12 Ohio C.C. 235 | Oh. Circ. Ct. | 1894
This action in quo warranto is brought for the purpose of obtaining a judgment ousting the respondent from exercising the office of councilman of the village of Wauseon,
By the pleadings and proof it appears that in June, 1892, Wm, C. Barnes held said office of councilman, having been elected thereto for the term of two years in the spring of 1891, and having duly qualified. On June 20th, 1892, it was shown to the mayor and council of the village thatWm. Barnes had removed from the village, and the mayor thereupon declared said office vacant, and, with the advice and consent, of the council, duly expressed by a yea and nay vote, duly rendered, duly appointed John S. Dimke to fill said vacancy. .On July 18, 1892, Dimke having refused to accept said appointment or to qualify, the mayor appointed Myron T. Palmer, the relator, to fill the vacancy.
Mr. Palmer being present at the time, was sworn in and took his seat as councilman.
At the spring election of 1893, the mayor declared a vacancy in said office, and again appointed the relator to fill it, and the relator being present at the time, again took the oath of office, and continued to discharge the duties of councilman.
By reason of some misapprehension or other cause, the names of no candidates for said office were placed on the tickets of either or any political party in the spring of 1894; so, of course, no one was elected thereto.
Thereupon a special meeting of the council was called for April 12, 1894, and at that meeting the mayor and six members of the council, including the relator, were present. At this meeting the mayor declared said office of councilman vacant, “on account of expiration of time of Myron T. Palmer, an acting member’’ as the record recites, and appointed the respondent, Darby, thereto; and on motion then and there made, to confirm said'appointment, three of said council voted yea and three (including Palmer, the relator), voted nay, and the mayor’s name being thereupon called,
On behalf of the respondent it is urged that this court has no jurisdiction of such a case, since by section 1079 Revised Statutes, the council is made “the judge of the election returns and qualifications of its own members.” But we do not regard this exclusive right of the council as extending to a case where the controversy is not simply which of two or more persons was properly elected to fill a conceded vacancy then to be filled by someone, but where the point in dispute is whether .under the law there is any vacancy or office then to be filled by any election or appointment. It would hardly be contended, for instance, that a council could assume that the term of one of its members regularly elected under the law for two years, expired in one, and upon some other person being elected or appointed then to such supposed place, could vote to seat the new claimant in place of the old member, and successfully defend its action, and the old member be concluded by the action of the council under this section.
The principles recognized and enforced in the case of the State ex rel. v. O’Brien, 47 Ohio St.473, (see also 47 Ohio St. 566 and 44 Ohio St. 469,) in our view, forbid the conclusion that section 1679 confers the exclusive, if any, power on the cou cil to adjudge in such a case as is here presented.
If the relator has any right to exercise the powers and perform the duties of the office, it is wholly because he was legally an officer whose rightful incumbency had not terminated when the respondent was appointed, and no action of the council other than by the motion of a member (1684-5) according to the requirements of the statute, could interfere with a tenure positively fixed by law.
Under section 1673, the regular term of councilman is two years. In case of a vacancy in the council, were it not that section 1724 makes special provision applicable only to councilmen, it might well be held that the more general provision of section 1713, in the chapter on “Officers of Cities and Villages,” and which is made applicable “unless otherwise provided in this title, ” would apply; but since section 1724 being thus special, and containing provisions regarding the time for which vacancies in the council may be filled, wholly different from those in section 1713 regarding vacancies in municipal offices generally, we think it ■clear that -notwithstandng the reference to section 1713 in section 1693, these provisions of section 1724 must govern in determining whether the appointment shall be “till the next annual municipal election,’ 'or“for the unexpired term. ” The appointment,therefore, must be for the unexpired term. We think it is not competent for the mayor to fix the term of the appointment otherwise, and his appointment of a ■councilman, when made with the consent of the council, is for the unexpired term of the person who, after being elected and qualified, ceases to be councilman before the expiration ■of the term for which he was elected. And the misapprehension of the true tenure of the appointee, on the part of the mayor, the appointee or others, cannot abridge the term fixed by law for his continuance in office.
Section 1713 also provides that “unless otherwise provided, all municipal officers shall serve until their successors are qualified.”
See section 8 and section 11, Revised Statutes.
Mechem, in his work on Public Offices and Public Officers, section 402, lays down the rule that officers appointed
In State v. McGregor, 44 Ohio St. 630-1, the Supreme-Court held that section 1208, and not section 11, applied to-the filling of vacancies in the office of sheriff or coroner.. And we suppose that in view of the particular provision in sections 1713 and 1724, in connection with the more general provisions of section 8, that if Palmer was legally appointed; and confirmed to fill the unexpired term of Barnes, -which would end in the spring of 1893, he would hold his office-till his successor is elected and qualified.
If, in 1892, Palmer was duly appointed by the mayor with the advice and consent of the council, properly expressed, there has never been a vacancy in the office since which could be legally filled by appointment, and the appointment of 1893, however formal, was of no effect. And if he was not so appointed and confirmed in 1892, he was simply a de facto councilman, at least till the alleged appointment of 1893, and there was, during all that period, a continuous vacancy which might at any time have been filled by appointment, in the spring of 1893, or before or since; or if he was never legally appointed and confirmed, by the appointment of another person, Darby for instance. While regular elections may and are required to be held in anticipation of the expiration of an official term, and appointments to an office originally appointive may be made while the-person holding the office is still serving his term and in anticipation of its regular expiration, yet, neither an election-nor an appointment to fill a casual vacancy can be held or
It becomes, therefore, of the first importance to determine whether, at any time since the vacancy occasioned by Barnes’ removal from the village, Palmer was legally appointed by the mayor, by and with the consent of the council, as required by section 1724. We regard that section as expressing the requirements of law as to the appointment of councilmen to fill vacancies, rather than the more’general sections 1711 and 1713, for the reason that it, 1724, is specially applicable to such officers only. It will be noticed that there is a difference in the wording of the three sections, sections 1711 and 1713 each requiring that the appointment be made “with the advice and consent of the council,” and section 1724 requiring that it be made “and with the consent of the council.” Whether the addition or omission of the word “advice” is of itself of any significance may not be clear, but the iteration or insertion, rather, in section 1724, of the requirement that the council should consent, would seem to indicate that it was intended to make full provision in this section alone for such appointments, and we think that the requirement of section 1711 as to the voting and recording of votes does not apply to this case. There must be, however, a consent to the appointment on the part of the council, and according to the authorities cited by counsel for the respondent, such consent must be manifested by some affirmative act and mere silence or failure to object on the part of the council is not sufficient. Whether or not there was a direct vote upon the question of confirming the appointment of Palmer in July, 1892, was a matter regarding which the evidence before us in the trial was conflicting, and we think there was not a preponderance of the evidence that such direct vote was had, but the weight of the evidence was otherwise.
We have looked through the records of the council offered in evidence to see whether by any affirmative action it has manifested its consent to Mr. Palmer’s appointment. The council was not required to take action upon the appointment directly as it was made, but when the appointment was made before the council, it could then act, or defer action upon it, and it was competent for it to act upon the matter until the mayor or the force of circumstances had withdrawn the nomination. Until withdrawn and before action upon it, the nomination was a continual proposition before the council for its action, but, whenever it gave the requisite consent in the requisite way, it could not thereafter undo its effect, nor oust one who thus became a de
Does the record of the proceedings of the council sufficiently exhibit such affirmative action consenting to Palmer’s appointment?
We think it does
On August 15, 1892, the clerk being absent, the council itself elected Mr. Palmer as clerk, pro tempore. By section 1755 this election could only be of one of the members of the council. So that, a least, thus early after his appointment, Mr. Palmer was, by the affirmative vote of the council, recognized directly as a member, and though the vote was not expressly upon the question of his membership, it was a sufficient declaration that the council consented that he was then a member, and the appointment being made in the presence of the council, its members knew lhat his only claim to a seat was by virtue of that appointment, which only needed their consent, in session given, to make it effective. Again, it was the duty of the clerk (section 1755), to record the proceedings of the council, and it was a proper, if not a necessary, part of the record of each meeting that it should state the members present. During the time while Palmer served as councilman, the council met very frequently, on an average as often as once a week, and the clerk, in the reco: d of each meeting, gave the name of Palmer as one of the members of the council, either as present or absent (and he was almost invariably present), and such record was approved by the council at its next meeting, as shown by its records.
The council consisted of six members, and, of course, under the provisions of section 1693, it required four affirmative votes for the passage of legislation (unless the case fell
On April 17th, 1893, at the organization for the council for that year, the mayor appointed Palmer on certain of the standing committees, and chairman of one committee, thus clothing him, apparently at least, with the great and serious powers which, under section 1687, maybe exercised by such chairman and committee, and this appointment seems to have been approved by the council.
On April 24, 1893, Palmer’s committee having reported to the council on a certain matter, Palmer moved to recommit it to the committee, and his motion was carried by a yea and nay vote recorded on the records, showing six councilmen (of course, including Palmer) voting yea.
Again, on November 20, 1893, in the absence of the mayor from the council meeting of that date, the council chose Palmer as its temporary chairman, and under section 1675, such person appointed to temporarily take the place and perform the duties of mayor must himself be a member of the council.
It may be said, that all of this was merely the recognition of Palmer as de frcto member of the council and should not be regarded as equivalent to a vote directly upon his confirmation, but considering that his de facto character only needed, at any moment after his appointment, the consent of the council in order to make his position de jure, such
Such being our conclusion, it is unnecessary for us to ■consider the arguments as to the mayor’s power to vote in case of a tie upon the question of the confirmation of his appointee, Mr. Darby; or whether, had there been a vacancy in April, Mr. Darby might be ousted at the suit of the state on the relation of Palmer: for there being no vacancy to fill, and Mr. Palmer the de jure incumbent until his successor is elected and qualified, the appointment of 1894, even had it been confirmed with the utmost unquestionable formality, would have been ineffective to confer any right upon Darby.
Judgment of ouster against Darby, and for the induction, or rather the restoration, of Palmer, will be entered, at the costs cf the respondent, Darby.