
    The State ex rel. v. Wright.
    
      Mayor of Municipal corporation^ Serves uutil successor qualifies— Extent of authority of jury to try election contests—
    1. A mayor of a municipal corporation who has been regularly elected to the office, is entitled to serve until his successor is qualified ; and while he continues to so serve on account of a failure to elect his successor, there is no vacancy in the office, nor is the council authorized to make an appointment thereto.
    2. The jury selected to try a contested election case instituted by' a rival candidate against one who has, by the proper authority, been declared duly elected to the office of mayor at a regular municipal election, is authorized to decide, and should determine which of the candidates was elected, or, that there was no valid election of either, as the facts may warrant; a finding that the contestee did not receive a majority of all the legal votes cast at that election, and a decision that, therefore he was not elected to the office, is incomplete, and insufficient to defeat his title to the office.
    (Decided June 22, 1897.)
    Error to the Circuit Court of Darke county.
    Action in quo -warranto was brought in the circuit court, to oust the defendant from the office of mayor of the city of Greenville, and induct the relator therein.
    The petition is as follows:
    “Prank Bachman now comes and gives the court to understand and be informed: That the relator was, on the 5th day of April, 1897, and has ever since been, a resident and an elector of the city of Greenville , of the county of Darke* and state of Ohio, and over the age of twenty-five years, and eligible to be elected to and hold the office of mayor of said city. That at the general municipal election held in the month of April, 1895, for the election of municipal officers for the city of .Green-ville, Darke county, Ohio, among other officers elected at said election, was mayor of said city. The defendant, Edwin Wright, being a candidate for said office of mayor, was duly elected to said office at said election, and that thereafter, to-wit: on April 15, 1895, he was duly qualified as such officer, and entered upon the discharge of the duties of the same, and has so continued to act ever since. That at the general municipal election held in said city, on April 5, 1897, said Edwin Wright stood as a candidate for election to the office of mayor of said city of Greenville, and this relator, Frank Bachman, also stood as a candidate for election to said office of mayor of said city, and that they were the only candidates for said office at said election, and the only persons voted for at said election for mayor; and that the judges of said election, and other election officers and canvassers of the votes, tally-sheets and ballots thereof, found and declared that said Edwin Wright was elected to said office of mayor of said city, by one majority. And that thereaftei', to-wit: on April 9, 1897, said Frank Bachman, deeming it proper to contest the election of said Edwin Wright, so declared elected to said office of mayor made the same known to the Probate Judge of said Darke county, Ohio, within ten days after said election, and in writing he specified the points on which he, as contestor, meant to contest said election. And said judge of the said probate court communicated the same to the said Edwin Wright, specifying the name of the contestor, and the points on which the contestor relied, and cited him to appear for the trial of said contest on the 15th day of April, 1897, at hjs office in said county, after giving him more than five days’ notice of said contest. And that said probate court, on the same day that he issued a notice to said Edwin Wright, whose election was to be contested, appointed three respectable freeholders of said county of Darke, to try said contest, none of whom were residents of the township of Greenville, said Greenville township being the township in which the said citv of Greenville is situate; and that said freeholders were summoned to appear at the day appointed for the trial of said contest, and that said jury of freeholders appeared according to summons, and were sworn to try said contest agreeable to evidence. And after said jury of freeholders had heard the evidence adduced by the contestator and the eontestee, and arguments of counsel, the freeholders, after deliberation, signed their decision, which was in the words and figures following, to-wit: ‘In the Matter of the Contest by - Frank Bachman of the Election of Edwin Wright as Mayor of the City of Greenville, Darke county, Ohio. Darke Probate court. No. 7868. Decision of Jury. We, the undersigned freeholders, summoned and qualified as jurors herein, to try the contest by Frank Bachman of the election of Edwin W right, as mayor of the city of Green-ville, Darke county, Ohio, do find the facts against the said Edward Wright, and do find that he did not receive a majority of all the legal votes cast at said election, in said city, held April'5, 1897. It' is therefore our decision, that Edwin Wright was not elected to the office of mayor of said city, at said April election.
    Edward MpCuE,
    Matthew Glunt,
    Wm. Flaig.
    Attest: J. M. Bickel, Probate .Judge.’
    
      CERTIFICATE.
    ‘The State of Ohio, Darke County.
    ss. Probate Court.
    I, J. M. Biekel, judge and ex-officio clerk of the probate court within and for the county of Darke, and state of Ohio, do hereby certify, that the foregoing is a true copy of the decision of the jury in the matter of the contest bv Prank Bachman, of the election of Edwin Wfight, as mayor of the city of Greenville, Darke county, Ohio, as the same appears upon the records of said court; and I further certify, that I have carefully compared the foregoing copy with the original record, and that the same is a full and correct transcript thereof.
    In witness whereof, I have hereunto set my hand and affixed the seal of said probate court, at Greenville, Ohio, this 2d day of April, A. D., 1897.
    J. M. Bickel,
    Probate Judge of said Court.’
    Which decision is unreversed and unmodified, and is in full force. And that said probate judge after attesting the same, and within three days thereafter, transmitted a copy of such decision to the clerk of the city of Greenville. Said relator alleges further, that on April 22, 1897, at a special meeting of the council of the city of Greenville, Ohio, convened according to law at their usual place of meeting, and having before them a copy of said decision of said jury of freeholders, so transmitted to the said clerk by the probate judge, did find that there was a vacancy in the office of mayor of said city, and did then and there, in said session, by a vote of a majority of the members of the council in and for said city, appoint said Prank Bachman, this relator, to act as mayor and discharge the duties of said office, and that said Frank Bachman, then and there presented a bond in the sum of one thousand dollars (SI,000), with four good and sufficient sureties, which bond was then and there approved and accepted by said council of said city; and thereupon, at said time and place, said Frank Bachman, took the oath of said office, which was administered to him by a justice of the peace, in and for said county of Darke. Thereupon said Frank Bachman, said relator, after -being so appointed and qualified, proceeded to the mayor’s office provided for him by the council of said city, and did then and there request and demand of said Edwin Wright, this defendant, that he turn over to him Frank Bachman as such appointed and qualified mayor of said city the seal, books, papers, and other property belonging to the office of mayor of said city and that said Edwin Wrig’ht, defendant, then and there declined and refused to comply with said request and demand, and insisted, and still insists upon acting as the mayor of said city, performing the duties and functions pertaining to said office. Said relator alleges further that on the 22d day of April, 1897 the defendant usurped the said office of mayor of said city, and has since held, and does still hold and receive the fees and emoluments thereof, amounting to the sum of $--, and has during the said time wrongfully and unlawfully kept this relator out of the possession of said office, and deprived him of the said fees and emoluments, to his damage in the sum of twenty-five dollars ($25.00). Wherefore, the relator demands judgment for the said sum of twenty-five dollars ($25.00) damages, and that the defendant be ousted from said office, and the relator have possession thereof awarded him.”
    
      The circuit court sustained a general demurrer to the petition, and rendered judgment against the relator for costs. The reversal of that judgment is sought here.
    
      Anderson <£¡ Bowman; Williams c& Krickenberger and A. O. Robeson, for plaintiff in error.
    This case is not one to review the finding of the freeholders. Their decision was explicit, and settled the question which was submitted to them, and that is, was Edwin Wright elected mayor, or was he not elected mayor? The freeholders decided the question that he was not elected mayor. There was no question submitted to them to ascertain how many votes he had received, and there was no statute requiring them to make a finding of how many votes either candidate had received at said election for mayor. So that, for the purpose of this ease, the decision that Edwin Wright was not elected mayor at the April election, 1897, must stand as final. State ex rel. v. Marlow, 15 Ohio St., 114.
    It will not be contended by any one that the appointment of the relator to act - as mayor could be for a period longer than the next annual -municipal election. And the right to make the appointment is claimed under section 1754, of the Revised Statutes.
    The court will take judicial notice of the existence of the corporation of the city of Greenville, and that it is a city of the second class. Rev. Stat. of Ohio, section 1587.
    Concerning the election of municipal officers see Revised Statutes of Ohio sections, 1709, 1723, and as to contest, section 1731.
    
      The provisions of the statute relating to contest of election of justices of the peace are found in sections 572 to 578, inclusive.
    Owing to the peculiar method provided by the statutes for the contest of the election of justices of the peace, but one result could follow the decision of a contest against the contestee, viz: That he was not elected to the office. Thus far, there can be no serious contention as to the effect of a proceeding to contest the election of mayor. State ex rel. Worthington v. Cist, 5B., 422.
    We also ask the ' consideration of the court of sections 8, 11, 19, 1724, 1740, 1754, Rev. Stat. 1880, sections 1709, 1713, and 66 O. L., 160, section 62, 66; 74 O. L., pp. 74, 75; 91 O. L., L72.
    It will not be disputed that “terms of office” are distinctly recognized in the Municipal Code. Offices were not to be filled except for definite “terms.” States. Cook, 20 Ohio St., 252.
    In the light of the decisions of this court, if some person other than the defendant had been elected Mayor of Greenville, and had given bond, and taken the oath of office, and before obtaining possession of the office had died, there would be a vacancy in the office for the purpose of exercising the appointing or electing power, notwithstanding the defendent is in office and entitled to serve.beyond his term. And in the case last supposed, it would not be necessary for the person so elected to give his bond and take the oath of office prior to his death in order that the office might be considered vacant. State v. Hopkins, 10 Ohio St., •509; State ex rel. v. McGregor, 44 Ohio St., 628; State ex rel. v. Albert, 55 Kans., 154; The State ex rel. v. Thomas, 102 Mo., 86.
    
      No distinction in this regard is to be taken between a resignation and the expiration of the time fixed for the holding of the office. A resignation and its acceptance end the term of office the same as the expiration of the time of the tenure of the office itself, and no more effectually. People v. Supervisors, 100 111., 332; Badger v. U. S. ex rel. 93, U. S. 599; State ex rel. v. Stonestreet, 99 Mo., 376; State v. Harrison, 113 Ind., 434; State v. Cocke, 54 Tex., 482.
    The collector of taxes was elected and failed to qualify. Such office was held vacant and filled by appointment. County v. May nor d, 44 la., 15.
    In matters of contest (in case of this sort), the election by the people, as certified by the canvassers of the votes, is nullified or let stand. 5. B., 422; Reiter v. The State, 51 Ohio St., 74.
    
      J. I. Allread; J. R. Knox; II. M. Cole ; I). L. Gas-kill; T. C. Miller and IK. Y. Stubbs, for defendant in error.
    The mere declaration of the appointing power creates no vacancy. The vacancy must actually exist. State ex rel. v. Howe, 25 Ohio St., 588.
    ■ Right to hold over until successor is elected and qualified. Section 1709 provides that all elective officers of municipal corporations shall serve for two years.
    Section 1713, as amended, 91 O. L., 172, provides: “That unless otherwise provided, all municipal officers shall serve until their successors are qualified.”
    The general policy of the law as to holding over is contained'in section 8, which provides:“ Any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified unless it is otherwise provided in the constitution or laws. ” State ex rel. v. Kearns, 47 Ohio St., 566.
    There, is no distinction between the ease at bar and the case of the .member of council as will be noticed by comparing sections 1673 and 1724 with the sections here involved. State ex rel. v. Caldwell^ recently decided in this court); 44 Ohio St., 465; 12, c. c. 235.
    If the incumbent has the lawful right to hold over until his successor is elected and qualified there can be no vacancy. State ex rel. v. Howe, 25 Ohio St., 588; State ex rel. v. McCracken, 51 Ohio St., 123; Mechem on Public Officers, section 129-130 -131; State ex rel. v. Meilke, 81 Wis., 574; People v. Edioards, 93 Cal., 153; State ex rel. v. Harrison, 113 Ind., 434; State ex rel. v. Hadley, 64 N. H., 473.
    The incumbent’s term is two years, and until his successor is elected and qualified.
    There having been therefore, no successor elected at any general or specific election provided by law, the term of the incumbent still continues. And failure to elect a successor or irregularity which defeats the election does not create a vacancy. State ex rel. v. Governor, 7 Ohio St., 372.
    The only authority which the city council have in the matter of appointment is conferred by section 1754: It is not claimed that this ease falls within the direct terms of section 1754, or any other section of the statute. The claim is made, however, that it is within the general clause, “other vacation of his office.”
    Did the contest proceeding create a vacancy within the meaning'of section 1754? The right to hold over being given in case of a municipal office, the decision setting aside the election did not create a vacancy in the absence of some direct provision of law so declaring. State ex rel. v. Hophim, 10 Ohio St., 509; State ex rel v. McGregor, 44 Ohio St., 628; 7 Ohio St., 372.
    Bachman, the relator, does not seek the office by right of election. He claims the right by appointment of the city council. He does not seek to have a choice of the people at a new election, but seeks to have the court confirm his right to the office in face of the adverse decision of the people as declared under the safe guards of the Australian ballot law by bi-partisan election boards.
    The theory of the relator is that, although, the legislature deliberately provided for a system of contest for municipal offices in the minor cities which can not induct the defeated candidate into office or try his title thereto, yet he may without election and in spite of defeat receive the office, after contest, by right of appointment.
    The theory of the defendant is that the setting aside of the election has the same effect as if there had been no election for mayor, and the incumbent whose title to the office by choice of the people for the term of two years and until his successor is-elected and qualified, will continue until such successor ■ is so chosen -at a legal, special or general election. State ex rel. v. ForaJcer, Governor, 46 Ohio St., 667.
   Williams, J.

The facts, as far as they are important in the consideration of the questions made in the case, are, in substance, that at the regular municipal election held in the spring of 1895, the defendant was duly elected to the office of mayor of the city of Greenville, for the full and lawful term ensuing; and was the incumbent of the office, ' serving on his term, when the general municipal election was held in April, 1897, at which he was a candidate for re-election. He was declared by the proper authorities to have been re-elected to the office, and has continued to hold the same. At that election the relator was also a candidate for the office, and the only competitor of the defendant therefor; and being dissatisfied with the declared result, he instituted a proceeding to contest the election, which resulted in "a finding*, by the tribunal trying the contest, that the defendant “did not receive a majority of all the legal votes east at said election, held April 5, 1897,” and for that reason he “was not elected to the office.” Thereupon, the council of the city, upon receiving a copy of the decision, concluded there was a vacancy in the office of mayor, and appointed the relator to fill it, who, accordingly, took the oath of office, executed an official bond, and demanded possession of the office, which the defendant refused to surrender.

The case turns upon the legal effect of the proceeding to contest; the relator claiming that it resulted in producing a vacancy in the office which the council was authorized to fill by appointment, and consequently he is entitled to the office; while the claim, of the defendant is that no such vacancy occurred.

The constitution enjoins upon the general assembly the duty of providing by law, “before what authority, and in what manner, the trial of contested elections shall be conducted;” and by section 1731 of the Revised Statutes, the election of mayor, except in the cities of the first grade of the first class, “may be contested in the manner provided for contesting the election of justices of the peace.” The election of any person declared elected to the office of justice of the peace, maybe contested by any candidate, or elector of the township in which the election was held, by making application for that purpose to the probate judge of the county, within ten days after the election, stating the points on which the contestor relies. A time is then fixed by the judge for the hearing, notice given the person whose election is contested to appear, and the judge selects three respectable freeholders of the county to try the contest. Revised Statutes, sections 572, 573. Section 575, provides: “The jury of freeholders shall be sworn, to try Such contest agreeable to evidence, and no evidence shall be admitted but such as relates to the points stated in the notice; and when the trial is closed, the freeholders shall sign their decision, which shall be attested by the probate judge; and if, by such decision, there is a vacancy in the office of the justice of the peace, the judge shall, within three days thereafter, transmit a copy of such decision to the trustees of the township, or the clerk thereof, if there be no trustees, who shall forthwith give notice to the electors to fill such vacancy as in other cases; and if, by the decision, the election remains good, he shall transmit the same to the clerk of the court of common pleas, who shall immediately proceed as if no contest had taken place.” Section 576, contains the provision, that the election shall not be set aside because illegal votes were cast, “if it appear that the person whose election is contested, has the greatest number of legal votes given at such election after deducting all illegal votes given, when there is no evidence for whom such illegal votes were given, as well as all illegal votes which are shown to have been given for the person whose election is contested.” And, it is provided by-section 578, that: “If the contestor fail in setting-aside the election, he shall pay the costs, and the judge or justice, as the case may be, shall render judgment, from which there shall be no appeal, and issue execution for the same to the sheriff, or any constable of the county; but if the election is set aside, the township in which said election was held shall pay the costs.”

The foregoing are all the statutory provisions affecting the manner of the contest and the proceedings subsequent to the decision, which it is important to notice and it is claimed from them, by counsel for the plaintiff in error, that the jury selected to try the contest is limited in its powers, to the decision of the question whether the contestee was elected, or not. In support of this position, a decision by the district court of Hamilton county, in the case of State v. Simpson, reported in 5 W. L. B., 422, is cited, where that construction appears to have been placed on the statutes; though, in that case, the only question involved, was whether a decision that the contes tee was not elected, was in legal effect a decision that the contestor was elected. The latter claimed title to the office solely on that ground, and not as an appointee to a supposed vacancy resulting from the decision of the contest.

While we think it is clear the position taken by the relator in that case was not tenable, and the ease was properly decided against him, we entertain a somewhat different view of the statute from that there expressed. Assuming, however, that as counsel contend, the effect of the decision of the contest in this case is, that at the April election of 1897, there was a failure to elect a suecessor of the defendant to the office of mayor, the question is presented whether a vacancy of the office was thereby occasioned which the council •was authorized to fill by appointment. It is not doubted that a vacancy occurs where, in a contest of the election of a justice of the peace, it is determined that there has been no valid election of a successor to a justice whose term then expired; because, by the constitution, the term of office of justices of the peace is limited to three years, and they are without authority to hold beyond the expiration of their term. Hence, provision is made by section 575, for filing such vacancy by special election. The constitution, however, prescribes no limit to the terms of municipal officers, but has' invested the legislature with full discretionary power over the subject. That body has enacted: “That unless otherwise provided, all municipal officers shall serve until their successors are qualified. Revised Statutes, section 1713, (91 O. L., 172.)” It is not otherwise provided with respect to the office of mayor, so that, his lawful term, expressly fixed by statute, is not only for two years^ but also until his successor shall be qualified. His right to serve after the expiration of the designated period, until the qualification of his successor, being conferred by statute at the time of his election, is no less a part of his statutory term of office, than is the fixed period itself; and while he is so serving, there can be no vacancy in the office; in any proper sense of the term, for there is an actual incumbent of the office legally entitled to hold the same. As was said by McIlvain, J., in State v. Howe 25 Ohio St., 588, 596, “the incumbent continues in office, not as a mere de facto officer or locum tenens, but as its rightful possessor until such successor” is duly chosen and qualified. And by a successor, is not meant a mere temporary appointee, but one regularly chosen in succession to the office, to take the place of the predecessor on account of the cessation of his right of occupancy. Among other cases which support this view are, State v. Bryson, 44 Ohio St., 458, 465; State v. McCracken, 51 Ohio St., 124, 129; People v. Tilton, 37 Cal., 614. The-rule applicable to cases like the one before us is, therefore, that where an officer elected by the people is authorized to hold the office for a fixed period and until his successor is qualified, a failure to elect a successor does not create a vacancy to be filled by appointment under a general authority to fill vacancies. If the council had made no appointment, the right of the defendant to continue in the occupancy of the office until a successor should be elected and qualified, would be indisputable; it could not plausibly be claimed that a vacancy existed; and if not, it must follow that none was produced by the expiration of the designated term, or the failure to elect .a successor. And it is not apparent how any action of the council in making an appointment to the office, can operate to create a vacancy to be so filled, where none otherwise existed, unless that power be expressly conferred by statute. The appointive power exercised by the council in this case, is sought to be maintained under section 1754, of the Revised Statutes, which provides that: “In case of the déath, resignation, disability or other vacation of his office, the council may * * * appoint some suitable person, within the corporation to act as mayor and discharge the duties of the office until the vacancy is filled or the disability removed.” In the case of the death, resignation, or disability of the officer, the office is left without an occupant, there is an actual vacancy in the office; and under familiar rules of construction, it may well be' claimed that the phrase “other vacation of his office, “refers to other cases of actual vacation, similar in character to those previously mentioned, such as leave the office without an incumbent. Nothing is found in this section of the statute which empowers the council to declare a vacancy where none exists; and, as has already been observed, no vacancy existed in the office of mayor, actual or legal, when the relator was appointed.

It is argued that by force of the provisions of section 575, a vacancy resulted from the decision of the election contest; and, that section having special application to such cases, they are governed by it rather than by general provisions of the statutes. If this were so, then, according to such special provision, the vacancy must be filled by special election. There is no authority given to fill it by appointment. But, the statute makes applicable to contests of elections of municipal officers, the provisions of the statute governing the contests of elections of justice of the peace, only in so far as they relate to the manner of conducting the contest. The proceedings . subsequent to the decision of the contest, are no part of the manner of the contest, and consequently have no application to contested municipal elections. Hence, no provision is made for certifying the result of the contest to the council, or clerk of a corporation; and the absence of such provision, clearly shows that it was not within the legislative purpose that there should be any action by the council, or other municipal officers, founded upon the decision of the contest, either in the way of making appointments to the office, or otherwise, except as authority may have been conferred by other statutory provisions. Upon the theory of the cases as argued for the relator with regard to the effect of the decision of the contest, his petition shows no right to the relief he seeks.

We are also of opinion that the powers and duties of the jury selected'to try the contest are ■ not so limited as has been suggested. Ordinarily, the trial and decision of a contested election case between two persons who were rival candidates for the same office, involves the hearing and determination of all questions, within the specified points of contest whien affect the rights of the respective parties to the office in controversy, and necessarily a determination of those rights. It may be, in certain cases, that for lack of compliance with the law, no valid election has been held; or, that when the election has been purged of frauds and mistakes neither party has received the votes necessary to his election; and in either ease, the contest ends in simply setting aside the election. But where one or the other of the candidates has been legally elected to the office, the decision should so declare, and put an end to the controversy; and the power to do so, is included in the power to try and decide the contest, unless it is excluded by, or is inconsistent with some express provision of the statute. The clauses of the statute which are supposed to place the limitation contended for on the powers of the tribunal trying the contest, are those which provide that, “if by the decision there is a vacancy in the office of the justice of the peace;” and, “if by the decision, the election remains good;” and the further provisions that the election shall not “be set aside on account of illegal votes,” etc., and if the contes tor fail “in setting aside the election, he shall pay the costs;” but “if the election is set aside, the township shall pay the costs. ” From these provisions it is argued, that the only deci- - sion contemplated, is one setting aside the election, or one sustaining the title of the contestee. It is evident the statute does contemplate and authorize either of those decisions, as the facts proven may warrant. But it contemplates something more. If the decision be that the contestor was elected, the-election is not set aside, but remains good as well as if the decision be in favor of the contestee. Neither of the statutory provisions referred to, while applicable to the cases mentioned, nor any other that has come under our notice, prescribes any limitations on the power to try and decide the contest; which power is conferred in general terms, broad enough to authorize and require a complete determination of every 'question involved in it. This being so, the contest between the relator and defendant has not been decided. The decision that the defendant was not elected, is not a decision that the relator was: nor, is it a decision that no valid election was held. And the contest proceeding remaining'incomplete, the title of the defendant to the office is unaffected thereby. There is now no way to remedy the omission. The freeholders selected to try the contest having signed their report and been discharged, cannot be re-assembled for further action; and the time for instituting another contest is past. Again, the report of the freeholders as set out in the petition, can scarcely be regarded as a decision that the defendant was not elected to the office from which it is sought to oust him. They simply find, “the defendant did not receive a majority of all the legal votes cast at said election in said city, held April 5, 1897,” and, “therefore” decide that he was not elected. It was not essential to the defendant’s election that he should have re-, ceived a majority of all the legal votes east at that „ election; it was sufficient if he received a greater number of legal votes than was cast for any other candidate for the office; and there is no finding-or decision, directly, or by fair implication, that he received a less number of legal votes. The decision that he was not elected, is a conclusion founded on a statement of facts not sufficient to warrant or sustain it; and being- expressly placed on that state of facts, excludes any inference that it may have been based on other facts not found. In order to deprive a person of an office to which he has been declared elected by the duly constituted election officers having that authority, and to which he. bears the customary evidence of his title, the decision of a contest instituted against him should^ show on its face, with reasonable certainty, that he was not elected. We do not say it is required that the grounds of the decision be stated; but when they are given, and the decision is expressly placed upon those stated, it will not be presumed there were others not stated, on which it might have been placed; and where, in such case, the facts on which the decision rests are insufficient to warrant it, the decision cannot be sustained.

Judgment affirmed.  