The herald., 1897-04-23

plaint. and Judge Shaw's opinion sus-
tains this demurrer and orders judg-
ment for the defendants The opinion In
full is as follows:
Article XIII. of the city charter Gre
atee a board of health, and, in section
124. after providing that it shall appoint
health officer, proceeds as follows:
"The board shall also, when author
lied by ordinance, have the power to
appoint an assistant health officer and
such other officers and assistants as the
sanitary condition of the city may re-
quire."
The plaintiff in this action contends
that this clause of the charter should be
construed as a declaration that when
ever the city council, by ordinance, au-
thorizes the appointment of an assist
ant health officer of other officers ana
assistants of the health department the
board of health shall have the power to
appoint such officers.
The defendant contends that it is in
tended as provision that when the city
council, by ordinance, authorizes the
board of health to appoint such assist
ant or officers, then the board shall have
the mower and may make such appoint
ments.
upon the clause by the plaintiff would
be this: That as the power to appoint
would be vested in the board by the
| charter, it could not be taken away by
| ordinance, and that II the council, by
ordinance. established the officers in
question, the board would have the pow
er to fill them by appointment, al
though the same ordinance should pro-
vide that the power to appoint the Of
| fcers should be vested in the council
| itself, the latter provision being muga-
tory, because in conflict with the char
| ter.
The effect of the defendants interpre-
tation would be that, as the council, by
virtue of subdivision IA, of Article l., of
the charter, has the general power both
to create officers and to provide for the
appointment of officers other than
those established by the charter, the
clause in question would operate
simply to give the council power, after
| creating the offices, either to delegate
to the board the power to appoint the
officers or TO reserve the power to itself,
and that, unless the ordinance did so
/ delegate the power TO the board, the
council would still retain the power of
appointment under the general provi
sion aforesaid The board would not
possess the power at all unless it was
expressly conferred upon 1t by ordi-
nance
There can be little doubt that as a
matter of governmental policy having
In view the efficiency of the health de-
partment, the power of appointment
and removal of its subordinates ought to
be vested in the board exclusively. To
require the board to administer the
department by means of employees Sc
lected by some other body is certainly
method not tending in general to Sc
cure the best results. But this consid-
Grafton is not decisive of the question
and, indeed, has no weight, except that
If the language of the charter were am
biguous it might determine the choice
between two interpretations otherwise
equally reasonable. But / cannot per-
ceive wherein the language is ambigu-
GUS Indeed, IL it were not for the sup
posed impolicy of the plan, doubt If
anyone would question the meaning
of the clause The words, "the board
shall also, when authorized, have the
power to appoint" are clear and ex-
plicit and leave no room for miscon-
struction. They clearly express lmi-
tation of the grant of power to cases
where It is given by ordinance, and make
the conclusion necessary that the board
does not possess the power unless the
charter provision is supplemented by
an ordinance comforting it.
The idea may thus be expressed in
different words, but not more clearly
than by the words of the charter itself.
On August "a, 1896, the council adopt
ed an ordinance declaring that certain
sanitary inspectors should be employed
in the health office, but not authorizing
the board of health to appoint such in
spectors. Nevertheless the board did
appoint certain persons as such inspect
ors and they or their successors per-
formed the duties and drew the salaries
of inspectors until March l, 1897.
On February 8, 1897, the council
adopted a rev ordinance providing for
the same number of inspectors at the
same salaries, but containing the state
ment that "all of said employees shall
be employed by the city council" No
authority by ordinance has ever been
given to the board to make such ap-
pointments. If my conclusions are cor
rect the board has not at any time
possessed the power. 1t follows that
the persons appointed by the board,
though possibly officers de facto, so that
their right is not subject to question
except by the proper PUBLIC authority,
are not legal officers, and have no right
to demand the salaries provided for
such employees.
The right to compensation for SER
vices as an officer as against munich
pality is dependent upon the legal I'll
tie, and an intruder or one not legally
appointed cannot enforce payment to
him of the salary provided by law, al
though he may have performed the
duties of the office. (5 Am Eng Ency.
of Law, p. 100
This is an action OF the part Of the
employees appointed by the board of
health to recover the salaries for the
month of March, 1897 The conclusion
is that they cannot recover. The de-
murrer to the complaint will be sus-
tained, and judgment will be entered for
the defendant on the demurrer.