Comm'rs Hamilton Co. v. Mighels.

laid down in the Men of Devon, and by Chief Justice Parsons, *in 7 Mass., but Chief Justice Hornblower, in delivering his [124 opinion, supposes, and remarks upon almost the very case before us. He says: "It is the duty, for instance, of the board of freeholders to erect and keep in repair court-houses and jails. A neglect to do so may occasion great inconvenience, perhaps positive loss or injury to some individual whose business or duty requires his attendance at court. The building, by being old and out of repair, may give way and break a man's limbs, or occasion him an injury in some other way; but no one will pretend that in such a case an action would lie by the person injured against the county."

The same doctrine was recognized and applied in Illinois, in Hedges v. The County of Madison, 1 Gilman, 567; by the Supreme Court of the United States, in Fowle v. Common Council of Alexandria, 3 Peters, 409; and is also applied and strongly urged and approved by the Supreme Court of New York, in the able opinion of Selden, J., in Morey v. The Town of Newfane, 8 Barb. S. C. 645.

It is undoubtedly competent for the legislature to make the people of a county liable for the official delinquencies of the county commissioners, and if they think it wise and just, without any power in the people to control the acts of the commissioners or to exact indemnity from them; but this has not yet been done, and we think that such liability can not be derived from the relation of the parties, either on the principles or the precedents of the common law.

In conclusion, and at the risk of the penalties of tautology, I repeat, that while, both upon principle and authority, we find ourselves compelled to overrule the case of The Commissioners of Brown County v. Butt, as having been erroneously decided, we do so with extreme reluctance, and with all respect for the judgment and veneration for the memory of the judges who decided it; but, with our convictions, we could not do otherwise, and in overruling it, we are satisfied we are contributing to place the law of Ohio upon a.footing of sound principle, as well as in harmony with that of other states, whose jurisprudence, like our own, rests on the basis of the common law.

Judgment reversed.

*BARTLEY, C. J., and SWAN, BOWEN, and SCOTT, JJ., con- [125

curred.

The State, ex rel. Ellis, v. Comm'rs Muskingum Co.

THE STATE OF OHIO, ON RELATION OF ELIAS ELLIS, V. THE COMMISSIONERS OF MUSKINGUM COUNTY.

The period for the expiration of the term of office of a county treasurer, held by appointment to fill a vacancy, is subject to legislative regulation. The office of county treasurer, thus held, terminates on the first Monday of June next following his appointment, if a successor to the office shall, before that time, be elected and qualified.

There is no provision in the laws of this state authorizing the election, by the people, of a county treasurer to fill a vacancy in that office, occasioned by the death of the incumbent.

But the law does confer authority on the people of the county to elect a successor to the vacant office of treasurer, at the annual October election, who will in such case be entitled to hold the office for the full term of two years, commencing on the first Monday of June next after his election.

MOTION for mandamus.

At the October election in 1855, Benjamin Adams was elected treasurer of Muskingum county, and entered upon the duties of his office on the first Monday of June, 1856. On the 16th of September, 1857, Adams died; and on the 17th of the same month the commissioners appointed John Dillon to fill the vacancy. On the 18th of September the sheriff gave notice, by proclamation, for the election of a treasurer for the full term, and also one to fill the vacancy. At the annual October election then next following, Ellis was elected to fill the vacancy, and on the 20th of October, 1857, the governor issued to him a commission, authorizing him to hold said office until the first Monday of June, 1858. On the 30th of October, 1857, Ellis presented his commission to the county commissioners, together with his bond, the necessary sureties thereto, and his oath of office indorsed thereon, for their acceptance. The commissioners refused to accept the bond, on the ground that there was no vacancy in the office.

126] The relator asks for a writ of mandamus to compel the commissioners to accept his bond.

C. W. Searle and A. P. Blocksom, for the relator.

R. Stillwell, for the defendants.

BOWEN, J. Article 10, section 2, of our present constitution,

The State, ex rel. Ellis, v. Comm'rs Muskingum Co.

provides that county officers shall be elected on the second Tuesday of October, until otherwise directed by law, by the qualified electors of each county, in such manner and for such time, not exceeding three years, as may be provided by law.

The legislature is thus vested with the power to regulate the manner of electing county officers and their terms of office. The periods when the duties of the office shall commence, and when they shall terminate, are the subject of statutory regulation. Vacancies which may occur in them are also left to be provided for by the legislature.

In fixing the time at which a county treasurer shall obtain control and enter upon the duties of his office, considerations of convenience to the public, as well as to the incumbent, have, doubtless,. influenced, to some extent, legislative action on the subject.

By existing laws the taxes are required to be paid to the treasurer between the first Monday of June and the 20th of December of each year. On the 15th of January annually he is required to make settlement with the county auditor; and on the first Monday of February pay to the treasurer of state all of the moneys by him received for state purposes, and at the stated meeting of the commissioners in June he must make a full settlement with them of all of his receipts and disbursements during the past year. A balancesheet between himself and the county is then made up, and a new . fiscal year commences. While an officer is in the actual performance of these various duties between the commencement and termination of the fiscal year, to put another in his place would be attended with great inconvenience, and might, produce mischief to the public interest. When death or other causes creates the [127 necessity for the introduction of a new incumbent into the office, the evils incident to the change, however great, must be borne. Provision might, doubtless, be made by law for supplying an unexpired term of the office, by election to a vacancy happening therein, and the inconveniences attending the change of incumbents, somewhat guarded against. If our present statute intended to confer that power we should expect to find in it some appropriate and necessary regulations, directed to that end. The absence of any such provision may be taken as evidence of a contrary intention on the part of the law-makers. It affords, to say the least of it, a satisfactory reason for not adopting the construction claimed by the relator in this case.

VOL. VII-8

113

The State, ex rel. Ellis, v. Comm'rs Muskingum Co.

The act of March 12, 1831, fixed the term of office of county treasurers at two years from the first Monday of June next succeeding their election; and in case of a vacancy in the term, occasioned by death, or any other cause, the county commissioners were required to meet forthwith, and appoint a suitable person to fill such vacancy, and the person so appointed, held his office until the expiration of the term for which his predecessor was elected.

This law was amended by an act passed May 1, 1854, and the section which thus regulated the treasurer's term of office, was repealed.

The section now in force, provides that whenever the office of county treasurer shall become vacant by death, removal, resignation, neglect to give bond, or from any other cause, the county commissioners of the proper county, shall, forthwith, appoint some suitable person to fill such vacancy; and the person so appointed shall

hold his office until the next annual election, and until his successor shall be elected and qualified. Provided, that if such appointment, shall not be made more than twenty days before the annual election next thereafter, then, in such case, the treasurer so appointed, shall hold his office until the second annual election next after his appointment, and until his successor is duly elected and qualified.

It is claimed by the counsel for the relator that this amendatory 128] *act is remedial of what was regarded as an evil under the old law, and supersedes, at the earliest day at which it can be done, the appointment of the commissioners by an election of the people. It is quite apparent that some essential changes in the practice which had before prevailed, were contemplated by the legislature in making this amendment. But does it effect what the relator claims? If the appointment be made more than twenty days preceding the second Tuesday of October, the person appointed holds the office until the annual October election, and till his successor is elected and qualified. The successor here referred to, can mean no other than one who may be elected for the full term of two years. There is nothing said about supplying the vacant term by election, but the appointee shall continue to serve in the office until the election, and until his successor can be qualified to take his place. This latter act, the law prescribes, can only be done on the first Monday of June. No one, under an election, can enter upon the duties of the office before that time, and then he is clothed with authority to re

The State, ex rel. Ellis, v. Comm'rs Muskingum Co.

main for two years, and must so serve, for that length of time, unless he resigns the post.. In the view we take of the question, there can not be a fractional term filled by an election. Whenever the people of the county, by their votes, given at the proper time, choose a treasurer, they thereby confer on him the office for the full term allowed by law.

Dillon was appointed more than twenty days before the October election. It was, consequently, competent for the people to choose a successor to Adams, who had died. This was done, and that successor is authorized, by the terms of the statute, to qualify himself, by giving bond, etc., to take charge of the office on the first Monday of June, 1858. He will be entitled to remain in office for two years from that date. The election of the relator, for the unexpired term of Adams, was a proceeding unauthorized by the law. We know of no statute which sanctions it. If twenty days between Dillon's appointment and the October election had not intervened, there could have been no successor chosen until a subsequent annual election took place, which would have extended Dillon's commission to the first Monday of June following such subsequent election. In [129 some cases this would give to the appointed treasurer nearly a full term of the office, while in other instances it would circumscribe the term to a shorter period than the law gives to the elected treasurer. But this can make no difference as to the construction of the statute, the obvious intent of which, we think, is that the appointee to a vacancy becomes treasurer de jure, till an election of another for the usual term prescribed by law, supersedes him in the office.

The county commissioners properly refused to accept the relator's bond, or to recognize his right to the office of treasurer of that county.

The motion is overruled.

BARTLEY, C. J., and SWAN, BRINKERHOFF, and Scorт, JJ., concurred.

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