1. The inhibition against the holding of other public office or employment, found in Section 120 of the municipal code (Revised Statutes, Section 1536-613), relating to the qualifications of councilmen, is not limited to other office or employment by the municipality, but extends to all public office and employment.
2. Where one is elected to council who is already serving in the office of school examiner and is further employed as superintendent of a public school, the election is a nullity by reason of his ineligibility, and council has the right to so determine without notice to the one so affected or the taking of any proceedings against him, and may proceed to fill the vacancy forthwith.
Shank filed in the circuit court a proceeding in quo warranto, setting forth that at the organization of the council of the city of Hamilton, on January 8, 1906, he was elected clerk thereof, and that the defendant, Homer Gard, had usurped the said office and was unlawfully holding it from the possession of the relator. The prayer was for ouster.
The answer denied the election of the relator and the alleged usurpation, and alleged that in May, 1903, the defendant was duly elected clerk of the council for a term of two years and until his successor was elected and qualified, and that on January 8, 1906, the defendant was legally re-elected to said office for the term of two years, and that he gave bond, qualified and is performing the duties of the office.
*600The reply was substantially a denial of the new matter in the answer.
The determination of the issue thus presented was dependent upon the disputed title to a seat in council. The findings of fact as made by the circuit court were as follows:
That said Fred Shearer acted as such member of the city council until December 27, 1905, at which time a regular recessed meeting of council was held, of which meeting said Fred Shearer had full knowledge, and at which meeting the said city council by resolution found and determined that at the time of the election of Fred Shearer as such member of council and continuously thereafter to that time he was -said public officer and held such public employment, and that by reason‘thereof at all of said times he did not possess the qualifications of a member of council provided and required by Section 120 of the Municipal Code of Ohio, and by said resolution at said time the office of Fred Shearer as member of said city council was declared vacant, and that said Brandon R. Millikin was at said meeting duly elected by said council to fill the office of member of council in place of said Fred Shearer, and thereupon at said meeting of December 27, 1905, said Brandon R¡ Millikin appeared, took the oath of office and qualified as such member of council, and took possession of said office, and thereafter discharged the duties thereof; and the minutes of said meeting ■yvpro duly approved at the. next snlwtjnoiit meeting of eonnail,
*601That said Fred Shearer was not present at said meeting, and while he had knowledge of said meeting, he had no notice of the intended proceedings held by said city council, declaring him ineligible, and his office vacant, and the appointment of said 'Brandon R. Millikin.
The court finds that said city council met for organization January 8, 1906, at which time said Brandon R. Millikin was present as such member of council and that the president of council directed the then clerk, Homer Gard (the defendant), to call the roll of the members of the city council, which was done, and said Brandon Millikin’s name was called and he answered to said roll, and thereupon cormcil proceeded to elect a clerk, and the relator and defendant were both nominated for the office of clerk, and thereupon the president of council directed the roll to be called for said election, and said clerk did call said roll, including Brandon R. Millikin, and that four of the members of said council, including Brandon R. Millikin, voted for said defendant, -and that three of the members thereof voted for Robert J. Shank, all of which is shown by the minutes of said council, and which minutes were duly approved at the next meeting of said council.
That at said last named meeting Fred Shearer was present, and that after the clerk had called the roll for the election of clerk, one J. P. Wilson, a member of said council, without the direction of any one, called the name of Fred Shearer, who responded by saying “Shank”; and the court finds that the calling of the name of Shearer by said Wilson does not appear on the minutes of said meeting. Thereupon the defendant was declared elected as such clerk of council, gave bond which was approved and filed, and entered into the possession and discharge of the duties of said office, and has since discharged the duties thereof.
That the relator subsequent to said meeting pretended to give bond as such clerk and demanded of the defendant the said office and books, documents, papers and property appertaining thereto, which said demand said defendant refused.
Andrews, Harlan, <& Andrews, attorneys for the relator, contended—
“A section of a revised statute must be confined in its construction as if it were still a part of the original act from which it was taken. Eversole v. Shillcr, 50' O. S.,- 701.
“But, it may be claimed that our contention to the former construction put by the courts on the statute, have been overthrown by the expression ‘except that of notary public or member of the state militia.’
“The purpose of the Legislature is to forbid the public employment of a member of the city council by the city authorities in any capacity whatever, and to provide that he shall not render any public service for the city without forfeiting his office as a member of council except that he may render public service for the city or its officers as a notary or as a member of the state militia without forfeiture of his office as a member of the city council for the reason that such public employment is of such a trivial, rare or exceptional character that it could not tempt or influence in the least his conduct as a member of the city council.
“It will be seen by an examination of Section 3096, et seq., that the state miliitia may be called into the service of the city, and the purpose of this exception is that such call of a member of the state militia into the service of the city * * * such public employment in the service of the city should not work a forfeiture of his office in case he should be a member of the city council.
“Likewise a notary public may be employed by the city to acknowledge deeds, verify records and reports, administer oaths to public officers and many other acts as a notary public for which he may be paid out of the city treasury, and the purpose of the exception is to provide that such public employment of a notary shall not forfeit his office as a member of council. ’ ’
*605The conclusion in the brief for the relator was, that if this contention is right then Shearer was on December 27 not only a de facto but also a de jure member of council; and whether a de facto member, or both a de facto and a de jure member, the action of council in attemping to declare his seat vacant and appoint a successor was a nullity.
The conclusion of counsel for the defendant was that Shearer, by reason of holding another public office and employment, was ineligible to be elected a member of council; that his election was a nullity; that no action on the part of council was necessary to create a vacancy, and the appointment of Millikin to fill the vacancy was valid; and, moreover, that the relator could not in this collateral proceeding attack Million’s title.
“As conclusions of law the court finds that Fred Shearer, at no time between his election and the hearing of the cause, had the qualifications of a member of council required by law, and that his election and pretended incumbency of the office of councilman were a nullity, and that council had the right to determine this matter without notice to said Fred Shearer or taking any proceedings against him, and that the election of Brandon R. Millikin to fill said vacancy was duly and legally held, and that Homer Gard, the defendant, was legally elected as such clerk, and that the relator was not elected clerk, and is not entitled to any of the relief prayed for. It is therefore considered, adjudged and decreed that the relator’s petition be and the same is hereby dismissed, and that defendant recover of relator his costs expended in this action, taxed at $-; tó which decision of the court said relator excepts.”
The opinion of the court- was as follows:
This is not a case involving the expulsion of a member of council, who being legally qualified has been duly elected and installed in office. Section 121 of the municipal code has no application to the case at bar. We are of opinion that at no time between his election and the hearing of this case did Fred Shearer have the qualifications of a member of council provided and required by Section 120 of the municipal code. He held the public office of school examiner and the public employment of superintendent of one of the Hamilton public schools before the *607election and continuously during the entire time of his pretended incumbency as member of council, in contravention of the provision :
“Every member of council shall be an elector of the city, shall not hold any other public office or employment, except that of notary public or member of the state militia, and shall not be interested in any contract with the city.”
We are of the opinion that the inhibition against persons holding public office or employment is not limited to office in or employment by the municipality, but extends to all public office and employment. This is evidenced by the exception of notaries public and members of the militia.
“Where the appointment to an office is a nullity, for the reason that the .apointee is by statute ineligible to such office, a legal appointment to such office may be made, without first ousting such first apointee by proceedings in quo warranto. ’ ’
Fred Shearer’s election and pretended incumbency of the office of councilman were a nullity, and on December 27, 1905, council had the right under Sections 119 and 120 of the municipal code to determine this matter without notice to Fred Shearer or taking any proceedings against him, and to fill the vacancy forthwith by the election of Brandon R. Millikin.
The prayers in both the quo warranto and injunction suits above set forth will be denied and the petitions dismissed.