State ex rel. Halak v. Cebula

Per Curiam. Ordinarily, an action in quo warranto against a public official, inquiring by what, authority the individual holds his office, must be brought by the Attorney General or a prosecuting attorney. An exception is provided in R. C. 2733.06 which states: “A person claiming to be entitled to a public office unlawfully held and exercised by another may bring an action therefor by himself or an attorney at law, upon giving security for costs.” . . It has long been held and accepted that a private person cannot maintan an action in quo warranto except-under the authority of this statute, and “he must show not- only that .-he is entitled to the office, but also that, it is unlawfully held and exercised by the defendant -in the: action.” State, ex rel. Heer, v. Butterfield (1915), 92 Ohio St. 428, paragraph one of the syllabus; State, ex rel. Lindley, v. The Maccabees (1924), 109 Ohio St. 454; State, ex rel. Smith v. Nazor (1939), 135 Ohio St. 364. In State, ex rel. Ethell, v. Hendricks (1956), 165 Ohio [293] St. 217, it was held in paragraph three of the syllabus that: " “Section 2733.06, Revised Code, empowers aii individual, elaimiilg in good faith and upon reasonable grounds to be entitled to a public office held and exercised by another, to expeditiously bring an action in quo warranto upon his own initiative in the name of the state, and Section 2733.08, Revised Code, provides that in such an action ‘judgment may be rendered upon the right of the defendant, and also on the right of the person averred to' be so entitled, or only upon the right of the defendant, as justice requires.’ ■ '■ The question presented is thus whether the relator’s claim that he is entitled to the office held by the respondent is made in good faith and upon reasonable grounds-. In the present cause, it is agreed that should the respondent be declared ineligible to seek election to the office in ques'tióh, the vacancy would now be'filled by the city council, and'iiot by the accession of the relator as the losing candidate with the highest number of votes. In State, ex rel Haff, v. Pask (1933), 126 Ohio St. 633, it was held’ in paragraph three of the syllabus: “Where the candidate receiving the highest number of votes is ineligible to election, the candidate receiving the next highest number of votes for the same office is not elected. Only the eligible candidate who receives the highest number of votes for the office for which he stands is elected to such office.” See, also, Prentiss v. Dittmer (1916), 93 Ohio St. 314, 327; State, ex rel. Sheets, v. Speidel (1900), 62 Ohio St. 156; Renner v. Bennett (1871), 21 Ohio St. 431. The parties do not cite any provision in the North Royalton charter which would affect this principle. Under these cases, there are clearly no reasonable grounds for the relator’s claim that he is entitled to the respondent’s office. A mere possibility of appointment does not constitute entitlement in any way. Accordingly, the Court of Appeals was correct in its dismissal of the com [294] plaint. We do not reach the question of whether former R. C. 3517.10 has any present effect, and we express no opinion thereon. The judgment of the Court of Appeals is affirmed. Judgment affirmed. O’Neill, C. J., Celebrezze, W. Brown, P. Brown and Sweeney, JJ., concur. Herbert and Locher, JJ., concur in the judgment.