
    The State of Ohio ex rel. Martin v. Thompson et al.
    
      Two certificates of nominations for county offices — Written objections filed to one — Validity of unobjected certificate — Section 2966-28, Revised. Statutes — Common pleas court without authority to restrain deputy state supervisor, when — Mandamus will not lie, when — Procedure in nominations.
    
    .Where two certificates of nominations for county offices, both claiming to be the regular nominations of the same political party are filed, and written objections are duly filed to one of such certificates and none to the other, a controversy is thereby raised as to the validity of the latter certificate and as to it the other certificate and the written objections thereto operate as written objections within the meaning of section 2966-23, Kevised Statutes; and the court of common pleas is without authority to restrain the deputy state supervisors, of the county from considering such certificates and the controversy arising thereon, and from certifying to the state supervisor of elections their failure to arrive at a decision thereon; and such court is without authority to require the deputy state supervisors, by mandamus or otherwise, to. cause the names appearing in the certificate to which specific objections were not filed to be printed on the official ballot..
    (No. 9201
    Decided November 1, 1904.)
    Mandamus.
    The facts appear in the petition, answer, demurrer to the second and third defenses of the answer and reply to the first defense, as follows:
    "The relator says that he is a republican elector of Brown county, Ohio.
    "That the defendants, F. W. Thompson, Isaac Bower, W. E. Hall and C. C. McBeth, are deputy state supervisors of elections for Brown county, Ohio, and constitute the hoard of deputy state supervisors for said county, and that H. P. Jennings is. the clerk of said board.
    
      “That on the nineteenth day of September, 1904, there was filed with the said board of deputy state supervisors, a certificate purporting to be a certificate of nomination for officers to be voted for at the November election of said county, signed by J. D. Houston, chairman, and J. W. Galb'reath, secretary of a republican county convention held at Georgetown, Brown county, Ohio, on September 19, 1904.
    “That on said same day, to-wit, September 19, 1904, there was filed with the said board of deputy state supervisors, a certificate of nomination signed by J. C. Martin as chairman and Thomas J. Leeds and J. O. Newcomb as secretaries of the republican county convention held at Georgetown, Brown county, Ohio, on said nineteenth day of September, 1904. Both certificates hereinbefore mentioned purported and claimed to be certificates of nominations made by the republican party of Brown county, Ohio, for officers to be voted for at the November election, 1904.
    “That thereafter, on the twenty-fourth day of September, 1904, exceptions and objections, in writing, were filed with the said board of deputy state supervisors to the certificate of nomination of the list of candidates certified by J. O. Martin, Thomas J. Leeds and J. C. Newcomb.
    ‘ ‘ That on the second day of October, 1904, said exceptions and objections came on for hearing before said board of deputy state supervisors, who having considered the objections and exceptions, and having heard the evidence offered by the contending parties, were and are unable to agree and no decision can be arrived at by said board as to which of said list of candidates, so certified, should be placed upon the official ballot as tbe candidates of the republican party in said county.
    “Section 2966-23, being section 10 of the ballot law, provides amongst other things, that objections or questions arising in the course of nomination of' candidates for county officers shall be decided by the board of deputy state supervisors of said county,, and such 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 same and his. decision shall be final.
    ‘ ‘ That said board of deputy state supervisors and the members thereof and said clerk fail and refuse to submit the question in controversy to the state supervisors of elections as required by law.
    “Relator has no other adequate remedy.
    “Wherefore relator prays that a mandate may issue commanding said defendants, and each of them, to submit to the state supervisor of elections the matter in controversy arising out of the filing of' said certificates of nomination, the objections thereto, and the failure and refusal of said board to decide-said matter.
    “Now come W. E. Hall and C. C. McBeth, two of' the defendants, and for their answer to the petition and the alternative writ awarded by this court say:-
    
      “First Defense. Prior to and at the time of the filing of the petition in said action in this court, and at the time of the application for the alternative writ issued in this case, another action was pending in the court of common pleas of Brown county, Ohio, between the same parties in the relation of J. D. Houston upon the same subject, and involving the same-questions presented by the petition in this action.
    
      “Wherefore the said defendants pray that the petition herein and the alternative writ issued on the same be dismissed at the costs of the relator.
    
      11 Second Defense. They admit the allegations of the petition as to the filing of the certificates of nomination referred to therein, and as to the action of the said deputy state supervisors of elections on the objections filed to the certificate signed by J. C. Martin as chairman, and J. C. Newcomb and T. J. Leeds as secretaries, but they say that the certificate signed by J. D. Houston as chairman, etc., was filed first,, and that no objections or exceptions were ever filed to the certificate signed by said J. D. Houston as chairman and J. W. Galbreath, secretary, and that they have never refused to certify to the inability of the said deputy state supervisors of elections to come to any decision as to the objection filed to the certificate of nomination signed by said J. C. Martin,, as chairman, and T. J. Leeds and J. C. Newcomb, as. secretaries.
    “ Third Defense. They adopt and make a part of this defense the allegations of their first defense, as. though repeated herein, and further say, in the action referred to in said defense, the defendants were restrained and enjoined from certifying to the state supervisor of elections any disagreement of the deputy state supervisors of election as to the certificate of nomination signed by said J. D. Houston as chairman, etc., and that they have never refused to certify their disagreement as to the certificate of nomination signed by said J. C. Martin, as chairman, etc.
    “And now, having fully answered, they pray to be. dismissed with their costs.
    
      “Now comes the relator and demurs to the second and third defenses of the answer of defendants, W. E. Hall and C. O. McBeth, herein on the ground • that they do not set forth facts sufficient to constitute a defense.
    “Now comes the relator and for reply to the first defense in the answer of defendants, W. E. Hall and C. C. McBeth, says he denies each and every allegation contained in said first defense of said answer; and relator further says that the suit referred to in the first defense of said defendant’s answer was not between the same parties as is this cause before the court; that the motive of said action referred to in said first defense is fully disclosed in the certified copy of the petition in said cause and which is attached to this reply and made part thereof; and relator further says that no other petition has ever'been filed in the court of common pleas of Brown county, Ohio, involving any of the matters in controversy in this cause, except the petition of which the attached is a true copy.
    “The relator says that he is a republican elector of Brown county, Ohio.
    “That the defendants, F. W. Thompson, Isaac Bower, W. E. Hall and O. C. McBeth are the deputy state supervisors of elections for Brown county, Ohio, and together while in session constitute the board of deputy state supervisors of elections within and for said county; that W. E. Hall is the chief deputy and H. P. Jennings is the clerk of said board.
    “That on the nineteenth day of September, 1904, plaintiff and other republicans of Brown county, Ohio, deposited for filing with said chief deputy, W. E. Hall, and thereby filed with said deputy state supervisors of elections a certificate sworn to by J. D. Houston, as chairman, and J. W. Galbreath, as secretary, of a certain republican convention, held at Georgetown, Brown county, Ohio, on said nineteenth day of September, a true copy of said certificate, with the possible exception of the arrangements of names, is hereto attached, marked ‘Exhibit A’ and made a part hereof. That at the time said certificate was so filed with said "W. E. Hall as chief deputy the said H. P. Jennings was absent from the county of Brown aforesaid, or if not absent, could not. be found, so as to deposit said certificate with him.
    “That no exceptions were ever filed to said certificate and said certificate is still on file.
    “That on said nineteenth day of September, 1904, but after the certificate above referred to had been filed with said board, another and different certificate was filed with said W. E. Hall, as chief deputy aforesaid; said last mentioned certificate purports to be a certificate of the nomination of other and different candidates by the republican party of said county for the county offices mentioned in said certificate first filed with said W. E. Hall as aforesaid. ' Said second certificate was sworn to by J. O. Martin, as chairman, and Thos. J. Leeds and J. C. Newcomb, as secretaries of what purported to be another and different convention of republicans, and with the exception of perhaps the arrangement of the names and the order in which they appear, a true copy of said certificate is hereto attached marked ‘Exhibit B, ’ and made a part of this petition.
    “That on the twenty-fourth day of September, 1904, J. D. Houston and J. "W. Galbreath, as republican electors of Brown county, Ohio, duly filed with said board exceptions and objections in writing to said last mentioned certificate, for reasons stated in said exceptions, and such, proceedings were had by said deputy state supervisors of elections, that on the second day of October, 1904, said exceptions came on for hearing before them assembled as a board, and over the objections of attorney representing said exceptions said deputy supervisors attempted to determine which of said certificates was the one that should be held as valid by them, and not the question of the exceptions to said last filed certificate. Said deputy state supervisors did not agree on the issues which they tried and directed their clerk, the defendant, H. P. Jennings, to certify both of said certificates to the secretary of state of the state of Ohio for his decision, also' directing him to certify to said secretary of state their inability to agree as to which certificate was the valid and genuine certificate, for the purpose of having said secretary of state determine -which should be used by said deputy state supervisors in making up the official ballot to be voted at the next November election in said county, and unless said deputy supervisors and said clerk are restrained by an order of this court they will make such certificate to said secretary of state.
    “Your relator says that the first certificate mentioned herein should be recognized as the true and valid certificate of the nominations by said republican party and the names therein contained should be printed on the official ballot and voted at the election in said county to be held November 8, 1904, for the reason that it was filed first in time and -that no exceptions have ever been filed to it.
    “Your relator therefore prays that said deputy state supervisors and said clerk thereof be restrained by an order of this court from certifying said certificate first herein mentioned to said secretary of state for any consideration whatever or making any certificate in reference thereto or of them failing to agree on the validity thereof that a writ of mandamus issue commanding said defendants, Frank W. Thompson, Isaac Bower, W. E. Hall and C. O. McBeth to cause the names appearing on the first certificate mentioned herein to be printed on the official ballot to be voted for at the election to be held in said county on the eighth day of November, 1904, as the only republican ticket to be voted for in said county, for said offices at said election, and for all proper relief. ’ ’
    
      Mr. Charles Kinney, for relator, cited and commented upon the following authorities:
    
      McDonald v. Hinton, 14 Cal., 484; State ex rel. v. Henderson, 38 Ohio St., 649; Chapman v. Miller, 52 Ohio St., 166; Grear, In re, 9 Dec., 299; 6 N. P., 312; Hardesty v. Taft, 23 Md., 513; State ex rel. v. Ehrman, 2 Dec., 400; secs. 2966-18, 2966-23, Rev. Stat.
    
      Mr. G. Bambach and Mr. O. E. Young, for defendants Hall and McBeth, cited and commented upon the following authorities:
    
      State ex rel. v. Perry Co., 5 Ohio St., 497; Anderson Law Dic., 423; State v. Railway Co., 8 Circ. Dec., 474; 15 C. C. R., 200; State v. Henderson, 38 Ohio St., 644; State v. Tanzey, 49 Ohio St., 656; Chapman v. Miller, 52 Ohio St., 166; State v. Ottinger, 43 Ohio St., 457; Weil v. Guerin, 42 Ohio St., 299; Ex parte Chetwood, 165 U. S., 446; Ex parte Bushnell, 8 Ohio St., 599; Smith v. McIver, 9 Wheat., 532; Moran v. Sturges, 154 U. S., 256; Keating v. Spink, 3 Ohio St., 105; Dwyer v. Garlough, 31 Ohio St., 160; State v. 
      Railroad Co., 35 Ohio St., 154; Totten v. Lawton, 4 Circ. Dec., 518; 8 C. C. R., 377; Mississippi v. Johnson, 4 Wall. (U. S.), 475; secs. 2966-23, 6742, 6743, Rev. Stat.
   By the Court.

The court of common pleas improperly ordered that the defendants should be restrained from certifying to the secretary of state that they were unable to agree concerning the validity of the certificates and nomination papers which had been filed with them and from making any certificate whatever 'in relation to the certificate filed by J. D. Houston, chairman, and J. W. Gr'albreath, secretary; and likewise erred in commanding the defendants to cause the names appearing on the said certificate filed by Houston and Ualbreath to be printed on the official ballot. This Houston certificate could not be “deemed valid” within the meaning of section 2966-23, Revised Statutes, if objections were duly made in writing within five days after the filing of the certificate. The statute does not prescribe the form of such objections; but it does require that they shall be in writing. The filing on the •same day of another certificate of nominations for the same offices, to which objections were afterwards formally filed by Houston and Gralbreath, necessarily operated as objections in writing to the Houston certificate; because section 2966-18, Revised Statutes, provides that, “any convention representing a political party * * * may make one nomination for ■each office to be filled at the following election,” and there being in this instance two certificates, each claiming to represent the republican party, each ex necessitate disputes the regularity and authority of the other and therefore operates as a protest against the other. Hence the Houston certificate could not he deemed valid for the reason that there had not been filed an objection to it in writing. When the defendants failed to agree upon a decision of this controversy, it was their plain statutory duty to certify that fact to the secretary of state, and in our opinion there was no warrant in law for interfering with that duty by the intervention of the court of common pleas. See Chapman v. Miller et al., 52 Ohio St., 166; Randall et al. v. State, 64 Ohio St., 57.

The demurrer to the answer will be sustained and the prayer of the relator for a peremptory writ of mandamus will be granted.

Writ allowed.

Spear, C. J., Davis, Shauck, Price and Crew, JJ., concur.

' Summers, J., absent.  