The State ex rel. Attorney-General v. Bryson.

one occasioned by death as well as one brought about by other means, it would appear that the language of the ordinance itself furnishes an answer to the case put by counsel, though we can hardly regard it as arising in this case. The court is not called upon to hold what would be the power or duty of the mayor in case of a vacancy occasioned by death. Whether or not, in such an emergency, there might be found in the statutes some general grant of power to the mayor to direct a person to take charge of the department temporarily, and whether or not, if there exists such power, the person so authorized could be regarded as a "fire engineer," we need not here consider. As to the suggestion of danger from long delays, it is difficult to see how that consideration aids in giving construction to the ordinance, for there is no apparent reason why the law should assume that there would follow unnecessary or unreasonable delay in the action of the council in such emergency any more than in the action of the mayor. The members of that body are chosen from the same constituency that selects the chief executive officer, and it is hardly to be presumed that they would not bring to the discharge of their duties the same high sense of devotion to the public good which would actuate the mayor. The following, from the opinion of Birchard, J., in The State v. Choate, 11 Ohio, 513, would seem to apply to a city government as well as to that of the state: "Arguments of this nature, which assume the possibility that a co-ordinate branch of government will wantonly violate its plain duty, ought to be held of little weight in a court of justice, where the legal presumption obtains that every public functionary will-faithfully observe the obligations of duty imposed upon him by his oath of office." However this may be, the case before us is a wholly different one, and is, as we think, clearly covered by the terms of the ordinance. The fire engineer in office held under his appointment until his successorone in the sense herein before indicated-should be appointed and qualified. The nomination by the mayor not having been consented to by the council, no successor had been

The State ex rel. Attorney-General v. Bryson.

appointed. Hence the term of the incumbent had not expired, and there was no vacancy.

This view of the limitations upon the power of the mayor seems to be in accord with the spirit of our statutes upon the subject of municipal corporations. The ordinance was authorized by the statute, is in subordination to it, and it is to be presumed that the council, in passing it, was fully apprised of the law, especially as a direct reference to it is embraced in the ordinance itself. Section 1749, before referred to, makes adequate provision for suspension by the mayor for neglect, misconduct, or other sufficient cause. By clear implication there must be ground for such action before the mayor can suspend. Neither by the statute nor by the ordinance, nor by both, is that officer vested with arbitrary power to suspend or remove at will. He may suspend for statutory cause; he may not without such cause. And when he assumes to act for cause he is authorized to appoint another person to fill the temporary vacancy; and the requirement that all such suspensions and the cause thereof, and all such appointments, shall be reported to council at the next regular meeting, is for the purpose of invoking the supervisory action of council in the premises. That body may, in its discretion, approve or disapprove such suspension, and the disapproval terminates the vacancy, and the person appointed to fill it ceases to be an officer of the city. State v. Heinmiller, 38 Ohio St. 101. The purpose of the statute is further shown by reference to other sections of the title (XII), which treats of municipal corporations. Sections 2474, 2475, and 2476 recognize the office of fire engineer, and make provision as to his duties and compensation. Section 1685, same title, provides that an officer "appointed by authority of this title, except as otherwise provided therein, may be removed from office at the pleasure of the council by a vote of a majority thereof;" but in no case is a removal to be made unless a charge in writing is preferred and opportunity given to make defense. The statute and the ordinance will thus be found to supplement each other. The ordinance furnishes

The State ex rel. Attorney-General v. Bryson.

what the statute lacks, to wit, a mode of appointment and qualification; and the statute supplies what is not provided in the ordinance, to wit, a mode of suspension and removal; but there is no power given the mayor anywhere in the statutes to remove, and none to suspend except for cause, as before shown; and it is manifest that the spirit of the statute forbids the attempt to exercise such power by that officer.

The allegations as to the misconduct of a portion of the council contained in the answer, and the insinuations of improper motives made upon the other side in the brief, we do not regard as affecting the question in any way. The court can not, in this case, consider the motives, nor private desires, nor designs, of either branch of the city government. We deal with official acts and determine their legal effect, but not with private or unofficial acts. The ordinance gives to the mayor the selection of a person for fire engineer. His position as chief executive officer of the municipal government would suggest that he possesses superior knowledge of the situation and needs of the fire department, and sufficient knowledge of the qualifications necessary to a satisfactory discharge of the duties of fire engineer, and it is not unreasonable to assume that the framers of the ordinance contemplated that all nominations to that office would be made with a purpose of conserving the public good, and that, in the ordinary course of business, the council would be content to apply but one test, viz., that of fitness, to any nomination made for that office, leaving the responsibility of change, if any, where the ordinance seems to have left it, with the mayor. If, in the performance of these duties, any have been governed by improper motives leading to unjustifiable conduct, the parties are not amenable to the court in this case, but to public opinion and to their constituents.

There being no vacancy in the office of fire engineer, June 22, 1886, and no power in the mayor to declare one or to suspend the incumbent, it follows that the action of the mayor in his order of above date, addressed to David D.

Railway Company v Spangler.

Tresenrider, was invalid and without warrant of law, and that the defendant obtained no right nor authority under it. Tresenrider has, therefore, been, from his appointment in June, 1885, and continues to be, the fire engineer of the city of Columbus, and entitled to be recognized as such.

Judgment of ouster against Boyson and of induction of Tresenrider, as prayed by the relator.

RAILWAY COMPANY v. SPANGLER.

Master and servant-Negligence of fellow-servant-Power of railroad company to contract against injuries arising from.

The liability of railroad companies for injuries caused to their servants by the carelessness of other employes who are placed in authority and control over them, is founded upon considerations of public policy, and it is not competent for a railroad company to stipulate with its employes at the time, and as part of their contract of employment, that such liability shall not attach to it.

ERROR to the District Court of Lucas county.

Spangler, the defendant in error, was a brakeman on a freight train of the Lake Shore and Michigan Southern Railway Company. While in the line of his duty he was injured, without his fault, and by reason of the negligence of the conductor of the train. He brought his action for damages for the injury so received. The company alleged for defense, among other things, "that at the time of the hiring of plaintiff by defendant as a brakeman upon her trains of cars, as in the petition alleged, and as a part of the terms of said hiring, and in consideration thereof, plaintiff entered into an agreement and stipulation in writing with Spangler," which contained the following stipulation:

"Second, that while the company will be responsible to me for the discharge of all its duties and obligations to me, and for any fault or neglect of its own, or of its board of

Railway Company v. Spangler."

directors or general officers, which are the proximate cause of injury, yet it will not be responsible to me for the consequences of my own fault or neglect, or that of any other employes of the company, whether they or either of them are superior to me in authority, as conductor, foreman, or otherwise or not." The evidence tended to support this defense.

The trial court refused, upon request of the company, to charge the jury that, "if the jury find from the testimony that the plaintiff, at the time he was employed by the defendant as a brakeman, executed and delivered to the defendant the stipulation, a copy of which is set out in the answer, and that the same was accepted by the defendant, by and through its proper officer or agent, then the defendant is not liable for the alleged negligence of the conductor complained of in the petition," assigning as a reason for the refusal that, in the opinion of the court, such stipulation was not binding upon the plaintiff below, it being against public policy.

A judgment of recovery by Spangler was affirmed on error in the district court.

This judgment is now sought to be reversed for alleged error in affirming the judgment of the trial court.

The refusal of the latter court to charge the jury as requested is now assigned for error. Upon the question thus presented the court rests the disposition of the case.

C. H. Scribner (with whom were Ashley Pond and O. G. Getzendanner), for plaintiff in error.

The question is not whether a company may contract against liability for its own negligence. It is not claimed that it may, by contract, exempt itself from liability for negligently employing, or keeping in its service, an incompetent conductor; or for negligently furnishing dangerous or defective machinery; or for not keeping its roadway in proper repair. But, having exercised due care in all these respects, may it not stipulate against the consequences of negligent acts of a conductor, such as here complained of?