Syllabus by the Court.
1.
Under the provisions of Section 4210 and 4272, General Code
a duly elected president of a city council is empowered to
vote in case of any tie.
2. Such
authority includes the right to vote in the event of a tie in
the election of a clerk of the council.
In
mandamus.
The
relator, James Roberts, has invoked the original jurisdiction
of this court for the purpose of obtaining a writ of mandamus
to require the respondent, the auditor of the city of Canton
Ohio, to issue a warrant for the payment of salary due the
relator for services rendered by him in the office of clerk
of the council of the city.
In his
answer the respondent denies that the relator was elected to
the office.
The
case is submitted on the pleadings and an agreed statement of
facts which reads as follows:
'The
relator and defendant agree and stipulate that the following
is a true statement of all facts relating to the issues in
the above entitled cause:
'The
city of Canton is organized under and governed by the general
municipal code in the state of Ohio, not having adopted a
charter. The council of said city consists of fourteen
members, eleven of said members being elected by wards and
three members being elected at large. Meetings of council are
presided over by the president of council, who is also
elected at large.
'On
January 1, 1948, pursuant to the provisions of Section 4210
Ohio General Code, the council of said
city met for the purposes of organization. The president of
council presided at said meeting.
'After
the election of a clerk pro tem, the next procedure of
business was the adoption of rules. Rule 30 of the said rules
so adopted reads as follows:
"30.
Officers--Election of.
"The
vice-president or president pro tem, and clerk, shall be
elected by nomination only, and no one shall be considered a
candidate for either office until he has been nominated, and
when candidates for such office are voted for, a secret
ballot shall be taken unless council by a majority vote may
otherwise direct, and no one shall be declared elected unless
he receives a majority vote of members of council.'
'The
next order of business was the election of a clerk of
council. Two candidates were placed in nomination, the
relator, James Roberts, and one Jerry P. Hontas. Upon a
secret ballot, seven votes were cast for each nominee. The
clerk pro tem announced a tie vote. Thereupon, the president
of council declared that he would make the casting vote. Upon
the announcement of this intention, the solicitor, taking the
floor of council, advised the president of council that,
under rule 30 of the rules adopted by council, the president
was not entitled to make a casting vote on such election. The
president thereupon ruled that he was entitled to such a
vote, and then cast his vote in favor of James Roberts, the
relator, and formally declared him elected. No member of
council appealed from this decision of the chair. The relator
assumed
the duties of the office immediately and furnished bond, as
provided by law, and has continued in the performance of said
duties ever since.
'At
the first regular meeting of council, on January 5, 1948, the
solicitor submitted a written opinion reiterating his verbal
opinion given from the floor of council in the meeting of
January 1, 1948, a copy of which was sent
to the city auditor. On January 14, 1948, the city auditor,
T. Frank Snyder, respondent herein, refused to approve for
payment a pay roll of council submitted to him, for the
stated reason that such pay roll bore the name of the
relator. This refusal to approve the pay roll was written
across the face of the pay roll by the auditor, and the pay
roll, together with a formal letter of rejection setting
forth the foregoing reason, was transmitted back to the
relator. As a result of this action by the respondent, the
relator was not paid any salary at the regular time for such
payment on January 15, 1948, and has not been paid since.
'The
established salary of the clerk of council, fixed by
ordinance, is $2,500 per year, payable in semimonthly...
