#### The State of Ohio ex rel. Attorney General *v.*Craig.

*Appointment to office a nullity—Because appointee ineligible—Legal' appointment may be made without ousting first*appointee— *Health officer not an employe—Section*189, *Municipal Code.*

1. Where the appointment to an office is a nullity, for the reason. that the appointee is by statute ineligible to such office, a legal appointment to such office may be made, without first ousting - such first appointee by proceedings in *quo warranto.*

2. A health officer is not an employe, as that word is used in section 189 of the new Municipal Code.

3. A board of health having appointed a new health officer, thereby indicated its pleasure that it 110 longer desired the services of the previous health officer.

(No. 8607

Decided November 17, 1903.)

In Quo Warranto.

On the fourth day of May, 1903, the mayor of the • city of Mansfield appointed a board of health consisting of five qualified electors of said city, which appointment was duly confirmed by the council of said city, and they entered upon the discharge of their duties as such board, and thereafter, on the fifteenth day of May, said board of health duly appointed one • A. H. McCullough, health officer of said city, and he-accepted the appointment and duly qualified. On the - thirteenth day of June, 1903, after said acceptance - *237and qualification, said A. H. McCullough, demanded of J. Harvey Craig, respondent, the books and other property appertaining to said office, but said respondent refused to deliver the same, and refused to surrender said office, claiming to be such health officer of said city himself and entitled to the emoluments thereof, and to discharge the duties of the same. Thereupon the attorney general instituted proceedings in *quo warranto*in this court requiring said J. Harvey Craig to show by what warrant he holds said office.

By his answer the respondent claims that he was appointed health officer of the city of Mansfield, by the board of health of said city on the twelfth day of January, 1894, that his tenure of office was during the pleasure of the board, and that he has not been removed by the board or any other authority, and therefore still continues in office. He further claims that he is entitled to hold said office under the provisions of section 189 of the Municipal Code, which provides that: “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.”

He further claims that the board of health of said city, in office before the fourth day of May, 1903, continue since that date to be the legal board, and that the mayor had no lawful right to appoint a new board of health on that day, and that such appointment was and is void. The old board and new board each claim to be the legal board, and each refuses to yield to the other. And so, also, each health officer claims to be the legal officer, and each refuses to yield to the other, so that the city is burdened with two *238boards of health, and two health officers, and the auditor of the county refuses to recognize either of said health officers.

There is an agreed statement of facts, from which it appears that the members of the board of health in office up to the time the new municipal code took effect, May 4, 1903, were each elected by the council of said city while they were members of said council and were present and voting at the meeting at which they were so elected as members of the board of health. It further appears that on January 12, 1894, said J. Harvey Craig was appointed health officer by the council of said city to fill a vacancy caused by the resignation of Dr. Reid; that on May 12, 1897, he was elected by said board of health for one year; that on May 10, 1898, he was again elected for one year; and again on May 24, 1899, for one year; again on May 8, 1900; that on May 10, 1901, there was an effort by the board to elect a health officer, but there was no election, the vote being a tie; and that on June 13, 1902, he was again elected for one year.

*Mr. Smith W. Bennett,*special counsel of the attorney general’s office; *Mr. C. E. McBride*and *Mr. William McE. Weldon,*for plaintiff.

Under the statute as it existed at the time of the appointment of the board of health which appointed the defendant, the power of appointment was vested in the council of each city and village. (Section 2113, Revised Statutes; 95 O. L., 422.) The powers of the boards of health were and are *quasi judicial,*as shown by the considerations of sections 2122, 2123, 2124, Revised Statutes, and other sections. *People*v. *Thomas,*33 Barb. (N. Y.), 287; *Kinyon*v. *Duchene,*21 Mich., 498; *Common*
      *239
      *wealth*v. *Douglass,*1 Binn. (Pa.), 77; *State*v. *Hoyl,*2 Or., 246; Throop on Public Officers, sec. 610; sec. 1717, Rey. Stat.

- The board of health being in chapter 1, division 6, is not included within the exception. This section is construed in *State ex rel.*v. *Kearns,*47 Ohio St., 566.

We fully recognize the validity of the many opinions of this court protecting and upholding the acts of *de facto*boards and officers, and agree that the acts of such officers should be sustained. But in the admission that the board of health so illegally constituted may have been a *de facto*board, and that the-appointment of the defendant by such board resulted, in the creation of him as at least a *de facto*officer,, yet in a direct attack upon his title to the office and the attempted induction into office of one subsequently appointed thereto, his defense must be that he is a. *de jure*officer and not merely *de facto.*

And here the defendant invokes the operation of that part of section 189 of the new Municipal Code: which is as follows: “All *employes*now serving in the health department shall continue to hold their said position 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.” The defendant seeks by the operation of this section of the code, while admitting his election by the board of health so illegally constituted, to lift himself above the authority by which he was appointed, and to perpetuate himself in office, although the illegality of his appointment to that office is beyond question. We deny that the appointee can thus be placed beyond inquiry as to the validity of his appointment, and contend that section 189 could not operate to perpetuate the term of his appointment *240if it was illegal in its inception. In other words, section 189 did not by force of its own vigor, change him from an officer *de facto*to an officer *de jure.*This section cannot be so construed to mean that those who are serving in the health department, and whose appointment might be by fraud, collusion or fby artifice, are by such section, permitted to continue bo hold their said positions, but it should be so construed to mean only those, who are there of right. The section merely operates on the length of the term, and not on the merits of the tenure. If the tenure by which the defendant holds was originally bad, it is not improved or strengthened by a law which provides merely for an extension of the term to an indefinite period.

It is contended that the words “employes now serving in the health department” as used in section 189 ■of the Municipal Code, include health officers, and that by the operation thereof, the terms of all health ■officers are extended indefinitely or until removed for cause, etc. An examination of the duties of such health officer shows that it could never have been intended to include such officer as an “employe now serving in the health department.” If the latter part ■of section 189 of the Municipal Code has an application at all, it applies to both cities and villages, because it is not limited to either.

It will be observed that by section 187 of the code, the council may appoint a health officer instead of a board of health, and such officer shall “have all the powers and perform all the duties granted to or imposed upon boards of health.” Such health officer cannot be an employe of a board of health, for in the instances cited, he is the board of health himself and vested with all its powers and duties.

*241If the construction was adopted, as contended for, that the word “employes” was meant to include health officers, it would work an absurdity, and various sections of the code would be inharmonious and not consistent with each other. *Allen*v. *Parish,*3 Ohio, 187; *Patton*v. *Sheriff,*2 Ohio, 395; *Railway*v. *Jump,*50 Ohio St., 651.

The differences both at common law and under the statutes between an employe and an officer, have been frequently commented upon; likewise the distinction between an office and an employment. The dignity of one as compared with the other, leads one to conclude that a health officer is in fact, as in name, an officer and not an employe.

“In considering the question whether a particular officer is a public officer, the extent of the territorial limits within which his functions are exercised, is immaterial. If the office is one in which the public have an interest, it is a public office, however narrow, may be such territorial limits.” *Reg.*v. *St. Martens,*17 Q. B. (Ad. & El. N. S.), 149; *People*v. *Bedell,*2 Hill (N. Y.), 196; *Vaughn*v. *English,*8 Cal., 39; *Shelby*v. *Alcorn,*36 Miss., 273; *State*v. *Kennon,*7 Ohio St., 546; *People*v. *Langdon,*40 Mich., 673; *In re Whiting,*1 Edm. Sel. Cas. (N. Y.), 498; *Smith*v. *Lynch,*29 Ohio St., 261.

In the case of a. health officer, by virtue of the powers conferred upon him by the statute, he is an independent, executive officer, with large discretion as to the methods to be pursued by him regarding the public health, and especially in those cities and villages where there is no board of health, he is not subjeet to the control or direction of any one else. *State*v. *Jennings,*57 Ohio St., 415; *State*v. *Halliday,*61 Ohio St., 171.

*242
      *Messrs. Botoers & Black,*for respondent. ■

We submit that the statutes of .the state of Ohio, section 2115, control the term of office of the respondent, and that by virtue of his election in 1894 he is still the health officer of said Mansfield city without reference to the action taken by the board as above indicated. Respondent acquired absolutely no more rights, privileges or authority by the action. of the board on said dates than he had from and after his election January 12, 1894, and these actions by the board of health must be considered mere surplusage, and as having been done by the board through a misunderstanding of the laws governing the respondent.

Whether “the board of health electing respondent health officer was legally constituted cannot be inquired into in a collateral proceeding.

The board of health electing Dr. Craig was the only board of health in existence in said Mansfield city at the time and acted to the exclusion of all other boards. Therefore, it was a board of health *de facto*and the members constituting the same were *dé fado*members and their acts as binding as if they were *de jure*and constituted a *de jure*board. State v. *Constable, 1*Ohio (pt. 1), 7; *State ex rel.*v. *Aloling,*12 Ohio, 16; *Ex parte Strang,*21 Ohio St., 610; *Smith*v. *Lynch,*29 Ohio St., 261; *State*v. *Smith,*44 Ohio St., 368; *Kirker*v. *Cincinnati,*48 Ohio St., 507; *State*v. *Brown,*60 Ohio St., 510; *Cronin*v. *Stoddard,*97 N. Y., 271; Throop on Pub. Officers, secs. 628, 630 to 649; *People*v. *Staton,*73 N. C., 546; Mechem on Pub. Officers, secs. 318 to 344. ;

■ There, was a board of health in existence in said Mansfield city at the time of the appointment of an entire new board by Mayor Brown; the legality of *243the appointment of its members has never been inquired into in a direct proceeding against them for that purpose, nor has the question as to whether the board was legally constituted been inquired into by a court of competent jurisdiction; and the board then in existence still continues to act as the board of health of said Mansfield city, there were therefore no vacancies ,to be filled which would destroy the identity of the old board at the time Mayor Brown made the appointment of the new board and that for this reason the new board never has had a color- of right to act as a board of health, for said Mansfield city.

We submit under the authorities above cited that the new board of health appointed by Mayor Brown has not even the color of authority to act as such, and their pretended action is wholly void because of such want of authority. That if they had had the authority to represent said city as a board of health, they must have first disposed of respondent as health officer before they legally could have elected -a successor. New Municipal Code, sec. 189; sec. 2115 (repealed by new Municipal Code), Revised Statutes.

The plain language of the statute will not be changed by a construction. There is no ambiguity in the language of section 2115, or section 189 of the new Municipal Code (1536-725); *Blum*v. *Blum,*69 Ohio St., 47; *Cincinnati*v. *Connor,*55 Ohio St., 82; *Cincinnati*v. *Guckenberger,*60 Ohio St., 353; *State*v. *Brown,*60 Ohio St., 499.

Burket, C. J.

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 *244appointed 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 Avithin the exception as to the seventh division of the same title. The members of council Avere 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 Avhich 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 this 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 hoard of health being a nullity and void, no *245proceeding 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 *246terminated 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 effect, 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 th'e new code. That is not tenable. The part of the section relied 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 cannot be *247extended by tbe 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.*

Speae, Davis, Shauck, Peice and Ceew, JJ., concur.