#### The State, ex rel. Morris, *v.*Sullivan.

*Appointing power of governor*— Act *of April 2, 1906 (98 O. L., 342), creating railroad commission*— Common *law rule forbidding appointing officer*— To *forestall appointing rights of his successor*— Stahites *to be construed with reference to rules of common law, when.*

1. The well settled rule of the common law forbids that an officer clothed with power of appointment to a public office, shall forestall the rights and prerogative of his successor, by making a prospective appointment to fill an anticipated vacancy in an office the term of which cannot begin until after his own term and power to appoint have expired.

2. This established rule of the common law is neither abrogated nor modified by the provisions of Section 1 of the act of the General Assembly of the State of Ohio passed April 2, 1906 (98 O. L., 342), creating a railroad commission, and requiring the governor to appoint thereto “in January, 1909, and biennially thereafter, one commissioner for the term of six years from the first Monday in February of such year.”

3. Statutes are to be read and construed in the light of and with reference to the rules and principles of the' common law in force at the time of their enactment, and in giving construction ' to a statute the legislature will not be presumed or held, to have intended a repeal of the settled rules of the common law unless the language employed by it clearly expresses or imports such intention.

(No. 11773

Decided October 19, 1909.)

Quo Warranto.

This action is one in *quo warranto*originally commenced in this court by the relator, James C. Morris, to recover possession of the office of member of the Railroad Commission of Ohio, to which office he claims to have been duly and legally appointed on January 4, 1909, by Andrew L. Harris, then governor of the state of Ohio. The essential and controlling facts are sufficiently stated *80in the pleadings of the parties, and are not in dispute. The petition of James C. Morris, the relator herein, alleges and charges as follows:

Now comes James C. Morris, the relator herein, and gives the court to understand and be informed that on the fourth day of January, 1909, Andrew L. Harris, the then duly qualified and acting governor of the state of Ohio, duly appointed the relator to the office of member of the Railroad Commission of Ohio, subject to the advice and consent of the Senate of the State of Ohio, for the term of six years, to commence on the first Monday in February, 1909, and to terminate on the first Monday in February, 1915; and on said fourth day of January, 1909, by written message, addressed to said senate and signed by said Andrew L. Harris, governor as aforesaid, duly submitted said appointment to said senate for its confirmation; that on said fourth day of January, 1909,c the General Assembly of Ohio, including said senate, was in session, and said -message of said Andrew L. Harris, Governor of Ohio, was duly received by said senate on said fourth day of January, 1909, and by appropriate action on the part of said senate the said appointment of the relator to said office was -duly assented to and confirmed by said senate. That thereupon, on the fifth day of January, 1909, the said Andrew L. Harris, Governor of Ohio, duly issued to the relator a commission to serve as a member of said Railroad Commission of Ohio for said term beginning on the first Monday in February, 1909, and ending on the first Monday in February, 1915, which commission was duly signed by said Andrew *81L. Harris, governor as aforesaid, and was duly countersigned by Carmi A. Thompson, who then was the duly elected, qualified’ and acting Secretary of State of the State of Ohio, And thereupon, on the twenty-ninth day of January, 1909, the relator took and subscribed the constitutional oath as an officer of the state of Ohio to support the Constitution of the United States and the Constitution of the State- of Ohio, and that he would faithfully discharge the duties of the office as a member of the Railroad Commission of Ohio, to which he had been appointed according to law, to the best of his ability; and further took and subscribed an oath that he was not pecuniarily interested in any railroad in the state of Ohio or elsewhere, and that he did not then hold any other office of profit and that he did not then hold any position under any political committee or party, which oath was on said date last aforesaid duly filed in the office of the said secretary of state. That then and thereby the relator was duly commissioned a member of the Railroad Commission of Ohio under said appointment and lawfully entitled to exercise the powers and duties and to receive the fees and emoluments of said office during said term beginning on the first Monday in February, 1909, and ending on the first Monday in February, 1915.

But the relator avers that the defendant, John Sullivan, has usurped and unlawfully holds and exercises said office, and as such officer assumes to do and perform all and singular the duties pertaining to said office and to receive the fees and emoluments thereof, to the exclusion and against the rights of the relator and under a claim of *82appointment to said office by 'Judson Harmon, Governor of Ohio, and a confirmation thereof by the Senate of the State of Ohio, and a commission issued in pursuance of said appointment and confirmation thereof by said Judson Harmon, Governor of Ohio. But the relator avers that the said pretended appointment of the defendant by the said Judson Harmon, Governor of Ohio, was made long subsequent to the appointment and qualification of the relator to said office and after the right and title of the relator to said office had become fixed and absolute.

Wherefore relator prays that defendant be required to answer by what warrant he claims to have, use, exercise and enjoy said office of member of the Railroad Commission of Ohio, and that he be adjudged not entitled thereto and that judgment of ouster therefrom may be pronounced against him, and that the relator may be adjudged entitled to said office and its franchises.

To, this petition the defendant, John Sullivan, filed the following answer:

Now comes John Sullivan, the defendant herein, and for answer to the petition of the relator, denies that on the fourth day of January, 1909, or at any other time, the relator was duly appointed to the office of member of the Railroad Commission of Ohio for the term of six years, to commence on the first Monday in February, 1909, and to terminate on the first Monday in February, 1915; he denies that on the fourth day of January, 1909, or at any other time, the Governor of Ohio duly submitted said alleged appointment to the Senate of Ohio for its confirmation; he denies that on the *83fourth day of January, 1909, or at any other time, the Senate of Ohio duly assented to and confirmed said alleged appointment; he denies that on the fifth day of January, 1909, or at any other time, the Governor of Ohio duly issued to the relator a commission to serve as a member of said Railroad Commission for the term beginning on the first Monday in February, 1909, and ending on the first Monday in February, 1915; he denies that said alleged commission was duly signed by the Governor of Ohio or duly countersigned by the Secretary of State of the State of Ohio; he admits that on the' twenty-ninth day of January, 1909, the relator took and subscribed the oaths mentioned in said petition; he admits that said Andrew L. Harris, as Governor of Ohio, at the time mentioned in said petition, attempted to appoint the relator to said office, and on said fourth day of January, 1909, submitted said pretended appointment to the Senate of Ohio for its confirmation, and that said senate in due form of law assented to said alleged appointment; that on the fifth day of January, 1909, said governor in due form of law issued to the relator a paper purporting to be a commission to serve as a member of said Railroad Commission for the term aforesaid, and that the same was countersigned by said secretary -of state; but the defendant denies that the relator was then and thereby duly appointed to said office, denies that his said pretended appointment was duly confirmed, denies that he was duly commissioned a member of said Railroad Commission for said term, and denies that he was or is lawfully entitled to exercise the powers or to receive *84the salary and emoluments of said office for said term, for that, on the third day of November, 1908, Judson Harmon was duly elected Governor of the State of Ohio to serve for the term of two years commencing on the second Monday, which was the eleventh day, of the month of January, 1909, and, although said Andrew L. Harris was on the fifth day of January, 1909, the duly qualified and acting Governor of the State of Ohio, his term of office, as he then well knew, would by operation of law expire on the eleventh day of January, 1909, and, therefore, said Andrew L. Harris had no lawful right, power or authority to make said alleged appointment, and the Senate of Ohio had no lawful right, power or authority to confirm the same.

Further answering the defendant avers that he is, and at the times stated hereinafter was, a citizen, resident, inhabitant and elector of the county of Butler in the' state of Ohio, and then had and still has all the qualifications required by law for a inember of the Railroad Commission of Ohio; that on the twenty-first day of January, 1909, Judson Harmon, who then was the duly elected, qualified and acting Governor of the State of Ohio, as such governor duly appointed the defendant a member of said commission, subject to the advice and consent of the Senate of the State of .Ohio, for the term of six years, to commence on the first Monday in the month of February in the year 1909, and to terminate on the first Monday in the month of February in the year 1915, and on said twenty-first day of January, 1909, by a written message addressed and trans*85mitted to said senate and signed by him as governor as aforesaid, duly submitted said appointment to said senate for its confirmation; that on the third day of March, 1909, said senate by appropriate action on its part, duly assented to, advised and confirmed said appointment of the defendant as a member of said Railroad Commission and on the fifth day of said month notified said governor of its said action; that thereupon, on the sixth day of March, 1909, said Judson Harmon, Governor of Ohio, duly issued to’the defendant a commission to serve as a member of said Railroad Commission for said term ending on the first Monday of February, 1915, which commission was duly signed by said Judson Harmon, governor as aforesaid, and was duly countersigned by the Secretary of State of the State of Ohio; that thereupon, on the eighth day of March, 1909, the defendant took and subscribed the constitutional oath of an officer of the state of Ohio, to support the Constitution of the United States of America, and the Constitution of the State of Ohio, and that he would faithfully discharge the duties of the office as a member of the Railroad Commission of Ohio, to which he had been appointed according to law as aforesaid, to the best of his ability, and further took and subscribed an oath that he was not pecuniarily interested in any railroad in the state of Ohio or elsewhere, and that he did not then hold any other office of profit, and that he did not then hold any position under any political committee or party, which oath was on said date last aforesaid duly filed in the office of said secretary of state; that then and thereby the defendant was duly com*86missioned a member of the Railroad Commission of Ohio, and then was and still is lawfully entitled to exercise the powers and duties and to receive the salary and emoluments of said office during said term, and since the date last aforesaid has discharged the duties of said office under said appointment.

Wherefore the defendant prays that the petition of the relator be dismissed, and that the defendant be adjudged and decreed to be entitled to said office as member of the Railroad Commission of Ohio for said term ending on the first Monday in February, 1915, and for all proper relief.

The sufficiency of the foregoing answer is challenged by relator by a general demurrer filed thereto and the cause is submitted to the court upon this demurrer.

*Messrs. Daugherty, Todd & Rarey,*for relator.

The general assembly is clothed with power to provide for the appointment to the office of member of the Railroad Commission. Section 27, Article 2, Constitution of Ohio.

The provisions of the act with relation to the office of member of the commission are contained in Section 1 of the act of April 2, 1906, 98 O. L., 342.

The duty and power of maxing an appointment to the office of member of the Railroad Commission is not an executive function, but a ministerial duty. *State, ex rel. Trauger,*v. *Nash, Governor,*66 Ohio St., 612.

If the power to appoint to an office created by law “does not inhere in the office of governor,” *87and is merely a ministerial duty cast upon the governor by statute, can it be said that the right or power to appoint to an office created by the legislature inheres in the person who may at any particular time occupy the office of governor?

To apply the principle announced in the Trauger case directly to the case at bar, the power to appoint to the office of railroad commissioner may be just as lawfully imposed upon Governor Harris as upon Governor Harmon. There are no restrictions or limitations upon the right of the legislature to repose this power upon either or both of said governors. *State, ex rel.,*v. *Ermston,*14 O. C. C., 614, 57 Ohio St., 665.

The statute authorizes the appointment to be made “in January, 1909.” The appointment of the relator was made in January, 1909. His appointment, therefore, is fairly within the express letter of the statute; and unless this statute is to be modified and its language restricted by interpretation, the appointment of the relator must be sustained as a valid exercise of the appointing power conferred by the statute.

We contend that “in January” is plain and free from ambiguity and expresses a single, definite and sensible meaning, and that that meaning can not be varied, enlarged or restricted by interpretation. In other words, the statute must be interpreted literally. *Woodbury & Co. v. Barry,*18 Ohio St., 456; *Slingluff*v. *Weaver,*66 Ohio St., 621.

The defendant would have the court interpret the statute as though it read “on or after the second Monday in January, 1909,” there shall be *88appointed, etc. We submit that this would be a clear violation of the principle of interpretation so clearly announced in the cases above cited.

If it is presumed that the legislature contemplated that the term of one governor would expire January 11, 1909, and the term of his successor begin on the same day, surely if the legislature had intended to limit the appointment of railroad commissioner to only one of said governors, it would have used some apt language to express that intention.

It is to be observed, first, that the office of Railroad Commissioner is in no proper sense a part of the political patronage of the office of governor. What we mean is that it is not in any way connected with the administration of the governor’s office. It is further to be observed that the functions and duties; to the Railroad Commission are at least semi-judicial.

These considerations were evidently in the mind of the legislature when they fixed the term of a member of the commission at six years — three times the length of the term of governor of the state. The non-political character of the commission was evidently in the mind of the legislature when it provided that not more than two of the said commissioners should be members of the saíne political party, etc.

An examination of the many cases sustaining the rule that a statute should be construed with reference to its spirit and reason, leads us to the conclusion that the rule is only applied in cases where to follow the letter of the statute would lead to consequences so absurd or unjust that they *89could not have been within the intention of the legislature. In other words, the courts have proceeded in applying this rule upon the theory that if the legislature had had the particular case in mind at the time of the enactment of the law, they would have excepted it from the provisions of the law. *Holy Trinity Church*v. *United States,*143 U. S., 457.

*Messrs. Booth, Keating, Peters & Pomerene,*for respondent.

We claim that the alleged appointment of the relator was void, because it was made by a governor whose term ended on the eleventh day of January, 1909, to take effect in February.

An outgoing officer, unless he be expressly required to do so, cannot lawfully forestall his successor in office in the exercise of the appointing power, and the statute under which both of the governors assumed to act must be construed in the light of this rule. Mechem on Public Offices and Officers, Section 133; *State, ex rel.,*v. *McCollister,*11 Ohio, 46; *State, ex rel.,*v. *Choate,*11 Ohio, 511; *State, ex rel.,*v. *Thompson, 9 O.*C. C., 161; *State, ex rel.,*v. *Ermston,*14 O. C. C., 614, 57 Ohio St., 665.

So much of the act of April 2, 1906 (98 O. L., 342), as bears upon this qhestion, is found in the first paragraph of Section 1.

The provision relating to the time of making the appointment by the governor cannot be considered as being at the same time both mandatory and permissive.

*90While the courts cannot place “any barrier on the powers of the legislature in such matters,” as repeatedly held in this state and elsewhere, prospective appointments are not favored by the courts and will not be held to be valid unless made in obedience to some statute which creates an express exception to the general rule. *State, ex rel.,*v. *Ermston,*14 O. C. C., 614.

Where, however, the appointing power of the officer or body making the appointment will expire before the term of office of its appointee will begin, and vest in its successors, it cannot forestall the right and prerogative of its - successors by making appointments to such office. 23 Am. & Eng. Ency. Law (2 eel), 347; Mechem on Public Offices and Officers, Section 92; *People*v. *Ward,*107 Cal., 236; *Ivy*v. *Lusk,*11 La. An., 486; *State, ex rel.,*v. *Meeham,*45 N. J. L., 189; *State, ex rel.,*v. *O’Leary,*64 Minn., 207; *Whitney*v. *Van Buskirk,*40 N. J. L., 463; *State, ex rel.,*v. *Catlin,*84 Tex., 48.

Courts presume that legislators are familiar with the common law and intend to act in conformity with its principles unless in clear and express terms they express an intention to abrogate or modify it.

This rule has been so frequently applied to the interpretation- of statutes by the courts of this and other states that it is recognized everywhere in this country, as it has long been regarded in England, as one of the cardinal rules of construction from which there is no dissent. *Allen*v. *Parish,*3 Ohio, 187; *Columbus*v. *Board of Elections,*13 O. D., N. P., 452; *Krause*v. *Morgan,**9153 Ohio St., 26; *Felix*v. *Griffiths,*56 Ohio St., 39; *Grogan*v. *Garrison, 27*Ohio St., 50; *Andrews*v. *Lembeck,*46 Ohio St., 38; *United States*v. *Sanges,*144 U. S., 310; *Heiskell*v. *Mayor,*65 Md., 125; *Howe*v. *Peckham, 6*How. Pr., 229; *Johnson*v. *Fluetsch, 176*Mo., 452; *Edwards, Admr.,*v. *Gaulding,*38 Miss., 118; *Peterson*v. *Gittings, 107*Ia., 306; *Keech*v. *Railroad Co.,*17 Md., 32; *Osgood*v. *Breed,*12 Mass., 525; Lewis Sutherland Statutory Construction (2 ed.), Section 543; Dwarris on Statutes, 185; 1 Kent’s Commentaries, *464.

Crew, C. J.

On January 4, 1909, the relator, James C. Morris, was appointed by Andrew L. Harris then Governor of the State of Ohio, to be a member of the railroad commission of this state for the term of six years, said term to commence on the first Monday in February, 1909, and to terminate on the first Monday of February 1915. On the same day the Senate of Ohio, being then in session, assented to and confirmed said appointment. On the following day — January 5th — Governor Harris issued to said James C. Morris a commission to serve .as a member of said railroad commission for said term of six years commencing on the first Monday in February, 1909. By operation of law the term of office of Andrew L. Harris as Governor of Ohio expired at noon on January 11, 1909, and Judson Harmon then became governor. On January 21, 1909, Governor Harmon appointed the defendant, John Sullivan, to be a member of said railroad commission for and during the same term for *92which Governor Harris had theretofore named and appointed the relator Morris. Said appointment so made by Governor Harmon was on the 3d day of March, 1909, assented to and confirmed by the senate,' and on March 8, 1909, the defendant Sullivan having received his commission, qualified and entered upon said office of railroad commissioner and has ever since continued to hold the same and to discharge the duties thereof, under and by virtue of said appointment. These facts being admitted, the question here presented is, had Andrew L. Harris as Governor of Ohio, the lawful authority and right to appoint the relator Morris to fill an anticipated vacancy in a public office the term of which could not begin until after his own term of office had expired. It admittedly is the well-established general rule of law that an officer clothed with authority to appoint to a public office, cannot, in the absence of express statutory authority,' make a valid appointment thereto for a term which is not to begin until after the expiration of the term of such appointing officer. Mechem in his work on Public Offices and Officers, at Section 133, states the general rule as follows: “The appointing power cannot forestall the rights and prerogatives of their own successors by appointing successors to office expiring after their power to appoint has itself expired.” The author then quotes with approval the language of Buchanan, J., in *Ivy*v. *Lusk,*11 La. An., 486, where he says: “That an appointment thus made by anticipation has no other basis than expediency and convenience, and can only derive its binding force and effect from the supposition that there *93will be no change of person, and consequently of will, on the part of the appointing power, between the date of the exercise of that power by anticipation, and that of the necessity for the exercise of such power by the vacancy of the office.” Throop in his.treatise on Public Officers, Section 92, says: “But it has been held that where an office is to be filled by appointment by the governor, with the advice and consent of the senate, the governor and senate cannot forestall their successors, by appointing a person to an office which is then filled by another, whose term will not expire until after the expiration of the terms of the governor and senators. And that an out-going board of freeholders of a county cannot lawfully appoint a person to an office which will not become vacant during their official terms.” The correctness and soundness of the rule and doctrine as above enunciated, so far as investigation has disclosed to us, is not opposed by any of the authorities, but is supported by many, among which are, *State, ex rel. Bownes,*v. *Meehan,*45 N. J. L., 189; *The People, ex rel. Sweet,*v. *Ward,*107 Cal., 236; *Ivy*v. *Lusk,*11 La. An., 486. But counsel for relator, while conceding' the general rule to be as above stated, nevertheless, contend in the present case, that the appointment of the relator made by Governor Harris on January 4, 1909, was a valid exercise of the appointing power because expressly authorized by statute. Whether, as claimed, said appointment was so authorized, must be determined according to the interpretation and effect proper to be given the provisions of Section 1 of the act of the General Assembly of the State *94of Ohio, passed April 2, 1906 (98 O. L., 342, Section 244-11, Revised Statutes). Said section so far as its language is material or pertinent to the present inquiry reads as follows: *“A*railroad commission is hereby created to be composed of three commissioners. Within sixty days after the passage of this act the governor shall, by and with the advice and consent of the senate, appoint such commissioners, but no commissioner so appointed shall be qualified to act until so confirmed, unless appointed during the adjournment of said senate. The term of one such appointee shall terminate on the first Monday in February, 1909; the term of the second such appointee shall terminate on the first Monday in February, 1911; and the term of the third such appointee shall terminate on the first Monday in February, 1913. In January, 1909, and biennially thereafter, there shall be appointed and confirmed, in the same manner, one commissioner for the term of six years from the first Monday in February of such year. Each commissioner so appointed shall hold his office until his successor is appointed and qualified. Any vacancy shall be filled by appointment by the governor for the unexpired term, subject to confirmation of the senate, but any such appointment shall be in full force until acted upon by the senate.” It will be observed that while' the above- section provides that the original appointments to be made by the governor thereunder are to be made within sixty days after the passage of the act, the only provision or requirement as to subsequent appointments is, that in January, 1909, and biennially thereafter, -the governor shall appoint one com*95missioner for the term of six years, the term of such appointee to commence on the first Monday of February following said appointment. In other words, the legislature by way of fixing the time when such subsequent appointments should be made, enacted and required, only, that they should be'made biennially during the month of January. If the statute had been wholly silent as to the time such future appointments were to be made, then admittedly, Governor Harris, because of the rule above stated, would have been without lawful authority or right to appoint relator to an office the term of which could not begin until after his own term as governor had expired. Can it be affirmed, then, upon a consideration of this statute, that the necessary effect of the provision requiring appointments to be made in January, is to abrogate the well-established rule of the common law which forbids a prospective appointment to an office not to become vacant until the expiration of the term of the appointing officer; or, that it was the purpose and intent of the legislature in thus fixing the time when appointments should be made, to thereby so modify and alter the rule of the common law, as to authorize and empower an out-going governor “to forestall the rights and prerogatives of his own successor, by appointing a successor to an office expiring after his power to appoint had itself expired?” The established canons of construction forbid such interpretation, unless the plain language of the statute imperatively requires it. The statute must be read and construed in the light of the common law in force at the time of its enactment, and the *96legislature will not be presumed or held to nave intended the repeal or modification of a well settled rule of the common law then in force, unless the language employed by it clearly imports such intention. No such language is found in this statute, hence no such legislative intent is shown or can be presumed. *Peterson*v. *Gittings,*107 Ia., 306; *Johnson*v. *Fluetsch,*176 Mo., 452; *Edwards, Admr.,*v. *Gaulding,*38 Miss., 118; *Keech*v. *Balto. & Wash. R. R. Co.,*17 Md., 32; Lewis’ Sutherland Statutory Construction, Section 454; 1 Kent’s Commentaries, bottom paging 551; Maxwell on Statutes, pp. 121 and 122; Dwarris on Statutes, 185; 26 Am. & Eng. Ency. Law (2 ed.), 662. The record in this case affirmatively discloses that at the time Governor Harris appointed relator to be a member of the Railroad Commission of Ohio, no present necessity then existed for the making of such appointment. The appointment so made by him on January 4, 1909, was not made to fill an existing vacancy, but a vacancy to arise during the term of his successor, and after his own power to appoint thereto had, by operation of law, expired. This statute, although requiring such executive appointments to be made in January, neither in express terms nor by necessary implication from the language therein employed, imposes or enjoins upon the out-going governor the duty of making such appointment. Hence, the rule of the common law which positively forbids his making the same, is not changed or affected by the statute, but continues and remains in ftill force and effect and must therefore control and govern. The case of *State, ex rel.**97*Lueders,*v. *Ermston,*14 O. C. C., 614, affirmed by this court in 57 Ohio St., 665, “on the grounds stated by the circuit court,” is cited by counsel for relator as sustaining their contention in the present case. The statute before the court for construction in that case was, in its terms and essential requirements, materially different from the statute here under review, and the reasoning and opinion of the court in that case so far from being opposed to the conclusion reached by us in the present case, is, we think, in entire accord and harmony therewith. The syllabus in that case is as follows: “When authority is given to an officer to make an appointment, such officer cannot make an appointment the term of which is to begin after the expiration of his term. But when the statute expressly provides that the appointment shall be made on a certain day, or as soon thereafter as practicable, the appointment may be made notwithstanding that the term of such appointee would commence after the expiration of the term of the appointing officer.” In the present case, for the reasons hereinbefore stated, we are of opinion that the facts pleaded in defendant’s answer sufficiently show that the appointment of relator to be a member of the Railroad Commission of Ohio was without right or authority of law, and the demurrer to said answer will be overruled, and the petition of relator dismissed.

*Demurrer to answer overruled and petition dismissed.*

Summers, Spear, Davis, Shauck and Price, JJ., concur.