State ex rel. Calderwood v. Miller

• Decision Date: 24 April 1900
• Parties: STATE ex rel. CALDERWOOD v. MILLER.
• Court: Ohio Supreme Court

57 N.E. 227

62 Ohio St. 436

STATE ex rel. CALDERWOOD v. MILLER.

Supreme Court of Ohio.

April 24, 1900

Error to circuit court, Darke county.

Quo warranto by the state, on the relation of Elsworth E Calderwood, against Elliott M. Miller. Judgment for defendant, and plaintiff brings error. Reversed.

This action was brought by petition in quo warranto, filed by the relator in the circuit court of Darke county, to oust the defendant from the office of city clerk of Greenville,-a city of the fourth grade of the second class, having a council composed of eight members. The relator alleged that the defendant was not the legally elected clerk of said city, and that he has unlawfully usurped and intruded himself into the said office, to which the relator claims that he was properly elected and was entitled. The most material part of the petition is as follows: ‘That on the 17th day of April A. D. 1899, at the meeting provided by law for the organization of the council, the mayor presiding, the newly-elected members of the council having properly qualified, and all the members being present, an election was held for the office of clerk of the said city, which resulted in the said Elsworth E. Calderwood, relator, receiving four votes; Elliott M. Miller, two votes; and Harry J. Brenneman two votes. Thereupon the mayor declared the relator duly elected to the office of city clerk of said city. That thereafter, but without authority or legal right, as the relator avers, the two members of said council who voted for said Harry J. Brenneman changed their votes to Elliott M Miller, and the mayor then assumed, illegally, as the relator claims and avers, to cast the deciding vote in favor of said Elliott M. Miller.’ The defendant's answer contains three defenses. The defendant, in his first defense, denies that the relator was elected, and denies that the mayor at any time declared the relator elected, to the office of city clerk of said city. In the second defense the defendant says that the said city council met at the time stated in the petition for organization and election of city clerk, all members, namely eight, being present, and that the mayor of said city presided at said meeting; that thereupon the said city council proceeded to elect a city clerk, and, the roll being called, four members of said council voted for said relator, Elsworth E. Calderwood, and two members of said council voted for said Harry Brenneman, and two members of said council voted for said Elliott M. Miller, the defendant that thereupon, and before the said presiding officer, the mayor, had announced or in any way declared any result, the two members of said council who had cast their votes for said Harry Brenneman changed their votes from said Harry Brenneman to said Elliott Miller, and the said two members of said council each cast his vote for said Elliott Miller, the defendant, making a tie between said relator and defendant Miller, the said relator receiving four votes, and the defendant Miller receiving four votes; that thereupon the said mayor of said city cast his vote in favor of said Elliott Miller, and publicly declared said Elliott Miller elected to the office of city clerk of said city of Greenville for the term of two years; that thereupon the said Elliott Miller gave the bond and took the oath required by law in such cases, and entered upon the duties of said office, and has been, and is now, discharging the same. The third defense is as follows: ‘The said defendant Elliott Miller, for his third defense, says that he claims title to said office of city clerk, and the right to hold said office and to discharge the duties and receive the emoluments thereof, by virtue of the action of the city council of said city had in the council chamber on April 17, 1899; that the said city council is composed of eight members, and that a meeting of said council was held on the 17th day of April, all members being present, for organization and election of a city clerk; that the mayor of said city was present at said meeting, and presided at the same; that the record and minutes of said meeting of said council, so far as they relate to the election of said city clerk, are as follows, namely: ‘The mayor then called for the vote on clerk, which resulted as follows: For E. E. Calderwood-Ries, Arens, Harter, and Ridenour. For E. M. Miller-Swartz and Reppeto. For H. J. Brenneman-Westfall and Colvin. Calderwood, four; Miller, two; and Brenneman, two. The mayor then stated, if any member desired to change his vote before he would announce his decision, they should do so, and, if no member desired to change his vote, he would have to declare E. E. Calderwood elected as clerk. Colvin and Westfall thereupon declared their intention to change their votes, and did so, by changing their votes from that of Brenneman to that of Miller; the vote then being: Miller, four; Calderwood, four. The mayor then stated, as the vote was a tie, he would cast the deciding vote in favor of E. M. Miller, and declared E. M. Miller...