
    MULTIFARIOUS OFFICE HOLDING.
    Circuit Court of Franklin County.
    The State of Ohio, ex rel Attorney-General, v. Frank Gebert.
    Decided, October, 1909.
    
      Office and Officer — Dual Office Holding Not Incompatible, When — Capacity of an Ohio Man to Fill with Honor at One and the Same Time Legislative, Judicial and Executive Offices.
    
    The offices of mayor and of member of Congress are not incompatible and may be held by one person.
    Dustin, J.; Sullivan, J., and Allread, J., concur.
    Quo warranto.
   In November, 1907-, Carl C. Anderson was elected and qualir fied as mayor of the city of Fostoria. Frank Gebert, defendant, was- at the same time elected president of the city council of said city. .

In November, 1908, said Anderson was also elected a member of Congress of the United States. He continued to. serve as mayor of Fostoria, however; but on the 20th day of February, 1909, he left Fostoria for AYashington, D. C., where he remained until the filing of the petition herein. March 16, 1909,' he qualified as a member of Congress, and entered at once upon- the arduous work of tariff revision. Directly he had- qualified as ¡ a member of Congress, the city eouncil of Fostoria, by resolution, declared his office as mayor vacant, and that defendant, Gebert, had succeeded to it by virtue of Section 132 of the municipal code. Gebert forthwith took oath to faithfully discharge his duties, gave bond, which was approved, and has since been assuming to act as mayor.

It is agreed “that Carl C. Anderson has not failed, neglected and refused to perform any of the duties of the office of mayor of the city of Fostoria, excepting in so far as his absence' in the city of Washington, “ * * * may be regarded as an implied failure, neglect and refusal; and that he has not removed from the city' of Fostoria, excepting in - so far as his' absence in the city of Washington, as aforesaid, may be regarded as a removal:”

The statutes do not cover the case, and it is left to the court to say, under a quo warranto proceeding against Gebert, whether the common law holds the offices of mayor and of member of Congress to be incompatible.

Offices are considered incompatible when one is subordinate to, or in any way a cheek upon, the.other; or when it is-physically impossible for one person-to discharge the duties of both.

The latter element is eliminated from- this case, for although Mr. Anderson can not discharge the duties of mayor while absent in Washington, listening to or engaging in the debates of- the national Congress, the statutes have made-provision for temporary absences and furnished a substitute mayor in-the president of the city council (see Section 132, municipal code). And this court will take judicial notiee that a member of Congress is not always engaged in the work of legislation. Most of his time is spent at home, engaged in correspondence with his ambitious constituents, or “on the stump.” His absences, therefore, on congressional duty, are always temporary.

On the other point, however, it is urged by counsel for defendant that the offices of mayor and member of Congress are incompatible, because one is legislative and the other is executive and judicial; and that it is contrary to the spirit of our government to unite the three co-ordinate powers in one person.

This would be quite forcible if the powers were exercised in the same jurisdiction. If, for instance, the mayor should «be elected a member of the city council of Fostoria and attempt to discharge the duties of both offices; for, in that case, he would find himself as mayor in a state of incompatibility with himself as a member, of council;, for he would have a veto power over the legislative acts of a body of which he was a member. .

So, if he were a member of the state Legislature as well as mayor, he would, as legislator, have the power to vote upon acts regulating, his own duties and ..emoluments as mayor.

These instances come within the. common law definition above stated, and the only remedy ip a divorce on the old and familiar ground of incompatibility.

But what connection can. there be between federal legislation and the official duties of a mayor ? None, that we perceive. For, whether as a- member of. Congress- he revises .the. tariff up or down, he is powerless, as mayor of Fostoria, to enforce it,, nullify it or construe it. Neither is he beholden t.o Congress, in any way for his honors ox- emoluments as mayor.

It has never been doubted in Ohio that the mayors of small cities and villages could legally exercise their statutory powers in criminal hearings. A mayor is an executive of the. city in the enforcement of its ordinances; and a representative of.the.state, with the judicial powers of a justice of the peace, in respect to crimes and misdemeanors. These duties have not been regarded as incompatible. Nor, in our view, are the duties -of mayor and member of Congress.

Indeed, it may alxnost be said to .be a part of the comxxion- law, that an Ohio man may occupy-as niany offices as he can be elected or appointed to, . It is left to his .own sense of fitness and propriety as to whether he should ever decline .any. ;

A judgment of ouster may be entered- against the defendant.  