
    The State, ex rel. Beck et al., v. Hummel, Secy. of State and Chief Election Officer. Zahm, Appellant, v. Hummel, Secy. of State, Appellee.
    
      (Nos. 31496 and 31498
    Decided July 22, 1948.)
    
      
      Mr. George J. McMonagle and Mr. Adrian B. Fink, Jr., for relators in case No. 31496, and for appellant in case No. 31498.
    
      Mr. Hugh 8: Jenkins, attorney general, and Mr. E. G. Schuessler, for respondent in case No. 31496 and for appellee in case No. 31498.
   Stewart, J.

For convenience the relators in case No. 31496 will hereinafter be referred to as relators, the appellant in case No. 31498 will hereinafter be referred to as appellant, and the respondent in case No. 31496, who is also appellee in case No. 31498, will hereinafter be referred to as the secretary.

In order to logically consider the questions before us we must decide case No. 31498 before proceeding with case No. 31496, for the reason that all counsel agreed in oral argument that if the finding of the secretary in case No. 31498 is sustained, the petition in case No. 31496 must be dismissed.

Section’ 4785-100a, General Code, reads as follows:

“No political party, or group, which advocates,, either directly or indirectly, the overthrow, by force or violence, of our local, state or national government or which carries on a program of sedition or treason by radio, speech or press or which has in any manner any connection with any foreign government or power or which in any manner has any connection with any group or organization so connected or so advocating the overthrow, by force or violence, of our local, state or national government or so carrying on a program of sedition or treason by radio, speech or press, shall be recognized or be given a place on the ballot in any primary or general election held in the state of Ohio or in any political subdivision thereof.
“Any party, or group, desiring to have a place on the ballot, shall file with the Secretary of State of Ohio, and with the board of elections in each county in which it desires to have a place on the ballot, an affidavit made by not less than ten members of such party, not less than three of whom shall be executive officers thereof, under oath stating that it does not advocate either directly or indirectly the overthrow, by force or violence, of our local, state or national government; that it does not carry on any program of sedition or treason by radio, speech or press; that it has no connection with any foreign government or power; that it has no connection with any group or organization so connected or so advocating either directly or indirectly, the overthrow, by force or violence of our local, state or national government or so carrying on a program of sedition or treason by radio, speech or press.
‘ ‘ Said affidavit shall be filed not less than six months nor more than nine months prior to the primary or general election in which the party, or group, desires to have a place on the ballot. The Secretary of State shall investigate the facts appearing in the affidavit and shall within sixty days after the ’ filing thereof find and certify whether or not this party, or group, is entitled under this section to have a place on the ballot.
“Any qualified member of such party, or group, or any elector of this state, may appeal from the finding of the Secretary of State to the Supreme Court of the state of Ohio.”

There is no dispute that not less than 10 members of the Ohio Wallace-for-President Committee timely filed an affidavit strictly complying with the provisions of the above statute.

The secretary investigated the facts appearing in the affidavit and within 60 days after the filing thereof found and certified that the Ohio Wallace-for-President group is not entitled to have a place on the ballot.

Pursuant to the statute the appeal from that finding is properly before us.

It is claimed by appellant that the finding of the secretary should be reversed because it was made without any evidence or proper basis; that it was arbitrary; that it was made without any hearing; and that no opportunity was given to the signers of the affidavit to reply to any charges made against them or to cross-examine the investigator utilized by the secretary in his investigation.

The basis for the secretary’s finding was a report of George S. Houston, chief of investigation, and consisted of three hand-written pages concerning 11 per- , sons. These persons signed the affidavit and three of them are among the relators in case No. 31496. The notations concerning them are briefly as follows:

Calvin S. Hall, professor of languages at Western Reserve University. Sponsor American Slav Congress. Delivered principal address Bohemian National Hall, Cleveland. Active in Lenin memorial meeting in Public Hall, Cleveland, on January 18,1948. No record of party membership in Ohio.

John C. Kennedy. Assistant director, Conservatory of Music, Oberlin College. No record of party membership in Ohio.

Dolph Barnett. No record of party membership in Ohio.

Mort Epstein. No record of party membership in Ohio.

Milton D. Tennenbaum. No record on this man.

Elsie Zazrivy. Communist party member, Lakewood branch. Husband and brother members of Communist party since 1940. This person active member as well as her brother and husband.

Nathan B. Zahm. Attorney. Member of Communist party. Former director Progressive Citizens Committee. Brains behind this group but not top Communist in Cleveland area.

Louis Hahn. Fellow traveler. Attends secret Communist party meetings. No record Communist party membership in Ohio.

Leonard H. Hinds. Attends Communist party membership rallies and also meetings of Young Communist League.

David I. Sindell. Communist party member. Attorney. Ban for state representative in 1946. Endorsed by Communist Progressive Citizens Committee.

Donald E. Stier. No record on this man.

Of the 11 persons named in Houston’s report, threé of them are alleged to be members of the Communist party.

All members of this court are in agreement that the record furnished by the secretary does not justify his finding that the Ohio Wallace-for-President Committee is not entitled to have a place on the ballot because of noncompliance with Section 4785-100a, General Code.

The Wallace group consists of at least approximately 46,000 people who signed the nominating petitions, and the statute we are considering provides that the group must not advocate directly or indirectly the overthrow, by force or violence, of our government, and that it must not do the other things prohibited by the statute.

The fact that three members of the group belong to the Communist party, if true, without any showing either that they personally advocate the overthrow of our government by force, or do or have done any of the prohibited acts, does not destroy or impair the effect of the affidavit filed pursuant to Section 4785-100a, General Code. .

■ One who would attempt by any means to overthrow the government by force would be a traitor and there would be justification for dealing with him in accordance with the enormity of his offense. The government has the inherent power to defend and protect itself.

To advocate an entire change in our form of government is an entirely different matter.

Article Y of the Constitution of the United States provides that two-thirds of both houses of Congress may propose amendments to the Constitution, or, on the application of the legislatures of two-thirds of the states, Congress shall call a convention for proposing amendments, and when any amendments proposed by either method are ratified by the legislatures of three-fourths of the states or by conventions in three-fourths thereof, according to the mode of ratification proposed by Congress, the amendments become parts of the Constitution.

The Constitution can be changed in any manner except that no state, without its consent, shall ever be deprived of its equal suffrage in the Senate.

If one can imagine that the American people would be so complacent and inert as to allow such a thing to take place, it would be possible constitutionally to so amend the Constitution- as to practically substitute a Communist form of government for the beneficent representative form we now have. As a matter of fact, although the original Constitution contains only seven articles, it has 21 amendments.

The provision for amending the Constitution is one of the strongest reasons why all who believe in representative government, with an equal participation therein of all free people, should ever be on the alert to protect and defend its present ideals and to resist all efforts for change which is not in accord with those ideals. However, it is a matter of common knowledge that there are Communists who do not wish to overthrow our government by force but who desire to accomplish the ends they have in view by constitutional methods.

There is no showing in the record before the secretary that any one connected with the Ohio Wallace-for-President Committee advocates the overthrow of the government by force, and the fact that some members among its many thousands may belong to the Communist party or that Communists may advocate the election of Wallace, is no proof that the affidavit filed in accordance with Section 4785-100a, General Code, was not filed in good faith or that it is not efficacious for the purpose for which it was filed.

We agree with the argument of the Attorney General that a court will not ordinarily substitute its judgment for that of an administrative official when the finding and determination of such administrative official involves only questions of a ministerial character, unless in making such finding and determination the official abused his discretion or acted arbitrarily or oppressively in the premises. In other words, there must be some substantial evidence to support the finding and determination.

This court is committed to the proposition that it will not substitute its judgment, as to inferences to be drawn from evidence, for that of a board or official to which or to whom was committed the obligation to find the facts in a matter, unless the finding is manifestly against the weight of the evidence or is not sustained by any substantial evidence. We do not hold that in the present case the secretary was obligated to have a hearing or to give opportunity to the Wallace committee to answer any charges made against its group or to cross-examine 'any witnesses, but we do hold that there must be in the record of the investigation by the secretary substantial facts or evidence to ^overcome the presumption of the good faith or honesty of an affiant whose affidavit fully complies upon its face with the provisions of Section 4785-100a, General Code, and, as hereinbefore indicated, there is no substantial or sufficient evidence in the record to justify the secretary in finding and certifying that the Ohio Wallace-for-President Committee is not entitled to a place on the ballot because the requirements of Section 4785-100a have not been complied with.

In case No. 31498, the finding of the secretary is reversed.

We come now to a consideration of case No. 31496, and, since there is no dispute as to the facts in this case, it involves only an interpretation of certain election statutes.

All election statutes should be liberally interpreted in favor of the right to vote according to one’s belief or free choice, for that right is a part of the very warp and woof of the American ideal and it is a right protected by both the constitutions of the United States and of the state.

Although a large majority of our people hold allegiance to the two major political parties in this nation and believe that free government is most efficiently perpetuated through a two-party system, nevertheless there are millions of independent voters who should always be given an equal right of suffrage with party members. There should be no discrimination because of a disagreement as to political principles or policies, as long as those who disagree are loyal and obedient to the Constitution. The proper spirit was eloquently expressed by the great French philosopher and writer, Francois M. A. Voltaire, when he wrote in one of his letters to Helvfetius, “I disapprove of what you say, but I will.defend to the death your right to say it.”

Obviously, the General Assembly may impose reasonable restrictions upon the rights of its citizens to have the names of nominees printed on the official ballot. The dictates of common sense support reasonable restrictions, for, otherwise, the size of the ballots and the expensive costs thereof would tend to defeat the very purposes for which elections are held.

As said by the court of dernier resort of Maryland in the case of Munsell v. Hennegan, 182 Md., 15, 22, 31 A. (2d), 640, 146 A. L. R., 660, “the weight of authority, with which we agree, is that electors should have the fullest opportunity to vote for candidates of any political party, and while this right, in cases where the public furnishes the ballots, may be restricted by the dictates of common sense, and by considerations of convenience in the size of the ballots, and by considerations of excessive costs, such restrictions will not be upheld when they are destructive of freedom of choice by the voters.”

Under the law, party candidates for elective state positions are ordinarily nominated in a primary, but Section 4785-91, General Code, provides as follows:

“In addition to nominations of candidates of political parties for election to offices to be voted for at the next following general election, independent candidates for election to offices to be voted at such general election may be nominated by nominating petitions. The nominating petition nominating a candidate, as herein provided for, may consist of one or more separate petition papers, and each such nominating petition containing signatures of electors of more than one county shall consist ó'f separate petition papers each of which shall contain signatures of electors of only one county. Each nominating petition herein provided for shall be signed by qualified electors of the-state, district, county, township, municipality or other-subdivision of the state in which the candidate designated therein would be a candidate for election as am officer thereof, not less in number than one per cent off the number of electors who voted for governor at the next preceding general election for the office of governor in the state or in the respective district, county, township, municipality or other subdivision; provided, however, that no such nominating petition shall be accepted for filing or filed if it appears on its face to contain signatures aggregating in number more than twice the minimum aggregate number of signatures required by law; and provided, that in a petition for the nomination of a candidate for election to an office to be voted for by the electors of the state such petition shall contain the signatures of at least one hundred electors from each of at least thirty counties in the state, and that the total number of signatures of electors from any one county shall not be in excess of one-fourth of the total number of signatures required on the petition; and provided, that in a petition for the nomination of a candidate for election to an office to be voted for by the electors of a district smaller than the state but larger than a county, such petition shall contain the signatures of at least ten electors from each of at least one-half of the several counties of such district.
“At the time of filing a nominating petition * * * the candidate * * # shall pay to the election official * * * a fee * *

Pursuant to the above section, the relators have tendered nominating petitions containing not only their names as candidates for presidential electors but the names of Henry A. Wallace as a candidate for president and Glen H. Taylor as a candidate for vice-president of the United States. If this latter fact does not vitiate the petitions, the relators have taken every preliminary step required by law to become independent candidates for the offices of presidential electors of the state of Ohio.

In the brief of the Attorney General representing respondent it is stated:

“In light of the above, we conceive it to be our duty to the court to state that, in our opinion, independent candidates for election to the office of presidential elector may be nominated by nominating petitions and that when so nominated, the names of such candidates shall be considered as filed in the office of Secretary of State. ’ ’

Section 4785-107, General Code, provides:

“On the presidential ballot shall be printed the names of the candidates for election to the offices of president and vice-president of the United States, nominated as such by the national conventions of those political parties to which delegates and alternates were elected at the next preceding primary election.
“Such ballots shall have printed across the top thereof, and below the stubs, the words: ‘ Official Presidential Ballot.’
“The names of such candidates ■ of each such political party shall comprise the ‘ticket’ of such political party. The ticket of each such political party shall be printed in a separate vertical column on the ballot. At the top of each such party column shall be printed, upon a shaded background, the emblem of the political party whose ticket is printed in such column. Immediately below such emblem shall be a blank circular space three-fourths of an inch in diameter enclosed by a heavy black line and surrounded by the words: ‘To vote a straight ticket place “X” within this; circle. ’ Immediately below such circle and within heavy horizontal lines across the width of the column shall be printed in capital letters the name of the political party, whose emblem is printed in such column, followed by the word: ‘Ticket.’ In a rectangular space immediately below the name of the political party shall be printed the names of the candidates of such party for election to the office of president and vice-president, respectively, of the United States, nominated as such as above provided. The name of the candidate for president shall be printed!; above the name of the candidate for vice-president.. Above the name of the candidate for president, andl within such rectangular space, shall be printed the words: ‘For President.’ . Immediately below the name of the candidate for president and above the name of the candidate for vice-president, within the same rectangular space, shall be printed the words: ‘For Vice-President.’ One blank rectangular space shall be printed at the left of the enclosed rectangular space in which the names of the candidates for and the titles of the offices of president and vice-president are printed. * * * ”

It will be seen from a perusal of the above section that on the presidential ballot, so far as political parties are concerned whose candidates for president and vice-president have been nominated by national conventions of those parties to which delegates and alternates were elected at the next preceding primary election, only the names of the candidates for president and vice-president appear.

Section 4785-74, General Code, provides for the holding of state conventions by political parties composed of delegates and alternates who shall be elected as such at the primary election held in the year 1948 and each fourth year thereafter, as well as in the year 1950 and each fourth year thereafter.

: With reference to the conventions to be held in 1948 and each fourth year thereafter the section provides :

!.' “At each such state convention of each political party persons shall be nominated as candidates for election as presidential electors to he voted for at the nest succeeding general election, and the state platform of such party for such year shall be formulated.
¡ ■■“Within five days after the holding of each such convention the chairman and secretary thereof shall certify in writing to the Secretary of State the names of all persons nominated at such convention as candidates for election as presidential electors.”

■ ■ Under Section 4785-131, General Code, as to the candidates for presidential electors of the political parties which have nominated candidates for president aiid vice-president in national conventions to which delegates and alternates from Ohio have been chosen at the primary in the presidential year, a vote for the candidates for president and vice-president of either one of the parties is a vote for the electors who have been nominated by the state convention of the party which nominated the presidential and vice-presidential candidates voted for.

■•;The candidates for presidential electors nominated by the state conventions of such political parties do not have their names on the presidential ballot. Under the statutes the only names of candidates for president and vice-president which can appear on the presidential ballot in Ohio are the names of the candidates of the political parties nominated in conventions as hereinbefore described.

. Since Henry A. Wallace and Glen H. Taylor were not nominated for president and vice-president in a national convention to which delegates and alternates chosen at the preceding state primary were selected, under our statutes their names cannot appear upon the presidential ballot.

This leaves us with another question.

The relators have taken all the preliminary necessary steps for their nomination as presidential electors. Presidential electors are state officers. Section 4785-91, supra, provides for the nomination of independent candidates for election to offices to be voted for at the next following general election and relators have complied with that section. In this curious situation how must the statutes be interpreted?

We must remember that no citizen votes directly for candidates for president and vice-president of the United States. As provided in 'Section 1, Article II of the Constitution of the United States, “each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress: but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.” (It is conceded that no one of the relators in the present case is a senator or representative or holds an office of trust or profit under the United States.)

Under the provisions of the Twelfth Amendment to the Constitution of the United States, “the electors shall meet in their respective states, and vote by ballot for president and vice-president, one of whom, at least, shall not be an inhabitant of the same state with themselves; * * * and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice-president, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the president of the Senate.”

According to the federal Constitution a presidential elector may vote for any person he pleases for president or vice-president provided that person be a natural born citizen of the United States, shall have attained the age of 35 years and been 14 years a resident within the United States. It logically follows that, although the Ohio law provides for the placing of the names of political party candidates for president and vice-president upon the presidential ballot, those votes cast for either set of those candidates are not votes for them at all but are simply votes for the presidential electors who have been chosen by the state convention of the party which nominated the set of candidates for which the vote is marked on the ballot. A ballot marked for a presidential and vice-presidential set of candidates named on the presidential ballot is a vote for them only as a symbol for a group of electors nominated by the state convention of the party which nominated the candidates for president and vice-president, the names of which electors do not appear on the ballot.

Under the Ohio statutes, candidates for president and vice-president who were not nominated by party conventions as hereinbefore described are not entitled to have their names appear upon the presidential ballot.

An entirely different question arises when we consider the right of persons to have their names printed upon the presidential ballot as independent candidates for presidential electors. Ohio is entitled to 25 presidential electors to be elected at the 1948 general election. Each one of the 25 elected may vote as he pleases for any person eligible for the office of president or vice-president of the United States. It is only by force of a moral obligation, not a legal one, that the presidential electors pledged to certain candidacies fulfill their pledges after election.

Since the office of presidential elector is a state office, since relators have so far properly qualified under the law to be independent candidates for such state office, and since there is nothing in the law prohibiting their names from appearing upon the presidential ballot as independent candidates for presidential electors, it seems obvious that they have a right to have their names so printed. Any other conclusion would result in the ridiculous and absurd situation of having candidates properly and legally nominated for state offices but with a prohibition against their names appearing on the ballot.

In the interpretation of statutes, it is the duty of the courts, if’possible, to give them an interpretation and construction which will accord with common sense and reason and not result in a grotesque absurdity.

It has been argued that the nominating petitions of relators, a copy of one of which is attached to the petition in the present case, are void because they include not only the names of relators as candidates for the office of presidential elector together with the acceptance of each one of them of the nomination for that office, but contain the names of Henry A. Wallace as a candidate for president and Glen H. Taylor as a candidate for vice-president with the acceptance of each one of them for the nomination for the office for which he purports to be a nominee.

It is argued that the approximately 46,000 signers of the nominating petitions may not have signed them except for the names of Wallace and Taylor upon them and that, therefore, the validating of the nominating petitions of the relators without the names of Wallace and Taylor is impossible.

The majority of this court does not agree with that contention.

The nominating petition reads:

“We, the undersigned qualified electors of the state of Ohio, * * * hereby nominate the following independent candidates, * * * as candidates for election to the respective offices in the state of Ohio, set opposite their respective names, to be voted for at the election nest hereafter to be held.”

Then follow the name of Wallace for president of the United States, the name of Taylor for vice-president of the United States, and then the individual names of the 25 relators for presidential elector.

Since the federal Constitution makes no provision for a citizen to vote for a candidate for president or vice-president of the United States but such officers are elected by presidential electors chosen in a manner as the legislatures of the several states may provide, and since under the law of Ohio the voters choose the presidential electors by symbolically voting, for the presidential and vice-presidential candidates of the political parties which qualify as hereinbefore described or by voting for the presidential electors directly who are independent candidates, we hold that the signers of the nominating petitions for relators have prima facie placed relators in nomination for presidential electors, irrespective of their inability to nominate either Wallace or Taylor for the offices of president and vice-president.

In view of the conclusions to which we have come, the finding of the Secretary of State involved in case No. 31498 is reversed and set aside, and the prayer of relators in case No. 31496 is granted in part, to the effect that a writ of mandamus issue to the respondent as Secretary of State and as chief election officer of the state to accept and file the nominating petitions for presidential electors of the state of Ohio tendered to him, and to further act upon them in accordance with law and this opinion.

Writ allowed in case No. 31496.

Finding reversed in case No. 31498.

Weygandt, C. J., Hart, Zimmerman and Sohngen, JJ., concur.

Matthias, J., concurs in case No. 31498 but dissents in case No. 31496.

Turner, J., dissents.

Matthias, J.,

dissenting. The record in case No. 31498 discloses no facts developed by a so-called investigation, or otherwise, which would warrant the rejection of the nominating petition by the Secretary of State on the ground of failure to comply with the requirements of Section 4785-100a or for any reason based upon the provisions of that section.

I, therefore, concur in the reversal of the finding of the Secretary of State in case No. 31498.

I dissent from the conclusion reached by the majority in case No. 31496 and the issuance of a writ of mandamus requiring the Secretary of State to place on the official presidential ballot of the state of Ohio any of the names contained in the nominating petition as candidates for presidential electors.

I shall attempt to state very briefly the reasons for my dissent.

The method of the election of the president and vice-president of the United States is prescribed by the provisions of Section 1 of Article II of the Constitution of the United States and the 12th Amendment thereof. The pertinent provisions of the Constitution are as follows:

‘ ‘ The executive power shall be vested in a president of the United States of America. He shall hold his office during the term of four years, and, together with the vice-president, chosen for the same term, be elected, as follows:
“Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress; * * * } j

It is thus very specifically provided that the electors, to which each state is entitled, shall be selected in the manner in which the legislature of the state directs. That language is clear and unambiguous. It requires no interpretation or clarification. The power to determine the manner of the selection of the electors is thus conferred upon the legislatures of the several states.

We are, therefore, concerned here only with the question of the manner in which the Legislature of Ohio has directed that the presidential electors, to which this state is entitled, shall be selected. The only provision wherein the Legislature of this state has directed the manner of the selection of the presidential electors is found in Section 4785-74, General Code, and is as follows:

"At each such state convention of each political party persons shall be nominated as candidates for election as presidential electors to be voted for at the nest succeeding general election, and the state platform of such party for such year shall be formulated.
"Within five days after the holding of each such convention the chairman and secretary thereof shall certify in writing to the Secretary of State the names of all persons nominated at such convention as candidates for election as presidential electors.”

The majority of the court adopted the premise that electors are state officers, and, therefore, may be nominated in the manner prescribed for the nomination of independent candidates for other state offices, and applying a so-called liberal rule of construction arrived at the conclusion that presidential electors may therefore be nominated by petition.

The principle of statutory construction is elementary that a specific statutory provision prevails over a conflicting or inconsistent general provision. It follows that a general provision as to the manner of nominating candidates for public office cannot prevail over the specific provisions governing the nomination of candidates for presidential electors.

Assuming that the persons named in the petitions in question may thus be nominated as presidential electors there is absolutely no statutory provision requiring the placing of their names on the ballot. Section 4785-131 provides as follows:

“In marking a presidential ballot the voter shall observe the following rules:
“4a. He shall either place ‘X’ in the blank rectangular space at the left of the space in which are printed the names of the candidates for the offices of president and vice-president for whom he desires to vote, or place ‘X’ in the circular space above such names. Such ballot will be considered and counted as a vote for each of the candidates for election as presidential elector who were nominated as such at the state convention of the same political party as the political party at whose national convention the persons were nominated as candidates for the offices of president and vice-president at the left of, or above, whose names on the presidential ballot the voter placed ‘X,’ and whose nominations as candidates for presidential elector were certified to the Secretary of State as required by Section 4785-74 of the General Code.”

Section 4785-107 provides as follows:

“On the presidential ballot shall be printed the names of the candidates for election to the offices of president and vice-president of the United States, nominated as such by the national conventions of those political parties to which delegates and alternates were elected at the next preceding primary election.”

“Political party” is defined by Section 4785-61. No one would claim the group sponsoring the nomination petition involved herein conld come within snch definition.

It is perfectly clear that there is now no statutory provision in this state requiring or authorizing the names of any presidential-elector candidates to be placed upon the ballot and it is conceded by the majority that since it does not appear that Henry A. Wallace has been nominated for election to the office of president of the United States and Glen H. Taylor has been nominated to the office of vice-president of the United States “by the national conventions of those political parties to which delegates and alternates were elected at the next preceding primary election,” the provisions of Section 4785-107, General Code, preclude the placing of the names of Henry A. Wallace as a candidate for president and Glen H. Taylor as a candidate for vice-president on the ballot.

We again direct attention to the provision of the federal Constitution that “each state shall appoint, in such manner as the legislature thereof may direct” the number of electors to which the state may be entitled. The Legislature of this state has so directed in language that cannot be misunderstood. It may be argued that the Legislature should have directed otherwise. That is a legislative and not a judicial function. Our question is not what provision should have been enacted by the Legislature. It is only what it did enact and our duty is to interpret such provision if the meaning thereof is uncertain or ambiguous.

The federal Constitution conferred the power of determining the manner of the selection of electors upon the legislatures of the various states and not upon the courts. It is not the function of the courts to legislate, to determine questions of political policy or to decide questions submitted to them on the basis of expediency or of personal preference, wish or desire. Neither the wisdom, propriety or expediency of statutes is a matter for the consideration of the courts.

The purposes of government are best served when each branch of the government performs the functions committed to it and usurps none of the powers committed to either of the other branches of the government. If it be argued that the method of election of president and vice-president, as now prescribed by the Constitution, is archaic, antiquated and absurd, or for any reason such method should be altered, let it be done in the manner prescribed by that instrument, just as was done in other instances, for example when it was determined that United States Senators should be elected by direct vote of the people instead of by the legislatures of the various states.

Washington’s admonition is even yet pertinent. He said:

“If, in the opinion of the people; the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

In my opinion there is no ground for the contention that any provision of the Ohio statutes involved herein is violative of either the state or federal Constitution.

No principle is better settled or more firmly established in this state than that mandamus is an extraordinary remedy and a writ therefor will not issue unless and until a clear legal right thereto is established by the relator, and it is specifically provided by Section 12283, General Code, that such writ will issue only ■ to command the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.

There being, in my opinion, no statute of this state requiring or even authorizing the nomination of candidates for the offices of president and vice-president or for' presidential electors by nominating petitions such as presented by the relator, the writ of mandamus sought in case No. 31496 should be denied.

'Turner, J.,

dissenting. The place to start to find the state’s authority in respect of presidential electors is the Constitution of the United States.

Section 1, Article II, provides in part as follows:

“Each state shall appoint, in such manner as the legislature thereof mag direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress; but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.” (Italics ours.)

Here, then, is the state’s authority to appoint presidential electors.

_The General Assembly has exercised that authority as follows:

Section 4785-4, General Code, provides in part:

“General elections in the state of Ohio and its political subdivisions shall be held as follows:
“a. For the election of electors of president and vice-president of the United States, in the year of 1932 and every four years thereafter.”

Section 4785-74, General Code, provides in part:

“At each such state convention of each political party persons shall be nominated as candidates for election as presidential electors to be voted for at the next succeeding general election, * * *
“Within five days after the holding of each such convention the chairman and secretary thereof shall certify in writing to the Secretary of State the names of all persons nominated at snch convention as candidates for election as presidential electors.”

Section 4785-61, General Code, defining a political party, will be set ont later.

Section 4785-107, General Code, provides as follows:

“On the presidential ballot shall be printed the names of the candidates for election to the offices of president and vice-president of the United States, nominated as such by the national conventions of those political parties to which delegates and alternates were elected at the nest preceding primary election.
“Such ballots shall' have printed across the top thereof, and below the stubs, the words: ‘Official Presidential Ballot.’
‘ ‘ The names of such candidates of each such political party shall comprise the ‘ticket’ of such political party. The ticket of each such political party shall be printed in a separate vertical column on the ballot. At the top of each such party column shall be printed, upon a shaded background, the emblem of the political party whose ticket is printed in such column. Immediately below such emblem shall be a blank circular space three-fourths of an inch in diameter enclosed by a heavy black line and surrounded by the words: ‘To vote a straight ticket place “X” within this circle.’ Immediately below such circle and within heavy horizontal lines across the width of the column shall be printed in capital letters the name of the political party, whose emblem is printed in such column, followed by the word: ‘Ticket.’ In a rectangular space immediately below the name of the political party shall be printed the names of the candidates of such party for election to the office of president and vice-president, respectively, of the United States, nominated as such as above provided. The name of the candidate for president shall be printed above the name of the candidate for vice-president. Above the name of the candidate for president, and within such rectangular space, shall be printed the words: ‘For President.’ Immediately below the name of the candidate for president and above the name of the candidate for vice-president, within the same rectangular space, shall be printed the words: ‘For Vice-President.’ One blank rectangular space shall be printed at the left of the enclosed rectangular space in which the names of the candidates for and the titles of the offices of president and vice-president are printed.
“The order in which the party column of each political party, which may lawfully be printed on the presidential ballot at an election, shall be printed from left to right thereon, shall be the same relative order as the order in which the party columns of the same political parties are printed on the party column ballot for the same election.”

The petition seeks a writ to compel the respondent to follow the foregoing section in respect of Wallace and Taylor.

It is conceded in the majority opinion that the names of Messrs. Wallace and Taylor may not be printed on the presidential ballot under the provisions of Section 4785-107, General Code. If that be so, and it is so, then how will the votes for relators be counted ?

Section 4785-1314a, General Code, provides that, in marking a presidential ballot, the voter shall observe the following rules:

“He shall either place ‘X’ in the blank rectangular space at the left of the space in which are printed the names of the candidates for the offices of president and vice-president for whom he desires to vote, or place ‘ X ’ in the circular space above such names. Such ballot will be considered and counted as a vote for each of the candidates for election as presidential elector who were nominated as such at the state convention of the same political party as the political party at whose national convention the persons were nominated as candidates for the offices of president and vice-president at the left of, or above, whose names on the presidential ballot the voter placed ‘X,’ and whose nominations as candidates for presidential elector were certified to the Secretary of State as required by Section 4785-74 of the General Code.”

Relators do not ask that their names as candidates for electors be placed upon the ballot. They seek only to have the names of Messrs. Wallace and Taylor (see note hereinafter) printed upon the ballot as if they were the candidates of political parties and thus to become symbolic of the list of relators, with a vote cast for the symbol to be counted for names on file in the office of the Secretary of State.

In case of their election and a vacancy occurred among them at the time of the meeting of presidential electors provided in Section 4785-160, General Code, how would the vacancy be filled?

Section 4785-160, General Code, provides for the meeting and organization of presidential electors who were elected at the preceding general election.

The following provision of Section 4785-74, General Code, explains the state convention above referred to:

“In the year 1948 and in each fourth year thereafter, each political party in the state shall hold a state convention composed of delegates and alternates who shall be elected as such at the primary election held in each of such years. The state central committee of each such political party shall fix the time and place for holding the conventon of its party.”

Section 4785-61, General Code, defines a political party as follows:

“A political party within the meaning of this act shall be any group of voters which, at the last preceding general state election, polled for its candidate for governor in the state at least ten per cent of the entire vote cast therein for governor; or which shall have filed with the Secretary of State at least ninety days before an election a petition signed by qualified electors equal in number to at least fifteen per cent of the total vote for governor at the last preceding election, declaring their intention of organizing a political party, the name of which shall be stated in the declaration, and of participating in the next succeeding election. Such petition shall be circulated, signed, verified, and the signatures thereon examined and certified to in the same manner as is required of referendum petitions. No such group of electors shall assume a name or designation which shall be so similar, in the opinion of the Secretary of State, to that of an existing political party as to confuse or mislead the voters at an election. When any political party fails to cast ten per cent of the total vote cast at an election for the office of governor it shall cease to be a political party within the meaning of this act. ’ ’

It is to be noted that under the law as it now stands, a political party within the meaning of the election laws of this state shall he any group of voters which at the last preceding general state election polled at least ten per cent of the entire vote cast therein for governor. It will not be necessary to determine whether under the election laws in effect prior to January 1, 1948, the word, “group,” might be given a definition separate from that of a political party. Clearly under the election laws of this state as they now stand, a group is included within the term, “party,” and only a party may now have a place on the ballot. The records in these cases show we are not dealing with any party or group which has complied with the laws of Ohio necessary to secure a place on the presidential ballot.

It, therefore, becomes unnecessary to pass upon the various questions raised under Section 4785-100a, General Code, and the appeal from the finding of the Secretary of State in case No. 31498 should be dismissed.

While a dismissal-would ordinarily result, in effect, in the affirmance of the findings of the Secretary of State, it should be understood that the dismissal in this case is a formality only, and the court does not pass upon the holdings made by the Secretary of State or the questions raised in respect thereof.

Further as to the case No. 31496 which seeks a writ of mandamus directing the Secretary of State to place upon the ballot to be voted at the coming general election the names of Messrs. Wallace and Taylor as independent candidates, respectively, for president and vice-president and to file the petitions of relators; the short answer, which will be elaborated later, is that there is no such duty resting upon the Secretary of State. The majority opinion grants a writ commanding the Secretary of State to place the names of relators on the ballot. Relators do not seek this relief. (See note.)

Section 12283, General - Code, defines mandamus 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.”

Outside of the disqualification for such office of certain persons named in Section 1 of Article II above, there is no limitation placed upon the direction of the manner in which the appropriate number of electors are appointed by the state.

Section 4785-107, General Code, supra, provides the form and arrangement of the presidential ballot as follows:

“On the presidential ballot shall be printed the names of the candidates for election to the offices of president and vice-president of the United States, nominated as snch by the national conventions of those political parties to which delegates and alternates were elected at the next preceding primary election.”

The writ is also sought to compel the Secretary of State to print upon the presidential ballot a blank rectangular space at the left of the space in which the names of Henry A. Wallace and Glen H. Taylor appear whereby the voter by placing an “X” in such blank rectangular -space may be considered to have voted for the list of candidates for electors submitted by relators. The only justification for a presidential ballot, its form and arrangement is to be found in Section 4785-107, General Code, supra. It should-need no citation of authority to convince that a place upon the presidential ballot is conditioned upon compliance with the terms of the statute. The record clearly shows that the terms of Section 4785-107, General Code, have not been complied with.

The briefs contain an argument on the ground of “democracy.” Such an argument serves to obfuscate rather than to clarify the issues before us.

The Constitution of the United States does not mention the word, “democracy.” On the contrary, Section 4 of Article IV of that Constitution, guarantees to every state in the Union a republican form of government which means that while the sovereign power resides in the electorate, the electorate exercises such power through chosen representatives. While the federal Constitution authorizes a state to appoint the electors, in such manner as the legislative body of the state may direct, relators have assumed that ■ they may take advantage of sections of law providing for the placing upon the state ticket the names of independent candidates. Even so, they have not complied with the election laws for independent state candidates as will be shown below.

In the case of State, ex rel. Hawke, v. Myers, Secy. of State, 132 Ohio St., 18, 4 N. E. (2d), 397, it is said, in the per ctiriam opinon:

“Section 1, Article II, U. S. Constitution, vests the Legislature with authority to direct the manner in which presidential electors shall be appointed, and as there is no provision' in the Ohio Constitution limiting the exercise of that delegated power, Sections 4785-107 and 4785-108, General Code, are not unconstitutional. ’ ’

In the ease of McPherson v. Blacker, Secretary of State (Michigan) 146 U. S., 1, 36 L. Ed., 869, 13 S. Ct., 3, it was held in an opinion written by Mr. Chief Justice Puller and as summarized in the headnotes of the Lawyers’ Edition as follows:

“4. The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.
“5. The appointment and mode of appointment of electors belong exclusively to the states under the Constitution of the United States.”

In the course of the opinion Mr. Chief Justice Puller said at page 28 (page 875 L. Ed.):

“The Journal of the Convention discloses that propositions that the President should be elected by ‘the citizens of the United States,’ or by the ‘people,’ or ‘by electors to be chosen by the people of the several states,’ instead of by the Congress, were voted down.”

The petition contains the allegation:

“Relators [who are the candidates for election as electors] further aver that- they and each of them are independent candidates for election to the said offices, not being candidates of political parties for election to said office or offices.”

Relators in their petition summarize the position of respondent as follows:

“Relators further say that the respondent refused to accept, file and process said nominating petitions, as provided by law, because he contends that the election laws of Ohio prohibit the placing on a presidential ballot, or any other ballot to be voted on at the general election to be held on November 2, 1948, of the names of candidates for president and vice-president of the United States, who, or the independent candidates for election as state presidential electors of Ohio for 1948, representing them, were nominated by independent nominating petitions and that independent candidates for election as presidential electors of the state of Ohio for 1948 may not be nominated by independent nominating petitions; that the only candidates for president and vice-president of the United States (or the candidates for presidential electors representing said candidates) whose names may be submitted to the electorate of Ohio are restricted and confined to those persons nominated as candidates for election to the office of president and vice-president of the United States by the national conventions of those political parties to which delegates and alte'rnates were elected at the next preceding Ohio primary election and that the only persons who may be candidates for presidential electors in Ohio are those who are nominated as candidates for election as presidential electors at a state convention of a political party.”

The position of the respondent as above outlined in relators ’ petition is correct and such petition is, therefore, demurrable. (See note.)

Belators’ erroneous theory is further illustrated by the following quotation from relators’ petition.

“Belators further aver that the election laws of Ohio, taken in pari materia, do not exclude the right of persons to be independent candidates for presidential electors of the state of Ohio.”

It is unnecessary to point out any exclusion of such candidacies but it is necessary to point out the specific direction of the General Assembly for the manner of appointment of presidential electors.

Belators further argue in their petition: “* * • insofar as they [election laws of Ohio] prohibit any person having the qualifications of an elector from being an independent candidate for said office of presidential elector, are unreasonable, arbitrary, and unconstitutional under Article I, Section 2, Article V, Section 1, and Article XV, Section 4 of the Constitution of the State of Ohio and 5th and 14th Amendments of the Constitution of the United States.” The foregoing sections are not relevant to the question here under consideration.

If relators had not made the false assumption as to their rights under a democracy, they might have pursued the Constitution of the United States further and thus have found the clear provision of Section 1, Article II of the Constitution, in respect of the manner of appointment of presidential electors.

In the majority opinion it is said:

“The relators have taken all the preliminary necessary steps for their nomination as presidential electors.”

We believe that we have demonstrated that relators have not taken the preliminary necessary steps for their nomination as presidential electors.

Pursuing the same paragraph in the majority opinion it is said: “Presidential electors are state officers.” And then attention is called to Section 4785-91, General Code, and the paragraph is ended with the question: “In this curious situation how must the statutes be interpreted?” If- the statutes be properly interpreted, there will be no “curious situation.”

The only duty placed upon presidential electors is to be found in the 12th Amendment to the federal Constitution, to wit:

“The electors shall meet in their respective states, and vote by ballot for president and vice-president, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president, and they shall make distinct lists of all persons voted for as president and of all persons voted for as vice-president, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United. States, directed to the president of the Senate. The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted. The person having the greatest number of votes for president, shall be the president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as president, the House of Representatives shall choose immediately, by ballot, the president. But in choosing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

But if we were to assume, as does the majority, that a presidential elector is a state officer and comes within the ambit of Section 4785-91, General Code, then we propound the question: What authority in the laws of this state is there for an omnibus nominating petition or for nominating Henry A. Wallace for president of the United States and Glen H. Taylor for vice-president of the United States?

Like Abou Ben Adhem’s, Mr. Wallace’s name leads all the rest on the petition. Yet the majority opinion acknowledges that there is no authority for the names of Messrs. Wallace and Taylor to be on the petition. There is no authority in law for the filing of a nominating petition for more than a single candidate. For this reason alone the petitions if otherwise proper would not be good under Section 4785-91, General Code.

Since the- decision in the case of State, ex rel. Ach, v. Butterfield et al., Board of Elections, 122 Ohio St., 618, 174 N. E., 253, the election laws have been changed.

Paragraph Tc of Section 4785-3‘, General Code, as enacted in 113 Ohio Laws, 308, provided:

“The term ‘independent group’ shall mean any organization or group of voters, which nominates a candidate or candidates for office by petition to be voted for at an election, and which is not a party as hereinafter defined.” (Italics ours.)

The quoted provision of this section is no longer to be found in the election laws.

Under the present election laws, as above pointed out, the word, “group,” has no other meaning than “party.”

Section 4785-100, General Code (113 Ohio Laws, 353), was relied upon in the Butterfield ease. That section has also been repealed.

There is, therefore, no authority for omnibus or blanket nominating petitions.

. Who is it that can say that without the names of Wallace and Taylor on the petition, the electors of this state would have signed the omnibus nominating petition for the 25 other named candidates? Again, where multiple candidacies for the General Assembly are authorized, may an omnibus petition be used for either or both senators or members of .the House of Representatives to the General Assembly where more than one office is to be filled?

Again, in certain years two county commissioners are to be elected. May a common nominating petition be used to nominate both of them? The answer, of course, to each of the foregoing queries is in the negative. Yet, what does the majority propose to do? In the first place, they recognize the right of 25 different candidates to present a single nominating petition. They propose to delete from that petition the names of Messrs. Wallace and Taylor. They propose to grant not the prayer of relators’ petition but something entirely different. For the form of the writ which the majority proposes to issue there cannot be found within the laws of Ohio any act which enjoins upon the Secretary of State a duty resulting from his office.

The strongest claim of relators to the writ is contained in the following allegation of their petition: “Relators further aver that the election laws of Ohio, taken in pari materia, do not exclude the right of persons to be independent candidates for presidential electors of the state of Ohio.”

If ' such a claim points to a law which specially enjoins a duty resulting from an office, trust or station, then we do not understand the proceedings in mandamus as prescribed by the laws of Ohio.

No one has been deprived of his right to vote. No one has been deprived of his right to seek, in a proper manner, the nomination of a candidate. Belators have neglected to follow the method prescribed by the General Assembly.

We stand for the liberal construction of election laws but not for supplementing or supplanting those laws by judicial legislation.

We cannot emphasize too strongly that what relators pray for in their petition is not a writ to place the names of their candidates for electors upon the ballot. (See note.) In this respect it is prayed that the Secretary of State shall be required to receive and file the petitions. So far as concerns the ballot itself, what the relators seek is to have the names of Henry A. Wallace, candidate for president of the United States, and Glen H. Taylor as a candidate for vice-president of the United States, printed upon the presidential ballot and that all votes for Wallace and Taylor shall be counted and considered as a vote for each of the relators as candidates for election as presidential electors of the state of Ohio for 1948. The position taken by the relators is ridiculous when considered under the laws of this state.

The writ should be denied.

Note: After the foregoing dissenting opinion was prepared a majority of the court granted the relators leave (requested at the close of arguments) to amend their petition by adding to the prayer thereof the following words:

“including a writ commanding the respondent to accept, file and process said nominating petitions and print on the proper ballot at the general election of November 2, 1948, the names of the relators as independent candidates for presidential electors.” (Italics ours.)

No demand was made upon the Secretary of State to print the names of the candidates on either ballot and no refusal by the Secretary of State to do so has been shown. However, acknowledging the realities, in all probability the Secretary of State would have declined to comply prior to the issuance of a writ. Accepting the amendment as allowed, we see no reason for revising the foregoing dissent as we are still of the opinion that case No. 31498 should be dismissed and that the writ of mandamus should be denied in case No. 31496. At appropriate places in the dissent we have directed attention to this note.

Turner, J.  