
    Randall et al. v. The State of Ohio ex rel. Hunter et al.
    
      Decision of state supervisor of election as to matters submitted to Mm by deputy supervisors is final — Error for court to order depxity to perform act contrary to decision of state supervisor — Attempt to compel deputy to print names of candidates on ballot by mandamus — State supervisor not proper party — Deputy state superviors not a board or corporate body — Legal status of deputy.
    
    1. The decision of the state supervisor of elections as to matters in controversy submitted to him by the deputy state supervisors, is final. It is the duty of such deputy state supervisors to obey such decision of the state supervisor of elections; and it is error for a court, by mandamus or otherwise, to order such deputy state supervisors to perform an act contrary to such decision of the state supervisor of elections.
    2. In a proceeding in mandamus to compel the deputy state supervisors to print names of candidates for office upon the official ballot, the state supervisor is not a proper party. And such action cannot be maintained to compel the performance of an act contrary to the decision of the state supervisor in the premises.
    3. The deputy state supervisors are not constituted a board, or corporate body by the statute, but each one acts simply as a deputy state supervisor, and in case of litigation the action should be against him in that capacity, and he may prosecute error, even though the others refuse to join with him.
    (Decided January 22, 1901.)
    Error to the circuit court of Warren county.
    The action below was commenced on the 26th day of October, 1900, in the circuit court by the state of Ohio on the relation of Lon Hunter against the board of deputy state supervisors of elections for Warren county, Ohio, and Thomas C. Christie, G-eorge W. Snook, Charles W. Randall, and Charles IT. Eulass as deputy state supervisors of elections for said county of Warren, and Ed. S. Conklin as clerk of said board of deputy state supervisors of elections, defendants.
    The petition, omitting the caption, signatures and exhibits, is as follows:
    “On the 2nd day of June, A. D., 1900, the relator was duly nominated by a convention of electors representing the Democratic party of Warren county, Ohio, for the office of sheriff of said county of Warren, Ohio, and one L. R. Robertson was nominated for the office of clerk of courts of said county of Warren, Ohio, and one John W. Scull, Jr., was nominated for the office of infirmary director of said county of Warren, Ohio, to be voted for at the general election to be held on the 6th day of November, 1900.
    “The plaintiff and said L. R. Roberston and- John W. Scull, Jr., are residents and electors of Warren county, Ohio; and the Democratice party of the state of Ohio at the last preceding general election polled more than one per cent, of the entire vote cast in said state.
    “At said convention the Democratic executive committee of said county, to-wit: W. W. Crane, Howard W. Ivins, Henry Reid, George W. Jack, M. V. Baldwin, Adam Bridge, and J. M. Earnhart were appointed a committee to represent said party, and duly authorized to fill vacancies in the ticket nominated by said convention.
    “At said convention J. M. Earnhart was duly elected and acted as chairman of said convention, and Mary Proctor Wilson was duly elected and acted as the assistant secretary of the convention. On the 18th day of October, A. D., 1900, the said J. M. Earn-hart as said chairman of said convention, and said Mary Proctor Wilson as assistant secretary of said convention, made a certificate as required. by law showing and certifying that said plaintiff and said L. B. Robertson and John W. Scull, Jr. had been duly nominated by said convention for the respective offices hereinbefore stated and that the persons hereinbefore named were authorized to represent said Democratic party in said county; wrhich said certi-' ficate ‘was duly verified by said J. M. Earnhart and Mary Proctor Wilson according to law-; and said certificate was filed with said E. S. Conklin, the clerk of said board of deputy supervisors of elections for said county on the 18th day of October, 1900, at the hour of 1:45 o’clock P. M., of said day. A true copy of said certificate is hereto attached and filed herewith and is made a part hereof, marked ‘Exhibit A.’
    “On the 19th day of October, 1900, at 9:15 o’clock, A. M., W. W. Crane as chairman and Howard W. Ivins as secretary of the Democratic executive committee filed with said E. S. Conklin, the clerk of said board of deputy supervisors of elections for said county, a certificate as required by law" in order to correct any insufficiency, imperfection or defect in said certificate herein before set out and to fill any vacancies that may have been caused by any such insufficiency, imperfection or defect in said certificate and the executive committee of the Democratic party of Warren county, O., made therein the following noihinations: Lon Hunter, Lebanon, O., sheriff; L. R. Robertson, South Lebanon, O., clerk of courts; John W. Scull, Jr., Mason, O., infirmary director. A true copy of said certificate is hereto attached and filed herewith and is made a part hereof, marked ‘Exhibit B.’
    “On the said 19th day of October, 1900, and at 10:04 A. M., an objection to the first and second certificates herein before set out was filed with E. S. Conklin, the clerk of said board of deputy supervisors of elections for said county. The only objection made being that said certificate was not filed not less than twenty days previous to the 6th day of November, 1900, the day of election. A true copy of said certificate is hereto attached and filed herewith and is made a part hereof, marked ‘Exhibit C.’
    “Said board of deputy supervisors of said county of Warren met October 20th, 1900, and on motion that the names on said Democratic ticket be printed on the official ballot, the votes of the board stood yeas two and nays two. On motion the proceedings of the board, together with all papers, were referred to the secretary of state. A true copy of said proceedings of said board is hereto attached and filed herewith and made a part hereof, marked ‘Exhibit D.’
    “On consideration the secretary of state held that the time provision of the statute for filing certificates is mandatory and that the certificate filed on the 18th day of October, 1900, as hereinbefore set forth was null and void and could not be corrected by a supplemental certificate, and directed said board of deputy supervisors of elections for Warren county, Ohio, that said ticket should, not be placed on the official ballot. A copy of the holding of the secretary of state is hereto attached and filed hemvith and is made a part hereof, marked ‘Exhibit E.’
    “The official ballot of Warren county has not been printed and- there is yet ample time to place said Democratic ticket on the official ballot and to have the same printed, but the said board of deputy supervisors refuses to permit the same to be done.
    “Wherefore the plaintiff prays that a writ of mandamus issue from this court commanding the defendants, the board of deputy state supervisors of elections for Warren county, Ohio, to have the said Democratic ticket so as aforesaid nominated and certified to said board printed on the official ballot for said county for the next ensuing election on November 6, 1900, and for all other and proper relief.”
    To this petition the defendants filed the following demurrer:
    “Now come the said defendants and demur to the ' petition of said relator for the following reasons, to-wit:
    “1. The defendants are not proper parties to this suit, but the state supervisor of elections, Hon. Charles Kinney, is the proper party defendant to this suit.
    “2. Said court has no jurisdiction of the subject-matter of said action.
    “3. 'Said petition does not state facts sufficient to Avarrant the relief prayed for by relator.”
    The circuit court overruled the demurrer, to which exceptions Avere taken. The defendants not desiring to plead further, the court awarded a peremptory mandamus, at costs of defendants below, to which exceptions were taken. Thereupon a petition in error was filed in this court to reverse the judgment of the circuit court.
    
      F. M. Cunningham; Frank Brandon and George A. Burr, for plaintiff in error.
    1. The state supervisor of elections was a necessary party to the petition in the circuit court. Under the provisions of sections 2966-1 and following sections of the Revised Statutes of Ohio, the state supervisors of elections is vested with paramount authority over the election officers and elections in Ohio. The members of the board of deputy state supervisors are appointed by him and may be removed by him. Section 2966-3, Revised Statutes; and they are therefore merely his agents in carrying out the powers and authority vested by law in the state supervisor. They were then engaged in carrying out his express order and command when the circuit court intervened and assumed to exercise authority which we maintain the law has vested in the state supervisor of elections alone. The deputy state supervisor .of elections has plenary power over the appointment and removal of the deputy state supervisors of elections throughout the state, the preparation of the official ballot and the - general conduct of the entire election. Therefore this case was prosecuted against the mere agents of the state supervisor of elections instead of the principal, the state supervisor of elections; and therefore there is a defect of parties defendant to the original petition.
    2. Neither certificate of nomination was filed “not less than twenty days previous to the day of election” as required by section 2966-22, Revised Statutes. It is conceded by counsel for the Democrats that the original certificate was not filed in time; and therefore it is a nullity.
    The statute is mandatory — “Certificates of nomination and nomination papers for the nomination of candidates for county officers shall be filed with the deputy state supervisors not less than twenty days previous to the day of election.” State v. Taylor, 55 Ohio St., 385.
    It is plain, therefore, that the certificate filed on the 18th day of October is absolutely a nullity and no nominations can be based upon it. Now can the Democrats bring themselves within the saving of section 2966-24, Revised Statutes? It is manifest that they cannot. That section applies only in cases Avhere the original certificate, filed in due time, is defective or imperfect, by reason of the causes set forth therein.
    The names on these certificates were not entitled to be printed on the official ballot; because only such names shall be printed thereon as have been duly nominated according to the provisions of these sections. Section 2966-32, Revised Statutes.
    3. The decision of the state supervisor of elections on the matter in dispute was final, and the circuit court had no jurisdiction of the subject matter of the petition. Section 2966-23, Revised Statutes. Chapman v. Miller, 52 Ohio St., 166; Commissioners v. Johnson, 21 Fla., 577.
    
      W. C. Thompson; W. F. Eltsroth; John E. Smith and S. W. Probasco, for defendants.
    First. Was the secretary of state a necessary party to the action, without whose presence in court a writ of mandamus could not issue?
    We say not, because he has no duty to perform in reference to the printing of the ballots for election of county officers. In fact, he has nothing to do except to determine such questions in their jurisdiction as they cannot decide. Sections 2926-22, 23, 24, 26, 27, 28, 29, 30 and 31.
    Second. Was the action of the secretary of state final, so as to deprive a court of general jurisdiction of jurisdiction to determine the legality of his action?
    We hold not, because he has jurisdiction to determine only questions of fact, and those only as to whether there has a question been raised by objection. Revised Statutes, 2966-23. State ex rel Fulton v. State, Sup’rs, 9 C. D., 427; 17 C. C., 396.
    
      There is no question of fact in the case, and there is no question as to the certificate, in form or otherwise.
    It is simply a matter of the application of the law to the facts as they exist.
    The fact that an objection was filed on account of the time of filing the certificate devolves upon the board or the secretary of state, no duty of determining any contest. It is their duty, under the law, to apply the law to the facts as they exist undisputed, even without any objection being filed with them. This duty is executive, and not judicial, and their acts cannot be final.
    Third. Is the provision of the statute as to the time when the certificate is to be filed mandatory ?
    We answer no.
   Burket, J.

Jurisdiction in mandamus is conferred upon the circuit court by section 6 of article 4 of the constitution, and that jurisdiction cannot be abridged or taken away by the general assembly.

Section 6741, .Revised Statutes, is as follows: “Mandamus is a writ issued in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

The law as to mandamus at the time the constitution was adopted, was not broader than this section of our present statutes, and therefore we need not look further than to properly construe this section.

Section 6 of the Australian ballot law, 89 O. L., 434, provides that, “nominations to be valid must be certified as hereinafter provided.” Section 9 of the same law, 93 O. L., 189, provides that, “certificates of nomination and nomination papers for the nomination of candidates for county offices shall be filed with the deputy state supervisors not less than twenty days previous to the day of election.” Section 10 of the same law, 90 O. L., 269, provides that, “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 nominations of candidates for county offices * * * shall be considered by the deputy state supervisors of the county, * * * 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.”

In the case at bar objections to the certificates were filed within five days, and the deputy state supervisors of the county considered the same and failed to arrive at any decision, and they submitted the matter in controversy to the state supervisor of elections, and he decided that the certificates were filed too late, and that the names of the candidates should not be placed on the official ballot, and directed that they be omitted. As the statute provides that his decision shall be final, the decision so made by him became the law of the case, and absolved the deputy state supervisors from the duty of placing the names on the ballot, and after that decision the performance of the act of placing the names on the ballot was not enjoined by law “as a duty resulting from an office, trust or station.”

The duty of the deputy state supervisors after that decision was to omit the names from the ballot, and it was error to order them by a writ of mandamus to perform an act which it was their duty under the statute not to perform.

The controlling principle — the finality of the decision of the state supervisor of elections — is the same in this case as in Chapman v. Miller, 52 Ohio St., 166. While the general assembly cannot curtail the jurisdiction of the circuit court in mandamus, it can so enact the law as to remove the duty to do any particular act, and when the duty no longer exists, the power of the court to command the performance of such supposed duty is gone.

As the decision of the state supervisor is final, the correctness of such decision cannot be reviewed or considered by a court, and therefore he is not a proper party to a proceeding to compel the deputy state supervisors, by mandamus or otherwise, to disregard such decision, or act contrary thereto. A court has no authority to compel such contrary action by the deputy state supervisors, nor to compel the state supervisor to change or modify his decision. He makes his decision to the best of his judgment and discretion, and such discretion cannot be controlled by a court. Section 6712, Revised Statutes.

The deputy state supervisors are not constituted a “board of deputy state supervisors” or corporate body by statute, and there is no provision for designating or suing them as such. The statute provides simply for the appointment of “deputy state supervisors,” and- they are known by that designation throughout the statute, and each one acts as such, and if sued, should be sued as such, and can prosecute error as such even though the others refuse to join in such error proceedings. In case of such refusal they should be made defendants. ,

The judgment of the circuit court will be reversed, the demurrer sustained, and the petition dismissed.

Judfjment accordingly.

Shauck, C. J., and Minshall, Williams, Spear and Davis, JJ., concurred.  