Summary
In Trago, "[t]he vacancy had been created by operation of law, leaving a mere ministerial duty to appoint someone to fill the office."
Summary of this case from Corban v. Chesapeake Expl., L.L.C.Opinion
No. 35016
Decided April 3, 1957.
Public offices — No vested interest or private right therein — Office of sheriff — Circumstances under which office vacant — General Assembly may prescribe — County office deemed vacant for absence of officer, when — Section 305.03, Revised Code, constitutional.
1. Public offices are held neither by grant nor contract, and no person has a vested interest or private right of property in them.
2. The office of sheriff is a county office created by legislative enactment, and the General Assembly has the authority not only to provide for the term of office but to reasonably provide as to the circumstances under which such office shall be deemed vacant.
3. The provision of Section 305.03, Revised Code, that, whenever a county officer is absent from the county for 90 consecutive days, except in the case of sickness or injury or while being in the active military service of the United States, his office shall be deemed vacant and the county commissioners shall declare a vacancy to exist, is a valid exercise of legislative power.
APPEAL from the Court of Appeals for Jackson County.
The present cause originated in the Court of Appeals for Jackson County and is in this court as a matter of right.
In the Court of Appeals, David L. Trago, appellant herein and hereinafter designated relator, instituted an action in quo warranto against John E. Evans, appellee herein and hereinafter designated respondent.
In his petition relator avers that at the general election in November 1952 he was elected to the office of sheriff of Jackson County for a term of four years from the first day of January 1953; that he was duly commissioned and he duly qualified for the discharge of the duties of such office, is lawfully authorized to exercise the powers and duties and to receive the fees and emoluments of such office during such term, and is now entitled to such office; that respondent has usurped and unlawfully holds and exercises the duties of the office and assumes to perform all the duties thereof to the exclusion of relator and to receive the fees and emoluments thereof under claim of a resolution passed by the county commissioners of Jackson County and a resolution passed by the probate judge, county auditor and county recorder of such county, purporting to appoint respondent to the office of sheriff; and that relator has not yielded to respondent's supposed incumbency of such office.
Relator prays that respondent be required to answer by what warrant he claims to enjoy the office of sheriff; that respondent be adjudged not entitled thereto; that judgment of ouster therefrom be declared against him; and that relator be adjudged entitled to such office.
In his amended answer respondent admits that relator was elected to the office of sheriff as alleged in his petition, and generally denies all allegations of the petition except those admitted to be true.
Respondent avers that by reason of relator's absence from Jackson County for 90 consecutive days from August 30, 1955, to and including November 30, 1955, because of being incarcerated in the Gallia County jail, such incarceration not being due to either sickness or injury, the office of sheriff of Jackson County became vacant on November 30, 1955, as provided in Section 305.03, Revised Code; that the fact of such vacancy was declared by resolution of the county commissioners, as provided in such section; that respondent was appointed to fill the vacancy thus declared; that such appointment was made either by resolution of the county commissioners, as provided in Section 311.03, Revised Code, or by resolution of the probate judge, county auditor and county recorder, as provided in Section 305.02, Revised Code; that respondent was appointed sheriff pursuant to Sections 305.02, 305.03 and 311.03, Revised Code, received his commission pursuant to Sections 107.05 and 111.07, Revised Code, and took such appointment to the Secretary of State's and Governor's offices and received his certificate as sheriff of Jackson County; and that relator, at the time of filing his petition, was incarcerated in the Gallia County jail, pursuant to a conviction for contributing to the delinquency of a minor child, having been sentenced August 30, 1955, for a period of one year.
Respondent prays for dismissal of the petition and confirmation of his right to hold the office of sheriff.
Relator filed a reply to the amended answer.
All the facts in the case are stipulated.
Relator was elected to the office of sheriff of Jackson County at the 1952 election and legally qualified for the office. He was incarcerated in the Gallia County jail, as alleged in respondent's answer, and was absent from Jackson County from August 30, 1955, to and including November 30, 1955. The fact of such absence was declared by resolution of the county commissioners, as alleged in respondent's answer. Respondent was purportedly appointed to fill the vacancy so declared in the office of sheriff by resolutions passed, respectively, by the county commissioners, and by the probate judge, auditor and recorder of Jackson County, as alleged in the answer. Respondent received a commission, signed by the Secretary of State and the Governor, purporting to appoint him sheriff of Jackson County. Prior to the passage of the resolutions, no complaint of any kind against relator was filed with the commissioners, the probate judge, the county auditor, or the county recorder, or in any court of competent jurisdiction, and no hearing was had before any of the aforementioned officials where relator could appear and defend himself, and he had no notice of any kind prior to passage of the aforementioned resolutions.
The Court of Appeals dismissed the petition of relator, denied the prayer therein, and determined that respondent has full right to hold the office of sheriff, whereupon relator appealed to this court.
Mr. M.M. Carlisle, Mr. John A. Staker and Mr. Richard L. Eisnaugle, for appellant.
Mrs. Mary Nicholson Snyder and Mr. Roy J. Gilliland, prosecuting attorneys, for appellee.
Section 305.03, Revised Code, reads as follows:
"Whenever any county officer is absent from the county for 90 consecutive days, except in case of sickness or injury as provided in this section, his office shall be deemed vacant and the Board of County Commissioners shall declare a vacancy to exist in such office.
"Such vacancy shall be filled in the manner provided by Section 305.02 of the Revised Code.
"Whenever any county officer is absent from the county because of sickness or injury, he shall cause to be filed with the Board of County Commissioners a physician's certificate of his sickness or injury. If such certificate is not filed with the board within 10 days after the expiration of the 90 consecutive days of absence from the county, his office shall be deemed vacant and the board shall declare a vacancy to exist in such office.
"This section shall not apply to a county officer while in the active military service of the United States."
The first complaint of relator is that the county commissioners were premature in declaring the office of sheriff vacant because they did so right after the 90 days absence of relator had expired, without giving him an extra 10 days in which to file a physician's certificate with reference to his absence being caused by sickness or injury.
This complaint has no foundation for the obvious reason that it is stipulated that relator's absence from the county for 90 days was not because of sickness or injury but was because of his incarceration in jail in another county.
The principal complaint of relator is that Section 305.03, Revised Code, conflicts with the Ohio Constitution in that the former does not provide for the filing of a complaint giving notice thereof or make any provision for a trial or hearing, and the case of State, ex rel. Hoel, Pros. Atty., v. Brown, 105 Ohio St. 479, 138 N.E. 230, is relied upon as the basis for this contention. In that case this court construed Section 38 of Article II of the Constitution of Ohio, and Section 2713, General Code.
The constitutional provision reads as follows:
"Laws shall be passed providing for the prompt removal from office, upon complaint and hearing, of all officers, including state officers, judges and members of the General Assembly, for any misconduct involving moral turpitude or for other cause provided by law, and this method shall be in addition to impeachment or other method of removal authorized by the Constitution."
Section 2713, General Code, read as follows:
"On examination of the county treasury, if it appears by the report of the examiner or examiners that an embezzlement has been committed by the county treasurer, the county commissioners shall forthwith remove the treasurer from office, and appoint some person to fill the vacancy thereby created * * *."
The county commissioners acted summarily and ex parte under the provisions of the Code section to remove the county treasurer from office after the state Bureau of Inspection and Supervision of Public Offices filed a report with the Auditor of State and upon the finding of the commissioners that such report showed the treasurer to be guilty of embezzlement.
The treasurer refused to surrender his office, whereupon an action in quo warranto was instituted against him by the prosecuting attorney of the county.
This court held that a proceeding to remove an officer from office is governed by the constitutional provision, that such provision plainly is that such removal shall be upon complaint and hearing, and that a law providing for removal upon charges, which law does not provide for such complaint and hearing, violates the constitutional provision. Therefore, Section 2713, General Code, was annulled.
We are of the opinion that the Brown case is not applicable to the facts in the present controversy.
In the Brown case, the treasurer was accused of embezzlement. The county commissioners sought to summarily remove him from office. He was clearly entitled under the constitutional provision to the filing of a complaint and a hearing so that he might defend against the claim that he had embezzled.
In the present case there is no question of fact to be determined.
It is stipulated that relator was absent from Jackson County for 90 consecutive days, and that his absence was not caused by sickness or injury. Therefore, the county commissioners had a mere ministerial and mandatory duty to perform, that is, to declare that a vacancy existed in the office of sheriff, which they did. Thereafter, respondent was appointed sheriff, in accordance with statutory provisions, not because relator had been removed from office but for the reason there was a vacancy in the office.
Relator contends that his election to the office of sheriff gave him a property right or interest in such office, and that to deprive him of that right, without complaint or hearing, was a denial of due process of law. If his premise were correct, such contention would have much persuasive force. However, the premise is utterly without foundation.
In Ohio, the incumbent of an office has no proprietorship, or right of property, therein. Knoup, Treas., v. Piqua Branch of State Bank of Ohio, 1 Ohio St. 603, where this court, with Judges Ranney and Thurman sitting upon it, said as follows:
"* * * but if the office be created by the Legislature, it may, in the absence of express constitutional restriction, be abolished or suspended; and yet the officer can not claim compensation, for the loss of his office. He has no property, or individual right in it. He is but a trustee for the public; and whenever the public interest requires that the office should be abolished, or the duties of the office become unnecessary, the incumbent can not object to the abolition of the office."
In the case of Steubenville v. Culp, 38 Ohio St. 18, 43 Am.Rep., 417, Longworth, J., said:
"Offices are held, in this country, neither by grant nor contract, nor has any person a vested interest or private right of property in them.
"The statute speaks of the suspension creating a vacancy, and provides how that vacancy shall be filled. If the office is vacant it becomes, as to the suspended person, for the time being, as though it did not exist, and as to the public the person appointed to fill such vacancy is the sole incumbent of the office."
The office of sheriff, election thereto and the obligations, duties and emoluments thereof are provided for in Sections 311.01 to 311.99, Revised Code. It is a county office created by legislative enactment, and the General Assembly has the authority not only to provide for the term of office but to reasonably provide as to the circumstances under which such office shall be deemed vacant. This it has done by the passage of Section 305.03, Revised Code, wherein it is said that whenever any county officer is absent from the county for 90 consecutive days, except in case of sickness or injury or while being in the active military service of the United States, the office shall be deemed vacant and the county commissioners shall declare a vacancy to exist.
Any candidate for any county office is bound to know the provisions of this statute and is bound to know that if elected his office will become vacant in case of his absence as outlined in the statute, and, therefore, since his office is a public privilege and not a property right, he can have no redress if a vacancy in his office occurs in accordance with the statute. If, at times, harsh consequences may ensue as a result of the enforcement of the law, the remedy for those consequences is a province of the legislative and not the judicial branch of the government.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.