author: Summers, J.

text:
    The State, ex rel. Moyer, v. Baldwin.

      Mandamus to restore party to office — From which illegally removed —Powers of mayor in removal — Jurisdiction over police department — Provisions of municipal code.

    1. Mandamus is the proper remedy to restore a party to the pos- . session of an office from which he has been illegally removed.
    2. Under the new municipal code the mayor has authority to remove an officer or appointee in the police department, upon inquiry into the cause of suspension, by the chief of police, of such officer or appointee; but he is without original jurisdiction to inquire into charges against such an officer (other than the chief of police) or appointee, and upon such an inquiry he is without authority to remove an officer or appointee.
    (No. 10436
    Decided February 18, 1908.)
    Error to the circuit court of Mahoning county.
    The case is stated in the opinion.

      Mr. M. A. Norris; Mr. E. H. Moore and Mr. S. S. Conroy, for plaintiff in error.
    Mandamus is a high prerogative writ of most extensive remedial nature, and it may be issued in some cases where the injured party has also another more tedious method of redress, as in the case of admission to an office. 3 Blackstone’s Commentaries, 110; Dew v. Judges, 3 Am. Dec., 639, 3 Hening & Mumford (Va.), 1.
    It is immaterial whether the duty of which the relator seeks to compel performance, be imposed by statute or common law. 19 Am. & Eng. Ency. Law, 724, and authorities there cited.
    Mandamus is the proper remedy when it is nót a proceeding to oust the occupant of an office from it, or to determine the right of one holding the office to fill it, but when it is a proceeding to establish the right of the relator to the office. State, ex rel. v. Kinney, 63 Ohio St., 304.
    The provisions of our present civil code upon the subject of mandamus fully harmonize with the principles of the common law. Ingerson v. Berry, 14 Ohio St., 321.
    That mandamus is the proper remedy to restore an officer who has been wrongfully and unlawfully removed and deprived of the emoluments of his office, as in the persent case, is stated by all text writers and held by all the courts of the different states. Dillon on Municipal Corporations, Sections 255-847; Moses on Mandamus, 150; High on Extraordinary Legal Remedies, Section 67; Metsker v. Neally, 13 Am. St., 269, 41 Kan., 122.
    Mandamus will issue after a void order removing a public officer to compel his readmission to the use and enjoyment of his office. State, ex rel. v. Hewitt et al., 44 Am. St., 788; 3 S. Da., 187; Runkle v. Winemiller, 1 Am. Dec., 411; Geter v. Commissioners, 1 Am. Dec., 621.
    Proceedings by writ of mandamus seem to be a fair, convenient and reasonable mode of litigating and deciding questions such as the one in the main case of an unlawful removal from office. State, ex rel. v. Common Council, 9 Wis., 254.
    It has long been held that mandamus may be issued to restore a person to an office to which he is entitled, and that quo warranto is only the remedy when the office is already filled by another incumbent. State, ex rel. v. Jersey City, 51 N. J. L., 240; County Court v. Sparks, 45 Am. Dec., 355; State, ex rel. v. Paterson, 35 N. J. L., 190; Walker’s American Law, 593.
    The same construction of the law as to a writ of mandamus prevails in this state.
    In State, ex rel. v. Jones et al., 66 Ohio St., 453, the supreme court entertained a petition in mandamus brought on relation of the police commissioners of the city of Toledo, against their predecessors in office, to recover books, papers and property of the police department. While the supreme court held the act under which the relators were appointed unconstitutional, and therefore denied them relief, it is nowhere suggested that they had not pursued the right remedy. Flack v. Humphries, Auditor, 24 Ohio St., 330; State, ex rel. v. Holliday, 61 Ohio St., 352.
    That it is the only remedy in Ohio has been held in Reeves v. Griffin et al., 4 O. D., 461; State, ex rel. v. Sutton, 6 O. D. Rep., 135; 7 Am. Law Rep., 786; State, ex rel. v. Hoglan et al., 64 Ohio St., 532; State, ex rel. v. Barrett, 12 O. D., 231; State, ex rel. v. Hyman, Director, 12 O. C. D., 265.
    That there is no other remedy for the relator seems to be clear. Zumstein v. Tafel, Mayor, 4 N. P., 314, 6 O. D., 484; Kerr v. Hinkle, Mayor, 12 O. Dec. (N. P.), 365; In re Sawyer, 124 U. 5., 200; Delahanty v. Warner, 75 Ill., 185, 20 Am. Rep., 237; Chicago v. People, ex rel., 210 Ill., 84, 71 N. E. Rep., 816.

      Mr. M. C. McNdb and Messrs. Arrel, Wilson & Harrington, for defendant in error.
    We suggest, might not a proceeding in equity be prosecuted, setting up the fraud which is specifically relied upon in a defendant’s motion, as a ground to impeach the judgment and order of the mayor. We know that in Ohio such equitable actions have been uniformly sustained by the courts, and that proceedings in error, authorized by statute, have never been held to be an exclusive remedy in case of fraud or lack of jurisdiction. Darst v. Phillips, 41 Ohio St., 514; Coats v. Bank, 23 Ohio St., 415; Howenstine v. Sweet, 13 O. C. C., 239.
    The “remedy by due course of law which precludes resort to the remedy by mandamus, includes a remedy afforded in equity.” Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St., 189.
    We therefore submit that, if our municipal code has been so framed as to constrain the court to adopt the narrow construction contended for by the relator, nevertheless he is precluded from any resort to remedy by mandamus.
    The remedy by mandamus is improperly invoked in this action, in that the prayer of the relator does not seek to compel the mayor to perform any duties, specifically enjoined by law, as resulting from an office, trust or station. Fraternal Mystic Circle v. State, ex rel., 61 Ohio St., 631; State v. Smith, 71 Ohio St., 38.
    Considering the prayer' of the relator that the mayor is asked to “withdraw from the board of public safety, the chief of police and auditor, his certificate of the fact of said removal, and to restore all things which he has lost.” Certainly no such duty is specifically enjoined by statute. In fact, in other states, we do not understand that this remedy by mandamus may be resorted to in cases of doubtful right to office, depending upon close and uncertain construction of statutory provisions. People v. Goetting, 30 N. E. Rep., 969, 19 Am. & Eng. Ency. Law, 769, note 2; Lynde v. Dibble, 53 Pac. Rep., 370.
   Summers, J.

The relator, George B. Moyer, was a detective in the police department of the city of Youngstown. Charges' against him of misconduct in office were filed with the defendant, Frank L. Baldwin, the mayor of the city. The relator protested against the hearing of the charges by the mayor on the ground that the mayor was without jurisdiction. His objections were overruled, and after a full hearing the mayor found that certain of the charges were sustained and removed him from office and certified in writing his removal and the cause thereof to the board of public safety of the city. Thereupon the relator brought a proceeding in mandamus- in the court of common pleas to require the defendant to restore him to his office. The defendant answered that the relator took no appeal from the decision of the. mayor to the board of public safety, and that subsequently to the action of the mayor the council of the city repealed the ordinance creating the office which the relator had filled, and enacted another ordinance providing for the appointment of two detectives and that the mayor had filled these offices by appointment and that the appointees had duly qualified and were then in office.

The court of common pleas allowed a peremptory writ. The circuit court on appeal dismissed the petition.

The principal contention is whether mandamus is the proper remedy and whether the mayor has authority originally to hear charges against an officer of the police department and to remove the officer in the event he finds that the charges have been sustained, or whether he may act only after the chief of police has suspended an officer and filed written charges with the mayor.

By Section 6741, Revised Statutes, mandamus is defined as, “a writ issued in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station,” and it is contended that it is not the remedy because nowhere does any statute specially enjoin upon the defendant, as a duty resulting from his office, the performance of the act of withdrawing his certificate of removal.

The remedy by writ of mandamus did not originate with the legislature but with the courts, and is said to have been in use as early as the thirteenth century. The constitution of 1802 does not mention it, but power to issue the writ is specially given to the supreme court by the act of April 15, 1803, 1st Chase, 355. In the matter of James Turner, 5 Ohio, 542, Judge Lane, speaking of the statute, says: “The occasions upon which the writ is to issue are not pointed out, and it is necessary to recur to the common law to learn in what cases the writ is properly applicable.” In The Universal Church v. Trustees of Section Twenty-nine, etc., 6 Ohio, 446, the court declined to depart from the common law rules and practice on the writ and it was not until the act of 1835 (Swan, 1841, page 689), that the practice was regulated by statute. That statute is limited to matters of practice and did not touch the jurisdiction, and it still was necessary to recur to • the common law to learn in what cases the writ might issue. So the matter stood until after the adoption of the constitution of 1851, and until the adoption of the civil code.

The constitution of 1851 confers original jurisdiction in mandamus on the supreme court, and subsequently on the circuit court, and such jurisdiction is conferred on the court of common pleas by statute.

The jurisdiction in mandamus that is conferred ■by the constitution is the common law jurisdiction as it then was exercised in this state, and it is not in the power of the legislature either to add to or take from it. ' The provisions of the statutes must be regarded as merely regulating the practice. The)''. remain substantially as they were in the code of civil procedure of 1853. That the provisions of the code were intended merely to relate to the practice is evident from the report of the code commissioners. On page 224 of their report, under the chapter entitled, ■ “Proceedings upon mandamus,” they say: “We found it necessary to prepare a chapter on this subject, because we have repealed the whole of the practice act in which the provisions in reference to the mandamus are to be found (Swan, 689, 690). It will be noticed that we have amplified somewhat the sections in the old statute, but the proceeding under this chapter will be about the same as before.”

The statutory definition does not define the act as one enjoined by statute but as one enjoined by law. The definition appears to have been compounded from the 14th section of the act of 1835 and from Blackstone. Attention to Blackstone’s definition, and to the cases, will discover that the act which the writ directs to be performed, is one that the courts determine it is the duty of the respondent to do because it appertains to his office, trust, or station; and it is specially enjoined by law when it is so determined.

The purpose in defining mandamus was not to limit the jurisdiction, but merely to describe the writ, and it is still necessary to recur to the cases to learn the occasions when it may issue.

In many of the states mandamus is treated as a civil action, but in this state, while it has been so declared in The State of Ohio, ex rel. Barker v. Philbrick, Director Public Safety, etc., 69 Ohio St., 283, still it is treated as preserving its prerogative character. That is, it is not used for the redress of private wrongs but only in matters relating to the public. Recurring to the cases it will be found that when purely a prerogative writ it was chiefly used to enforce restitution to public offices and to such an extent that it was then designated in the. reports as the “writ of restitution.”

That the writ of mandamus is the appropriate remedy to restore an officer to his office and that it will lie when there is no other adequate remedy, is laid down in the text books without exception, and in the following cases the writ was allowed.

City of Chicago v. The People, 210 Ill., 84. This was a proceeding in mandamus by a police patrolman to compel the city of Chicago and the general superintendent of police to place his name upon the roster of police patrolmen, from which it had been omitted and excluded by a former general superintendent of police, and to place his name upon the police payroll, from which it had been omitted and excluded; also to compel the civil service commissioners of the city to certify his name to the comptroller- of said city as a person entitled to pay as a police patrolman of the city, and to compel the city to pay the petitioner his salary for the time he had been excluded. It was held that his discharge was unwarranted because the trial board was not constituted as required by the rules of the civil service commission, and because he was not given an opportunity to be heard in his own defense. It was also held that if the trial had been held in the manner pointed out by the statute that then the action of the civil service commission would not be reviewable by the courts. A mandamus for the money was refused, but the lower court was directed to enter a judgment awarding a writ of mandamus commanding the civil service commissioners and the general superintendent of police and the comptroller of the city of Chicago forthwith to place the name of petitioner upon the roster of police patrolmen and upon the police payroll of said city of Chicago, to the end that the relator may at once enter upon the performance of his duties as a police patrolman with the same right to continue in the performance thereof and receive salary therefor as he had to continue in the performance thereof and receive salary therefor prior to his unlawful removal, and that the judgment so entered should not prejudice the right of the relator to assert his claim for right of salary for the period intervening between his removal and restoration in any appropriate form of action, nor the right of the city of Chicago to interpose any lawful defense thereto.

Metsker v. Neally, 41 Kan., 122. In this case the mayor of the city of Topeka suspended the city engineer and placed another in his place, and the city marshal forcibly deprived the engineer of his office-room, books, papers, records,, etc., and prevented him from exercising the duties of his office. A peremptory writ was allowed. In the opinion it is said that: “If the title to this office were in dispute, the action to determine it would probably be quo warranto; but it is admitted that the plaintiff was the city engineer by regular appointment and in the actual and lawful possession of the enjoyment of the office. There is no question of a contested election or disputed right to this office, except as it arises from the suspension alone. The plaintiff, up to July 3d, was the city engineer by undisputed right; was he wrongfully or illegally suspended? That is the sole question to be decided in this action.” It was held that mandamus was the proper remedy to restore him to his office, and that if the suspension was unauthorized there was no vacancy to fill.

The State, ex rel., v. Common Council of Jersey City, 1 Dutch., 536. In this case the common council resolved that, “the president of council be directed not to appoint Tyrrell on any committee and that the clerk do not call his name among the list of members in any action, vote or proceeding of the council, and that he be not allowed to take part in any debate on any question which may come before the board of aldermen.” It was held that the council had power to expel but not power to suspend, and that this resolution of council was equivalent to suspension, and a peremptory writ of mandamus was allowed to the common council to restore the relator to the exercise of his lawful rights as an alderman and member of that body from which he had been suspended 'by the resolution in question.

The State, ex rel. Mason, v. Mayor, etc., of Paterson, 35 N. J. L., 190. In this case it was held that an appointment for city treasúrer by less than 'a majority of the whole number of aldermen was unlawful and void, and that the treasurer who had been ousted by such illegal act might be restored to his office by a writ of peremptory mandamus. It was contended that quo warranto was the proper remedy and that mandamus was not the proper remedy, because the person who had been appointed to the office was in by color of right. But the court said: “This is not the case of attempting to oust from office by a mandamus a person who is in by a color of right. There is no right here. The pretended appointment is a mere nullity. There was no appointing board and those who attempted to act had no authority. The applicant here is clearly still in office by legal appointment, and the effort is to oust him without legal authority. He has a right to this remedy by mandamus.”

Leeds v. Atlantic City, 52 N. J. L., 332. In this case it is held that, “where a mandamus is applied for to compel a corporation to restore a relator to an office to which he is prima facie entitled, the incumbent is not a necessary party to the allowance of a peremptory mandamus.”

Commonwealth, ex rel., v. Gibbons, 196 Pa. St., 97. “Where there is no contest as to a school director’s original title to his seat under a valid election, but only as to the legality of his ouster for an alleged wilful absence from meetings, the remedy of the director is mandamus to prevent his further unlawful exclusion. The remedy by quo warranto against the person chosen to succeed him does not apply.” In the opinion it is said: “There is no contest as to the relator’s original title to his seat under a valid election, but only as to the legality of his ouster. If this was not valid, he never has been ousted at all, and mandamus is the proper remedy to prevent his further unlawful exclusion. We have nothing to do with the title of his alleged successor who was apparently elected by the board to fill a vacancy that did not exist. This can not affect the relator. He was admittedly elected to the office, has never been out of it in contemplation of law, and the mandamus simply compels the respondents to recognize his established right.”

Pratt v. Board of Police and Fire Commissioners, 15 Utah, 1. In this case the chief of police of the city of Salt Lake had been removed from office by the board of police and fire commissioners and another person had been appointed in his place and had taken possession and was discharging the duties of the office. It was held' that the board had no authority to dismiss him without charges and without a hearing and that, “where a person has been in the actual and lawful possession of an office, received and enjoyed the emoluments thereof, is entitled to the office de jure and is unlawfully removed, mandamus is the appropriate remedy to restore the de jiire officer to his office and it is not necessary to resort to quo warranto, even though the office is in the possession of another.”

Schmulbach et al. v. Speidel et al., 50 W. Va., 553. “Mandamus lies to correct an improper amotion from office and to restore to the full enjoyment of his franchise a person who has been improperly deprived thereof; and when one has been improperly deprived of his office by the illegal appointment of another, the writ lies to compel his restoration though the person appointed in his stead be in possession de facto.”

The State, ex rel. Gill, v. Common Council, 9 Wis., 254. In this case a peremptory writ of mandamus was allowed to restore the relator to the office of superintendent of schools from which he had been improperly removed. Held: “Mandamus is the proper remedy to restore a party to the possession of an office from which he has been illegally removed.” In the opinion it is said: “But it is objected in the return that the council can not restore the relator because they have not the power of appointment, and that this power belongs to the school commissioners. But clearly it is not an appointment that the relator seeks, or is entitled to, if he has been illegally removed.. If it was to be an appointment by the appointing power it is very certain that this court could not control its discretion or compel it to appoint any particular person. But this proceeding is based on an entirely different theory. Its claim, is that the relator does not need any appointment, but that his title is and has been complete and perfect to the office all the time, and he asks that the council which has, without authority, removed him from that to which he is entitled, shall retrace its illegal steps, vacate its proceedings, and remove the obstacles which it has unlawfully placed in his way. He does not ask them to appoint him, but by vacating their unauthorized proceedings against him to restore him to that to which he is already appointed. Their return that the power of appointment belongs to the school commissioners is no answer to this demand. The demurrer is sustained and the peremptory writ awarded.”

But it is contended that the relator has a remedy by injunction and that a remedy in equity is a remedy in the ordinary course of the law within the inhibition of Section 6744, Revised Statutes, that, “the writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law.” Freon v. Carriage Co., 42 Ohio St., 30; State, ex rel., v. Carpenter, 51 Ohio St., 83; Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St., 189.

The allowance of the writ always was in the discretion of the court and its discretion sometimes was controlled by the existence of a remedy in equity, but respecting the jurisdiction of the court such a remedy never was a remedy at law. However, Section 2, Article XIV, of the constitution, provides.for the abolition of the distinct forms of action at law and for the administration of justice by a uniform mode of proceeding, without reference to any distinction between law and equity, .and if there is a remedy under the code it is in the ordinary course of the law.

But there is no such remedy in equity. In the opinion in In re Sawyer, 124 U. S., 200, 210, Mr. Justice Gray reviews the authorities and says: “The office, and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or-over the appointment and removal of public officers. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officers, is to invade the domain of the courts of common law, or of the executive and administrative department of the government.”

In Reemelin et al. v. Mosby, 47 Ohio St., 570, it is held: “The remedy by injunction may be employed by the incumbent.of a public office to protect his possession against the interference of an adverse claimant whose title is in dispute, until the latter shall establish his title at law; but it is not the appropriate remedy to try the title to a public office, or to determine questions concerning the authority to make appointments thereto.”

In Harding v. Eichinger, 57 Ohio St., 371, Eichinger averred that he was elected a member of the board of education of the city of Mansfield, and that he duly qualified, but that on the night the members met to organize, Harding intruded into the office and usurped his (Eichinger’s) place, and excluded and forcibly prevented him from performing the duties of the office. The court of common pleas granted an injunction against Harding and on appeal the circuit court did the same. Held: “Injunction will not lie at the suit of a claimant to a public office who is out of possession, against an adverse claimant who is in possession.”

Moyer is out of possession and he has no adequate remedy at law. A suit for his salary is not an adequate remedy, because that does not restore him to the office, and the public is interested in having official duties performed by those whose duty it is to perform them, and if they are ousted without authority it is in the public interest and conducive to peace and good government that they shall be speedily restored by a mandamus.

The only other remedy suggested is that of appeal to the board of public safety. But if the mayor was without jurisdiction to hear the charges his action was void and the relator was not required to pursue that course.

This brings us to the question on the merits of the case, and that is, whether the mayor has authority originally to hear charges against an officer in the police department and to remove the officer in the event he finds that the charges have been sustained, or whether he may act only after the chief of police has suspended the officer and filed written charges with the mayor.

Section 147 of the. new municipal code (96 O. L., 69), Revised Statutes, Section 1536-683, provides that all powers and duties connected with and incident to the appointment, regulation and government of the police and fire departments of the city, shall be vested in the mayor and the board of public safety, as thereinafter provided, and that the mayor shall be the chief conservator of the peace within the limits of the corporation. Section 148, Revised Statutes, Section 1536-684, provides that the chief of police shall be the executive head of the department, under the direction of the mayor, provided, that the chief shall have exclusive control of the' stationing and transfer of all patrolmen and other officers and employes in the department, under such rules and regulations as may be prescribed by the board of public safety. Section 152, Revised Statutes, Section 1536-688, is as follows: “The chief of the police and the chief of the fire department shall have exclusive right to. suspend any of the deputies, officers or employes in his respective department and under his management and control, for incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given him by the proper authority, or for any other reasonable and just cause.

“If any such employe be suspended as herein provided, the said chief of police or the chief of the fire department, as the case may be, shall forthwith in writing, certify such fact, together with the cause of such suspension, to the mayor, who shall within five days from the receipt of the same, proceed to inquire into the cause of such suspension and render his judgment thereon and his judgment in the matter shall be final, except as otherwise provided in this act.

“The mayor' shall have the exclusive right to suspend the chief of the police department or the chief of the fire department for incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given him by the proper authority, or for any other reasonable or just cause. In the event that either the said .chief of police or chief of the fire department shall be suspended as herein provided it shall be the duty of the mayor to forthwith certify such fact, together with the cause of such suspension, to the board of public safety, which shall within five days from and after the date of the receipt of such notice proceed to hear said charges and render its judgment thereon, which shall be final.” Section 186, Revised Statutes, Section 1536-722, is as follows: “Any person in the department of public safety in any city who shall be removed from his position of employment or appointment by the mayor, shall have the right to appeal from the decision of such officer, to the board of public safety within ten days from and after the date of his removal, arid said board of public safety shall hear said appeal within ten days from and after the filing of the same with it, and its judgment in the matter shall be final.” Section 167, Revised Statutes, Section 1536-703, is as follows:' “No officer or employe in the department of public safety shall be removed or discharged except for cause; and the cause of removal of any person shall be forthwith stated in writing by the mayor to the board, and shall be filed by the said board in its office, and shall be open to public inspection.”

Prior to the adoption of the new municipal code, the mayor had power to suspend policemen or any officer appointed by him, but the power of removal was vested in the city council (Revised Statutes. Section 1749). Under the new code the powers of council are legislative only, and this section, giving the mayor power of suspension and the council power of removal, was repealed. However, Section 1747, Revised Statutes (now Section 1536-638) provided: “He shall supervise the conduct of all the officers of the corporation, inquire into and examine the grounds of all reasonable complaints against any of them, and cause all their violations or neglect of duty to be promptly punished or reported to the proper authority for correction,” and that section is expressly continued in force, and it is said that this section confers the power of removal upon the mayor. That it did not give him such power prior to the adoption of the new code is expressly decided in The State v. Heinmiller, 38 Ohip St., 101, and The State, ex rel., v. Bryson, 44 . Ohio St., 469; and the incorporation of it into, or the express continuance of it in force by, the new municipal code, does not add to its scope, but, on the contrary, the legal presumption is that it was intended to be limited to the interpretation that had been given it. The evident purpose of the legislature respecting the police and fire departments, as indicated by the provisions relating to them in' the new municipal code, was to adopt a civil service or merit system. The chief of police- is made the executive head of the department under the direction of the mayor. He is given the exclusive right to suspend any of the deputies, officers or employes under his management or control, and in case of suspension, he is required to certify such fact, together with the cause of such suspension, to the mayor, who then finally determines the matter, excepting that an appeal may be taken to the board of public safety in case the judgment of the mayor is one of removal. The mayor is given the exclusive right to suspend the chief of the police department, and in the event he suspends the chief it .is his duty to certify such fact, together with the cause of suspension, to the board of public safety and it is given final jurisdiction. And it is made the duty of the mayor to prefer charges with council against any director of public safety for incompetency, neglect of duty, malfeasance in office, habitual drunkenness, or gross immorality, and it is made the duty of council to inquire into the - charges, in the manner provided for the removal of other officers of the municipality. Evidently it was thought that it would be conducive to the discipline or efficiency of the department, respecting the members of the police force, if the exclusive power of suspension should be vested in the chief of police, and if the mayor should not have original jurisdiction to remove members of the force, but only in the event of charges being certified to him by the chief. If the chief fails in his duty the exclusive power of suspending him is vested in the mayor, and he may suspend him and certify the fact to the board, so that the board of public safety does not deal directly' with the members of the force or with the chief of the police, but exercises its control through the mayor, and the mayor does not deal directly or immediately with the members of the force but with the chief of police, and the chief is given immediate control of the men. This method seems to have been evolved from experience. But the wisdom of it, or effectiveness of it, is not a matter for our consideration. We have only to determine what the legislature in its wisdom has prescribed.

The fact that subsequently to the commencement of this action the city council repealed the ordinance creating the office'that was filled by the relator, and that it enacted another ordinance providing for a police force, and that an appointment has been made to the office created by the new ordinance, is not important, for the reason that the office that was filled by the relator was not abolished. The new ordinance by which the old ordinance was repealed did not make any change respecting the office held by the relator. And in such case, the new ordinance should be construed merely as continuing in force the provisions of the repealed ordinance that were incorporated into the new ordinance. Bear Lake, etc., Irrigation Co. et al. v. Garland, 164 U. S., 1; Wright v. Oakley, 5 Met., 400. The restoration of relator to his office and the ousting of the person who was appointed to succeed him does not present a case of determining title to an office, because his removal having been absolutely void the pretended appointment is a mere nullity. The State, ex rel. Mason, v. The Mayor, etc., of Paterson, 35 N. J. L., 190.

The mayor being without jurisdiction there is no controversy as to the relevant and controlling facts, and proceeding to render the judgment that the circuit court should have rendered, it is ordered that a peremptory writ of mandamus as prayed for issue against the respondent as mayor.

Peremptory writ allowed.

Price, Spear and Davis, JJ., concur.


source: Caselaw Access Project

author: Summers, J. Davis, J.,

license: Public Domain

text:
    The State, ex rel. Webber, v. Felton et al. The State, ex rel. Welty, v. Marsh et al.

      Primary elections — Nomination of party candidates — Subject of legislative police powers — Sections 2916, 2917, 2918, 2919, 2921, 2921a and 2919-1, Revised Statutes, not violative of constitution of Ohio or fourteenth amendment to United States ■ constitution.

    1. The nomination of party candidates for public office concerns the public welfare and the legislature in the exercise of the police power may make reasonable regulations therefor.
    2. Sections 2916, 2917, 2918, 2919, 2921 and 29210, Revised Statutes, as amended April 23, 1904 (97 O. L., 439), and Section 2919-1, Revised Statutes, as enacted April 20, 1904 (97 O. L., 107), providing for primary elections by political parties that cast at least ten per cent, of the vote cast at the last general election, are not violative of the constitution of this state or of the fourteenth amendment to the constitution of the United States, as depriving any person of the equal protection and benefit of the law; or as not being of uniform operation throughout the state; or as authorizing the expenditure of public funds for other than a public purpose; or as delegating legislative power; or as restricting the elective franchise, or as impairing the secrecy of election by ballot.
    (Nos. 11070 and 11086
    Decided January 28, 1908.)
    Error to the Court of Common Pleas of Franklin county.
    Error to the Court of Common Pleas of Allen county. ■
    January 2, 1908, the Ohio Republican state central committee issued its call for a Republican state convention to meet at the city of Columbus on Tuesday and Wednesday, March 3 and 4, 1908, for the purpose of electing four delegates at large and four alternates at large to the Republican national convention, and for the purpose of nominating two candidates for the office of presidential elector at large, a governor, a lieutenant governor, a secretary of state, an auditor of state, a treasurer of state, an attorney general, two members of the board of public works, a dairy and food commissioner, a commissioner of common schools, two judges of the supreme court, and a clerk of the supreme court.
    It provides that delegates to said convention shall be selected in the following manner:
    Delegates and alternates to the number to which the various counties are respectively entitled shall be selected at large from the various counties at primary elections held between the hours of one o’clock and seven o’clock p. m., on Tuesday, the eleventh day of February, 1908, under the provisions of Sections 2916, 2917, 2918, 2919, 2920, 2921 and 2921a, of the Revised Statutes of Ohio, and in no other way. Official Australian ballots, and none other, furnished by the board of deputy state supervisors of elections at each voting booth, in the manner provided for general elections, shall be voted at such elections. If any other primary election shall be held in any county at the same time, separate ballots and ballot boxes shall be provided exclusively for the election of delegates to the state convention:
    Upon the petition of ten Republican electors of any county requesting the board of deputy state supervisors of elections of such county to print the name of any Republican elector of such county upon the ballot as candidate for delegate or alternate, provided such petition is accompanied by the written consent to the use of his name in that connection, signed by such candidates for delegate or alternate, said board of deputy state supervisors of elections shall print the name of such candidate for delegate or alternate upon the ballot. The names of candidates for delegates shall be placed upon the ballot without designation except “For Delegates to State Convention,” in a uniform manner and in alphabetical order. Names of candidates for alternates shall be printed in the same way, except that the designation shall be “For Alternate to the State Convention.”
    Provided, however, that if Republican electors of a county equal to twenty times the number of delegates to which the county shall be entitled, áhall petition said board of deputy state supervisors of elections to place upon the primary ballot a complete ticket, consisting of a list of candidates for delegates and alternates to the exact number to which such county - shall be entitled, accompanied by the written consents to the use of their names respectively in such connection, signed by all of such candidates, and containing also a request that such list be headed, “Our choice for President, -,” bearing the name of some Republican candidate for President of the United States; and provided further, that such Republican candidate for President of the United States, either personally or by his representative, duly authorized in writing, shall give his written consent to the use of his name as requested in such petition, then said board of deputy state supervisors of elections shall print such ticket upon the ballot in a separate column with the heading requested and with the names in the order presented. Complete tickets shall be printed upon said ballot only in accordance with the foregoing conditions, and no ticket shall bear any other designation than the choice of such delegates for President of the United States, and the name of no person for President of the United States shall be printed on the ballot as the designation of any such ticket without his written consent or that of his duly authorized representative, filed with such board of deputy state supervisors of elections.
    Tickets upon the ballot shall be provided with a circle under the name of the candidate for President, and all names of candidates for delegates or alternates, whether upon tickets or otherwise, shall have a proper place at the left of such names where the voter can designate his choice by placing a cross therein. Electors may vote a straight ticket by placing a cross in such circle under the name of the candidate for President, or they may vote a mixed ticket. Upon each ballot shall be printed the following direction: Vote for - delegates and - alternates. (Insert number of delegates and alternates to which the county is entitled.) No ballot shall be counted upon which the elector shall vote for more candidates for delegates than the number to which his county is entitled.
    All petitions hereinbefore provided for shall be filed at or before noon on Saturday, the first day of February, 1908, and not later, at the office of the board of deputy state supervisors of elections. The written consent of candidates for President or of their duly authorized representatives to the use of such candidates’ names respectively as requested, shall be filed at the office of the board of deputy state supervisors of elections at or before noon on the fourth day of February, 1908.
    In the event that the consent to the use of the name of any candidate for President as a designation of any ticket is not granted and filed as above stated, the names of candidates for delegates and alternates contained thereon shall be printed upon the ballot in the column of delegates and alternates respectively in proper alphabetical order, just as though they had been filed without designation.
    Counties which are entitled to forty or more delegates may select delegates and alternates by districts as their county executive or controlling committees may determine, but in all other respects delegates from such counties may be selected in accordance with the provisions hereof.
    County executive or controlling committees of the various counties are directed to call not later than January 20, 1908, primary elections in their counties respectively in accordance with the provisions hereof.
    Delegates which are not selected in strict accordance with all the provisions hereof, will not be entitled to sit in said convention.
    All known Republican electors and all others who will declare their belief in the principles of 'the Republican party and their purpose to affiliate with it at the November election, complying with the Act of April 20, 1904 (97 Ohio Laws, 107), shall be eligible to participate in said primary election. No elector shall sign more than one petition and the name of no candidate for delegate or alternate shall be printed more than once upon the ballot.- If the name of any elector as petitioner or candidate for delegate or alternate shall appear upon more than one petition filed with the board of deputy state supervisors of elections,. such board shall disregard such name upon all petitions except upon the one first filed.
    Challengers and witnesses shall be admitted to polling places in accordance with daw.
    Wherever the phrase “deputy state supervisors of elections” appears in this call it will be deemed to mean, “deputy state supervisors and inspectors of elections,” with reference to counties having deputy state supervisors and inspectors of elections.
    January 9, 1908, the Republican county central committee of Franklin county, Ohio, the controlling committee Of the Republican party, a voluntary political association in that county, by resolution, directed that a primary election be held for the election of thirty-five delegates and thirty-five alternates to the Republican state convention, in accordance with the provisions of the call of the Republican state committee, and made' application to the deputy state supervisors of elections of Franklin county to hold and conduct such primary election ’under the provisions of chapter 1, title XIV, of the Revised Statutes of Ohio, and cause notice to be published and posted of the holding of such primary election.
    Karl T. Webber, prosecuting attorney of Franklin county, brought suit to enjoin the chief deputy state supervisor and inspector of elections and the deputy state supervisors and inspectors of elections for Franklin county, Ohio, from incurring any expense in the preparation for and in the holding of such primary election, and from holding such primary election.
    In the second case, B. F. Welty, prosecuting attorney of Allen county, Ohio, brought suit to enjoin the deputy state supervisors of elections of that county from incurring any expense in the preparation for and in holding a primary election called by the Republican central committee of that county for the election of delegates to said state convention.
    In each case a general demurrer to the petition was sustained and the petition dismissed, and in each case leave was given to file a petition in error in this court.

      Mr. Karl T. Webber, prosecuting attorney; Messrs. McCoy, King & Game, assistant prosecuting attorneys; Mr. Daniel J. Ryan; Mr. Charles Kinney and Mr. George H. Jones, for plaintiff in error in case No. 11070.

      Mr. B. F. Welty, prosecuting attorney, and Mr. D. J. Cable, for plaintiff in error in case No. 11086.
    The provisions of the so-called Bronson Primary Law contravene and violate various provisions of the constitution of this state.
    They violate:

      First. Section 2, Article I, of the Constitution of Ohio.
    Section 291-9, Revised Statutes, limits the application of the law to political parties casting ten per cent., or more, of the total vote cast at the last general election, necessarily prescribe the minimum number of voters that must unite to constitute a political party, and prohibits qualified electors who do not vote with the particular party holding the primary at the last preceding general election, from any participation therein; and prohibits members of political parties organized since the last general election, without regard to numbers, from nominating its candidates by primary election. It therefore is a denial to the people of the equal protection and benefit of the laws. Britton v. Commissioners, 129 Cal., 337.
    It must be admitted that every elector has a constitutional right to choose his political faith, and a right to change his political faith at any time, as he may see fit. The element of time is not essential to the formation of a political party; it may spring up from the exigencies of a particular election, and possibly with no intention of continuing after the emergency has passed, and to hold the contrary would be to strike a blow to that independence in political action upon which the government of a community may depend, and the number of votes necessary to form a political party can not be prescribed by law without violating one of the fundamental theories of popular government. Field v. Osborne, 60 Conn., 547.
    Section 2919, Revised Statutes, provides that the expense of all primary Mentions other than municipal elections shall be defrayed by the county.
    The only funds or moneys out of which the county may pay expenses are the' public funds raised by taxation upon the real and personal property of all the citizens of the county, under and by virtue of the general grant of legislative power and the limitations contained in Section 2, Article XII, of the constitution of the state of Ohio.
    Taxes being levied and raised for public purposes, the section of the primary act referred to, proposes to expend the money thus raised from all the people, to the immediate benefit of a select number, and to the exclusion of all others.. In fact, such section prohibits any of the public money from being used for the benefit of a very large proportion of the people living in the country, who contribute to the public burdens.
    The effect of the operation of the so-called primary act in the phase now being considered, may deprive 'a majority of the electors of the county of the right to take part in an election, and yet compel them to bear the largest proportion of the charges and expenses for carrying on a primary election. Hixon v. Burson et al., 54 Ohio St., 470.
    The so-called primary election law provides for registration in the city of Columbus, at the expense of the county treasurer. Taxes are only authorized for public purposes. Taylor et al. v. Commissioners, 23 Ohio St., 22.

      Second. Article II, Section 1, of the constitution of Ohio.
    Section 2917, of the so-called primary law, attempts to delegate to the controlling committee of a political party the authority to prescribe the purpose, time, manner and conditions of the holding of such primary election, and prescribe the qualifications of electors not inconsistent with the provisions of the act. This, we insist, is a clear delegation of legislative power, and a contravention of the provisions of the constitution of the state. Spier v. Baker et al., 120 Cal., 370; Cooley on Constitutional Limitations (7th Ed.), 165.

      Third. Section 26, Article II of the constitution of Ohio.
    The primary law violates the above section, in that the act does not operate upon all voluntary political associations, because of the limitation of its application to those casting ten per cent, or more of the total vote cast in the county, at the •preceding general election, nor does it apply to voluntary political associations existing, or that may be created subsequent to the last general election, without regard to the number of persons composing such political association.
    We believe that it requires more than a distinction upon which to formulate a class for the purposes of legislation; that there must be such absolute differences existing between the subdivisions of population, that it would conserve the interests of those not included within the terms of the law, to be left without the classification. State, ex rel, v. Jones et al., 66 Ohio St., 453.
    The subject of elections is one of a general nature and must be governed by laws having a uniform operation throughout the state. The subject of the regulation of primary elections is a general one and a law of a general nature, and must have a uniform operation throughout the state; and therefore such a law upon such a subject, which applies only to certain portions of the state in violation of Section 26, Article II, constitution of Ohio. Cincinnati v. Ehrman et al., 6 N. P., 169.

      Fourth. Section 1, Article V of the constitution of Ohio.

      And any attempt on the part of the legislature to prescribe additional qualifications or to delegate to others the power to prescribe qualifications which would exclude him from voting at any election held under the laws of the state is absolutely void. Spier v. Baker et al., 120 Cal., 370; State v. Finley, 19 Pac. Rep., 241; 20 Nev., 198.
    The power of the legislature is limited to laws regulating the enjoyment of the right by facilitating its lawful exercise and by preventing its abuse. It is held that iaws regulating the exercise of the elective franchise must be reasonable, uniform and impartial, and must be calculated to facilitate and secure, rather than to subvert or impede the exercise of the right to vote. Monroe et al. v. Collins, 17 Ohio St., 685; Capen v. Foster, 12 Pick., 488.
    A constitutional election provided for by statute is one authorized by law within the meaning of the constitution. Article II, paragraph 1, prescribing the qualifications of electors at all elections authorized by law.
    A deprivation of the right to participate in the selection of candidates for office is a deprivation of the right of franchise. Britton v. Commissioners et al., 129 Cal., 337; 51 L. R. A., 115.
    For limitation of the right to a place on official ballot of party casting certain per cent, of vote at last election, see DeWalt v. Bartley, 15 L. R. A., 771; State v. Black, 16 L. R. A., 769; Higgins v. Berg, 42 L. R. A., 245.
    A political party is a body of men in a state, district, county or city united in political thought and action for the accomplishment of a political end, or united in political opposition to another body of men joined in political action; and each body of men so united are entitled to the same and equal rights before the law. Fields v. Osborne, 60 Conn., 544; 21 Atl. Rep., 1070; 12 L. R. A., 551.
    If the legislature may deny the protection of its law to a political party which has cast less than three per cent, of the votes, it may deny, the same right to a party which has cast forty-nine per cent, of the votes. It is the deprivation' of the one party, and the conferring upon another, of certain important political privileges. It is a question of power, either the legislature has or has not the constitutional power so to do. Britton v. Commissioners et al., 129 Cal., 337; 51 L. R. A., 118.

      Fifth. Section 6 of Article VIII of the constitution of Ohio.
    The public funds are created for public purposes, and appropriations of those funds, either as bounty or in paying the expenses for perpetuating a voluntary political association, is contrary to the fundamental truths of popular government and against the express provisions of the constitution of this state. Taylor v. Commissioners, 23 Ohio St., 22.

      Sixth. Section 2 of Article XII (together with Section 1 of Article II) of the constitution of Ohio.
    If primary elections are not included within the term “elections” as used in Section 1 of Article V, then any taxation looking forward to the raising of money for primary election expenses would be absolutely void, because the purpose for which the tax is levied is not a public purpose. Taxes -can only be authorized for public purposes. Auditor
      v. State, ex rel., 75 Ohio St., 114; Loan Assn. v. Topeka, 20 Wall., 655; Auditor v. State, ex rel., 75 Ohio St., 114; Story on Constitutional Limitations, 694; Black on Constitutional Law, 342; Judson on Taxation, 405; Gray on Limitation of Taxing Power, 123.

      Seventh. Section 2 of Article V of the constitution of Ohio.
    The moving reason for inserting the above section in the constitution of the state was to secure to the electors the right to vote in absolute secrecy. If this provision has any effect, then any law which requires the elector to publicly declare for whom he shall vote, and in certain cases, to take an oath as to how he shall vote, and how he voted the year before, must certainly be in contravention of this provision of the constitution.
    If the Australian ballot law is in accord with the letter and spirit of the constitution, it is evident from the facts here cited that the Bronson primary election law is in direct opposition to it; and, therefore, in violation of the constitutional provision procuring secrecy of the ballot. Attorney-General v. Council, 58 Mich., 216; Cooley on Constitutional Limitations (7th Ed.), 910; People, ex rel., v. Pease, 27 N. Y., 45.

      Mr. A. PI. Johnson; Mr. W. 0. Henderson and Mr. Louis G. Addison, for defendants' in error in case No. 11070.

      Messrs. Ridenour & Halfhill, for defendants in error in case No. 11086.
    It is perhaps unnecessary to even refer to the decisions of the. courts describing police power, except to call attention to the most recent expressions of the Supreme Court of the United States up this subject. Bacon v. Walker, 204 U. S., 311.
    Laws regulating primary elections of parties are the proper subject of "police regulation. Hopper v. Stack, 69 N. J. L., 562; Kenneweg v. Commissioners, 102 Md., 119; 15 Cyc., 332; State v. Moore, 87 Minn., 308; Ladd v. Holmes, 40 Ore., 167.
    Section 2919, Revised Statutes, is not unreasonable because it deprives parties casting less than ten per cent, of the right to compel the board to call and hold a primary election. State, ex rel., v. Poston, 58 Ohio St., 620.
    It is not unreasonable to limit the political parties which shall have a right to call upon the deputy state supervisor of elections to hold a primary at the expense of the taxpayers. It simply limits the right to incur the public expense within reasonable bounds. State, ex rel., v. Drexel, 105 N. W. Rep., 174; State, ex rel., v. Jensen, 86 Minn., 19; Shafer v. Whipple, 25 Col., 400; 15 Cyc., 334.
    The right to vote a secret ballot is neither a natural right nor a constitutional right. Hence the provision of Section 2919, Revised Statutes, that “no person shall be allowed to vote at any primary election * * * except he voted with a political party holding such primary election at the last general election * * violates no constitutional right of such voter. State, ex rel., v. Poston, 59; State, ex rel., v. Drexel, 105 N. W. Rep., 174.
   Summers, J.

These cases present questions as to the validity of Sections 2916, 2917, 2918, 2919, 2921 and 2921a, Revised Statutes of Ohio, as amended April 23, 1904 (97 O. L., 439), and Section 2919-1, Revised Statutes, as amended April 23, 1904 (97 O. L., 107), and the regularity and validity of certain proceedings had by the Republican county central committee of Franklin county and the Republican county central committee of Allen county. It is contended that these sections conflict with many provisions of the state constitution and with the fourteenth amendment to the constitution of the United States. The several constitutional provisions which it is contended are violated will be indicated as the several objections are noticed. It is not necessary to set out in full these sections of the statutes. Their purport is sufficiently indicated by the statement that they constitute in a large measure what is known as the primary election law, and that they were designed to protect the elections of voluntary political associations and to punish frauds therein. They provide, in brief, that when any voluntary political association or party in any county, township, or municipal corporation, by its controlling committee gives notice of the holding of a primary election for the selection of party candidates, committeemen, delegates or alternates to any party convention and makes application therefor to the deputy state supervisor of elections or board of deputy state supervisors and inspectors of elections, as the case may be, of such county, such primary election shall be held and conducted under the supervision of such officers. These officers provide ballots, poll books, tally sheets, and other necessary things, and assign to each polling place two competent electors to act as judges and one competent elector to act as clerk, and the expenses are paid out of the public funds. It is made unlawful for any person who is not a member of the party to vote at such election or to vote at any other than the polling place in the precinct, ward, or township wherein he resides. In brief, the purpose is to permit only those who are members of the party to participate in the election and to have the result honestly ascertained and declared.

The national and state governments in the manner of their operation are quite different from what was contemplated in their organization. Political parties were not thought of, but so potent have they become in determining the measures and in administering the affairs of government that they are regarded as inseparable from, if not essential to, a republican form of government. In his “The American Commonwealth,” Mr. Bryce says: “In America the great moving forces are the parties * * *. The spirit and force of party has in America been as essential to the action of the machinery of government as steam is to a locomotive engine; or, to vary the simile, party association and organization are to the organs of government almost what the motor nerves are to the muscles, sinews, and bones of the human body. They transmit the motive power, they determine the directions in which the organs act. A description of them is therefore a necessary complement to. an account of the constitution and government; for it is into the hands of the parties that the working of the government- has fallen. Their ingenuity, stimulated by incessant rivalry, has turned many provisions of the constitution to unforeseen uses, and given to the legal institutions of the country no small part of their present colour.”

Sir Henry Sumner Maine says: “It is not to be expected that all the hopes of the founders of the American constitution would be fulfilled. They do not seem to have been prepared for the rapid development of party, chiefly under the influence of Thomas Jefferson, nor for the thorough organization with which the American parties before long provided themselves.”

And. again he says: “The truth is, that the inherent difficulties of democratic government are so manifold and enormous that, in large and complex modern society, it could neither last nor work if it were not aided by certain forces which are not exclusively associated with it, but of which it greatly stimulates the energy. Of these forces, the one to which it owes most is unquestionably Party.”

The elector’s choice of persons for office, to be effective, must be from party candidates, and so the nomination of candidates becomes as much a matter of public concern as the election of officers. The public welfare is directly involved in the selection of candidates, and the manner of selection is subject to regulation under the police power. Whether the state should undertake the regulation of the matter is not pertinent to the present inquiry. Most writers upon the subject agree that regulation is desirable, and differ only as to its extent. Some contend that it should be limited to requiring all nominations to be made in a convention of delegates elected at primaries regulated by the state; others, that all candidates for office should be elected at primary elections.

Regulation by the state being authorized on the ground that the public welfare is involved, it follows necessarily that appropriations of the public revenue to meet the expense of executing the regulations are for a public purpose, and the power of taxation is not drawn in question.

It is contended that these statutes conflict with Section 2 of Article I of the constitution and with the fourteenth amendment to the federal constitution, for the reason that only political parties, casting at least ten per cent, of the vote cast at the last general election, may avail themselves of these provisions, and that therefore the equal protection and benefit of the law is denied to those who do not belong to such or any of the parties; and that they are in conflict with Section 26 of Article II, which provides that all laws of a general nature shall have a uniform operation throughout the state. The purpose of the legislation is to promote the public welfare by preventing fraud in the nomination of candidates for office, and it is not vulnerable on the ground merely that it is not broad enough and will not cut off every abuse and make fraud impossible. This section of the Bill of Rights does not declare that every man shall receive the same amount of protection and benefit, but that “government is instituted for their (the people’s) equal protection and benefit.” Equal protection of the laws means “the protection of equal laws.” Yick Wo v. Hopkins, Sheriff, 118 (U. S., 356, 369. A law enacted to promote the general welfare is not in violation of this section if it makes no invidious discriminations, but applies equally to all similarly situated. To say that a law is invalid because every individual does not receive the same amount of protection or benefit from its operation would make legislation impossible and would be as wise as to try to shut off the gentle rain from heaven because every man does not get the same quantity of water.

The law is not restricted to any part of the state, but operates uniformly throughout the state and operates uniformly upon all under the same conditions. One man can not constitute a political party, and the abuses that it was intended to prevent depend largely upon the number of those who constitute the party, and this makes it perfectly proper for the legislature to limit the application of the law according to number. The Australian ballot laws limit the party tickets that may appear on the printed ballot, by a percentage of the 'vote cast at a previous election, and in nearly every case in which objection has been made on that ground such laws and legislation have been upheld. Such is the holding in this state in The State, ex rel. Plimmer, v. Poston, 58 Ohio St., 620; and in Gentsch et al. v. The State, ex rel. McGorray et al., 71 Ohio St., 151, 167, where the contention was that a statute, providing that in cities having a population of three hundred thousand or more the polls should close at an earlier hour than elsewhere in the state, was in violation of this section of the constitution, it was held that the statute was valid, and in the opinion it is said: “There may well be differences of opinion as to whether this provision should not apply to cities of less population than the prescribed number; but the law-making power has exercised its judgment on that matter. The limit of population upon which the- classification should be based is entirely within the discretion of the general assembly, having regard to all the conditions 'and circumstances, and so long as it is not unreasonable in its operation or subversive of the rights of electors, we can not interfere with it.”

For present purposes we do not think it important to distinguish the equal protection of the laws, which the fourteenth amendment to The constitution of the United States declares that no state shall deprive any person of, from the declaration in our Bill of Rights that government is instituted for their equal protection and benefit, but assume that what is said respecting the former is not inapplicable to the latter. In Barbier v. Connolly, 113 U. S., 27, 31, Mr. Justice Field at some length points out what was intended by this provision of the fourteenth amendment, and then says: “Special burdens are often necessary for general benefits' — for supplying water, preventing fires, lighting districts, cleaning streets, opening parks, and many other objects. Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to imposé unéqual or unnecessary restrictions upon any one, but to promote, with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects all persons similarly situated, is not within the amendment.” And in Soon Hing v. Crowley, 113 U. S., 703, 708, Mr. Justice Field says: “There is no force in the objection that an unwarrantable discrimination is made against persons engaged in the laundry business, because persons in other kinds of business are not required to cease from their labors during the same hours at night. There may be no risks attending the business of others, certainly not as great as where fires are constantly required to carry them on. The specific regulations for one kind of business, which may bé necessary for the protection of the public, can never be the just ground of complaint because like restrictions are not imposed upon other business of a- different kind. The discriminations which are open to objection are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws * * *. It is not discriminating legislation in any invidious sense that branches of the same business from which danger is apprehended are prohibited during certain hours of the night, whilst other branches involving no such danger are permitted.” In Cotting v. Kansas City Stock Yards Co. et al., 183 U. S., 79, 111, Mr. Justice Brewer says: “So, again, exercising the undoubted right of classification, it may often happen that some classes are subjected to regulations, and some individuals are burdened with obligations which do not rest upon other classes or other individuals not similarly situated. License taxes are imposed on certain classes of business, while others are exempt. It would practically defeat legislation if it was laid down as a rule that a statute was necessarily adjudged invalid if it did not bring all within its scope, or subject all to the same bur-' dens. It would strip the legislature of its inherent power to determine generally what is for the general interests, which interests may often be promoted by certain regulations affecting one class which do not affect another, certain burdens imposed on one which do not rest upon another.

“But while recognizing to the full extent the impossibility of an imposition of duties and obligations mathematically equal upon all, and also recognizing the right of classification of industries and occupations, we must nevertheless always' remember that the equal protection of the laws is guaranteed, and that such equal protection is denied when upon one of two parties. engaged in the same kind of business and under the same conditions burdens are cast which are not cast upon the other.” In Consolidated Coal Co. of St. Louis v. People of the State of Illinois, 185 U. S., 203, 207, Mr. Justice Brown says: “Another question is whether the act, as amended in 1897, in so far as it discriminates as to penalties imposed upon some persons engaged in the mining business, and not upon others, is a proper exercise of the police power. It is true that the act of 1897 amended the former law of 1895, by limiting its application to coal mines ‘where more than five men are employed at any one time.’ This is a species of classification which the legislature is at liberty to adopt, provided it be not wholly arbitrary or unreasonable, as it was in Cotting v. Kansas City Stock Yards Co., 183 U. S. 79, sub nom Cotting v. Godard, ante, 92, 22 Sup. Ct. Rep., 30, in which an act defining what should constitute public stock yards, and regulating all charges connected therewith, was held to be unconstitutional, because it applied only to one particular company, and not to other companies or corporations engaged in a like business in Kansas, and thereby denied to that company the equal protection of the laws. In the case under consideration there is no attempt arbitrarily to select one mine for inspection, but only to assume that mines which are worked upon so small a scale as to require only five operatives would not be likely to need the careful inspection provided for the larger mines-, where the workings were carried on upon a larger scale or at a greater depth from the surface, and where a much larger force would' be necessary for their successful operation. It is quite evident that a mine which is operated by only five, men could scarcely have passed the experimental stage, or that precautions necessary in the operation of coal mines of ordinary magnitude would be .required in such cases. There was clearly reasonable foundation for a discrimination here.”

The next objection is that Section 2917 delegates legislative power in that it authorizes the controlling committee to prescribe the purpose, time, manner and conditions of the holding of such primary election and the qualifications of electors.

If these matters and every other respecting the nomination of candidates of a political party may be prescribed, as they in the past have been by the party or its committee, thefi the delegation of power is not apparent. There is no delegation of legislative power, but only regulation of a power already possessed by the party.

The next contention is that Section 2919-1, enacted April 20, 1904 (97 O. L., 107), which provides that “no person shall be allowed to • vote at any primary election except he be an elector resident of the precinct, ward or township in_ which he desires to vote and except he voted with the political party holding such primary election at the last general election, providing he voted at all at such election, unless he be a first voter; nor shall any person vote more than one time, or at any other than at the polling place in that precinct, ward or township wherein he resides,” conflicts with Section 1, Article V, of the constitution, which prescribes that, “every male citizen of the United States, of the age of twenty-one years who shall have been a resident of the state one year next preceding the election, and of the county, township or ward in which he resides such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections,” in this that it adds to the qualifications that entitle an elector to vote. If this contention is sound, then every elector has the constitutional right to vote at the primary election of every party. If the election is one at which merely the candidates of a party are to be selected, it can not be an objection that electors who do not belong to that party are not permitted to take part. That was one of the evils that the legislation was intended to prevent, and as to the test prescribed for determining an elector’s partizanship it is impossible to conceive of a political party without the possession by its members of some qualifications, and the test prescribed by the statute is the usual one and is not unreasonable.

But a primary election held merely to name the candidates of a political party is not an election within the meaning of this section of the constitution. That section refers to an election of officers, and not to the nomination of candidates.

It is further contended that Section 2 of Article V of the constitution which provides that, “all elections shall be by ballot” is violated by the requirement that only known Republican electors and those who will declare their belief in the principles of the Republican party and their purpose to affiliate with it at the November election, shall be eligible to participate in said primary election, in that it will destroy the secrecy of the ballot. For present purposes it may be assumed that the word “ballot” as here used means a secret ballot, but there is no inhibition against the elector disclosing for whom he voted or intends to vote. Political parties have existed in this state for nearly a century. An elector can not belong to one without impliedly disclosing for whom he has voted or for whom he will vote, and in view of the party practice as it has so long prevailed of prescribing a requirement, like that in the statute, as a test of an elector’s right to act with the party, it is not apprehended that it will be contended that the practice has been in violation of the constitution, and if not, then it does not become so merely because it is recognized by the statute. Affiliation with the party and participation in the primary still are voluntary. Moreover, compliance with the requirement will not disclose that the elector voted for any particular candidate.

It is also contended that the statutes conflict with Section 26 of Article II because there are special statutes for holding primary elections in Butler, Gallia and Hamilton counties. The sections of the statutes to which reference has heretofore been made are general and have a uniform operation throughout the state, and nothing in them limits their operation geographically. It does not appear that any attempt will be made to hold primaries under the special statutes, and we do not deem it necessary to consider them because if the contention respecting them is sound, it does not affect the general statutes.

Numerous objections are made, on the ground of unfairness and unreasonableness, to various provisions of the mode in which the controlling committees, under the call of the state committee, have determined that primary elections shall be held, but we do not think they present any question for our determination. Political parties are voluntary organizations. They have been a law unto themselves, and they determine for themselves all questions of fairness and reasonableness and of party expediency, until the state interferes by legislation, and then no question can arise for judicial determination excepting out of the legislation. Our statutes are not mandatory. The statute, so fár as present legislation goes, only consents upon request by a political party to supply the facilities for holding the contest in the party and to act as umpire. The controlling committee acts with the knowledge that the organization is voluntary, and the members remain with knowl-edge that the party is boss.

Affirmed.

Shauck, C. J., Price, Crew and Spear, JJ., concur.

Davis, J.,

dissenting. This case arose out of a factional contest in relation to the selection of delegates to a national convention of the Republican party to nominate a candidate for president, and, as preliminary thereto, the selection of delegates to a state convention of the same party. •The judgment of this • court having been announced already, that struggle can not be materially affected by what we may say. I have opposed the judgment which has been rendered, not because I favored one or the other of the rival candidates, but solely for the reasons that follow, and deem them of sufficient importance to justify putting my protest on record.

I believe that the statute regulating primary elections is unconstitutional in so far as it authorizes the expenditure of public money for party purposes, if it does not also infringe the constitution in other respects mentioned hereafter.' It is wholly unnecessary to go into an analysis of constitutional provisions or into a search for fundamental principles of government to sustain this contention; because, happily for this discussion, it is already well settled law that the .legislature has no constitutional power to levy taxes for any other than a public purpose, and that, as corollary thereto, it can not appropriate the public money to any private purpose. Cooley Const. Lim. (7th Ed.), 696-697, 700-701.

It seems to me entirely clear that the purpose for which it is here sought to pay public money, if justified at all under this statute, amounts more nearly to public plunder than to a public use. The public at large is in no manner directly benefited, nor is the public welfare in any way immediately affected, by the way in which any political party may settle its own factional differences. The public is no more concerned with such matters than it is with church quarrels or the rivalries in fraternal organizations. Indeed, possibly half of the voting population of the state is entirely indifferent as to which of the distinguished aspirants should be successful, and would be more than pleased if the Republican party' did not agree upon a nomination at all. Of course, when it is necessary to protect the rights of private citizens from fraud or violence, the state may interfere to that extent and no more; but I have heard no answer to the consideration which I have suggested, except that political parties are unavoidable and even necessary in a free government, and that therefore the state is interested in whatever would facilitate the organization and functions of a political party. I reply that there is a plain distinction between a public interest and a public use. The latter would invariably justify an expenditure of the public funds. A public interest may be so remote as not to require or deserve legislative notice. The fundamental principles of civil government require that the legislature should keep its hands off in such cases. A public interest, or to phrase it otherwise, the public welfare, may be such as to require reasonable police regulation; but that does not make the police regulation a matter of “public use” for which the public money may be expended. The statutes are full of illustrations. Two or three are sufficient. The legislature has seemed to think that the public welfare was sufficiently involved to justify it in requiring street railway companies to fit all their cars with enclosed vestibules. Does that make the construction of cars in that manner a “public use” so as to justify the state, county or municipality to pay for it? The legislature has seen fit to require railroads to put automatic couplers on their cars, to erect signs and place gates at crossings and to fence between their right of way and adjoining proprietors. Do any of these things constitute such a public use as would authorize the payment for them out of the public treasury? It seems to me that it would require a good deal of hardihood to answer in the affirmative.

So, while the conduct of a general election essentially concerns everybody and is a public use for which public money may be appropriated, a primary election which is merely preliminary to a nomination of' candidates by one political party, does not vitally concern anybody except those who may voluntarily associate themselves with such party, and is therefore not a public use. The theory that the conduct of party primary elections is “a public use” because the public is more or less interested in.what concerns the final exercise of the' right of suffrage, when carried to its logical conclusion, would justify the legislature in appropriating public money for the payment of campaign expenses of either of these candidates, if he should become the nominee of his party for president; for the public is interested in having a choice of candidates and interested in having a full discussion of their merits and qualifications and of the policies which they represent. This reasoning would be especially effective since some very virtuous statesmen seem to be of the opinion that no citizen should be permitted to pay more than a dollar for the promotion of his personal views of what the public welfare requires. If the legislative power is bounded only by such shadowy lines, the legislative discretion is unlimited, and there is no relief for the suffering taxpayer. If such be the correct interpretation of the constitution, we have substituted for the tyranny of kings that which is just as oppressive and far more insidious- — -the tyranny of legislatures. In order that I may not be misunderstood, I repeat that nobody doubts that such a primary election may be subjected to police regulation to protect the rights of individual citizens; but, as already shown, that does not constitute a public use.

It is therefore a mistake of fact, and of law also, for counsel for defendants in error to say: “There is no police regulation which does not involve and require the expenditure of public moneys to carry, it into effect”; and it is also a non sequitur when they assert that if it be conceded that the legislature has a right to enact a law, it must necessarily 'follow that it has a right to provide the means for carrying its law into effect; although, of course, criminal prosecutions for violation of laws must be at the public expense, because the enforcement of law is a public use. It has also been strongly urged in this case that when the legislature has enacted a statute against which there is no express limitation in the constitution nor one necessarily to be implied from an express limitation, it is the exercise of a legislative function, and can not be gainsaid. I know that such is the ordinary and concise way of defining the legislative power; but it is not strictly correct. The legislature is not omnipotent. It can not act arbitrarily and against the public welfare, although there be no limitation to that effect expressed in the constitution. This limitation is included in the nature of the legislative power itself, and is included in the powers which are reserved to the people. Const., Art. I, Sec. 20; Cooley Const. Lim. (7th Ed.), 242-243.

The power of the courts in such an exigency is therefore clear. “It is agreed , that the determination what is and what is not a public purpose belongs in the first instance to the legislative department. It belongs there because the taxing power is a branch of the legislature, and the legislature can not lie under the necessity of requiring the opinion or the consent of another department of the government before it will be at liberty to exercise one of its acknowledged powers * * *. But it is also generally admitted that the legislative determination on this subject is not absolutely conclusive. It may be sufficiently so to put the administrative machinery of the state in' motion; but when the exaction is made of an individual, and the power of the state is made use of to compel submission, he has always the right to invoke the protection of the law. And an appeal to the law for the protection of individual property, must necessarily render the question, which lies at the foundation of the demand, a judicial question, upon which the courts can not refuse to pass judgment.” 1 Cooley oh Taxation, pp. 182-183. For the reasons stated it seems to me clear that the. auditor and treasurer should be restrained from paying any part of the expense of carrying on a primary election, which is - only remotely connected with state or county elections, and which, as we shall see hereafter, is not only .not calculated to protect the weak in their rights, but to suppress the rights of the minority.

But let us go further. In Section 2917 it is provided that the notice and application by the “controlling committee” of the county “shall skate the purpose, time, manner and conditions of the holding of such primary election, and shall prescribe the qualifications not inconsistent with the provisions of this chapter, of the persons to vote at such election.” If the conduct of such an election is a “public use,” for the expenses of which the public shall pay, then only the legislature can define the manner and conditions of the elections and prescribe the qualifications of the electors; the power conferred on the “controlling committee” to do so is clearly a delegation of legislative power and as such, unconstitutional. If the conduct of such an election is not a public use, if it concerns only the voluntary political association known as the Republican party, then the legislature may intervene only so far as to prevent oppression and wrong to personal rights.

But further, nobody disputes the right of the legislature, in the proper exercise of the police power, to enact a law regulating primary elections; but the exercise of that right depends on the limitation whether it would facilitate or unreasonably hinder and impede the exercise of the right of suffrage. Monroe v. Collins, 17 Ohio St., 666; Capen v. Foster, 12 Pick., 485, 492. “The legislature has undoubted power under the constitution to regulate elections, so long as it merely regulates the exercise of the elective franchise, and does not deny the franchise itself, either directly or by rendering its exercise so difficult and inconvenient as to amount to a denial.” Dewalt v. Bartley, 146 Pa. St., 529. Now in what respect does this “call” impede the free exercise of the voter’s rights?

If the call is not in conformity with the statute, the prayer of the petition should be granted for that reason. If the “call” is in pursuance of the statute, the statute and the call must stand or fall together. Except in- one particular, which I will note in concluding, I will assume that the call strictly follows the statute.

The first and most obvious objection to the scheme of the committee is that it is so contrived as to prevent any possibility of the minority in the county securing any representation, however small, among the delegates, except in the improbable event of the majority scattering its votes for delegates while the minority votes solidly for one set of candidates by placing a cross in the circle. The county is made the unit of representation, except in two counties of the state, Hamilton and Cuyahoga. The election must be held at the usual voting places of the county; and although ninety-five per cent, of the voting precincts may give a majority for delegates having the same presidential preference, the other five per cent, may, by greater density of population, cast a majority of votes in the county and deprive the voters of the other ninety-five per cent, of precincts of any representation whatever. It is permitted, however, that the “controlling committees” in counties entitled to forty or more delegates, if they think that they can thereby “control” things better, “may select delegates and alternates by districts as their county executive or controlling committees may determineand thus we have one law for eighty-six counties, and another law for two counties, if the controlling committee sees fit to so legislate.

Again, this scheme subordinates all local or state interests to the expression of preference for presidential candidates. Candidates for state office have no place in it. It is assumed that every aspirant for nomination on the state ticket, from governor to the end of the list, must get in line with the delegates whose banners bear the name of the presidential candidate who succeeds in carrying the county. In other words, upon the “controlling committees,” well named in the statute, of the counties and state, is conferred the power of constituting the most potent political “machine” that ever was erected in Ohio, or anywhere else, so far as I know; and no check on its despotic power is provided.

If it was deliberately planned for this purpose, it is efficient as well as daringly bold, and even impudent. If this result is an inadvertence, nevertheless the threatening opportunity is afforded, and —he who runs may read. I repeat, if this sort of procedure is not authorized by the statute, the judgment should be for the relator. If it is authorized by the statute, then the statute is unconstitutional, because it delegates to the “controlling committee” legislative power of the most far-reaching and dangerous character.

Moreover, this scheme puts upon the right to vote unfair and burdensome conditions which not only tend to hinder and impede, but even to exclude, minority voters. The statute (97 O. L., 107, Section 1) prescribes the qualifications of a voter at a primary election. I see nothing to complain of in this enactment; but by Revised Statutes, Section 2917, the controlling committee is authorized, or at least it assumes that it is authorized thereby, to further limit the qualifications of the voter as follows: “All known Republican electors and all others who will declare their belief in the principles of the Republican party and their purpose to affiliate with it at the November election, complying with the act of April 20, 1904 (97 O. L., 107), shall be eligible to participate in said primary election.” .1 have already adverted to this Section 2917 as containing an unwarranted delegation of legislative power, and I have also adverted to its effect on this case if the action of the controlling committee be not authorized by the statute; but now, assuming this action to be strictly ■ within the terms oh the statute, I ask attention to the manner in which, it seems to me, it impairs and hinders the exercise of the right to vote and severely discriminates between voters. “All known Republican electors” may vote at the primary election without a confession of faith, or a declaration of party fealty at the general election. “All others,” although they may have voted with the Republican party for years, must not only make an open profession, but the voter must also declare that it is his intention “to affiliate with” the party “at the November election,” which can only mean that he pledges himself to vote for the candidates nominated without knowing who they will be'. This last requirement is a direct blow at the independence of the voter, as well as an infringement of his constitutional right .to vote without disclosing for whom he votes. The constitution declares that: “All elections shall‘be by ballot.” Const., Art. V, Section 2. That a vote by ballot imports secrecy is too well settled to be the subject of argument. Cooley on Const. Lim. (7th Ed.), pp. 910-913; McCrary on Elections, .Sec. 454. So that'a decision in New Jersey and a dictum in this, state that a secret ballot is neither a natural right nor a constitutional right, can be of no significance. A plainly expressed constitutional right of the voter is violated in this condition of the call.

The cases of State, ex rel., v. Poston et al., 58 Ohio St., 620, and State, ex rel., v. Poston et al., 59 Ohio St., 122, have been cited as supporting the views of the majority in this case. Those opinions do not decide the question with which we are now dealing. In the opinion in the latter case (59 Ohio St., 136), the court itself distinguishes that case from this one, as follows: “Much that is said in the briefs of counsel and most of the cases cited relate, as does Monroe v. Collins, to enactments which impede and restrict the exercise of the right to vote.” That is precisely the proposition for which I am now contending; but the court summarily proceeded to put that question out of the case, as follows: “The provisions now under consideration, defining the conditions upon which the state will provide and thus facilitate the exercise of the right, and leaving to every elector an opportunity to vote according to his preference, are within the power of the legislature.” The court had previously-said, in the same opinion: “Nor does this provision require any elector to disclose his purpose with reference to the character of his vote, unless he voluntarily does so as a petitioner on a nomination paper. The act merely defines the conditions on which the state will cause tickets to be printed upon the ballot, leaving every elector entirely free to voté a ticket that has otherwise acquired a place on the ballot, or to supply in secrecy the names of the persons for whom he desires to vote, or become a pefitioner by giving the required pledge.” I submit, therefore, that in the Poston cases this court has not advanced one step beyond the law as stated in Monroe v. Collins and the other authorities to which I have already referred; nor has it decided upon the reasonableness or effect of conditions restricting the qualifications of electors similar to or like those in the case at bar. Nevertheless, I am much inclined to think that the strength - of the argument in the Poston cases was with the dissenting judges (dissenting opinion by Minshall, J., 58 Ohio St., 633); and with the judgments in those cases and this one before me, I begin to wonder to what extent the abridgement of the right of suffrage may go before it will be pronounced unlawful.

Further, this scheme is burdensome on minorities and palpably calculated to hinder and impede, if not to exclude minority voters. Before an elector can cast his vote at the primaries he must not only pass the obstacles which we have heretofore considered, but he must secure electors, in numbers twenty times the number of delegates, to sign a petition — in Franklin county seven hundred; he must secure written consents of the delegates and alternates whom he would vote for — in Franklin county, seventy — and the consent of his choice of the candidates for noriiination for president. It is clear that upon this condition, if there were not in the county seven hundred voters of his way of thinking, he could not vote at all. And it might happen that minorities of less than seven hundred, favoring each of the several aspirants for presidential honors, not including the two distinguished citizens of Ohio, would all be excluded from voting as they wished by the operation of this onerous condition.

As to obtaining consent of candidates, .1 need only to cite State, ex rel., v. Drexel (Neb.), 105 N. W. Rep., 174, and Dapper v. Smith, 138 Mich., 104. In the latter case it was held to be an unconstitutional restriction to require that the candidate should declare on oath that he was a candidate; and in the other case a similar judgment was rendered as to a requirement that the candidate should pay a fee, for filing nomination papers, of one per cent, of the emdluments of the office. It is easy to say that “circumstances alter cases” and that the circumstances are not the same as in this case. This is true, but in the points essential to this case they are alike. Those cases differ from this in that the conditions were more burdensome on the candidates than in this; but they both agree, as I maintain here, that the conditions were an infraction of the rights of electors, because they seriously impede the right of the elector to vote for men who are not seeking the. office.

Finally, the call is not made by the “controlling committee” of the county, as required by the statute. On its face it is made, and I quote from the call, “in accordance with the provisions — including the requirements as to time, manner, conditions and qualifications of persons who vote — of the call for said Republican State Convention duly adopted by the Republican State Central Committee on January 2, 1908, a copy of which said provisions reads as follows:” etc. One of those provisions reads as follows:' “Delegates which (?) are not selected in strict accordance with all the provisions hereof - will not be entitled to sit in said convention.” It thus appears that while the statute con'fers no powers upon the state committee and does not recognize that committee, the statute has been so perverted that the state committee dictates the call and enforces it by a threat that delegates otherwise chosen shall not be seated. And yet there are some who insist that they are unable to see anything unfair or unreasonable in this proceeding. I may be obtuse and unable to appreciate the liberality and benevolence of the call, but to my mind the thing appears to be a perversion of the intention of the legislature and a monstrosity. If it is to be perpetuated and justified and sanctified in the courts, I fear that it will be the sowing of dragon’s teeth to ripen in a Terrible harvest hereafter.


text:
    No. 10475.
    Gorry v. Wilson.
    Decided September 24, 1907.
    Error to Circuit Court of Madison county.

      Messrs. Murray & Emery, for plaintiff in error.

      Mr. G. W. Wilson, for defendant in error.
   Judgment modified by consent of parties.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 10270.
    White, Admx., et al. v. Rembold, Admr., de bonis non.
    Decided October 1, 1907.
    Error to the Circuit Court of Hamilton county.

      Messrs. Maxwell & Ramsey, for plaintiffs in error.

      Mr. W. T. Porter, for defendant in error.
   Judgment of reversal affirmed. Mandate so modified as to direct the common pleas to ren7 der judgment in favor of the original plaintiff acccording to the prayer of his petition.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.