
    The State, ex rel. Crull et al., v. Eidgenoss et al., Deputy State Supervisors of Elections, et al. The State, ex rel. Jackson, v. Eidgenoss et al., Deputy State Supervisors of Elections, et al. The State, ex rel. Roth, v. Eidgenoss et al., Deputy State Supervisors of Elections, et al. The State, ex rel. Coleman, v. Eidgenoss et al., Deputy State Supervisors of Elections, et al.
    
      Elections—Validity of nomination petitions—Decision of secretary of state final, when—Section 5001, General Code—Supplemental or new petitions.
    
    (Nos. 18188 to 18191
    Decided October 25, 1923.)
    In Mandamus.
    In the four cases presented the respective plaintiffs each sought office as member of a hoard of education, and in due time filed his respective nomination papers therefor with the hoard of deputy state. supervisors of elections of Scioto county. While the statute (Section 5000, General Code) requires the insertion in the petition of names “to the number of five” as a committee to fill vacancies, it appears that upon two of the petitions filed but two such names had been inserted, while upon the other two more than five names had been inserted. Alt of such nomination papers had a sufficient number of signatures, except that of the plaintiff Coleman. Objections to these nomination papers or petitions were filed within five days. Thereupon the respective plaintiffs filed other nomination papers with the election board, and objections were also filed to these. The plaintiffs claimed that these later nomination papers were supplemental petitions filed to correct defects in the former, in conformity with the provisions of Section 5010, General Code, while the basis of objections thereto rested upon the alleged fact that they were not supplemental petitions or nomination papers, but were new or original petitions, filed after the expiration of the legal time limit. The board by a tie vote, upon consideration of the objections thereto, refused to file them.
    The matter in controversy was thereupon submitted to the state supervisor of elections, who decided against their validity, whereupon the several actions in mandamus were instituted in this court.
    
      Mr. Harry Ball and Mr. B. F. Kimble, for plaintiffs.
    
      Mr. C. G. Grabbe, attorney general; Mr. Wm. J. Meyer and Mr, G. 8. Younger, for defendants.
    
      Messrs. Knepper & Wilcox and Mr. O. E. Irish, amici curiae.
    
   By the Court.

The question presented to the deputy state supervisors of elections of the county, upon the filing of the later petitions, was whether such were in fact supplementary petitions, filed to cure defects in the former, or were new or original petitions. This was a question of mixed law and fact, which the board had to consider. Having the various petitions before it, the local board failed to agree, and “the matter in controversy” was submitted to the state supervisor of elections, who decided against their validity.

Section 5007, General Code, provides that in all cases, in the event of disagreement, or where 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 so submitted to him, and his decision shall he final.” (Italics ours.)

The matter in controversy submitted to the secretary .of state was whether these later petitions were in fact supplementary petitions, intended to correct the originals, or whether they were original petitions, confessedly filed without the statutory limit. As announced in State, ex rel. Buel, v. Joyce, 87 Ohio St., 126, 100 N. E., 325, Section 5007, General Code, and kindred sections, have been considered by this court on various occasions. In the Joyce case, in a per curiam opinion, it was held that:

“It has been uniformly held that the decision of the secretary of state, when acting in the capacity of state supervisor of elections, upon written objections to certificates of nomination and nomination papers or upon other questions arising in the course of nomination of candidates, is final. Chapmam, v. Miller, 52 Ohio St., 166; Randall v. State, ex rel., 64 Ohio St., 57; State, ex rel., v. Stewart, 71 Ohio St., 55. The statute so declares; and as at present advised, this court is of the opinion that those matters are not per se the subject of judicial cognizance, but are matters for political regulation and well within the legislative power.”

This court, in the later case, State, ex rel. Gongwer, v. Graves, Secy of State, 90 Ohio St., 311, 107 N. E., 1018, adhered to the principle announced in the Joyce case.

For more than a quarter of a century this court has announced that:

“The action of the state supervisor is final as to the questions submitted to him, and courts have no jurisdiction of these questions.” Chapman v. Miller, 52 Ohio St., 166, at page 176, 39 N. E., 24, at page 27.

It is true that the legislative branch of the government has conferred a measure of absolute power upon the secretary of state, but it is also true that the Legislature could at any time change such policy and amend the statute in this respect. This it has not done. This case is but an exemplification of many others, where it is sought by an appeal to the court to obtain a remedy which the Legislature has expressly denied. If abuse of discretion or fraud were disclosed, this court might intervene; but the record shows neither. While there is a general allegation that the acts of the board of deputy state supervisors of elections were performed capriciously, fraudulently, and in bad faith, there are no specific allegations of fact disclosing fraud, collusion, or such abuse of discretion as would call for the restraining action of the court. State, ex rel. Maxwell, v. Schneider, 103 Ohio St., 492, 134 N. E., 443.

The petitions, respectively, are dismissed, and the writs denied.

Writs denied.

Robinson, Jones, Matthias and Day, JJ., concur. Marshall, C. J., Wanamaker and Allen, JJ., dissent.  