ken of as an election; whenever it is to be conferred by an individual, as by the Governor, or by a select number of individuals, as by a Judicial Court, or by the General Assembly, it is spoken of as an appointment.

The first section of the act of January 29, 1833, Swan's Statutes, p. 738, says: "That there shall hereafter be elected, in each organized county in this State, on the second Tuesday of October, biennially, in the same manner that other State and County officers are elected, under the provisions of the act entitled an act regulating elections,' passed Feb. 1831, one Prosecuting Attorney, who shall hold his office for the term of two years, and until his successor shall be elected and qualified."

By the above section, a Prosecuting Attorney is elected by the people, the same as other State and County officers are elected, and shall hold his office for the term of two years. The statute treats it as an office; common usage has treated it as an office. The duties that pertain under our law to the office of Prosecuting Attorney, clearly come within the meaning of the decision of what constitutes an office, in the authorities and decisions above cited.

The act of February 18, 1831, makes the office of County Assessor elective by the people. This is not an office specifically named in the constitution of the State, but the Legislature has the right, which they have repeatedly exercised, of creating offices; and an office so created by the Legislature, if it be lucrative, comes clearly within the provision of the constitution which makes such person, while holding such lucrative office, ineligible as a candidate for, or have a seat in the General Assembly. If all persons holding office other than those specifically named in the constitution, were eligible to seats as members of this General Assembly, then has the action of this body, in all times past, been a gross violation of constitutional duty. Not only the opinions of constitutional lawyers entitled to great respect, but a uniform current of decisions of this Legislature, for many years, has been in favor of a contrary doctrine.

Robert Lingie was returned a member of the House of Representatives from the county of Athens for the year 1825-6, produced his certificate of election and was sworn in as a member. Edmond Door contested the seat of Mr. Lingie, upon the ground that he was assessor at the time of his election, and was therefore ineligible as a candidate. The matter was referred to the committee on Privileges and Elections. That committee reported that Mr. Lingie was not eligible. The report was committed to a committee of the whole House. The committee rose and reported that having had the said case under consideration, they reported back without amendment, which was agreed to by the House. Mr. Bigger then moved the adoption of the following resolution.

Resolved, That Edmond Door, who appears to have the highest number of legal votes for representative from the county of Athens, is entitled to a seat in this House.

The above resolution did not pass; it was amended, declaring the seat of Mr. Lingie vacant, and passed, ayes 46, noes 24.

In the year 1832 John Codding was returned a representative from the county of Medina, and was admitted to a seat in the organization of the House. Lathrop Seymour contested his seat upon the ground that he was county assessor at the time of his election. The committee on Privileges and Elections report, "that it appears from the testimony before them, that John Codding was, on the 9th October, 1832, assessor for the county of Medina. It also appears by the testimony in the case, that the said Lathrop Seymour received the next highest number of votes for representative for the county of Medina, at the election held on the 9th October, 1832. Your committee are of opinion that the said John Codding was not eligible as a candidate for a seat in this House, on said 9th October last, he being at that time assessor for the county of Medina, which your committee are of opinion is provided against by the 2 th section of the first article of the constitution of Ohio."

The committee offered resolutions declaring the seat of said Codding vacant, which was carried. A resolution was offered declaring that Seymour having received the next highest number of votes, was entitled to a seat; which resolution was negatived by a vote of ayes 8, noes 61.

There are some other facts in relation to this case in reference to a special election ordered by the Governor, which is not necessary for the purposes of this case to notice.

House journal, 1815-16, page 33 to 37, show that William Fee, elected a representative from the county of Clermont, was held ineligible upon the ground that he held at the time of his election, the of fice of Inspector, which, under the meaning of the constitution, was a lucrative office.

Waitsel Hastings, from the county of Knox, held the office of coroner at the time of his election, as appears by the journal of 1817-18, and for that reason he was held ineligible, and his seat declared vacant.

In the year 1845-6, Lyman Pacher was elected to this House from the counties of Hancock, Lucas and Wood. His seat was contested because he held the office of county commissioner at the time of his election. The committee on Privileges and Elections, in their report, say: "Their conclusion is, no person holding a county office, for whose official service the law has provided a compensation in money, in the form of fees, a per diem, or salary, is entitled to have a seat while holding such office, in the General Assembly."

66

Art. 7, sec. 1, of the constitution declares, Every person who shall be chosen or appointed to any office of trust or profit, under the authority of this State, shall, before the entering on the execution. thereof, take an oath or affirmation to support the constitution of the United States and of this State, and also an oath of office."

The statute provides, "that each judge of the supreme court, president and associate judges of the court of common pleas, sheriff, coroner, auditor, State treasurer, militia officers, and justices of the peace, and any officer, whose office is created by law, and not otherwise provided for, shall be entitled to receive from the Governor a commission to fill such office," &c., &c.

The office of Prosecuting attorney has been created by an act of the Legislature. It is made elective by the people. The individual elected is required, prior to entering upon a discharge of his duties, to take an oath of office. He is commissioned by the Governor of the State, and is required to do and perform all those functions which constitute within the meaning of the law and the constitution, an office. It is as much an office as that of sheriff, auditor, treasurer, or any others named in the constitution. It has all the requisites of an office. It has all the duties.

The only remaining question is, is it a lucrative office? We believe that any office to which there are fees attached, or where the law authorizes a compensation in money, is within the meaning of the constitution a lucrative office. The 3d section of the act of January 29, 1833, makes it the duty of the court to fix the amount of compensation to be paid to the prosecuting attorney for his services, which compensation varies, in the State, from one hundred dollars to two thousand. It is not the amount of the salary that makes the office lucrative within the meaning of the constitution. It is the fact that he receives a certain or fixed compensation for the services rendered. That which would be lucrative to one man would not be so to another, and hence the principle must be of universal application, without exception; otherwise a man holding the office of prosecuting attorney might be held eligible to a seat in the General Assembly, in one section of the State, while in the county of Hamilton, where he receives a salary from fifteen hundred to two thousand dollars, he would be held ineligible. Such a rule of construction would be most unjust and unequal. The constitution of the State does not fix the compensation of any county officers. That is fixed by law.

Your committee will state that two or three precedents are to be found where prosecuting attorneys were admitted to hold seats in the Legislature, but these decisions were all made prior to the act of January 29 1833, creating the office, and making it elective by the people. Since which time the question, until now, has not been presented to the Legislature. The act in force at the time the Legislature held prosecuting attorneys eligible to the General Assembly, provides, “That the courts of common pleas shall appoint in each county an attorney to prosecute in behalf of the State, and the attorney so appointed shall receive for his services such fees or compensation as shall be allowed by the court of common pleas of the proper county; such allowance to be certified by the clerk and paid out of the county treasury, on the order of the commissioners." See 1 Chase's Stat. 705.

The individual appointed under the above section was not required to take an oath of office, give bond, or liable for neglect of duty. His duties are not defined or pointed out. It had then scarcely any of the requisites of an office, and was certainly not an office within the meaning of the constitution. But the law now makes it an office, and places it in the same situation as the office of sheriff, assessor, &c.

The language of the constitution is plain: "No person holding any

lucrative office under the authority of this State, shall be eligible as a candidate for, or have a seat in the General Assembly."

The office of prosecuting attorney, as before remarked, is created under the authority of this State. It is a lucrative office, as before shown, and Charles P. Edson, holding it at the time of his election, is clearly ineligible to a seat in this House under the above provision of the constitution.

Your committee therefore recommend the adoption of the following resolution:

Resolved, That the seat now occupied by Charles P. Edson is hereby declared vacant, and that the election be referred back to the people.

་

MILLER PENNINGTON,
NORTON S. TOWNSHEND,
GEO. HARDESTY,

Committee.

REPORT

OF THE

MINORITY OF THE COMMITTEE ON PRIVILEGES AND ELECTIONS, IN THE VAN WERT CONTESTED CASE.

IN HOUSE-March 20, 1849.

The undersigned, a minority of the standing committee on Privileges and Elections, to which were referred the proofs contesting the right of Charles P. Edson to represent the counties of Putnam, Van Wert, Paulding, Defiance and Williams, dissent from the resolution submitted by the majority, and ask leave to submit the reasons of their dissent.

The contestor, Samuel E. Brown, seems to claim that the sitting member was the Prosecuting Attorney of Van Wert county, at the period of the last general election, and as such, under the twenty-sixth section of the first clause of the constitution, ineligible to a seat in this House.

The first proof in support of this claim, is a certificate from one Edward R. Wells, professing to be clerk of the court of common pleas of Van Wert county, to the following effect :

The State of Ohio, Van Wert County, ss.

I, E. R. Wells, clerk of the court of common pleas of Van Wert county, Ohio, do hereby certify that Charles P. Edson, esquire, held the office and officiated as Prosecuting Attorney of said county of Van Wert, from the twenty-sixth day of April, A. D. 1847, to October twentieth, A. D. 1848, as appears by the journal of the court of common pleas of said county of Van Wert.

In testimony whereof I have hereunto set my hand, and the seal of the court aforesaid, at Van Wert, this 8th day of Novem[SEAL.] ber, A. D. 1848. E. R. WELLS, Clerk.