Epitomized Opinion

This was a quo warranto porceeding brought against certain officers of Cuyahoga Falls, including mayor and various members of the council. In November, 1921, there were a mayor and other municipal officers to be elected for this city. In addition to those nominated at the regular primaries, Herdman and others became candidates for municipal officers on what is known as the Citizens’ ticket, by filing a petition therefor. As Herdman and various officers were elected to municipal offices on this ticket, they qualified and took their offices on Jan. 1, 1922. Some months afterwards a suit in quo warranto was filed in the court of appeals ágainst these officers upon the ground that their names were improperly placed on said ballot because there was no law by which their names could be placed thereon by petition. A demurrer was filed by each of these defendants, upon the ground that the petition did not state facts sufficient to state a cause of action, and that the court was within jurisdiction to hear and determine the controversy. In sustaining the demurrer the court held:

1. Unless the legislature has provided a court or tribunal or body of men, to try a given class of elections contests, then the court of appeals, by virtue of the jurisdiction in quo warranto conferred upon such court by the state constitution, has authority to inquire into the elections by proceeding-in quo warranto.

2. As the legislature, in quo warranto porceedings, has vested in courts of common pleas the authority to inquire into the validity of elections, the court of appeals is within authority or jurisdiction to hear and determine such cases. Therefore a demurrer must be sustained.

3. Officers irregularly elected at election contests become at least dé facto officers and their official acts, as against collateral attack,, are as binding as if there was no question about their - election.,