Summary
In State ex rel. Kauffman v. Brown, 111 Ohio St. 289, 145 N.E. 329, the Ohio election law makes the Secretary of State Supervisor of Elections, and authorizes him to appoint Deputy Supervisors of Elections for each county, to be divided equally among the two leading political parties.
Summary of this case from State v. SchorrOpinion
No. 18539
Decided October 28, 1924.
Elections — Appointment of deputy state supervisors and inspectors — Recommendations by more than one county committee — State supervisor to notify state central committee of party — Section 4808, General Code — Duty to appoint nominee of county committee recognized by state committee — Mandamus does not lie, when — Appointment of nominee of unrecognized committee.
1. Where more than one county committee, each claiming to be the rightful executive committee of a political party, recommends to the state supervisor of elections different persons for appointment as deputy state supervisor and inspector of elections, a mandatory duty is imposed upon such state supervisor by Section 4808, General Code (98 O. L., 288), to notify the chairman of the state central committee of such party of such diverse recommendation. It likewise becomes the duty of the state supervisor to recognize whichever committee such state central committee certifies to be the rightful committee, and to appoint the nominee of such certified committee as a deputy state supervisor and inspector of elections.
2. The fact that such state central committee has acted arbitrarily or upon insufficient evidence does not authorize the employment of mandamus against the secretary of state, directing him to appoint a person recommended by a county executive committee which has failed to receive the recognition of such state central committee.
IN MANDAMUS.
This is an original action in mandamus filed in this court, wherein the relator seeks an order commanding the secretary of state to appoint him as a Democratic member of the board of deputy state supervisors and inspectors of elections for Stark county. The cause was submitted to this court upon a general demurrer to the reply of the relator. The salient facts conceded by the petition and answer are as follows:
The petition alleges that on August 18, 1922, the Democratic members of the county central committee of Stark county, who were previously elected in the same month, met and organized by electing a chairman and secretary of such Democratic county central committee; that said county central committee at the same meeting duly elected a Democratic county executive committee for the term of two years; and that Harry H. Weiss and Charles R. Raedel are, and have been since the 18th day of August, 1922, the chairman and secretary of such Democratic executive committee; and that on April 9, 1924, the respondent secretary of state received a communication, signed by such chairman and secretary, purporting to be a recommendation of the Democratic executive committee of Stark county of the relator, Kauffmann, for appointment as Democratic member of the board of deputy state supervisors and inspectors of elections of Stark county for the ensuing term.
The answer alleges that previously on February 14, 1924, the secretary of state also received a communication, purporting to be signed by William J. Pontius and Grace M. Piero, as chairman and secretary, respectively, of the Democratic "executive" committee of Stark county, certifying that a majority vote of the members of that committee had recommended said William J. Pontius for appointment as a deputy state supervisor of elections for the same period. Thereafter respondent, secretary of state, notified the chairman of the state central committee of the Democratic party that recommendation had been made by more than one committee, each claiming to be the rightful executive committee of that party for Stark county, and requested the state committee to certify to the respondent which of the disputing committees was the rightful committee to recommend appointment of a deputy state supervisor and inspector of elections of the Democratic party for Stark county. On April 18, 1924, the secretary of state received a communication, signed by the chairman and secretary of the Democratic state central committee, as follows:
"In obedience to your letter of April 10th, the Democratic state central committee of Ohio assembled at Columbus, O., on Friday, April 18, 1924, with a quorum present to consider the contest in Stark county for member of the board of deputy state supervisors and inspectors of elections for Stark county, under Section 4808, of the General Code.
"After hearing all the evidence and arguments on both sides, the following resolution was unanimously adopted by said Democratic state central committee:
" 'Resolved by the Democratic state central committee of Ohio that the certificate of recommendation for member of the board of deputy state supervisors and inspectors of election for Stark county, signed by W.J. Pontius, as chairman, recommending W.J. Pontius for member of said board of deputy state supervisors and inspectors of election for Stark county, is hereby recognized as the legal Democratic executive committee of said county and said recommendation of W.J. Pontius is hereby approved, and that the chairman and secretary of the Democratic state central committee be requested to certify our finding made this 18th day of April, 1924, to the secretary of state of Ohio.'
"Very truly yours, [Signed] F.J. Heer, Chairman Democratic State Central Committee. Clarence N. Greer, Secretary Democratic State Central Committee."
The reply of the relator, in substance, alleges that the committee which recommended Pontius for appointment as a deputy state supervisor of elections was merely a pretended committee selected by the candidates on the Democratic ticket for county offices in November, 1922, as a temporary campaign committee, and was not the rightful county executive committee of the Democratic party of Stark county; that at the hearing before said Democratic state central committee no evidence was offered tending to show that said campaign committee was the rightful county executive committee of the Democratic party, and that no claim was made by it to that effect, but that evidence was introduced tending to show that the committee recommending the relator was the rightful executive committee entitled to recommend persons for such appointment; that notwithstanding these facts, so alleged, the Democratic state central committee acted arbitrarily and with the deliberate and fraudulent purpose of defrauding the rightful Democratic executive committee of said county of the rights and privileges accorded to it by law.
Messrs. Ballard, Jones Price, for relator.
Mr. C.C. Crabbe, attorney general; Mr. H.H. Griswold; Mr. Wilbur E. Benoy and Mr. Timothy S. Hogan, for defendant.
Under our state election laws, the local controlling committee of a voluntary political party for a county is the county central committee, chosen from precincts, wards, and townships in the county by direct vote at primary election. Within 15 days after its selection, the county central committee is required to elect a county executive committee, who shall serve for a period of two years. By virtue of his office, the secretary of state is made the state supervisor and inspector of elections, and he is required as such officer to perform the duties relating thereto "as prescribed in this title." Section 4787, General Code. The specific duties prescribed in such title (title 14, Part First, entitled "Public Elections") impose upon the secretary of state, as state supervisor of elections, the duty of appointing deputy state supervisors of elections for each county, selected equally from the two political parties casting the highest number of votes at the preceding November election. The method of such appointment is controlled by Sections 4804 and 4805, General. Code, enacted in 98 Ohio Laws, page 288. Section 4808, General Code, further provides that:
"When recommendations are made to the state supervisor for appointment to new terms or to fill vacancies in the office of deputy state supervisor by more than one committee, each claiming to be the rightful executive committee of a political party entitled to recommend qualified persons for appointment on such board, such state supervisor, before making any such appointment, shall notify the chairman of the state central committee of the political party entitled to such appointment, and he shall recognize that committee as the rightful executive committee which such state central committee shall certify to be the rightful committee of such party. If such committee fails to make such certification for ten days from the giving of such notice, the state supervisor shall determine which of such disputing bodies or committees is the rightful committee of such party and shall make the appointment as provided in this chapter."
This court has repeatedly decided that mandamus lies only where there is a violation of a clear legal duty. Our statute (Section 12283, General Code) authorizes the issuance of the writ for "the performance of an act which the law especially enjoins as a duty" resulting from the office.
It appears from this record that there were recommendations made by two committees, each purporting to be the Democratic "executive" committee for Stark county. No attack was made upon the qualifications of the persons so recommended; neither was there fraud or collusive action in any way charged against the secretary of state. Unless the latter should investigate the regularity of the creation of these respective committees by independent action, and conduct a quasi judicial hearing in respect thereto, he could not ascertain which was the rightful Democratic executive committee of the county. Since elections are ordinarily matters for political regulation, they are not subject to judicial cognizance, unless some provision of the statute has been violated. The Democratic county central committee, or the Democratic state central committee, may have been guilty of a flagrant irregularity in recommending the appointment of Pontius, as shown by the record. There is no provision of law, however, which requires the secretary of state to investigate any such irregularity, or which specifically enjoins that duty upon him. Under Section 4808, General Code, when recommendations are made to the secretary of state by more than one party committee, each claiming to be the rightful "executive" committee, the specific duty is enjoined upon that official to notify the chairman of the state central committee. The law requires that the secretary of state shall "recognize that committee as the rightful executive committee which such state central committee shall certify to be the rightful committee of such party." These statutory duties have been strictly adhered to by the secretary of state, except that, so far as appears from this record, he had not, at the time the petition in mandamus was filed, appointed the person certified by the Democratic state central committee. The reason for this nonaction may lie in the fact that the petition of the relator delayed such appointment. However that may be, it is evident from this record that the only person who could avail himself of the right of mandamus to compel his appointment to the board of deputy state supervisors and inspectors of elections for Stark county was Pontius, and not Kauffmann. It was suggested in argument that an amendment to the reply would be filed, alleging a lack of legal quorum in the state central committee, when it met and certified the appointment of Pontius. But in our opinion these allegations would not affect the decision in this case.
The demurrer to the reply will be sustained, the petition dismissed, and writ denied.
Writ denied.
MARSHALL, C.J., ROBINSON, MATTHIAS, DAY, ALLEN, and CONN, JJ., concur.