author: Shauck, J.

text:
    The State on Relation of the Attorney General v. Heffner. In Quo Warranto. The State on Relation of the Attorney General v. Stallsmith. In Quo Warranto. The State on Relation of Saal v. Bushnell, Governor, and Kinney, Secretary. In Mandamus. State of Ohio ex rel. Kelly v. Thrall. In Quo Warranto.

      Election of county officers — Provisions of state constitution — Invalidity of act of April %6,1898 — Official term of sheriff — Constitutional law.

    1. The provisions of the 10th article of the constitution, requiring the 'general assembly to provide by law for the election of county officers, and that such officers shall be elected on the first Tuesday after the first Monday in November, disable the general assembly to provide by law for an interval between the official terms of a sheriff and one elected to succeed him.
    2. The power conferred upon the general assembly by the 27th section of the second article of the constitution to provide for the filling of vacancies in office, refers to such vacancies as may occur fortuitously. It does not authorize the creation of an interval between the official terms of persons elected to the office of sheriff.
    3. The act of April 26, 1898, “to amend sections 1202 and 1203 of the Revised Statutes (93 O. L., 351) is void, including its repealing section, and said original sections continue in force notwithstanding said act.
    4. All persons elected at the November election, 1898, to the office of sheriff in the several counties of the state, were entitled upon qualification to enter upon the discharge of their official duties on the first Monday in January, 1899, and those who have not so qualified and entered are entitled to do so now.
    (Decided January 17, 1899.)

      In the ease of the State ex rel. v. Heffner, the petition alleges that the defendant Heffner, having been elected sheriff of Mercer county for two successive terms of two years each, and having on the first Monday of January, 1899, occupied said office continuously for four years, nevertheless he refused to vacate said office and asserted his right to continue therein until the first Monday of September, 1899, and prayed that he be ousted therefrom. In his answer Heffner admits his election to said office in November, 1894, and his re-election thereto in November, 1896, and that he qualified and held the office for both of the terms for which he was so elected, but that in consequence of the act of April 26, 1898, to amend sections 1202 and 1203 of the Revised Statutes he really believes that he is entitled to hold the office until the first Monday in September, 1899. That the governor has failed to issue to him a commission for that purpose, but that he is ready, able and willing to qualify according to law; - that no candidate was nominated or elected to fill said office during the interim of eight months between said first Monday in January, and said first Monday' in September, 1899, but that at the general election held in November, 1898, one Lawrence Shunk, was duly elected sheriff in Mercer county and thereafter and prior to the first Monday of January, 1899, received his commission from the governor and has qualified according to law, but that he was not voted for by the electors of said county to fill said interim of eight months; but that Shunk has nevertheless made demand upon the defendant for the surrender to him of said office which the defendant has refused. He further alleges that on the second day of January, 1899, the county commissioners of said county of Mercer appointed one James B. Shock, sheriff of said county of Mercer to enter upon the duties of said office and hold the same until the first Monday of September, 1899; and that pursuant thereto the governor commissioned Shock as sheriff, who duly qualified according to law and made demand on the defendant for the surrender to him of said office. Wherefore, the defendant, if not entitled to the office himself, is unable to determine to which of said demandants he should surrender the same. To this answer there is a general demurrer.
    In the State ex rel. the Attorney General v. Stallsmith, the petition alleges that the defendant was duly elected and commissioned to the office of sheriff at the general election in 1896, qualified and entered.upon the office on the first Monday in January, 1897, for the period of two years to be completed on the first Monday of January, 1899; that at the general election in November, 1898, the defendant was chosen as his own successor in the office of sheriff of Perry county, but refused to qualify as such elected officer, averring and claiming that in consequence of said amended act he was entitled to hold the same during said interim by virtue of section 8 of the Revised Statutes of Ohio, and praying that he be ousted from said office. Defendant Stallsmith answering admits the averments as to his several elections in November, 1896 and 1898 and alleges that he served the full term for which he was first chosen and that pursuant to his re-election in 1898 he qualified as such sheriff for his second term by giving bond to the satisfaction of the commissioners of said county and taking the oath of office which was endorsed upon said bond as required by law. To this answer there is a general demurrer.
    In the State ex rel. Saal v. Asa S. Bushnell, as governor, and Charles Kinney, as secretary of state, the relator alleges that at the November election held in 1896 one Theodore F. McConnell was duly elected sheriff of Cuyahoga county for the term of two years from the first Monday of January, 1897, and that he duly qualified and entered upon his office and was the lawful sheriff during the term of two years; that at the general election in November, 1898, said McConnell was duly elected as sheriff of said county for the term of two years to commence on the first Monday in in September, 1899, and that he has duly qualified by executing his bond with sureties and conditioned according to law; that said bond has been certified to be correct in form by the county solicitor of Cují-ahoga county and has been approved by the commissioners of said county and his oath has been endorsed thereon. Relator further says that he has been duly appointed by the county commissioners of Cuyahoga county to fill said vacancy in the office of sheriff for the period between the first Monday in January, 1899, and the first Monday of September, 1899, and is entitled by virtue of said appointment to have issued to him a commission as sheriff by the governor and secretary of state for said term, but that said defendants as governor and secretary of state have refused to issue to him such commission and prays for a peremptory writ commanding the issuance thereof. To this petition there is a general demurrer.
    In the State of Ohio ex rel. William A. Kelley v. Charles Thrall, the relator alleges that one Stephen Thrall, by virtue of two successive elections to the office of sheriff of Delaware county, held said office continuously for four years ending as he alleges on the thirty-first day of December, 1898; that at the general election held in November, 1898, one Jacob Schaffner was elected sheriff of said county for a term beginning on the first Monday of September, 1889, and to end on the first Monday of September, 1901; that by virtue of said amending act there existed a vacancy in said office from the first Monday in January to the first Monday in September, 1899, said Schaffner, not having been elected thereto, and said Stephen Thrall being disqualified to hold over. He further alleges that on the seventh day of January, 1899, the court of common pleas of Delaware county pursuant to section 1208 of the Revised Statutes appointed the relator sheriff of said county for said interim. That as such appointee he gave bond and performed the other acts required in qualification for said office; and that the defendant Charles Thrall, claiming to be entitled thereto by virtue of his appointment to said office for said interim made by the county commissioners of said county on the seventh day of January, 1899, usurps and unlawfully holds and exercises said office. The relator prays that the defendant be ousted from said office and that he be inducted therein. To this petition there is a general demurrer.
    Brief of F. S. Monnett, Attorney General.
    The Century Dictionary defines “ineligible” (1) “legally, or otherwise disqualified for office; not eligible.” The adjudicated definition of the word, when applied to holding public office, has been defined State v. Murray, 28 Wisconsin, 99, where the court holds “the term ‘ineligible’ means as well disqualification to hold an office, as disqualification to be elected to an office.’’ State v. Smith, 14 Wis., 497; 106 Ind., 203 ; 3 Nev., 566; 50 Miss., 626; Meachem sections 95-96; Thomas v. Owens, 4 Maryland, 189; Page v. Hardin, 8 B. Mon., (Ky.) 648.
    The two sections of the constitution delegating to the legislature the power to fill vacancies appear in section 27 article 2, and section 18 article 3, the latter section naming executive officers other than that of sheriff can in no way be made applicable to the case at bar. We believe the fair construction of section 27 to be that it delegates the power to fill vacancies where there are no other limitations or disqualifications, expressly provided in the constitution itself. The constitution expressly provided that an alien could not hold office, or a minor, or an insane person, or a person that had disqualified himself by exhausting his rights, such as a limitation as to his eligibilty in holding an office. In each of such cases, whether provided by the state constitution or the constitution of the United States, we hold that it is “otherwise provided ’’for by the constitution, and that article 2, section 27; does not apply. Royall v. Thomas, 28 Grat. (Va.), 130, 26 Am. Rep., 335; Mosley v. Moss, 6 Grat. (Va.), 534; Brooks v. Galloway, 12 Leigh (Va.), 466; 83 Pa. St., 104; 24 Am. Rep., 154; 12 S. W. Rep., 99; Privett v. Bixford, 26 Kans., 52; 40 Am. Rep., 301; State v. Watkins, 21 La. Ann., 631.
    We cite the above cases to confirm our construction of section 3 of article 10, namely, that the constitution affirmatively making- the term limit a ground of ineligibility or disqualification, that the legislature had no authority, under section 27, article 2, to enact section 8 and section 11 of the statutes to in any way fill such vacancies with a four year sheriff any more than it could provide by said section that an alien, a duelist, a briber, or any other constitutionally prohibited person could hold office.
    Hence, when the legislature passed the act of April 26, 1898, pretending to extend the term of office from the first Monday in January to the first Monday in September, and thereby creating- an interim of eight months, it made no provision for filing- said interim for the defendant’s office, and it made no provision for the election to fill said term. And sections 8 and 11 not applying to the defendant, we cannot determine in what way said defendant has any title to said office, either under the constitution or the statute. Carson v. McP., 15 Ind., 327; Smith v. Moore, 90 Ind., 294; Gosman v. State, 106 Ind., 203.
    Upon the expiration of the officer’s term, unless he is authorized by law to hold over, his rights, duties and authority as a public officer must, ipso facto, cease. Badger v. United States, 93 U. S., 599; People v. Tieman, 8 Abb. Pract. (N. Y.), 359; 30 Barber, 193.
    But notwithstanding a general provision that the incumbent of an office shall hold over until the election and qualification of his successor, yet where the incumbent has at the expiration of his term held for the full period permitted by the constitution, as where the constitution forbids the same person from holding the same office for more than a given number of years, he cannot hold over, but the office shall become vacant even where his successor dies before qualifying. Meachem on Public Officers, section 398, p. 258. ,,

      Although the petition is not aimed directly at the appointee hut for the purpose of testing the constitutionality of the Act of 1898, referred to in the pleading, we believe the issue is before this court in this action to determine the validity of that act creating the interim, Christy v. The Board, etc., 39 Cal. 1; People v. Hastings, 29 Cal., 449; People v. Kelsey, 34 Cal., 470; 39 Cal.,,1. If thé foregoing infirmities to the law be found by the court, then there will be no necessity for further discussion of any propositions under this head. But should the law be held to be constitutional on the ground above suggested, then we contend the appointee by the county commissioners has no title to office for the reason that the board of county commissioners being an inferior board created by statute and receiving all their powers from the legislature so far as appointing powers are vested in them that such power must be strictly construed.
    We conclude, that the fair construction of section 1208 that the term office as therein used must under the constitution be an elective office and the term “vacant” must be construed to be some portion or period of time that has once been filled by an election of the electors of the county wherein such vacancy occurs and that the “appointment” therein referred to can only be for such elective office and during the unexpired term constitutionally created and constitutionally limited, and that the term “place” therein used should be construed to be the place vacated by a sheriff duly elected and not an interim created by statute. The court has already construed, as above repeatedly recited, that section 1208 governs and controls in such eases and not section 11. State v. McGregor, 44 Ohio St., 630.
    And it then necessarily follows that if section 1208 controls and it does not provide for the filling of the interim created by the act of 1898, then there is no statutory or constitutional provision providing for. the filling of said interim, and that the said act is unconstitutional and void in not providing- for a fully equipped court wherever person for an injury done him in his land, goods, person or reputation shall have remedy by due course of law; and justice administered without denial or delay, as provided section 16, article 1.
    That if said law of April, 1898 be inoperative as to Mercer county and at least one-third of the remaining counties, it could not be made applicable alone to the remaining portions of the state without contravening- article 2, section 26 for the reason that all laws, of a general nature, should have uniform operation throughout the state.
    Wherefore, the state claims that said act of April 26, 1898, above herein contested, is unconstitutional and void in that it contravenes and denies to the citizens of Mercer county the rights guaranteed to them under article 1, section 1, and article 1, section 16.
    Second, it is unconstitutional and void, being a violation of section 1, article 10 of the constitution of the state of Ohio.
    Third, in contravening and being in violation of section 2, article 10 of the constitution of the state of Ohio.
    Fourth, being in violation of section 3, article 10 of the constitution of the state of Ohio.
    Fifth, being- in violation of section 26, article 2 of the constitution of the state of Ohio.

      Brief of W. E. TVest.

    The obvious sense, manifest intent, and fixed policy, of sections 1, 2, and 3, article 10 of the constitution, and sections 1202 and 1208 of the Revised Statutes, are :
    1. That every hour in the life of the sheriff’s office shall be embraced within and covered by a regular and prescribed term thereof, to fill which, the people shall have the right and an opportunity to elect an incumbent in the first instance.
    2. That no hiatus of legislative creation shall ever intervene between such regular terms, the right and an opportunity to fill which by popular election in the first instance shall be denied or prevented.
    3. That no period in the life of such office shall be filled by appointment other than a vacancy or period of temporary disability arising in and during such regular term from the operation of causes which legislation cannot prevent nor control.
    The truth of these propositions necessarily results from the construction which the mandatory provisions of section 1, article 10 of the constitution must receive, and which may be syllogistic-ally stated thus :
    1. A constitutional command that permanent provision be made by law for doing- a particular thing in a particular way, is an implied prohibition against any legislation, the effect of which is to make impossible the doing thereof in the way commanded.
    2. The mandate of section 1, article 10 of the constitution that “The general assembly shall provide by law for the election of such county officers as may be necessary,” of which the sheriff is one, is an implied prohibition against any legislation creating a hiatus of any duration in that office, the right and an opportunity to fill which by election is denied or prevented.
    3. Amendatory section 1202 of the Revised Statutes, passed April 26, 1898, created a hiatus of eight month’s duration in the office of sheriff, the right and an opportunity to fill which by popular election, is taken away, and the filling thereof for said period by an elected incumbent made impossible ; for which reason said amendatory section 1202 contravenes the mandate of section 1, article 10 of the constitution and is void.
    These propositions are sustained by the unanswerable reasoning in State ex rel. v. Brennan, 49 Ohio St., 39.
    All legislation is void, which suspends the functions or seriously impairs the efficiency of any tribunal, the continued maintenance of which is commanded by the constitution; Reid v. Smoulter, 128 Pa. Rep., 324. The common pleas court is a tribunal, the continued maintenance of which is commanded by section 16 of the Bill of Rights.
    The sheriff is the executive officer of the court. All judicial process, initial, intermediate and final pertains to his office. His official existence and authority are indispensible to the administration of justice and the continued maintenance of judicial efficiency. That legislation is void, which abrogates or suspends the office of sheriff, because the operation and effect thereof is to suspend the functions of the court and prevent the administration of justice.
    Article 10 commands the general assembly to provide by law for the election of sheriff and imposes certan restrictions on its power.

      As an adjunct of the judiciary, the sheriff is not only a necessary but an indispensible county officer, and hence one, for the election of which the legislature is peremptorily commanded to provide, for which reason, after the enactment of a law providing therefor, that body is without constitutional power to abolish or temporarily suspend the office or the authority to fill it. In obedience to the constitutional command, the section of the Revised Statutes in force previous to the legislation of 1898 was section 1202.
    Where permanent legislation is necessary to the maintenance of any Department, Branch, or Office of the government, a Statute enacted therefor pursuant to a constitutional mandate, can not be repealed or suspended, unless adequate and effectual means exist or be provided for supplying its provision in some other constitutional method, and the statute so undertaken to be repealed or suspended, without the existence or provision of such other constitutional method will continue in force. To illustrate our meaning: This is an elective government for the maintenance of which the enactment of laws for the conduct of election is commanded. Suppose the legislature of 1898 had in its wisdom repealed the election laws or such portion thereof as provides for the selection or appointment of judges, clerks, and other functionaries thereof, and later in the session had passed a separate act providing for the conduct of elections and the appointment of judges and other officers to take effect on the first day of November, 1899, can it be seriously contended that such repealing law would not have been disregarded as an invasion of constitutional rights, the old law be held to continue in force and the elections of 1898 be held under the judges it provided, notwithstanding? It is not in the power of the legislature to abolish or suspend temporarily the offices of judges and clerks of election or the statute making- provision therefor, unless some other means exist or be provided for supplying them in some constitutional manner. Other examples might be introduced of statutes enacted pursuant to some mandate of the constitution, but this is sufficient.

      Mattingly & Short, for defendant, Heffner.
    Defendant eiaims it to be his duty to hold such office for the reasons: First, that section 1202 of the Revised Statutes if valid, operated to extend the term of all incumbents. Second, that section 1202, if valid, operated to create a definite term, and not a vacancy, within the purview of section 1208; and that no person was elected to such term; and such term falls within the provision of section 8, of the Revised Statutes. Third, that county commissioners have no power, under section 1208, to fill a definite term, or vacancy occasioned by legislative omission. Fourth, that the constitutionality of the new act being-in volved, and the office being demanded by a sheriff elect, and by an appointee of the county commissioners, he is unable to safely detérmine the rights of such two claimants.
    At the very threshold of interpretation of statutes, we are met with the question, whether or not they are constitutional. The following provisions of the constitution, are in our opinion involved :
    Article X, sections I, II and III; article II, sections 26 and 27 ; article I, section 16.
    It will be observed that the present constitution expressly recognizes the existence of the office in section 3 of article X. It has been said by this court that legislative control of this office, is substantially the same as under the constitution of 1802. Hulse v. State, 35 Ohio St., 427. And perhaps the boldest legislator, would not have attempted a vacation of such office, in the face of the provisions found in the former constitution. And even the power to subtract from the duties of that office, and confer on another officer, to the exclusion of a sheriff, is gravely doubted. King v. Hunter, 65 N. C., 603 ; State ex rel. v. Brunst, 26 Wis., 412 ; Warner v. People, 2 Denio, 272; The People v. Albertson, 55 N. Y., 50.
    The new law evidently proposed to extend the terms of sheriffs throughout the state. Its impotency to accomplish that purpose, is obvious in the light of section 3, article X, if that section is applicable to other than three-term candidacies and biennial elective officers. It is not of uniform application, but it is a general law. A general law whose operation is so uncertain, and unconstitutional as to one class of persons, is invalid as to all. Article 2, section 26: Daggett v. Hudson, 43 Ohio St., 548.
    There is no provision in the statutes of Ohio, for election to the office of sheriff, except for the regular biennial terms. There is but one way known to the law of filling definite terms, occurring throughout the state, that by election. If then, the election for the biennial term does not provide for this short term, there has been no provision by law or election to fill it. State ex rel. Crawford v. McGregor, 44 Ohio St., 633.
    If the law is held invalid, it lifts the office of county sheriff at once from the general confusion now prevailing, and sheriffs elect all over the state
      go into office. Derby v. City of Wilmington, 76 N. C., 133; 42 Ohio St., 545.
    There is no criticism to be directed to section 1208 ; it is a special provision, answering- every purpose for which it was enacted, but does not provide for filling entire terms of office. Such section was enacted to provide for filling vacancies and completing a term begun by some person elected to that precise term. We believe the new act to be unconstitutional. Moor v. Given, 39 Ohio St., 661.
    It may be said, in respect to the power of county commissioners, that they have none to fill by appointment vacancies in elective county offices, except such as expressly delegated to them by the general assembly, and that any provision of the general assembly, which intends to delegate power to the county commissioners to fill elective offices, must be construed strictly. The 'power of appointment to fill vacancies is not absolute, but limited and qualified, it being an abridgement of the fundamental rights of the people, the repository of all power, and is only to be exercised until the people can act.
    The word “vacancy,” as used in the constitution and statutes of states, of the United States, has been many times defined, Lawson’s Concordance of Words and Phrases; Walsh v. Commonwealth, 89 Penn., 425; Dig., 38, 17, 2; De B.Gal., IV, 3; 7 Colorado 611.
    It has also been held, that when the contingency of an “extension of term” happens, as contemplated by such section, as section 8, of the Revised Statutes of Ohio, it is as much a part of the entire term as any portion of the time preceding such extension. People v. Whitman, 10 Cal., 44; Lee v.
      Evans, 8 Cal., 431. It will thus be seen that vacancies occur after the term begins to run. People, v. Wells, 2 Cal., 223.
    The only provision that can be held to apply to such a vacancy, is section 1208, of the Revised Statutes. That is the section under which the appointment was made by the county commissioners.
    Prospective vacancies certain to occur are elective. Casual vacancies arising by some unexpected contingency alone, are appointive vacancies.
    We have therefore, not a vacancy that can be filled by any provision of existing law, if this new act be upheld. But we have at the taking effect of the law, a short prospective term of definite duration to occur generally throughout the state, the nomination and election for which, when term begins, has gone by default. And why has it been permitted to go by default? For the very obvious reason, that the plain purpose of the legislature was not to create a vacancy for commissioners to flll but to extend the term of incumbency in office. Then we derive no aid from the intention of the law in regarding such a vacancy as has occurred within the term of section 1208.
    We therefore conclude, the county commissioners have no power to fill the interim or vacancy, arising by the legislative omission and operation of the new act, of April 26, 1898.
    Can the defendant, (incumbent, having held the office four years) hold over during the interim of eight months under the new law ?
    On the question of eligibility, it has been held that the word “eligible” is defined: “capable of being- chosen, ’ ’ ‘ ‘the subject of selection or choice. ’ ’ Searcy v. Grow, 15 California, 117; 3 Nev., 566.

      The defendant insists that the word “eligible” means “having the requisite and legal qualifications for holding’ an office de jure. ’ ’
    The power to extend the term of a sheriff beyond two years, and not exceeding three years, would not be questioned, the constitutional limitation as to county officers being three years. But whether an incumbent, who has already served four consecutive years, is eligible for any further period during a period of six years, involves the application and construction of section 3, article X, of the constitution.
    And all that can be claimed for this last question is, that, article X of the present constitution has sole reference to elective terms occurring after regular and stated intervals. It most evidently was intended by the framers of such organic law to prevent third term candidates from being eligible. But that it contemplated the rendering ineligible an incumbent from holding his office for some short period or extension of term, or until his successor to such office was legally elected or appointed and qualified, is not so clear. Revised Statutes, section 8.
    Brief of T. B. Williams, for the state.
    We contend that the late act temporarily abolished the office of sheriff, a constitutional office, by creating a vacancy therein by not providing a manner of filling the vacancy so occasioned by said act. The legislature cannot temporarily abolish an office especially when the office is a constitutional office. Reid v. Smoulter, 128 Pa. St., 324. How has the office of sheriff been abolished and vacated. Let us see. An office is vacant when, there is no person in possession of the office legally qualified to perform, its duties. State ex rel v. Thompson, 9 C. C. R., 162; 6 O. C. D., 106; State ex rel v. Wright, 56 Ohio St., 553; State ex rel Crawford v. McGregor, 44 Ohio St., 628.
    The language in section 1208 is clear and unambiguous, and is evident that the commissioners can appoint only when a vacancy occurs during the term for which a sheriff is elected, for the section says that the person so appointed shall hold his office for and during the unexpired term of the sheriff whose place he fills. People v. Mott, 3 Cal., 504; People v. Osborn, 7 Colo., 605.
    As the vacancy in the case at bar did not occur during the term or place but by operation of law, and the recent act provided no mode for filling the vacancy, the county commissioners had no power to fill any vacancy occasioned by the late act. The power of appointment is given to a, certain officer •or officers to fill vacancies to prevent a failure of the public service. People v. Bissel, 49 Cal., 407; Vol. 6, Amer. and Eng. Ency. of Law, 929. Sutherland Stat. Con. sections 326, 327; 12 Ad. and El., 468; Dame’s Appeal, 62 Pa. St., 417. If the legislators in passing section 1208 intended that it should apply to a ease of this kind they would have said so in plain terms. Woodbury v. Berry, 18 Ohio St., 462.
    Said act is also in violation of section 2, article 10, in not providing for an election of a person to fill the period of eight months from January to September. State ex rel v. Brennan, 49 Ohio St., 33; People v. Blair (N. Y. Sup. Court) appellate division, 21 Rep., 213.

      Brief of Frank A. Kelley, John Ferguson and John T. Pyle, for defendant Stallsmitli.
    We claim that the right to fill all county offices in the first instance rests with the people, and if the legislature has the right to provide any other means of filling offices, even if there should be a vacancy, and the means so provided is through a delegation of this rig-ht to some inferior authority, then the power so conferred can only be exercised within the strict letter of the statute conferring it. Meachem on Pub. Officers, section 108 and cases cited; 26 Ohio St., 626; 49 Ohio St., 33; 44 Ohio St., 630.
    By section 1208 the tenure or holding of the appointee is confined to the “unexpired term of the sheriff, whose place he fills.” The terms of sheriff are two years, and a two years’term just precedes this interim and a two years’ term follows it; one term is just ended and another does not begin until September, and the interim is no part of either, consequently we have no “unexpired term” to fill by appointment. People v. Blair, 21 N. Y. (App. Div.), 213; 2 Ohio 74; 18 Ohio St., 341 and 462; 41 Ohio St., 52; 39 Ohio St., 484; 4 Ohio St., 385; 18 Ohio St., 456; People v. Osborn, 7 Colo., 605; 22 Oregon 335; 145 Ind., 438; 85 Md., 119 and 259; 86 Md., 443; State ex rel v. Governor, 7 Ohio St., 372; People v. Mott, 3 Cal., 504; State ex rel. v. Taylor, 15 Ohio St., 137.
    If the recent enactment (93 O. L., 351) is valid, then our contention is that there is no vacancy that can be filled by appointment, but on the contrary, the defendant, as the present incumbent, holds by virtue of section 8 Revised Statutes as a part of his first term until next September, when his new term will begin. State v. Rowe, 25 Ohio St., 588;
      State v. Brewster, 44 Ohio St., 589; State v. Mc-Cracken, 51 Ohio St., 123.
    Successor as used in section 8, means regularly-elected successor. State v. Com'rs, 7 Ohio St., 126; State v. Wright, 56 Ohio St., 550; State v. Kearns, 47 Ohio St., 568.
    That there is no provision of the constitution expressly limiting term of sheriff, Hulse v. State, 35 Ohio St., 421.
    The eight months, as we contend, is a part of the last term of the four-year sheriff, and were it not for the fact that he is made ineligible by the constitution, he would be entitled to serve it as a part of such term. The constitution having therefore made him ineligible to finish his term, there is, therefore, as to the eight months remaining, a vacancy in and an unexpired part of the term of office, which the commissioners under section 1208 may fill for the portion thereof, ending on the first Monday in September, when his successor shall take the office. The hold-over period by the provisions of section 8 becomes a part of the original term. 130 Ind., 120; 56 Ohio St., 553; 10 Cal., 44.
    That the inhibition of the constitution does not limit the term, but simply makes the person in office ineligible to serve to the end of his term, should it be extended to a longer period than four years. 15 Ind., 327; 90 Ind., 294; 106 Ind., 203; 111 Ind., 369 and 519; 113 Ind., 434; 107 Ind., 374; 122 Ind., 113; 136 Ind., 63.
    It is the recognized policy of the state to avoid, if possible, a vacancy in office. 51 Ohio St., 123.
    If the term of an office is not limited by the constitution, it may be extended by section 8; 25 Ohio. St., 588; 20 Ohio St., 167; 44 Ohio St., 589; 8 C. C., 599; 4 C. C. D., 227; 9 C. C., 161; 6 C. C. D., 106.

      The term of sheriff is not expressly limited. 35 Ohio St., 421.
    Brief of Francis J. Wing and J. H. Schneider, for the state, in the ease of Frederick Saal.
    The question to be decided arises on demurrer to the petition for mandamus.
    If the relator, under the facts alleged in the petition, is entitled to the office of sheriff of Cuyahoga county, the relief prayed for should be granted.
    The relator has been duly appointed to fill a vacancy in the office of sheriff of the county named, and asks for a commission.
    It will be urged that the law passed April 26, 1896, amending sections 1202 and 1203 of the Revised Statutes, is unconstitutional. State ex rel. v. Mc Cracken et al., 51 Ohio St., 123.
    Our first contention is that McConnell is the incumbent of the office of sheriff for a term of two years beginning on the first Monday in September, 1899. State ex rel. v. Mc Gregor, 44 Ohio St., 632.
    It appears, then, that McConnell has served two years as sheriff and is now the “incumbent” of a second term of two years having “the political right or authority to perform the duties of the office.”
    He has exhausted his eligibility as limited by section 3, article 10 of the constitution ?
    The word “eligible” relates to the condition or status of a person with relation to entering upon, or becoming an incumbent of, an office. It means as well disqualification to hold an office, as disqualification to be elected to an office. State v. Murray, 28 Wis., 96.
    A person maybe eligible"to'either offtwo'or more offices, but not to both, or all. Sections 1020, 1164, and 1268, Revised Statutes.
    Eligibility, in this connection, plainly refers to the constitutional capability, as fixed by existing facts, of a person presenting himself as one willing to become the servant or agent of the people by accepting and qualifying for public office to hold such office.
    The question whether or not one must be eligible to an office at the time he is voted for, in order that the votes east for him should be abstracted and canvassed, may, for the purposes of this case, be waived; but, from the trend of decisions of this court, it may be fairly assumed as law in Ohio, that the consideration of eligibility must arise at the time the one elected, offers to qualify and become the incumbent of an office.
    The judgment then rendered as to his eligibility, based upon all facts then existing, permitted him to claim as “his place the office of sheriff for the full term of two years beginning on the first Monday of September, 1899. State v. Commissioners, 7 Ohio St., 128.
    On January 1,1899, the office of sheriff in Cuyahoga county became vacant because McConnell, by reason of facts touching him especially, as differing from others with regard to whom such facts did not exist, had not capacity or eligibility, under the constitution, to be sheriff longer than two terms of two years each.
    That an office becomes vacant by reason of the-fact that constitutional limitations do not allow the incumbent of a term to hold over until his successor shall be elected and qualified, is fully supported by State ex rel. v. Brewster, 44 Ohio St., 589; State ex rel. v. Wright, 56 Ohio St., 540.

      It is a general rule that the courts will not declare an act unconstitutional unless the in validity of the act is placed in their judgment beyond a reasonable doubt, and that at all times the presumption is in favor of its constitutionality. The mere fact that they think it opposed to a general “latent spirit” supposed to pervade or underlie the constitution, but which neither its terms nor its implications clearly disclose in any of its parts will not justify it. Walker v. City of Cincinnati, 21 Ohio St., 46; C. W. & Z. Railroad, 1 Ohio St., 82; State of Ohio v. Covington, 29 Ohio St., 114; State v. Kendall, 52 Ohio St., 356; State v. Smith, 44 Ohio St., 373; Cooley’s Constitutional Limitations, 128, 129. Hylton v. The United States, 3 Dall., 171.
    The power to fix the time of holding election for county officers is vested by the constitution in the legislature. State ex rel. Mc Neil v. Dombaugh, 20 Ohio St., 167.
    The act of March 2, 1893, amending- section 1240 of the Revised Statutes, providing 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 election, is a valid exercise of legislative power. State v. Constantine, 42 Ohio St., 441.
    Particular and positive provisions of a prior act are not affected by a subsequent statute treating a subject in general terms, and not expressly contradicting the provisions of the prior act unless such intention is clear. Commissioners v. Board of Pub. Wks., 39 Ohio St., 632; State v. Auditor of Darke Co., 43 Ohio St., 315; State ex rel. Crawford v. McGregor, 44 Ohio St., 631; State ex rel. v. McGregor 51 Ohio St., 123.

      In contemplation of law there can be no vacancy-in an office so long as there is a person in possession of the office, legally qualified to perform its duties. State of Ohio v. Howe, 25 Ohio St., 588.
    If, as we contend, the office of sheriff is, under the law and constitution, limited to a fixed term, namely : two years, then on the first Monday of January, 1899, there was no person legally authorized to perform the duties of the office. And in the absence of such a person, the office became legally vacant.
    It is equally clear that defendant’s term of office does not commence until the second Monday of September, 1887. In the' meantime between the expiration of his first and the commencement of his second term, there is a vacancy in the office. Robbins v. Commissioners, 2 C. C., 23; 1 C. D., 340; State v. Thompson, 10 Ohio St., 5; 9 C. C. 165; 6 C. D., 106.
    The legislature, under the constitution, has the right to prescribe the manner of election or appointment to an office. 7 Ohio St., 561. And also the right to provide the manner and method of filling a vacancy. Constitution of 1851, Art. 2, section 27; Cooley’s Constitutional Lim., 128, 171.

      Wilcox, Collister, Hogan <& Parmely, for Theo. P. McConnell, sheriff, etc.
    Theodore P. McConnell, as alleged in plaintiff’s petition, was elected sheriff of Cuyahoga county on the first Tuesday after the first Monday in November, 1896, for the term of two years, beginning on the first Monday in January, 1897, and to expire on the first Monday in January, 1899. His election was held under article 10, section 2 of the Constitution.

      The effect of section 8 being that McConnell would legally hold the office for two years and eight months, or until the beginning of the second term, unless it is otherwise provided in the constitution or laws. State v. Wright, 56 Ohio St., 553.
    Whether it is otherwise provided in the constitution depends upon the length of time he had held the office at the end of his term. If at the end of his term he had served four years continuously, it is clear that section 8 would not operate, for the reason that article 10, section 3 of the Constitution provides that he is not eligible to the office of sheriff for more than four years in any period of six years. This section of the constitution under such circumstances would create a vacancy in the office. State v. Brewster, 44 Ohio St., 580.
    The constitution, therefore, fixes the time that a sheriff can hold office continuously, and also the time of his election, but does not undertake to fix his term of office other than that the legislature cannot make the term exceed three years, nor does it fix the time when his term shall begin. To enable sheriffs to serve the full time permitted them by the constitution, the legislature fixed their term of office at two years. This gave them an opportunity of being "re-elected and of serving the full constitutional period. This term of two years it could constitutionally change at any time, so long as it did not undertake to extend it beyond three years. The legislature could also constitutionally change the time of the beginning of the sheriff’s term o>f office, as this is a matter left entirely with the legislature. It follows, therefore, that the act of April 26, 1898, (93 O. L., 351), is not in conflict with any provision of the constitution. State ex rel. v. Mc Cracken et al., 51 Ohio St., 123.
    It follows from this that there was no vacancy by operation of law in the office of sheriff at the expiration of the time fixed by original section 1202 for the ending of McConnell’s first term, and as he still fills the office, there was no vacancy for the county commissioners to fill. State v. Howe, 25 Ohio St., 588.
    Brief of Pugh da Pugh, and F. M. Marriott, for Kelley.
    The relator was appointed by the common pleas court of Delaware county to fill the interim of eight months. The sheriff, Stephen Thrall, whose term ended on December 31, 1898, had been elected, and served two full terms.
    The county commissioners on the same day (January 7, 1899), the relator was appointed by the common pleas court, appointed the defendant, Charles Thrall, to fill the office during the interim. The defendant is a son of the old sheriff, Stephen Thrall.
    What difference, if any, is there between the statute construed in 51 Ohio St., 123, (90 O. L. 63), and this statute? or between the offices, or officers, affected by the two statutes? There is only one and that is while a sheriff who has served two terms, is constitutionally ineligible to hold over beyond his second term, until his successor is elected, etc., a clerk of the common pleas court is not so disqualified. But how can this difference effect the question in regard to the constitutionality of this statute ?
    Section 3 of article 10 of the constitution, which creates the ineligibility in the second term sheriff to hold over, etc., is paralleled by a provision in the constitution of Indiana, and the Supreme Court of that state has, in several cases, construed the provision. Carson v. McPhetridge, 15 Ind., 327; Vogel v. The State, 107 Ind., 374; Shuck v. The State, 136 Ind., 63; Gosman v. State, 106 Ind., 203.
    Brief of Jones <& Jones, for Charles Thrall.
    In this case the plaintiff, Kelly, claims to be entitled to the office of sheriff of Delaware county, Ohio, which office is now held and exercised by the defendant, Charles Thrall. The action is brought under section 6764.
    The plaintiff claims the right to the office by virtue of an appointment made by the court of common pleas of Delaware county, Ohio, but we insist that he has no right or title to the office for the reason that we do not think under the state of facts recited in the plaintiff’s petition, the court of common pleas has the right to appoint a sheriff, and for the further reason provided in section 83 of the Revised Statutes. We think that the title of the plaintiff is invalid.
    A vacancy is a vacancy, and the commissioners may fill it, no matter for what cause it occurs, subject only to the limitation that they cannot encroach upon a succeeding term. Vacancies in other county offices, where there is no limitation, are governed by section 11, unless there is some other provision, as in case of sheriff, governing, and the appointee holds until his successor is elected and qualified. But not so with the sheriff appointed by the commissioners. His appointment terminates at the end of the vacancy, and if his successor should for any reason be disqualified, or fail to to accept the office, and [a vacancy is thereby created at the beginning oí his term, the sheriff appointed cannot hold any portion of the vacancy thus created at the beginning of the term of the successor.
    Section 1218 differs from section 11 only as to the time and not as to the kind of vacancy, or the manner in which the vacancy occurs. The authority to make the appointment is just as broad in filling the vacancy of sheriff by the commissioners as the authority to fill vacancies by the commissioners in the sections of the statutes making provisions for the appointment of other county officers. The clause fixing the time in no way modifies or limits the power to make the appointment, but does limit the time for which the appointment shall be made.
    Section 1016, which provides that “when a vacancy happens in the office of county auditor, from any cause, the commissioners of the county shall appoint some suitable person, resident of the county, to fill such vacancy.” State ex rel v. Brewster, 44 Ohio St,, 594; Robbins v. The Commissioners, 2 C. C., 23; 1 C. D., 340.
    The several acts of the legislature relating to the same subject should be taken together in construing them, and the construction of a statute is to be made of all the parts together. Endlich on Construction of Statutes, pargs. 35 and 44.
    It frequently becomes the duty of courts, in giving effect to the intention of a statute, to restrain, enlarge or qualify the literal meaning of words used. Burgett v. Burgett, 1 Ohio, 469; Endlich, parg. 43 and note (a); Sawyer v. The State, 45 Ohio St., 344; Board of Education v. Board of Education, 46 Ohio St., 599.
   Shauck, J.

The numerous controversies which these actions present and suggest arise out of the act of April 26, 1898 (93 O. L.),351, “to amend sections 1202 and 1203 of the Revised Statutes.” Prior to the amendment section 1202 provided: “There shall be elected in each county biennially a sheriff and coroner who shall hold their office for two years, beginning on the first. Monday of January next after their election.” Section 1203 provided for the qualification of the officers so elected before said first Monday of January. The only change attempted by the amending act is the substitution of the first Monday of September for the first Monday of January. The sheriffs elected at the November election in 1896 were chosen and commissioned for official terms of two years to be completely ended on the first Monday of January, 1899.

Assuming the constitutional validity of the ' amending act, the briefs of counsel present a variety of views touching the manner in which the office is to be filled during’ the eight months intervening between the first Monday of January and the first Monday of September in the year 1899. By one it is contended that there is a vacancy to be filled by appointment to be made by the county commissioners pursuant to the first clause of section 1208 providing that “When the office of sheriff becomes vacant the county commissioners shall appoint some suitable person to fill the vacancy who shall give bond and take the oath of office prescribed for .the sheriff, and hold his office for and during the unexpired term of .the sheriff whose place he fills.” Another contends that there is a vacancy to be filled by appointment to be made by the court of common pleas pursuant to the last clause of section 1208, providing that ‘ ‘When the sheriff is incapable by reason of absence, sickness or other disability, of serving any process required to be served, or by reason of interest is incompetent to serve, the court of common pleas may appoint some suitable person * * *. ” Another presents the view that, notwithstanding the expiration of their official terms, the sheriffs elected in 1896 continue in office during said interim of eight months until the first Monday of September, 1899, when the sheriffs chosen in November, 1898, may take office according to the terms of the amending act, and this view is supposed to be supported by section 8 of the Revised Statutes providing that “Any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the constitution or laws.”

Since all of these views assume the validity of the amending act, and since its validity is challenged by the petition against Heffner and in some of the briefs, it seems to present the question of first importance. It is said by those who maintain the validity of the act that the question was decided in accordance with their view in State ex rel. Attorney General v. Brewster, 44 Ohio St., 589. If this question was involved in that ease, it is strictly accurate to say that it was overlooked. The report shows that counsel agreed as to the existence of a vacancy resulting from the amendment of both the constitution and the statute, and the consideration of the court was devoted exclusively to the manner in which the admitted vacancy should be filled.

It is also said that this act should be held valid in view of the decision of this court in State ex rel. v. McCracken, 51 Ohio St., 123. That ease, however, related to the office of the clerk of the court, and gave effect to section 16 of article 4 of the constitution — a part of the Judicial Article— relating to that particular office, and ordaining that ‘ ‘there shall be elected in each county by the electors thereof one clerk of the court of cdmmon pleas, who shall hold his office for the term of three years and until his successor shall be elected and qualified, * * A” The effect of this section was distinctly held to be to take the office of clerk out of the operation of other provisions of the constitution which might otherwise have been controlling. In the view taken of the act there considered, it was vital to its validity that5 because of the constitutional provision quoted, the act did not create a vacancy in the office. Moreover neither of the cases cited was affected by section 3 of article 10 of the constitution.

It has never been held by this court that the legislature may create a vacancj^ in an existing county office to be filled by appointment, although it was held that the official term of an elected clerk of the court may, by the operation of the constitutional provision referred to and an act of the legislature, be in effect extended beyond the term for which he had been elected, the extended term not exceeding any limitation placed thereon by the constitution.

Although the power exercised by the general assembly in this instance is legislative in character it must be exercised conformably to the pertinent sections of the 10th article of the constitution : “Section 1. The general assembly shall provide by law for the election of such county and township officers as may be necessary. Section 2. County officers shall be elected on the first Tuesday after the first Monday in November by the electors of each country, in such manner and for such term, not exceeding three years, as may be provided by law. Section 3. No person shall be eligible to the office of sheriff or county treasurer for more than four years in any period of six years.” The mandatory provision that the general assembly shall provide by law for the election of county officers is a clear denial of its power to provide for their appointment, and the requirement that such officers shall be elected on the day named negatives the view that they may be appointed by any authority. State ex rel v. Brennan, 49 Ohio St., 33. The power of the general assembly with respect to the subject is completely comprehended in these sections of the 10th article and section 27 of the second article: “The election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution, or the constitution of the United States, shall be made in such manner as may be directed by law * * *.” The nature and the terms of the power granted by this section indicate that, in its application to county offices, it is subordinate to the provisions of the 10th article. The vacancies for which it authorizes' the legislature to provide are those which occur fortuitously, as by death or resignation, in offices for which there has been provided, in obedience to the 10th article, an elected incumbent. The power to provide for the filling of such vacancy does not imply a power to create an interval in the office between the official terms of two persons elected to fill it. With respect to the interval which the general assembly has attempted to create by the legislation in question it is “other.wise provided” by the 10th article, and as to the principles involved the act does not differ from that considered in the State v. Brennan.

But it is said that the act does not create a vacancy in the office, because the sheriff in office on the first Monday in January should hold until the first Monday inSeptember when his successor may qualify under the amending act. This proposition is completely answered by the third section of the 10th article disqualifying all persons to serve as sheriff for more than four years in any period of six years, and the fact appearing in the State ex rel v. Heffner, that on the first Monday in .January the defendant had held the office for four years continuously. We are not advised of the number of counties in the state in which the same condition exists. But in the State v. Stallsmith, we learn that the defendant was first elected in November, 1896 and again in November, 1898; and it is clear as to him, that although he would be qualified to hold over during the interval referred to, there is to be, by the terms of the act, at the close of his second term an interval of disqualification of like duration and origin for which a sheriff cannot be elected under any provision of law now existing. But the number of such instances of disqualification cannot be important. In view of the general nature of the subject the act is void since it cannot operate in every county of the state.

The word “eligible” in the third section of the 10th article refers as well to qualification to continue in office as to qualification to take office. By its terms the test of eligibility relates to continuance in, or occupancy of, office. It prescribes no qualification peculiar to the taking of office but as to the two offices of sheriff and treasurer, with respect to which there are peculiar reasons for limiting the duration of incumbency, it prescribes such limitation. The term has been usually so interpreted in similar connections. State ex rel. v. Murray, 28 Wis., 96; Carson v. McPhetridge, 15 Ind., 326; Smith v. Moore, 90 Ind., 204; Gossman v. State ex rel., 106 Ind., 203.

Original sections 1202 and 1203 were enacted in obedience to the mandate of' the 10th article of the constitution. The repealing section of the act of April 26,1898, is void as are the other sections. The original sections are now in force notwithstanding said act. The persons who were elected to the office of sheriff in November, 1898, were entitled to qualify and enter upon the duties of the office on the first Monday in January, 1899. Those who failed to do so then are now entitled to qualify and enter upon such duties.

Since we entertain no doubt as to the validity of the official acts of the 'persons who have occupied the office of sheriff since the first Monday of January, by whatever claim of title, no such doubt should be inferred from any of the views here expressed. It is with becoming regret that we reach a conclusion regarding the effect of these constitutional provisions which defers the accomplishment of such important public purposes as must have moved the legislature to pass the act in question. Should such purposes continue to commend themselves to the judgment of the members of the general assembly, it is obvious that they may be attained by an act changing the date of the commencement of the official term of the sheriff, and providing for the election for the interval of someone who will not, in consequence, serve more than four years in any period of six years.

In State ex rel. v. Heffner, the demurrer to the answer will be sustained and there will be a judgment of ouster.

In State ex rel. v. Stallsmith, the demurrer to the answer will be overruled and the petition dismissed.

In State ex rel. Saal v. The Governor et al., the demurrer to the petition will be sustained and the petition dismissed.

In State ex rel. Kelly v. Thrall, the demurrer to-the petition will be sustained and the petition dismissed.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    Ives v. McNicoll.

      Illegitimate children deemed legitimate, when — Section 417S', Revised Statutes.

    1. A child begotten by parents who were at the time not intermarried, and who could not then enter into a legal contract of marriage, may be legitimated under section 4175, Revised Statutes, by the subsequent legal marriage of the parents and the acknowledgment of the child by the father as his child.

      2. M, an unmarried man, had a child by R, a married woman; R afterwards became divorced from her husband, and thereafter M intermarried with her and acknowledged the child as his child. Held: That the child was thereby legitimated, and upon the death' of M, the child had all the rights of an heir of his body.
    (Decided January 17, 1899.)
    Error to the Circuit Court of Hamilton county.
    Margaret C. McNicoll commenced her action against Claribel Ives for the partition of certain real estate situate in the city of Cincinnati, and fully described in the second item of the will of Peter McNicoll, deceased. The cause was heard in the court of common pleas and there was a finding of facts made separate from the conclusions of law. The entire will of Peter McNicoll appears in the finding of facts, but only so much thereof is given here as relates to the controversy in hand. The court finds as follows:
    1. That Peter McNicoll, a citizen and resident of Hamilton county, Ohio, died in the year 1852, leaving his will which was duly admitted to probate in said county, the second, item of which is as ’follows: “I give and devise unto my son, Henry McNicoll, for the term of his natural life, and at his decease to go to the heirs of his body in fee, the following described real estate to-wit: (Here follows a description of the real estate sought to be partitioned.)
    2. That the testator’s son, Henry McNicoll, in the year 1855, was married to Mary Galbraith, and the defendant, Claribel Ives, is the only offspring of such marriage.
    In the year 1863, Mary Galbraith McNicoll, the mother of the defendant, was g’ranted a decree of divorce from Henry McNicoll by the court of common pleas of Hamilton county, Ohio.
    3. That Elizabeth Meyer, who is the mother of the plaintiff, Margaret C. McNicoll, was married in Newport, Campbell county, Kentucky, on the tenth day of December, 1867, to Samuel P. Reasoner, who was then a soldier in the United States Army, stationed at the Newport Barracks.
    That said Samuel P. Reasoner was discharged July 13, 1869, at Newport Barracks, Kentucky, but he again enlisted in the army of the United States on the twenty-seventh day of December, 1869, at Cincinnati, Ohio, for a period of five years, and served in Company H, of the 18th Regiment of the United States Infantry. On January 10, 1870, Samuel P. Reasoner went with his regiment to the state of South Carolina, where he continued in the service of the United States, in the army, until the twenty-seventh of December, 1874, when he was duly discharged at Columbia, South Carolina; and where he was again married on the seventh day of January, 1875. He then became domiciled in Columbia, South Carolina, where he has ever since continued to reside, and he never left the state of South Carolina or returned to the state of Kentucky after the tenth day of January, 1870.
    The court finds as a matter of fact, that there was absolutely non-access and non-intercourse between said .Samuel P. Reasoner and Elizabeth Reasoner, his wife, that is to say, they never saw each other, never met each other, and never lived or cohabited together, after the thirteenth day of July, 1869, up to and including- the. time of the present trial.
    4. Elizabeth Reasoner continued to reside in the state of Kentucky from July 13, 1869, until the year 1878, and was not absent from that state or the state of Ohio during that entire period of time.
    The testator’s son, Henry McNicolI, an unmarried man, who then and thereafter was a citizen, resided, and had his domicile in Cincinnati, Ohio, became intimate with Elizabeth Reasoner in Newport, Kentucky, in 1875, and thereafter, and was the father of the plaintiff, Margaret C. McNicolI, who was born in Newport, Kentucky, on the tenth day of September, 1876.
    5. About the year 1878, Elizabeth Reasoner removed with her daughter, the plaintiff, to Cincinnati, Ohio, and on the twenty-third day of April, A. D. 1889, she obtained a divorce from her husband, Samuel P. Reasoner, by the judgment of the common pleas court of Hamilton county, Ohio.
    6. On the twenty-seventh day of June, 1889, the said Henry McNicoll and ' Elizabeth Reasoner, mother of the plaintiff, were married in the city of Covington, Kenton county, Kentucky.
    They thereafter lived for one year in Cincinnati, Ohio, and then for two years in Dayton, in Campbell county, Kentucky, when they removed to Clermont county, Ohio, and there resided until the nineteenth day of December, 1893, when Henry McNicoll died. That said Henry McNicoll was a citizen of, resided and had his domicile in, the city of Cincinnati, Ohio, continuously from the year 1870 up to and including the period of one year after his said marriage on the twenty-seventh day of June, 1889.
    7. At all times from her birth, in September, 1876, until his death, in December, 1893, Henry McNicoll recognized and acknowledged the said Margaret C. McNicoll as his daughter, and after his marriage with her mother she resided in the family of Henry McNicoll, who provided for her education and support, and by and in his last will and testament, which was duly admitted to probate, he recognized her as his daughter and named her in his said will and testament as one of his heirs and devisees.
    8. The plaintiff, Margaret C. McNicoll, and Claribel Ives are the only children or descendants of Henry McNicoll who survived him.
    The property described in the petition is the property devised by Peter McNicoll in the second item.of his will to Henry McNicoll for life, and to the heirs of his body upon his death.

      9. During all the time mentioned, the following provision has been a part of the statute law of the state of Kentucky, Revised Statutes of Kentucky, section 1398:
    “If a man having had a child by a woman shal. afterwards marry her, such child, or its descendants if recognized by him before or after marriage, shall be deemed legitimate.”
    And the court of appeals of Kentucky, which is the court of last resort in that state, in the year 1887, decided in the case of Sams v. Sams, 85 Kentucky Reports, page 396, that the foregoing statute of Kentucky does not apply to a case where a man had children during the coverture of the man with another woman, and who might afterwards marry.
    Which said case and the statement of the law contained in said decision is now the law of the state of Kentucky.
    And the court makes the decision of the case of Sams v. Sams a part of this finding of fact, which by agreement of parties, in open court, may be considered as a part hereof as fully as though the same were herein set forth at large. And the said ease of Sams v. Sams, as it appears reported in said volume of said Kentucky Reports, may be referred to as constituting a part of this finding of facts.
    Upon the facts so found the court found as a conclusion of law that Margaret C. McNicoll is seized in fee as a tenant in common with Claribel Ives of the undivided one-half of the real estate in controversy, and ordered partition. To all of which Claribel Ives excepted and filed her petition in error in the circuit court, seeking to reverse the judgment of the court of common pleas. The circuit court affirmed the judgment, one judge dissenting. Thereupon Claribel Ives filed her petition in this court seeking to reverse the judgment of the courts below.

      XitPredge c& Wilby, for plaintiff in error.
    The statute of Ohio relied upon to confer legitimacy upon Margaret, which was in force at the date of Peter McNicoll’s will, is that of February 24, 1831 (29 Ohio L., 252-254), section 4175, Revised Statutes. Margaret was begotten and born in Kentucky, and at the time of her begetting and birth, her mother, Mrs. Reasoner, resided in Kentucky; and the subsequent marriage of Henry McNicoll to Mrs. Reasoner was in Kentucky.
    The statute of Kentucky providing for the legitimating of bastards is Stanton’s Revised Statutes, vol. 1, p. 424. The court of appeals of Kentucky, has construed this Kentucky statute in the case of Sams v. Sams, 85 Ky., 396.
    If the language of the Ohio statute be given the same construction which the Kentucky court of appeals gave to the Kentucky statute above quoted, Margaret was never legitimated.
    The Supreme Court of Ohio has twice considered the language of the closing paragraph of section 4175, namely, that as to legitimating children born after a marriage deemed null in law. Wright v. Lore, 12 Ohio St., 619; Morris v. Williams, 39 Ohio St., 554.
    The Supreme Court has never, so far as we have been able to discover, passed upon the meaning, or defined the application, of the part of the statute involved in the case at bar — that relating to the legitimating by subsequent marriage and acknowledgment.

      We know.of no statement by the Supreme Court of Ohio which would sustain the view that the sanctity of the marriage relation was, in Ohio, of any less legislative or judicial concern than in Kentucky. Duncan v. Duncan, 10 Ohio St., 181.
    To read the statute as claimed by our adversaries leads to absurd consequences, disturbing principles of policy and of the general law protecting the marriage relation. United States v. Kirby, 7 Wall., 482; Stone v. Elliott, 11 Ohio St., 252; Maxwell on Statutes, page 95; Munro v. Munro, 7 Cl. & Fin., *872.
    We believe the correct statement of the purpose of the legislature in passing this statute — a purpose which will aid the court in giving to its language right meaning, and which surely raises an ambiguity as to the scope of the words “a man” or a “woman” — may be found in Wallace v. Reppleye, 103 Ill., 229.
    The argument of opposing counsel falls down when tested by the simple rule that an argument is fallacious when it proves too much. Basing their claim that the literal meaning of the words, with all the consequences of comprehensiveness, must be enforced, without aid from interpretation in the light of common sense or public policy, opposing counsel claim, that the statute means just what it says, that where a man having by a woman a bastard shall afterward intermarry with such woman, that then the children are legitimated and that it admits of ‘no exception. Adams v. Adams, 154 Mass., 290; Greenbow v. James, 80 Va., 636.

      Robert Ramsey; Joseph W.- O'1 Sara and John Nichols, for defendant in error.
    The strong presumption of innocence ‘of crime, which the law always indulges, will require the court to assume that Samuel Reasoner was divorced from Elizabeth when he married a second time, in South Carolina, and when she afterward cohabited with Henry McNicoll; for otherwise he would have been guilty of the crime of bigamy, and she guilty of the crime of adultery. Carroll v. Carroll, 20 Tex., 741; King v. Twining, 2 B. & Ald., 386; 1 Bishop, Marriage and Divorce, section 953; 1 Greenleaf, Ev., section 35; Yates v. Houston, 3 Tex., 433; Albright v. Hawk et al., 52 Ohio St., 362.
    Certainly if presumptions may not be called to the aid of a judgment in such a ease, they may not be invoked for the purpose of defeating a judgment which the strict letter of the finding sustains. Leach v. Church, 10 Ohio St., 148; Jones v. Brown, 11 Ohio St., 601; Craig v. Bennett, 45 N. E., 792; Burnam v. St. Ry. Co., 78 Feb., 101; McKenna v. Whittaker, 69 N. W., 587.
    As to the construction of the statute the first general maxim of interpretation is, that it is not allowable to interpret what has no .need of interpretation. Vattel, Bk. II, Ch. XVII, section 263.
    There are several principles which courts apply when considering statutes of their own legislature, which have been clearly recognized by our Supreme Court. The words are to receive their ordinary and natural import, and the act should be held to embrace all cases coming fairly within its terms. The courts should not consider the question of public policy nor their own views in the matter, so long as the legislature has spoken on the subject; in other words they should avoid to the utmost all efforts at judicial legislation. This rule was early adopted in this state. Patton v. Sheriff, 2 Ohio, 396; Hurd v. Robinson, 11 Ohio St., 232; Woodberry v. Berry, 18 Ohio St., 456; Smith Bridge Co. v. Bowman, 41 Ohio St., 37; Deem v. Millikin, 6 C. C., 357; 3 Circ. Dec., 491; Schellenberger v. Ransom, 59 N. W. Rep., 935; Carpenter’s Estate, 170 Pa. St., 203; 39 Cent. Law Journal, 217, and 41 Cent. Law Journal, 377.
    It is reasonable to suppose that the legislature, in adopting this provision, did so in view of the construction which had been put upon it and with the intention that it should receive the same construction here. Favorite v. Booher’s Adm'r., 17 Ohio St., 555; Maltby v. Cooper, Mor., 80; Dwarris, 274, n. 4, and Sutherland, section 256.
    Margaret’s right to take is to be determined by the state of the law in Ohio, at the date of her father’s death, December 19, 1893. If she would have inherited from him under the statute of descents as the law interpreted it at that date, she comes within the descriptio personarum of the will. Templeman v. Steptoe, 1 Mumf., 339; Davis v. Rowe et al., 6 Rand., 355; Garland v. Harrison, etc., 8 Leigh, 368.
    Although this court has not had occasion to pass upon all of these aspects of the statute of descents, yet whenever a question has arisen, it has been determined exactly in accordance with the spirit of these decisions. Penn v. Cox, 16 Ohio, 32; Drake v. Rogers, 13 Ohio St., 21.
    The only question coming before this court as to the rights of illegitimate children, arose in the cases of Wright v. Lore, 12 Ohio St., 619, and
      Morris v. Williams, 39 Ohio St., 554, in both of which this court reflected the spirit of the Virginia decisions, holding the issue of marriages void or voidable in law equally legitimate.
    The provisions of a statute ought to receive such reasonable construction, if the words and subject matter will admit of it, as that existing rights of the public or of individuals be not infringed. Moore's Lessee v. Vance, 1 Ohio, 12; Allen v. Little, 5 Ohio, 71; Brown v. Farran, 3 Ohio, 140.
    If there had never been a decision in this state, it would be now too late, at the end of the century, to give to this statute a judicial construction, importing into it any meaning which it does not clearly express. But such a course becomes still more obviously inappropriate, when we learn that the popular understanding of the first half century of the statute was confirmed by a reported decision. Craig's Admr. v. Fox, 16 Ohio, 569; Chestnut v. Shane's Lessee, 16 Ohio, 597; Fosdick v. Perrysburg, 14 Ohio St., 472; Dutoit v. Doyle, 16 Ohio St., 400; State v. Hueston, 44 Ohio St., 1; Commissioners v. Commissioners, 4 N. P., 349; 6 Dec., 533.
    Authorities on first clause of statute. As before stated there are three cases which have arisen under our statute and similar statutes, in which the facts were identical with those at bar, and the decisions clearly in our favor, sustaining our position and the views we take of the statute. We refer to Sutphin v. Cox, 1 W. L. M., 346; 2 Dec. Re., 90; Hawbecker v. Hawbeckcr, 43 Md., 516; Carroll v. Carroll, 20 Tex., 731; Scanlon v. Walshe, 31 Atl. Rep., 498; Schouler on Dom. Rel., section 226 (4th ed. ’89).
    And a somewhat similar ease involving facts much more shocking and immoral than any in the case at bar, is that of Brewer v. Blougher, 14 Peters, 178.

      Authorities on second clause of statute. “The issue of parents whose marriage is deemed null in law, shall nevertheless be legitimate.” Sneed v. Ewing, 5 Marshall, 460; Harris v. Harris, 85 Ky., 49; Leonard v. Braswell (Ky. 1896), 36 S. W., 684.
    Although all laws frown upon any violation of the marriap-e relation and seek to discountenance illicit intercourse, nevertheless the penalty for such wrong doing is never visited upon the unoffending children. No matter what punishment may be meted out to the guilty parents, the law looks with tenderness upon the unfortunate issue who are not responsible for their condition and makes them special objects of its favor. Bingham v. Miller, 17 O., 445; Kniffin v. Schaffer, 12 C. C., 753; 4 Circ. Dec., 62; Mathias Estate, 63 Fed., 523; Stones v. Keeling, 5 Call. (Va.), 143; Green v. Green, 126 Mo., 17; 13 A. & E. Ency. 227 and note; McKamie v. Baskerville, 7 S. W., 194 (Tenn.); Monson v. Palmer, 8 Allen, 556; Loring v. Thorndyke, 5 Allen, 257; Miller's Appeal, 52 Pa. St., 113; McGunningle v. McKee, 77 Pa. St., 81; Brewer v. Hamor, 83 Me., 251; Hicks v. Smith, 94 Geo., 809; Williams v. Williams, 11 Lea., 652.
   Burket, J.

While the court finds that Mr. Reasoner and Mrs. Reasoner were married at a certain time, and that she obtained a divorce from him at a certain time thereafter, there is no finding that he obtained a divorce from her ; and as in reviewing a judgment based upon a finding of facts, facts not found are regarded as],[not existing, this record must be construed as showing that Mrs. Reasoner was the wife of Mr. Reasoner at the time her daughter Margaret C. was begotten.

The court finds in effect that the child, Margaret C., is the off-spring of Henry McNicoll, an unmarried man, and Mrs. Reasoner, a married woman. The child is, therefore, what is known as an adulterine bastard, begotten of an adulterous connection between a man and woman who at that time could not make a valid contract of marriage. The legal obstacle to their marriage was afterward removed by divorce obtained by her, and they were shortly thereafter legally married, and the child at once became a member of his family, and was recognized and acknowledged by him as his child up to the time of his death, and was so treated in his last will and testament. The child now claims that she was and is thereby legitimated under our statute, and entitled to one-half of the property devised by Peter McNicoll to Henry McNicoll for the term of his natural life, and at his decease to go to the heirs of his body; while Claribel Ives, the only child of Henry McNicoll begotten in lawful wedlock, claims that an adulterine bastard cannot becomé legitimated under our statute by the subsequent marriage of the parents, and that, therefore Margaret C. McNicoll has no interest in the property, and is not entitled to have partition thereof.

By the civil law, the law of Scotland and the Code Napoleon, an adulterine bastard could not become legitimated by the subsequent legal marriage of the parents. All bastards who were the off-spring of parents who might legally marry at the time of begetting such bastards might become legitimated by the subsequent marriage of the parents followed by an acknowledgment of the child by the father as being his child. Under the common law of England there could be no legitimating of bastards, whether adulterine or otherwise.

This was the state of the law in Europe as to legitimating bastards when our first statute on the subject was passed, February 22, 1805o 3 O. L., 281. Our statute of that date is a transcript of the statute of Virginia on the same subject, passed in 1785, and entitled “An act concerning the course of descents. ” 12 Hennings Statutes at Large, 139. The bill was drafted and reported by a committee of -which Thomas Jefferson was one, after some years of deliberation, and was adopted by the Virginia legislature, omitting the exception of the civil law and the law of Scotland as to adulterine bastards, and disregarding the common law of England which prevented all bastards from being legitimated.

The statute of Virginia did not follow nor adopt any of the European laws as to bastards, but enacted a new statute on the subject to be construed and enforced by reference to the words used in the statute itself, untrammeled by the rules of the civil law. The courts of Virginia, both before and after the adoption of our statute, construed the statute of that state as having abrogated the exception of the civil law as to adulterine bastards. Stones v. Keeling, 5 Call, 143; Browne v. Turberville, 2 Call, 390; Templeman v. Steptoe, 1 Munf., 339; Davis v. Rowe, 6 Rand., 355; Garland v. Harrison, 8 Leigh, 368. When we adopted in this stale the Virginia statute as to bastards, we adopted with the statute the construction placed upon it by the courts of Virginia, and at each re-enactment of the statute we acquiesced in the constructions up to that time placed upon the statute by the courts of Virginia, no construction having in the meantime been placed upon the statute by our own courts, Favorite v. Booher's Admr., 17 Ohio St., 548.

As the exception as to adulterine bastards existed in the civil law and in the law of Scotland and was omitted from the Virginia statute, it must be presumed and held that such omission was intended, and that it was the purpose of the Virginia legislature to wipe out the exception as to adulterine bastards and to permit them to be legitimated the same as other bastards. When the legislature of this state adopted the Virginia statute in 1805 it was familiar not only with the Virginia statute, but also with the civil law, the law of Scotland, the common law of England and the Code Napoleon, and the omission of the exception as to adulterine bastards was not in ignorance of those laws, but was with the purpose of wiping out the exception, and doing justice to the innocent off-spring.

It is urged by counsel for plaintiff in error that while the words of our statute are broad enough to include adulterine bastards, the general assembly could not have intended to include them, because to do so would be against public policy, would disturb the general law protecting- the marriage relation, and lead to absurd consequences, and that married people should not be encouraged to forsake their marriage vows and cohabit with others in anticipation of a future marriage with a view of making their off-spring legitimate. And these considerations induced the decision .in the case of Sams v. Sams, 85 Ky., 396.

There can be no public policy in this state in conflict with a valid statute of the state. Public policy must always yield to a valid statute. The general assembly has the power to enact a law legitimating adulterine bastards, and there would be no absurdity in so doing. Neither would such a statute disturb the general Jaw protecting the marriage relation nor the law of crimes and misdemeanors, nor the law as to public morals. The subject of marriage and divorce, and the subject of adultery and fornication, and the subject of public morals are all carefully provided for and protected by separate chapters and sections of our statutes, and if the general assembly desired to prevent adulterine bastards from becoming legitimated, some provision to that effect would be found in some of the statutes. No such provision is found, but on the contrary, section 4175, Revised Statutes, has been enacted as follows:

“When a man has by a woman one or more children, and afterward intermarries with her, such issue, if acknowledged by him as his child or children, shall be deemed legitimate; and the issue of parents whose marriage is deemed null in law, shall nevertheless be legitimate.”

The force and effect of this section begin after the sections as to marriage, divorce, adultery, fornication and public morals have expended their force. After marriage and divorce, and after prosecutions for adultery and fornication, and to protect public morals, there are often adulterine bastards existing whose parents have thereafter become legally married, and have recognized and acknowledged them as their children, and the purpose of our statute is to legitimate such children, and to permit them to inherit from the father as well as the mother. Thereby justice is done to the innocent off-spring without in any manner impinging upon the laws as to the marriage relation or as to public morals. Those laws are allowed to have their full force and effect, and this statute as to bastards provides for a state of things e’xisting after the other statutes have been fully executed.,

Neither would such a statute encourage married persons to forsake their marriage vows and cohabit with others in anticipation of a future marriage with a view of thereby making their off-spring legitimate. The adulterous connection is not had with a view to subsequent marriage and legitimating children, but with a view to present pleasure; and the ardent hope and desire usually exists that no off-spring should result therefrom; and this section was enacted to enable parents when all impediments to a legal marriage should be removed, to intermarry and recognize and acknowledge their off-spring, and thereby in a measure atone for the sins of the past, and do justice to their innocent and unfortunate children. Viewed' in this light the statute is a righteous enactment. While to visit the sins of the parents upon the innocent and helpless off-spring would shock every sense of right and justice.

Again it is clear that after the birth of an adulterine bastard, all obstacles being removed, parents may legally marry and enjoy all the rights and privileges of marriage. They may inherit from each other under our statute, and to allow them to marry and enjoy all the fruits thereof and deprive their off-spring from inheriting from them would seem rank injustice; and it cannot be presumed, without clear words to that effect, that the legislature intended such an unjust result/ To so hold would be to reward the guilty parents, and punish the innocent off-springy

That our statute was intended for the benefit and protection of the innocent off-spring, and not for their punishment on account of sins committed by their parents, is shown by the eases of Wright v. Lore, 12 Ohio St., 619; Morris v. Williams, 39 Ohio St., 554.

If the purpose of our law is to punish the bastard children for the errors of the parents, to be consistent, the children should be prevented from in. heriting from the mother as well as the father after the marriage of the parents. It is said that the mother is always known, but the father is not. But when the father marries the mother and recognizes and acknowledges the children as his own, he thereby makes himself known, and thereafter there is no more reason for denying inheritance to them from him than from the mother.

Again the weight of authority in this country is in favor of the defendant in error. Carroll v. Carroll, 20 Texas, 731; Hawbecker v. Hawbecker, 43 Md., 516; Blythe v. Ayres, 96 Cala., 532; Schouler on Domestic Relations, 226; Sutphin v. Cox, 1 Western Law Monthly, 346; 2 Dec. Re., 90.

Opposed to these authorities is the case of Sams v. Sams, 85 Ky., 396. That case is cited by Pingrey on the Law of Real Property, section 1113; by Ballard on the Law of Real Property, section 344; Cope v. Cope, 137 U. S., 682-685; Latin Maxims and Phrases, by John Trainer, 450; Rapalje & Lawrence’s Law Dictionary, 118, the Law of Persons and Property by Dwight, 257. The only adjudged case is Sams v. Sams, supra, and all the citations and references are to that case, and most of them refer to the case in language indicating a doubt as to its soundness.

Again the language of the statute is too clear to require construction: ‘ ‘When a man has by a woman one or more children, and afterwards intermarries with her,” etc. A “man” means any man, anda “woman” means any woman. There are no exceptions. If he is a man and she is a woman, no matter what their previous lives may have been they come within the language of the statute, and when legally married and the former issue acknowledged by him as his child, such issue becomes thereby legitimated, even though it is an adulterine bastard. Take the case at bar. Mr. McNicoll was a man, Mrs. Reasoner was a woman. He had a child by her and afterwards intermarried with her and acknowledged the child as his child. The statute says that in such case the child shall be deemed legitimate. Nothing is said in the statute as to whether the parents could or could not legally marry at the time the child was begotten. The general assembly having attached no such condition, the courts can attach none, and to do so would be judicial legislation.

Judgment affirmed.