This is an action in quo warranto, brought by William Gettles against Roy Gillen. Get-tles was president of the Council of the city of Wellston and Gillen was mayor of said city, entering upon his duties as such in January, 1924. In November, 1924, Gillen was a candidate for, and was elected to the office of state senator for the 78th Senatorial District of Ohio, and on Jan. 12, 1925, said Gil-len entered upon his duties as state senator. Gettles made demand of Gillen to surrender the office of mayor, who refused to do so, and attempted to exercise the duties of said office.

It is declared that thereafter Gettles qualified as mayor and has been willing and ready to perform all the duties devolving upon him as said mayor, but has been prevented from so doing by acts and actions of said Gillen. Get-tles asks that Gillen be adjudged not entitled to said office of mayor, that a judgment of ouster be pronounced against him, and that he (Gettles) be adjudged entitled to said office of mayor.

Gettles contends that the defense of Gillen which set up that Gettles was ineligible to hold office of mayor is demurrable because it acter, and that the Court is without jurisdic-does not state a defense in case of this ehartion to hear, and determine such a defense.

It is claimed that the offices of state senator and mayor of a municipality in Ohio are incompatible. Sec. 4, Art. 2, of the Constitution provides:—“no person holding office under the authority of this state, shall be eligible to or have a seat in the general assembly; but this provision shall not extend to township officers, justices of the peace, notaries public or officers of the militia.”

In conclusion, it is contended that president of Council becomes mayor upon disqualification of mayor under 4274 GC.