State of Ohio ex rel. Kelly v. Thrall. Brief of Frank A. Kelley, John Ferguson and John T. Pyle, for defendant Stallsmith. 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 right 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. Howe, 25 Ohio St., 588; State of Ohio ex rel. Kelly v. Thrall. State v. Brewster, 44 Ohio St., 589; State v. McCracken, 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 I 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 O. C. D., 227; 9 C. C., 161; 6 O. C. D., 106. State of Ohio ex rel. Kelly v. Thrall. 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 case 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. McCracken 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. McGregor, 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 may be eligible to either of two or more State of Ohio ex rel. Kelly v. Thrall. 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 cast 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. State of Ohio ex rel. Kelly v. Thrall. It is a general rule that the courts will not declare an act unconstitutional unless the invalidity 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. McNeil 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. Mc Gregor, 44 Ohio St., 631; State ex rel. v. McGregor 51 Ohio St., 123. |