State ex rel. Purola v. Cable , 48 Ohio St. 2d 239 ( 1976 )

O’Neill, C. J.

The judgment of the Court of Appeals is reversed and Peter C. Prior is reinstated in the office of Township Trustee of Russell Township.

The-controlling facts in this case are-that' prior to June 27, 1975, the Russell Township Board of Trustees consisted 'of three'duly-elected trustees, Doriald A. Breck-inridge, Robert D. Cable and William V. Trowbridge. Cable-Was Serving a term which was to expire December 31, 1975.- Breckinridge5 and Trowbridge were serving terms which'Were to-expire December 31, 1977. ' '

Oh' June' 27,11975, Trowbridge resigned fróm'the board. The two remaining members, Breckenridge and ■ Cable, acted:to-fill the5vácancy by voting to appoint'Cable to fill Trowbridge’s "'Unexpired term. Breckinridge and ' Cable then próceedéd to take action to appoint Betfy At Roman to fill-Cable’s uiiexpired term. - ->*' * '

(M December 11, 1975, Cable resigned from the board. Breckinridge-and (Roman then acted to appoint' Peter G. Prior tó' fillüie vacancy -created by-Cable’s- resignation. :

The question of whether Cable could vote, to -appoint himself to the board of trustees to fill the unexpired term of Trowbridge is moot because Cable resigned prior Lx'the hearing on the merits of the quo warrcmto action filed against him.

The controlling question in this case is whether1 the action of a member of a township board of trustees* Who is at least á de facto member, by combining her vote, with the vote of a duly-elected de jure member of the board to appoint a qualified person to the board in order to:fill a vacancy created by the resignation of a member of the board makes such appointee a de jure member of such board.

This court holds that such appointee (Prior) is -a,:de jure member ofthe board. ‘

R. C. 503.24 provides, in pertinent part:

“ * * * if there is a vacancy from .any other cause, the board of township trustees shall appoint a person, having the qualifications of an elector to fill such vacancy ifor the unexpired term.” .' -¡¡I -

■ Breckinridge and Roman, acting pursuant' to, / that language, appointed Prior. Breckinridge was a duly.éleeted de jure member of the board. .. : ■ i . •.

Under settled Ohio case law, Roman was at least a de facto member of the board of trustees. State, ex rel. Witten, v. Ferguson (1947), 148 Ohio St. 702, 709, 76 N. E. 2d 886; State, ex rel. Westcott, v. Ring (1933), 126 Ohio St. 203, 184 N. E. 757; State, ex rel. Paul, v. Russell (1954), 162 Ohio St. 254, 122 N. E. 2d 780.

Roman entered into and publicly discharged the duties of township trustee under color of a formal-appointment by the board of trustees. Under Ohio law, One who assumes public office; even if he is later , held to be > ineligible to hold office, or if his appointment is, later -. held. invalid, is a die facto officer. Roman was at least a. de- facto -trustee, and while she exercised the functions of the of ficé* all of her acts performed in such capacity, were valid insofar as they ■ ■ affected /1 the rights of ■ the- public.; •. and, ■ third parties-.‘Her vote, together with .that ó.f Breckinridge* ‘ad-mi-ttedly a de jure trustee, was legally sufficient to appoint Prior ¡ a >de- jure member of the board on December-11, 1975. Prior, therefore, has been at all times since December 11,91.975, a de jure member of the' Russell. Township-Board of Trustees.

The' ■ persuasive rationale, for- this holding is that it is" illogical to limit the power of an officer de -facto, which, it‘ is universally conceded, extends, to binding .his .municipal corporation by the .issuance of bonds and. the'making of Othof contracts within the scope of the authority of the office' .which'he holds de facto, by an exception: excluding his- power- to' appoint to office, if he would possess such pówerásían Officer'de jure. It is in the interest of the public that offices should be filled, and by incumbents not liable to be displaced by proceedings against' other persons to: which they are not parties. It is in the interest of the .person who accepts such an appointment)- apparently conferring upon him the powers and emoluments . of office, that he acquires thereby what is apparently conferred, and-what his acceptance of the office indicates he assumes from the ‘apparent authority which was properly conferred upon him.

In People ex rel. Norfleet, v. Staton (1875), 73 N. C. 546, 550, 21 Am. Rep. 479, the.court stated:

‘‘The only difference between an officer de facto and an officer'de jure is, that the former may be ousted: in a direct proceeding against him, while the latter cannot be. So far as the public and third persons are concerned, there is -no difference whatever! The acts of one have precisely the same force and effect as the acts, of the other." Contra, Nieda v. Bennett (1936), 117 N. J. L. 231, 187 A. 629.

The rationale for holding Prior to be a de jure trustee seemswell established in the Ohio law.. In State, ex rel. Paul, v. Russell (1954), 162 Ohio St. 254, 257, 122 N. E. 2d 780, Chief Justice Weygandt said:

• “It has. been said that the doctrine- of-de facto officers rests on the principle of protection to the. interests of the public and third parties, not to protect or; vindicate the. acts or rights of the particular de facto officer or the claims or rights of rival claimants to the particular office. The law validates the acts of de facto officers as to the public and third persons on the ground that, although not officers de jure, they are, in virtue of the particular circumstances,' officers in fact whose acts public policy requires should be considered valid. ”

The judgment of the Court of Appeals is, therefore, revérsed and Peter C. Prior is reinstated in the office of township trustee, Russell Township, Geauga County* Ohio.

Judgment reversed'.

HERBERT, CORRIGAN, STERN, CELEBREZZE, STEPHENSON and P. Brown, J.J., concur. ,. Stephenson, J., of the Fourth Appellate District, sitting for W. Brown, J.