that the creation of the office of deputy supervisors in each county by appointment under the state supervisor, as provided for in this act is also in violation of Art. X, sec. 1, of the constitution. It is also claimed by him that even though the act is constitutional, the abstracts of the returns which have been transmitted to the secretary of state are illegal and should be rejected by the defendants, in that they have not been canvassed and signed by the proper officers.

I am aware that some confusion arises from the fact that these acts of the legislature were all passed on the same day; but looking at the evident intention of the legislature from the several provisions contained in the acts, there can be but little doubt but that the effect has been to create the board of deputy supervisors for each county, and to vest in them the authority and the duty of canvassing the returns from the several precincts in their counties respectively, make abstracts of the same and transmit the abstracts to the proper officers; and to relieve the clerk of the court and the justices of the peace from the duties of making such canvass, and the clerk from certifying and transmitting the abstracts as required before the passage of these acts.

It seems to me this is the only reasonable conclusion which can be arrived at in the light of all the provisions in these several acts, and is warranted by the ordinary and well settled rules of construction. Hirn v. State, 1 Ohio St., 15; Fuller v. Coates, 18 Ohio St., 343; Sturdevant v. Tuttle, 22 Ohio St., 211; Moore v. Green, 39 Ohio St., 661; Beaver v. Trustees, 19 Ohio St., 97; Miller v. State, 3 Ohio St., 475; 28 Ohio St., 521; 25 Ohio St., 283; Cooley on Const. Lim., 617; Sedgwick on Stat. and Const. Law., 225, 247.

On the contrary, I can find no reason for the construction of these statutes, which would require that the clerk and justices should have canvassed the returns, either by themselves, or in connection with the deputy supervisors, unless upon the theory that the act creating the deputy supervisors is unconstitutional, and therefore should have been disregarded. But this proposition would hardly be insisted upon as tenable.

But even if these acts, being construed together required the election returns to have been canvassed by the clerk of the court and justices, and certified and transmitted by the clerk, in connection with the deputy supervisors, or that these duties should have been performed by these officers, without the deputy supervisors (which latter construction could only be given by treating the supervisors' act as either repealed by implication or as being in violation of the constitution), still I think this would not furnish sufficient grounds for setting aside the returns which have been made by the supervi sors. Certainly not, if the requirement was that they should have been made and returned by the clerk of the court in connection with the supervisors. The authorities are abundant on this proposition. A common rule of construction of statutes is that when they direct certain proceedings to be done in a certain way or at a certaiu time, and a strict compliance with these provisions of time and form does not appear essential, the proceedings are held valid, though the command of the statute is disregarded or disobeyed. "In these cases, by a somewhat singular use of language," says Mr. Sedgwick, the statute is said to be directory. Sedgwick, page 368. See also Shelby v. Com's, etc., 1 Ohio St., 77; Miller v. State, 3 Ohio St., 475; Pine v. Nicholson, 6 Ohio St., 176; Fry v. Booth, 19 Ohio St., 25; Lehman v. McBride, 15 Ohio St.,

337

State ex rel. v. Governor et al.

573; State ex rel. v. Harris, 17 Ohio St., 608; 38 Penn. St., 270; 46 Penn. St., 359; 18 N. Y., 221; 26 N. Y., 514; 39 N. Y., 198; 1 Allen, 476; 4 Bla. Com., 207; 10 Am. L. Reg., N. S., 577; Cooley's Const. Lim., 617.

This rule has been carried so far as to hold that where a statute directed the vote of the common council of the city of New York to be taken by ayes and nays, this provision is merely directory. Stoker v. Kelly, 7 Hill, 9.

And, again, it has been decided that the provisions of a statute, requiring inspectors of corporate elections to take an oath, is only directory. In re Hudson R. R. Co., 19 Wend., 143.

The rule has also been applied to popular elections, and an election has been held valid, though the inspectors were not sworn as prescribed by the statute, and kept the polls open after the time fixed by law, and committed other minor irregularities, there being no actual evidence of fraud, and no proof that the irregularity complained of had produced an improper result. People v. Cook, 14 Barb., 259 and 4 Seld., 88, 89, 93.

And a strict compliance with the provisions of the statute is not essential to the validity of the proceedings, unless it be so declared in the statute. Same, and see 12 Am. L. Reg., 409.

So, if inspectors of elections come into office, by color of title, that is sufficient to constitute them officers de facto.

And acts done by those who are officers de facto are good and valid as regards the public, and third persons who have an interest in their acts; and their title to the office cannot be inquired into collaterally. This doctrine has been applied to cases where the official duty of_the officer, in its nature, consists in the performance of a single act. People v. Cook, 14 Barb., 259-261.

"The omissions of officers, conducting elections, through negligence, mistake or inadvertence, to comply with all the directions of the statute," say the court in this case "ought not to be allowed to disfranchise the electors." Same; see also 4 Cowen, 297; The people ex rel. v. Vail, 20 Wend., 14; 3 Hill, 42; 5 Denio., 409; Strong Petitioner; 20 Pick., 484-494.

Election statutes are to be tested like other statutes, but with a leaning to liberality, in view of the great public purposes which they accomplish; and except where they specifically provide that a thing shall be done in the manner indicated, and not otherwise, their provisions designed merely for the information and guidance of the officers must be regarded as directory only, and the election will not be defeated by a failure to comply with them, provided the irregularity has not hindered any who were entitled, from exercising the right of suffrage, or rendered doubtful the evidence from which the result was to be declared. Cooley on Const. Lim., 618; see also McCrary on Elections, sec. 127.

Those provisions which affect the time and place of the election, and the legal qualifications of the electors are generally of the substance of the election, while those touching the recording and return of the legal votes received, and the mode and manner of conducting the mere details of the election are directory. McCrary, same section.

The objection to the abstracts now in the hands of the defendants, in this view of these acts of the legislature simply comes to this: that the canvass of precinct returns was made and signed by the deputy supervisors alone, whereas they should have been made and signed by the clerk of the court with two justices of the peace, and the deputy super

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visors. Can this be regarded as anything more than an irregularity-a non-compliance with statutes which are directory in these respects?

It is not asserted that the result would have been different, if the returns had been otherwise canvassed, and there is no pretense that any fraud was committed in any of the elections.

The principle is that irregularities which do not tend to affect results, are not to defeat the will of the majority; the will of the majority is to be respected even when irregularly expressed. Juker v. Com., 20 Penn. St., 493.

The officers of election may be liable to punishment for a violation of the directory provisions of a statute, yet the people are not to suffer on account of the default of their agents. McCrary on Elections, sec. 128, and numerous authorities there cited.

Some cases may be found holding otherwise, as in the case of Niblack v. Walls, 42d Congress, cited by counsel, where county returns were rejected because signed by a single judge, whereas they were required to be signed by a judge, clerk and justice; but they are not in accord with the decided weight of authority; besides I think it will be found that on examination, most of them involve the additional ingredient of fraud; and it might be that a different rule would prevail in case of a direct contest between candidates.

Another objection is made by counsel for relator to the abstracts as made, is that the law creating the office of state supervisor and deputy supervisors is in violation of the constitution, and if his right to the writ of mandamus as prayed for was otherwise clear, this question would in my judgment be a very serious one, even under the most liberal construction which could be given to that act.

Whether or not, the general assembly, under the prohibition of the constitution as to the power of appointment and the further requirement that county and township officers shall be elected, may create the office of state supervisor of elections, and by legislative appointment invest the secretary of state with the duties of that office in addition to his own, empowering him to appoint deputy supervisors in each county in the state, who in turn may appoint all the judges and clerks of elections in all the precincts throughout the state, and thus place the machinery for holding all the elections in the state under the control and supervision of one officer, and that officer appointed by the legislature, would in my judgment, in a proper case, present a question for very serious consideration.

It is true some limitation is placed on his authority, by providing a certain method or plan of appointment as to the deputies, and also as to the appointment of the judges and clerks in the precincts, but the appointments are nevertheless made by him either directly or through deputies appointed by him.

The arguments of counsel for the relator, and authorities cited by them, present strong reasons for holding that the supervisors' act contravenes at least two sections of the state constitution.

If the supervisors' act were held to be unconstitutional, whether it would not then leave standing in force, the act which provides for the canvassing of the returns by the clerk and justices, and what effect could then be given to abstracts of the vote not signed by these officers -abstracts not signed by any lawful authority-would be important questions also involved, if a proper case were presented, requiring their determination.

337

State ex rel. v. Governor et al.

But in the view I have taken of this application, it does not become necessary for me to undertake the task of answering these questions one way or another. And I am the more willing to do so, not only on account of the gravity and responsibility of their determination, involving as they do, two sections of our state constitution, but because I am well satisfied that the relator is not entitled to the writ upon other grounds, whatever view might be taken as to the act in question being constitutional or otherwise.

The right to the writ of mandamus is regulated by statute in our state, in the first instance, and is defined to be a command to some board, tribunal or person to perform some act which the law specifically enjoins as a duty resulting from an office, trust or station. Section 6741, Rev. Stat.

And the writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law. Sec. 6744.

To entitle the relator to the writ of mandamus, under our statute and under numerous decisons of the courts, he must show a clear right to the specific remedy thus sought. If he has an adequate remedy at law, he is not entitled to it. And if the remedy is not effective, he is not entitled to it. State ex rel. v. Berry, 14 Ohio St., 315; State ex rel. v. Foster, 38 Ohio St., 599; R. R. v. Comrs. Clinton Co., 1 Ohio St., 77; Shelby v. Hoffman, 7 Ohio St., 450; State ex rel. v. B'd of Education, 42 Ohio St., 374; State ex rel. v. McGregor, 44 Ohio St., 628; Dalton vState ex rel., etc., 43 Ohio St., 652.

And there must be some beneficial interest in the relator to be subserved by the allowance of the writ. State ex rel. v. Turnpike Co., 16 Ohio St., 308; Same v. Comrs., etc., 20 Ohio St., 425; Moses on Mandamus, 124.

In the case of State ex rel. v. Berry, above referred to, where a writ of mandamus was applied for, to compel the clerk of the court to correct certain returns, which it was alleged, had been improperly rejected by him, the court denied the writ, holding that a contest on appeal to the court of common pleas is the specific remedy provided by statute for the correction of all errors, frauds and mistakes which may occur in the process of ascertaining and declaring the public will, as expressed through the ballot boxes." And further that "when it can be seen, that the writ, in its operation, must prove abortive and fruitless to the relator, the writ will not be issued to compel its performance."

The law does not, and the courts governed by law, cannot require the performance of a vain thing. People ex rel. v. Supervisors, 12 Barb., 217.

"The court will refuse the writ," says Tapping, "if it be manifest that it must be vain and fruitless, or cannot have a beneficial effect." Tapping on Mandamus, 17.

In the case of Dalton v. State, 43 Ohio St., 653, the court hold that the jurisdiction which sec. 6, art. 2, of the constitution confers upon each house of the general assembly "to judge of the election, returns and qualifications of its own members' is exclusive, and that a pretended judicial determination of any other tribunal, in form deciding that a candidate for either house is elected, is a nullity.

The same is true of the congress of the United States. Sec. 5, art. 2, Const., U. S.

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The jurisdiction of each house to decide upon the election, returns and qualifications of its own members is supreme and exclusive. Cooley Const., Lim. p, 133.

The remedy, the court hold in Dalton v. State is by contest before the branch of the general assembly for which the party is a candidate.

In the case of State ex rel. v. McGregor, 44 Ohio St., 628, above referred to, the court held that the clerk of the court of common pleas and the justices called to his assistance to abstract the votes of an annua! election, cannot be required by a mandamus to abstract votes cast for a person for an office, unless the same is required to be filled by the electors at such election." And this for one simple reason, "that it would not help the relator."

The writ will not issue upon the information of a private citizen to secure the enforcement of a purely public duty. State ex rel. v. Murphy, 2 Circ. Dec., 190.

The rule is well stated in State ex rel. v. Bickman, 2 Circ. Dec., 526. To entitle the relator to the writ, he must plead issuably all the facts necessary to show dereliction on the part of the officer against whom the writ is prayed; he must also show by proper averments that facts which would justify the omission complained of do not exist; that the relator has a clear right to the performance of the act which he asks the court to order; that he will be prejudiced by its non-performance, and that he has no other adequate remedy.

The writ at common law, was a high prerogative writ, usually issuing out of the highest court of general jurisdiction, directing a person, corporation or inferior court to do some particular thing therein specified, and which pertained to their office or trust. 3 Blackstone's Com., 110; 4 Bacon's Abr., 495.

It is the absence of a specific legal remedy which gives the court jurisdiction. 2 Sel. N. P. under title of Mandamus; Com. ex rel. v. Supervisors, etc., 29 Penn. St., 121; Same v. Com. Council, etc., 34 Penn. St., 496.

But the party must have a perfect legal right. 27 Mo., 225; 11 Ind., 205; 20 I11., 525; 25 Barb., 73; Bouvier's Law Dic., 142.

The rule as stated in Com. ex rel. v. The Select and Common Council, etc., 34 Penn. St., 496, is that if there be a clear legal right in the relator, a corresponding duty in the defendant and a want of any other adequate and specific remedy, a writ of mandamus will lie.

Applying the foregoing principles to the case of the relator, as stated in his petition, is he entitled to the writ?

It seems to me, clearly he is not. The "remedy"-if it may be called a remedy-sought is somewhat novel and singular. He asks that the defendant be required to reject all the abstracts which have been made and signed by the deputy supervisors, and his petition shows that these are the only abstracts which have been transmitted to the secretary of state, and then he asks that they make a legal canvass of the vote of the state.

In what manner they are to make a legal canvass, or any other canvass, if the returns, and the only returns in their possession, are thrown out, is not explained.

A command of this kind would certainly be a vain and meaningless thing. It would in effect be a command to reject the returns they have, and-do nothing.