in case of his death or resignation the mayor, by the provisions of said section, is authorized to fill the vacancy so created by appointment. This conclusion is in harmony with an opinion of my predecessor, Hon. Timothy S. Hogan, reported at page 1519, of Vol. II of the annual report of the attorney general for the year 1913. I am of the opinion therefore in answer to this inquiry that in case of the death or resignation of the president of council the vacancy thus created may be filled by appointment by the mayor and that the president pro tem does not under such circumstances succeed to the presidency of council. The Council of a City is Without Authority to Employ Special Counsel or Attorneys to Assist the City Solicitor in Litigation, in the Absence of a Request Therefor by the Solicitor, and Upon Such Request the Selection of Such Special Counsel, When Authorized, Rests With the Solicitor.-Where Special Counsel is Determined by Council to be Necessary, it May Authorize Employment of Same by the City Solicitor and May Fix the Amount of Compensation to be Paid and Manner of Payment at its Discretion. The Employment of Such Special Counsel is not Subject to the Provisions of Section 3627, General Code, as to Competitive Bids. No. 1278-(Opinion Dated February 16, 1916.) The Bureau of Inspection and Supervision of Public Offices, Columbus, Ohio. Gentlemen: Yours under date of February 3, 1916, reads as follows: "We would respectfully request your written opinion upon the following questions: (1) "If a city is involved in important litigation, or such litigation is imminent, may the council of said city employ special counsel to assist the city solicitor in the absence or refusal of said solicitor to make request for assistance? (2) "Could the council delegate the mayor, director of service, director of safety, or the head of the department particularly interested in the matter, to contract for such service, or may the council itself select the special counsel and fix his compensation? (3) "If there be a conflict between the city solicitor and the council, or delegated official, in the selection of such special counsel, as a matter of law which would prevail? (4) "If the probable amount to be expended for such service is likely to exceed $500.00, must competitive bids be taken and contract entered into by the city, or would the council be required to create the position in the solicitor's department and fix the compensation? (5) "May said compensation be fixed by per diem, percentage, monthly salary, or may it provide a lump sum for the services required in the case? "We desire an outline of the procedure to be taken in the event that the above conditions obtain." By the provisions of Section 4303 G. C., a city solicitor is required to be elected for a term of two years, and by Section 4305 G. C., such city solicitor is required to prepare all contracts, bonds and other instruments in writing, in which the city is concerned, and to serve the several directors and officers mentioned in this title as legal counsel and attorney, and under the provisions of Section 4306 G. C., the city solicitor is made the prosecuting attorney of the police or mayor's court and he is by Section 4307 G. C. required to prosecute all cases brought before such court. Under Section 4309 the city solicitor is required to reply orally or in writing to all questions submitted in writing to him by an officer of the corporation concerning the law in any matter before such officer. He is required by Section 4311 G. C. to apply to a proper court for an order of injunction to restrain the misapplication of the funds of the corporation, or the abuse of its corporate powers, or the execution or performance of any contract in violation of law. Under Section 4312 he is required to apply for the forfeiture or the specific performance of a contract granting a right or easement, or creating a public duty, when the same is being evaded or violated. Section 4313 G. C. provides that the city solicitor shall apply for a writ of mandamus in case an officer or board fails to perform any duty expressly enjoined by law or ordinance. Section 4308 G. C. provides as follows: "When required to do so by resolution of the council, the solicitor shall prosecute or defend, as the case may be, for and in behalf of the corporation, all complaints, suits and controversies in which the corporation is a party, and such other suits, matters and controversies as he shall, by resolution or ordinance, be directed to prosecute, but shall not be required to prosecute any action before the mayor for the violation of an ordinance without first advising such action." Thus the city solicitor is made the legal adviser, counsel and attorney of the several directors and officers of the city and the legal adviser of the council and all boards of the city and is specifically charged with the duty of prosecuting and defending for and in behalf of the corporation all complaints, suits and controversies in which the corporation is a party, when required so to do by a resolution of the council and such other matters and controversies as he shall, by resolution and ordinance of council, be directed to prosecute, except as to violations of city ordinances. There is thus left to the city council the matter of determining in the first instance whether or not any suit, complaint or controversy, to which the corporation is a party, shall be prosecuted or defended, but it is made by specific provision the duty of the solicitor to prosecute or defend all such complaints, suits or controversies upon the direction of council so to do. Council may, as I understand is the usual practice, by general resolution, require the city solicitor to defend all complaints, suits and controversies in which the corporation is a party. The city solicitor is manifestly an executive officer of the city within the terms of Section 4246 G. C. With reference to such officers, clerks and employes as are authorized and necessary to enable the city solicitor to fully and properly perform the duties imposed upon him, Section 4247 G. C. provides as follows: "Subject to the limitations prescribed in this subdivision such executive officers shall have exclusive right to appoint all officers, clerks and employes in their respective departments or offices, and likewise subject to the limitations herein prescribed, shall have sole power to remove or suspend any of such officers, clerks or employes." By force of the provisions of this section, the city solicitor is given exclusive authority and right to appoint all officers, clerks and employes in his department of the city government, subject, however, to the civil service law, and to the control of council as to number and compensation. A careful examination of the statute fails to disclose any specific provision authorizing council or other officer of the city to employ legal counsel or attorneys other than the city solicitor, nor does there appear any general provision which contemplates such power or authority. On the contrary, the power of council is limited by the provision of Section 4211 G. C., as follows: "The powers of council shall be legislative only, and it shall perform no administrative duties whatever and it shall neither appoint nor confirm any officer or employe in the city government except those of its own body, except as is otherwise provided in this title. In view of the provisions of this section and the absence of specific provision for employment of counsel or attorneys by the city council, it seems conclusive that no such power is lodged in that body. In answer to your first inquiry, I am therefore of opinion that the council of a city is without authority to employ special counsel or attorneys to assist the city solicitor in litigation independent of and in the absence of a request therefor by the solicitor and upon such request by the solicitor the exclusive power of selection or appointment rests with such solicitor. This answer to your first question renders unnecessary a consideration of your second and third inquiries. Your fourth and fifth inquiries may be considered together. Attention is called to the provisions of Section 4214 G. C., which are as follows: "Except as otherwise provided in this title, council, by ordinance or resolution, shall determine the number of officers, clerks and employes in each department of the city government, and shall fix by ordinance or resolution their respective salaries and compensation, and the amount of bond to be given by each officer, clerk or employe in each department of the government, if any be required. Such bond shall be made by such officer, clerk or employe, with surety subject to the approval of the mayor." It is thus specifically provided without restriction that the council shall fix the compensation of officers, clerks and employes of the department of the city solicitor, as well as of the other departments of the city government. This authority is conferred in general terms and without prescribing the amount of such compensation or the manner of the payment thereof, thus leaving the details of the exercise of such authority to the sound discretion and determination of the council. I am therefore of the opinion that where special counsel is determined by the council to be necessary, it may authorize the employment of the same by the city solicitor and may fix the amount of compensation to be paid therefor and the manner of the payment thereof at its discretion. Such special counsel would be in the employ of the solicitor and not subject to the provisions of Section 3627 G. C., which provides for competitive bids in certain classes of contracts therein defined with the city, when the amount of the expenditure involved is in excess of $500.00. Answering your fourth inquiry specifically, I am therefore of opinion that the employment of special counsel in the manner au thorized by law, as above pointed out, is not subject to the statutory requirements for the acceptance of competitive bids for such services. In answer to your fifth question I am of the opinion that council may fix the compensation for special counsel so employed by per diem, by percentage, by monthly salary or by a lump sum according to the judgment and discretion of the council. Township Trustees Cannot Employ the County Surveyor or One of His Assistants to Survey a Township Ditch for Land Drainage— Fees Collected by County Surveyor or His Assistant for Land Surveys as Required by Sections 2807 and 2814, General Code, Are Not to be Paid Into the County Treasury, but May be Disposed of at the Discretion of the County Surveyor and His Deputy-All Road and Bridge Repair Work Should be First Authorized by the County Commissioners. Such Work May be Done by Force Contract, Laborers to be Employed by County Highway Superintendent When Authorized by County Commissioners. No. 1093-(Opinion Dated December 13, 1915.) Dear Sir: I have your communication of November 9, 1915, in which you submit a number of inquiries as to the operation of the Cass Highway Law. Your first inquiry reads as follows: "May the township trustees request the county surveyor to survey a township ditch for land drainage? Said ditch to be governed by the special assessment law." The pertinent provision of the General Code is found in Section 6612 and reads as follows: "The trustees may employ an engineer to locate, level and measure the course of such ditch, and such other assistance as they need." Under the provision above quoted, it is no part of the official duty of the county surveyor to do the engineering work on a township ditch. Under the statutes in force prior to the going into effect of the Cass Highway Law, the township trustees might employ the county surveyor or they might employ some other engineer to perform the engineering work on a township ditch. The county surveyor was compensated on a per diem basis and if any of his time was not required for his official duties there |