OFFICE AND OFFICER — SCHOOLS.

[Clark Circuit Court,

December Term, 1897.]

Shearer, C. J., and Summers and Wilson, JJ.

#### State ex rel. Attorney General v. McMillan.

Councilman not Eligible to Office of Member of Board of Education.

A councilman, during his term of office, is ineligible to the office of member oi a board of education. Section 1717, Rev. Stat., construed.

Quo Warranto.

The petition reads as follows:

“Frank S. Monnett, attorney general of the state of Ohio, comes here into court, and gives the court to understand and be informed that the defendant, James C. McMillan, is a resident and elector of the incorporated village of South Charleston, in Clark county, Ohio, and has been such resident and elector thereof for more than six years last past; that the said incorporated village of South Charleston is duly organized under the laws of the state of Ohio, and as such village is duly authorized by law to elect members of the village council, who are duly authorized and ompowered by law to pass such ordinances and do all other things within their statutory power for the regulation, management and control and government of such village.

“That said village of South Charleston is located within the limits of the special school district of South Charleston, and is part of the same, and said special school district includes all the territory of the incorporated village of South Charleston aforesaid.

“That in pursuance of law and in accordance with the statute, the said incorporated village of South Charleston, ón the first Monday of April, 1895, duly elected said defendant, James C. McMillan, as a member of the council of said incorporated village of South Charleston, tor the period of two years next ensuing, and thereupon the said James C. McMillan duly qualified and entered upon his duties as such member of council and continued to hold such office for said term of two years; that on the first Monday of April, 1896, while the said James C. McMillan was then acting as a duly qualified member of the incorporated village council of South Charleston as aforesaid, he was by the qualified electors of said special school district of South Charleston, elected to the office oi member of the school board of such special school district of the incorporated village of South Charleston, for the term of three years next ensuing, and thereupon the said James C. McMillan assumed to qualify and act in the capacity of such member of the school board. That atterwards, to-wit, on the first Monday of April, 1897, and at the expiration oi *381his term as councilman for said incorporated village of South Charleston, he, said James C. McMillan, was by the qualified electors of said incorporated village of South Charleston aforesaid, elected to the said office of member of the village council for the full term of two years next ensuing, and he thereupon duly qualified and entered upon the duties of said office and is now acting in such capacity.

“The relator herein says that James C. McMillan is now the duly elected, qualified and acting member of council of the incorporated village of South Charleston, but that said defendant, James C. McMillan has usurped and unlawfully holds and exercises said office of member of school board of said special school district of South Charleston, and as such officer assumes to do and perform all and singular the duties pertaining to such office as member of school board as aforesaid under the claim that he is eligible to hold said office of member of school board while acting in the capacity of councilman of the incorporated village of South Charleston, duly elected and qualified as aforesaid.

“Relator further says that said James C. McMillan was at the time of his alleged election to the office of member of school board, ineligible to hold such office, and is still ineligible to act in such capacity.

“Whereupon relator prays that the defendant, James C. McMillan, be required to answer by what warrant he claims to have used, to exercise and enjoy said office of member of school board of special school district of South Charleston and that'he be adjudged, not entitled thereto, and that judgment of ouster therefrom may be pronounced against him and for all proper relief in the premises.

The defendant demurs to said petition upon the ground, that the facts therein stated do not constitute a cause of action against him.

Shearer, C. J.

The question presented by the demurrer is to be determined by the construction of sec. 1717, Rev. Stat., which provides, among other things, that “no member of council shall be eligible to any other office, or to a position on any board provided for in this title, or created by law, or ordinance of the council, except as provided in the seventh division of this title.”

The seventh division concerns boards of improvements, boards of administration and the like, and in no way affects the question before us.

It is argued that this section, properly understood, forbids the election or-appointment of a councilman to membership of a board of education, or to any other board created by law; that boards of education are created by law and, that therefore a councilman is hot eligible thereto.

For the defendant it is insisted that his election to the school board did not violate sec. 1717, Rev. Stat., that the meaning of the section is that no member of council shall be eligible to any other office, or to any board created by law or ordinance of council — that is created by law of the council, or by ordinance of council. That this must be so because the offices are not incompatible; that they are not within the prohibition of sec. 18, Rev. Stat., nor do the duties of boards of education in any way conflict with or affect the duties of municipal councils.

It is also claimed that sec. 1717, Rev. Stat., applies only to such boards the members of which are selected or appointed by council.

At common law, the acceptance by an officer of another office incompatible with the first ipso facto vacated the first.

But the appointment of a councilman to another office which he is ineligible to fill is absolutely void. State ex rel. v. Kearns, 47 O. S., 560. *382If, therefore, under the provisions of sec. 1717, Rev. Stat., a councilman is ineligible to the office of member of a board of education, the defendant’s election to that office is void and he should be ousted, and it becomes unnecessary to determine whether or not the offices are incompatible.

*F. S.*Monnett, attorney general and *Horace W. Stafford,*prosecuting attorney, for relator.

*Marcus Shoup,*for defendant.

The provision of sec. 1717, Rev. Stat., now under review'was introduced into the statute by an act to amend the municipal code passed April 18, 1870 (67 O. L., 69) and reads and is punctuated as follows:

> “No member of council shall be eligible to any other office, or to any position on any board provided for in this chapter, or created by any law or ordinance of council save as provided in chapter 46oof this act.”

In the present section there is a comma between the words “law” and “or,” which is not found in the old section; and it is argued from this circumstance that the legislature intended to confine the prohibition to boards created by a law or an ordinance passed by council; that the comma is an interpolation and should not be regarded in the construction of the new section.

Councils do not pass “laws” but express their legislative will by ordinances and resolutions; and a reasonable construction of the language of the original section is that the inelgibility therein declared extends to any board created by a law of the state or by an ordinance of a municipal corporation.

Doubtless the commissioners of revision, in compliance with the duty imposed upon them by the act providing for the consolidation and revision of the statutes, introduced the comma into the new section to relieve it of any ambiguity which might have been supposed to exist in the original enactment (72 O. L., 87), and the general assembly for the same reason permitted the comma to remain when the revision was adopted by that body. With the propriety of the law we have nothing to do. It is an act which the general assembly were empowered to enact — and thus the law is written.

The authorities cited by counsel do not seem to be in point and are not helpful in the solution of the question herein considered.

We are of opinion, that the defendant was ineligible to election as member of the board of education, by reason- of his membership of the council of the incorporated village of South Charleston at the time of such election.

Judgment of ouster.