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: We will now inquire as to what questions are presented to us by the second amended petition, and the demurrers thereto of the Exchange Oil Company and of the other co-defendants of Weare. Among other things, plaintiff avers the making and assignment of certain oil leases on these 'lands, and that on August 30, 1866, the plaintiff was seized of all the right, title, and interest of the lessees in and to the residue then unexpired of their terms in the premises; "and that on the thirtieth day of August, A. D. 1866, the defendant John H. Weare held the title in fee of said premises, subject to the rights of the plaintiff as assignee, as above mentioned, of the said unexpired terms; and the plaintiff says that after it, the said plaintiff, became seized of şaid premises for the said unexpired terms, as aforesaid, and while the plaintiff was in actual possession of said demised premises, holding them under the said leases, and after the said John H. Weare, defendant, became the owner of the fee as aforesaid, subject to said demises, and while Weare was such owner, holding subject to said demisés, to-wit, on the thirtieth day of August, A. D. 1866, the plaintiff, by its duly-authorized agent, entered into a contract and agreement; in writing, with the defendant, John H. Weare, which contract John H. Weare duly signed, sealed, and acknowledged before a notary public of Washington county, in the state of Ohio, in the presence of two witnesses, who signed their names thereto as witnesses, in which written agreement it was recited that the said leases heretofore mentioned were then owned by the said Newburg Petroleum Company, the plaintiff herein; and the plaintiff says that in the written agreement so made and executed by the plaintiff and John H. Weare, on the thirtieth day of August, 1866, the plaintiff agreed to and with John H. Weare to remise and release, and forever quitclaim, and did therein remise, release, and quitclaim, unto John H. Weare, all the right, title, and interest of the Newburg Petroleum Company, of, in, and to the lands covered by and described in the leases."

After such a conveyance, no interest in these lands remained in the plaintiff, except the possession. But the plaintiff did not retain the possession. "And the plaintiff says that, after the making and delivery of said contract, the plaintiff put John H. Weare into possession of all the premises so as aforesaid remised, released, and quitclaimed under and in pursuance of the said written agreement and contract." This is plaintiff's statement of the case, and the demurrers admit all this to be true.

And with other considerations "the plaintiff says that John H. Weare, in the written agreement duly executed and delivered by him under seal, did covenant and agree to and with the plaintiff, the Newburg Petroleum Company, to pay and deliver to the Newburg Petroleum Company, its successors and assigns, upon said leased premises, the one full equal sixth part of all the carbon or rock-oil, salt, or other mineral substances, produced or pumped thereon or therefrom, daily, as produced during the rest and residue then remaining of the terms granted in said above-mentioned leases, respectively." By the terms of this agreement, as set forth, Weare binds himself alone; and he does not grant to plaintiff any interest in the land itself, and he does not agree to produce any oil or mineral substance from the land; but if, during the terms of those leases, any oil or mineral substance is "produced or pumped thereon or therefrom," --which will thus be separated from the realty, and become personalty,-Weare agrees to pay and deliver upon said leased premises to the Newburg Petroleum Company, its successors and assigns, the one full equal sixth part of such oil or mineral substance, daily, as produced. Such seems to be the language and the meaning of the parties' agreement, and that Wéare alone is bound, and that his assigns are not-bound.

But it is claimed that the plaintiff may hold the assignees of Weare by virtue of the principle in the first rule given in Spencer's Case, 1 Smith, Lead. Cas. *69: "(1) When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quo annexed and appurte.

nant to the thing demised, and shall go with the land, and shall bind the assignee, although he be not bound by express words; but, when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which had no being."

The plaintiff, as assignee of these leases, owned no part of these lands, and it had only a right, for a term of years, to produce or pump oil and other mineral substances on and from these lands. Subject to this right for such terms of years, Weare owned these lands, and all that was appurtenant thereto; and when the plaintiff released and conveyed to Weare, without reservation, this right, and all the plaintiff's interest in the lands, and put him into possession of the same, and when it took Weare's agreement to pay and deliver to plaintiff the one-sixth part of what should be produced and pumped thereon and therefrom, there was no "thing in esse, parcel of the demise,” that was "annexed and appurtenant to the thing demised,” so as to bring this case within the first part of that rule in Spencer's Case, and it seems to fall within the second part of that rule, and that the covenant binds “the covenantor, his executors or administrators, and not the assignee."

Weare did not attempt to bind his assigns in express terms, and he did not make the payment of the one-sixth part of the production a charge on the land. Neither did the law make such payment or delivery a lien upon the land, as it does in case of a tax on land. We need but to refer to the “much learning” upon this general subject collected in connection with Spencer's Case, in 1 Smith, Lead. Cas. *68 et seq.

There is no error apparent upon the record that requires a reversal of the judgments in this case, and the same are affirmed as to all the defendants except Weare. This is done without any prejudice to the plaintiff's action and rights against Weare in this case, which, as to such rights, is still pending in the court of common pleas of Washington county. Judgment affirmed. (44 Ohio St. 589)

STATE ex rel. ATTY. GEN. v. BREWSTER.

(Supreme Court of Ohio. January 18, 1887.) 1. OFFICE AND OFFICERS-FIXED TERM-EXTENSION BY LEGISLATURE.

Where the term of an office is fixed and limited by the constitution, there is no power in the general assembly to extend the term or tenure of such office beyond

the time so limited. 2. COUNTIES—COUNTY AUDITOR-TERM OF OFFICE.

At the October election of 1883, Brewster was elected auditor of Hamilton county for the term of three years, con mencing on the second Monday of November next after his election. At the November election of 1886, Raine was elected auditor (pursuant to an amended provision of the constitution and section of the statute changing the time of elections) for a term of three years, beginning on the second Monday of September next after the election. The constitution provided, both before and after such amendment, that county officers should be elected for such term, not exceeding three years, as may be provided by law. Held: (1) At the expiration of Brewster's term of office, to-wit, on the second Monday of November, 1886, there was a vacancy in such office. (2) Section 8, Rev. St., which provides that "any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the constitution or laws," did not have the effect to continue Brewster in office beyond his term of three years. (3! Section 1017, Rev. St., which provides that * when a vacancy happens in the office of county auditor, from any cause, the commissioners of the county shall appoint some suitable person, resident of the county, to fill the vacancy,” authorized the commissioners to fill the vacancy so created; and their appointee, having duly qualified, is entitled to fill such office until thé

commencement of Raine's term of office, on the second Monday of September, :. 1887; and the fact that Raine is such appointee does not constitute such appointment an extension of his term of office beyond three years. (4) The approval of the board of control of Hamilton county was not necessary to give vitality to such appointment.

FOLLETT, J., dissenting. (Syllabuis by the Court.)

v.9n.E.no.10—54

Quo warranto.

J. A. Kohler, Atty. Gen., Rufus B. Smith, and Wm. H. Taft, for relator. M. T. Wilson, J. M. McGillivray, and Danford & Kennon, for defendant.

OWEN, C. J. 1. The defendant was elected auditor of Hamilton county on the second Tuesday of October, A. D. 1883, for the term of three years, beginning on the second Monday of November, A. D. 1883, and to expire on the second Monday of November, 1886. The election was held under article 10, § 2, of the constitution, which ordained that “county officers shall be elected on the second Tuesday of October, until otherwise directed by law, by the qualified electors of each county, in such manner and for such terms, not exceeding three years, as may be provided by law;" and section 1013 of the Revised Statutes, which provides that “a county auditor shall be elected triennially in each county, at the fall election, who shall hold his office for three years from the second Monday of November next after his election.”

At the October election of 1885 the above provision of the constitution was so amended as to read: “County officers shall be elected on the first Tuesday after the first Monday in November, by the electors of each county, in such manner and for such term, not exceeding three years, as may be provided by law.” On May 8, 1886, section 1013, Rev. St., was so amended as to read: “The county auditor shall be chosen triennially in each county, who shall hold his office for three years, commencing on the second Monday in September next after his election."

Under these provisions, as amended, Fred Raine was, at the November election of 1886, elected auditor of Hamilton county for a term of three years, to begin on the second Monday of September, 1887, thus leaving a period of 10 months between the expiration of Brewster's term and the commencement of Raine's. On the tenth day of November, 1886, the commissioners of Hamilton county, acting under the supposed authority of section 1017 of the Revised Statutes, that provides that “when a vacancy happens in the office of county auditor, from any cause, the commissioners of the county shall appoint some suitable person, resident of the county, to fill such vacancy,” appointed Raine county auditor to fill such vacancy. He has qualified, given bond, and claims the right to hold the office. Brewster claims the right to hold the office until the beginning of Raine's term-second Monday of September, 1887—under section 8 of the Revised Statutes, which provides that "any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the constitution or laws." The present proceeding is prosecuted to oust Brewster from and induct Raine into the auditorship of Hamilton county.

The counsel for the parties to this controversy are in full accord upon three propositions: (1) That the term of office of Brewster was limited by the constitution to three years; (2) that it was not competent for the general assembly to extend his term beyond that limit; (3) that, upon the expiration of his term,-second Monday of November, 1886,—there was a vacancy in the office. When we shall have determined how this vacancy may lawfully be Alled, the controversy before us will be solved.

Article 2, § 27, of the constitution, ordains that “the election and appointment of all officers, and the filling of all vacancies not otherwise provided for by the constitution, or the constitution of the United States, shall be made in such a manner as may be directed by law.” To effectuate this provision, so far as relates to auditors, the general assembly, as we have seen, has enacted (section 1017, supra) that the commissioners of the county shall appoint some suitable person, resident of the county, to fill a vacancy in the office of auditor. Raine asserts his claim to the office held by Brewster by virtue of the appointment made in pursuance of this provision. Brewster's claim is based upon the assumption that section 8 of the Revised Statutes, cited supra,

was enacted to provide for filling such vacancies as existed in the case before us; and that, if there is any conflict between this and section 1017, supra, the latter must yield to the former, which works a repeal by implication of section 8, being a later enactment.

The assumption of counsel that there is no power in the general assembly to extend the term of an office, which is limited by the constitution, is abundantly warranted by State v. Howe, 25 Ohio St. 588, where it is said by MCILVAINE, C. J.: “After a careful examination of the question, in the light of both principle and authority, we are led to the conclusion that the general assembly may provide against the occurrence of vacancies by authorizing incumbents to hold over their terms, in cases where the duration of their terms is not fixed and limited by the constitution.” Also: "In cases where the duration of the term of office is limited by the constitution, of course its duration cannot be extended by statute."

If the provision of section 8, that any person holding an office shall continue therein until his successor is elected or appointed and qualified, is to be given the effect contended for, it is not easy to see why this is not an extension of the duration of office by statute beyond the limitation prescribed by the constitution. Section 8 is as much a general law as that providing for the election of auditors for three years, and if the two, construed together, are to be held to authorize a holding over after the expiration of the term of three years, what stands in the way of enacting them in one section instead of two? And what would be said of an enactment which, in the face of this plain constitutional limitation of three years, should provide that "county auditors shall hold their offices for three years, and until their successors shall be elected and qualified ?” Would anybody seriously contend that such legislation would be constitutionally valid? It is certainly by a confused process of reasoning that it is contended that the same provision (section 8) which authorizes a holding over beyond the term, and thus extends the duration of the office, is also a provision for filling a vacancy. If we give it the effect contended for, there is no “vacancy” to fill. The incumbent is rightfully in office, and destined to remain there of right until the beginning of the term of his successor by election. “That the framers of the constitution, in providing for filling vacancies in office, did not regard an office as vacant, when an incumbent might lawfully hold over his definite term until a successor was elected and qualified, is manifest from other provisions in the instrument.” State v. Howe, 25 Ohio St. 596; per McILVAINE, C. J.

Then it should be borne in mind that the provision of section 8, that an officer shall continue in office until his successor is elected or appointed and qualified, is subject to the qualification: “Unless it is otherwise provided in the constitution or laws." We find it “otherwise provided” in the constitutional limitation of the term of) this office to three years, and “otherwise provided” by the law which authorizes the county commissioners to fill the vacancy in the auditor's office by appointment. Section 1017. We cannot, without violence, hold the latter provision to be repealed by any rational implication froni section 8; and the legislative intention that the former section (1017) should point out the mode of filling such vacancy as existed in the present case seems too clear for serious controversy.

2. It is further maintained that the approval of the board of control of Hamilton county was necessary to give vitality to the order of appointment of the commissioners. We are unanimously of the opinion that the position is untenable.

The views above expressed lead us to the conclusions that, (1) the term of office of Brewster having been fixed and limited by the constitution, there is no power in the general assemby to extend his term or tenure of office beyond the term so limited. (2) Section 8, Rev. St., does not have the effect to continue Brewster in office beyond his term of three years. (3) Section 1017,

Rev. St., authorized the county commissioners to fill the vacancy so created, and their appointee, having duly qualified, is entitled to fill the office until the commencement of Raine's term of office,—the second Monday of September, 1887. (4) The concurrence of the board of control of Hamilton county was not necessary to give vitality to such appointment.

Judgment of ouster and induction.

FOLLETT, J., dissents.

(104 N. Y. 86)

CHASE and another, Ex'rs, etc., 0. BELDEN.1

(Court of Appeals of New York. January 18, 1887.) COLLISION-YACHTS-OCEAN-GOING AND COASTING VESSELS-LIGHTS.

A steam yacht, "used and employed exclusively as a pleasure vessel, and designed as a model of naval architecture," and so described in her license issued under Rev. St. U. S. 4214, which authorizes her “to proceed from port to port of the United States, and by sea to foreign ports, without entering or clearing at the custom-house,” is a coasting vessel, with the privilege added of going by sea to foreign ports, and while navigating the Hudson river is navigating under her license in the character of a coasting vessel, and is in fault if, instead of carrying the lights prescribed for coasting vessels by Rev. St. U. S. & 4233, rule 7, viz., red and green lights on the port and starboard sides, and in addition thereto a central range of two white lights, she carries the lights prescribed for "ocean-going steamers, and steamers carrying sail,” under rule 3, and will be responsible for a collision resulting from such fault.

This is an appeal from a judgment of the general term of the Third department, atfirming a judgment of nonsuit on the trial of the issues before Justice OSBORN and a jury at the Ulster circuit. The action was originally brought by William Donahue, the testator of the present plaintiffs, to recover the value of the steam-boat Charlotte Vanderbilt, from William Belden, the respondent, owner of the steam-yacht Yosemite, for the running down of the Vanderbilt by the Yosemite near Esopus Meadow light-house, on the Hudson river, at between 9 and 10 o'clock in the evening of July 14, 1882. The value of the Vanderbilt was admitted to be $16,000, and that she was a total loss. The Vanderbilt was a freight and passenger steam-boat, running between Albany and New York, on the Hudson river, and at the time of the collision was on her way to the city of New York. The Yosemite was an iron steam pleasure yacht, of 481 tons burden, with two masts, and having sails, which were furled at the time of the collision. When the collision happened she was under steam, on a trip from New York to Catskill, and proceeding at the rate of about 16 miles an hour. She carried the usual red and green lights, and at her foremast a white light, corresponding in character and position with the lights prescribed for ocean-going steamers, and steamers carrying sail, by section 4233, rule 3, Rev. St. U. S. She was enrolled in conformity with title 50, entitled “Regulation of Vessels in Domestic Commerce," of the Revised Statutes of the United States, and was licensed, in pursuance of Chapter 2, tit. 48, of the same statutes, “exclusively as a pleasure vessel, and designed as a model of naval architecture,” with leave “to proceed from port to port of the United States, and by sea to foreign ports. without entering or clearing at the custom-house, but not to be allowed to transport merchandise, or any passengers for pay.

There is a great mass of evidence in respect to the circumstances of the collision--on the part of the plaintiff for the purpose of showing that the collision was caused by the negligence of the Yosemite, and especially from

Reversing 34 Hun, 571.

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