Statement of the Case.

decree was correct and in keeping with the will of the testatrix, and it will be affirmed.

Judgment affirmed.

SHAUCK, C. J., DONAHUE, WANAMAKER, NEWMAN and WILKIN, JJ., concur.

THE STATE, EX REL. CHITTENDEN, V. HARMON, GOVERNOR.

Identity of court of appeals and circuit court-Sixth section of fourth article of constitution of state-Effective January 1, 1913-One elected circuit court judge entitled to serve as judge of court of appeals.

The sixth section of the fourth article of the constitution of the state, effective January 1, 1913, although substituting the court of appeals for the circuit court, recognizes and preserves the identity of those courts to the extent that one who prior to that date had been elected a judge of the circuit court for a term of six years, beginning February 9, 1913, is entitled to serve as a judge of the court of appeals for the term to which he had been so elected.

(No. 13947-Decided February 11, 1913.)

IN MANDAMUS.

The relator appeals to our original jurisdiction for a writ of mandamus requiring the governor to issue to him a commission as judge of the circuit court to which he alleges he had been elected on the 5th day of November, 1912, for the term of six years, beginning on February 9, 1913, to serve

Argument for Relator.

in the sixth judicial circuit of the state. Confessedly his petition contains all the allegations that would have been necessary to entitle him to the commission if it were not for the privisions amending the judicial article of the constitution, ratified in September, 1912, to become effective January 1, 1913. The governor answering admits the allegations of the petition and submits to the court the questions arising thereon declaring his willingness to abide by the judgment.

Mr. A. N. Summers; Mr. C. S. Northup and Mr. F. M. Hagan, for relator.

We invite the attention of the court to some principles which have heretofore received its approbation as aids in constitutional construction. Cass v. Dillon, 2 Ohio St., 608; Platt v. Craig, 66 Ohio St., 77; Lehman v. McBride, 15 Ohio St., 602.

An analogous case is presented in the construction of a statute in State v. General Fire Extinguisher Co., 20 Dec., 244, citing with approval Standard Oil Co. v. State, 117 Tenn., 618, 10 L. R. A., N. S., 1015; Holy Trinity Church v. United States, 143 U. S., 457.

A public office is a right with the corresponding duty to exercise a public function or employment and to take the emoluments, if any, pertaining thereto. State, ex rel., v. Wilson, 29 Ohio St., 349.

We contend that it was not the purpose of the Constitutional Convention to abolish the circuit

Argument for Relator.

court and to establish a new court, but the intention was merely to alter the jurisdiction of the intermediate court by conferring on courts of appeals the power to issue writs of prohibition, and by changing the name of the court to that of courts of appeals. That such was the intention clearly appears from a consideration of all the provisions of the amendments. State, ex rel., v. Brewster, 44 Ohio St., 589.

It has been frequently held by this court that a "vacancy" to be filled by appointment does not result from the expiration of a term of office, but is the result of a mere fortuitous happening occasioned by death, resignation, or removal, in offices for which there has been provided an elected incumbent. State, ex rel. Kelly, v. Thrall, 59 Ohio St., 369; State, ex rel. Wilson, v. Pontius, 78 Ohio St., 353; State, ex rel. Hoyt, v. Metcalfe, 80 Ohio St., 244.

Henry v. Trustees, 48 Ohio St., 675, was a case construing a statute, the construction of which is analogous to that of the constitution, except that the latter, in the light of the authorities, is to be more liberally construed than statutes. In that case it is held that the intent of the instrument must be determined, even though this may require a departure from the literal meaning of the words. Endlich on Interp. of Stats., Sec. 295; Terrill v. Auchauer, 14 Ohio St., 87; People, ex rel., v. State Treasurer, 23 Mich., 499; People, ex rel. Kennedy, v. Geis, County Treasurer, 25 Mich., 83; State v. Gardner, 3 S. Dak., 557; Hunt

Argument for Respondent.

v. State, 7 Tex. App., 231; 1 Story on Constitution, Sec. 451; People v. Harding, 53 Mich., 485.

Mr. Timothy S. Hogan, attorney general; Mr. J. M. McGillivray; Mr. George B. Okey; Mr. Thomas J. Keating and Mr. John A. McMahon, for respondent.

The first step in the interpretation of a constitutional or statutory provision must be in the direction of a search for the intent. Primarily the intent must be sought in the language used. 8 Cyc., 732; State v. McGough, 118 Ala., 159, 24 So. Rep., 395; Newell, Auditor, v. People, ex rel., 7 N. Y., 83; Standard Oil Co. v. United States, 221 U. S., 1, 55 L. Ed., 619; Slingluff v. Weaver, 66 Ohio St., 621; Wilcox v. Nolze, 34 Ohio St., 523; Sipe, Auditor, v. State, ex rel., 86 Ohio St., 80.

The extension, by construction, of the meaning of the phrase "the judges of the circuit courts now residing in their respective districts," to include judges-elect to the circuit courts whose terms. would have commenced, if the court had not been abolished, on February 9th, is sought to be reached by giving a supposed popular meaning of the word "judge" and striking out as surplusage the phrase "residing in their respective districts."

A judge-elect is not a judge within the recognized and ordinary meaning of the words. For definition of a judge, see Bouvier's Dictionary, Anderson's Law Dictionary, Century Dictionary,

Argument for Respondent.

Wharton's Law Lexicon. State, ex rel., v. Hidy, 61 Ohio St., 550.

As against the claim that, because the candidates for judge last fall were chosen by the electors of districts which now correspond to the appellate districts, they are entitled to become judges of the courts of appeals, we call attention to the rule that constitutions can only speak from the time they become effective, and, unless otherwise provided, operate prospectively. 8 Cyc., 731; State, ex rel., v. Pattison, 73 Ohio St., 327.

Although debates may be for some purposes, but in a limited degree, consulted in interpreting a doubtful phrase or provision of the constitution, they are, as a rule, deemed unsafe. Rasmussen v. Baker, 7 Wyo., 117; United States v. TransMissouri Freight Assn., 166 U. S., 318; Exchange Bank v. Hines, 3 Ohio St., 47.

The books are full of illustrations of cases in which persons who have been elected by the people were not permitted to fill the positions for which they had been chosen.

If there is no position to fill, that is, if the office is not vacant, if every voter in the state voted for another, the election is still invalid. Commonwealth v. Baxter, 35 Pa. St., 263; Sawyer v. Haydon, 1 Nev., 75.

There is no implied power to hold an election, and if an election is held for a judge without authority of law, it is invalid. State v. Gardner, 3 S. Dak., 553; Matthews v. Commrs. of Shawnee, 34 Kans., 606.