#### Holbrock *v.*Smedley. State, ex rel., Holbrock, *v.*Egry.

*Person refused recognition as member of council*— Not *entitled to injunction*— City *council is judge of qualification of members —Court may determine facts, when*— Provisions *of Sections 1536-205 and 1556-612, Revised Statutes*— Councilmen *' shall have no interest tn city contracts*— Determination *of fact of disqualification*— R’elator *admits disqualification*— Will *not be, restored in quo warranto*— Municipal *law.*

1. The council of a city is made by statute, the judge of the election and qualifications of its members, and a person elected a member, who is refused recognition as a member by the members who have met to organize, on the ground that he is disqualified, is not in possession of the office or entitled to an injunction to enable him to exercise its functions.

2. A city council is the exclusive judge of the qualifications of its members, but in a proceeding in *quo zvarranto*the court *392may determine whether in law the facts constitute a disqualification.

3. The provision of Section 1536-205, Revised Statutes, which provides that, “nor shall any member of the council, board, officer or commissioner of the corporation, have any interest in the expenditure of money on the part of the corporation other than his fixed compensation; and a violation of any provision of this section shall disqualify the party violating it from holding any office of trust or profit in the corporation, and render him liable to the corporation for all sums of money or other things he may receive contrary to the provisions of this section, and if in office he shall be dismissed therefrom,” is not one of the qualifications of a member of council that the council is made the judge of by Section 1536-612, .Revised Statutes; and the city council is without authority to determine the fact of such disqualification and upon a finding of such fact to declare a member’s seat vacant, and to proceed to fill the vacancy, but the court will not in a proceeding in *quo warranto,*by the person so deprived of his office, oust the person elected to fill the vacancy and restore the relator to the office when in his petition he admits the fact of such disqualification.

(Nos. 11301-11445

Decided February 2, 1909.)

Error to the Circuit Court of Butler county.

The council of the city of Hamilton consists of seven members, four elected from wards, three elected at large, and a president. These were elected at the election in 1907, and their terms of office began January 1, 1908. On January 3, 1908, on call of the mayor, they met to organize. Each of the persons elected had, previously to the meeting, received a certificate of his election and had, within ten days thereafter, duly qualified by giving bond and taking the oath of office. At the hour appointed for the meeting, the president took the chair and called the names of those who had received certificates, and as their names were called each answered present. The relator had *393been elected as one of the councilmen at large, and when his name was called one of the other members arose and protested against relator sitting in the council as a member thereof for the reason that he was disqualified, and offered a resolution, a copy of which is as follows:

“Be it resolved, By the Council of the City of Hamilton, Butler County, Ohio, that,

“Whereas, Ferd. C. Holbrock, who has been elected a member of Council of the City of Hamilton, Ohio, did while a member of the Council of said City, violate the laws of the State of Ohio, in this, to-wit,

“He was interested in contracts with the said City of Hamilton, Ohio, whereby he sold shoes and merchandise to said city.

“And, while a member of council of said city, he did have an interest in the expenditure of money on the part of said corporation, other than his fixed compensation, to-wit:

“In, that on or about the following dates, he sold to said City of Hamilton, Ohio, shoes and merchandise:

“January 4, 1906; September 18, 19'06; November 6, 1906; April 3, 1907; and April 4, 1907, and was paid money by said City of Hamilton, Ohio, for shoes and merchandise on or about the •following dates:

“April 9, 1906, voucher number 2525 Poor Fund.

“April 19, 1907, voucher number 979 Poor Fund.

“May 15, 1907, voucher number 1236 Street Fund.

*394“Aug. 16, 1907, voucher number 2124 Poor Fund.

“Dec. 10, 1907, voucher number 3244 Poor Fund.

“And, whereas, said Ferd C. Holbrock has thereby disqualified himself from holding any office of trust or profit in said City of Hamilton, Ohio, and has thereby forfeited his right to hold any office of trust or profit in said city.

“Therefore, *be it*resolved, that the said Ferd C. Holbrock be and is hereby adjudged disqualified from holding the office of member of council in said city, to which he has been elected, that said office be and the same is hereby declared vacant.

“(Signed) J. A. Holzberger,

“Member of Council of the City of Hamilton, Ohio.”

The president of council then inquired of the relator if he had anything to say in regard to the resolution, the relator remained mute, and a motion was made by another member to refer the resolution to a committee of three members of the council to investigate and report, which motion was duly seconded, and the president put the same to a vote of the members of the council there present by yeas and nays, stating that the relator was not entitled to vote on the motion, and the roll being called on the motion b.y the president of council resulted in three yeas and three nays on said motion, and thereupon the president of council declared the vote to be a tie and he, himself, voted against the motion and declared it lost. Thereupon a vote was taken on *395the adoption of the resolution, the president declaring that the relator was not entitled to vote thereon, and the vote resulted in three votes in favor of the resolution and three votes against, and thereupon the president declared the vote a tie and himself then voted in favor of the resolution and declared the same carried and adopted.

Thereupon a motion was made by said John Holzberger that Aloys E. Egry, an elector of said city, possessing all the qualifications necessary to membership in the council, be elected as a member of said council to fill the vacancy, and a vote being had on the motion resulted in three votes in favor and three votes against said motion, the president of council declared the vote a tie and he, himself, then voted in favor of the election of said Egry, and then declared him duly elected a member of said council.

The council then voted to recess for fifteen minutes.

During the recess three members of council and the relator remained in the council chamber, and in the absence of the other members of the council proceeded with the organization of the council by electing a president *pro tem.,*a clerk and a sergeant-at-arms, and then adjourned to meet on the following Tuesday evening.

At the expiration of the period of recess, the president of council and the other three members of council and the said Egry, who had been declared elected as above stated and who, during the recess had given bond and taken the oath of office, met in the council chamber, and proceeded *396with the organization of council by electing a president *pro tern.,-*a clerk and a sergeant-at-arms.

Since that evening each of said bodies has been meeting and acting as the council of the city.

On January 21, 1908, Holbrock filed his petition in the Court of Common Pleas of Butler county averring that he was in possession of the office, and praying that the defendants, the president of the council and the other members of council, who were refusing to recognize him as a member of the council, might be enjoined from interfering with him in his possession of said office.

Upon a hearing the court of common pleas allowed the injunction. The case was then taken by appeal to the circuit court where the facts above stated were found by that court, and as a conclusion of law,' from the facts so found, it found that Holbrock was not in possession of the office, and that the council by its'action had found Holbrock disqualified to hold the office and had created a vacancy in the office, and that it had then properly filled the office by the election of Egry, and it dissolved the injunction and dismissed the petition.

The second case was a proceeding in *quo warranto*commenced by filing a petition on May 25, 1908, in the Circuit Court of Butler county, Ohio, in which the facts above stated are set forth, and it is averred that Egry usurps and unlawfully holds and exercises the office, and the relator prays that Egry may be adjudged not entitled to the office, and that he may be ousted therefrom and the relator inducted into said office.

*397The circuit court sustained a demurrer and dismissed the plaintiff’s petition.

*Mr. W. C. Shepherd*and *Messrs. Shotts & Millikin,*for plaintiffs in error.

*Messrs.*Andrezvs, *Harlan &*Andrezvs, for defendants in error.

Summers, J.

“The remedy by injunction may be employed by the incumbent of a public office to protect his possession against the interference of an adverse claimant whose title is in dispute, until the latter shall establish his title at law; but it is not the appropriate remedy to try the title to a public office, or to determine questions concerning the authority to make appointments thereto.” *Reemelin et al.*v. *Mosby,*47 Ohio St., 570. And “Injunction will not lie at the suit of a claimant to a public office who is out of possession, against an adverse claimant who is in possession.” *Harding*v. *Eichinger,*57 Ohio. St., 371.

The controlling question in the first case is, whether Holbrock was in possession of the office.

Under the new municipal code the question, is not free from doubt.

Under the former code, councilmen were elected in April and they were required to meet for organization at the first regular meeting of the council after the second Monday in April of each' year. Section 1675, Revised Statutes (Bates, 3 ed.), provided, “The mayor, or in his absence or inability, the clerk, at the hour of the first regular meeting of the council, after the second Monday of April in each year, shall call to order the *398members elect, and those holding over, who may be assembled; and as the members elect are called, they shall present their certificates of election and take the required oath.” Section 1662 made similar provision as to aldermen and councilmen. Then a councilman was not in possession of the office until he presented his certificate of election to the council, or to the members holding over and those elected and assembled for ■ the purpose of organizing, and was received and permitted to take and took the oath of office. The practice in Congress and other legislative bodies is, when a member’s election is contested, to treat the certificate of. election as *prima facie*conclusive of the holder’s election and as entitling him to be sworn in and to participate in the organization, and to act until the contest is determined upon its merits; but the certificate is not even *prima facie*evidence of his qualifications. Objections to eligibility are generally made at the time a person presents himself to be sworn in, and in such cases he is required to step aside, the house proceeds with its organization, the question of his eligibility is referred to a committee, which speedily reports the facts and the house then determines this question before he is permitted to be sworn. McCrary on Elections, Section 318.

By the constitutional amendment, (Article XVII, adopted in 1905) providing for biennial .elections, municipal elections are now required to be held in November and in the odd numbered years, and by Section 1536-610, Revised Statutes (Bates 6 ed.) the terms of members of council begin on the first day of January next after their *399election, and Section 1536-611, Revised Statutes, (Bates 6 ed.) provides that “The members of council shall, within ten days from the commencement of their term, elect a president *pro tem.,*clerk, who shall also perform the duties of city clerk unless otherwise specified in this act, and such other employes of council as may be necessary.” The effect of the amendment providing for biennial elections, and of the amendment to the statute changing' the commencement of the term of councilmen to the first Monday in January, is to lengthen the interval between the election and the commencement of the term. Whether there is any requirement in the municipal code that a member of council shall give bond or shall take an oath is doubtful. But Section 2, Revised Statutes, provides that, each person chosen, or appointed to an office under the constitution or laws of the state, and each deputy or clerk of such officer, shall, before entering upon the discharge of his duties, take an oath of office, and Section 1536-999, Revised Statutes, provides that, “The council may declare vacant the office of any one elected or appointed to an office who shall fail to take the oath required in Section 1737 (1536-996), or to give any bond required of him, within ten days after he has been notified of his appointment, or election,” and it may be that this explains why each member of the council had, before the meeting for organization in January, given a bond and taken the oath of office. Still it is provided by Section 1536-612 that, “Council shall be the judge of the election and qualification of its members.” And in *400view of this provision and the practice of legislative bodies above referred to, we think that where the qualifications of a newly elected member are disputed by one of the members elect, as to whose election and qualification no question is made, that the member whose qualifications are disputed can not be held to be in possession of the office until his qualifications have been determined and he has been admitted as a member of the council.

It follows that ' the injunction was properly dissolved and the petition properly dismissed.