
    State ex rel. John M. Sheets, Attorney General, v. Speidel et al.
    
      Candidate for sheriff — Dies on election day — Received highest number of votes — Candidate receiving next highest number not thereby elected — Death of sheriff creates vacancy in term he was serving but not in term for which he was candidate — One duly appointed to vacancy will hold office till successor is elected.
    
    1. When the candidate for an office for whom a majority or plurality of votes was cast at the election, dies on the election day and before the polls are closed, the candidate for the same office receiving the next highest number of votes is not thereby elected; nor has he thereby acquired any right to be inducted into the said office.
    2. When one who is holding the office of sheriff, and is a candidate for election to succeed himself, dies before entering upon the new term, a vacancy is thereby created in the term in which he was serving, but not in the term for which he was a candidate and upon which he had not entered; and one who is duly appointed and qualified to fill the vacancy thus created will hold the office for and during the unexpired term of his predecessor, and until his successor is elected and qualified; and such election must be had at the first proper election that is held more than thirty days after the occurrence of the vacancy.
    (Decided March 6, 1900.)
    In Quo Warranto.
    By petition in quo warranto, the attorney general informs the court that Henry 0. Speidel, one of the defendants, usurps, intrudes into and unlawfully holds and exercises the office of sheriff of Clermont county; that in 1897, E. W. Buvinger was duly elected as such sheriff for the term of two years beginning on the first Monday of January, 1898, at which time he duly qualified and entered upon the duties of said office; that at the annual election on the 7th day of November, 1899, the said Buvinger was a candidate for re-election to said office, and that J. B. Cover and I. Sumner Brown were also candidates for the same office; that at said election there were cast for Buvinger 4369 votes, for J. B. Cover 3802, and for I. Sumner Brown 196 votes, being all the votes at that time cast for said office; that said E. W. Buvinger died on said election day, one hour and forty-five minutes before the close of the polls; that the death of said Buvinger created a vacancy in said office, and a vacancy on the Democratic ticket for said office whereby the 4369 votes so cast for Buvinger were of no effect in law; that said J. B. Cover was elected to said office and was entitled to the same from the first Monday in January, 1900, until the first Monday in January, 1902; that said Cover received a plurality of the votes cast for any “person” and was therefore entitled to the certificate of election to said office from the board of canvassers of said county; that said Cover made demand on said board for a certificate of his election to said office, which was refused, but said board passed the following resolution: “Whereas, J. B. Cover having made demand upon this board to certify his election as sheriff of Clermont county, Ohio, and whereas E. W. Buvinger, whose name appeared as opposing candidate for said office, died on election day and before the close of the polls, now, therefore, this board, being unable to determine who, if anyone, is elected to said office, declines to certify as to said office at all.”
    The relator further shows that William R. Walker was on November 9, 1899, pursuant to the Revised Statutes of Ohio, secs. 8, 11 and 1208, duly appointed and commissioned to fill the vacancy in said office created by the death of said E. W. Buvinger; that said Walker duly qualified, gave bond and entered upon the duties of said office, by virtue of said appointment until his successor should be duly elected and qualified; that said Walker not only continued in said office until the first Monday of January, 1900, but still claims to have and hold the title to said office on the ground that his successor has not been elected and qualified, and still holds and retains the money and funds belonging to said office, and in other ways exercises the functions and privileges of said office.
    The relator further shows that on the first Monday of January, 1900, the said Henry C. Speidel was appointed to fill a vacancy in said office by the commissioners of said county, and pursuant to said appointment said Speidel was commissioned by the governor of Ohio, and on said day unlawfully usurped and intruded himself into said office and is now unlawfully exercising the functions thereof; that said J. B. Cover claims to have been duly elected to succeed said William R. Walker. A judgment of ouster is prayed for against Walker and Speidel and that said Cover may be inducted into said office.
    Speidel demurs to the petition, and Walker files an answer in the nature of a cross-petition, setting forth his appointment, commission and qualification, substantially as stated in the petition; that he has refused the demands of both Cover and Speidel for the surrender of said office, claiming to hold over until his successor is duly elected and qualified; and prays this court to protect him in each and all of his legal rights to said office.
    
      J. M. Sheets, Attorney General, and N. G. Cover, for relator.
    
      Frank Davis and H. L. Nichols, for respondents.
   Davis, J.

The claim of Cover that he has the right to be inducted into the office of sheriff of Clermont county, has no foundation. Whether Buvinger, the deceased candidate was elected or not, Cover was not elected. No process of valid réasoning can make 3802 votes to be more than 4369 votes. Not merely a plurality, but a majority, of all the votes cast for sheriff on that election day, were cast against Cover; and it does not avail him. that the majority of votes was cast, in good faith, for a man who had died during the election. The majority was not for Cover, and that is all he can make of it. The election may fail altogether by reason of the death of the person receiving the largest number of votes cast, or by reason of ineligibility of the successful candidate, or by reason of irregularities, but that could not elect a man who in fact has received a smaller number of votes than his opponent.

We will not attempt to follow and discuss all the • refinements of reasoning in which counsel indulge on this subject; but it is worthy of note that it is not made manifest to us that a single vote was cast after Buvinger’s death. It is true that the argument is that the death of the candidate, one hour and three-quarters before the close of the election, made a vacancy on the ticket; and that the case is one in which the law will not regard a fractional part of a day; and that if there was a vacancy on the ticket for part of the day, it was a vacancy for the whole day; and therefore that none of the 4369 votes cast for Buvinger were cast for a living person. We have already answered that argument; but it may be added that if it is just reasoning that there was a vacancy on the ticket for the whole day because there was a vacancy for one hour and three-quarters, it is equally fair to maintain that there was no vacancy at all on the ticket, during that whole day, because there was no vacancy on the ticket during ten hours and one-quarter of the day.

But this case is not to be decided upon reasoning of the kind just mentioned. In the view which we take of this case, it is immaterial whether Buvinger was elected at that election or not. He did not live to qualify and that disposed of his future term. He was already an incumbent of the office, at the time of his death, and that event created a vacancy in his term of office which would expire on the first Monday in January, 1900. Walker was, it is conceded, duly appointed, commissioned, qualified and inducted into the office of sheriff of Clermont county, for the unexpired term of Buvinger. This much, was done under and by virtue of section 1208 of the Revised Statutes; but section 11 of the Revised Statutes read into his commission the words: “Until his successor is elected and qualified!’ Speidel was appointed, and not elected, and is a mere intruder in the office. Walker is still the legal sheriff and will continue so to be “until his successor is elected and qualified, and such successor shall be elected at the first proper election that is held more than thirty days after the occurrence of the vacancy.” Revised Statutes, sec. 11.

In order that we may not be misunderstood, it may be added that there was no vacancy in the office of sheriff of Clermont county on the first Monday in January, 1900. The death of Buvinger did not create a vacancy in his term which would have begun in January, 1900, assuming that he was duly elected, because he did not live to be installed in his second term. State ex rel. v. Dahl et al., 55 Ohio St., 195. Walker was the incumbent at the time when that term would have begun had Buvinger lived, with the right to remain until his successor was elected and qualified. There could be no vacancy then, unless Walker should die, resign, or be lawfully removed for cause. State ex rel. v. Wright, 56 Ohio St., 540. Therefore, the county commissioners, in appointing Speidel, acted altogether without authority; and Speidel can have no right to act as sheriff.

Judgment dismissing the petition as to Cover, judgment of ouster as to Speidel and an order of induction as to William R. Wallcer.

Minshall, J., dissents from induction of Walker and ouster of Speidel.  