
    (Second Circuit — Franklin Co., O., Circuit Court
    January Term, 1891.)
    Before Shearer, Stewart and Shatjok, JJ.
    The State of Ohio ex rel. Charles S. Cherrington v. Wm. S. Connor.
    1. A secretary of a Board of Elections, appointed by the governor in pursuance of section 29266, Bevised Statutes, as amended April 13,1889, (86 Ohio L. 281), is entitled to hold his office for and during the term for which he was appointed, unless removed for cause as provided in said act.
    2. Unless a vacancy occurs in said office, by reason of the death, resignation, removal for cause, or the expiration of the term, of such officer, such board has no power to elect his successor.
    3. The amendment of said act, passed April 28, 1890, (87 Ohio L. 359), in no wise affects the title of such .secretary, so appointed, to said office; and an attempt of the Board of Elections, where no such vacancy exists, to elect a successor of such officer, is illegal and void.
    Q,UO WARRANTO.
    
      The petition, in substance, gives the court to understand and be informed that the office of secretary of the Board of Elections, of the city of Columbus, is a public office ; that on the third day of September, 1889, the relator, a duly qualified elector of said city, was, by the governor of Ohio, under the authority of section 29266, Revised Statutes, as amended April 13, 1889, duly appointed secretary of the Board of Elections of said city, for the unexpired term ending May 31, 1891, and that he thereafter duly qualified and entered upon the duties of said office, and performed the same up to the time of the .usurpation thereof, and his exclusion therefrom by the defendant ; that he is now entitled to exercise the powers and authority, and to perform the duties and receive the emoluments of said office. That the defendant, William S. Connor, on or about the fifteenth day of July, 1890, intruded into and usurped, and ever since has usurped, and now unlawfully, holds said office, and assumes, as such officer, to exercise the powers and authority, and to perform the duties, and to receive the emoluments thereof to the exclusion of, and against the rights of the relator, under the claim that he is the legally appointed secretary of said board as successor of the relator, by virtue of certain acts of certain members- of said board hereafter set forth.
    That on the eleventh day of July, 1890, said board consisted of four members, all appointed by the governor for their several terms, prior to the twenty-eighth day of April, 1890. That on said eleventh day of July, 1890, three members of said board — the fourth being absent — met at the office of the board, and assuming to act under authority of sections 29266 and 2926c, Revised Statutes, as amended April 28th, 1890, and each of which, relator ■ avers, is unconstitutional and void, attempted to elect a successor of the relator. That three members balloted twenty-seven times, the relator receiving two of the votes cast on each ballot;' and two hours having then elapsed, and assuming that there had been no election, said members attempted to choose a secretary by lot; and, lots having been cast, declared defendant-chosen, thereby as secretary of said board to succeed the relator; and that defendant thereupon took and filed the oath of office by the statute prescribed, andón the fifteenth day of July, 1890, demanded of relator possession of said office and the books and records belonging thereto, which demand relator refused; and thereupon said defendant intruded into said office and took possession thereof, and of the books and records thereof, against the will and under the protest of the relator, and excluded the relator therefrom, and proceeded to the exercise of the powers and duties of said office, and holds the same, and assumes to exercise such authority and duty, without any legal right, and against the rights of the relator, to the damage and prejudice and against the dignity of the state of Ohio.
    The prayer is that the defendant be required to answer by what warrant he claims to have, hold and exercise said office, and that he be adjudged not entitled thereto, and that judgment of ouster be pronounced against him, and that relator be adjudged entitled-to said office and its franchises.
    The answer contains no allegation or denial of fact. It is but a denial of the legal effect of the averments of the petition, and' is in effect a demurrer thereto.
    To this answer a demurrer is interposed, which raises the question as to the sufficiency of the petition.
   Shearer, J.

In the view we have taken of this case, it is necessary to consider only one of the many questions made in argument, namely: Did the amendment and repeal of sections 2926b and 2926c, Revised Statutes, authorize the action of the board complained of?

The original section 2926b, passed April 13, 1889 (86 Ohio L. 282), enacted that the governor shall appoint a secretary of such board, who shall be an elector of said city, fully qualified for such place, and who shall hold the same for the term of four years; but he may, for official misconduct, be removed by said board ; the governor shall appoint his successors, each for tbe same term of years, and in the case of the death, resignation, or removal of the secretary, shall fill the vacancy for the unexpired part of such term.”

The language just quoted constitutes the whole of the original provision in respect to the appointment of the secretary.

The provision of the amendatory section, passed April 28, 1890, is that “a secretary of such board shall be appointed by the members thereof, who shall be an elector of said city, fully qualified for such place, and who shall serve the same for the term of four years; but he may for official misconduct be removed by the board; the. board shall appoint his successors, each for the same term of years, and in case of the death, resignation or removal of the secretary, shall fill the vacancy for the unexpired part of such term.” Thus it is seen that the last quoted section, which repeals and amends original section 29266, differs from the original only as to the officer vested with the appointing power. In other words, the amendment takes the power of appointment from the governor and vests it in the members of the board. The office is not abolished, nor is the term of the incumbent affected. His successor cannot be appointed until the expiration of the term for which he was appointed, unless he shall die, resign, or be removed for cause.

This view finds support in section 2926c, passed on the same day as the section above mentioned, and which amended and repealed original section 2926c. This section provides that the members of the board shall meet within ten days after their appointment * * * and organize by electing one of them president by ballot, and they shall also at that, time elect a secretary, as provided in sections 29266 and 2926c.”

These members must meet within ten days after their appointment ; but the mayor cannot appoint until a vacancy occurs in the office of a member by the expiration of his term — he being continued in office for his existing term by the express provision of section 29266. (87 Ohio L. 359.)

So it is clear that it is the members who shall be appointed by the mayor — who alone is invested with that power — who ■are to elect a secretary. The members who assumed to elect a secretary as successor to the relator were not appointees of the mayor. They held by virtue of the appointment of the governor, and, if need be, by the saving clause of section 29266. They are not the “ members of the board ” who are directed by the statute to meet' within ten days after their appointment at the mayor’s office, etc., for the organization of the board and the election of a secretary, nor could they comply with this requirement; for they had been in office many times ten days before the passage of this act.

The enactment of the sections under review did not, and was not intended to, operate, as an appointment of the members of the board, as members of the board provided for by the act. To so hold would require us to declare such enactment to be void as contravening section 27, article II of the constitution, which provides that “ no appointing power shall be exercised by the general assembly, except as provided in the constitution and in the election of United States senators.” Unless plainly so, courts will not hold a statute to be unconstitutional.

When a new board is appointed after the expiration of the terms of the members in office when the acts under consideration were passed, they may elect a secretary; but the present board had and has no power to choose such an officer, except in case of death, resignation or removal for cause, of the lawful incumbent, or the expiration of his term.

The action of the board in assuming to elect a secretary as alleged in the petition, was in disregard of section 8, Revised Statutes, which provides, that “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.”

The relator was “holding an office” and was entitled to “ continue therein ” until his successor was legally chosen and qualified, unless it is otherwise provided in the constitution and the laws. And we are clear that it is not so otherwise provided.” This is in-accord with the doctrine of The State ex rel. v. Michael Kerns, 24 Law Bulletin, 47 6, to appear in 47 Ohio St.

Oharles S. Qherrington, for relator.

Powell, Owen, Ricketts & Black and Geo. K. Nash, for defendants.

The action of the members of the board in attempting the election of a secretary was a nullity, and in no wise affected the relator’s title to that office.

The other questions argued, being unnecessary to this decision, are not passed upon.

The demurrer to the answer will be sustained; and, it will bé adjudged that the defendant be ousted and altogether excluded from the office of secretary of the Board of Elections of the city of Columbus; that the relator, be inducted into said office, and that he recover his costs.  