
    The State of Ohio ex rel. The Attorney General v. Samuel B. Taylor. William D. Scarff v. Sidney B. Foster.
    1. Under the provisions of the act of congress, of July 1, 1862, “to provide internal revenue,” etc. (12 U. S. Statutes at Large, 432), a revenue stamp is not necessary to the validity of a “ notice of appeal ” in a proceeding by an elector to contest an election under the statutes of this state “ to regulate the election of state and county officers” (3 Curwen’s Stat. 1920); and an order of the court of common pleas dismissing such proceeding for want of a stamp is erroneous.
    2. The tenth section of the schedule of the constitution of 1851, which provides “ that all officers shall continue in office until their successors shall be chosen and qualified,” was not intended as a permanent provision of the constitution, and, as such, applicable to officers chosen under that constitution, but was limited, in its application, to officers chosen or appointed under the old constitution and whose terms of office did not expire until after the taking effect of the new constitution.
    3. The term of office of a judge elected to fill a vacancy, is limited to the unexpired portion of the regular term m which such vacancy occurs; and a commission assuming to confer official authority for a longer term, is, as to the excess, inoperative. Constitution, Art. 4, sec. 13.
    4. Though the neglect of a sheriff, by proclamation, to give notice of an election, may be competent evidence, in connection with other circumstances, to prove fraud or conspiracy on the ground of which an election is contested, such neglect is not conclusive of the invalidity of an election.
    5. On a judgment of ouster, in quo wa'^anto, against an incumbent of an office, this court will riot proceed to adjudge in favor of another claimant, whose election is then in process of regular contest.
    Information in the nature of quo warranto.
    
    Error to the common pleas of Logan county, reserved in the district court.
    These eases were argued, and considered together.
    The case in quo warranto, is this :
    On March 31, 1864, the Hon. Lyman R. Critchfield, attorney-general of the State of Ohio, filed in this court an information in the nature of quo warranto, against Samuel B. Taylor, stating : That Sidney B. Foster, of Logan county, is probate judge thereof, duly elected, qualified, and commissioned, and lawfully entitled to exercise the powers and duties, and receive the fees and emoluments of that office during the constitutional term thereof; but that said Taylor unlawfully holds and exercises said office of probate judge, in and for said county, and as such, assumes to do and perform all and singular the duties, and receive the fees and emoluments thereof, to the injury of the citizens of the state, and of said Foster. Wherefore is prayed the advice of the court in the premises and the process of the law against said Taylor, and that he may answer to the state, by what warrant he claims to hold and exercise said office.
    In answer to the information, Taylor says: That on- the second Tuesday of October, 1862, he was duly and legally elected probate judge of Logan county, for the constitutional term of three years, from the second Monday of February, 1863, and that he was duly commissioned as such judge, for that term, by the governor of Ohio, and was duly qualified, and entered upon the duties of the office on the second Monday of February, 1863, and from that time to the present, has performed the duties, and received the profits and perquisites of the office. That said term of three years has not yet expired; and that Foster is not judge of probate for said county, and was not duly elected or qualified; and .is not entitled to exercise the powers and duties, or receive the fees and emoluments of the office. And this he is ready to verify. Wherefore he prays that' the information be dismissed, etc.
    In reply to this- answer the relator states: That at the annual election, A. D. 1851, Ezra Bennet was duly elected probate judge of Logan county, and was duly qualified and commissioned and served the full term of said office. That at the annual election, A. D. 1854, Bennet was duly re-elected to the office, and served his full term. That at the annual election, A. D. 1857, A* Cassad was duly elected to the office, and being duly commissioned and qualified, served the full term of said office; and that at the annual election, A. d. 1860, Cassad was duly re-elected, and being duly qualified and commissioned, served in the office until his death on the 11th October, 1861. That on October 12,1861, the defendant Taylor was duly appointed and commissioned to fill the vacancy in the office occasioned by the death of Cassad. That Taylor, at the annual election, A. D. 1862, was duly elected to said office for the unexpired term of Cassad, ending on the second Monday of February, a. D. 1864. That the governor of Ohio, without authority of law, commissioned the defendant as probate judge of said county, for the full term of three years, ending the second Monday of February, 1866, whereas it should have been'for Cassad’s unexpired term. That at the annual election, A. d. 1868, it was lawful for the electors of the county to elect a probate judge, and that they did then duly elect Foster to that office, and that he was duly qualified and commissioned accordingly, and since the second Monday of February, 1864, has been legally entitled to hold the office and exercise its duties and receive its emoluments. Wherefore the plaintiff denies that the defendant is lawfully probate judge or entitled to exercise the duties or receive the emoluments of that office.
    Tc this reply the defendant filed a rejoinder stating: That at the annual election in 1862 he was duly elected 'probate judge for the term of three years, and.that on October 22, 1862, he was duly commissioned by the governor probate judge for the term of three years from the second Monday of February, 1868. That at the annual election for 1863 the sheriff of the county, believing the defendant to be duly elected and commissioned for such constitutional term of three years, did not give notice in his proclamation to the voters of the county, for the annual election for the year 1863, that any probate judge was to be elected at that election. And that the voters of the county, believing that the defendant had been duly elected for the term of three years, did not know, or suspect, or believe that any probate judge for, the county was to be elected at that election. That Foster, well knowing these things, and that no election would or could be lawfully held for said office at the annual election in 1863, then and there, secretly, fraudulently and unlawfully combined and confederated with sundry persons unknown to the defendant, to secretly and fraudulently put the name of said Foster on the ticket to be voted by them at said election as a candidate for probate judge for said county. That all .the votes cast, at the election, for that office, were cast secretly and fraudulently for Foster, and were procured to be so cast by the fraudulent contrivance and procurement of Foster and those who were so fraudulently combined and confederated with him, with the intent to keep the other voters ignorant of the fact that a probate judge was being or should be balloted for at said election. That the whole number of votes east at said election for probate judge was but 913, whereas the number of votes then cast, for other offices, was over 3960 of home votes, and over 4300 including the soldiers’ vote. Wherefore the defendant says the pretended election of Foster was fraudulent and void.
    To this rejoinder the relator demurred on the ground that it is insufficient in law.
    The case in error is this:
    In due time after the election in 1863, William D. Scarff, an elector of Logan county, but not a candidate at the then recent election, proceeded, under the provisions of the act of May 3, 1852, “to regulate the election of state and county officers” (3 Curwen’s Statutes, 1920), in the court of common pleas of that county, to contest the election of Sidney B. Foster to the office of probate judge, on the ground of alleged facts substantially the same as those set forth in the rejoinder in the case in quo warranto. This proceeding was, by the court of common pleas, on motion, dismissed and stricken from the docket, solely on the ground that the notice of appeal, prescribed in the proviso to the thirty-sixth section of the act above referred to, was not stamped in conformity to the provisions of the act of congress of July 1, 1862, “to provide internal revenue,” etc. (12 TJ. S. Statutes at Large, 432). And this is assigned for error.
    
      Lyman R. Gritehfield, attorney general, and A. G. Thurman, James Kernan, and H. M. Shelby, for the relator
    
      W. S. West and Stanton Allison, for defendant, Taylor, and Scarff, plaintiff in error.
    
      A. G. Thurman and H. M. Shelby, for Foster, defendant in error.
   Brinkerhoee, C.J.

These cases have been thoroughly argued both orally and in writing. We have given to the examination of the questions which they involve a liberal share of time and the exercise of the best judgment of which we are capable. And I say this, lest the brevity of our opinion should be taken as an indication of a hurried consideration and hasty decision of the cases; for, pressed as we are by the accumulation of business on our docket, I can find no time for a minute and elaborate discussion of the questions presented and determined, and will, therefore, attempt to do but little more than simply to announce the conclusions at which we have unanimously arrived.

And, I. As to the case in error, we are of opinion that, under a just construction of the provisions of the act of congress referred to, a revenue stamp is not necessary to the validity of a notice of appeal in a proceeding by an elector to contest an election under tbe statute of this state. And the order of the court of common pleas dismissing that case will, therefore, be reversed, and the cause remanded to that court for further proceedings.

II; As to the case in quo warranto. We are of opinion:

1. That the tenth section of the schedule of the constitution of 1851, which provides that all officers shall continue in office until their successors shall be chosen and qualified,” was not intended as a permanent provision of the constitution, and as such applicable to officers chosen under that constitution, but was limited in its application to officers chosen or appointed under the old constitution, and whose terms of office did not expire until after the taking effect of the new constitution. And this, for three reasons: It is placed, not in the body of the constitution, but in the schedule; among eighteen other sections, every one of which is obviously a temporary provision, 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. Its intent is suggested by its place; and there is no reason that we can conceive of, why, if it was intended as a permanent provision, it should not have been placed in the body of the constitution. It can not be said that the subject-matter of the section was overlooked by the framers of the constitution; for there are several distinct clauses in different parts of that instrument, in which it is specially provided that certain specified officers shall hold their offices until their successors are chosen and qualified; and this makes a case for the application of the maxim, “ expressio unius,” etc.

2. By section four of the schedule to the constitution, all judges were to be elected on the second Tuesday of October, 1851, and their term of office was to commence on the second Monday of February, 1852; the second Monday of February, 1852, happened to fall on the ninth day of the month; and hence, in order that all judicial officers may have their full term of office prescribed in the body of the constitution, no more and no less, the regular terms of office of all judges begin and end on the ninth day of February of the proper year.

The regular term of office of a probate judge, as fixed by the constitution, is three years. Article 4, section 7.

Section thirteen of article four of the constitution provides, that—

“ In case the office of any judge shall become vacant, before the expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the governor, until a successor is elected and qualified; and such successor shall be elected for the unexpired term, at the first annual election that occurs more than thirty days after the vacancy shall have happened.”

Now, according to the facts in this case admitted by the pleadings, Cassad, the deceased predecessor of the defendant, Taylor, was regularly and duly elected on the second Tuesday of October, 1860, for the full term of three years from the ninth day of February, 1861, which would expire on the ninth day of February, 1864. He died in October, 1861. The defendant, Taylor, was appointed to fill, for the time being, the vacancy thus created, and was elected to the same office at the October election, 1862. He was elected to fill the unexpired term of his predecessor, Cassad; he could not be legally elected for any longer period; and the commission of the governor, in so far as it assumed to confer upon him authority to hold the office for a longer period than the unexpired term of Cassad, was a nullity; for, the tenth section of the schedule to the constitution being inapplicable to officers elected or appointed under the constitution of 1851, and there being no clause in the body of the constitution authorizing a judge who holds his office by election to continue in office beyond his term until his successor is elected and qualified, his term of office necessarily expired on the ninth day of February, 1864. And as he does not claim to have been re-elected at.the proceeding October election, it follows that he has had no right to exercise the duties of the office subsequent to tha t date.

The demurrer to the rejoinder is sustained, and a judgment of ouster will pass against the defendant Taylor.

3. As to the claim of Poster to the office, we will simply say — that while the neglect of the sheriff to give notice by proclamation of the election of a probate judge, at the October election of 1863, may -be competent, and perhaps important evidence, in connection with other circumstances, as tending to establish the allegations of conspiracy and fraud, on the ground of which the invalidity of that election is claimed, we are of opinion that such neglect is not conclusive of the invalidity of that election. Whether Poster was duly elected to the office as he claims, or whether there is a vacancy by reason of the failure of the people to elect any one in 1863, Taylor is clearly not entitled to it. As to Poster’s rights in the premises, we decline to adjudge; but leave him to act as he may be advised on what seems to be a prima facie case in his favor, and to the final adjudication of the contest pending against him.

This disposes of the cases. But, before concluding, I will take the liberty to suggest that there seems to be a casus omissus in our legislation. The constitution nowhere prescribes the manner of filling a vacancy in the ofiice of judge, occurring by reason of the expiration. of his term and a failure to anticipate and provide for such vacancy at the preceding election.

Article 2, section 27 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,” etc.

Here is ample warrant for legislative action; but I have not been able to find any statute providing for the contingency which I have suggested; but it is one that has once occurred (Ohio v. Chase, 7 Ohio St. Rep. 372), and will occur again, in case the election of Poster shall be adjudged invalid.

Scott, Ranney, Wilder and White, JJ., concurred.  