
    No. 89
    STATE v. BANKS
    Ohio Appeals, 7th Dist., Mahoning County
    Decided Oct. 5, 1923
    866. OFFICE AND OFFICERS — Resignation of police officer held in effect judgment of ouster — Action for ouster should be dismissed when only question involved is that of costs— Court will not try abstract title to office alone.
    Attorneys — Metcalf, Kenealy & Cannon, for State; J. H. Leighninger and Henry W. Church, for Banks.
   FARR, J.

Epitomized Opinion

First Publication of this Opinion

This was an action in quo warranto brought in the Court of Appeals of Mahoning county to oust Banks from the position of Director of Public Safety in the city of Youngstown. The petition stated that on J'an. 1, 1922, Hamilton was appointed Safety Director and on Jan. 18, 1923, Banks was appointed Safety Director to succeeded Hamilton. A few days before this action Was brought, Banks resigned and Hamilton resumed his duties. It was urg’ed at the hearing that inasmuch as quo warranto was a proceeding by which the right to a public office was tried, the case should be determined regardless of whether Banks resigned or not. In dismissing the petition, the Court of Appeals held.

1. When Banks resigned, and Hamilton again took office, it had the same effect as though this court had entered a judgment of ouster against Banks.

2. Where the only question involved is the question of costs, the court should not continue the cause but should dismiss the action.

3. Where no substantial benefit will insure to the relator, no order will issue after the term of office has expired, merely to try the abstract title to the office.

Petition dismissed.

Banks to pay cost to date of resignation and Hamilton from that date.  