
    Mason v. The State ex rel. McCoy.
    
      Corrupt praatice at elections — • Validity of act of April 8, 1896 — Inquiry into title of officer, charged with unlawful acts — As to right of trial by jury — Constitutional law.
    
    1. The provisions of the act of April 8, 1896, entitled “An act to prevent corrupt practices at elections, ” (92 0. L., 123,) which direct the commencement of an action by the prosecuting attorney, at the instance of the attorney-general, for the purpose of inquiring into the title to an office of a successful candidate who is charged with acts made unlawful by any law of this state, and which authorize the court, u.pon finding any of such charges true, to render judgment declaring the election void, the office vacant, and excluding the incumbent therefrom, are not in conflict with the constitution, and are valid.
    2. In such action, neither party has a right to trial by jury.
    (Decided March 1, 1898.)
    Error to the Circuit Court of Adams county.
    The action below was in quo %oarranto, brought in the circuit court by C. F. McCoy, prosecuting attorney of Adams county, at the instance of the attorney-general of the state, against the plaintiff in error, John W. Mason, for the purpose of inquiring into his title to the office of probate judge of that county, upon divers charges respecting his conduct in procuring an election to said office. A number of the charges were stricken out on motion of defendant. A demurrer to the petition was heard and overruled. An answer was filed. The cause being ready for trial, a jury was demanded by defendant, which was refused. The cause then proceeded to trial to the court. The court thereupon found as follows:
    “1. The court finds that the defendant, John W. Mason, was elected to the office of probate judge for Adams county, Ohio, at the general election held in the said county, on the 3d day of November, 1896, and duly commissioned, and is now in possession of said office, exercising the duties and functions pertaining thereto, and is receiving the fees and emoluments connected therewith and belonging thereto.
    “2. That the relator was duly and legally instructed and required by the attorney-general of the state of Ohio in accordance with the provisions of section 8 of an act entitled “An act to prevent corrupt practices at elections,” passed April 8, 1896, (92 0. L., 123) to institute said action and that within ten days after the receipt of said instructions, the relator brought said action in accordance with the provisions of said act.
    “3. That the eleventh, thirteenth, and fifteenth charges preferred against said Mason in said petition are true, and that the other charges against said Mason preferred in said petition are not true.
    “4. That the defendant, John W. Mason, on the 9th day of February, 1897, did intrude into and usurp and does still usurp the said office of probate judge of said county of Adams. And as conclusions of law from said, findings of facts the court does hold that the election of the defendant to said office of probate judge of said county is void and that he should be ousted and excluded therefrom.”
    The charges found to be true are as follows:
    “11. That while said Mason was a candidate as aforesaid, for said office, he, the said Mason, promised one H. W. Scott, he being then an elector in said county of Adams, that if he, the said Scott, would vote for said Mason for probate judge at said election and use his influence with one Wm. Jones to induce said Jones to vote for said Mason, he, the said Mason, would appoint said Scott one of the examiners of the treasury of said Adams count}7-, and that such appointment would be worth $5.00 per day for several days to said Scott.
    “12. That while said Mason was a candidate as aforesaid, for said office, he, the said Mason, promised one Robert L. Wilson, through the medium and agency of one Tabitha Lawler, a sister of said Wilson, that if he, the said Wilson, would vote for said Mason for probate judge at said election, he, the said Mason, would appoint said Wilson one of the examiners of the county treasury of said county of Adams.
    “13. That while said Mason was a candidate as aforesaid, for said office, he, the said Mason, promised one A. C. Easter, a qualified elector in said county, that if he, the said Easter, would vote for said Mason for probate judge at said election, he, said Mason would secure for said Easter a seat in the jury of said court, which would be worth $25.00 to $30.00 to said Easter.
    “15. That while said Mason was a candidate as aforesaid, for said office, he, the said Mason, promised . one John Troutman, a legal elector in said county, that if he, the said Troutman, would use his influence and cause others to vote for said Mason for probate judge of said county at said election, he, said Mason, would cause said Trout-man to be placed on the juries in said probate court, which would be worth from $15.00 to $20.00 to said Troutman for each winter for three years. And said Mason further promised said Troutman that if he, said Troutman would vote and work for said Mason for said office at said election, he, the said Mason, would allow said Troutman to rent said Mason’s farm.”
    The court thereupon proceeded to render judgment as follows:
    “It is thereupon ordered, adjudged and decreed by the court, that the election of the defendant on the 3d day of November, 1896, to said office of probate judge for Adams county, Ohio, be and the same is hereby declared null and void, and that the defendant, John W. Mason, be, and he is hereby ousted and entirely excluded from exercising and holding said office, and said office of probate judge of said county is hereby declared vacant, and that the relator recover from the defendant his costs herein expended, taxed at $--save and except the costs of witnesses subpoenaed for the exclusive purpose of proving the specifications which were stricken out by the court on motion of defendant and which said costs should be and hereby are adjudged against the relator taxed at $ — —.” To all of which the defendant excepted, and, his motion for a new trial being overruled, he brings the case here asking a reversal.
    
      
      Bowman & Bowman; F. D. Bayless; A. Z. Blair and W. C. Coryell, for plaintiff in error.
    We submit the act is in conflict with several provisions of the Constitution.
    It is in conflict with sections 1 and 11 of the Bill of Rights.
    In section 11 of the Bill of Rights guaranteeing the right to each citizen “freely to write, speak and publish his sentiments on all subjects,” the word “freely" does not mean without charge or expense. It clearly means “without restraint.”
    The right secured and upon which no condition, limitation or restraint, can be placed, is “to publish with impunity the truth with good motives and for justifiable ends, whether it respects government, magistracy or individuals. Gazette v. Timberlake, 10 Ohio St., 548.
    It is equally clear that on occasions of elections, when questions of governmental policy are submitted to the people, when candidates stand for principles, this right of publishing his sentiments is most valuable to every citizen.
    The act of April 8,1896, in the requirements that each candidate shall file statements under oath of all his expenditures, is in violation of section 10 of Article I, of the Constitution of Ohio.
    The constitutional provisions of Ohio and of the United States are substantially identical, “nor shall any person be compelled in any criminal case to be a witness against himself. ” In ex parte Clark, 103 Cal., 352; State ex rel. v. Simmond Mfg. Co., 109 Mo., 118; Counselman v. Hitchcock, 142,U. S., 547; United States v. Zucker, 161 U. S., 475.
    The Constitution itself, article 15, section 7, prescribes what swearing a citizen shall do before taking office. Section 12 of this act is also, we submit, in conflict with section 10 of act 1, of the Constitution of Ohio.
    The act of April 8,1896, is repugnant to the Constitution of Ohio, in that it undertakes to declare a citizen ineligible to office for criminal acts of his, without a conviction of such crime. Cooley Const. Lim., 4th Ed., page 78.
    Opposing counsel are mistaken in the claim that the term “eligible to office” is of the same meaning as the term “being elected,” in the Constitution of 1892.
    The former term includes capability to hold as well as to be elected. Hence the change made by the Constitution of 1851. That this is the legal meaning of the term “eligible to office,” State v. Murray, 28 Wis., 96; Carson v. McPherson, 15 Ind., 327; People v. Lema/rd, 73 Cal., 230; Roy all v. Thomas, 28 Gratt., 130.
    The court of appeals of Kentucky, under a similar constitutional provision against dueling, held the contrary, and that conviction of the offense was prerequisite to disqualification. Commomoealth v. Jones, 10 Bush., 725.
    We do not dispute the power of the legislature to prescribe reasonable qualifications for office to insure that the person elected to fill them is competent to discharge the duties, as was held in State v. Covington, 29 Ohio St., 102.
    But we submit, as was said by this court in Monroe v. Collins,, 17 Ohio St., 686. “What the legislature cannot do directly, it cannot do by indirection. ”
    Therefore where a citizen, eligible under the Constitution, is in fact chosen by a majority of the legal votes cast at the election, the legislature cannot deprive him of his eligibility, indirectly, under the guise of removal, whatever the constitutional powers of removal may be. Cummings v. Missouri, 4 Wall., 277.
    Authorities also cited, by counsel were: Lehman v. McBride, 15 Ohio St;, 573; Kent v. Mahapey, 2 Ohio St., 498; Monroe et al. v. Collins, 17 Ohio St., 686; Cooley Const. Lim., 4th Ed., 78; Palmer & Crcmford v. Tnigle, 55 Ohio St., 423; Niaic v. Cimstantine, 42 Ohio St., 437; Pollock on Contracts, top page 176, par. 176, Second American Edition; Buckmanv. State ex rel. Spencer, Supreme Court of Florida, 15 Southern Rep., 697; Yandorn v. State ex rel. Clark, Supreme Court of Florida, 15 Southern Rep., 705; Commonwealth ex rel. Attorney-General v. Walter, 83 Pa. Stat., 105; People v. Dues-bury, 16 Mich., 133.
    
      Keifer <& Keifer; C. F. McCoy and G. Bambach <& Son, for defendant in error.
    It has been frequently held in contested election cases in the absence of a statutory provision, that where fraud, intimidation, etc., entered into an election, that the whole election was void; the whole vote of a particular election precinct has frequently been thrown out because it was contaminated with fraud by a candidate’s party friends of which he was apparently innocent. People ex rel. v. Clute, 50 N. Y., 451. Cush. Elec. Cases 576.
    If such a limitation can be put upon a right to an election to office why may not a candidate’s unlawful conduct render him, through legislative enactment, ineligible to an election? Barker v. The People, 3 Cowan, 686; Dent v. W. Va., 129 U. S., 114. And this applies to an office created by the constitution of a state. People v. Fisher, 24 Wend., 215; People v. Suedaker, 14 N. Y., 52; Ex parte McCollom, 1 Cow., 550; Galway Election Case 2, Eng. Rep., (Moak’s Ed.) 711. For copy of English Treating Act and for what constitutes bribery at elections, see, 1 Rus. on Crimes, 450, etc.
    Our Corrupt Practice Act may be likened in many respects to the English “Treating Act,” passed, with its disqualifying provisions, in 1695. (7 W. Ill Chap. 4.)
    Bribery at elections was a crime at common law. Bex v. Pitt, 3 Burrows, 1335; 1 Russell on Crimes, 155; Cush. Law & Prac. Leg. Assemblies, section 189.
    The punishment for bribery]was found not to be adequate, hence the “Treating Act” was passed. Law & Prac. of Leg. Assemblies, section 192.
    A failure of a man to perform or do what the law requires forfeits the office for which he is a candidate. Cawley v. People, 95 Ills., 249.
    Primary elections and nominating conventions are a part of the political election system of this country. Leonard v. Commissioners, 112 Pa. St., 607. As to false declarations, etc., relating to elections, see, Rus. on Crimes, 450, etc.
    There is nothing in the Constitution which prohibits the legislature from limiting a candidate’s expenditures in and about his nomination or election to office.
    The election of all officers “shall be made in such manner as may be directed by law.” Const, of Ohio, section 27, Article II. Under this section the general assembly “may direct by law the manner in which any officer * * * shall be elected,” etc. State ex rel. v. Covington, 29 Ohio St., 102.
    The Constitution provides that “no person shall be elected or appointed to any office in this state, unless he possesses the qualifications of an elector.” Section 4, Article XV.
    No person not a counselor at law can hold the office of prosecuting -attorney; being an elector does not alone give him the right to the office. Revised Statutes, section 1268.
    It is common to prohibit one person from holding two offices at the same time. • Revised Statutes, sections 18,1020,1164, 1268; State ex rel. v. Taylor, 12 Ohio St., 130.
    The most of the offices of this state are created and filled by law, and like municipal offices are created and abolished at the will of the general assembly. State ex rel. v. Hawkins, 44 Ohio St., 98; State ex rel. v. Constantine,42 Ohio St., 437; Cooley’s Con. Lim., p. 331.
    There is abundant authority for a legislature to prescribe reasonable qualifications for the holding of office. State v. Moffitt, 5 Ohio, 365; State v. Crooks, 7 Ohio, pt. 2, 227; State v. McAllister, 38 W. Va., 485; 18 S. E., 770; Rogers v. Common Council, 123 N. Y., 173.
    It is within the power of the legislature to put office holders in a class by themselves for the purpose of appropriate legislation. State v. Nelson, 52 Ohio St., 99; Daggett v. Hudson, 43 Ohio St.,548.
    And the presumption is in favor of the reasonableness of such regulations. Monroe v. Collins, 17 Ohio St., 665.
    The power to permit soldiers to vote outside of the state has been upheld. Lehman v. McBride, 15 Ohio St., 573.
    Prohibiting a candidate’s name appearing in more than one column on the ballot is upheld. State v. Bode, 55 Ohio St., 224.
    
      It thus appears that although the Constitution unqualifiedly gives the right to a citizen 21 years of age to vote, yet that right may be forfeited under certain circumstances.
    The defendant in this ease is not alone charged with forfeiting an office to which he had acquired a vested right, but he is charged with usurping an office to which he was never elected, and an office which he claims to hold by virtue of an election which was, by reason of his own unlawful conduct, under the statute, void as to him. In other words, the defendant was not elected to the office he usurps.
    However, in Ohio, there is no property in a public office or any expected emoluments thereof. State v. Hawkins, 44 Ohio St., 109, 114; State v. Wright, 7 Ohio St., 333; Steubenville v. Gulp, 38 Ohio St., 23; Knoup v. Bank, 1 Ohio St., 616; Reeves v. Griffin, 29 Bull., 281; Donahue v. Will, 100 Ills., 94; Bergman v. Cleveland, 39 Ohio St., 651.
    And see section 2, Article I, of Constitution as to where political power rests. The enumeration of rights does not impair others. Const., section 20, Article 1.
    The legislative power is vested in a general assembly. Section 1, Article II; State v. Frame, 39 Ohio St., 407; State ex rel. v. Smith, 44 Ohio St., 348.
    It is constitutional to require screens to be put on street cars to protect the motorman (52 Ohio St., 88), and constitutional to forbid the lawful owners of quail from selling them in a certain season (51 Ohio St., 209), and constitutional to regulate grain elevator charges (153 U. S., 391), and constitutional to prohibit the sale of oleomargarine though wholesome, etc. (127 U. S., 686), and constitutional to require the summary destruction without compensation of fish nets (152 U. S., 133), and constitutional to prohibit office holders from soliciting political contributions (106 U. S., 371), and constitutional to compel the owners of tenements to have a water supply in them for the use of tenants (145 N. Y., 32), and constitutional to prohibit insurance agents from giving rebates (131 N. Y., 478), and constitutional to prohibit persons from soliciting political contributions in government buildings (20 D. C., 226). An act providing for compulsory education is constitutional. Quigley v. State, 5 Ct. Ct., 645, (s. c. 3 Giro. Dec., 310).
    Where the constitution of a state provides that no person except a citizen shall be elected to office, there is no implication that the legislature may not provide other qualifications. State v. McAllister, 38 W. Va., 485; 18 S. E., 770.
    There is a similar holding in a case where the law provided that an alderman was not eligible unless he had paid taxes for the year previous. Par-row v. People, 8 Colo., 420; 8 Pac., 661.
    In the Constitutional Convention of 1851, the Committee on the Elective Franchise reported the section which afterwards became section 4, article 5, exactly as it appeared in the constitution of 1802 (article 4, section 4). 1 Debates, 693; 2 Debates, 10; 2 Debates, 811, 838.
    Throughout the history of the state and under its present constitution various laws have authorized the removal of elective as well as appointive officers by the governor, by courts, boards of commissioners, councils of cities, mayors, etc., and such laws have been upheld and the removal may be made for alleged offences or for no offences and before trial and conviction. Revised Statutes, 1127, 1134, 196, 1246, 1329, 1272, 1031, 1337, 1185, 2228 and 1685.
    The right of removal under section 1685, (and therefore the constitutionality of the section) is clearly recognized in, State v. Heinmiller, 38 Ohio St., 101; State v. Bryson, 44 Ohio St., 469.
    The failure of an officer to pay into the county treasury money due from him is a cause for removal. Revised Statutes, section 1749.
    In none of the statutes cited authorizing removals is it necessary for the officer to have been “convicted of bribery, perjury or other infamous crime.”
    The most that can be said for section 4, article 5, of the Constitution of Ohio is that the general assembly' is, by it, given' the absolute power to exclude any person from the privilege of ever being eligible to an office — it does not contemplate a grant of a right to an office to all persons not so made eligible to hold one. Revised Statutes, section 19.
    An office may be created by law, and filled by an elector, and then abolished during his term by the repeal of the law and thus the officer lose his office. State ex rel. v. Wright, 7 Ohio St., 333; Knoup v. Bank, 1 Ohio St., 603; State v. Bailey, 37 Ohio St., 98.
    There is a clear constitutional right given the legislature to direct the manner of electing a person to fill any elective office in Ohio. Constitution of Ohio, section 27, Article II.
    It is not true (as claimed) that an elector’s vote must be counted if cast for a person eligible to be elected, regardless of what he may have done as a candidate to disqualify himself from being elected and regardless of the fraudulent or unlawful character of the election.
    "We are in no wise concerned about the modes of removing an officer from an office into which he has been lawfully and rightly inducted, and which he may have forfeited by misconduct, etc. Impeachment and other constitutional methods of procedure are ample to meet cases of this kind. The act deals with usurpers to office, not with officers ■ who may have committed an offense whereby he forfeits the office. The act in question being within the general scope of the legislative powers and in the interest of good government, it must be upheld according to all established rules of interpretation. Lehman v. McBride, 15 Ohio St., 573; Walker v. Cincinnati, 21 Ohio St., 41; Sha/rpless v. Mayor, 21 Pa. St., 147; Bailroad Co. v. Commissioners, 1 Ohio St., 77; State v. Kennon, 7 Ohio St., 546; Wellington et al. v. Petitioners, 16 Pick., 95; Commonwealth v. Me Williams, 11 Pa. St., 70; State ex rel. v. Smith, 44 Ohio St., 374.
    And on the question of the power, duty or right of courts to hold a law constitutional unless it is manifestly against some express provision of the Constitution. Gilpin v. Williams, 25 Ohio St., 294; Telegraph Co. v. Mayer, 28 Ohio St., 540; Bloom v. Xenia, 32 Ohio St., 464; Xilbourne v. Thompson, 103 U. S., 168; Amy v. Watertown, 130 U. S., 319; Cooper v. Telfair, 4 Dallas, 14; Carter v. Bice, 135 N. Y., 473; People v. Draper, 15 N. Y., 546.
    The act in question, which is assailed on constitutional grounds, is but one link in a long chain of similar legislation to secure fair and pure election. Act of February 18, 1831; 3 Chase, 1670, chapter 820, section 42. Act of March 20, 1841; 1 Curw., 769, chapter 349, section 11. Act of May 3, 1852; 3Curw., 1929, chapter 1198, section 38. Act of February 24, 1871; 3 Sayler, 2426, chapter 1956, section 6. Act of April 20, 1874; 4 Sayler, 3293, chapter 2822, section 9. Revised Statutes of 1880, section 7046.
    Said act prescribes neither qualifications nor disqualifications for office, and so far as the prohibited acts can become the basis, or cause for an action like the one before the court, is not penal. 92 Ohio Laws, 128, sections 11 and 12.
    The power exercised by the legislature in the enactment under consideration, is not inhibited by any provision in the Constitution. The argument of counsel for plaintiff seems to proceed upon the ground, that this law prescribes qualifications or disqualifications for office, which makes the same obnoxious to certain constitutional objections. But, it is manifest that such is not the case.
    It is a familiar and well understood principle, that all the legislative power of the state is vested in the general assembly, and that when the power of the assembly to enact any particular law is drawn in question, the proper inquiry is, whether such an exercise of the legislative power is clearly prohibited by the Constitution. Baker v. Cincinnati, 11 Ohio St., 534; Lehman v. McBride, 15 Ohio St., 573; Cincinnati v. McCann, 21 Ohio St., 198.
    Plaintiff’s counsel seems to draw their objections to the validity of this law from section 4 of article 5; section 5 of article 2 and section 1, 2 and 11 of the Bill of Rights. Unless these sections are limitations upon the general grant of power conferred by section 1, of article 2, and likewise upon the special power given by section 6, of article 10, and the act now assailed is, by either of said sections, clearly prohibited, the law is valid. 
      Gilpin v. IFiiiicms, 25 Ohio St., 283; IF. TJ. Tel. Go. v. Mayer, 28 Ohio St., 521; State v. The Judges, 21 Ohio St., 1.
    It is the duty of good government to adopt the wise measures intended for the good 'of the whole in the suppression of fraud and the defeat of corruption in elections. Parson’s Rights of a Citizen of U. S., page 200; Ohio St., 534, 541, 542; 18 Ohio St., 243; 8 Ohio St., 333; State v. Covington, 29 Ohio St., 102, 118, 117; State v. Ilaxokins, 44 Ohio St., 110, 109, 113; Cincinnati Gazette Co. v. Timber slake, 10 Ohio St., 548.
    The purpose and effect of an action under said act, is to test the legality of the election under which the incumbent claims to hold, and does not affect life, liberty or property.
    The Federal Constitution does not guarantee a jury in the tribunals of the states. Cooley Const. Lim., page 25 (*19) and authorities cited; Hunt y. McMahon, 5 Ohio, 132.
    And the jury guaranteed by article 1, section 5, of the Constitution of Ohio, is that judicial means which was known to the common law before the adoption of the Constitution, and applies only to common law courts in actions involving private property, life or liberty. Willyard v. Hamilton, 7 Ohio, pt. 2, 111; Walker v. Sauvinet, 92 U. S., 90; 2 Kent Com. *page 13; Mlenbecker v. Plymouth Co., Pis. Ct., 134 U. S., 31.
    The law provides, that issues of facts arising in actions for the recovery of money or specific real or personal property, shall be tried by a jury, and all other issues by the court. Revised Statutes, sections 5130 and 5131.
    If this court will review the action on the weight of the evidence, which we question in view .of Revised Statutes, 6710, and Wetzell v. Richcreek, 53 Ohio St., 62, we submit, that it must be determined like all other civil actions, by a preponderance of the evidence, and that it is abundantly sustained.
    The right of trial by jury, is said to be nowhere defined or described in the constitution, but it is spoken of as the great safeguard of life, liberty and property. Work v. State, 2 Ohio St., 296.
    Its guarantee relates to individual rights enforcible in the common law courts.
    The interests of the public are otherwise taken care of. State v. Johnson, 26 Ark., 281; State v. Lu/pton, 64 Mo., 415 (27 Am. Rep., 253); State v. Vail, 53 Mo., 97; Attorney-General v. Sullivan, (Mass.) 40 N. E., 843.
    If the court should feel called upon to review the findings of the circuit court on the weight of the evidence, we contend that the burden is on the defendant to show not only lawful authority in the inception of his office. State v. Hay, Wright 96; State v. Cook, 20 Ohio St., 252. But also continuing qualification, State v. Beecher, 15 Ohio, 723.
   Spear, C. J.

The action in the circuit court was brought under favor of the act of April 8, 1896, entitled “An act to prevent corrupt practices at elections,” 92 Ohio Laws, 123. Section 7 of that act gives the right to any elector entitled to vote at any election (save for members of congress or the general assembly), to present in writing to the attorney-general an application setting forth, among other charges, the doing by a person elected to office at such election, of any act or acts declared unlawful by any law of this state, for the purpose of promoting his election, and thereupon it becomes the duty of the attorney-general to direct the prosecuting attorney of the proper county to bring an action to have the office declared vacant, such action to “be deemed to be and conducted according to the rules prescribed by law for an action against the usurper of an office.” And if any of the charges are sustained, judgment shall be rendered declaring void the election, declaring such office vacant, and ousting the defendant.

The petition charged, among other things, a violation by the defendant of that part of section 32 of the election law of April 18, 1892 ( 89 O. L., 451), which provides that:

“Whoever, directly or indirectly, by himself or through any other person, either gives, offers or procures or promises to procure, or endeavors to procure, any office, place or employment, to, or for any elector, or to or for any other person, in order to induce any elector to register or refrain from registering, for any election, or to vote or refrain from voting at any election, or to vote or refrain from voting at such election for any particular person or persons, or question or proposition, ” shall be punished by fine, or imprisonment in the penitentiary, or both.

The demurrer to the petition raises the question of the constitutionality of that part of section seven of the act of April 8, 1896, heretofore recited, and the refusal of a jury by the trial court raises the question whether or not, in such an action, the defendant is entitled to trial by jury. Other provisions of the statute are attacked as unconstitutional. But those questions are not raised by this record, and it is not necessary for us to inquire beyond the questions actually involved.

1. The constitutionality of the act. It is assailed as repugnant to the constitution in that it undertakes to declare a citizen ineligible to office for criminal acts of his without a conviction of such crime. Section 4 of article 5, is cited. That section provides that: “The general assembly shall have power to exclude from the privilege of voting, or being eligible to office, any person convicted of bribery, perjury, or other infamous crime.” The contention is that this section is a grant of power to the general assembly; that a grant of power to deprive a citizen of part of his political rights, on conviction of certain crimes, necessarily denies the power to do so without conviction, or for different crimes; and that the case comes within the rule, as given in Cooley’s Con. Lim., page 78, “that when the constitution defines the circumstances under which a right may be exercised, or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other eases. ” The rule seems to have met with general acceptance.

Its application in the present case would appear to depend upon whether the section quoted is a grant of power, or a limitation upon power otherwise granted. To determine this we should look at other provisions of the constitution to ascertain where, by its terms, power to punish crimes, to direct the conduct of elections, to prescribe qualifications for voting and for taking office, is lodged. Clearly, in the nature of things, such power cannot belong either to the executive or judicial departments. It belongs naturally to the legislative. It is a part of the legislative power, and we find that, by section 5 of article 2, this power is vested in the general assembly in as ample terms as could be chosen to express it. “In creating a legislative department, and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by the sovereign power of the country, subject only to such restrictions as they may have seen fit to impose. ” * * * “The legislative department is not made a special agency for the exercise of specifically defined powers, bub is intrusted with the general authority to make laws at discretion.” Cooley, p. 104. And, says Denio, J., in People v. Draper, 15 N. Y., 532: “The people in framing the constitution committed to the legislature the whole law-making power of the state, which they did not expressly withhold. Plenary power in the legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an exception.” And by Scott, J., in Lehman v. McBride, 15 Ohio St., 591-2: “This grant of power is general in its terms, not special; it embraces all such legislative power as the people of the state could, under the federal constitution, confer — the whole ‘legislative power of the state. ’ The limitations upon the exercise of the power thus broadly conferred, are special, and are to be found in other parts of the same instrument.” * * *' “Therefore, when the power of the general assembly to enact such a law (the soldiers’ voting act) is drawn in question, the proper inquiry is, whether such an exercise of legislative power is clear 1 j prohibited by the constitution. The grant of power being general, the question is as to the existence of a limitation, arising from special prohibition. ’ ’ ‘ ‘Such prohibition must either be found in express terms, or be clearly inferable, by necessary implication, from tbe language of the instrument, when fairly construed according to its manifest spirit and meaning.” Citing Baker v. Cincinnati, 11 Ohio St., 542, where it is said by Gholson, J.: £‘It will be observed that the provision is not, that the legislative power, as conferred in the constitution, shall be vested in the general assembly,but that the legislative powet' of this, state shall be vested. That includes all legislative power which the object and purposes of the state government may. require, and we must look to other provisions of the constitution to see how far, and to what extent, legislative discretion is qualified or restricted.” Citing, also, Evans v. Dudley, 1 Ohio St., 437, and Cass v. Dillon, 2 Ohio St., 607. It follows from this, that, without question, ample power to legislate upon all the subjects hereinbefore enumerated is conferred upon the general assembly.

The right to vote and to hold office is. nob of necessity connected with citizenship. Neither is it a natural right, such as the right to personal security, personal liberty, or the right to acquire and enjoy property. It is within the power of the people to give or refuse, restrict and regulate the franchise. And when conferred it is not a natural right, but may be taken away by the power that gave it. McCrary on Elections, sections 3 and 4. That is, the right depends upon the law of the land And, except where restrained by the constitution, the power of the general assembly over it is unlimited.

And, belonging to this general subject, is the subject of elections. No subject comes more eertainly within legislative power than does this. In the very nature of things it must be so. But the general duty is especially devolved on the general assembly by the constitution. The time for the election of legislative, executive, and judicial officers having been designated, and provision having been made that all elections shall be by ballot, by section 1 of article 10, the duty is enjoined upon that body to provide by law for the election of county and township officers, and, by section 27 of article 2, it is provided that: “The election * * * of all officers not otherwise provided for by the constitution * * * shall be made in such manner as may be directed by law.” It thus appears that the whole subject of elections, save so far as it is, in distinct terms, or by clear implication, controlled by the constitution, is devolved upon the general assembly, and that the power of that body over it is untrammeled, and that the details, as they relate to the manner or mode of holding elections are expressly referred to legislative discretion.

From a consideration of all the provisions of the constitution referred to, we are led to the conclusion that, while the question may not be free from doubt, the better view is tha' section 4 of article 5, is not in itself a grant of power, but a limitation upon power otherwise generally granted, and that this conclusion is in no way affected by section 5 of article 2. That is, had these sections not been adopted, the general assembly, by force of the general grant of legislative power, could have provided a permanent disqualification from voting, and from holding office, for causes or offenses other than those enumerated in the.sections above cited.

This conclusion leads to the further conclusion that the rule given by Cooley, cited by counsel, and hereinbefore quoted, does not control the case, but that other rules of construction equally reasonable aijd equally well recognized, which are given by the same author, are more in point. One is that “when a constitution gives a general power, or enjoins a duty, it also gives by implication, every particular power necessary for the exercise of the one or the performance of the other.” And, chin to this, “where power is granted in general terms, the power is to be construed as coextensive with the terms, unless some clear restriction upon it is dedueible (expressly or by implication) from the context.” It would obviously follow that where, by one section, a general, unlimited power is given, and that is abridged by another section of the same instrument, the limitation is not to be held more comprehensive than its terms clearly import. And, to justify the claim that the limitation of the constitution inhibits the attempted exercise of the power in the particular case by the general assembly, it should be shown that the objects contemplated by the constitutional provision and the statutes are substantially identical. Such, we think, is not the case here. The object of section 4 is to authorize the general assembly to award a punishment upon conviction of infamous crime, which will permanently exclude the criminal from voting and from holding office, and the effect of the statute enacted by virtue of that section, is to accomplish that object. The corrupt practices act does not undertake to authorize this. It does not provide any disability as to voting, nor does it render the person offending permanently ineligible to office. Comparing the two provisions by their operation and effect, the operation and effect of the constitutional provision, carried into legislation, are to punish for infamous crime, committed anywhere, at any time, with reference to any subject-matter, and to permanently disqualify from voting at any election and from holding any office, while the operation and effect of the provision of the statute are simply and only to disqualify from a particular office in the interest of pure elections, where the person claiming the office has violated the terms of the statute under which, and by virtue of which, he claims to have been elected. The statute operates upon the election and upon the office; it holds the one void and the other vacant; as a result it excludes the person from any benefit under the election which his unlawful acts have rendered of no effect, but it does not award punishment. The vice which enters into the election and renders it void, is the misconduct in reference to that particular election of the person who claims a benefit under it. He has violated the implied interdict of the statute by attempting to promote his election by impure and immoral acts, having a tendency to corrupt the voters and prevent a fair and legal election. Upon every principle of justice and fairness he should be prevented from reaping an advantage from his own wrong.

A question much discussed is as to whether the statute should be treated as imposing a test of ineligibility, or as providing a method of removal. The matter may be not free from doubt. Possibly the provision involves both characteristics. But the better conclusion, we think, is that the intent of the legislature was, not to provide a method by which a person lawfully elected to an office may be removed therefrom, but rather a method by which the title of one to an office which he has obtained possession of in violation of the terms of the statute upon which his claimed right vests, may be inquired into. It is, therefore, a challenge of the title to the' office, resting upon charges of misconduct in procuring it, rather than a process to remove, resting upon charges of misconduct in office.

Our conclusion with respect to the effect of section 4 of article 5, is, that if the framers of the constitution had intended to deny to the general assembly the power to render void an election because of illegal acts by the successful candidate, done for the purpose of promoting his election, they would have declared that purpose in unequivocal terms, and would not have left such result to depend upon doubtful implication. We have already found that there is no clear expression of such an intent. It follows that the provisions of the corrupt practices act involved in the case before us do not contravene section 4 of article 5, of the constitution.

Nor are the provisions of the statute in conflict with either article 5, or with section 4 of article 15, of the constitution. The former article provides who may be electors, and that electors shall be entitled to vote at all elections. Section 4 of article 15 is: “No person shall be elected or appointed to any office in this state unless he possesses the qualifications of an elector.” But it does not follow from this that every person who has the qualifications of an elector shall be eligible to any office in the state. The well-settled rule is that, while the legislature is without power to deny or abridge a constitutional right of a citizen to vote, or to hold office, nevertheless laws to regulate the exercise of the elective franchise, if reasonable, uniform and impartial, and calculated to facilitate the exercise of the right, are clearly within the legislative competency, and decisions to the effect 'that qualifications upon the right to take office other than the one imposed by the section quoted, are numerous. State v. Crooks, 7 Ohio Rep., 579; The State v. Covington, 29 Ohio St., 102. At page 118, it is remarked by Mcllvaine, J.: “If the framers of the constitution had intended to take away from the legislature the power to name disqualifications for office other than the one named in the constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration. The power under the general grant being ample and certain, a statute should not be declared void because in conflict with an alleged implication unless such implication be clear and indubitable. ” It may be added that there are implied disqualifications. A person may not hold incompatible offices, as an officer who presents his personal account for audit and officer who passes upon it, or sheriff and justice of the peace, or governor and member of the general assembly, or, as held in The State v. Taylor, 12 Ohio St., 130, the office of director of county infirmary and superintendent of the infirmary. The list might be indefinitely extended.

No duty enjoined upon the general assembly is higher, or of greater general interest to the commonwealth and the individual citizen, than that of securing, within constitutional limits, the full, untrammeled right of the elector to vote, to have that vote counted and not neutralized by an illegal vote, and securing, in addition, a fair expression at the ballot box of the public voice, freed from corrupting influences. And where this duty has been attempted by legislation calculated to secure these rational and desirable ends, courts will interfere with its operation only upon the clearest and most unquestioned conviction of its invalidity. A mere doubt is not sufficient. We are of opinion that the provisions of the act involved in this case are not in contravention of any section of the constitution, at least not clearly so, and are valid.

2. The right to a jury. Our constitution declares that the right of trial by jury shall be inviolate. This means the right as it existed in this state at the adoption of the constitution of 1802. Not that every question of fact was to be tried by a jury; only questions of fact in certain classes of cases. The distinctions indicated by our statutes, and by practice from the organization of the state, show this. Code, sections 263, 264; 51 O. L., 100; sections 5130 and 5131, Revised Statutes. The right applied only to common law courts, and in actions involving life, liberty, or the right to private property. Willard v. Hamilton, 7 Ohio Rep., 449. And we regard it as safe to say that there never has been a statute in Ohio authorizing a jury, nor will there be found a reported case in this state where a jury was called, or held to be proper, in a suit to determine title to an office; certainly none has been cited. We suppose the reason to be plain. A public office is a trust held for the benefit of the public. The incumbent, if he performs the duties, may be entitled to the emoluments, but he cannot have, under our governmental system, any prop^ erty in the office itself. The State v. Hawkins, 44 Ohio St., 98, and see especially remarks of Minshall, J., on pages 110 and 113, and the cases there cited. There being no property right involved in the inquiry, a jury cannot be had in an action to try title to an office. Contrary holdings have been made in other states by courts of high repute. But we think the law of Ohio is clearly as held by the circuit court. The question is not a new one in this court. In The State ex rel. Attorney-General v. Blood, (quo warranto) a demand for a jury was made, March 25, 1887, and argued by eminent counsel. The demand was refused. 17 W. L. B., 290. The case was then referred to a master to take testimony, but was finally dismissed by relator, and, for that reason, was not reported.

Other questions of procedure are argued, but we do not regard them of sufficient importance to warrant comment except to say that we find no error.

Judgment affi/i'med.  