JURISDICTION OVER ELECTION CONTESTS.

Court of Appeals for Summit County.

#### The State of Ohio ex rel Charles N. Gaylord v. George H. Herdman, and Eight Other Cases.

Decided, January 19, 1923.

*Elections*— Judisdiction *over Contests*— Quo *Warranto Does not Lie to Determine the Validity of an Election*— Common *Pleas Court the Proper Eorum.*

Provision has been made by the General Assembly for trial of election contests in the court of common pleas, and the court of appeals is without jurisdiction to inquire into the validity of an election in a quo warranto proceeding.

In quo warranto; heard on demurrer.

*Irvin & Layboume*and *Geo. ~W. Coble,*for the demurrer.

*Arthur W. Doyle,*prosecuting attorney, and *Charles II. How-land,*contra.

Washburn, P. J.

These cases are all before this court upon demurrers to the petitions. We will first take up the case of State of Ohio ex rel Gaylord Y. Herdman.

It appears from the petition that the city of Cuyahoga Falls is a municipal corporation of about 10,000 inhabitants.

At the regular election in November, 1921, there was a mayor and other municipal officers to be elected. Gaylord was regularly nominated at the primaries as the Republican candidate for mayor, and no other nomination for that office was made at the *primaries.*

Herdman became a candidate for mayor on what was known as a Citizens ticket, by filing a *petition*therefor.

The deputy state supervisors of the county accepted said petition, and no objection being made thereto, placed Herd-man’s name on the ballot as a candidate for mayor, and at the *559election he received a majority of the votes east, and in due time was regularly declared elected and a certificate of election was issued to him.

He qualified and took office on January 1, 1922.

Neither his nomination or election was contested under the statutes providing for such contests, and Gaylord did not attempt to qualify or claim the office, and nothing was done in reference to the matter by Gaylord until Iierdman had been discharging the duties of the office with the full acquiescence of the public for about six months, and until after the Supreme Court had announced that there was no provision in the law for the nomination of candidates by petition in cities of more than 2000 population.

Then suit was brought in this court by Gaylord, the same being a suit in *quo ufwrrcmto,*in which no’complaint is made concerning Iierdman’s right to the office except that Herd-man’s name was improperly placed on said ballot, because there was no law by which his name could be placed on the ballot by petition.

The prayer of the petition is that Herdman “be adjudged not entitled to hold said office, and that judgment of ouster therefore be pronounced against him, .and that said relator (Gay-lord) be adjudged entitled to said office and its franchises.”

As has been said, the matter is before this court on demurrer to the petition, the grounds of demurrer being that the petition does not state facts sufficient to state a cause of action and that this court is without jurisdiction to hear and determine the controversy.

It is claimed that as the statutes provide a means by which Gaylord could object to Plerdman’s name appearing on the ballot and could later contest the election in the court of eommon pleas, he is bound to proceed under such statutes, and that therefore this court has no jurisdiction to try such matter in *quo warranto*proceedings.

In discussing this question, it should be borne in mind that the petition shows upon its face that this proceeding is a con*560test of election between Gaylord and Herdman — simply that and nothing more.

The next proposition which must be considered as settled beyond peradventure, is that *‘ ‘*elections belong, to the political branch of the government and not to the judicial, and are not *per se*the subject of judicial cognizance, but are matters for political regulation. ” *State ex rel Gongwer*v. Graves, 90 O. S., 311; *Link*v. *Karb, Mayor, etc.,*89 O. S., 326; *State ex rel*v. *Joyce,*87 O. S., 126; *State ex rel*v. *Harmon,*31 O. S., 250.

While by the Constitution the *judicial*power of the state is vested in the courts, the absolute, unlimited and unqualified power over *elections,*being political and not judicial, is vested in the Legislature by Section 21 of Article II of the Constitution.

That section of “the Constitution provides that “the General Assembly shall determine, by law, before what authority, and in what manner, the trial of contested elections shall be conducted.”

In early times it was the practice of the Legislature to try all election contests itself, but now the Legislature has provided for the trial of most election contests by courts or other tribunals .

But when the Legislature provides that a certain court shall try a certain class of election contests, it does not thereby confer *judicial*power upon the court but it simply confers a special power to try election contests which it might have conferred upon any branch of the government or body of men. *Thompson*v. *Reddington,*92 O. S., 101.

One other proposition, and the one that determines this case, is that when the Legislature has conferred upon any court or other tribunal or other body’of men the power to try any class of election contests, that statutory proceeding so provided must be followed and is *exclusive.*

The Legislature has not conferred upon this court the specific power to try election contests of the character here involved. The Constitution, however, has conferred judisdiction in *quo*
      *561
      *warranto*upon this court, and it has been held that where the Legislature has provided no other court or tribunal or body of men to try a given class of election contests, then this court, lias authority to inquire into the validity of such elections by proceedings in *quo warranto.*The question, then, is: Has the Legislature provided a court or tribunal before which contests of elections of the character here involved may be tried?

General Code Section 5169 provides before what authority and in what manner the trial of contests of election of municipal officers shall be conducted. It provides that in cities, the contest of election of municipal officers, except members of council, shall be in the manner provided for contests of election of county officers.

And the Legislature has provided that the c-ontests of elec* tion of county officers shall be “by appeal to the common pleas court of the county.” (General Code, Section 5148.)

The Legislature has therefore conferred special power upon common pleas courts to try contests of election of mayors in cities.

> “A specific mode of contesting elections in this state, having been provided by statute, according to the requirement of the. Constitution, that mode alone can be resorted to, in exclusion of the common law mode of inquiry by proceedings in *quo warranto.*The statute which gives this special remedy, and prescribes the mode of its exercise, binds the state as well as individuals.” *State ex rel*v. *Marlow,*15 O. S., 114.

The proposition that where the Legislature has provided the authority before and the manner in which a contest of election shall be tried, such remedy provided by statute is *exclusive,*is too well settled in this state to admit of doubt. *Peck*v. *Weddell,*17 O. S., 271; *Ingerson*v. *Berry,*14 O. S., 315; *State ex rel*v. Stewart, 26 O. S., 216; *Dalton etc.*v. *State ex rel. Richardson,*43 O. S., 652; *State ex rel*v. *McLain,*58 O. S., 313; *State ex rel*v. *Berry,*47 O. S., 232; *State ex rel*v. *O’Brien,*47 O. S., 464; *Link*v. *Karl, Mayor,*89 O, S., 326; *Prentiss*v. *Dittmer,*93 O. S. 314.

*562The ease cited and relied upon by Gaylord, the recent case decided by the Supreme Court, *State ex rel*v. *Board of Elections,*105 O. S., —, does not deny the soundness of the foregoing proposition. That was not a case in *quo warranto,*and the court in its opinion expressly states that as the form of the remedy sought was not questioned, the court did not consider that question.

That ease was *not*brought *after*the certificate of election had been issued to the successful candidate and he had duly qualified and had entered upon the discharge of his duties and had continued to occupy his office and discharge the duties thereof for more than six months; that was a proceeding in mandamus to compel the election board to count certain ballots and the question decided in the majority opinion and discussed in the dissenting opinions was as to 'whether or not the law provided for nominations by petition in cities of over 2000) population, and not what would be the effect upon an election if a nomination was made in such manner and was not objected to and the party so nominated was declared elected and entered upon and discharged the duties of the office for six months before any suit or contest was brought.

In that case the relief sought by the relator was denied, and our judgment is that that that case might very well have been determined as it was upon the very proposition which we feel controls us in this case. In a case decided by the court of appeals of the Eighth District in Cuyahoga county in September, 1920, the case of *State ex rel Crosser*v. *McDonough,*No. 2760, the court of appeals followed the decisions above cited, and the supreme court refused to review the case. That is an unreported case. But a copy of the opinion is available in our library.

We are clearly of the opinion that the Legislature, having provided a remedy by which Gaylord could try his election contest in the court of comon pleas, we are without authority to inquire into the validity of such election in this *quo warranto*proceeding, and that therefore the petit'011 does not state facts sufficient to constitute a cause of action, and the demurrer is therefore sustained.

*563The same reasoning applies to the case against Geo. W. Coble, solicitor, and a like entry may be made in that ease. As to the cases in reference to the election of councilmen, there are two classes of cases involved.

It appears from the petitions that three of the councilmen, who were in like manner nominated and declared elected, duly qualified and entered upon the duties of the office to which they were elected; it also appears that they afterwards resigned and the council elected others to succeed them, and some of the contests here are against those three who were elected by the council.

As to this class, it is to be observed that the validity of their election by the council is challenged only on the ground that the councilmen who elected them were themselves not duly elected councilmen.

The electing councilmen were at least *cle facto*officers. Their names were placed upon the ballots as candidates for lawfully and regularly established offices; they received a majority of the votes cast; they were given certificates of election by the regular election officials; they qualified and assumed the duties of office without the least obection or opposition from the public or any member thereof, not even the plaintiffs in these actions. Since then these acting councilmen have occupied offices created by law and have daily discharged duties affecting the rights of the city and private rights of individuals.

If they be treated as mere usurpers and trespassers, their every official act would be a nullity, and interminable confusion would follow; but the law wisely holds that under the circumstances stated, they being the only persons claiming to be acting as such councilmen, and being generally and publicly known and acknowledged as such, to the exclusion of all others, they became at least *de facto*officers, and it is well settled that their official acts, as against collateral attack, are as binding as if there was no question about their election.

While so acting, their vote for the election of the new members of the council was perfectly legal and binding — the same *564as were their votes in transacting the regular and ordinary business of the city.

In a very early case in Ohio, it appears that a clerk of courts was elected by certain men who were acting as judges, but who were afterwards found to have no right to so act. After it was determined by the Supreme Court that they had no right to act as such judges, a proceeding in *quo warranto*was brought to oust the clerk who had been elected by them at a time when they did not in fact have a right to act as judges. In that case the Supreme Court held that while they were acting under color of right and were actually discharging the duties of the office with the full and complete acquiesence of the public, they were *de facto*officers, and that so far as the comunity or third pei’sons were concerned, neither the validity of their appointments or judgments could be gainsaid or denied, and the facts appearing upon the face of the petition in tha,t ease as they do in the cases here, a demurrer was sustained. *State of Ohio ex rel*v. *Ailing,*12 Ohio 16.

The rule is well settled that the title of the officer *de facto,*and the validity of his acts, can not be collaterally questioned in proceedings to which he is not a party. *State ex rel*v. *Jacobs,*17 Ohio 143; *Ex parte Strang,*21 O. S., 610; *Smith*v. *Lynch,*29 O. S. 261; *State*v. *Gardner,*54 O. S., 24; *State ex rel*v. *Smith,*44 O. S. 349, at page 368; *Plymouth*v. *Painter,*44 Am. Dec., 574; *Attorney General*v. *Crocker,*138 Mass., 214; *Brown*v. *Flake,*29 S. E. 267; *Stiess*v. *State,*103 O. S. 33.

In the cases of Sanger, Weaver and Herrick, it appears v-nou the face of the petitions that they were elected by couneilmen whose authority to so elect can not be questioned in this proceeding by the plaintiffs in these cases, and therefore in none of the petitions are facts stated sufficient to constitute a cause of action, and the same entry may be made in those cases as in the others.

The other class of eases involving the election of couneilmen are those against couneilmen who were in like manner nominated and declared elected and who qualified and entered upon *565the discharge of duties of the office and are still serving. As to these, the statute provides that the contest of their election shall be before the council, and the reasons heretofore given for sustaining the demurrers in the cases of the mayor and city solicitor apply. The statute having provided the remedy, that remedy must be followed. In these cases each petition must be judged by its own allegations, and so judged it does not appear that the remedy provided by statute would be inappropriate or inadequate.

The suggestion made in argument that such remedy would have been inadequate because all but one of the councilmen were alike usurpers of office, is unavailing, for the reason that no such facts are alleged in these petitions.

An entry may be made in all these eases sustaining the demurrers on the ground that in each case the petition does not state facts sufficient to constitute a cause of action.

Pardee, J., and Funk, J., concur in judgment.