356 N.E.2d 299
No. 76-146Supreme Court of Ohio.
Decided October 27, 1976.
Municipal corporations — Village officers — Appointment — Mayor’s duty not completed, when.
APPEAL from the Court of Appeals for Cuyahoga County.
Appellant is the mayor of the village of Valley View, a non-chartered municipality. On January 2, 1974, pursuant to Section 149.02 of the village’s codified ordinances, appellant appointed Frank Piasecki, with council approval, to be street commissioner for a term of one year. On January 7, 1975, appellant reappointed Piasecki, but the reappointment was rejected by council.
Appellant did not thereafter submit to council the name of another appointee for confirmation as street commissioner, relying upon a provision in Section 149.02 which permitted an officer to continue in office until a successor is appointed and qualified. On March 4, 1975, village council deleted that provision and amended Section 149.02 to read as follows: “The street commissioner shall be appointed by the mayor, subject to confirmation by council. Such appointment shall be for a term of one year.” Appellant has continued to resubmit the name of Frank Piasecki for confirmation as street commissioner, and on each such occasion the appointment has been rejected by council. Appellant has not submitted the name of any other appointee for confirmation.
The Court of Appeals issued a writ of mandamus ordering appellant to appoint a street commissioner, as required by Section 149.02. The court further ordered appellant not to resubmit the name of a person previously rejected by council.
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An appeal to this court has been taken as a matter of right.
Mr. Jules N. Koach, village solicitor, for appellee.
Mr. N. Norman Gravill, for appellant.
Per Curiam.
Appellant does not deny that it is his duty to appoint a street commissioner.
However, he contends that the words in Section 149.02, “the street commissioner shall be appointed by the mayor, subject to confirmation by council,” conflict with those words in R.C. 735.31, “a street commissioner shall be appointed by the mayor * * * and confirmed by the legislative authority * * *.” Such conflict, appellant argues further, results in R.C. 735.31
controlling the appointment procedure, based upon the authority contained in Section 3, Article XVIII of the Ohio Constitution.
Appellant then argues that under R.C. 735.31, he has completed his duty of appointment when a name is submitted to village council, and that confirmation by that body is not a part of the appointment procedure.
It is not necessary to determine whether a conflict exists here because, under either R.C. 735.31 or Section 149.02, appellant has a duty to appoint a street commissioner and that duty is not completed under the present circumstances where the name of the same appointee is repeatedly presented to village council and is rejected. Under these facts, the Court of Appeals properly issued a writ ordering appellant to perform such duty.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O’NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
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