
    STATE ex LOWE v ROSEBERRY
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided January 6, 1932
    R. M. Switzer, Gallipolis, for relator.
    Messrs. Irish & Riley, Ironton, and James W. Byrne, for respondent.
   BY THE COURT.

The record in this proceeding shows that the respondent, Oscar Roseberry, on May 9, 1929, was duly elected a member of the board of trustees of Woodland Cemetery to serve for the term of three years and that the minutes of said election specified that he was chosen as a representative of the municipal council of Ironton. The record shows that he was a member of said council at the time of his election but that his term as such member of council expired on December 31 of said year. Notwithstanding the fact that he was not on January 1, 1930, a member of the city council he assumed to qualify as a trustee of said cemetery board and has since that time assumed to act as a member thereof. It further appears that for the year 1930 or at the time that Roseberry assumed the position of a member of the board of cemetery trustees said board of trustees had no member who was then also a member of the city council.. We do not regard the subsequent facts in evidence as having any bearing upon the right of the respondent to hold the position he claims on the board of cemetery trustees. If he was not eligible at the time he assumed that position it is our conclusion that no subsequent conditions could qualify him.

We conclude, therefore, that from January 1, 1930, until November 16, 1931, when Roseberry’s position on the board of trustees was declared vacant at a joint meeting of the municipal council and the township trustees, he was not lawfully holding the office and it required no action to declare his office vacant. '

On November 16, 1931, a joint meeting of the council and township trustees was held, at which the relator was elected to fill the vacancy then existing by reason of the disqualification of the respondent. Our conclusion is that the election of the relator was valid and that he is entitled to the office which he claims.

MAUCK, PJ, MIDDLETON and BLOS-SER, JJ, concur.  