
    State ex rel v. McCracken et al. State ex rel v. Commissioners.
    
      Cotmty clerk — Change of term of office — Legislative control over— When may qualify — Rights of incumbents.
    
    1. The act of March 2,1893, (90 O. D. 63), amending section 1240, of the Revised Statutes, by providing that “there shall be elected triennially, in each county, a clerk of the court of common pleas, who shall hold his office three years, begining on the first Monday of August next after his election,” is a valid exercise of the legislative power.
    2. The clerks elected thereunder were elected by the people for the term commencing as therein specified, and cannot sooner qualify and enter on the discharge of the duties of the office.
    3. By virtue of section 16 of article 4 of the constitution, present incumbents of the clerk’s office elected in pursuance of the statutes heretofore in force, are entitled to hold until their elected successors may qualify in pursuance of the law under which they were elected.
    (Decided March 6, 1894.)
    
      The first case above entitled is brought by the attorney general, in quo wa/rranto, in the interest of Berwick A. Barton, against James E. McCracken and David H. Lincoln, for the purpose of having determined the right to fill the office of clerk of the court of common pleas of Morrow county, for the period between February 9, 1894, and August 6, 1894. McCracken was duly elected to the. office of clerk at the November election, 1890, and entered upon the discharge of the duties February 9, 1891. Lincoln was duly elected clerk at the November election, 1893. On December 20, 1893, the commissioners of Morrow county, in anticipation of a supposed vacancy in the office, occasioned by the act of March 2, 1893, -appointed Barton to fill the same, who received a commission and gave bond to the satisfaction of the commissioners. McCracken tendered a bond to the commissioners, covering the period, and • continues to hold the office, claiming that he, in law, has a right to hold the same until August 6, 1894, and until his successor is qualified. The case was submitted on a demurrer to the petition.
    The second case is a motion for a writ of mandamus to compel the board of commissioners of Williams county to approve the bond of the relator, Justus E. Alvord, as clerk of the court of common pleas of said county. Alvord was duly elected clerk at the November election, 1893, and received a commission from the Governor in due form. On February 5, 1894, Alvord executed in due form an official bond, had the same duly approved by the prosecuting attorney, and presented it to the commissioners for their approval. The board refused to approve the bond for the reason that on January 6,'1894, by virtue of an order, and judgment of the Circuit Court of Williams county, they had approved the bond of one Hugh G. Monen, as clerk, for the period from February 9, 1894, to August'6, 1894, he, the said Monen, being then the incumbent of the office by virtue of an election to the same at the November election, 1890, and for the further reason that the bond purported to be for a term commencing on February 9, 1894, instead of August 6, 1894. ' No other objection to the bond existed.
    The main question being common to the two cases, and the two having been heard and submitted together, one report suffices for both.
    
      J. K. Richards, Attorney General, for the State.
    
      Mitchell & Bruce, and Olds & Olds, for Berwick A. Barton.
    
      Jabez Dickey, L. K. Powell, and J. M. McGillivray, for Jas. E. McCracken.
    
      C. E. Clark, E. N. Huggins, and D. K. Watson, for relator, Justus E. Alvord.
    
      Jno. M. Killits and Thomas Emery, for Commissioners of Williams county.
   Spear, J.

Two questions arise upon the records:

Is the act of March 2, 1893, amending section 1240, of the Revised Statutes, (90 O. L. 63), which provides that “there shall be elected tri-ennially, in each county, a clerk of the court of common pleas, who shall hold his office three years, beginning on the first Monday of August next after his election,” constitutional?

If it is, is there in consequence, a vacancy in the office of clerk of the court of common pleas ?

The term of office of the clerk of the court of common pleas is fixed by section 16, of article 4. of the constitution, in these words: “There shall be elected in each county, by the electors thereof, one clerk of the court of common pleas, who shall hold his office for the term of three years, and until his successor shall be elected and qualified. ”

Section 4, of the schedule to the constitution, provides that the first election for clerks of the courts of common pleas, shall be held on the second Tuesday of October, 1851, and the official term of such clerks, so elected, shall commence on the second Monday of February, 1852.

Section 27, of article 2, of the constitution, provides that the election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution, or the constitution of the United States, shall be made in such manner as may be directed by law.

Section 1, of article 2, of the constitution, provides that' “The legislative power of this state shall be vested in a general assembly, which shall consist of a senate, and house of representatives.”

From the foregoing we conclude:

1. That the term of the clerk, as fixed by the constitution, is three years, and until his successor is elected and qualified.

2. That the time- for the commencement of the terms of office of the clerks elected at the first election after the adoption of the constitution was the second Monday of February, 1852 (the 9th). But the placing of the provision in the schedule, a device of a temporary character, “designed simply to effect the transfer, without friction or disorder, of the administration of the powers of government from functionaries elected or appointed under the old, to those to be elected or appointed under the new constitution,” (The State ex rel. v. Taylor, 15 Ohio St. 142), instead of in the body of the constitution in which the permanent provisions have been incorporated, as well as the language of the clause itself, indicates a purpose not to fix the time for the commencement of the term of any of their successors. Hence:

3. There is no invariable period of the year fixed for the commencement of the terms of such clerks. The State ex rel. v. Niebling, 6 Ohio St. 40.

4. There being no time for the commencement of the term fixed by the constitution, the authority to fix the time is, necessarily, vested in the general assembly, and such authority is plainly given by section 1, of article 2, lodging all legislative power in that body, and by section 27 of the same article, providing that where the election is not provided by the constitution, the same shall be made in such manner as may be directed by law.

5. The general assembly, therefore, had power to pass the act of March 2, 1893, providing that the term of office of clerks thereafter elected should begin on the first Monday of August next after their election, and such act is not unconstitutional.

In support of the claim of the relator, Alvord, it is contended that the act is invalid because it operates to extend the term of office of the incumbent clerk, and the legislature is, as was held in The State ex rel. v. Brewster, 44 Ohio St. 589, without authority to extend the term of an office which has been fixed and limited by the constitution.

The assumption, we think, is not warranted. The act in question does not purport to extend the term of. the incumbent, nor does it in effect do that. The result" of this legislation upon the incumbent depends wholly on the constitution. If, by virtue of section 16, of article 4, a vacancy is created, then the term of the incumbent is not extended ; if, under that section, no vacancy ensues, it is the force and effect of the constitution, and not the statute, which extends the term. This is easily tested by supposing that the constitutional provision in regard to clerks had been the same as that regarding county auditors. In such case no question of the effect of the act upon the right of the incumbent could possibly arise.

In support of the claim of Berwick A. Barton, it is contended that the effect of the statute of March 2, 1893, is to create a vacancy in the office of clerk, because such clerk is a county officer, and section 2, of article 10, of the constitution provides that ‘ ‘ county officers shall hold their office for such term, not exceeding three years, as may be provided by law.”

It is, we think, a sufficient answer to this proposition to say that the purpose of the framers of the constitution, by the adoption of section 16, of article 4, to take the office of clerk of the court out of the operation of the terms of section 2, of article 10, is so plain as to be practically beyond question. One is a general provision; the other a special one. In such case the latter controls. But it is further insisted that a proper construction of the language of section 16, of article 4, limits the right of the incumbent to hold over to some accidental contingency, such as illness, or inability, or neglect to qualify by the successor for a short time, but cannot be held to apply to a case where the interregnum extends over an unreasonable time, as for six months.

The effect of this construction would be to create vacancies in the present cases. The recognized policy of the state is to avoid, if practicable, the creation of a vacancy in an elective office, and where the right to hold over is given in language that is not limited, and the same is not otherwise qualified, a court would hardly be justified in seeking for an unnatural construction by which a limit would be placed upon the right. Here the words are: “And until his successor is elected and qualified,” and nothing is found in the context to restrict the natural import of the text as given in the section quoted.

In contemplation of law there can be no vacancy in an office so long as there is a person in possession of the office legally qualified to perform the duties. This conclusion is distinctly supported by the holding in The State ex rel. v. Howe, 25 Ohio St. 588: “That the framers of the constitution, in providing for filling vacancies in office, did -not regard an office as vacant, when an incumbent might lawfully hold over his definite term until a successor was elected or appointed and qualified, is manifest from other provisions in the instrument. By section 4 of article 10, the duration of the term of township officers is fixed at one year from the Monday next succeeding their election, and until their successors are qualified. It would hardly be contended that, under this provision, a township office becomes vacant at the end of the year, from the mere fact that no successor to the incumbent has qualified. ”

We think there is no vacancy in the office of clerk of the court of common pleas, but that the persons'duly elected, and holding on February 8,, 1894, are entitled to perform the duties until their successors, respectively, elected .at the November election, 1893, are qualified.

In the quo wa/rrcmto case the demurrer to the petition will be sustained, and the petition dismissed. In the other case the motion for writ of mandamus will be overruled.

Mustshall, J., dissents.-  