
    The State on the relation of Allen McNeal v. Philip Dombaugh, Clerk of the Court of Common Pleas of Marion County.
    1. The power to fix the times of holding elections for county officers is vested by the constitution in the legislature, and when a time has been so fixed by that body, any election for such officers held at a different time is unauthorized and void.
    2. The rejection of some of the provisions of a statute, for unconstitutionality, will not vary the sense or meaning of its remaining provisions, which are to be construed as well in the light of those rejected, as of those which remain.
    
      8 By the construction of the act for the election of county auditors, passed April 18th, 1870 (67 O. L. 103), the second Tuesday of October, 1871, and not the second Tuesday of October, 1870, is the time fixed for the election of successors to county auditors whose terms of office were by prior laws made to expire on the second Monday of March, 1871; and elections held in such cases on the second Tuesday of October, 1870, are unauthorized and void.
    Application for mandamus.
    The relator represents, that on the second Tuesday of October, 1870, he was legally elected auditor of Marion county, to serve from and after the first Monday of March, 1871, when, as he alleges, the office of the present incumbent expires; and he asks that the defendant, who refuses to give him the legal certificate of his election, may be compelled by mandamus to do so.
    The defendant answers admitting the relator’s election in fact, but denying its validity, on the ground that it was not held at the time .fixed by law. The defendant claims that by the first section of the act of April 18,1870 (67 O. L. 103), the election is required to be held on the second Tuesday of October, 1871, a year later than it was in fact held, and that the term of the incumbent does not expire till the second Monday of November, 1871.
    By the law as it existed prior to the passage of said act of April 18, 1870, the term of the incumbent auditor would expire on the first Monday of March, 1871, and the time fixed for the election of his successor was the second Tuesday of October, 1870, the day on which the election in question was held. Said act of April 18,1870, repeals the prior law, and provides as follows:
    “ Sec. 1. There shall hereafter be elected by the qualified electors in each county in this State, on the second Tuesday in October, biennially, one county auditor for such county, who shall hold his office for two years from the second Monday in November next after his election: provided, that all auditors now in office shall continue to hold their offices until two years from the second Monday in November next after taking possession of their said offices; and their successors shall be elected on the second Tuesday of October next preceding the expiration of their terms as herein provided.”
    In other words,, this section prolongs the term of the incumbent auditor from March, 1871, to November, 1871, and fixes the second Tuesday of October next preceding the expiration of the term, as therein provided, for the election of his successor.
    "What the relator claims is, that the proviso prolonging the term is unconstitutional, and should be stricken from the section, and that the remaining words of the section, read by themselves, fix the time of election for October’, 1870, the “ October next preceding the expiration ” of the legal term, which will end in March, 1871, and not in November, 1871, if the proviso is rejected.
    
      Perry <& Jenney for the relator.
    
      Aaron F. Perry argued orally:
    That the legislature cannot prolong the term of office of an officer whose term is limited by law, and whom the legislature cannot elect; and that, in the act of 1859 (S. & C. 96), having fixed the term of the county auditor at two years, the legislature could not, without another election or appointment, continue the man in office after the expiration of his term; and cited: The State ex rel., etc. v. Kennon et al., 7 Ohio St. 546; The State ex rel., etc. v. Corners of Muskingum County, 7 Ohio St. 125; The State v. Neibling, 6 Ohio St. 40; Const, of Ohio, art. 10, sec. 2; Cooley’s Const. Limitations, 78, 83 n. 2, 88, 177, 178.
    If the clause in the first section of the law of 1870, prolonging the term, be stricken out, the term remains the same as under the old law.
    Every reasonable intendment is in favor of the validity of an election. The State v. Cogswell, 8 Ohio St. 628. Proclamation is not absolutely necessary to the validity of an election. 15 Ohio St. 537, 144.
    If all law for an election of auditor on the second Tuesday of October, 1870, is repealed, then there is a vacancy to be filled by the commissioners.
    As to contemporaneous construction. In each of the instances cited on the other side, the new term was postponed a short time. How that space was filled does not appear. There is no decision of the supreme court or legislature how it should .be filled and, therefore, no contemporaneous construction. But in neither instance did the legislature assume the right to shorten or prolong the term for which an officer was elected. Nor did the legislature in either case postpone or suspend the election. The elections were to be held under the new law at the same times as before.
    
      Iloadly, Jadcson da Johnson for defendant:
    The act of April 18, 1870 (67 O. L. 103), is in no part unconstitutional. Therefore the relator was not lawfully elected county auditor, and is not entitled to the relief asked.
    1. Even if so much of the proviso to the first section as prolongs the term of auditors, in office, until November, 1871, were unconstitutional, it by no means follows that the whole proviso falls. For only that portion thereof which is dearly unconstitutional will be disregarded: the rest must be obeyed and enforced.
    2. It appears from the proviso to have been the intention of the general assembly to postpone the election of county auditors from the evento the odd year — from 1870 to 1871— to the October election after the “ expiration of their terms as herein provided? This is clearly constitutional. The State v. Commissioners, etc., 7 Ohio St. 125.
    3. Whether this leaves a vacancy on the first Monday of March, to be filled by appointment of county commissioners, or not, is immaterial. In either case the relator fails, because elected one year too soon.
    4. But the law in question is in no part unconstitutional; the proviso is easily defended in all particulars.
    5. For it is not in conflict with art. x. secs. 1 and 2 of the constitution, as it does not prolong the term beyond three years.
    
      6. It is an ordinary exercise of the power of the general assembly to fix by law the dates of the beginning and ending of terms of office of county officers. The State v. Commissioners, etc., 7 Ohio St. 125; The State v. Neibling, 6 Ohio St. 48.
    7. It is at most a legislative devolution and transfer of the duties of the office from March until November upon a class of officers already chosen. This is not the exercise of the appointing power, no more than is the authority to county commissioners to fill vacancies. The State v. Kennon et al., 7 Ohio St. 546, 572.
    8. But it is not even this. The county auditors in office were elected to hold for the term of two years, and until their successors should be elected and qualified. 1 S. & O. 96. As the general assembly have, under the constitution, as already shown, aright to regulate the times of holding elections in such cases, and the beginning of the terms of auditors, it follows that this section is to be read in law as if it read in fact thus: “ Be it enacted that the next election for county auditor, in any county, shall be held on the second' Tuesday of October next preceding the second Monday of November next after the expiration of two years from the date of the taking possession of his office by the county auditor now in office, in any county; and hereafter county auditors shall be elected for terms of two years from the second Monday of November next after their respective elections.” The provision conferring the office of auditor on the officer in office, for the extended term of eight months, is only, therefore, declaratory of what would be the effect of the act without it.
    9. Like power has been repeatedly exercised by the general assembly without denial. Contemporaneous construction aids our argument. 2 S. & C. 1403-4, as to sheriffs and coroners; 2 S. & C. 1479, as to treasures; 1 S. & C. 96, as to auditors; 2 S. & C. 1584; Swan’s Stat of 1854, 62, 879, 1008; The State v. Constable, 7 Ohio (pt. 1), 1.
    10. The bond of the county auditors now in office secures faithful performance of duty during a term of two years and until their successors are elected and qualified. 1 S. & C. 96.
    
      F. B. Pond, attorney-general, also for defendant:
    Was McNeal duly elected auditor on the second Tuesday of October, 1870, and is he entitled, upon the papers, to the certificate of such election?
    
    All officers in Ohio are creatures either of the constitution directly, or of statute sanctioned by the constitution.
    The office of county auditor is not created by the constitution, but, under our system, being an office necessary for the transaction of the business of the county, the auditor is one of the county officers for which “ the general assembly shall by law provide.” Const., art. 10, sec. 2. Under this section the election is to be held on the second Tuesday of October, “ unless otherwise provided hy law,” by the general assembly ; thus leaving it for the general assembly to designate by law the time for the election of auditor, as well as the length of term, not exceeding three years.
    After having once fixed the term, the general assembly may by law increase or diminish the length of term. This the framers of the constitution clearly contemplated might be found necessary for the public interest or convenience, else they would, themselves, have fixed it unalterably, as they did the terms of the judges and clerks of the courts.
    But to either lengthen or shorten the term would render it necessaiy to change the time when the succeeding term should commence. The constitution, therefore, clearly leaves to the general assembly the power to fix the time when any succeeding term should commence and provide when the election therefor should take place.
    This principle seems to be settled in The State v. Neibling, 6 Ohio St. 43. See also the similarity between art. 2, sec. 27, and art. 10, sec. 2 and art. 2, sec. 20, of the constitution.
    As to the legislative interpretation of these sections of the constitution, see Swan’s Stat. 105, 963 ; S. & C. 96, 789, 1279, 1403, 1479.
    As to the question whether the general assembly, by providing in the act of 1870, expressly, for the extension of the term of the incumbent from March to November, has attempted to exercise appointing power in violation of the constitution, see The State ex rel., etc. v. Kennon et al., 7 Ohio St. 572.
    This question does not appear to arise in the case, for it does not matter, so far as the question under discussion is concerned, whether the general assembly had power to so extend his term, or whether, not having such power, a vacancy will occur in that office on and after the first Monday in March, 1871, to be filled under the 5th section of the act of 1870. The question here is, was McNeal legally elected auditor on the second Tuesday of October, 1870, and is he entitled to demand and have the certificate ?
    It is well settled that portions of an act may be held constitutional, while others may be held unconstitutional, and if capable of being separated, the portions repugnant to the constitution may fall, and the others stand.
    And the repugnancy to the constitution must be “ necessary and obvious to warrant the court in declaring the act unconstitutional.” The State ex rel., etc. v. Dudley, 1 Ohio St. 437; Cass v. Dillon, 2 Ohio St. 607.
   Welch, J.

By the constitution (art. x. sec. 2) the power of fixing the times for the election of county officers is vested in the legislature. When a time has been so fixed any election held at a different time is unauthorized and void. The act of April 18,1870, having repealed all prior laws on the subject, its first section contains the only provision fixing the time for the election of county auditors. The single question in the case, therefore, is, what time does that section fix for the election? Is it the second Tuesday in October, 1870, the date of relator’s election, or is it the second Tuesday in October, 1871 ? We have no hesitation in saying that the latter date was intended. The section consists of two provisions, First, it prolongs the old terms from March, 1871, to November, 1871; and, secondly, it provides for the election of successors on the second Tuesday of October next preceding the expiration of the terms thus prolonged. The language is, “ The terms as herem provided.” The terms as therein provided were to expire in November, 1871, and the October next preceding their expiration, would be October, 1871, just as unmistakably as if the act had said so'in direct language. Nor can this plain meaning of the legislature, in regard to the time of holding the election, be varied, or annulled, by any want of power to make the other provision of the section, which professes to prolong the old terms of the office. The power to fix the time of the election is plenary, and independent of any action or non-action in regard to the old terms. It was competent for the legislature to fix the election for October, 1871, and at the same time leave the old terms to expire in March, 1871. It is quite probable, had the legislature not supposed they had the power to prolong the old terms, they would have fixed the second Tuesday of October, 1870, instead of 1871, as the time for the election of successors. But the question is not what they would have done, under other circumstances, but what they have done. They have plainly fixed the election on the second Tuesday of October, 1871. It is, therefore, useless, and it would be going out of the case, and in effect deciding the rights of parties not before us, to inquire whether the legislature had the constitutional power to prolong the old terms of office. Whether they had or had not this power, they have fixed the election for October, 1871. And we can see no force or logic in the argument by which it is attempted, first, to strike from the section the words of the proviso prolonging the term, and then, by a literal rendering of the remaining words of the section, by themselves considered, to determine the time fixed for the election. This would be to mutilate the section, and garble its meaning. The legislative intention must not be confounded with their power to carry that intention into effect. To refuse to give force and vitality to a provision of law is one thing, and to refuse to read it is a very different thing. It is by a mere figure of speech that we say an unconstitutional provision of a statute is stricken out.” For all the purposes of construction it is to be regarded as part of the act. The meaning of the legislature must be gathered from all they have said, as- well from that which is ineffective for want of power, as from that which is authorized by law. Read in this way the meaning of the section admits of no controversy. It fixes the election on the second Tuesday of October next preceding the expiration of the term as so prolonged, which will be the second Tuesday in October, 1871.

Mandamus refused. '

Bbinkerhoff, C.J., and Scott, White, and Day, JJ., concurred.  