
    The State, ex rel. Wheatley, v. Kirk.
    (No. 26997
    Decided July 13, 1938.)
    
      
      Mr. Louis Tobin and Mr. W. O. Wallace, for relator.
    
      Mr. W. B. Moore and Mr. H. L. McCarthy, for respondent.
   Myers, J.

This is the second time this controversy comes into this court. The relator now raises a constitutional question not adjudicated in the other case.

The relator claims three new questions are in this case and states them substantially as follows: (1) Does Section 2 of Article XVII, of the Constitution prevent Kirk from holding over? (2) Was there such a vacancy in the office of County Engineer of Columbiana county on March 4, 1938, as could be filled by appointment by the Board of County Commissioners? And (3) Was Kirk duly qualified by bond?

Since the question of bond could have been raised in the former case, relator is foreclosed thereon.

The question of a vacancy in the office was fully considered in the former decision of this court. However, since the question of a vacancy is related to the determination of the constitutional question interposed we shall consider both together.

As incumbent of the office, Kirk completed serving four years in January, 1937, and relator contends that after his appointment, Kirk may not serve longer by reason of that part of Section 2 of Article XVII of the Constitution reading as follows: “The term of office of all elective county, township, municipal and school officers shall be such even number of years not exceeding four (4) years as may be so prescribed.”

Relator also quotes Section 2782, General Code, as follows:

‘ ‘ There shall be elected in each county, at the regular election in 1924, a county surveyor, who shall assume office on the first Monday of September next after his election and who shall hold said office for a period of three years and four months or until the first Monday of January, 1929. There shall be elected in each county, at the regular election in 1928, and quadren-’ nially thereafter, a county surveyor who shall assume office on the first Monday in January next after his election and so shall hold said office for\ a period of four years.”

Section 2785, General Code, is also quoted:

“If a vacancy occurs in the office of county surveyor because of death, resignation or otherwise, the county commissioners' shall appoint a suitable person county surveyor, who, upon giving bond and taking the oath of office as required of the county surveyor elect, shall enter upon the discharge of the duties of the office.”

Relator then quotes Section 8, General Code, reading as follows:

“A person holding’ an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless othe'rwise provided in the Constitution or laws.”

Relator then asserts that in the instant case Kirk may not hold over for the reason that it is ‘ ‘ otherwise provided” in that part of the Constitution and the laws above cited. Relator points out that the Constitution reads: “The term * * # shall be * * # not exceeding four (4) years,” and Section 2782, General Code, reads: “for a period of four years.” In addition, relator points to the language in Section 2785 reading, “If. a vacancy occurs * * * because of death, resignation or otherwise” the commissioners shall appoint a suitable person county surveyor. (Italics ours.) It is claimed by the relator that the quoted parts of the Constitution and the statutes preclude Kirk holding over as engineer, especially in view of the appointment of Wheatley by the county commissioners to fill the “vacancy.”

The foregoing claims of the relator make it necessary to examine the history of Article XVII of the Constitution and the purpose of the language there used. There would be much force in the claims of the relator but for the fact that the last sentence of Section 2 of Article XVII, reads as follows: “All vacancies in other elective offices shall be filled for the unexpired term in such manner as may be prescribed by law.” Could any language be clearer or more explicit in the light of its setting? Article XVII of the Constitution of Ohio in its entirety was adopted by the people of the state at the November election of 1905. It was not changed by the Constitutional Convention of 1912. It was a revamping of the terms and time of election of state, county and other officials. Whereas theretofore state officials had been elected in the odd-numbered years, thereafter they were to be elected in the even-numbered years. Changes as to other officials were also made. In making such major changes the people of Ohio stated in Section 2 that “the General Assembly shall have power to so extend existing terms of office as to effect the purpose of Section 1 of this article.” In so providing, the framers of that article of the Constitution recognized the wisdom of reposing in the Legislature the authority to make the Constitution workable. It was recognized that there might be valid reasons for changing the date of the beginning and expiration of terms of office. The framers wisely left to the General Assembly the details of such an arrangement.

The framers of Article XVII of the Constitution went still further. They recognized the fact that public officials are mortal and may become disabled or be removed by the hand of death or that elections .might be held without a valid legal choice being made. To provide for such contingencies they first stated in Section 2 that “Any vacancy which may occur in any elective state office other than that of a member of the General Assembly or of Governor, shall be filled by appointment by the Governor until the disability is removed, or a successor elected and qualified.” They further provided in respect-to state officials': “Every such vacancy shall be filled by election at the first general election for the office which is vacant, that occurs more than thirty (30) days after the vacancy shall have occurred. The person elected shall fill the office for the unexpired term.”

After having thus provided how vacancies in elective state offices should be filled they further provided that “All vacancies in other elective offices shall be filled for the unexpired term in such manner as may be prescribed by law.” (Italics ours.) What did the framers of Article XVII intend by the insertion of such language in Section 2? It was not a part of the Constitution in 1886, when the decision was made in the case of State, ex rel. Attorney General, v. Brewster, 44 Ohio St., 589, 9 N. E., 849. At that time the only constitutional provision on this subject was Section 27 of Article II, which was not changed in 1905 or in 1912. Section 27 is the same today as it was then and the Brewster case was decided in the light of Section 27 and in respect to a constitutional amendment adopted in October, 1885, reading’ as follows: £ £ County officers shall be elected on the first Tuesday after the first Monday in November by the electors of each county, in such manner and for such term, not exceeding three years, as may be provided by law.” Thereafter as recited in the Brewster case :

“On May 18, 1886, Section 1013, Revised Statutes, was so amended as to read: £ The county auditor shall be chosen triennially in each county, who shall hold his office for three years, commencing on the second Monday in September next after his election.

“Under these provisions, as amended, Fred Raine was, at the November election of 1886, elected Auditor of Hamilton county for a term of three years, to begin on the second Monday of September, 1887, thus leaving a period of ten months between the expiration of Brewster’s term and the commencement of Raine’s.”

The period of ten months unprovided for by either Constitution or statute was the cause of the litigation in the Brewster case. Other litigation also ensued following that constitutional amendment.

It was to avoid such difficulties that the framers of Article XVII, twenty years later, expressly provided in the article itself for continuity in government. They first designated which officials should be elected in even-numbered years and which in the odd-numbered years'. They next set forth “the term of office” among others of “elective county” officers “not exceeding four years.” And then in the same article they provided for vacancies and unexpired terms to be filled “in such manner as may be provided by law.” And then to be doubly sure that difficulties like those in the Brewster case should not recur they stated in Section 3 of the same article that “Every elective officer holding office when this amendment is adopted, shall continue to hold such office for the full term for which he was elected, and until his successor shall be elected and qualified as provided by law. ’ ’ Here they had no hesitancy in providing for continuity in government. Here they not only said that the officials should serve their full terms, but also, and until their successors should be elected and qualified as provided by law. Here in respect to the principle of continuity of government they wrote an exception into the Constitution itself and the people by adoption thereof put their stamp of approval upon it.

Nor is this doctrine of security and continuity in government anything new. As long ago as 1874 in State, ex rel., v. Howe, 25 Ohio St., 588, at page 599, 18 Am. Rep., 321, the same doctrine was laid down by this court in language as follows:

“This court is now called upon, for the first time, to declare the true limit of powers in this regard as between these co-ordinate branches of the government. After a careful examination of the question, in the light of both principle and authority, we are led to the conclusion that the G-eneral Assembly may provide against the occurrence of vacancies by authorizing incumbents to hold over their terms in cases where the duration of their tenures is not fixed and limited by the Constitution.
' “By this solution, public trusts and offices are preserved to the administration of those agents who may be chosen in conformity to the general policy of the , state, as declared by its Constitution and laws providing for their election or appointment; and, at the same time, all the evils contemplated as likely to result from vacancies in office are guarded against by confining the exercise of the power to fill vacancies in office to those cases where no one is- authorized by law to discharge the public' duties; which, we think, is the constitutional scope of that power.”.

"We need hardly call attention to the fact that Section 8, General Code, formerly Section 8, Revised Statutes, has been in effect for over fifty years. It has' recently received interpretation by this court in State, ex rel. Kopp, v. Blackburn, 132 Ohio St., 421, 8 N. E. (2d), 434; State, ex rel. Cox, v. Riffle, 132 Ohio St., 546, 9 N. E. (2d), 497; and State, ex rel. Kirk, v. Wheatley, supra. There 'was no vacancy in the instant case to be filled by the county commissioners. No one died who had title to the office as in Kopp v. Blackburn, supra. No one who had title resigned or otherwise quit. No one who had title was under disability or- had been removed. The only person who had title kept on serving by virtue of Section 8, General Code. As heretofore decided by this court, Kirk rightfully continues to hold the office of County Engineer of Columbiana county until his' successor is elected and qualified, and it is so ordered.

The demurrer will be sustained and the writ denied.

Writ denied.

Weygandt, C. J., Zimmerman and Williams, JJ., concur.

Matthias, Day and Gorman, JJ., dissent.

Matthias, J.,

dissenting. The issue in this case was not made nor was the question now before us presented or considered in the former case of State, ex rel. Kirk, v. Wheatley.

It is my opinion that the decision in State, ex rel. Attorney General, v. Brewster, 44 Ohio St., 589, is controlling and conclusive, and that upon the authority of that case the demurrer should be overruled unless that decision itself is to be overruled, in which action, however, I could not concur.

Gorman, J.,

dissenting. In State, ex rel. Kirk, v. Wheatley, 133 Ohio St., 164, 12 N. E. (2d), 491, this court held that Wheatley not being & registered engineer was not entitled to hold office even though he received the highest number of votes. He has since qualified as an engineer under the provisions of Section 2783, General Code.

Wheatley, in this action, claims title to the office not by reason of an election but because of an appointment made on March 7, 1938, after the county commissioners declared the office of county engineer vacant on March 4, 1938.

If Kirk had no authority to hold over under Section 8, General Code, then the county commissioners had a right to declare the office vacant and to appoint Wheatley to the position of county engineer.

Article XVII, Section 2 of the Ohio Constitution provides that “the term of all elective county, township, municipal, and school officers shall be such even number of years not exceeding four (4) years as may be so prescribed.” (Italics ours.)

It has been held not only in this state, but it is practically the unanimous finding in other jurisdictions having similar provisions, that where the term of office is fixed by the Constitution, a statutory provision that the incumbent shall hold over after the expiration of the term and until his successor is elected or appointed and qualified, is without effect if the period of time that the incumbent has served exceeds the length of term fixed by the Constitution. State, ex rel., v. Howe, supra; State, ex rel. Attorney General, v. Brewster, supra. See annotations in 97 A. L. R., 1443.

The Constitution gave the Legislature the power to fix the term of county engineer ‘ ‘ such even number of years not exceeding four.” It did not provide that the term should be four years and until a successor is elected and qualified. It did not provide that, in case of a vacancy by reason of a failure to elect, the vacancy should be filled by the incumbent who should serve until a successor was elected and qualified. Neither did it specifically nor inferentially give the Legislature the authority to make such enactments. On the contrary the Legislature was specifically prohibited from fixing an elective term of more than four years.

In the first paragraph of the syllabus in State, ex rel. Attorney General, v. Brewster, supra, this court held without any equivocation that “where the term of an office is fixed and limited by the Constitution, there is no power in the General Assembly to extend the term or tenure of such office beyond the time so limited.” (Italics ours.)

The only difference between the constitutional provision then in force was that the Legislature had the right to fix the term for a period not exceeding three years. The provisions of Section 8 of the Revised Statutes are identical with those of the present Section 8 of the General Code. Under those circumstances Brewster sought to hold over beyond his three year period until Raine would take office for a term to which he was elected.

After citing the statement in State, ex rel., v. Howe supra, that “in cases where the duration of the tenure of office is limited by the Constitution, of- course, its duration can not be extended,” Chief «Justice Owen in the Brewster case said at page 593:

“If the provision of Section 8, that any person holding an office shall continue therein until his successor is elected or appointed and qualified, is to be given the effect contended for, it is not easy to see why this is not an extension of the duration of the office by statute beyond the limitation prescribed by the Constitution.
“Section 8 is as much a general law as that providing for the election of auditors for three years, and if the two, construed together, are to be held to authorize a holding over after the expiration of the term of three years, what stands in the way of enacting them in one section instead of two? And what would be said of an enactment which, in the face of this plain constitutional limitation of three years, should provide that county auditors shall hold their offices for three years, and until their successors shall be elected and qualified?’ Would anybody seriously contend that such legislation would be constitutionally valid?
“It is certainly by a confused process of reasoning that it is contended that the same provision (Section 8), which authorizes, a holding over beyond the term and thus extends the duraton of the office, is also a provision for filling a vacancy. ’ ’

This language used by the court is somewhat extreme, and is not quoted with any purpose of disparaging the views honestly held by the majority, but rather because the reasoning employed by Chief Justice Owen seems to dispose of every contention made by the respondent.

However, in the majority opinion it is said that by the adoption of Article XVII, Sections 2 and 3, the situation has been changed since the decision in the Brewster case.

Section 3, adopted in 1905, merely provided that those holding office when the constitutional amendment changing the term of office for county officials was adopted should hold until their successors were elected and qualified. In construing that amendment this court held, that that provision was limited in its application to officers chosen or appointed under the provisions of the former constitutional provision, whose terms' of office did not expire until after the new provision of the Constitution took effect. It applied solely to those officials holding office on November 7, 1905, when the amendment was adopted. State, ex rel. Pardee, v. Pattison, 73 Ohio St., 305, 76 N. E., 946. A similar provision can be found in the Constitution of 1851, and it was given a like construction. State, ex rel. Attorney General, v. Taylor, 15 Ohio St., 137. Reference to Article XVII, Section 3, is not helpful to a decision in this controversy; nor is the statement found in Article XVII, Section 2 that “all vacancies in other elective offices shall be filled for the unexpired term in such manner as may be prescribed by law.” (Italics ours.)

In accordance with the statements which Chief Justice Owen expressed, if Section 8, General Code, authorizing a holding over beyond the term, is also a provision for filling a vacancy, Kirk would now rightfully be in office, and there would not' be any vacancy. The vacancy is created solely because Kirk has served the length of time which .the Constitution permits. If Kirk had served less than four years by reason of an appointment, a vacancy would not have existed.

A review of the cases and the constitutional provisions must, of necessity, lead to the conclusion that a county official cannot hold over beyond a four-year term for which he was elected, although there are instances where, if he had been appointed for an unexpired term to fill a vacancy, he may hold over under the provisions of Section 8, General Code.

Continuity in the management of governmental affairs is a worthy objective. To achieve this continuity neither the Legislature nor the court can decree that county officers shall serve for four years and until their successors are elected and qualified, when the Constitution specifically provides their terms shall not exceed four years.

With due deference to the majority, the effect of this decision is to overrule holdings of this court made as early as 1874, and which have been consistently followed by courts not only in this state but likewise in practically every state having a similar constitutional provision. The demurrer should have been overruled.

Day, J.,

concurs in the foregoing dissenting opinion.  