Babyak v. Alten

• Citation: 106 Ohio App. 191,154 N.E.2d 14
• Parties: , 6 O.O.2d 450 BABYAK et al., Appellees, v. ALTEN, Bldg. Insp., et al., Appellants; Gates, Mayor et al., Appellees. BABYAK et al., Appellees, v. ALTEN, Bldg. Insp., et al., Appellees; Lorain Telephone Co., Appellant.
• Decision Date: 30 April 1958
• Court: United States Court of Appeals (Ohio)

Page 191

106 Ohio App. 191

154 N.E.2d 14, 6 O.O.2d 450

BABYAK et al., Appellees, v. ALTEN, Bldg. Insp., et al., Appellants;

Gates, Mayor et al., Appellees.

BABYAK et al., Appellees, v. ALTEN, Bldg. Insp., et al., Appellees;

Lorain Telephone Co., Appellant.

Court of Appeals of Ohio, Lorain County.

April 30, 1958.

Syllabus by the Court.

1. Under the provisions of Section 733.24, Revised Code, the mayor of a village, as president of the legislative authority, is given the power to vote, in case of a tie, on either a resolution or an ordinance.

2. The legal effect of a refusal to vote by a member of the legislative authority of a village is an acquiescence in the action taken by the majority of those who do vote.

Virgil C. Burgett, Lorain, and Robert Jenson, Avon Lake, for appellees Harry Babyak and Dolores Babyak.

A. H. West, Elyria, for appellants in case No. 1409 and appellees Stephen Alten, Building Inspector, and village of Avon in case No. 1410.

Dan K. Cook, Lorain, for appellee Lorain Tel. Co. in case No. 1409 and appellant in case No. 1410.

HUNSICKER, Presiding Judge.

There are presented to this court two appeals on questions of law and fact. The cases arise out of one trial held in the Common Pleas Court of Lorain County, Ohio.

Harry Babyak and Dolores Babyak, husband and wife, as real property owners, and hence taxpayers of the village of Avon, Lorain County, Ohio, brought an action to enjoin the mayor and the building inspector of the village from issuing a building permit 'for the construction of a telephone exchange building in any class 'B' residence district.'

The Lorain Telephone Company, upon its request, was made a party to the action. It is the appellant in case No. 1410, which case is considered along with case No. 1409. Case No. 1409 is the appeal herein by the village of Avon and the building inspector of such village.

These appeals are from a decision granting the injunction, and concern the validity of ordinance No. 475, which sought to amend the original village zoning ordinance, known as ordinance No. 301.

On August 14, 1957, at a regular meeting of the village council, all six members thereof were present. Ordinance No. 475 was submitted for its third and final reading. This ordinance, if properly enacted, would permit the Lorain Telephone Company to erect a telephone exchange building in a former 'class B' residence district.

Ordinance No. 475 was given its final reading; and thereafter the following action, as shown by the minutes of that meeting, took place with respect to this ordinance:

'A motion was offered by Mr. Wagar and seconded by Mr. Tomlin to adopt ordinance 475 as read. The vote was: Mr. Cosner, not voting; Mr. Fitch, no; Mr. Lanzendorfer, aye; Mr. Pickering, no; Mr. Tomlin, aye; and Mr. Wagar, aye. Mayor Gates referred the question as to the voting of council to Solicitor West. Mr. West held up his final decision until he checked further on the matter.

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'Solicitor West said his opinion was that ordinance 475 had passed as majority voting were in favor of it. He said it would take 30 days, however, for final passage and he would make an additional case study of the matter and report at the next meeting.'

The minutes of the next meeting of council, held on September 11, 1957, show that the following action took place, with reference to ordinance No. 475:

'Mayor Gates announced that Solicitor West's opinion was that the voting on ordinance No. 475 at the August 14, 1957, meeting had resulted in a tie vote. The mayor then added that he would exercise his right to vote and voted aye. Mayor Gates then declared ordinance No. 475 adopted.'

There is no serious challenge to any other procedural matters concerning the action taken with respect to this ordinance. The question before this court is: Was ordinance No. 475 of the village of Avon lawfully adopted?

Section 731.17, Revised Code, in the part pertinent to this inquiry says 'No ordinance shall be passed without the concurrence of a majority of all members elected to the legislative authority.'

Former General Code Section 4224, as to this portion of the statute, on 'ordinances and resolutions; how adopted,' said:

'No ordinance shall be passed by council without the concurrence of a majority of all members elected thereto.'

We thus see that a change in the wording of the statute has substituted the phrase 'legislative authority' for the word 'thereto.' The phrase 'legislative authority' is also found in Section 733.24, Revised Code, which says:

'The mayor of a village shall be elected for a term of two years, commencing on the first day of January next after his election. He shall be an elector of the village. Such mayor shall be the chief conservator of the peace therein and shall have the powers and duties provided by law. He shall be the president of the legislative authority and shall preside at all regular and special meetings thereof, but shall have no vote except in case of a tie.'

This same language, with respect to a vote in case of a tie, is found in the statute concerning the powers of the president of council of a city. Section 733.09, Revised Code.

This section (Section 733.24, Revised Code) designates the mayor as president of the legislative authority. He is elected to that position as a part of the duties which devolve upon the office of mayor, but the designation of president of the legislative authority is specific. He is a part of the legislative authority as definitely as a member of council, but with a provision restricting his vote.

His vote as a member of such legislative authority can only be exercised in case of a tie. No distinction is provided by statute as to what kind of legislative action may be voted on in case of a tie, so we must conclude that it means any tie, that is, a tie vote with respect to a resolution or an ordinance. It makes no difference what the nature of the tie is: a permanent legislative matter or an organizational matter. State ex rel. Roberts, v. Snyder, 149 Ohio St. 333, 336, 78 N.E.2d 716. See also 43 A.L.R.2d 733 et seq.

Does the fact that the mayor, as president of the legislative authority, voted to break the tie at the next succeeding council meeting, after the vote of the council members, affect the validity of this ordinance No. 475?

It is to be noted that, although the mayor, as president of council in the instant case, did not make a formal pronouncement of his vote, he did state that the ordinance had passed, and he did affix his signature to the ordinance as adopted on August 14, 1957. See Small v. Orne, 79 Me. 78, 8 A. 152.

No attempt was made by the members of council to change the vote of August 14, 1957. No attempt was made, at any time, to repeal, rescind or change the action taken at that time. There was a delay of some weeks before the mayor announced formally his vote, pending a legal opinion by the village solicitor on the situation that then confronted the legislative authority.

We find no reported cases covering the situation where there was a delay in voting, but we are of the opinion that the fact that a delay, in voting, by the mayor, as president of council, pending a clarification of the legal position arising by reason of a nonvoting member of council, there being no intervening changes in the status of the legislation or of the rights of other persons, did not make such vote of the mayor ineffective. The delay was not a captious or frivolous matter, and it was not of unreasonable duration under the conditions which arose, but the delay occurred by reason of circumstances arising out of the situation itself.

This delay, under the circumstances herein, did not invalidate or make ineffective the vote of the mayor to break any tie which might have existed. The fact that the mayor signed the ordinance, as passed at the August 14, 1957, meeting, although not a vote to break a tie, was an indication of his vote in the affirmative for such legislation.

The mayor, of course, did formally declare at the meeting of September 11, 1957 (the next meeting of the village council, subsequent to the August 14, 1957, meeting), that he cast his vote for the measure, thereby breaking a tie, if the vote of August 14, 1957, did, in fact, result in a tie. The ordinance was thereafter posted, as required by law (Section 731.25, Revised Code). The ordinance had also been posted after the vote taken on the ordinance on August 14, 1957, thereby giving notice of its enactment.

There is no question raised here...