State ex rel. Meyers v. Coon

WINCH, J. This in an action in quo warranto brought to determine whether relator or defendant is entitled to act as clerk of the board of education in the city of Cleveland. It appears that on the third Monday of April, 1902, the relator was duly elected and qualified and entered upon his duties as such clerk, under See. 3899-3 Rev. Stat., which provides among other things, that:- “On the third Monday in April, 1896, and biennially thereafter, the school council shall elect a clerk who shall not be a member of said! council, and who shall be clerk of the board of education. He shall receive a salary to be fixed by the council, which shall not exceed $2,000’ per year.” On the third Monday in April, 1904, the council neglected to elect a clerk; but on the following Monday night, April 25, 1904, at 7:30 p. M., the council undertook to elect the defendant clerk of the board 'of education. Meanwhile the new school code was passed by the legislature and was signed by the governor, April 25, 1904, at 4:30 p. m., some three hours before the election of the defendant as clerk. This new school code repeals said section under which said relator had been elected but provides that: “All existing officers of boards of education and school councils shall hold their respective offices until boards of education are elected and organized under the provisions of this act, but no officer elected or appointed to fill a vacancy occurring in any such office, shall be appointed to serve a longer term than that ending on the thirty-first day of August 1905.” As the new school code, under the recent amendment of Sec. 16, Art. 11 of the constitution, 95 O. L. 962, became a law upon the governor’s signing it, it is apparent that the school council had no authority to elect the defendant clerk of the board of education, unless said clerk is not an officer within the purview of the provisions of the school code last quoted, and of Sec. 8 Rev. Stat., which reads as follows: “Any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the constitution or laws.” In other words, relator claims that on therthird Monday of April, 1902, he was elected to the office of clerk of the board of education for two years, at the expiration of which time, no successor having been elected, he continued in office until the new school code took effect and [243] that by its provisions he is continued in office until a new board of education is elected and organized under it. The sole question for determination in this case is, therefore, . whether the relator is a public officer or occupies a mere clerical position subject to removal at any time by the school council. Mechem, Pub. Off. See. 1, gives the following definition: “A public office is the right, authority and duty created and conferred by law, by which for a given period, either fixed by law, or ending at the pleasure of the creating power, an individual is invested with some part of the sovereign functions of the government to be exercised by him for the benefit of the public. The individual so invested is a public officer.” In 23 Am. & Eng. Law (2 ed.) 322, under title “Public Officers, ” it is said: “A public officer is an individual who has been appointed or elected in the manner prescribed by law, * * * and who exercises the function concerning the public assigned to him by law. ‘ ‘ There are numerous criteria which are not in themselves conclusive, yet which aid in determining whether a person is an officer and whether his employment is an office. Thus, a public officer is usually required to take an oath, and frequently has to give bond. Usually an officer is entitled to a salary or fees, but this is not necessary. The term ‘office’ also embraces the ideas of tenure and duration or continuance. Generally speaking, one of the requisites of an office is that it must be created by a constitutional provision, or it must be authorized by some statute. Official or unofficial character is to be determined not by the presence or absence of an official designation, but by the nature of the functions to be performed. Designation by the law as an officer is, however, of some significance. ’ ’ Consonant with these definitions are the following Ohio cases: State v. Kennon, 7 Ohio St. 546; State v. Wilson, 29 Ohio St. 347; State v. Anderson, 45 Ohio St. 196 [12 N. E. Rep. 656]; State v. Brennan, 49 Ohio St. 33 [29 N. E. Rep. 593]; State v. Meyers, 56 Ohio St. 34C [47 N. E. Rep. 138]; State v. Jennings, 57 Ohio St. 415 [49 N. E. Rep. 404; 63 Am. St. Rep. 723]. Let us examine the sections of the statutes which provide for the election of a clerk and his duties, in order that we may determine whether he is an officer, as above defined. We have already seen that the clerk is to be elected biennially and to receive compensation “per year.” Section 3899-3 Rev. Stat. This indicates that the clerk’s term of office is fixed at two years. [244] He has certain duties prescribed by statute. He is tbe custodian of tbe school director’s bond. Section 3899-8 Rev. Stat. Certain claims must be approved by him. Section 3899-12 Rev. Sfat. He must give notice of appropriations to tbe auditor and treasurer. Section 3899-14 Rev. Stat. He is the custodian of tbe auditor’s bond. Section 3899-16 Rev. Stat. Bids. for contracts must be filed with him, publicly read and entered in full upon tbe records of tbe council. Section 3899-21 Rev. Stat. Tbe above provisions of the statutes are taken from tbe old Cleveland code which has been repealed. Tbe following duties of tbe clerk are provided for in sections of tbe statutes not repealed by tbe new code: ' “All conveyances made by a board of education shall be executed by the president and clerk.” Section 3974 Rev. Stat. Process in suit against a board of education must be served iipon tbe clerk or president. Sections 3976, 4019 Rev. Stat. Tbe clerk is required to take an oath that be will faithfully discharge tbe duties of his office, for Secs. 3979 and 3980 Rev. Stat. must be construed as including tbe clerk. In the enumeration of school children, the clerk is spoken of as an.officer liable to a penalty for falsifying an enumeration. Section 4041 Rev. Stat. The clerk of the board of education is required to give bond payable to the state of Ohio, conditioned that he will faithfully perform the .duties of his office required of him. Section 4050 Rev. Stat. At the expiration of his term of office, he is required to deliver to his successor all books and papers in his hands relating to the affairs of his district. Section 4054 Rev. Stat. The clerk is held liable on his bond for failure to make return of certain statistics to the county auditor. Section 4061 Rev. Stat. The new school code re-enacts many provisions as to the duties of the clerk, and adds some new duties; notably, he is now authorized to call special meetings of the board (Sec. 3978 Rev. Stat.), and give notice of all school elections. Sections 3970-11 and 3991 Rev. Stat. It thus appears that, outside of the mere clerical duties the clerk of the board of education has to perform for it and as directed by it, he has many statutory duties to perform, for the faithful performance of which he must answer to the people. These independent duties involve to a certain extent the exercise of part of the sovereignty of the state, subject to the direction and control of the school council. State v. Jennings, 57 Ohio St. 415 [49 N. E. Rep. 404; 63 Am. St. Rep. 723]. [245] Upon tbe whole we therefore conclude that the relator is a public officer and was occupying the office of clerk of the board of education at the time the new school code took effect; that there was no vacancy in said office at the time the school council undertook to elect the defendant clerk, and that his pretended election is therefore void. The relief prayed for by the relator is granted. Hale and Marvin, JJ., concur.