Opinion
No. 27063
Decided November 22, 1939.
Schools — County superintendent legally appointed for three-year term to fill vacancy — Section 4744, General Code (104 Ohio Laws, 142) — Incumbent officers may bind successors, when — Appointment at recessed session of regular meeting, valid — Quo warranto — Misjoinder of respondents — Superintendent, board members and attorney at law.
IN QUO WARRANTO.
The relator, Harry S. Rees, filed an amended petition in quo warranto in this court, naming as respondents Lawrence A. Winchell, who is serving as county superintendent of schools of the Darke county school district, three members of the county board of education and a member of the bar.
The cause came before this court on the separate demurrers of the respondent Winchell, the respondent county board members and the respondent attorney at law, and the demurrers were sustained in part, upon the grounds that:
1. There was a misjoinder of parties. The respondent Winchell could not be joined with the other respondents, excepting respondent Hapner, a member of the county board of education who was serving as its secretary.
2. The other members of the county board of education and the attorney at law were not necessary or proper parties to this proceeding.
3. Since those last named were misjoined as respondents, any attempted cause of action asserted against them fell.
We held that the well pleaded allegations of the amended petition stated a cause of action in quo warranto against the respondent Winchell as to the office of county superintendent and the respondent Hapner as to the office of secretary of the county board of education.
Thereupon a second amended petition was filed against respondent Winchell alone, who answered. Relator filed an amended reply. The controversy was referred to a special master commissioner, who has submitted his findings of facts and conclusions of law after a hearing upon the pleadings, exhibits, evidence and the arguments and briefs of counsel.
Regular meetings of the county board of education were fixed for the first Thursday in even-numbered months, and the regular session on October 7, 1937, recessed to meet on October 20, 1937, when the board again recessed to meet on November 15, 1937.
At the meeting on the date last stated the board of education accepted the resignation of the then superintendent of schools, who had been appointed for a term of three years commencing August 1, 1937, and ending July 31, 1940; appointed the relator Rees as superintendent of schools from November 15, 1937, to July 31, 1940; fixed his salary with expenses; and transacted other business. Rees assumed the duties of the office and has continually served or attempted to serve as county superintendent of schools.
At the election on November 2, 1937, three new members were elected for terms beginning January 15, 1938, and two hold-over members remained on the board of education.
At the statutory board meeting on January 15, 1938, a resolution was adopted by the votes of the newly elected members rescinding the appointment of relator Rees as superintendent and directing the newly elected board president to write a cancellation across the resolution of employment of relator Rees as superintendent.
At a meeting on February 12th a paper was presented asking dismissal of relator Rees as superintendent and setting forth certain charges. The paper was signed by approximately 18 residents of the county, who shortly thereafter requested in writing that their names be withdrawn therefrom. A hearing on the alleged charges was held on February 25 and 26, 1938, at which witnesses gave statements and testimony, consisting of hearsay, conversations and recitations of events claimed to have taken place in 1934, 1935 and 1936, before relator Rees was an applicant for the superintendency of schools of Darke county. There was no legal evidence to sustain the charges.
On March 12, 1938, at a recessed regular meeting, a resolution finding Rees guilty of some of the alleged charges was adopted by the votes of the three newly elected members. At the next recessed meeting on March 17 the action taken at the preceding meeting was reconsidered and adopted by the same vote.
On April 9, 1938, at a recessed session of a regular meeting, a motion was made and seconded that Lawrence A. Winchell be appointed as county superintendent of schools beginning April 9, 1938, and ending July 31, 1939, at a stipulated salary, with expenses. The brief of counsel for respondent Winchell states that he was again appointed on March 2, 1939, to serve a term beginning August 1, 1939, and ending July 31, 1941.
The special master commissioner found that the appointment of relator Rees to the office of superintendent of schools on November 15, 1937, was legal, that the attempted cancellation of his appointment and the ouster proceedings were not in accordance with law, and that he is entitled to have respondent Winchell ousted and to be restored to office.
The relator moved to confirm the report of the special master commissioner and the respondent Winchell filed exceptions to the report and asked that the action in quo warranto be dismissed.
Messrs. Maher Marchal, for relator.
Mr. Wilbur D. Spidel, Mr. George W. Porter and Messrs. Peck, Shaffer, Williams Gorman, for respondent, Lawrence A. Winchell.
The report of the special master commissioner is confirmed. The relator has established his clear right to the office under the facts and the law. Christmann v. Coleman, 117 Ohio St. 1, 157 N.E. 482.
The brief of respondent poses several propositions but all need not languish in legal literature. They will not be reposed in haec verba or seriatim.
Counsel for respondent contend that since the statutes pertaining to county superintendent did not provide for filling a vacancy and Section 4744, General Code, required an appointment to be made at a regular meeting held not later than July 20th for a term not longer than three years commencing on the first day of August, ergo, the relator has not shown he is entitled to the office as his appointment was unlawful and he was not appointed at a regular meeting.
After conceding that an appointing authority has the right to fill a vacancy where there is no statutory provision therefor, counsel for respondent contend that, assuming relator was appointed validly, his term expired either when the new board took office, or at the end of the school year, or upon July 31, 1938.
Where power is granted by statute to act for a period of time those lawfully in office may bind their successors. Edwards v. Matthews, 100 Ohio St. 487, 127 N.E. 462; 32 Ohio Jurisprudence, 942, Section 81; 70 A. L. R., 794.
The requirement of Section 4744, General Code (104 Ohio Laws, 142), that an appointment should be made not later than July 20th, applied when a superintendent was to be reemployed or employed to succeed one whose term would expire on August 1st. That section stipulated a term not longer than three years commencing on the first of August, and that limitation will not be so interpreted as to restrict the appointment to the end of the current school year or the succeeding July 31st.
Section 4733, General Code, makes certain requirements as to regular meetings of a county board of education and provides for calling other meetings, as well as for a quorum at regular or special meetings. Counsel for respondent maintain that under that section a recessed meeting is not a regular meeting at which a superintendent could have been appointed pursuant to Section 4744, General Code. As stated in 2 McQuillin on Municipal Corporations (2 Ed.), 583, Section 632: "In the absence of provision to the contrary, when a regular or stated or called corporate meeting is once duly organized at the time and place appointed it possesses the incidental power to adjourn to a future time." It is also stated on page 585, Section 633, that "If a regular meeting is adjourned, any business which would have been proper for the body to consider at that meeting may be considered and acted upon at the adjourned meeting * * * . A meeting pursuant to adjournment of a regular meeting is a regular, not a special, meeting and is a continuation of the regular meeting, and any business permissible to be transacted at the regular meeting may, of course, take place at the adjourned meeting."
The so-called "recessed" sessions of the regular meetings were in fact "adjourned" meetings of the regular meetings, and therefore the relator was legally appointed superintendent of schools at the meeting of the county board of education on November 15, 1937.
An order of ouster against the respondent and of induction in favor of the relator will be issued.
Judgment of ouster.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.
MYERS, J., dissents.