
    The State, ex rel. Sagebiel, v. Board of Elections of Montgomery County, Ohio, et al.
    (No. 30166
    Decided November 1, 1944.)
    
      
      Mr. Robert J. Kelly and Mr. Herbert D. Mills, for relator.
    
      Mr. Nicholas F. Nolan, prosecuting attorney, and Mr. Edward E. Duncan, for respondent board of elections.
    
      Mr. Calvin Crawford, Mr. John M. Sprigg and Mr. R. A. Argabright, for respondent Albert H. Wetecamp.
   Turner, J.

Owing to .the emergency nature of this action the court has consented to consider the petition, motions and answers at the same time. The motions question the jurisdiction of this court for the reason that the petition contains no allegation “that any express or distinct demand was made by the relator upon the defendants, or any of them.”

• Defendants rely for the support of their motions upon 25 Ohio Jurisprudence, 1001, Section 27. However, it is to be noted that in this same section it is stated:

“In this connection, a distinction is made between duties of a public nature, which affect the public at large, and duties of a merely private nature, which affect only the right of individuals. According to the better-view, where the duty sought to be enforced is one owing- to the public generally, no demand for performance is requisite to place the respondent in default, as a prerequisite to mandamus to compel the performance of the duty; in such cases the law itself stands in lieu.of a demand, and the omission to perform the required' duty, in place of a refusal.”

The motions of respondents are therefore overruled.

In the answer of respondent Wetecamp it is alleged:

“Defendant alleges that subsequent to the issuance of said letter by the Secretary of State under date of^ September 15, 1944, the Common Pleas Court of Montgomery county, Ohio, entered its final order enjoining the Board of Elections of Montgomery county, Ohio, from printing special ‘write-in’ ballots for the unexpired term of Elmer F. Tinnerman, deceased, as county commissioner, for the reason that said ballots could not be issued and distributed in accordance with Am. Sub. [sic] S. B. 284 of the laws of the state of Ohio, which said order is in full force and effect.” The board’s answer contains the additional allegation that the injunction was asked to prevent the expenditure of public funds for the purpose.

This same defense was urged in oral argument in behalf of all respondents. Owing to the necessity for a prompt decision in this matter we shall not pass upon the foregoing question for two reasons: (A) The present record is insufficient to determine the question of the jurisdiction of the Common Pleas Court; and (B) it will be our holding that the petition does not state facts sufficient to justify the issuance of a peremptory writ of mandamus.

Section 12283, General Code, provides in part as follows:

“Mandamus is a writ issued, in the name of the state, * * * commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

Relator seeks a peremptory writ to compel the members of the boarfi of elections and its clerk to obey the order of the Secretary of State “ as to the printing of a separate ballot * * * for the general election to be held .Tuesday, November 7, 1944, containing a space for the write-in candidate for both major political parties for the unexpired term of Elmer F. Tinnerman, deceased, for county commissioner.”

The duties of the board of elections are prescribed by statute and unless we can find some statutory authority for the foregoing relief a peremptory writ must be denied.

Section 4785-8, General Code, provides in part:

“There shall be in each county of the state, a board of elections consisting of four qualified electors of the county, who shall be appointed by the Secretary of State, as representatives of the Secretary of State, to serve for the term of four years and until their successors have been appointed and have qualified.”

The duties of a board of elections are prescribed by Section 4785-13, General Code, which provides in part as follows:

“The boards of elections within their respective jurisdictions by a majority vote shall exercise, in the manner herein provided, all powers granted to such boards in this act, and shall perform all the duties imposed by law which shall include the following:'* * *
“f. To advertise and contract for the printing of all ballots, and other supplies used in registrations and elections. * * *
“p. To perform such other duties as may be prescribed by law or the rules of the chief election officer.
“In all cases of a tie vote or a disagreement in the board, if no decision can be arrived at, the clerk shall submit the matter in controversy to the Secretary of State, who shall summarily decide the question and his decision shall be final.”

Section 4785-6, General Code, provides in part as follows:

“The Secretary of State, by virtue of his office, shall be the chief election office of the state, with such powers and duties relating to the registration of voters and the conduct of elections as are prescribed in this, act. ’ ’

Section 4785-7, General Code, provides:

“It shall be the duty of the Secretary of State to appoint, in the manner provided by law, all members of boards of elections, to advise with members of such boards as to the proper methods of conducting elections; * * * to determine, in the manner provided by law, the forms of ballots * * *.”

It needs no citation of authority to demonstrate that the orders of the Secretary of State which are to be obeyed must be lawful orders finding their support in some section or sections of the General Code.

Section 2 of Article XVII of the Constitution provides in part: “All vacancies in other [than state] elective offices shall be filled for the unexpired term in such manner as may be prescribed by law.”

Section 2397, General Code, provides:

“If a vacancy in the office of commissioner occurs more than thirty days before the next election for state and county officers, a successor shall be elected thereat. If a vacancy occurs more than thirty days before such election, or within that time, and the interest of the county requires that the vacancy be filled before the election, the probate judge, auditor, and recorder of the county, or a majority of them, shall appoint a commissioner, who shall hold his office until his successor is elected and qualified.”

The foregoing section does not prescribe how the name of a candidate may be placed upon the ballot or how a ballot may be prepared where there is no avowed candidate. This court may not legislate.

An examination of the Code discloses that the names of candidates may be placed upon the ballot only after a successful nomination in a party primary, or by petition, or by the filling of a vacancy by a party central committee, or by a committee named in an independent candidate’s petition.

By Amended Senate Bill No. 284 passed by the General Assembly April 27, 1944, and filed in the office of the Secretary of State, April 28, 1944, a method was provided in Section 5 thereof for the nomination of a person to fill a vacancy in an elective office where the death occurred between the 10th day of March and prior to the 20th day of July, 1944. This section reads in part as follows:

“If a’person holding an elective office shall have died subsequent to the tenth day of March, 1944, and prior to .the twentieth day of July, 1944, and if, under the laws of Ohio, a person may be elected at the general election to be held on the seventh day of November, 1944, to fill the unexpired term of the person who shall have died, the appropriate committee of each political party, acting as in the case of a vacancy in a party nomination as in the first three paragraphs of this section provided for, may select a person as the candidate of its party for election for such unexpired term at the general election to be held on the seventh day of November, 1944, and certify his name, and thereupon- such name shall be printed as such candidate under proper titles and in the proper place on the party column ballots used at such general election. ’ ’

Section 6 of Amended Senate Bill No. 284 provides:

“The Secretary of State shall, oh the twenty-fifth day of July, 1944, certify to the board of elections of each county in the state the forms of the official ballots to be used at the general election to be held on the seventh day of November, 1944 * *

The only authority for the amendment of such certificate for the November 1944 general election is contained in the further provision of Section 6 as follows:

“If, after the twenty-fifth day of July, 1944, and before the twenty-ninth day of October, 1944, a certificate should be filed with the Secretary of State to fill a vacancy caused by the death of a candidate, as in section 5 of this act provided for, the Secretary of State shall forthwith make a supplemental certification to the board of elections of each county in the state amending and correcting his original certification provided for in the first paragraph of this section. * * *”

Section 5 above referred to pertains only to a vacancy in the party nomination, or in the nomination by petition, or to the death of a person holding an elective office. In the latter event the nomination may be made only by a party central committee and for a vacancy occurring by death between March 10, 1944, and prior to July 20, 1944. So far as the record discloses no such nomination was made. Even if such nomination had been made, we know of no provision requiring blank spaces on the ballot to be used for the election of candidates at the November 1944 general election. It is true that Section 7 of Amended Senate Bill No. 284 does require that in addition to the names of the candidates, all ballots shall contain spaces, as required by laiv, for writing in other names. The only requirement for blank spaces on ballots is contained in Section 4785-80 and Section 4785-98, General Code, neither of which sections is helpful here. Besides Section 4785-98, General Code, has been suspended for the November 1944 general election by Amended Senate Bill No. 284. Section 4785-80, General Code, applies only to primary ballots. Whether Section 4785-98, General Code, is similarly limited in this respect need not be determined here, suffice it to point out that its provision as to blank spaces is limited to such as are “herein required.” Section 4785-99, General Code, specifically provides the contents of ballots to be used at general elections and there is no provision made therein for blank spaces. See, also, Sections 4785-100, 4785-105 and 4785-109. Section 4785-105, General Code, was also suspended by Amended Senate Bill No. 284.

However, paragraph 6 of Section 4785-131, General Code, does provide:

“If the elector desires to vote for a person whose name does not appear on the ticket, he can substitute the name by writing it in black lead pencil in the proper place, and making a cross mark in the blank space at the left of the name so written.”

We do not see how this provision can be stretched to authorize the use of a separate ballot with the name of no candidate on it but containing the name of the office to be filled and blank party columns. It is to be remembered that the provisions of Section 4785-98, General Code, do not apply to the November 1944 election.

The General Assembly has made provision for filling a vacancy occurring prior to July 20, 1944, but no such provision has been made for filling a vacancy caused by the death of an official occurring subsequent to the 20th day of July, 1944. Such situation calls for the application of the rule of expressio umius est ex-clusio alterius.

The legislative theory underlying the preparation of ballots contemplates that the printing of a ballot is based upon the fact that some specific person or persons has or have been nominated for the office and are candidates for a specific office at the general election.

We are unable to find.any provision for the printing of a blank ballot except under Section 4785-87 of the General Code pertaining only to primary elections. This section provides:

“In case of any office for which nominations are sought to be made at any primary election, and for which no declarations of candidacy have been filed within the time prescribed by .law, the board shall provide on the primary ballot space for writing in names. # * # ? 5

There is no similar provision applicable to general elections. The Secretary of State is without authority to order the preparation or use of a ballot not authorized by the Code. ■

The only provision in the General Code for an analogous separate ballot is to be found in Section 4785-104, which applies only in case it is found impracticable to place the names of candidates for any office of a minor subdivision in the county on the ballot, in which event a separate ballot may be prepared and separate ballot boxes provided.

As the law has not specially enjoined a duty upon the board of elections of preparing or using the form of the separate ballot directed by the Secretary of State, a peremptory writ of mandamus is denied and this cause is. dismissed at the cost of relator.

Writ denied.

Weygandt, C. J., Matthias and Zimmerman, JJ., concur.

Hart, Bell and Williams, JJ., dissent.

Bell, J.,

dissenting. In this case I find myself forced to dissent from the conclusion reached by the majority and, because of the importance of the questions presented, I feel bound to state as briefly as possible the reasons for my conclusions.

The petition makes known to the court “that on August 19,1944, Elmer P. Tinnerman, then a county commissioner of Montgomery county, Ohio, died; that he was not a candidate for re-election at that time, having more than two years of the term for which he was elected to serve.”

On September 15, 1944, the Board of Elections of Montgomery county submitted to the Secretary of State the question whether there should be provided by such board a ballot containing space for a write-in candidate for the unexpired term of Tinnerman at the general election to be held on November 7, 1944, “by reason of the. fact that the board of elections had had a tie vote on this question.” On September 18, 1944, the Secretary of State voted in the affirmative, to wit, that the board should provide a ballot containing space for a write-in candidate for the unexpired term of Tinnerman as county commissioner. This the board has failed to do. We are told that the failure is based upon two grounds: (1) That the Court of Common Pleas of Montgomery county granted a permanent injunction enjoining the board from furnishing such a ballot; and (2) that Amended Senate Bill No. 284, passed by the General Assembly on April 27,1944, and approved by the Governor on the next day, creates a barrier to such procedure.

Before proceeding to a discussion of those claims attention will be directed to the question as to whether the vacancy in the office of County Commissioner of Montgomery county, Ohio, should be filled at the election on November 7, 1944.

Section 2397, General Code, provides in part:

“If a vacancy in the office of commissioner occurs more than thirty days before the next election for state and county officers, a successor shall be elected thereat.” (Italics mine.)

It is thus made clear that the vacancy should be filled by the election of a successor to the deceased commissioner at the election to be held on November 7, 1944, unless by the provisions of Amended Senate Bill No. 284, the provisions of Section 2397, General Code, are suspended for the 1944 eléction.

Section 4785-13, General Code, provides in part as follows:

“In all cases of a tie vote or a disagreement in the board, if no decision can be arrived at, the clerk shall submit the matter in controversy to the Secrétary of State, who shall summarily decide the question and his decision shall be final.” (Italics mine.)

With these provisions in mind let us proceed to a consideration of the reasons assigned by. the board for failure. to comply with the decision of the secretary.

(1) That the Court of Common Pleas granted a permanent injunction enjoining the board from furnishing such a ballot.

This court just fifty years ago disposed of a similar situation in the case of Chapman v. Miller, 52 Ohio St., 166, 39 N. E., 24. The syllabus reads:

“Upon submission of objections to certificates of nomination, by board of deputy state supervisors to state supervisor of elections, his decision thereon is final, and the board of deputy state supervisors refusing to comply therewith may be compelled to do so by mandamus. And an answer stating that they have been enjoined by the Court of Common Pleas or a judge thereof, states no .valid excuse for refusing to comply with the decision of the state supervisor. In such case the Court of Common Pleas has no jurisdiction of the subject matter and its order of injunction is void.”

The court in that ease was construing Section 10 of the ballot law which read in part as follows: “ * * * but in case no decision can be arrived at, the matter in controversy shall be submitted to the state supervisor of elections [Secretary of State], who shall summarily decide the question thus submitted to him, and his decision shall be final. ’ ’

There, as here, the Court of Common Pleas had issued an injunction against the hoard doing the very act which the mandamus action sought to compel it to do and this court said: 4 4 The statute provides that the question shall be summarily decided, and that the decision shall be final.” This necessarily excludes the jurisdiction of the Court of Common Pleas, as to the subject matter, and it is clear that the judge of the Court of Common Pleas was without jurisdiction, and that his order granting the injunction was utterly void and of no effect, and furnishes no excuse for the refusal to obey the order of the state supervisor of elections.”

The court also said: 44But when those questions are decided by the state supervisor [Secretary of State], and the duties of the county board fixed, it becomes the duty of such board to obey the order of the state supervisor, and if the members of the county board refuse to execute the order of the state supervisor, they can be compelled to do so by mandamus.” That case has never been overruled and it is still the law of this state. I am fully persuaded that it answers as follows, two questions here presented:

First. That the Court of Common Pleas of Montgomery county was wholly without jurisdiction to issue the injunction and that the order was void.

Second. That when the Secretary of State decided that the ballot should be prepared and submitted to the ■electors of Montgomery county so as to enable them to elect a successor to the deceased commissioner, that it became the clear legal duty of the board to obey such order and obedience should be compelled by mandamus. Unless this be true the Secretary of State is powerless to compel obedience to his orders in matters committed by law to him for final determination.

(2) Coming now to a consideration of Amended Senate Bill No. 284, it is claimed that to fill the vacaney as provided for by Section 2397, General Code, would in some way conflict with some provision of Amended Senate Bill No. 284. In the limited time available, I have examined the provisions of that act and am at a loss to find any provision therein which could possibly be a barrier to compliance with the plain and explicit provisions of Section 2397, General Code.

Let us briefly analyze the act.

The purpose is stated in the title, ‘ ‘ To facilitate voting at' the elections to be held on the seventh day of November, 1944, by persons absent from their voting residences and serving in or with the armed forces of the United States * * * and to suspend Sections 4785-86, 4785-92, 4785-93, 4785-94, 4785-95, 4785-96, 4785-98, 4785-105, 4785-110, 6064-32 and 6212-62 of the General Code during the period of time in which this act is in force and effect, and to repeal Section 4785-141 of the General Code, and to declare an emergency. ’ ’ The act contains thirteen sections. The first ten make provision for the voting of absent war voter ballots by persons serving in the armed forces of the United States or of its allies or other specified organizations connected with the war effort, who possess the specified qualifications. The act provides in detail how the application to secure such ballots shall be made and provides certain duties to be performed by the Secretary of State and boards of elections in connection with the specified purposes of the act.

Section 11 provides that the act shall cease to be in effect on and after November 8, 1944, and specifies by numbers the several sections of the General Code mentioned in the- title which are suspended until the eighth day of November, 1944.

' Section 12 of the act provides for the repeal of Section 4785-141, General Code, which was a prior soldiers’ and sailors’ vote act.

Section 13 declares that the act is an emergency measure and the stated reason of the emergency is: “Because of such absence they [persons in the armed forces] might, under present absent voter laws, be unable to vote at the November election in 1944. This act will make it easier for them to vote at such election.”

That the General Assembly exercised great care in the w-orking out of the provisions of the act is demonstrated by even a casual reading thereof. The language used and the details provided make it apparent that it was enacted for the sole purpose of making it easier for members of the armed forces, residents of Ohio, to vote at such election. To me it is passing strange that if it was intended to suspend the provisions of Section 2397, General Code, the General Assembly failed to say so.

If it be urged that here a contingency has arisen for which no provision has been made in the emergency act (Amended Senate Bill No. 284) and therefore some of the citizens of Montgomery county, Ohio, serving in the armed forces, may not be given the opportunity to cast a write-in ballot for a successor to the deceased commissioner, a sufficient answer is that such a situation can constitute no valid reason for depriving the. thousands of citizens of that county, who are so entitled to vote, of their right .to fill the vacancy by election of some person at the election on November 7, 1944.

Where a vacancy has occurred in an elective county office more than thirty days prior to an election held to elect state and county officers and no person is eligible to have his name printed on the ballot as a candidate to fill such vacancy, it is, the duty of the Secretary of State and of the board of elections to provide a method, either upon the regular or by a special ballot, to enable the electors to fill such vacancy and, in my opinion, ample authority for so doing is found in Section 4785-7, General Code.

Section 4785-131, General Code, reads in part as follows:

“6. If the elector desires to vote for a.person whose name does not appear on the ticket, he can substitute the name by writing it in black lead pencil in the proper place, and making a cross mark in the blank space at the left of the name so written.”

If no such blank space is provided upon the regular ballot, I can see no valid reason why a special ballot may not be prepared and voted.

The majority opinion is based upon the philosophy that the right of franchise is in some way dependent upon legislative will. In other words, unless some statute can be found which authorizes the doing of each specific act, there can be no election. In my thinking the right of franchise is not dependent upon legislative will. It is bottomed upon constitutional mandate.

The absent voters act (Amended Senate Bill No. 284) does not contain one word which to me discloses any intention upon the part of the General Assembly to disturb the general election machinery of the state. As has already been pointed out, the General Assembly, by the mandatory provision of Section 2397, General Code, has said that this vacancy shall be filled at the election on November 7, 1944. Assuming that no specific provision has been enacted as to how that mandate shall be executed, the Secretary of State under the broad powers granted to him hacl full authority to provide the method for the execution of the legislative will. Here we have both constitutional and legislative mandates that this office shall be filled at the election on November 7, 1944, and the Secretary of State as the chief election officer had at least implied authority to order whatever steps were necessary to be taken in order that the electors of Montgomery county should be able to exercise their right of franchise.

I agree with the conclusion of the Attorney General and insist that the Secretary of State’s order was lawful and it was the clear legal duty of the board of elections to obey such order.

To deny this writ will deprive one hundred thousand electors of Montgomery county of -their right of selecting, in the manner provided for by the Constitution and statutes, a successor to fill the vacancy caused by the death of Tinner'man and will set at naught the decision of the Secretary of State, which the statute declares shall be final upon the question in controversy.

The motions to dismiss should be overruled and the writ granted.

Hart and Williams, JJ., concur in the foregoing dissenting opinion.  