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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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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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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