Smith v. Lynch

The questions argued by counsel are: 1. Had the superior court jurisdiction ? 2. Are the requirements of the statute as to the manner of passing the ordinance mandatory, or are they merely directory? 3. If these requirements are mandatory, are the persons so acting to be regarded as a board health defacto ? We are satisfied that the last named of these questions must be answered in the affirmative. It is unnecessary, therefore, to consider the first and second questions. In other words, we think that, under the circumstances, the board is to be regarded as a board de -facto. Whether it was a board de jure, and whether the superior court had jurisdiction of the case, become, therefore, immaterial questions. It is claimed by the counsel for the plaintiff that this is not a case where an office has been filled, and its duties performed, by parties not legally appointed or qualified, but a case where there was no office to he filled. We do not so understand the law. The statute (66 Ohio L. 200) creates the office. It authorizes the council to “establish” the board, and to fill it by appointment. True, until the council act in the premises, it is a mere potentiality in their hands; yet it is none the less an office, known to the law,.and provided for by law. Where the council assume to establish the board *263under the law, and to appoint its members, there is no good reason why an irregularity or illegality in the act of establishing the office, any more than an irregularity or illegality in the appointment of the officers, should be.held as rendering the acts of the officers void, and themselves mere trespassers. The reasons — the considerations of public policy — which exist in one case exi&t equally in the other. It is enough that the office is one provided for by law, and that the parties have the color of appointment, assume to be and act as such officers, and that they are accepted aird acknowledged by the public as such to the exclusion of all others. Such was the case here. There was both the color and the fact of office.

Motion overruled.