DocketNumber： No 13206
Citation Numbers： 16 Ohio Law. Abs. 86, 1933 Ohio Misc. LEXIS 1194
Judges： Levine, Lieghley, McGill
Filed Date： 11/27/1933
Status： Precedential
Modified Date： 10/18/2024
It is urged that the plaintiff is not entitled to recover, for the reason that no certificate of the fiscal officer of the Village accompanied the alleged contract or order to do the work which plaintiff says he did do, as provided for and required by 85625-33 GC. The pertinent part of said section reads as follows:
“No subdivision or taxing unit shall:
(d) Make any contract or give any order involving the expenditure of money unless there is attached thereto a certificate of the fiscal officer of the subdivision that the amount required to meet the same (or in the case of a continuing contract to be performed in whole, or in part, in an ensuing fiscal year, the amount required to meet the same in the fiscal year in which the contract was made,) has been lawfully appropriated for such .purpose and is in the treasury or in process of collection to the . credit of' an appropriate fund free from any previous encumbrances. ~ * * The term ‘contract’ as used in this section shall be construed as exclusive of current payrolls of regular employees and officers.”
Such certificate is seemingly indispensable in awarding any and all contracts made by a municipality involving the expenditure of money with the exception that ‘current payrolls of regular employees and officers’ are excluded therefrom.
The Supreme Court has decided in a case wherein the circumstances and facts were strikingly similar to this case that the engineer was an officer under such contract with the Village. The General Code creates the office of engineer of a municipality and defines his powers and duties. The council selects the officer. Wright v Clark et, 119 Oh St 462.
This authority decisively fixes the status of the plaintiff as an officer. His contract by ordinance calls for the performance of personal service and personal responsibility, as do the duties of every other public official.
“Current payrolls of regular employees and officers” are excluded and require no certificate of the fiscal officer.
Plaintiff was an officer of the Village. He was a so-called regular officer in the sense that his employment was continuous. If his compensation could not legally be Included on the monthly or semi-monthly payroll when and as earned and due for the reason that his name did not regularly appear thereon, then and in that event employees and officers intermittently employed would likewise be barred therefrom. If failure to certificate in one case is a defense, then it ought to be in the other.
If the ordinance had specified a salary payable monthly or otherwise, his right to be paid through the medium of the regular payroll would and could not be challenged. Instead of a salary, the Village elected to pay for his services as ordered by it on a percentage basis for improvements planned and contemplated and as proposed and planned, and agreed to pay four percent on completed improvements and two percent of the estimated cost of proposed improvements that were abandoned after the engineer had performed the preliminary services ordered by the respective resolutions. Why the percentage plan of payment should require a certificate and the stipulated salary method of compensation not require it does not seem clear.
It seems certain that in the event a certificate is required under the facts of this case, then a municipality cannot legally employ an engineer on a percentage plan of payment, as the certificate at best could only be an estimate of the amount of an unascertained estimate.
Little difficulty would be encountered and the task simple to place his name on the poyroll for the amount due when and as earned to be paid from the same fund as ■ if designated a salary. To require the fiscal officer to certificate an amount as two percent of the estimated cost of an improvement that had not been estimated would compel an impossible duty if any degree of accuracy is expected. One resolution ordered the preliminary work on seven or eight proposed improvements. How could this certificate accompany the resolution in advance of the estimates. The successive steps required to be taken by the council as provided for by statute in legislating for a special improvement negatives any claim that a certificate is indispensable. Approval of the plans, profiles, estimates and so forth precedes the legislation
As stated, the case is here on demurrer. The facts alleged are regarded as true for the purpose. If these facts were undisputed and the amount ascertained and conceded, doubtless mandamus w'ould be the appropriate remedy to compel the proper officers of the Village to perform the necessary ministerial acts to comply with the contract of employment, if the plaintiff there shows a clear legal right thereto. However, from what was stated in argument and briefs, the answer will likely not contain admissions of the controlling essential facts so as to make mandamus the preferable remedy.
For the foregoing reasons, it is our opinion that there was error in sustaining the demurrer, and the judgment is therefore reversed with instructions to overrule same, to which ruling the defendant in error excepts.