State ex rel. Wilmot v. Buckley

• Decision Date: 09 May 1899
• Citation: 60 Ohio St. 273,54 N.E. 272
• Parties: STATE ex rel. WILMOT et al. v. BUCKLEY et al.
• Court: Ohio Supreme Court

54 N.E. 272

60 Ohio St. 273

STATE ex rel. WILMOT et al. v. BUCKLEY et al.

Supreme Court of Ohio.

May 9, 1899

[Copyrighted Material Omitted]

Error to circuit court, Cuyahoga county.

Quo warranto by the state, on the relation of E. P. Wilmot and George P. Kurtz, against Hugh Buckley and others. From the judgment both parties bring error. Affirmed.

The petition of the plaintiff below is as follows:

‘Theodore L. Strimple, prosecuting attorney of the county of Cuyahoga and the state of Ohio, on the relation of E. P. Wilmot, of the township of Chagrin Falls, in the county of Cuyahoga and state of Ohio, and of George P. Kurtz, of the city of Cleveland, in the county of Cuyahoga and state of Ohio, who are both citizens and electors of the county of Cuyahoga and state of Ohio, gives the court to understand and be informed that the defendants, Hugh Buckley, Charles P Salen, Edward Etzensperger, and Edward C. Kenney, under the claim that they constitute the board of elections of the city of Cleveland, are usurping and intruding into the office of appointing registrars of elections, judges and clerks of election, and other clerks, officers, and agents in and about elections, and of designating the ward or precinct in which such judges and clerks shall serve, and of appointing the place of registration of electors and the holding of election in each ward and precinct in Cuyahoga county, and of providing and furnishing ballot boxes to be used at elections, and all books, blanks, and forms for the registrations and elections in said county, and of issuing notices, advertisements, and publications with respect to election, and of making rules, regulations, and instructions for the governing and guiding of registrars of election and judges and clerks of election, and of dividing, defining, and proclaiming the election precincts in said county, and generally, under the said claim that they constitute the said board of elections of the city of Cleveland, of performing and exercising, throughout the county of Cuyahoga, the duties and powers vested by law in the deputy state supervisors in and for said county. Said defendants are so as aforesaid doing the things aforesaid and assuming the authority and powers aforesaid, without legal right, in this: that there is no authority in law for said doings and assumptions. Wherefore the relators pray that the said defendants be required to answer by what warrant they claim to have, use, exercise, and enjoy said office aforesaid, and that they be adjudged to be so acting and assuming authority without authority of law, and that they be ousted and altogether excluded from said office, and that the relators recover their costs.’

The answer is as follows:

‘Now come the defendants, and make answer to the petition herein, and show to the court by what warrant they lawfully constitute the board of elections of the city of Cleveland, and by what authority they exercise the powers and do the things complained of in the petition, by the denials and allegations following:

‘First defense: The said city of Cleveland, situate in said county of Cuyahoga, is, and for more than ten years has been, a city of the first class, second grade. On the 31st day of March, 1891, and for a considerable time prior thereto, W. M. Bayne, Victor Gutzweiler, J. H. Schneider, and the defendant Hugh Buckley constituted the board of elections of said city, having been theretofore appointed thereto by the governor, pursuant to section 2926b of the Revised Statutes of Ohio. On said 31st day of March, 1891, said J. H. Schneider resigned his office as a member of said board, and one P. W. Rice was duly appointed a member of said board, for and during the unexpired part of the term of said Schneider. On the 1st day of June, 1892, the terms of said Bayne and Rice expired, and they were reappointed to their said office. On the 29th day of May, 1894, the terms of said Buckley and Gutzweiler expired, and said Buckley was reappointed, and one Carl Clausen was appointed to the said office. On the 3d day of June, 1896, the terms of said Bayne and Hice expired, and the defendants Edward Etzensperger and Edward C. Kenney were appointed to the said office. On the 6th day of June, 1898, the terms of said Buckley and Clausen expired, and said Buckley was reappointed, and the defendant Charles P. Salen was appointed to the said office. Each of said appointments, made on and since March 31, 1891, was made by the mayor of said city, and was made pursuant to and by virtue of an act of the general assembly of the state of Ohio, entitled ‘An act to amend section 2926b of the Revised Statutes, as amended April 13, 1889 (86 Ohio Laws, pp. 281, 282),’ passed April 28, 1890, and found in 87 Ohio Laws, p. 359, and subsequent amendments thereof, including an act entitled ‘An act to re-enact and amend section 2926b of the Revised Statutes of Ohio, and to enact supplementary section 2926b-1, and to re-enact and amend section 2926t of the Revised Statutes, as amended April 13, 1889, as amended April 28, 1890,’ and found in 92 Ohio Laws, p. 166, passed April 16, 1896. Each of said appointees all the while was, and each of these defendants when appointed was, and still is, an elector of said city and county, and was, and still is, eligible to the said office, and during all the time aforesaid two members of said board have belonged to each of the two leading political parties. At the times of their appointment, and continuously since, two of these defendants belonged to the Republican party and two to the Democratic party, which parties are, and all the while have been, the two leading political parties in said city, in said county, in the state of Ohio, and in the United States; and no one of said appointees, including these defendants, at the time of his appointment, or while a member of said board, held any other office under the United States, or the state of Ohio, or the said city or county; nor was any one, at the time of his appointment, or while a member of said board, employed in any department of said city or county, or by any officer thereof. There has all the while been, and there now is, a secretary of said board, eligible and qualified, appointed by the members of the board; and each member of the board, and the secretary thereof, before entering upon the discharge of the duties of their respective offices, duly took and subscribed an oath to support the constitution and laws of the United States, and the state of Ohio, and faithfully to discharge the duties of their said offices, and to make their utmost endeavors to secure fair and honest elections. All the appointments of members of said board, and of the secretaries thereof, and the qualification of persons so as aforesaid appointed, and the organization of the board from time to time, have been in strict conformity to the statutes relating thereto. These defendants, constituting, as aforesaid, the board of elections of the city of Cleveland, have exercised, and are now exercising, the powers conferred upon them as such officers, and have done and performed, and are now doing and performing, the acts required of them as such officers, and have discharged, and are now discharging, the duties imposed upon them as such officers, pursuant to and under authority of the following statutes, enacted by the general assembly of the state of Ohio, to wit: [After citing the election laws of the state, including the act of April 28, 1890 (87 Ohio Laws, p. 359), and the act of April 16, 1896 (92 Ohio Laws, p. 166), and by a general averment including section 3 of the act of April 21, 1898 (93 Ohio Laws, p. 364), the answer continues as follows:] All amendments and supplements of the foregoing acts, and all other laws relating to the powers and duties of boards of elections in Ohio. Since the creation and organization of the said board of elections, the general assembly of the state of Ohio has, by the enactment of all the laws aforesaid, and by numerous other enactments, recognized the valid existence of the said board, and has rendered its continued existence indispensable to the conduct of elections, and to the exercise of the constitutional right of electors to vote in said city and county under the existing laws of the state. By reason of the facts aforesaid, the board of elections of the city of Cleveland is a valid and constitutional board, and at the time of the commencement of this action these defendants were, and now are, rightfully and lawfully members of, and together constitute, the said board, with the right to hold and enjoy their said offices, and with full authority to exercise all the powers and perform all the duties thereunto belonging.

‘Second defense: Defendants make their foregoing first defense part of this defense, and they further say: From said 31st of March, 1891, continuously hitherto, by virtue of the laws aforesaid, and of the successive appointments aforesaid, the said persons so as aforesaid appointed members of said board of elections, including these defendants, have, in the order of succession aforesaid, been members of, and together have constituted, the board of elections of the city of Cleveland and they have, during all the time aforesaid, exercised the powers and performed the duties conferred and imposed by law upon the board of elections of said city. During all the time aforesaid, the persons so constituting said board, and including these defendants, and acting as such board of elections, and under the laws aforesaid, have had, and now have, the exclusive charge, supervision, and control of all matters and things pertaining to the registration of electors, and the direction, conduct, and management of elections, within said city, and as such board of elections, and...