
    State ex rel. Wilmot et al. v. Buckley et al.
    
      Election laws — Board of elections — How constituted — Section %9%6b Revised Statutes — Requirement of uniformity of operation— Invalidity of Act of April 16, 1896 — Effect of failure ofiepealing act — Section 6786 Revised Statutes — Constitutional law.
    
    1. When an act of the general assembly, required to have uniform operation throughout the state, expressly excepts from its operation one or more cities or counties, such act by reason of such exception is unconstitutional and void.
    2. Such an exception can not be held invalid and thereby extend the act over the excepted territory, because in such a case the general assembly never enacted the statute in such territory, and the court has no power to enact it therein.
    3. Section 29265, 92 O. L., 166, Revised Statutes, excepts from its operation the city of Mansfield and cities of the fourth grade of the first class and is therefore unconstitutional.
    4. The said section being inoperative, the repealing section contained in the same act is also inoperative, and this leaves said section 29265, as amended April 28, 1890, 87 O. L., 359, in force.
    5. While the election laws for cities may be valid under the doctrine of classification, that doctrine does not extend to counties, and election laws for counties are required to have uniform operation throughout the state.
    
      6. In view of this holding, it is the duty of the state supervisor of elections to appoint deputy state supervisors under the statute, for the territory in each county lying outside of any city in such county.
    7. The three years statute of limitations in section 6789 is for the protection of an officer who is in office under an existing commission, and he can not tack a former term of office to his present term, so as thereby to bring himself within the limitations of that section.
    8. The three years limitation under that section is only for the protection of officers, and not for the protection of boards as distinguished from the officers composing them.
    (Decided May 9, 1899.)
    Error to the Circuit Court of Cuyahoga county.
    The petition of the plaintiff below is as follows:
    “Theodore E. Strimple, prosecuting attorney of the county of Cuyahoga and the state of Ohio, on the relation, of E. P. Wilmot of the township of Chagrin Falls in the county of Cuyahoga, and state of Ohio, and of George P. Kurtz of the city of Cleveland, in the county of Cuyahoga and state of Ohio, who are both citizens and electors of the county of Cuyahoga and state of Ohio, gives the court to understand and 'be informed that the defendants, Hugh Buckley, Charles P. Salen, Edward Etzensperger and Edward C. Kenney, under the claim that they constitute the board of elections of the city of Cleveland, are usurping and intruding into the office of appointing -registrars of elections, judges and clerks of election, and other clerks, officers and agents in and about elections, and of designating the ward or precinct in which such judges and clerks shall serve; and of appointing the place of registration of electors and the holding of election in each ward and precinct in Cuyahoga county; and of providing and furnishing ballot boxes to be used at elections, and all books, blanks and forms for the registrations and elections in said county; and of issuing notices, advertisements and publications with respect to election; and of making rules, regulations and instructions for the governing and guiding of registrars of election and judg’es and clerks'*of election, and of dividing, defining and proclaiming tbe election precincts jin said county, and generally, under tbe said claim that they constitute tbe said board of elections of the city of Cleveland, of performing and exercising, throughout the county of Cuyahoga, the duties and powers vested by law in the deputy state supervisors in and for said county. Said defendants are so as aforesaid doing the things aforesaid and assuming the authority and powers aforesaid without legal right, in this, that there is no authority in law for said doings and assumptions.
    Wherefore the relators pray that the said defendants be required to. answer by what warrant they claim to have, use, exercise and enjoy said office aforesaid, and that they be adjudged to be so acting and assuming authority without authority of law, and that they be ousted and altogether excluded from said office, and that the relators recover their costs.”
    The answer is as follows :
    “Now come the defendants and make answer to the petition herein, and show to the court by what warrant they lawfully constitute the board of elections of the city of Cleveland, and by what authority they exercise the powers and do the things complained of in the petition, by the denials and allegations following’:
    
      First Defense — The said city of Cleveland, situate in said county of Cuyahoga, is, and for more than ten years has been a city of the first class, second grade. On the thirty-first day of March, 1891, and for a considerable time prior thereto, W. M. Bayne, Victor Gutzweiler, J. H. Schneider and the defendant Hugh Buckley, constituted the board of elections of said city, having been theretofore appointed thereto by the governor, pursuant to section 29265 of the Revised Statutes of Ohio. On said thirty-first day of March, 1891, said J. H. Schneider resigned his office as a member of said board, and one P. W. Rice was duly appointed a member of said board, for and during the unexpired part of the term of said Schneider, the first day of June, 1892, the terms of said Bayne and Rice expired, and they were re-appointed to their said office. On the twenty-ninth day of May, 1894, the terms of said Buckley and Gutzweiler expired, and said Buckley was re-appointed, and one Carl Clausen was appointed to the said office. On the third day of June, 1896, the terms of said Bayne ani Rice expired, and the defendants Edward Etzenspergér and Edward C. Kenney were appointed to the said office. On the sixth day of June, 1898, the terms of said Buckley and Clausen expired and said Buckley was re-appointed and the defendant Charles P. Salen was appointed to the said office.
    Each of said appointments, made on and since March 31, 1891, was made by the mayor of said city, and was made pursuant to, and by virtue of an act of the General Assembly of the state of Ohio, entitled ‘ ‘ An act to amend section 29265 of the Revised Statutes, as amended April 13, 1889 (86 v. 281, 282), ” passed April 28,1890, and found in 87 O. L., 359, and subsequent amendments thereof, including an act entitled “An act to re-enact and amend section 29265 of the Revised Statutes of Ohio, and to enact supplementary section 2926&-1, and to re-enact and amend section 2926i of the Revised Statutes, as amended April 13, 1889, as amended April 28, 1890,” and found in 92 O. L., 166, passed April 16, 1896. Each of said appointees all the while was, and each of these defendants when appointed was, and still is an elector of said city and county, and was, and still is eligible to the said office ; and during all the time aforesaid, two members of said board have belonged to each of the two leading political parties.
    At the times of their appointment, and continuously since, two of these defendants belonged to the Republican party and two to the Democratic party, which parties are and all the while have been, the two leading political parties in said city, in said county, in the state of Ohio, and in the United States; and no one of said appointees, including these defendants, at the time of his appointment, or while a member of said board, held any other office under the United States, or the state of Ohio, or the said city or county; nor was any one, at the time of his appointment, or while a member of said board, employed in any department of said city or county, or by any officer thereof.
    There has all the while been, and there ■ now is, a secretary of said' board, eligible and qualified, appointed by the members of the board; and each member of the board, and the secretary thereof, before entering upon the discharge of the duties of their respective offices, duly took and subscribed an oath to support the constitution and laws of the United States, and the state of Ohio, and faithfully to discharge the duties of their said offices, and to make their utmost endeavors to-secure fair and honest elections. All the appointments of members of said board, and of the secretaries thereof, and the qualification of persons so as aforesaid appointed, and the organization of the board from time to time, have been in strict conformity to the statutes relating- thereto.
    These defendants, constituting, as aforesaid, the board of elections of the city of Cleveland, have exercised and are now exercising the powers conferred upon them as such officers, and have done and performed and are now doing and performing the acts required of them as such officers, and have discharged and are now discharging the duties imposed upon them as such officers, pursuant to and under authority of the following statutes, enacted by the general assembly of the state of Ohio, to-wit:”
    After citing the election laws of the state, including the act of April 28, 1890, 87 O. L., 359, and the act of April 16, 1896, 92 O. L., 166, and by a general averment, including section 3 of the act of April 21, 1898, 93 O. L., 364, the answer continues as follows:
    “All amendments and supplements of the foregoing acts, and all other laws relating to the powers and duties of boards of elections in Ohio.
    Since the creation and organization of the said board of elections, the g-eneral assembly of the state of Ohio has, by the enactment of all the laws aforesaid, and by numerous other enactments, recognized the valid existence of the said board, and has rendered its continued existence indispensable to the conduct of elections, and to the exercise of the constitutional right of electors to vote in said city and county under the existing laws of the state.
    
      By reason of the facts aforesaid, the board of elections of the city of Cleveland is a valid and constitutional board, and at the time of the commencement of this action these defendants were, and now are, rightfully and lawfully members of, and together constitute, the said board, with the right to hold and enjoy their said offices, 'and with full authority to exercise all the powers, and perform all the duties, thereunto belonging.
    
      Second Defense — Defendants make their foregoing first defense part of this defense; and they further say: From said thirty-first of March,
    1891, continuously hitherto, by virtue of the laws aforesaid, and of the successive appointments aforesaid, the said persons so as aforesaid appointed members of said board of elections, including these defendants, have, in the order of succession aforesaid, been members of, and together have constituted, the board of elections of the city of Cleveland; and they have, during all the time aforesaid, exercised the powers, and performed the duties conferred and imposed by law upon the board of elections of said city.
    During all the time aforesaid, the persons so constituting said board, and including these defendants, and acting as such board of elections, and under the laws aforesaid, have had, and now have, the exclusive charge, supervision and control of all matters and things pertaining to the registration of electors, and the direction, conduct and management of elections, within said city; and as such board of elections, and under the laws aforesaid, they have — and continuously since April 30, 1891, have had — the exclusive charge, supervision and control of all matters and things pertaining to the direction, conduct and management of elections within the election precincts of said Cuyahoga county that are not included within said city.
    During the times aforesaid, all the acts, facts, doings and proceedings aforesaid, and the exercise of the authority and powers aforesaid, were, by these defendants and their predecessors in office, done openly and publicly, and under claim of legal and official right so to do; all of which was all the while well known to, and acquiesced in by, all the electors within said city and county, including the relators herein, and the said Theodore L. Strimple, ■as prosecuting attorney of said county, and his predecessors in his said office.
    Wherefore, defendants say that the right of action stated in the petition did not accrue within three years next before the commencement of this action; and that this action to oust these defendants from their said office was not brought within three years after the alleged cause of such ouster arose. ”
    There was a third defense in the answer which was withdrawn on the hearing in this court.
    The plaintiff interposed a general demurrer to each defense. The judgment of the circuit court is as follows:
    “This cause came on to be heard upon the demurrer of the plaintiffs to each defense in the answer, and the court, upon due consideration, finds that the said demurrer, as to the second and third defenses is well taken and sustains the same, to which ruling the defendants except and as to the first defense, the court finds the demurrer not well taken, and overrules the same, to which ruling the plaintiffs except, and none of the parties desiring to further plead, the defendants move the court for judgment for the defendants dismissing the petition which motion is overruled, to which ruling and refusal of the court to enter such judgment the defendants except. And therefore the parties submit the cause to the court for judgment upon the pleadings. On consideration whereof, the court finds that the defendants have no right or authority to act as a board of elections, or to exercise any power as such, within those parts of Cuyahoga county which lie outside of the city of Cleveland, but that they have full right and authority to exercise their said office of board of elections within the said city. It is therefore considered, ordered and adjudged that the said defendants be and they hereby are, ousted and altogether excluded from the said office of board of elections, and from all the authority, franchises, privileges and emoluments thereof in so far as the exercise of such office relates to those portions of said county situate and being outside of the limits of said city, and that they be not ousted from their said office, or from any of the authority, franchises, privileges or emoluments thereof, within the said city; and that the plaintiffs pay the cost of this action to be taxed. The plaintiffs except to the said decision, finding, holding and order that the defendants are entitled to hold and exercise their said office within the said city of Cleveland, and refusing to oust them therefrom,- and the defendants except to the said decision, finding and holding that the defendants have no right or authority to act as a board of elections, or to exercise any power as such within' those pants of Cuyahoga county outside of the said city of Cleveland, and to the said order and judgment so as aforesaid ousting them from the exercise of their said office within such parts of said county, and from all the authority, franchises, privileges and emoluments thereof, in so far as relates to those parts of said county.”
    Thereupon the plaintiff below filed a petition in error in this court, seeking to reverse so much of said judgment as is in favor of the defendants below, and said defendants below filed a cross-petition in this court seeking to reverse so much of said judgment as is in favor of said plaintiff below.
    
      Francis J. Wing and Charles F. Pennewell, for plaintiffs in error.
    The law does not have a uniform operation throughout the state, and violates section 26, article 2 of the constitution of Ohio.
    This provision of the constitution is mandatory. State v. Kelley, 6 Ohio St., 269; Exp. Falk, 42 Ohio St., 638; State ex rel. v. Ellett, 47 Ohio St., 90; Costello v. Wyoming, 49 Ohio St., 208.
    The doctrine is well settled as announced in the above citations.
    The character of a law as to its being general or local is determined by the character of its subject-matter. Hixon v. Burson, 54 Ohio St., 470; State ex rel v. Davis, 55 Ohio St., 15; Cincinnati v. Steinkamp, 54 Ohio St., 284; Gaylord et al. v. Hubbard, 56 Ohio St., 25.
    Our Supreme Court has had before it many times the question as to what is a subject of a general nature, and has been called upon to decide question’s whether laws of a general nature and not operating uniformly throughout the state violate section 26, article II of the Constitution of this state. Leidy v. Grove, 53 Ohio St., 662; State v. Bargus, 53 Ohio St., 94; Karb et al. v. State ex rel. 54 Ohio St., 391; Commissioners v. Rosche, 50 Ohio St., 103; Legman v. McBride, 15 Ohio St., 573.
    But the law in question excepts from its operation ‘ ‘ Man sfield. ” “ Mansfield ’ ’ is the designation of certain territory in Ohio, of which the court will take judicial notice.
    Even though Mansfield should pass through all the grades and classifications mentioned in the act, the law. would never apply to it, and.for this reason, plainly, the law can never have a uniform operation throughout the state.
    It is idle to urge that the exception is invalid. State ex rel v. Baker et al., 55 Ohio St., 1.
    The law is in contravention of section 2, articlel, of the constitution, which declares that all political power is inherent in the people.
    By the law in question the boards of election are given authority to appoint judges throughout the county. They may appoint them without regard to their being residents of the precincts in which they are to exercise their office.
    The hoard is made the canvassing board of all the votes cast in the county at any election, whether special or general. 1 Revised Statutes, section 2926v;-l, p. 1553; 1 Revised Statutes, section 2966-53, p. 1585.
    The members of the board are appointed by the mayor of the city of Cleveland.
    The mayor of the city is elected only by the votes of the electors of the city. As a consequence, the citizens of the county not included within the limits of the city are governed by the votes of the electors of the city alone, without themselves having any voice whatever in so important a matter. This is depriving the electors of the county, outside of the city, of political power.
    
      Again the law in question, for the reasons above stated, also contravenes section 4, article 4 of the constitution of the United States, which guarantees to every state a republican form- of government. It is only necessary to magnify the subject to appreciate this suggestion. Fox v. McDonald, 101 Ala., 51. Madison in the Federalist, Hamilton’s edition of 1880, No. 39, 302-303.
    The defendants in this proceeding commenced to exercise the powers conferred upon them under their appointment less than three years before this action was commenced. Section 6789, Revised Statutes.
    The right to hold the office by the four defendants and each of them arose less than three years ago. We are asking that these four persons be ousted from the board of elections because they have no right lawfully to hold.
    This is not a case where one person seeks to get an office which another holds and to which the first person claims the right, but it is an action to oust persons from holding an office which the law does not allow them to hold, and which, the law does not allow to be created.
    We could not commence action against these defendants until they got into the office, two of them June 3, 1896, and two of them June 6, 1898. We are proceeding against these defendants because they hold these offices unlawfully, and not simply because the office is an unlawful one. If the office was not filled there would be no occasion to proceed in quo warranto. The defendants file a joint answer as individuals and not as a board.
    The limitation could not commence to run until the right of these defendants now before the court, arose. The right of Etzensperger and Kenney arose June 3, 1896.
    The right of Buckley and Salen arose June 6, 1898. State ex rel. v. Robinson, 7 C. C., 152; s. c. 3 Circ. Dec., 703.
    If they are assuming to exercise and enjoy the offices which they now fill without authority of law, they should be ousted, and the purpose and motive of the relators or the influence which operated upon them in commencing these proceedings and in seeking to turn the defendants out of the places which they have no right to occupy cannot bar or estop them from asking the court to exercise its power to remove them from an office which the defendants have no lawful right to fill. People v. Milk Exchange, 145 N. Y., 267; State v. Sharp, 27 Minn., 38; State v. Leary, 67 Mo., 89.
    
      Miner G. Norton and George L. Phillips, for defendants in error.
    The popular notion is, that in a popular form of government, the right to vote is a natural right, like the right of life or liberty; and that the primary object of government is, universality of the electorate. The legal view is very different. The right to vote is not a natural right, nor is it an absolute or inherent right — a right that may be reserved in a bill of rights. In this country, the right to vote is derived from the political society— the government, and is conferred by state constitutions and statutes. It is a right conferred as a means for the perpetuation and for the betterment of the government, and is to be exercised for the public benefit, rather than for the benefit of the individual. The right to vote is not necessary for the protection of one’s person or property, for females and infants are as much protected in their persons and property as are the electors of the Commonwealth. This right is regulated by the states, and by each state for itself; and the power of the states is perhaps unlimited, except by the fifteenth amendment to the national constitution, which forbids any distinction on account of “race, color or previous condition of servitude.” In some states, contributing to the support of the government, by the payment of taxes, is made a condition precedent to the right to vote; in some states, women are allowed to vote; and so the conditions vary in different states. And the people of the state, in a political sense — the body politic, are the voters — those who are entrusted with the political power. McCrary on Elections, 3; State ex rel v. Dillon, 32 Fla., 545; Blair v. Ridgely, 41 Mo., 63; Friezleben v. Shallcross, 9 Hous. 1, 59, McKune v. Weller, 11 Cal., 49; 16 Alb. Law Journal, 272.
    In Ohio, the right to vote is conferred by the constitution, upon a class of persons having certain qualifications of citizenship, age, sex and domicile and comprising about one-fifth of our population. (Article V, section 1.) The constitution does not undertake to regulate the exercise of this right, further than to provide that all elections shall be by ballot, that convicted criminals may be excluded from voting, that soldiers and sailors shall not be considered residents of the state where stationed, and that idiots and insane persons shall not vote.
    Here, now, is the solution of this whole matter. The conduct of elections belongs to the state, and the election officers are not county, township or precinct officers, but they are the agencies of the state, appointed and commissioned to conduct the state’s business; and it is the right and duty of the state to adapt its agencies to the differing needs of different localities, just as it does in the valuation of property for taxation. And for convenience, the state provides its agencies in districts — sometimes adopting counties, or municipalities, or it might subdivide or combine any of these. The adaptation of agencies becomes a matter of locality. Only special laws can be so adapted. General laws could not be adapted to localities, and would not meet the requirements of the situation. In such case, the legislature is called upon to exercise its wisdom and discretion, and its action is not reviewable by the courts. Election laws, so far as they affect the right to vote, are of a general nature; but so far as they only regulate the exercise of that right, they relate to the machinery of government rather than to the protection of rights, and for that reason may be, and generally are, special laws. Coffin v. Election Comrs., 97 Mich., 188; Comm. v. McClelland, 83 Ky., 686; State v. McCann, 21 Ohio St., 198; McGill v. The State, 34 Ohio St., 228; State v. Kendle, 52 Ohio St., 346; State v. Covington, 29 Ohio St., 102; Cooley Const. Lim., 129*, 496*; Ry. Co. v. Comrs., 1 Ohio St., 95; Wagner v. Loomis, 37 Ohio St., 571; Dagget v. Hudson, 43 Ohio St., 548; Capen v. Foster, 12 Pick., 485; Lehman v. McBride, 15 Ohio St., 573 ; The Election Statutes, passim; Pearson v. Stephens, 56 Ohio St., 126.
    The right of suffrage, being conferred by the state, for the public benefit, and the regulation of its exercise belonging to the legislature, it follows, that any regulation thereof that does not relate to or affect the right, but affects only the economy and convenience of the governmental control thereof, does not fall within the purview of Article II, section 26, of the Constitution. And when the legislature, in the providing of governmental agencies, is confronted by varying conditions, there is occasion for the exercise of judgment and discretion in the selection of . methods and agencies, and this discretion is not reviewable by the courts. 21 Pa. St., 162; Const. Lim., 129*; 21 Ohio St., 211; 1 Ohio St., 95; 43 Ohio St., 558.
    It is settled by repeated decisions of this court, that subjects of legislation, both persons and things, may be classified upon any just basis of classification, and that legislation limited to any class so formed is to be regarded as general; and when a law, so limited, relates to, and operates alike, upon all the individuals of the class, it has the uniform operation required of general laws, by Article II, section 26, of the constitution. State v. Powers, 38 Ohio St., 54; Adler v. Whitbeck, 44 Ohio St., 539; Senior v. Ratterman, 44 Ohio St., 661; State v. Parsons, 40 N. J. L., 123.
    If the exception of Mansfield and Canton, in Revised Statutes, 29265, is unauthorized, the exception should be disregarded and the residue of the act sustained. Bank v. Hines, 3 Ohio St., 1; State v. Commissioners, 5 Ohio St., 497; Railroad v. Commissioners, 31 Ohio St., 338; Rowles v. State, 37 Ohio St., 35; State v. Frame, 39 Ohio St., 411; State v. Brewster, 39 Ohio St., 653; Treasurer v. Bank, 47 Ohio St., 503; State v. Baker, 55 Ohio St., 1.
    Where an amendatory and repealing act is a substitute for the law so repealed, and the body of the act is unconstitutional, the repealing clause is ipso facto inoperative, and the old law remains in force. Gorman v. Bepler, 4 N. P., 241; 7 O. D., 15; Whitney v. Gill, 15 C. C., 648; s. c. 8 Circ. Dec., 450; Blair Brick Co. v. Waltz, 15 C. C., 718; s. c. 8 Circ. Dec., 742; State v. Smith, 48 Ohio St., 211; 41 Bull., 124; 23 Am. and Eng. Encyc., 476; 35 Barb., 265; 3 Gray, 476; 18 Iowa, 261; 6 Wis., 605; 11 Wis., 51; 22 Kan., 489; 7 Colo., 230; 20 Fed. Rep., 411; 14 Mich., 285; 121 Ind., 514; 36 N. Y., 449; 14 Nev., 202; 38 N. J. L., 320; Suth. Stat. Interp., 175, 176; Endlich on Inter. of Statutes, 192.
    In this case it is perfectly clear and demonstrable that the legislature would not, by the act of 1896, have repealed the act of 1890, without providing, as they attempted, a substitute for the act of 1890; if the substitute falls, the incidental provision for the repeal of the prior law falls with it. In such case, acts done under the unconstitutional law are justified by the old law, if within its provisions.
    It is claimed that section 2926w-l, as amended April 18, 1892, (89 O. L., 429), and again in 1898 (93 O. L., 361), is - unconstitutional. This section is section 1 of an act passed in 1889 (86 O. L., 258), when it was limited to counties having a city of the first class, first grade, and amended in 1891, (88 O.L., 468), so as to embrace all counties having a city of the first class, and amended again in 1892, and amended into its present form in 1898. It now embraces the counties of Hamilton, Cuyahoga, Lucas and Franklin; and deputy state supervisors are expressly abolished in those counties.
    Much that has been said as to section 2926b is as well applicable to this section, and we dismiss it with a single additional suggestion.
    
      The subdivision of the state for election purposes — of which divisions the precinct is the unit, —like the subdivisions for taxation and for school purposes, is merely a matter of convenience in the adaptation of agencies in carrying out the details of governmental duty. State v. Hine, 59 Conn., 50; State v. Shearer, 46 Ohio St., 275 ; 39 Ohio St., 658.
    The second defense is a plea of the statute of limitations.
    Statute 6789 applies, even against the state. 49 Ohio St., 137; State v. Gran. Alex. Soc., 11 Ohio, 1; State v. Beecher, 16 Ohio, 358 ; 44 Ohio St., 595.
    If it be said that the resignation of a member of the board, or the expiration of his term, makes a hiatus, and interrupts the running of the statute, so that the statute must always begin anew with each succeeding member, we answer, that when the statute has commenced to run, even the death of the person liable to suit will not interrupt it. Where time begins to run against the ancestor, it will continue against the heir, even though he be under disability, 1 Ohio St., 478; 38 Ohio St., 373; and it will continue against an executor or administrator, though a hiatus of years should intervene. Ang. on Lim., section 56; 6 Ohio, 35.
    Where an office is to be filled by but one person, the death or retirement of the single incumbent makes a vacancy in the office.. Mecham on Pub. Officers, 442; but where the office is to be filled by a board, the death of one member creates a vacancy in the board, but not in the office. In such case, the policy of the law being to guard against the failure of the public service, the survivors constitute the board, and may execute the office, and may, of course, be ousted in quo warranto. 
      Mecham on Pub. Officers, 443; 52 N. Y., 54. And, a fortiori, the mere retirement of a member,whose place is eo instanti filled by his successor, makes no hiatus, either in law or in fact.
    Where townships were organized under a statute, and have for many years been recognized by the various state and local authorities, the validity of the law will not be inquired into. People v. Maynard, 15 Mich., 463.
    In Ohio, where a school district had been recognized for twelve years, the Supreme Court refused to inquire into the constitutional validity of the law under which it was created. Clark v. Board of Education, 44 Ohio St., 595; Cf. Society v. Pawlet, 4 Pet., 500; People v. Flanagan, 66 N. Y., 237; State v. Society, etc., 11 Ohio, 1; Tone v. Columbus, 39 Ohio St., 281.
    The power to appoint may be conferred upon anybody. The reason that it is generally conferred upon an officer is, to insure perpetuity of the appointing power. But this is not at all necessary, for it is held, that, ‘ ‘the authority and duty of appointing others to office, of themselves constitute the person vested with that authority and duty a public officer; and it is immaterial that such person is not designated as an officer, and (that he) takes no oath, and receives no fees.” Mecham on Pub. Officers, 11; State v. Stanley, 66 N. C., 59; State v. Kennon, 7 Ohio St., 546; Cf., 29 Ohio St., 102; 42 Ohio St., 437.
    The power to appoint city boards of election was formerly conferred upon the governor. (Section 2926b, in 86 O. L., 282.) Under the original Ballot Law, of 1891, the probate judge appointed the county boards of election. 88 O. L., 449, section 3; 48 Ohio St., 505. Deputy state supervisors are now appointed by the secretary of state; and they would be here, if this board should be ousted. Revised Statutes, 2966-3.) In Cleveland, members of the board of park commissioners are appointed by the commissioners of the sinking fund; and these commissioners appoint their own successors, etc., etc. State v. Commrs., 54 Ohio St., 333.
    Brief of B. A. Harrison, for the board of elections in the city of Columbus, filed by leave.
    Statistics show, and it is a matter of common knowledge, that there surround the cities of Cincinnati, Cleveland, Toledo and Columbus, extending from immediately beyond the corporate limits but within the county in which each of said cities is situated, á dense and migratory population. By reason, among others, of the tax rate within the corporation being larger than in the townships surrounding the cities, the adjacent territory is filled with factories, railroad shops, and industries of various kinds. Such are the means of - populating these localities, with inhabitants largely transitory and migratory, that by their density many localities are as to numbers and mode of life urban and not rural. Such localities present the same conditions and afford the same opportunities for perpetrating election frauds as exist in large cities, and the same necessity exists there for a stringent election system that exists within the corporate limits of such cities.
    The facts above stated are historical facts of common knowledge, of which judicial notice will be taken.
    But if this were not so, a legal presumption would come into operation in support of the valid-y of the legislation in question, namely: If a legislative act 'may or may not be valid according to circumstances, courts are bound by the plainest principles of exposition, as well as a just deference to the legislature, to presume the existence of those circumstances, which will support it and give it validity. Willington et al., v. Petitioners, 17 Pick., 87.
    This is a well settled rule. Morgan v. Monmouth Plank Road Co., 26 N. J. Law, 109.
    It will be noticed that neither of the acts in question affect any right or privilege of any qualified voter. On the contrary, the end sought by each act is the support of the privilege of free suffrage, which involves the rigid and certain exclusion of those not entitled to vote, as well as the protection of those in the exercise of the privilege who are.
    It is the duty of the general assembly, under the constitution of the state, to provide by law for free and equal elections. Such elections are certainly not such as may be secured by the indiscriminate exercise of the right of suffrage, without regard to qualifications or regulations necessary to establish and determine the rights of those who offer to vote. Nor can elections be considered free and equal when in a portion of the state they may be conducted under the law comparatively free from the influence of force and fraud, while in another portion, for the want of more suitable and effective regulations than are provided for the county districts and small cities and villages, the timid and weak are deterred by violence and tumult from attempting to vote, the illegal votes are cast and returned, and legal votes are not counted or not properly and honestly returned. Prom necessity, other and more effectual regulations are required in. cities and counties containing a dense and migratory population than are required elsewhere or the majority of the people of the state would probably be willing to adopt. Hence such effectual regulations must be provided for such cities and counties in order to secure therein such elections as are contemplated by the constitution. Commonwealth v. McClelland, 83 Ky., 687.
    Such a classification of cities and counties is manifestly neither unjust or unreasonable, and is founded upon adequate distinctions and differences between different cities and counties. The rule as to uniformity of laws of a general nature, merely requires that the law shall have a uniform operation upon the persons or things of any class upon whom or which it purports to take effect. Driggs v. State, 52 Ohio St., 36; The State v. Butts, 31 Kansas, 537; Railroad Co. v. Iowa, 94 U. S., 155; Costello v. Wyoming, 49 Ohio St., 210.
    We have said that officers of election, in their relation to the state, stand upon the same legal footing as officers of police. The cases concur in holding that the poLice officers are in fact state officers, and not municipal, although a particular oity or town be taxed to pay them. 1 Dill. on Mun. Corp., sections 33, 34, 773 and note 1; Butterick v. City of Lowell, 1 Allen, 172; Yaple v. Board of Police Commrs. of Cincinnati, 2 Ohio C. C. Rep., 406; s. c. 1 Circ. Dec., 557 (affirming by this court without full report, 25 Law Bull., 336); Bronson v. Oberlin, 41 Ohio St., 476; Hagerly v. The State, 55 Ohio St., 16; Western College v. The City of Cleveland, 12 Ohio St., 375; Wheeler v. The City of Cincinnati, 19 Ohio St., 22; Bowles v. State, 37 Ohio St., 35; Monroe v. Collins, 17 Ohio St., 687.
    
      It is contended that the first section of said act passed April 16, 1896, (92 L., 166), is invalid, because it excepts Mansfield and cities of the fourth grade in the first class, from its operation.
    1. This section does not confer upon the municipalities described therein any corporate power. It creates a state agency for the conduct of elections therein, based upon peculiar conditions, which do not exist in the strictly rural districts of the state. If, under such circumstances, it is competent for the general assembly to create special election districts, then it is competent for the legislature to describe such districts. We have seen that this court has determined that special taxing districts may be created. So far as this section excepts from its operation “cities of the fourth grade in the first class,’’ it is clearly unobjectionable. The object of providing grades in the different classes of cities, is to authorize legislation which may be necessary or appropriate for a particular grade or grades of a given class of cities which is not needed or appropriate for a different grade or grades of such class.
    2. But if either of said exceptions is invalid, because the legislature had no power to make it, the exception alone will be treated as invalid, and the class sustained. The State ex rel. v. Baker et al., 55 Ohio St., 1.
   Burket, J.

Section 29265, as amended April 16, 1896, 92 O. L., 166, provides among other matters as follows: “In all such cities of the first and second class, except Mansfield and cities of the fourth grade in the first class, a ‘ board of elections,’to consist of four electors of such city, of well known intelligence and integrity, two of whom shall belong to each of the two leading political parties, shall be appointed by the mayor.” As this law excepts the city of Mansfield and the cities of the fourth grade in the first class from its operation, it is not of uniform operation throughout the state, and therefore is in conflict with section 26 of article 2 of the constitution, the subject of elections being one of a general nature.

It is urged, however, that if this exception makes the act unconstitutional, the exception should be disregarded, and the act held valid as operating uniformly throughout the state. The answer to this is that the court has no law-making power, and cannot extend a statute over territory from which it is excluded by the general assembly. A court can hold a whole act unconstitutional because it is not broad enough, that is, because it is not of uniform operation throughout the state; but it cannot extend an act which is too narrow, so as to take in territory which was left out by the general assembly. In the case of an exception, the general assembly never-enacted the statute in the excepted territory, and the court has no power to enact it therein.

There is a difference between an exception and a limitation. When a statute upon a subject of a general nature is made to extend to the whole state in one part thereof, and then in another part an attempt is made to limit its operation to territory less than the state, the limitation may be disregarded; because to-give it effect would render the whole statute unconstitutional; and such construction should be given when reasonable, as will uphold the statute rather than one which would defeat it. Burt v. Rattle, 31 Ohio St., 116.

As this section, 2926b, as passed April 16, 1896, is unconstitutional and inoperative, the repealing-section of the act is also inoperative. State ex rel. v. Heffner, 59 Ohio St., 368; State ex rel. v. Smith, 48 Ohio St., 211, 219.

This leaves section 29266 of the act of April 28, 1890, 87 O. L., 359, in full force. It is urged that that section is also unconstitutional, for the reason that in one sense it operates only in cities, and not in those parts of the state lying outside of such cities. As in shown in Nelson v. State, 52 Ohio St., 88, the act operates, in theory at least, all over the state, because wherever a city may be built up, there the act will be found to be in full force and applicable to such city.

The validity of the section can only be maintained on the doctrine of the classification of cities, and there are some difficulties in the way of so maintaining it. But in view of the condition of the election statutes, and the necessity of more stringent means to prevent fraud, and secure fair elections in cities, and the fact that for more than forty years elections in cities have been conducted differently from those in rural districts, the one employing members of the council, and the other township trustees, we are constrained to hold the act of 1890 with its classification applicable to cities, as a valid enactment.

But | while such classification when applied to cities may be thus upheld, there is no authority for the classification of counties as to elections. As to subjects of a general nature, laws must have uniform operation, and they cannot be made to operate in some counties and be .excluded from others. State v. Bargus, 53 Ohio St., 94; Hixson v. Burson, 54 Ohio St., 470; Mott v. Hubbard, 59 Ohio St., 199; Kelley v. State, 6 Ohio St., 269.

It is urged, that as a board of education in a ■city may exercise its powers and perform its duties in territory outside of the city which is attached to the city district for school purposes, the city board of elections should in like manner be permitted to exercise its powers in territory outside of the city. The two eases are not parallel. The limits of the city and of the school district are not necessarily the same, and in fact usually are different. But the board of education is always confined in the exercise of its powers and performance of its duties to the school district, and it does not go outside-of the district and assume jurisdiction in outside territory. The statute, 93 O. L., 367, which provides that the. outlying election precincts shall be held and deemed as election precincts of the city, does not have the effect of bringing such outlying precincts within the city limits, and cannot make them a part of the city; while in school matters, the annexed territory becomes a part of the school district, and^ is embraced within its limits.

It therefore follows that the holding of the circuit court was right, and that while the city boards of'election may exercise their powers and perform their duties within the city limits, they have no jurisdiction in the territory outside of the city; and that it is the duty of the state supervisor of elections to appoint deputy state supervisors under the statute, for such territory in each county of the state containing a city, to conduct all elections under the laws applicable to such deputy state supervisors.

The petition is against the defendants individually, and avers that under the claim that they constitute the board of elections of the city of Cleveland, they are usurping and intruding into the office of appointing registrars, judges, clerks, and other officers and agents of elections. But while the answer avers that boards of election have existed in the city of Cleveland since March, 1891, and that the predecessors of the defendants composed the board, it avers that said defendants, Edward Etzensperger and Edward C. Kinney, were appointed to their present term of office on the third day of June, 1896, and that the defendants, Hugh Bmckley and Charles P. Salen, were appointed to their present term of office on the sixth day of June, 1898. It thus appears that neither one of the defendants has been in his present office for the term of^three years, and that section 6789, Revised Statutes, can afford them no shield as against an action of quo warranto, unless one term of office can be tacked upon another, so that the line of different men holding a certain office under a statute, constitute but one officer for that office for the whole time. Such a proposition is not tenable, and is absurd upon its face.

A person holds an office and is an officer under and by virtue of his election or appointment and the commission he holds, and the officer did not become such earlier than' his- induction into office under his present commission. The statute of limitations says that an action shall not be brought against an officer to oust him from his office, unless within the three years after the cause of such ouster or the right to hold office, arose. “His office” means his present office under his present commission, and not an old expired term in the same office under a former election or appointment. He could not be ousted from such former term of office, because the term has expired and he is not now in office under that term, and is not now an officer under that term. If it were otherwise the statute of limitations would run, not in favor of the officer, but in favor of the office, and after three years the constitutionality of the statute creating an office could not be questioned. The right of the people to protect themselves against unconstitutional laws.would thus become barred within three years after the passage of an act creating an office.

The statute of limitations in question applies expressly to the officer and not to the office, and when the office is in conflict with the constitution this statute does not prevent the court from so declaring.

It is urged that while the members of the board have not been in office under their present terms for three years that the same board of elections has been in existence more than three years, and that therefore the board cannot be ousted. This is not sound, for the reason that the statute is by its express terms for the protection only of officers, and says nothing about the ouster of ’ the board of election or other boards. The board of elections is not an officer, but the men composing the board are the officers.

The demurrer to the second defense was therefore properly sustained.

Judgment affirmed.  