment and places in any way connected with such department within such classified service, with the names of the incumbents, their compensation and the nature of their duties; and said board shall from time to time promptly furnish to the said mayor, in writing, at his request, all other information desired by him for the proper fulfillment of his duties.”

Section 167 provides:

“No officer or employe in the department of public safety shall be removed or discharged except for cause; and the cause city of the state at the time this act goes into effect, shall be by the mayor to the board, and shall be filed by the said board in its office, and shall be open to public inspection.
“No officer, secretary, clerk, sergeant, patrolman, fireman, or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect shall be removed or reduced in rank or pay, except in accordance with the provisions of this act.”

It will be noticed that the petition avers that the council passed an ordinance creating the department and specifying of what it shall be composed. The answer admits that the - ordinance was passed, then avers that within thirty days after the appointment by the board of public safety the members of that board did classify the offices as provided by Section 158, and that immediately upon the classification of said department they furnished the mayor with a list of all the offices and places of appointment and employment in any way connected with the department, as provided for by ordinance, with the names of the incumbents, their compensation and the nature of their duties, and that Whitaker was named as chief of police, and his salary was stated, and that he entered upon the discharge of the duties of the office, and has ever since continued to perform the duties of that office.

The contention of counsel for the relator is that this provision, that is, the latter clause of Section 167, which I read, and which reads, “That no officer, secretary, clerk, sergeant, patrolman, fireman, or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect, shall be removed or reduced in rank or pay, except in accordance with the provisions of this act, ’ ’ was an appointment of the old members of the police force to positions in these new offices or places created by the code, and that the Legislature, under Section 27 of Article II of the Constitution being prohibited from exercising appointing power, it necessarily follows that this provision of the code is unconstitutional and void, and that therefore Whitaker is not entitled to claim that he' is an incumbent of or in the office of chief of police.

After considering all of the provisions of the code that relate to the creation of the police and fire departments, giving them the best construction of which we are capable, the conclusion which we have reached is that what was intended by the' code was not that under this clause that I have just read, every member of the police force or every member of the fire department in office when that code went into effect was entitled to remain a member of the police or fire department created by the ordinance, but that the intention of the Legislature was that the council should by ordinance provide a police and fire department, and determine the number of employes or places that there should be to fill — that number might be considerably less than the number that were in existence under the old law — and that when council had determined the number of places, that then the board of public safety was to classify those places and to fill those places by naming the persons who were then members of the old police and fire departments, who should fill the places in the new department created by the ordinance, and that that was in effect what they did when they complied with this provision of Section 158, “immediately upon the classification of such department, such board shall furnish to the mayor a list of all offices, employment and places in any way connected with such department within said classified service, with the names of the incumbents, their compensation and the nature of their duties.”

The effect of that was to vest in the board of public safety the power to appoint the chief of police and the officers and employes of the police department from those who were members of the police department at the time the code went into effect. If there were one- hundred and fifty patrolmen under the old law, and but a hundred places for patrolmen created by the ordinance passed by the council, the board of public safety would designate a hundred out of the hundred and fifty old patrolmen, and they would be the patrolmen under this new code, and under the ordinance providing for the police department. In other words, the effect of this was, as I said before, to vest in the board of public safety the power to make these appointments from the old force.

Now as to the provision for appointments in the future in case of vacancies in the force, how are the offices to be filled? The list is to be made up of persons who have taken the examination, and in eases of vacancies, the mayor notifies the board of public safety and they are required to certify three names to him, and from the names so certified, he is to make the appointment. But it is clear that this provision as to examination does not apply to the men who were in office at the time the new code went into effect.

Reference is also made to Section 213—

“All officers elected by the people or appointed by any authority, and all employes under any boards or officers in any municipal corporation, and all officers or employes in any educational, charitable, benevolent, penal or reformatory institution in any such corporation, now serving as such, shall remain in their respective offices and employments and continue to perform the several duties thereof under existing laws, and receive the compensation therefor until their successors are chosen or appointed and qualified, or until removed by the proper authority, in accordance with the provisions of this act.”

It is contended,. I believe, that under this provision, Whitaker’s term of office would have expired and there would be a vacancy. We do not think that section controls. The special sections to which I have already called attention are the ones that control in the police department. This is a general section which is to control generally where no specific or special provision is otherwise made, and has no application here.

The question then arises whether or not this is the exercise of the power of appointment by the General Assembly. The view we take is that clearly this legislation is not appointive. These men were not in by virtue of the provisions of the law, but the board of public safety was to designate who was to fill these places, and the question then would be whether or not this provision of the Constitution was violated by the Legislature, limiting the selection to those who were already officers or patrolmen or employes of the police' department in existence when the code went into effect; and it might be claimed that there being but’ one superintendent of police, one chief executive officer of the department, that the Legislature gave the board no discretion, no chance of selection, but required them to appoint Whitaker, and might as well have named Whitaker. This contention, however, we think is disposed of by Gleason v. Cleveland, 49 Ohio State, 431, where the General Assembly directed the governor to appoint eleven persons to act as a commission for the erection of a monument, I believe in Cleveland. There were only twelve persons, out of whom he was to select eleven. The contention was there made that that was the exercise of the appointing power by the General Assembly, that it was obnoxious to this same constitutional provision. But the court, in the opinion, page 437, say:

“The objection that the persons composing the commission created for the erection of the monument are officers virtually appointed by the Legislature, and that the act is therefore unconstitutional is, we think, untenable. If they are officers within the meaning of the Constitution, the direction for their appointment by the governor from ‘the present monumental committee of The Cuyahoga. County Soldiers’ a.nd Sailors’ Union,’ is impersonal, and does not require the appointment of specific persons; whoever, at the time the appointment is. made, compose that committee may be appointed by the governor, whether they were such members at the passage of the act or not.”

It dops not follow that Whitaker would necessarily be the appointee. If Whitaker' had died prior to the taking effect of the code and his successor had been appointed, then it would have been his successor who would have been the chief, or whoever was in office at that time. Counsel criticizes the case, and we are not disposed to take exception to their criticism. It is said that it is not in point for the reason that this case is based on the ground that these persons were not officers. But it is apparent from what I have read that that can not be so. The decision is upon the assumption that they were officers.

I refer to the case of Fosdick v. The Village of Perrysburg, in the 14th Ohio State, reading from page 482. I do not know that it has any bearing, but it is interesting in view of the fact that there the action of the General Assembly in undertaking to create or classify municipal corporations under the provisions of the Constitution when it came into effect, was under consideration, and the court says, or the judge delivering the opinion, Judge Brinckerhoff, I believe:

“The corporate life of the village of Perrysburg was a continuation of the life of the town of Perrysburg. It was a continuation; not an annihilation and a re-creation. Even the official designations of the officers respectively of incorporated villages organized under the general act were the same as under the special acts organizing them as ‘towns’; they were still a mayor, recorder, and trustees, which, together, constituted a council (Section 47). And the officers in office at the time of the taking effect of the general act, were, under its provisions, continued in office until the first Monday of April following and until their successors should be elected and qualified. ’ ’

McMahon & McMahon, for plaintiffs.

Edwin P. Matthews, City Solicitor, Philo G. Burnham,, Assistant City Solicitor, Conrad Mattern and S. A. Dickson, for defendants.

The old laws relating to municipal corporations were repealed. The law went into effect on the 15th day of May, 1852,1 believe, and by force of this act of the General Assembly all the old city officers were continued in their places until the following April, nearly a year. That is attempted to be done under the provisions of the act under consideration here.

At the time the application was made for leave to file a petition, or for the allowance of an alternative writ, the court intimated a doubt as to the right to proceed in mandamus. That question we have not examined, for the reason that upon examination of the whole case we are clearly of the opinion that the effect of the legislation is as I have indicated; that is, to> vest in the board of public safety, in the first instance, the power to make the appointments from the existing police force, or from the persons in office at the time of the passage of the code; and whether they were de jure officers or de facto officers we think is wholly immaterial. It was in the power of the General Assembly to provide for their appointment in the way it was done, and for these reasons the demurrer to the answer will be overruled.  