State ex rel. Shauk v. Gard

JELKE, P. J. This is not a case involving the expulsion of a member of council, who, being legally qualified has been duly elected and installed in office. Section 121 of the municipal code (Rev. Stat. 1536-614; Lan. 3099) has no application to the ease at bar. We are of opinion that at no time between his election and the hearing of this ease did Fred Shearer have the qualifications of a member of council provided and required by Sec. 120 of the municipal code (Rev. Stat. 1536-613; Lan. 3098). He held the public office of school examiner and the public employment [432] of superintendent of one of the Hamilton public schools before the election and continuously during the entire time of .his pretended incumbency as member of council, in contravention of the provision: “Every member of council shall be an elector of the city, shall not hold any other public office or employment, except that of notary public or member of the state militia, and shall not be interested in any contract with the city.” "We are of the opinion that the inhibition against persons holding public office or employment is not limited to office in or employment by the' municipality, but extends to all public office and employment. This is evidenced by the exception of notaries public and members of the militia. Having come to this conclusion, the case of State v. Craig, 69 Ohio St. 236 [69 N. E. Rep. 228], applies: “"Where the appointment to an office is a nullity, for the reason that the appointee is by statute ineligible to such office, a legal appointment to such office may be made, without first ousting such first appointee by proceedings in quo warranto.” Fred Shearer's election and pretended incumbency of the office of councilman were a nullity, and on December 27, 1905, council had the right under Secs. 119 and 120 of the municipal code to determine this matter without notice to Fred Shearer or taking any proceedings against him, and to fill the vacancy forthwith by the election of Brandon R. Millikin. The prayers in both the quo warranto and injunction suits above set forth will be denied and the petitions dismissed. Swing and Giffen, JJ„ concur,