Thе initial question for our consideration is whether appellant’s purported appointment to the unexpired term on the vocational board wаs effective. If it was, then the Windham board would have been powerless to reconsider it. “* * * The power of appointment, once exercised, is еxhausted until a new vacancy occurs. ‘Where power has been given to appoint to an office and the same has been exercised, any subsequent appointment to the same office will be void unless the prior incumbent has been removed or the office has otherwise become vacant.’ ” State, ex rel. Gahl, v. Lutz (1937),
In State, ex rel. Palmer, v. Darby (1894), 4 Ohio C. D. 124, 127,
“While regular elections may and are required to be held in anticipation of the expiration of an official term, and the appointments to an office originally appointive may be made while the person holding the office is still serving his term and in anticipation of its regular expiration[,] yet neither an election nor an appointment to fill a casual vacancy can be held or made anticipatory оf the vacancy nor until its actual occurrence.”
In the same vein, this court held in paragraph one of the syllabus of State, ex rel. Morris, v. Sullivan (1909),
“The well settled rule of the cоmmon law forbids that an officer*148 clothed with power of appointment to a public office, shall forestall the rights and prerogative of his successor, by making a prospective appointment to fill an anticipated vacancy in an office the term of which cannot begin until after his own term аnd power to appoint have expired.”
Eight years later, in State, ex rel. Taylor, v. Cowen (1917),
“* * * [T]he appointing power has full authority to anticipate vacancies in its appointments. This legal principle, however, is limited, in that such vacancies, whether by resignation or expiration of term, must occur during the life of the appointing power. Thе latter cannot saddle upon its successors appointees whose official terms are to begin thereafter.”
In sum, it is the law of Ohio that there can be a valid appointment to an office in advance of the time the vacancy actually occurs. Prospective appointments tо office are generally deemed to be effective, with this exception: If the term of the appointing body or officer will expire prior to оr at the same time that the vacancy will occur, then no power of prospective appointment exists.
The case of State, ex rel. Moulton, v. Myers (1918),
“The statute which confers upon the presidents of the boards of education of the various village and rural school districts of each county authority to elect a member of the.county board of education each year, does not authorize the election of a member of such board for a term which does not begin until after the expiration of the term of office of such presidents. The general rule of law, well established, which is recognized and applied in the case of State, ex rel. Morris, v. Sullivan,81 Ohio St. 79 , is applicable, and precludes the election of members of the county board оf education, whose terms of office do not begin until the third Saturday of January, by presidents of village and rural school districts of the county, whose own terms and рower to appoint expire on the preceding first Monday of January. The election of each of the relators was therefore invalid and they are not entitled to the relief sought.”
In light of the authorities thus far discussed, we can come but to one conclusion: Appellant was not legally appointed as a member of the vocational board and she can have no legitimate claim to that office.
The key phrase in appellant’s proposition is “duly elected or appointed.” Obviously, one cannot be duly appointed to an office where there is no vacancy, since two persons cannot, at the same timé, occupy an office for which only one incumbent is provided by law. Davies v. State, ex rel. Scherer (1908), 20 Ohio C. D. 527,
Appellant’s election to the vocational board was ineffective. The void in that body beginning January 1, 1984 was properly filled by the Wind-ham board when it appointed appellеe on January 4. Appellee is entitled to the office, and the demand for his ouster by quo warranto is refused. Accordingly, the writ is denied.
Judgment affirmed and writ denied.
Notes
In this famed case, William Marbury had been appointed to a five-year term as a justice of the peаce for the District of Columbia by outgoing President John Adams. The incoming Secretary of State, James Madison, refused Marbury’s request for his commission, whereupon a mandamus action was instituted. In the course of the Supreme Court’s opinion, Chief Justice Marshall said: “In order to determine whether he [Marbury] is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in оffice for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property. ” (Emphasis added.) Marbury v. Madison (1803), 1 Cranch (5 U.S.) 137, at 155. (See, also, Logan v. Zimmerman Brush Co. [1982],
A school board, like other public entities, is a continuous body, although its рersonnel changes from time to time. In this case, however, by operation of law (R.C. 3313.09 and 3313.14) the annual term of the Windham board itself came to a closе, and reorganization for the succeeding term beginning in January became necessary.
Our disposition of this case makes it unnecessary to address the issue as to whether R.C. 3.08 provides the exclusive means for the removal from office of a member of a board of education. We expressly do not reach this question.