
    The State of Ohio, on the Relation of Samuel H. Goodin, v. David K. Este, President, Thomas Henderson, Jonathan Cilley, and John Burgoyne, Associate Judges of Hamilton County.
    The appointment of a clerk of the court of common pleas, must he the act of the court, made in open court and entered on the minutes.
    The annunciation from the court, in session, that A. B. is appointed clerk vests no such right as precludes the court from subsequently refusing to have the appointment entered on the minutes. Even such entry does not compel the acceptance of the bond, and upon taking the oath, an induction into the office; hut upon reading the journal entries, and before the minutes are signed, the order may be rescinded.
    This case was reserved in the county of Hamilton.
    On May 19, 1835, and during the session of the Supreme Court in the county of Hamilton, Samuel H. G-oodin filed in said court an affidavit setting forth that, at the term of February, 1834, of the court of common pleas for said county, on Saturday, the 12th day of April, a day in said term, the court being in session and all the judges being present, the office of clerk of said court being vacant, said court then and there appointed the deponent clerk of said court, which appointment, signed by three of the judges, was delivered to the deponent.
    The deponent further stated, that the said court at the same time handed to David Gano, acting clerk pro tern, of said *court, in writing, the form of an entry of said appointment, to be by him entered on the minutes of the proceedings of said court for that day, directing him to enter the same on the minutes of the proceedings of said court, and then adjourned over until Monday morning, the 11th of the same month of April.
    That the said Gano failed and refused to enter the same, and on the meeting of the court on Monday morning, all the judges being present, and in session, two of them, to wit: Judges Henderson and Burgoyne, dissented from, and objected to, the entry thereof upon the minutes of said court, directing the clerk pro tem. not to .place the same upon the minutes, the other two judges, to wit: .Judges Goodenow and Cilley, then and there directing the said •clerk pro tem. to make the entry. And the court being so divided, ?the said clerk pro tem. then and there refused and still refuses do make entry of said appointment.
    That on the 16th day of April aforesaid, the court still being in ■session, the deponent offered to give the bond required bylaw, for the faithful discharge of the duties of clerk, with such security as /should be approved by the court. That he produced his bond in •court, and offered to take the oath of office, but two of the judges •refused to approve of the bond without objecting to its sufficiency, /and also refused to permit him to take the oath of office, or to en•ter upon the execution of the duties of the office; the other two judges at the same time consenting and agreeing that he might ..give bond as aforesaid, take the oath of office and enter upon the ■ execution of its duties. And the court being so divided in opinion, the application of the deponent was then and there refused.
    That the deponent, previous to his appointment, had received a .certificate of a majority of the judges of the Supreme Court that /he was qualified to discharge the duties of clerk of said court of /common pleas, which said certificate was before said court of •common pleas, when the said appointment was made as aforesaid.
    
      That said court adjourned without day, on the 17th day of April aforesaid, not having made entry of the appointment aforesaid, and without permitting the deponent to enter upon the execution of his office.
    The deponent further states, that afterward, to wit: on August *4, 1834, in the term of August of said court of common pleas, he appeared before said court of common pleas in his own proper person, and then and there tendered, for their approval, to said court his bond with securities for the faithful discharge and performance of the duties of clerk; and on the same day tendered and delivered to said court a certificate, that'he had taken the oath of office as clerk as aforesaid, and then and there offered to enter upon the execution of the duties ; and also then and there moved the said court to be permitted to enter upon the duties of the said office, and that said bond and oath of office might be entered upon the records of said court, and also moved said court to order the books and papers of said office to be delivered over to him.' But two of the judges, to wit, Thomas Henderson and John Burgoyne, refused to grant said motions, refused to permit said bond to be filed, although they did not object to its sufficiency and also refused to permit the deponent to enter upon the duties of his said office; and the other two judges, to wit, John M. Goodenow and Jonathan Cilley, decided in favor of the motions aforesaid, and the court being so divided in opinion, said motions were then and there overruled, and the deponent excluded from his office.
    The deponent further states, that. he is advised and believes, that by the appointment aforesaid, by the laws of the state of Ohio, he is legally entitled to the office of clerk as aforesaid, and that he is unjustly and illegally deprived of the exercise of the duties thereof. And that he is informed and believes that William H. Harrison is in the performance of the duties of said office to the exclusion of the deponent without any legal right or authority whatever.
    This affidavit was sworn to on May 11, 1835, and in it reference is made to the following papers, to wit:
    1. A copy of the certificate of the judges of the Supreme Court of the qualification of Samuel H. Goodin, to perform the duties of clerk of the court of common pleas of Hamilton county.
    
      2. The certificate of appointment, in these words :
    “ We agree to the appointment of Samuel H. Goodin to the office of clerk of the court of common pleas of Hamilton county.
    “John M. Goodenow, P. J.
    John JBurgoyne,
    
      “April 12, 1834. Jonathan Cilley.”
    *3. Copy of an order handed to Daniel Gano, clerk pro tem., to be entered upon the minutes of the court as follows: “It is ordered that Samuel H. Goodin be, and he is hereby appointed clerk of this court for the constitutional term of seven years.”
    And also an entrjr made on the minutes of said- court, on April 18, 1835, by J. M. Goodenow, president judge, in the following words: “I sign this journal with the protest, that it is not complete, for want of an entry .of the appointment of Samuel H. Goodin, clerk.”
    4. A bond tendered by said Goodin, to the judges of the court of common pleas, on August 4, 1834, on the back of which is the following indorsement:
    “Filed August 4, 1834, or rather presented to the court on that day, and Judges Henderson and Burgoyne refused to let them be filed. “ John M. Goodenow.”
    5. Copy of the oath of office of Samuel H. Goodin, presented to the judges of the court of common pleas, on August 4, 1834, certified as having been made on the 7th of May of the same year, before R. Mulford, a justice of the peace, upon which is the following indorsement:
    “Filed August 4,1834,or rather presented to court on that day, and Judges Henderson and Burgoyne refused to let it be filed.
    “John M. Goodenow.”
    6. Copy of an entry which Goodin moved the judges of the court of common pleas to admit on the minutes of said court, on August 4, 1834, which is'as follows, to wit:
    “ 1 Samuel H. Goodin, who claims that he was legally appointed the clerk of this court at the February term thereof, 1834, now comes into court and tenders his bond, with securities as such clerk, and moves the court to approve thereof; and also tenders his oath of office, duly administered, to the said court, and moves the court to admit him to enter upon the execution of the duties of his office as clerk.’ The court, being divided in opinion, refused to approve of the said bond; and also refused to admit him toenterupontheexecutionofhisoffieeas aforesaid. August4, 1834.”
    Upon the affidavit aforesaid, together with the documents referred to, the Supreme Court, on motion of S. H. Goodin, granted a rule upon the judges of the court of common pleas, to show cause at the opening of said Supreme Court, on May 27, 1835, why a mandamus should nob issue to ^compel the said court of common pleas to admit the said Goodin to file his bond, and take upon himself the discharge of the duties -of clerk of that court, pursuant to his appointment, made, as alleged, by that court on April 12, 1834.
    In pursuance of this rule, the judges of the court of common pleas showed cause respectively!
    Judge Henderson states that he is not advised, nor does he know that Goodin was ever appointed clerk of said court of common pleas. That his claim to said office rests altogether upon the assurances and promises.of others, as the defendant supposes, as he had nothing to do with the matter. He was never consulted with respect to it, nor did he ever attend to it. From these considerations, both Judge Burgoyne and himself refused to permit an entry to be made on the minutes of said court of common pleas of an appointment of said Goodin as clerk, which alleged appointment, so far as obtained, they considered as surreptitious, and of a character demonstrating the impropriety of investing him with the office. He protests against Goodin’s being placed in the office of clerk of the common pleas, as he believes it is now legally and rightfully filled by another.
    Judge Este states that he does not know that Goodin was ever appointed clerk of the court of common pleas aforesaid. That he has examined the minute book of the court as well as their records and proceedings relative to the alleged appointment, and finds the following entries only, to wit: “April 18, 1834. I sign this journal with the protest, that it is not complete for want of the appointment of Samuel H. Goodin’as clerk. John M. Goodenow, president judge.” Which is followed by the signatures of Judges Henderson and Burgoyne, denying that any legal appointment of clerk was made, etc.
    He further states that he was qualified and took his seat as president judge of said court of common pleas, on December 22, 1834; that he then found William H. Harrison officiating as clerk, and as such recognized by the judges of said court; and that upon further examination of the minutes of said court, he ascertained that Harrison was, at the August term, 1834, appointed clerk for the term of seven years, gave bond and security and took the official oath. From all which premises he insists that sufficient can m is shown why the said court ought not to he compelled to admit S. H. Goodin to *fi!e his bond, and take upon himself the discharge of the duties of clerk, etc.
    Judge Burgoyne insists that Goodin was not, at any time, legally appointed clerk of the court of common pleas; and, further, that at the term of August, 1834, William H. Harrison was appointed to said office, gave bonds to the acceptance of the court, and took all necessary official oaths.
    Judge Cilley admits the appointment of Goodin, as stated in the affidavit and accompanying documents, and that he was not permitted to enter upon the discharge of the duties of clerk in consequence of the opposition of Judges Henderson and Burgoyne; and, in consequence o'f the same opposition, no entry was made of the appointment upon the minute book.
    He further states, that without his approbation William H. Harrison was, at the August term, 1834, appointed clerk of the same court, and entered upon the discharge of the duties of the office.
    Morris, for the relator:
    The questions presented for the consideration of the court are:
    1. Whether the relator has a right to the office he demands.
    2. If he has that right, do the laws of the State of Ohio afford him a remedy by a writ of mandamus issuing from this court.
    By the constitution and laws of the state the Supreme Court and the court of common pleas are authorized to appoint their respective clerks. State Constitution, art. 3, sec. 9; 29 Ohio L. 57.
    The court of common pleas exercised their appointing power in the proper manner in the appointment of Goodin; and, having made the appointment, they could not recall or reverse what had been legally done. An entry on the journal is not necessary to the validity of the appointment. It is not required by law — an appointment is complete without it; and, being made, can not bo defeated by the fraudulent or improper conduct of the acting clerk to make the record. 1 Oranch, 137 ; 3 Hon. & Munf. 1.
    If tbe relator was legally appointed clerk, the proper course foi him to pursue, in order to obtain the evidence of his appointment, and to place him in the exercise of the duties of his office, is by writ of mandamus. 1 Cranch, 137; 2 Hon. & Munf. 1.
    *Hammond, Eox, and Worthington, for respondent:
    In the present case, there is one question to be decided which relates to the form of proceedings — whether the rule to show cause should be issued to the court of common pleas as a court, or to the individual judges of the court.
    We contend the rule should issue to the court of common pleas, not to the individuals composing that court. It is the action of the court which is required, not the action of the individual judges.
    Upon the merits of the case we conceive the rule must be discharged. The cause alleged, by a majority of the judges, why a mandamus should not issue, is that the relator was never appointed clerk. The return must be taken as true. 4 Ohio, 351.
    But if the affidavit of the relator is taken as true no cause is shown for issuing a mandamus. The relator has no right to file his bond and enter upon the discharge of the duties of clerk unless he has been first appointed. An appointment can only be made by order of the court, and no order is valid unless entered upon the minute book and signed by the president judge. 3 Ohio, 577; 4 Ohio, 130 ; 5 Ohio, 363, 450.
    The applicant 'must show a clear, legal right to discharge the duties of the office of clerk or a mandamus will not issue. If the right remained doubtful the court will compel him to resort to the writ of quo warranto, particularly where there is an incumbent in the office claiming to be legally appointed. 2 Esp. N. P. 665, old ed.; Com. Dig., Ib. Mandamus, B; lb., c. 3; 1 Johns. Cas. 134; 2 Bl. Com. 110, 111; 1 Johns. Cas. 79.
    With the appointment of a clerk of the court of common pleas, this court have nothing to do. By the constitution each court has the exclusive power of appointing its own clerk.
    J. C. Wright, for the relator, in reply:
    It is insisted that the rule should have been addressed to the court and not to the judges of the court. Authorities are abundant, in favor oí directing the rulé to the judges. 1 Johns. Cas. 179, 181; 2 Johns. Oas. 68, 118, 215; 4 Ohio, 357; 3 Hen. & Munf. 1; 9 Mass. 388; 2 Pick. 414; 4 Pet. 102.
    
      *The authority of this court to issue a writ of mandamus, in the case made, is denied unless the relator is found invested with the right. This court is authorized, by statute, to issue the writ, 29 Ohio Stat. 56; and it issues to prevent a failure of justice, and may be used on all occasions wherein justice and good government ; there ought to be one, and the law has provided no other specific remedy. Bac. Ab., Mandamus, D. E.; Com. Dig., Manda mus; 4 Ohio, 357; 5 Ohio, 543; 6 Cranch, 115.
    Counsel for the respondents further insist that the relator was not appointed, because the minutes show no entry of the appointment. This is the very thing of which we complain. We say the entry ought to have been made, and the object of this proceeding is to procure it to be made. The appointment was perfected when announced in open court, and the neglect of the clerk pro tern, to perform his duty by making the entry can not divest the relator of his right to the office. When the appointment was made the power of the court over the office was at an end, and it was the duty of the acting clerk to make the entry. It was the duty of the court to compel him to make it. And that court having failed to perform this duty, it is incumbent on this court to compel them to do it by process of mandamus. Upon this part of the case the reasoning of the Supreme Court of the United States, in the case of Marbury v. Madison, 1 Cranch, 14, is peculiarly applicable.
   Judge Hitchcock

delivered the opinion of the court:

The first question which presents itself to the court for consideration is, whether Samuel H. Goodin, the relator, has a right to the office 'which he now demands. In order to settle this question, we are disposed to disregard any technical objections, and to consider all the facts as they are presented to us by the papers submitted. Those facts are substantially as follows : On Saturday, April 12, 1834, the court of common pleas for the county of Hamilton, being then in session', and the office of clerk being vacant, a written paper was handed to Goodin, signed by three of the judges, in form following: “ We agree to the appointment of ' Samuel H. Goodin to the office of clerk of the court of common pleas of Hamilton county.” At the same time the form of a journal entry was handed to the clerk pro tern, with directions to have the *same entered on the minute book, in the following words : “ It is ordered that Samuel H. Goodin be, and he is hereby appointed clerk of this court for the constitutional term of seven years.” And the court then adjourned until the next Monday morning. It does not appear that the certificate of appointed was presented to the fourth judge, and he denies that he was consulted on the subject.

On Monday morning it was discovered that the journal entry, for some cause, had not been made, and two of the judges refused to permit it to be .made, insisting that Goodin had not legally been appointed clerk, and protesting against his appointment; the other two judges at the same time insisting upon his appointment. In consequence of this opinion, the clerk refused to make the entry, and it has never been done.

On the 16th day of April, and before the final adjournment of the court, the relator appeared before the court, and produced a bond conditioned'as the law directs, for the faithful discharge of the duties, of clerk, which bond was signed by himself and a number of individuals, which bond was offered for the acceptance of the court. No objection was made to the sufficiency of the bond, but objections were made by two of the judges to its acceptance, and, of course, the court being equally divided in opinion, it was not accepted. At the same time the relator offered to take the oath of office, but owing to the same division of opinion, this also was refused.

On the 7th of May he went before a justice of the peace and took the oath of office, the court not then being in session.

At the August term of the court, and' on the 4th day of that month, the relator again came into court, and tendered the aforesaid bond, and mov ed the court to approve of the same ; he also tendered a certificate of his oath of office, and moved the court to admit him to enter upon the execution of the duties of the office of clerk. But the court being still divided in opinion as to his appointment, the motions were refused.

At the same August term., William H. Harrison was appointed clerk of the court for the term of seven years, was qualified as the law directs, and entered upon the execution of the duties of the office.

Do these, facts evince that the relator has been legally and constitutionally appointed; that he is, in truth, entitled to the ^office of clerk of the court of common pleas of Hamilton county? If so, he is deprived of a right, and the law must furnish an adequate remedy..

Section 7, of article 3, of the constitution, provides that, “each court shall appoint its own clerk for the term of.seven years.” There is no other restriction, than this: that the court of common pleas shall not appoint any person to this trust for this term of time, unless he first produce a certificate signed by a majority of the judges of the Supreme Court, that they judge him well qualified to execute the duties of the office. This right being secured to the several courts, this court will rarely, if at all, interfere with its exercise. There may be cases where it would be proper to do it, but such cases must be extremely clear and free from doubt.

The mode of. appointment is not specified in express terms, either by the constitution or the law, but as it is an act of the court, we apprehend, like every other act, it must be done by an order. It is not sufficient for the judges to give to the applicant a certificate that they have agreed, or do agree to appoint him to that office. This, of itself, can be considered in no other light than as a pledge from the individuals signing the paper that he should be appointed. Neither would a certificate by the individual members of the court, that the applicant had been appointed, be an appointment; nor would it be legal evidence of an appointment, because it would be a personal act of individuals, not their act as a court.

It is true that, from necessity, this court does sometimes make pro tem. appointments, when not holding court in the county for which the appointment is made, but never to continue for a longer period than until the commencement of the next succeeding term. It is done to prevenía failure or delay of justice. The same necessity does not exist in the court of common pleas. In case a vacancy occurs in the office of clerk in that court, the law makes provision that.the associate judges who are residents of the county, and who may be easily convened, may appoint pro tem. 29 Ohio Stat. 58. But a permanent cferk can not be appointed, either by the Supreme Court or court of common pleas, except in open court, and also by an order of court. Such seems to have been the construction put upon the law by the court of common pleas in the case before us. For, notwithstanding a certificate of the agreement of three of the judges to appoint *him, was given to the relator, yet the attempted appointment itself, was by order of court, as is manifest from the form of journal entry, handed to the clerk pro tem.

By section 94 of the practico act, 29 Stat. -75, it is provided, “that for preventing errors in entering the judgments, orders, and decrees of each court, the judges thereof, before every adjournment, shall cause the minutes of their proceedings to be publicly read by their clerk, and corrected when necessary, and the same shall be signed by the president judgé, then sitting in court; which minutes, so signed, shall be entered in a book and carefully preserved among the records; and no proceedings, orders, judgments, or decrees of either of the said courts shall be in force or valid, until the same be so recorded and signed.”

Under this section, the order of appointing a clerk as well as ev'wy other operative order of the court, must be entered upon the minute book, and until it is so entered, and the minute book signed by the presiding judge, it can not “be in force or valid;” in other words, the appointment is not complete. If this be a correct exposition of the law, Goodin was not, appointed clerk of the common pleas for the county of Hamilton. No order appointing him has ever been inserted in the minute book of the court. But it is said this is the very thing complained of. That the order was in fact made, and the object of the relator is to compel the court of common pleas to have it entered upon the minute book. This is claimed upon the hypothesis, that the fact of the appointment having been announced from the bench, it was so far made, that no change could afterward take place, neither could it be recalled. But is it so? Suppose a court should announce the name of an individual as appointed to the office of clerk, and immediately thereafter should discover that he was in no way qualified to discharge the duties; might not another appointment be made? Would it be improper for the court to direct that no entry upon the minute book should be made? Or suppose, that through mistake, the name of a wrong individual should be announced, might not the mistake be corrected ? The term of court is in law considered as one day, and during the termas a general rule every subject is open for reconsideration and correction. And this, to a certain extent, must be the case with respect to the appointment of clerk. After the announcement of the appointment, ^although the order making it is regularly entered, still, before the individual can proceed to discharge official duties, he must take an oath of office, and also give bond, with security to be approved of by the court. After all this is done, it would be too late for the court to interfere with the office, unless for good cause shown. But, until this is done, the individual appointed, has no right to demand the office. Until it is done, if the court, making the appointment think proper, in the exercise of their discretion to rescind the order, and make another appointment, I am not prepared to say that thei’e would be sufficient ground to justify the interference of this court. On the contrary, it seems to me that the office is within the control of the court until the bond is approved. The cases of Marbury v. Madison, 1 Oranch, 137, and of Drew v. The Judges of the Sweet Spxdngs District, 3 Hen. & Munf. 1, have been cited as opposed to these principles.

In the case of Marbury v. Madison, the court decided that there must be some point of time' when the power of the appointing authority over the officer must cease, when the officer is not removable at will. That this must be when the power of appointment has been exercised. And the power has been exercised when the last act required from the person possessing the power has been performed. In that case the appointing power was in the president, and the-last act was the signature of the commission. If we apply these principles to the case now under consideration, they rather sustain than controvert the position before laid down. In this case the court of common pleas was the appointing power. By the order before referred to, had the same been regularly entered on the minute book, no authority was given to the relator to enter upon the duties of the office. He must take the oath of office; he must also give bond. And here another act is to be performed by the court- — the appointing power, and that is to approve of the bond. When this is done the appointment is complete, and not before. Had these things been done Goodin would have been clerk of the court, and would have.had the right to demand the office.

The case of Dew v. The Judges of the Sweet Springs District Court, in some of its general features, is like the ease under consideration. It requires, however, but a slight examination to see that that case turned upon the ^construction of certain Virginia statutes. What those statutes are we know not, except so far as can be gathered from the report of the case. Sufficient can be collected from this to show that they are materially different from onr own, and, of course, the ease can not be considered as authority here.

'Upon the whole, we are of opinion that the relator has not established his right to the office of clerk. And such being the opinion of the court, it is unnecessary to inquire as to the power of this court to issue a writ of mandamus in a proper case made, or to examine the question whether it would be a proper mode of proceeding where the court of common pleas had wrongfully dispossessed a clerk of his office.

The rule is discharged.  