Opinion
No. 26364
Decided June 23, 1937.
County engineer — Neither candidate licensed engineer and registered surveyor — Section 2783, General Code — Ineligible candidate receiving higher vote not legally elected — Defeated incumbent, although eligible as candidate, not elected but holds over — Section 8, General Code — Title to office not invested by commission, qualifying, possession and performing duties, when.
1. R and C were both candidates for the office of county engineer at the November, 1936, general election. R received the higher number of votes. Neither R nor C was licensed to practice as a professional engineer and registered surveyor in Ohio. C was the incumbent county engineer serving in that office "immediately prior to" the 1936 election. Held: R, by reason of being ineligible under Section 2783, was not legally elected county engineer. Although eligible as a candidate by reason of having served as county engineer "immediately prior to" the election, C was not elected county engineer (the third paragraph of the syllabus of State, ex rel. Haff, v. Pask, 126 Ohio St. 633, approved and followed). Under such circumstances, where no one is legally elected to the office of county engineer, the incumbent in that office will hold over under Section 8, General Code, until his successor is elected and qualified.
2. Where a candidate for county engineer, ineligible to election under Section 2783, General Code, receives the highest number of votes, receives a commission, qualifies, takes possession, enters upon and performs the duties of the office, such facts alone will not invest him with the title to the office where the right thereto does not exist.
IN QUO WARRANTO.
This is an original action in quo warranto. The relator, Rufus Cox, filed a petition wherein he prays that respondent, Charles W. Riffle, be required to answer by what right he is holding the office of County Engineer of Adams county. An agreed statement of facts was filed which reads as follows:
"It is agreed by the parties to this action, and by their respective counsel that the following statements are true, and that this may be considered by the court as an agreed statement of facts, to wit:
"In 1928 the defendant [respondent], Charles W. Riffle, in the ordinary and usual manner was nominated and elected surveyor of Adams county, Ohio, and served for a period of four years, and was duly commissioned according to law.
"In 1932 one Frankie Newman was duly elected, in the usual manner, to serve as County Surveyor and commissioned for a term of four years, as provided by law. On the 10th day of July, 1934, said Frankie Newman died, and the plaintiff [relator], Rufus Cox, was appointed and commissioned, in the usual legal manner, 'to fill the unexpired term of Frankie Newman and until his successor was duly elected and qualified,' his commission under said appointment being dated August 2, 1934.
"The plaintiff [relator], Rufus Cox, became a candidate at the November election in 1934 for the unexpired term, was elected and commissioned for the 'unexpired term ending the first Monday in January, 1937,' said commission being dated November 28, 1934, and the said Rufus Cox served unmolested in that capacity until the first Monday of January, 1937.
"It is further admitted that the said Charles W. Riffle and Rufus Cox, in 1936, both, became candidates of their respective parties for the office of County Engineer of Adams county, Ohio, and that each was nominated for said office at the primary election of 1936, and the name of each of said candidates was placed on the ballot before election. At the regular election that was held in November, 1936, the defendant [respondent], Charles W. Riffle, received more votes than the plaintiff [relator], Rufus Cox, and the said Charles W. Riffle was certified by the Board of Deputy State Surveyors [Supervisors] and Inspectors of Elections to the Secretary of State, as the successful candidate, and was commissioned by the Secretary of State and Governor of Ohio. Said Charles W. Riffle filed his bond as County Engineer of Adams county, Ohio, in the usual manner, and according to law, with The American Surety Company as surety thereon. Said bond was approved by the County Commissioners, and the said Charles W. Riffle took the oath of office, entered the office and has served in said capacity since January 4, 1937. The said Rufus Cox, presented his bond as County Engineer on the 4th day of January, 1937, to the County Commissioners of Adams county, Ohio, with The American Surety Company as surety thereon, and approval of said bond has been signed by one of the County Commissioners of Adams county, Ohio, but not by the other two commissioners. The said Rufus Cox has presented himself as such County Engineer, but the County Commissioners have refused to recognize him as the County Engineer, and has paid the salary of the office since the 4th day of January, 1937, to the defendant [respondent], Charles W. Riffle, but the said Rufus Cox has never surrendered the keys to the office to the said Charles W. Riffle, or anyone else.
"It is further agreed that neither the plaintiff [relator], Rufus Cox, nor the defendant [respondent], Charles W. Riffle, is a registered professional engineer or registered surveyor, licensed to practice in the state of Ohio, and that neither of said parties has been registered as a professional engineer or surveyor, licensed to practice in the state of Ohio according to the terms of Section 2783 of the General Code of Ohio."
Messrs. Young Barnes, for relator.
Mr. C.S. DeMint, for respondent.
The question for determination is whether relator or respondent is entitled to the office of County Engineer of Adams county. The relator, as the incumbent of the office prior to January 4, 1937, claims the right to hold over and to continue in the office until a successor is legally elected and qualified. The respondent maintains that he has full right to continue in the office by virtue of having received the higher number of votes at the November election in 1936, his subsequent certification by the Board of Elections to the Secretary of State as the successful candidate, the receiving of his commission from the Governor, his qualification by giving bond and taking the oath of office, his entering upon the duties of the office of the 4th day of January, 1937, and his serving therein ever since.
The statute concerned in this matter is Section 2783, General Code, which reads in part as follows: "* * * In all counties no person shall be eligible as a candidate for the office of county engineer or be elected or appointed thereto, except a registered professional engineer and registered surveyor licensed to practice in the state of Ohio, or a person who shall have previously served as county engineer immediately prior to his election." This statute became effective in its present form February 3, 1936. In 1935 the title of the office was changed from "county surveyor" to county engineer."
Although both were candidates, neither the relator nor the respondent was legally elected County Engineer of Adams county at the November election in 1936. The respondent received the higher number of votes but he was ineligible for election, not only by reason of not being a licensed engineer but also by reason of not having "served as county engineer immediately prior to his election." The fact that he had served as county surveyor from 1929 to 1933 did not qualify him as a candidate under the statute. Therefore, he was not legally elected and had no more right to the office than any other citizen in Adams county. The relator, although not a licensed engineer, was eligible to be a candidate for the reason that he "previously served as county engineer immediately prior to" the election. But the relator was not elected in November, 1936, for the reason that when a candidate receiving the highest number of votes is ineligible to election, the candidate receiving the next higher number of votes for the same office is not elected. State, ex rel. Haff, v. Pask, 126 Ohio St. 633, 186 N.E. 809.
The respondent, not having been elected, was not in a position to qualify. While it was the duty of the board of elections to certify the returns to the Secretary of State, such action could not bestow a title to the office where right thereto did not exist. "A certificate of election is not conclusive and does not carry with it any permanent right to the office in question." 22 Ruling Case Law, 436. See also Prince v. Skillin, 71 Me. 361, 36 Am. Rep., 325. Likewise the issuance of the commission by the Governor, the giving of bond, taking possession of the office and performing the duties thereof — all these circumstances do not invest a person with title to an office where the right thereto does not exist. As was said in State, ex rel. Kopp, v. Blackburn, ante, 421, on page 428, "Title to the office does not depend upon occupancy but rather occupancy of the office depends upon the title or right to hold the office." Since there was no one legally elected to the office of County Engineer of Adams county at the November election in 1936, the incumbent of that office immediately prior to January 4, 1937, would continue to hold such office under Section 8, General Code, which reads as follows: "A person holding an office of public trust shall continue therein until his successor is elected or appointed and qualified, unless otherwise provided in the Constitution or laws."
As already noted, in the instant case there was no successor to the relator, as incumbent, elected and qualified. Neither has there been a successor to the relator appointed and qualified, nor could there be for the reason that there has been no vacancy. By the election in November, 1936, no one acquired title to the office. The situation here is not like that in State, ex rel. Kopp, v. Blackburn, supra, for the reason that there Kopp had been legally elected and qualified. He had thereby acquired title to the office and his subsequent death created a vacancy. In the instant case, neither party is contending that there was a vacancy. It follows, therefore, that the relator, Rufus Cox, who was the incumbent immediately prior to January 4, 1937, is entitled under Section 8, General Code, to hold the office of County Engineer of Adams county until his successor is elected and qualified.
Judgment of ouster will be rendered against Charles W. Riffle and an order of induction awarded in favor of Rufus Cox.
Judgment of ouster and order of induction.
WEYGANDT, C.J., JONES, MATTHIAS, DAY, ZIMMERMAN and WILLIAMS, JJ., concur.