State ex rel. Koach v. Westfall

356 N.E.2d 299, 48 Ohio St. 2d 23, 2 Ohio Op. 3d 97, 1976 Ohio LEXIS 700

• Court: Ohio Supreme Court
• Decided: October 27, 1976
• Docket: No. 76-146
• Status: Published

Opinion

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, subjéct to confirmation by council,” conflict with those words in R. C. 735.31, “a street commissioner shall be appointéd 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, hé 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 neeessary 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.