Opinion
No. 33589
Decided March 31, 1954.
Clerk of Court — Vacancy in office — Appointment by county commissioners for period of vacancy — Section 2870, General Code — Appointment for interim period less than period of vacancy unauthorized, when.
1. Where a vacancy occurs in the office of the Clerk of the Court of Common Pleas of any county, the Board of County Commissioners of such county shall, upon notice of such vacancy given by the county auditor, appoint a clerk pro tempore who, upon qualification, shall become the clerk for the period of the vacancy.
2. Upon a vacancy occurring in the office of the Clerk of the Court of Common Pleas of a county because of the death of the duly elected incumbent, the Board of County Commissioners of that county has authority to fill the vacancy but has no authority to appoint a clerk for an interim period less than the period of such vacancy.
IN QUO WARRANTO.
Charles E. Christler was re-elected to the office of Clerk of the Court of Common Pleas of Auglaize County at the November election 1952 for a term of four years and entered upon the duties of his office on January 2, 1953. On May 7, 1953, Christler died and a vacancy in that office thereby resulted.
On May 8, 1953, the Board of County Commissioners of Auglaize County met in special session and adopted a resolution stating:
"Whereas, the board of commissioners were this day notified by the county auditor of the death of Charles E. Christler, thus creating a vacancy in the clerk of court's office; and
"Whereas, according to Section 2870, General Code of Ohio, the board of commissioners have [has] 10 days time after receiving the above notice to make an appointment pro tempore; thus created by the death of said Charles Christler; therefore be it
"Resolved, that the board this day appoints Elanore [ sic] Tobias, a deputy now working in the said clerk's office; to act as temporary clerk; until the board of commissioners make[s] a permanent appointment pro tempore; and be it further
"Resolved, that said Elanore Tobias be notified of her appointment of being temporary clerk of courts and that she immediately secure bond and qualify for same."
Eleanor Tobias, relator herein, then made application for her bond for such office and the oath of office was administered to her by the prosecuting attorney. She was not advised that it would be necessary for her to obtain a commission from the Secretary of State for the office to which she was appointed.
On the same day, the relator opened the office of the clerk, appointed her deputies and assumed to act as the clerk. On May 11, 1953, a surety bond was signed by the relator as principal. Attached to the bond was an oath of office which was executed by relator before George M. Monahan, a notary public who was also the prosecuting attorney.
On May 12, 1953, the county commissioners of Auglaize county approved the bond, affixed their signatures thereto and filed it with the county treasurer.
The pertinent part of the condition of the bond recites:
"Whereas, the said principal [Eleanor L. Tobias] has been elected or appointed to (or holds by operation of law) the office of clerk of courts, Auglaize county, Ohio, for a term beginning on May 8, 1953 and ending on December 31, 1956 * * *."
This bond provides further that "the within bond and the surety thereon are hereby approved this 12 day of May 1953." This approval was signed by each of the three commissioners.
On May 15, 1953, the commissioners at a special session adopted a resolution containing the same recitals as in the former resolution as to the vacancy in the office of clerk of court and reciting:
"* * * that the board of commissioners of Auglaize county, Ohio, does hereby accept the application of Adrian Seitz of Wapakoneta, Ohio, and does hereby appoint him clerk of court for said Auglaize county, Ohio, pro tempore — to fill the unexpired term of the said Charles E. Christler, deceased; and be it further
"Resolved, that the said Adrian Seitz be notified of said appointment and that he qualify and assume said office forthwith."
Seitz qualified and filed his bond, the condition of which recites that he had been elected or appointed to the office of Clerk of the Court of Common Pleas of Auglaize County for the term beginning May 15, 1953, and ending December 31, 1956, which bond was approved on May 19, 1953, by the county commissioners.
However, although the bonds filed by the relator and Seitz and resolutions of the county commissioners variously refer to a term "ending on December 31, 1956," and to "the unexpired term of the said Charles E. Christler," the period of vacancy continued only to the date of the next general election on November 2, 1954. See Section 10, General Code.
A copy of the Seitz resolution was presented to him and he went to the office of Secretary of State to obtain a commission from the Governor for the office of clerk of court.
On May 16, 1953, relator requested the clerk of the board of commissioners to furnish her a copy of the resolution which appointed her temporary clerk, and on that date she learned of the action of the board appointing Seitz as clerk. On May 18, 1953, relator applied to the Secretary of State for a commission as Clerk of the Court of Common Pleas of Auglaize County but the same was refused.
On May 19, 1953, Seitz was issued a commission by the Secretary of State.
On May 19, 1953, the county commissioners again met in special session and physically changed their resolution of May 8, 1953, by interlineation, so as to provide for the appointment of relator to act as temporary clerk "of the automobile title department." The commissioners thereupon advised the relator that she was that day removed from the payroll of the clerk of court, and that possession of the office should be surrendered to Seitz.
On May 28, 1953, this action in quo warranto was instituted in this court by the relator to oust Seitz from the office of clerk of court of Auglaize county and to induct her into that office. The issues were made by the petition of the relator, answer of the respondent, Seitz, and a reply. The facts are not in dispute.
Respondent in his answer alleges, as a defense, that he was duly appointed as clerk of court pro tempore by resolution of the board of commissioners under date of May 15, 1953; that he gave bond and was issued a commission by the Secretary of State for that office; that the relator from and after May 15, 1953, was not qualified to act as clerk of court for the reason that her bond was cancelled as of that date; and that her appointment was a temporary one until the commissioners should make a permanent appointment.
Messrs. Lusk Shaw, for relator.
Mr. George M. Monahan, prosecuting attorney, for respondent.
The question involved is: Upon a vacancy occurring in the office of Clerk of the Court of Common Pleas of a county in this state because of the death of the duly elected incumbent, does the Board of County Commissioners of such county have authority to appoint a temporary clerk for an interim period less than the period of such vacancy?
The answer depends upon the proper construction of Section 2870, General Code, providing for the filling of vacancies in that office. It reads as follows:
"When a vacancy occurs in the office of Clerk of the Court of Common Pleas, the county commissioners shall appoint a clerk pro tempore, who shall give bond and take the oath of office prescribed for the clerk-elect. If the commissioners are not in session when such vacancy occurs, the county auditor shall forthwith give written notice thereof to each of them, and thereupon they shall meet and make the appointment. If the commissioners fail to make an appointment for ten days after they severally have had such notice of vacancy, the appointment shall be made by the county auditor."
The authority of the commissioners under this statute is special and limited. On this subject, 11 Ohio Jurisprudence, 333, Section 86, says:
"Statutes which confer authority upon county commissioners are delegations of power by the state, which reserves to itself all power not thus delegated, and are, therefore, to be strictly construed in favor of the state and against the board. Moreover, in the exercise of their powers, county commissioners must follow the terms of the law and proceed in the manner prescribed thereby. When acting under a special power, they must act strictly on the conditions under which it is given." See, also, State, ex rel. Shriver, v. Board of Commrs. of Belmont County, 148 Ohio St. 277, 74 N.E. (2), 248.
The applicable statute above quoted required prompt action on the part of the board. If the board had failed to act within ten days after notification of the vacancy, the auditor would have been required to act instead of the board and make the appointment of a clerk pro tempore.
In construing the term, "vacancy," it has been held that, "where the time of the commencement and termination of an office, as well as its duration, are definitely fixed by constitutional or statutory enactment, and provision is made for filling vacancies therein by appointment or election, but without any provision as to the duration or authority of a person so appointed or elected, such person is entitled to serve for the remainder of the unexpired term." State, ex rel. Irvine, v. Brooks, Gov., 14 Wyo. 393, 84 P. 488, 6 L.R.A. (N.S.), 750; State, ex rel. Fish, v. Howell, Secy. of State, 59 Wn. 492, 110 P. 386, 50 L.R.A. (N.S.), 336; 43 American Jurisprudence, 17, Section 159.
There is no provision in our statute for an interim appointment. Having made the appointment which filled the vacancy, the jurisdiction of the board was exhausted until another vacancy occurred. The board of commissioners could not appoint the relator as deputy clerk as it attempted to do. Under the statute, deputy clerks are appointed by the clerk.
The temporary failure of the relator to secure her commission did not result in her forfeiture of the office. In this connection it is stated in 32 Ohio Jurisprudence, 926, Section 68, as follows:
"It is not the commission, in pursuance of the statute, which confers the right to hold office upon the officer. That right is derived from the election or appointment, of which the commission is only evidence, without which, however, the officer cannot proceed to act officially."
We are of the opinion that the appointment of the relator was good to fill the period of vacancy, even though such period was not designated. The statute authorizes such an appointment by the use of the term, "clerk pro tempore." The appointing resolution of the board of commissioners was specifically adopted pursuant to the provision of Section 2870, General Code, providing for the making of an appointment pro tempore, and, although the resolution appointed the relator as "temporary clerk," the bond given by her and approved by the commissioners recites that she had been appointed "clerk of courts, Auglaize county, Ohio, beginning on May 8, 1953 and ending on December 31, 1956." We are of the opinion that the board of commissioners by its action appointed the relator for the period of vacancy and not a shorter interim period.
Relator is entitled to the relief prayed for.
Judgment of ouster.
WEYGANDT, C.J., MIDDLETON, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.
In order to prevail, relator must establish that she was appointed "clerk pro tempore" by the county commissioners pursuant to the provisions of Section 2870, General Code, providing in part that the commissioners "shall meet and make" such an appointment within ten days after notice of the vacancy.
Whether the commissioners did so appoint relator must necessarily depend upon the terms of their resolution of May 8, 1953.
The words of that resolution make it absolutely clear that the commissioners did not intend the appointment "to act as temporary clerk," or the "appointment of being temporary clerk," as an appointment of "a clerk pro tempore" pursuant to Section 2870, General Code. In effect, those words of that resolution clearly state that relator is appointed "to act as temporary clerk" and not to be "a clerk pro tempore." The commissioners could hardly have more clearly expressed their intention that that resolution should not operate as an appointment of a clerk pro tempore.
It may be that the commissioners had no authority to appoint relator "to act as temporary clerk." However, it certainly is not reasonable to conclude that their resolution to so appoint relator amounted to something far more important, i. e., the appointment of relator as "clerk pro tempore," especially when they clearly stated in that resolution that it should not operate as an appointment of a clerk pro tempore.