Opinion
No. 80-1436
Decided June 10, 1981.
Municipal corporations — City council — Quorum — What constitutes — Conflicting charter provisions — Rule of construction.
APPEAL from the Court of Appeals for Scioto County.
On February 20, 1980, appellees-city councilmen of Portsmouth, in order to fill a vacancy on council, held the first of three special meetings. Under the city charter, a councilman is elected from every ward in the city, currently numbering six. One of the councilmen resigned effective February 13, 1980, triggering the events which led to this appeal.
With three of the five remaining councilmen present, and against the advice of the city solicitor, Richard T. Schisler, appellant herein, council appointed a new member pursuant to Section 3 of the city charter. The new member was promptly given the oath of office and participated in the subsequent council actions. At the second meeting that night, apparently in anticipation of this litigation, an attorney was appointed to represent council in court. At the final meeting that night, council suspended and then terminated the services of the city manager. The next day, the city solicitor, in his official capacity and on behalf of the city of Portsmouth, filed a complaint seeking to enjoin the defendants Clausing, White, Daub, Price, Ogg and Shepherd, the six city councilmen of Portsmouth, from implementing any of the legislation they passed at the special meetings the night before. As grounds for the injunction, plaintiffs asserted the lack of a quorum within the meaning of Section 9 of the city charter. After a hearing, the trial court ruled in favor of defendants, finding that under the specific authority of Section 3, only a majority of the councilmen remaining qualified need be present to fill a vacancy. It held that a quorum, as described in Section 9 of the charter, was not necessary for the action taken at the first meeting, and that once the vacancy had been filled, a quorum existed for the purposes of the other meetings that night. Nevertheless, the court enjoined the implementing of the legislation passed at the last meeting held on February 20, because the city manager's due process rights had been ignored. The Court of Appeals affirmed this decision.
This cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Richard Schisler, city solicitor, Messrs. Lucas, Prendergast, Albright, Gibson, Newman Gee and Mr. Rankin M. Gibson, for appellants.
Wolery Wolery Co., L.P.A., Mr. John J. Wolery, Messrs. Sanford, Fisher, Fahey, Boyland Schwarzwalder and Mr. Richard P. Fahey, for appellees.
We are asked to choose between two seemingly conflicting provisions in the Portsmouth City Charter. Section 9, which sets forth the general provisions governing council voting procedure, was first enacted in 1928, and provides:
"A majority of the members elected to the Council shall constitute a quorum to do business, but a less number may adjourn from time to time and compel the attendance of absent members in such manner and under such penalties as may be prescribed by ordinance. The affirmative vote of a majority of the members elected to the Council shall be necessary to adopt any ordinance, resolution, order or vote; except that in the absence of a quorum a vote to adjourn, or regarding the attendance of absent members, may be adopted by a majority of the members present. No member shall be excused from voting except on matters involving the consideration of his own official conduct or when his family or financial interests are involved."
Section 3, which deals specifically with the filling of vacancies on council, was amended in 1952, and now provides in pertinent part:
"* * * If a vacancy occurs in the Council, except as the result of a recall election, some eligible person shall be chosen within thirty (30) days by a majority vote of the remaining members of Council to fill the unexpired term. * * *"
It appears, then, that under Section 9, for most matters before council, the presence of four councilmen is necessary to constitute a quorum to "do business." However, when a vacancy on council occurs, Section 3 of the charter authorizes filling it by a majority of the remaining members of council; in this case, three constituted the majority necessary to fill one vacancy.
Since Section 9, the general provision, conflicts with Section 3, the specific provision in filling vacancies on council, we apply the well-established rule of construction that specific provisions prevail over general provisions. R.C. 1.51; State, ex rel. Myers, v. Chiramonte (1976), 46 Ohio St.2d 230, paragraph one of the syllabus. Accordingly, we hold that the council acted properly in filling the vacancy on council with a majority of the councilmen remaining qualified present. Since the action taken at the first meeting was proper, council's decision to appoint counsel to represent them, and to relieve the city manager of his duties, was made with a duly constituted quorum present, as required by Section 9 of the city charter.
The injunction with respect to the suspension and termination of the services of the city manager was not appealed to this court.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.