(Hamilton County Common Pleas,

1901.)

#### WILLIAM UHRIG, a tax payer, v. THE VILLAGE OF READING.

*Appointment of village deputy marshals, policemen and night*watchmen—

(1.) The statutes of Ohio vest the appointment of deputy marshals of villages in the village council, and the appointment of policemen and night watchmen in the mayor; the mayor cannot appoint deputy marshals nor can the council appoint night watchmen.

*Same*— Ordinance *not*necessary—

(2.) An ordinance is not necessary to ap7 point such deputy marshals.

*Same*— Council *cannot appoint night watchmen*— ■

.(3.) A village council cannot by ordinance prescribing certain duties to be performed by certain, persons therein named, designating them as deputy marshals, such duties being such as should be performed by night watchmen, appoint such persons to perform such duties under a title of deputy marshals, and such appointment being beyond the authority of the council is invalid.

*Same*— Certificate *of sufficient funds—*

(4.) Where a fund from which the salaries of certain village appointees are to be paid is partly raised from taxation and partly from the Dow tax, and is used as an entire fund, there can be no separation as to what part of the fund shall be used to pay the salaries, and it is necessary before such appointments are made that a proper certificate be made that there is sufficient funds in the treasury to meet the expenses of such appointees.

Smith, J.

In this case the court is of the opinion upon the points raised both on the original argument and on the rehearing, considering the agreed statement of facts and the petition and answer filed, that the injunction should be allowed against the Village of Reading.

Section 1847 of the Revised Statutes of Ohio provides for the appointment of deputy marshals, and vests this power in council. The duties of a deputy marshal are provided for by statute, and they are the same duties as. those of the marshal. It is the duty of the mayor to appoint policemen or night watchmen. The mayor cannot appoint deputy marshals, nor can the council appoint night watchmen.

In this case council having undertaken by ordinance to prescribe certain duties to their appointees, although designating them deputy marshals, nevertheless, council undertook by this means to appoint night watchmen. An ordinance is not necessary to appoint deputy marshals, as the statute gives council that power. When, therefore, council undertook to pass an ordinance prescribing police duties to certain -persons therein named, designating them as deputy marshals, it is evident that couitcil was undertaking to appoint night watchmen. It would seem that it could make-no difference by what name or title the appointees were designated, if, as a matter of fact, council undertook to filh'a position which by law council had no authority to do, and such appointment would not be validated by the fact of the insertion of a title, such as “Deputy Marshall.”

The court has been referred to what is sa 1 to be the opinion of Judge Hollister in the case of *Cox*v. *Village of Lockland,*in which it was held that it was necessary to certify that sufficient funds were in the treasury to meet the expenses of these appointees. The court is of the opinion that the Burns law, so-called, applies to the salaries of the appointees; and while, perhaps, the opinion of Judge Spiegel might indicate that the Burns law was not applicable, yet, as a matter of fact in this case, the fund from which the appointees are paid, is partly raised by taxation and partly from the Dow tax, and being used as an entire fund, there can possibly be *574ho separation as to what parts of the fund ^hall be used to pay these salaries. In fact, ■Judge Hollister, in his opinion, holds that it was necessary to certify that sufficient funds were in the treasury. So far as the question is raised upon the bonds not having been approved by the mayor, nor submitted to him, the court is of the opinion that this would not be a good ground to sustain plaintiff’s petition, for the reason if the bond was given, the subsequent approval or ratification of it by any' public officer would not invalidate it, and would not relieve the liability on the bond, as no doubt the bondsmen would still be held to their liability.

*Gorman & Thompson*and *Frank Dinsmore,*for the inj unction.

*W. W. Bellew,*contra.

It follows, therefore, that the mayor can not appoint deputy marshals, nor can the council appoint policemen or night watchmen; and the court is of the opinion, from the evidence as set forth in the agreed statement of facts and the pleadings, that council, instead of appointing deputy marshals, has undertaken to appoint night watchmen.

The injunction, therefore, will be allowed.