
    The State of Ohio ex rel. Elmer Hartshorn vs. Samuel Walker. The State ex rel. Josiah B. Roberts vs. Nicholas Zanglien.
    On the formation of a new county, the County Commissioners of any of the counties from which the new county is formed, who reside within its limits, cease to be Commissioners of the old county, unless they remove within it.
    . These are Informations in the nature of Quo Warranto, reserved in the County of Allen.
    The two cases are substantially alike. The relators set forth that the defendants, on the 6th of March, 1848 ; “ did usurp, in trade into, and unlawfully exercise, and from thence up to the 7th day of March, 1848, continued, without any legal right, to hold and exercise the office of Commissioner of Allen county, contrary to the laws of the State.” Also, that by the act erecting the new county of Auglaize, the defendants became residents of said county, by being included within the territorial limits thereof, and that on the sixth day of March, A. D. 1848, the Associate Judges, of the Court of Common Pleas, of Allen county, convened, &c., and declared said offices vacant, and appointed the relators to fill said vacancies, who were duly qualified, &c., and became thence entitled to exercise and discharge all and singular the duties and privileges of said offices, &c.
    The defendants have plead not guilty to the charge of usurpation and intrusion into the said offices, and have, also, filed special pleas, setting forth their claim of title to said offices, which, by agreement of counsel, are to be,treated as notices of special matter filed with the plea of the general issue, and by said'agreement the judgment of this Court is to be entered upon the merits as they shall be found upon the agreed statement of which is in these words, viz:
    It is agreed by the parties to these suits, that the said Samuel Walker was elected County Commissioner of said county of Allen, at the annual October election, A. D. 1846, for the term of three years, and was duly sworn and legally qualified, and acted as such Commissioner from and after his said election, until and after the commencement of these suits, and that at the time of his said election he resided in the township of Moulton, then in the county of Allen, but now in the new county of Auglaize; and that up to the time of the commencement of these suits he had not changed his said residence.
    It is also agreed between the parties to these suits, that the said Nicholas Zanglein was duly elected County Commissioner of said Allen county for the term of three years, at the annual October election, A. D. 1847, and was duly sworn and legally qualified, and acted as such county commissioner until and after the commencement of these suits — that at the time of his said election he resided in the township of Pusheta, then in the county of Allen, but now in the new county of Auglaize, and that up to the time of the commencement of these suits he had not changed his said residence. It is also further agreed, that on the 6th day of March, A, D. 1848, the Associate Judges of the Court of Common Pleas of said county of Allen declared the offices of the said Samuel Walker and Nicholas Zanglein to be vacant, and that the said relators, Elmer Hartshorn and Josiah B. Roberts, were appointed by the said Associate Judges to fill said declared vacancies as set forth in their respective relations; and that the .said relators were also sworn, and filed their certificates of appointment and oath of office with the Auditor of said Allen county, as set forth in their said relations respectively.
    It is further agreed that the special pleas in these cases shall be considered and held as notices of special matter attached to the general issue.— and further, that the several matters therein set forth, is a true statement of the facts of the case.
    
      
      Wm. Lawrence, for the Relators.
    On the part of the, relator it is claimed that he is entitled to a judgment of ouster against the defendant, and to sustain that claim it is maintained: 1st. That by the constitution and law of the State a county commissioner can only act as such or hold his office, while an actual resident of the county.
    2d. That the office is not required by the constitution, is dependent upon legislative will for its continuance, and that a statute may create a disability to hold it.
    If the affirmative of these propositions is maintained, then the defendant has no right to hold the office of commissioner, but judgment of ouster must be pronounced against him. The authorities by which they are sustained, certainly appear to be conclusive, and I will examine each separately in the order they are stated. 1st. It is maintained that a county commissioner must be an actual resident of the county in which he holds his office, and that non-residence is a disqualification for which he may be ousted. The constitution of the State, art. 1, sec. 27, provides, that “ no person shall be appointed to any office within any county who shall not have been a citizen and inhabitant therein one year next before his appointment.” This clause applies to all county officers, as is evident from the connection in which it is used, and the object in view in framing it. But the act of March 5,1831, establishing boards of county commissioners, (Swan’s statute, -205, sec. 1,) also provides, “ That there shall be established in each organized county in this State a board of commissioners, &c.,” and sec. 6 declares “ That before any commissioner shall enter upon the duties of his office, he shall take an oath or affirmation * * faithfully and impartially to discharge the duties of a commissioner of the county in which he resides.” These and other similar provisions very clearly show that the right to hold the office is dependent on residence, and that any attempt to hold the office by a non-resident, is in violation of law, and without legal authority. Now as non-residence is a disqualification, it attaches as soon as the non-residence commences. It is the fact of non-resi- , .... that creates the disqualification, and it takes effect like a resignation or the expiration of the term of office, as soon as it occurs, and operates immediately to abrogate all right to exercise the duties of the office. If it does not operate instantaneous, it does not for a day, a month, a year. But it is insisted that the statute of 1831 secures to anon-resident commissioner,, or one who has become a non-resident, a right to the office for six months after his non-residence. Such is not the statute. It declares in the same section which authorizes the Associate Judges to fill all vacancies except those occurring from expiration of term, “ that the absence of any commissioner from the county for six months in succession shall be deemed a resignation of the office.” (Sec. 4, stat. 205.) The constitution and the same law had declared non-residence an instantaneous disqualification from holding the office. This provision then must be understood to embrace a class of cases not already provided for. It declares “ absence for six months,” a virtual resignation. It declares the effect of absence and not non-residence.
    
    It was foreseen that even residents might be absent six months and yet not be in a legal sense non-residents. To meet cases of temporary absence, then, of residents, this clause was added to the 4th sec. of the statute. These disqualifications are founded in reason and expediency. The non-resident commissioner, careless of the burthens he imposed upon others, might levy taxes he had no share in paying, and conduct the affairs of a county in which he had no interest, and to sanction the right of a non-resident to office is to impair the salutary operation of the law. It is, therefore, very apparent that non-residence renders a commissioner incompetent to hold the office, and the disqualification commences instantaneously with the non-residence. 2nd. The second proposition asserts that the office of county commissioner, is a mere statutory office, not required by the constitution, and in all respects dependent on legislative will. If this be so, then the Legislature could, by law, create a legal disability depriving defendant of his right to act as commissioner. As to offices, the term of which is fixed by the constitution,1 it is not pretended that the Legislature plenary power over them, but as to offices not required by the constitution, there is no limit to the exercise of legislative power. This has become a settled principle in our jurisprudence, and hence it is said, “ in the absence of constitutional restriction the creation, continuance, duties and emoluments of an office are matters of political expediency, and to be judged of solely by the Legislature;” 7 Bacon’s Abg. 281, Tit. Offices; 4. Dev. N. C. Rep. 23 ; 3 Kent, 457. Even as to an associate judge, holding an office, the term is fixed by the constitution; the Court has said, “ no one would contend that a voluntary removal was not a forfeiture and resignation of his office. Can it make any difference when this removal is effected by the exercise of a constitutional- right of the General Assembly and by an act of omission in the. officer ? It seems to us it cannot; ” 11 Ohio Rep. 513. This power has been frequently exercised in Ohio. The Legislature abolished the Board of Public Works, and of Canal Commissioners, and the officers ceased to act. The office of State Printer was abolished, and in these and other cases, the officers ceased to hold their offices, although their regular terms, as fixed by prior law, had not expired. The Legislature had power to erect the new county of Auglaize, by the constitution; article 7, sec. 3. And by the act creating that county, the residence of defendant was changed from Allen to Auglaize county. By a legislative act he was made a nonresident of Allen county. The legislature having power to do this, and having legally exercised that power, the effect clearly follows. It matters not hoio the disability of non-residence attached to .defendant, the effect is declared by the constitution and law, as I have shown. Whether the disability be created by the act of God, by the act of the party ¿ or by operation of law, the effect is the same. The Legislature, by a solemn act, declared defendant a non-resident of Allen county — practically declared him no longer a commissioner. It might have abolished the office or declared that all commissioners over sixty of age should cease to hold the office, for such is the pow-0f the General Assembly over an office of its own creation. The right to abolish the tenure by which legislative offices are held, is incident to the right to create them. The defendant, then, by operation of law, was legislated out of his office ; has been subjected to a disability which deprives him of all right to discharge his official duties; in short, his official existence was terminated by statute.
    
      Rose Bliss, for Defendants, submitted the case without argument.
   Birchard, C. J.

Upon the preceding statement of facts, our first inquiry is, whether the facts show a right in the defendants to retain the offices to which they were respectively elected. The 4th section of the sixth article of the constitution, declares that the appointment of all civil officers, not otherwise directed by the constitution, shall be made in such manner as may be directed by law. There is no provision in the constitution for the election of a county commissioner. The office is a creature of the statutes. Its duties are there defined, and to them we must look for the main guide in determining the rights of these litigants.

By the first section of the act establishing boards of county commissioners, passed March 5, 1831, (Swan’s St. 205,) it is enacted, “that there shall be established, in each organized county of this State, a board of commissioners, to be elected by the qualified electors of the county, at the annual election in October.” By the sixth section, each commissioner, before entering upon the duties of his office, is required to take an oath or affirmation faithfully and impartially to discharge the duties of a commissioner of the county in which he resides.

These provisions of the statute sseem to indicate that the office of commissioner of a county, can only be held by a resident of the county. And when we take into consideration the general duties of the board of commissioners, the fact that they are the representatives of the county in its corporate capacity, that they are the corporate body in all suits and contracts, relating to interests and funds of the county, &c., we cannot doubt that non-residence within the county is a disqualification, which necessarily vacates the office.

It is, however, argued in behalf of the defendants, that under the provisions of the fourth section of the act, (Swan’s St. p. 205,) they were entitled to hold their offices for the period of six months after the passage of the act erecting the county of Auglaize. This section authorizes the associate judges to fill any vacancy in the office of county commissioner, occurring from any cause other than the expiration of the term for which he was elected; and the last two lines of the section read thus: “And the absence of any commissioner from the county for six months in succession, shall be deemed a resignation of the office.” Has this clause any such bearing on this case, as is contended for? We think not. It was intended to meet and provide- for a case, in all its essential features, entirely different — a case of neglect of duty, by continued absence from the county, without a change of residence. It is not necessary to extend the provisions of this act to anything else. The case designed to be provided for, is manifest; and it would be overstepping the legitimate bounds of judicial interpretation, to make the clause embrace more.

There remains, still, the question, what effect had the act creating the county of Auglaize, upon the residence of defendants ? By the agreed statement, they became residents of the territory constituting the new county. The power of the General Assembly to thus change the limits of a county, is undoubted. It follows, that persons residing within the limits of territory detached from the old, and attached to the new county, cease to be residents of the former, and become residents of the latter ; and unless there is some provision of the act erecting Auglaize county, modifying the apparent effect of these general principles, it would also follow that the defendants were both legislated out of office, on the 25th of February, 1848.

But there are provisions of the act which exclude the con-c]ugjon that the General Assembly intended to effect a result summary. Vol. 46, p .130, L. L. <§> 10, of the act, provided for official action of these relators, as commissioners of Allen county, immediately upon the passage thereof. It made it their duty to re-organize certain townships or parts of townships effected by the act, conclusively showing that for a time, their respective offices were to survive the erection of the new county. Within this period, we are of opinion these defendants might have secured their titles to the offices of commissioner, by removing within the newly prescribed limits of Allen county. An intention so to remove was not sufficient. The intention should have been evidenced and accompanied by an actual removal.

What was the precise limit to this period of election is not given in any direct language, yet it may be satisfactorily ascertained by a careful consideration of the act itself, and of the general duties of the board of county commissioners. The 6th section of the act continued the duties and jurisdiction of the sheriffs, coroners, constables, and collectors of taxes of Allen county, on the territory detached therefrom, until the first Monday of March, 1848. All writs in that part of the territory were to be styled of the county of Allen, until the first of March, (f 7, p. 129,) and after that of the county of Auglaize.

To this period, the county of Allen in its corporate capacity was interested in the taxes collected and the costs, &c., made in her name, and there was much propriety in continuing the control of the corporate officers elected for the original territory, till that time. After that, there was very little propriety in subjecting the interests of Allen county to the control of those who then became exclusively identified with the new county of Auglaize.

A necessity existed for filling the board of commissioners on the first Monday of March, that being the time appointed by law for holding an annual session. The relators, by the agreed facts appearing to have been duly appointed and qualified, are entitled to the offices claimed by them respectively.

Judgment accordingly.  