
    The State ex rel. Pardee v. Pattison, Governor, et al.
    
      Term of probate judge — Section 7, article If, Ohio Constitution — In force November 7, 1905 — Person then elected to succeed himself as probate judge — Elected for term of three years — Article 17, amendment to the Constitution not retroactive — Terms of office thereunder not abolished, when— Existing terms of office may be extended by general assembly — Power of deputy election supervisors limited, how— Constitutional law — Law of elections.
    
    1. Section 7 of article 4 of the constitution was in force as to all of its provisions until the close of the election on November 7, 1905, and a person who was elected on that day to succeed himself as probate judge was elected for the term of three years from and after the expiration of the term which he was already holding.
    2. Section 2 of the amendment to the constitution which is now designated as article 17, providing that the term of office of a probate judge shall be four years, applies only to such persons as shall be elected to such office as provided in section 1 of such amendment.
    3. Said amendment is not retroactive. Terms of office existing at and before the adoption of the amendment are not restricted or abolished thereby; but existing terms of office may be extended by the general assembly so as to effect the purpose of section 1 of the amendment. The phrase "existing terms of office” means the terms of office as defined in the constitution and acts of the general assembly as they existed at the time of the proposal of the amendment and of its adoption.
    4. In certifying the election of an officer the power of the deputy supervisors of elections is limited to certifying that the successful candidate has been elected, and they have no power to decide upon a disputed term of office.
    (No. 9868
    Decided February 2, 1906.)
    Mandamus.
    The relator, William E. Pardee, was, on the seventh day of November, 1905, probate judge of Summit county. On that date he was elected to the same office for another term, and on the same day the amendment to the constitution of Ohio, which is now designated as article 17, was adopted by a vote of the people. The relator received a certificate of his election from the deputy supervisors of elections within and for the county of Summit, certifying to his election for the term of four years. This certificate was filed with the secretary of state, who is made one of the defendants to the petition for mandamus, and accompanied with a fee of five dollars as required by law, and the relator demanded from the governor a commission for the said office for the term of four years, which was refused. Relator prays that a writ of mandamus may issue out of this court requiring the defendants to show cause why they should not be compelled to make and deliver to the relator a commission for a term of four years. To the petition, the attorney general, in behalf of the respondents, filed a demurrer on the ground that the petition does not state facts sufficient to constitute a cause of action.
    
      Mr. George M. Anderson; Mr. Charles B. Grant; Messrs. Safer, Seymour & Safer and Mr. Dlric Sloane, for the relator.
    The relator is entitled to receive from the governor a commission either for three or four years. The relator maintains that there is a plain distinction between the election of the officer and the term for which he shall hold office. When the term of office is once established by the law, the vote of the people at an election has nothing to do with term. In other words, the people vote for an officer and not for a term. That being fixed by the statute or the constitution, if no time is prescribed for taking the office, the term commences at once. State v. Constable, 7 Ohio (pt. 1), 7.
    But where the term is to commence at a future date, the date prescribed controls. State v. Commissioners, 58 Ohio St., 384; State v. Witt, 72 Ohio St., 584.
    It was known to every one that the terms of office of a great majority of the officers elected November 7, 1905, would commence in the future. The voters had before them the election amendment. When they voted for the relator they knew that the term of office would be three years if the amendment was defeated, and four years if the amendment carried. Whether the election amendment went into effect at the close of the polls on election day or upon the proclamation of the governor is not material. The relator’s term of office does not begin until February 9,1906, and the only provision of law in existence at that time will be the election amendment.
    The election amendment took effect eo instanti upon the close of the polls on the seventh of November, last.
    Great confusion must certainly result, not only in this case, but in the future, if we adopt any other rule than that the amendment instantly and absolutely repealed every provision in the old constitution with which it was in conflict.
    At the close of the polls on November 7th and at the same moment of time there were three concurrent and complete acts, to-wit:
    1. The old provisions of the constitution in conflict with the election amendment were repealed.
    2. The election amendment took effect and went into operation.
    
      3. The relator was elected.
    As the old constitutional provision as to the term of a probate judge was nullified, killed, utterly obliterated, and that of the amendment was adopted and given supreme and controlling force, the relator was elected for a term of four years. Only living sovereigns rule. The same electors who by their ballots destroyed the old constitutional provision, by the same ballots, by the same act and at the same time enthroned the amendment. At the same precise point of time at which the one was destroyed and the other enthroned, the relator was chosen to serve, not under the dead, but under the living amendment.
    It is to be presumed that the legislature and the people were well aware of the principle announced by this court in State v. Taylor, 15 Ohio St., 137, that section 10 of the Schedule, provides, “All officers shall continue in office until their successors shall be chosen and qualified, ’ ’ was merely temporary and related only to the officers elected under the constitution of 1802. The holding over clause was therefore inserted in the election amendment. Great weight has always attached, and very rightly, to contemporaneous construction. Cohens v. Virginia, 6 Wheat., 264-418; Bank v. Halstead, 10 Wheat., 51; Ogden v. Saunders, 12 Wheat., 290; Pike v. Megoun, 44 Mo., 491; Minor v. Happersett, 21 Wall., 162.
    Unless there is some saving clause in the amendment, if the language thereof is clear and explicit, as it is, there is an immediate and absolute repeal of. the old provisions. In this case there is no room for a construction upon the doctrine of inconvenience. As much and more inconvenience and danger results from holding that the repealed provisions continue in force and effect as could possibly arise from holding that the amendment took effect immediately. Settle v. Van Evrea, 49 N. Y., 280; Cooley Const. Lim., 34, 35, 36, and cases cited.
    In discussing the question of when the amendment took effect, the provision of section 1, article 16, relating to the time an amendment becomes a part of the constitution, should be kept in mind. Our contention is sustained by authority. Worman v. Hagan, 78 Md., 152.
    At the general election in 1891, a constitutional amendment was adopted by the vote of the people. (See full statement, 21 L. B. A., 716.)
    The proposed amendment was voted upon at the November election, 1891. The votes cast were returned to the governor, who issued a proclamation declaring that the amendment had been adopted, and it was held, “the action of the governor in this respect is conclusive and the amendment becomes eo instanti a part of the constitution.”
    If an officer voted for at the same election at which an amendment to the constitution was adopted holds under the term fixed in the amendment, although the amendment does not become operative for some time after the result of the election of the officer is determined, much stronger is the argument that the officer takes under the amendment when his election and the adoption of the amendment are simultaneous.
    The foregoing case also makes a distinction between voting for an officer and the term of office.
    
    Section 1, of article 17, of the constitution of Florida, contains almost the identical language found in section 1, article 16, of the constitution of Ohio, relating to amendments becoming a part of the constitution. An amendment to the constitution of Florida was submitted, voted upon and adopted. In 
      
      re Advisory Opinion to the Governor, 34 Fla., 500 (16 S. Rep., 410).
    Not only did the amendment become operative, bnt it'will be noted that the old provision of the constitution was obliterated, lost all vitality as any part of the organic law, and consequently could not perpetuate itself or project itself into the future. Seneca Mining Co. v. Secretary of State, 9 L. R. A., 770 (82 Mich., 573).
    On the second day of July, 1870, the people of Illinois voted on the adoption of a new constitution and also voted separately on- given articles, one of which related to municipal aid to railways. Schall v. Bowman, 62 Ill., 321; Wade v. La Moille, 112 Ill., 77; 7 Cyc. of Law & Prac., 744.
    Constitutions and constitutional amendments have been held to become operative from the date of their adoption by the people in the following cases: Secombe v. Kittelson, 29 Minn., 559; People ex rel. v. Town of Bishop, 111 Ill., 124; People ex rel. v. Supervisors, 100 Ill., 495; Crook v. The People, 106 Ill., 237; State v. Williams, 49 Miss., 640; Campbell v. Fields, 35 Tex., 751; Scott v. Detroit Young Men’s Society’s Lessee, 1 Doug. (Mich.), 119; Nesbitt v. People, 19 Colo., 441; 6 Am. & Eng. Ency. Law (2 ed.), 900; also 909, text, and note 9; Sigur v. Crenshaw, 8 La., 401.
    Where a constitutional amendment does not become operative eo instanti, it is on account of some constitutional provision or legislative' enactment which defers its operation until some subsequent event arises. City of Duluth v. Duluth St. Ry. Co., 60 Minn., 178; State v. Kyle, 166 Mo., 287.
    In Real v. People, 42 N. Y., 270, although it is stated that the “rule of the common law is, that every law takes effect immediately upon its passage, unless some other time is therein prescribed for that purpose (1 Kent Com., 458, Sedg. Stat. Const. Law, 82) ” nevertheless it was held that the canvass of the votes by the various boards of canvassers as required by law and announcing the result and certifying the same as required by law, is as much a part of the election as the casting of the votes by the electors. State v. Williams, 49 Miss., 640.
    ' But we are not without authority in our own state. Our constitution of 1851 was adopted by the convention March 10th. By its own terms it took effect September 1,1851. State v. Dudley, 1 Ohio St., 437.
    Where a constitution is revised or amended the new provisions come into operation at the same moment that those they take the place of cease to be of force. Cooley Constitutional Limitations, 76. The same rule prevails as to statutes. Endlich Interpretation of Statutes, sec. 478.
    As to many offices the constitutional amendment inevitably created an interim, either before the officers elected in November last take their seats or else at the end of the term for which they were then elected, whatever that term may be. For instance, either an interim for one year arose in the office of governor at the expiration of Governor Herrick’s holding over, to-wit, January 8, 1905, thereby postponing the commencement of Governor Pattison’s term until January 1, 1907, or else an interim will arise at the expiration of two years from the date of Governor Pattison’s inauguration, in which event the legislature must under the middle paragraph of section 2 of the amendment, extend his term for one year-, that his successor may be elected in the even numbered year 1908. The same condition exists as to all county offices, such as that of sheriff, for instance, for which the term was two years and for which an election was held last November. But this was manifestly not the intention of the amendment. Section 3 of the amendment provides that, “every elective officer holding office when this amendment was adopted shall continue to hold office for the full term for which he was elected and until his successor shall be elected and qualified, as provided by law.” By the provisions of this section, Governor Herrick held over for a period elapsing between the ratification of the amendment and January 8th. This third section was no doubt inserted in contemplation of the fact that when the amendment was adopted all terms of office existing prior to and at the time of the November election ceased to exist. 8 Ency. Law and Proced., 763; State v. Holcomb, 46 Neb., 88.
    Section 3 of the amendment provided for and took care of all officers holding prior to and at the time of the November election and, by their holding over until their elected and qualified successors took their seats, continued governmental operations.
    Moreover, constitutional amendments are prospective and not retrospective in their operation. Officers holding at and prior to the election had their terms cut short by the adoption of the amendment. Section 3 permitted them to hold over. Therefore the officers serving continued to serve not for a term, but to hold over until their duly elected and qualified successors took their seats. That they were not holding over for a term is manifest for the reason that a term is defined as a fixed and definite period of time. 23 Am. & Eng. Ency. Law (2 ed.), 404; Throop on Public Officers, sec. 303; State v. Howe, 25 Ohio St., 588.
    
      That they were merely holding over is apparent from the last case, cited supra. The time for which they held after the adoption of the amendment is uncertain, because they were to hold for the residue of the term for which they were elected and until their duly elected and qualified successors entered upon the discharge of their duties. They were in the same position in effect — their terms having been, cut short — as an officer who has served out his term and continues in office until his duly elected and qualified successor takes his seat. In the adoption of the amendment the electors in substance said to those holding office prior to and at the time of the election, “We will terminate your term of office, but you may continue to serve until your duly elected and qualified successors assume the duties of office. ’ ’
    That the words, “existing terms of office,” occurring in section 2, of the amendment, apply only to the terms existing under the amendment is evident from the fact that section 3 in the clearest of language provides for all officers whose terms existed under the constitution before it was amended.
    Constitutional provisions, like statutes and private instruments, must be construed, if possible, so as to give effect and some force to each of their provisions. By legal intendment each and every clause has been inserted for some purpose, which when rightly understood, may have some practical result. Tuttle v. Bank, 161 Ill., 501.
    Our contention is reinforced by the fact that the constitutional amendment provides for the extension of terms of office but does not provide for a limitation thereof. When it became operative by adoption, all terms of office existing prior to the November, election ceased. There were no terms of office, therefore, to extend. The amendment therefore conld not operate to extend those abrogated terms and conld operate only on those terms which came into existence with and under the amendment itself.
    We think the language of article 16, section 1, Constitution 1851, too plain to call for construction or interpretation. “Adoption” is the acceptance of the amended provisions by a majority vote. That adoption is complete when the acceptance is so expressed. No other condition or prerequisite has to be found to exist. The people by casting a majority vote to accept the amendatory provisions in lieu of the old provisions, by the act of acceptance, eo instanti made ' nugatory the old provisions and replaced them with the new. The only power which can make or amend a constitution is the people. That power is exercised by the act of voting. The vote cast, the power is executed. No power exists, other than the people, by the same means, to nullify, modify or abridge, that act. This position is supported by abundant authority.
    We cite the provisions of article 20, section 1, of the constitution of Michigan for the purpose of showing that its provisions are substantially and practically the same as those of article 16, section 1, of our constitution. This article of the constitution of Michigan is construed and applied by the supreme court of that state in Seneca Mining Co. v. Osmun, 82 Mich., 573. Supportive of this case are the following: Advisory Opinion to Governor, 34 Fla., 500; Schall v. Bowman, 62 Ill., 321; People ex rel. Lynch v. La Salle, 100 Ill., 495; Wade v. La Moille, 112 Ill., 79; In re Deckert, 2 Hughes, U. S. C. R., 187; Pemberton v. McRae, 75 N. C., 497; Peak v. Swindle, 68 Tex., 242; Wade v. Walnut, 105 U. S., 1; Parker v. Smith, 3 Minn., 240; Worman v. Hagan, 78 Md., 152.
    No one will claim that a person elected prohate judge after said article 17 became operative was not entitled to a four year term. It is claimed that one elected simultaneously with the adoption of said article is not entitled to a four years ’ term.
    What is such an one’s tenure of office, if not four years! Three! By what authority! That of article 4, section 7 ! But on the evening of November 7,1905, that article ceased to exist in so far as it fixed or could fix the term of a probate judge.
    If the amendment, now article 17, had not been adopted on November 7, 1905, old article 4 would control.
    But said amendment was adopted and article 4 ceased to exist and, of course, could not operate to fix the term of office of the probate judge.
    And yet the relator’s term of office must be fixed by some constitutional authority. The authority of the old article in that respect died simultaneously with relator’s election; the new article was born to life, immediately on such death. There was no interregnum. “The king is dead; long live the king.” When article 4 died it died to all purposes. When its successor, article 17, was born all the purposes and objects of its being' were born with it. Ex parte Danley, 24 Ark., 3.
    At the general election held on the seventh day of November, 1905, at the same moment of time, three concurrent and complete acts took place:
    (1) The election amendment, being article 17 of the constitution, took effect and went into operation.
    
      (2) All the provisions of article 4, section 7, of the constitution, in conflict with article 17, were repealed.
    (3) The relator was elected probate judge of Summit county, Ohio.
    Relator was elected by and under the authority of the old constitution. His right to the office to which he was elected can not be questioned.
    The argument, if such be made, that if the term of office of the relator is to be governed by the provisions of article 17, then his election was void, because article 17 provides that probate judges shall be elected in even years, is not sound. The term for which an officer may hold does not fix his right to be elected, the qualifications for his election, nor the rules by which he shall be elected.
    In other words, it is no part of the prerequisites or conditions of an election to office that the term shall be for a greater or less duration.
    The people had the constitutional right and power to elect a probate judge by their vote at the November election,' 1905. They at the same time had the right and power to fix his term of office at either three or four years.
    Following the principle laid down in State ex rel. Evans v. Dudley, 1 Ohio St., 442, and the consequent analogies, may we not claim, that for all purposes of construction as to intended effect and operation, we may properly look to the existence of things at the time the legislature (exercising functions at that time analogous to a constitutional convention) proposed by joint resolution the amendment now known as article 17. That date was March 18,1904.
    ' It may be assumed the legislature knew that a term of office fixed by the constitution can not be limited or extended by legislative act. 8 Cyc., 763, sec. 6; State v. Brewster, 44 Ohio St., 589.
    There would have to be incorporated in the proposed amendment, a provision empowering the legislature to limit or extend the terms of office of probate judge so as to bring about regular elections in even years. This they could do. This, however, the legislature did not do. It did, however, provide in said proposed amendment as follows:
    “And the general assembly shall have power to so extend existing terms of office as to effect the purpose of section 1 of this article.” Section 2, article 17.
    In other words inserted constitutional powers to extend but not to limit terms of office by legislation.
    It is idle to argue that the general assembly can not be presumed to have foreseen just such a condition as has here arisen and provided for it in the very language of the proposed amendment (now article 17), we have quoted.
    Will it be said that the legislature presumed that the article sought to be amended would control as to terms of office, until the legislature should provide for elections under the amendment? All conditions rebut this.
    The provision of section 3, article 17 applies only to such officers as had been elected before the going into effect of article 17, and whose terms, by virtue of the constitutional provision fixing their terms, in existence previous to the adoption of article 17, would continue beyond the time of the adoption and ratification of article 17, and was necessary to be a part of article 17 to make valid the continuance of such officers to the end of their term. For, the legislature will be presumed to have had in mind the decision of onr Supreme Court. State v. Taylor, 15 Ohio St., 137.
    The purpose of the “election” amendment is more comprehensive than is stated by the defendants’ counsel in their argument. It does more than to fix the time of certain elections in even numbered years and others in odd numbered years. The subject-matter dealt with is elections. The purpose of the amendment is expressed in the title of the joint resolution as follows: “Fixing the time of holding elections and terms of office.” The purpose is therefore not twofold. In order to constitute more than one amendment the proposition submitted must relate to more than one subject and have at least two distinct and separate purposes not dependent upon or connected with each other. • State v. Mason, 9 S. Rep., 776; People v. Sours, 13 Col., 369; Cooley Const. Lim., 171.
    Tested by the above rule there was but one amendment submitted and it had but a single purpose.
    It is the intention of the amendment to separate local elections, as far as practicable from state and national elections, so that elections for township, village and municipal purposes will not be influenced or controlled by state and national issues. It will accord with the legislative intent to make the date for the election of county officers.different from the date of presidential elections. County matters are almost as distinctively local as those of a township, village or municipality. The legislative intent will be furthered if probate judges are elected in even numbered years falling between the dates of the presidential elections.
    1. Pardee does not become a probate judge under the old constitution.
    
      2. He cannot qualify under or by virtue of any provision of the old constitution, because it ceased to exist.
    3. Every provision of the old constitution inconsistent with the amendment was repealed when the vote closed on election day.
    We summarize as follows:
    
      First. The plain language of the constitution declares that the amendment must go into operation at once.
    
      Second. If the amendment had shortened the term or abolished the office, the relator could not have been commissioned for three years in the first instance nor for any period in the second.
    
      Third. If it was not intended that the amendment should take effect immediately, it would have contained a provision to the contrary, like the taxation amendment.
    
      Fourth. The plain intent of the amendment is to extend terms of office. It shortens none.
    
      Fifth. Old officers hold over by virtue of the amendment itself. As to them it takes effect immediately, although elected under the old constitution. Why should it not take effect as to officers elected at the time of its adoption?
    
      Sixth. If respondents’ construction is adopted, both the amendment and the old construction will operate at the same time and at various periods of time in the future.
    
      Seventh. By section three of the amendment, old officers are to hold over. The conclusive inference is that the terms of officers, elected November 7th, last, are to be controlled by the provisions of the amendment.
    
      Our conclusion is that Pardee was elected for a four years’ term. Whatever interim occurs at the end of that time must he provided for by the legislature.
    
      Mr. Wade H. Ellis, attorney general; Mr. W. R. Miller and Mr. Roscoe J. Mauck, of counsel, for the respondents.
    
      That construction will he given which is best designed to cure the ill sought to he remedied.
    
    The primary purpose of the amendment as a whole is expressed in the first section thereof, which provides for the election of state and county officers in even numbered years, and other officers in odd numbered years. Without this none of the remaining sections would have been proposed and all of them are merely incidental to and growing out of section one. If the remaining sections were to be considered as propositions separate and distinct, that is, if the purpose of section two, for instance, had been to fix the term of the probate judge at four years, regardless of the necessity arising through the adoption of section one, the amendment as a whole, must fail because of that provision of section 1, article 16, reading: “Where more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on such amendments, separately.”
    It is then not only fair, but necessary to the case of the relator himself to assume that the one and single purpose of the amendment is to fix the years in which elections shall be held, and only incidentally to alter or to authorize the general assembly to alter terms of office to harmonize with biennial elections. So far as probate judges are concerned, the new amendment is self-executing. The old provision of the constitution, section 7, article 4, fixed the term of that office, and never required legislative action to put it into operation, and there can be no reason advanced why this amendment is not to the same extent self-enforcing. An examination of the whole of section 2 discloses that the terms of the other officers mentioned in the amendment are to be fixed by the general assembly and the tenure of incumbents extended because the terms of the incumbents thereof will expire in different years, while the term of the probate judge in every county in the state expires at one and the same time. Keeping in view then that the purpose of the amendment is to require the election of probate judges in the even years, it ■is seen that if the relator is commissioned for three years, according to the law prevailing at the time he submitted his candidacy to the people, his successor will be-elected in 1908 and thereafter each successive probate judge, at intervals of four years, without any legislative action. If, however, the relator’s position is sustained and he is commissioned for four years, the term of his successor would begin in February, 1910, and inasmuch as no election for probate judge can be held in 1909, legislative action would necessarily be invoked to extend his term to five years. Throop on Public Officers, sec. 308.
    But can the legislature. extend the tenure of the probate judge or fill the interregnum thus sought to be created between February 9, 1909, and February 8, 1910? Under the holding of this court in State ex rel. v. Heffner, 59 Ohio St., 368, it had no such power, and if such power now exists it is by virtue of that provision of the section, under consideration, reading: “And the- general assembly shall have power to so extend existing terms of office as to effect the purpose of section 1 of this article.”
    It is not necessary, however, “to effect the purposes of section 1 of this article” for the general assembly to possess and exercise such power. The necessity for such added power is wholly avoided by the construction placed upon the amendment by the respondent. The relator would invoke employment of the emergency powers bestowed upon the general assembly to meet an emergency of his own creation. Or, to put it another way, he would have a constitutional amendment go into effect for the purpose of giving the legislature an opportunity to violate it.
    
      Where a statute or constitutional provision can be construed either prospectively or retrospectively, it shall be held to be prospective only in its operation, unless the contrary intention is clear.
    
    The right that the relator has to the office of probate judge arises by virtue of his election by the people under the law of the state of Ohio. This law fixing the term of his office at the time of his election was to be found in section 7 of article 4 of the constitution and limited the term at three years. A similar question was under consideration by the Court of Appeals of New York in The People v. Foley, 148 N. Y., 677. '
    The difference between the New York case and the one at bar is only a degree. In the former the act changing the term intervened between the election and the. commission, just as in the case at bar. In one case the change was upon the same day, while in the Other the change was the day following the election.
    If the amendment were given the construction sought by the relator, the fact that the amendment was adopted on the same day as the election would not make the amendment any less retrospective in its operation than if some greater length of time had elapsed between the election and the amendment.
    The fiction that the law knows no division of a day is not regarded where substantial rights are involved and the day is capable of division. 26 Am. & Eng. Ency. Law (2 ed.), 563; Arrowsmith v. Hamering, 39 Ohio St., 573.
    The two facts that determine whether the relator in this case seeks a retrospective construction of the amendment are not only determinable, but are already determined by law. His election was a completed fact by the closing of the polls and all of his rights were then vested. This amendment was not a part of the constitution, however, during any part of the time that elapsed prior to the closing of the polls. ' Until 5:30 o ’clock on election day the constitutional provision that a probate judge shall be elected for a term of three years was in full force and effect, so the whole claim of the relator depends upon the retroactive operation of the amendment.
    The authorities cited happen to relate to the application and construction of statutes, but the same rules are applied to the construction of constitutional provisions. This court so held in Allbyer v. State, 10 Ohio St., 588, and the Supreme Court of the United States expressed the same principle in Shreveport v. Cole, 129 U. S., 43, as follows: “If any ambiguity exists as to the length of an official term, it must be so construed as to limit such term to the shorter period.”
    
    This court does not seem to have ever had occasion to pass upon the rule, but it seems to be well established in other jurisdictions. 23 Am. & Eng. Ency. Law (2 ed.), 409; People v. Brenham, 3 Cal., 477; 114 N. C., 929; Wright v. Adams, 45 Tex., 134; Smith v. Bryan, 100 Va., 199.
    The suggestion has been made that a line of cases in the supreme court of Illinois might be found to support the position of the relator. An examination of these cases seems to disclose that they are not in point. On July 2,1870, the people of Illinois adopted an amendment to their constitution prohibiting aid from local political divisions of the state for the construction of railroads. The court simply held that the amendment was upon the instant of its adoption a constituent part of the. constitution of the state, notwithstanding the fact that a new constitution submitted at the same time did not go into effect until later, and that consequently a municipality could not after July 2, 1870, make any subscription in aid of a railroad. The line of cases referred to are: Schall v. Bowman, 62 Ill., 321; Richards v. Donagho, 66 Ill., 73; Wade v. LaMoille, 112 Ill., 79; Wade v. Walnut, 105 U. S., 1.
    
      The contention of the relator wotild lead to unnecessary confusion and absurd consequences.
    
    If the relator is correct, as it is claimed, and his contention as to the construction of the constitutional amendment is to be adopted by the court, it would lead to the following consequences, which we submit make impossible such a construction, and which would be mischievous if not absurd.
    
      First. It would require the legislature to violate the constitution by extending- the term of a probate judge from four years to five years.
    
      Second. It would require the legislature to make an extension of a term of office not to effect the purpose of section 1 of the amendment, because such purpose can be effected without any extension of the probate judge’s term.
    
      Third. If, as the relator contends, this amendment went into effect so as to control- the term of office for which he was elected, it must have gone into effect for all purposes, and therefore he was elected contrary to the amendment, since he was elected in the odd numbered year, whereas he ought to have been chosen in an even numbered year. In other words, a consideration of this amendment shows that the relator must stand upon on'e or the other of these propositions, either he was elected for a term of -three years or he was not elected at all.
    For the reason then that the relator cannot be admitted to have been elected, without doing violence to the cardinal rules for the construction of written laws, it is respectfully submitted that the certificate of election presented to the respondents, reciting the election of the relator to the office of probate judge for a period of four years is not a legal certificate, and that the demurrer to the petition should be sustained.
   Davis, C. J.

The contention that the election of the probate judge was without regard to and separable from, his term of office, cannot be maintained. The electors may not have consciously considered the term of office for which one of the candidates should be chosen; but it is conceivable that many of them may have done so and that the term of office might have some influence in the choice among candidates. It is also true that the conditions with which the constitution and the laws surround an office are necessarily contemplated in the act of choosing or appointing the officer. And such, it seems to us, is the result of former decisions of this court and of a close reading of the constitution itself. Sections 2 and 6 of article 4 of the constitution prescribe that the judges of the supreme court and of the circuit court “shall be elected for such term,” etc.; and in section 13 of article 4 it is provided that “In case the office of any judge shall become vacant before the expiration of the regular term for which he was elected,” etc. Hence the electoral act of choosing between candidates is by the constitution coupled with the choice of the officer for the constitutional term. In State v. Cogswell, 8 Ohio St., 620, where a vacancy occurred in the office of the probate judge of Pickaway county more than thirty days before the next annual election at which a probate judge for the constitutional term was to be chosen, and the sheriff in his proclamation giving notice of said election failed to give notice that a probate judge would be chosen to fill the unexpired term but merely gave notice that one probate judge for said county would be chosen, without more, and the voters cast their ballots for probate judge without indicating whether for the unexpired term or for the constitutional term, it was held that the judge thus elected must by reasonable intendment be held to have been elected for' the full and not for the unexpired term. And the court said in the opinion that “The term of three years as the duration of a probate judge’s .office is the general rule under the constitution, terms to fill vacancies the exception. The office of probate judge, when announced in the call for an election, or inscribed upon the ballot of the elector, without limit or qualification, prima facie, at least, imports a term of three years; and such, in our judgment, was the character, and duration of the office which, under the averments of the answer, the defendant was elected to fill.” Similar views were expressed by this court in the following cases: State v. Chase, Governor, 7 Ohio St., 372; State v. Taylor, 15 Ohio St., 137; State ex rel. v. Handy, 51 Ohio St., 204; and State v. Neibling, 6 Ohio St., 40. It therefore appears that in legal contemplation the choosing an officer at an election, duly proclaimed, is a choosing for the constitutional or statutory term of the office, as the case may be. This view seems to be recognized by the amendment which is now under consideration; for in the third section it provides that every elective officer holding office when this amendment is adopted, shall continue to hold such office for “the full term for which he ivas elected

When the relator was elected, on the seventh day of November, 1905, he was elected for the term of three years beginning February 9, 1906, because his former term of office will extend to that date and because the amendment under which he now claims a term of four years was not yet in force when the proclamation for such election was made, nor whén the election occurred. Indeed the electors could not have known that the amendment would be adopted. Whatever view may be the correct one as to the time when the amendment became operative, it is certain that it was not in force until after the election on the seventh day of November was closed; and it is equally certain that such election was not held under or with reference to this amendment to the constitution. Unless a retroactive effect be given to the amendment it could not in any respect qualify the term for-which the relator had been chosen.

It is a familiar rule of constitutional interpretation that a constitutional provision must be construed prospectively unless the language of the constitution is so clear and distinct as. to require a different construction. We do not think that the language of this amendment requires, or even suggests, a retrospective operation. Since the term of office of any electivé officer is read into the act of the electors in choosing him and is inseparable from that act, it follows that the terms of office defined in section 2 of this amendment, now designated as article 17 of the constitution, were intended to go into effect as to officers elected as provided in section 1; and section 2 can be applied to no other officers unless it be plainly so provided. There were only two classes of officers, not elected under the provisions of the amendment, to be provided for. One class was made up of the elective officers who were in possession of their offices and actually serving when the amendment should be adopted and it was provided in section 3 that every officer in that class should continue, in office for the full term for which he was elected, and until his successor should be elected and qualified as provided by law. The other class, including the relator, is composed of those who were chosen .under and by virtue of the constitution as it existed before the amendment but whose terms of office, although defined by the constitution, had not yet begun when the amendment was adopted. This class is provided for in section 2 of the amendment as follows: “And the general assembly shall have power to so extend existing terms of office as to effect the purpose of section 1 of this article.” The phrase “existing terms of office?’ means the terms of office as defined in the constitution and the acts of the general assembly as existing at the time of the proposal and adoption of the amendment. It could not refer only to the terms of those actually holding office at the time of the adoption of the amendment. Those were provided for by section 3 of the amendment. Nor could it apply to such as might be elected in accordance with section 1 of the amendment; for as to such officers the provisions of section 2 of the amendment were clearly intended to be self-executing: that is, when biennial elections shall be had, as provided in section 1, the provisions of section 2 will work out in harmony with section 1. It is not apparent that any necessity would ever arise for the extension of terms of office provided for in the amendment and therefore no power is conferred on the general assembly to extend such terms. The word ‘‘existing” is referable only to the time of the adoption of the amendment. . Hence we reach the conclusion that the general assembly is not empowered to extend terms defined by or created under the amendment which is now designated as article 17 of the constitution; but that such power is confined to such officers as weré already elected at the time when the amendment became effective.

By no fair construction have we been able to discover any retroactive operation of this amendment. It does not attempt to abolish or in any manner restrict existing terms of office; but on the contrary the manifest intention is to continue them unto the end and, if necessary to fit into the new order of elections, to extend them. We are not construing a new constitution. We are construing an amendment to the constitution, which displaces the constitution only so far as it expressly abrogates, or is irreconcilably in conflict with, former provisions. In the view which most commends itself to our judgment, section 7 of article 4 of the constitution remains wholly operative as to the terms of officers elected at and before the adoption of article 17, with the added provision, as defined above, for the extension of existing terms so as to effect the purpose of section 1 of article 17; and that the three year clause of section 7, article 4, is abrogated only as to such officers as shall be hereafter elected as provided in the amendment now known as article 17.

This construction appears to us to harmonize section. 7 of article 4 with the intent and purpose of the amendment; for, giving the relator the term of three years, from February 8, 1906, when his present term will expire, would bring around the election of his successor in the year 1908, without necessity for extension of the term “so as to effect the purpose of section 1” of the amendment; and thereafter the election for the regular term would occur every fourth year in even years. But if the relator should be commissioned for a term of four years the election of his successor would fall in 1909, which would require an extension of the term so as to bring the election in an even year.

When the purpose of section 1 of the amendment can be easily and naturally effected without the intervention of the general assembly, we cannot presume that it was the intention to create a necessity for an abnormal term in order to accomplish the same end.

The allegation in the petition that the deputy supervisors of elections made and delivered to the relator a certificate of his election for the term of four years, adds nothing to the case. It was the duty of those officers to certify the relator’s election and there the authority conferred by statute ends; and when such certificate has been filed with the secretary of state, accompanied with, the fee required by law, it is made the duty of the governor to issue “the proper commission.” The governor and secretary of state properly refused to make out and deliver to the relator a commission for the office of probate judge for the term of four years.

Demurrer sustained and petition dismissed.

Shauck, Price, Crew and Summers, JJ., concur.  