author: Davis, J.

text:
    The State of Ohio ex rel. Hildebrandt v. Stewart, Chief Deputy State Supervisor of Elections of Greene County.

      Conduct of elections — Procedure in nominations — Section 2966-28, Revised Statutes — Duties of election boards — Chief deputy of state supervisors — Once called together, having acted and adjourned — Their functions at an end — Section 2966-22,- Revised Statutes — Limitation of power to file certificate of nomination.

    1. Section 2966-23, Revised Statutes, requires that objections or other questions arising in the course of nominations for candidates for district offices “shall be considered by the chief deputy state supervisors and clerks of said election boards of the several counties comprising the district;” but such chief deputies are not thereby constituted a board with continuing functions, nor a board in any sense. Randall v. State, 64 Ohio St., 57, approved and followed.
    2. When such chief deputy state supervisors and clerks have been called together to consider objections to and controversies concerning rival nominations, and they have considered the same and rendered their decision thereon and adjourned sine die, their functions as to such objections and controversies are at an end, and such decision is final in the sense that it is so far conclusive as to those objections and controversies that the same cannot be again considered by the said chief deputy state supervisors and clerks nor by those succeeding them in office.

      3. The requirement of - section 2966-22, Revised Statutes, which provides that certificates of nomination and nomination papers of candidates for offices to be filled by the electors of á district, etc., shall be filed' with the chief deputy state supervisor of the county in the district,- etc., containing the greatest number of inhabitants, as ascertained by the last federal census, not less than twenty-five days previous to the day of election, is a limitation- upcm the.power to so file, and is not intended to require that objections and other questions arising in the course of nominations of candidates shall be kept open and undecided until twenty-five days before the day of the election.
    (No. 9187
    Decided October 14, 1904.)
    Mandamus.
    The petition is as follows:
    ‘ ‘ The relator represents to the court that the sixth congressional district of Ohio is composed of the counties of Brown, Clermont, Clinton, Greene, Highland and Warren in said state, that , said Greene county had at the last federal census the largest population of any of said, counties; that for the period of one year next preceding the first Monday in August, 1904, defendant was the duly chosen, qualified and acting chief deputy state supervisor of elections for Greene county; that on or about the thirteenth day of April, 1904, relator filed with defendant as such chief deputy state supervisor of elections for Greene county a paper purporting to be a certificate of the nomination of the relator for congress by a delegate congressional convention of the republican party, duly called and held on the twelfth day of April, 1904, at Wilmington, in Clinton county, in said district.
    “Within five days thereafter objections to said certificate were filed by Thomas E. Scroggy and others with the defendant as chief deputy state supervisor of elections as aforesaid.
    “That on or about the fourteenth day of April, 1904, said Thomas E. Scroggy filed with the defendant, as chief deputy state supervisor of elections for Greene county, a paper purporting to be a certificate of the nomination of the said Thomas E. Scroggy to congress by a delegate congressional convention of the republican party, duly called and held on the twelfth day of April, 1904, at Wilmington, Clinton county, in said district.
    “That within five days thereafter objections to said certificate were filed with the defendant, as chief deputy state supervisor of elections, as aforesaid by the relator and others.
    “That thereafter, to-wit, on or about the nineteenth day of May, 1904, a meeting was held at Xenia, Greene county, in said district of the then chief deputy state supervisors of elections of each of the counties aforesaid, and of the then clerks of the election boards of said several counties comprising said district. At said meeting said board claimed to have authority and jurisdiction to finally determine and pass upon the validity of said certificates of nomination filed by the relator and by Thomas E. Scroggy, respectively, and upon the objections filed to each of said certificates. That before proceeding to the determination of the validity of said nominations and before passing upon said objections to each of said nominations respectively, the said board determined and announced that in its deliberation thereon it would receive only affidavits filed by or on behalf of each of said candidates and in support of said several objections, and would entertain only written arguments upon the matter, and that its consideration of said evidence and arguments would be in executive session. That relator in writing protested against tbe manner of said deliberation and requested that said hearing be public, and that be, tbe said relator, have an opportunity to see the affidavits filed in support of tbe objections to bis claimed certificate of nomination and for tbe further opportunity to present affidavits in reply thereto. But notwithstanding said protest and request, said meeting was held in executive session, and this relator was not permitted to be present at said meeting or to read tbe affidavits filed in support of tbe objections to bis claimed certificate or to offer counter affidavits thereto.
    “That at said meeting held on tbe day and date aforesaid, and composed of tbe then chief deputy state supervisors and clerks of tbe boards of elections of tbe several counties aforesaid, the said board, under its claim of authority and jurisdiction in tbe premises, adopted the following resolution:
    “ ‘Resolved, That tbe objections of Thomas E. .Scroggy et al. to tbe certificate of nomination of Charles Q. Hildebrant be sustained, and tbe certificate of nomination of tbe said Hildebrant be stricken from tbe files. ’
    “That at said meeting tbe said board, under its claim of authority, as aforesaid, adopted also tbe following resolution:
    “ ‘Resolved, That tbe objections of said Charles Q. Hildebrant et al. to tbe certificate of nomination ■of Thomas E. Scroggy be overruled and that Thomas E. Scroggy be declared tbe nominee of tbe regular republican convention under tbe call of tbe congressional committee of tbe sixth congressional district ■of Ohio, held at Wilmington, Ohio, on tbe twelfth day of April, 1904, and that his nomination he certified by the chief deputy state supervisor of the county containing the greatest number of inhabitants at the last federal census, to-wit, Greene county, to the several chief deputy state supervisors of the other counties of said sixth congressional district of Ohio, as required by law. ’
    “That thereafter, on the first Monday in August, 1904, the terms of office of certain of the deputy state supervisors of elections in each of the said counties expired and the state supervisor of .elections, in accordance with law, duly appointed the successors to said deputy state supervisors whose terms so expired; that said successors duly qualified and entered upon the discharge of their duties. That thereafter in each of said counties composing the sixth congressional district the deputy state supervisors, as then appointed, qualified and acting, met and organized in accordance with the statutes, electing in each of said counties a chief deputy state supervisor and a clerk of the board of elections as required by law, and that under said organization had as aforesaid, the defendant became the chief deputy state supervisor of elections of said Greene county, being the county having, at the last federal census, the largest population of any county in said sixth congressional district.
    “That on or about the nineteenth day of September, A. D. 1904, a majority of said newly chosen chief deputy state supervisors of elections and clerks of the boards of elections of the said counties comprising the said sixth congressional district, convened and entered upon the consideration of the claimed certificates of nominations theretofore filed by the relator and by the said Thomas E. Scroggy as hereinbefore more fully set forth. That said meeting Was called by notice, signed by a majority of the chief deputy state supervisors of elections and clerks of the election boards of said counties, duly served upon all the chief deputy state supervisors of elections and clerks of the election boards of said several counties. That at said meeting the majority of said chief deputy supervisors of elections and clerks of the boards of elections of the counties comprising the said sixth congressional district, having heard all the evidence presented in support of the objections theretofore filed, and having considered the same, did make the following finding of facts, to-wit:
    “ ‘That all the chief deputy state supervisors of election and clerks of the board of deputy state supervisors of elections of the counties of Brown, Clermont, Clinton, Greene, Highland and Warren, being the counties composing the sixth congressional district of Ohio, have each and all had due and legal notice of the time, place and purpose of this meeting.
    “ ‘That Charles Q. Hildebrant and Thomas E. Scroggy have each had due and legal notice of the time, place and purpose of the meeting. That there are on file with R. I. Stewart, chief deputy state supervisor of elections for Greene county, Ohio, which said county has the largest population of any county in said district according to the last federal census, the certificates of nominations of Charles Q. Hildebrant and Thomas E. Scroggy, each of whom claim to be the regularly nominated candidate for the republican party for representative in congress for said district.
    “ ‘That to each of said certificates of nomination there are. on file with said R. I. Stewlart, as chief •deputy state supervisor of elections as aforesaid, •certain objections.
    “ ‘That on the nineteenth day of May, 1904, the ■chief deputy state supervisors of elections and clerks of the boards of elections of the said counties comprising said, congressional district attempted to make its finding and order as to who was the regularly and duly nominated republican candidate of said district •over the objections and protest of the said Charles Q. Hildebrant. That said chief deputy state supervisors of elections and clerks, notwithstanding said objections and protest, did order that the certificate of nomination of the said Charles Q. Hildebrant be stricken from the files and did order that the certificate of nomination of the said Thomas E. Scroggy be by the said R. I. Stewart, as chief deputy state supervisor of elections as aforesaid, certify to the boards of deputy state supervisors of elections of the said several counties composing said sixth congressional district, as the republican candidate for representative in congress for said district.
    “ ‘That the term of office of each of said chief •deputies and clerks making said orders as aforesaid expired by operation of law on the first Monday of August,- 1904, next succeeding the making of said order.
    “ ‘That said finding and order were made upon ex parte affidavits limited in number, privilege denied to either of said candidates to see said affidavits or to file counter affidavits thereto or to appear in person or by counsel before said board at said pretended hearing. That the action of said board was had in secret. That the members of said board by the action of eight members thereof were kept together in a room locked and guarded by one or more sergeant-at-arms on the outside of said room and were not permitted to separate until they made said, finding and order.
    “ ‘That said order and finding were made upon insufficient evidence. That many of the statements contained in the affidavits filed on behalf of Thomas. E. Scroggy are untrue and that said Charles Q. Hildebrant was denied the privilege of filing counter-affidavits to refute and deny the same.
    “ ‘That the finding and order of said chiefs and clerks as aforesaid made on the nineteenth day of May, 1904, were fraudulently, corruptly and collusively procured.
    “ ‘Each and all of the above and foregoing finding-of facts is made upon sworn testimony of reputable witnesses before us at a public hearing had by us at. the village of Loveland, Clermont county, Ohio, on the fourteenth day of September, 1904.
    “ ‘It is therefore ordered and decreed by a majority of eight of the chief deputy state supervisors, of elections and clerks of the board of deputy state supervisors of elections of said counties composing-the sixth congressional district of Ohio, that the said finding and order so far as aforesaid made on the-nineteenth day of May, 1904, striking the certificates, of nomination of the said Charles Q. Hildebrant from the files and ordering the certificate of nomination of Thomas E. Scroggy to be certified to the' board .of deputy state supervisors of elections of said several counties comprising said district as the republican candidate for congress was made upon insufficient testimony, and is fraudulent, corrupt, collusive and void and the same is hereby set aside and. held for naught.

      “ ‘Coming now to a consideration of the question arising upon the filing of the certificates of nominations of Thomas E. Scroggy and Charles Q. Hildebrant and the objections thereto, we find from the evidence the following facts:
    ‘ ‘ ‘ That on the fifth day of March, 1904, the republican congressional committee of the sixth congressional district of Ohio, issued a call for a congressional convention to be held at Wilmington, Ohio, on the twelfth day of April, 1904, for the purpose of nominating a candidate for representative in congress, two delegates and two alternates to the national republican convention and one presidential elector, and fix a representation in said convention at 139 delegates and 139 alternates and apportioned the same among the counties as follows:
    “ ‘Brown county, sixteen delegates, sixteen alternates.
    “ ‘Clermont county, twenty-five delegates, twenty-five alternates.
    “ ‘Clinton county, twenty-two delegates, twenty-two alternates.
    “ ‘Greene county, twenty-six delegates, twenty-six alternates.
    “ ‘Highland county, twenty-six delegates, twenty-six alternates.
    “ ‘Warren county, twenty-four delegates, twenty-four alternates.
    “ ‘Of which number seventy would be necessary for a choice.
    “ ‘The said cal!also provided for a temporary organization as follows:
    “ ‘W. C. Bishop, chairman.
    “ ‘Andrew Jackson, secretary.
    “ ‘S. S. Outcalt, sergeant-at-arms.

      “ ‘That said counties duly elected delegates and alternates in pursuance of said call of said congressional committee.
    “ ‘That the regular and duly elected delegates from Brown county, sixteen in number; Clermont county, twenty-five in number; Clinton county, twenty-two in number, and Warren county, twenty-four in number, being eighty-seven in all, and a majority of all the duly elected delegates, met at Wilmington, Ohio, on the twelfth day of April, 1904, in pursuance to said call of said congressional committee and w'as presided over by said temporary organization so as aforesaid provided, by said congressional committee, except the secretary, Andrew Jackson, who voluntarily absented himself, and Seymor S. Tibbies was chosen in his stead, which said organization was made permanent.
    “ ‘That said convention regularly nominated Charles Q. Hildebrant as the republican candidate for representative in congress and one presidential elector and two delegates and alternates to the national republican convention, and that each of said nominations were duly certified by the officers of said convention to the properly constituted authorities to secure and file the same.
    “ ‘That the delegates and alternates, so as aforesaid chosen to the national republican convention were recognized by the national republican committee and placed by it on the temporary roll of said national republican convention and by the action of the committee on credentials were placed on the permanent roll of said convention.
    “ ‘That the delegates in the republican state convention from Clermont county were selected by the same county convention and at the same time that said delegates to said congressional convention were selected, and on a contest before tbe republican state central committee were placed on the temporary roll of said convention and by the action of the committee on credentials placed on the permanent roll-call of said convention.
    “ ‘That the regular delegates from the counties of Greene and Highland, being fifty-two in all, and less than a majority of the whole number of the legally elected delegates to said convention, refused to attend and participate in its proceedings, but voluntarily absented themselves. That shortly afterward said delegates met in the street in Wilmington and from there adjourned to the West House and from there to the dining room of the Odd Fellows’ Temple, and there went through the form of nominating Thomas E. Seroggy for representative in congress for said sixth congressional district, and which said nomination was certified to said R. I. Stewart, chief deputy state supervisor of elections of Greene county, Ohio, and which certificate of nomination is the one on which the said Thomas E. Seroggy bases his right and claim to be the republican candidate for representative in congress for said district.
    “ ‘It is therefore ordered and decided by the chief deputy state supervisors of elections and clerks of the boards of elections of the several counties comprising the sixth congressional district of Ohio, that the said Charles Q. Hildebrant is the regularly and duly nominated republican candidate for representative in congress for the sixth congressional district of Ohio, and the chief deputy state supervisor of elections of Greene county is hereby ordered to certify the certificate of nomination of Charles Q. Hildebrant to the boards of supervisors of elections of all counties comprising the sixth congressional district as the regularly nominated republican candidate for representative in congress for said district. It is further ordered and decided that said Thomas E. Scroggv is not the regularly nominated republican candidate for representative in congress for said district, and said chief deputy state supervisor of elections of Greene county is hereby ordered not to certify the nomination of said Thomas E. Scroggy to said hoards of deputy state supervisor of elections.
    “ ‘And it is further ordered, by the board, that an order of this hoard, signed by all the members participating in this meeting, and setting forth the determination of the hoard in said contest, issued to' the said several hoards of deputy state supervisors of each and all of said counties, commanding them that they place the name of Charles Q. Hildehrant on said ballot as such republican candidate as aforesaid.’
    “Relator further represents to the court that defendant, as the chief deputy state supervisor of elections of Greene county, being the county having, at the last federal census, the largest population of any county in said sixth congressional district, has refused, still refuses and will continue to refuse to certify the nomination of relator as found as aforesaid..
    “Relator further says that his right to require the performance of the said act of the defendant as. aforesaid is clear and that no valid excuse can he given for not performing it, and that the relator has. no plain or adequate remedy in the ordinary course of the law.
    “Wherefore, relator prays that a writ of mandamus issue to said defendant as chief deputy state supervisor of Greene county as aforesaid, commanding Mm forthwith to certify the nomination to congress of the relator by the regular republican congressional convention of the sixth district as aforesaid to the deputy state supervisors of elections in all the other counties in said sixth congressional district as aforesaid, and for all other and proper relief. ’ ’
    The defendant answered as follows:
    “The defendant, for answer to the writ issued to him, says, the mode of proceeding adopted by the board composed of the chief deputy supervisors and clerks of the county boards of elections of the six counties comprising the sixth congressional district of the state of Ohio, was agreed upon by them unanimously without suggestion or interference by either candidate for the nomination. It was agreed upon in writing on the tenth day of May, A. D. 1904, and such action was immediately communicated by letter to both Hildebrant and Scroggy.
    “The board convened in Xenia by agreement on the nineteenth day of May, A. D. 1904, all the members being present, to consider the objections filed to the nominations respectively of said Scroggy and Hildebrant.
    “No communication was received by the board or any member thereof, to the knowledge of defendant, until the meeting of the board at Xenia on the nineteenth of May, when the following motion was filed by counsel for Hildebrant:
    “ ‘State of Ohio, Greene County, ss:

      “ ‘In re the matter of the objections of Thomas E. Scroggy to the certificate of nomination of Charles Q. Hildebrant, as a candidate of the republican party for representative in congress for the sixth congressional district of Ohio. ,

      “ ‘Before the board of supervisors of election within and for the sixth congressional district of Ohio.
    “ ‘motion.
    “ ‘Comes now Charles Q. Hildebrant, who claims to be the regular and duly nominated candidate of the republican party, of the sixth congressional district of Ohio, for representative in congress, and moves this honorable board to adjourn its sittings to the city of Loveland, Ohio, and to reconvene at said city of Loveland on Monday, the twenty-third ■ day of May, A. D. 1904, and that it order all witnesses whose affidavits have been herein filed, and such others as it may deem necessary, to appear before it and submit to an oral examination, under oath, touching the several matters in issue herein; and that all the proceedings of this board shall be open to the public, to the end that the full truth relating to the several matters and things herein in issue may be fully known by all the voters in said sixth congressional district of Ohio.
    “ ‘C. Q. Hildebrant,
    “ ‘By Hayes & Swaim,
    “ ‘Thorp & Miller and
    “ ‘Smith & Clevenger,
    “ ‘His Attorneys.’
    “Said motion contained the following indorsement : ‘ Filed May 19,1904. Miles Bicking, clerk of board. Motion not seconded. No action taken on same. ’
    “A member of the board offered the said motion, but there was no second and no action taken upon it. The board proceeded to act upon the various objections and took action as stated in the petition, the vote being eight to four in favor of the certificate being awarded to Thomas E. Scroggy — all of which was duly made a matter of record.
    “No protest or objection, other than that stated in the motion above, was made in writing or verbally by Charles Q. Hildebrant, to the organization of the board, its method of proceeding or its right to proceed ; and both parties voluntarily submitted a large number of affidavits in writing sustaining their respective claims, and filed written briefs and arguments in support thereof.
    “No request was made by Charles Q. Hildebrant or any one on his behalf for permission to inspect the affidavits filed on behalf of Judge Scroggy.
    “Said board fully, honestly and carefully considered the questions submitted to it — convening at 10:30 A. M., on the morning of the nineteenth, and sitting until it reached a conclusion on the morning of May 20th, adjourning for dinner and supper on the nineteenth of May in the usual manner and for the usual time. After its finding it adjourned without day.
    “This defendant did not call the meeting which subsequently met at Loveland on the fourteenth day of September, nor was he present at the same, nor more than eight members of the said board. And no one was present on behalf of Thomas E. Scroggy.
    “Defendant further avers that on the ninth day of September, A. D. 1904, as chief deputy state supervisor of the district, he certified to each one of the deputy state supervisors in each of the other five counties of the district the name of Thomas E. Scroggy as the regular republican nominee of the sixth congressional district, with orders to place his name upon the official republican ballot in each of said counties to be voted for at tbe next regular election in November.
    .“This defendant takes no issue upon tbe false and malicious statements in tbe finding of tbe pretended board on tbe fourteenth day of September, A. D. 1904, to tbe effect that tbe action of tbe board on tbe twentieth day of May, A. D. 1904, was corruptly, fraudulently and collusively made, because said statements are not made or alleged by tbe said Hildebrant, nor sworn to by him nor by any person on bis behalf, although if material, or put in issue, be emphatically denies tbe same.
    “Tbe defendant having fulfilled tbe duties required of him by law and tbe action of the board of which be is a member, prays to be dismissed with bis costs.”
    Tbe relator demurred to tbe defendant’s answer upon tbe ground that tbe same does not state facts sufficient to constitute a defense.

      Messrs. Hayes & Swaim; Messrs. Smith & Clevenger; Mr. G. P. Thorp; Mr. W. C. Thompson and Mr. Ellis G. Kinkead, for relator, cited and commented upon tbe following authorities:

      Douglas v. Baker Co., 23 Fla., 419; Douglas v. Baker Co., 2 So. Rep., 776; Paola, etc., Railway Co. v. Commissioners, 16 Kan., 302; Bartlett v. Eau Claire Co., 112 Wis., 237; Bartlett v. Eau Claire Co., 88 N. W. Rep., 61; State ex rel. v. Thompson, 6 Circ. Dec., 106; 9 C. C. R., 161 (affirmed, 52 Ohio St., 665); State ex rel. v. Ermston, 8 Circ. Dec., 83; 14 C. C. R., 614 (affirmed, 57 Ohio St., 675); Sutherland on Stat. Const., sec. 448; State v. Brady, 42 Ohio St., 504; Beach on Pub. Corp., sec. 366, 297; Dillon on Munic. Corp., sec. 290; State ex rel. v. Cleveland, 8 Circ. Dec., 362; 15 C. C. R., 517 (affirmed, 54 Ohio St., 673); 11 Cyc., 403; Makemson v. Kauffman, 35 Ohio St., 453; Knoup v. Piqua Bank, 1 Ohio St., 617; Conger v. Gillmer, 32 Cal., 75; Sheppard’s Election, 77 Pa. St., 301; secs. 2966-3, 2966-4, 2966-21, 2966-22, 2966-23, 2966-26, Rev. Stat.

      Mr. John A. McMahon; Mr. C. C. Shearer; Mr. Charles Darlington; Mr. M. R. Snodgrass and Mr. R. L. Goivdy, for defendant, cited and commented upon the following authorities:

      State v. Lesueur, 103 Mo., 253; 169 Ill., 369; 50 Neb., 40; Miller v. Clark, 62 Kan., 279; Kirker v. Cincinnati, 48 Ohio St., 507; Chapman v. Miller, 52 Ohio St., 166; Randall v. State, 64 Ohio St., 57; State v. Donnewirth, 21 Ohio St., 216; State v. Miller, 62 Ohio St., 436; Osterhoudt v. Rigney, 98 N. Y., 222; Bowen v. Hixon, 45 Mo., 340; State v. Hawkins, 44 Ohio St., 98; In re Sawyer, 124 U. S., 200; Cooley’s Const. Lim. (7 ed.), chap. 9, p. 388; Mason v. State, 58 Ohio St., 30; Kearns v. Howle, 188 Pa., 120; McKane v. Adams, 123 N. Y., 609; Anthony v. Burrow, 129 Fed., 783; Fletcher v. Tuttle, 151 Ill., 41; Giles v. Harris, 189 U. S., 475; Ohio v. Kinney, 63 Ohio St., 305; Musser v. Adair, 55 Ohio St., 466; Cooley’s Const. Lim. (7 ed.), 257; Weston v. Syracuse, 158 N. Y., 275; State v. Gas L. & C. Co., 18 Ohio St., 262; Cooley’s Const. Lim., chap. 7; Murray v. Hoboken L. & I. Co., 18 How. (U. S.), 272; State v. Smith, 44 Ohio St., 348; Clark v. Lassen Co. Court, 55 Cal., 199; Gass v. Guerineau, 109 Ind., 144; Head v. Daniels, 38 Kan., 1; White v. Crow, 110 U. S., 188; Attorney General v. Supervisors, 33 Mich., 289; State v. Piper, 50 Neb., 40; Schuler v. Hogan, 168 Ill., 369; Bigelow on Estoppel (5 ed.), 687; Roemer v. Can

      vassers, 90 Mich., 27; McCrary on Elections, sec. 267; sees. 2966-22, 2966-23, Rev. Stat.
   Davis, J.

We do not know, and we have not inquired, which of these contestants is the rightful candidate of the republican party. That inquiry is not before us in this proceeding.

The relator charges that he has no plain or adequate remedy in the ordinary course of the law. If the relator had alleged that the decision of the chief deputy state supervisors and clerks of the election hoards of the several counties comprising the district had been fraudulently and corruptly procured he might, perhaps, he said to have disclosed that he did have an adequate remedy by the ordinary processes of the law in a court of equity; hut he makes no such allegation. That which he does allege in respect to fraud is that the second meeting of chief supervisors and clerks, on September 14, 1904, found “that the finding and order of said chiefs and clerks as aforesaid, made on the nineteenth day of May, 1904, were fraudulently, corruptly and collusively procured. ’ ’ But the legality of the meeting of September the fourteenth and its authority to make any finding or order whatever is the very question which is raised here; or to state the question in another form, was the decision of the chief deputy supervisors and clerks which was made on the twentieth day of May, 1904, conclusive?

The relator asserts that his right to the remedy which he seeks is clear, and that no valid excuse can be given for non-performance of the duty which he alleges to rest upon the defendant; yet after careful deliberation and very earnest discussion this court has not been able to concur in this contention. On the contrary a majority of the court concur in the opinion that the relator clearly has no right to the relief sought. The discussion of this case might well end here; for the writ of mandamus never could issue in cases of substantial doubt as to the relator’s-right, nor to compel an officer to do an act which he has no legal right to do in the absence of the writ. However, the practical importance of the question involved justifies some further explanation.

Section 2966-23, Revised Statutes, requires that objections or other questions arising in the course of nomination of candidates for. district offices, “shall be considered by the chief deputy state supervisors of elections and clerks of said election boards of the several counties comprising the district.” Such chief deputies and clerks are not thereby constituted a board with continuing functions, nor a board in any sense. Randall v. State, 64 Ohio St., 57. They are individually required to consider objections and other questions arising in the course of nominations when they arise. “Such objections and other questions” arise when “duly made in writing within five days after the filing” of the certificates of nomination and nomination papers; and certificates of nomination and nomination papers of candidates for district offices must be filed, as required by section 2966-22, Revised Statutes, “not less than twenty-five days previous to the day of election.” The latter provision does not authorize the chief deputy state supervisors of elections and the clerks of the election boards of the several counties of the district to keep open more than a reasonable time .and until twenty-five days before the election a controversy which has been properly submitted to it, but is a limitation on the power to file' such certificates and nomination papers, requiring that they shall he filed not later than twenty-five days before the election; and it is only intended to indicate to conventions and others who seek to make nominations and get them upon the ballot that they must take action in proper time before that date in order to make the nomination effectual. So that when a certificate of nomination and nomination papers have been filed, no matter when, the statute is mandatory that the same “if in apparent conformity to the provisions of this act, shall be deemed to be valid unless objection thereto is duly made in writing, within five days after the filing thereof.” But if objections have been so filed, or other questions respecting the nomination have arisen in the course of the nomination, it thereupon becomes the duty of ■ the several chief deputy state supervisors and clerks to consider them and to make a decision thereon; and the statute is mandatory in regard to their decision, “their decision shall be final.”

As to the suggestion of complications which may arise if rival nominations continue to be made and nomination papers continue to be filed up to the limit of the statute, we have only this to say, that we are not speculating over the statute to ascertain whether it is so contrived as to provide for every conceivable contingency. We are considering only the case presented in this record. Here there were only two rival nominations and both candidates and their friends had invoked the jurisdiction of the tribunal provided by the statute. That tribunal, so far as we have been advised and as it is to be presumed, proceeded strictly within the statute to a decision and the statute says that such decision shall be final. When the officials whom the statute designated were called together to determine that controversy and had proceeded in dne course to a decision, their functions as to that controversy were at an end. This was the view taken by this court in State ex rel. v. Donnewirth, 21 Ohio St., 216, and a like principle was ■applied in State ex rel. v. Miller, 62 Ohio St., 436. The following authorities also cited by counsel for the defendant support the same conclusion: McCrary on Elections, secs. 267, 268; Roemer v. Canvassers, 90 Mich., 27; Bowen v. Hixon, 45 Mo., 340.

This court* held in Chapman v. Miller et al., 52 Ohio St., 166, 176, that “the statute provides that the questions shall be summarily decided, and that the decision shall he final,” that is, that the decision is conclusive, not subject to review. This was the construction then given to the section now under review, and it was followed in Randall et al. v. State, 64 Ohio St., 57, all the judges concurring.

We are therefore unable to perceive that the meeting of supervisors and clerks in September had any authority to reconsider the controversy after it had been decided in May and after the meeting which had been called to decide that controversy had adjourned sine die.

Demurrer to answer overruled and petition dismissed.

Spear, O. J., Price and Summers, JJ., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The State of Ohio ex rel. Martin v. Thompson et al.

      Two certificates of nominations for county offices — Written objections filed to one — Validity of unobjected certificate — Section 2966-28, Revised. Statutes — Common pleas court without authority to restrain deputy state supervisor, when — Mandamus will not lie, when — Procedure in nominations.

    .Where two certificates of nominations for county offices, both claiming to be the regular nominations of the same political party are filed, and written objections are duly filed to one of such certificates and none to the other, a controversy is thereby raised as to the validity of the latter certificate and as to it the other certificate and the written objections thereto operate as written objections within the meaning of section 2966-23, Kevised Statutes; and the court of common pleas is without authority to restrain the deputy state supervisors, of the county from considering such certificates and the controversy arising thereon, and from certifying to the state supervisor of elections their failure to arrive at a decision thereon; and such court is without authority to require the deputy state supervisors, by mandamus or otherwise, to. cause the names appearing in the certificate to which specific objections were not filed to be printed on the official ballot..
    (No. 9201
    Decided November 1, 1904.)
    Mandamus.
    The facts appear in the petition, answer, demurrer to the second and third defenses of the answer and reply to the first defense, as follows:
    "The relator says that he is a republican elector of Brown county, Ohio.
    "That the defendants, F. W. Thompson, Isaac Bower, W. E. Hall and C. C. McBeth, are deputy state supervisors of elections for Brown county, Ohio, and constitute the hoard of deputy state supervisors for said county, and that H. P. Jennings is. the clerk of said board.

      “That on the nineteenth day of September, 1904, there was filed with the said board of deputy state supervisors, a certificate purporting to be a certificate of nomination for officers to be voted for at the November election of said county, signed by J. D. Houston, chairman, and J. W. Galb'reath, secretary of a republican county convention held at Georgetown, Brown county, Ohio, on September 19, 1904.
    “That on said same day, to-wit, September 19, 1904, there was filed with the said board of deputy state supervisors, a certificate of nomination signed by J. C. Martin as chairman and Thomas J. Leeds and J. O. Newcomb as secretaries of the republican county convention held at Georgetown, Brown county, Ohio, on said nineteenth day of September, 1904. Both certificates hereinbefore mentioned purported and claimed to be certificates of nominations made by the republican party of Brown county, Ohio, for officers to be voted for at the November election, 1904.
    “That thereafter, on the twenty-fourth day of September, 1904, exceptions and objections, in writing, were filed with the said board of deputy state supervisors to the certificate of nomination of the list of candidates certified by J. O. Martin, Thomas J. Leeds and J. C. Newcomb.
    ‘ ‘ That on the second day of October, 1904, said exceptions and objections came on for hearing before said board of deputy state supervisors, who having considered the objections and exceptions, and having heard the evidence offered by the contending parties, were and are unable to agree and no decision can be arrived at by said board as to which of said list of candidates, so certified, should be placed upon the official ballot as tbe candidates of the republican party in said county.
    “Section 2966-23, being section 10 of the ballot law, provides amongst other things, that objections or questions arising in the course of nomination of' candidates for county officers shall be decided by the board of deputy state supervisors of said county,, and such decision shall be final; but in case no decision can be arrived at the matter in controversy shall be submitted to the state supervisor of elections, who shall summarily decide the same and his. decision shall be final.
    ‘ ‘ That said board of deputy state supervisors and the members thereof and said clerk fail and refuse to submit the question in controversy to the state supervisors of elections as required by law.
    “Relator has no other adequate remedy.
    “Wherefore relator prays that a mandate may issue commanding said defendants, and each of them, to submit to the state supervisor of elections the matter in controversy arising out of the filing of' said certificates of nomination, the objections thereto, and the failure and refusal of said board to decide-said matter.
    “Now come W. E. Hall and C. C. McBeth, two of' the defendants, and for their answer to the petition and the alternative writ awarded by this court say:-

      “First Defense. Prior to and at the time of the filing of the petition in said action in this court, and at the time of the application for the alternative writ issued in this case, another action was pending in the court of common pleas of Brown county, Ohio, between the same parties in the relation of J. D. Houston upon the same subject, and involving the same-questions presented by the petition in this action.

      “Wherefore the said defendants pray that the petition herein and the alternative writ issued on the same be dismissed at the costs of the relator.

      11 Second Defense. They admit the allegations of the petition as to the filing of the certificates of nomination referred to therein, and as to the action of the said deputy state supervisors of elections on the objections filed to the certificate signed by J. C. Martin as chairman, and J. C. Newcomb and T. J. Leeds as secretaries, but they say that the certificate signed by J. D. Houston as chairman, etc., was filed first,, and that no objections or exceptions were ever filed to the certificate signed by said J. D. Houston as chairman and J. W. Galbreath, secretary, and that they have never refused to certify to the inability of the said deputy state supervisors of elections to come to any decision as to the objection filed to the certificate of nomination signed by said J. C. Martin,, as chairman, and T. J. Leeds and J. C. Newcomb, as. secretaries.
    “ Third Defense. They adopt and make a part of this defense the allegations of their first defense, as. though repeated herein, and further say, in the action referred to in said defense, the defendants were restrained and enjoined from certifying to the state supervisor of elections any disagreement of the deputy state supervisors of election as to the certificate of nomination signed by said J. D. Houston as chairman, etc., and that they have never refused to certify their disagreement as to the certificate of nomination signed by said J. C. Martin, as chairman, etc.
    “And now, having fully answered, they pray to be. dismissed with their costs.

      “Now comes the relator and demurs to the second and third defenses of the answer of defendants, W. E. Hall and C. O. McBeth, herein on the ground • that they do not set forth facts sufficient to constitute a defense.
    “Now comes the relator and for reply to the first defense in the answer of defendants, W. E. Hall and C. C. McBeth, says he denies each and every allegation contained in said first defense of said answer; and relator further says that the suit referred to in the first defense of said defendant’s answer was not between the same parties as is this cause before the court; that the motive of said action referred to in said first defense is fully disclosed in the certified copy of the petition in said cause and which is attached to this reply and made part thereof; and relator further says that no other petition has ever'been filed in the court of common pleas of Brown county, Ohio, involving any of the matters in controversy in this cause, except the petition of which the attached is a true copy.
    “The relator says that he is a republican elector of Brown county, Ohio.
    “That the defendants, F. W. Thompson, Isaac Bower, W. E. Hall and O. C. McBeth are the deputy state supervisors of elections for Brown county, Ohio, and together while in session constitute the board of deputy state supervisors of elections within and for said county; that W. E. Hall is the chief deputy and H. P. Jennings is the clerk of said board.
    “That on the nineteenth day of September, 1904, plaintiff and other republicans of Brown county, Ohio, deposited for filing with said chief deputy, W. E. Hall, and thereby filed with said deputy state supervisors of elections a certificate sworn to by J. D. Houston, as chairman, and J. W. Galbreath, as secretary, of a certain republican convention, held at Georgetown, Brown county, Ohio, on said nineteenth day of September, a true copy of said certificate, with the possible exception of the arrangements of names, is hereto attached, marked ‘Exhibit A’ and made a part hereof. That at the time said certificate was so filed with said "W. E. Hall as chief deputy the said H. P. Jennings was absent from the county of Brown aforesaid, or if not absent, could not. be found, so as to deposit said certificate with him.
    “That no exceptions were ever filed to said certificate and said certificate is still on file.
    “That on said nineteenth day of September, 1904, but after the certificate above referred to had been filed with said board, another and different certificate was filed with said W. E. Hall, as chief deputy aforesaid; said last mentioned certificate purports to be a certificate of the nomination of other and different candidates by the republican party of said county for the county offices mentioned in said certificate first filed with said W. E. Hall as aforesaid. ' Said second certificate was sworn to by J. O. Martin, as chairman, and Thos. J. Leeds and J. C. Newcomb, as secretaries of what purported to be another and different convention of republicans, and with the exception of perhaps the arrangement of the names and the order in which they appear, a true copy of said certificate is hereto attached marked ‘Exhibit B, ’ and made a part of this petition.
    “That on the twenty-fourth day of September, 1904, J. D. Houston and J. "W. Galbreath, as republican electors of Brown county, Ohio, duly filed with said board exceptions and objections in writing to said last mentioned certificate, for reasons stated in said exceptions, and such, proceedings were had by said deputy state supervisors of elections, that on the second day of October, 1904, said exceptions came on for hearing before them assembled as a board, and over the objections of attorney representing said exceptions said deputy supervisors attempted to determine which of said certificates was the one that should be held as valid by them, and not the question of the exceptions to said last filed certificate. Said deputy state supervisors did not agree on the issues which they tried and directed their clerk, the defendant, H. P. Jennings, to certify both of said certificates to the secretary of state of the state of Ohio for his decision, also' directing him to certify to said secretary of state their inability to agree as to which certificate was the valid and genuine certificate, for the purpose of having said secretary of state determine -which should be used by said deputy state supervisors in making up the official ballot to be voted at the next November election in said county, and unless said deputy supervisors and said clerk are restrained by an order of this court they will make such certificate to said secretary of state.
    “Your relator says that the first certificate mentioned herein should be recognized as the true and valid certificate of the nominations by said republican party and the names therein contained should be printed on the official ballot and voted at the election in said county to be held November 8, 1904, for the reason that it was filed first in time and -that no exceptions have ever been filed to it.
    “Your relator therefore prays that said deputy state supervisors and said clerk thereof be restrained by an order of this court from certifying said certificate first herein mentioned to said secretary of state for any consideration whatever or making any certificate in reference thereto or of them failing to agree on the validity thereof that a writ of mandamus issue commanding said defendants, Frank W. Thompson, Isaac Bower, W. E. Hall and C. O. McBeth to cause the names appearing on the first certificate mentioned herein to be printed on the official ballot to be voted for at the election to be held in said county on the eighth day of November, 1904, as the only republican ticket to be voted for in said county, for said offices at said election, and for all proper relief. ’ ’

      Mr. Charles Kinney, for relator, cited and commented upon the following authorities:

      McDonald v. Hinton, 14 Cal., 484; State ex rel. v. Henderson, 38 Ohio St., 649; Chapman v. Miller, 52 Ohio St., 166; Grear, In re, 9 Dec., 299; 6 N. P., 312; Hardesty v. Taft, 23 Md., 513; State ex rel. v. Ehrman, 2 Dec., 400; secs. 2966-18, 2966-23, Rev. Stat.

      Mr. G. Bambach and Mr. O. E. Young, for defendants Hall and McBeth, cited and commented upon the following authorities:

      State ex rel. v. Perry Co., 5 Ohio St., 497; Anderson Law Dic., 423; State v. Railway Co., 8 Circ. Dec., 474; 15 C. C. R., 200; State v. Henderson, 38 Ohio St., 644; State v. Tanzey, 49 Ohio St., 656; Chapman v. Miller, 52 Ohio St., 166; State v. Ottinger, 43 Ohio St., 457; Weil v. Guerin, 42 Ohio St., 299; Ex parte Chetwood, 165 U. S., 446; Ex parte Bushnell, 8 Ohio St., 599; Smith v. McIver, 9 Wheat., 532; Moran v. Sturges, 154 U. S., 256; Keating v. Spink, 3 Ohio St., 105; Dwyer v. Garlough, 31 Ohio St., 160; State v.
      Railroad Co., 35 Ohio St., 154; Totten v. Lawton, 4 Circ. Dec., 518; 8 C. C. R., 377; Mississippi v. Johnson, 4 Wall. (U. S.), 475; secs. 2966-23, 6742, 6743, Rev. Stat.
   By the Court.

The court of common pleas improperly ordered that the defendants should be restrained from certifying to the secretary of state that they were unable to agree concerning the validity of the certificates and nomination papers which had been filed with them and from making any certificate whatever 'in relation to the certificate filed by J. D. Houston, chairman, and J. W. Gr'albreath, secretary; and likewise erred in commanding the defendants to cause the names appearing on the said certificate filed by Houston and Ualbreath to be printed on the official ballot. This Houston certificate could not be “deemed valid” within the meaning of section 2966-23, Revised Statutes, if objections were duly made in writing within five days after the filing of the certificate. The statute does not prescribe the form of such objections; but it does require that they shall be in writing. The filing on the •same day of another certificate of nominations for the same offices, to which objections were afterwards formally filed by Houston and Gralbreath, necessarily operated as objections in writing to the Houston certificate; because section 2966-18, Revised Statutes, provides that, “any convention representing a political party * * * may make one nomination for ■each office to be filled at the following election,” and there being in this instance two certificates, each claiming to represent the republican party, each ex necessitate disputes the regularity and authority of the other and therefore operates as a protest against the other. Hence the Houston certificate could not he deemed valid for the reason that there had not been filed an objection to it in writing. When the defendants failed to agree upon a decision of this controversy, it was their plain statutory duty to certify that fact to the secretary of state, and in our opinion there was no warrant in law for interfering with that duty by the intervention of the court of common pleas. See Chapman v. Miller et al., 52 Ohio St., 166; Randall et al. v. State, 64 Ohio St., 57.

The demurrer to the answer will be sustained and the prayer of the relator for a peremptory writ of mandamus will be granted.

Writ allowed.

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

' Summers, J., absent.


author: By the Court. Crew, J.

text:
    The State of Ohio v. Rippeth.

      Oleomargarine — Restrictions in sale of — Sections 4200-7 and 4200-16, Revised Statutes — Sale for analysis comes under the statute — Adulteration of food.

    A person who sells or delivers oleomargarine containing coloring matter to any person interested or demanding the same, for analysis as provided in section 4200-7, Revised Statutes, is guilty of a violation of section 4200-16, Revised Statutes.
    (No. 8654
    Decided October 25, 1904.)
    Error to the Circuit Court of Tuscarawas county.
    The defendant in error was charged, by affidavit filed with P. A. Carver, a justice of the peace in and for Franklin townshp, Tuscarawas county, with having unlawfully sold and delivered to one Martin Cowen, oleomargarine to the amount of one pound, which oleomargarine then and there contained artificial (yellow) coloring matter, the name of which coloring matter was unknown to the affiant, contrary to statute in such case made and provided, etc. On this affidavit the defendant was put upon trial to a jury of twelve men. The purchaser of the said oleomargarine, Martin Cowen, is an inspector in the dairy and food department of the state of Ohio, and it appeared upon the trial that on the seventeenth day of January, 1901, the said Martin Cowen entered the grocery of the defendant in error, presented his card, which contained his name, address and official capacity, then and there stating to said defendant in error that he was a state food inspector and that he desired to see his oleomargarine. The defendant in error took said Cowen /around his counter and showed him the oleomargarine, which was done up in pound packages; Cowen said to Rippeth, I would like to have a pound of this oleomargarine for analysis, whereupon Rippeth said, all right, and delivered the oleomargarine and accepted the market price therefor. The same was taken to a chemist, Professor Hobbs, and was analyzed by him and proved to contain coloring matter.
    At the close of the testimony offered by the state the defendant made a motion to the justice to direct a verdict in his behalf. The court overruled this motion, and no evidence being offered by the defense, the ease was argued by counsel and, after a charge by the court, was submitted to the jury, who returned a verdict of guilty. Motion to set aside the verdict was filed by the defendant and overruled by the justice, A bill of exceptions was prepared, signed and allowed and proceedings in error prosecuted in the court of common pleas, where the judgment of the justice of the peace was affirmed. On petition in error in the circuit court the judgment of the court of common pleas was reversed, and this proceeding in error is prosecuted to reverse the judgment of the circuit court and affirm the judgment of the court of common pleas.

      Mr. Roscoe J. Mauck; Mr. Henry Bowers and Mr. Wade H. Ellis, attorney general, for plaintiff in error, cited and commented upon the following authorities :

      Drake v. State, 19 Ohio St., 211; Fouts v. State, 8 Ohio St., 98; Kain v. State, 8 Ohio St., 306; State v. Kelly, 54 Ohio St., 166; Dinkelbihler v. State, 6 Dec., 99; 4 N. P., 96; Commonwealth v. Murphy, 42 N. E. Rep. (Mass.), 504; State v. Hutchinson, 56 Ohio St., 573; secs. 4200-7, 4200-16, 7306a, Rev. Stat.

      Mr. James G. Patrick, for defendant in error, cited and commented upon the following authorities:
    Sections 4200-7, 4200-8, 4200-16, 4200-20, Rev. Stat.
   By the Court.

Section 4200-16, Revised Statutes, makes it a penal offense for any person to “sell or deliver” any oleomargarine which contains coloring matter. This is a police regulation imposing a penalty irrespective of criminal intent; and it contains no exception in favor of any person, nor as to whom the prohibited article may he sold or delivered, nor for what purpose. The dealer in the adulterated article has it in his possession for sale, and sells or delivers the same at his peril. He cannot shield himself by the plea of ignorance in regard to its character, nor by the plea that he made the sale for analysis or for any other purpose. State v. Kelly, 54 Ohio St., 166; State v. Hutchinson, 56 Ohio St., 573.

Judgment of the circuit court reversed and judgment of the court of common pleas affirmed.

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

Crew, J.

(dissenting). I cannot concur in the con elusion reached, by a majority of the court, that tht judgment of conviction in this case was right and should be affirmed. The affidavit filed in this case before the magistrate, and upon which the defendant, A. S. Rippeth, was put upon trial and convicted, charged that he, “A. S. Rippeth, did unlawfully sell and deliver unto one Martin Cowen a certain article, to-wit r oleomargarine to the amount of one pound, which oleomargarine then and there contained artificial (yellow) coloring matter, the name of which coloring matter is unknown to this affiant, contrary to the statute in such case made and provided and against the peace and dignity of the state of Ohio.” The offense charged in this affidavit is the unlawful sale and delivery to Martin Cowen, of oleomargarine containing artificial coloring matter, contrary to the statute in such case made and provided; and to warrant a conviction of the defendant upon this affidavit, it was incumbent upon the state to establish and prove the particular offense therein charged, to-wit: the unlawful sale to Cowen. The undisputed testimony in this case establishes the fact that Martin Cowen was an inspector in the dairy and food department of the state of Ohio, and that the oleomargarine furnished and delivered to him by Rippeth, was furnished and delivered at the request or demand of Cowen, and for the sole purpose of an alysis. Section 4200-16, Revised Statutes, provides, that: “No person shall manufacture, offer or expose for sale, sell or deliver, or have in his possession with intent to sell or deliver, any oleomargarine-which contains any methly (methyl), orange, butter-yellow, annato, analine dye, or any other coloring-matter.” Section 4200-7, Revised Statutes, provides that: “Every person manufacturing, offering or exposing for sale, or delivering to-a purchaser, any drug or article of food included in the provisions of this act, shall furnish to any person interested, or demanding-the same, who shall apply to him for the purpose, and shall tender him the value of the same, a sample sufficient for the analysis of any such drug or article of food which is in his possession.” And by section 4200-8, Revised Statutes, it is provided that: “Whoever refuses to comply,' upon demand, with the requirements of section four (section 4200-7), and whoever violates any of the provisons of this act, shall be guilty of a misdemeanor, and upon conviction shall be fined not exceeding one hundred dollars nor less than twenty-five dollars, or imprisoned not exceeding one hundred nor less than thirty days, or both. ’ ’ It will be observed that above section 4200-7, Revised Statutes, is not merely directory, but is in terms peremptory and mandatory, and a failure to comply with its provisions, is by section 4200-8, Revised Statutes, made a misdemeanor punishable by fine or imprisonment or both. If then the sample of oleomargarine furnished and delivered by Rippeth to the inspector, Cowen, on his demand, and for the purpose of analysis, was oleomargarine which Rippeth was. “offering or exposing for sale,” then such furnishing and delivery by Rippetb was, by force of the provisions of section 4200-7, made compulsory, and such furnishing would not therefore, in legal intendment , amount to or constitute a sale, inasmuch as in such transaction one of the essential elements of the contract of sale is wanting, viz.: the voluntary assent of the seller. Furthermore, section 4200-7, Revised Statutes, as we have seen, peremptorily commands and requires a dealer in oleomargarine, to furnish to the inspector, or any person demanding the same, on demand and tender of the price, a sample of such oleomargarine for the purpose of analysis, and a penalty is provided for his refusal so to do. So that, what was done by Rippeth in this ease, in the matter of furnishing or delivering to Cowen, the inspector, this sample of oleomargarine, was that only which the statute itself commanded and required him to do in that behalf, and such furnishing by him was, therefore, a compliance with and an obedience of the positive mandate of the statute rather than a transgression or violation of its provisions and requirements, and was therefore not unlawful. The statute having made the furnishing of a sample, for the purpose of analysis, obligatory and compulsory, a furnishing for such purpose is not a crime, and cannot rightfully be made a predicate for the criminal prosecution of the person so furnishing said sample. I do not question the constitutionality of section 4200-7, Revised Statutes, or the authority of the legislature to enact such statute. The provisions of said section requiring the manufacturer or dealer, upon demand and tender of the price, to furnish for the purpose of analysis a sample of the article offered or exposed for sale by such manufacturer or dealer, is I think a reasonable provision and requirement, and such an one as it is within the authority of the legislature to enact as an appropriate and necessary means for making effectual the various provisions of the so-called “pure food laws,” which laws have for their purpose the protection of the public health. But I cannot assent to the interpretation and effect given the provisions of this section, and that of section 4200-16, by the majority of the court.' Certainly I think, it could never have been intended by the legislature that such compulsory furnishing, although the price be accepted by the dealer, should, within the meaning of section 4200-16, constitute an unlawful sale, or that such transaction should of itself furnish grounds for the criminal prosecution of the person so furnishing or delivering said sample. To so construe this statute as to give it such effect, is not only to impute to the legislature an intention to exercise a power which clearly it does not possess, but is to make the statute itself invalid; for the legislature is without right to make unlawful and criminal the doing .of the very thing which by positive enactment it commands and enjoins to be done. A construction that gives to this statute such an effect and produces such a result, offends against reason and good conscience, renders the statute invalid, and should not therefore be adopted. Section 4200-7, is, as stated in the majority opinion of the court, a police regulation, and it was doubtless thereby intended to provide a means whereby the state could procure, by compulsory process, from the manufacturer or dealer in any drug or article of food, a sample thereof for the purpose of analysis, to the end, that evidence of adulteration, etc., might thus be obtained, for use in a proper case; and the enforcement of the “pure food laws” thereby be made the more effectual. But it was never intended by tbe legislature that the furnishing- or delivery of such sample for the purpose of analysis, in obedience to the express command of the-statute, should itself be unlawful, or that such compulsory furnishing for such purpose should be a. crime, and I shall lose my respect for the law when it so far loses its character for justice, as to make highly penal, the doing of an act, the performance of' which it peremptorily commands and enjoins as a duty. For the reasons above stated I am of opinion that the judgment of the circuit court, reversing the* judgment of conviction in this case, was right and should be affirmed.