author: Davis, J.

text:
    McAdams v. McAdams, Sr.

      Action for reformation of deed — Brought by grantor — On ground of fraud — Grantee the son of grantor, etc. — Presumption of trust — Burden on grantee to show no undue advantage — Presumption is rebutted by evidence that grantor could read, etc.— Declarations of grantor — Incompetent to prove fraud, when— Admissible to rebut claim of fraud.

    1. In an action by the grantor in a deed, to reform the instrument upon the ground that the grantee fraudulently concealed and misstated the contents of the deed to the grantor, when it appears that the grantee is a son of the grantor and an attorney at law, and that such grantee was entrusted with the drafting of the instrument upon his own suggestion, such facts raise a presumption of the existence of relations of trust and confidence between the parties and put upon the grantee the burden of showing that no undue advantage was taken of the grantor in the execution of the deed.
    2. But when it also clearly appears in such case that such deed is in apparent accord with previous declarations of the grantor as to his intentions and his subsequent declarations as to what he had done, and that he could read and had ample opportunity before, at, and after, signing the deed to read the same, the presumption of undue advantage by reason of confidential relations is rebutted, and the burden rests upon the grantor to show by clear and convincing proof that the deed is fraudulent.
    3. In such case declarations of the grantor, made in the absence of the grantee, are not competent evidence to 'prove the alleged fraud; hut statements of the grantor which tend to rebut the claim of fraud, whether made before or after the signing of the deed, are admissible.
    (No. 10873
    Decided April 27, 1909.)
    Error to the Circuit Court of Logan county.
    The plaintiff below, Wilson McAdams, Sr., commenced this action on the 22d day of July, 1904, seeking' the reformation of a deed made and delivered by him to his son, James McAdams, defend ant below, plaintiff in error here, on the 29th day of August, 1899, which deed was upon the consideration of one dollar and natural love and affection. The grantor in said deed alleged that the grantee, James McAdams, was his son, and was the attorney and confidential adviser of the grantor in making the said deed; that the grantor intended to convey the lands described in said deed, reserving to himself a life estate in the same together with the right to enter upon said land and remove marl and clay therefrom, to sell and manufacture the same, “to him and his heirs forever,” and that he so instructed the grantee when he entrusted him with the duty of preparing said deed; and he alleged that the defendant did prepare the deed for him to sign and informed the grantor that it contained the conditions, reservations and exceptions aforesaid and that he read the said deed to the grantor as if the said exceptions, conditions and reservations were duly incorporated therein, whereas the deed was so drawn as to reserve to the grantor the'right to remove marl and clay during his life and did not reserve such right “to his heirs and assigns forever.” The grantor further alleged that he did not read the deed and never had the deed in his possession, and that believing and relying upon the statement made by the defendant he signed and acknowledged the deed. The defendant denied in his answer all allegations of fraud contained in the petition. After the commencement of the action, Wilson McAdams, Sr., died, and the action was revived in the name of his executors. The cause was tried in the court of common pleas, where the finding and judgment was in favor of the plaintiffs, and upon appeal and hearing in the circuit court the same finding and judgment resulted.

      Mr. James Kernan and Mr. John A. Price, for plaintiff in error.
    We contend that the declarations of Wilson McAdams, whether oral or written, and whether made before or after the execution of the deed, if made in the absence of the grantee, the defendant below, are incompetent. Bartlet v. Delprat et al., 4 Mass., 702; Webb's Admr. v. Roff et al., 9 Ohio St., 432; Coal Co„ v. Davenport, 37 Ohio St., 194; Voss et al. v. Murray et al., 50 Ohio St., 19; English v. Arnold, 35 W. L. B., 315.
    The plaintiff will not be entitled to a decree upon a mere preponderance of testimony. ITe must have something more than a mere preponderance. It must amount to what is called clear and convincing testimony. Davenport v. Sovil, 6 Ohio St., 459; Clayton v. Freet, 10 Ohio St, 545; Potter v. Potter, 27 Ohio St., 84; Neininger v. State, 50 Ohio St., 403; Stewart v. Gordon et al., 60 Ohio St., 170; Snyder v. Bank, 22 C. C., 624, 60 Ohio St., 605; Rothschild v. Bell, 19 W. L. B., 137; Ford v. Osborne, 45 Ohio St., 1; Willis v. Baker, 75 Ohio St, 291.

      Mr. A. B. Johnson; Mr. Dow Aiken; Mr. John P. Bower and Messrs. Ross & Kinder, for defendant in error.
    We claim, first, that in case of fraud, a preponderance of the evidence is sufficient to support a decree. Jones, Stranahan & Co. v. Greaves, 26 Ohio St., 2; Strader v. Mullane, 17 Ohio St.. 625; Landis v. Kelly, 27 Ohio St., 567.
    And, second, when a party,' complaining of a particular transaction, such as a gift, has shown to the court, the existence of a fiduciary or a confidential relation between himself and the defendant, and that the defendant occupied a position of trust, or confidence therein, the law raises a presumption of fraud, arising as a matter of law that the transaction brought to the notice of the court was effected through fraud, and the law looking to the frailty of human nature, requires the party in the superior situation to show that his action' has been honest and honorable. The confidential relation being shown, the burden of proof shifts. Bigelow on Fraud, pages 261, 269; Pomeroy’s Equity, Section 960; 14 Am. & Eng. Ency. Law (2 ed.), 1011; Thornton on Gifts and Advancements, Sections 448, 455, 457; Smith on Frauds, Sections 78, 103, 190; Jones Law of Evidence, Section 188; 3 Am. & Eng. Ency. Law (2 ed.), 337, 340; Merryman v. Euler, 43 Am. Rep., 564; Nesbit v. Lockman, 34 N. Y., 167; Woodbury v. Woodbury, 141 Mass., 329; Miskey’s Appeal, 107 Pa. St., 611; Duncombe v. Richards, 46 Mich., 166; Boyd v. Boyd, 66 Pa. St., 283; Long v. Mulford, 17 Ohio St., 485; Burkmeyer v. Kellerman, 32 Ohio St., 239; Smith v. Patterson, 33 Ohio St., 70; St. Leger’s Appeal, 34 Conn., 434; Sweet v. Bean, 67 Barb., 91; Barnard v. Gants, 140 N. Y., 249.
    It is urged that the circuit court erred in admitting a certain class of testimony, which in the plaintiff’s brief are called “self-serving declarations.” These declarations of defendant covered a period of several years, and, as we claim, were admissible for the purpose of showing the fixed policy of the grantor, Wilson McAdams, Sr., touching the division of the property among his children, and the state of his mind, his purpose, plan and design.

      The leading case presented by the brief for the plaintiff in error, Gay v. Gay, 26 Ohio St., 402, we think, sustains this proposition. In this connection, we call the attention of the court also to Breck v. The State, 4 C. C:, 170; Shailer v. Bumstead, 99 Mass., 112; 1 Wigmore on Evidence, Section 112; 1 Greenleaf on Evidence (16 ed.), Sections 287, 385k, 162c; Kyle v. Craig, 125 Cal., 107; Riggs v. Powell,. 142 111., 453; Fellows v. Fellows, 69 N. H., 339; Thornton on Gifts, Sections 583, 591.
   Davis, J.

The declarations of the grantor, made in the absence of the grantee, were not competent evidence to prove the alleged fraud. Gay v. Gay, 26 Ohio St., 402. Not so however the statements of the grantor, whether made before or after the signing of the deed, which tend to rebut the claim of fraud, such statements being admissions or declarations against interest.

It appears that the grantee in this case is a son of the grantor, that he is an attorney at law, that in some instances he had acted as his father’s attorney and adviser, and that in the matter of drafting this deed he was entrusted with that duty by his father and upon his own suggestion. These facts raise a presumption that relations of trust and confidence existed between these parties. But we think that there appears in the record convincing proof of certain facts and circumstances which show that, when he executed this deed the grantor did not rely upon, nor was misled by, any confidential relations; and which rebut the presumption of undue advantage by the grantee and leave upon the plaintiffs the burden of showing by clear and convincing evidence that, by reason of fraud by the grantee, the deed does not express the grantor’s intention at the time he executed and delivered it.

The grantor’s only claim of fraud is, that he instructed the grantee to reserve to him a life estate in the real estate conveyed and also to reserve “to him and his heirs forever” the right to enter upon the real estate to remove clay and marl, to sell and manufacture the same, and that the grantee deceived him by reading the deed as if this reservation were in it. All this the grantee specifically denies and the proof of it rests entirely on the grantor’s deposition, taken five years after the signing of the deed, when the grantor was eighty-nine years of age. He says that the only time the grantee read to him the reservations in the deed was in the grantee’s office on the day the deed was acknowledged. He also says: “He had the deed. I never had the deed that I recollect. I trusted him to make the deed that I wanted him to have; and I acknowledged it and at the time he read it to me. I didn’t read it at all.” He does not claim that he could not read. The defendant’s statement is that the deed was written out, except the date of signing and date of acknowledgment, and left with the grantor about six weeks before the signing and acknowledgment; that he read- the deed to his father exactly as it now appears, put it in a “jacket” or envelope such as are used in the court files and gave it to his father who put it in the inside pocket of his vest; that he did not see the deed again until the day it was acknowledged, but saw the envelope in his father’s pocket at times when he would be around the farm; that on the day when the deed was signed and acknowledged the grantor came to his office and said, “If I am ever going to sign this deed, I expect I better do it to-day” and asked, “Where shall we go to get this acknowledged?”; that grantee told the grantor that he did not have to go any place, that he would hunt up somebody to take the acknowledgment, which he did do; and that he, the grantee, does not think that he read the deed to his father on the day it was acknowledged. This is an explicit and circumstantial contradiction of the grantor’s testimony; and it is strongly corroborated.

The deed is attached to the bill of exceptions and it is so soiled, stained and worn in the folds as to present ocular proof that it may have been carried in an inside pocket during the hot days of the summer. The defendant says that this was its appearance when his father brought it to the defendant’s office on the day it was signed and acknowledged. He says it was “so much so that I spoke to him about writing another deed that that was pretty well worn out” and that his father’s reply was, “That’s the way I want it; go' ahead and fix that one up; that’s all right.”

The acknowledgment was taken by the mayor of the city, who also is one of the witnesses to the execution of the deed. When he responded to the call of the defendant, he found the grantor alone in the office, lying unon a lounge and the deed lying upon the table. He got up, came forward and sat down at the table and signed the deed. The mayor asked him if he understood what he was signing. He replied in the affirmative. The deed was not read at that time. This witness also testifies that when it was signed and acknowledged the. deed was soiled and worn, and that it had the appearance of having been carried in the pocket.

The other witness did not know the grantor and did not remember what occurred or what was said, except that the grantor signed the deed and he signed as a witness. The mayor also testifies that while he was signing the acknowledgment the grantor cautioned him not to tell anybody about the transaction. The defendant says that when the executed deed was delivered to him his father said to him, “You take this deed and do- what I told you to do with it;” and that in accordance therewith he did not have it recorded but left it in the custody of the People’s Bank, with Robert Lamb the president of the bank.

Some time after this, the defendant claims that for reasons not necessary to detail here, he went with his father to the bank; that he left his father there and was gone about twenty minutes and when he returned his. father and Mr. Lamb had the deed out and open; and that his father said to him, “We read the deed and Mr. Lamb will accommodate you.” This is corroborated by the testimony of a reputable attorney, who was intimate with Mr. Lamb; now deceased and who on one occasion, the precise date of which is not fixed, except that it was before May 7, 1902, went to the door of the directors’ room and saw Mr. Lamb and the grantor sitting together there with a paper like a deed open before them. He paused at the door of the room, did not go in and did not see what was on the paper. He knew that Mr. Lamb had tried to negotiate a purchase for some of these marl lands, but would not have remembered about the paper if he had not been consulted in regard to it a short time after-wards.

If there is any reliance to be placed on human testimony, the evidence to which we have adverted makes it reasonably certain that the grantor was mistaken when he testified that he had never had possession of the deed, or opportunity to read it, and that he had never heard it read but once and that on the day of executing it. He does not himself claim that he even took the trouble to look at it when he indisputably had it in his power to look at it, just before and at the time of -signing. He certainly had a strong motive for proceeding carefully. He was dividing his estate of fourteen hundred acres among his children and was reserving, as he admits, a- valuable interest in this his home farm.

The law applicable to such a' condition of facts should be perfectly clear. Whatever presumption of fraud arising out of confidential relations may be raised, it necessarily is rebutted when it is shown that the instrument is in exact accord with the grantor’s declarations, made both before and after its execution; and that, the only charge of fraud being that it was misread to him, he had it in his possession a considerable time before signing and at other times had ample opportunity to ascertain the truth before the signing, on the day of- signing and delivery, and subsequently.

It is conceded on all sides that he was intending to make some sort of a reservation in the deed as to the marl, either for life or absolutely; and it would be impossible, because unnatural, to suppose that with the deed in his pocket for six weeks he would never look at it to learn whether it contained the reservation which he desired, or that, when questions as to the defendant’s title arose and he resorted to the deed when it was in custody of the bank, he did not then ascertain just what were its provisions. A person of ordinary-mind cannot be heard to say that he was misled into signing a paper which was different from what he intended, when he could have known the truth by merely looking when he signed.

We quote from the language of Mr. Justice Hunt in Upton, Assignee, v. Tribilcock, 91 U. S., 45, 50: “It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If. this were permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and, if he will not read what he signs, he alone is responsible for his omission. Jackson v. Croy, 12 Johns., 427; Lies v. Stub, 6 Watts, 48; Farley v. Bryant, 32 Me., 474; Coffing v. Taylor, 16 Ill., 457; Stapylton v. Scott, 13 Ves., 427; Alvanley v. Kinnaird, 2 Mac. & G., 7; Burgess v. Richardson, 29 Beav., 490.”

Probably the most serious circumstance brought out against the defendant is the admitted fact that when the grantor repeatedly asked to see the deed the defendant put him off with showing him and reading to him an alleged copy and never did show him the deed itself; yet even this is not satisfactory evidence of consciousness of guilt accompanied • by fear of discovery, for another motive may have controlled in this case. It is fairly well established that this conveyance was to be kept secret by desire of the grantor and by agreement of the parties kept-off the public records — possibly because other members of the family might be dissatisfied— and therefore the only evidence of the defendant’s title was his possession of the deed itself. It crops out here and there that after the grantor went to live with one of his sons bickerings about the deed became rife, and, as defendant testifies, the grantor said: “They keep deviling me about my property all the time and half the time I don’t know what I do want;” and therefore the grantee, when asked why he made a copy and took it to his father when he also had the deed with him, answered, “Simply because I didn’t propose to let anybody but my father see that deed or have hold of it — nobody with the exception of my father to see that deed.” He seems to have been seized with an apprehension, either well or ill founded, that the deed might be mutilated or sequestered. Hence he says when the conversation with his father was interrupted by the entrance of his brother, he put the copy in his pocket with the deed and they both “shut up like a clam.” Under all the circumstances his conduct does not seem to be very satisfactory proof of fraud.

“The rule of equity which prohibits a man, who fills a position of a fiduciary character, from taking a benefit from the person towards whom he stands in such a relation, stands upon a motive of general policy irrespective of the particular circumstances of the case. * * * The rule does not, however, go to the length of avoiding all transactions between the parties standing in a fiduciary relation, and those toward whom they stand in such relation. All that a court of equity requires is, that the confidence which has been reposed be not betrayed. A transaction between them will be supported, if it can be shown to the satisfaction of the court that the parties were, nowithstanding the relation, substantially at arm’s length and on an equal footing, and that nothing has happened which might not have happened, had no such relation existed. The burden of proof lies, in 'all cases, upon the party who fills the position of active confidence, to show that the transaction has been fair. If it can be shown to the satisfaction of the court that the other party had competent and disinterested or independent advice, or that he performed the act or entered into the transaction voluntarily, deliberately and advisedly, knowing its nature and effect, and that his consent was not obtained by reason of the power of influence to which the relation gave rise, the transaction will be supported.” Kerr on Fraud, 151.

From the considerations which we have mentioned and from the further fact that the provisions of the deed tally exactly with the uncontradicted declarations of the grantor before and after its execution, for example, to Bartholomew in 1887, to Shawver in the presence of the grantee in January, 1900, and to Dunston in 1903, we are constrained to the view that the courts below applied too rigidly the rule as to confidential relations, and perhaps even allowed the presumption as to confidential relations to be not only a controlling factor, but the one decisive feature of the case.

The presumption which arises from the existence of relations of trust and confidence having been rebutted, fraud may not be presumed. It must be established by clear and convincing evidence before the instrument will be reformed on that ground.

When the specific charge of fraud or deceit by means of confidential relations has been fairly met, it should not be required to answer every possible hypothesis of guilt which could be suggested; for it must be remembered that the presumption imposes upon the grantee in such cases the difficult task of proving a negative. The relation of parent and son, even if the latter should occupy the relation of attorney also, will not raise a presumption of undue influence. Crothers v. Crothers, 149 Pa. St., 201; Clark v. Clark, 174 Pa. St., 309, 337; Carney v. Carney, 196 Pa. St., 34, 39; Haynes v. Harriman, 117 Wis., 132, 139-141. It is said in Bigelow on Fraud, 368: “In the case of a gift from a child to a parent undue influence may be inferred from the relation of the parties, but never where the gift is from the parent h> the child.” The additional circumstance of the son acting as the scrivener may raise a presumption, as we have said; but good faith in this relation having been shown, the case stands as any other case between strangers.

The judgment of the circuit court is reversed and the petition of the plaintiff is dismissed.

Reversed.

Crew, C. J., Summers and Spear, JJ., concur. Price, J., did not sit in the case. Shaucic, J., concurs in the first proposition of the syllabus and. dissents from the judgment.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    The State, ex rel. Hoyt, v. Metcalfe.

      Article XVII does not repeal section 13, article IV, constitution— Provision for appointment of judge by governor — In force— Death of person elected before he qualifies — No vacancy in office — Extension of term by Article XVII — Considered part of incumbent’s term — Circuit judge appointed to fill vacancy — May hold over — No vacancy occurs upon expiration of term, when— Appointment made by governor to take effect then, confers no authority.

    1. Article XVII of the constitution, adopted November 7, 1905, does not expressly repeal or abrogate section 13 of article IV of the constitution, nor is it in conflict therewith; and, applying to the construction of the former section the established rule that repeals by implication are not favored, it follows that the clause of section 13 which provides that where “the office of any judge becomes vacant before the expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the governor until a successor is elected and qualified,” remains in force.
    2. The death of a person elected to an office before he qualifies does not create a vacancy where the constitution provides that an incumbent in an office shall hold for his term and until the election and qualification of a successor.
    3. Where, by the provisions of article XVII of the constitution, the term of an officer in office at the adoption of said article is extended until a successor is elected and qualified, the period between the expiration of his original term and the election and qualification of his successor is as much a part of the incumbent’s term of office as the fixed statutory period.
    4. The capacity conferred upon an elective officer by said article to serve until a successor is elected and qualified attaches to and may be enjoyed by one appointed to succeed where the elected officer has resigned. And where, after the election of a judge of the circuit court the person so elected, prior to the time when the term is to commence, and without qualifying as judge, dies, and the judge then holding the office resigns before the expiration of his original term and another is appointed, the appointee succeeds to the entire term including the capacitjr to hold over enjoyed by his predecessor, and is, by force of the constitution, clothed with the power to hold the office until a successor is elected and qualified.
    5. If after such appointment the appointee qualifies and enters upon the duties of the office, such appointee succeeds to the entire term and capacity to hold over enjoyed by his predecessor, and no vacancy occurs at the expiration of the original term for which the resigning judge was elected. Hence an appointment made by the governor to take effect at the expiration of the six years term of the resigning judge confers no authority on the appointee to take or enjoy the office.
    (No. 11751
    Decided April 27, 1909.)
    Quo Warranto.
    Facts are stated in the opinion.

      Messrs. Wilson & West, and Messrs. Booth, Keating, Peters & Pomerene, for relator.
    Our contention is that the power to appoint, at the time the appointment was made, was limited to filling the vacancy caused by the resignation of Judge Burrows for the remainder of his regular term. The governor (Harris) then in office was without authority to fill a vacancy in the succeeding term, to begin on the ninth of February, 1909, after the governor’s term had expired. State, ex rel., v. McCollister, 11 Ohio, 46; State, ex rel., v. Choate, 11 Ohio, 511; Stale, ex rel., v. Thompson, 9 C. C., 161; State, ex rel., v. Ermston, 14 C. C., 614; Mechem on Public Offices and Officers, Section 133; 23 Am. & Eng. Ency. Law (2 ed.), 347; People, ex rel., v. Ward, 107 Cal., 242; Ivy v. Lusk, 11 La. An., 486; State, ex rel., v. Meehan, 45 N. J. L., 189; State, ex rel., v. O’Leary, 64 Minn., 207; Whitney v. Van Buskirk, 40 N. J. L , 463; State, ex rel., v. Catlin, 84 Tex., 48.
    The authority for and the manner of filling a vacancy in the office of judge is now found in section 2, article XVII, constitution. This article of the constitution is a sweeping provision affecting all previous constitutional provisions and all legislation on the subject of filling vacancies in elective offices, and, in so far as state officers are concerned, it is sweeping in its terms. Prior to its adoption, the constitutional provisions made for filling vacancies in state offices, other than a member of the general assembly or governor, were section 18, article TII, and section 13, article IV.
    It will be observed that the amendment affects section 18, article TII, in that it provides that the successors of the officers therein enumerated shall be elected for the unexpired term, instead of for a full term, thus bringing these state officers into a class with judges in that respect.
    It also changes section 13, article IV, by providing that the election to fill every such vacancy shall be “at the first general election for the office which is vacant that occurs more than thirty days after the vacancy shall have happened,” instead of “at the first annual election that occurs more than thirty days after the vacancy happens.”
    Under the provisions of section 2, article XVII, a judge appointed or elected to fill a vacancy can have no tenure beyond the end of the regular term in which the vacancy occurs. The language of the section is, not that such appointee shall hold over, but that “the vacancy shall be filled by appointment by the governor until the disability is removed or a successor elected and qualified;” and “the person elected shall fill the office for the unexpired term.”
    In every instance in the constitution, or statutes, wherein it is provided that an officer shall hold over his term, the provision is made in express terms of unmistakable import. Section 2, article III; section 16, article IV; section 4, article X, constitution; sections 8 and 11, Revised Statutes.
    All other provisions, in that behalf, are equally explicit in their terms. If it was the intention that an appointee to the office of judge should, under the language of section 2, article XVII, hold over beyond the term in which the vacancy occurs, the obscurity of this provision ■ would need to be explained. On the other hand, if such is not the intention, the language is easily reconcilable with the subsequent provision, that the elected successor can serve only for the unexpired term.

      To hold that the appointee to the same vacancy-can hold over beyond the term would lead to absurd consequences. It would be to give him a tenure in the succeeding term which his elected, successor, to whom he must at all times yield, could not have. There can be no elected successor of an appointee to the office of judge unless that successor can be elected in the term in which the vacancy occurs. No such successor can be elected in the. succeeding term unless there be a vacancy in that term. If there was a vacancy in the term beginning on the ninth day of February, 1909, it must have been caused by the death of Judge Roberts, and for the reason that, under the law, the defendant is. not entitled to hold over. All of the Ohio cases in which it has been held that the incumbent should hold over are cases in which the law makes express- provision to that effect. State, ex rel., v. Howe, 25 Ohio St., 588; State, ex rel., v. Bryson, 44 Ohio St., 457; State, ex rel., v. McCracken, 51 Ohio St., 123; State, ex rel., v. Wright, 56 Ohio St., 540; State, ex rel., v. Speidel, 62 Ohio St., 156.
    By these authorities three propositions which are pertinent here are established:
    1. When an incumbent in the office is entitled, under the law and the constitution, to hold over beyond the regular term to which he has been elected or appointed, there is no vacancy in the office at the end of the term.
    2. The time during which such an incumbent holds over attaches to and becomes a part of the regular term and is no part of the succeeding term.
    3. The successor, elected to succeed an incumbent who holds over, is elected for a full term.
    We cannot have an unexpired term without a vacancy in the term of which it is a part. It follows, therefore, that in order to have an elected successor for an unexpired term there must be a vacancy in the term to which Judge Roberts was elected. And that is not the vacancy caused by the resignation of Judge Burrows in' his term, to fill which Judge Metcalfe was appointed. That vacancy can not extend over into the succeeding term, because, if it did so, it would become a part of Judge Burrows’ term, not a part of the new term, and would leave no unexpired term. By these authorities we are driven to the conclusion that the death of Judge Roberts, after he was elected and before he qualified, created a vacancy beginning with the term to which he was elected, and to fill that vacancy the relator was lawfully appointed. For this contention we have direct authority: State, ex rel., v. Hopkins, 10 Ohio St., 509; State, ex rel., v. Taylor, 15 Ohio St., 137; State, ex rel., v. Bretvster, 44 Ohio St., 589; State, ex rel., v. Dahl, 55 Ohio St., 195.

      Mr. Geo. W. Alvord; Mr. Homer Harper; Mr. H. E. Hammar, and Mr. H. E. Starkey, for respondent.
    If it is claimed that Governor Harris could appoint only for the unexpired term of Judge Burrows and at that time a vacancy occurred which Governor Harmon alone could fill, then we submit the following for the consideration of this court. The joint resolution under which the appointments were made is found in 97 Ohio Laws, 640, 641, and known as “article XVII.” It was voted upon and adopted on the first Tuesday after the first Monday in November, 1905. It provides for vacancies, by appointment of the governor until the disability is removed or a successor elected and qualified. Vacancy must be filled at the first general election for the office which is vacant that occurs more than thirty days after the vacancy has occurred.
    Section 11, Revised Statutes, provides that when an elective office becomes vacant, and is filled by appointment, such appointee shall hold the office till his successor is elected and qualified, and such successor shall be elected at the first proper election that is held more than thirty days' after' the occurrence of the vacancy. “Proper election” is the first election occurring appropriate to that particular office, under the law regulating elections to that office. State v. Barbee, 45 Ohio St., 347; State, ex rel., v. Dahl, 55 Ohio- St., 195; State, ex rel., v. Ermston, 14 C. C, 614; State, ex rel., v. Slough, 12 C. C., 105; State, ex rel., v. Darby, 12 C. C, 235, 52 Ohio St., 617. Section 11, Revised Statutes, was construed in State, ex rel., v. Nash, Governor, 66 Ohio St., 620.
    Judge Roberts died — the vacancy occurred in the elective office by the resignation of Judge Burrows; the governor was then bound to appoint— his appointee shall hold the office until his successor is elected and qualified, at the next ensuing proper election for that purpose. By refusal or neglect to qualify the office became vacant. Mechem on Public Offices and Officers, sections 253, 397, 401, 433, 434; State, ex rel., v. Hopkins, 10 Ohio St., 509. .Here Judge Roberts did not qualify after his election, and hence the following is the rule: Where, however, the successor dies before he has fully qualified, the prior incumbent holds over. Commonwealth v. Hanley, 9 Pa. St., 517;
      People, ex rel., v. Lord, 9 Mich., 227; Mechem on Public Offices and Officers, section 125.
    1. There was no vacancy upon the death of Judge Roberts.
    2. Judge Burrows was the incumbent not only for the balance of his term to February 9, 1909, but also as successor by operation of law until the' next election. He was the judge until 1911. Therefore the vacancy occurred when Judge Burrows resigned.
    3. The vacancy was for the full period of time during which he was clothed with right and authority to hold the office, to-wit; for his own unexpired term, and for that period of time which the constitution as amended awarded to him.
    This vacancy it devolved on Governor Plarris to fill. Pie did it and his appointment was good for the whole period that Judge Burrows could have held had [xe not resigned. Judge Roberts never had a term to expire. There was no vacancy when Governor TTarmon undertook to appoint a judge — February 9, 1909. Judge Metcalfe was then the incumbent judge, and he holds until 1911, February 9th. State, ex rel., v. McCracken, 51 Ohio St., 123; State, ex rel., v. Plozve, 25 Ohio St., 588; State, ex rel., v. Bryson, 44 Ohio St., 457; State, ex rel., v. Wright, 56 Ohio St., 540; People v. Tilton, 37 Cal., 614.
    The case of State, ex rel., v. Speidel, 62 Ohio St., 156, is of much weight in support of the contention of the respondent in this proceeding.
    This office was elective — it was made vacant by Judge Burrow’s resignation — it was filled by appointment — Judge Metcalfe was the appointee. He therefore holds until his successor is elected and qualified at the proper election for that purpose. His term is not defeated by another appointee. This is the method prescribed by law as stated at the end of section 2, article XVII, constitution. A case quite similar to' this and one much relied upon by the supreme court and. cited and quoted at length in State, ex rel., v. Howe, 25 Ohio St., 588, is found in Commonwealth v. Hanley, 9 Pa. St., 513.
    The adjudicated cases seem to be harmonious in holding that where one is lawfully in the possession of an office under a constitutional or statutory provision to the .effect that he shall hold until his successor is elected and qualified, his right to hold over continues until a qualified successor has been elected. Kimberlain v. State, ex rel., 14 L. R. A., 859, and the cases cited which amply support this statement of the law. Gosman v. State, ex rel., 106 Ind., 203; State, ex rel., v. Lusk, 18 Mo., 333; People, ex rel„, v. Tilton, 37 Cal., 614; Johnson v. Mann, 77 Va., 265; State, ex rel.', v. Jenkins, 43 Mo., 261; State, ex rel., v. Harrison, 113 Ind., 434.
    The rule is that where a person is in possession of an office under a constitutional or statutory provision like that found in ours, and a successor is duly elected, but dies before he qualifies, no vacancy occurs, since one of the contingencies upon which the incumbent’s term of office is to expire has not taken place, namely the -qualification of a successor. Kimberlain v. State, ex rel., 14 L. R. A., 859; McCrary on Elections, section 349; Commonzvealth v. Hanley, 9 Pa. St., 513.
    The weight of authority ■ is that where there exists a constitutional provision such as we are now considering, that a term of office fixed by statute runs not only for the period fixed, but for an additional period between the date fixed for its termination and the date at which a successor shall be qualified to take the office, the period between the expiration of the term fixed by statute and the time at which a successor shall be qualified to take the office is as much a part of the incumbent’s term as the fixed statutory 'period. 'Kimberlain v. State, ex rel., 14 L. R. A., 860; Ttiley v. State, ex rel., 1 Ind., 500; Miller v. Burger, 2 Ind., 337; Baker v. Kirk, 33 Ind., 517; State, ex rel., v. Berg, 50 Ind., 496; Elam v. State, ex rel., 75 Ind., 518; People v. Whitman, 10 Cal., 38.
   Spear, J.

This, is an action in quo warranto wherein the relator, Thaddeus .E. Hoyt, claims to be one of the judges of the circuit court of the seventh circuit, and that the defendant, Willis S. Metcalfe, wrongfully keeps him out of possession of the office.

Relator’s right to the relief asked depends upon his title to the place sought.

The case was heard on a demurrer to the petition.

The material" facts as stated by the petition are that at the general election on the first Tuesday after the first Monday in November, 1902, Hon? Jerome B. Burrows was elected judge of the circuit court of the seventh circuit of the state for the full term of six years, the term to commence on the ninth day of February, 19031 He duly qualified and served until he resigned December 31, 1908, to take effect on the eighth day of January, 1909.

At the general election in November, 1908, Hon. Elias E. Roberts was elected to succeed Jerome B. Burrows for the term of six years to commence on the ninth day of February, 1909. On the twenty-second day of November, 1908, before he had received a commission or qualified, said Roberts died.

On the fourth day of January, 1909, the resignation of Judge Burrows was accepted by the then governor of Ohio, Andrew L. Harris, and on the fifth day of January, 1909, Willis S. Metcalfe, the defendant, was appointed by Governor Flarris, the commission reciting that it was “for the term beginning January 9, 1909, and until his successor is elected and qualified, vice Jerome B. Burrows, resigned.”

The petition further avers that on the ninth day of February, 1909, the then governor of the state, Judson Harmon, appointed and commissioned the relator judge of' the said circuit court to fill the vacancy caused by the death of Judge Roberts; that the relator made demand of the defendant to be admitted to the office and was refused.

It should be added aliunde that the term of Governor Harris expired January 11, 1909, and that he was on that day succeeded by Governor FI armón.

If, upon this statement of facts, -the relator shows a title to the office of circuit judge of the seventh circuit, the demurrer should be overruled and the writ awarded. If he has failed to show such title the demurrer should be sustained and the petition dismissed.

Stated in general terms the relator bases his contention that he is entitled to the office principally upon the. claim that the death of the person elected to succeed Judge Burrows, after his election and before he entered upon the term or qualified, created a vacancy in the office at the commencement of the term to which he had been elected and that consequently the tenure of the defendant, by virtue of his appointment, terminated at the end of Judge Burrows’ six-year term. Concessions at the oral argument have served to somewhat limit the field of necessary inquiry. It was not claimed that the appointment of defendant by Governor Harris was in any way irregular, but was conceded that it was in all respects regular, and therefore justified the acceptance of the office by the appointee, being duly qualified, and his continuance therein to and until the ninth day of February, 1909. It was further conceded that Judge Burrows, had he not resigned, would, under and by virtue of the constitution, (section 3 of article XVII), have held until after the November election of 1910. But it was and is insisted that an appointee commissioned at the time Judge Burrows’ resignation took effect could hold only during the remainder of the six years and that his right to the office did then cease and determine. This because the power to appoint, at the time the appointment was made, was limited to. filling the vacancy caused by the resignation of Judge Burrows for the remainder of his regular term, and the governor then in office was without authority to fill a vacancy in the succeeding term to begin on the ninth, of February, 1909, and after the then governor’s term had expired. The difference between the capacity to hold over of Judge Burrows and that of Judge Metcalfe being, as stated by the learned counsel, due to the provision of the third section of the amendment cited above, which provision anplied to Judge Burrows, but does not apolv to Judge Metcalfe because he was not an elected but an aopointed officer, and that the same capacity did not attach to him by reason of the former provision of the constitution (article IV, section 13), because that provision had been abrogated by the amendment. This last proposition rests apparently upon the further claim that the decease of Judge Roberts, although at the time of its occurrence he had not qualified and the time for the commencement of the term to which he had been elected had not arrived, nevertheless created a vacancy in his term.

The provisions of the constitution which are thus supposed to be in antagonism are section 13 of article IV and article XVII. The first named provides:

“In case the office of any judge shall become vacant before the expiration' of the regular term for which he was elected, the vacancy shall be filled by appointment by the governor, until a successor is elected and qualified; and such successor shall be elected for the unexpired term, at the first annual election that occurs more than thirty days after the vacancy shall have happened.”

Article XVII, as summarized, provides: (a) Elections. — Elections for state and county officers shall be held in the even numbered years. (b) Length of Terms. — The term of office of judge of .the circuit court shall be such even numbered years not less than six as may be prescribed by the general assembly, (c) Extension of terms.— The general assembly may extend existing terms of office so as to effect the purpose expressed above. (d) Holding Over. — Every elective officer holding office when the amendment is adoptéd shall continue to hold such office for the full term and until a successor shall be elected and qualified as provided bv law. (e) Vacancies.— Any vacancy in an elective state office (other than member of the general assembly or governor) shall be filled by appointment by the governor until the disability is removed, or a successor is elected and qualified. The election to be a general election for the office which is vacant occurring more than thirty days after the vacancy occurs and the person elected to fill the office for the unexpired term. Vacancies in other elective offices shall be.filled for the unexpired term in such manner as may be prescribed by law.

By section 18 of article III, vacancies occurring in the office “of state auditor, treasurer, secretary of state or attorney general are to be filled by the governor until the disability is removed, or a successor elected and qualified. The vacancy to be- filled by election at the first general election which occurs more than thirty days thereafter; the person chosen to hold the office for the full term, the auditor for four and the others for two jrears.

Manifestly there is no direct provision of article XVIT abrogating section 13 of article IV. Is any antagonism to be inferred? Surely there is none as to the first provision of article XVII, for that relates to a different subject. The same may be said as to the provision fixing length of terms and that relating to the extension of existing terms. That regarding vacancies in elective state offices is practically the equivalent of the provision of section 13- of article IV, although more comprehensive in its application. This leaves only to be considered section 3' which gives to’ elective officers holding office at the adoption of the amendment capacity to continue to hold until a successor shall be elected and qualified. Let us examine the amendment a little more at length.

This latter clause does not in terms include one appointed to fill a vacancy, and if the appointee were relegated to this section for his authority to hold over there might be possible doubt as to its sufficiency. But the question is, does this clause necessarily deny to him that right? It is apparent that the main purpose intended by the amendment is to provide for the times of holding elections and for fixing length of terms. By reference to other sections of the constitution relating to elections it is apparent that two distinct changes in constitutional provision are made by the amendment, aside from the fixing of time when elections are to be held. One relates to the office of state auditor, treasurer, secretary and. attorney general. Where either office becomes vacant the successor is to be elected for the unexpired term instead of for a full term. The other requires that a vacancy in any elective state office shall be filled by election at the first general election for the office which is vacant that occurs more than thirty days after the vacancy has occurred instead of at an annual election. The provision that vacancies in other elective offices shall be filled in such manner as may be prescribed by law introduces no new rule, but is simply a provision inserted out of abundant caution to prevent possible misconception. A manner prescribed by law includes a manner prescribed by the constitution as well as by statute, and invokes the law of either character as it then stood as well as that which might thereafter be established. And we think it does not follow that section 2 of the amendment should be construed as providing an exclusive manner for filling vacancies. In the absence of an express provision in the amendment indicating the change insisted upon the section pboidd be confined to changes necessary to carry out the manifest purpose of the amendment which was, as expressed in the preliminary resolution, to provide for “fixing the time of holding of elections and terms of office,” and as a result, as expressed in the first section and plainly indicated by the whole amendment, providing for the holding of elections for state and county officers in even numbered years and for other elective officers in odd numbered years, and authorizing the general assembly to extend existing terms of office so as to effect the purpose of section 1 of the article, that being the prime and controlling purpose of the changes thus indicated in the fundamental law, and indeed .the only purpose. We repeat as stated in the opinion in The State ex rel. v. Pattison, 73 Ohio St., 379: “We are not construing a new constitution. We are construing an amendment to the constitution, which displaces the constitution only so far as it expressly abrogates, or is irreconcilably in conflict with, former provisions.” It is not contended that article XVII in terns abrogates section 13 of article IV, and there is no warrant, as we think, for the assumption that there is manifest any purpose to abrogate it by the adoption of the amendment in question. Repeals by implication are not favored with respect to statutes, and for a stronger reason they should not be favored with respect to constitutional provisions. The repugnancy, to work a repeal, must be wholly irreconcilable, as the -intention to repeal will not be presumed, nor the effect of the repeal admitted unless the inconsistency is unavoidable. The State, ex rel., v. Dudley, 1 Ohio St., 437; Cass v. Dillon, 2 Ohio St., 607; Raudebaugh v. Shelley, 6 Ohio St., 308; Commissioners v. Board of Public Works, 39 Ohio St., 628; Eggleston v. Harrison, 61 Ohio St., 397; The United States v. Sixty-seven Packages of Dry Goods, 17 How., 85.

It is to be especially noted that two of the features of article XVII are manifestly temporary only in operation: that in respect to the power of the general assembly to extend terms of office, and that which provides that elective officers holding office when the amendment is adopted shall continue to hold until their successors are elected and qualified; while that which provides for filling vacancies in elective state offices by appointment by the governor until a successor is elected and qualified, appears to be equally temporary, and intended to apply only to vacancies in such offices occurring with respect to those then in office. It is apparent, also, that the provisions of the amendment having permanent operation apply to the office; those applying to the persons then in office are temporary in. their operation and will be satisfied when the terms then existing shall expire. All which tends to show that, aside from the main purpose herein-before stated, the intent of the amendment was to provide only for contingencies necessarily resulting from the changes as to the times of holding elections and changes in terms of office; and these provisions are inconsistent with the claim that, by any fair construction, they should be held to abrogate or impair the force of section 13 of article IV, which is a permanent provision and a special one applying to judges. Section 3 of the amendment applies to those holding office when it was adopted;'section 2, as to vacancies, applies generally; but, as before indicated, section 13 of article IV applies to judges only. The last clause of section 2, article XVII, respecting vacancies, is not of special significance as applied to the case in hand. Certainly it is not in conflict with previous provisions. Judges of the circuit court are in the amendment classed with state officers. Hence that office does not belong with those classed as “other elective offices.”

This view is strengthened and we think made conclusive by a consideration of the policy respecting vacancies in office, and the filling of the same, manifested by legislation' and the trend of judicial decision since the adoption of the present constitution. The policy has been to secure continuity of service and avoid unnecessary vacancies. It has never been the policy of the state to create vacancies in office for the mere purpose of giving somebody an opportunity to fill' them. Piling vacancy upon • vacancy is an anomaly. This anomaly would be present if the relator’s contention should be sustained. No stronger demonstration of this policy, -respecting the judiciary could be shown than is given ■ by the constitution of 1851 in direct terms in the section (13 of article IV) hereinbefore quoted. If a vacancy occurs in the office of any judge, it shall be filled by appointment by the governor until a successor is elected and qualified; and such successor shall be elected for the unexpired term, at the first annual election occurring more than thirty days after the vacancy shall have happened. Two ideas are prominent. One that filie office of judge is an elective office, an office that is to be filled by the people. It is not an appointive office to be filled by any other authority save to the extent necessary to prevent a lapse. If the ■vacancy occurs thirty days or less before the proper election then the. governor ■ may make an appointment to' serve until the people elect at the first proper election for that office, and this for the manifest reason that there would not be time to provide for notice, etc., necessary for the holding of an election by the people before the time fixed by law for the immediate succeeding election. But if the vacancy shall have happened more than thirty days before the election is to be held then the governor may appoint but only until the people have opportunity to exercise their manifest right to elect a judge.

This was followed by legislation, now sections 8 and 11 of the Revised Statutes, appearing as early as the revision of 1880, providing that any person holding an office of public trust shall continue therein until his successor is elected or appointed and qualified unless it is otherwise provided in the constitution or laws. And when an elective office becomes vacant, and is filled by appointment, such appointee shall hold the office until his successor is elected and qualified, and such successor shall be elected at the first proper - election that is held more than thirty days after the occurrence of the vacancy. The policy to discourage the needless creation A vacancies is recognized in a number of decisions of this court. As instance The State, ex rel., v. Howe, 25 Ohio St., 588, where it is held by Mcllvaine, J., that the general assembly may provide against the recurrence of vacancies by authorizing incumbents to hold over their terms in cases where the duration of their terms is not fixed and limited by the constitution, and that from this it results that the evils contemplated as likely to result from vacancies in office are guarded against by confining the exercise of the power to fill vacancies to those cases where no one is authorized by law to discharge the public duties; which, we think, is the constitutional scope of that power. Also, by the case of The State, ex rel., v. Bryson, 44 Ohio St., 457, where it is observed that the office (that of fire engineer) could not be regarded as vacant while filled by one lawfully entitled to it, nor could an appointment made ostensibly to fill a vacancy create one. Also, in The State, ex rel., v. McCracken, 51 Ohio St., 123, where, at page 129, it is observed that: “The recognized policy of the state is to avoid, if practicable, the. creation of a vacancy in an elective office, and where the right to hold over is given in language that is not limited, and the same is not otherwise qualified, a court would hardly be justified in seeking for an unnatural construction by which a limit would be placed upon the right. 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 the duties.” Other judicial utterances of like import could be cited but it cannot be necessary.

Coming now nearer to the actual case in hand. For a clearer understanding it may be briefly restated. Judge Jerome B. Burrows was elected as one of the judges of the circuit court of the seventh circuit at the November election of the year 1902, for the term of six years, such term, (as then provided bv statute), to begin February 9, 1903, and to end February 8, 1909. By the third section of the amendment to the constitution adopted November 7, 1905, he being an elective officer then holding office, was empowered to continue to hold the office not only for the full term to which he had been elected but until his successor should be elected and qualified. At the November election, 1908, Judge Elias E. Roberts was elected to. succeed Judge Burrows, and had he lived would have entered on the duties February 9, 1909. But, without having qualified, Judge Roberts died on the twenty-second November, 1908. The potential capacity to hold over on the part of Judge Burrows then (the constitution and statutes becoming operative upon the incident of Judge. Roberts’ death), became an actuality, an accomplished fact, the effect of which was to extend Judge Burrows’ term to all' intents and purposes as completely as would have been the case had he originally been elected for such extended term, or as it would have been extended, had the general assembly, .acting under constitutional warr'ant, made provision by statute for its extension. It was not the decease of Judge Roberts which worked the extension but rather the provisions of the constitution operating upon the incident of Judge Roberts’ decease. This then was the title to the office of circuit judge held by Judge Burrows. On December 31, 1908, Judge Burrows, not desiring to serve longer, resigned, to take effect January 8, 1909. A successor was thereupon appointed, became qualified, and entered upon the duties January 9, 1909. What did Judge Burrows resign? There was no qualification to his resignation, if indeed there could have been. . We are of opinion that he resigned the entire authority which as a judge he possessed. That embraced as well the authority to hold over until a successor should • be elected and qualified as the remaining portion of -the. six years, the extent of his term as originally conferred. Using the language of Williams,. J., in The State, ex rel., v. Wright, 56 Ohio St., 540, speaking of the office of mayor: “His right to serve after the expiration of the designated period, until, the qualification of his successor, being conferred by ■statute at the time of his election, is no less a part of his statutory term of office than is the fixed period itself; and while he is so serving there can be no vacancy in the office in any proper sense of the term, for there is an actual incumbent of the office legally entitled to hold the same,” citing The State v. Howe, supra. In Kimberlain v. The State, 14 L. R. A. (Ind.), 858, it is held that: “The period between the expiration of his term and the qualification of his successor is as much, a part of the incumbent’s term of office as the fixed statutory period, where the law provides that he shall hold over until his successor qualifies.” See, also, Mechem on Public Offices, here and there.

We should not allow ourselves to become contused by the use of forms of expression. It seems to be assumed that a vacancy must necessarily have been created by the decease of Judge Roberts, taking- effect February 9, 1909, because the süccessor to be elected will be chosen for an unexpired term and there cannot be an unexpired term without a vacancy in the term of which it is a part; hence there was a vacancy in Judge Roberts’ term. With due respect we wish to urge that Judge Roberts had no term. His untimely death prevented such result. On the other hand his decease, as hereinbefore indicated, was the incident on which the constitution, supplemented by the appointment of the respondent, acted in a way to prevent a vacancy. An unexpired term is not synonymous with a vacancy. The former is the remainder of a period prescribed by law after a portion of such time has passed; a vacancy exists where there is no person lawfully authorized to assume and exercise at present the duties of the office. And if provision, either by constitution or statute, has been made for preventing a vacancy, it is a misuse of terms to assume that a vacancy has occurred. If, therefore, at the expiration of the six years for which Judge Burrows was elected, a person qualified to hold it was in possession of the office, no vacancy existed. It is distinctly held in Kimberlain v. The State, supra, that: “The death of a person elected to an office before he qualifies does not create a vacancy where the constitution provides that the incumbent shall hold office for his term and until the election and qualification of his successor.” In The People, ex rel., v. Lord, 9 Mich., 227, a judge was elected November, _, 1860, the term to begin January 1, 1861, but before that date, viz: November 22, 1860, died, and an appointment was forthwith made by the governor to fill the vacancy, and subsequently, viz: January 1, 1861, the governor appointed another person to fill what he supposed was a vacancy. It was held that the second appointment was void, and that under the constitution (the provision being similar to ours) the person first appointed would hold until a successor was elected and qualified. It is held in Commonwealth, ex rel., v. Hanley, 9 Pa. St., 513, that: “The death of the person elected to fill the" office of clerk of the orphan’s court, before he has qualified himself according to law, does not create a vacancy, but the incumbent who is authorized to hold the office until his successor shall be qualified, holds over.” And Rogers, J., in the opinion observes: “It will be observed that the terms on' which alone the governor can appoint are a vacancy in the office, and that there can be a vacancy in an office when there is a person in possession whom all acknowledge to' be rightfully in possession, having a perfect right to exercise all the powers and duties of the office, and to receive and enjoy all its emoluments, is a position difficult to comprehend. It is an abuse of terms to say that at the time the governor issued his commission to the relator the office was vacant, for no person can plausibly deny that the respondent was the rightful possessor of the office at the time.” So here. It is conceded that the defendant was rightfully in the office at the time of the appointment of the relator unless his powers ceased with the expiration of the six year portion of the term of Judge Burrows. To sustain the claim that they did so cease would, we think, be to fly in the face of the weight of authority, and the manifest purpose of our constitution and statutes, which purpose, . as heretofore pointed out, is to secure continuity and steadiness of service and to discourage the creation of vacancies.

But, waiving that which precedes, we think the question can hardly be regarded as an open one in this state. The State, ex rel., v. Dahl, 55 Ohio St., 195, was a proceeding in mandamus to compel the board of elections of Fayette county to place the name of the relator on the official ballot as nominee of the Republican party as county auditor. One Nitterhouse was elected auditor at the November election, 1895, was afterwards duly commissioned by the governor but died September 30, 1896. His term, had he lived, would have commenced October 19, 1896. Assuming that the death created a vacancy at the time thereof, to be filled by election in November, the Republican committee nominated relator and requested the board of election to place his name on the official ballot, which re■quest- was refused. The question was, therefore, whether- the death of Nitter house created a vacancy. It was held that it did not. His term of office was not to begin until the 19th of October, following his death,- which was less than thirty days before the coming November election; that his death created no vacancy in the office as it was then filled by a duly elected, qualified and acting auditor who would continue to be such until tile end of his term, and as no vacancy could occur in the office by reason of the death of Nitter house the office could not be filled by election at the following November election. The action of the board of elections in refusing to put the name of the relator on the ticket as the Republican candidate was approved by this court, and the relator’s petition dismissed. The case of The State, ex rel., v. Speidel, 62 Ohio St., 156, was a quo warranto prosecuted in this court, involving title to the office of sheriff. It was charged that Speidel unlawfully holds the office of sheriff of Clermont county; that in 1897 one Buvinger was elected sheriff for the term beginning the first Monday of January, 1898, qualified and entered upon the duties; that at the annual election, November 7, 1899, he was a candidate for reelection; that one Cover and one Brown were also candidates; that Buvinger received 4369 votes, Cover 3802, and Brown 196; that Buvinger died on election day; that the death of Buvinger created a vacancy in the office and a vacancy on the Democratic ticket (he being the Democratic candidate and Cover being the Republican candidate); that the votes cast for Buvinger were of no effect in law: that Cover was elected to the office and entitled to the same 'from the first. Monday of January, 1900, until the first Monday of January, 1902; that he was entitled to a certificate of election from the board of canvassers, but the board refused a certificate and declined to certify for said office at all; that one Walker was on the 9th November, 1899, appointed and commissioned to fill the vacancy occasioned by the death of Buvinger; that he qualified and entered upon the duties; that he still claims to have and hold the title to the office; that on the first Monday of January, 1900, the respondent Speidel was appointed to fill the vacancy by the commissioners of the county, and, pursuant to such appointment, was commissioned by the governor of Ohio, and on said day unlawfully intruded into the office and is unlawfully exercising the functions thereof, and that Cover claims to have been elected to succeed Walker. Judgment of ouster was prayed for against both Walker and Speidel, and for the induction of Cover. Speidel demurred to the petition, and Walker set up his claim by answer, insisting that he was entitled ■ to hold over until his successor should be elected and qualified. Judgment was given for Walker, who had been appointed, and against both Cover and Speidel, the court holding that: “When one who is holding the office of sheriff, and is a candidate for election to succeed himself, dies before entering upon his new term, a vacancy is thereby created in the term in which he is serving, but not in the term for which he was a candidate and upon which he had not entered; and one who is duly appointed and qualified to fill the vacancy thus created will hold the office for and during the unexpired term of his predecessor and until his successor is elected and qualified; and such election must be had at the first proper election that is. held more than thirty days after the occurrence of the vacancy.” That is, the court held in favor of Walker, the appointee, Davis, J., remarking in the opinion that: “The death of Buvinger did not create a vacancy in his term which would have begun in January, 1900, assuming that he was duly elected, because he did not live to be installed in his second term. Walker was the incumbent at the time when that term would have begun had Buvinger lived, with the right to remain until his successor was elected and qualified. There could be no vacancy then. * * * Therefore the county commissioners, in appointing Speidel, acted altogether without authority.”

The State, ex rel. Adams, v. Hopkins, 10 Ohio St., 509, is cited as supporting relator’s claim. We think the case fails to do so. The respondent Hopkins was serving on his second term as county treasurer, having first been elected in 1855. At the election in October 1859 one Rapp was elected treasurer. On November 27 following Rapp died. A commission had issued but he had not received it. On the first Tuesday of September, 1860, (the date when the new term would begin), Rapp having failed to qualify, the county commissioners appointed Adams, the relator, and the governor issued to him a commission. Having in all resnects qualified Adams demanded the office but Hopkins refused possession, claiming that he had the right to hold over. The court sustained the claim of Adams, holding that, within the meaning of the statute, the death of Rapp created a vacancy. Two reasons justified this conclusion. One that the statute then in. force applying especially to treasurers, in terms provided that under such circumstances “the office shall become vacant.” The other that Hopkins was ineligible to further serve as treasurer at that time because of the constitutional provision governing that office and limiting the capacity of one elected treasurer to serve only four years in any period of six years.

It follows, and as conclusion we hold, that section 13 of article IV of the constitution is still in force, and that it controls this case; that the death of Judge Roberts did not create a vacancy in the office of circuit judge; that the period between the end of the six years for which Judge Burrows had been elected and the election and qualification of a successor (November 1910), became a part of Judge Burrows’ term; that the resignation of Judge, Burrows carried with it the balance of his entire term, including the interim above referred to; that Judge Metcalfe, by reason of his appointment and qualification, succeeded to all that Judge Burrows resigned, and was thus clothed with the power to hold the office until a successor should be elected and qualified, and that the appointment of relator to take effect February 9, 1909, was ineffective to give any title to the office. We desire to emphasize that the crucial question at issue is not whether or no, as a general proposition, by force of our constitution and laws, a judge holds over until his successor is elected and qualified. But the question is what is the effect of an appointment to fill a vacancy? We think, for the reasons heretofore given, the effect distinctly prescribed by section 13 of article IV, viz: to clothe the appointee with the power to hold until a successor is elected and qualified, affords the answer. If this is so then the relator can have no possible standing to demand the office.

The demurrer to the petition will be sustained, and the- petition dismissed.

Dismissed.

Crew/ C. J;, Davis, Sitauck and Price, JJ., concur. .