State Ex Rel, Gongwer v. Graves
| Decision Date | 29 October 1913 |
| Docket Number | 14399,14422,14398 |
| Citation | 107 N.E. 1018,90 Ohio St. 311 |
| Parties | The State, Ex Rel. Gongwer, v. Graves, Secretary Of State |
| Court | Ohio Supreme Court |
Referendum - Elections - Subject of political and not judicial regulation - Powers and duties of state supervisor and inspector of elections - Sufficiency and validity of referendum petitions - Section 1c, Article II, Constitution of 1912 - Secretary of state may reject petitions, when - Effect of false affidavit to part of petition - Section 1g Article II, Constitution of 1912 - Forged signatures to petition - Court cannot order submission of referendum, when.
1. Elections belong to the political branch of the government and not to the judicial, and are not per se the subject of judicial cognizance, but are matters for political regulation. (The State, ex rel., v. Harmon, 31 Ohio St. 250; Chapman v. Miller, 52 Ohio St. 166; Randall v. State, ex rel., 64 Ohio St. 57; The State, ex rel., v. Stewart, 71 Ohio St. 55; The State, ex rcl., v. Joyce, 87 Ohio St. 126; Link v. Karb, Mayor, 89 Ohio St. 326, approved and followed.)
2. The state supervisor and inspector of elections and deputy state supervisors and inspectors of elections are authorized by law duly enacted by the legislature of Ohio to conduct all public elections in the manner prescribed by the provisions of Title XIV, Part First, General Code, and to hear and determine all preliminary questions pertaining thereto.
3. The secretary of state, when acting as state supervisor of elections has the authority to hear and determine the sufficiency and validity of all petitions filed with him under the provisions of Section Ic of Article II of the Constitution of this state, and his decision thereon is final, unless such decision has been fraudulently or corruptly made or procured, or unless he has been guilty of an abuse of discretion.
4. Where it appears from the evidence that any circulators of parts of a petition have been guilty of a systematic course of fraud and forgery in procuring and writing names thereon and have wilfully and intentionally sworn to false affidavits attached thereto, it is neither fraudulent nor an abuse of discretion on the part of the secretary of state to reject all parts of the petition procured by such circulators.
5. Where evidence is offered tending to prove that many of the parts of a petition, although purporting to be verified by af- fidavit, were not in fact sworn to, as required by the constitution, the state supervisor of elections may reject any or all such parts, notwithstanding there is a conflict of evidence upon that question, unless his decision in that behalf is so manifestly and palpably against the weight of the evidence as to show fraud corruption or an abuse of discretion on his part.
6. An affidavit intentionally and knowingly false, attached to any part of a petition, is not a compliance with the provisions of Section Ig of Article II of the Constitution of the state and the part of a petition, to which such false affidavit is attached, must be rejected entirely, the same as a part to which no affidavit is attached, whether it contains genuine names or not, for the reason that it lacks the affidavit required by the constitution.
7. Where it is admitted that 20,000 names signed to a petition requesting the submission of a law passed by the general as sembly of this state to the approval or rejection of the electors of the state, are forged by the circulators, and within ten days thereafter additional names are tendered to the secretary of state and rejected by him, and no action in mandamus is brought to compel the secretary of state to accept the additional names until a time so near the next general election, occurring more than sixty days after the filing of such referendum petition. that issue cannot be joined and the cause heard and determined in time to submit such question to the electors of the state nt such election a court is powerless to afford the relator relief. even though it should appear that the secretary of fate abused his discretion in rejecting the additional petition.
Decided June 26, 1914.
IN MANDAMUS.
Messrs. Squire, Sanders & Dempsey and Messrs. Miller, Thompson & Dunbar, for relator.
Mr. Timothy S. Hogan, attorney general; Mr. Joseph McGhee; Mr. James 1. Bouiger and Mr. Peter E. Dempsey, for respondent. BY THE COURT.
These three cases involve substantially the same questions. The first two were heard together. Owing to the urgent necessity for an early disposition of these two cases they were not held to await the preparation of an opinion, but, on account of their importance, a short and hurriedly prepared memorandum, giving the major reasons for the conclusions reachein, was filed with the cntries of the judgments in these cases, and the opinion delayed until the later case was heard and disposed of and the three cases could be reported together.
The principal question and the one common to all of these cases is the question of the authority of the secretary of state to hear and determine the validity of the petitions filed with him. That question is no longer an open one in Ohio.
This court has repeatedly held that elections belong to the political branch of the government and not to the judicial. That proposition is fully discussed, and the authorities cited and considered, in the case of Link v. Karb, Mayor, et al., decided December, 1913,89 Ohio St. 326; also in the case of T]ie State, ex rel., v. Joyce, 87 Ohio St. 126, in which it is held, in a per curiam opinion, concurred in by all of the members of this court participating in that case, that "Those matters are not per se the subject of judicial cognizance, but are matters for po]itica] regulation and Well Within the legislative power."
Section 4785, General Code, provides: "Except when otherwise provided by law, all public elections in this state shall be conducted according to the provisions of this title." This section is part of Chapter 1, Title XIV, Part First, General Code: entitled "Public Elections."
It is, therefore, apparent that the submission of a law passed by the general assembly to the electors of the state, under the provision of the amendments to the constitution authorizing a referendum vote thereon, Comes within the operation of the laws of this state relating to all public elections.
This court has held in the cases of Chapman v. Miller, 52 Ohio St. 166; Randali v. The State, ex,el., 64 Ohio St. 57; The State, ex rel., v. Stewart, 71 Ohio St. 55, and The State, ex rel., v. Joyce, 87 Ohio St. 126, that the decision of the secretary of state, acting as the state supervisor of elections, upon written objections to certificate of nomination and nomination papers, whether nominated by petition or otherwise, or upon other questions arising in the course of nomination of candidates, is final, and that in such case the courts have no jurisdiction of the subject-matter and any judgment or order of the court in reference thereto is void. True, the statute in this particular specifically con fers such jurisdiction on the secretary of state, acting as state supervisor and inspector of elections, but the legislature has provided in Title XIV, Part First of the General Code, a comprehensive plan and system for the conduct of all elections, general and special, and has committed to the state supervisor and inspector of elections and deputy state supervisors and inspectors of elections the duty and authority to conduct the same, and specific enactment has extended their authority to nomination of can- didates for office, or any other question in relation thereto, but as to elections the authority conferred by the- legislature of the state upon these officers is general and comprehends the entire subject-matter. These provisions in nowise conflict With Section 1, Article IV of the Constitution, which vests all judicial power in the courts of this state. It is plain that these amendments to the constitution do not provide for any change in the existing system of elections or the officers charged by law With the conduct and control of the same. That appears from the provisions Of these amendments.
In Section 1g, Article II, it is proviaed that the petition and signatures upon referendum petitions, "so verified, shall be presumed to be in all respects sufficient, unless not later than forty days before the election, it shall be otherwise proved." Section lc, Article II, provides that, when proper petitions are filed, "the secretary of state shall submit to the electors of the state for their approval or rejection such law, section or item, in the manner herein provided, at the next succeeding regular or general election in any year occurring subsequent to sixty days after the fi]ing of such petition;" it therefore appears that the language in Section 1g, Article II, "not later than forty days before the election," means the next succeeding regu]ar or general eleetion in an-year occurring subsequent to sixty days after the filing of the referendum petition.
Construing these two sections of the amendments together, it is very plain that a referendum petition filed sixty and one days before the next regular or general eleetion in any year requires the secretary of state to submit the law to the approval Or rejection of electors at that election, and the proof of invalidity Or insufficiency of the petition must be made not later than forty days before that election. This wouId leave twenty-one days in which to make these proofs, clearly not sufficient time for process, and unless process were waived the courts would be powerless to grant any relief Within the time limited. Certainly it was not contemplated by these provisions in our constitution that this important...
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