Zigler v. Palmer

By act of the Legislature passed April 12, 1876 (73 0. L., 235), it is provided that the board of directors (infirmary) shall appoint a superintendent .who shall reside in some apartment of the infirmary or other building contiguous thereto, and shall receive such compensation for his services as the' board shall *548fix; lie shall perform such duties as the board shall impose upon him and be governed in all respects by the rules and regulations of -the board, and may be removed by them at pleasure: This legislation to my mind does not look to the entering into of a contract by the infirmary directors and superintendent, but simply provides1 that they shall have the power to appoint him and remove him at pleasure.

On April 26, 1898 (93 O. L., 262; Section 962, Revised Statutes), this section was amended by the General Assembly of Ohio, and it now reads as follows:

“The directors shall appoint a superintendent, who shall reside in some apartment of the infirmary or other building contiguous thereto, and shall receive such compensation for his services -as they determine. He shall perform such duties as they may impose upon him, iu’d may be governed in all respects -by their rules and regulations, . -d he shall not be removed by them except for good and sufficient cause.”

The language of this statute precludes the idea of any fixed term. The board has the absolute power to fix compensation, rules and regulations. It has no power to remove except for good and sufficient cause. If if be permitted infirmary directors to enter into a contract with the superintendent for a term, the provisions of this section may be absolutely and entirely avoided, and the change in legislation -might as well not have been enacted.

The reasons moving the Legislature to -amend this section are not important. It is clearly intended to serve some purpose, and that purpose undoubtedly is in the line of better service for all public -eleemosynary institutions, and if .a superintendent is to -be constantly menaced by the power of the board of infirmary directors to remove him, he is not .the free agent that he ought to be -in -the management of that important public charity. But I have no desire to go into speculations as to the -reasons for the change; the change was made -and it now reads that the superintendent shall not be removed -except for good and sufficient ■cause.

This is not the -only legislation of this -character in Ohio; there has been a great deal of .a similar character. The new municipal *549code, 96 O. L., 75, Section. 167 (1536-703), provides that no officer or employe in the department of public safety shall be removed or discharged except for .canse, and this does not apply merely to the officers thereafter appointed, but the last paragraph of the same section provides than no officer, secretary, sergeant, patrolman, fireman or .other employe serving in the police or fire departments of -any city in the state at the time this act goes into effect, shall foe removed or reduced in rank or pay except in accordance with the provisions of this act.

In the case of State v. Sullivan, 58 Ohio St., 504, the court, in dealing with a statute of this .character, says:

“The power of removal from office, conferred upon a mayor, in these words, ‘for neglect of duty or misconduct in office, the mayor of such eity may remove any member of said board,’ is a special authority, and must foe strictly construed. Such power can not be exercised arfoitrarihr. hut only upon complaint, and after hearing had in whieKffiné officer is afforded opportunity to refute the case made against him.”

The evidence in these cases shows that no attempt was ever made to remove .this superintendent for cause. The appointment was made upon the theory that his term of office had expired.

After the amendment of this Section 962, Revised Statutes, in 1898, and some time in 1899, the hoard of directors of this county did appoint B. Frank Palmer superintendent of the county infirmary. It is presumed that such appointment was made under favor and by authority of this section. It is true that there is an attempt to limit this appointment to a term of one year. Under the appointment he qualified, gave bond and took the oath of -office. From time to "time thereafter the evidence discloses -that there w.as an attempt to make a further appointment of the same individual as superintendent of the county infirmary, and such a resolution was entered upon the record, hut the evidence is uncontradieted that he paid no attention whatever to these appointments, and never qualified thereunder .or furnished any new bond, and in no manner or form acquiesced therein. I am of the opinion -that when he was appointed after the amtwdimmt of this section, he was appelated *550until he should be .removed by said board of directors for good and sufficient cause.

For these reasons I dissent from the opinion of the majority of the court in these two cases.