
    Case v. Burrell et al., Township Trustees.
    
      Joint township ditch — Levy of assessment not invalidated — By expiration of trustees’ terms, when — Election and qualification— De jure officers — Section 4, Article X, Constitution — Section 8, General Code.
    
    Both election and qualification are necessary in order to render a township trustee an officer in contemplation of law, and where action by a joint board on a petition for the establishment of a ditch had been, set for January 1, the granting of the application and levying of the assessment at a meeting held .on that day is not invalidated by the fact that the terms of office of the trustees so acting had expired the previous midnight and their successors did not qualify for some days later, the action of the old board being that of de jure officers.
    (Decided March 20, 1915.)
    Appeal: Court of Appeals for Licking county.
    
      Messrs. Fitsgibbon, Montgomery & Black, for plaintiff.
    
      Messrs. Kibler & Kibler, for defendants.
   Shields, J.

The sole question presented in this case, which is in this court on appeal, is whether the trustees of Hartford and Bennington townships in this county were legally constituted and acting as a legal joint board of trustees of said townships at the time of. the action taken by them on January 1, 1914, upon the petition of W. W. Stockberger and others, in ordering the establishment, location ánd construction of the ditch in question at that time.

It appears that at a joint session of said board of said township trustees, held December 1, 1913, further action on said petition was adjourned by said board to January 1, 1914, at — o’clock a. m., at which time a majority of said board of said township trustees made and caused to be entered on their minutes an order granting the prayer of said petition, and caused an assessment to be made for the construction thereof on certain property to be benefited thereby, including the property of the plaintiff, Elisha J. Case. It is claimed that this action was illegal, null and void because the official terms of said trustees composing said joint board of trustees had then and before that time expired, to-wit, at midnight on December 31, 1913. It appears that trustees for the term beginning January 1, 1914, had been elected in each of said townships, that the trustees elected in and for said Hartford township did not qualify until 4 p. m. on said January 1, 1914, that two of the trustees elected in and for said Bennington township did not qualify until January 5, 1914, and that the other and third trustee not until January 8, 1914.

The question made by the record is: Did the township trustees of said townships continue in office as such until their successors in office qualified, or did their terms of office expire by limitation on December 31, 1913, at midnight?

Section 3268, General Code, provides:

“Three trustees shall be elected, biennially, in each township, who shall hold their office for a term of two years, commencing. on the first day of January next after their election.”

Article X, Section 4, of the Constitution provides :

“Township officers shall be elected by the electors of each township, at such time, in such manner, and for such term, not exceeding three years, as may be provided by law; but shall hold their offices until their successors are elected and qualified.”

Section 8, General Code, provides:

“A person holding an office of public trust shall continue therein until his successor is elected or appointed and qualified, unless otherwise provided in the constitution or. laws.”

From the foregoing it appears that both an election and qualification are necessary in order to render a township trustee an officer in contemplation of law. But it is contended that under Section 3268, General Code, township trustees are elected for the period of two years, that their terms commence January 1, that such day commences at the expiration of the day preceding, and that no fractional parts of a day are to be considered. Such is the holding in the case of Arrowsmith v. Hamering, 39 Ohio St., 573, but in the same case it is likewise held by the court, in discussing fractional parts of a day, that “This presumption will not prevail where it is in conflict with any right required in actual points of time on that day, before the act took effect. In such case the exact time in the day may be shown.”

In the case before us an official declaration had been made at the time of said adjournment requiring sortie official action to be taken on said January 1, 1914, at — o’clock a. m., and the successors to what may be termed the old joint board not having qualified at that time, could not such old joint board continue to act until their successors qualified? At best, the trustees of Hartford township having qualified on January 1, in the afternoon of said day, and the said Bennington township trustees, at least a majority of them, not having qualified until January 5, a joint meeting of the newly elected trustees of said townships was thereby rendered impossible on January 1, even though the beginning of the official terms of said trustees related back to midnight of December 31.

Under the evidence presented, we think that the action of the joint board of said township trustees on January 1, in ordering the establishment, location and construction of said ditch and making an assessment therefor, was taken by said joint board of trustees as de jure officers, and that such action was not unauthorized or illegal; and it follows that the temporary injunction heretofore allowed will be dissolved and the petition of the plaintiff dismissed.

Temporary injunction dissolved and petition dismissed.

Powell and Houck, JJ., concur.  