Opinion
No. 80-412
Decided July 16, 1980.
Municipal corporations — City council — Vacancy — Mayor may lawfully fill, when.
IN QUO WARRANTO.
On or about January 1, 1980, Margaret Demorest, then a member of Wooster city council, was qualified as mayor of the city, thereby creating a vacancy in council. Section 1.04 of the city charter provides:
"All such powers shall be exercised in the manner prescribed in this Charter, or if not prescribed herein, in such manner as shall be provided by ordinance of the Council, and when not prescribed in this Charter or provided by ordinance of Council, then such powers shall be exercised in the manner provided by the general laws of the State of Ohio until the Council shall provide a different manner of exercising such powers."
Section 2.06 of the charter provides, in part:
"Vacancies in Council shall be filled by appointment of a qualified person, by majority vote of remaining Council members within thirty days of the occurrence of the vacancy. The appointee shall serve until a successor is nominated and elected as provided in Section 7.07."
More than 30 days after the vacancy occurred, Mayor Demorest appointed Charlotte Reesman, respondent herein, to fill the council vacancy. Council had not acted on the vacancy prior to the mayor's action. Respondent was sworn in and seated as a council member at a regular session of council on February 4, 1980, without objection from any of the other six council members. Thereafter, council voted to reorganize itself for 1980, including several committee assignments for respondent.
On March 24, 1980, William J. Brown, Attorney General of Ohio, relator herein, filed an original action in quo warranto in this court, seeking the ouster of respondent from the office of city council member. Relator alleges that respondent's appointment was unlawful "for the reason that it was in contravention of Section 1.04 of the Wooster charter providing that all powers be exercised in the manner prescribed in the charter, and Section 2.06 of the Wooster charter, which gives only city council the power to fill vacancies in city council." Respondent alleges that R.C. 731.43 applies to this cause, thus making the appointment lawful.
R.C. 731.43 provides:
"When the office of a member of the legislative authority of a municipal corporation becomes vacant, the vacancy shall be filled by election by the legislative authority for the unexpired term. If the legislative authority fails within thirty days to fill such vacancy, the mayor shall fill it by appointment except that, when the vacancy occurs because of operation of section 733.08 or 733.25 of the Revised Code, the successor shall hold office only for the period the president of the legislative authority holds the office of mayor."
Mr. William J. Brown, attorney general, Mr. Joel S. Taylor and Ms. Doreen C. Johnson, for relator.
Messrs. McKee, Wistner MacGillivray, Mr. Robert N. Wistner and Mr. H. Lloyd Cornelius, for respondent.
Relator's reliance on State, ex rel. Devine, v. Hoermle (1959), 168 Ohio St. 461, is misplaced due to the factual differences between that case and the present action. In Hoermle, supra, the charter granted city council the unrestricted power to fill council vacancies. There was no time limitation placed on council's power. In this case, however, the Wooster charter grants the power for city council to act on the vacancy only within 30 days of the occurrence of the vacancy. After 30 days, R.C. 731.43 is made applicable by the terms of Section 1.04 of the charter.
Therefore, we are of the opinion that the mayor acted lawfully in appointing respondent to the vacant position in city council.
Accordingly, respondent's motion for judgment on the pleadings is granted and the writ of quo warranto is denied.
Writ denied.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.