Lead Opinion
Thе first question presented is whether a writ of prohibition is the proper remedy. In the case of
State, ex rel. Stanley,
v.
Bernon et al., Bd. of Elections of Cuyahoga County,
The second question is whether the relator held by his first appointment the office of sheriff for the unexpired term which ended December 31, 1944 (which was the day beforе the first Monday in January 1945), •and thereafter until the election and qualification of his successor.
Section 2828, General Code (84 Ohio Laws, 208), prior to its amendment (121 Ohio Laws, —, effective October 11, 1945), provided in its material part as follows:
“When the office of sheriff becomes vacant, the county commissioners shall appoint а suitable person to fill the vacancy. The person so appointed shall give bond, take the oath of office prescribed for the sheriff, and hold the оffice during the unexpired term.”
That section, however, must be weighed in the light of Section 10, General Code (amended 117 Ohio Laws, *345 346, effective August 11,1937), which reads as follows:
“When an elective office becоmes vacant, and is filled by appointment, such appointee shall hold the office until his successor is elected and qualified. Unless otherwise provided by law, suсh successor shall be elected for the unexpired term at the first general election for the office which is vacant that occurs more than thirty days aftеr the vacancy shall have occurred. When an elected candidate has failed to qualify for the office to which he has been elected, the оffice shall be filled as in the case of a vacancy. Until so filled, the incumbent officer shall continue to hold the office. This section shall not he construed tо postpone the time for such election beyond that at which it would have been held had no such vacancy occurred, nor to affect the officiаl term, or the time for the commencement thereof, of any person elected to such office before the occurrence of such vacаncy. ’ ’
Sections 2828 and 10, General Code (formerly Sections 1208 and 11, respectively, Bevised Statutes), though amended from time to time have been construed to mean thаt a person appointed to fill a vacancy in the office of sheriff holds until the end of the unexpired term and thereafter until his successor is elected and qualified.
State, ex rel. Sheets, Atty. Genl.,
v.
Speidel,
The third question is whether the resignation and reappоintment of the relator gave him, upon qualification, a right to hold the office until the end of the term for which O’Neil was re-elected the last time.
O’Neil’s death creаted a vacancy in his old term— the term he was then filling, but not a vacancy in the new term — the term he never filled and for which he never qualified.
State, ex rel. Sheets,
v.
Speidel, supra; Townsley
v.
Harisfield,
113 Ark., 253,
In fact, O’Neil never had or hеld the new term. It was not his term.
State, ex rel. Hoyt,
v.
Metcalfe,
*347 The leading .cases sustaining this doctrine are summarized in the following statement on page 487:
“It is generally■ held that, where an incumbent is authorized to hold over until the election and qualification of his successor, such additional term, though in its nature contingent and defeasible, is, while it exists, as much a part of the term of the incumbent as is his original, fixed, or regular term.”
When the relator resigned, he surrendered the right to the appointive tеrm of service he then held, and a person appointed to the office after such a resignation, whoever he might have been, would normally serve as long as the resigning incumbent would have been entitled to serve, had he not resigned. But now amended Section 10, General Code (117 Ohio Laws, 346), is involved with its provision that, upon the failure of an elective candidate to qualify, “the office shall be filled as in the case of a vacancy.” So the question naturally arises whether the resignаtion of the relator, though not creating a vacancy in the new term for which O’Neil did not qualify, gave the county commissioners the power to fill the office “as in the case of a vacancy, ’ ’ that is, for the unexpired term ending the day before the first Monday of January 1949.
As a result of O’Neil’s failure to qualify, due to his death, there was аn actual vacancy which was filled by the original appointment of the relator. There was no actual vacancy in the new term, within the meaning of the statutе, by reason of relator’s resignation, but a vacancy only in the appointive term which the relator held. Although the office of sheriff was the only county officе as to which there was a provision that a person appointed to fill a vacancy should hold during the unexpired term, that provision applied, only where a vacancy actually existed in that office as a result of the failure of the elected candidate to qualify. The occasion for filling the office by reappointment of the relator was brought about by the relator’s own act in *348 resigning. By that act he sought to bring about an extension of his term of service, but he cоuld not-enlarge his rights or extend his tenure in that way. Therefore, the relator through his reappointment and subsequent qualification holds his office only until his successor is elected at the next general election and qualifies for -the office.
For the reasons given the relator is not entitled to a writ of prohibition to prevent placing the three names on the ballots for the primary election to be held May 7, 1946.
Writ denied.
Concurrence Opinion
concurring. I concur in the judgment for the reason only that prohibition is not an appropriate remedy under the facts of this case. I do not dissent from the statements of law contained in the syllabus other than that dealing with the remedy.