Opinion
No. 35788
Decided December 10, 1958.
Judges — Removal from office — Grounds for — Disqualification — Suspension of privilege to practice law — Procedure for removal — Quo warranto.
IN QUO WARRANTO.
ON DEMURRER to petition.
The petition in quo warranto in this case, filed originally in this court, alleges in substance that respondent became a member of the legal profession in 1946 and was elected in 1953 as judge of the Youngstown Municipal Court for a term of six years beginning January 1, 1954, on which date he qualified for such office and began the exercise of the powers and duties thereof; that Section 1901.06, Revised Code, requires that every such judge of the Municipal Court "during his term of office * * * shall have been admitted to the practice of law in the state" and during such term is required to maintain his privilege to practice law; that on May 28, 1958, by a decision of this court ( Mahoning County Bar Assn. v. Franko, ante, 17, 151 N.E.2d 17), respondent was indefinitely suspended from the practice of law in this state and was ordered to refrain from the practice of law; that it was ordered further that he be denied each and all the rights, privileges and prerogatives ordinarily accorded to a member in good standing of the legal profession; and that he has not been restored to good standing in the legal profession by any further order of this court.
The petition alleges further that, notwithstanding his disqualification since May 28, 1958, to hold the office of judge, respondent has, ever since that date, continued to claim such office, has usurped and intruded into such office, and has exercised its powers and duties and enjoyed its privileges and perquisites, all without authority in law, and will continue to do so unless ousted therefrom by order of this court.
The prayer is that respondent be required to show by what warrant he claims the office of judge of such Municipal Court and assumes to exercise the powers and duties and enjoy the privileges and perquisites thereof, and that, upon final hearing, he be ousted from such office.
To this petition respondent demurs on the grounds that the petition does not state facts warranting a proceeding in quo warranto, and that this proceeding is in denial of respondent's rights under the Constitution of the United States.
The cause has been submitted on the petition and demurrer thereto.
Mr. William Saxbe, attorney general, and Mr. Hugh A. Sherer, for relator.
Messrs. Green Schiavoni, for respondent.
Respondent contends (1) that a Municipal Court judge is not required to retain his privilege to practice law during his entire term of office; (2) that an indefinite suspension from the practice of law is not a ground for removal of a judge under the Code providing for forfeiture of office for misconduct; and (3) that quo warranto is not the proper remedy.
The first contention involves the construction of Section 1901.06, Revised Code, which reads in part as follows:
"A municipal judge during his term of office shall be a qualified elector and a resident of the territory of the court to which he is elected or appointed, and shall have been admitted to the practice of law in this state * * *." (Emphasis added.)
The language emphasized above has been interpreted by this court to mean that "judges who are required by statute to be attorneys at law must necessarily maintain their status as members of the legal profession." Mahoning County Bar Assn. v. Franko, supra, paragraph five of the syllabus. In the opinion, on page 23, it is stated that, "since a judge is required by statute to be an attorney at law, it is clear that he must necessarily maintain his privilege to practice law, i.e., his membership in the legal profession." It follows that an indefinite suspension from the practice of law works a forfeiture of the office of municipal judge and is a ground for removal.
The revocation of respondent's status as a member of the legal profession by this court in Mahoning County Bar Assn. v. Franko, supra, worked such forfeiture of office, and, accordingly, under the provision of Section 2733.01, Revised Code, that quo warranto may be brought "against a public officer * * * who does or suffers an act which, by law, works a forfeiture of his office," quo warranto is the proper remedy here.
The demurrer to the petition is overruled and respondent given leave to answer, and in default of answer by January 1, 1959, a judgment of ouster will be entered.
Demurrer overruled.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.