
    OFFICE AND OFFICERS — QUO WARRANTO.
    [Franklin (2nd) Circuit Court,
    September Term, 1906.]
    Wilson, Sullivan and Dustin, JJ.
    State ex rel. Mark Slater v. John W. Johnson.
    1. Quo Warranto on Relation of a De Facto Officer.
    Quo warranto on relation of an individual will lie where the relator claims-to be entitled to the office in controversy, but the relator must show a prima -facie right to the office claimed, and such right cannot be based on the fact that he is the de facto officer; in such a case the usurper of a state office can be ousted only in an action brought by .the attorney-general.
    [For other cases in point, see 7 Cyc. Dig.,- “Quo Warranto,” §§ 162-166. — Ed.]
    2. Right to Appointive Office on Failure of Senate to Confirm Appointment.
    A person appointed to the office of supervisor of public printing by the-governor, which appointment was not confirmed at the next session of the senate, becomes a de facto officer after the failure of the senate to confirm, and it is the duty of the governor to make a new appointment.
    Heabd on demurrer to petition.
    Emmitt Tompkins and J. H. Allen, for plaintiff.
    Lentz, Fritter & Belcher, for defendants.
    The action is brought in the name of the state without warrant or authority of law. Revised Statutes 6760, 6762, 6763, 6764 (Lan. 10353, 10355, 10356, 10357).
    The relator must show title in himself to the office oh supervisor of public printing, and cannot rely on any defect in the title of the defendant. 23 Am. & Eng. Ene. Law (2 ed.) 351; Toney v. Harris, 85 Ky. 453 [3 S. W. Rep. 614]; McCall v. Well, 125 N. C. 243 [34 S. E. Rep. 430]; Jefferson Co. (Justices) v. Clark, 17 Ky. (1 T. B. Mon.) 82; State v. Brewster, 44 Ohio St. 589 [9 N. E. Rep. 849],
    The petition should allege that the relator was at the time of his alleged ejection, and has ever since been, possessed of the necessary qualifications for the office of supervisor of public printing. State v. Beecher, 15 Ohio 723.
   DUSTIN, J.

This action was brought under favor of Rev. Stat. 6764 (Lan. 10357), and is before the court on a demurrer to the petition. We conclude :

First, that the case is properly entitled. See State v. Taylor, 50 Ohio St. 120 [38 N. E. Rep. 24]; 17 Enc. Pl. and Pr. 433, and cases there cited.

Second, that when an action in quo warranto, on the relation of a private individual, is brought to oust the incumbent from an office to which the relator claims title, the petition must show a prima facie right, in the relator to the office claimed. Toney v. Harris, 85 Ky. 453 [3 S. W. Rep. 614]; People v. Perley, 80 N. Y. 624; State v. Hay, Wri. 96; and numerous citations in 23 Am. & Eng. Enc. of Law (2 ed.) 626.

Slater sets forth that he was appointed to the office of supervisor of public printing by Governor Nash, June 1, 1903, and reappointed by Governor Herrick, June 1, 1905; but, that the latter appointment (made in vacation) was not confirmed at the next session of the senate, which adjourned April 2, 1906.

Averring that no other .appointment — meaning no other legal appointment- — -has been made, the relator claims to be a “holdover,” and entitled to continue in possession under Rev. Stat. 8 (Lan. 9), which provides that—

‘! Any person holding an office of public trust .shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the constitution or laws.”

In the ease of appointive state offices, — such as supervisor of public printing, — it is “otherwise provided,” as follows:

Revised Statute 12 (Lan. 13).' “In case of a vacancy in any office filled by appointment of the governor, by and with the advice of the senate, .occurring by expiration of term, or otherwise, when the senate is in session, the governor shall appoint a person to fill such vacancy, and forthwith report such appointment to the senate; and when the senate is not in session, and no appointment has been made and confirmed, in ¡.nticipation of such vacancy, the governor shall fill the vacancy and report the appointment to the next session of the senate; and if the senate advise and consent to the same, the person so appointed shall hold the office for the full term; and if the senate do not so advise and consent, a new appointment shall be made.”

The last clause of the foregoing section applies exactly to the circumstances of this case. The senate did “not so advise and consent” to the second appointment; therefore, Slater’s legal incumbency immediately ceased.

It became the duty of the then governor at once to make a new appointment. Until that was done Slater was a de facto, but not a de jure official.

If the remaining averments of the petition as to Johnson’s usurpation of the office be true, as the demurrer technically admits, it is a ease for action by the attorney-general, not by Slater, since he shows no right to the office in himself.

The demurrer will be sustained.

Wilson and Sullivan, JJ., concur.  