Opinion
No. 21325
Decided November 21, 1928.
Office and officers — Statutes or ordinances forfeiting official position of incumbent, strictly construed — Cincinnati Municipal Charter — Attorney for rapid transit commissioners not in administrative service — Or prohibited from soliciting and receiving political contributions.
1. Statutes or ordinances forfeiting the official position of an incumbent are penal in their nature, should be strictly construed and should not have their scope extended so as to include offenses not clearly within their provisions.
2. In ascertaining the meaning of doubtful terms contained in a city charter, recourse may be had to its various titles as an aid in construction. Measured by the foregoing rules of construction, the relator is not in the "administrative service" of the city within the purview of Section 4, Article 5, of the city charter.
IN PROHIBITION.
The relator, during the period herein named, has been the attorney and legal counsel for the board of rapid transit commissioners of the city of Cincinnati. The defendants are members of the civil service commission of that city.
While occupying the office of legal counsel, the relator, on February 20, 1928, was appointed chairman of the Republican campaign committee, in connection with the primary election to be held in the following August, and is still acting as such chairman of said committee. On July 18, 1928, while the relator was still acting as such chairman, the respondents, as members of the civil service commission, served upon the relator a written notice stating that charges had been lodged against him and filed with the civil service commission, complaining that, while acting as counsel for the rapid transit commission, relator was serving as chairman of the Republican organization in connection with the approaching August primaries. The notice stated that a question arose whether while acting as such chairman the relator had not violated the following provision of the city charter, to wit:
"Section 4, Article V. No person in the administrative service shall directly or indirectly give, solicit or receive, or in any manner be concerned in giving, soliciting or receiving any assessment, subscription or contribution for any political party or for any candidate. Any violation of this section shall operate to forfeit the office or position held by the person violating the same and shall render any such person ineligible to any municipal office or position for a period of one year."
Said written notice advised the relator that, for the purpose of determining whether the violation of such provision occurred, the commission would conduct a hearing on August 7, 1928, and that should the facts developed at the hearing indicate that the relator had violated the above charter provision it would become the duty of the civil service commission to declare his position as legal counsel vacant, in accordance with the specific terms of the foregoing charter provisions.
The foregoing facts, including various provisions of the city charter, are set forth in the relator's petition for a writ of prohibition. The petition alleges that unless prohibited from so doing the defendants, as members of the civil service commission, will, without legal jurisdiction or authority, hold said hearing and declare his position as legal counsel forfeited and vacated. He therefore asks for a writ prohibiting the respondents from assuming jurisdiction over said charges so filed and from making any order declaring his position as legal counsel to be vacated.
The cause was presented to this court and heard upon a general demurrer of the respondents to the petition of the relator.
Mr. Wm. Jerome Kuertz, for relator.
Mr. John D. Ellis, city solicitor, Mr. Ed. F. Alexander, and Mr. Edgar M. Powers, for defendants.
Counsel for demurrants claim that, since relator confessed in his petition that he was chairman of the campaign committee while acting as counsel for the transit commission, such an admission in the petition contained an intendment that he "directly or indirectly" solicited or received campaign contributions in violation of Section 4, Article 5, of the city charter, and thereby gave cause for forfeiture of his office as legal counsel.
Counsel for relator counters that argument by presenting several reasons why the charter article does not apply to the relator. One of the reasons, and perhaps the chief one urged by him, is that the relator is not in any "administrative service" within the contemplation of the city charter, even if it be conceded that his chairmanship of a party committee is concerned in some way with the solicitation or reception of party campaign funds.
At the threshold of this case we are confronted with the general rule that statutes or ordinances forfeiting the official position of an incumbent are penal in their nature, should be strictly construed, and should not have their scope extended so as to include offenses other than those provided for. 36 Cyc., 1186. This rule of construction is made to apply to ordinances as well as statutes. 43 Corpus Juris, 573; State, ex rel. Moore Oil Co., v. Dauben, Bldg. Inspector, 99 Ohio St. 406, 124 N.E. 232.
Measured by this rule of construction, does the mere fact of the relator's chairmanship of a party committee, while acting as such legal counsel, fall within the penal ban of the charter? Manifestly it was the purpose of the charter provision to prohibit the exercise of any personal influence on the part of the legal counsel, either directly or indirectly, in the solicitation or reception of party contributions. The ordinance was directed at his personal act or conduct; it connotes an implication that the donor, in making his voluntary contribution, should not be influenced by hope or expectation of receiving a favor from the legal counsel, and that the latter, by concerning himself with the solicitation or reception of the contribution, should not be placed under obligations to the donor. In the petition there is no allegation that Schorr was in any way concerned with any contribution; nor that by any act or conduct of his he was connected with or had any knowledge of any contribution made. We are therefore of the opinion that, applying the proper rule of construction to the situation presented, there was no violation of the charter provisions admitted or confessed in the petition, and for that reason the demurrer should be overruled.
The next feature of the case presented is whether the relator was in the "administrative service" contemplated by the city charter. In the disposal of this question, there has been attached to the petition a copy of the charter, including the provisions of Section 4, Article 5, above set forth. In this connection, also, if doubt exists, the same rule of construction to which we have alluded should be applied and the doubt resolved in favor of the relator; we should not extend the penal scope of the charter unless the act punished comes within its provisions. In order to ascertain the meaning of the doubtful terms contained in the charter, recourse may be had to its various titles as an aid in construing the terms of the charters. Du Bois v. Coen, Exr., 100 Ohio St. 17, 125 N.E. 121; 25 Ruling Case Law, p. 1031.
An examination of the city charter reveals that the title of Article 4 is: "Executive and Administrative Service." That article provides that the city manager "shall be the chief executive and administrative officer of the city," and authorizes him to make certain appointments in the administrative service, with the exception of the city auditor. The Rapid Transit Commission Act (Section 4000-16 et seq., General Code), creating that commission and authorizing the employment of an attorney and others, does not conflict with the city charter, as the latter only applies to the appointment of members of that commission by the mayor instead of the city manager. In that respect the commission is independent and does not owe its life to the chief administrative officer of the city. In the statute alluded to its attorneys are placed in the unclassified service. Therefore, taking the city charter as a whole, and construing its various provisions, including the penal one under consideration, we are constrained to hold that relator is not in the "administrative service" of the city within the purview of said Section 4, Article 5, of the city charter, prohibiting persons in that service from soliciting and receiving political contributions.
The demurrer to the petition will be overruled, and writ awarded as prayed for.
Writ allowed.
DAY, KINKADE, ROBINSON and MATTHIAS, JJ., concur.
MARSHALL, C.J., not participating.