Etter, In re.

In pursuance of the authority given by this act, Grace E. Etter was, on January 14, 1913, appointed official court stenographer by the court of common pleas of Holmes county.

Was her appointment legally made? And if so, what is the duration of her term? An answer to these questions will, in our opinion, determine this controversy.

On January 14, 1913, Miss Etter, who had been the official court stenographer of Holmes county for a number of years, resigned her position to take effect immediately, which resignation was on the same day duly accepted by the court. The resignation of Miss Etter having been accepted, the position became vacant. The court thereupon undertook to fill the position by making a new appointment to it. This it did on the same day by appointing Miss Etter at a salary of $600 a year, whereas she had previously received $500 a year for her services.

Can there be any reasonable doubt as to the court's authority in the premises?

That the court had the power to make an appointment to the position, it being vacant, can not possibly be questioned.

Section 1546 G. C. amply clothes the court with such power. That the court had the power to appoint Miss Etter seems equally certain. From anything that appears in the record, she was not disqualified to hold the position. That she had previously held it at a smaller salary and had resigned, probably because she was dissatisfied with the salary which she was receiving, did not disqualify her. In contemplation of law her right to the position and its emoluments was equal to that of any other person; and the court had full power to appoint her to the position. In our opinion, therefore, her appointment was legal.

Miss Etter having been legally appointed to the position, what is the duration of her term?

The appointment purports to be for a term of three years, but this fact is of no avail, as the court had not the power to fix the duration of such term; that is fixed by the statute itself. The only power given the court by the statute is the power to appoint; the statute fixes the length of the term at three years

Holmes County Appeals.

from the date of the appointment and until a successor is appointed and qualified. This, therefore, must necessarily be the term for which Miss Etter was appointed, unless, as claimed, the power of the court to appoint was limited to the unexpired portion of the term from which she resigned, in which event her term under the appointment of January 14, 1913, expired June 14, last.

This contention is founded on the assumption that the legislature intended to divide time into terms so far as it related to the operation of Sec. 1546 G. C., and that the first term commenced immediately upon the first appointment being made under the statute, and that subsequent terms were reckoned accordingly. If the legislature intended that this construction should be given the act, we should think that it would have said so in the act and not have left it to the uncertainties of interpretation and construction. Moreover, the act seemingly contemplates that a person appointed in pursuance of its authority should hold the appointment for a term of three years and until a successor was appointed and qualified. Nothing is said in the act about terms or parts of terms in the sense in which these words are usually employed. It states that when the "business requires it, the court of common pleas of a county may appoint a stenographic reporter as official stenographer of such county, who shall hold the appointment for a term of three years from the date thereof and until a successor is appointed and qualified, unless removed by the court, after good cause shown, for neglect of duty, misconduct in office or incompetency."

The word "term" is obviously used in the statute in the sense of "period of time," and doubtless it was the intention of the legislature to empower the court, when in its opinion the business of the court required it, and the position was vacant, to make a contract on behalf of the county with a stenographic reporter to serve as official stenographer of such court for the period of three years and for the convenience of the court, until a successor was appointed and qualified. The duration of such appointment would not be affected by any previous appoint

Etter, In re.

ment under the act or be determined by it, but would continue for the time prescribed by the act.

We conclude, therefore, that by virtue of her appointment as stated, Miss Etter holds a contract with Holmes county as official court stenographer for the period of three years from the date of her appointment and until a successor to her is appointed and qualified.

But it is said that the court, within the term, to wit, on April 5, 1913, made an order modifying the order of appointment of January 14, 1913, so that Miss Etter's term would expire on June 14, 1913.

As we have pointed out, the statute fixes the duration of the term and not the court. The legislature did not see fit to give to the court the power to fix and determine the length of the term. It simply designated the court of common pleas as the appointing power, as the agent of the county, in making a contract with a stenographic reporter as the official stenographer of such court. So it makes no difference whether the order of April 5, 1913, modifying the order of appointment was made within the term or not. It could not legally have been made at any time after Miss Etter had accepted the appointment by qualifying in conformity with the statute.

The question resolves itself wholly into one of power in the court of common pleas to make the appointment. There being a vacancy in the position, and the business of the court requiring it, the court is clothed with power to make the appointment, and, in the absence of fraud, having made the appointment, its action is final and conclusive upon everybody, at least so soon as the person so appointed qualifies. A contract is then made between the county and the person so appointed which the court is powerless to destroy or impair by order made in term or otherwise.

It is said further in this action that the court of common pleas had control over its own orders and judgments during the term at which they are rendered, and the power to vacate or modify them in its discretion.

This is true as a general proposition within certain limita

Holmes County Appeals

tions, but it is equally true that the court may not, with impunity, commit harakiri upon the records of the court in term or at any other time. The court, we think, may not properly upon its own motion and without cause, unreasonably and unnecessarily disturb its orders and judgments even in term. Besides, the control of the court over its own orders and judgments in term is limited to orders and judgments rendered in judicial proceedings, and does not extend to ministerial acts performed by it as an agent of the state or county in making contracts on their behalf. The court having acted under such authority, its power is exhausted, and in the absence of fraud, its action is final.

The appointment of an official stenographer having been legally made, the person holding such appointment can not be removed except for neglect of duty, misconduct in office or incompetency. Before such person can be removed the existence of one or the other of these grounds must be established. We will not, however, consume time in a discussion of this matter, as it is not claimed that the order of April 5, was made in pursuance of the power of the court to remove, nor under the record could any such claim be made with any reasonable expectation that it would receive favorable consideration at our hands. In our opinion the judgment of the court of common pleas should be and is affirmed.

Voorhees and Shields, JJ., concur.

WILLS.

[Hamilton (1st) Court of Appeals, June 3, 1914.]

Swing, Jones and Jones, JJ.

ELIZABETH C. HAMMEL V. WILLIAM ROBERT GOULD.

1. Devise During Widowhood and Additional Term of Minority of Youngest Child.

A devise to a widow to "have and hold

so long as she

continue my widow, and until my youngest child shall be of age," gives her the estate during the term of her widowhood and an additional term, if she marries during the minority of such youngest child.

Etter, In re.

2. Conflict between Disposition Clause and Succeeding Item of WIII. Under a will devising in one item an estate to the widow to "have and hold * so long as she continue my widow, and until my youngest child shall be of age" and in another item providing for distribution according to law in intestacy "when the youngest child arrives at full age, or in case my wife should again marry," the first item is the dispositive clause and the second item, though conflicting, should be reconciled therewith by reading "and" for "or" thereby postponing partition rights in the estate.

S. B. Hammel, for plaintiff.

F. H. Reppert and J. J. Acomb, for defendant.

JONES, E. H., J.

Plaintiff filed her petition for partition of the property described therein. Her right to partition depends upon a construction of the will of Richard Gould, deceased. Richard Gould died in the year 1879 leaving a widow and six children, several of whom were minors. At the time of his death he was seized in fee of the property of which partition is sought. The widow still lives and has never remarried. Five of the children are living and are of full age.

Items I and II of the will to be construed are as follows: "I. I hereby give, and bequeath to my beloved wife, Martha Gould, all the property, both real and personal, of which I die possessed, she to pay all just debts that I owe, and have and hold the property hereby bequeathed, so long as she continue my widow, and until my youngest child shall be of age.

"II. When the youngest child arrives at full age, or in case my wife Martha should again marry, it is my will that my real estate and whatsoever personal property may be remaining be divided between my wife and children, according to the law for the distribution of estates where no wills have been made."

These two items of the will are conflicting. Item I gives to the widow Martha Gould the right to "have and hold the property hereby bequeathed, so long as she continues my widow, and until the youngest child shall be of age." This item standing alone is clear and gives to the widow a life estate in the property provided she does not remarry.

The verbs "have" and "hold" as used in this clause are