
    The State v. Brady.
    1. In cities of tlie second class the terra of office of city clerk is two years. State v. Squire, 39 Ohio St. 197, followed.
    2. Where, in April, 1883, A. was elected such city clerk for the “coming term,” such term of office will extend to April, 1885, and A. is entitled, without re-election, to hold such office for the full term, unless lie abandons the same or is estopped from claiming it.
    3. A.’s accepting the office in 1883 with the knowledge that the council each year elected a city clerk, and his soliciting a re-election in 1884 do not estop him from claiming the full term ; and in April, 1884, while A. rightfully insisted on holding the office for the full term, another person could not be duly elected to such office.
    Quo Waeeanto.
    This action is brought to oust the defendant from the office of city clerk of the city of Newark, a city of the second class. The petition states that the defendant has usurped that office, claiming to hold and perform the duties of the same, by the authority of being chosen thereto by the city council of said city, at the regular organization meeting thereof, in April, 1884. The petition states also that Thomas G. Thornton was duly elected by said council as clerk of the city at the organization meeting of said council in 1883, that he was then elected and qualified for two years, and that he is entitled to serve in said office for said two years from said meeting in 1883, but that said defendant prevents him from so doing, that there was no vacancy when said defendant was elected, and that his election was a nullity.
    The answer denies that said Thornton was elected, or that he qualified in 1883 for the term of two years, but states that he was chosen by the council in 1882, that he understood, and so did the council, that he was then, and also when he was chosen in 1883, chosen for the term of one year, and that in both cases he qualified accordingly. The answer also alleges that in 1869 the electors of said city elected to said office S. S. Wells for the term of two years, which expired in April. 1871, that since thentbe council has chosen a clerk every year, who has qualified in every instance for a year term. It is also stated in the answer that Thornton was a candidate before said council in 1881, when defendant was chosen for the office of clerk, but not elected.
    It is admitted, that the city clerk was elected by the city council each year from 1871 to 1883 inclusive ;• but relator claims that in April, 1883, Thornton was elected for the term of two years, and then entered on such term and is entitled to hold the office for the full term of two years, and that in April, 1881, there was no term of the office, or vacancy in the office, to which Brady could be elected, and that Brady should be ousted from the office.
    
      Gibson Atherton, for the plaintiff,
    claimed that section: 1709 of the Revised Statutes had received a construction in States. Squires, 39 Ohio St. 197, where it was decided that the section was applicable to the office of city clerk, and that the term of office was two years. That an intention to elect for one year would make no difference as the. law fixes the term. Stadler v. Detroit, 13 Mich. 316 ; People v.. Lord, 9 Mich. 226; Turnipseed v. Hudson, 50 Miss. 129; Dezill v. Odell, 3 Hill, 215 ; Taylor v. Zepp, 11 Mo. 182 ; Alexander. v. Walter, 8 Gill, 239; 2 Story’s Eq. Jur. § 1516 ; Bigelow on Estoppel, ch. 19; Herman on Estoppel, § 112.
    
      Jones & Phillips, for defendant,
    • claimed that the action should be dismissed for: I. If the term is two years, then Thornton having been elected in 1882, there was no vacancy, in 1883, and he was not then legally elected and his term, expired in 1881, the time of defendant’s election.
    II. Thornton having acquiesced in a long course of action by the city authorities in electing clerks for one year, and having accepted said, office upon two elections for said one year term, and having been a candidate for re-election in 1881, will not now be aided by the court but will be held to have resigned, if necessary, before the last April election, and that he is estopped from denying it.
    
      III. The terna of office is one year.
    IY. If tbe term is two years, the two year term commenced at the organization meeting of the city council of Newark held in 1878, and there was an expiration in 1884, and the election of defendant then was regular and legal.
   Follett, J.

Is Brady the duly elected city clerk?

The regularity of his election is admitted, provided Thornton was not entitled to the office until April, 1885.

This presents the question, when should Thornton’s term of office end ? On March 15, 1869, the following provision became the law (66 Ohio L. 25). “The qualified voters of each city of the second class shall, on the first Monday of April, 1869, and every second year thereafter, elect... a city clerk, who shall hold his office for two years.” This fixed a definite term of office for city clerk. Newark was then a city of the second class, and on the first Monday of April, 1869, elected a city clerk for the term of two years.

On May 7, 1869, the above act of March 15, 1869, was amended, and the municipal code was'passed, which took effect July 1, 1869.

This revision did not cause any change in the law except as is specifically provided. State v. Perrysburgh, 14 Ohio St. 472; State v. Newton, 26 Ohio St. 206.

Section 60 (66 Ohio L. 160), provides, “ the officers of cities of the. second class shall consist of a mayor, clerk, treasurer, ... all of whom shall be'elécted: ” etc.

Section 62 provides, All officers who are elected shall serve for two years and until their successors are elected and qualified, and all officers who are appointed shall serve for one year and until their successors are appointed and qualified.”

Section 60 above was amended April 18, 1870 (67 Ohio L. 68), so as to provide : the officers of cities of the second class shall consist of a mayor, treasurer, ... all of whom shall be elected by the qualified electors of the city ; and a clerk, who shall be chosen by the council; provided, that all clerks heretofore chosen or elected shall hold their office until the expiration of the term for which they were chosen or elected.”

The city clerk, who was elected April, 1869, held his office until April, 1871, when the council elected his successor.

Rut it is claimed that the office of a city clerk chosen by the council, is held by appointment and not by election; and that the term of office of such city clerk, is but one year, as provided by section 65 above, being section 1709 of the Revised Statutes.

In State v. Squire, 39 Ohio St. 197, it is held: “ 1. The office of clerk, in the cities of the second class, is held by election, and not by appointment, within the meaning of section 1709 of the Revised Statutes. 2. The term of office of such clerk is two years.”

We are asked to reverse that decision, and able arguments are presented why it should be reversed ; but we think it better to let the decision stand.

This determines that the term of this office is two years : and by the above acts of ” March 15, 1869, and of April 18, 1870, the term began April 1869, and ended April 1871. No statute since then has changed or fixed the beginning or the ending of such a term of office. So this term began April, 1883, and ends April, 1885.

The practice of the council to elect a city clerk each year, did not change the term of office. Stadler v. City of Detroit, 13 Mich. 356. And Thornton’s knowledge of such practice did not change his term of office.

The record of the council showing its doings on April 16, 1883, contains the following : “ Thomas G. Thornton was then nominated for clerk and auditor of said city for the coming term, a yea and nay vote was then taken.. . Thomas G. Thornton was then declared elected as clerk and auditor.”

It is claimed that coming term ” should read “ coming year” and that the word “ year ” was written therein, and the record approved, and that it was erased since the record was approved by the council, and the word“ term” placed in its stead. But the testimony is, that the record is now as it wa.s when approved by the council.

This bi’ings us to the conclusion, that Thornton’s term of office as city clerk does not expire until April, 1885 ; and that lie is entitled to bold this office until that time, unless be bas abandoned tbe same or is estopped from claiming tbe same.

Tbe record remaining as it is, there is no act of abandonment or estoppel shown, except being a candidate for re-election in April, 1884. This is notan abandonment and does not estop Thornton from claiming tbe office. Turnipseed v. Hudson, 50 Miss. 429 ; State v. Bryce, 7 Ohio, pt. 2, 82.

There was no vacancy in tbe office of city clerk of Newark in April, 1884; and Brady was not duly elected to that office.

Judgment of ouster and judgment of induction.  