Summary
construing analogous language strictly, as removal statutes are "quasi-penal" in character
Summary of this case from Janovich v. HerronOpinion
No. 69-310
Decided May 6, 1970.
Office and officer — Removal of incumbent from public office — Statute authorizing, quasi-penal and strictly construed — Misfeasance or malfeasance of municipal officer — R.C. 733.72 — Applicable only to conduct occurring in existing term of office.
1. Statutes authorizing the removal of an incumbent from public office are quasi-penal in character and should be strictly construed.
2. R.C. 733.72, providing for removal of an incumbent municipal officer who "has been guilty of misfeasance or malfeasance in office," strictly construed, pertains solely to acts of misfeasance or malfeasance occurring in the then existing term of the office, and does not authorize removal for noncontinuing acts of misconduct occurring in a term prior to reelection of said officer by the electors of the municipality.
APPEAL from the Court of Appeals for Cuyahoga County.
On September 30, 1968, Roy F. Richards and four other persons filed a complaint in the Probate Court of Cuyahoga County under R.C. 733.72, alleging claims of misfeasance and malfeasance against Carl B. Stokes with respect to the performance of his duties as Mayor of the city of Cleveland, Ohio. On November 18, 1968, a motion to quash summons on the ground that the Probate Court lacked jurisdiction over both the person of relator and the subject matter of the action was filed in the Probate Court and was overruled.
On November 25, 1968, an action in prohibition was filed in the Court of Appeals for Cuyahoga County, seeking a writ prohibiting the Probate Court of Cuyahoga County and the judge thereof from proceeding further in said cause, the basic contention being that the enactment of R.C. 3.07 through 3.10 repealed by implication R.C. 733.72 through 733.77, and hence that the Probate Court had no jurisdiction of the action. The Court of Appeals held that R.C. 733.72 et seq. were still in full force and effect, and denied the writ. Relator then appealed to the Supreme Court.
Subsequent to the filing of the original papers and briefs herein relator filed a supplemental brief, contending that his reelection as Mayor of the city of Cleveland at the regular municipal election of November 4, 1969, rendered the original complaint in the Probate Court moot in that all the alleged acts of misconduct or misfeasance or malfeasance occurred during the previous term.
Messrs. Squire, Sanders Dempsey, Mr. Daniel J. O'Loughlin and Mr. Clarence L. James, director of law, for appellant.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Dennis J. McGuire, for appellees.
The primary problem presented here concerns the impact of the termination of a public officer's term of office upon an action for the removal of such officer under the provisions of R.C. 733.72. Obviously, if the officer is not reelected he is no longer an officer and the question of his removal is moot. But if, the term ending, he is reelected to a new term, the question arises as to whether he may be removed from the new term for conduct occurring during his prior term.
It will be noted, first, that R.C. 733.72 et seq. deal with municipal officers only and with differing types of charges. The original complaint in the Probate Court charged only misfeasance or malfeasance in office, and hence is governed by subsection (C) of R.C. 733.72, which reads as follows:
"That a member of the legislative authority or an officer of the municipal corporation has been guilty of misfeasance or malfeasance in office."
Thus, the specific question is whether "misfeasance or malfeasance in office" refers to conduct during the existing term or refers more broadly to conduct during the existing term and also during prior terms.
In State, ex rel. Vogt, v. Donahey, 108 Ohio St. 440, 446, in considering another type of removal proceeding, it was said:
"Touching the question of misconduct of the relator during a former term, it is not the purpose of the provision of the Constitution requiring the Legislature to enact laws providing for the prompt removal from office of officers guilty of misconduct, or of the Legislature in the enactment of Section 6212-34, General Code, in pursuance thereof, or in the enactment of Section 4268, General Code, prior to the adoption of the constitutional provision, to vest in the Governor of the state, or any other tribunal, a veto power upon the right of the electors of the municipality to elect their own city officials, the right being to remove for cause, which cause must arise during the term, and subsequent to the exercise of the power to elect vested in the electors of a municipality."
G.C. 6212-34 (109 Ohio Laws 4, 9) was a provision pertaining to the authority of the Governor to "remove any official for misfeasance, nonfeasance or malfeasance" and related to the enforcement of prohibition laws.
Subsequently, in the case of McMillen v. Diehl (1934), 128 Ohio St. 212, this principle, as applied to a case involving G.C. 10-1 et seq. (R.C. 3.07 et seq.), was repeated, the court noting that misconduct may be of such nature as to continue from one term to another.
In the case of In re Coppola (1951), 155 Ohio St. 329, the syllabus reads as follows:
"Under Sections 3808 and 4670, General Code, a member of the council of a municipal corporation who has been interested, directly or indirectly, in the profits of a contract, job, work or service undertaken or prosecuted by the corporation, contrary to law, is subject to being charged in a complaint authorized by Section 4670, whether the acts in violation of such section were performed by the member of council during his present term of office or a previous one."
At first sight this would appear to modify the previous decisions, because G.C. 3808 is now R.C. 733.78, and G.C. 4670 is now 733.72, the section involved in the present case. However, a consideration of the facts involved points to a basic distinguishing element. In the Coppola case, the charge was against a councilman and involved an allegation that he had a direct interest in the expenditure of money on the part of a village. G.C. 3808, now R.C. 733.78, without substantial change, provided:
"No member of council * * * shall have any interest in the expenditure of money on the part of the corporation other than his fixed compensation. A violation of any provision of this section shall disqualify the party violating it from holding any office of trust or profit in the corporation * * * and if in office he shall be dismissed therefrom."
In short, the person violating that particular prohibition was specifically disqualified from thereafter holding any office of trust in the municipality. The General Assembly made the offense specifically applicable to eligibility to hold a later term of office, and hence an offense of that nature in one term could be considered in a later term. By G.C. 4670, this specific offense (being interested in the profits of a contract) was made a ground for removal from office. Therefore, the court held that a charge of this particular nature under G.C. 4670 was proper where the acts alleged (interest in a contract) occurred in a prior term. In the present case, however, such is not the charge. Relator is charged with misfeasance or malfeasance of a non-continuing nature in a prior term, and would clearly come within the rule first announced in the Vogt case.
The ultimate question appears to be essentially one of legislative intent. In the matter of pecuniary interest in municipal contracts the General Assembly has been quite specific and has explicitly made conduct in prior terms applicable to disqualify a person from holding office in a later term. However, as stated both in the McMillen case, supra, and in the Coppola case, supra, statutes authorizing the removal of an incumbent from office are quasi-penal in character and should be strictly construed. See, also, State, ex rel. Sterns, v. Board of Elections, 20 Ohio St.2d 41.
R.C. 733.72 applies to misfeasance or malfeasance "in office." This language is ambiguous and conceivably could apply to either present or prior terms of office. Strict construction however would require limitation of the word "office" to the single term in which the offense occurred. In the absence of clear legislative language making conduct in prior terms a ground for removal from office under this section, the misfeasance or malfeasance alleged as a ground for removal must occur during the term from which removal is sought and be subsequent to the exercise of the power to elect vested in the electors of the municipality.
Since all conduct alleged as a ground for removal occurred in a prior term of office, and relator has since been reelected to his present term by the electors of the city of Cleveland, the issue presented to the Probate Court is now moot. See Miner v. Witt, 82 Ohio St. 237. Thus, there no longer exists any reason for this court to determine, in an action in prohibition, the issue of the jurisdiction of the Probate Court herein.
Appeal dismissed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN and LEACH, JJ., concur.
CHIEF JUSTICE TAFT participated in this case which was, however, decided after his death.
COLE, J., of the Third Appellate District, sitting for MATTHIAS, J.
LEACH, J., of the Tenth Appellate District, sitting for CORRIGAN, J.