to declare that a constitutional provision is not 'by counting the day on which the notice was | duty of the officer to obey. He has no authority first given. The court there held further that section 597 of the Civil Code, being section 10216 of the General Code, did not apply because that case did not have to do with an act to be done within a certain time. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 32; Dec. Dig. 31.] 3. CONSTITUTIONAL LAW 9(1) AMENDMENT OF CONSTITUTION SUBMISSION TO POPULAR VOTE-PUBLICITY PAMPHLETS. It is the official duty of the secretary of state to obey this constitutional command, regardless of the fact that neither the Constitution nor the laws of the state specifically provide in detail, the manner and method of selecting the person or persons who shall prepare and file such argument and explanation, or both. [Ed. Note.-For other cases, see Constitution From an examination of the many cases dealing with the construction of statutes of this character, we are convinced that the rule of computation now almost universally adopted and followed, and which appeals to us as the proper and reasonable one, is that where a statute requires an act to be performed a fixed number of days previous to a specified day, the last day should be ex-al Law, Cent. Dig. §§ 5, 7; Dec. Dig. 9(1).] cluded and the first included, just as under a requirement that an act be done a fixed number of days after a specified day, the first is to be included and the last excluded, in making the computation. The use of the words "at least," prefixed to the number of days named, cannot in any wise affect the result or the method of computation. Applying the rule above stated, and counting the day of filing the petition and excluding the day of election, it will be seen that a petition filed on September 3d is filed at least 60 days previous to November 2d, which is the day of election this year. It was therefore the duty of said board of deputy state supervisors and inspectors of elections to receive and file said petition when sented to it on September 3d. Writ allowed. 4. OFFICERS 103-IMPLIED POWERS. Where an officer is directed by the Constitution or a statute of the state to do a particucovering in detail the manner and method of lar thing, in the absence of specific directions doing it, the command carries with it the implied power and authority necessary to the performance of the duty imposed. [Ed. Note.-For other cases, see Officers, Cent. Dig. §§ 163-172, 175; Dec. Dig. 103.] 5. CONSTITUTIONAL LAW 9(1) AMENDMENT OF CONSTITUTION SUBMISSION TO POPULAR VOTE-PUBLICITY PAMPHLETS. The act of the General Assembly passed April 18, 1913 (103 Ohio Laws, p. 831), entitled, "An act to provide for the submission of publicity pamphlets by the state, county or municipality, relative to measures submitted to the people through the initiative and referenpre-provision of section 1g of article 2 of the Condum," does not facilitate the operation of the stitution, in reference to the preparation and mailing, or otherwise distributing, to the electors of the state, as far as may be reasonably possible, an argument or explanation, or both, against a proposed amendment to the Constitution. and NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, JJ., concur. (93 Ohio St. 1) STATE ex rel. HUNT et al. v. HILDEBRANT, STATE ex rel. BAKER et al. v. SAME. (Supreme Court of Ohio. Sept. 30, 1915.) (Syllabus by the Court.) 1. CONSTITUTIONAL LAW 31-AMENDMENT OF CONSTITUTION-SUBMISSION TO POPULAR VOTE-PUBLICITY PAMPHLET. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 5, 7; Dec. Dig. ~~~9(1).] Petitions by the State, on the relation of Graham P. Hunt and others, for mandamus against Charles Q. Hildebrant, Secretary of State, and on the relation of Newton D. Baker and others against the same respondent. Peremptory writs allowed. On the 27th day of September, 1915, the state of Ohio, on the relation of Graham P. Hunt, Eugene Heim, and John Roehm, filed a petition in mandamus in this court, against Charles Q. Hildebrant, secretary of state, being cause No. 15031, praying that a peremp Section 1g of article 2 of the Constitution peremptorily commands the secretary of state to cause to be printed an argument and explanation, or both, against any proposed amend-tory writ of mandamus issue out of this ment to the Constitution, and to mail, or other- court, commanding the defendant, the secrewise distribute, the same, together with a copy tary of state, to cause to be printed and of such proposed amendment and argument and mailed, or otherwise distributed, to the elecexplanation, or both, for such amendment, to each of the electors of the state, as far as may tors of the state an argument and explanabe reasonably possible, and further expressly tion against the proposed amendment to the provides that this, with other provisions found Constitution of Ohio, prohibiting the sale and in this section of the Constitution, "shall be self-manufacture for sale of intoxicating liquors executing." [Ed. Note.-For other cases, see Constitution- throughout the state of Ohio, which amendal Law, Cent. Dig. § 32; Dec. Dig. 31.] ment is to be voted upon by the electors at 2. CONSTITUTIONAL LAW 31- CONSTRUC- the forthcoming November election. The reTION OF CONSTITUTIONAL PROVISIONS-SELF-lators aver, among other things, that they EXECUTING PROVISION. These mandatory provisions of the Consti- were properly appointed by the Governor of tution are binding upon the executive officers Ohio to prepare and present the argument and the courts of this state alike. It is the and explanation against this proposed con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Frank B. Willis, Governor of Ohio.' "It is further agreed that the secretary of state refuses to print and mail the argument aforesaid filed by Graham P. Hunt et al., and will continue 'so to refuse unless otherwise ordered by this court. "It is further agreed that the secretary of the electors of the state an argument or explastate has been requested to print and mail to tional amendment, but that the said secretary stitutional amendment, and have prepared | Roehm, of Montgomery county, Ohio, a commitand presented the same to the secretary of tee of three electors of the state of Ohio to state, who refuses to print and mail, or other-prepare and file an explanation with the secretary of state of Ohio against the constitutionwise distribute, to the electors of the state al amendment for state-wide prohibition. this or any other argument or explanation against the proposed constitutional amendment. The secretary of state, for answer to this petition, substantially admits all the averments contained therein, except that the relators were properly appointed by the Gov ernor of the state for the purpose of preparing and filing such argument and explana-nation, or both, against said proposed constitution. This cause was submitted to the court upon the following agreed statement of facts: "It is agreed that on the second day of September, 1915, at a very late hour, the Governor asked three gentlemen, to wit: Harry Probasco, of Cincinnati, Nicholas Duttle, of Dayton, and Judge F. H. Kerr, of Steubenville, to serve on a committee to prepare an explanation of a prohibition amendment to the Constitution, to be voted on in November next, on the negative side of the question. These gentlemen verbally declined to serve, and their written declinations On the 28th day of September, 1915, the reached the Governor not later than the follow-state of Ohio, on relation of Newton D. Baking day, September 3, 1915. On September 3, 1915, Eugene Heim, representing a committee er, L. J. Tabor and Percy Tetlow, filed a simrequested of the Governor by the Ohio Home ilar petition in mandamus in this court Rule Association, together with that committee's attorney, Otto Renner, appeared in the Governor's office with an argument against said proposed constitutional amendment, already written out and signed by the committee requested of the Governor, to wit, Eugene Heim, Graham P. Hunt, and John Roehm. The Governor then and there, on September 3d, verbally appointed the committee requested. The Governor thereupon told Mr. Heim to file the document on September 3d with the secretary of state, which was accordingly done. The Governor then remarked that he would like to have a written declination of the original committee so as to keep his records straight. It was then agreed that he should have these written declinations as promptly as possible. "It is further agreed that on September 4, 1915, the Governor of Ohio wrote to the secretary of state the following letter, to wit: against Charles Q. Hildebrant, secretary of state, being cause No. 15032 on the docket of this court. This petition contains substantially the same averments as the petition filed in cause No. 15031, except that it relates to the proposed amendment to the Constitution to limit elections on twice-rejected con. stitutional amendments. To this petition the respondent filed a general demurrer, and this cause is submitted to this court upon the petition and demurrer thereto with cause No. 15031. A. J. Freiberg, of Cincinnati, for relators in No. 15031. Newton D. Baker, of Cleveland, and Timothy S. Hogan, of Columbus, for relators in No. 15032. Edward C. Turn er, Atty. Gen., for respondent in both cases. DONAHUE, J. The above-entitled cases were heard and submitted together. They involve the question of the duty of the secretary of state to print and mail, or otherwise distribute, as far as may be reasonably possible, the arguments and explanations against the proposed constitutional amendments named in the petitions and presented to him by the relators, respectively. ""Columbus, Ohio, September 4, 1915. "To the Secretary of State, of the State of Ohio: On September 2, 1915, I duly appointed F. H. Kerr, of Jefferson county, Ohio, Nicholas Duttle, of Montgomery county, Ohio, and H. R. Probasco, of Hamilton county, Ohio, a committee of three electors of the state of Ohio to prepare and file an explanation with the secretary of state of Ohio against the constitutional amendment for state-wide prohibition; that on September 2, 1915, the members before named received notice of their appointment and met together and subsequently two members thereof informed me that they would not file an explanation against the prohibition amendment; that on this date, September 6, 1915, [1] The language found in section 1g of having received the written resignation of all article 2 of the Constitution is too plain, posithe members of that committee as heretofore appointed, and having received the request of the tive, and direct to require construction by Ohio Home Rule Association, through its secre- this or any other court. By this section the tary, J. M. Kammeron, to appoint Graham P. secretary of state is peremptorily commanded Hunt, of Hamilton county, Ohio, Eugene Heim. to print the law, or proposed law, or proposed of Hamilton county, Ohio, and John Roehm, of Montgomery county, Ohio, as a committee of amendment to the Constitution, together with three electors of the state of Ohio to prepare the arguments and explanations, not exceedand file an explanation with the secretary of ing a total of 300 words for each, and also state of Ohio against the constitutional amendment for state-wide prohibition, I therefore, in the arguments and explanations, not exceedaccordance with this request and without ex-ing a total of 300 words against each, and to pressing any opinion as to when the time for the mail, or otherwise distribute, a copy of such appointment of that committee and the filing of law, or proposed law, or proposed amendment the explanation expired, hereby designated Gra ham P. Hunt, of Hamilton county, Ohio, Eugene to the Constitution, together with such arguHeim, of Hamilton county, Ohio, and John ments and explanations for and against the same, to each of the electors of the state, as far as may be reasonably possible. There can be no reasonable doubt as to the intent and purpose of this provision. The words used exhaust the possibilities of the English language to make the meaning clear. [2] This same section further provides that this and other provisions of this section of the Constitution shall be self-executing; that laws may be passed to facilitate their operation, but not to limit or restrict the same. In view of the positive language found in this section of the Constitution, declaring that this provision shall be self-executing, it is hardly within the province of the secretary of state, or of the Supreme Court, or any other court, to say that it is not. That it may be difficult of operation is not a sufficient reason for refusing to obey the mandate of the Constitution of the state. Language could not have been used by the members of the constitutional convention or by the electors of the state that would give clearer expression to their intention and purpose in reference to this subject-matter. They undoubtedly had in mind the practical impossibility of covering every detail of the operation of the provisions of the organic law of the state; that some difficulties might arise in relation thereto that could be obviated by laws that would facilitate, but not limit or restrict, their application, and for that reason and to this extent, but no further, the General Assembly is authorized to act. This constitutional provision is a limitation upon the power of the General Assembly, and for that reason, if for no other, its framers and the electors of the state that adopted it did not propose or intend that its operation should be left to the pleasure of the General Assembly, for, in that case, the failure of that body to act would defeat the will of the people as expressed in the Constitution of the state. Nor should the intent and purpose of any provision of the state Constitution be defeated by any technical construction of its terms. On the contrary, if the language is sufficiently plain to disclose that intent and purpose, then such construction must obtain as will give full force and effect thereto, even though it be attended with some difficulties. The justice of the provision requiring that the argument against any proposed constitutional amendment should be distributed in like manner with the argument in its favor is too apparent to admit of discussion. Any construction of this amendment to the Constitution that would deny to the people of the state who may be honestly opposed to a proposed constitutional amendment the same means and method of giving publicity to their argument against it as is provided for giving publicity to the arguments in its favor would be not only unfair to those opposed to it, but would work a fraud upon the electorate of the state. It would be absurd to say that such a construction would be giving effect to the intention and purpose of the people of this state, who have written this provision into our Constitution, and yet that intention and purpose must be the polestar to guide the court in the interpretation of its provisions. In the particular cases under consideration the operation of this provision of the Constitution presents no difficulty whatever. In each case it is admitted that the arguments presented to the secretary of state against these laws have been presented by electors honestly and conscientiously opposed to the proposed amendment to the Constitution, and no more than one such argument has been presented. It further appears that these arguments have been presented by persons having the official sanction of the Governor, who is the chief executive officer of the state. No controversy arises as to the good faith of the arguments presented, and there is no conflict between contending factions claiming the right to present such arguments. By the printing and distributing of these arguments in the respective cases the command of the Constitution is obeyed, and no injustice is done to any one. [3, 4] It is contended, however, that, notwithstanding that in these particular cases no conflict arises between persons or factions claiming the right to present these arguments to the secretary of state, nevertheless such a conflict may arise in future cases, and that when such conflict does arise, then this provision cannot be self-executing, because neither the Constitution nor the statutory law of the state provides any method by which the secretary of state may determine who may prepare and file this argument, or, in case more than one argument is prepared and filed with him, which one of these arguments shall be printed and distributed, and that therefore, if this provision of the Constitution is not self-executing in all cases it is not selfexecuting in any. This contention overlooks the fact that the Constitution expressly provides that this provision shall be self-executing in all cases, and it also overlooks the further fact that when the Constitution commands an officer of the state to do a particular thing, the mere omission to point out in detail the manner and method of doing it does not excuse the officer from performing the duty enjoined upon him by the supreme law of the land. If a master commands a servant to do a particular thing, without directing him in detail how he shall do it, it is a fair and necessary presumption that the servant is to exercise an intelligent discretion in doing the thing commanded to be done. Certainly affairs of state must be conducted on as equally intelligent lines as private business. Therefore, if the Constitution of the state commands a public officer to do a particular thing, without directing the manner in which it shall be done, and the such legislation; but whether such laws are passed or not, the mandate of the Constitution must be obeyed; and, if any question or doubt arises as to the manner and method of doing this, that question must be answered and that doubt resolved by the application of the same ordinary intelligence of men that is applied to the solution of everyday problems of life. General Assembly of the state has not, in | bly is called to the fact that there is need of the exercise of the authority conferred upon it, enacted any laws to facilitate the operation of the provisions of the Constitution, it necessarily follows that the officer who is required to perform this duty has implied authority to determine, in the exercise of a fair and impartial official discretion, the manner and method of doing the thing commanded; otherwise, full directions would have been given the officer, or the duty would not have been imposed upon him. It would be the merest folly to command him to do a particular thing and then withhold from him the power to do it. It is provided by statute that the secretary of state shall be the chief election officer of the state, and as such he is clothed with ample authority to do and perform all duties in relation to elections enjoined upon him by the Constitution or the statutory laws of this state. In some cases the law specifically provides that he shall hear and determine controversies arising in relation to his duties, particularly in matters preliminary to elections. The presumption naturally obtains that he will fairly and honestly discharge his duties in this behalf and determine all questions he is called upon to decide according to the justice of the case, regardless of his own personal preferences or political affiliations, and there is no apparent reason why he cannot or will not exercise the same fair and impartial judgment in controversies arising under the provisions of this section of the Constitution that he would exercise in other matters pertaining to elections. [5] Our attention is called to the act of the General Assembly of Ohio, passed April 18, 1913 (103 Ohio Laws, p. 831) entitled, "An act to provide for the submission of publicity pamphlets by the state, county or municipality, relative to measures submitted to the people through the initiative and referendum," which act has been given sectional numbers 5018-1 to 5018-9, inclusive, of the General Code. It is clear that this act does not facilitate the operation of this particular provision of section 1g of article 2 of the Constitution. It may have been intended to do so, but if that were the intention it fails in the accomplishment of its purpose. Peremptory writs allowed. NICHOLS, C. J., and JOHNSON, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. (93 Ohio St. 20) STATE ex rel. SMITH v. LLOYD et al., Board of Deputy State Sup'rs and Inspectors of Elections. (No. 15030.) (Supreme Court of Ohio. Oct. 7, 1915.) (Syllabus by Editorial Staff.) CIENCY OF PETITION. Under Gen. Code, § 5005, providing that when certificates of nomination are in apparent be valid unless objection thereto is made in writconformity with the law they shall be deemed to ing within five days after the filing thereof, and section 5006 as amended by 103 Ohio Laws, p. 844, providing that such objections or other considered by the board of deputy state supervisquestions relating to municipal offices shall be ors of the county and its decision shall be final, such board in passing on the sufficiency of the nomination of a mayor for a city is not required tion in lead pencil, where the charter of the to count signatures to the petition for nominacity requires signatures in ink or in indelible pencil. Cent. Dig. § 126; Dec. Dig. 144.] Original proceeding in mandamus by the Pugh & Pugh, of Columbus, for relator. Franklin Rubrecht and Wm. J. Ford, Asst. Pros. Attys., both of Columbus, for respondents. The Constitution vests in the General Assembly authority to enact legislation that will relieve this provision from all possible doubt and uncertainty, and this could be done by providing in detail the manner and method of the selection of a person, or persons, to prepare and file an argument or explanation, or both, against any proposed constitutional amendment, or by specifically granting, in terms, to the secretary of state the power and authority now necessarily implied. Undoubtedly this will be done as soon as the attention of the General Assem- of Columbus. PER CURIAM. The relator filed in this court his original petition and seeks a writ of mandamus requiring the board of deputy state supervisors and inspectors of elections of Franklin county to print and place upon the official ballot the relator's name as a candidate for the office of mayor of the city For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes There is no issue of fact in the case, and for the purposes of this decision it is sufficient to state that it is admitted by the respondents that the nominating petition filed by relator conforms to chapter 7, tit. 14, pt. 1, General Code, and to the provisions of the charter of the city of Columbus, with the exception that seven signatures to said nominating petition were in lead pencil, and that no objection in writing was made to said nominating petition by any person at any time; and it is agreed that, unless the seven signatures in lead pencil be counted, the relator's petition contains an insufficient number of signatures to entitle him to a place on the ballot in said election. [1] The relator is not entitled to such writ of mandamus unless it clearly appear that the performance of the act sought by him is one "which the law specially enjoins as a duty resulting from an office, trust or station." and his prayer for a writ of mandamus must NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. (93 Ohio St. 25) STATE ex rel. CITY OF DAYTON v. PAT- (Syllabus by the Court.) MANDAMUS 117 SUBJECTS OF RELIEF ACTS OF OFFICERS-DISCRETION. Under the provisions of section 5649-3a, General Code, the budget commissioners, in the raised in a taxing district and in reducing the adjustment of the various amounts of taxes to be estimates contained in the budgets, are called upon to exercise their official judgment and discretion. In the absence of fraud, bad faith, or abuse of discretion, it is not within the power of the court to interfere, and an action in mandamus will not lie to control such discretion or cor [2] Section 207 of the charter of the city Cent. Dig. § 249; Dec. Dig. —117.] It appears upon the face of these petitions that in the respect referred to they were not in conformity with the requirements of the law, and therefore the board of deputy state supervisors and inspectors of elections was not required to deem them valid, although no objection had been made in writing within five days after the filing thereof. Sections 5005 and 5006, General Code, must be read and construed together. The latter section, as amended in 103 Ohio Laws, 844, provides that: "Such objections or other questions, arising in the course of the nomination of candidates, shall be considered as follows: * For township or municipal offices, justices of the peace, or members of the board of education, by the board of deputy state supervisors of the county, and its decision shall be final." Not only would the board have the inherent right, but authority is conferred upon it, without objection filed, to reject and refuse to act upon nominating petitions which clearly are not in conformance with the require ments of the law. The conceded facts show that the relator has not filed such a petition as entitled him to a place on the official ballot. The act he seeks to have performed by the deputy state supervisors and inspectors of elections is not specially enjoined upon them by the law, Original proceeding in mandamus by the State, on the relation of the City of Dayton, against Patterson, Prosecuting Attorney, and others, the Budget Commissioners of Mont.gomery County. Demurrer to petition sustained, and petition dismissed. The cause was sub This is a proceeding in mandamus, originating in this court, brought by the city of Dayton against the budget commissioners of Montgomery county. mitted to the court upon a demurrer to the petition, upon the grounds that there was a defect of parties defendant and that the petition did not state facts sufficient to constitute a cause of action. On or before the first Monday in June, 1915, the relator, the city of Dayton, submitted to the county auditor of Montgomery county its annual budget, setting forth in itemized form an estimate stating the amount of money needed by it for its wants for the year 1916, in which it appeared that the sum of $969,222.08 was required for operating expenses and for interest and sinking fund for indebtedness incurred subsequently to June 2, 1911, without a vote of the people. The amount of taxable property in the city of Dayton at the time of filing the petition here had not been determined, but it was estimated to be $169,920,000, and the calculations of the budget commissioners hereinafter referred to were based upon that amount. The board of education of the city school district of the city of Dayton likewise filed its annual budget as required by law, in which it appeared that it would need for the like purposes for the year 1916 the sum of $676,300. It appears that the city school district extends beyond the corporate limits of the city For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |