Opinion
No. 71-259
Decided June 30, 1971.
Supreme Court — Quo warranto — Jurisdiction cannot be diminished by municipal charter — Municipal commission — Qualification to hold office — Determination.
IN QUO WARRANTO.
This is an action in quo warranto originating in this court. In his complaint, relator, as County Prosecutor, alleges that respondent, a City Commissioner of East Cleveland, elected to a four-year term in November 1969, became an employee of the Cuyahoga County Auditor's office on or about July 7, 1970.
Relator contends that by accepting public employment other than that of a notary public or a member of the State Militia, respondent committed an act which worked a forfeiture of his office as City Commissioner. As authority, he cites Section V of the East Cleveland City Charter which provides that a member of the City Commission "shall not hold any other public office or employment except that of notary public or member of the State Militia." The charter further provides that any member "ceasing to possess the qualifications herein provided, shall thereby forfeit his office."
Respondent has filed a motion to dismiss the petition on the basis that this court does not have jurisdiction of the subject matter. Respondent points to the first sentence of the last paragraph of Section V of the East Cleveland City Charter which states that "* * * the commission shall be judge of the election and disqualification of its own members." Respondent argues that on this basis the commission is the sole judge of the qualification or disqualification of its members and that this court is without jurisdiction.
Respondent has stated, by letter to this court, "that the ruling of the Court on the Motion to Dismiss * * * will be the final disposition of this case."
Mr. Stanton Addams, for relator.
Messrs. Gaines, Rogers, Horton Forbes, and Mr. Thomas S. Watson, for respondent.
"The judicial power of this state is vested in a Supreme Court, Courts of Appeals, Courts of Common Pleas, and such other courts inferior to the Supreme Court as may from time to time be established by law." Article IV, Section 1, Ohio Constitution. Further, Article IV, Section 2 grants to this court original jurisdiction in certain enumerated types of action one of which is "quo warranto."
While Section V of the East Cleveland City Charter is a grant to the City Commission to pass on the qualification of its own members, this case does not involve a review of action taken thereunder. Cf. State, ex rel. Platz, v. Mucci (1967), 10 Ohio St.2d 60. The grant of authority to the City Commission cannot result in a diminution of the constitutional grant of judicial power to this court. This court's original jurisdiction in quo warranto cannot be diminished by a city charter. State, ex rel. Turner, v. Fender (1922), 106 Ohio St. 191.
There is no dispute here that subsequent to his election to the City Commission of East Cleveland respondent became employed by the Auditor of Cuyahoga County. The employment by the Auditor's office constitutes a violation of the charter in that this second public employment is prohibited thereby and does not fall within the exceptions of "notary public or member of the State Militia." Thus it falls within the forfeiture provision of the city charter.
Respondent's motion to dismiss is overruled, and, respondent not desiring to plead further, judgment of ouster is issued.
Judgment accordingly.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.