Board of Elec. v. State, ex rel

Full title: BOARD OF ELECTIONS FOR FRANKLIN COUNTY, OHIO, ET AL. v. THE STATE, EX REL…

Court: Supreme Court of Ohio

Date published: May 9, 1934

128 Ohio St. 273 (Ohio 1934)

191 N.E. 115

Opinion

No. 24646

Decided May 9, 1934.

Constitutional law — Extension of existing terms of county recorders, unconstitutional — Section 2750-1, General Code (115 Ohio Laws, 192) — Elective character of office destroyed — Article XVII, Constitution — Statute providing quadrennial election, inseparably connected with term-extender statute — Section 2750, General Code (115 Ohio Laws, 191) — Repealing clause of unconstitutional enactment nugatory — County recorders to be elected under existing statute — Unconstitutional act revivified only by reenactment — Quadrennial election and term-extender statutes unaffected by County Home Rule Amendment — Article X, Amendment of 1933.

1. Section 2750-1, General Code (115 Ohio Laws, 192), extending the present existing terms of county recorders to the first Monday of January, 1937, is unconstitutional in that it destroys the elective character of the office of county recorder and violates Article XVII of the Constitution of Ohio.

2. Section 2750, General Code (115 Ohio Laws, 191), wherein it is provided that there shall be elected in each county at the regular election in 1936, and quadrennially thereafter, a county recorder who shall assume office on the first Monday in January next after his election and who shall hold such office for a period of four years, is so inseparably connected with Section 2750-1, General Code, that it must fall with it. ( Geiger v. Geiger, 117 Ohio St. 451, approved and followed.)

3. The repealing clause of this enactment (115 Ohio Laws, 191), wherein it is provided that "existing section 2750 of the General Code be and the same is hereby repealed," is nugatory and of no effect in law.

4. County recorders will be elected at the general election in 1934, as provided in Section 2750, General Code, prior to its attempted repeal and amendment.

5. An act of the General Assembly, which was unconstitutional at the time of enactment, can be revivified only by reenactment.

6. New Article X of the Constitution of Ohio, adopted November 7, 1933, added nothing in the way of constitutionality to Sections 2750 and 2750-1, General Code (115 Ohio Laws, pages 191 and 192).

ERROR to the Court of Appeals of Franklin county.

On September 18, 1933, William Schneider filed in the Court of Appeals of Franklin county, Ohio, his petition in mandamus against the Board of Elections of such county, in the words and figures following:

"Relator says that Ralph W. Presnell, Howard S. Wilkins, William C. Kennedy and Louis F. Miller, above named respondents, are the duly appointed, qualified and acting members of the board of elections for Franklin county, Ohio, and that Harry C. Arnold, above named respondent, is the duly appointed, qualified and acting clerk of said board of elections for Franklin county, Ohio.

"Relator says that said board of elections for Franklin county, Ohio, acting by and through its respective members, provides for all elections within said county, including primary elections, at which candidates for all public elective offices are voted for, and that among other duties imposed on said board of elections by the laws of Ohio, is that of receiving, accepting and declarations of candidacy, together with nominating petitions, and fees of any qualified elector of said county who desires to become a candidate for public elective office within said county.

"Relator says that the filing fee required to be paid to the board of elections by a candidate for public elective office at the time of filing his declaration of candidacy and nominating petitions is one-half of one per cent. of the annual salary of the office for which he becomes a candidate, in no case however to exceed fifty dollars.

"Relator says that he was on September 1, 1933, more than twenty-one years of age; that he is now, and was on said date, and for more than one year prior thereto, a legal and permanent resident of Ohio, and that he was, on said date, and had been for more than thirty days immediately prior thereto, and now is, a bona fide resident of Franklin county, Ohio, and that he was on said date, and for a long time prior thereto, and now is, a member of the political party commonly known and designated as the Republican party.

"Relator says that on the first day of September, 1933, and more than sixty days preceding August 14, 1934, he tendered to respondents above named, at Columbus, Franklin county, Ohio, for the purpose of filing the same and becoming a Republican candidate for the nomination, at the primary election to be held on August 14, 1934, for the office of county recorder of Franklin county, Ohio, his nominating petitions containing the names of one hundred and more petitioners, who are, and were at the time of the signing thereof, qualified Republican electors residing within Franklin county, Ohio, together with his declaration of candidacy, exact copies of which petitions and declaration are hereto attached marked Exhibit 'A' and made a part hereof, and the sum of twenty-three dollars ($23.00), as the fee required of a candidate for said office, which said sum is one-half (1/2) of one per centum (1%), of the annual salary paid to the recorder of Franklin county, Ohio.

"Relator says that said board of elections for Franklin county, Ohio, and said Harry C. Arnold as clerk of said board of elections, refused and still refuse to accept and file said declaration of candidacy, nominating petitions and filing fee of relator, as a candidate for the Republican nomination for the office of county recorder of Franklin county, Ohio, at the primary election of August 14, 1934, for the sole reason that Section 2750-1 of the General Code of Ohio provides that the term of office for county recorder is thereby extended to the first Monday of January, 1937, and that, therefore, there will be no nomination at the primary election on August 14, 1934, for the office of county recorder, as is set forth in the resolution of said board of elections, a copy of which said resolution is hereto attached, marked Exhibit 'B', and made a part hereof.

"Relator says that Section 2750 of the General Code of Ohio was amended by the General Assembly of Ohio on March 28, 1933, by House Bill No. 331, which was approved on April 5, 1933, by the governor of Ohio, and filed in the office of the secretary of state at Columbus, Ohio, on April 10, 1933, and that the following is a true copy of said House Bill No. 331:

" '(House Bill No. 331.) " 'An Act

" 'To amend Section 2750 of the General Code, relative to the terms of office of the county recorder and to adjust existing terms in accordance with such amendment.

" 'Be it enacted by the General Assembly of the state of Ohio:

" 'Section 1. That Section 2750 of the General Code be amended to read as follows:

" 'Sec. 2750. * * * There shall be elected in each county, at the regular election in * * * 1936, and * * * quadrennially thereafter, a county recorder who shall assume office on the first Monday in January next after his election, and who shall hold said office for a period of * * * four years.

" 'Section 2. That existing Section 2750 of the General Code be, and the same is hereby repealed.

" 'Section 3. The present existing terms of office of county recorders are hereby extended to the first Monday in January, 1937. The first regular election for the office of county recorder under this act shall be held in November, 1936; but any vacancy in such office occurring more than thirty days prior to the regular election for state and county officers in the year 1934 shall be filled at such election for the remainder of the term prescribed in this section.

" 'Frank Cave,

" 'Speaker of the House of Representatives.

" 'Charles Sawyer,

" 'President of the Senate.

" 'Passed March 28, 1933.

" 'Approved April 5, 1933.

" 'George White,

" 'Governor.

" 'Filed in the office of the secretary of state at Columbus, Ohio, on the tenth day of April, A.D. 1933.'

"Your relator says that said amendment to original Section No. 2750, General Code of Ohio, is now numbered and designated as Section No. 2750, General Code of Ohio, and that Section No. 3 of said House Bill No. 331 is now numbered and designated as Section No. 2750-1 of the General Code of Ohio.

"Your relator says that said amendment to original Section No. 2750, General Code of Ohio, which provides for quadrennial elections of county recorders beginning with the regular election in 1936, and Section 2 of said House Bill No. 331, providing for the repeal of original Section No. 2750 of the General Code of Ohio, and Section No. 3 of said House Bill No. 331, now numbered and designated as Section No. 2750-1 of the General Code of Ohio, providing for extension of the existing term of county recorders, are each and all contrary to the Constitution of the state of Ohio, and void, because the sole, lawful right and power of the General Assembly of Ohio, in the premises is, as is set forth in Article 17 of the Constitution of Ohio, and the said act of the General Assembly of Ohio in passing House Bill No. 331 is in violation of, and contrary to said Article 17.

"Relator has no adequate remedy at law, and files this, his petition for a writ of mandamus to compel respondents to accept and file his declaration of candidacy, nominating petitions and filing fee as a Republican candidate for the nomination for county recorder of Franklin county, Ohio, in the primary election to be held on August 14, 1934.

"Wherefore, relator prays that a writ of mandamus may issue from this court to respondents, commanding said respondents to accept and file relator's declaration of candidacy, filing fee and nominating petitions as a Republican candidate for the nomination for county Recorder of Franklin county, Ohio, at the primary election to be held on August 14, 1934, and for such other and further relief as may be necessary and proper to fully protect relator's rights in the premises.

"EXHIBIT 'A.' "Declaration of Candidacy.

"I, William Schneider, hereby declare that I reside at No. 155 South Roys avenue, in the city of Columbus, county of Franklin, Ohio, and am a qualified elector therein.

"I am a member of the Republican party.

"At the last general election I voted for a majority of the candidates of such party, and intend to vote for a majority of the candidates of such party at the forthcoming election.

"I hereby declare myself a candidate for nomination to the office of county recorder of Franklin county to be made at the primary election to be held on the fourteenth day of August, 1934, and hereby request that my name be printed upon the official primary ballot as provided by law as a candidate of the Republican party.

"I further declare that if nominated and elected, I will qualify as such county recorder and that I will support and abide by the principles enunciated by the Republican party in its national and state platforms.

"Dated this twenty-ninth day of August, 1933.

"William Schneider, (Signature of Candidate.)

"The State of Ohio, County of Franklin, ss.

"Personally appeared before me the undersigned, a candidate for county recorder in and for said county, this twenty-ninth day of August, 1933, the above named William Schneider, who acknowledged the signing of the above declaration and declared to me that the statements made therein were true as he verily believed.

"Signed William Schneider.

"Subscribed and sworn to before me this twenty-ninth day of August, 1933.

"Signed L.M. Graham,

"L.M. Graham,

"Notary Public, Franklin County, Ohio.

"Petition for Candidate "Which Shall be Attached to Each Declaration of Candidacy.

"We, the undersigned, qualified electors of the state of Ohio, and of the county, city, village, township, ward and precinct set opposite our names, and members of the Republican party, hereby certify that William Schneider who resides at 155 South Roys avenue of the city of Columbus in the county of Franklin and who is a candidate for the office of county recorder of Franklin county to be voted for at the primary next hereafter to be held, and whose declaration of candidacy is herewith filed, is a member of the Republican party, and is, in our opinion, well qualified to perform the duties of the office for which he is a candidate."

(Here follows list of signers to the foregoing petition which are omitted from the printed record.)

"EXHIBIT 'B.'

"Friday, September 1, 1933.

"Motion by Mr. Miller, seconded by Mr. Kennedy that action of Harry C. Arnold, clerk of the board be approved, in refusing to accept and file declaration of candidacy, petition and filing fee, tendered by William Schneider as a Republican candidate at the primary election August 14, 1934, for nomination for the office of recorder of Franklin county, Ohio, and we as members of the Franklin county, board of elections also refuse to accept and file the declaration of candidacy, petition and filing fee tendered by William Schneider, as a Republican candidate at the primary election August 14, 1934, for the nomination for the office of recorder of Franklin county, Ohio, for the sole reason that Section 2750-1 of the General Code of Ohio provides that the term of office for county recorder is hereby extended to the first Monday of January, 1937; therefore there will be no nomination at the primary election on August 14, 1934, for the office of county recorder.

"Ayes: Messrs. Kennedy, Miller, Presnell, Wilkins.

"Ayes, 4. Nays, 0.

"Motion carried."

To this petition respondents demurred on the ground that it did not state facts which show a cause of action.

On February 5, 1934, the demurrer was submitted to the Court of Appeals of Franklin county, Ohio, on briefs and oral argument of counsel, and the court made the following finding and judgment:

"This day this cause came on for hearing on the demurrer of respondents to the petition of relator, and was submitted to the court on briefs and oral arguments of counsel for said respective parties. The court being fully advised in the premises, after due consideration finds that said House Bill No. 331, referred to in the petition, the first section of which is now known as Section 2750 of the General Code of Ohio, section of said House Bill No. 331, which is described as the repealing clause of the original Section No. 2750, General Code of Ohio, and Section 3 of said House Bill No. 331, now known as Section 2750-1, General Code of Ohio, is unconstitutional in all of its said parts, and that the demurrer of respondents is not well taken, and that the same should be, and it hereby is overruled. The court further finds that the adoption of the new Article 10 of the Constitution of Ohio at the general election on November 7, 1933, commonly known as the County Home Rule Amendment, in no wise affects the rights of relator in the premises herein.

"And it now appearing to the court that respondents are not desirous of pleading further herein, it is hereby ordered, adjudged and decreed, that a writ of mandamus issue from this court to respondents directing them to accept and file relator's declaration of candidacy, nominating petitions and filing fee as a Republican candidate for the nomination of county recorder of Franklin county, Ohio, in the primary election to be held on August 14, 1934.

"It is further hereby adjudged and decreed that the respondents pay the costs of this proceeding.

"To all of which findings, orders, rulings and decrees of the court, the respondents except."

Error is prosecuted to this court to reverse the judgment of the Court of Appeals.

Mr. Donald J. Hoskins, prosecuting attorney, Mr. Robert J. Odell and Messrs. Cowan, Adams Adams, for plaintiffs in error.

Mr. James N. Linton, Mr. L.M. Graham, Mr. William Schneider, Mr. John W. Bricker, attorney general, and Mr. William S. Evatt, for defendant in error.

STEPHENSON, J.

The order of the parties is reversed in this court. The Board of Elections, being plaintiff in error, will be referred to as plaintiff, and William Schneider, defendant in error, as defendant.

The Court of Appeals held that House Bill No. 331 (now Sections 2750 and 2750-1, General Code) is unconstitutional in all its parts, and that the adoption of the new Article X of the Constitution of Ohio, commonly known as the County Home Rule Amendment, at the November election, 1933, in no wise affects the rights of William Schneider, the relator in that court.

House Bill No. 331 is referred to in common parlance as a "term extender." By its provisions it extended the existing terms of office of county recorders to the first Monday of January, 1937, and further provided that the first election of county recorder should be held in November, 1936, and that quadrennially thereafter the county recorder would assume the duties of his office on the first Monday of January next after his election, and hold said office for a period of four years. The provision for filling vacancies is of no concern here.

Ordinarily, that which the Constitution, under the accepted rules of construction, does not prohibit, cannot contravene the Constitution. If such prohibition is not expressed, and it cannot be clearly implied from the language used in the Constitution, there is no prohibition.

In approaching the question of the constitutionality of this act we are not unmindful of the following well established rules of construction, viz:

1. It must be accorded the presumption of constitutionality.

2. The question of constitutionality must be determined in the light of the Constitution in its entirety.

3. If the Act can be fairly reconciled with the Constitution, we must so reconcile it.

4. In considering the scope of the Act we must not only consider past and present evils, if any, but we must determine whether its existence would naturally tend to lead us into future evils. Village of Euclid v. Camp Wise Assn., 102 Ohio St. 207, at page 215, 131 N.E. 349.

5. If the maxim "Expressio unius est exclusio alterius" is involved, we must consider it. State, ex rel. Robertson Realty Co., v. Guilbert, Aud. of State, 75 Ohio St. 1, 78 N.E. 931.

6. Courts have nothing to do with the policy, justice or wisdom of a statute, so long as it can be said that it does not contravene the Constitution. Cincinnati Street Ry. Co. v. Horstman, 72 Ohio St. 93, 73 N.E. 1075; B. O. Rd. Co. v. Chambers, 73 Ohio St. 16, 76 N.E. 91, 11 L.R.A. (N.S.), 1012; Nicholson v. Franklin Brewing Co., 82 Ohio St. 94, 91 N.E. 991, 137 Am. St. Rep., 764.

7. It is dangerous for any court to hold that an act of the General Assembly contravenes the spirit, but not the letter, of the Constitution. The spirit of the Constitution is like any other spirit. We cannot see it, nor handle it, consequently we do not know much about it. We are too prone to insist that the spirit of the Constitution is what we think it ought to be. Unless such spirit is clearly manifest, it had best be left in the spiritual world. Cass v. Dillon, 2 Ohio St. 607; State, ex rel. Evans, v. Dudley, 1 Ohio St. 437; Lehman v. McBride, 15 Ohio St. 573; State, ex rel. Garnes, v. McCann, 21 Ohio St. 198.

8. However, the General Assembly exercises delegated authority only, and any act passed by it not fairly falling within the scope of legislative authority is as clearly void as though expressly prohibited. Cincinnati, Wilmington Zanesville Rd. Co. v. Commissioners of Clinton County, 1 Ohio St. 77; Baker v. City of Cincinnati, 11 Ohio St. 534; Lehman v. McBride, supra; State, ex rel. Garnes, v. McCann, supra; Bloom v. City of Xenia, 32 Ohio St. 461.

9. A constitution is to be construed by the same rules as those employed in the construction of statutes, except that since the terms of the constitution are more general the grants of power should be construed more liberally. County of Miami v. City of Dayton, 92 Ohio St. 215, 110 N.E. 726.

10. History of the law may lend light to construction. Cooley's Constitutional Limitation (8 Ed.), Vol. 1, pages 132 and 133.

History of the law necessarily carries with it history of the subject matter.

Our Declaration of Independence is simply a declaration of principles and an enumeration of charges against King George the Third. Amongst other things, this instrument in substance declares that life, liberty and the pursuit of happiness are inalienable rights, and to secure them governments are instituted amongst men, deriving their just powers from the consent of the governed. Stated in another form, the governors derive their just powers from the consent of the governed. Then the makers of the Federal Constitution re-affirmed this principle in the preamble to that instrument, wherein they ordain and establish the Constitution in order to secure the blessings of liberty to themselves and their posterity. The rights of the people generally, and particularly their right to vote, were safeguarded zealously by the Federal Constitution, and, as evidence of good faith and in consideration of the rights that the states and the people had given up, the Federal Government guaranteed to every state a republican form of government and expected them to preserve it. A republican form of government can only be preserved by securing to its electors the right to select their governors by ballot, for terms fixed in advance by the legislature of the state.

By the Federal Constitution all legislative powers were vested in Congress. All legislative power in the state of Ohio is vested in the General Assembly of the state. Section 1, Article II, Constitution of Ohio.

It will be noted that this is a general grant of legislative power. The people may delegate their rights by wholesale to the General Assembly through the medium of the Constitution, if they see fit. If the people find that they have delegated rights to the General Assemby that they should have retained, they must get them back by constitutional amendment. The courts cannot give them back.

At the time of the enactment of House Bill No. 331 what was the constitutional status with reference to county officers?

Section 2, Article XVII of the Constitution, in so far as applicable here, provides:

"The term of office of Justices of the Peace shall be such even number of years not exceeding four (4) years, as may be prescribed by the General Assembly. The term of office of the members of the Board of Public Works shall be such even number of years not exceeding six (6) years as may be so prescribed; and the term of office of all elective county, township, municipal and school officers shall be such even number of years not exceeding four (4) years as may be so prescribed.

"And the General Assembly shall have power to so extend existing terms of office as to effect the purpose of Section 1 of this Article."

Section 1 of Article XVII provides as follows:

"Elections for state and county officers shall be held on the first Tuesday after the first Monday in November in the even numbered years; and all elections for all other elective officers shall be held on the first Tuesday after the first Monday in November in the odd numbered years."

These sections are set out in reverse order, as such arrangement most aptly portrays their connection and relationship.

By this section of the Constitution, fixing the term of county elective officers was recognized as a legislative function, and the power to fix such terms at not more than four years was specifically delegated. This section of the Constitution was adopted November 7, 1905, and the first election for state and county officers thereunder was held in November, 1906, and such elections have been held biennially ever since. It follows that the last election for state and county officers was held in 1932 and the next one will be held in 1934.

The new Article X of the Constitution of Ohio, adopted November 7, 1933, as we see it, does not affect the question now before us. Section 1 of that Article makes the following provision:

"The General Assembly shall provide by general law for the organization and government of counties, and may provide by general law alternative forms of county government."

Does this amendment add to or take from the powers that had previously been delegated to the General Assembly relative to the terms of office of county officers?

We agree that to uphold the constitutionality of this act would create no interregnum in the office of county recorder, as that is provided for by Section 8, General Code:

"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."

There is no question that the General Assembly, under our Constitution, has plenary power to postpone elections in accordance with its provisions, and readjust the commencement of official terms. The General Assembly, under the Constitution, can extend the terms of county officers, so long as it does not deprive the office of its elective character.

The question herein involved has not been touched by this court unless it can be gathered from the dictum in the case of State, ex rel. Pardee, v. Pattison, Governor, 73 Ohio St. 305, at page 327, as follows:

"It therefore appears that in legal contemplation the choosing an officer at an election, duly proclaimed, is a choosing for the constitutional or statutory term of office, as the case may be."

This is pure dictum and we can consider it only for the purpose of determining the process of reasoning whereby the court arrived at the law as announced in the syllabus.

We are forced to conclude that the question here presented has not heretofore been passed on by this court, and we must go to the decisions of the courts of last resort of those states having statutes and constitutions similar to ours for the determination of this question.

Does House Bill No. 331 (now Sections 2750 and 2750-1, General Code) take away from the office of county recorder its elective character?

The case of State, ex rel. Eavey, v. Smith, Secy. of State, 107 Ohio St. 1, 140 N.E. 737, deals solely with the power of the General Assembly to provide by election for the filling of an interim when the office of county commissioner was extended from two to four years. This court held that the General Assembly had such power.

The Constitution of the state of Kansas, in so far as it delegates power to its Legislature to provide for elections, terms and extensions of terms of county officers, is similar to ours. The case of Wilson v. Clark, 63 Kan. 505, 65 P. 705, sounded the keynote in cases of this character.

Postponement of elections by the legislature does not fly in the face of the Constitution so long as such postponement is reasonable and does not destroy the elective character of the office.

The case of Spencer v. Knight, 177 Ind. 564, 98 N.E. 342, holds that when the legislature has the power to fix the commencement of a term, it may in the interest of public policy postpone an election for a reasonable time. This is under a constitution different from ours. We find no fault with this case.

The case of Christy v. Board of Supervisors, 39 Cal. 3, is the most liberal case cited. The court therein held:

"But where an office has been filled in the method prescribed by the Constitution, no reason is perceived why the Legislature may not extend the term of the incumbent; provided the whole term when extended does not exceed the time limited by the Constitution."

If we could accept this as the law, it would be dispositive of this case; but the reasoning in the case does not impress us. Reading at page 12 of the opinion, we find the following:

"An officer duly elected by the people, and holding his office for a term extended by the legislature within the constitutional limitation of time, cannot, in any just sense, be held to hold, not as an elected officer, but as an appointee of the legislature. It cannot be denied that he was elected to the office, and that he would not be the incumbent of it, except for his election. The people have exercised their constitutional right in selecting him for the office, and instead of thwarting the popular will by appointing some one else, the legislature has rather ratified it by extending his term. The duration of the terms of office, except as limited by the Constitution, is a matter of purely legislative discretion. It may be diminished or extended at the will of the legislature, within those limits; and this power in no degree trenches on the constitutional right of the people to select the person who is to fill an elective office. The people select the incumbent of the office, but the legislature has the power to define the duration of the term, provided it is not fixed by the Constitution, and is within the constitutional limitation of four years."

This decision was rendered under a constitution similar to ours. We cannot agree with this case. We refrain from criticism, but cite the case of State, ex rel. Hensley, v. Plasters, 74 Neb. 652, 105 N.W. 1092, 3 L.R.A. (N.S.), 887, the syllabus of which reads as follows:

"1. The legislature cannot appoint county officers, nor by an act solely for that purpose extend the terms of such officers.

"2. Chapter 47, p. 292 of the Laws of 1905 is unconstitutional and void."

The court in this case discusses the case of Christy v. Board of Supervisors, supra, in the following language:

"We find no suggestion in their opinion as to what force or meaning should be given to such a constitutional provision. They say:

" 'The people select the incumbent of the office, but the legislature has the power to define the duration of the term,'

"That is, the people by election shall designate the person who shall hold the office, and the legislature shall then provide for how long a time he shall hold." Again they say:

" 'It cannot be denied that he was elected to the office, and that he would not be the incumbent of it, except for his election. The people have exercised their constitutional right in selecting him for the office,' etc.

"Such language as this does not satisfy our idea of the meaning and force of our constitutional provision. We think the idea of our Constitution is that the people shall choose a man to fit the established term, and not that the legislature shall establish a term to fit the man who has been chosen. In the argument it was stated by counsel for the respondent that the inducement to this legislation was not to assist in carrying out the general idea of the more comprehensive biennial law, but the sole object of this legislation was to extend the terms of the various registers of deeds for one year; that is, by an act for that sole purpose the legislature has declared that A., who is now occupying the office of register of deeds and whose term for which the people elected him will expire in January next, shall hold that office for another year. This is nothing else than providing by legislative enactment who shall be register of deeds in the respective counties of the state from January, 1906, to January, 1907. This we think the legislature cannot do. On the other hand, it is plainly provided by that part of the Constitution above quoted that the legislature shall provide for an election so that, before the current term of elective officers expires, the people may select the incumbent for the succeeding term. The view of the California court makes no distinction between the term of office itself and the tenure of that office during that term by the incumbent, between the official house and the individual who occupies it. The legislature establishes the office, and the people provide the incumbent. So that attempted legislation, which has for its sole purpose to determine who shall be the incumbent of the office for another definite period of time, is infringing upon the rights of the people, and is void."

While, as has been said heretofore, the question herein involved has not been passed on by this court, there are numerous decisions that portray the trend of the court to the effect that the power given by the Constitution to the Legislature to extend official terms should not be liberalized to the point that such extension would destroy the elective character of the office. A careful reading of the following cases establishes such trend:

State, ex rel. Kelly, v. Thrall, 59 Ohio St. 368, 52 N.E. 785; State, ex rel. Atty. Genl., v. Beal, 60 Ohio St. 208, 54 N.E. 84; State, ex rel. Atty. Genl., v. Hall, 67 Ohio St. 303, 65 N.E. 1019; State, ex rel. Pardee, v. Pattison, Gov., supra; State, ex rel. Atty. Genl., v. Mulhern, Sheriff, 74 Ohio St. 363, 78 N.E. 507; State, ex rel. Hoyt, v. Metcalfe, 80 Ohio St. 244, 88 N.E. 738; and State, ex rel. Young, v. Cox, Gov., 90 Ohio St. 219, 107 N.E. 517.

It is not necessary to cite cases to the effect that the inviolability of the right to vote must be preserved. The physical act of casting a ballot means nothing, but the expression of that ballot means everything, and its expression must not be defeated, directly or indirectly.

The county recorders now in office were elected at the November election, 1932, for a term of two years, beginning on the first Monday of January, 1933. Such term in course would end on the first Monday of January, 1935. Such term by force of Section 2750-1, General Code, is extended to the first Monday of January, 1937.

In brief, present incumbents in the office of county recorder are given an extra term by the General Assembly. Such officers are thereby given a full term of office without an elector in the state having voted for them or having been given an opportunity to vote for them. Is this not a dangerous departure under a republican form of government? If such action on the part of the General Assembly were given the stamp of constitutional approval, then subsequent General Assemblies could provide for further extensions ad infinitum, and the right of the governed to select their governors would be nullified.

In this holding we are not denying any right to the General Assembly to extend the term of county recorder to four years, the maximum fixed by the Constitution. But all this can be done without extending the terms of incumbents for full two years. Nor are we condemning reasonable extensions of terms of office to meet constitutional requirements. We do hold that under its constitutional grant of power the General Assembly cannot present to an incumbent an extra term of office. To hold otherwise would amount to virulent encouragement of oligarchy.

Giving its most liberal construction to that part of Section 2 of Article XVII of our Constitution which provides that "the General Assembly shall have power to so extend terms of office," it is limited by the remaining words of the sentence, "as to effect the purpose of Section 1 of this Article," which purpose is distinctly expressed to the effect that elections for state and county officers shall be held on the first Tuesday after the first Monday in the even numbered years.

The doctrine "Expressio unius est exclusio alterius" confines the General Assembly to the express terms of the grant in Article XVII, which terms are so clear and unambiguous as to require no construction.

We hold that Section 2750-1, General Code, is unconstitutional. Having held that Section 2750-1, General Code, violates the Constitution, can Section 2750, General Code (a part of the same act), be upheld as a constitutional provision?

We agree with counsel that the last word on this question was pronounced in the case of Geiger v. Geiger, 117 Ohio St. 451, 160 N.E. 28. This court held, in effect, in that case, that unless different enactments are inseparably connected one with the other, or others, the unconstitutionality of the one section does not necessarily invalidate the other sections. In adopting the test of inseparability in the above case, this court followed the case of State v. Bickford, 28 N.D. 36, 147 N.W. 407, Ann. Cas., 1916D, 140, wherein the court said:

"1. Are the constitutional and unconstitutional parts capable of separation so that each may be read and may stand by itself?

"2. Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out?

"3. Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part and to give effect to the former only?"

By giving effect to the attempted extension of term, the county recorder would be taken out of the list of county officers to be voted for in 1934. As a matter of fact, the term for which county recorders were to be voted for in 1934 was given them by force of Section 2750-1, General Code, and under such an arrangement it was necessary to fix the November, 1936, election as the first election at which the voters would have the privilege of voting for county recorders for the four-year term, and it was a part of the legislative plan to perpetuate the incumbents in office for another term. Under the provisions of Section 2750-1, General Code, fixing the first Monday of January, 1937, as the beginning of the first four year elective term, it was necessary to provide that county recorders for such term should be elected at the general election in 1936, and provision was made for it by the enactment of Section 2750, General Code.

If it were not for the fact that the two sections when considered together do away with the election of 1934, tenable argument could be advanced favoring the constitutionality of Section 2750, General Code; but the sections are so "inseparably connected" that both must fall, and the repealing section must fall with them. To hold otherwise would be to create a hiatus or interregnum, as you please, in the office of county recorder for the term of two years, and leave undisturbed the evil this action seeks to correct.

County recorders will be elected at the general election in 1934, as provided in Section 2750, General Code, prior to its attempted repeal and amendment.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

WEYGANDT, C.J., JONES, MATTHIAS, BEVIS, ZIMMERMAN and WILKIN, JJ., concur.