State ex rel. Sagebiel v. Board of Elections of Montgomery County

• Citation: 57 N.E.2d 661,144 Ohio St. 162
• Decision Date: 01 November 1944
• Docket Number: 30166.
• Parties: STATE ex rel. SAGEBIEL v. BOARD OF ELECTIONS OF MONTGOMERY COUNTY et al.
• Court: United States State Supreme Court of Ohio

57 N.E.2d 661

144 Ohio St. 162

STATE ex rel. SAGEBIEL v. BOARD OF ELECTIONS OF MONTGOMERY COUNTY et al.

No. 30166.

Supreme Court of Ohio

November 1, 1944

Syllabus by the Court.

There is no duty resting upon a board of elections (though so ordered by the Secretary of State) to prepare a separate ballot for the November 7, 1944, election with party designations but with the name of no candidate thereon, for the purpose of filling a vacancy in the office of county commissioner caused by the death of an incumbent occurring subsequent to July 20, 1944.

BELL HART, and WILLIAMS, JJ., dissenting.

This is an original action in mandamus instituted by one Sagebiel, a citizen, taxpayer and elector of Montgomery county, as relator, against the members of the board of elections of Montgomery county and the clerk of such board, as respondents.

It appears that on August 19, 1944, E. F. Tinnerman, a county commissioner of Montgomery county, died. The term of office for which he was elected will expire on December 31, 1946. An appointment was duly made to fill the vacancy for the unexpired term or until a successor was elected and qualified.

Respondents members of the board of elections, being equally divided on the question of whether a ballot should be provided containing space for a 'write-in' candidate for the unexpired term of Tinnerman at the general election to be held on November 7, 1944, submitted that question to the Secretary of State of the state of Ohio as provided in Section 4785-13, General Code. By written order dated September 18, 1944, based upon an opinion of the Attorney General of Ohio rendered September 12 1944, the Secretary of State instructed the respondents 'to have a separate ballot issued containing space for a write-in candidate for both major political parties for the unexpired term of county commissioner.'

Respondents failing to comply with the described order, the Secretary of State on October 17, 1944, again directed, in writing, compliance with the order of September 18, 1944.

In his petition the relator prays for a writ of mandamus 'to compel said board, and the members thereof, and the clerk, to obey the order of the Secretary of State, as the chief election officer, as to the printing of a separate ballot, or provide said 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.'

Motions to dismiss have been filed on behalf of respondents and answers have been filed.

Robert J. Kelly and Herbert D. Mills, both of Dayton, for relator.

Nicholas F. Nolan, Pros. Atty., and Edward E. Duncan, both of Dayton, for respondent Board of Elections.

Calvin Crawford, John M. Sprigg and R. A. Argabright, all of Dayton, for respondent Albert H. Wetecamp.

TURNER Judge.

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, § 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 board 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 officer 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, 120 Ohio Laws, 1st Sp.Sess., p 711, 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...