Opinion

State ex rel. Myers v. Brown

  • 87 Ohio St. 3d 545
  • 2000 Ohio 478
Court
Ohio Supreme Court
Filed
Jan 18, 2000
Status
Published
Cited by
3 cases
Authority
More cited than 59.0%

The opinion

[This opinion has been published in Ohio Official Reports at 87 Ohio St.3d 545.]

THE STATE EX REL. MYERS v. BROWN, CLERK-TREASURER.

[Cite as State ex rel. Myers v. Brown, 2000-Ohio-478.]

Public employment—Quo warranto to oust respondent from office of village of

Agler Clerk-Treasurer and to declare that relator is entitled to the office—

Limited writ to oust respondent granted but appointment to office denied.

(No. 99-1420 —Submitted December 15, 1999—Decided January 19, 2000.)

IN QUO WARRANTO.

{¶ 1} The village of Alger, Ohio, is a noncharter municipal corporation

organized under the general statutory form of village government. Alger has a

combined office of clerk-treasurer. In August 1998, the Alger Clerk-Treasurer

resigned, and the village received resumes from nine individuals who had applied

for the position. Relator, Paul D. Myers, a resident-elector of the village, and

respondent, Jackie Brown, a nonresident-elector, were two of the applicants. In

addition to Myers, two other village residents applied.

{¶ 2} In October 1998, Alger Mayor Don Hensley appointed Brown to

complete the unexpired term of clerk-treasurer. At the time of Brown’s

appointment, Myers had a pending lawsuit against the village that Mayor Hensley

believed created a potential conflict of interest should Myers be appointed Alger

Clerk-Treasurer. Brown remains a nonresident of the village. According to Mayor

Hensley, his appointment of Brown was as an “acting” clerk-treasurer “until a

permanent, qualified candidate” could be appointed.

{¶ 3} In 1999, Myers filed this action for a writ of quo warranto to oust

Brown from the office of Alger Clerk-Treasurer and declare that Myers is entitled

to the office. After Brown filed a motion to dismiss, we granted an alternative writ.

{¶ 4} This cause is now before the court for a consideration of the merits.

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SUPREME COURT OF OHIO

F. Stephen Chamberlain, for relator.

Bradford W. Bailey, for respondent.

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Per Curiam.

{¶ 5} Myers asserts that he is entitled to a writ of quo warranto. For the

reasons that follow, we hold that Myers is entitled to a limited writ to oust Brown

from the office of Alger Clerk-Treasurer.

{¶ 6} “A person claiming to be entitled to a public office unlawfully held

and exercised by another may bring an action therefor by himself or an attorney at

law, upon giving security for costs.” R.C. 2733.06. In order to prevail completely

in a quo warranto action, a relator must establish (1) that the office is being

unlawfully held and exercised by respondent and (2) that relator is entitled to the

office. State ex rel. Delph v. Barr (1989), 44 Ohio St.3d 77, 541 N.E.2d 59,

syllabus; State ex rel. Brenders v. Hall (1995), 71 Ohio St.3d 632, 633-634, 646

N.E.2d 822, 824.

{¶ 7} Brown contends that she is lawfully holding the office because the

mayor appointed her clerk-treasurer under R.C. 733.31(A), which provides that

“[i]n the event of a vacancy in the office of village clerk or treasurer, the mayor

may appoint a person to serve as an acting officer to perform the duties of the office

until a permanent officer is appointed to fill the vacancy.” R.C. 733.68 specifies

that “[e]xcept as otherwise provided by the Revised Code each officer of a

municipal corporation, or of any department or board thereof, whether elected or

appointed as a substitute for a regular officer, shall be an elector of the municipal

corporation * * *.” (Emphasis added.)

{¶ 8} Although Brown concedes that she is neither an elector nor a resident

of Alger, she claims that the mayor was authorized to appoint a nonelector as clerk-

treasurer on a temporary basis. But contrary to Brown’s claims, these statutes do

not permit the village mayor to appoint a nonelector as clerk-treasurer when the

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January Term, 2000

appointment is temporary rather than permanent.

{¶ 9} In interpreting a statute, we must first examine its express terms.

Freedom Rd. Found. v. Ohio Dept. of Liquor Control (1997), 80 Ohio St.3d 202,

206, 685 N.E.2d 522, 525. It is the duty of the court to give effect to the words

used and not to insert words not used. State ex rel. Cuyahoga Cty. v. State

Personnel Bd. of Review (1998), 82 Ohio St.3d 496, 499, 696 N.E.2d 1054, 1056.

{¶ 10} R.C. 733.68 manifestly requires that an appointed or elected clerk-

treasurer be an elector of the municipal corporation and does not differentiate

between either a provisional or a permanent appointment. See, also, 1 Gotherman

& Babbit, Ohio Municipal Law (2 Ed.1992) 151, Section 9.06(B). Nothing in R.C.

733.31(A), which authorizes the appointment of acting officers, provides

otherwise, and R.C. 733.261(B) also mandates that “[t]he clerk-treasurer shall be

an elector of the municipal corporation.”

{¶ 11} Therefore, Myers has established that Brown, a nonelector of the

village, is unlawfully holding and exercising the office of clerk-treasurer.

{¶ 12} Brown nevertheless claims that we should deny the writ because

Myers has not established the second general requirement for extraordinary relief

in quo warranto, i.e., that he is entitled to the office. We agree with Brown that

Myers has not established his entitlement to be appointed clerk-treasurer. Myers

was not the only resident who applied for the office of clerk-treasurer, and Mayor

Hensley did not have any duty to appoint Myers to that office.

{¶ 13} But Myers’s failure to establish his entitlement to be appointed

clerk-treasurer does not preclude a writ of quo warranto. If a relator in a quo

warranto proceeding fails to establish entitlement to the office, judgment may still

be rendered on the issue of whether respondent lawfully holds the disputed office.

Delph, supra, 44 Ohio St.3d at 80, 541 N.E.2d at 62; State ex rel. Ethell v.

Hendricks (1956), 165 Ohio St. 217, 226-227, 59 O.O. 298, 303-304, 135 N.E.2d

362, 368. Myers proved that Brown is not lawfully holding and exercising the

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SUPREME COURT OF OHIO

office of clerk-treasurer.

{¶ 14} Based on the foregoing, we grant Myers a writ of quo warranto

solely to remove Brown from the office of Alger Clerk-Treasurer. We deny the

writ insofar as Myers requests his appointment to that office.

Writ granted in part

and denied in part.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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