State ex rel. Halak v. Cebula

• Decision Date: 30 March 1977
• Docket Number: No. 76-763,76-763
• Citation: 49 Ohio St.2d 291,361 N.E.2d 244
• Parties: , 3 O.O.3d 439 The STATE ex rel. HALAK, Appellant, v. CEBULA et al., Appellees.
• Court: Ohio Supreme Court

Page 291

49 Ohio St.2d 291

361 N.E.2d 244, 3 O.O.3d 439

The STATE ex rel. HALAK, Appellant, v. CEBULA et al., Appellees.

No. 76-763.

Supreme Court of Ohio.

March 30, 1977.

Relator, John G. Halak, and respondent, Robert F. Cebula, were both candidates for councilman-at-large in North Royalton in the election of November 4, 1975. There were five candidates for three seats; respondent was elected and relator came in fourth.

On January 28, 1976, the relator filed a complaint for a writ of quo warranto in the Court of Appeals, claiming that the respondent was ineligible for the office because in 1973 he had failed to file a statement of receipts and expenditures concerning a previous, losing campaign, a statement which was required at that time under former R.C. 3517.10. Failure to file disqualified the person from becoming a candidate in any election for five years. The relator claimed further that 'by virtue of respondent's ineligibility to hold office that he, relator, received the third-highest number of votes of those candidates eligible for the office of councilman-at-large and is therefore entitled to the office (of) councilman-at-large now wrongfully held by respondent.'

The Court of Appeals allowed the Secretary of State to intervene and granted a motion to dismiss filed by the respondent, stating that:

'Where there is no dispute as to the operative facts and where the controlling law requires a finding that a relator would not be entitled to an office even if that office were determined to be unlawfully held by another, the relator has not presented a good faith claim of entitlement to the disputed office and the complaint in quo warranto must consequently be dismissed for lack of standing.'

The court also noted that the respondent's right to hold office could be challenged by other remedies at law, and held that the relator consequently lacked standing.

The cause is before this court on an appeal as of right.

Cassidy & Mottl Co., L. P. A. and Paul W. Cassidy, Parma Heights, for appellant.

William J. Slivka and Robert J. Amsdell, Cleveland, for appellee Robert F. Cebula.

William J. Brown, Atty. Gen., and Thomas V. Martin, Columbus, for appellee Secretary of State.

PER CURIAM.

Ordinarily, an action in quo warranto against a public official, inquring by what authority the individual holds his office, must be brought by the Attorney General or a prosecuting attorney. An exception is provided in R.C. 2733.06 which states:

'A person claiming to be entitled to a public office unlawfully held and exercised by another may bring an action therefor by himself or an attorney at law, upon giving security for costs.'

It has long been held and accepted that a private person cannot maintain an action in quo warranto except under the authority of this statute, and 'he must show not only that he is entitled to the office, but also that it is unlawfully held and exercised by the defendant in the action.' State ex rel. Heer v. Butterfield (1915), 92 Ohio St. 428, 111 N.E. 279, paragraph one of the syllabus; State ex rel. Lindley v. The Maccabees (1924), 109 Ohio St. 454, 142 N.E. 888; State ex rel. Smith v. Nazor (1939), 135 Ohio St. 364, 21 N.E.2d 124.

In State ex rel. Ethell v. Hendricks (1956), 165 Ohio St 217, 135 N.E.2d 362, 363, it was held in paragraph three of the syllabus that:

'Section 2733.06, Revised Code, empowers an individual, claiming in good faith and upon reasonable grounds to be entitled to a public office held and exercised by another, to expeditiously bring an action in quo warranto upon his own initiative in the name of the state, and Section 2733.08, Revised Code, provides that in such an action 'judgment may be rendered upon the right of the defendant, and also on the right of the person averred to be so entitled, or only upon the right of the defendant, as justice requires.''

The question presented is thus whether the relator's claim that he is entitled to the office held by the respondent is made in good faith and upon reasonable...