State Ex Rel v. Butterfield

• Decision Date: 02 July 1915
• Docket Number: 14724
• Citation: 111 N.E. 279,92 Ohio St. 428
• Parties: The State, Ex Rel. Heer, v. Butterfield Et Al.
• Court: Ohio Supreme Court

111 N.E. 279

92 Ohio St. 428

The State, Ex Rel. Heer, v. Butterfield Et Al.

14724

Supreme Court of Ohio

July 2, 1915

Quo warranto-Title to public office-Facts necessary to maintain action-Section 12307, General Code-Municipal corporations-Charters-Action to annul-Who may bring same.

1. In order that a private relator may be entitled to maintain an action in quo warranto under Section 12307, General Code, to recover a public office, 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.

2. An action to annul the charter of a municipality on the ground

that it was illegally adopted or that it violates the Constitution must be brought in the name of the state by an officer duly authorized in that behalf.

Jacob F. Heer brought an action in quo warranto in the court of appeals of Butler county against the defendants in error here.

In his petition he alleges that he is the duly elected mayor of the municipality of Middletown, Butler county, a duly organized city under the laws of Ohio, and a municipal corporation that he was elected such mayor at the general election in No- vember, 1911, and qualified as such, and since the first Monday of January, 1912, has been in the discharge of his duties as mayor, as provided by law.

He further says that no election for mayor was held in that city at the general election in November, 1913, and that by law he holds over and continues in office as such mayor, and that it is his privilege to do so until his successor has been duly elected and qualified. He says that the defendants, without right or warr-ant of law, have usurped his said office and intruded themselves into the same, and are attempting to exercise the functions, power and authority of the relator together with the privileges and duties of said office, and are now carrying on the executive, administrative and judicial functions heretofore and now devolving on him as mayor.

The defendants, Wendel P. Butterfield, C. Ed. Sebald, John T Fay, Thomas A. Scully and James A. Pierce, five of the six defendants, by their answer say that the city of Middletown is a municipality under the constitution and laws of the state. The answer then proceeds to set out that the city of Middletown duly and legally adopted a charter pursuant to the provisions of Section 7 of Article XVIII of the Constitution; that they were duly elected and qualified as city commissioners under the charter so adopted and that ever since January 1, 1914, have exercised the executive legislative and administrative functions of the government of the city of Middletown, under and by virtue of the charter so adopted by the electors of the city of Middletown. H. L. Dell, defendant, by separate answer, sets out the same matter as to the adoption of the charter, and alleges that by virtue of the charter he was elected to the office of judge of the municipal court, and as such was exercising the judicial functions of the said city, under and by virtue of that election.

The answers of all of the defendants set out that the charter adopted by the people abolished the office of mayor. The reply of the plaintiff avers that it is true, as set forth in the answers, that the city of Middletown undertook in the manner and form set out to adopt a charter as alleged. The reply sets forth certain allegations as to the steps by which this was done, and alleges that certain provisions of the charter are unconstitutional, illegal and void in that they violate Section 1 of Article IV, Section 2 of Article XVII, Section 13 of Article IV, Section 16 of Article IV, Section 18 of Article IV and Section 15 of the Schedule, all of which are referable to the provisions of the charter with reference to said municipal judge and the clerk of his court; also that the charter violates Section 1f, Article II of the Constitution, and Sections 3, 9 and 13 of Article XVIII of the Constitution.

The judgment of the court of appeals was in favor of the defendants, and this proceeding is brought to reverse that judgment.

An agreed statement of facts, duly authenticated, shows the steps by which steps the charter was adopted and the provisions of the charter.

Mr. Charles W. Baker; Mr....