Opinion
No. 27074
Decided November 23, 1938.
Municipal corporations — Council cannot impose duties of director of safety upon city manager, when — Prohibition — Writ lies to prevent exercise of quasi-judicial functions, when.
1. Where the charter of a municipality specifically provides that the appointment of the director of public safety shall be made by the city manager, council of such municipality cannot impose the duties of director of public safety upon the city manager unless authority so to do is found within the charter itself.
2. The writ of prohibition may be employed to prevent a public official from exercising quasi-judicial functions beyond the limits of powers lawfully granted him.
APPEAL from the Court of Appeals of Lucas county.
This action in prohibition was filed by the relator in the Court of Appeals of Lucas county to prevent the respondents, John N. Edy as city manager and E.R. Samsey as secretary of the department of public safety of Toledo, from hearing and determining charges preferred against the relator, city fireman.
After a demurrer was overruled, in which the city of Toledo was dismissed as a party, the matter was heard upon the petition of the relator, answer of respondents, reply of relator and an agreed statement of facts.
The facts are not in dispute, and the legal issue involved depends upon an interpretation of the provisions of the charter of the city of Toledo.
On March 2, 1936, council of the city of Toledo unanimously enacted Ordinance No. 51-36, which reads in part as follows:
"An Ordinance No. 51-36. Empowering the city manager to act as director of the department of public safety until council by appropriate action shall direct otherwise, and declaring an emergency.
"Be it ordained by the council of the city of Toledo:
"Sec. 1. That the city manager be, and he is hereby empowered to act and serve in the capacity as director of the department of public safety until council by appropriate action shall direct otherwise.
"Sec. 2. That no extra compensation shall be paid to the city manager for service in the official capacity as set forth in Section 1 hereof, and in the aforesaid capacity said city manager shall be authorized and empowered to do and perform all acts and things and to enjoy all of the privileges which are provided by the charter of the city of Toledo, the statutes of the state of Ohio, and the ordinances of this council, for the aforesaid respective office."
The ordinance was declared to be an emergency measure, and since its adoption, John N. Edy as city manager has been acting as director of the department of public safety. On March 20, 1938, the relator, Henry Pawlowicz, a city fireman, was suspended for an alleged infraction of the rules of the department. He was ordered to appear for a hearing before the city manager to be held Wednesday, March 23, 1938, at 10:30 a. m., at the office of E.R. Samsey, secretary of the department of public safety.
In order to prevent the city manager from conducting the hearing, the relator instituted this action in the Court of Appeals against Edy, Samsey and the city of Toledo. After the city was dismissed as a party, upon demurrer, the Court of Appeals held that the council had no authority to adopt Ordinance No. 51-36, and consequently that "neither John N. Edy nor E.R. Samsey can lawfully hear and determine the charges preferred."
The writ of prohibition having been granted, an appeal was taken to this court.
Mr. Steven L. Markowski, for appellee. Mr. Martin S. Dodd, director of law, and Mr. Jos. Slater Gibson, for appellants.
Under Section 143 of the charter of the city of Toledo, after a member of the fire department is suspended it is the duty of the director of public safety to inquire into the cause of suspension and, if the charge be sustained, render judgment of suspension, reduction in rank or dismissal. The relator having been suspended, John N. Edy as city manager of Toledo was about to proceed with such a hearing when this action was instituted.
The first question for determination is whether, under the provisions of the charter of the city of Toledo, John N. Edy, as city manager, had the right to act as director of the department of public safety. Ordinance No. 51-36, adopted by the council on March 2, 1936, purported to give him that authority.
Within the limitations imposed by the Constitution, a charter of a home rule city is to be considered the supreme law of a municipality. Consequently, decision as to the validity of the ordinance in question depends in this case entirely upon the provisions of the charter.
Section 102 of the charter of the city of Toledo provides that "the council may change, abolish, combine and rearrange the departments and divisions of the city government and combine and distribute the functions and duties thereof upon the written request of the city manager." (Italics ours.) Ample authority was given council to adopt an ordinance combining the office of city manager and that of director of the department of public safety, or to abolish the latter department and place the powers in the hands of the city manager. It is conceded, however, that the city manager did not make a request in writing of the council to abolish, combine or rearrange any departments. Therefore, Section 102 has no application in this controversy, and it is necessary to explore other provisions of the charter to ascertain the authority of the council.
It is provided in Section 61 of the charter that "the council shall appoint a city manager who shall be the chief executive and administrative officer of the city," and that "it shall be the duty of the city manager to act as chief conservator of the peace within the city." The city manager is required "to supervise the administration of the affairs of the city," except as otherwise specifically provided in the charter. He is "to make all appointments and removals in the administrative and executive service," except as otherwise specifically provided in the charter. He is "to make all appointments and removals in the administrative and executive service," except as otherwise provided in the charter, and is "to perform such other duties as may be prescribed by this charter or required of him by ordinance or resolution of the council."
It is said that when the council adopted Ordinance No. 51-36 it was merely placing other duties upon the city manager. Undoubtedly council could increase greatly the duties of the city manager without any objection, provided that in so doing no provisions of the charter were contravened. The difficulty with the view of appellants — that the duties of the manager were merely increased — is that it loses sight of the express provisions of the charter, which creates a department of public safety and stipulates by whom the director of that department shall be appointed.
Section 101, by its terms, provides that certain administrative departments are created and established, including a department of public safety. In Section 104 it is set forth that "a director of each department shall be appointed by the city manager to serve during the pleasure of the city manager." (Italics ours.) These sections impose a definite duty upon the city manager to appoint a director of the department of public safety. The council would not have the authority to designate a director of the department of public safety in contravention of the power of appointment vested in the city manager unless it did so pursuant to a request made by him in writing under the provisions of Section 102.
The clear and express terms of the charter place the appointing power in the city manager, and it would be inconsistent to hold that there was likewise vested in council authority to make the appointment independent of any request from the manager. We are therefore constrained to hold that council exceeded its authority in attempting to impose the duties of the director upon the city manager. Ordinance No. 51-36 was therefore ineffective to accomplish the objectives sought by council.
Neither are we able to conclude that because the city manager is the chief executive and administrative officer and the chief conservator of the peace that he automatically became the director of the department of public safety. The charter created the specific office of director of that department, and it was the duty of the city manager alone to fill that office unless it was abolished or combined with another by joint action of the council and of the city manager under Section 102 of the charter.
A claim cannot be made that the city manager designated himself as acting director of safety. Since no such formal appointment appears on the records of the city, that question is not presented to this court at this time.
It is claimed, however, that the city manager was de facto director of the department of public safety, and his title to such office must be tested by an action in quo warranto, and cannot be determined by one in prohibition. See State v. Gardner, 54 Ohio St. 24, 42 N.E. 999, 31 L.R.A., 660; State, ex rel. Attorney General, v. Newark, 57 Ohio St. 430, 49 N.E. 407.
This contention cannot be sustained. The title of John N. Edy as city manager is not questioned. The relator merely seeks to prevent him from exercising the functions and duties of director of public safety which council attempted to impose upon him. The purpose of the action is not to oust the city manager from office, but merely to restrain him as an administrative official from exercising powers he does not lawfully possess.
The remedy by way of quo warranto is employed to test the actual right to an office or franchise. It can neither afford relief for official misconduct, nor be used to test the legality of the official action of a public officer. When a public officer threatens to exercise ministerial powers not conferred upon him by law, or attempts to exercise the functions of his office beyond its territorial limits, the proper remedy to restrain such action would be by injunction. When the public officer is attempting to exercise quasi-judicial functions unlawfully, the proper remedy is prohibition.
In this case the functions sought to be exercised by conducting hearings were of a quasi-judicial nature. This court has frequently granted a writ of prohibition to keep administrative tribunals within the limits of their own jurisdiction. State, ex rel. Nolan, v. ClenDening, 93 Ohio St. 264, 112 N.E. 1029; State, ex rel. McCrehen, v. Brown, Secy. of State, 108 Ohio St. 454, 141 N.E. 69; State, ex rel. Schorr, v. Viner, 119 Ohio St. 303, 164 N.E. 119; State, ex rel. Stanley, v. Bernon, 127 Ohio St. 204, 187 N.E. 733.
We find that Ordinance No. 51-36, adopted by council, was ineffective to impose the duties of director of the department of public safety of the city of Toledo upon John N. Edy as city manager, and consequently, in conducting hearings to determine the charges preferred against the relator, the manager was transcending his legal powers. No director of the department of public safety having been appointed and qualified, a writ was properly allowed to prevent both the city manager and the safety secretary from conducting hearings in the matter pertaining to the relator. The judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS and MYERS, JJ., concur.