
    The State, ex rel. Devine, Pros. Atty., v. Hoermle.
    (No. 35845
    Decided January 28, 1959.)
    
      
      Mr. Samuel L. Devine, prosecuting attorney, Mr. Russell Leach and Mr. John W. E. Bowen, for relator.
    
      Mr. Milton L. Farber, for respondent.
   Taft, J.

The adoption of provisions in a city’s charter, relative to appointments to fill vacancies in the legislative body of such city, is authorized by the provisions of Sections 3 and 7 of Article XVIII of the Ohio Constitution granting authority to exercise “all powers of local self-government.” Where such charter provisions specify who ■ shall make such appointments, statutory provisions authorizing an appointment by someone else cannot apply in the absence of their adoption by other provisions of the charter. See State, ex rel. Bindas, v. Andrish, 165 Ohio St., 441, 136 N. E. (2d), 43.

It is contended that the part of Section 731.43, Revised Code, empowering the mayor to “fill * * * by appointment” a vacancy in the legislative authority of a municipal corporation “if the legislative authority fails within 30 days to fill such vacancy,” can, under the provisions of section 232 of the Columbus charter, “be applicable to” Columbus, because that statutory provision is “not in conflict with” section 5 of tbe Columbus charter. Cf. State, ex rel. Flash, Jr., v. Collins, 148 Ohio St., 45, 73 N. E. (2d), 195, involving a charter containing no provisions similar to section 5 of the Columbus charter.

Section 5 of the Columbus charter grants the power to fill vacancies to council and to no one else. Applying the doctrine of expressio unius est exelusio alterius, as we did in State, ex rel. Bindas, v. Andrish, supra (165 Ohio St., 441), it is apparent that the charter denies such power to the mayor. It necessarily follows that the statute giving the mayor such power under certain circumstances conflicts with section 5 of the charter.

Also, it is apparent that, if the mayor can, pursuant to the statute, make an appointment, the council may not thereafter fill the vacancy, notwithstanding that section 5 of the charter states that the vacancy “shall be filled by the council.”

It may be suggested that section 5 should be construed as though it read, the “vacancies in council shall be filled within a reasonable time by the council”; that 30 days represents more than such a reasonable time; that there is therefore no charter provision for filling the vacancy after a reasonable time; and that hence the second sentence of Section 731.43, Revised Code, authorizing the mayor to fill the vacancy by appointment if the council fails to do so within 30 days, does not conflict with section 5 of the charter.

Such an argument would obviously require a reading into section 5 of the charter of the words “within a reasonable time.” Even if that should be done, the question would still remain whether the resulting provisions as to the time of acting should be construed as merely directory or whether the council’s failure to comply with those time provisions should be construed so as to cut off the appointing power of the council. See 43 American Jurisprudence, 77, Section 259; 50 American Jurisprudence, 46, Section 23.

In Schick v. City of Cincinnati, 116 Ohio St., 16, 155 N. E., 555, paragraph one of the syllabus reads:

Statutes which relate to the manner or time in which power or jurisdiction vested in a public officer is to be exercised, and not to the limits of the power or jurisdiction itself, may he construed to he directory, unless accompanied h'y negative words importing that the act required shall not he done in any other manner or time than that designated.” (Emphasis added.)

The extent to which this court has gone in construing provisions for a time for the performance of an official duty as directory rather than mandatory is indicated by State, ex rel. Jones, v. Farrar, 146 Ohio St., 467, 66 N. E. (2d), 531, where paragraph four of the syllabus reads:

“Where a statute fixes the time within which an official oath must be taken or an official bond given, the provision respecting the time is directory, although the statute declares that the office is forfeited by default; and unless the statute expressly declares that failure to take the oath or to give the bond by the time prescribed ipso facto vacates the office, the oath may be taken and the bond given at any time before the term begins. ’ ’

In the instant case, unlike in those cases, a time limitation has not even been specified but must be implied. Hence, it would seem clear that, even if we can imply a duty of council to act within a reasonable time, such duty would represent a directory and not a mandatory duty. See also State, ex rel. Kay, v. Lausche, Gov., 161 Ohio St., 168, 118 N. E. (2d), 414; and State, ex rel. Armstrong, v. Davey, Gov., 130 Ohio St., 160, 198 N. E., 180.

Section 2 of Article XVII of our Constitution provides in effect that “any vacancy which may occur in” the office of Attorney General “shall be filled by appointment by the Governor.” As relator suggests, certainly, a statute, granting authority to some other officer to fill a vacancy in the office of Attorney General by appointment after the Governor’s failure for 30 days to do so, would conflict with that constitutional provision.

As respondent argues, there are many reasons why there should be some legal method of filling a vacancy in the Columbus city council in an instance where the council is unable to agree on an appointment to fill such a vacancy within a reasonable time. However, it is necessary to amend the Columbus charter in order to provide such a legal method. This court has no power or authority to do that.

It follows that the demurrer to the answer must be sustained, and, since the parties have agreed that the ruling on that demurrer will be dispositive of the cause, the writ prayed for is allowed.

Demurrer to answer sustained and writ allowed.

Stewart, Matthias and Herbert, JJ., concur.

Weygandt, C. J., Zimmerman and Bell, JJ., dissent.

Weygandt, C. J.,

dissenting. The majority opinion is predicated on the theory that there is a conflict between the pertinent statutory provisions and those of the Columbus charter.

However, it is significant that there is no mention of any charter provision applicable to the instant situation'where the municipal council defaults by failing to discharge its duty to fill a vacancy in the office of councilman. The charter contains nothing but the mere general provision that vacancies shall be filled by the council. On the other hand the statute is specific by requiring that if the legislative authority fails to fill the vacancy within 30 days the mayor shall fill it. Nevertheless, with the statute clearly providing a definite effective remedy and the charter providing none, the majority opinion infers a conflict and leaves the people of Columbus remediless.

Zimmerman, J., concurs in the foregoing dissenting opinion.

Bell, J.,

dissenting. Although I am reluctant to add fodder to a fire -that should have been extinguished while in the smoldering stage, my disagreement with the application of the cases cited and relied upon in the majority opinion compels me to a more detailed discussion thereof.

In the first place, I fail to see even any remote application of the case of State, ex rel. Bindas, v. Andrish, 165 Ohio St., 441, 136 N. E. (2d), 43, to the present case. An attempt was made in the Bindas ease to show that, since the Charter of the City of Youngstown was silent as to whether the holding of another public office or employment was a disqualification of a member of the city council, the general law, viz., Section 731.02, Revised Code, which prohibits the holding by a member of council of another public office or employment, controlled. However, the Youngstown charter did specifically provide for the qualifications of its councilmen. The charter was not silent on the point, and this court, in my opinion, properly held that the state statute had no application. That, however, presents a very different situation from that which was pointed out by Judge Taft in the report of that case, when he said:

“It may be that a state statute can be applied where a charter is silent with regard to the procedure to be followed in a particular instance, as the Youngstown charter is with respect to what shall be done when a vacancy occurs in its council.” (Emphasis added.)

There is no question here that the Columbus charter is silent as to the procedure to be followed in the case of a tie vote in council or in the event council fails or refuses to act.

In State, ex rel. Jones, v. Farrar, 146 Ohio St., 467, 66 N. E. (2d), 531, relied upon in the majority opinion as indicative of the extent to which this court has gone in construing provisions as to the time for the performance of an official duty as directory rather than mandatory, it is inteiesting to note the test delineated as follows by Judge Hart, and concurred in unanimously by the other members of the court, for determining whether a provision is directory or mandatory:

“The character of the statute may be determined by the consideration of (1) the words of the statute, (2) the nature, context and object of the statute and (3) the consequences of the various constructions.'” (Emphasis added.) •

I can not see the application of State, ex rel. Kay, v. Lausche, Gov., 161 Ohio St., 168, 118 N. E. (2d), 414, or State, ex rel. Armstrong, v. Davey, Gov., 130 Ohio St., 160, 198 N. E., 180, to the instant case. In each of those cases a writ of mandamus was sought to compel the Governor to call a special election to fill vacancies in the General Assembly or the Congress. In each case the writ was denied because the Governor had performed his mandatory duty by ordering a special election and by setting a time therefor. In each case, this court properly refused to control the Governor’s discretion in fixing the time.

(1) Substituting “charter” for “statute” in the test set out by Judge Hart in tbe Farrar case, an analysis of tbe Columbus charter shows clearly that section 5 thereof provides that vacancies in the city council shall be filled by the council. (2) The nature and object of the provision can only be to provide for the full complement of council members provided for in section 3 of the charter. (3) But, what are the consequences of the various constructions?

Even a cursory reading of the Columbus newspapers from September 12, 1958, to October 20, 1958, would have revealed the stalemate existing in the municipal affairs of Columbus resulting from the attempts of three Republican members and three Democratic members of council to fill the vacancy caused by the death of Councilman Llewelyn. Although, concededly, such shenanigans as were reported in the press are not part of our record here, they were known to the public generally and should not, because of such general knowledge, be excluded from the knowledge of a court by any legalistic esotery. Conceivably, such a stalemate, depending on the way the political shots are called, could continue for an appreciable length of time. It could result in a stalling of the processes of municipal government for a period of nearly two years until the next municipal election. It could well result in the failure to fill, for political reasons, vacancies in any number of municipal offices required to be filled by council.

The decision being announced by the majority may well make the filling of the vacancy involved herein dependent upon the vagaries of the health of one of the six remaining councilmen, whose absence from a meeting would permit a majority of the other political faith to fill the vacancy, provided the two then in the minority decided to maintain a quorum by remaining in the meeting. Other equally incongruous consequences could be outlined ad infinitum ad ridiculum.

Judge Stewart in his opinion in State, ex rel. Haines, Dir., v. Rhodes, Aud., 168 Ohio St., 165, 151 N. E. (2d), 716, aptly quoted as follows from State, ex rel. Cooper, v. Savord, Judge, 153 Ohio St., 367, 92 N. E. (2d), 390:

“ 'The General Assembly [people of Columbus] will not be presumed to have intended to enact a law [charter provision] producing unreasonable or absurd consequences. It is the duty of tjte courts, if the language of a statute fairly permits or unless restrained by the clear language thereof, so to construe the statute as to avoid such a result. ’ ’ ’

The Charter of the City of Columbus is silent as to when the council shall perform its mandatory duty to fill a vacancy. In my opinion, it is inherent in such a mandatory provision that the duty to be performed must be performed. And if it must be performed, it is likewise inherent that the performance should be accomplished within a reasonable time. Certainly when the daily necessities of a city such as Columbus are considered, and when orderly progressive legislative action is a constant and essential factor in the filling of those needs, 30 days represents a reasonable time. Failure of council to act within that time is an unreasonable abdication of its duty and, in the complete absence of any charter provision for the consequences thereof, the appointive power provided for in Section 731.43, Revised Code, may properly be invoked.

Zimmerman, J., concurs in the foregoing dissenting opinion.  