State ex rel. Attorney-General v. Craig , 69 Ohio St. (N.S.) 236 ( 1903 )

It is conceded that the members of the old board of health in office when the new Municipal Code took effect on May 4, 1903, were each, when appointed by council, members of the council that appointed them, and were present and voting when such appointments were made.

Section 1717, Revised Statutes, then in force, and part of title twelve, contains the following:

“No member of council shall be eligible to any other office, or to a position on any board provided for in this title, or created by law, or ordinance of council, except as provided in the seventh division of this title.”

Members of boards of health are provided for in said title twelve, and are not embraced within the exception as to the seventh division of the same title. The members of council w;ere therefore not eligible to the office of members of the board of health, and their appointment to that office by council was a nullity (State, ex rel, v. Kearns, 47 Ohio St., 566). The fifth subdivision of the syllabus is as follows:

‘ ‘ The appointment by a city council of a member thereof to an office which the statute makes a member of council ineligible to fill, and his acceptance thereof, does not work an abandonment of his office as councilman. The appointment to the second office is absolutely void.”

It is contended by the State in this case, that the appointment of these members of council to be members of the board of health being a nullity and absolutely void, the appointment by such board of health of Dr. Craig as health officer was also void; and on part of Dr. Craig it is contended that such board of health became and was a de facto board, and that its appointment of a health officer constituted him a de jure officer. It is not necessary to determine in tbis case, which, if either, of these contentions is right, as the case turns upon another principle.

The appointment of members of council to positions on the board of health being a nullity and void, no proceeding in quo warranto was necessary to oust them from such nullity, but the council under the old statute, or the mayor under the new Municipal Code, might treat the office as vacant, and make a valid appointment to fill such vacancy, as was done by the mayor in this case. True the members of the old board might have been ousted by proceedings in quo warranto as intruding themselves into a public office without warrant of law, but while that might have been done, it was not necessary to do so before appointing a new board, because their appointment was a nullity and they had no color of title to the office, and could not invoke a nullity to keep duly appointed officers out of the office. When there is some color of title, resort •must first be had to quo warranto; but where there is.no such color, but a mere nullity, a legal appointment may be made to fill the office, and then if the party in the wrong still persists in holding onto the office, he may be ousted by proceedings for that purpose. It is therefore clear that the board of health appointed by the mayor May 4, 1903, and confirmed by council, is the only lawful board of health of the city of Mansfield, and was such lawful board of health on the fifteenth day of May, 1903, when it appointed A. H. McCullough health officer of said city.

By the official act of appointing Dr. McCullough health officer, the board of health expressed its pleasure that Dr. Craig should no longer serve as health officer, and he then ceased to be such officer. The pleasure of the board may be as effectually indicated by official acts as by words or resolutions. It was not necessary to expressly remove Dr. Craig to get rid of him, because the appointment of Dr. McCullough expressed the pleasure of the board, and in legal effect terminated and ended the term of service of Dr. Craig.

It is further urged by counsel for Dr. Craig that when the new Municipal Code took efféct, May 4, 1903, he was an employe, serving in the health department, and that therefore he would continue to hold his position as provided in the latter part of Section 189 of tbe new code. Tbat is not tenable. The part of the section reJied upon is as follows:

“All employes now serving in the health department shall continue to hold their said positions, and shall not be removed from office or reduced in rank or pay except for cause assigned, and after a hearing has been afforded -them before the board. ’

Is the health officer an employe as that word is used in the statutes? We think not. He is known as a health officer throughout the statute, and in Section 2115 is spoken of as an appointee, but nowhere as an employe. It is urged that the General Assembly in the use of the word employe meant appointee, but as there may be both employes and appointees in the health department, and as the General Assembly has legislated as to each, it must be held that when it used the word employe it meant what it said, and did not mean appointee or health officer.

And even if the word employe means and includes a health officer, then such employe as such health officer will, under Section 2115, Revised Statutes, serve in said office only during the pleasure of the board of health, and in this case the board indicated its pleasure by the appointment of Dr. McCullough May 15, 1903, that Dr. Craig should no longer serve as such health officer. It being clear under Section 2115 that a health officer can serve only during the pleasure of the board, his term of service can not be extended by the doubtful word employe found in Section 189 of the new Code.

It is therefore clear, from every point of view, that Dr. Craig ceased to be health officer when Dr. McCullough was appointed to that office and qualified, and that Dr. McCullough, by his appointment and qualification, became and is the legal health officer of the said city of Mansfield.

Judgment of ouster will be rendered against Dr. Craig, and an order of induction awarded in favor of Dr. McCullough.

Judgment of ouster and order of, induction.