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named in this statute nor does it refer to any section or sections under which they are appointed or from which they receive any authority. It follows, therefore, if they can be brought under th protection of this law it must be by virtue of the provisions of that clause thereof which includes specially appointed police officers who may go armed if they first give bond in the sum of one thousand dollars as therein provided.
Deputy game wardens are now appointed by the state board of agriculture under the provisions of Section 1391, G. C., as amended 106 O. L., 170. They hold their office for the term of two years, are required to give bond for the faithful discharge of their duties and are charged generally with the enforcement of all laws for the protection, preservation and propagation of birds, fish and game within this state. They are paid such compensation as the appointing power may allow and deem proper and in addition thereto are entitled to the same fees sheriffs are allowed for like services in criminal cases.
Under the particular provisions of said Section 1395, to which you refer in your letter, they may execute warrants and other processes issued in the enforcement of bird, fish and game laws in the same manner as a sheriff or constable may serve or execute the same and may arrest on sight without warrant a person found by them violating any of the so-called game laws of the state.
Without enumerating further the many other provisions of law which refer to and cover their duties and authority, I think it sufficiently appears from what has been already quoted to warrant the conclusion that such officers are specially appointed police officers of that department of the state board of agriculture which has in charge the protection, preservation and propagation of birds, fish and game in this state.
This department, under the well recognized and settled definitions of the same, is itself a police department because it is charged with the preservation of all birds, fish and game and the enforcement of all laws protecting the same. It follows, therefore, that an officer appointed by this department to assist in its particular province is a police officer in the sense that the word is ordinarily used and understood.
This conclusion is further strengthened by the provisions in other sections of the law relating to this department. For instance: Section 1397, G. C., provides, among other things, that:
“Prosecutions by the warden or other police officer for offenses not committed in his presence shall be instituted only upon the approval of the prosecuting attorney of the county in which the offense is committed or upon the approval of the attorney general."
Again in Section 1398, G. C., we find the following provision:
"Each warden or other police officer shall seize and safely keep such property, etc.”
It is apparent from the language used by the legislature in the foregoing provisions that it regarded game wardens as belonging to a class known as police officers.
I am of the opinion, therefore, that under said Section 12819, supra, deputy game wardens are specially appointed police officers and as such are required to give the bond in the sum of one thousand dollars as therein specified and required before they are entitled to the protection of the statute. In the absence of such bond they are subject to all the penalties of the law and in the particular case to which you refer, if said deputy game warden has not given this bond, he is certainly guilty of violating the law unless his act was justified under the provisions of said Section 13693, which provisions present a question of fact under the particular circumstances of each case and do not properly enter into a discussion of the question presented by you.
Proof That An Individual Has Acted Openly In a Public Office Is
Prima Facie Evidence of His Official Character-It Is Presumed That a Man Acting In Public Office Has Been Rightly Appointed -An Oral Appointment Is Valid-And the Validity Is Still Stronger Where the Official Character Has Been Recognized by the Appointing Power—Specifically: Lon W. Ralston, at One Time President Pro Tem of the City Council of Steubenville, Subsequently Became (Through Death of Incumbent) President of Council. The Duly Elected Mayor Having Resigned, Ralston Took the Oath as Mayor and Assumed the Duties of the OfficeRalston Is Mayor and His Acts and the Acts of His Appointees Are Legal and Valid.
No. 734—(Opinion Dated August 18, 1915.)
Dear Sir: Permit me to acknowledge receipt of your letter asking for an opinion on a question embraced in a statement of facts as follows:
“Under date of July 17, 1915, I received the following enquiry for an opinion from Charles R. Wells, city auditor of Steubenville:
'The question has been asked me on several different occasions if Lon W. Ralston is the legal mayor of the city of Steubenville, Ohio, and if he is not, are any of his appointments legal and have they the power to approve contracts or vouchers ? Mr. Merryman, please look this matter up at once and give me your opinion on the same. The only interest I have in this is to protect the city, my bondsmen and myself.'
While I am aware that under the statutes it is not incumbent upon you to render legal opinions to city solicitors, yet, in view of the work done here by Mr. Ballard, your first assistant, in connection with our recent municipal investigation, and of my association with him at that time, I feel I should extend to you the courtesy of a request for this opinion, and I. also would appreciate the consideration of this question by your department and an opinion thereon to me as a favor.
I will briefly state to you the facts that will probably be necessary for you to consider in arriving at an opinion on the questions submitted in the inquiry of City Auditor Wells.
The minutes of the city council show that something more than a year ago Harry Woods, the duly elected, qualified and acting president of council, died. At that time Lon W. Ralston, now serving as mayor, was president pro tem of council. The minutes of the next meeting of council are signed by Mr. Ralston as president pro tem, while the minutes of the meeting next thereafter are signed by him as president of council. In other words, the minutes disclose the fact that Mr. Ralston succeeded to the office of president of council by virtue of being president pro tem. Since that time, and within the past few months, George W. McLeish resigned as mayor of the city, and Mr. Ralston took the oath as mayor by virtue of serving as president of the council. Raymond W. Teaff, the then president pro tem of council, succeeded to the office of the president of council.
If Mr. Ralston was president of council then he is properly in the office of mayor, but the question that arises in my mind, in considering this enquiry, is as to whether or not he ever was president of council.
In connection with this enquiry, I cite you to an opinion of Honorable Timothy S. Hogan, formerly attorney general, at page 1882 of Volume 2, of the Annual Report of the attorney general for 1912; and to another opinion of Mr. Hogan contained in Volume 2 of the Annual Report of the attorney general for 1913, at page 1519.
I call your attention to Section 4210 of the General Code, which provides regarding election of a president pro tem in cities. I also call your attention to Section 4274 of the General Code, which provides for the succession of the president of council to the office of mayor in case of death, resignation and
removal of the mayor, as well as the succession of the president pro tem of council to the office of president under such circumstances. I also call your attention to Section 4252 of the General Code, providing for the filling of vacancies in office, not otherwise provided for.
Of course, the real question raised under the city auditor's enquiry is with reference to the office of mayor. If Mr. Ralston is not the duly authorized and acting mayor, then his appointees could derive from him no power or authority, as I take it.
If you see your way clear and will be kind enough to render me an opinion on this enquiry, I shall appreciate the same, and, if your opinion should be that Mr. Ralston is not the duly authorized and acting mayor of this city, then I would be glad for you to give me your opinion as to how the office of mayor, under the circumstances stated, should be filled."
At the time when Harry Woods, the duly elected, qualified and acting president of the city council died, the then mayor of the city would have had authority to fill the vacancy in that office caused by the death of the incumbent. However, as stated in your letter, Mr. Lon W. Ralston, who was then president pro tem of the council assumed the duties of the office of president of the council, and from the fact that he continued in that office until recently, when he assumed the office of mayor on account of the resignation of Mr. George W. McLeish it may be assumed, at least, that while the mayor who had the power to appoint the successor to Mr. Woods did not make an appointment in so many words, his acquiescence in the holding of the position by Mr. Ralston, who was a de facto officer, amounted almost to an appointment.
In addition to the information contained in your original request for an opinion you state in your letter of August 11 as follows:
"I might add, however, that all other officers and persons treated Mr. Ralston as president of council; that on one occasion when Mayor McLeish was out of the city he wired Mr. Ralston to look after matters connected with the office, and that on one or two other occasions Mr. Ralston performed one or two duties of the office as acting mayor."
From your statement it would appear that Mr. McLeish not only acquiesced in Mr. Ralston holding the office of president of the council but actually assigned to him some specific duties incident to that office, during the mayor's absence from the city.
In the case of State vs. Nield, court of appeals of Kansas, Northern Department, C. D., decided July 9, 1896, 45 Pac. Rep., 623, it was held at page 625 as follows:
“ 'It is one of the exceptions to this general rule which requires the best evidence of which the point is susceptible, that proof that an individual has acted openly in a public office is prima facie evidence of his official character, without proving his election or producing his commission. 1 Greenl. Ev., Sec. 83. The plaintiff, therefore, was not obliged to produce the township book in order to prove the office of the defendant. It was enough for him to show that he had held himself out to the public as the incumbent of the office in question.' In Com. v. Kane, it is held 'The foundation of the rule of evidence, that a person acting as a public officer has been duly appointed to the office which he assumes to exercise, is that all acts done by what appears to be public authority are presumed to be rightly done, until the contrary is proved. In Bank v. Dandridge it is said: ‘By the general rules of evidence, presumptions are continually made, in cases of private persons, of acts even of the most solemn nature, when those acts are the natural result or necessary accompaniment of other circumstances. In aid of this salutary principle, the law itself, for the purpose of strengthening the infirmity of evidence, and upholding transactions intimately connected with the public peace and the security of private property, indulges its own presumptions. It presumes that every man, in his private and official character, does his duty, until the contrary is proved.
It will presume that all things are rightly done, unless the circumstances of the case overturn this presumption, according to the maxim, 'Omnia praesumuntur rite et solemniter esse acta donec probetur in contratium.' Thus it will presume that a man acting in public office has been rightly appointed.
This rule applies, not merely to the chief officers, but, also, to deputies and assistants who are specially provided for and recognized by law."
In the case of Delphi School District vs. Wm. Murray, 53 Cal., at page 29 the court said:
“To find that these persons were ‘acting as trustees' was merely to embody the evidence or a portion of it adduced at the trial upon the issues just referred to, and to add that 'there was no sufficient evidence of the election of Grupe,' etc., was merely to remark upon the condition of the case as presented. If it was proven at the trial that Grupe and others were ‘acting as trustees,' a presumption thereby arose that these persons were officers de jure, but this presumption was, of course, disputable in its character, and might have been met and overcome by other evidence. (Code of Civil Procedure, Sec. 1963, Subdv. 14.) If not so met and overcome the presumption would stand for proof, and would support a finding that these persons were de jure trustees.
This was the rule at common law, and the statute has wrought no material change in that respect. That direct and