
    The State of Ohio ex rel. William Adams, v. Hueston Hopkins.
    At the regular election held in Warren county, in the fall of 1855, for the election of state and county officers, Hueston Hopkins was duly elected county treasurer of said county, and on the first Monday in June, 1856, having been duly qualified, entered upon the duties of said office, which he continued to discharge during the term for which he was elected. At the fall election of 1857, Hopkins was re-elected to said office, and on the first Monday of June, 1858, having been duly qualified, entered upon his second term of office, and has ever since continued to act as county treasurer. At the regular election in said county, held in the fall of 1859, Matthias Rapp was duly elected county treasurer. Afterward, on the-day of' -, 1859, the governor issued to said Matthias Rapp a commission as county treasurer, which was transmitted to the county clerk. Afterward, on the 27th of November, 1859, said Rapp deceased, having never in fact received his commission. On the first Tuesday of September, 1860, saidRapp having failed to qualify and give bond on the first Monday of Sep- ■ tember, 1860, the day on which the terta for which he was elected commenced, the county commissioners appointed William Adams, the relator, county treasurer for said county, to fill the vacancy occasioned by the death of Rapp. On the 22d of September, 1860, the governor issued his commission to said Adams, who had before then accepted said appointment, and given bond and qualified according to law. Thereupon, Adams demanded of Hopkins possession of the office of county treasurer. Hopkins refused to yield possession, but retained and still retains it. On demurrer to answer, stating these facts : Held, that the death of said Rapp occasioned a vacancy in said office within the meaning of the statute.
    ^Information in the nature of quo warranto.
    In this case an information in the nature of quo warranto has been exhibited against the defendant, Hueston Hopkins, on the relation of William Adams, requiring said Hopkins to show by what warrant he claims to hold and exercise the office of county treasurer of Warren county.
    The answer of the defendant discloses the following state of facts, under which the defendant claims the legal right to hold said office till the first Monday of September, 1862, to wit:
    At the regular election held in Warren county, in the fall of 1855, for the election of state and county officers, Hueston Hopkins was-duly elected county treasurer of said county; and on the first Monday of Juno, 1856, having been duly qualified, entered upon the duties of said office, which -ho continued to discharge during the term for which he was elected. At the fall election of 1857, Hopkins was re-elected to said office; and on the first Monday of June, 1858, having been duly qualified, entered upon his second term of office, and has ever since continued to act as county treasurer. At the regular election in said county, held in the fall of 1859, Matthias Eapp was duly elected county treasurer. Afterward, on the — day of-, 1859, the governor issued to said Matthias Eapp a commission as county treasurer, which was transmitted to the county clerk. Afterward, on the-27th of November, 1859, said Eapp deceased, having never in fact received his commission. On the first Tuesday of September, I860, said Eapp, having failed to qualify and give bond on the first Monday of September, 1860, the day on which the term for which he was elected commenced, the county commissioners appointed William Adams, the relator, county treasurer for said county, to fill the vacancy occasioned by the death of Eapp. On the 22d of September, 1860,«the governor issued his commission to «aid Adams, who had before then accepted said appointment and given *bond and qualified according to law. Thereupon Adams demanded of Hopkins possession of the office of county •treasurer. Hopkins refused to yield possession, but retained and •still retains it.
    To this answer the state demurs, and the question arises whether ■upon the facts stated, the defendant is legally entitled to hold and •exercise said office.
    
      George R. Sage, for the relator.
    
      Durbin Ward and N. JET. Swayne, for defendant.
   By the Court.

The county commissioners are expressly authorized by statute to appoint a county treasurer, whenever that •office shall become vacant “ by death, resignation, removal, neglect to give bond, or from any other cause.” Swan’s Stat. 1017. It 'is further provided by statute (56 Ohio L. 105), that if the treasurer elect “ shall fail to give bond and take the oath of office, as prescribed by law,pn or before the first Monday of September next .after his election, the office shall become vacant and shall be filled .as provided by law.”

By reason of the death of Matthias Eapp, prior to the commencement of the term for which he had been elected, there was no per•son on the first Monday of September, 1860, entitled to take and hold the office during the regular statutory term commencing on .that day. And this want of a regular incumbent for the term, .occasioned by the death of a party who would otherwise have been such, constitutes, as we think, a vacancy occasioned by death, within the meaning of the statute. And, were it necessary, we should hold that, under the statute last cited, the office became vacant upon the failure of Eapp to give bond and take the oath of office. 'True, this failure was caused by the act of God, and not by the laches of the party, but its effect upon the office, is the same, whatever may have been its cause.

*This construction makes the legislative intention accord

with the constitutional policy by which no person is 11 eligible to the office of county treasurer for more than four years in any period, ■of six years.”

The demurrer to defendant’s answer must be sustained and judgment of ouster entered against him.  