#### Morrow, Appellant, *v.*City of Cleveland, Appellee.

*461(No. 19419

Decided November 8, 1943.)

*Mr. Malvern Schultz,*for appellant.

*Mr. Thomas A. Burke, Jr.,*director of law, and *Mr. J. M. McSiveeney,*for appellee.

Skeel, J.

The plaintiff, appellant herein, comes to this court upon appeal on questions of law from a rul*462ing of the Common Pleas Court. The trial court sustained defendant’s demurrer to plaintiff’s petition and thereafter, the plaintiff not desiring to plead further, final judgment for the defendant was entered.

• The plaintiff’s petition, in substance, alleges that he brings the action as a taxpayer, being the owner of real estate within the boundaries of the city of Cleveland, a municipal corporation legally organized under the Constitution and laws of the state of Ohio. It is alleged that the city of Cleveland is governed by a charter adopted by a vote of the people in 1931. By the terms of the charter of 1931 the legislative branch of the city government is vested in a council. The charter provides that the members of the council are to be elected from wards, each ward electing one councilman.

It is further alleged that the charter of 1931 provided that the city should be divided into wards on the 'basis of one ward for each 30,000 inhabitants, and that to determine the number and location of the several wards, the total population as shown by the federal census of 1930 should be divided by 30,000, the result being the number of wards. It then provided that the city council shall proceed to divide the city by natural boundaries into the proper number of wards so that each will have as near as practicable a population of 30,000. No such wards have been thus established. The census of 1940 shows the population of the city of Cleveland to be 878,336 which when divided by 30,000, the number of ■ inhabitants which the charter provides as the basis for determining the number of wards, would entitle the city to 29 wards and therefore a council of 29- members.

It is further alleged by the plaintiff that the provisions of the charter relating to the method of dividing the city into wards have been violated; that the city has never been divided into wards; that 33 councilman have *463been illegally elected and are serving the city unlawfully and without warrant of authority; and that the city is paying $3,000 per year to each of the councilmen except the president of the council .who is receiving $5,000 per year. The petition further alleges that all other functions of the legislative branch of the city government are in jeopardy because the council which seeks to perform the duties imposed upon it by law is an illegal body and therefore devoid of lawful authority. The plaintiff alleges that the director of law was requested to bring this action but that such request was refused. The plaintiff then asks that the defendant be enjoined from the payment of the salaries of the alleged councilmen.

The defendant filed a demurrer to the plaintiff’s petition on two grounds:

1. That the court is without jurisdiction of the subject matter of the action.

2. That the petition does not state facts sufficient to constitute a cause of action.

Before considering the sufficiency of the allegations of the petition to constitute a cause of action, it will be necessary to consider to what extent the court must assume as true the allegations therein contained. In the first place, the court should disregard all legal conclusions pleaded. The petition alleges that “33 councilmen were illegally elected to the city council.” Such an allegation is a legal conclusion, and therefore cannot be considered as admitted by the defendant’s demurrer.

It is equally true that the court will disregard allegations which are in direct conflict with facts of which the court takes judicial notice.

In Jones’ Commentaries on Evidence (2 Ed.j, 647 Paragraph 370, the rule is stated as follows:

“Pacts judicially noticed are not ordinarily required to be pleaded, and if pleaded matter conflicts with the *464judicial knowledge of the court, it plainly follows that the latter controls * * *. A majestic, though somewhat hazy, background to the entire field of evidence, the doctrine stands as a collection of facts, the truth of which, once the application of the doctrine is determined, may be sought by.reference to such sources as the court deems fit and proper, but which are, in the last analysis, ultimate and predominant truths uncontrollable by litigants or by authorities brought forward to refresh the memory of the court.”

In considering the effect of judicial notice in “aiding or combatting general demurrer” the same author on pages 839, 840 and 841, says:

“There is an apparent conflict on the question of whether, on general demurrer, judicial notice of facts opposed to the averments of the pleadings demurred to can be used. ’ ’

The author then cites and comments on *People*v. *Oakland Waterfront Co.,*118 Cal., 234, 50 P., 305, and, *Griffing*v. *Gibb, 67*U. S. (2 Black), 519, 17 L. Ed., 353, and concludes in paragraph 476 that:

“From the authorities cited and quoted in the preceding section we are forced to the conclusion that a demurrer is not aided by facts of which the court might be required to take judicial notice upon trial of the cause to the extent of requiring the court to find against direct averments admitted by the demurrer. When it is remembered that judicial notice may always be combated by evidence from the opponent when invoked by a party litigant, it appeals persuasively that the result of a trial should not be anticipated on demurrer. *True it is that there can be no combat as to the court taking ' judicial notice of laws of the jurisdiction*and the apparently conflicting cases may well be reconciled by considering that the judge must exercise such knowledge of the laws of his jurisdiction as may be necessary in dealing with a demurrer. But where, in *465order to defeat a claim, it would be necessary to take notice of facts not alleged, wholly extraneous to what has been presented to the court in formal mode, there is, at least, no compulsory notice of such facts.” (Italics ours.)

In the case of *French*v. *Senate of State of California,*146 Cal., 604, 80 P., 1031, the court had this identical question for consideration. The action was in mandamus seeking to compel the Senate of the state of California to admit the petitioners to the privilege of the office of senator to which they had each been elected. The petitioners had been expelled by a vote of the Senate for malfeasance in office, after charges had been filed against them in which it was alleged that they had taken bribes for the purpose of influencing their conduct as senators. ' The petition alleged that they had not been given a hearing nor afforded a trial, nor permitted to make a defense and that the charges were false. The official proceedings of the Senate showed, that charges had been preferred, that a subcommittee had made a full investigation and report thereon, and that petitioners had been given notice of the proceedings and allowed to participate therein. The Senate demurred to the petition. The court, in sustaining the demurrer, on the ground that it did not have jurisdiction, in the fourth and fifth paragraphs of the syllabus said:

“Allegations of the petition, made contrary to facts judicially noticed by the court, are not admitted by the demurrer.

' ‘ *‘*The court takes judicial notice of the proceedings had in the Senate, and entered upon its journal, by which petitioners were expelled, showing that charges were preferred against them and referred to a committee for investigation, which, after investigation, reported to the Senate, finding that the charges were true, and recommending expulsion, which report was *466acted upon by the Senate. In the absence of a contrary allegation it must be presumed that petitioners had notice of these proceedings, and were allowed to participate therein. ’ ’

In 15 Ruling Case Law, 1062, Section 5, the rule is stated as follows:

‘ ‘ Since judicial notice is not generally dependent on the pleadings, it has been held that matters properly subject thereto are not affected by a demurrer. In such case the demurrer is not taken to admit anything that is contrary to the judicial knowledge of the court.”

In the instant case the subject of the plaintiff’s action is founded upon the provisions of the charter of the city of Cleveland which charter was adopted by a vote of the people at the November election of 1931. Is the fact of the adoption of such charter and its provisions a subject of which the Common Pleas Court may take judicial notice? Almost without exception, except where a state statute requires it, courts of general jurisdiction do not take judicial notice of municipal ordinances. Jones’ Commentaries on Evidence (2 Ed.), 702, Paragraph 400; 17 Ohio Jurisprudence, 51, Section 26. Is there any distinction to be found between ordinances passed by a city council and a charter which, under Sections-3 and 7 of Article XVIII of the Constitution of Ohio, can become effective only when adopted by a vote of the people?

Jones’ Commentaries on Evidence (2 Ed.), 699, paragraph 399, in presenting the question as to whether a court of general jurisdiction will take judicial notice of municipal charters, said:

“There is practically a consensus of opinion that judicial notice should be taken of the acts incorporating municipalities, for the reason that acts incorporating cities, villages and other municipal corporations may be regarded as inherently public, or, if local in their general character, as containing certain provi*467sions which may affect the general public. Whatever may be the grounds of the rule, the courts have generally taken judicial notice of such acts, whether declared to be public or not. By the great weight of authority, it is accordingly held that neither the corporate existence nor the charter powers of such bodies need be alleged or proved. * * *” '

It must be remembered that the right of an Ohio city to adopt a home rule charter is provided for by the Constitution of the state of Ohio and its adoption can be accomplished only by a vote of the people. In presenting a proposed charter or an amendment to an existing charter its provisions are given great notoriety and are the subject of much public discussion. The proponents of such charter or amendment see to it that the public is fully advised as to its provisions.

In the case of *Stange*v. *City of Cleveland,*25 C. C. (N. S.), 599, 26 C. D., 186, the court had for consideration a prosecution of a contractor for employing his help longer than eight hours a day upon public work when there was no emergency requiring longer'hours. The power of the city to regulate by ordinance the hours of work on public projects when the state had already passed statutes to govern this question was challenged. The court in passing on this question said, on page 601 of the opinion:

“The court will take judicial notice that on July 1, 1913, in pursuance of the authority given by the latter section (Section 7, Article XVIII of the Constitution of Ohio) the city of Cleveland, by a vote of its people, adopted a. charter for its government. Section 196 of this charter provides as follows: * # * (then follows a copy of the section regulating the hours of labor on public work).”

It might be well to note here that the plaintiff’s brief and reply refer frequently to the history of the Cleveland charter, its amendments and some of the provi*468sious thereof, when they are not set forth either in his pleading or in the record. He must have concluded, therefore, that such matters were the subject of judicial notice.

The plaintiff’s petition alleges that the charter of 1931 “requires the city of Cleveland to be divided into wards upon the basis of one ward for each thirty thousand inhabitants, or major portion thereof, as determined by the federal census taken in the year 1930 and 'every tenth year thereafter.”

The charter provision on this subject is Section 2ó. It does not refer to the census of 1930. It provides in part:

“Immediately after the proclamation by the Secretary of State, stating the population of the cities of Ohio, as determined by the federal census decennially taken, the council shall redivide the city into wards upon the basis of one ward for each thirty thousand (30,000) population or major portion thereof. * ****”

The next decennial census after the adoption of this charter was in 1940.

The charter provided that the members of council elected at the election of 1931 should serve out their terms so that the first election of councilmen under the charter of 1931 did not take place until the municipal elections in the Fall of 1933.

Prior to the adoption of the charter of 1914, the city was divided into 26 wards by an ordinance of the council acting under the authority of Section 4212 of the General Code. Section 28 of the charter of 1914 provided that the wards as defined prior to the adoption of the charter should continue until the next census. In 1921, the census of 1920 having shown the population to be 796,841, the city was then divided into 32 wards which were increased to 33 wards when West Park was annexed. The people of Cleveland adopted the manager plan of government in.1921, which provided for *469a council of 25 to bo elected from four districts. These districts were defined in the charter. But the charter of 1921 did not have the effect of disturbing the wards as previously defined, except that they no longer were the basis upon which membership in the city council was to be determined. It is a matter of common knowledge that ward organizations retained their identity and continued as integral parts of our major political parties as provided by law and that the wards as created under the authority of the charter of 1914, after the census of 1920, were used in the conduct of all elections, local, state and national, except for that of council-manic candidates. So that when the people adopted Section 25 as a part of the charter of 1931, which contained the following sentence, “the division of the city into wards existing at the time of the adoption of this amendment, shall continue until changed by the council as provided herein” they intended to re-establish the ward boundaries as created under the charter of 1914 and (defined by ordinance passed as to 32 wards in 1921) as to the 33rd ward in 1922, as the basis for the election of councilmen until such time as the wards were changed by the council in the manner provided in Section 25 after the next proclamation of the Secretary of State of the population in Cleveland determined by the 1940 census.

Taking into consideration, therefore, only those allegations that are well pleaded and not in direct conflict with facts of which the court takes judicial notice, the petition does not state sufficient facts to constitute a cause of action.

It remains to consider whether the court has jurisdiction of the plaintiff’s complaint in the form in which it is presented in plaintiff’s petition. The action, as stated above, is one seeking to enjoin the payment of the salaries of the thirty-three councilmen elected to office by the voters at the regular municipal election, *470held according to law in November, 1941. The sole basis upon which plaintiff seeks to enjoin the payment of salaries is the failure of the council to carry out the provisions of Section 25 of the charter of the city of Cleveland to *redivide*the city into wards so that each ward would have a population of about 30,000 persons, after the proclamation of the Secretary of State stating the population of Cleveland as a result of the census of 1940. It is claimed by the plaintiff that if this had been done it would have reduced the number of wards from thirty-three to twenty-nine. Whether this conclusion is true is open to considerable doubt. It might be that the subdividing of the city into wards by the council in the exercise of its sound discretion, due to the irregularities of the natural and street boundary lines on the basis of 30,000 population, or major portion thereof, “as nearly equal in population as may be, composed of contiguous and compact territory and bounded by natural boundaries or street lines, ’ ’ would result in the creation of thirty or even thirty-one wards. But, regardless of what might be the result, it is contended that the failure of the council to carry out the provisions of this section, after the census of 1940, has invalidated the offices of all the councilmen in Cleveland. Therefore, it is claimed there being no valid office there cannot be even a *de facto*officer. Certainly no such result will obtain. The charter of 1931 declares in Section 25 that the “wards existing at the time of the adoption of this amendment, *shall continue*until changed by the council as provided herein.” Having concluded that the wards as they existed prior to the charter of 1921 and continued to exist thereafter for all other purposes except the election of councilmen,. were, by the adoption of the charter of 1931, reestablished as the basis for the election of councilmen, the legality of the office is thereby determined, and the only way to test the rights of incumbents to the public of*471fice which they occupy is by a *quo warranto*proceeding and not by injunction in equity to enjoin the payment of such officers’ salaries or fees.

Under the title “Proceedings to Try Title” in 32 Ohio Jurisprudence, 1083, Section 229, the rule is stated as follows:

“The title of a *de facto*officer cannot be inquired into in a collateral way between third parties, but it may be inquired into where he is suing in his own right as an officer. Every issue questioning the authority or rights of an officer is collateral, unless the officer himself is in some way a party to the action. If a *de facto*officer sues for his salary, the question may be raised by the answer. The only way is to challenge in a *quo warranto*proceeding.” *Molitor*v. *State.*6 C. C., 263, 3 C. D., 445.

The case law, not Qnly in Ohio but in all other jurisdictions, almost without exception supports the rule as thus stated. In the case of *Greene*v. *Knox,*175 N. Y., 432, 67 N. E., 910, in determining the sufficiency of pleading of a taxpayer seeking to enjoin the payment of the salary of one holding public office where the officer was not a party to the suit, the court said:

“ * * * in our view of the case, the sufficiency of the pleading depends upon the single question whether the title to office, complete and regular on its face, can be tried in a taxpayer’s action brought to restrain the payment of salaries. * * *

“Wehave here, then, three defendants holding regular and presumptively valid appointments in the civil service, the payment of whose salaries is sought to be enjoined on the ground that, although their appointments are valid in form, they are invalid in fact. * * *

“These suggestions, we think, suffice to show the untenability of the claim that the defendants’ right to their salaries can be adjudicated without passing upon *472the question of their titles to office; hut, even if such a thing were possible, it would be contrary to the orderly and just methods of judicial procedure to relegate public officers first to an equity forum for the determination of their rights to salaries, and then to a legal forum for the trial of titles to office, with the incongruous possibility that in the former the court might decide that the payment of salaries should be enjoined, and in the latter a jury might affirm the validity of the titles to office upon which the rights to salaries depend. * * * The whole case may therefore be summed up in the statement that, whenever there is an actual contest over a title to office that is regular on its face and presumptively valid, the incumbent is entitled to his day in court on the main question before the payment of his salary can be interdicted; and, aá' a general rule that can only be «done properly in the action of *quo warranto*in a court of law, where the issues of fact can be decided by a jury.”

Paragraph two of the syllabus reads:

“The salary of an officer is property, which cannot be taken away until the office is destroyed; and, when the’question of title to office is the main question, the proper remedy is by *quo warranto,*and not by an action by a taxpayer to restrain payment of the salary. ’ ’

It is claimed by the plaintiff that the case is also authority for the proposition that if the claimed officer’s right to the office is invalid as a matter of law, or if there is no legal office, a suit in equity to enjoin the payment of salary is proper. Whether this be true or not true does not affect the instant case. There are no facts properly alleged in the petition that would even colorably be said to present either of these claims.

In the case of *Burgess*v. *Davis, County Treas.,*138 Ill., 578, 28 N. E., 817, the court, in passing on the use of the injunctive remedy to stop the payment of the salary of a judicial officer who had been elected to *473office but bad thereafter disqualified himself from holding the office, said:

“Equity will not interfere to enjoin the payment of fees, salaries, or emoluments to a *cle facto*incumbent of an office. 2 High Inj. 3rd Ed. Sec. 1314. Public policy will prevent the courts from interfering to disturb the *de facto*officer in the receipt of the fees. *Stone*v. *Wetmore,*42 Ga., 601. The enjoyment of the fees, profits, and advantages of the office are so. connected with the proper discharge of the duties of the office itself that they cannot- be separated.”

See, also, *Ake*v. *Bookhammer,*13 Del. Ch., 320, 119 A., 238; *Stiess*v. *State,*103 Ohio St., 33, 132 N. E., 85; *State, ex rel.,*v. *Brough,*94 Ohio St., 115, 113 N. E., 683; *Babbitt*v. *Shade,*60 Ohio App., 100, 19 N. E. (2d), 778.

It is clear, therefore, that the court did not have jurisdiction of the cause of action as presented by the plaintiff and for that reason the plaintiff’s petition was properly dismissed.

The problem of procuring the redistricting of the city into wards, under Section 25 of the charter of 1931, is not one for judicial determination. The duty is one that rests squarely upon the legislative branch of the city government and in carrying out the mandate of the charter there is placed upon the council the duty of exercising its sound judgment and discretion.

For the reasons, therefore, that the facts which are well pleaded in the petition do not constitute a cause of action and that the court is without jurisdiction to grant the relief asked by the plaintiff, under the circumstances of the case, the judgment of the Common Pleas Court is affirmed.

*Judgment affirmed.*

Lieghley, J., concurs.

Morgan, P. J., concurs in judgment.