QUO WARRANTO.

[Hamilton Circuit Court,

October Term, 1897.]

Cox, Smith and Swing, J].

#### State ex rel. Meader et al. v. Sullivan et al.

1. Preading on Part of the State need not be Verified.

In an action brought by the state of Ohio *(quo warranto)*by the prosecuting attorney, duly authorized, it is not necessary to verify the pleadings on the part of the state.

2. Prosecuting Attorney Bringing Proceedings on Reration of Another MAY OR MAY NOT REQUIRE SECURITY FOR COSTS.

The prosecuting attorney may bring such action upon his own relation, or, on leave of the court, on the relation of another. In the latter case he may require security for costs to be given but is not bound to do so.

3. State of Ohio has Regar Capacity to sue in Quo Warranto Against Usurping Supervisors. .

The state of Ohio has, in proceeding by *quo warranto,*directed against supervisors refusing to surrender their offices, after being removed by the mayor of Cincinnati, the legal capacity to sue.

4. Action in Beharf of Severar Persons, in Name of the State, Constitutes but One Praintiff and Therefore no Misjoinder.

In such a proceeding, brought by the prosecuting attorney in the name'of the state of Ohio, on relation of four different people, all claiming to have been appointed as supervisors, there is but one plaintiff and therefore no misjoinder and no defect in parties plaintiff. And such proceeding constitutes but one cause of action, therefore, there is no misjoinder of causes.

5. Parties Removed from Office by Separate Charges and Judgments Cannot be Joined as Defendants in Quo Warranto.

If all the persons whose right to hold office is in controversy stand in the same position, as, for instance, claiming to hold by notice of a statute, the validity of which is denied, they may be joined as defendants in the same proceeding. But where it appears that separate charges were brought against each of the parties defendant, and that a separate trial was had in each case, followed by a separate judgment of removal, they are improperly joined in one action.

6. Petition in Quo Warranto, its Requirements.

It is not necessary where the state challenged the right of a person to hold a public office that there should be any great particularity in the statements of the petition in *quo warranto.*All that is essential thát plaintiff should allege that the defendant was unlawfully usurping a certain office and call upon him to answer by what warrant he claims to the right to do so.

Quo Warranto.

Smith, J.

On November 30, 1897, John C. Schwartz, the prosecuting attorney of this county, having obtained the leave of this court to do so, filed his petition in this case, stating that he, said Schwartz, prosecuting attorney for Hamilton county, on the relation of J. F. Meader, and Harry Haacke, E. G. Schreiier and Samuel A. Miller, brings this action on behalf of the state of Ohio, and informs the court (in substance), that on September 22, 1897, Gustavus Tafel, then duly acting as the mayor of the city of Cincinnati, by virtue of the power vested in him by sec. 2690m, Rev. Stat., did remove, upon charges preferred before him, and a full hearing of the same, the said four defendants from their offices as members of the board of supervisors of said city, and did thereupon appoint to fill *347the vacancy in the unexpired' term of said defendants, caused by their said removal, Henry Haacke to fill the un expired term of said Sullivan; E. G. Schreifer to fill the unexpired term of Eouis Werner, and S. A. Miller to fill the unexpired term of said Roe. That they qualified as such members of said board of supervisors, and having the legal title to said offices and the legal right to the possession of the property belonging thereto, demanded possession of the place of meeting, books and other property used in the transaction of the business of said board, but the defendants refused, and still do refuse to surrender possession of said property, and unlawfully, without title or right thereto, retain possession of the same, and unlawfully hold the same and pretend to exercise the right to act as members of the said board of supervisors and transact the business belonging to said board. That the defendants did, and each of them have, since September 22,1897, and do now, usurp the office of members of the said board of supervisors, and unlawfully hold the same, and have and do usurp the rights, privileges and functions of such office, to the great prejudice anddamage of the state of Ohio and the city of Cincinnati.

Wherefore the said prosecuting attorney prays the advice and judgment of the court in the premises, and due process of law against the said defendants; that they be required to answer to the state of Ohio by what warrant they claim to have, use and enjoy the liberties, privileges and franchises as aforesaid of members of the said board of supervisors of the city of Cincinnati, and that they be ousted therefrom, and for all proper relief.

This petition was signed by Mr. Schwartz, as the prosecuting attorney of the county of Hamilton, but not verified.

One of the defendants, Mr. Roe, filed a motion to strike the petition from the files and to dismiss the action for the following reasons : First. That the petition was not verified as required by secs. 5102 and 213, Rev. Stat., and second, because neither of the relators, or any one on their behalf, has given security for costs as required.by sec. 6764, Rev. Stat.

Eouis Werner and John Zumstein file separate demurrers to the petition, stating these grounds :

First. Because the plaintiff has not legal capacity to sue. Second. Because there is a misjoinder of parties plaintiff. Third. Because there is a defect of parties plaintiff. Fourth. Because there is a defect of parties defendant. Fifth. Because several causes of action, and separate causes of action against several defendants are improperly joined; and sixth: Because the petition does not state facts sufficient to constitute a cause of action.

We have heard the arguments of counsel on the questions raised by the motion and demurrer, and state our conclusions as to these questions.

And first, as to those raised by the motion.

The action is one brought by the state of Ohio, by the prosecuting attorney of the county, duly authorized by law to bring the same. Section 213, Rev. Stat., provides, that “ no undertaking or security is required on behalf of the state, or of any officer thereof in the prosecution or defense of any action, writ or proceeding. Nor is it necessary to verify the pleadings on the part of the state, or any officer thereof in any such action, writ on proceedings.” Section 6762, under the provisions of the statute as to *quo warranto*proceedings, says, that the prosecuting attorney is authorized to bring such action when he has good reason to believe that it can be established by proof. By sec. 6763, he may bring *348such action upon his own relation, or on leave of the court, (which was given here) on the relation of another. And in an action like this, he may require security for costs to be given as in other cases, but is not bound to do so. Where the action is brought by a private person claiming to be entitled to a public office unlawfully held by another, he may by himself, or an attorney at law bring such an action upon giving security for costs. Section 6764. This is not such an action. The motion is therefore everruled.

Second. As to the demurrer, we hold first. That the plaintiff in this case, (the state of Ohio) has the legal capacity to sue. Second. That there is but one plaintiff (the state), and there lore that there is no misjoinder of parties plaintiff. Third. That there is no defect of parties plaintiff. Fourth. That there is no defect of parties defendant. Fifth. That several causes of action are not improperly joined. There is but one cause of action.

Sixth. As to the sixth ground, included in the fifth, viz., that separate causes of action against several defendants are improper^ joined, there is much more difficulty. We have no hesitation in saying that as at present advised, if the facts in this case as stated, and as we understand conceded tobe true, appeared on the face of the petition, we would hold that there would appear to be separate causes of action against each one of these defendants, and therefore, that they were improperly joined in one action, and that the demurrer would have to be sustained, as the statute, sec. 5062, makes this a good ground of demurrer to a petition. It is evident from these statements of counsel, and which facts do not appear on the face of the petition, that separate charges were brought against each of these defendants — that a separate trial was had in each case, and as a necessary consequence, different evidence in each, and a separate judgment of removal in each case. It can not be, we suppose, that there was any necessary connection between the case of one of these defendants and that of either of the others. There was no common bond of union between them, and each of them must stand on his own looting, and that it is not allowable to permit one defendant to be joined in and burdened with the costs and expenses of a litigation as to the right of one or more other persons to an office,'when in law the result of such litigation can not affect him — however much personal interest he may feel therein.

Of course, we recognize the law to be that if all the persons whose right to hold office is in controversy, stand in the same position, as for instance, where they claim to hold by virtue of a statute the validity or constitutionality of which is denied or contradicted, the reasons urged would not apply, and we think the authorities are that in such case, all may be made defendants to one *quo warranto*proceeding. But in a case where it appeared that separate proceedings were had against each to remove him, and on grounds pertinent to each, and there were several judgments, in our opinion, there could not be a joint proceeding against all.

But on the allegations of this petition, we do not see that this question is properly prosecuted for decision. As we understand it, the pleadings in *quo warranto*cases are peculiar — such was the case before the comparatively recent amendment of our code of civil procedure brought them within its provisions, and this court held several years ago, in a case reported in State ex rel. v. Walnut Hills, etc., Road Co., 7 Ohio Circ. Dec., 453, that the effect of this, was not substantially to *349change the character of the pleadings. Our recollection of the law is that according to the old system, it was not necessary where the state challenged the right of a person to hold a public office, that there should be any great particularity in the statements of the petition in *quo warranto.*That all that was essential was that the plaintiff should allege that the defendant was unlawfully usurping a certain office, and call upon him to answer by what warrant he claims the right to do so. If this be so still, and we incline to the opinion that it is, this petition is sufficient to remove the defendants to file their answer and show their right, and upon this an issue can be raised by reply or demurrer. On these grounds, therefore, we hold that the demurrers are not well taken, and they will be overruled ; but if we are right in the suggestions before made, as to the real facts being that there are separate causes of action against the several defendants, and that this would appear from the answer filed, it would seem advisable that separate proceedings be had against the several defendants, in the first instance.

N *N. Maxivell*and *Mr. Follett,*for relator.

*E. W. Kittredge*and *W. M.*Ampt, for defendants.