Opinion
No. 31310
Decided April 7, 1948.
Municipal corporations — President of council may vote in case of any tie — Sections, 4210 and 4272, General Code — Council president may vote in event of tie in electing clerk.
1. Under the provisions of Sections 4210 and 4272, General Code, a duly elected president of a city council is empowered to vote in ease 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 installments of $104.16 each, payable on the 15th and last days of each month."
Messrs. Black, McCuskey, Souers Arbaugh and Messrs. Burt, Carson, Lynch. Miller, for relator.
Mr. Thomas H. Nichols, city solicitor, and Mr. Samuel Krugliak, for respondent.
The sole question of law here involved is whether the president of the city council was empowered to cast the deciding vote in the election of a clerk at the organization meeting.
The respondent contends that the president of the council is not a "member" of the council within the meaning of Section 4210, General Code, and therefore was without authority to cast the deciding vote in the election of a clerk. The provisions of this section are in part as follows:
"Within ten days from the commencement of their term, the members of council shall elect a president pro tem, a clerk, and such other employees of council as may be necessary, and fix their duties, bonds and compensation."
It is insisted that the general term "members" is limited to those who are elected to such office and does not include anyone elected to the office of president of the council.
However, Section 4272, General Code, relating specifically to the office of president of the council, reads as follows:
"The president of council shall be elected for a term of two years, commencing on the first day of January next after his election, and shall serve until his successor is elected and qualified. He shall be an elector of the corporation, and shall preside at all regular and special meetings of council, but shall have no vote therein except in case of a tie."
But it is urged by the respondent that this language does not constitute a council president a member of that body and that therefore he is without authority to vote in the election of a clerk.
In a determination of this controversy it should be noted that this language of Section 4272, supra, is not a grant but rather a limitation of the authority of a council president. It does not provide affirmatively that he shall have a vote in case of a tie. Instead it contains the negatively stated general provision that he "shall have no vote therein, and this is followed by the specific exception "in case of a tie."
It should be noted, too, that the exception is not limited to some ties. No mention is made of a particular tie vote such as on an ordinance, a resolution or the adoption of a report. Rather, it is all-inclusive — "a" tie — any tie, inasmuch as "any " is a dictionary synonym of "a."
Hence, irrespective of whether a duly elected council president be regarded as a "member" of council, under these statutory provisions he is empowered to vote in case of any tie.
But the respondent insists further that the council president was prohibited from voting under the provisions of the following rule adopted by the council at the beginning of the organization meeting before an attempt was made to elect a clerk:
"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."
However, there are at least two fatal difficulties with this contention. First, the council was without authority to adopt a rule in conflict "with a statute; and, second, the rule contains no language whatsoever relating to the authority of the council president to vote in case of any tie.
The relator having been duly elected is entitled to the allowance of a writ of mandamus requiring the respondent to issue to him a warrant for the payment of his salary for services rendered in the office of clerk of the council.
Writ allowed.
TURNER, MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.