State v. Board of County Commrs. of Cuyahoga Co.

Error proceedings are prosecuted from the decision of the common pleas court. The action is one in mandamus instituted in the common pleas court, seeking to compel the defendants in error to pay the relator his salary for the period from December 27, 1928, to January 15, 1929. It may be taken as conceded that the relator was appointed an assistant clerk in the office of the board of county commissioners, and that the duties assigned to him by the board and the clerk were the investigation of claims and other matters, and reporting thereon to the board of county commissioners. The common pleas court held in effect that because the duties assigned to him were not confined to purely clerical duties, as set forth in Section 2406, General Code, his appointment was illegal and the writ was therefore denied.

Two questions of law are presented upon the record: First, can the power of the board of county commissioners to make an appointment as an assistant to the clerk, and the validity of the appointment, be determined by considerations other than the law which authorizes the appointment and the resolution of appointment? In other words, can regard and consideration be given to the subsequent events which took place after the appointment was made, and can the duties assigned to the appointee after the appointment be taken as a basis for invalidating the appointment? Second, are the duties of the clerk and his assistants limited to purely clerical duties, and is the board of county commissioners without authority to assign to the clerk or his assistants duties other than those purely clerical enumerated in Section 2406, General Code?

The appointment of the relator was made from the unclassified list of the civil service commission of Ohio, by authority of Section 486-8, General Code, under the heading "Positions in Unclassified Service," as follows: "8. Three secretaries, assistants or clerks and one personal stenographer for each of the elective state officers; and two secretaries, assistants or clerks and one personal stenographer for other elective officers and each of the principal appointive executive officers, boards or commissions, except civil service commissions, authorized by law to appoint such secretary, assistant or clerk and stenographer."

We must, of course, look to other sections in the Code with a view of determining whether the board of county commissioners was empowered and authorized to appoint the relator. Section 2409 deals with the appointment of a clerk to the county commissioners, and his assistants. It reads as follows: "If such board finds it necessary for the clerk to devote his entire time to the discharge of the duties of such position, it may appoint a clerk in place of the county auditor and such necessary assistants to such clerk as the board deems necessary. Such clerk shall perform the duties required by law and by the board."

We are referred to the case of State, ex rel. Landis, v. Boardof County Commissioners of Butler County, 95 Ohio St. 157,115 N.E. 919. In that case the validity of Section 2409, which authorizes the appointment of a clerk to the county commissioners, was the only question, and it was contended that the clerk was a public officer within the meaning of Section 2, Article X of the Constitution, and therefore could not be appointed. In that case the court held that the position of clerk did not involve the exercise of continuing, independent political or governmental functions. On page 161 of 95 Ohio State,115 N.E. 920, the court used the following language: "His employment is not durable in time. The board of county commissioners are the officials who are in fact clothed with the sovereign power of the state, and the duties of the clerk are incidental thereto and purely clerical. He is the amanuensis of the board. As the statute and resolution designate him, he is a ``clerk' whose business it is to record its transactions."

In addition to holding that the clerk of the board of county commissioners is not engaged in duties which involve the exercise of continuing, independent political or governmental functions, this case holds that the board of county commissioners has such powers and jurisdiction, and only such, as are conferred by statute. We must look therefore to Section 2409, General Code, and from its language determine whether the board of county commissioners may impose upon the clerk or his assistants duties other than purely clerical duties such as are enumerated in Section 2406. Note the language: "Such clerk shall perform the duties required by law and by the board." As to what are the duties required by law of such clerk, the same are fully set forth in Section 2406, but it was clearly the intention of the Legislature that the duties of the clerk may be made, at the discretion of the board, more numerous and greater than merely those required by law. "Such clerk shall perform the duties required * * * by the board." Are these words meaningless?

In the case of Slingluff v. Weaver, 66 Ohio St. 621,64 N.E. 574, the Supreme Court in clear language set forth rules of guidance for the construction of a statute:

"1. The object of judicial investigation in the construction of a statute is to ascertain and give effect to the intent of the law-making body which enacted it. And where its provisions are ambiguous, and its meaning doubtful, the history of legislation on the subject, and the consequences of a literal interpretation of the language may be considered; punctuation may be changed or disregarded; words transposed, or those necessary to a clear understanding and, as shown by the context manifestly intended, inserted.

"2. But the intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the law-making body, there is no occasion to resort to other means of interpretation. The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact. That body should be held to mean what it has plainly expressed, and hence no room is left for construction."

It is undoubtedly the duty of the court to give full effect to every word of the statute. The meaning of the words "by the board," in defining the duties of a clerk, is obvious and plain, leaving no room for ambiguity or doubt. In order to give full effect to the language used in Section 2409, we are led to the conclusion that the words, "such clerk shall perform the duties required * * * by the board," were inserted intentionally for the reason that the Legislature felt that, in view of the many responsibilities and the varied and divers duties which are imposed on the board of county commissioners, it would be conducive to more efficient administration if the county commissioners are empowered to add to the duties imposed upon the clerk and his assistants by law, and thus assist the commissioners to more efficiently perform their duties.

It is not, in our opinion, unreasonable for the board to require of the clerk or his assistants, or both, that they investigate claims arising against the county. Every large corporation maintains a claim department, which is regarded as essential, and a safeguard against many onslaughts on its treasury.

Amongst the many duties imposed upon the board of county commissioners are those to refuse or allow all claims against the county whether they arise out of statute authorizing indigent relief, blind relief, hospital service to indigent poor, claims for damages arising from road widening, mob violence, injury by defective county roads, or numerous other incidents.

The Code does not expressly authorize the establishment of a claim department in connection with the work of the county, but in our opinion the Legislature sought to so widen the powers of the county commissioners as to enable them to require the clerk and his assistants to perform duties in respect to the matter of investigation of claims against the county. Any other construction of the language of the statute would do violence to it, and, in addition, would uselessly interfere with the exercise of duties imposed upon the board of county commissioners with reference to the allowance and disallowance of claims arising against the county.

There is another important consideration which aids us in reaching our conclusion, and that without regard to the interpretation of the language used in Section 2409. We are inclined to the opinion that the duties assigned to an employe after his appointment cannot be inquired into for the purpose of determining the validity of the appointment. Once it is found that the appointing power has authority by law to appoint the employe to a designated employment, the subsequent events following the appointment cannot be considered in determining the validity of the appointment when made. The contention of defendant in error seems to be that you may test the validity of the appointment of the relator by considering the duties actually performed by him, and that an appointment duly and legally made may thereafter become unauthorized and illegal by reason of the appointee thereafter having been assigned duties that are not within the province or authority of the appointing power. In other words, it is urged by the defendants in error that an appointment legally and duly made can be nullified or invalidated by conditions subsequent.

The mere statement of this proposition discloses its weakness. The legal status of the relator is to be determined by inquiring whether the appointing power at the time the appointment was made had authority to appoint him as assistant to the clerk, and whether it exercised that power by actually appointing him to such position. No doubt whatsoever can be expressed as to whether the board may appoint such assistants to the clerk as it deems necessary. By the adoption of the resolution of appointment, the board determined that such assistant was necessary. The courts are not endowed with visitorial power to approve or disapprove the manner in which the county commissioners exercise the powers conferred upon them by Section 2409. The power of the court is limited to one inquiry, namely, was there lawful authority vested in the county commissioners to make the appointment of the relator at the time the appointment was made? But the court cannot and will not exercise control or direction of the duties to be performed by such employe after the appointment is made.

We hold that the court of common pleas committed error in denying the writ. The judgment of the common pleas court will therefore be reversed, and a judgment entered granting the writ.

Judgment accordingly.

VICKERY, P.J., and SULLIVAN, J., concur.