
    In the Matter of Conley.
    
      Criminal law — Sentence by de jure or de facto justice of peace valid/ — General Assembly cannot extend term of office fixed by Constitution — Vacancy in office of justice of peace— Statute authorizing township trustees to appoint until next regular election, constitutional — Section 17 H, General Code — Successor not elected at next election — Sentence by holdover incumbent valid — Authority of de facto justice cannot be attacked by habeas corpus — Quo warranto proper remedy to challenge title of office.
    
    1. Where a prisoner, convicted of crime and sentenced, alleged that the person who pronounced sentence was not a justice of the peace as claimed, held,, that the sentence would be valid if the alleged justice was either a de jure or de facto officer.
    2. The General Assembly has no power to extend the term of an office beyond the period fixed by the Constitution.
    3. Section 1714, General Code, authorizing the trustees of a township to appoint justices of the peace in ease of vacancy to hold office until the next regular election, held not a violation of Section 2, Article XVII of the Constitution, providing that the term of office of justices of the peace should not be for more than four years.
    4. A person appointed as justice of the peace by the trustees of a township until' next regular election, as provided by Section 1714, General Code, and commissioned by the Governor, and who qualifies and continuously fills and performs the duties of the office thereafter, is at least a de facto officer capable of passing sentence on relator convicted of crime, whether or not the next regular election should have been held before such action.
    5. The authority óf a de facto justice of the peace cannot be challenged in an action by way of habeas corpus to release from jail one sentenced by the justice.
    6. The title of a de facto justice of the peace to his office can only be challenged in a proceeding in quo warranto.
    
    (Decided October 6, 1926.)
    Error: Court of Appeals for Sandusky county.
    
      Mr. Hal. C. De Ban, for Conley.
    
      Mr. Harry Gam, opposed.
   Williams, J.

This proceeding in error is brought to reverse a judgment of the court of common pleas of Sandusky county rendered in an action in habeas corpus. The claim made in the court below was that one Joe Conley was unlawfully deprived of his liberty by reason of the fact that one E. R. Voorhees, who acted as justice of the peace and sentenced him to jail for a violation of law, acted unlawfully in so doing, for the reason that at the time he was not a justice of the peace. The court below rendered judgment against the relator, Joe Conley.

The bill of exceptions discloses the following facts: At a regular election for justice of the peace held in Woodville township, in the fall of 1923, one Assenheimer was elected justice of the peace, and qualified and assumed that office, and entered upon the performance of the duties thereof January 1, 1924. In June, 1924, he removed from the township and resigned his office, and thereupon the trustees of the township appointed E. E. Voorhees to fill the unexpired term. Voorhees was commissioned by the Governor June 18, 1924, without other limitation than that his term would last until his successor was elected and qualified. Voorhees thereupon immediately qualified and entered upon the performance of the duties of the office. June 24, 1926, Voorhees, still acting in the capacity of justice of the peace, under the commission issued, no successor having been elected, imposed a sentence upon Conley, under which sentence he was imprisoned in the county jail. Thereupon he sued out the writ of habeas corpus in the court below, and, pending hearing in that court, was released thereon.

Was Voorhees a justice of the peace at the time he imposed the sentence? If he was either a de jure or a de facto officer, the sentence imposed was valid. Section 2 of Article XVII of the Constitution of Ohio provides as follows:

“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. ’ ’

Section 1713, General Code of Ohio, provides:

“All justices of the peace shall be elected for a term of four years.”

In this connection the following sections of the General Code, which we quote in full, must also be considered:

“Section 1714. If a vacancy occurs in the office of justice of the peace by death, removal, absence for six months, resignation, refusal to serve, or otherwise, the trustees within ten days from receiving notice thereof, by a majority vote, shall appoint a qualified resident of the township to fill such vacancy, who shall serve until the next regular election for justice of the peace, and until his successor is elected and qualified. The trustees shall notify the clerk of the court of such vacancy and the date when it occurred.

“Section 1715. At the next regular election for such office, a justice of the peace shall be elected in the manner provided by law, for the term of four years commencing on the 1st day of January next following his election.”

It is well settled in Ohio that, in cases where the Constitution of the state, fixes the term of office, the General Assembly has no power to extend the term beyond the period so fixed. State ex rel. Attorney General v. Brewster, 44 Ohio St., 589, 9 N. E., 849. Under the provisions of Section 1714 the Legislature conferred authority upon the trustees to appoint a successor, who should hold until the next regular election of a justice of the peace and until his successor was elected and qualified. We fail to see how Section 1714 violates any provision of the Constitution, as the person so appointed would not necessarily serve for more than four years. However that may be, if the law requires that a successor should not be elected until the fall election of 1927, certainly Voorhees would be a de jure officer. On the other hand, if his successor under the law should have been elected at the fall election of 1925, Voorhees would be a de facto officer, if not a de jure officer. In the view we take of the case it will therefore be unnecessary to determine at what election the law required Ms successor to be elected. He derived Ms commission from the Governor, who had at least colorable authority to commission him after the appointment had been made under Section 1714, General Code, and no election for that office has since been held. After receiving his commission he regularly qualified, and up to and including the time of the alleged unlawful sentence he continued to perform all the duties of his office, and remained during all that time in possession of the office, undisturbed and unchallenged. He was therefore at least a de facto officer, and under the law of Ohio his title to the office could only be challenged in a proceeding in quo warranto, and could not be challenged in an action by way of habeas corpus to release from jail one under sentence by the court. Stiess v. State, 103 Ohio St., 33, 132 N. E., 85; State v. Gardner, 54 Ohio St., 24, 42 N. E., 999, 31 L. R. A., 660; Ex parte Strang, 21 Ohio St., 610.

The trial court therefore did not commit error in quasMng the writ of habeas corpus and remanding the relator to the custody of the sheriff.

Judgment affirmed.

Richards and Young, JJ., concur.  