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mayor shall have general supervision over each department and the officers provided for in this title (the Municipal Code), and if the mayor has reason to believe that the head of a department, or such officer, has been guilty in the performance of his official duty, of bribery, misfeasance, malfeasance, misconduct in office, gross neglect of duty, gross immorality or habitual drunkenness, he shall immediately file with the council, except when the removal of such head of department, or officer is otherwise provided for, written charges against such person, and the following section provides that the officer, upon trial by council, may be removed by a vote of two-thirds of all the members elected to the council

“Question 1: Has a mayor the authority to remove a director of service under the authority of Section 4250 without filing the charges, or must he proceed as outlined in Sections 4263 and 4264?

“Question 2: May the mayor remove a city engineer, or superintendent of water works. heads of sub-departments in the department of public service, under authority of Section 4250, without filing charges, or must he proceed, if he desires their removal, in the manner prescribed by Sections 4263 and 4264?"

Section 4250 G. C., to which you refer above, as amended in 106 0. L. 483, provides as follows:

“The mayor shall be the chief conservator of peace within the corporation. He shall appoint, and have the power to remove, the director of public service, the director of public safety, and the heads of the sub-departments of the departments of public service and public safety, and shall have such other powers and perform such other duties as are conferred and required by law. In cities having a population of less than twenty thousand, the council may by a majority vote merge the office of director of public safety with that of public service, one director to be appointed for the merged department."

The provsion in Section 4250 aforesaid, empowering the mayor to appoint and remove the directors of public service and public safety and the heads of the sub-departments of the departments of public service and public safety was first placed in said statute by an amendment passed. April 29, 1908, found at page 562 of Vol. 99 0. L. and is a part of what is known as the Paine law. The changes in the municipal code made by this law are summarized by the Supreme Court in the case of State vs. Roney, 82 0. S. 376, as follows:

"It amended more than twenty sections of the municipal code, but the changes effected may be summarized as follows: The boards of public service and of public safety were abolished and in their stead was substituted a director of public service and a director of public safety, appointed by the mayor.

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Prior to said amendment of Section 4250, the department of public service was administered by a board of directors which consisted of three or five members, as provided by ordinance or resolution of council in each city. They were elected for a term of two years.

Referring now to Sections 4263 and 4264 G. C., they were originally Section 225 of the municipal code and were not affected by the changes made in said code by the enactment of the Paine law aforesaid. Said sections provide as follows:

“Section 4263: The mayor shall have general supervision over each department and the officers provided for in this title. When the mayor has reason to believe that the head of a department or such officer has been guilty in the performance of his official duty of bribery, misfeasance, malfeasance, non-feasance, misconduct in office, gross neglect of duty, gross immorality or habitual drunkenness, he shall immediately file with the council, except when the removal of such head of department or officer is otherwise provided for, written charges against such person.

The succeeding section, 4264, makes provision for the hearing of said charges at the next regular meeting of council and for the manner of hearing and trial thereon.

As before noted, these two sections were Section 225 of the municipal code and no change was made therein by the enactment of the Paine law. However, when the code was adopted in 1910, the clause underscored in said Section 4263 providing as follows:

“Except when the removal of such head of department or officer is otherwise provided for," was added by the codifying commission to Section 4263 and thereafter adopted by the legislature. The purpose in writing into this statute an exception of this character which theretofore did not exist therein was evidently to give effect to the provisions of Section 4250, supra, to which said clause 'undoubtedly refers, and excepts from the provisions of Section 4263 the officers specified in said Section 4250. In other words, prior to the amendment of Section 4250 the provisions of Section 4263 furnished the only method for the removal of the heads of departments and other officers provided for in the municipal code, but with the amendment of Section 4250 in 1908 there was an apparent conflict be

tween the provisions of said Section 4250 and said Section 4263, which was taken care of by the codifying commission in 1910 in adding to said Section 4263 the clause hereinbefore quoted and which as before suggested unquestionably refers to the heads of departments or officers whose removal is provided for in Section 4250.

In the case of State vs. Roney, supra, Summers, J. in commenting upon said Section 4250 says:

“The power in the mayor to appoint and to remove is a continuing power, and no term of appointment of the chief of police being fixed, the chief of police holds his office at the pleasure of the mayor and in the absence of statutory regulation may be summarily removed by the mayor.'

Since this decision, however, the chief of police has been placed under the protection of the civil service law and may not now be so removed, but the remarks quoted apply here. The director of public service is appointed for no definite term. (See Section 4323 G. C.) There are no statutory provisions protecting him from removal. It follows, therefore, that he may be summarily removed by the mayor under the provisions of Section 4250, supra, and that the provisions of Section 4263 et seq. do not apply to such removal. I, therefore, hold that the director of public service may be remived under the provisions of said Section 4250 and that the provisions of Section 4263 et seq. of the General Code may nat apply to such officer.

Referring now to your second question, it might be assumed that the observations made here regarding a director of public service apply with equal force to the heads of sub-departments which are also included within the provisions of said Section 4250. Such assumption would be well founded were it not for the provisions of the civil service law as found in paragraph 3 of Section 486-8 G. C. as amended in 106 O. L. 404. It is provided in said paragraph 3, among other things, that:

"The members of all boards and commissions and all heads of departments appointed by the mayor, or if there be no mayor such other similar chief appointing authority of any

city or city school district.” shall be in the unclassified service. It becomes pertinent then to inquire whether the heads of sub-departments as designated in said Section 4250 are within the provisions of the civil service law just quoted. I am of the opinion that the heads of sub-departments such as referred to in your second inquiry are not the "heads of departments" as contemplated by said paragraph 5 of

the civil service law and are therefore within the classified service and protected by the civil service law of the state. Section 4323 G. C. provides:

"In each city there shall be a department of public seryice which shall be administered by a director of public service. The director of public service shall be an elector of the city, shall be appointed by the mayor and shall serve until his successor is appointed and qualified. He shall make rules and regulations for the administration of the affairs under his supervision." Section 4324 G. C. provides :

“The director of public service shall manage and supervise all public works and undertakings of the city, except as otherwise provided by law, and shall have all powers and perform all duties conferred upon him by law. He shall keep a record of his proceedings, a copy of which, certified by him, shall be competent evidence in all courts.”

In view of the provisions of the statutes just quoted, it may not be said that the department of public service has any head other than the director of public service. Therefore, the director of public service is the head of the department which includes the subordinate officers named in yiur second inquiry and the provisions of said paragraph 3 of the civil service law may not apply to such officers for this reason.

It must also be assumed that the legislature in the use of the term “head of department” did so with knowledge of the fact that in Section 4250, supra, reference was made to the heads of subdepartments.

It may be claimed that the last clause of said paragraph 3, relating to chiefs of police and chiefs of fire departments, would indicate that the legislature had intended to exempt all similar subdepartments and therefore deemed it necessary to make special reference to them to include them in the classified service. While the police and fire departments are under the direction of the director of public safety in a city, the statute . defining his duty (Section 4368) denominates him as the executive head of the police and fire departments only by separate provisions, viz: Sections 4372 and 4376 G. C. provide for the heads of police and fire departments which are not therefore sub-departments in the sense that term may be applied to the water works and engineering department. For this reason the legislature rightly considered some question could be raised and therefore settled all controversy by this special provision.

I am, therefore, of the opinion that the officers named in your second inquiry, viz. a city engineer and superintendent of water works, are within the classified service of the city under the provisions of the act amending Sections 486-1 to 486-31 and repealing Section 4505 of the General Code, found in 106 0. L., page 400, and may therefore only be removed from office as provided for in Sections 486-17 and 486-17a of said act.

Where Upon a Trial Contesting a Will the Relatives and Devisees

Agree Upon a Basis of Settlement and the Will Is Held Valid, the Collateral Inheritance Tax Should be Levied Upon the Amounts Devised by Will and Not as Fixed by the Agreement.

No. 1130—(Opinion Dated December 31, 1915.) Honorable Charles Krichbaum, Probate Judge, Canton, Ohio.

Dear Sir: I am in receipt of your letter of December 10, 1915, requesting my opinion upon the following facts:

"B died testate, unmarried and leaving brothers and sisters. By the terms of his will numerous bequests were made to neighbors. The brothers and sisters contested the will; but in the course of the trial of the action an agreement was arrived at by the terms of which the devisees and the relatives divided the estate regardless of the terms of the will. The court thereupon charged the jury, in accordance with the statute, that the will was valid and must stand as admitted to probate.

“On what basis is the collateral inheritance tax to be computed under these circumstances ?

Upon a somewhat similar but not identical statement of facts my predecessor in an opinion to the prosecuting attorney of Hamilton county, under date of December 19, 1913, held that the title of the contestors being one of inheritance, the tax was to be assessed against their respective shares if not otherwise exempt, although the amount thereof was determined by the agreement and not by the will. In short, where the contestors as well as the contestants are all collateral relatives, the tax is to be assessed against all their shares notwithstanding the agreement, but in accordance with the distribution fixed thereby; so that assuming a simple case, if the sole legatee were a brother and the contestant were another brother, and the agreement were to divide the estate equally, the tax would be computed upon the shares of each as fixed by the agreement, over and above the sum of five hundred dollars.

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