State ex rel. Hoyt v. Metcalfe

Citations

• 80 Ohio St. (N.S.) 244

Syllabus

<p>Article XVII does not repeal section 13, article IV, constitution— Provision for appointment of judge by governor — In force— Death of person elected before he qualifies — No vacancy in office — Extension of term by Article XVII — Considered part of incumbent’s term — Circuit judge appointed to fill vacancy — May hold over — No vacancy occurs upon expiration of term, when— Appointment made by governor to take effect then, confers no authority.</p> <p>1. Article XVII of the constitution, adopted November 7, 1905, does not expressly repeal or abrogate section 13 of article IV of the constitution, nor is it in conflict therewith; and, applying to the construction of the former section the established rule that repeals by implication are not favored, it follows that the clause of section 13 which provides that where “the office of any judge becomes vacant before the expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the governor until a successor is elected and qualified,” remains in force.</p> <p>2. The death of a person elected to an office before he qualifies does not create a vacancy where the constitution provides that an incumbent in an office shall hold for his term and until the election and qualification of a successor.</p> <p>3. Where, by the provisions of article XVII of the constitution, the term of an officer in office at the adoption of said article is extended until a successor is elected and qualified, the period between the expiration of his original term and the election and qualification of his successor is as much a part of the incumbent’s term of office as the fixed statutory period.</p> <p>4. The capacity conferred upon an elective officer by said article to serve until a successor is elected and qualified attaches to and may be enjoyed by one appointed to succeed where the elected officer has resigned. And where, after the election of a judge of the circuit court the person so elected, prior t