Smith v. Polk
| Decision Date | 08 February 1939 |
| Docket Number | 27349. |
| Citation | 135 Ohio St. 70,19 N.E.2d 281 |
| Parties | SMITH v. POLK, et al. [*] |
| Court | Ohio Supreme Court |
At the general election, held on the 8th day of November, 1938 the contestor, Emory F. Smith, and contestee, James G. Polk were candidates for election as Representative in Congress from the Sixth Congressional District of this state. On the 22nd day of November, 1938, the Board of Elections of Scioto county, Ohio, canvassed the abstracts of the result of the election, delivered by the Boards of Elections of the counties of Pike, Adams, Brown, Highland and Clermont, as well as the result of the election in Scioto county, and determined the result to be as follows: For contestee, James G. Polk, 43,646 votes; for the contestor Emory F. Smith, 42,847 votes, whereupon the contestee, James G. Polk, was declared elected to office and the result duly certified to the defendant, Secretary of State William J Kennedy, and thereafter, pursuant to the law, the Secretary of State certified the result and issued a certificate of election to the contestee, James G. Polk, as Representative in Congress.
Thereafter a petition was filed in this court by the contestor, Emory F. Smith, against James G. Polk, contestee, members of the Board of Elections of Scioto county, members of the Board of Elections of Pike county, and the Secretary of State, William J. Kennedy, alleging that the election of contestee, as a member of Congress, was invalid by reason of fraud, numerous errors and irregularities in the casting, counting and certifying of the election in Pike county. The prayer of the petition is that such order as may be necessary to determine the true results in Pike county be declared and that the contestor be adjudged elected to the office of Representative to Congress for the Sixth Congressional District of Ohio.
To this petition the contestee, James G. Polk, filed a demurrer setting forth two grounds: First, that this court has no jurisdiction of the subject of the action, and, second, that the petition does not state facts sufficient to show a cause of action against him.
The Board of Elections of Pike county filed an answer and the Secretary of State filed a demurrer to the petition.
Manuel Koslen, of Cleveland, for contestor.
Robert B. McMullen, of Hillsboro, and James I. Boulger, of Columbus, for contestee.
E. Dudley Harris, of Waverly, for Board of Elections of Pike County.
Herbert S. Duffy and Thomas J. Herbert, Attys. General, Herman G. Kreinberg, of Cleveland, and A. A. Wendt, of Akron, for Secretary of State William J. Kennedy.
In support of his first position the contestee relies upon Sections 1 and 5, Article I of the Constitution of the United States, U.S.C.A., which provide in part as follows: 'All legislative Powers * * * shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' Section 1, Article I. 'Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, * * *.' Section 5 Article I.
In support of his second position the contestee contends that 'Sections 4785-166 to 4785-174, inclusive, of the General Code of Ohio, in so far as they purport to apply to the office of member of the Congress of the United States are null and void, unconstitutional and in violation of the aforesaid Sections 1 and 5, Article I of the Constitution of the United States.'
The contestor filed this action pursuant to the provisions found in Sections 4785-166 to 4785-174 of the General Code. Contestee admits that the statutes in question are valid enactments in respect to contest of elections for state offices, but insists that they are null and void and unconstitutional in respect to the election of a member of Congress, and quotes a number of decisions in other jurisdictions.
It is contended that a decision of this court would not be binding upon the House of Representatives in respect to the title to this office. But neither is the certificate of election, already issued by the Secretary of State. Either may be recognized or set at naught. The certificate of election, issued by the Secretary of State, is merely the credential of the person who presents the same to the House of Representatives. The question that recurs is: What is the duty, obligation and authority of this court in the premises? The Congress of the United States could, under the Constitution, provide the regulations and rules under which members of Congress would have to be elected. But thus far the Congress has not chosen to preempt that field but has left to the state the necessary legislation whereby members of Congress may be elected. Under Section 5, Article I of the Constitution of the United States, however, full power is granted to Congress to be the judge of the elections and qualifications of its members. When a member of Congress is elected in the various states the Congress has the right to decide not only his qualifications but also whether he has been legally and rightfully elected. This does not mean that the sovereign states in the election of such congressman shall be any less diligent in preserving the sanctity of the ballot in respect to a congressman than in the election of any state official. But the issue in the instant case is whether this court has jurisdiction.
The basic question of the jurisdiction of a court, where the Constitution specifically grants authority to a legislative body to determine the election and qualifications of its members, was before this court...
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