Foster v. Scarff (15 Ohio St. 532, 1864)

Brinkerhoi’I', 0. J.

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 eleventh of October, 1861, less than thirty days prior to the time of the next annual election for that year, he then 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, the said Taylor was regularly elected to said 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 Ohio ex rel. the Attorney General v. Taylor, in quo warranto, decided at this term. Ante, p. 137. This was done, doubtless, under a mistaken apprehension of the provisions of the constitution on the subject, and the same mistake seems to have been, and to have 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 th^ house of representatives, county treasurer, clerk of the court of common pleas, county recorder, county surveyor, infirmary directors, and county commissioner, but he omitted to make any mention therein of the election of a probate 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 different parties, but none was made or published f