(Vacancy in office.)

said, "we consider it perfectly clear, that the vacancies contemplated necessarily presupposed that the offices had been once filled, and that the provision for filling those vacancies was solely designed to embrace the unexpired portion of the term that might remain after the happening of such vacancy." And see Johnston . Wilson, 2 N. H. 202. This question has been the subject of discussion in the senate of the United States, and the doctrine of Ex parte Dodd, is that held by them. In the year 1814, President Madison granted commissions to ministers to negotiate the treaty of Ghent, in the recess of the senate. The principle acted upon in this case, however, was not acquiesced in, but protested against, by the senate, at their succeeding session; and on a subsequent occasion (20th April 1822), during the pendency of the bill for an appropriation to defray the expenses of missions to the South American states, it seemed distinctly understood to be the sense of the senate, that it is only in offices that become vacant during the recess, the president is authorized to exercise the right of appointing to office, and that, in original vacancies, where there has not been an incumbent of the office, such a power, under the constitution, does not attach to the executive. And in a report of a committee of the senate, made on the 25th April 1822, it is declared, that the words, "all vacancies that may happen during the recess of the senate," mean vacancies occurring from death, resignation, promotion or removal. Sergeant Const. Law 373. The same point was decided by Caldwell, J., in the circuit court of the United States for the eastern district of Arkansas, at the April term 1868, in the case of Schenck v. Peay; and by the supreme court of Illinois, in People v. Forquer, Breese 68. And see Story Const. § 1559; contrà, Clarke v. Irwin, 5 Nevada 112.

679

FOSTER v. SCARFF.

In the Supreme Court of Ohio.

DECEMBER TERM 1864.

(REPORTED 15 OHIO STATE Reports 532.)

[Elections to fill vacancies.]

If the sheriff neglect to give notice to the electors, prior to the day of election, of a vacancy in a particular office, which is to be filled by them, in consequence whereof the great body of the voters have no notice of the vacancy, but a small number of them cast their votes for a single candidate and no votes are cast for any other, such election is irregular and invalid.

Error to the court of Common Pleas of Logan county. The facts are stated in the opinion of the court.

Thurman, Shelby and Kernan, for the plaintiff in error. Stanton and Allison, for the defendant in error.

BRINKERHOFF, C. J., delivered the opinion of the court. On the second Tuesday of October 1860, Anthony Casad was properly elected probate judge of Logan county, for the full term of three years, and was duly qualified and commissioned; having held the office until the 11th October 1861, less than thirty days prior to the time of the next annual election for that year, he died, leaving a vacancy in the office, which, on the next day, was filled by the governor, by the appointment of Samuel B. Taylor to the office, until a successor should be elected and qualified. On the second Tuesday of October 1862, Taylor was regularly elected to the office; but the governor, instead of commissioning him for the unexpired term of Casad, as he ought to have done, commissioned him for the full term of three years; see State v. Taylor, 15 Ohio St. R. 137. This was done, doubtless, under a mistaken.

(Elections to El vacancies.)

apprehension of the provisions of the constitution on the subject, and the same mistake seems to have been and to Lave continued general in the minds of the electors and officials of that county.

Accordingly, in the fall of 1863, when the general election of that year was approaching, at which an election of probate judge, for the full term of three years, to succeed the full term to which Casad had been elected, and then temporarily filled by Taylor, was, by law, required to be holden, the sheriff of the county published, in conformity to law, his proclamation to the electors of the county, for the election, at the ensuing second Tuesday of October, of a governor, lieutenant-governor, judge of the supreme court, auditor of state, treasurer of state, member of the board of public works, senator, member of the house of representatives, county treasurer, surveyor, infirmary directors and county commissioner, but he omitted to make any mention therein of the election of a county judge. Antagonistic nominations of candidates for all the offices named in the sheriff's proclamation, were openly made and published, in good time before the election, by the different parties, but none was made or published for the office of probate judge; and the great mass of the electors of the county, of every grade of intelligence, remained in actual ignorance of the fact, that the office was being balloted for, and that a probate judge ought, under the law, to be chosen at that election, until about three o'clock in the afternoon of the day of election, when it became known in some, perhaps, in most of the townships, that the plaintiff in error, Sidney B. Foster, had been and was being voted for as a candidate for the office of probate judge.

The whole number of votes in the county cast at that election, was 4339; 913 votes, less than one-fourth of the whole number, were cast for the plaintiff in error, for the office of probate judge; and no other votes were cast for that office. In four out of seventeen townships in all, no

(Elections to fill vacancies.)

votes were cast for probate judge; and in one other township, only two votes. Foster was, by the county canvassers, declared to be duly elected; and the defendant in error, William D. Scarff, an elector of the county, having proceeded in the court of common pleas to contest the validity of the election of Foster, according to the statute, that court, upon the state of facts substantially as above given, adjudged the election of Foster to be invalid; and the facts and evidence having been brought upon the record, by bill of exceptions, this petition in error is prosecuted for the reversal of that judgment. The question is, whether the court below erred in holding the election of Foster to be invalid.

The term "election" implies a choice by an electoral body, at the time, and substantially in the manner and with the safeguards, provided by law, of a qualified person to an office. A vacancy may exist, or may be about to occur, in an office, which vacancy a given electoral body may have the unquestionable right to fill by election; and that electoral body may manifest its choice in a manner which leaves no doubt of the fact of choice, but by means unknown to our laws, as, by a vivâ voce vote, or by a vote at times and places not recognised by law; and yet no one would contend for the validity of such an election. The act of choice must be made, the election must be conducted, as prescribed by law, and under the safeguards which the law affords; without the existence of these, at least, in substance, however unmistakable the fact of choice, there is no election in law; the act of election derives all its force and validity from its substantial conformity to the constitution and laws. Now, among the material provisions of our constitution and laws, in respect to elections, and not the least important among them, are the safeguards which they prescribe, by means of notice, against surprise upon the electoral body.

The importance of this safeguard is distinctly recognised in the constitution, where, in the 13th section of the 4th

(Elections to fill vacancies.)

article, it is provided, 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." From this, the implication is manifest, that the constitution intends that, in respect to elections to fill vacancies in the office of judge, at least thirty days' time for notice of the election shall be afforded. And the 4th section of the act of 3d May 1852, "to regulate the election of state and county officers" (3 Curwen's Stat. 1920), provides, that it shall be the duty of the sheriff, and he is hereby required, fifteen days, at least, before the holding of any special election, to give public notice, by proclamation, throughout his county, of the time of holding such elections, and the number of officers, at that time, to be chosen; one copy of which shall be posted up at each of the places where the elections are appointed to be holden, and inserted in one newspaper published in the county, if any be published therein."

If this legislation, intended to guard the elector against surprise, be complied with, every elector finds posted up, at his place of voting, an enumeration of the offices to be voted for, and is forewarned by public proclamation in the newspapers. If it be not complied with, the case before us shows, that the great body of the electors of a county may go to the polls, vote and return to their homes, in ignorance of existing or impending vacancies in office to be filled. But it is said, the law presumes that every man knows the law, or is bound by it, whether he actually knows it or not, and one man is not to be deprived of his rights, through his neighbor's ignorance of the law. No one denies these general principles; but they, like other general legal principles, are not procrustean in their application. The constitution and the legislation under it recognise