
    TITLE TO PUBLIC OFFICE.
    [Circuit Court of Franklin County.]
    State of Ohio, on Relation of Mark Slater, v. John W. Johnson.
    Decided, September Term, 1906.
    
      Quo Warranto—Lies on Relation of a Private Individual—Claiming a Public Office, When—Nature of Title which Must be Shown—Appointive Offices—Vacancies—Be Facto and De Jure Officials—Holdovers—State Appointments—Failure of the Senate to Act—Section 6764.
    1. Quo warranto on relation of an individual will lie where the relator claims to be entitled to the office in controversy.
    2. But the relator must show a prima facie right to the office claimed, and such right can not be based on the fact that he is the de facto officer; in such a case the usurper of a state office can be ousted only in an action brought by- the attorney-general.
    Dustin, J.; Wilson, J., and Sullivan. J., concur.
    Heard on demurrer to petition.
    This action was brought under favor of Section 6764, Revised Statutes, and is before the court on a demurrer to the petition. We conclude—
    First. That the case is properly entitled. See, 50 O. S., 120; Encyc. PL and Pr., Vol. 17, page 433, and cases there cited.
    Second. That when an action in quo warranto, on the relation of a private individual, is brought to oust the incumbent from an office to which the relator claims title, the petition must show a prima facie right in the relator to the office claimed. Toney v. Hwrris, 85 Ky., 453; The People, ex rel, v. Perley, 80 N. Y., 624; State, ex rel Rea, v. Hay, Wrights Reports, 96; and numerous citations in Encyclopedia of Law, Vol. 23, page 626.
    Slater sets forth that he was appointed to the office of supervisor of public printing by Governor Nash, June 1, 1903, and re-appointed by Governor Herrick, June 1, 1905; but, 'that the latter appointment (made in vacation) was not confirmed at the next sesión of the Senate, which adjourned April 2, 1906.
    Averring that no other appointment (meaning no other legal appointment) has been made, the relator claims to be a “holdover,” and entitled to continue in possession under Section 8 of the statutes, which provides that—
    “Any person holding an office of public trust shall continue therein until his successor is elected, or appointed and qualified, unless it is otherwise provided in the Constitution or laws.”
    
    In the case of appointive state offices, (such as supervisor of public printing) it is “otherwise provided,” as follows:
    “Section 12. In case of a vacancy in any office filled by appointment of the governor, by and with the advice of the Senate, occurring by expiration of term, or otherwise, when the Senate is in session, the governor shall appoint a person to fill such vacancy, and forthwith report such appointment to the Senate; and when the Senate is not in session, and no appointment has been made and confirmed, in anticipation of such vacancy, the governor shall fill the vacancy and report the appointment to the next session of the Senate; and if the Senate advise and consent to the same, the person so appointed shall hold the office for the full term; and if the Senate do not so advise and conseivt, a new appointment shall he made.”
    
    The last clause of the foregoing section applies exactly to the circumstances of this case. The Senate did “not so advise and consent”- to the second appointment; therefore, Slater’s legal incumbency immediately ceased.
    It became the duty of the then governor at once to make a new appointment. Until that'was done Slater was a de facto, but not a de jiire official.
    If the remaining averments of the petition as to Johnson’s usurpation of the office be true (as the demurrer technically admits), it is a ease for action by the attorney-general, not by Slater, since he shows no right to the office in himself.
    The demurrer will be sustained.
    
      Emmitt Tompkins and James H. Allen, for plaintiff.
    
      Lentz & Belcher and LeWit't C. Jones, for defendant.
     