Opinion
No. 30980
Decided April 23, 1947.
Municipal corporations — Vacancy in council — Mayor to appoint upon council's failure to elect within 30 days, when — Section 4236, General Code — Mayor's appointee entitled to office and to maintain quo warranto, when — Section 12307, General Code.
1. Where the charter of a city, adopted under authority of the Ohio Constitution, provides no method by which a vacancy in its council may be filled and has a provision that "in the absence of such provisions as to any power, such power shall be exercised in the manner now or hereafter prescribed by the general laws of the state, applicable to municipalities," a vacancy in the city council shall be filled in accordance with Section 4236, General Code, which requires the mayor to fill such a vacancy, if council fails to do so within 30 days.
2. In the case of a vacancy in a city council, to which Section 4286, General Code, applies, and council for any reason does not fill such vacancy within 30 days from the time it occurs, the mayor has a mandatory duty to fill the vacancy by appointment, and if he in the discharge of such duty, without any collusion with the legislative branch of the city, makes an appointment to the vacancy and his appointee qualifies for the office under the terms of the charter, the appointee is legally entitled to the office and has a right under Section 12307, General Code, to have another person busted therefrom who is unlawfully holding the office and exercising its functions.
IN QUO WARRANTO.
This is an action originating in this court.
In 1923 the city of Youngstown, under constitutional authority, adopted a home-rule charter which as amended from time to time by the people of the city is in full force and effect. The charter provides for what is popularly known as a federal plan of government.
Section 4 of the charter provides for a mayor as the chief executive officer of the city. Section 5 reads as follows: "The legislative power of the city, except as reserved to the people by this charter, by means of the initiative and referendum, shall be vested in a council of seven members, elected by wards, one from each ward, and for a term of two years. A councilman shall be an elector of the ward from which he is elected and of not less than twenty-five years of age." Sections 6, 6-1 and 6-1A provide for the election of a president of council who becomes the acting mayor whenever the mayor is absent from the city or unable for any cause to perform his duties and who, in case of the death, resignation or removal of the mayor, becomes the mayor to serve for the unexpired term.
It is stipulated that there is no provision in the charter for the filling of a vacancy in the council for an unexpired term, and that there is no provision giving the president of council a vote under any circumstances upon any matter coming before the council.
Prior to December 31, 1946, N.P. Bernard was the duly elected, qualified and acting councilman from the third ward of the city. At the November 1946 election, Bernard was elected to the General Assembly of Ohio and he, thereafter, submitted his resignation from council, effective as of 12 o'clock midnight, December 31, 1946, thereby creating from such time a vacancy in the third ward seat of council. After Bernard's resignation, there were three Republican members of council and three Democratic members. The mayor was a Democrat and the president of council was a Republican.
By stipulation between the parties it is agreed that in the latter part of November 1946, after Bernard's election to the General Assembly, the three Democratic members began to plan a way of retaining Democratic control over the council seat in question. Inasmuch as the president and the other three members of council were Republicans, if the president of council had a vote on a tie, four votes (a majority) would be assured for a Republican to fill the vacancy.
It is further stipulated that, as a result of their plan, the three Democrats deliberately, willfully and without just cause left the city of Youngstown on or about January 6, 1947, and went to Florida for the purpose of preventing a quorum in council, thereby making it impossible for the council, by reason of a lack of quorum, to elect or attempt to elect any person to the vacancy. The three Democratic members remained out of Ohio and did not return to Youngstown until February 1, 1947, which was more than 30 days after the resignation of Bernard had taken effect.
On February 1, 1947, the mayor of Youngstown appointed relator as councilman from the third ward and notified the six members of council, its clerk and president of the appointment. The relator has done all things required to be done to qualify for the office of councilman. At the regular meeting of council on February 3, the three Republican members and the president refused to recognize relator as a member of council and proceeded to vote for respondent to fill the vacancy.
The three Republican members voted for respondent, the three Democratic members voted "no," and, a tie vote thus resulting, the president of council cast a vote for the election of the respondent, he was declared elected to the council for and from the third ward, and he has since been functioning as councilman.
The petition prays that respondent be ousted from the office as member of council; that he be excluded from the further performance of any duties; and that relator be given possession of the office and be inducted therein.
An answer was filed admitting substantially the allegations of fact in the petition, but denying legal conclusions therein contained.
Mr. Clyde W. Osborne, for relator.
Mr. Robert D. Huxley, for respondent.
There is but one question for the court to decide in this case: Was the relator legally appointed to the office of councilman from the third ward of the city of Youngstown?
His appointment was made by the mayor of that city, under authority of Section 4236, General Code, which reads as follows:
"When the office of councilman becomes vacant, the vacancy shall be filled by election by council for the unexpired term. If council fail within thirty days to fill such vacancy, the mayor shall fill it by appointment." (Italics ours.)
Although it is agreed that the charter of the city of Youngstown does not contain any provision for filling a vacancy in council, the charter does provide that "in the absence of such provisions as to any power, such power shall be exercised in the manner now or hereafter prescribed by the general laws of the state, applicable to municipalities."
It is contended by relator that since the vacancy was not filled by council within 30 days after the vacancy occurred, the mayor's appointment of the relator after such time and his qualifying made him the legally appointed councilman. On the other hand, it is contended by respondent that the willful and deliberate action of the three members of council in preventing council from filling or attempting to fill the vacancy within 30 days after it occurred stayed the running of the 30-day limitation, and that there could be no failure until there had been an effort to perform the duty enjoined by law.
We are not concerned in this case with the strength or weakness of the title of the respondent to the office of councilman and it is not necessary for us to decide whether the president of council had the power to cast a deciding vote for respondent when there was a tie in council in attempting to elect him.
This proceeding was brought under Section 12307, General Code, which reads:
"A person claiming to be entitled to a public office unlawfully held and exercised by another, by himself or an attorney at law, upon giving security for costs, may bring an action therefor."
Under that section, the only thing that can be tried is the title to the office of the one bringing the action and the strength or weakness of the title of the respondent is of no concern. If relator is legally entitled to the office, it logically follows that respondent is unlawfully holding it. Relator's title to the office of councilman therefore is dependent on the legality of his own appointment and any action with reference to the election of respondent has no bearing in the consideration of this case.
There was a vacancy in the office of councilman, at midnight on December 31, 1946. On February 1, 1947, no election to fill that vacancy had been made by council. Section 4236, General Code, provides that if council fail within 30 days to fill such vacancy the mayor shall fill it by appointment. It is true that the reason no effort was made by council to act within 30 days was the willful and deliberate leaving of the city by enough of the councilmen to prevent a quorum during the entire time within which council might have filled the vacancy, but it has not been established that the mayor was in any way involved in this dereliction of duty. At the end of 30 days he, as the chief executive of the city with no function in the legislative process, had the problem of a vacancy which council had not filled within the time prescribed by law.
According to Webster's New International Dictionary (2 Ed.), the word "failure" means "omission to perform, esp. an appointed function; a default; as, failure of justice; failure to keep a promise." Certainly council had omitted to perform its appointed function, even though that omission was willfully caused by half of its members. The mayor, as the executive officer with the mandatory duty under the statute to appoint when council failed to fill the vacancy, had, in the absence of any connivance on his part, the undoubted right to fill it.
In the case of McCullers v. Board of Commrs. of Wake County, 158 N.C. 75, 73 S.E. 816, Ann. Cas. 1913D, 507, the Supreme Court of North Carolina, in interpreting a statute which provided that if the county board of health should fail to elect a superintendent of health within two calendar months, the secretary of the state board should appoint, said:
"We think the true intent and meaning of the statute is to give such appointment to the state secretary when the board of health for any reason permits the office to remain vacant for two calendar months from the date fixed by the statute * * *.
"The public interest requires that this particular office shall have an incumbent to discharge its duties and the evident intention of the General Assembly was to prevent the office being unfilled for a longer period than the time named."
In Mack v. Polonko, 118 N.J. Law, 133, 191 A. 844, a case in some ways similar to the one before us, the law provided that council should elect a president at its annual meeting and in case of failure to do so the mayor should appoint the president.
The syllabus in that case is:
"The organization meeting of a borough council having broken up without adjournment to a day certain, and said council having failed at such meeting to elect a president, by Section 24 of the Borough Act its power so to elect lapsed, and the mayor properly made the appointment of a president."
As suggested by counsel for relator, the case of Wilson v. Cleveland, 157 Mich. 510, 122 N.W. 284, cited in his brief, is not in point on the question before us as that case merely denies a right to mandamus members of a village council to attend meetings. Furthermore, headnote three, as quoted in relator's brief, is from the report in the North Western Reporter and does not appear in the official report of the case.
The case before us is not an effort to require the attendance of recalcitrant members of council at meetings.
The Youngstown charter contains no provision to enforce the attendance of members of council at meetings. However, there is a rule of council providing that regular meetings of city council shall be held in the council chamber in the city on Monday evening of every week at 7:30 p. m. The three Republican members of council met on the Monday nights in January, but under the rules of council four members constituted a quorum and the Republican members could do nothing but adjourn. No legal effort was or could be made to enforce the attendance of members absent from the state.
Counsel for respondent cites the case of Scott v. Suitor, 103 Vt. 175, 152 A. 801, decided by the Supreme Court of Vermont. The charter under consideration in that case provided that the mayor should nominate an overseer of the poor, and that aldermen should confirm the nomination, "but in the event of the failure to fill any office by the above method, the mayor shall have the right, after May 1, to appoint someone to said office, and said appointment shall be valid without being confirmed by the board of aldermen." It was held there that the term, "failure," as used in the charter, presupposed fruitless efforts and demanded a bona fide and seasonable attempt to select an overseer by the joint action provided for. However, the words in that charter were, but in the event of the failure to fill any office by the above method, the mayor shall have the right * * * to appoint someone to said office * * *."
Section 4236, General Code, provides that, "if council fail within 30 days to fill such vacancy, the mayor shall fill it by appointment."
We hold that the plain meaning of that language is that the mayor has a mandatory duty to fill the vacancy if council has failed for any reason to do so within 30 days from the time the vacancy occurred; and that since the mayor performed the duty which the law enjoined upon him, and his appointee duly qualified, the relator is legally entitled to the office of councilman of and from the third ward of Youngstown.
In arriving at the decision we have reached, we do not want it understood that we condone or approve the conduct of the three councilmen who absconded from the* discharge of their legal duties and left the state in order to gain a partisan advantage. Although people imbued with party enthusiasm frequently go a long way to achieve a party advantage, it seems to us that public officials have no moral justification in flouting, defying and holding up to scorn their duties and obligations under the law which they have taken an oath to uphold and support. However, in the present controversy, we cannot remedy this situation; it is a matter for the discretion of the electors of Youngstown.
The petition of the plaintiff is granted and judgment is entered accordingly.
Judgment of ouster and induction.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN and SOHNGEN, JJ., concur.