State ex rel. Devine v. Hoermle

• Decision Date: 28 January 1959
• Docket Number: No. 35845,35845
• Citation: 7 O.O.2d 284,168 Ohio St. 461,156 N.E.2d 131
• Parties: , 7 O.O.2d 284 The STATE ex rel. DEVINE, Pros. Atty., v. HOERMLE.
• Court: Ohio Supreme Court

Page 461

168 Ohio St. 461

156 N.E.2d 131, 7 O.O.2d 284

The STATE ex rel. DEVINE, Pros. Atty., v. HOERMLE.

No. 35845.

Supreme Court of Ohio.

Jan. 28, 1959.

Syllabus by the Court

1. The portion of Section 731.43, Revised Code, authorizing the mayor of a municipal corporation to fill by appointment a vacancy in the office of a member of the legislative authority of such municipal corporation, conflicts with Section 5 of the Columbus City Charter providing that 'vacancies in council shall be filled by the council for the remainder of the unexpired term.'

2. The facts, that a vacancy occurs in the Columbus city council and that council fails for over 30 days to fill such vacancy, do not authorize the mayor of Columbus to fill such vacancy by appointment.

This action in quo warranto was initiated by the filing of a petition in this court that alleges 'that a vacancy was created in the council of the city of Columbus by the death of * * * W. Wesley Llewelyn on September 12, 1958; that at no time has defendant been appointed by the council of the city * * * or his appointment been authorized by said council but since October 20, 1958, defendant has usurped and unlawfully holds and exercises the office of councilman in said city * * *'; that 'a city charter was adopted * * * by * * * the people of the city of Columbus * * *; and that section 5 thereof reads as follows:

'Vacancies in council shall be filled by the council for the remainder of the unexpired term * * *."

The petition prays 'that * * * defendant be required to answer by what warrant he claims * * * the * * * office of councilman, * * * that he be adjudged not entitled thereto, and that judgment of ouster therefrom be pronounced against him * * *.'

So far as pertinent, respondent's answer reads:

'* * * the Charter of the City of Columbus contains Section 232 which * * * reads * * *:

"All general laws of the state applicable to municipal corporations, now or hereafter enacted, and which are not in conflict with the provisions of this charter, or with ordinances or resolutions hereafter enacted by the city council, shall be applicable to this city * * *.'

'* * * R.C. [s] 731.43 * * * reads as follows:

''When the office of a member of the legislative authority of a municipal corporation becomes vacant, the vacancy shall be filled by election of the legislative authority for the unexpired term. If the legislative authority fails within 30 days to fill such vacancy the mayor shall fill it by appointment.'

'* * * on numerous occasions following the death of * * * Llewelyn the city council of Columbus attempted and failed to fill the vacancy caused by said death and * * * on approximately the 34th day after such vacancy occurred this defendant was duly appointed to fill said vacancy by * * * the * * * mayor of said city * * *.'

The cause is now before this court for final disposition on a demurrer to respondent's answer.

Samuel L. Devine, Prosecuting Attorney, Russell Leach and John W. E. Bowen, Columbus, for relator.

Milton L. Farber, Columbus, for respondent.

TAFT, J.

The adoption of provisions in a city's charter, relative to appointments to fill vacancies in the legislative body of such city, is authorized by the provisions of Sections 3 and 7 of Article XVIII of the Ohio Constitution granting authority to exercise 'all powers of local self-government.' Where such charter provisions specify who shall make such appointments, statutory provisions authorizing an appointment by someone else cannot apply in the absence of their adoption by other provisions of the charter. See State ex rel. Bindas v. Andrish, 165 Ohio St. 441, 136 N.E.2d 43.

It is contended that the part of Section 731.43, Revised Code, empowering the mayor to 'fill * * * by appointment' a vacancy in the legislative authority of a municipal corporation 'if the legislative authority fails within thirty days to fill such vacancy,' can, under the provisions of section 232 of the Columbus charter 'be applicable to' Columbus, because that statutory provision is 'not in conflict with' section 5 of the Columbus charter. Cf. State ex rel. Flask, Jr. v. Collins, 148 Ohio St. 45, 73 N.E.2d 195, involving a charter containing no provisions similar to section 5 of the Columbus charter.

Section 5 of the Columbus charter grants the power to fill vacancies to council and to no one else. Applying the doctrine of expressio unius est exclusio alterius, as we did in State ex rel. Bindas v. Andrish, supra, 165 Ohio St. 441, 136 N.E.2d 43, it is apparent that the charter denies such power to the mayor. It necessarily follows that the statute giving the mayor such power under certain circumstances conflicts with section 5 of the charter.

Also, it is apparent that, if the mayor can, pursuant to the statute, make an appointment, the council may not thereafter fill the vacancy, notwithstanding that section 5 of the charter states that the vacancy 'shall be filled by the council.'

It may be suggested that section 5 should be construed as though it read, the 'vacancies in council shall be filled within a reasonable time by the council'; that 30 days represents more than such a reasonable time; that there is therefore no charter provision for filling the vacancy after a reasonable time; and that hence the second sentence of Section 731.43, Revised Code, authorizing the mayor to fill the vacancy by appointment if the council fails to do so within 30 days, does not conflict with section 5 of the charter.

Such an argument would obviously require a reading into section 5 of the charter of the words 'within a reasonable time.' Even if that should be done, the question would still remain whether the resulting provisions as to the time of acting should be construed as merely directory or whether the council's failure to comply with those time provisions should be construed so as to cut off the appointing power of the council. See 43 American Jurisprudence, 77, Section 259; 50 American Jurisprudence, 46, Section 23.

In Schick v. City of Cincinnati, 116 Ohio St. 16, 155 N.E., 555, paragraph one of the syllabus reads:

'Statutes which relate to the manner or time in which power or jurisdiction vested in a public officer is to be exercised, and not to the limits of the power or jurisdiction itself, may be construed to be directory, unless accompanied by negative words importing that the act required shall not be done in any other manner or time than that designated.' (Emphasis added.)

The extent to which this court has gone in construing provisions for a time for the performance of an official duty as directory rather than mandatory is indicated by State ex rel. Jones v. Farrar, 146 Ohio St. 467, 66 N.E.2d 531, 532, where paragraph four of the syllabus reads:

'Where a statute fixes the time within which an official oath must be taken or an official bond given, the provision respecting the time is directory, although the statute declares that the office is forfeited by default; and unless the statute expressly declares that failure to take the oath or to give the bond by the time prescribed ipso facto vacates the office, the oath may be taken and the bond given at any time before the term begins.'

In the instant case, unlike in those cases, a time limitation has not even been specified but must be implied. Hence, it would seem clear that, even if we can imply a duty of council to act within a reasonable time, such duty would represent a directory and not a mandatory duty. See also State ex rel. Kay v. Lausche, Gov., 161 Ohio St. 168, 118 N.E.2d 414; and State ex rel. Armstrong v. Davey, Gov., 130 Ohio St. 160, 198 N.E. 180.

Section 2 of Article XVII of our Constitution provides in effect that 'any vacancy which may occur in' the office of Attorney General 'shall be filled by appointment by the governor.' As relator suggests, certainly, a statute, granting authority to some other officer to fill a vacancy in the office of Attorney General by appointment after the Governor's failure for 30 days to do so, would conflict with that constitutional provision.

As respondent argues, there are many reasons why there should be some legal method of filling a vacancy in the Columbus city council in an instance where the council is unable to agree on an appointment to fill such a vacancy within a reasonable time. However, it is necessary to amend the Columbus charter in order to provide such a legal method. This court has no power or authority to do that.

It follows that the demurrer to the answer must be sustained, and, since the parties have agreed that the ruling on that demurrer will be dispositive of the cause, the writ prayed for is allowed.

Demurrer to answer...