Superior Court of Cincinnati.

the police department of Dayton, which under the present management is of itself a guaranty of peace and good order.

The burden of proof is on the plaintiff to make out a case for a temporary restraining order as prayed for. Measuring the proof from a numerical standpoint, we find that it stands twelve to twenty-four against her. Measuring it according to the weight, we find that it largely preponderates in favor of the defendants. We believe Mrs. Fisher to be an honest, well-meaning woman, who thoroughly believes that it is the duty of the civil courts to strictly enforce the divine injunction, "Remember the Sabbath day to keep it Holy." We further believe that she is not acting altogether in her own interest, but in a measure for the benefit of the public. We believe that the keeping open of the park on Sundays is such a shock to her moral sensibilities and such a departure from her ideas of right and wrong, that it has largely controlled her action in this matter. But we by no means intend to say or claim that she has not told the truth or that she has not suffered physical discomfort in the use and occupancy of her property at times. But it is fundamental that she can not vindicate other's rights by process in her own name nor employ civil process to punish wrongs to the public. As is well settled in the case of Bloom v. Richards, 2 O. S., 387, 388, in the opinion delivered by Judge Thurman, under our form of government no code of morals or rule of religious conduct is recognized as a part of the organic law of the land. If we are not properly protected in the enjoyment of our personal and property rights under existing laws, appeal must be made to the legislative and not to the judicial branch of our government. It is the duty of the courts to administer the law as they find it and not to make it.

An order may be taken in this case, restraining defendants from operating said amusements between the hours of ten P. M. and eight A. M., to remain in force until the further order of the court.

Young & Young, Van Skaik & McIlhenny and Frank W. Howell, for plaintiff.

Gunckel, Rowe & Shuey; McMahon & McMahon and John M. Sprigg, for defendants.

ELECTIONS-COUNTY CLERK.

[Superior Court of Cincinnati, Special Term, October 21,1897.]

GEO. B. HARTE V. AUGUST H. BODE, ET AL., BOARD OF ELECTIONS OF CINCINNATI.

STATEMENT OF CASE.

At the November election of 1894, George Hobson was elected clerk of the common fleas court of Hamilton county, for a term of three years beginning on the first Monday of August, 1895. In May 1897 he resigned, and the county commissioners appointed E. R. Monfort, as clerk pro tempore. Subsequently the different political parties made nominations for the election of a clerk at the November election of 1897; and one of the nominees made application to the board of elections for Hamilton county, to have his name printed on the official ballot twice, viz. : once as a candidate for the unexpired term of George Hobson, ending on the first Monday of August, 1898, and again as a candidate for the regular term of three years, beginning on the first Monday of August, 1898. Held

Harte v. Bode et al., Board of Elections.

1. NO VACANCY FOR THE UNEXPIRED Term Existed.

That by virtue of the appointment by the county commissioners, Monfort held the office of clerk until the first Monday of August, 1898; and, therefore, there was no unexpired term to be filled,

2. PERSON ELECTED AT NOVEMBER ELECTION WOULD SERVE FOR THE THREE YEARS' TERM.

That the person elected at the November election would be elected for the full term of three years beginning on the first Monday of August, 1898.

3. NAME OF NOMINEE CANNOT APPEAR UPON MORE THAN ONE Official Ballot. That the board of elections properly refused to print the name of any nominee for such office more than once upon the official ballot.

SMITH, J.

The questions in this case arise by a demurrer to the petition which sets out fully the facts of the case in regard to which there appears to be no serious dispute between the parties.

Briefly stated, the facts are as follows:

At the November election of 1894, George Hobson was elected clerk of the common pleas court, an office popularly known as "County Clerk." By the law then in force, and which is in force today, he entered upon the discharge of the duties of the office on the first Monday of August of the succeeding year, viz.: 1895. Had he served out his term it would have ended on the first Monday of August, 1898. Instead, however, of serving out the term for which he had been elected he resigned in May, 1897, and the county commissioners, by virtue of sec. 1243, Rev. Stat., of Ohio, appointed E. R. Monfort as clerk pro tempore, who gave bond, took the oath of office, and entered upon the discharge of the duties of the same, and is still acting as such clerk.

For the November election of this year (1897) the different political parties have made nominations for the office of the clerk of the common pleas court.

The plaintiff is the nominee of the Democratic party for such position, and has made application to the board of elections of this city to have his name appear upon the ballot twice- once as the nominee of such party to fill the unexpired term of George Hobson, which he contends extends to the first Monday in August, 1898, and again as the nominee of such party for the full term of three years, beginning with the first Monday of August, 1898.

No question is raised here at this time as to the regularity of his nomination for these two positions, if there are two positions to be filled; but the board of elections disputes his construction of the law by which he contends there are two positions to be filled, and on the contrary insists that there is but one position to be filled, viz.: the regular term for three years, beginning on the first Monday in August, 1898, and therefore that his name should appear but once on the official ballot.

When the application was first made by the plaintiff to the board, as it was in doubt as to the correctness of the plaintiff's contention, it referred the matter to the secretary of state, the latter official having rendered an opinion adverse to the plaintiff, the board has followed such opinion and its acts are in accordance therewith.

The plaintiff, therefore, has brought this action, asking for a mandatory injunction to compel the defendants to print his name as requested. In the case of a few officers, the constitution of the state specifically provides the manner in which vacancies shall be filled, but in the case of all other officers the manner of filling vacancies by art. II, sec. 27, of the

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constitution is referred to the general assembly. This latter provision of the constitution is as follows:

"The election and appointment of all officers and the filling of all vacancies not otherwise provided for by this constitution or the constitu tion of the United States shall be made in such manner as directed by law." The office of the clerk of the common pleas court is created and the length of the term fixed by the constitution in art. 4, sec. 16, in the following language:

"There shall be elected in each county by the electors thereof one clerk of the court of common pleas, who shall hold his office for three years and until his successor shall be elected and qualified. He shall, by virtue of his office, be clerk of all other courts of record therein."

It will be observed that this section fixes no particular time for the commencement of the term of office of the clerk and prescribes no manner in which a vacancy therein is to be filled, and, as no other section of the constitution makes special provision therefor, the entire matter is one for legislation by the general assembly, and to that effect are the decisions of the Supreme Court in the case of State v. Neibling, 6 O. S., 40, and State ex rel. v. McCracken, 5 O. S., 123.

The statutes directly involved are the following:

"Section 1240. There shall be elected triennially in each county. a clerk of the court of common pleas, who shall hold his office three years, beginning the first Monday of August next after his election.

"Section 1243. When a vacancy in the office of clerk occurs the county commissioners shall appoint a clerk pro tempore, who shall give bond and take the oath of office as prescribed for the clerk-elect, and if the commissioners are not in session on the occurring of such vacancy, the county auditor shall forthwith give written notice to them of the fact and they shall thereupon meet and make the appointment; but, if the commissioners fail to appoint for ten days after they severally have had notice of the vacancy, the appointment shall be made by the county auditor.

"Section 11. When an elective office becomes vacant and is filled by appointment, such appointee shall hold the office till his successor is elected and qualified, and such successor shall be elected at the first proper election that is held more than thirty days after the occurrence of the vacancy; but this section shall not be construed to postpone the time for such election beyond that at which it would have been held. had no such vacancy occurred, nor to affect the official term, or the time for the commencement of the same of any one elected to such office before the occurrence of such vacancy."

The contention of plaintiff is that by virtue of sec. 11, when a vacancy occurs in this office and an appointment has been made to fill it, if such vacancy occurs more than thirty days preceding the next proper election, there must be an election at such proper election, to fill the unexpired term; and, as the time for this election and for the election for the regular term of three years is, in this instance, at the same election, there must be an election to fill the unexpired term, and, also, to fill the regular term.

The contention is important for the reason that the regular term does not begin until August, 1898, and if the plaintiff's construction is correct, and he should be elected to fill the unexpired term, he would have the right, immediately after the election, upon giving bond and taking oath, to enter upon and discharge the duties of the office.

Harte v. Bode et al., Board of Elections.

Whereas, if the defendant's construction is correct, the present incumbent, Monfort, by virtue of his appointment, is entitled to remain in the office until August, 1898.

The Supreme Court has decided that "the first proper election" referred to in sec. 11 is the "first regular occurrence of that election at which the officer, whose successor is to be chosen, was elected, or, in other words, the first election occurring appropriate to that particular office under the law regulating elections to that office." State v. Barbee, 45 O. S., 1349.

There is no dispute, therefore, that the time has arrived for the election provided for in sec. 11.

Is the election under this section for an unexpired term?

It is a significant circumstance, not in itself conclusive, but nevertheless militating against the claim of the plaintiff, that if such election is for the unexpired term, the section does not so declare in express language, for both in the constitution and the statutes, we have frequent instances of explicit declarations that elections shall be held to fill the unexpired term of an officer, and if such had been the intention of the legislature by the enactment of sec. 11, it is strange that it did not so declare, instead of so wording the section as never to refer in express language to unexpired terms. A simple declaration that the election was for the unexpired term would have been the most natural manner of expressing the idea, would have been the mode of expression adopted by the constitution and the statute, and would have freed the section from all ambiguity.

The following are instances in the constitution and statutes of an explicit declaration that an election is to be for an unexpired term.

In art. IV, sec. 13, of the constitution, it is declared that :

"In case the office of any judge shall become 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, and such successor shall be elected for the unexpired term at the first annual election that occurs more than thirty days after the vacancy shall have happened."

And in art. II, sec. 11, it it declared that:

"All vacancies which may happen in either house shall for the unexpired term be filled by election as shall be directed by law."

In sec. 841, Rev. Stat., it is provided that:

"When it becomes necessary to elect a commissioner to fill a vacancy occasioned by death, resignation or removal, the person elected shall hold his office for the unexpired term for which his predecessor was elected." And in sec. 1724, Rev. Stat., it is provided that:

"When a vacancy happens in the members of council or board of aldermen a special election shall be held within twenty days thereafter, unless the annual municipal election occurs within sixty days after the vacancy, and the mayor shall designate the time and place or places of such election, but at least ten days' public notice of it shall be given; provided, that in a village the mayor by and with the consent of council shall have power to fill vacancies in the board from the electors of the corporation, to serve till the next annual municipal election, when a person shall be elected to serve for the unexpired term." And in sec. 1713, Rev. Stat., it is provided that:

"Unless otherwise provided in this title when an office filled by the electors of the corporation becomes vacant, the mayor shall, with the

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advice and consent of the council, fill the vacancy until the next annual municipal election, when a successor shall be elected for any unexpired term, unless the vacancy occurs within ten days of such election, in which event the appointment shall be for the unexpired term."

In addition to the class of cases in illustration of which I have cited sections of the constitution and the statutes, there appears to be another class, viz.: where the appointment is itself for the unexpired term. An illustration of this class is sec. 1208, Rev. Stat., in which it is declared that:

"When the office of sheriff becomes vacant the county commissioners shall appoint some suitable person to fill the vacancy, who shall give bond and take the oath of office prescribed for the sheriff, and hold his office for and during the unexpired term of the sheriff whose place he fills."

It is possible that a more extended examination of the statutes than I have been able to make since yesterday, when the case was argued and submitted to me, would disclose instances in which the election or appointment would not be declared in express terms to be for the unexpired term, because, from the context in which the vacancy is referred to and the nature of the office, such an implication necessarily follows. Whether there is such a class of cases I do not express an opinion.

But the circumstance of the absence of any reference in sec. 11, Rev. Stat., to an unexpired term is not the only circumstance that militates against the construction of plaintiff, that the election therein provided for is for an unexpired term.

For a period of nearly thirty years prior to the revision of the statutes of the state in 1880, there is no question but that the law was as it is now contended by the defendants to be an election for the full term of three years. Thus, by the act of January 31, 1852, it was provided that:

"In case a vacancy shall happen in the office of clerk in any county in this state, by death, resignation or otherwise, the commissioners of said county are hereby authorized to appoint a clerk pro tempore, who shall hold his office until the October election next ensuing such appointment and until his successor shall be elected and qualified; provided, said appointment shall have been made at least fifteen days before the October election. Otherwise said clerk so appointed shall continue in office under and by virtue of his said appointment until the October election to be held in the year next thereafter, and until his successor has been elected and qualified."

In construing this act the Supreme Court of the state held that, in case of a vacancy in the office of clerk of the court of common pleas, the successor elected by the electors of the county was elected for the full term of three years, which would commence from and after the day of his election, and that the election was not to fill an unexpired term. State v. Neibling, 6 O. S., 40.

In 1872 (69 O. L., 97), the law was amended so that the newly elected clerk did not enter upon his office until the second Monday of February succeeding his election, instead of immediately after the election, and as the term of clerk was fixed to begin on the second Monday of February, the law from 1872 to 1880 was as now contended by plaintiff, except that the election was in October instead of November, and the term commenced in February instead of August.

The law of 1872 read as follows :