McHugh v. City of Cincinnati

1 Cin. Sup. Ct. Rep. 145

• Court: Ohio Superior Court, Cincinnati
• Decided: January 15, 1871
• Status: Published

Opinion

Taft, J.

The common council have acted under the municipal code, adapting their ordinances to its requirements, according to which all “ street commissioners and other officers ” have been elected and have entered upon the performance of their duties under the new code, which commenced on the 1st day of July, 1869, leaving nothing for the “ city commissioners ” to do. The law of 1852 had been repealed expressly. It is claimed by the city solicitor that there is no place for them under the code, and that their offices were abolished by the repeal of the law creating them.

If the old act under which their offices were created had been repealed by the code without any reservation, the offices would have been abolished, as was held in the case of Ohio, on the relation of Flinn, v. Wright, Auditor of State, 7 Ohio St. 333, in regard to the act repealing the act under which Judge Flinn had been elected judge of the criminal court. "We know of no constitutional restriction upon the legislature in regard to municipal officers.

Does, then, the reservation in. favor of the mayor and others in office during the term for which they were elected, and until their successors in office should he elected and qualified, save the three city commissioners, of whom the plaintiff is one ? Have these three city commissioners any successors under the new code ? If they have not and can not have, when must the term of their office he held to expire if not upon the organizing of the city government under 'the new code, for. they were elected for three years and “until their successors should be elected and qualified?” If their offices have not been abolished and they are' still in, and no successors can be elected, they have a permanency.. If they have successors, who are they? Many of the duties which were required of the city commissioners devolve upon the different officers elected or appointed under the new code. But we think that the three city commissioners can not be regarded as having successors under the new code, within the meaning of section 28 of the act, which provides for the continuance in' office of "the mayor and others named. If they have any successor it must be the street commissioner. But if these three city commissioners, under the old law, could be succeeded by one street commissioner, they could not constitute a part of the new board of improvements, with the mayor, engineer, chairman óf the improvement committee, and resident elector to be named by the mayor. If they were to be taken into that board, it would not be "what the code provides. If, on the other hand, we were to attempt to administer the law on the plan of preserving the old board tillthe term of its members should expire, we should find no less trouble. These three city commissioners would go out of office one at a time, leaving that board imperfect, and there could be no introduction of the new officers elected under the code, as that would make a board such as neither act has ever provided for»

[Leave to file a petition in error in the Supreme Court has been refused. — Eds.]

On tbe whole, we think that the purpose of the new law was to repeal the old act as to the office of city commissioners, and abolish the office, the consequence of which was also to abolish both the duties and the salary.