
    The State, ex rel. Young, v. Cox, Governor of Ohio, et al.
    
      Office and officers—Clerk of common pleas court—Constitutionality of Section 2867, General Code—Biennial elections and two-year term—-Article XVII and Section 16, Article IV, Constitution.
    
    Section 1240, Revised Statutes, as amended April 2, 1906 (98 O. L., 273), now Section 2867, General Code, providing that there shall be elected biennially, in each county, a clerk of the court of common pleas, who shall hold his office two years, beginning on the first Monday of August next after his election, is a valid legislative enactment and is not in conflict with any of the provisions of the constitution of this state.
    (No. 14612
    Decided May 26, 1914.)
    Error to the Court of Appeals of Franklin county.
    
      The relator, on the 20th day of April, 1914, filed a petition in the court of appeals of Franklin county in which he averred that on the first Tuesday after the first Monday of November, 1912, he was elected clerk of the court of common pleas for the county of Seneca; that he received from the board of deputy state supervisors of elections a certificate of election; that the respondents, acting under and by virtue of Section 2867, General Code, issued to him a commission as clerk for a term of two years, from the first Monday in August, 1913; that he accepted said commission, was duly qualified as clerk and entered on the duties of his office on the first Monday of August, 1913.
    He averred that he was advised and believed, and he therefore charged, that Section 2867 is in conflict with the Constitution of this state, and especially in conflict with Section 16 of Article IV thereof, and that said Section 2867 is in conflict with and unauthorized also by Article XVII of the Constitution.
    .He prayed for a writ of mandamus commanding the respondents to cancel the commission theretofore issued to him for the term of two years and to make and deliver to him a commission as clerk for a term of three years from the first Monday of Au- ■ gust, 1913, and until his successor was elected and qualified, it having been averred in the petition that a demand therefor was made on the respondents on the 7th day of April, 1914, and by them refused, and that relator had no other adequate remedy.
    To this petition an answer was filed, in which respondents admitted the election of relator as clerk; that he received a certificate of election and that they issued to him a commission for the term of two years from the first Monday of August, 1913; that he qualified and entered upon the discharge of his duties as clerk; that he had been advised that Section 2867, General Code, was unconstitutional and that a demand was made upon them for a certificate. They denied all other allegations of the petition.
    They set out in their answer a copy of the amendment to the Constitution of Ohio, designated as Article XVII, adopted November 7, 1905; a copy of a portion of the act of April 2, 1906: “To conform the terms of office of various state and.county officers to the constitutional provisions relating to biennial elections”' (98 O. L., 271); also a copy of Section 1240, Revised Statutes, as amended, now Section 2867, General Code. Respondents averred that by reason of this amendment to the constitution and these laws relator was not entitled to a writ of mandamus. There are other averments in the answer, reference to which is unnecessary.
    A demurrer to the answer, upon the ground that facts sufficient to constitute a defense to the petition were not stated therein, was overruled and, the demurrer searching the record in the cause, the court of appeals held that, under the facts admitted in the petition and answer, the relator was not entitled to the relief sought, and the writ was-refused and petition dismissed at the costs of relator. To reverse the judgment of the court of appeals error is prosecuted to this court.
    
      
      Mr. W. Z. Davis, for relator.
    
      Mr. Timothy S. Hogan, attorney general; Mr. J. M. McGillivray and Mr. William J. Ford, for respondents.
   Newman, J.

The principal contention of the relator is that Section 2867, General Code (Section 1240, Revised Statutes, amended April 2, 1906), which provides that there shall be elected biennially in each county a clerk of the court of common pleas, who shall hold his office two years beginning on the first Monday of August next after the election, is in conflict with Section 16, Article IV of the Constitution, and is therefore unconstitutional and void.

The part of Section 16 of Article IV material to the question raised here reads as follows:

“There shall be elected in each county, by the electors thereof, one clerk of the court of common pleas, who shall hold his office for the term of three years, and until his successor shall be elected and qualified.”

On November 7, 1905, there was adopted an amendment to the Constitution, designated as Article XVII, as follows:

“Section 1. Elections for state and county officers shall be held on the first Tuesday after the first Monday in November in the even numbered years; and all elections for all other elective officers shall be held on the first Tuesday after the first Monday in November in the odd numbered years.

“Section 2. The term of office of the governor, lieutenant governor, attorney-general, secretary of state and treasurer of state shall be two years, and that of the auditor of state shall be four years. The term of office of the judges of the supreme court and circuit courts shall be such even number of years not less than six (6) years as may be prescribed by the general assembly; that of the judges of the common pleas court six (6) years and of the judges of the probate court, four (4) years, and that of other judges shall be such even number of years not exceeding six (6) years as may be prescribed by the general assembly. The term of office of justices of the peace shall be such even number of years not exceeding four (4) years as may be prescribed by the general assembly. The term of office of the members of the board of public works shall be such even number of years not exceeding six (6) years as may be so prescribed ; and the term of office of all elective county, township, municipal and school officers shall be such even number of years not exceeding four (4) years as may be so prescribed.

“And the general assembly shall have power to so extend existing terms of office as to effect the purpose of section 1 of this article.

“Any vacancy which shall occur in any elective state office other than that of a member of the general assembly or of governor, shall be filled by appointment by the governor until the disability is removed, or a successor elected and qualified. Every such vacancy shall be filled by election at the first general election for the office which is vacant, that occurs more than thirty (30) days after the vacancy shall have occurred. The person elected shall fill the office for the unexpired term. All vacancies in other elective offices shall be filled for the unexpired term in such manner as may be .prescribed by law.

“Section 3. Every elective officer holding office when this amendment is adopted, shall continue to hold such office for the full term for which he was elected, and until his successor shall be elected and qualified as provided by law.”

Counsel insist that there is no direct conflict between Section 16 of Article IV and any other provision of the Constitution, unless a false interpretation is placed on the following language of Article XVII, Section 2: “The term of office of all elective county * * * officers shall be such even number of years not exceeding four (4) years as may be so prescribed”—prescribed, it is conceded, by the general assembly.

The claim is that a clerk of the court of common pleas is not a county officer—that he is a constitutional officer—and counsel would make a distinction between a constitutional office and a county office, and suggest that the constitution itself differentiates between these two classes of offices, and call our attention to Section 20 of Article II and Sections 1 and 2 of Article X.

There may be a technical distinction between these two classes of offices, but can it be claimed seriously that the electors of this state recognized or had in mind such a distinction when they adopted Article XVII containing the term “county officers?” Did they not intend to include in that class every officer generally and popularly known as a county officer ? It is to be presumed that the term was used by them with reference to its popular signification and that it was to be applied as it had been practically applied for a number of years. Hill v. Higdon, 5 Ohio St., 243. As provided by the constitution a clerk is elected in each county by the electors thereof. His jurisdiction is confined to the territorial limits of the county. His bond is approved by county officials. A vacancy in the office is filled by county officials. Whenever the legislature has acted on the subject this officer has been treated as a county officer along with sheriff, auditor, treasurer, coroner and the like. The different codifying commissions have recognized the clerk as a county officer. We are therefore satisfied that when the electors provided for the biennial election of county officers and authorized the general assembly to fix their terms at an even number of years not exceeding four, they intended to include the clerk of the court of common pleas.

Article XVII was adopted as an amendment to the constitution. It does not appear in the article itself just what provisions of the constitution were to be amended or superseded.

As was said in The State, ex rel., v. Creamer, 83 Ohio St., 412, it is as if it were written in Article XVII in express terms that all provisions of the constitution inconsistent with this expression of the will of the electors shall be regarded as amended or abrogated to the extent that may be necessary to give it full effect, which is the familiar rule for amendments and repeals by implication.

This article provides for biennial election of all state, county, township and municipal officers. If the term of office of clerk is to remain three years, as was fixed by Section 16 of Article IV, this would defeat one of the purposes, which we think the paramount one, for which the article was adopted. Again, were the three-year term to remain, it would render ineffective the provision of Article XVII, which requires the term of office of all elective county officers to be such even number of years not exceeding four as the general assembly may prescribe.

Applying then the doctrine announced in The State, ex rel., v. Creamer, supra, that earlier expressions in a constitution must must yield when it is necessary to give effect to the latest expression of the intention of those whose intention is entitled to control, Section 16 of Article IV has been abrogated. ,

The fact that the office of clerk of the court of common pleas was provided for in the judicial article and not in the county and township organization article of the constitution is unimportant. The rule applied in the case of The State, ex rel., v. McCracken, 51 Ohio St., 123, that where there is a general provision in the constitution and a special one the latter controls, has no application here. In the McCracken case there were before the court two contemporaneous provisions of the constitution, provisions which were in the constitution when it was adopted as a whole. Here we are considering an amendment to the constitution, the latest, expression of the electors on the subject, and to this latest expression must yield all the earlier provisions of the constitution which are inconsistent with it.

It is urged, however, on behalf of the relator, that, assuming that the office under consideration is a county office within the meaning of that term as used in Article XVII, the term of the office is placed within the control of the general assembly upon the express condition only that the legislature shall not abridge the term, and our attention is directed to the language used in the second section of the article: “The general assembly shall have power to so extend existing terms of office as to effect the purpose of section 1 of this article.”

This was a temporary provision, and had reference to terms of officers elected at the time Article XVII became effective. It was not intended as a permanent provision of the constitution applicable to officers to be chosen after its adoption. This was the view of the matter taken by Judge Spear in The State, ex rel., v. Metcalfe, 80 Ohio St., 244, where he refers to this feature of Article XVII as manifestly temporary only in operation; and Judge Davis in The State, ex rel., v. Pattison, 73 Ohio St., 305, says that the power to extend terms .as designated in Article XVII is confined to such officers as were already elected at the time when the amendment became effective.

The general assembly, in pursuance of this provision, extended the term of office of state and county officers by an act passed April 2, 1906 (98 O. L., 271) : “To conform the terms of office of various state and county officers to the constitutional provisions relating to biennial elections.” By this act the existing terms, of office of certain state and county officers therein named, which otherwise would have expired in an even-numbered year, were extended to certain dates named in the odd-numbered year succeeding the time when they would otherwise have expired. The provision in Section 2 of Article XVII, giving the general assembly power to extend existing terms of office so as to effect the purpose of Section 1 of the article, had no application to the terms of officers to be thereafter elected. The terms of those officers were provided for in the first paragraph of Section 2 of Article XVII, and in case of a county officer the term was to be for an even number of years not exceeding four. The office of clerk of the court of common pleas being a county office, the legislature saw,fit to fix the term at two years when it amended Section 1240, Revised Statutes, now Section 2867, General Code, and this it had authority to do, Article XVII having superseded Section 16 of Article IV.

The respondents properly refused to cancel the commission of relator and to issue to him a commission for a term of three years.

Judgment of the court of appeals affirmed.

Nichols, C. J., Shauck, Johnson, Wanamaker and Wilkin, JJ., concur.

Donahue, J.,

dissenting. The constitution of Ohio of 1851 provided for the election of certain officers and fixed their term of service. The same constitution also authorized the general assembly of Ohio to provide by law for the election of such county and township officers as may be necessary. Whether the clerk of the common pleas court is or is not a county officer is not important in the determination of the question presented in this case. The more important consideration is whether that office is a constitutional office and the term thereof a constitutional term, or is it a statutory office and a statutory term? Section 16 of Article IV of the Constitution created the office of the clerk of the common pleas court and fixed the term of that office at "three years, and until his successor shall be elected and qualified.” Section 1 of Article X conferred upon the general assembly of Ohio the authority to provide by law for the election of such county and township officers as may be necessary, and Section 2 of Article X authorized the general assembly to provide by law the term of such county officers at any number of years not exceeding three years.

For more than half a century the provisions of Section 16 of Article IV, creating the office of clerk of common pleas court and fixing the term thereof, and Section 2 of Article X, authorizing the general assembly of Ohio to fix the term of county officers, remained the organic law of this state, and the clerk of the common pleas court was elected and held his office for the term provided in Section 16 of Article IV of the Constitution. The general assembly had no authority whatever either to limit or increase that term, nor had it ' any authority to create or abolish the of$ce. That was an office and term of office fixed by the constitution itself and with which the legislature of the ■ state had nothing to do.

Our attention is called to only one reported case in this state where it was ever seriously claimed by any one that the office of the clerk of common , pleas court came within the general provision, of . Section 2 of Article X, relating to county officers. That is the case of The State, ex rel., v. McCracken, 51 Ohio St., 123. This court'in that case “held that Section 2 of Article X had no application whatever to the clerk of the common pleas court, independent of the .question of whether he was a county officer or not, for. the reason that the "provision of Section 2 of Article X is a general provision relating to county officers in general, while Section 16 of Article IV is a special próvision with reference to the clerk of the' court of ' common pleas. Spear, J., in discussing this question in that case used this language: ■’ “In support of the claim of Berwick A. Barton, it is contended ■ that the effect of the statute of March 2, 1893, is '■■to create a vacancy in the office of clerk, because such clerk is a county officer, and Section 2, of Article X, of the Constitution provides that ‘county officers shall hold their office for such term, not exceeding three years, as may be provided by law.’

“It is, we think, a sufficient answer to this proposition to say that the purpose of the framers of the ' constitution, by the adoption of Section 16, of Ar- ' tide IV, to take the office qf clerk of the court out of the operation of the terms of Section 2; of Article X, is so plain as to be practically beyond question. One is a general provision; the other a special one. In such case the-latter controls.” It would appear that this proposition, so clearly stated by Judge Spear, is unanswerable, and that so long as the special provision remains a general provision will not control. The case of The State, ex rel., v. McCracken, supra, was cited with approval in the later case of The State, ex rel., v. Thrall, 59 Ohio St., 368. Shauck, J., in discussing the former' case, uses this language: “The effect of this section [Section 16, Article IV, Constitution of 1851] was distinctly held to be to take the office of clerk out' of the operation of other provisions of the con- • stit'ution which might otherwise have been controlling.” ' 1

•At the time the amendment to the constitution' known as Article XVII was adopted, this special provisión of the constitution, relating to the office of clerk of common pleas court, had been in force over fifty years and the highest court in the state had'twice declared that this section of the constitution created this office and fixed the term, notwithstanding Section 2 of Article X in general terms authorized the general assembly of Ohio • to fix the term of office of all county officers. ■ The provision of this amendment authorizing the general assembly to fix the term of office of all “elective county * * * officers” for an even number of years not exceeding four years is no broader, no ; more comprehensive, than Section 2 of Article X. The original section used the term “county officers,” while the language of the amendment is “elective county officers,” but it is provided in Section 1 of Article X that all county officers shall be elective officers. Therefore, the term “county officers” and “elective county officers” are synonymous within the meaning of the constitution of the state.

The framers of this amendment to the constitution and the electors voting for its adoption must be presumed to have known not only the provisions of the constitution of 1851 but also the construction given these two provisions by the supreme court of the state. Therefore, if it were the purpose to repeal the special provision language clearly indicating that intention would have been used. The fact that this special provision of the constitution had obtained for so many years, and the further fact that this court had held that this special provision of the constitution exempted this office from the general provisions of Section 2 of Article X, is practically an unanswerable argument that it was not intended that another general provision in identical or at least substantially the same language would be given a different construction. .Nor could the correctness of the construction of these constitutional provisions by this court have been questioned, for there is absolutely no authority to the contrary. The United States courts and the courts of all the states of the Union have uniformly held that special provisions of a constitution or a law always obtain as against general provisions. If this general provision were intended to have the effect of repealing the special provision then the only possible excuse for not specifically mentioning this office in the amendment itself would be that it was overlooked or forgotten by its framers and the electors who voted for it.

There is another consideration, however, that would seem to be decisive of this question. The amendment (Article XVII) does not in terms repeal Section 16 of Article IV of the Constitution of 1851. If that section is repealed by this amendment it must be by implication. Spear, J., in the case of The State, ex rel., v. Metcalfe, 80 Ohio St., 244, 259, expresses a familiar doctrine in this very clear language: “Repeals by implication are not favored with respect to statutes, and for a stronger reason they should not be favored with respect to constitutional provisions. The repugnancy, to work a repeal, must be wholly irreconcilable, as the intention to repeal will not be presumed, nor the effect of the repeal admitted, unless the inconsistency is unavoidable. The State, ex rel., v. Dudley, 1 Ohio St., 437; Cass v. Dillon, 2 Ohio St., 607; Raudebaugh v. Shelley, 6 Ohio St., 308; Commissioners v. Board of Public Works, 39 Ohio St., 628; Eggleston v. Harrison, 61 Ohio St., 397; The United States v. Sixty-seven Packages of Dry Goods, 17 How., 85.”

The provisions of Article XVII are no more in conflict, no more repugnant, to the provisions of Section 16 of Article IV than were the provisions of Section 2 Article X of the Constitution of 1851, yet these two provisions of the constitution of 1851 were held to be consistent, and the correctness of this holding is not even challenged.

In view of the doctrine announced in The State, ex rel., v. McCracken, supra, which is undoubtedly the law of not only this state but-of every other state in the Union, there can be no such-conflict or repugnancy between a special provision and a general provision in the constitution that would require a court to hold that the special provision is repealed by implication, for in such case the special provision excepts that particular subject or matter from the operation of the general provision the same as if the special provision were -written into the general provision as an exception thereto. In such case it would not be claimed that exceptions written into a general provision would be repugnant to the general provision. The application of this doctrine to this case requires that the general provisions of Section 2 of Article XVII of • the Constitution must be read the same as if'the special provision of Section 16 of Article IV were written into it as a part thereof, as an exception to, the general provisions of that section.

It is true that Section 1 of this amendment provides that “Elections for state and county officers •shall be held on the-first Tuesday after the. first Monday in November in.-the even numbered-years; and all elections for all other- elective- officers shall be held, on the first Tuesday after the first Monday in November in the odd numbered years.” .-This, of course, is not possible if the term of- the office of clerk is still three years as specifically provided in Section 16, Article IV, and it is the clear, duty, of this court to give effect to Section! of Article XVII if possible, but that can not be done upon the- theory that there is a difference in the meaning of the term “county officers” as found in Section 2, Article X, and the term “elective county officers” as found in Section 2 of Article XVII. Neither can it be successfully maintained that general provisions either in the same constitution or in any amendment to it will repeal by implication a special provision as to any subject-matter covered by the special provision,' ,so that both of these theories must be abandoned. . It is the. duty of courts to interpret constitutions according to. well-known canons of. construction and in conformity to the settled law of the state except in so far as the constitution itself departs therefrom. Courts can not make constitutions. Neither, can.they supplement them, notwithstanding ■ that it may reasonably appear that, the amen dip ent has .not fully accomplished the result intended to be accomplished. In such .case there is only one remedy, and that is recourse to the people. Any other doctrine or any assumption of power by the courts, while it might, in a given case, result in advantage to the state, would eventually prove disastrous. If this amendment affects the special provision of the constitution in relation to the term of- office of the clerk of the court of common pleas w;e must find some other provision of the amendment: aside from the general provision as to “elective county officers” justifying such construction.

■ Section 2 of this amendment provides that the general assembly shall have power to extend existing terms of office so as to effect the purpose of section 1 of this article. It is claimed that this provision applies only to the existing terms of officers then in office, but that is not the language used. “Existing terms of officers” is one thing; “existing terms of office” is another, and while ordinarily they might be used interchangeably, yet in the framing of a constitution great care should be used and undoubtedly is used in the selection of language that will convey the exact meaning intended.

This provision of the amendment has been construed by this court in the case of The State, ex rel., v. Pattison, 73 Ohio St., 305. At page 328 the court, in its opinion, says: “The phrase ‘existing terms of office’ means the terms of office as defined in the constitution and the acts of the general assembly as existing at the time of the proposal and adoption of the amendment. It could not refer only, to the terms of those actually holding office at the time of the adoption of the amendment. Those were provided for by Section 3 of the amendment.” This proposition, so clearly stated in the opinion, is carried into the third paragraph of the syllabus of that case, part of which is as follows: “The phrase ‘existing terms of office’ means the terms of office as defined in the constitution and acts of the general assembly as they existed at the time of the proposal of the amendment and of its adoption.”

Section 3 of this amendment does provide that every elective officer holding office when this amendment is adopted, shall continue to hold such office for the full term for which he was elected, and until his successor is elected and qualified as provided by law. So that there was absolutely no necessity for any provision in the constitution authorizing the general assembly to extend existing terms of officers, but it now clearly appears that there was great necessity for authorizing the general assembly to extend existing terms of office, at least in the particular case of the office of clerk of common pleas court, so as to effect the purpose of Section 1 of Article XVII. Section 3 of this amendment was self-executing. It did not depend upon any act of the legislature in order to become effective, but existing terms of office did require legislative action in order to effect the purposes declared in Section 1 of the amendment. The extension of the term of the clerk of common pleas court to four years would have literally complied with the power given and would have effected the purpose of the amendment as stated in Section 1 of Article XVII.

This limitation upon the authority of the legislature to change existing terms of office could apply only to constitutional offices and constitutional terms, and not to offices created by the legislature or terms fixed by the legislature itself, for as to these terms the constitution conferred full power upon the legislature to fix the term within certain limitations of time. Nor would it apply to the constitutional offices where the constitution specifically authorized the legislature to fix the term. This construction may not be free from doubt, yet it is in line with the former constructions given this section by this court, and it does effect the purposes of Section 1 of Article XVII. There is no other possible construction of this amendment that will effect such purpose or that will authorize the legislature of the state to ctano-e existing terms of office specifically provided by the constitution itself.  