State ex rel. Culbert v. Kinney

• Decision Date: 13 November 1900
• Citation: 63 Ohio St. 304,58 N.E. 809
• Parties: STATE ex rel. CULBERT v. KINNEY, Secretary of State, Etc.
• Court: Ohio Supreme Court

58 N.E. 809

63 Ohio St. 304

STATE ex rel. CULBERT v. KINNEY, Secretary of State, Etc.

Supreme Court of Ohio.

November 13, 1900

Application by the state, on the relation of A. Culbert, for a writ of mandamus to Charles Kinney, secretary of state and state supervisor of elections. Writ awarded.

Syllabus by the Court.

1. By section 2966-3 of the Revised Statutes the state supervisor of elections was required on or before the first Monday in August, 1892, to appoint deputy state supervisors of election for the term of one and two years from that date, as therein provided; and, as the first Monday in August of that year was the first day of the month, that became the day of the month for the beginning of the terms of subsequent appointees, and on or before which such subsequent appointments should be made.

2. When a recommendation for the appointment of a qualified person as deputy state supervisor of elections, signed by the chairman secretary, and members of the county executive committee of a political party that at the preceding November election cast the highest or the next highest number of votes for governor or secretary of state, is placed on file with the state supervisor of elections within the required time, it is his duty to appoint the person so recommended.

3. Mandamus is the proper remedy to enforce the performance of that duty.

This action is brought to compel the defendant to appoint the relator to the position of deputy state supervisor of elections for Sandusky county. The petition alleges that on the 17th day of July, 1900, there was filed in the office of the defendant the recommendation of the Republican executive committee of Sandusky county for the appointment of the relator as a deputy state supervisor of elections of that county for the term beginning August 1, 1900, and ending July 31, 1902; that the relator was then and is a citizen and elector of that county, having all the qualifications necessary for a deputy state supervisor of elections for the county; and that he was then and still is a member of the Republican party, which at the election held in November 1899, cast the highest number of votes in this state for the office of governor. It is further alleged that notwithstanding the recommendation so filed, the defendant, in violation of his duty, refused and still refuses to appoint the relator to the office or place of deputy state supervisor of elections for Sandusky county. The prayer is for a writ requiring defendant to make the appointment. The defendant by his answer denies the allegations of the petition, and avers that "there being no recommendation before him for the appointment of a deputy state supervisor of elections in and for the county of Sandusky, from the Republican executive committee of said county," he appointed to that place another person, who has entered upon his duties and is still acting in the performance thereof. Evidence was taken on the issues thus joined, which, it is conceded, shows that on the 14th day of July, 1900, there was sent from Fremont, Ohio, to the office of the state supervisor of elections, at Columbus, Ohio, the following recommendation: "Recommendation for Appointment of Member of Board of Deputy State Supervisors of Elections for Sandusky County. Fremont, Ohio, July 14, 1900. To the Secretary of State, Columbus, Ohio: The undersigned members, chairman, and secretary of the Republican executive committee of Sandusky county, Ohio, acting for and on behalf of said committee, hereby recommend Albert E. Culbert, of Fremont, Ohio, for appointment as deputy state supervisor of elections for said county for the term beginning August 1, 1900, and ending July 31, 1902. [Signed] J.D. Bemis, Chairman. A.H. Jackson. A.E. Culbert, Secretary. J.H. Becker. C.P. Myers. W.A. Roush." This document was received at the office of the defendant on the 17th day of July, 1900, and was then filed therein with the following indorsement: "Recommendation for Appointment of Deputy State Supervisor of Elections for Sandusky county. Republican, Received July 17, 1900. Charles Kinney, Secretary of State." And the receipt and filing of the paper by the defendant was acknowledged in the following communication to the relator: "Ohio, Department of State. July 17, 1900. Albert E. Culbert, Fremont, Ohio-Dear Sir: I am in receipt of the recommendation of the Republican executive committee of your county in behalf of your appointment as deputy state supervisor of elections, and have filed the same. Very respectfully yours, Charles Kinney, Secretary of State." On the 14th day of July, 1900, E.L. Rugh, the only member of the Republican county executive committee of Sandusky county whose name is not signed to the recommendation herein above set forth, sent his written recommendation to the state supervisor of elections in the words and figures following: "Gibsonburg, Ohio, July 14, 1900. Hon. Charles Kinney, Secretary of State, Columbus, Ohio-My Dear Sir: I hereby recommend Albert E. Culbert, of Fremont, Ohio, for appointment as deputy state supervisor of elections for said Sandusky county, for the term beginning August 1, 1900, and ending July 31, 1902. [Signed] E.L. Rugh." The evidence also shows that the persons whose names are signed to the foregoing recommendations constituted the entire Republican executive committee of Sandusky county, that their signatures thereto were genuine, and that J.D. Bemis was chairman, and A.E. Culbert secretary, of the committee.

Dyer Williams & Stouffer, Richards & Heffner, D.B. Love, and J.M. Hall, for relator.

J.M Sheets, Atty. Gen., Daniel J. Ryan, and George...