State ex rel. Corrigan v. Noble

Celebrezze, C.J.,

dissenting. I dissent for the reason that the majority has ignored the clear unambiguous provisions of the North Olmsted City Charter in order to reach today’s result.

In my opinion, relator correctly argues that in the absence of a fixed term of office, his appointment is effective until he is removed. We recently stated in State, ex rel. Norman, v. Viebranz (1985), 19 Ohio St. 3d 146, 147:

“ ‘* * * The power of appointment, once exercised, is exhausted until a new vacancy occurs. “Where power has been given to appoint to an office and the same has been exercised, any subsequent appointment to the same office will be void unless the prior incumbent has been removed or *87the office has otherwise become vacant.” ’ State, ex rel. Gahl, v. Lutz (1937), 132 Ohio St. 466, 471 [8 O.O. 413], * * *”

The majority painstakingly avoids the conclusion that relator was “removed” from office in order to conveniently ignore the explicit provisions of the city charter which require that removals be made with a two-thirds concurrence of city council. Granted, the new mayor would be placed in an awkward situation if she were unable to obtain the approval of council necessary to remove her predecessor’s appointees; however, the remedy is not for this court to rewrite the North Olmsted City Charter.

In interpreting city charter provisions, this court has long adhered to the rule that it is not our duty to consider the wisdom or feasibility of the provision under consideration. In State, ex rel. Hackley, v. Edmonds (1948), 150 Ohio St. 203, 217 [37 O.O. 474], we held:

<<* * * But jf Section 3 and Section 7 of Article XVIII of the Ohio Constitution are to have any meaning, and are not to be completely emasculated and eviscerated, we are constrained to hold that in matters of purely local concern the municipality has the right, in adopting its charter, to make provisions that may be silly and unwise. If they prove to be so, the remedy is in the hands of the people who have adopted the charter. A majority of them has the power to amend it.”

Until such time as the charter is amended, the well-established law of this state requires that the removal of municipal officers be made in accordance with the dictates of the city charter. State, ex rel. Gerhardt, v. Krehbiel (1974), 38 Ohio St. 2d 90 [67 O.O.2d 92].