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Statement of the Case.

moval must be made in conformity to existing law expressly

providing for the method of such removal. 3. Under Section 12, General Code, the governor and senate may

appoint in anticipation of an official vacancy. But such vacancy must occur during the official lifetime of such appointing

authority. 4. Under the facts disclosed, there was no abandonment by the

respondent of his official tenure beginning June 17, 1915, under the appointment of May 27, 1915, nor is he estopped from claiming title thereunder.

(No. 15570 – Decided April 19, 1917.)


The relator, Alexander R. Taylor, asks for a judgment of ouster and induction. The office involved is that of state highway commissioner, to which both parties hereto claim title. On March 9, 1915, Frank B. Willis, Governor of Ohio, appointed Clinton Cowen to fill the unexpired term of one James R. Marker, which term would have expired on June 16, 1915. This appointment was confirmed by the senate. On May 27, 1915, Cowen was reappointed to the office of state highway commissioner, and a commission issued to him for a term of four years beginning June 17, 1915. This appointment, also, was confirmed by the senate on May 27, 1915. Under each of these appointments the respondent gave bond in the sum of $10,000. On August 31, 1915, Cowen was reappointed to the office of state highway commissioner for a term beginning September 4, 1915, and ending September 3, 1919. This appointment was made by Governor Willis. On September 1, 1915, Cowen gave bond under such appointment in the sum of $20,

Statement of the Case.

000. On September 7, 1915, the respondent wrote the attorney general for advice relating to the legal effect of the Cass highway law, and especially as to whether that law created a new highway department requiring officials and employes of the state highway department to be appointed thereunder. The attorney general answered in an official opinion, holding "that said bill does not create a new highway department and does not require a reappointment of all officers and employes now serving under said department, except as required by existing civil service law.”

On December 29, 1916, Governor Willis caused to be placed upon the general record in his office the following order: "It appearing that on August 31, 1915, an attempt was inadvertently made to appoint, subject to the advice and consent of the Senate, Clinton Cowen of Hamilton county, to the position of State Highway Commissioner for a supposed term of four years, ending September 3, 1919, and that no vacancy then existed in said position or has since occurred, said attempted appointment is withdrawn and a commission issued pursuant thereto is cancelled.” And upon the appointment record in his office the governor caused the following entry to be made: "Error — see general record under date of December 29th, 1916.”

On March 21, 1917, Cowen's appointment of August 31, 1915, was sent to the senate by Hon. James M. Cox, the succeeding governor, and on the same day Governor Cox appointed the relator to the office of state highway commissioner "for the unexpired term of Clinton Cowen, term ending on

Opinion, per Jones, J.

September 3, 1919," and on the above-named date the senate refused to confirm Cowen's appointment of August 31, 1915, but confirmed the appointment of the relator. The respondent under each of his appointments took the formal oath of office and commissions were duly issued to him. Under his appointment of March 21, 1917, the relator took the oath as provided by law and gave bond in the sum of $20,000.

Mr. Joseph McGhee, attorney general; Mr. Clarence D. Laylin; Mr. Frank Davis, Jr.; Mr. John F. Kramer and Mr. James I. Boulger, for relator.

Messrs. Dinsmore & Shohl, for respondent.

JONES, J. Under the conceded facts the respondent must establish his tenure under the appointment of May 27, 1915, which was for a term of four years from June 17 following. The relator contests Cowen's title to office for four reasons: First, that the Cass highway law by expressly repealing the highway laws in force at the time of Cowen's appointment on May 27, 1915, superseded the former law, and that the office was thereby abolished; second, that by virtue of the Cass highway law the state highway commissioner is subject to removal at the pleasure of the governor; third, that Cowen by his acceptance of the unconfirmed appointment of August 31, 1915, abandoned his former tenure and is now estopped from claiming otherwise; and, fourth, that an appointment by the governor may not be made in anticipation of a vacancy.

Opinion, per JONES, J.

Did the Cass highway law abolish the office of state highway commissioner?

The two earlier appointments of the responient were made under the highway laws in force at the time. (Section 1178 et seq., General Core; 102 0. L., 333.) The Cass highway law (196 0. L., 574) expressly repealed the forme highway laws and became effective by its terms on September 6, 1915. From the fact that a reappointment of Cowen was made on August 31, 1915, and that the appointee qualified under that appointment, it is conceivable that both the governor and the appointee apprehended that a new appointment should be made to conform to the provisions of the Cass highway law. However, it is manifest that after the rendition of opinion by the attorney general, in answer to Cowen's letter of September 7, 1915, to the effect that a reappointment was not required under the Cass highway law, the appointing power considered his appointment of August 31, 1915, as ineffectual and void, since the record discloses that he caused an entry to be made revoking that appointment. While the Cass highway law, which is in effect a codification of the highway laws of the state, changes the former law in many respects, there is substantially no change with reference to the appointment, term, salary and duties of the state highway commissioner. With reference to the latter the reenacted statute is substantially in haec verba as it existed prior thereto. While the Cass highway law expressly repealed the former highway laws it neither in terms abolished the

Opinion, per JONES, J.

office in question nor provided for a supersession of the duties thereby imposed.

The construction placed upon the Cass highway law by the relator would be tantamount to the abolishment of the officer, leaving the office intact. Had the legislature in passing the Cass highway law been content to rest upon the repeal of the former law, undoubtedly the office would have been abolished; but, when, although expressly repealing the existing statute, it at the same time reenacted the former sections of the repealed law relating to the state highway department and to the state highway commissioner, and continued the latter in force, with the same title, tenure and salary, and with substantially the same functions attached to the office as it theretofore possessed, expressed in substantially the same identical terms, it thereby neutralized the repeal and continued the office in force. (1 Lewis' Sutherland on Statutory Construction, 2 ed., Section 238.) In the construction of legislation of this character the legal principle has become well established that when the amendatory or reenacted law substantially reenacts the existing law, the latter is held to be in effect continuous and undisturbed, and in contemplation of law the amendatory measure is not a repeal but merely a reaffirmance of the former law. In re Allen, 91 Ohio St., 315, and In re Hesse, 93 Ohio St., 230.

The question is, What was the legislative intent? “To abolish an office the intention of the competent authority to abolish such office must be clear.” 29 Cyc., 1368, and authorities cited.

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