
    The State, ex rel. Chittenden, v. Harmon, Governor.
    
      Identity of court of appeals and circuit court — Sixth section of fourth article of constitution of state — Effective Jamiary i, 1913 — One elected circuit court judge entitled to serve as judge of court of appeals.
    
    The sixth section of the fourth article of the constitution of the state, effective January 1, 1913, although substituting the court of appeals for the circuit court, recognizes and preserves the identity of those courts to the extent that one who prior to that date had been elected a judge of the circuit court for a term of six years, beginning February 9, 1913, is entitled to serve as x judge of the court of appeals for the term to which he had been so elected.
    (No. 13947
    Decided February 11, 1913.)
    In Mandamus.
    The relator appeals to our original jurisdiction for a writ of mandamus requiring the governor to issue to him a commission as judge of the circuit court to which he alleges he had been elected on the 5th day of November, 1912, for the term of six years, beginning- on February 9, 1913, to serve in the sixth judicial circuit of the state. Confessedly his petition contains all the allegations that would have been necessary to entitle him to the commission if it were not for the privisions amending the judicial article of the constitution, ratified in September, 1912, to become effective January 1, 1913. The governor answering admits the allegations of the petition and submits to the court the questions arising thereon declaring his willingness to abide by the judgment.
    
      Mr. A. N. Summers; Mr. C. S. Northup and Mr. F. M. Hagan, for relator.
    We invite the attention of the court to some principles which have heretofore received its approbation as aids in constitutional construction. Cass v. Dillon, 2 Ohio St., 608; Platt v. Craig, 66 Ohio St., 77; Lehman v. McBride, 15 Ohio St., 602.
    An analogous case is presented in the construction of a statute in State v. General Fire Extinguisher Co., 20 Dec., 244, citing with approval Standard Oil Co. v. State, 117 Tenn., 618, 10 L. R. A., N. S., 1015; Holy Trinity Church v. United States, 143 U. S., 457.
    A public office is a right with the corresponding duty to exercise a public function or employment and to take the emoluments, if any, pertaining thereto. State, ex rel., v. Wilson, 29 Ohio St., 349.
    We contend that it was not the purpose of the Constitutional Convention to abolish the circuit court and to establish a new court, but the intention was merely to alter the jurisdiction of the intermediate court by conferring on courts of appeals the power to issue writs of prohibition, and by changing the name of the court to that of courts of appeals. That such was the intention clearly appears from a consideration of all the provisions of the amendments. State, ex rel., v. Brewster, 44 Ohio St., 589.
    It has been frequently held by this court that a “vacancy” to be filled by appointment does not result from the expiration of a term of office, but is the result of a mere fortuitous happening occasioned by death, resignation, or removal, in offices for which there has been provided an elected incumbent. State, ex rel. Kelly, v. Thrall, 59 Ohio St., 369; State, ex rel. Wilson, v. Pontius, 78 Ohio St., 353; State, ex rel. Hoyt, v. Metcalfe, 80 Ohio St., 244.
    
      Henry v. Trustees, 48 Ohio St., 675, was a case construing a statute, the construction of which is analogous to that of the constitution, except that the latter, in the light of the authorities, is to be more liberally construed than statutes. In that case it is held that the intent of the instrument must be determined, even though this may require a departure from the literal meaning of the words. Endlich on Interp. of Stats., Sec. 295; Terrill v. Auchauer, 14 Ohio St., 87; People, ex rel., v. State Treasurer, 23 Mich., 499; People, ex rel. Kennedy, v. Geis, County Treasurer, 25 Mich., 83; State v. Gardner, 3 S. Dak., 557; Hunt 
      v. State, 7 Tex. App., 231; 1 Story on Constitution, Sec. 451; People v. Harding, 53 Mich., 485.
    
      Mr. Timothy S. Slogan, attorney general; Mr. J. M. McGillivray; Mr. George B. Okey; Mr. Thomas J. Keating and Mr. John A. McMahon, for respondent.
    The first step in the interpretation of a constitutional or statutory provision must be in the direction of a search for the intent. Primarily the intent must be sought in the language used. 8 Cyc., 732; State v. McGough, 118 Ala., 159, 24 So. Rep., 395; Newell, Auditor, v. People, ex rel., 7 N. Y., 83; Standard Oil Co. v. United States, 221 U. S., 1, 55 L. Ed., 619; Slingluff v. Weaver, 66 Ohio St., 621; Wilcox v. Nolze, 34 Ohio St., 523; Sipe, Auditor, v. State, ex rel., 86 Ohio St., 80.
    The extension, by construction, of the meaning of the phrase “the judges of the circuit courts now residing in their respective districts,” to include judges-elect to the circuit courts whose terms would have commenced, if the court had not been abolished, on February 9th, is sought to be reached by giving a supposed popular meaning of the word “judge” and striking out as surplusage the phrase “residing in their respective districts.”
    A judge-elect is not a judge within the recognized and ordinary meaning of the words. For definition of a judge, see Bouvier’s Dictionary, Anderson’s Law Dictionary, Century Dictionary, Wharton’s Law Lexicon. State, ex rel., v. Hidy, 61 Ohio St., 550.
    As against the claim that, because the candidates for judge last fall were chosen by the electors of districts which now correspond to the appellate districts, they are entitled to become judges of the courts of appeals, we call attention to the rule that constitutions can only speak from the time they become effective, and, unless otherwise provided, operate prospectively. 8 Cyc., 731; State, ex rel., v. Pattison, 73 Ohio St., 327.
    Although debates may be for some purposes, but in a limited degree, consulted in interpreting a doubtful phrase or provision of the constitution, they are, as a rule, deemed unsafe. Rasmussen v. Baker, 7 Wyo., 117; United States v. Trans-Missouri Freight Assn., 166 U. S., 318; Exchange Bank v. Hines, 3 Ohio St., 47.
    The books are full of illustrations of cases in which persons who have been elected by the people were not permitted to fill the positions for which they had been chosen.
    If there is no position to fill, that is, if the office is not vacant, if every voter in the state voted for another, the election is still invalid. Commonwealth v. Baxter, 35 Pa. St., 263; Sawyer v. Haydon, 1 Nev., 75.
    There is no implied power to hold an election, and if an election is held for a judge without authority of law, it is invalid. State v. Gardner, 3 S. Dak., 553; Matthews v. Commrs. of Shawnee, 34 Kans., 606.
    
      No election is valid unless it is authorized by some statute in force and applicable thereto. State v. Smith, 4 Ark., 613.
    The election of a judge, not authorized by the constitution is void. People v. Bangs, 24 Ill., 184; McKune v. Weller, 11 Cal., 60.
    We have here a designation or appointment of the circuit court judges to perform the duties of the judg'es of the courts of appeal “until the expiration of their respective terms of office.” But the vacancies arising by such expiration of terms can be filled only by the electors of the respective appellate districts. And the duty is imposed upon the law-making power to provide the machinery therefor by prescribing the “time” and “mode” of such election. The authorit}^ to so provide, while permissive in form, is mandatory in effect. C. S. & C. Rd. Co. v. Mowatt, 35 Ohio St., 288; 8 Cyc, 761; People, ex rel., v. Lawrence, 36 Barb, 186.
    The phraseology under consideration was, in effect, a command that such judges should continue to hold the office until, first, laws should be passed providing for the election, and second, the election and qualification of successors in pursuance of such laws.
    While the recent adoption of Section 6 of the constitution operated to repeal, as inconsistent therewith, Section 1514, General Code, so far as future elections are concerned, Section 8 is still in full force and unaffected thereby. State, ex rel., v. Howe, 25 Ohio St., 597; State, ex rel., v. 
      McCracken, 51 Ohio St., 129; State, ex rel., v. Wright, 56 Ohio St., 553; 23 Cyc., 515.
    The principle was recognized and declared in Article XVII of the constitution, adopted in 1905, by the provision, applicable to incumbents in office at that time, that they should continue to hold their offices until their successors were “elected and qualified according to law.”
   Si-iaucic, C. J.

At the general election held on November 5, 1912, the relator was elected to the office of judge of the circuit court for the sixth judicial circuit for the term of six years to begin on the 9th day of February, 1913. It is admitted that there was at the time clear constitutional and statutory authority for that election. The doubts which justified the governor in withholding the commission of the relator until his right thereto should be determined by this department arise out of the amendments to the constitution of the state whose valid ratification on September 3, 1912, to take effect January 1, 1913, is admitted. By the amendment the circuit court is superseded by the court of appeals, and for the respondent it is contended that as there will be no circuit court in existence for the term to which the relator 'was elected, or any part thereof, the writ should not issue to require the respondent to do a vain thing. For the relator it • is insisted that although the court of appeals has superseded the circuit court, such relation between the two courts is established and maintained by the instrument by which the change was accomplished as to make the commission effective to authorize the relator to exercise the functions of a judge of the court of appeals for six years from February 9, 1913.

To support their view counsel for the relator quote at length from the debates in the convention which submitted the proposed amendments for ratification by the electors. But from both the nature of the subject and the adjudications respecting it we receive very impressive warnings against reliance upon that source of information. It is quite familiar that written contracts conclude all previous and contemporaneous stipulations, and that even as to statutes the views as to their meaning entertained by members of the bodies empowered to enact them and to give them full effect are not appropriate sources of information respecting their meanings. United States v. Trans-Missouri Freight Assn., 166 U. S., 318. In Exchange Bank v. Hines, 3 Ohio St., 47, Thurman, J., has pointed out that less consideration is due to the views of individual members of a convention which is not empowered to enact but only to suggest.

Propriety requires us to assume that the one-fourth of the electors of the state by whom the amendments were ratified fully appreciated the gravity of changing the organic law of a great state which had been formulated with great care and that they employed terms which they deemed appropriate to accomplish the changes which they intended to make. To the language which they used and to the purposes which they indicated we must resort to ascertain their intention. The provisions affecting the question to be determined are contained in Section 6 of Article IV. The material portion of the section is:

“Sec. 6. The state shall be divided into appellate districts of compact territory bounded by county lines, in each of which there shall be a court of appeals consisting of three judges, and until altered by law the circuits in which the circuit courts are now held shall constitute the appellate districts aforesaid. The judges of the circuit courts now residing in their respective districts shall be the judges of the respective courts of appeals in such districts and perform the duties thereof until the expiration of their respective terms of office. Vacancies caused by the expiration of the terms of office of the judges of the courts of appeals shall be filled by the electors of the respective appellate districts in which such vacancies shall arise. Until otherwise provided by law the term of office of such judges shall be six years. Laws may be passed to prescribe the time and mode of such election and to alter the number of districts or the boundaries thereof, but no - such change shall abridge the term of any judge then in office. The court of appeals shall hold at least one term annually in each county in the district and such other terms at a county seat in the district as the judges may determine upon, and the county commissioners of any county in which the court of appeals shall hold sessions shall make proper and convenient provisions for the holding of such court by its judges and officers. Each judge shall be competent to -exercise judicial powers in any appellate district of the state. The courts of appeals shall continue the work of the respective circuit courts and all pending cases and proceeding's in the circuit court shall proceed to judgment and be determined by the respective courts of appeals, and the supreme court, as now provided by law, and cases brought into said court of appeals after the taking effect hereof shall be subject to the provisions hereof, and the circuit courts shall be merged into, and their work continued by, the courts of appeals. The courts of appeals shall have original jurisdiction in quo ztr.arranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law, and judgments of the courts of appeals shall be final in all cases, except cases involving questions arising under the constitution of the United States or of this state, cases of felony, cases of which it has original jurisdiction, and cases of public or great general interest in which the supreme court may direct any court of appeals to certify its record to that court. No judgment of a court of common pleas, a superior court or other court of record shall be reversed except by the concurrence of all the judges of the court of appeals on the weight of the evidence, and by a majority of such court of appeals upon other questions; and whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination.”

A comparison of these provisions with the preceding constitutional and statutory provisions relating to the composition of the circuit courts, the selection of the judges, the boundaries of the circuits and districts, and the general character of the jurisdiction conferred, discloses a purpose to retain in our judicial system an intermediate court of errors and appeals sustaining a similar relation to the inferior courts and to the supreme court as did the circuit court, but designated by a different name. It is true that the language employed to confer appellate jurisdiction on the court of appeals differs widely from that previously employed by the statute to confer such jurisdiction upon the circuit court, but whether any substantial change in that jurisdiction was intended will be for determination in cases which may present the question. It is also true that with designated exceptions the judgments of a court of appeals are declared “final,” thus using a word which previously characterized judgments which were subject to review, but in a connection which may now require it to be construed as meaning that they are not subject to review. The comparison seems to justify the statement that no change whatever is effected which required a change in the constitution except in the name of the court and the addition of prohibition to the subjects of its original jurisdiction.

• Counsel for the relator call attention to some of the definite provisions of the section as supporting their view. One of them is: “judges of the circuit courts now residing in their respective districts shall be the judges of the respective courts of appeals in such districts and perform the duties thereof until the expiration of their respective terms of office.” The word “now” in this connection is properly said to refer to the first day of January, 1913, when the section, if ratified, was to take effect. However that may be, and however frequently the title of judge may be applied to persons who do not hold judicial stations, it is evident that the relator could not upon that day, with regard for the technical meaning of words, be said to have been a judge of the circuit court. This was expressly decided in State, ex rel. Savage, v. Hidy, Judge, 61 Ohio St., 549. But all the authorities admonish us that we are construing the language of the people and that we must not deny it an intended meaning because it would be technically incorrect. In view of numerous expressions used in this amendment special heed should be given to this admonition in the present consideration, for we find a number of these are used in obvious disregard of their technical meaning and some in like disregard of strict lexicology. While the provision quoted cannot be said to import, it does suggest that there was in mind the uninterrupted identity of the intermediate court.

Another provision is much more significant with respect to the question before us: “The circuit courts shall be merged into and their work continued by the courts of appeals.” While this form of expression would hardly be anticipated in an instrument of the character of this, it cannot be regarded as the mere equivalent of: “The circuit court shall be succeeded by the court of appeals.” It obviously denotes a more intimate relation between the circuit courts and the courts of appeals than would be denoted by the provision that the latter should succeed the former. It being clear that there was intended no such difference in the constitution or functions of the intermediate courts as would make an election to one court inconsistent with service in the other, there being expressed the practical functional identity of the courts in the provision that judges actually serving in one should serve in the other, and there being in the provision lastly quoted a characterization of the transition which clearly retains a more intimate relation than that of mere succession, we think the language employed, considered with the objects to be attained, properly leads to the conclusion that by virtue of his election the relator will be entitled to exercise the functions of a judge of the court of appeals for six years from February 9, 1913.

Peremptory writ allowed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.  