
    Chapman v. Miller et al.
    
      Decision of state supervisor of elections final — Deputy board of supervisors must comply therewith — Common pleas court no jurisdiction to enjoin — Mandamus.
    Upon submission of objections to certificates of nomination, by board of deputy state supervisors to state supervisor of elections, his decision thereon is final, and the board of deputy ■state supervisors refusing to comply therewith may be compelled to do so by mandamus. And an answer stating that they have ■been enjoined by the court of common pleas or a judge thereof, states no .valid excuse for refusing to comply with the decision of the state supervisor. In such case the court of common pleas has no jurisdiction of the subject matter and its order of injunction is void.
    (Decided December 11, 1894.
    Mandamus.
    This was an action brought by Richard H. Chapman, relator, a citizen and taxpayer of Mercer county, against the board of deputy state supervisors of Mercer county, and C. G. O. Miller, John G. Beckman, S. A. Bowman and Adolph Gil-berg, the persons constituting said board, and H. H. Guy, clerk of the board, to compel said board and the members thereof, and the clerk, to obey the order of the secretary of state, as state super- ■ visor of elections, as to the printing of ballots in and for Mercer county, for the November election, 1894.
    The order which the defendants refused to obey is as follows:
    “On October 2, 1894, there was filed with the board of deputy state supervisors of election of Mercer county, a certificate of nomination certified by Thornton Spriggs, chairman, and Stephen R. Wilson, secretary of the central committee of the People’s party of Mercer county. This certificate of nomination certified certain candidates for various offices in said county. Later, towit: On the 6th day of October, there was filed with the board of deputy state supervisors of elections certificate of nomination signed by J. L. Hook, chairman,-and H. T. Hughes, secretary, as officers of a convention held at Rockford in said county of Mercer, purporting to be a convention of the People’s party of the said county, and certifying nomination of candidates for various offices of said county. On the 15th day of October, 1894, there was also filed with the said board of elections a certificate of nomination by petition, signed by more than 300 of the electors of said county, and properly certified, nominating candidates for the various offices to be filled by the electors at the coming November election' in said county. Objections were filed with the board of deputy state supervisors of elections to placing the candidates named by the alleged People’s party convention, filed October 2, and to the independent Democratic papers. On the question of placing the names of the said candidates on the ballot sheet or rejecting them the board was a tie, and so the matter comes to the secretary of state as state supervisor of elections for final decision.
    “Whether the convention held at Celina September 29, properly represented the People’s party, and whether it was regarded as representing said People’s party at the time the delegates assembled, depends upon the regularity of the call. The testimony shows that in 1893, the People’s party of Mercer county, among other things done, named a county central committee, consisting’ of the following named persons: John P. Chivington, William Nottingham, Thornton Spriggs, W. W. Harper, F, S. Collins, Martin Rutledge, Nelson Armantrout, Ezra Snider, L. E. Fox, D. Barger, S. R. Wilson and Fred Stedke. The above named central committee of the People’s party of Mercer county, it is admitted, was the central or controlling committee of such party, and authorized, among other thing’s, to call the convention for the purpose of nominating candidates for the various offices. From the testimony submitted to me, and especially by the affidavit of Frederick Stedke, corroborated by S. R. Wilson, two of the members of said committee, it appears that John C. Chivington, Thornton Spriggs, S. R. Wilson, W. Harper, Fred. Stedke, H. B. Bennett, proxy, and Ezra Snider, a majority of the central committee of said People’s party, met on the 15th day of September and by a majority vote of the members present issued a call for a convention to be held at Celina on September 29; that the said convention having-assembled on the date named in the call, appointed a committee for the purpose and authorized them to nominate a ticket for the several county officers to be voted for, and to certify the same to the board of deputy state supervisors; that said committee did nominate, as authorized by said convention, and certified to the deputy state supervisors candidates for the several offices to be voted for as follows, to. wit:
    ‘ ‘ For sheriff, Andrew L. Alexander; for treasurer, Henry V. Hinton; for recorder, Richard H. Chapman; for county commissioner, Stephen R. Wilson; for surveyor, Clyde V. Smith, and for infirmary director, John H. Murlin. The facts, as alleged in the affidavit above referred to, were denied by the attorney representing the electors who participated in the Rockford convention, but no testimony was produced in substantiation of the claim. All the evidence that has been presented shows that the Celina convention was regularly called by the duly constituted committee representing the People’s party of said county, and that it was in fact as well as in name the People’s party convention; and it is not denied that the persons participating in said mass convention were all'recognized adherents of the People’s party of said county, and that by a vote of seventy-nine to forty-four the said convention directed the said county central committee to make the nominations, and certify the same to the deputy state supervisor. It is alleged, and affidavits furnished substantiating the allegations, that some of the persons nominated were not members or adherents of the People’s party, but as a matter of fact were adherents of other political parties. Whether they are or are not members of the People’s party is immaterial, as the law distinctly recognizes the right of one party to indorse the candidates of another party by nominating them as their own candidates, or authorizing it to be done by a committee having authority to make original nominations. (See section 6a of the ballot law.)
    “The convention held at Rockford October 6, was not called by a majority of the central committee of the People’s party of county, but by a minority of the committee, and the convention was participated in only by a small number of bolting delegates who also participated in the Celina convention, and consequently it was not a convention representing the People’s party as contemplated in the statutes, and therefore had no authority to make nomination in any other manner than by petition. Whether the Celina convention was called a People’s party convention or a Populist convention is not material so long as the papers certifying the nominations certified them as People’s party candidates. The certificate of nomination certifies That at a convention of electors representing the People’s party of the county of Mercer, held at Celina, Mercer county, Ohio, on the 29th day of September, 1894, ’ etc.
    “As to the certificate of nomination of candidates for county offices by petition, as such nominations are specifically authorized by the provisions of section 7 of the ballot law, I hold such nominations to be valid, and direct that they should be printed on the ballot under the proper designation certified. It is therefore ordered that the names of the candidates nominated through the action of the convention held on September 29, at Celina, be placed upon the ballot sheet under the state ticket of the People’s party; that the nominations made at the so-called Rockford convention on October 6, be rejected, and that the candidates nominated by nomination papers, as above mentioned, be placed on the ballot sheet under the heading' as certified in the nomination papers to the board of deputy state supervisors.
    “Witness my signature and seal of office, at Columbus, this 23d day of October, A. D. 1894.
    (L. S.) “ Samuel M. Taylob,
    ‘ ‘ Secreta/ry of State. ’ ’
    To this petition, C. G. O. Miller and John G. Beekman, defendants, filed the following answer:
    
      “The State of Ohio ex rel. Richard H. Chapman, Relator, v. C. G. O. Miller et al. , Respondents.
    “Answer.
    “Now come the defendants, C. G. O. Miller, chief, and John G. Beckman, a member of the board of deputy state supervisors of elections for Mercer county, Ohio, by their counsel, John W. Loree and R. L. Mattingly, and for answer to the petition for a peremptory writ of mandamus herein, respectively allege and show by exhibit hereto attached:
    
      “First — That at the time of the filing of the petition herein, this said board of election supervisors, and these defendants named as individuals, were restrained by the judge of the common pleas court of Mercer county, Ohio, by an order made in chambers by the Hon. John E. Ritchie, a judge of said court, from printing or having printed, and from distributing the official ballots of Mercer county, Ohio, having- thereon the ticket nominated by the People’s party at Celina, Ohio, on October 2, and from having printed thereon the independent ticket nominated by petition, filed October 16, with such board. And that a petition by Francis M. Dick et al. v. C. G. O. Miller et al., for injunction was filed in the common pleas court of Mercer county, Ohio, on October 24, 1894, on which petition a restraining order hereinafter mentioned was allowed, and that said petition was for hearing on the application for the temporary injunction at 10 o’clock A. m., October 29, 1894, and that service of the said restraining order was duly served and made on the 25th day of October, 1894, at their meeting held, at 1 o’clock p. m., and that a service of the entry and order in such behalf made, was served upon the board about 9 o’clock A. M., on said day. That said petition was further heard on the said 29th day of October, on the application for tem> porary injunction by the judge aforesaid, who, after hearing said application and the evidence and argument made on the decision and order set forth .in the journal entry annexed hereto, and made a part of this answer and identified and marked as exhibit ‘A.’
    “ Second — -And said defendants further allege that the decision and orders of the secretary of state, as the state supervisor of elections in behalf of the matters herein involved, reached the board by mail in the afternoon of October 25, and there had been no meeting of the board in the interval between the receiving of such order and the service of the restraining order allowed by the judge of the common pleas court aforesaid; that these answering defendants had notice and service of the injunction before receiving the decision from the secretary of state; that their conduct in this matter has not been wilfully opposed to the orders of the secretary of state, but on the contrary in the utmost good faith to discharge their duties according to law as by them understood.
    “The said Francis- M. Dick in his petition, alleged and charged that several persons who participated in said nomination by petition, and the persons who participated in said nominations made on the 29th day of September, 1894, with conspiring together for the purpose of committing a fraud upon the rights of the said Francis M. Dick, and others alike interested, and of obtaining an unfair advantage at the coming November election by placing the same ticket in three different places upon the official ballot aforesaid, and said petition did charge and aver in said petition that they fraudulently agreed to and did nominate the same candidates for the Republican ticket,' the People’s party ticket, and for the Independent ticket, as stated by relator in his petition; and did further charge that no sufficient petition as required by law, has been filed with said board of deputy supervisors ; that said nomination papers did not contain three hundred signatures thereto as provided by law.
    “That upon the hearing’ of said petition it was developed by the evidence and was found by the court, that the nomination papers for the nomination of independent candidates did not contain three hundred signers, in conformity with and as required by law; that the papers conforming’ to law contained the names of two hundred and sixteen electors and no more. Reference is again had to exhibit ‘A,’ annexed hereto.
    “These answering defendants therefore ask that the peremptory writ prayed for by-relator be denied and for all other proper relief. ’ ’
    This answer is duly verified. The exhibit referred to in the answer is the order of the common pleas judge, and is as follows:
    
      State of Ohio, ) jn Court 0f Common Pleas. Mercer County, ss. )
    
    “Francis M. Dick for Himself et al., ETC., v. C. G. O. Miller et al.
    “ ENTRY.
    “This 29th day of October, A. D., 1894, this cause came on to be heard before the Hon. John E. Ritchie, a judge of the said common pleas court, in chambers, at the court house in Celina, Ohio, upon the application of the plaintiff, for the allowance of a temporary injunction. And thereupon came the defendants, by their counsel, and it appearing to the judge that all said defendants had been duly served with summons in said petition, and had due and legal notice of the restraining order heretofore allowed, and the time and place when and where said application would be made for the allowance of such injunction, said application was heard on the petition and the evidence, and upon the argument of counsel on behalf of plaintiffs and defendants, and the said judge being fully advised in the premises, finds that as to the nomination of independent candidates by nomination papers, that the said nomination papers do 'not contain three hundred signers thereto as provided by law; that said nomination papers by petition are not sworn to by signers as required by law; that, therefore, the prayer of the petition, in [so far as it concerns the placing and printing the candidates nominated by petition upon the official ballot of Mercer county, Ohio, for the ensuing general election, should be allowed.
    ‘ ‘It is, therefore, hereby ordered and adjudged that defendants be, and hereby are, enjoined from printing, or causing to be printed the said ticket nominated by petition on the said official ballot, until further order made herein, upon the plaintiff giving an undertaking, as provided by law, in the sum of one hundred dollars; and as to all other matters, for which an injunction is prayed for in the petition, the same is not allowed.
    “John E. Ritchie,
    
      “Judge Common Pleas Court, Mercer County, Ohio.'”
    
    
      The injunction bond, it was conceded, had been given as ordered. To this answer the relator filed a general demurrer.
    
      J. K. Richards, Attorney-General, for relator.
    
      John W. Loree, and R. L. Mattingly, for defendants.
   By the Court.

The matter of the ballots of Mercer county having been submitted to the state supervisor of elections, for the reason that no decision of the objections could be arrived at by the deputy state supervisors of Mercer county, they being equally divided, and the state supervisor having made his decision, the question is whether such decision is final, and whether, under the statute, the court of common pleas has jurisdiction to interfere by injunction or otherwise.

So much of section 10 of the ballot law, as bears on this question is as follows:

“Certificates of nomination and nomination papers, when filed, shall be preserved and be open, under proper regulation, to public inspection'; the certificates of nomination and nomination papers being so filed, if in apparent conformity with the provisions of this act, shall be deemed to be valid, unless objection thereto is duly made in writing, within five days after the filing thereof. Such objections or other questions arising in the course of the nomination of candidates for state offices and presidential electors shall be considered by the secretary of state, and his decision shall be final. Such objections or other questions arising in the course of nominations of candidates for county offices or offices of a district lying within a county, shall be considered by the deputy state supervisors of the county, and objections or questions arising in the course of nomination of candidates for district or' circuit offices or offices in a subdivision of a district shall be considered by the chief deputy state supervisors and clerks of said election boards of the several counties comprising the district, circuit or subdivision, and their decision shall be final; but in case no decision can be arrived at, the matter in controversy shall be submitted to the state supervisor of elections, who shall summarily decide the question thus submitted to him, and his decision shall be final.” (90 0 L., 269.)

It will be noticed that the decision of the board of deputy supervisors, as well as the decision of the district or circuit board, is final. Also, that the decision of the state supervisor is final, whether made as to candidates for state officers or presidential electors, in the first instance, or county, district or circuit officers, upon submission by those boards. The statute provides that the questions shall be summarily decided, and that the decision shall be final. This necessarily excludes the jurisdiction of the court of common pleas, as to the subject matter, and it is clear that the judge of the court of common pleas was without jurisdiction, and that his order granting the injunction was utterly void and of no effect, and furnishes no excuse for the refusal to obey the order of the state supervisor of elections.

It is urged that if the action of the state supervisor is final, and if the courts of the state have no jurisdiction to interfere, then this court has no jurisdiction in this case. The answer is that the action of the state supervisor is final as to the questions submitted to him, and courts have no jurisdiction of these questions; but when those questions are decided by the state supervisor, and the duties of the county board fixed, it becomes the duty of such board to obey the order of the state supervisor, and if the members of the county board refuse to execute the order of the state supervisor, they can be compelled to do so by mandamus. This is not invading the exclusive jurisdiction of the state supervisor, but is commanding obedience to his order after his jurisdiction has been exhausted. This court may in any case compel by mandamus “the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” (Section 6741, Revised Statutes.) The state supervisor having, by his decision, determined the names to be placed upon the ballots for Mercer county, it is by statute made the duty of the deputy supervisors to cause the ballots to be printed and distributed. This legal duty they refused to perform, and the court has jurisdiction and power to compel performance by mandamus.

The demurrer is, therefore, sustained, and a preerryptory xorit of mandamus awarded.  