Opinion
No. 37373
Decided December 19, 1962.
Municipal corporations — Transition from village to city — Village mayor possesses only power as such after transition — Patrolman appointed by such mayor — Does not attain civil service status.
The mayor of a village who holds over in his office after the village becomes a city by declaration of the Secretary of State and serves during the period before a regular municipal election possesses only the powers and authority of a village mayor, and a patrolman appointed by such mayor does not attain civil service status. ( State, ex rel. Heffernan, v. Serp, 125 Ohio St. 87, approved and followed.)
CERTIFIED by the Court of Appeals for Lucas County.
Richard L. Christensen, plaintiff, appellant herein and herein referred to as plaintiff, was appointed patrolman by the mayor of the municipality of Oregon in March 1958. In November 1957, prior to his appointment, the village of Oregon became a city by declaration of the Secretary of State pursuant to Section 1, Article XVIII of the Ohio Constitution, and Section 703.01, Revised Code. From the time Oregon was declared to be a city until January 1960 the officials of the village held over and served as officials of the noncharter city of Oregon.
In November 1958, a year after Oregon was declared to be a city, the electors of Oregon adopted a charter which went into effect on January 1, 1960. On the day before the charter became effective, the mayor of Oregon, one of the defendants herein, posted a notice which stated in part: "Since the city of Oregon, Ohio, commences operation under its charter on January 1, 1960, the employment of all persons serving as officers or employees of the city of Oregon, Ohio, under the present mayor and council ceases at 12:00 midnight, December 31, 1959." Following this pronouncement was a list of the employees who were to be retained under the new city charter. Plaintiff's name was not included in this list.
On January 2, 1960, a civil service commission was appointed for the first time in Oregon. On January 11, 1960, plaintiff filed an appeal with the civil service commission of Oregon, claiming that he had been removed from his position without compliance with the statutes relating to such removal.
On March 3, 1960, the plaintiff's appeal was dismissed by the civil service commission of Oregon on the ground that the commission lacked jurisdiction to entertain the appeal.
Plaintiff appealed to the Court of Common Pleas which affirmed the action of the commission.
Upon further appeal, the Court of Appeals affirmed the judgment of the Court of Common Pleas.
The judges of the Court of Appeals, finding the judgment rendered to be in conflict with the judgment of the Court of Appeals for Cuyahoga County in the case of Smith v. City of Mayfield Heights, 99 Ohio App. 501, certified the record to this court for review and final determination.
Mr. Wm. Kent Fenton and Mr. Steven L. Markowski, for appellant.
Mr. William C. Moore, city solicitor, Messrs. Doyle, Lewis Warner and Mr. Arthur F. James, for appellees.
The issue in this cause is whether a patrolman of a city is entitled to civil service status, where such patrolman was appointed by one who had been elected as mayor of a village and who pursuant to statute continued in office after such village had been declared to be a city by the Secretary of State.
Section 1, Article XVIII of the Ohio Constitution, provides:
"Municipal corporations are hereby classified into cities and villages. All such corporations having a population of five thousand or over shall be cities; all others shall be villages. The method of transition from one class to the other shall be regulated by law."
Clearly this section is not self-executing and requires legislative action to provide the procedural steps which must be taken in the transition of a village to a city. The only provision actually relating to government during such transition is Section 703.07, Revised Code, which provides for continuity in office of village officials during the period of transition, in the following manner:
"Officers of a village advanced to a city, or of a city reduced to a village, shall continue in office until succeeded by the proper officers of the new municipal corporation at the regular municipal election, and the ordinances thereof not inconsistent with the laws relating to the new municipal corporation shall continue in force until changed or repealed."
This court in construing Section 3499, General Code (now Section 703.07, Revised Code), in the case of State, ex rel. Heffernan, v. Serp, 125 Ohio St. 87, held, in the third paragraph of the syllabus:
"It is the true intent and meaning of Section 3499, General Code, that village officers shall continue in office, with the powers and duties only of village officers until the first regular election after the proclamation of the Secretary of State has been filed with the mayor of the municipality as provided by Section 3498, General Code."
In the course of the opinion, in discussing this matter, it is stated at pages 95 and 96:
"The Legislature clearly had the right to provide for the method of transition; that is to say, the code of procedure by which the village government should end and the city government begin. It could have expressly provided that, from the time of the filing of the proclamation of the Secretary of State in the office of the mayor, the village officers then in office might immediately begin to exercise powers of corresponding city officers. What the Legislature in fact did was to continue the village officers in office until succeeded by the proper officers of the new corporation at the next regular election. The village officers were elected because of their presumed qualifications to discharge the duties devolving upon those officers respectively. Applying the rule of strict construction, they should not be held to be empowered to discharge other duties essentially different, without specific legislative authority therefor, on the sole theory that such powers are implied because of the failure of the Legislature to make them express. The analysis of the implications made necessary by immediately regarding the city government to be in effect, with the village officers exercising undefined powers, could only be justified upon the maxim that `necessity knows no law.' If, on the other hand, the mandate of the Legislature be followed only to the extent that the officers continue in office until the next regular election, without giving them any implied powers whatever, but limiting them strictly to those expressly conferred, the transition from one form of government to the other is made without difficulty and without inconvenience. It must therefore be presumed that such was the legislative intent."
Since a holdover mayor under Section 703.07, Revised Code, has only the powers of a village mayor, such mayor in appointing a patrolman creates no greater rights in such patrolman than could have been bestowed by a village mayor. In view of the fact that a patrolman appointed by a mayor of a village has no civil service status under state law, the necessary conclusion is that a patrolman of a city appointed by a holdover mayor under Section 703.07, Revised Code, also has no such status.
The judgment of the Court of Appeals is correct and, therefore, is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, RADCLIFF, O'NEILL and GRIFFITH, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.