State ex rel. Atty. Gen. v. Kearns

• Citation: 25 N.E. 1027,47 Ohio St. 566
• Parties: STATE ex rel. ATTORNEY GENERAL v. KEARNS et al.
• Decision Date: 09 December 1890
• Court: Ohio Supreme Court

25 N.E. 1027

47 Ohio St. 566

STATE ex rel. ATTORNEY GENERAL v. KEARNS et al.

Supreme Court of Ohio.

December 9, 1890

Quo warranto . Submitted on demurrer to answer.

Syllabus by the Court

1. Where a city council passes an ordinance redistricting the city into wards, no election can be held under it until the next ensuing annual election for corporation officers. An earlier election is specifically prohibited by section 1632 of the Revised Statutes. Hence, where a special election is attempted to be held for the selection of members of the council under such ordinance prior to the next ensuing annual election, such special election is inoperative, and persons holding seats in the council by virtue of certificates based upon such special election may be ousted by quo warranto .

2. Where judgment of ouster is pronounced against persons holding seats in a city council, and they are ousted therefrom on the ground that the wards from which they claimed to have been elected had no legal existence, such judgment of ouster does not create vacancies in the council which may be filled by a special election.

3. Under section 1673 and section 8 of the Revised Statutes, a member of a city council is entitled to hold the office until his successor is elected and qualified.

4. The allegation in a pleading that a member of a council has wholly abandoned his seat as such councilman does not state an issuable fact, and is bad on demurrer.

5. The appointment by a city council of a member thereof to an office which the statute makes a member of council ineligible to fill, and his acceptance thereof, does not work an abandonment of his office as councilman. The appointment to the second office is absolutely void.

D. K. Watson , Atty. Gen., R. A. Harrison , and S. A. Bowman , for relator.

John A. McMahon and John L. Zimmerman , for defendants.

SPEAR J.

The defendants, Michael Kearns, George Wissinger, and Samuel Scott, seek to justify the holding of seats as councilmen from the fourth, seventh, and eighth wards of the city of Spring-field, by virtue of a special election which occurred July 9, 1890, called by proclamation of the mayor, under the authority of an ordinance passed by the council May 27, 1890 redistricting the city into wards, of which the said fourth seventh, and eighth were portions. In the case of State v O'Brien, ante, 121, (decided by this court June 27, 1890,) O'Brien and his five co-defendants were ousted from seats in that body on the ground that the wards from which they claimed to have been elected had no legal existence. These persons held seats in the council at the time of the passage of the ordinance above referred to, and voted for it, and the validity of the ordinance rests upon their votes in its favor. The judgment of ouster was assumed by the mayor to create vacancies in the council, and he assumed, further, that he might call a special election, under the ordinance of May 27th, to fill them. Both assumptions were unwarranted. There being no such wards to be represented, there could be no member from such wards, and it is not possible for a vacancy to occur in the incumbency of an office which itself had no existence. It is not necessary to a decision of the present case to pass upon the validity of the ordinance, and we do not decide that question. But, whatever view is taken of that, no such special election was authorized by law. The proclamation had no force, and the attempted election, at least so far as conferring title is concerned, was a nullity. Section 1632, Rev. St., specifically, in direct terms, forbade it. The defendants have no title, and judgment of ouster will be entered against them. The relator seeks to have inducted, as members of council of the city of Springfield, Erasmus T. Thomas, Lifford H. Purcell, Thomas J. Thomas, Albert Tuttle, Ephraim N. Tibbetts, and Joseph D. Little, as members from the second, third, fourth, sixth, seventh,...