
    The State, ex rel. Tharp, v. Scott.
    (Decided April 16, 1934.)
    
      Mr. Robert Gorman, for relator.
    
      Mr. Sol Goodman, for respondent.
   Richards, J.

This is an original action in quo warranto brought in the Court of Appeals of Hamilton county to oust the defendant from the office of justice of the peace in Colerain township, Hamilton county. The matter for adjudication arises on a general demurrer to the petition filed by the respondent.

The petition avers that the relator is the duly appointed and qualified justice of the peace for said township, and brings this action under the provisions of Section 12307, General Code. He avers that in November, 1929, the defendant was elected justice of the peace for said township for a term of four years, ending on December 31, 1933. The relator avers that at the election held on November 7, 1933, he and the defendant were candidates for the office of justice of the peace of said township, and relator was declared elected to said office, but that this respondent, Scott, contested the election, and the Court of Appeals on January 12, 1934, by reason of an irregularity on the ballot advising that the electors could elect two justices of the peace in said township, held that no one was elected and that said election was void and of no effect. Relator further alleges that on January 16, 1934, the trustees of said township duly adopted a resolution, filed in the office of the clerk of the Common Pleas Court, appointing him to said office to fill the vacancy, and that he has duly qualified under said appointment, but that the defendant refuses to turn over to him the books and papers of said office, is usurping the office and exercising the functions of a justice of the peace of said township, and will continue so to do unless ousted by this court.

The question involved in this action is whether the defendant held over under his election of 1929, or whether a vacancy existed in the office on and after January 1, 1934.

Our attention is called to State, ex rel. Felder, v. McVay, 115 Ohio St., 588, 154 N. E., 810, but that case has no application to the controversy existing in this action. That case involved a valid election, and the only controversy related to who the successful candidate was, while the contested election mentioned in the petition in the case at bar resulted in a holding that the election which had been attempted to be held was a nullity.

No right of action existed in John F. Tharp, as relator, to bring this proceeding in quo warranto until he was appointed and had qualified as justice of the peace, which was after the final adjudication in the contested election case.

The Constitution of Ohio, in Article XVII, Section 2, provides, among other things, that the term of office of justices of the peace shall be such even number of years, not exceeding four years, as may be prescribed by the General Assembly. This language clearly fixes the period of four years as the maximum time that a justice of the peace can serve under one election, and applies to this respondent; and the statute, Section 1713, General Code, provides also that a justice of the peace shall be elected for a term of four years. It would seem, therefore, by both the Constitution and the statute, that the maximum period of time is fixed at four years, and that a justice of the peace is not entitled to hold over beyond the time thus fixed.

In the case of State, ex rel. Attorney General, v. Brewster, 44 Ohio St., 589, 9 N. E., 849, the Supreme Court, in construing similar language in the Constitution, applying to a county auditor, held that the General Assembly was without power to extend the term beyond the period limited. And a like conclusion was reached in a case entitled, In the Matter of Conley, 25 Ohio App., 339, 158 N. E., 552. The authorities on this question are collected in 24 Ohio Jurisprudence, 281, 285.

The respondent relies on State, ex rel. Goodman, v. Redding, 87 Ohio St., 388, 101 N. E., 275, but that decision applies, and can only apply, to the case of a justice of the peace who was elected prior to the amendment of the Constitution adopted in 1912.

Under the Constitution of Ohio, a justice of the peace cannot hold over beyond the term for which he is 'elected, as the holding over of such an officer is prohibited except in case of an appointment tó fill a vacancy.

Demurrer to petition overruled, and, if respondent does not desire to plead further, judgment of ouster in favor of relator.

Demurrer overruled.

Hamilton, P. J., and Ross, J., concur.

Richards, J., of the Sixth Appellate District, sitting by designation in the First Appellate District.  