
    State ex rel. Attorney-General v. Brown.
    
      County commissioners■ — -Changing time of commencement of term of office — Invalidity of act of May 19,1894 — Constitutional law.
    
    The act of May 19, 1894, 91 O. L., 338, changing the commencement of the term of office of county commissioners, was, when passed, invalid by reason of the resulting vacancy from the first Monday in January to the third Monday of September in the years 1895, 1896 and 1897, to be filled by appointment and not by election. Such vacancies were filled by appointment without objection on the part of the state or any citizen, and no action was brought to test the validity of the statute, or to oust from office anyone who was filling such vacancy, until more than a year after all such vacancies had expired; Held, that it was then too late to test the validity of the statute by proceedings in quo warranto, and that the term of office of each county commissioner now in office, must be regarded'and held to have commenced on the third Monday of September next after his election.
    (Decided June 20, 1899.)
    In-Quo Warranto.
    At the November election, 1895, Thomas Dave Brown, defendant, was duly elected county commissioner of Cuyahoga county for the term of three years, and was duly commissioned by the governor and acted as such commissioner for the term of three years from and after the third Monday of September, 1896. On the first Monday of January, 1896, the probate judge, auditor and recorder of said county appointed Mr. Brown to the office of-county commissioner to fill a vacancy from the first Monday, of January to the third Monday of September of that year, and he gave bond and took an oath of office, and was duly commissioned and duly filled the vacancy.
    At the November election for the year 1898, one P. J. McKenney was duly elected commissioner of said county for the term of three years, and he. now claims that his term of office began in law on the first Monday of January, 1899, and that the term of office of Mr. Brown-expired at that time, for the reason that, as he claims, the appointment of Mr. Brown to fill the supposed vacancy was null and void, and that his term of office in fact began under his election and commission on the first Monday of January, 1896.
    At the time of the November election in 1898, Mr. McKenney was holding the office of councilman in the city of Cleveland, and he resigned that office on the thirteenth day of March, 1899.
    On the first Monday of January, 1899, Mr. Mc-Kenney demanded the office of county commissioner from Mr. Brown, and Mr. Brown refused to turn the office over to, him, and claimed that his own term of office did not expire until the third Monda3r in September, 1899.
    Thereupon the attorney-general of the state filed a petition in quo warranto to oust Mr. Brown from his office. The foregoing facts, are in substance the facts conceded in the pleadings in this case.
    
      Hart, Canfield c& Callaghan and Foran, MoTighe & Baker, for relator.
    Now, it is apparent that as the terms of officers elected under the act of 1886 expire on the first ■ Monday in the January subsequent to the election of their successors,’ while under the act of 1894, these successors cannot assume office until the third Monday in September, there is a period of about eight months in which a vacancy would exist in the office. If this vacancy could be filled by appointment, there would be practically no limit upon the power of the legislature to change to appointive, offices made elective only by the eonstitution. Accordingly, this court has laid down the rule of law that, “the mandatory provision that the general assembly shall provide by law for the election of county officers, is a clear denial of its power to provide for their appointment. ’’ State ex rel. The Atty. Gen. v. Heffner, etc.; State ex rel. Brennan, 49 Ohio St., 33.
    This court has decided that where the term of an office is fixed and limited by the constitution, there is no power in the general assembly to extend the term or tenure of such office beyond the term so limited. State ex rel. v. Brewster, 44 Ohio St., 589.
    That the whole matter was in the mind of the drafters of the constitution appears further from section 16 of article 4, where clerks of the'court of common pleas are especially empowered to hold their offices “for the term of three years and until his successor shall be elected and qualified. ’ ’ State ex rel. v. McCracken, 51 Ohio St., 123.
    There is, no escape from the conclusion that under the act of May 19, 1894, an appointment would be necessary for the period between January and September. Hence, it appears impossible to distinguish the act of May 19, 1894, from the act considered in the cases of the State v. Heffner, etc., and measured by the rule laid down, and we think wisely, in those cases, the act of May 19, 1894, is, however innocently, in derogation of the constitution, and is therefore void. Treasurer v. Bank, 47 Ohio St., 503; Allen v. Louisiana, 103 U. S., 80; State ex rel. Perry County, 5 Ohio St., 497; Monroe v. Collins, 17 Ohio St., 665.
    It is no objection-to action of a court of final resort to say that inconvenience will result from its finding adversely to the constitutionality of a statute, if the fact of unconstitutionality be apparent, the duty of the court so to find is equally plain.
    In this case, however, no inconvenience would result. The relator stands ready to assume the office to which he was elected in the manner .prescribed by the constitution. The defendant has already occupied the office for a period greater than the maximum fixed by the constitution. Ex parte Strang, 21 Ohio St., 610; Kirke v. Cincinnati, 48 Ohio St., 507.
    The appointment of the defendant as county •commissioner, made by Henry C. White and others as above set forth, was without warrant of law; and in consequence of the invalidity of the act of May 19, 1894, the term of office of the defendant dated from the firs! Monday in January, 1896. 3 Am. Eng. Enc., 678 ; Norton v. Shelby Co., 118 U. S., 425; Poindexter v. Greenhow, 114 U. S., 270.
    The term of Thomas Dave Brown, as county commissioner, expired on the first day of January, 1899, and the term of the relator, P. J. McKenney, rightfully began upon that day in pursuance of section 839 of the Revised Statutes.
    The uneonstitutionality of the act of May 19, 1894, leaves section 839 in force. Under it commissioners-elect assume office on the first Monday in January following their election, and under section 3 of article X of the constitution of the state •of Ohio they cannot hold office for more than three years. In the year 1899 the first Monday in January was the second day of the month. The defendant had on that day held the office of county commissioner for three years, within five days. For him to hold it beyond the sixth day of January was a mere usurpation, his tenure became unconstitutional and the right to the office came wholly to an end. McKenney having been duly elected, as is set forth by the petition in this cause, and having been commissioned by the governor of Ohio as county commissioner in accordance with the result of said election, was entitled to the office on the said first Monday, being the second day of January, 1899, and he is now entitled to a judgment of ouster at the hands of this court. State, etc., v. McCollister, 11 Ohio, 51; State, etc., v. McGregor, 45 Ohio St., 632. The statements of the defendant’s answer do not constitute a defense to the action, for the action having been instituted on behalf of the state by the attorney-general, the court will, if necessary, proceed to oust the defendant if he be not entitled to the office, without passing upon the rights of the claimant who is suggested by the attorney-general as the rightful officer. Commonwealth v. Am. Bank, 10 Phil. (Pa.), 156; State v. Gleason, 12 Fla., 190; In re Bank of Mt. Pleasant, 5 Ohio, 249; State, etc., v. Moffitt, 5 Ohio, 358.
    The theory of proceedings of this kind is that they are quasi criminal in character and are brought to redress the public wrong of the usurpation of an office by an intruder. Lowther's Case, Ld. Raymond, 1409.
    The state is an interested party in this action and its primary object is to see that an office is not held by one not legally entitled thereto. The incumbent, after a judgment of ouster as to him, has uo interest in the action, other than any citizen. Gano v. State ex rel., 10 Ohio St., 237.
    . The provisions of the constitution which apply to the qualifications of officers are sections 4 and 19 of article II; section 14 of article III; section 4 of article XV; section 4 of article V.
    The statutes of the state upon the question of eligibility and incompatibility are as follows: Sections 18, 1020, 1164 and 1268.
    It will be observed that none of the foregoing statutes make the offices involved in this proceeding incompatible. There have been few cases before this court involving incompatibility, but from those which have been decided, it would seem to be the rule in this state that offices will not be held to be incompatible unless made so by statute. State, etc., v. McCollister, 11 Ohio, 46; State ex rel. etc., v. Taylor, 12 Ohio St., 130.
    At the common law two offices were deemed incompatible when from reasons of public policy it would be improper for one person to hold and exercise both, as where the one was superior to the other in the sense of the inferior owing some duty of which the superior was charged with the authority to enforce the performance, or where one was accountable to the other for the proper discharge of some public function. Mechem’s Pub. Ofs. and Offs., section 422.
    In other „words, there must be a moral inconsistency between the offices. ' Some of the cases go so far as to insist that the subordination of the one office to the other is indispensable to incompatibility at the common law. People v. Green, 58 N. Y., 295; Gaal v. Townsend, 77 Texas, 464.
    If the two offices in question were incompatible the effect would be to vacate the office .of councilman upon the qualification of the incumbent as county commissioner and not to avoid the election to the latter office. People v. Carrique, 2 Hill., 93; State ex rel. Metcalf v. Goff, 15 R. I. 505; s. c. 2 Am. St. Rep., 921; State v. Allen, 21 Ind., 516; s. c. 83 Am. Dec., 372; Stubbs v. Lee, 64 Me., 195; s. c. 18 Am. Rep., 251; State ex rel. v. Brinkerhoff, 
      66 Texas, 45; Mechem. Pub. Offices, section 420; Throop’s Public Offices, sections 30, 31 and 33.
    To this rule there is but one class of exceptions, namely, where the first office is one which the incumbent cannot vacate by his own act. Rex v. Patteson, 4 B. & Ad., 9.
    There can be no doubt that a civil officer has a right to resign at pleasure, and it is not in the power of the executive to compel him to remain in office. U. S. v. Wright, 1 McL. (U. S.), 509; State v. Mayor, 4 Neb., 260; Bunting v. Willis, 27 Gratt (Va.), 144.
    This is also the rule in Ohio. Ratterman v. State, 44 Ohio St., 641; Reiter v. State, 51 Ohio St., 74.
    Section 1717 of the Revised Statutes, is limited in its scope to municipal offices.
    The meaning of this provision is, however, easy to determine. It is not placed among the general statutory provisions of the state defining and limiting the rights of citizens, but is part of a section which provided in effect against salary grabbing among municipal or city officers. The preceding sections and those which follow it relate exclusively to city offices and officers, and the whole purpose and effect of the statute is to prevent the use of power and position as a councilman to secure lucrative, if not incompatible offices. State v. School Commissioners, 1 O. D., 644.
    “Eligible to office” in Ohio means eligible to hold ‘office and refers to the qualifications of the claimant at the time he seeks to enter upon its duties, and not to his qualifications at the time he is ‘ £a candidate for election.”
    The phrase, “eligibleto an office,” has been held in different jurisdictions to mean two different things. There may be said to be two rules the ancient and the modern, upon the subject. By the ancient rule it was held to have reference to the time a candidate presented himself for election. State v. Moores (Neb.), 73 N. W. Rep., 304; Taylor v. Sallivan, 45 Minn., 311.
    By the modern rule, however, “eligible” is held to mean, “capable of holding,” and has reference to the time the claimant presents himself for induction into office.
    And the modern rule, being as it is, founded in reason and good sense, has been widely adopted by authoritative courts and by legislatures. People v. Hamilton, 24 Ill. App., 609; Smith v. Moore, 90 Ind., 294; Privitt v. Bickford, 26 Kan., 52; State v. Smith, 14 Wis., 497.
    In Kentucky the Supreme Court has distinguished between two uses of the word “eligible,” as found in the constitution of that state, holding the phrase, “eligible to office” when standing unqualified, to mean eligible at the time of induction; while in certain qualified phrases of the constitution it is held that reference was plainly had to eligibility as a candidate. Kirkpatrick v. Brownfield, 97 Ky., 558.
    The cases of State ex rel. v. Kearns, 47 Ohio St., 566, and State v. McMillan, 15 C. C., 163 (8 C. D., 380), seem at first sight to follow the “ancient rule” as the law of Ohio, but the case in the circuit court follows the case of State ex rel. v. Kearns, and in the latter case the court was limiting its view to the effect of section 1717 upon offices the contemporaneous holding of which was prohibited.
    The constitution, itself, draws the same distinction and by adopting two forms of expression fixes clearly the rule in Ohio as to the meaning of these terms. Article XV, section 4; article II, section 19; article XV, section 5; article II, section 5; article. II, section 4.
    In all of these provisions it is quite plain that the makers of the constitution are looking at the person who seeks to he inducted into office. Thus, if an officer-elect fight a duel, or be convicted of embezzling public funds after the election, it does not avoid the election, but makes him ineligible to the office, or debars him from holding it. So if one holding a federal office resign after his election to the general assembly and then present himself for admittance to the privileges of that body, he is not then holding a prohibited office and is eligible to the office to which he has been elected. The meaning of the constitution is clearly expressed' in article II, section 4, where it is provided that an officer-elect may make himself eligible by removing the disability.
    
      Walter O. Ong and F. L. Taft, for defendant.
    If the -contention of counsel for the relator is correct that the act of 1894, is unconstitutional and void then the act of 1886 is unconstitutional and void and it is under this act that P. J. McKenney, through the relator contends that he is entitled to the office of county commissioner. And again if the acts of 1894 and 1886 are unconstitutional and void, then the act of 1873 is also unconstitutional because that act changed the time from October to December following, but under the amendment of the constitution in 1885 it would be from November to January by the act of 1886, so we inquire what right or standing under the contention of counsel for the relator does P. J. McKenney have to maintain this action on his behalf. He is not claiming to be entitled to the office by virtue of the provision in the constitution, that all county officers shall be elected on the first Tuesday after the first Monday in November, but it is said that he is entitled to the office by virtue of the act of 1886, which provided that the county commissioners should take office on the first Monday of January after his election, but if the act extending the time to September after election is unconstitutional as we have said then the act upon which he relies for title to his office is also unconstitutional. But we contend the whole course of legislation establishing-the office and fixing the time when a commissibner’s term of office shall begin is not only consistent with the holdings of this court in construing sections 1 and 2 of article 10, but clearly within the power of the legislature to so provide or change the time when the term of any one commissioner of the county shall commence, it in no manner creates a vacancy in the office but may create a vacancy in the board which consists' of three persons', and if the legislature create a vacancy in the-board of commissioners by reason of fixing the time when a commissioner’s term shall begin, then that vacancy maybe as it has been in this case lawfully filled by the duly authorized appointing power, appointing some one to fill such vacancy thus occurring.
   Burket, J.

By the act of March 12, 1853, it was provided that a board of county commissioners should be established in each county to consist of three persons to be elected at the annual election in October of each year, to hold their offices for three years. The date at which the term of office was to begin was not fixed, and the practice was that each commissioner took his office as soon as he qualified after election.

By the act of March 7, 1873, 70 O. L., 53, it was provided that the term of office should begin on the first Monday of December next after his election, and this became section 839 of the Revised Statutes.

By the amendment of this section in 1886, 83 O. L., 198, the term was so changed as to begin on the first Monday of January next after his election; and by the further amendment of the same section, May 19, 1894, 91 O. L., 338, the beginning of the term of each commissioner was changed to the third Monday of September next after his election.

No question was made as to the constitutionality of any of those acts until now. Under this last change from the first Monday of January to the third Monday in September, the probate judges, auditors, and recorders of the different counties re' garded the interim from January to September as a vacancy in the office, and filled the same by appointment. In the former changes the interim was so short that it was disregarded.

Under this section as amended in May, 1894, a county commissioner was elected in each county at the November election in 1894, and his term began on the third Monday of September, 1895. At the November election in 1895, a commissioner was elected whose term began on the third Monday of September, 1896; and at the November election in 1896 a commissioner was elected whose term began on the third Monday of September, 1897: As to each of the commissioners so elected in the years 1894, 1895, and 1896, there was an interim in the office from the first Monday in January to the third Monday in September, and this interim was regarded as a vacancy by the probate judges, auditors and recorders, and such vacancy was filled by them by appointment of some person in each county to discharge the duties of commissioner for the time of such vacancy. The last vacancy so filled or which could be so filled was from the first Monday in January, 1897, to the third Monday in September following.

The commissioners who were elected in November, 1894, and whose terms began on the third Monday in September, 1895, and expired on the third Monday of September, 1898, were succeeded by commissioners who were elected in November, 1897, and the commissioners whose terms will expire in September, 1899, will be succeeded by the commissioners who were elected in November, 1898. So that two elections of commis- • sioners were had after the illegal vacancies or interims had been done away, and the commissioners elected in November, 1897, had taken their offices in September, 1898, and had held the same for over-one year, when the question as to the illegality of these vacancies, and the constitutionality of the act, by reason of such vacancies, was first made. Conceding the invalidity of such vacancies and of the act creating the same, as was held in State ex rel. v. Heffner, 59 Ohio St., 368, and State ex rel. v. Canary, 60 Ohio St., 208, the action to declare such invalidity by reason of such illegal vacancies, should have been brought while such illegal vacanbies existed, and to oust a person who was filling such illegal vacancy. After the attorney-general and all the people of the state have remained quiet, and acquiesced in the filling of such illegal, vacancies until after the terms of such vacancies-have expired, and until all the persons now in office are there, not by virtue of an illegal appointment to fill an illegal vacancy, but by virtue of an election by the people to fill a full and regular term of office, it is too late to raise the question by quo warranto as to the illegality of such vacancies and appointments, or the statute from which such vacancies resulted.

Had the question been properly made before these illegal vacancies and appointments all expired, there would have been some substance to the claim, something to act upon, somebody to oust from office. That has now all gone by, and the illegality growing out of the vacancies caused by this change of the statute, no longer exists, and the invalidity of the statutes should not be construed to extend beyond the illegality which caused it. The illegal vacancies caused the invalidity of the statute while these vacancies existed, but the illegal vacancies having expired, they no longer operate to invalidate the statute.

Aside from creating such illegal vacancies, there is nothing in the constitution to prevent the general assembly from fixing the date at which the term of office of a county commissioner shall begin, and such illegal vacancies having expired and become inoperative before any proceedings were commenced by the state or any citizen thereof to declare the statute invalid by reason of such illegal vacancies, sound policy requires that the statute' shall now stand and operate the same as if no such illegal vacancies had resulted therefrom. Advantage must be taken of such a statute while the illegality is alive and doing- harm, and not after it is dead and without operation to harm any one.

But as Mr. Brown, the defendant, was appointed to fill one of those illegal vacancies from the first Monday in January, 1896, to the third Monday of September, when he entered upon his full term of three years to which he had been elected in November, 1895, it is claimed by the relator that the time served by Mr. Brown in filling this illegal vacancy must be counted as part of his full term of three years, and that in legal effect his three years’ term began on the first Monday in January, 1896, and ended on the first Monday of January, 1899. This claim is not tenable. Mr. Brown was appointed to fill the vacancy. He gave bond and qualified to fill the vacancy, was so commissioned, and . did not claim to be then in office on his full term of three years, and had not then given bond or qualified on his three years’ term. If anybody desired to test the legality of his appointment to this vacancy, an action should have been commenced to oust him before the vacancy expired, and not wait for three years, and then by a sharp turn attach the time served to fill the vacancy to his full term, and thereby bring his full term to an end some eight months earlier than was expected by either himself or the public. His regular term will therefore continue to the third Monday of September, 1899, at which time Mr. McKenney’s term will begin.

■ This is a proceeding- by the attorney-general to oust Mr. Brown from office, and not to induct Mr. McKenney into office. Therefore the facts set up in the answer, as to Mr. McKenney’s having held the office of councilman of one of the wards of the city of Cleveland at the time of his election as commissioner in November, 1898, are not pertinent in this case; but we see nothing to render him ineligible to the office.

Petition dismissed.  