State ex rel. Marshall v. Keller

Decision Date19 April 1967
Docket NumberNo. 40327,40327
Citation226 N.E.2d 743,10 Ohio St.2d 85
Parties, 39 O.O.2d 90 The STATE ex rel. MARSHALL, Appellee, v. KELLER, Admr., Bureau of Workmen's Compensation et al., Appellants.
CourtOhio Supreme Court

Syllabus by the Court

Where the holder of a commission from the Governor appointing him to a public office authorized to be filled in that manner does all things formally required of him to be done in order to qualify for the office, including taking the oath, takes actual possession of the office and performs the duties thereof, and is accepted and recognized as such officer by his associates and employees as well as by those submitting to or invoking his authority, such appointee is at least a de facto officer during the period of nonaction on, and before rejection of, his appointment by the Senate, and his acts during that period are not invalid by reason of such nonaction of the Senate.

The facts are stated in the opinion.

Gus Tarian, Alliance, for appellee.

William B. Saxbe, Atty. Gen., Donald M. Colasurd and William M. Culbert, Columbus, for appellants.

SCHNEIDER, Judge.

Appellee sued for a writ of mandamus to require the 'respondent, the Industrial Commission, to vacate and set aside its orders, made February 25, 1965, and May 6, 1965, and to conform with the law and evidence and allow his application for compensation, and for an order for the payment of benefits * * *.' No specific relief is sought against the Administrator of the Bureau of Workmen's Compensation.

Appellee claims disability as a result of silicosis attributable to his occupation. The administrator denied an application to reopen appellee's previously disallowed claim for benefits. The Canton Regional Board of Review reversed, finding total disability from silicosis contracted during the course of appellee's employment.

The order of February 25, 1965, adopted pursuant to a hearing held the same day, appears on its face to vacate the finding and order of the Board of Review on the ground of failure of proof and to be the action of M. Holland Krise and Joseph A. Cipollone as members of the Indistrial Commission both of whom sat at the hearing.

The order of May 6, 1965, overruling appellee's motion for reconsideration of the decision of February 25, 1965, appears on its face to be the action of members M. Holland Krise and Richard W. Tobin and affirms the 'finding and order * * * dated February 25, 1965.'

The record in this appeal is comprised of the pleadings and a journal entry in the trial court reflecting a stipulation of the parties: (1) That the formal record of the bureau and the commission in appellee's claim be made a part of the record and considered as evidence in this case; and (2) '(t)hat Joseph A. Cipollone * * * was appointed a member of the Industrial Commission of Ohio January 27, 1965 by Governor James A. Rhodes * * *; that said appointee Joseph A. Cipollone took office February 1, 1965; and that the Senate refused to advise and consent to said appointment, Wednesday, March 3, 1965.' (Emphasis supplied.) The status of Krise and Tobin acting as members of the Industrial Commission is not challenged.

The judgment of the Court of Appeals is dated April 12, 1966, which was nne months after its decision in State ex rel. Brothers v. Zellar, 3 Ohio App.2d 43, 209 N.E.2d 460, and prior to the announcement of our reversal in that case on July 13, 1966 (7 Ohio St.2d 109, 218 N.E.2d 729) but no reference was made to the Brothers case. However, by similar reasoning, the Court of Appeals determined that Cipollone lacked any authority 'to assume or exercise the office as a member of the Industrial Commission,' and 'that the order of February 25, 1965, was the order of a single member of the commission and, therefore, invalid.' Accordingly, the writ of mandamus was allowed as prayed for.

A majority of this court adopted a rule in Brothers, supra (7 Ohio St.2d 109, 218 N.E.2d 729), which if required to be applied here would hold Cipollone to be an officer de jure. On the other hand, the reasoning of the minority in that case probably would lead to the conclusion that Cipollone was never more than a stranger to the Industrial Commission. However, the question presented by Brothers, i. e., whether the claimant to an office as a holdover is entitled to the compensation attributable to that office where another claims the same office for the same period of time under color of a gubernatorial appointment without Senate action thereon, is substantially at variance with the proposition which confronts us here.

In view of the precise issue in this case, the majority of the court is of the opinion that the rule of law expressed in the syllabus should have governed this case in the Court of Appeals.

As early as 1848, in the case of State ex rel. Newman v. Jacobs, 17 Ohio 143, this court recognized the doctrine that one who has the reputation of being the officer he assumes to be is a de facto officer, although he might not be a good officer in point of law. Elaboration upon that doctrine was announced in Ex parte Strang, 21 Ohio St. 610, paragraph two of the syllabus of which reads:

'2. To constitute an officer de facto of a legally existing office it is not necessary that he should derive his appointment from one competent to invest him with good title to the office. It is sufficient if he derives his appointment from one having colorable authority to appoint * * *.'

Through the years, further delineation was developed, which Judge Sohngen summarized in State ex rel. Witten v. Ferguson, Aud., 148 Ohio St. 702, at page 710, 76 N.E.2d 886, at page 891:

'Thus, where an officer holds the office and performs the duties thereof with the acquiescence of the public authorities and the public and has the reputation of being the officer he assumes to be and is dealt with as such, he is, in the eyes of the law, a de factor, officer.' (Emphasis supplied.)

And, '* * * (t)he law validates the acts of de facto officers as to the public and third persons on the ground that, although not officers de jure, they are, in virtue of the particular circumstances, officers in fact whose acts public policy requires should be considered valid. * * *' State ex rel. Paul v. Russell, 162 Ohio St. 254, 257, 122 N.E.2d 780, 782.

In accord are State ex rel. Wescott v. Ring, 126 Ohio St. 203, 184 N.E. 757; Greenlee, Clerk, v. Cole, 113 Ohio St. 585, 149 N.E. 711; Stiess v. State, 103 Ohio St. 33, 132 N.E. 85; State v. Gardner, 54 Ohio St. 24, 42 N.E. 999, 31 L.R.A. 660; State ex rel. Herron v. Smith, 44 Ohio St. 348, 7 N.E. 447, 12 N.E. 829; Smith v. Lynch, Treas., 29 Ohio St. 261; and 44 Ohio Jurisprudence 2d 699 et seq., Section 198 et seq.

Under the color of his commission from the Governor, Cipollone took possession of the office of member of...

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5 cases
  • State v. Menzies, 880161
    • United States
    • Utah Supreme Court
    • 11 Marzo 1992
    ...546, 539 P.2d 1, 12 (1975) (upheld action of appeals panel though some of panel members' terms had expired); Marshall v. Keller, 10 Ohio St.2d 85, 226 N.E.2d 743, 745 (1967) (upheld actions of industrial commission though some members ineligible); People v. Jackson, 163 A.D.2d 489, 558 N.Y.......
  • Vance v. Fordham
    • United States
    • Utah Supreme Court
    • 22 Agosto 1983
    ...245 La. 1, 156 So.2d 457 (1963), appeal dismissed, 377 U.S. 128, 84 S.Ct. 1180, 12 L.Ed.2d 185 (1964); State ex rel. Marshall v. Keller, 10 Ohio St.2d 85, 226 N.E.2d 743 (1967) (adjudication by state industrial commission); United States v. Groupp, 333 F.Supp. 242 (D.Me.1971) (draft board),......
  • State ex rel. Marshall v. Keller
    • United States
    • Ohio Supreme Court
    • 17 Julio 1968
    ...silicosis contracted in the course of and arising out of his employment. An earlier appeal to this court in this case appears in 10 Ohio St.2d 85, 226 N.E.2d 743, wherein this court reversed the judgment of the Court of Appeals which had vacated the order of the commission on the ground tha......
  • Karen Huffman v. Ronald C. Huffman
    • United States
    • Ohio Court of Appeals
    • 5 Noviembre 2002
    ...with all the power and authority of a judge appointed in accordance with the lawful authority of R.C. 2701.10. Williams; Stiess; Keller, supra. Defendant is estopped from raising his untimely because he waited until he suffered adverse judgments to challenge the retired judge's authority in......
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