Opinion
No. 27022
Decided July 20, 1938.
Municipal corporations — Term of office of president of council — Mayor resigned and succeeded by president of council — President pro tem succeeded as president of council — Sections 8 and 4274, General Code.
When a person, who is a president pro tem of a city council, becomes president of the council by operation of law Section 4274, General Code), he holds the office of president until the end of the term and until his successor is appointed or elected and qualified, by virtue of Section 8, General Code; but his right to hold the office ends with the expiration of the term which he is filling when his successor has been duly elected for the ensuing term at the last general election, has duly qualified and at the inception of his term has not resigned or abandoned the position or failed or refused to accept or assume the office.
APPEAL from the Court of Appeals of Hamilton county.
An original action in quo warranto was filed in the Court of Appeals of Hamilton county, Ohio. The amended petition reads as follows:
"Hiram C. Bolsinger, Jr., comes here into court and gives the court to understand and be informed that having been duly elected on November 3rd, 1935, as councilman at large, a member of the council of the city of Norwood, and having qualified he was thereafter duly chosen by said city council as president pro tem of the council of the city of Norwood and continued as such until December 1st, 1937. That on said date, Allen C. Roudebush, the then duly elected, acting and qualified mayor of the city of Norwood having been appointed and commissioned by the Governor of the state of Ohio to the office of judge of the Court of Common Pleas of Hamilton county, Ohio, for a term beginning on December 1st, 1937, and continuing to November 1st, 1938, resigned as mayor of the city of Norwood, whereupon Amos L. Eyler, the duly elected, acting and qualified president of council of the city of Norwood then duly qualified as mayor of the city of Norwood pursuant to the statutes of Ohio, by taking the oath of office and executing his bond conditioned:
" 'That whereas the above bound Amos L. Eyler was duly elected or appointed to the office of mayor of city of Norwood, Hamilton county, Ohio, for a term beginning on December first, 1937, and ending January 1st, 1940, until his successor shall be duly elected or appointed and qualified.
" 'Now if the said Amos L. Eyler shall faithfully perform his official duties as such mayor, then this obligation to be void and of no effect, otherwise to remain in full force and effect.'
"Your relator then becoming by operation of law, president of council, December 1st, 1937, then duly qualified as such president of council of the city of Norwood, vice said Amos L. Eyler, who by virtue of Section 4274, General Code of Ohio, became mayor to serve for the unexpired term and until his successor is duly elected and qualified. Your relator further says that said Allen C. Roudebush having been duly elected mayor of the city of Norwood on November 2nd, 1937, for the term beginning January 1st, 1938, failed to qualify therefor and neither gave bond as required by law or took the oath of office, but on the contrary, assumed said office of judge of the Court of Common Pleas of Hamilton county, Ohio, on December 1st, 1937, as aforesaid, and the term of said Amos L. Eyler as mayor vice said Allen C. Roudebush was thereby extended to January 1st, 1940, so that the term of your relator also was extended thereby as president of council to January 1st, 1940, from the time of his appointment by operation of law to be president of council of the city of Norwood and he was authorized and entitled by operation of law to discharge the duties of said office for such extended time as aforesaid and to receive the emoluments thereof but nevertheless defendant has usurped and unlawfully pretends to hold and exercise said office and as such officer, assumes to do and perform all and singular the duties pertaining to said office and to receive the emoluments thereof, to the exclusion and against the rights of relator and under a claim that he, the said defendant, is entitled to said office by reason of an appointment thereto claimed to have been made by Amos L. Eyler as mayor of the city of Norwood for a term beginning January 1st, 1938, notwithstanding said defendant was not then or at any time a member of the council of the city of Norwood, and he thereby causes great injury to the citizens of the city of Norwood and of the state of Ohio.
"Wherefore, relator prays that defendant be required to answer by what warrant he claims to use, exercise and enjoy the office of president of Council of the city of Norwood and that he be adjudged not entitled thereto, and that judgment of ouster therefrom may be pronounced against him, and that relator may be adjudged entitled to said office and its franchises and emoluments."
The respondent, James Oridge, filed an answer to the amended petition to which relator demurred on the ground that on its face it was insufficient in law.
The answer reads:
"Now comes the defendant James Oridge and for answer to the plaintiff's amended petition, denies each and every allegation therein contained, not herein admitted.
"Defendant states that at the general election held in the city of Norwood, Hamilton county, Ohio, November 5, 1935, Allen C. Roudebush was duly elected mayor of said city, and Amos L. Eyler was duly elected president of council of said city, each for a term of two years commencing January 1, 1936. On said date each of the same entered upon the duties of his office. On or about January 1, 1936, the relator herein, Hiram C. Bolsinger, Jr., who was duly elected as a member of the council of said city of Norwood at the election aforesaid, was elected to the office of president pro tem of said council by the members thereof to serve for a term expiring December 31, 1937. At the general election held in the aforesaid city on November 2, 1937, said relator was not elected to any office of said city of Norwood, either as councilman or otherwise.
"On said date November 2, 1937, Allen C. Roudebush was duly re-elected as mayor of said city and Amos L. Eyler was duly re-elected as president of the council thereof. On November 17, 1937, said Eyler was duly notified of his election and a certificate thereof was duly issued to him. On November 26, 1937, said Eyler took the required official oath as president of said council, duly signing and filing the same, and in all respects qualified as president of council of the city of Norwood, and accepted said office for the term commencing January 1, 1938, and thereupon was vested with, and had the title and right thereto.
"On December 1, 1937, the said Allen C. Roudebush resigned as mayor of the city of Norwood, for the term expiring December 31, 1937, said resignation to be effective immediately. Thereafter on the same date, December 1, 1937, said Amos L. Eyler took the required official oath as mayor of said city, duly filed his official bond, and thereupon entered upon the duties of said office of mayor for the term expiring as aforesaid, on December 31, 1937.
"On said December 1, 1937, the relator Hiram C. Bolsinger, Jr., was acting as president pro tem of council of the city of Norwood, and thereupon claimed that by operation of law, by reason of the aforegoing facts, he had become president of said council, and he then took the official oath as such.
"Defendant admits that on December 1, 1937, Allen C. Roudebush was appointed and commissioned by the Governor of the state of Ohio, to the office of judge of the Court of Common Pleas of Hamilton county, Ohio, and assumed said office on said date; that he failed to qualify either by giving bond or taking the oath of office, for the office of mayor of Norwood, for the term commencing January 1, 1938. Defendant, however, avers that from December 1, 1937, to December 31, 1937, inclusive, and not sooner than January 1, 1938, it could not be nor was it known that the said Roudebush would fail to qualify for said office of mayor of the city of Norwood for the term commencing January 1, 1938, or that there would be a vacancy in said office of mayor for said term.
"Defendant further avers that by reason of the aforegoing facts there was no vacancy in the office of president of council of the city of Norwood, for the term commencing January 1, 1938, sooner than said date. Said vacancy in said office being created or existing on said date, this said defendant was thereupon duly appointed to the office of president of council of the city of Norwood by the mayor thereof, effective January 1, 1938, for the term of two years expiring December 31, 1939. Whereupon on said date this defendant duly qualified in all respects as president of said council of the city of Norwood and has ever since held and performed all the duties of said office.
"Defendant admits that on January 1, 1938, at the time of said defendant's appointment as president of council of the city of Norwood as aforesaid, Amos L. Eyler was mayor of the city of Norwood and that his term as such will expire on December 31, 1939.
"Defendant denies that the term of Hiram C. Bolsinger, Jr., the relator, to the office of president of council of the city of Norwood, was ever extended for any time, either by appointment, operation of law or in any other manner whatsoever; denies that said relator was ever appointed to said office either by operation of law or in any other way; and denies that said relator ever filled said office by appointment.
"Defendant denies that relator was or is authorized or entitled by operation of law or otherwise, to discharge the duties of said office of president of council of the city of Norwood for the extended time claimed in his petition, or for any time whatever, or to receive the emoluments of said office.
"Defendant denies that he has in any way usurped the office aforesaid, or in any way unlawfully pretends to hold and exercise said office, or unlawfully assumes to do and perform all and singular the duties pertaining to said office, or unlawfully received the emoluments thereof to the exclusion of and against the rights of the relator. On the contrary this defendant avers that by reason of the facts hereinbefore set out, said relator has no right or title to said office of president of council of the city of Norwood, and that this defendant has the sole right and title to said office.
"Wherefore, he prays that said amended petition of plaintiff be dismissed; that judgment be rendered in his favor, and for all other and proper relief."
The Court of Appeals, considering that the demurrer searches the record and operates as a demurrer to the amended petition, sustained the same as a demurrer thereto, dismissed the relator's amended petition and entered judgment in favor of respondent.
The relator took an appeal to this court as a matter of right under the state Constitution.
Mr. Robert Adair Black, for appellant.
Mr. Simeon M. Johnson, Mr. Frederic W. Johnson and Mr. George H. Johnson, for appellee.
Since the general demurrer to the answer searches the record and raises the question of the sufficiency of both the amended petition and the answer, the well pleaded allegations are admitted by the demurrer to be true for the purpose of determining the adequacy of each pleading.
The question is: Is the relator, Hiram C. Bolsinger, Jr., on the face of the pleadings entitled to a writ of quo warranto to restore him to the office of president of council now filled by the respondent, James Oridge?
The relator claims that, having become president of the council on December 1, 1937, by virtue of Section 4274, General Code, for the unexpired term ending December 31, 1937, he is entitled to hold over until his successor is elected and qualified, against the respondent James Oridge, the present incumbent, who bases his claim upon an alleged appointment by Amos L. Eyler, mayor of the city.
A private relator cannot test the title of an incumbent to a public office in an action in quo warranto; as a consequence the relator, if he prevails, must do so on the strength of his own title to the particular office. Klick v. Snavely, 119 Ohio St. 308, 164 N.E. 233, and State, ex rel. Herr, v. Butterfield, 92 Ohio St. 428, 111 N.E. 279. If the relator does not show title in himself, he must fail regardless of the rights of the respondent.
Section 4274, General Code, provides: "In case of the death, resignation or removal of the mayor, the president of council shall become the mayor, and serve for the unexpired term, and until the successor is elected and qualified. Thereupon the president pro tem of council shall become president thereof, and shall have the same rights, duties and powers as his predecessor. The vacancy thus created in council shall be filled as other vacancies, and council shall elect another president pro tem."
When Roudebush resigned as mayor of Norwood to become judge of the Court of Common Pleas of Hamilton county, Eyler became mayor and Bolsinger became president of city council by operation of law.
Under the provisions of Section 4272, General Code, the president of council is elected for a term of two years commencing January 1, after his election and serves until his successor is elected and qualified. Had Eyler retained his position as president of council his then term would have expired December 31, 1937.
When Bolsinger became president of council, he had the "same rights, duties and powers" as Eyler would have had had he retained the presidency of council.
The relator contends that since the president of council under Section 4272, General Code, serves until his successor is elected and qualified, and the president pro tem of council, who succeeds to the presidency by virtue of Section 4274, has the same rights as his predecessor, he, the relator, is likewise entitled to serve until his successor is elected and qualified, and that it is not necessary to invoke Sections 8 and 10, General Code, to determine the right of succession.
In discussing the question, the Court of Appeals said: "That raises the question of whether the title to the office is included within the meaning of the word 'rights' in Section 4274, General Code, or whether the 'rights' referred to result from the fact that the incumbent has title. We are of the opinion that the latter construction is the correct one. The title and tenure arise as a result of the application of the law to the facts and antedate the 'rights, duties, and powers' resulting from incumbency of the office."
The interpretation of this section by the Court of Appeals must be accepted as basically sound. It is therefore necessary to construe Sections 8 and 10, General Code.
Section 10 has no application for the reason that it applies only in those instances in which an elective office becomes vacant and is filled by appointment, and Bolsinger held the position of president of council not by appointment but by operation of law.
Section 8, however, deserves more careful scrutiny. It provides: "A person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless otherwise provided in the Constitution or laws."
It is to be observed that State, ex rel. Kopp, v. Blackburn, 132 Ohio St. 421, 8 N.E.2d 434, State, ex rel. Gahl, v. Lutz, Jr., 132 Ohio St. 466, 9 N.E.2d 288, and State, ex rel. Haff, v. Pask, 126 Ohio St. 633, 186 N.E. 809, are not helpful in reaching a correct solution of our problem. This court is of the opinion that there is no reported decision in this state that is decisive of the instant case.
The purpose of Section 8, General Code, is to insure that all lawful incumbents of public office shall hold over and thus avoid a hiatus between the end of the term and the qualification of the newly appointed or elected incumbent. It applies to all public offices or positions of public trust, except where there is a provision in the Constitution or statute to the contrary. By its provisions, the term of the person holding the office or public trust ends as soon as the term of service of a duly elected or appointed and qualified successor begins.
Since there is no other provision governing the situation here, Section 8, General Code, applies. Due, however, to the peculiar facts in the instant case, the relator ceased to hold the office with the close of the day on December 31, 1937. Roudebush had not indicated whether he would continue as judge of the Court of Common Pleas or qualify as mayor for the term beginning January 1, 1938. Eyler, though serving as mayor for the unexpired term ending December 31, 1937, and until the election and qualification of his successor, by virtue of Section 4274, General Code, had been elected and had even qualified as president of the council for the term beginning January 1, 1938. With the commencement of the new term of the president of the council on that date, Eyler had the right to that position, having done nothing to surrender it, but he could refuse to assume that office and elect to continue in the office of mayor provided Roudebush did not qualify for the place.
When the term of Bolsinger expired at the close of the last day of December, 1937, the term of Eyler began and continued during the first day of January, 1938, until the moment he abandoned the office, assumed the office of mayor and in the latter capacity undertook to appoint the respondent, James Oridge, to the position of president of the council.
The relator did not hold over because Eyler, the duly elected and qualified successor, became the incumbent. The fact that he later abandoned the office for the mayoralty did not restore relator's right to the place.
The amended petition is demurrable and the answer thereto states facts which show relator is not entitled to the office. Therefore the judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, MYERS and GORMAN, JJ., concur.