
    The State of Ohio ex rel. Theodore Chambers v. Milton H. Cook.
    The municipal code, which took effect July 1, 1869, created the elective office of street commissioner,' but made no special provision for his election. It provides that all elective officers shall serve for two years, that the regular annual period for their election shall be on the first Monday of April, and that special elections shall be held to fill vacancies for their respective unexpired terms. In the city of Cincinnati a street commissioner was elected at a special election, July 12, 1809 ; and, at the next regular annual election in April, another person was elected, who qualified and entered upon the duties of the office. Held, that the term of the officer elected in July, 1809, expired when his successor was elected - and qualified in April, 1870, and that, therefore, he is not entitled to judgment of ouster against the incumbent.
    Quo warranto. Reserved in the district court of Hamilton county.
    The information was filed in the district court of Hamilton county on the 11th day of May, 1870. The relator states that, on the 12th day of July, 1869, he was duly elected street commissioner of the city of Cincinnati; that he was duly qualified and entered upon the discharge of the duties of his office, and continued so to do until April 12,1870; that the term of the office is fixed by law at two years; and claims that he has the right to hold the office until the annual election in 1871. lie further states that, on the 12th day of April, 1870, the defendant usurped and intruded into the office, and ousted him therefrom, and continues to hold the same.
    The first j)lea of the defendant denies that the relator waa duly elected and qualified as street commissioner; but be avers that, at the annual election in April, 1870, he, the defendant, was elected to the’ office, that he was duly qualified as such officer, and, on the 12th day of April, 1870, he entered upon the duties of the office, and denies that he usurps the same.
    In his second plea the defendant states that the relator was elected, on the 12th day of July, 1869, street commissioner, to hold the office until the annual election in April, 1870; at which election he avers that he, the defendant, was. elected; that he duly qualified, and, on the 12th day of April, 1870, entered upon the duties of the office, at which time the term of the relator’s office expired.
    The relator replies that there was no vacancy in the office on. the day of the annual election, and denies that the defendant was duly elected and qualified as such officer.
    The case was submitted on an agreed statement of facts as follows:’
    “The proceedings at the special election on July 12th, at which Chambers claims to have been elected, were all regular, and Chambers was duly qualified to act, if, as a matter of law, there was any power to hold such special election.
    “ The proceedings at the general election of April 4,1870, at which Cook claims to have been elected, were regular, and Cook was properly elected and duly qualified to act on April 12,1870, if the court find that there was not any person then entitled to hold said office as against him.
    “To sustain the allegation in the second plea that the term for which Chambers was elected was only until the April election of 1870, and until his successor was elected and qualified, counsel for defendant offer the following facts, which are agreed to be true, subject to the opinion of the court as to their admissibility and effect.
    “ 1. That on the 29th day of June, 1869, the council of the city of Cincinnati passed a resolution to take effect July 1st, ordering the mayor to issue a proclamation for the election of a street commissioner, immediately after July 1,1869, said officer to be elected to hold until the next general municipal election, or until Ms successor shall be elected and qualified.
    
      “2. That the mayor issued his proclamation stating it to bo in pursuance-of such resolution, and that the special election of July 12th, 1869, was held by virtue of said proclamation.
    “ 3. That the condition of the bond filed by Theodore Chambers to qualify himself for the said office was as follows :
    “ ‘ The condition of the above obligation is such that whereas the said Theodore Chambers was on the 12th day of July, 1869, duly elected to the office of street commissioner, to hold until the election of officers in April, 1870, and until his successor is duly elected and qualified; now then if the said Theodore Chambers shall well and truly perform all the duties of his office, as such street commissioner, then the above obligation to be void, otherwise to remain in full force and effect.’
    “4. That at the election held April 4th, 1870, the said Theodore Chambers was a candidate against said Milton H. Cook, and was defeated.
    “5. That on April 18th, 1870, said Chambers di’ew his salai’y up to the time he ceased to hold his office and gave the following receipt:
    “‘$100. “‘No. 211.
    “ ‘ Beceived April 18th, 1870, a warrant fx'om the city auditor for oxie hundred dollars, for account in full of salary as stx'eet commissioner.
    “‘T. Chambers.’”
    The case was reserved in the district court for decision in this court.
    
      JJoadly, Jaohson ds Johnson for the relator:
    The office was first cx’eated by the 61st section of the municipal code (66 O. L. 145), and is elective. The 62d section provides that: “all offieex’s who are elected shall serve for two yeax*s axxd until their successors are elected axxd qualified.” If this is applied to the case of the x’elatox', his term will not expire until July 12th, 1871, two years from the date of his election. Having been elected by the people, he is within the letter of the law, and also its reason, for its object is to secure reasonable permanency in official station.
    As soon as the law took effect, July 1st, 1860 (see sec. 731), the office was established. But there was no incumbent : hence, as there was no special provision by the law for the election of the first officers in such cases, there was a vacancy in office. We find here the conditions of a vacancy; viz.: an established office without an incumbent officer.
    If, then, this was a case of vacancy, it was governed by section 70 : “Special elections” . . . “ of any officer chosen by the electors shall be held within twenty days after a vacancy happens,” . . . “at such time and place as the mayor shall direct, so that ten days’ notice of such election be first given.” Section 66 provides that: “ all elections to fill vacancies shall be for the unexpired term.”
    If, then, the case be treated as one of vacancy, the only remaining question is as to the extent of the nnexpired term. And it seems to us that this must be and can be no other than the whole of the regular two-years term, less either the period expired since the taking effect of the law, or the period elapsed since the last previous annual municipal election. That it is the latter is indicated by this consideration. Had the municipal code taken effect just prior to April, 1869, there would have been elected at the April election in that year, a street commissioner for the full term of two years. A vacancy occurring in July, 1869, is a vacancy therefore of all the term, except such as would have elapsed had the officer been chosen at the next previous election. On this theory, Chambers’ term will expire April 1st, 1871.
    The municipal code established the office of street commissioner as a subsisting, efficient agency in the government of Cincinnati. It made (chapter 46) this officer a member of the board of improvements. The municipal code took effect July 1st, 1869. It nowhere authorizes the city council to order elections or fix the term of officers to be elected by-the people. The mayor is required to act independently of the council in issuing his proclamation for special elections.
    
      The attempt to assert an estoppel against Chambers, on the basis of his bond, his candidacy against Cook, in April, 1870, and his receipt for salary, must fail. The tenure of office does not depend upon private contract. If Chambers was legally elected for a term not yet expired, the people can only be deprived of the right to require him to discharge his duty as such officer*, by his resignation or a motion. Neither is shown. Ilis bond, by its terms, binds him and the sureties, “ until his successor is duly elected and qualified,” a period not yet elapsed. His receipt is in full, no doubt — in full, to its date. On his having been a candidate, if there Was no vacancy, no claim can be based. It did not make a vacancy.
    
      J. Bryant Walker (for Walker, Conner & Warrington) for defendant:
    1. There was no law authorizing the holding’of the special election on the 12th of July, 1869, and Chambers was, therefore, never duly elected at all.
    The sections of the municipal code relating to this subject are sections 62, 66, 70, 71.
    The word vacancy, as used in this act, refers only to the removal of a regular incumbent by some unforeseen casualty, such as death, resignation, or removal beyond the limits of the corporation (sec. 67). ' The creation of a new office which has never been filled, is not the “ happening ” of a vacancy. This seems to me to be shown by the whole construction of the sections above named. Story on the Constitution, sec. 1559. And see sec. 71 as amended, as to the legislative understanding.
    The law directing that the first Monday in April shall be the regular annual period for the election of all municipal officers, and the first authorized election after the municipal code took effect being that of April, 1870, a street commissioner was properly elected then; and if that were the case, it is admitted that Cook was then duly elected, and he is properly in office.
    2. Even if the election was valid, the term for which Chambers was elécted was only until the April election, 1870; and at that election a street commissioner was properly elected.
    This election can only be sustained by bringing it under the head of a special election to fill a vacancy; though I do not believe it can be so sustained. Now, if this is a vacancy, what is the unexpired term?
    It is for the relator to establish that the unexpired term, for which alone the election could legally have been held, must have been one year and nine months, and not nine months, as counsel declared it; and here he fails entirely, inasmuch as the whole idea of an unexpired term is a fiction, and the supposition which makes the term nine months is just as little of a supposition, as that which makes it one year and nine months.
    3. Chambers is estopped by his bond, candidacy, and receipt from denying that the term of his office expired in April, 1870.
   Day, J.

This is a proceeding to try the title to the office of street commissioner of the city of Cincinnati. The solution of the question depends upon the construction to be given to the municipal code, which was passed May 7th, and took effect July 1st, 1869. The 61st section provides that the officers of the city shall consist of a mayor, solicitor, treasurer, street commissioner, police judge, attorney, and clerk of the police court, all of whom shall be elected; and that certain other officers therein named shall be appointed by the mayor and city council. The 62d section provides that All officers, who are elected, shall serve for two years, and until their successors are elected and qualified.”- In the 66th section it is provided, that all elections to fill vacancies shall be for the unexpired term;” and, in the 71st section, it is provided that special elections shall be held within twenty days after a vacancy happens,” etc. The 70th section provides that, The first Monday la April shall be the regular annual period for the election of all ” the elective officers. The 728th section continued the existing city officers, upon whom duties were imposed by the act, in their respective offices, after it took effect, for the unexpired terms to which they had been elected.

The office of street commissioner was created by the 61st section of the code, and, when it took effect, it is conceded, there was no incumbent; nor was there, as the law then stood, any special provision for the election of the newly created officer.

If the election of July 12,1869, was unauthorized by law, the relator cannot claim that he has been unlawfully deprived of the office which he held by virtue of that election; .for the incumbent holds under the regular annual election of the first Monday of the following April, which was expressly authorized by the statute.

Put if it be granted that there was such a “ vacancy ” in the office as might be filled by a special election, the question arises: What was the limit of the term to be filled % It cannot be that of a full term of two years, for the authority to fill “ vacancies” applies to a fractional or “unexpired term” after a vacancy happens. Moreover, the statute contemplates that all elections for a full term shall be on the first Monday in April; for, otherwise, there would be no “ regular annual .period ” for the election of municipal officers, as required by the 70th section of the act. Nor was there an “ unexpired term ” of any definite period to be filled, as will always be the case when a vacancy “ happens ” during the term of an office, -for the term cannot be supposed to have commenced, as is claimed, before the code took effect.

Inasmuch, then, as the election could not be for a full term, and as the vacancy was not properly that of an “ unexpired term,” remaining “ after a vacancy happens,” within the strict meaning of the statute, the reasonable limitation of the term or period of the vacancy to be filled must be to the time when the office can be filled by a regular election, in accordance with the express provisions of the statute. Any other construction would be opposed to the obvious policy of the municipal code, that the'terms of elective officers should begin at the period of the regular election, and would .greatly increase the expense and inconvenience of its administration, by necessitating intermediate elections of officers and a complication of the various duties imposed on the city authorities.

This limitation of the period of the vacancy to be filled by the special election of July 12,1869, it would seem from the agreed statement of facts, accords with the understanding of the relator and the people when he was elected; and it was also so far acquiesced in by him, that he became a candidate for the office at the regular election of the following April, when the defendant was elected, who has since qualified and entered upon the duties of the office. In this state of the case the plaintiff should be required to show a clear right to the office he claims to hold before he is entitled to a judgment of ouster against the incumbent. This we think he fails to do. The information must, therefore, be dismissed.

Brinkerhoff, C.J., and Scott, Welch, and White, JJ., concurred  