
    The State of Ohio ex rel. Culbert v. Kinney, Secretary of State and State Supervisor of Elections for the State of Ohio.
    
      State supervisor of elections — Duties and powers — Section 2066-8, Revised Statutes — Appointment of deputy state supervisor — Recommendation for appointment of qualified person Toy county executive committee — Mandamus proper remedy to compel slate supervisor to perform duty.
    
    
      1. By Section 2966-3, of the Revised Statutes, the state supervisor of elections was required, on or before the first Monday in August, 1892,to appoint deputy state supervisors of election for the term of one and two years from that date, as therein provided; and, as the first Monday in August of that year was the first day of the month, that became the day of the month for the beginning of the terms of subsequent appointees, and on or before which such subsequent appointments should be made.
    '2. When a recommendation for the appointment of a qualified person as deputy state supervisor of elections, signed by the chairman, secretary and members of the county executive committee of a political party that at the preceding November election cast the highest or the next highest number of votes for governor or secretary of state, is placed on file with the state supervisor of elections, within the required time, it is his duty to appoint the person so recommended.
    3. Mandamus is the proper remedy to enforce the performance of that duty.
    (Decided November 13, 1900.)
    Mandamus.
    This action is brought to compel the defendant to appoint the relator to the position of deputy state supervisor of elections for Sandusky county.
    The petition alleges that on the 17th day of July, 1900, there was filed in the office of the defendant, the recommendation of the republican executive committee of Sandusky county, for the appointment of the relator as a deputy state supervisor of elections of that county, for the term beginning August 1, 1900, and ending July 31, 1902; that the relator was then, and is, a citizen and elector of that county having all the qualifications necessary for a deputy state supervisor of elections for the county, and that he was then, and still is, a member of the republican party which, at the election held in November, 1899, cast the highest number of votes in this state for the, office of governor. It is further alleged that notwithstanding the recommendation so filed, the defendant, in violation of his duty, refused, and still refuses, to appoint the relator to the office or place of deputy state supervisor of elections for Sandusky county. The prayer is for a. writ requiring defendant to make the appointment.
    The defendant by his answer denies the allegations of the petition, and avers that “there being no recommendation before him for the appointment of a deputy state supervisor of elections in and for the county of Sandusky, from, the republican executive committee of said county,” he appointed to that place another person, who has entered upon his duties and is still acting in the performance thereof. Evidence was taken on the issues thus joined, which, it is conceded, shows that on the 14th day of July,. 1900, there was sent from Fremont, Ohio, to the office of the state supervisor of elections at Columbus, Ohio, the following recommendation: “Recommendation for appointment of member of board of deputy state supervisors of elections for Sandusky county. Fremont, Ohio, July 14, 1900. To the Secretary of State, Columbus, Ohio. The undersigned members, chairman and secretary of the republican executive committee of Sandusky county, Ohio, acting for and on behalf of said committee, hereby recommend Albert E. Culbert, of Fremont, Ohio, for appointment as deputy state supervisor of elections for said county for the term beginning August 1, 1900, and ending July 81, 1902. (Signed.) J. D. Bemis, Chairman, A. H. Jackson, A. E. Culbert, Secretary, J. H. Becker, C. P. Myers, W. A. Roush.” This document was received at the office of the defendant on the 17th day of July, 1900, and was then filed therein with the following endorsement: “Recommendation for appointment of deputy state supervisor of elections for San-dusky county. Republican. Received July 17, 1900. Charles Kinney, Secretary of State.” And the receipt and filing of the paper by the defendant was acknowledged in the following communication to. the relator: “Ohio, Department of State, July 17, 1900. Albert E. Culbert, Fremont, Ohio. Dear Sir: I am in receipt of the recommendation of the republican executive committee of your county in behalf of your appointment as deputy state supervisor of elections, and have filed the same. Very respectively yonrs, Charles Kinney, Secretary of State.”
    On the 14th day of July, 1900, E. L. Rugh, the only member of the republican county executive committee of Sandusky county, whose name is not signed to the recommendation herein above set forth, sent his written recommendation to the state supervisor of elections in the words and figures following: “Gibson-burg, Ohio, July 14, 1900. Hon. Charles Kinney. Secretary of State, Columbus, Ohio. My Dear Sir: I hereby recommend Albert E. Culbert, of Fremont, Ohio, for appointment as deputy state supervisor of elections for said Sandusky county, for the term beginning August 1, 1900, and ending July 31, 1902. (Signed.) E. L. Rugh.” The evidence also shows that the persons whose names are signed to the foregoing recommendations constituted the entire republican executive committee of Sandusky county, that their signatures thereto were genuine, and that J. D. Bemis was chairman, and A. E. Culbert, secretary of the committee.
    
      Dyer, Williams & Stouffer; Richards é Heffner; D. B. Love and J. M. Hall, for relator.
    The recommendation of the relator was in writing, duly signed by the officers of said committee and also by all the members thereof except Mr. E. L. Rugh, who presented a separate written recommendation; and the relator contends that this recommendation contains the expressed will of the committee, and that it can not be questioned by the respondent except on the ground that it is fraudulent, and not genuine. .
    No such claim as this is made by the respondent or his attorneys; and we, therefore, contend that no testimony should be considered by the court in its determination of this case except the recommendation itself. This conclusion must be accepted as correct; for, if this recommendation is not fraudulent, it must be genuine; if genuine, is expresses the will of the executive committee.
    Now the will of the executive committee, when expressed in the form of a recommendation of a qualified person, to the state supervisor, at least ten days before the appointment is made, must be regarded; for, in the language of the statute, “then the state supervisor shall appoint the persons so recommended.”
    The duty of the state supervisor being purely ministerial, mandamus will lie.
    Under the statute, when the proper committee has recommended, the secretary of state has no discretion in the making of the appointment. The language of the statute is, that if such recommendation be made, “then the state supervisor shall appoint the person so recommended.”
    His duty is purely ministerial, and is plainly specified. Marbury v. Madison, 5 U. S. (1 Cranch), 137; State ex rel. v. Moore, 42 Ohio St., 103; Coll v. Canvasser, 83 Mich., 367 (S. C., 47, N. W. Rep., 227; Strong, petitioner, 20 Pick., (Mass.),484; Groom v. Gwinn, 43 Md., 574; State ex rel. Truesdell v. Plambeck, 36 Neb., 398, (S. C., 54, N. W. Rep., 667), 404; Speed v. Common Council, 97 Mich., 211; Ellis v. County Commissioners of Bristol, 2 Gray, 370; People ex rel. v. Hilliard, 29 Ill., 413; People ex rel. Brewster and Jones v. Kildruff, 15 Ill., 493; Merill on Mandamus, Section 140.
    The action' of the county executive committee of Sandusky county was regular and in due form.
    
      It is the claim of the respondent herein, that he was not bound to appoint the relator, for the reason, that the recommendation made to him on relator’s behalf, was not the action of the executive committee of the republican party of Sandusky county, but was the action of the individual members thereof.
    The action of the committee making the recommendation is the controlling thing. The subsequent signing of the printed form by the chairman and secretary, or by all the committee as in this case, was simply the formal execution of the agreed action of the committee, and it is immaterial when or where said recommendation was signed.
    It will be noted that all of the cases cited by counsel in'brief for respondent, which counsel have been kind enough to furnish to us in advance of the preparation of our brief, are cases which have relation to corporate bodies, or to bodies officially organized, by statute, in the nature of corporations.
    This is distinctly stated to be the basis of the decision in the case of State ex rel. Steinbeck v. Treas., 22 Ohio St., 144.
    The republican county executive committee of San-dusky county is neither a creature of statute nor a body corporate. It has no corporate rights, and cannot exercise any corporate functions.
    
      McKane v. Adams, 123 N. Y., 609; 51 Hun., 629.
    It is clear, therefore, that the reasoning and the authorities contained in the cases cited by counsel, applying as they do to corporations and corporate acts, are not pertinent to the case at bar.
    This committee had no constitution or by-laws, nor had it even adopted any rules for its guidance in conducting its business. It therefore cannot be said that because such formal action as the statutes require of corporate bodies, or such as conform in all respects to the rules of parliamentary law, was 'not observed, that the action of this committee in recommending relator was, therefore, void. On the contrary, the subsequent signing of the recommendation of relator by the officers and members of this committee is such a ratification of the action of the committee at its meeting as to preclude the denial of the good faith of the committee’s action. Broat, 27 N. Y. Sup., 176.
    In none of the authorities, is it held to be necessary that there should be a formal vote of the body, except in those eases, where, by statute, it is made the duty of such boards or other bodies to keep a formal record of their proceedings. Madden v. Smelts, 2 C. C. R., 168; 1 Circ. Dec., 424; McCortle v. Bates, 29 Ohio St., 419; 19 Am. and Eng. Ency. of Law, 465; Stewart v. Wallis, 30 Barb., 344.
    These authorities, and the other authorities quoted by counsel for respondent in their brief, all show that the essential features necessary to the validity of the act of a body of the kind and character of the republican county executive committee, are the following:
    1. That the members shall have proper notice of the meeting.
    2. That a quorum shall be present at such meeting.
    3. That they shall deliberate upon the subject matter before them.
    4. That they shall take action while in session.
    
      J. M. Sheets, Attorney General; Daniel J. Ryan and George E. Jones, for respondent.
    There was no action by the executive committee of the republican party of Sandusky county, as such; therefore the power of the state supervisor of elections to appoint a deputy state supervisor for said county was limited only by his legal discretion.
    Whatever irregularities a committee may allow or exhibit in its ordinary transactions among its members, when it seeks to deal with another whose action is affected by its action, then a committee, or any other organized body, must be prepared to show that it has acted according to the forms of law, and in the only way in which it can legally act, and to show what the body, meeting as such, by a vote of its constituent parts, has determined. Reed’s Rules of Order, a Manual of General Parliamentary Law, by Thomas B. Reed, p. 16, et seq.; In re Broat, 27 N. Y. Sup., 184; Reed’s Rules, supra, p. 74.
    Such notice must specify the particular purpose for which the meeting is called, and any act of the meeting wholly beside the special purpose of the meeting as stated, is void.
    Dillon on Municipal Corporations, 4th Ed., Vol. 1, Section 286; Whitehead v. Hamilton Rubber Co., 52 N. J., 78; Hill v. Rich Hill Mining Coal Co., 119 Mo., 9; 24 S. W. Rep., 223; Mercantile Library Hall Co. v. Pittsburg Library Ass’n, 173 Pa. St., 30; Kent v. Quicksilver Mining Co., 78 N. Y., 159; State v. Smith, 15 Ore., 98; Beach on Private Corporations, Vol. 1, 456; Farwell v. Houghton Copper Works, 8 Fed. Rep., 66; Commonwealth v. Gullen, 13 Pa. St., 133, or 33 Am. Dec., 450; Beach on Private Corporations, Section 279; Angell & Ames on Corporations, Section 493; Potter on Corporations, Vol. 1, Section 339; Reed’s Rules, 22; 19 Am. & Eng. Ency. Law, 465; State ex rel. Shinnich v. Green, 37 Ohio St., 227; Potter on Corporations, Vol. 1, Section 343.
    
      Relator’s claim that at the alleged meeting it was agreed to recommend him, is not sustained by the evidence; on the contrary the testimony shows that no action whatever was taken or decided upon. Two or three members, according to the testimony of relator,, expressed themselves favorable to the appointment of relator, but that was all. Jackson, Myers, and probably Rugh, were not present when any mention was máde of the matter of deputy state supervisor.
    Relator’s sworn statement that no action was taken because the committee had no blank to make the recommendation upon, shows beyond controversy, that no determinate action was taken by the committee.
    But the relator claims that several months after this meeting, to-wit; about the middle of July, 1900, a blank was filled out by him, circulated by him, and the signatures of the individual members of the committee procured at different times and places by him, and that this paper was delivered or sent to respondent by relator, and that this paper is the recommendation required by law.
    We submit that the separate acts of members of a body are not the acts of the body. State ex rel., Steinbeck v. Treasurer, 22 Ohio St., 144.
    Signatures of members of a board at their places of business to discharge a person in the workhouse, makes the discharge void.
    
      Ex parte Walker, 8; W. L. B., 198; 8 Dec. Re., 480; Cooley on Taxation, 2nd. Ed., 258; Dowing v. Ruger, 21 Wend., 178; Fuller v. Gould, 20 Vt., 643; Columbus R. Co. v. Grant Co., 61 Ind., 427; Cooley on Taxation, page 58, 2nd Ed.; McCortle v. Bates, 29 Ohio St., 419.
    
      The question involved herein is purely political, and not involving either personal or property rights,, the writ should not issue for want of jurisdiction.
    The office of deputy state supervisor of elections is-not held by grant or contract; neither the incumbent or claimant herein has any property or vested interest in said office. It is created solely for the benefit of the public. Connor v. City of New York, 1 Selden, 285.
    This is the accepted doctrine in this country, Throop on Public Officers, Section 17, p. 18; Hyde v. State, 52 Miss., 665; Donahue v. County of Will, 100 Ill., 94; State ex rel., Attorney General v. Hawkins,. 44 Ohio St., 98; 3 Kent’s Commentaries, 454; Taylor v. Beckham, 20 U. S. Sup. Ct. Reporter, 890.
    Unless protection is sought for property or against the infringement of personal rights the writ will not. issue. Political rights are not protected by the courts. Judd v. Town of Fox Lake, 28 Wis., 583; Merrill on Mandamus, Section 61, p. 69.
    When a bill in equity calls for judgment upon a political question, it will not be entertained by the court. State of Georgia v. Secretary of War, 73 U. S. (6 Wall.), 50; Marbury v. Madison, 5 U. S. (1 Cranch), 137; Dickey v. Reed, 79 Ill., 261; McKane v. Adams, 123 N. Y., 609; Daily v. Packard (Special Term, 1882).
    The court should refuse to issue a writ of mandamus in this case, because the title to the office is involved, and the proper remedy is guo warranto. Merrill on Mandamus, Section 140, pp. 175, 176; McCrary on Elections, Sections 402, et seg.; Commonwealth v. Commissioners, 5 Rawle., 75.
    A mandamus will not be granted if the title of the applicant to the office, by virtue of which he makes the application for such mandamus, be drawn in question by the pleadings. This is the case in the matter before the court. Albert E. Culbert, the relator, seeks to have his rights to the office of deputy state supervisor determined by this court. He must first establish his right by the proper proceedings. He cannot do this on application for mandamus. Paine on Elections, Section 928, p. 770; United States v. Guthrie, Sec’y of Treasury, 58 U. S. (17 Howard), 305; Anderson v. Colson, 1 Neb., 172.
    The state supervisor of elections is invested with certain official discretion concerning the performance of his public duties, and in the absence of bad faith and abuse of discretion, will not be controlled or directed by mandamus. •
    That the state supervisor of elections possesses certain discretion in the appointment of deputy state supervisors is apparent from the statute. When the executive committee recommends, the state super' visor is the judge of two elements in the appointment, viz.:
    1. He determines the fact as to whether the executive committee has recommended;
    2. He determines the fact as to whether the person recommended is a “qualified person.”
    90 O. L., 263; State v. Kendall, 15 Neb., 262; United States v. Seamen, 58 U. S. (17 Howard), 225; United States v. Guthrie, 58 U. S. (17 Howard), 284; State v. Governor, 22 Wis., 110; People v. Contracting Board, 27 N. Y., 378.
    Mandamus will not lie to control the discretion vested in a public board. 14 Am. & Eng. Ency. of Law, p. 99; Hoole v. Kinkead, 16 Nev., 217; Ex parte Black, 1 Ohio St., 30; State ex rel. v. Crites, 48 Ohio St., 460; State ex rel. v. Commrs. Belmont Co., 31 U. S., 451; State ex rel. v. Commrs. Shelby Co., 36 Ohio St., 326.
    Mandamus cannot issue to compel the issuance of an election certificate, where there are disputed facts to be determined before the relief can be granted. People v. Vandervoort, 65 N. Y. Sup., 100.
    Mandamus will lie where a board or officer exercising a quasi judicial function refuses to act, and not after action to reverse or review the judgment or discretion of the board or officer. Civic Federation v. Salt Lake County, 61 P., 222; Karb v. State, 54 Ohio St., 383.
    That a public officer who is called upon to use official judgment and discretion cannot be directed by mandamus, in the absence of fraud and abuse, is the accepted and settled rule in Ohio.
    
      State ex rel. v. Moore, 42 Ohio St., 103.
   Williams, J.

The statute which makes the secretary of state ex officio the state supervisor of elections contains the following provision: “On or before the first Monday in August, 1892, such state supervisor shall appoint four deputy state supervisors for each county in this state, who shall be qualified electors of the county for which appointed. For the first appointment, two members shall be appointed for a term of one year, and two for a term of two years from the first Monday in August in 1892. One member so appointed for one year and one for two years shall be from the political party which cast the highest number of votes at the last preceding November election for governor or secretary of state. The other two members shall be appointed from the political party which cast the next highest number of votes for such officer at said November election. Thereafter appointments shall be made annually for two deputy state supervisors for each county for the term of two years, which appointments shall be from two political parties which cast the highest and the next highest, number of votes at the last preceding November election for governor or secretary of state.” Section 2966-3. As the first Monday in August in the year 1892, was the first day of that month, that became the day of the month, on or before which subsequent appointments of deputy state supervisors were and are to be made as required by the foregoing provision, and such appointments continue for the term of two years thereafter. State v. Neibling, 6 Ohio St., 40-42; State v. Handy, 51 Ohio St., 204. The statute contains the further provision that, “if the executive committees of the two political parties in the county casting the highest and the next highest number of votes in this state at the last preceding November election, recommend qualified persons to the state supervisor at least ten days before the appointment is made, then the state supervisor shall appoint the persons so recommended to. the number to which such party is entitled; but if no such recommendation is made, the state supervisor shall make the appointments agreeably to the-provisions herein contained.”

These statutory provisions are mandatory in terms, enjoining on the state supervisor of elections the duty of appointing, each year, at the time named, one-deputy supervisor of elections for each county from each of the two political parties that, at the preceding November election, cast the highest and the next highest number of votes for governor or secretary of state, and requiring him to appoint the person recommended by the county executive committee of such party, when he possesses the necessary qualifications, and the recommendation has been properly made within the required time. The obvious purpose of the statute is to allow the designated political parties, through the executive committee appointed by them, to select their own representation on the county board of elections; and when their recommendation is properly made, the state supervisor is not at liberty to disregard it and appoint another person of his own choice. He is called upon to decide in the first instance whether the person recommended is qualified and the recommendation is made by the proper committee within the proper time. But his decision when contrary to the fact, in either respect, is open to correction by the courts.

The real defense made in this case is, that the relator was not properly recommended for appointment because his recommendation was not authorized by regular action had at an organized meeting of the committee. There was no resolution or motion favoring the relator’s recommendation adopted while the committee was in session; but we have discovered nothing in the statute which requires that manner of recommendation, or the observance of any particular formality. The committee is merely an agency of convenience, whose members are usually chosen by convention to look after the local interests of the party, and they are neither required to keep a record, nor to conform their proceedings to any particular rules or regulations. It bears little or no analogy either in its character or functions to those boards and bodies which are clothed with the power of imposing public burdens and of making contracts in their corporate capacity, and which can therefore act only in organized meetings required by law; nor, to those governed by parliamentary usage. In the absence of special intructions from the convention which chooses the members of the committee, (and there does not appear to have been any in this, case,) they must necessarily determine their own mode of action; and, no other mode having been adopted, the concurrence of all the members, authenticated by their signatures, in any measure within the scope of their authority, would seem to be sufficient for all the practical purposes of such a committee. It is not doubted that the relator, when his recommendation was filed with the defendant, was, and still is, a citizen and elector of Sandusky county, lacking no-qualification necessary to entitle him to receive the appointment of deputy state supervisor of elections, for that county; nor that his recommendation is the genuine instrument which it purports to be, and was-filed within the time required by law. The recommendation was in substantial conformity with the statute, and sufficiently expresses the wish of the committee for the relator’s appointment as a deputy supervisor of elections of Sandusky county. His right to the appointment is a statutory one, which the defendant in the performance of his official duties was bound to recognize.

It is claimed in argument, however, that mandamus, is not the proper remedy of the relator, because the title to an office is involved, the only method of trying which is by proceeding in quo warranto. This is-not a proceeding to oust the occupant of an office, or-determine his right to its possession.- Its purpose is to obtain the necessary evidence of the relator’s right to demand the place to which he should have been appointed. The appointment of the defendant is a preliminary step essential to the establishment of that right, and must necessarily precede an action in quo warranto against the occupant of the office. For, until the appointment shall he made, the relator is not an officer de jure, nor entitled to demand of the occupant the possession of the office, or maintain an action for its possession. In an action of that kind the occupant, is the only proper party defendant. In this action the state supervisor of elections is the only proper defendant; and the action is closely analogous to one in mandamus to compel a canvassing officer or board to issue a certificate of election to a person entitled thereto. Such an action does not determine the title to the office, but its only result, if successfully maintained, is to put the party in a position to contest the claimant’s title by quo warranto. This view is: sustained by authority. Ellis v. County Commissioners, 2 Gray, 370; Elisha Strong’s Cases, 20 Pick., 484; Groome v. Gwinn, 43 Md., 574; People v. Hilliard, 29 Ill., 413; Merrill on Mandamus, Section 146.

Peremptory torit awarded.  