
    The State of Ohio ex rel. v. Bader et al., Commissioners.
    
      Date at which term of clerks of common pleas court shall begin— Effect of appointme?it pro tempore — Section 1%40, Revised-Statutes.
    
    Section 1240, Revised Statutes, relating to the precise subject of the date at which the official terms of clerks of the court of common pleas shall begin, requires that they shall in all cases begin on the first Monday in August next after the election, whether it be to succeed a clerk chosen at a general election or to succeed one appointed pro tempore to fill a vacancy.
    (Decided April 19, 1898.)
    Error to‘the Circuit Court of Hamilton county.
    The plaintiff in error filed a petition in the court of common pleas, alleging in substance that on Nov. 6, 1894, one George Hobson was elected clerk of the common pleas court of Hamilton county; that he qualified and held the office until April, 1897, when he resigned; that the commissioners of the county appointed E. R. Monfort to fill the vacancy, and that he qualified and entered upon the duties of the office in which he continues to act.
    On the second day of November, 1897, the relator was duly elected to said office, receiving a certificate of such election and his commission from the Governor. On the 12th day of November he executed a bond according to law and tendered it to the defendants for their approval. The commissioners admitting that the bond was sufficient and proper in all other respects refused to approve it because it was therein recited that the relator was elected “to hold said office for the term of three years, beginning on and after November 2, 1897,” they being of the opinion that the relator’s term does not begin until the first Monday in August, 1898. The prayer of the petition is for a writ of mandamus commanding the commissioners to approve the bond.
    In the common pleas court a demurrer to the petition was sustained and a final judgment was rendered in favor of the defendants.
    The judgment was affirmed by the circuit court.
    
      Goebel & Hettinger and Peek da Shaffer, for plaintiff in error.
    We submit that section 1240 does not apply to cases of election to fill vacancies, but only to regular elections. The clerk therein provided for, is one who is required to be elected triennially, and to hold his office for. three years. These words seem to make the section applicable only to the regular triennial elections for the clerk, and not irregular elections which may be caused by reason of vacancies occurring in the office by death, resignation or removal. Section 11, by its very terms, applies to the latter cases and makes ample provision for elections when vacancies occur in the office. State v. Neibling, 6 Ohio St., 40, held that under the act of 1852 (Swan’s Revised Statutes, 174), the clerk elected to fill a vacancy was entitled to the possession of the office from and after the date of his election. As applied to this case the words “first proper election,” therein apply to the November election for state and county officers. State v. Barbee, 45 Ohio St., 347.
    The construction which makes section 1240 apply to regular elections and section 11 to irregular elections occasioned by vacancies arising from causes other than the expiration of term, brings them into complete harmony and gives due effect to all the language of each.
    If the language of any provision is of doubtful import, it should be given the meaning most in harmony with the provisions of the fundamental law. This is a settled rule of construction recognized by this court. Cincinnati v. Oliver, 31 Ohio St., 374.
    It is claimed, however, that section 11 should have the same construction as the act of 1872 (69 V., 97), which was repealed when the Revised Statutes went into effect, and that section 11 is the successor of that act, and although the language of the said section is very different from that of the act, that the change is not sufficient to indicate any intention to change the law on the subject, and that, in construing this section, the court should follow the doctrine of certain cases where it has been held that slight changes in the language of a statute occurring in a general revision of the statutes should not be held to indicate an intention to change the construction unless the -language requires it. Ash v. Ash, 9 Ohio St., 387; States. Conners, 36 Ohio St., 330; Collins v. Mitten, 57 Ohio St., 289.
    
      Bendigs, Foraker <£¡ Dinsmore. County Solicitors, for defendants in error.
    The office of the clerk of the court of common pleas is created and the length of the term established by the Constitution, in Article IV, section 16.
    The official term of the clerk being a specified number of years, and the day of the beginning of the term of the clerks first elected being the second Monday of February, 1852, which was the ninth day of February, 1852, every succeeding clerk occupying the office for a full term would be succeeded in office by his successor on the ninth day of February. This fact was mentioned in the case of The State v. Neibling, 6 Ohio St., 40.
    In certain cases the Constitution' specifically provides for the manner in which vacancies shall be filled, but does not in the case of the clerk. In all other cases the Constitution provides, by Article II, section 27.
    The Constitution, therefore, makes no provision for the beginning of the term of office of the clerk, except those first elected thereunder, nor for the filling of a vacancy in said office. These are matters of legislative provision. The State ex rel. v. McCracken, 51 Ohio St., 123.
    The statutes requiring a construction in the determination of this controversy are sections 11, 1240, 1243.
    These are the only sections now in force relative to this controversy; they, therefore, contain the legislative will upon this subject.
    The first act of the legislature on this subject, after the new constitution, was an act passed January 31, 1852, 50 Ohio L., page 104. This act is also found in Swan’s Revised Statutes of Ohio, 174, and Swan & Critchfield’s Statutes, 232.
    Section 6 of the act of 1852 was the subject of discussion by the supreme court in the case of The State v. Neibling, 6 Ohio St., 40. This case is the one which is especially relied upon by the rélator in his brief.
    It should be remembered that at the time of this decision, there was no statute prescribing the time for the beginning of the term of a clerk. Consequently, there was no specific time for the expiration of the term of an appointee to fill a vacancy, as was hereinbefore shown.
    The question remains for consideration, whether, by the enactment of section 11, the legislature intended to change the statutes as they existed before the codification.
    The rule governing the construction of statutes, when all the general statutes of a state, or all on a particular subject, have been revised, consolidated, and codified, is well settled in this state. The State ex rel. v. Commissioners of Shelby County, 36 Ohio St., 326.
    The same principle was under consideration in the case of Allen v. Bussell, 39 Ohio St., 336.
    We also call the court’s attention to the same principle in the following cases: The State ex rel.
    
    v. Auditor, 43 Ohio St., 311; The State v. Stout, 49 Ohio St., 284.
    This rule has not been changed by this court in the late case of GolUns v. Millan, 57 Ohio St., 289.
    As there is no other provision relating to the office of county auditor, section 11 applies thereto. In the case of the county auditor, the term is fixed by the constitution, and he cannot hold beyond it. The State ex rel. v. Brewster, 44 Ohio St., 589.
    This ease at bar was. fully argued, and is reported under the following title: TTcvrte v. Bode et al., 4 Nisi Prius Rep., 421; 7 Dec., 74.
    In certain cases, it is provided that, in case a vacancy occurs, an election shall be held for the unexpired term: Constitution, article 4, section 13; Constitution, article 2, section 11; section 841, Revised Statutes; section 1724, Revised Statutes; section 1713, Revised Statutes.
    In other cases, it is provided that the appointee shall hold for the unexpired term: Section 1208, Revised Statutes.
    Under section 11, as we construe it, the provision is that the appointee shall hold until a successor can he elected for the full term, according to the general statutes relating to the office. If there were any policy of the state, such as is claimed by the relator, we would not find three separate methods of filling an office.
   By the Court:

By section 16, of article 4 of the Constitution, the duration of the official term of the clerk of the court of common pleas is conclusively fixed at three years. The date at which the term shall commence is to be determined by reference to the statute.

Section 1240, Revised Statutes, provides that “there shall be elected triennially, in each county, a clerk of the court of common pleas, who shall hold his office three years, beginning on the first Monday of August next after his election.”

This section by several amendments has taken the place of section 1 ol the act of Jan. 31, 1852, which provided for the election of clerks for terms of the duration fixed by the Constitution, but did not fix the date at which the term should begin. The original section was in force at the time of the decision of The State v. Neibling, 6 Ohio St., 40, relied on by the plaintiff.

The section as it now stands has, as it was doubtless intended to have, the effect of establishing a uniform date for the beginning of the official terms of the clerks, and of removing the doubts upon the subject which, as the briefs of counsel show, arose from other provisions of statutes not relating to the precise subject. Under this section the relator was elected in November, 1897, for the term of three years beginning on the first Monday in August, 1898. The contention that his term begins at an earlier date is against the express terms of the statute.

Judgment affi/i'med.  