Opinion
No. 26728
Decided January 19, 1938.
Office and officer — Quo warranto lies, when — Section 12303, General Code — Usurpation of public office exists, when — County engineer — Only registered professional engineer and licensed surveyor or incumbent, eligible — Section 2783, General Code — Incumbent holds over when successful candidate ineligible — Section 8, General Code.
1. The provisions of Section 12303, General Code, authorize an action in quo warranto in the name of the state against a person who usurps, intrudes into or unlawfully holds or exercises a public office within this state.
2. Usurpation of public office does not contemplate forcible seizure. It may be only an unauthorized assumption and exercise of power in performing the duties of the office under claim of right thereto.
3. The provisions of Section 2783, General Code, are mandatory, and one who is not a registered professional engineer and registered surveyor licensed to practice in the state of Ohio is not eligible as a candidate for the office of county engineer or to be elected or appointed thereto unless he shall have previously served as county engineer immediately prior to his election.
4. Where the candidate for county engineer receiving the highest number of votes is ineligible to election under the provisions of Section 2783, General Code, the incumbent in that office will hold over under Section 8, General Code, until his successor is elected and qualified. ( State, ex rel. Cox, v. Riffle, 132 Ohio St. 546, approved and followed.)
APPEAL from the Court of Appeals of Columbiana county.
This is an action in quo warranto in which the relator, Lloyd C. Kirk, seeks to have determined the conflicting claims of right to office of county engineer of Columbiana county between himself and the respondent, Robert S. Wheatley.
Kirk and Wheatley were opposing candidates for that office at the November, 1936, election. Kirk was the incumbent, his four-year term of office expiring January 4, 1937. Wheatley received the greater number of votes and, upon the issuance of a certificate of election to him, took the oath of office and filed the required bond on January 4, 1937, which bond was duly approved. Kirk, on the same day, filed a similar bond, which was approved by the prosecuting attorney but not by the county commissioners. Wheatley, on January 4, 1937, presented himself at the office of the county engineer, announced his assumption of the position and authority, discharged one employee and directed the others to follow only his orders. Though Kirk refused to then surrender the keys, he did so on January 9 under an order of mandamus issued by the Common Pleas Court. This proceeding, however, was instituted by Kirk on January 4 subsequent to the indicated assumption of the duties and prerogatives of the office by Wheatley, as above stated. An order was sought by Kirk ousting Wheatley from the office and adjudging title thereto in himself.
This proceeding of the relator is based upon the claim that Wheatley was not at the time of the election or prior thereto or at the time of the institution of the action a registered professional engineer or registered surveyor licensed to practice in the state of Ohio and, not being a person who had previously served as county engineer immediately prior to such general election, was ineligible to be a candidate for or elected to the office of county engineer, and further that no eligible successor having been elected or appointed and qualified for such office, he is being wrongfully excluded therefrom.
Upon hearing, the Court of Appeals awarded judgment of ouster of Wheatley from the office of county engineer and an order of induction of Kirk therein as prayed. Whereupon the case was appealed to this court.
Mr. H.L. McCarthy and Mr. W.B. Moore, for appellee.
Messrs. Wilson Rector, Messrs. Wallace Tobin and Messrs. Yearick Hughes, for appellant.
The principal question presented upon the merits of this case is whether Wheatley, the successful candidate for the office* of county engineer in the election of November, 1936, was an eligible candidate for such office at the time of the election. However, two preliminary questions are presented which logically should be first considered, and those are whether the action was prematurely brought and whether the remedy of quo warranto is available.
This proceeding was instituted under favor of the provisions of Section 12303, General Code, the pertinent portions of which are as follows:
"A civil action may be brought in the name of the state: 1. Against a person who usurps, intrudes into, or unlawfully holds or exercises, a public office, civil or military, or a franchise, within this state, or an office in a corporation created by the authority of this state."
An act of usurpation of a public office and the prerogatives thereof may be with or without forcible seizure thereof. It is usually regarded as a mere unauthorized assumption and exercise of power in performing the duties of office upon claim of right thereto. The same meaning is covered by the phrase "intrudes into," as used in the statute, which means the entering into without right or title of entering.
The record adequately discloses that on January 4, Wheatley, having taken the oath of office and given bond which had been duly approved, assumed the duties and the prerogatives of the office of county engineer, going so far as to discharge one employee and announcing to all other employees in the office that he was taking over the duties of the office of county engineer and that they should take no orders from anybody but him. We are of the opinion, therefore, that this action was not prematurely instituted and further that the remedy of quo warranto was available. As early as the case of Harding v. Eichinger, 57 Ohio St. 371, 49 N.E. 306, it was held that quo warranto was the appropriate remedy to try the title to public office. This rule has been followed and applied in subsequent cases, among them being State, ex rel. Haff, v. Pask, 126 Ohio St. 633, 186 N.E. 809; Heffner v. State, ex rel. Johnson, Pros. Atty., 131 Ohio St. 13, 1 N.E.2d 146, and State, ex rel. Cox v. Riffle, 132 Ohio St. 546, 9 N.E.2d 497.
A complete answer to the contention that the remedy of contest of election under the statute is available and not a proceeding in quo warranto is found in the opinion in the Heffner case, supra, where it is said:
"It is urged that action in quo warranto does not lie; that the remedy available is that provided by the statute for the contest of election. It is quite obvious that those statutory provisions have no application in this situation. An election contest, under the statute, is to ascertain and decide which candidate received the highest number of legal votes. Howard v. Shields, 16 Ohio St. 184; Prentiss v. Dittmer, 93 Ohio St. 314, 112 N.E. 1021, L.R.A. 1917B, 191."
In the instant case, there was no question as to the number of ballots for or against any candidate, or in any respect as to the validity of the election other than the eligibility of the candidate who, as it transpired, received the larger number of votes in the election. We therefore have the same proceeding and substantially the same question as was presented in the case of State, ex rel. Cox, v. Riffle, supra. The requirements as to eligibility for the office of county engineer are prescribed by Section 2783, General Code, which became effective February 3, 1936. That section reads as follows:
"No person holding the office of clerk of court, sheriff, county treasurer or county recorder, shall be eligible to the office of county engineer. In all counties no person shall be eligible as a candidate for the office of county engineer or be elected or appointed thereto, except a registered professional engineer and registered surveyor licensed to practice in the state of Ohio, or a person who shall have previously served as county engineer immediately prior to his election."
And it is conceded, of course, that Wheatley had not previously served as county engineer immediately prior to his election; neither had Wheatley secured a license from the State Board of Registration for Professional Engineers and Surveyors as a surveyor nor passed an examination as a professional engineer in accordance with the provisions of Section 1083-1 et seq., General Code. It does appear that, following the application filed with the State Board of Registration for Professional Engineers and Surveyors on January 23, 1935, for a license as surveyor and subsequently an application for a license as an engineer, Wheatley received a letter from the secretary of the board which, in substance, acknowledged the receipt of such application and stated that, in order that the applicant might be protected as set out in Section 1083-19, General Code, which provides that the construction of public works shall be supervised by a licensed engineer or surveyor, he was authorized to use a stamp therein indicated "until you are authorized by the board to use the seal." Wheatley was not granted a license as a surveyor until subsequent to the election, and did not pass an examination as a professional engineer until subsequent to the institution of this proceeding. It is quite manifest, therefore, that at the time of the election Wheatley had not met the mandatory requirements of the statute and was not eligible as a candidate for the office of county engineer, and could not be legally elected or appointed thereto. The letter written by the secretary of the State Board of Registration for Professional Engineers and Surveyors cannot be regarded as a certificate of registration or a license such as to render Wheatley eligible as a candidate for the office of county engineer under the provisions of Section 2783, General Code.
The recent decision of this court in the case of Cox v. Riffle, supra, is conclusive upon the question thus presented. No one having been legally elected to the office of county engineer, Kirk, the incumbent of that office, will hold over under the provisions of Section 8, General Code, until his successor is elected and qualified.
The judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.