South Euclid v. Bilkey , 1933 Ohio Misc. LEXIS 1667 ( 1933 )

LEVINE, J.

It is unnecessary to review the history of this litigation. Suffice to say that other actions were begun by Bilkey. The present action was instituted by him for the collection of his salary at the rate of Two Hundred and Fifty Dollars per month. The trial court entered a judgment for Bilkey for the full amount sued, the court holding first, that the council had no right to change the salary of an elective officer between the date of his election and the time of his taking office, and second, that the ordinance was unreasonable and void.

The first point which entered into the trial court’s decision involved an interpretation of §4219 GC, under the heading, "Compensation and Bonds of Officers, Clerks and employes,” which reads as follows:

“Council shall fix the compensation and bonds of all officers, clerks and employes in the village government, except as otherwise provided by law. * * * The compensation so fixed shall not be increased or diminished during the term for which any officer, clerk or employe may have been elected or appointed.* * *”

In holding as it did, the trial court relied on the case of Newcomerstown v State ex Blatt, 36 Oh Ap 434, (9 Abs 123), wherein the court held that the. council had no power to change the salaries of elected officers between the date of his election and the time of taking office.

The recent ease of Holcomb v State ex Coxey, Sr., adopted the same view. It will be found in Ohio Bar Association Reporter, December 26, 1932, page 457. This latter case which centered upon the interpretation of the section above cited, is now before the Supreme Court of Ohio, and we shall for that reason express no opinion as to its interpretation. We shall devote our attention to the point made by the trial court that the ordinance was unreasonable and void.

It will be seen that when the Council passed the various ordinances fixing the salary of the marshal of the village, it acted in pursuance of authority delegated to it by the. ’General Code of Ohio. Generally speaking, courts will not interfere with the exercise of discretion on the part of a village or city council, when such council acts in pursuance of authority delegated to it by the General Code of Ohio. This, however, is subject to the limitation that in exercising such delegated authority the council must bear in mind the purpose of the delegation of authority, namely, to carry on the functions of government.

“The office of marshal is political in its character, and is one of the agencies by which the government of a city or village is conducted. The marshal is a political officer and he is generally regarded as occupying the same office as the chief of police, and he occupies the same relation to the government of a municipality as the sheriff does to his county or a constable to his town.” 43 Corpus Juris, §1294.

“Where a statute specifies the duties of marshal and provides that he shall receive the compensation fixed by ordinance, the power of the trustees to fix the salary is absolute, free from judicial interference, subject only to the limitation that the salary cannot be fixed at so low a sum that no competent person can be found to perform the duties of the office.” 43 Corpus Juris, §758.

The case of State of Ohio v The Cincinnati Gas, Light and Coke Company, 18 Oh St 262, while not involving the exact question, sheds considerable light on the question of authority delegated by the state legislature to a municipal council. This case involved the question of the delegated authority of city councils to regulate the price of gas. After the court stated that this power so. vested in the municipal council must be exercised in good faith and for the. purpose for which it was given, the opinion states that if, in the colorable exercise of this power, a majority of the members of the council, for a fraudulent purpose, combine to pass an ordinance fixing the price of gas at a rate which they well know it can not be manufactured and sold without loss, that such an ordinance is invalid.

While the question of good faith does not enter into the present case, yet it seems to us that it sheds considerable light on the entire subject of authority delegated by the state legislature to the municipal council. The municipal council must exercise such delegated authority with sound discretion and to accomplish the object for which the power is delegated. If the municipal council passes an ordinance to accomplish another object, the power so to do is deT nied to it by the state.

In the case of State v Ironton Gas Company, 37 Oh St 43, syllabus number three concludes with the following statement:

“Where the facts show not' a real, but the mere colorable exercise of the authority vested in the council, the ordinance will be held invalid.”

In Thompson et v The City of Cincinnati, 6 Oh Ap, 420, the court held:

“The power to determine when it is necessary to improve or repair a sidewalk is vested in the council of a city, but this power cannot be exercised in an arbitrary manner regardless of the public necessity or the rights of the property owners. A court of equity will intervene to prevent arbitrary action amounting to a manifest abuse of discretion.”

We are of the opinion, based upon the overwhelming weight of authority, that a delegation of power conferred by the state legislature upon the municipal council, must be exercised by such council not only in good faith, but accompanied by sound discretion. Furthermore, that in exercising such delegated authority the municipal council must bear in mind the purpose for which the delegation was so conferred, namely, to carry on the functions of government.

Applying this principle to the present case, we hold that when the legislature conferred power upon the municipal council to fix the salary of the marshal, that such council may proceed to exercise such delegated authority subject to the condition that it is actuated by the purpose for which the authority was delegated, namely, to carry on the functions of government. It is quite clear from the record that when the village, council fixed the salary of marshal Bilkey at ten dollars per year, it sought to accomplish by indirection what it could not do directly. Its action amounts virtually to a repeal of the state law which created the office of village marshal. It sought by indirection to accomplish a virtual repeal of the state law which created such office.

We hold that the council has departed from the purpose for which the power to fix the salary of the marshal was conferred upon it by the state legislature, and that such council has no power to so completely ignore the purpose of the law which delegated to it this authority. The action of the council in passing a ten dollar ordinance was a clear abuse of discretion and amounts practically to a defiance of the law which delegated to it the power to fix the salary of the marshal.

Holding as we do, the judgment of the Common Pleas Court will be affirmed.

FARR, J, concurs in judgment. LIEGHLEY, J, dissents.