State v. Callow

• Decision Date: 20 May 1924
• Docket Number: 18452
• Citation: 143 N.E. 717,110 Ohio St. 367
• Parties: The State, Ex Rel. Stanton, Pros. Atty., v. Callow Et Al.
• Court: Ohio Supreme Court

143 N.E. 717

110 Ohio St. 367

The State, Ex Rel. Stanton, Pros. Atty., v. Callow Et Al.

No. 18452

Supreme Court of Ohio

May 20, 1924

Quo warranto - Jurisdiction - Section 12808, General Code -"Public officers" construed - Members of county building commission - Section 2888, General Code.

Persons appointed as members of a cOunty building commission under authority of SectiOn 2333, General Code, are not public officers within the Purview of Section 12303, General Code and this court therefore has no jurisdiction to Inquire into the title of such Office.

The facts are stated in the opinion.

Mr Edward C. Stanton, prosecuting attorney; Mr. Geo. C. Hansen and Mr. H. E. Parsons, assist ant prosecuting attorneys, for plaintiff. Messrs. Mooney, Hahn, Loeser & Keough, for defendants.

MARSHALL C. J.

This is an original action in this court in quo warranto, praying an inquiry into the right of the defendants Albert R. Callow Thomas E. Monks, M. P. Mooney, and Howell Wright to have and exercise the office of citizen members of the Cuyahoga county building commission. The petition recites that said members were appointed pursuant to Section 2333, General Code, to constitute a building commission to serve in connection with the county commissioners in the construction of a county building. On August 27, 1917, the board of county commissioners adopted a resolution declaring the necessity to construct a building for a county jail and for other purposes at a proposed expenditure of $1,250,000 and upon submission of that proposition to the voters the same was approved, and thereupon application was made to the court of common pleas of said county for the appointment of a building commission, and defendants were thereupon duly appointed and qualified and entered upon the discharge of their duties. Thereafter it was found that the amount which was proposed to be expended would be wholly insufficient, and further proposals were made to the voters for additional funds, all of which were defeated.

The petition further recites that on March 6, 1924, commissioners Of Cuyahoga county adopted a resolution to abandon the erection of a building for a county jail and other public purposes, under the authority granted by the voters on November 6, 1917, whereby the bond issue of $1,250,000 was approved, and the resolution ordered the unexpended balance of said bond issue remaining in the treasury to be placed in the sinking fund.

By virtue of the action of the board of county commissioners it is claimed that the entire enterprise has been definitely abandoned and that the building commission has no further duties to Perform, but that it nevertheless continues to employ office help and to expend public money therefor, and that no public service is rendered by either the employes [sic] or the appointed members of said building commission and that the continued exer- cise of their said office results in injury to the citizens of the state of Ohio.

To this petition the defendants who are the appOinted members of the commission demur on the grounds: First, that the petition does not state a cause of action in quo warranto against said defendants; second, the court is without jurisdiction to entertain the petition in quo warranto against said defendants.

The single question raised by this demurrer is whether or not the appointed members of the building commission are public officers and whether, therefore, quo warranto will lie under the provisions of Section 12303, General Code, which in its pertinent provisions is as follows:

"A civil action may be brought in the name of the state:

"1. Against a person who usurps, intrudes into, or unlawfully holds or exercises, a public office, civil or military, or a franchise, within this state, or an office in a corporation created by the authority of this state."

While this case has been heard upon a demurrer to the petition which brings in question the jurisdiction of the court in quo warranto, the brief for the defendants in support of their demurrer frankly suggests that this demurrer is filed only for the purpose of raising the legal question in advance and that if the demurrer should be overruled an issue of fact will be presented by answer and that there will be a denial that the enterprise of erecting a building to contain a jail, court of insolvency, and criminal courts has been abandoned. The brief of counsel makes the claim that under the allegations of the petition, if true, the building commission is functus officio and that further action on their part is null and void and the writ of quo warranto would therefore be a vain thing, and in the same connection frankly admits that this issue could be tried in an action in injunction to prevent their attempted performance of further official acts, which action could of course only begin in a court of common pleas. that question not being squarely presented by this demurrer, we are not privileged to decide it. It is, however, quite certain that the appointment of the members of the commission by the common Pleas court in the first place could only be made upon a finding that certain conditions exist, and it may be suggested that a revocation order could be made in a proper proceeding in the same court upon showing those facts no longer to exist.

This challenge to the jurisdiction of this court calls attention to the provisions of Article X Of the Ohio Constitution and especially to Section 2 thereof as follows:

"County officers shall be elected on the first Tuesday after the first Monday in November, by the electors of each county in such manner, and for such term, not exceeding three years, as may be provided by law."

If the appointed members of the commission shall be held to be public officers, then the Constitutional provisions would become decisive of the matter. Measured by that standard, Section 2333 would be clearly unconstitutional and the appointment in the first place would have been a nullity. If, on the other hand, they shall be held not to be public officers, this case would present no issue of the constitutionality of that section.

There is no lack of adjudication at the hands of this court upon the general subject of the characteristics of public officers. In a rather early case, State ex rel. v. Brennan 49 Ohio St. 33, 29 N.E. 593, this court, while disclaiming any intention of defining with exactness all the characteristics of a public office, nevertheless declared a few principles and upon the...