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Opinion of the Court.

ing of all station houses, police stations, fire department buildings, fire cisterns, and plugs that may be required, and for the purchase of engines, apparatus, and all other supplies necessary for the police and fire departments; provided that no obligation involving an expenditure of more than five hundred dollars shall be created except upon the approval of the city council and by written contract which shall be awarded to the lowest and best bidder after advertising for ten days in a newspaper of general circulation in the city. They shall make no sale or disposition of any property belonging to the city without first being authorized by resolution or ordinance of the city council.”

Section 123 of the municipal code (Section 1536618, Revised Statutes), provides as follows:

“The powers of council shall be legislative only, and it shall perform no administrative duties whatever and it shall neither appoint nor confirm any officer or employe in the city government except those of its own body, except as may be otherwise provided in this act. All contracts requiring the authority of council for their execution shall be entered into and conducted to performance by the board of officers having charge of the matters to which they relate, and after authority to make such contracts has been given and the necessary appropriation made, council shall take no further action thereon."

Prior to the adoption of the municipal code of 1902, the city council was an administrative, as well as a legislative body, and one of the reforms contemplated by the adoption of the new code was to make its powers legislative only.

The two Opinion of the Court.

sections referred to do not make clear the precise mode of procedure when an expenditure of me than five hundred dollars is to be made by the directors of public safety. Bids must be advertised for, and a written contract made by the directors with the lowest and best bidder, and the necessary appropriation must be made, and the expenditure be approved by the council, but whether the appropriation and the approval may be made before bids are received and a contract entered into, or whether the exact amount of the expenditure, and the precise contract to be made, must be approved by the council, is not definitely stated. If the latter is the mode prescribed, then the directors of public safety, instead of being one of the departments of the city, invested with a part of the executive power and authority of the city government, are merely a committee of the city council. The council provides the money for carrying on the government, either by a levy of taxes, or an issue of bonds, and it is proper that it should have some control over the expenditures, but considering these sections in the light of the purpose of the code we think their requirements are met by an ordinance making an appropriation and stating generally the purpose for which it is made, and authorizing the directors to enter into contracts to effect that purpose If the directors do not have or retain the confidence of the council. it is in the power of the council to be more specific.

It is also contended that the contract is void because the auditor did not certify to the council that the money required for the contract was in the city treasury as prescribed by Section 1536-205,

Opinion of the Court.

Revised Statutes. The supplemental petition avers that the auditor did not so certify. This is denied by the answer in the circuit court, and that court does not make any finding upon that issue. This contract cannot create an obligation against the city in the nature of a debt, to meet which no funds have been provided. The council issued and sold the bonds and appropriated the proceeds to meet the expenditures it authorized, and any obligations incurred by the ordinance under the authority conferred are payable only out of the appropriation, so that the section can have no application to such a case.

Judgment is reversed, the injunction dissolved and the petition dismissed.



Statement of the Case.


Appointing power of governor-Act of April 2, 1906 (98 0. L.,

342), creating railroad commission-Common law rule forbidding appointing officerTo forestall appointing rights of his successor-Statutes to be construed with reference to rules of common law, when.

1. The well settled rule of the common law forbids that an officer

clothed with power of appointment to a public office, shall forestall the rights and prerogative of his successor, by making a prospective appointment to fill an anticipated vacancy in an office the term of which cannot begin until after his own term

and power to appoint have expired. 2. This established rule of the common law is neither abrogated

nor modified by the provisions of Section 1 of the act of the General Assembly of the State of Ohio passed April 2, 1906 (98 0. L., 342), creating a railroad commission, and requiring the governor to appoint thereto “in January, 1909, and biennially thereafter, one commissioner for the term of six years

from the first Monday in February of such year.” 3. Statutes are to be read and construed in the light of and with

reference to the rules and principles of the common law in force at the time of their enactment, and in giving construction to a statute the legislature will not be presumed or held, to have intended a repeal of the settled rules of the common law unless the language employed by it clearly expresses or imports such intention.

(No. 11773—Decided October 19, 1909.)


This action is one in quo warranto originally commenced in this court by the relator, James C. Morris, to recover possession of the office of member of the Railroad Commission of Ohio, to which office he claims to have been duly and legally appointed on January 4, 1909, by Andrew L. Harris, then governor of the state of Ohio. The essential and controlling facts are sufficiently stated

Statement of the Case.

in the pleadings of the parties, and are not in dispute. The petition of James C. Morris, the relator herein, alleges and charges as follows:

Now comes James C. Morris, the relator herein, and gives the court to understand and be informed that on the fourth day of January, 1909, Andrew L. Harris, the then duly qualified and acting governor of the state of Ohio, duly appointed the relator to the office of member of the Railroad Commission of Ohio, subject to the advice and consent of the Senate of the State of Ohio, for the term of six years, to commence on the first Monday in February, 1909, and to terminate on the first Monday in February, 1915; and on said fourth day of January, 1909, by written message addressed to said senate and signed by said Andrew L. Harris, governor as aforesaid, duly submitted said appointment to said senate for its confirmation; that on said fourth day of January, 1909,, the General Assembly of Ohio, including said senate, was in session, and said message of said Andrew L. Harris, Governor of Ohio, was duly received by said senate on said fourth day of January, 1909, and hy appropriate action on the part of said senate the said appointment of the relator to said office was duly assented to and confirmed by said senate. That thereupon, on the fifth day of January, 1909, the said Andrew L. Harris, Governor of Ohio, duly issued to the relator a commission to serve as a member of said Railroad Commission of Ohio for said term beginning on the first Monday in February, 1909, and ending on the first Monday in February, 1915, which commission was duly signed by said Andrew

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