
    State of Ohio ex rel. Savage v. Hidy, Judge.
    
      Judge-elect may practice law — After receiving commission, but whose term of ofñce has not yet began — Section 562, Rev. Statr
    
    The provision of the Revised Statutes Section 562, that “No person shall practice as an attorney and counsellor at law in any court of this state * * * who holds a commission as judge of any court of record” does not apply to one who has received a commission to act as judge for the term for which he was elected, but whose term of office has not yet begun.
    (Decided January 30, 1900.)
    In Mandamus.
    This is a petition for mandamus to require the defendant to permit the relator to appear in court as an attorney at law, up to the time the relator shall assume the duties of judge of the court of common pleas, to which office he has been duly elected and commissioned. The petition shows that the relator is an attorney-at-law, duly authorized to practice his profession in all the courts of Ohio; that on the 7th day of November, 1899, he was elected to the office of judge of the court of common pleas, for the term of five years, commencing on the first Monday of May, 1900; that a commission was duly issued to him, as such judge-elect, on the-21st day of December, 1899, and on the following day he took the oath of. office and transmitted, as required by law, to the clerk of the court of common pleas of Clinton county, Ohio, a certificate thereof; and that the defendant, who is presiding judge of the court of common pleas of Fayette county, now refuses to permit the relator to appear as an attorney in a certain case now pending in that court, by reason of the provisions of section 562 of the Revised Statutes of Ohio. The relator also shows that by reason of the ruling of the defendant he will be debarred of his right to practice his profession for nearly four months and from the only means of his earning a living during that time, and that during that time he can receive no salary as judge of the court of common pleas and has no present right to exercise the functions of that office.
    
      L. T. Neal and 8. G. Smith, for relator.
    
      J. M. Sheets, Attorney General, for defendant.
   By the Court:

The provision of the Revised Statutes, section 562, that “No person shall practice as an attorney and counselor at law in any court of this state * * *

who holds a commission as judge of any court of record,” does not apply to one who has received a commission to "act as judge for the term for which he was elected, but whose term of office has not yet begun. As to the time preceding the commencement of his term he cannot be considered as holding a •commission as judge, but merely as holding a commission authorizing him to assume the functions of a judge at the proper time. Until such time he is not a judge and is invested only with the right to be a judge. It is obvious that the sense in which the legislature used the word “hold” is not that in which it is taken by the defendant; for if one whose term of office as judge has expired continues in possession of his commission, he holds the same, but no longer holds it as judge.

Peremptory writ allowed.  