
    The State, ex rel. Heer, v. Butterfield et al.
    
      Quo warranto — Title to public office — Facts necessary to maintain action — Section 12307, General Code — Municipal corporations —Charters—Action to annul — Who may bring same.
    
    1. In order that a private relator may be entitled to maintain an action in quo warranto under Section 12307, General Code, to recover a public office, he must show not only that he is entitled to the office, but also that it is unlawfully held and exercised by the defendant in the action.
    2. An action to annul the charter of a municipality on the ground that it was illegally adopted or that it violates the constitution must be brought in the name of the state by an officer duly authorized in that behalf.
    (No. 14724
    Decided July 2, 1915.)
    Error to the Court of Appeals of Butler county.
    Jacob F. Heer brought an action in quo zvarranto in the court of appeals of Butler county against the defendants in error here.
    In his petition he alleges that he is the duly elected mayor of the municipality of Middletown, Butler county, a duly organized city under the laws of Ohio, and a municipal corporation; that he was elected such mayor at the general election in November, 1911, and qualified as such, and since the first Monday of January, 1912, has been in the discharge of his duties as mayor, as provided by law.
    He further says that no election for mayor was held in that city at the general election in November, 1913, and that by law he holds over and continues in office as such mayor, and that it is .his privilege to do so until his successor has been duly elected and qualified. He says that the defendants, without right or warrant of law, have usurped his said office and intruded themselves into the same, and are attempting to exercise the functions, power • and authority of the relator, together with the privileges and duties of said office, and are now carrying on the executive, administrative and judicial functions heretofore and now devolving on him as mayor.
    The defendants, Wendel P. Butterfield, C. Ed. Sebald, John T. Fay, Thomas A. Scully and James A. Pierce, five of the six defendants, by their answer say that the city of Middletown is a municipality under the constitution and laws of the state. The answer then proceeds to set out that the city of Middletown duly and legally adopted a charter pursuant to the provisions of Section 7 of Article XVIII of the Constitution; that they were duly elected and qualified as city commissioners under the charter so adopted and that ever since January 1, 1914, have exercised the executive, legislative and administrative functions of the government of the city of Middletown, under and by virtue of .the charter so adopted by the electors of the city of Middletown.
    
      H. L. Dell, defendant, by separate answer, sets out the same matter as to the adoption of the charter, and alleges that by virtue of the charter he was elected to the office of judge of the municipal court, and as such was exercising the judicial functions of the said city, under and by virtue of that election.
    The answers of all of the defendants set out that the charter adopted by the people abolished the office of mayor. The reply of the plaintiff avers that it is true, as set forth in the answers, that the city of Middletown undertook in the manner and form set out to adopt a charter as alleged. The reply sets forth certain allegations as to the steps by which this was done, and alleges that certain provisions of the charter are unconstitutional, illegal and void in that they violate Section 1 of Article IV, Section 2 of Article XVII, Section 13 of Article IV, Section 16 of Article IV, Section 18 of Article IV and Section 15 of the Schedule, all of which are referable to the provisions of the charter with reference to said municipal judge and the clerk of his court; also that the charter violates Section If, Article II of the Constitution, and Sections 3, 9 and 13 of Article XVIII of the Constitution.
    The judgment of the court of appeals was in favor of the defendants, and this proceeding is brought to reverse that judgment.
    An agreed statement of facts, duly authenticated, shows the steps by which the charter was adopted and the provisions of the charter.
    
      
      Mr. Charles W. Baker; Mr. Albert S. Fensel and Messrs. Giffen & Haines, for plaintiff in error.
    
      Mr. W. G. Palmer; Mr. B. F. Harwitz and Mr. W. C. Shepherd, for defendants in error.
   Johnson, J.

In support of the judgment below it is contended that the relator has no legal capacity to maintain this action. The pleadings and the agreed statement show that the defendants are not claiming to hold the office of mayor, either as individuals or as a commission. It is not claimed by counsel for the relator that they hold that office. The case of the relator rests on the claim that all of the functions formerly exercised by the mayor are now assumed by the defendants, part of them being performed by the commission, the judicial functions formerly exercised by the mayor being performed by the defendant Dell, as municipal judge. However, an examination of- the charter discloses that the powers of the city commission are entirely different from those formerly exercised by the mayor, and that while much of the executive authority of the mayor is now exercised by the commission still the two offices are not in anywise identical. The relator does not show such a state of facts as would authorize him as a private individual to maintain the proceeding.

In State, ex rel. Wasson, v. Taylor, 50 Ohio St., 120, it was held that a private person cannot maintain quo warranto except under the authority conferred by what is now Section 12307, General Code, viz.: “A person claiming to be entitled to a public office unlawfully held and exercised by another, may, by himself or an attorney at law * * * bring an action therefor.” The court held that other actions in quo zvarranto must be commenced by and on relation of the attorney general or a prosecuting attorney, who is required to commence such action only when directed by the governor, supreme court, .etc., as provided by law. Moreover, in this case the defendant Dell holds a different office by a different title than any of the others hold and cannot be properly joined in an action against them.

In discussing quo zvarranto proceedings it is stated in 32 Cyc., 1447: “No joinder of defendants is proper which unites separate causes of action against several defendants. Thus, if the defendants claim title to different offices by distinct titles, they are improperly joined.” Before a party is entitled to maintain an action in quo warranto to recover a public office, he must show not only that he is entitled to the public office, but also that the identical office is unlawfully held and exercised by another. It is insisted that the right of the relator to hold the office of mayor ás a hold-over official depends upon the validity of the charter, and that if the charter is invalid the office of mayor has not been abolished and he would be entitled still to exercise its functions. Even if this be conceded it would not entitle the relator to maintain this suit against these defendants. It would still be necessary for him to show not only that he was entitled to exercise the office of mayor, but that these defendants were unlawfully holding that office and exercising its functions. A private person cannot use the name of the state in an action to annul the charter of an incorporated city on the ground that it contravenes the constitution. Such an action must be brought in the name of the state by some officer authorized to represent the interest of the public, as the attorney general.

4 Dillon on Municipal Corporations (5 ed.), Section 1560, says: “The right to file an information in the nature of a quo warranto, or to institute a civil action or proceeding to arrest a usurpation of such a franchise, does not belong to the individual citizen; the right to institute such proceedings against an existing de facto municipal corporation is in the state, and the institution of the action is a matter in the discretion of the attorney general.”

This proposition is also sustained by The State, ex rel., v. Shufford et al., 77 Kans., 263.

For these reasons the judgment of the court of appeals will be affirmed.

Judgment affirmed.

Nichols, C. J., Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.  