
    The State, ex rel. Hogan, Attorney General, and Henry T. Hunt, Prosecuting Attorney of Hamilton County, v. Hunt.
    
      Authority for action in quo warranto — Given only by section 12303, General Code — Legality of exercise of mere function — Cannot be inquired into, when — Sections 1539, 1540 and 1683, General Code — Do not constitute a supervising judge — An officer holding a separate office, when.
    
    1. The authority, and the only authority for bringing an action in quo warranto in this state, is given by section 12303 of the General Code. That section provides that quo warranto may be brought in the name of the state against a person who usurps, intrudes upon, or unlawfully holds or exercises, a public office, or a franchise, within this state.
    2. The legality of the exercise of a mere function alleged to be erroneously exercised by one who, it is claimed, is a public officer, can not be inquired into by a proceeding in quo warranto.
    
    3. Neither section 1539, 1540, nor 1687, of the General Code, nor all taken together, constitute the judge therein designated as supervising judge, an officer holding an office separate and distinct from his office as judge of the court of common pleas. Such designation is mere descriptio personae. And there being no such public office as supervising judge, there can be'no intrusion by anyone into such alleged office. Hence, quo warranto will not lie to oust such alleged intruder. This court, therefore, has no jurisdiction of the action sought to be brought.
    (Decided April 18, 1911.)
    Application fpr leave to file petition in Quo Warranto.
    
    A statement of facts appears in the opinion.
    
      Mr. Timothy S. Hogan, attorney general, and ikfr. Henry T. Hunt, prosecuting attorney, the relators, argued the matter orally, and submitted a brief.
    
      
      Mr. Lawrence Maxwell argued orally in opposition, and, with Mr. Charles W. Baker and Messrs. Darby & Benedict, submitted a brief.
   Spear, C. J.

The petition presented, and to file which leave in this court is asked, represents in substance, that the defendant, who is a judge of the court of common pleas of Hamilton county is, and has been for several days last past, usurping and intruding into the following alleged office and following function, to-wit: the office known and designated as, and the functions of supervising judge of the common pleas court of Hamilton county, Ohio, that is, the office and function of designating, appointing and assigning to a judge of such court to try and hear and dispose of criminal cases pending in such court before a judge or judges thereof who have, or are alleged by affidavits to have bias or prejudice for or against parties to such cases; that he usurps such office and functions under a claim that the statutes of Ohio provide for such office and functions in Hamilton county, and that he has been duly elected thereto, and that he has been lawfully vested with said office and functions. Judgment of ouster is therefore prayed.

Quo warranto may be brought in the name of the state against a person who usurps, intrudes into, or unlawfully holds or exercises, a public office, or a franchise, within this state; General Code, section 12303. The alleged office must be not only of a public nature, but must be a substantive office; not merely the function or employment of a' deputy holding at the will of others. Shortt on Ex. Rems., *121.

It must appear, then, that there is, within the meaning of the statute, an office into which one may intrude. Whether or not this “alleged office” is a real office depends upon what construction is to be given to sections 1539, 1540 and 1687, of the General Code, .which sections make provision for the selection and prescribe the duties of the judge designated as supervising judge. We are of opinion that neither of these sections, nor all taken together, create a new office, or constitute the judge designated as supervising judge an officer separate and distinct from his office as judge of the court of common pleas. It is to be borne in mind that the question is not whether it would have been possible for the general assembly to create an office and devolve upon the holder the duties which it is by statute made the duty of the supervising judge to perform. That may readily be admitted. But the question is do these sections under review create any such office?

It is usual for the judges of the district, pursuant to section 1533, to meet on the third Tuesday of October of each year, and issue an order to the clerk of the court of common pleas of each county fixing the day of the commencement of each term for the next jfidicial year. At the same time, by section 1539, they are to apportion the labor on the part of the judges, which order shall specify what terms, or parts, shall be held by each judge. The following section directs that the order shall designate one of their number to supervise the execution of the order, which judge is there termed supervising judge. This order, it is to be noted, is in effect only one year. Upon information that a judge who has been assigned to certain work is unable to do it, or when an unusual amount of business occurs in one or more counties, he shall assign a judge or judges, not otherwise' engaged, to discharge the duties of such disabled judge, or to help dispose of the unusual work. Section 1687 makes provision for a situation where a judge in any cause or matter pending in his court is disqualified to sit, (the same being shown by affidavit of party or counsel), the supervising judge, if himself not disqualified, shall assign some other judge to try such matter or cause. This is the manner of constituting and filling the alleged office, and these are the duties to be performed by such alleged officer enjoined by these sections, and all of them. We'look in vain for any language which even purports to create a new office, or purports to constitute the judge designated as supervising judge an officer; there is nothing which tends to disclose such an intent, and surely such intent is not to be implied where the language used by the general assembly does not warrant such implication. The statute does not direct the taking of an oath of office, which the constitution, section 7 of article XV., requires of all officers, nor is it customary for any oath to be administered to such judge as such; it does not require any bond; it does not provide any emolument, it does not provide for the issuing of any commission, nor does it provide any quarters where the appointee may discharge his duties. It may be that neither of these provisions is essential in an act creating an office, and we suppose that neither is essential, but the absence of all.of them is of significance in arriving at the intent of the general assembly in enacting these sections. Rather is it the authorizing by all the judges of the district of one of their number to perform additional duties, as such; duties devolved upon him by his superiors under authority of the statute and not independent duties, thus making of the place but an adjunct to that judge’s general duties as judg'e; duties which terminate at the time fixed in the order, and terminate at all events at the conclusion of such judge’s term of office. It can not be supposed that such judge would hold over in case of failure by the judges of the district to make a new appointment at the end of his term as judge, which holding over would necessarily follow by force of section 8 of the General Code if such supervising' judge be an officer independent of his office as judge. True, such judge is designated as supervising judge. But, as held by this court in The State, ex rel., v. Jennings et al., 57 Ohio St., 415: “The character of an office cannot be attached to a position by a name merely. Whether it be an office or not, will depend upon the nature and character of the duties attached to it by law.” But for the provision of the statute directing the appointment of a supervising judge, the work of the supervision of the order might properly, though perhaps with some inconvenience, be performed by the judges jointly. If so, it is difficult to see a reason why the one appointed to attend to that duty or assist in its performance, should not be classed as a mere auxiliary, helping to make up the judicial machinery, as in the case of a jury commissioner, who was held in The State v. Kendle, 52 Ohio St., 346, not to be an officer of the state, but merely an assistant to the court. The same act which authorizes the appointment by the judges of one of their number to perform the duties imposed on the supervising judge devolves additional duties of a ministerial character upon all the judges. Suppose, now, that the legislative draftsman who drew the act referred to had happened to designate those judges as “appointing judges,” would anyone suppose that new offices had been created? And yet why not if the judge called “supervising judge” holds an independent office? It seems clear that the term “supervising judge” used in the statute is merely descriptio personae.

In giving construction to the statute it must be borne in mind that the policy of this, state, as shown by its general legislation under the present constitution, while it has in a few instances imposed additional ministerial duties on judges of the court of common pleas, has been not to impose the burden of making appointments to office upon such judges. They are not even authorized to appoint the clerk who is to record their mandates, nor the sheriff who is to execute their writs and care for and keep order in their courtroom, both of those officers being chosen by the people. The court may and does sometimes appoint deputies, and other auxiliaries such as interpreters, stenographers, and criminal bailiffs, but deputies have been held not to be officers, and it can hardly be claimed that the other even more subordinate positions are offices.

We have not undertaken to enter the field of definition of the term “office” or “officer.” As given in the books they are multitudinous, not to say multifarious. Indeed so varied are they, scattered through the books, that the ingenious barrister may find support for almost any proposition relating to the general subject which the necessities of his case may seem to demand. But, like maxims of the law,- when used indiscriminately and without judgment, they are apt to mislead. One which seems to have met with most favor, perhaps, is that an office is a public position to which a portion of the sovereignty of the country attaches, and which is exercised for the benefit of the public. And yet, without a satisfactory definition of what is and what is not, the “sovereignty of the country,” this definition seems to fail to adequately define. Manifestly, however, each case should be decided on its peculiar facts, and involves necessarily a consideration of the legislative intent in framing the particular statute by which the position, whatever it may be, is created. Returning again to the statute, when its intent and purpose is ascertained, we are nearing a proper answer to the question of office or no office, and if that purpose is not inconsistent with the language used in the act we may confidently assume that our answer is correct. Now upon the very face of the sections cited appears the purpose to fix the date of the commencement of. the terms in the several counties, and provide for a fair apportionment and equalization of the work of the district, incident to which is provision for meeting a situation where an unusual amount of business occurs in one or more counties, and of supplying a qualified judge to take the place of one temporarily disqualified. This main purpose, which is indeed the only expressed purpose, is not at all inconsistent with the language of the entire sections, but is in full harmony with it. It seems clear that the law-makers, when enacting these sections, did not dream that they were installing a new officer or creating a new office.

A number of the later decisions of this court in quo warranto proceedings have been called to our attention by counsel for the relators. We do not find that any of them bear close resemblance to the case at bar as to the facts. Indeed none •of them, save The State, ex rel., v. Anderson, 45 Ohio St., 196, seems to bear any resemblance whatever. All others are cases where the question related to the status of a person holding, or claiming to hold, an office wholly apart from any relation with or to any other office. The State v. Jennings et al., supra, presented the question whether the defendants, certain firemen in the fire department of Newark, who had been appointed by the city council to those places, were officers. The court held they were not officers and dismissed the petition. Palmer v. Zeigler, 76 Ohio St., 210, presented the question whether the superintendent of a county infirmary is or not the holder of a public office. The holding is that he is not such officer. The State v. Anderson, supra, involved the question whether or not the presidency of a .city council is a public office. The court, basing its judgment on the language of the statute creating the office (section 1676 Williams’ Revised Statutes), held that it is. The State, ex rel., v. O’Brien et al., 47 Ohio St., 464, was against persons who assumed to exercise the functions of a member of city council (membership in which is clearly an office), and the defendants were ousted because they had not been elected as councilmen from any territory entitled to be represented in the council; that is, they were not councilmen because they had not been duly elected as such. The fact is to be emphasized that the attack was made on the defendants because they were intruding into, and assuming to exercise the powers of councilmen. The ground on which they sought to defend did not in the least detract from the fact of their actual intrusion into an office. The State, ex rel., v. Brennan, 49 Ohio St., 33, was against one who was exercising the duties of a place relating to the purchase and custody of office supplies for Hamilton county under and by virtue of an appointment by the clerk of the court of common pleas, and of a statute which- created a county office, but provided for filling it by appointment rather than election. This was the part that was held void. The act on its face, purported'to create an office. That it failed in that regard was not seriously contended. But Brennan was occupying it by virtue only of an appointment. Hence the ouster. The State, ex rel., v. Wilson, 29 Ohio St., 347, holds that the place of medical superintendent of a hospital.for the insane, under the act of March 27, 1876 (73 O. L., 80), is an office; this because, and because only, of the provisions of that statute which clearly indicates an intent to create a public office.

We now come to two cases which, we think, have a direct bearing on the case at bar. The State, ex rel., v. The Judges, 21 Ohio St., 1, challenged by quo warranto the authority of the judges of the court of common pleas of the county of Hamilton, to fix the compensation of certain deputies, clerks, etc., employed by the treasurer, auditor, recorder, sheriff, probate judge, and the clerk of that county. The judges justified because of a recent statute directly conferring authority to do and perform the acts complained of. The statute was assailed as attempting to give the judges power to usurp or intrude into an office of trust distinct from that of judges, the question being whether the authority thus given by the statute constitutes a distinct office or is merely additional authority conferred on them as judges. The court held that, “the act does not create or invest them with a new office. What they are authorized to do they can only do by virtue of their office as judges. It does not follow from the fact that the new duties or powers might have constituted a new office, that therefore they do constitute such office. New duties may as well be attached to an existing office as that part of the duties of an existing office may be assigned to a new one.” Walker v. Cincinnati, 21 Ohio St., 15, relates to the power of the judges of the superior court of Cincinnati to appoint trustees of the Southern Railway. The court held that, “the act is not the creation of a new office, but the annexing of a new duty to an existing office,” and the' complaining party failed.

The petition seems to assume that a mere function, being exercised by á person occupying a place or office, may be the subject of a quo warrranto inquiry. We have not so understood the law.^ A function, in this, connection, is said to be a course of action by anyone in a public office, but it is not the office itself; nor is it within the purview of the quo warranto statute.

Finally, if the position of supervising judge be an office, how, under the constitution, (section 14, article IV), which provides that judges of the court of common pleas shall not “hold any other office of profit or trust under the authority of this' state or of the United States,” could a judge of the court of common pleas be eligible to it? Surely, if an office at all, it is an office of trust. This court is not at liberty to assume that the law-makers were ignorant of this constitutional inhibition, nor that they intended to disregard it. Nor can we assume that the general assembly intentionally committed the folly of creating an office, by the same act limiting its occupancy to certain persons, no one of whom would be eligible to fill it, but in fact all such persons distinctly, and by constitutional provision, prohibited from filling it. And yet this is exactly what the general assembly did do, if the position of supervising judge is an office.

It follows that if there be no public office there can be ho intrusion into such alleged office. Hence quo warranto will not lie, and this court is without jurisdiction to entertain the case sought to be brought. With this conclusion reached, the filing of the petition in this court would be only an idle ceremony. The application, therefore, is refused. Nor is the refusal to allow the filing of the petition in any way a denial of, or prejudicial to, any substantial right of relators. The .hearing on the application was ample, not only orally, but by means of elaborate briefs, and abundant time was taken for consideration. Had the petition been filed it would have been open to a general demurrer, and the disposition of the matter following that would have been precisely the same as it now is. The court has in the matter but followed a rule of practice of long standing as to applications for leave to file petitions in this court in causes of which the constitution gives the court original jurisdiction.

Leave refused.

Davis, Shauck and Price, JJ., concur.

Johnson and Donahue, JJ.,

dissenting. We are unable to concur in the conclusion reached by the majority of the court in refusing leave to file this petition. We do not, however, dissent from the first proposition announced by the majority of this court at the time leave to file was refused, as appears on page 139 of the Ohio Law Bulletin under date of April 24, 1911, that: “Where the action of a court is challenged as erroneous and question of error only is presented, quo warranto will not lie.” ' That is a self-evident proposition, but we do not understand that that question is involved in this application. The petition presented here by the attorney general of Ohio and the prosecuting attorney of Hamilton county does not seek to review any alleged error, of any court, but rather to inquire by what authority defendant assumes to exercise the duty and function of appointing and assigning a judge to try and dispose of certain causes in1 the district in which he is a judge. That is the only question presented by the petition, and the only one in our opinion proper to be considered in disposing of the motion for leave to file. So that while this proposition of law announced by the majority of this court is undoubtedly correct, and no lawyer in this state would likely question the same, yet we can not understand why it should be declared now as pertinent to this case. Neither do we dissent from the first and second paragraph of the syllabus as it now appears, for undoubtedly the only authority for bringing an action in quo warranto is found in section 12303 of the General Code, and the provisions of that section are as stated in the first paragraph of the syllabus. The second paragraph of the syllabus as now written is but a different statement of the same proposition as found in the first paragraph of the original announcement. But as we have already said that, although á proper statement of the law, in our opinion has no application here. The petition does not assign error of a lower court in the application of law or rules of procedure in a cause which was properly before the court; but it presents a case in which it is claimed that this particular judge was assuming to exercise certain functions and powers which he had no authority whatever to exercise, and which amounts to usurpation of an office, and wholly without warrant in law.

We think that this petition raises that question and asks for an authoritative disposition of the same, and .that is reason enough why the attorney general of this state should be permitted to file it. It is a question that ought to be fully heard and determined upon the final hearing of the petition in quo warranto sought to be filed herein. We think that upon this motion, the question to be considered is whether or not the petition raises a substantial question of importance to the people of the state, and if such a question is raised, the court should not dispose of it upon the motion itself, but rather permit the filing of the petition, to the end that such full hearing and consideration may be had. Especially is this true, when the question is one as to which the bench and bar of the state have entertained a feeling of uncertainty and is one which so largely and vitally affects the administration of justice.

The petition presented, avers that the defendant is usurping and intruding into the office and functions of supervising judge of the common pleas, court of Hamilton county; that is, the office and functions of appointing and assigning a judge of such court, to try and hear and dispose of criminal cases and proceedings pending in such court before a judge thereof who is- alleged to have bias or prejudice, for or against the parties, to such cases, or proceedings; and that he claims to be invested with such office and functions.

Against the petition it is contended, and the majority of the court conclude, that the provisions of the statute on the subject found in Sections 1539, 1540 and 1687, of the General Code, do not constitute an office, and therefore there can be no intrusion into such office. We do not think that the cases cited and relied on apply to the question made here.

In State, ex rel., v. The Judges, 21 Ohio St., 1, the statute which was attacked, provided that the judges should fix the number and compensation of clerks of certain county officials. Under that act all of the judges participated in the performance of the duty defined, and this court held that it was simply a new duty added to the existing office of judge, and not the creation of a new office. The duty attached to, and was to be performed by all of the judges in the district acting together and equally.

The court did not hold that it was not the exercise of a public function. On the contrary, the court recognized that it was a public function, and was proper to be imposed on the office of judge in addition to its other functions. It would have presented an entirely different case and the reasoning of the court would have led it to an entirely different conclusion, if the statute had provided that the judges of the district should elect one of their number who should be invested with the power and duty of fixing the number and compensation of the clerks. The judge chosen would then be invested with a function separate and distinct from the others. He would be clothed with the power and duty of a public office. In such a case we do not think it would be claimed that quo warranto would not lie to test the right of a judge to exercise such power.

For the same reasons we think it is clear that Walker v. Cincinnati, 21 Ohio St., 15, does not apply here. The law provided that the judges of the superior court of Cincinnati should appoint trustees of Cincinnati Southern Railroad. The decision is placed directly upon the ground that the duty imposed on the judges did not create an additional office, but simply annexed another duty to the office of judge which all of the judges in that court should perform.

In State, ex rel., v. Jennings, 57 Ohio St., 415, this court held that a fireman is not an officer, but an employe, and that quo warranto would.not lie to oust him from his employment. However, in the syllabus in that case, it is held that: “to constitute a public office against the incumbent of which quo warranto will lie, it is essential that certain independent public duties, a part of the sovereignty ©f the state, should be appointed to it by law, to be exercised by the incumbent, in virtue •of his election or appointment to the office, thus created and defined, and not as a mere employe, subject to the direction and control of some one else.”

In the opinion the following from High on Extraordinary Legal Remedies, Sec. 625, is quoted with approval: “An office, such as to properly come within the legitimate scope of an information in the nature of a quo warranto, may be defined as a public position, to which a portion of the sovereignty of the country, either legislative, executive, or judicial attaches for the time being, and which is exercised for the benefit of the public.”

It would seem' to be clear, that the duties and functions defined and referred to in the sections of the General Code, touching the subject of supervising judge, are clearly included in the definitions of an office as above given. These sections specifically define these duties and provide that they shall be performed by a certain and particular judge, designated in the act as supervising judge and chosen in the manner provided, for a fixed and definite term. And these duties and functions are such as can be performed only by the particular judge chosen in the manner provided.

In the State, ex rel. v. Anderson, 45 Ohio St., 196, it is held in the syllabus that: “The presidency of a city council is a public office, within the purview of Section 6760 of the Revised Statutes, authorizing an action in quo warranto to be brought against a person who usurps, intrudes into, or unlawfully .holds, or exercises, a public office.”

In the opinion it is pointed out that the duties of the president of the council are different from those of the members, and although he. still remains a member of the council, with all of the powers and duties incident thereto, and although such president must be chosen from the membership, and that the place is without emolument, still -its functions are of a public nature and for public purposes, and it is a public office. It is difficult to see how the duties of a president of a council chosen in the manner referred to should constitute a separate public office, and the distinct, additional and important duties, which are imposed by the statutes, upon a supervising judge, who is designated as such by the statutes, should not constitute an office, to which a portion of the judicial sovereignty of the state attaches within the terms of the definition above given.

Section 1540 provides that the judges of each judicial district shall select or designate one of their number to supervise the execution of the order, with authority to make changes and assign judges of the district to other counties, and requires that: “Upon receiving notice thereof from the supervising judge, the judge so assigned shall proceed to hold such courts.” Section 1687 provides that when a judge of the common pleas court is interested in a cause or matter pending before the court in a county of his district, or is related to, or has a bias or prejudice, etc. — that it shall be the duty of the clerk of that court to forthwith notify the supervising judge, who shall then proceed in the manner required by law in the case of illness or other disability of the judge, to designate or assign some other judge of the subdivision or district in which such matter or cause is pending. It is clearly evident from these statutes that if the judge so selected as supervising judge acquires no additional powers or authority differing from the other judges of that district, • that the legislature failed in its purpose, for it evidently intended that such judge should have such additional powers and authority in excess of all other judges of the district during the time that he is entitled by such election to exercise' the rights, duties and powers of supervising judge.

Where one has assumed to exercise public duties which are a part of the sovereignty of the state, quo warranto may be maintained against him, although the particular territory for which he assumes to act and perform such functions, has not been brought within the terpns^f any statutes defining such duties.

In State, ex rel., v. O’Brien, 47 Ohio St., 464, this court held: “Quo warranto may be maintained against a person who assumes the exercise of the office of member of council from a ward which has no legal existence, or under an election held without lawful authority.”

And on this point we wish especially to notice the case of State, ex rel., v. Newark, 57 Ohio St., 430, which is cited in the brief of counsel opposing this application. The first sentence in the first proposition of the syllabus in that case is quoted in the brief of counsel in support of the proposition, that qtio warranto will not lie against a city for the simple purpose of testing its powers. But the second sentence in the same proposition of the syllabus is as follows: “The remedy, in such case, is to enjoin any steps that may be taken to enforce the ordinance; or to procee-d in quo warranto against any person or persons who may claim to hold an office, under and by virtue of the provisions of the ordinance claimed to be invalid.”

The court, Minshall, J., in the opinion uses the following language: “Or where, as in this case, it creates what is claimed to be an office, and provides a mode of filling it, not authorised by. law, and proceeds to fill it, the incumbent may be proceeded against in quo warranto, as was done in the preceding cases.”

It seems to be conceded by counsel on both sides on the hearing of this application that Section 1687, 1539, and 1540 of the General Code, do not apply to Hamilton county.

While the petition, which is here sought to be filed, simply contains averments of intruding into the office and functions referred to, the record and brief filed by counsel opposing the application shows that they in a proceeding in mandamus, sought to compel the defendant in this proceeding to perform the duties of the office which they now claim has no legal existence.

We think the authorities relied on by the majority of the court do not justify the conclusion it has reached, but, on the contrary, these authorities and the reasons on which the judgments. in those cases are based would indicate a different view of the question presented here than the majority of the court have taken.

We think it is a matter of very serious doubt whether this court has a right to deny to the law officers of this state the right to file a petition in quo warranto. The constitution itself does not suggest any right of the court to grant or refuse leave to file the .petition. Section 12305 of the General Code requires the attorney general or prosecuting attorney to commence an action in quo warranto whenever directed by the governor, supreme court or general assembly so to do, and' Section 12306 authorizes the attorney general or prosecuting attorney to bring such action upon his own relation or he may bring the action upon the relation of another person by leave of court or a. judge in vacation. If this court has the right to refuse the attorney general or prosecuting attorney leave to file a petition in quo warranto, when either of these officers' bring such action upon his own relation, then serious complications must necessarily follow, for by the express terms of the statute it is made the duty of the attorney general, or the prosecuting attorney, to commence an action in quo warranto whenever directed by the governor, supreme court or general assembly so to do, and if the governor or general assembly were to direct either of these officers, to bring such an action and the supreme court were to refuse him leave to file his petition in this court there would arise a serious conflict of authority, and a serious complication of the public business that certainly was not within the contemplation of the general assembly when this law was enacted. In other words, it would appear from a reading of the constitution, and of these statutes in reference to the action of quo warranto that jurisdiction in quo warranto was conferred upon the supreme court, not for its benefit, but for the equal benefit of the coordinate branches of government and for the benefit of the public directly interested in the controversy, the only difference being that when the attorney general or prosecuting attorney -brings such action upon request or direction of the governor or general assembly, or upon- his own relation, it would appear that no leave is required, but when he brings such action upon the relation of a private individual, then it is provided that leave of court, or a judge in vacation, must first be obtained. We are of the opinion that when the prosecuting attorney of any county in this state, or the attorney general of this state, either upon the direction of the governor or general assembly of the state of Ohio, or upon his own relation, presents a petition in quo warranto to this court, he does so as of right and not as a privilege to be granted by the court; but even though it be said that permission must first be obtained before such petition in quo warranto can be filed in this court, then certainly when the court finds there is one or more questions in the case calling for its determination, as has been found and announced by the majority of the court in this case, the court should permit the filing of such petition, and permit the joining of issue thereon and determine the question in the regular and ordinary way. It is true there has been printed and handed to this court a record of other proceedings in Hamilton county that-may' or may not have logical connection with the case sought to be filed by the attorney general, but how is this court to take cognizance of these matters except in the regular way, that is, by an answer setting up any fact that may be pertinent to the issue so joined? The constitution invests the su7 preme court with original jurisdiction in quo warranto> and surely this court can have no more imperative duty than to exercise that jurisdiction when called on to lend its aid and authority in preventing the machinery of the courts and judiciary itself from being involved in unseemly and regrettable confusion.  