of the government, and that branch has by aw "directed" the governor to perform it. It becomes therefore a purely ministerial duty to appoint. Fox v. McDonald, 101 Ala. 51, 13 South. 416, 21 L. R. A. 529, 46 Am. St. Rep. 98; Mayor, etc., of Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572; Hovey v. State, 119 Ind. 395, 21 N. E. 21; People v. Freeman, 80 Cal. 233, 22 Pac. 173, 13 Am. St. Rep. 122; State v. George, 22 Or. 142, 29 Pac. 356, 16 L. R. A. 737, 29 Am. St. Rep. 586.

The substance of this proceeding appears to us to be confined within a very limited compass. We are not disposed to speculate upon imaginary cases, nor to indulge in discussion concerning contingencies for which possibly sufficient provision may not have been made. We are content to dispose of the case presented to us, and to dispose of it according to the parts of the constitution and of the statutes which are pertinent to it, without resolving ourselves into a legislature or a constitutional convention. We find no provision in the constitution specifically providing for filling a vacancy in the office of lieutenant governor. It is argued that the words "until the vacancy is filled" refer to a vacancy in the office of lieutenant governor. If that construction is correct, and we are inclined to think that it is not, still it is not provided how or by whom the vacancy shall be filled. The only provision in the constitution controlling the case in hand is the one already adverted to (article 2, § 27); and the legislature having, by a plain, unambiguous, and mandatory enactment, directed the governor to fill the vacancy by appointment it is, in our judgment, his clear duty to do so.

cancy.

Another point which appears to be involved is the term of office of the appointee. Rev. St. § 11, reads as follows: "When an elective office becomes vacant, and is filled by appointment, such appointee shall hold the office till his successor is elected and qualified, and such successor shall be elected at the first proper election that is held more than thirty days after the occurrence of the vaThe phrase "the first proper election" was construed in State v. Barbee, 45 Ohio St. 347, 13 N. E. 731, to mean the first election appropriate to the office; that is, the election at which such officers are regularly and properly elected. It seems, from a study of the constitution (article 3, § 18), that the office of lieutenant governor was omitted therefrom because, for obvious reasons, it was desired to have the term of office of the lieutenant governor begin and end at the same time with the term of office of the governor, and that the last clause of that section of the constitution would defeat that purpose if the office of lieutenant governor was named therein. From these considerations, we are of the opinion that the appointee should be appointed for the unexpired portion of the term of Lieut. Gov.

Nippert, and that he should hold until his successor is elected and qualified as provided in Rev. St. § 11, and that the first proper election for his successor is the first election at which a lieutenant governor would have been chosen had no such vacancy occurred.

The demurrer to the petition is overruled, and peremptory writ awarded.

BURKET, SPEAR, and PRICE, JJ., con

cur.

(66 Ohio St. 605)

VAN ETTEN et al. v. KELLY. (Supreme Court of Ohio. June 24, 1902.)

OIL LEASE CONSTRUCTION-ACTION FOR

RENT.

1. An oil lease which required certain wells to be completed within stated times contained the following: "In case no well is completed within thirty days from this date, then this grant shall become null and void, unless second party shall pay to first party thirty dollars each and every month in advance while such completion is delayed." Held, that this did not constitute a promise or obligation to pay rental; and held, further, that the lessee had the option to complete wells or pay rentals to keep the lease alive, and that upon breach of the agreement to complete wells no action would lie for the recovery of rentals.

(Syllabus by the Court.)

Error to circuit court, Wood county.

Action by Luceba A. Kelly against Aaron Van Etten and others. Judgment for plainReversed. tiff, and defendants bring error.

The action in the court of common pleas was for the recovery of rental claimed to be due under the terms of an oil lease made by Luceba A. Kelly to one Scott Blair. The following is a copy of the lease, except signatures: "In consideration of the sum of one hundred dollars, the receipt of which is hereby acknowledged, Luceba A. Kelly, first party, hereby grant unto S. Blair, second party, his successors and assigns, all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and operating for oil, gas, or water; to erect and maintain all buildings and structures and lay all pipes necessary for the production and transportation of oil, gas, or water taken from said premises. Excepting and reserving, however, to first party the onesixth part of all oil produced from said premises, to be delivered in the pipe line with which second party may connect its wells, namely: All that certain lot of lands situated in the township of Freedom, county of Wood, in the state of Ohio, bounded and described as follows, to wit: The south half (2) of the northwest quarter of section No. twenty (20), town five (5), range twelve (12) east, containing eighty acres, more or less. To have and to hold the above premises on the following conditions: If gas only is found, second party agrees to pay three hundred dollars each year for the product of

each well while the same is being used off the premises, and the first party to have gas free of cost to heat three stoves in dwelling house during the same time. Whenever first party shall request it, second party shall bury all oil and gas lines, and pay all damages done to growing crops by reason of removing and burying said pipe lines or in drilling said wells. No well shall be drilled nearer than 300 feet to the house or barn on said premises, and no well shall occupy more than one acre. In case no well is completed within thirty days from this date, then this grant shall become null and void unless second party shall pay to said first party thirty dollars each and every month in advance while such completion is delayed, payable at first party's residence. The second party shall have the right to use sufficient gas and water to run all necessary machinery for operating said lease, and also the right to remove all its property at any time. The east forty acres of said land shall be drilled first. Second party agrees to complete a well every sixty days from date hereof on said east forty acres until six wells are completed, including the first well, and all lines must be protected. Second party further agrees to complete a well every ninety days on the west forty after the completion of the sixth or last well on the east forty acres. It is understood that the monthly rental shall apply to any well or wells not completed as herein specified. It is understood between the parties to this agreement that all conditions between the parties hereunto shall extend to their heirs, xecutors, and assigns. This lease to be void after fifteen years from date hereof. In witness whereof the parties have hereunto set their hands and seals this 15th day of September, A. D. 1896." Neither the lease, nor any transfer of any interest therein, was ever recorded. After stating in proper form the making of said lease, and its terms and conditions, the petition of the said plaintiff below, Luceba A. Kelly, proceeds as follows: “That said Blair on said 15th day of September, 1896, took said lease in his own name, but in fact for and on behalf of defendants, excepting and reserving one-eighth interest in and to said lease which was owned by said Blair, and afterwards the defendant Henry Bowlus purchased the said interest therein belonging to said Blair. That said lease is held and owned by said defendants under and subject to all the terms and conditions in siid lease therein mentioned and read, and that said defendants, and each and every one of them, in accepting said lease and operating same as hereinafter alleged, have become liable to the payment of any moneys there may be due as rental of said lands. That according to the terms of said lease, the said defendants did drill the first well upon the east forty acres of said premises, and completed the same within the time provided for in said lease, and sixty days thereafter they, the said defendants, did drill and complete 64 N.E.-36

another well on said east forty (40) on said premises. That according to the terms of said lease, in the month of March, and on the 15th day of said month, 1897, there should have been another and third well completed on the said east forty acres on the said lands. To complete said third well the defendants, each and every one of them, have wholly failed, refused, and neglected to do, and there. upon and thereby they became and are liable to the payment of said sum of thirty ($30) dollars per month as long as the completion of said third well is delayed. And the said plaintiff further says that for the last five months past said defendants have wholly failed and refused to operate the wells they have so drilled, and have failed to operate the same, so that this plaintiff has received no benefit therefrom. Yet the said defendants have failed, refused, and neglected to either cancel said lease or operate said wells or pay said rental. Wherefore said plaintiff prays that she may have judgment against said defendants for the sum of three hundred and ninety ($390) dollars, together with interest thereon, as follows." Then follow installments of rental amounting to $390, with interest. The defendants below in their answer denied substantially all the averments of the petition, and pleaded that oil in paying quantities could not be produced on said premises, and that, after ascertaining that to be so, they had offered to surrender and cancel the lease, and also averred that, by a proper and fair construction of said lease, the defendants below (plaintiffs in error here) were not required to pay any rental whatever to the plaintiff by reason of the failure to drill said wells, or for any other cause. The reply denied the averments of the answer. Upon the trial the evidence tended to show that Scott Blair took said lease in behalf of himself and the other defendants, except Henry Bowlus, who came in later; that they so understood the matter, accepted the lease, and drilled the two wells thereunder; that Henry Bowlus purchased the interest of Scott Blair after default had been made in completing the third well. The plaintiff below recovered a verdict against all the defendants for $390. A motion for a new trial was made and overruled, and judgment entered on the verdict. The circuit court affirmed the judgment, and thereupon the plaintiffs in error came here, seeking to reverse the judgments below.

John D. Hayman, Baldwin & Harrington, and James O. Troup, for plaintiffs in error. Peter Emslie, for defendant in error.

BURKET, J. (after stating the facts). The only question worthy of report is as to the true construction of the oil lease in regard to the payment of rentals. All the terms and conditions of the lease in that regard are the following: "In case no well is completed within thirty days from this date, then this

grant shall become null and void, unless second party shall pay to said first party thirty dollars each and every month in advance while such completion is delayed. * * It is understood that the monthly rental shall apply to any well or wells not completed as herein specified." It was in said lease specified that a well should be completed every 60 days from date of lease on east 40 acres until six wells should be completed thereon, and that a well should be completed every 90 days on the west 40 after the completion of the sixth well on the east 40. A well was completed on the east 40 within 30 days after the date of the lease, and as to that well there was full performance, and the lease was thereby saved from forfeiture as to the first well. The same is true of the second well. But no third or other well was ever completed, and thereby the agreement in the lease as to completing such other wells was broken, and now the question arises as to the remedy for such breach of contract. The plaintiff below claims that in the words, "unless second party shall pay to said first party thirty dollars each and every month in advance while such completion is delayed," there lies a promise to pay $30 per month for such delay. This is not tenable. The full force and effect of this "unless" clause, taken by itself, is to give the lessee the option, by making such payment, to continue the lease in force to the end of the term without completing the first well, or, upon failure to make such payment, allow the lease to become null and void at the end of 30 days after the date of the lease. Brown v. Fowler, 65 Ohio St. 507, 63 N. E. 76. There is no promise or obligation in this lease to pay rental to the lessor for failing to complete the first well, but only a privilege to pay such rental, at the option of the lessee, to prevent the lease from becoming null and void. As the only monthly rental provided for in the lease is that found in this "unless" clause, and as that rental is to prevent the lease from becoming null and void, it seems fairly clear that the subsequent understanding that the monthly rental should apply to any well or wells not completed as therein specified is for the same purpose (that is, to prevent the lease from becoming null and void), and that, upon failure to pay such monthly rental in advance while the completion of any well was so delayed, the lease, by its terms, became null and void, and the lessor had the option to so treat the lease, and recover possession, or recover for use and occupation, or recover damages for breach of contract to drill the wells specified in the lease; but she could not recover rentals for breach of contract to complete wells, because there is no agreement to pay rentals for such breach, and, there being no such agreement, there can be no breach thereof. In Oil Co. v. Crawford, 55 Ohio St. 161, 44 N. E. 1093, 34 L. R. A. 62, the lessee agreed to drill certain wells, and, upon failure, to pay certain rentals. It was held that the lessor might elect to enforce the

contract to drill, or waive that and enforce the promise to pay rental. There the option was with the lessor. Here, as there is no promise to pay rental, the option is with the lessee either to drill or pay rental to keep his lease alive; and, failing in both, the lease becomes null and void, with an option, however, in the lessor to treat it as void, or to sue for damages for breach of the contract to complete the wells as specified in the lease. As the action below was for the recovery of rentals under the lease, and as the lease contains no promise to pay rentals, the plaintiff, under a correct construction of the lease, has no cause of action for rentals; and the judgments of the lower courts must therefore be reversed, and petition dismissed, but without prejudice to the bringing of such other action for the breach of said contract to complete wells as may be authorized by law.

Judgments reversed, and judgment for plaintiffs in error.

SPEAR, DAVIS, SHAUCK, and PRICE, JJ., concur.

(66 Ohio St. 598)

STATE ex rel. FENSELL v. ALDRIDGE, Auditor, et al.

(Supreme Court of Ohio. June 24, 1902.) TAXATION-RAILROADS-ROLLING STOCK-AP

PORTIONMENT-EVIDENCE.

1. The words, "belongs to

any one

of such divisions or branches," in section 2774, Rev. St., has reference to cases in which a division or branch of a railroad is separately equipped; and in such cases its rolling stock, while owned by the company, is regarded as belonging to such division or branch for operating purposes, and the value thereof is required by said section to be apportioned for taxation among the counties through or into which the track of said division or branch extends.

2. If the rolling stock does not so belong to a division or branch, but is used solely thereon, the value thereof is required by said section to be apportioned for taxation the same as if such rolling stock so belonged to said division or branch.

3. The value of so much of the rolling stock as does not so belong to the main line or to a division or branch, and is not solely used thereon, is required by said section to be apportioned for taxation among all the counties through or into which the road extends, in the same proportion that the length that such road in each county bears to the entire length thereof in all said counties, including main line, divisions, and branches.

4. In apportioning the value of rolling stock, the board, composed of the county auditors. should first ascertain the value of the rolling stock which belongs to or is used solely on the main line, division, or branches, and then ascertain the value of all the other rolling stock, and then apportion their valuations upon a mileage basis, as required by said section 2774. 5. The minutes of a taxing board are not conclusive, and the real facts may be shown by parol, unless otherwise provided by statute. (Syllabus by the Court.)

Application by the state, on the relation of Conrad C. Fensell, against Madison Aldridge, auditor, and others. Writ awarded.

The Cleveland & Pittsburg Railroad has a main line, a River division, and a Tuscarawas branch. The railroad is operated by the Pennsylvania Company, and part of the rolling stock belongs to or is used solely upon said main line, part on said river division, part on said Tuscarawas branch, and the remainder belongs to and is used generally and indiscriminately upon the whole road, including the division and branch. On May 10, 1901, the auditors of the different counties through or into which said railroad and its division and branch pass met at the city of Cleveland, in compliance with sections 2770 to 2776, Rev. St., to fix and apportion the taxable valuation of said railroad, as required by said sections. The rolling stock was appraised by said board at $7,000 per mile, and the amount for rolling stock was apportioned by the secretary of the board of auditors 77 per cent. to the main line, 19 per cent. to River division, and 4 per cent. to Tuscarawas branch; and the amounts arising from these per cents. were apportioned to the respective counties upon a mileage basis according to the number of miles of track in each county. The auditor of Tuscarawas county claimed that this percentage apportionment of the value of the rolling stock was in violation of the provisions of section 2774, Rev. St., and filed his petition in mandamus in this court against the auditors of all the other counties composing said board of appraisement, praying that writs of mandamus might issue commanding said auditors and said board to again meet, and distribute and apportion the valuation of said item of rolling stock in the proportion that the total length of the main track of said road in said county of Tuscarawas bears to the entire length thereof in all of said counties. The auditor of Jefferson county, by cross petition, prayed, first, that the apportionment be made according to law, and then prayed that the valuation of the rolling stock be distributed in proportion that the total length of the main track in Jefferson county bears to the entire length thereof in all of said counties. The auditor of Belmont county, in a cross petition in behalf of his county, joined in the prayer for like relief. The auditor of Carroll county, by cross petition in behalf of his county, also asked for a redistribution and apportionment as provided in said section 2774. The auditors of the counties of Columbiana, Cuyahoga, Portage, and Summit filed a joint answer, in which they claimed the apportionment upon said percentage basis to be lawful, and prayed judgment accordingly. It is claimed by those in favor of the percentage basis of distribution that that method of distribution was ordered by the board at its meeting, and the minutes of the secretary bear out this claim. On the other hand, it is claimed that only the valuation of the rolling stock was fixed by the board, and then the secretary was to make inquiry as to the legality of distributing by a percentage basis, and make such distri

bution if found to be legal; and that the Secretary found such method to be legal, and made the distribution accordingly. The master to whom this case was referred finds this latter contention to be true, and that the minutes of the secretary do not correctly state what actually occurred at the meeting.

John M. Sheets, J. F. Greene, and V. H. Mowls, for relator. P. H. Kaiser and R. M. Wanamaker, for defendants.

BURKET, J. (after stating the facts). The statute which governs the apportionment of the value of the rolling stock of a railroad among the several counties for purposes of taxation is section 2774, Rev. St. That section is as follows:

"Sec. 2774. The value of such property, moneys and credits, of any railroad company, as found and determined by such board, shall be apportioned by said board among the several counties through which such road, or any part thereof, runs, so that to each county and to each city, village, township and district, or part thereof therein, shall be apportioned such part thereof as shall equalize the relative value of the real estate, structures, and stationary personal property of such company therein, in proportion to the whole value of the real estate, structures, and stationary personal property of such railroad company in this state; and so that the rolling stock, main track, roadbed, supplies, moneys and credits of such company shall be apportioned in the same proportion that the length of such road in such county bears to the entire length thereof in all said counties or county, and to each city, village, and district, or any part thereof therein, provided that if the line of any railroad company is divided into separate divisions or branches, so much of the rolling stock of such company as belongs to or is used solely upon any one of such divisions or branches shall be apportioned in the same manner to the county or counties, and to each city, village and district, or any part thereof therein, through which such branch or division runs, and the board shall certify to the county auditor of each county, and to each city, incorporated village, township and district, or any part thereof therein interested, the amount apportioned to his county, and the board shall make and forward a like certificate together with all the reports of the various railroad officers, and other papers and evidence which formed the basis of their valuation, to the auditor of state, for the use of the state board of equalization of railroad property. It shall be the duty of the county auditor, upon receiving the certificate aforesaid, to apportion the amount therein stated to the cities, villages, townships, districts, or parts thereof; but the auditor shall not put the same on the tax list until he shall have been advised of the action of said state authority, when the proper amounts shall be entered on the tax lists."