
    The State of Ohio ex rel. the Attorney General v. Hall.
    
      Cleric of court of common pleas — Invalidity of aot to change term of office — After election to office under old law — Act of April SO, 1902 — Section 12lfi, Rev. Stat. — Repealing section void — Constitutional law.
    
    1. The act of April 30, 1902 (95 O. L., 332), to amend Section 1240, Revised Statutes, is unconstitutional and wholly void, because by it the general assembly has attempted (1) to exercise power not possessed by it to defer the commencement of the official terms of persons elected to the office of clerk of the court of common pleas to a date later than that fixed by the law in force when elected, and (2) to provide for vacancies in office which do not occur fortuitously.
    2. The repealing section of said act is also void, and clerks of the court of common pleas will be elected hereafter as provided by said section 1240 before said attempted amendment; and those heretofore, as well as those hereafter elected, will take office on the first Monday in August next after their election.
    (Decided December 2, 1902.)
    In Quo Warranto.
    The petition shows that at the November election, 1898, the defendant Hall was duly elected to the office of clerk of the courts of Guernsey county; that lie afterward duly qualified, and on tlie first Monday of August, 1899, entered upon the discharge of his duties ; that his election was for three years, his official term expiring on the first Monday of August, 1902; that at the November election, 1901, one Andrew J. Linn was duly elected to the office of clerk of the courts of said county of Guernsey for the term of three years, to commence on the first Monday of August, 1902; that said Linn having been duly qualified as such clerk, did, upon said first Monday of August, and at a later date, demand of the defendant the possession of the books and records appertaining to said office, which the defendant refused to deliver to him; and that the defendant usurps said office and excludes said Linn therefrom. The prayer of the petition is for the ouster of Hall and the induction of Linn.
    The defendant answered, impliedly admitting all the allegations of the petition, but alleging that on August 14, 1902, a vacancy occurred in the office of clerk of the court of Guernsey county, and that on that day he was, by the board of county commissioners of said county, duly appointed clerk pro tempore of said courts to fill such vacancy, and that pursuant to said appointment, he duly qualified and now holds the office by virtue of said appointment. The cause is submitted on a demurrer to the answer.
    
      Mr. John M. Sheets, attorney general, Mr. Smith W. Bennett and Mr. J. E. Todd, for relator.
    
      Mr. J. A. Troette and Mr. James Joyce, attorneys for defendant.
   By the Court :

The vacancy in the office of clerk of the court of common pleas is said to have resulted from the amendment of April 30, 1902, of Section 1240, Revised Statutes (95 O. L., 332). At the time of the election of the defendant that section provided: “There shall be elected triennialiy 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 the expiration of the term of office of his predecessor.” The amendment of April 30, 1902, made after the election of Linn as the defendant’s successor in office, consisted in the Substitution of January for August in the section, and making the following addition: “Provided, however, that successors to clerks of courts of common pleas whose present terms of office expire in 1903, shall be elected at the next general election following the enactment hereof, and thereafter clerks of the courts of common pleas shall be elected at the general election next preceding the beginning of their official terms as fixed by this act.”

The amendment is ineffectual to postpone the beginning of the official term of one previously elected to the office pursuant to statutes then in force. It is ordained in section 16 of article 4 of the constitution: “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.” The express provision that the clerk shall hold for the term of three years is not clearer than the implication that he shall not hold longer if his successor has been elected and qualified. Within the requirements of the constitution, county officers are to be elected by the electors of the state, and the general assembly is without power to create an interval between the official terms of persons elected to such office. These propositions are sufficiently established by The State ex rel. the Attorney General v. Heffner, 59 Ohio St., 368; State ex rel. the Attorney General v. Beal, 60 Ohio St., 208. The amending act of April 30, 1902, including its repealing section, is wholly void, and Section 1240, Revised Statutes, stands as though such amendment had not been attempted.

Judgment of ouster and induction.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.  