Sawyer v. State ex rel. Horr. next." The court, in view of all its provisions, and of facts that appeared by the legislative journals, held that the act spoke from April 28, 1852, and took effect from the 15th of May next thereafter, while the letter of it would have postponed it taking effect to May, 1853. If it be conceded, however, that the letter of this act is rigid and inflexible, and that it leaves no room for construction, there is another and controlling view which, in the opinion of each member of the conrt, determines its construction. As we have already observed, the act purports to be general. There is nothing to indicate, in the slightest degree, that it was to be a special enactment, or to provide for a special election, except that the first Tuesday of November is named as the day of the election of the judges to fill the offices created, or intended to be created, by it. Six years in every seven the day named in the act would answer to the call of the general act fixing the day for the election of circuit judges. Then there is noticed in this act the entire absence of any provision for conducting the election on the day named. No machinery is provided for, nor the slighest allusion made to the manner of conducting, the election, or making and certifying the returns and ascertaining the result. Every act providing for a special election of a judge, enacted during the last thirty years, which we have been able to find upon our statute books, contains comprehensive provisions for the conduct of such elections, making returns thereof, and ascertaining the result, either by making the general election laws applicable thereto, or otherwise, by specific provision. Such provision is indispensable to an effective special election law. Only partial provision is made by our general election laws for conducting and declaring the result of special elections. Section 2922, of chapter 2 of title XIV, of the Revised Statutes, provides that: "Except where it is otherwise provided, all public elections shall be held and conducted according to the provisions of this chapter." This chapter (2) provides for conducting the election, making the returns thereof, and for making and transmitting the proper certificates thereof to the respective clerks of the counties. Beyond this Sawyer v. State ex rel. Horr. it is silent. There is no similar provision making the prescribed modes of opening the returns and certifying the results, the rule in "all public elections." All such provisions are found in other and subsequent chapters of Title XIV, relating to elections. Section 2994, of chapter 4, provides, among other things, for certifying returns to the clerk of the court, in the judicial election district having the largest population. This clerk makes out the necessary election certificate, etc., without which, and the commission to which it entitles the successful candidate, the election would be an idle form and incur a useless expense. These provisions, as we have said, are no part of the act before us, either by direct reference or by any general enactments. The inevitable conclusion is that if the act before us is special so far as it attempts to provide for a special election of circuit court judges, it is a vain and idle form by reason of its failure to provide any means of ascertaining and declaring the result, and must fall of its own inherent infirmity. It remains to inquire if the entire act must fall. If controlling effect is sought to be given to the fact that the language which creates the three new judgeships is that which fixes the day of election, the obvious answer is that this is not and was not intended to be an act to fix a day for holding an election. It is an act to create a new judicial circuit and three new judgeships. We find nothing in its letter so rigid or inflexible as to stand in the way of giving effect to this plain intent of the general assembly. The foregoing considerations call upon us to construe this act to be one for the creation of this new circuit, and these new judgeships, according to the unmistakable legislative intent, and that it is not necessary that we should declare that the act must wholly perish the last extremity to which judicial construction should go-because of the palpable inadvertence in attempting to provide a day of election. Recognizing as we do the existence of these new judgeships by virtue of the act before us, and discovering no reason why they should not be filled at the time appointed by the general law for the election of circuit court judges—which remains unaffected by this act-there is shown no sufficient reason why State v. Barbee. the notice of such election should not be proclaimed by the sheriff, the judgment below, ordering him to issue such proclamation, is Affirmed. STATE v. BARBEE. Act of February 24, 1868-Election-Time to fill vacancy in judgeship. 1. The act of February 24, 1868 (65 Ohio L. 11), authorizing the election of one additional judge of the court of common pleas, in the third subdivision of the fifth judicial district, provides that "the first election for said additional judge shall be held on the first Monday in April, 1868, and his term of office shall commence on the second Monday in May thereafter." It further provides, "that it shall be the duty of the sheriff in each county in said subdivision, at least fifteen days prior to the first Monday of April hereafter, in each year, when an election for such additional judge is to be held, to give notice, by proclamation, of the time and place of holding such election," and that, "any vacancy that may occur in the office of such additional judge by death, resignation or otherwise, shall be filled as in other cases of vacancy in the office of judge of said court." Under the provisions of the constitution, a vacancy in the office of any judge is to 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 by statute it is provided that such "successor shall be elected at the first proper election, that is held more than thirty days after the occurrence of the vacancy." At the election held on the first Monday in April, 1868, such additional judge was duly elected; he served during his constitutional term; at the annual election held on the first Monday of April, 1873, a successor was elected, and at the annual elections held on the first Monday of April, 1878,and 1883, re-elected for like terms. On the 29th day of April, 1887, he resigned, and the vacancy was filled by appointment by the governor: Held, that the annual election occurring on the first Monday of April, 1888, is the proper one for the election of a successor of such judge for the unexpired term. 2. Section 2978 of the Revised Statutes, as amended March 24, 1886 (83 Ohio L. 35), providing that allgeneral elections for judge of the court of common pleas shall be held on the first Tuesday after the first Monday of November, does not apply to elections for filling vacancies in the office of the additional judge authorized by the act of February 24, 1868, nor does it repeal or otherwise affect that act. (Decided November 1, 1887.) State v. Barbee. MANDAMUS. On the 30th of September, 1887, the relator filed his petition in this court alleging, in substance, that he is an elector, and the defendant is sheriff, of Franklin county; that the act of February 24th, 1868 (65 Ohio L. 11), authorized the election of an additional judge of the court of common pleas in the third subdivision of the fifth judicial district, comprising the counties of Franklin, Madison and Pickaway, under which, at the election held on the first Monday in April, 1868, such additional judge was duly elected for the term of five years from the second Monday in May thereafter; and at the election held on the first Monday in April, 1873, Hon. E. F. Bingham was elected his successor, and at the election held on the first Monday in April, 1878, he was re-elected, and again at the annual election held on the first Monday in April, 1883, for like terms of five years; that he held said office until the 29th day of April, 1887, when he resigned, and on the same day the governor appointed Hon. David F. Pugh, to fill the vacancy. The defendant, on the 30th day of September, 1887, gave notice by proclamation of the time and places of holding the ensuing general election for state and county officers, on the first Tuesday after the first Monday in November, but he refuses to give notice by proclamation, to the electors of Franklin county to vote for a judge to fill such vacancy, or include that office in his proclamation as one to be filled, by a person to be voted for at that election; and the petition prays for a writ of mandamus commanding him to do so. The defendant answered, admitting the allegations of fact in the petition, and consents that a peremptory writ may issue without further hearing, if the court should be of the opinion that a case is made for an alternative writ. H. F. Page and Booth & Keating, for relator. J. E. Wright, J. T. Holmes, Nash & Lentz and John J. Chester, for defendant. WILLIAMS, J. The office of the additional judge provided for by the act of February 24th, 1868, having become vacaat State v. Barbee. by the resignation of the incumbent, April 29th, 1887, and the vacancy having been filled by appointment by the governor, until a successor should be elected and qualified, the question is presented, when shall such successor be elected for the unexpired term? Shall it be at the general election of the first Tuesday after the first Monday in November, 1887, or at the annual election to be held on the first Monday in April, 1888? The act creating the office (65 Ohio L. 11) provides that "the first election for said additional judge shall be held on the first Monday in April, 1868, and his term of office shall commence on the second Monday in May thereafter." It also provides, that "the sheriff in each county in said subdivision, shall, at least fifteen days prior to the first Monday in April, 1868, and at least fifteen days prior to the first Monday of April thereafter, in each year, when an election for such additional judge is to be held, give notice by proclamation of the time and place of holding such election," and "any vacancy that may occur in the office of such additional judge, by death, resignation or otherwise, shall be filled as in other cases of vacancy in the office of judge of said court." Section 11 of the Revised Statutes, relating to appointments to fill vacancies, and the election of successors in such cases, contains the following provision: "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." The question still remains, what is the proper election? In the absence of any other positive rule, the answer naturally suggested would be, that it is the first regular recurrence 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. It is claimed, however, that section 13, of article 4, of the constitution prescribes a different and positive rule on the subject. Its language is: "In case the office of any judge shall |