
    The State, ex rel. Mentzer et al., v. Price et al.
    
      (Decided July 14, 1928.)
    
      Mr. F. P. Spriggs, Mr. R. H. Sutphen and Mr. R. E. Peters, for plaintiff.
    
      Mr. P. E. Dempsey and Mr. S. S. Beard, for defendants.
   Justice, J.

This is a suit in quo warranto originating in this court. William it. Mentzer and Oltie E. Bruñe, the relators, seek to have Charles F. Price, George E. Coons, and Clarence E. Jordan, the respondents, ousted from membership on the board of trustees of public affairs of the village of Paulding, Ohio, and to be themselves inducted into office.

The salient and controlling facts out of which the controversy arises are not in dispute, and briefly are as follows:

Paulding is an Ohio municipal corporation with a population of less than five thousand. It has a municipally owned waterworks, and an electric light plant, which are managed and controlled by the board of public affairs of said village. .

At an election held in November, 1927, relators, who are and were citizens and electors of said village, were elected to membership on said board for a term of two years from and after January 1,1928. They have duly qualified for membership on said board. At that election, one Harry Clark, was also elected to membership on said board, for a term of two years from and after January 1, 1928. He has failed and neglected to qualify for said office.

At an election held in November, 1925, Charles F. Price and George E. Coons, two of the respondents, and one William H. Cullen, were elected members of said board of trustees for a term of two years from and after January 1, 1926. They duly qualified for membership on said board.

On February 13, 1928, said William H. Cullen resigned as a member of said board, and Clarence E. Jordan, one of the respondents, was appointed to membership on it. He has duly qualified for said office.

Relators have demanded possession of said offices from the respondents, who are now in possession and occupancy thereof, which said demands have been refused.

On November 17, 1927, said William IT. Cullen, Charles F. Price, and George E. Coons, who with relators and said Harry Clark were candidates for membership on the board of trustees of public affairs of said village of Paulding at the November election, 1927, gave notice in writing to the resident judge of the common pleas court, probate division, of their intention to contest said election of said William R. Mentzer, Oltie E. Bruñe, and Harry Clark. Thereafter, however, on motion of said contestors, the proceedings in contest were dismissed as to Harry Clark.

The points of contest, which are admitted by the relators, are:

That relators, a short time prior to the November election, 1927, had caused to be printed and circulated among the voters of said village handbills containing, among other promises, statements, and declarations, the following:

“These candidates if elected will do the following: 5. To furnish without charge, clean, wholesome well water for the community swimming pool during the few summer months it is used rather than compel the children of our town to swim in filtered creek water.”

Also, that relators mailed on said election day, and prior thereto, to the voters of said village, a circular entitled, “No Answer,” in which the following language appeared:

“They did not say why they objected to giving the children a little fresh water for the swimming pool.”

There is located in said village a swimming pool. It is not owned by said village, but its citizens and the people of the surrounding country have the free ase of it.

The other promises, statements, and declarations contained in said handbills are:

“1. Issue a financial statement at least once a year.

“2. See that every patron is rendered the service due them, but granting special privileges to none.

“3. Give at least as good service as lias been given, and constantly strive to better it.

“4. Through an economical administration, strive, without minimizing the service, to effect a reduction in light rates.”

These promises, statements, and declarations were not made a part of the said notice of contest.

The contest was tried to a jury, which returned a decision finding that relators had violated Section 5175-26, General Code, a part of what is commonly known as the Corrupt Practice Act, and that “by reason thereof their election to membership on said board is invalidated.” Said decision was attested by the judge who presided at the trial.

The questions are:

First. Does quo warranto lie?

Second. Did relators in their race for membership on the board of trustees of public affairs of the village of Paulding, Ohio, at the November election, 1927, violate any of the provisions of Section 5175-26, General Code?

- Of these in their order:

It is insisted relators cannot maintain this suit, for, in its last analysis, they seek thereby to have this court review the election contest. If this contention be true, quo warranto will not lie. State, ex rel. Felder, v. McVay, 115 Ohio St., 588, 154 N. E., 810. But is this contention true? We do not think so, for the reason that relators claim that the election contest is a nullity. Manifestly that which is not cannot be reviewed.

It is insisted, however, that relators cannot, in this suit, attack the contest proceedings. With this contention we do not agree. Void judgments may always be collaterally attacked. Spoors v. Coen, 44 Ohio St., 497, 9 N. E., 132; Freeman on Judgments (5th. Ed.), Section 322, page 642.

In the instant suit relators claim they are entitled to membership on the board of trustees, and that respondents are unlawfully withholding said offices from them.

Section 12307, General Code, provides:

“A person claiming to be entitled to a public office unlawfully held and exercised by another, by himself or an attorney at law, upon giving security for costs, may bring an action therefor.”

The relators gave the security for costs, and, as we see it, this section of the General Code clearly authorizes the prosecution of this suit.

Coming now to the question of the claimed violation by relators of the Corrupt Practice Act of this state:

Section 5175-26, General Code, provides that any person is guilty of a corrupt practice if he in connection with any election pays, lends, or contributes, or promises to pay, lend, or contribute, any money or other valuable consideration for any other purpose than those enumerated therein. It provides further that any contribution or expenditure or offer to contribute or expend any money or thing of value for any purpose whatsoever, except as therein provided, is “hereby declared to be corrupt practice and invalidates the election of any person guilty thereof.”

Admittedly relators made the said promises, statements and declarations set forth in the said notice of contest. Did they, by so doing, violate this section of the General Code? We do not think so. Said promises, statements and declarations, as likewise the other promises of relators, are, in onr opinion, mere expressions of a policy which relators will pnrsne as public officials if elected to office. Such kind of pledges are made in the interests of the public and are consistent with personal fitness for office. They involve no personal pecuniary consideration offered by the relators in order to accomplish their election. Clearly they do not fall under the ban of the Corrupt Practice Act of this state. Prentiss v. Dittmer, 93 Ohio St., 314, 319, 112 N. E., 1021, L. R. A., 1917B, 191.

It is of course of no moment here whether said promises can or cannot be kept. If they fall within the inhibition of the statute, relators cannot prevail here. Otherwise, as we see it, the writ should be allowed.

It is also of no moment here that two relators are seeking to oust three respondents from said board, as the relators possess the superior right thereto. None of the respondents is in a position to complain if he be not the one remaining on said board after the relators have been inducted into office.

Inasmuch as Charles F% Price and George E. Coons were on said board when William H. Cullen resigned it seems right that they should be ousted therefrom, and that Clarence E. Jordan should be permitted to remain thereon.

It occurs to us that further comment will be neither interesting nor profitable. True, there are other questions presented by counsel in their arguments and written briefs, but, as to them, we express no opinion. It is not necessary for us to do so in disposing of this case.

Holding these views, it follows that relators should be inducted at once into membership on the board of trustees of public affairs of the village of Paulding, Ohio, and that respondents Charles F. Price and George E. Coons be forthwith ousted therefrom.

Judgment accordingly.

Crow and Hughes, JJ., concur.  