Opinion
No. 29588
Decided November 17, 1943.
Elections — Conduct a state function — Section 2, Article X, and Section 1, Article XVII, Constitution — Members of boards of elections act under Secretary of State — Contract by board of elections — Section 4785-13, General Code — Certificate of fiscal officer that funds available, not required — Section 5625-33 (d), General Code — Board of elections not subdivision or taxing unit — Section 5625-1, General Code.
1. Under the mandatory provisions of Section 2, Article X and Section 1, Article XVII of the Constitution of Ohio, and the statutes passed pursuant thereto, all matters pertaining to the conduct of elections are state functions.
2. Members of the boards of elections act under the direct control of and are answerable only to the Secretary of State in his capacity as the chief election officer of the state. They perform no county functions and are not county officers.
3. A contract entered into by a board of elections pursuant to the provisions of Section 4785-13, General Code, does not require a certificate of any fiscal officer that essential funds are available as provided in Section 5625-33 (d), General Code.
4. The provision of Section 5625-33 (d), General Code, requiring a certificate of a fiscal officer, has application only to a contract made by a subdivision or taxing unit. A board of elections does not come within the definition of a subdivision or a taxing unit under Section 5625-1, General Code.
IN MANDAMUS.
This action originated in this court. In the petition it is alleged that the Board of Elections of Lorain county ordered and the relator furnished pollbooks and tally sheets which were used in the general election held on November 4, 1941; that the board approved the invoice of relator in the sum of $647 for the supplies so purchased, which invoice, so approved, was delivered to respondent as auditor of Lorain county; and that respondent refused and still refuses to issue his warrant upon the treasurer of Lorain county for payment of such sum.
For the second cause of action it is alleged that in 1942 the board of elections ordered and relator furnished pollbooks and tally sheets which were used in the election held on November 3, 1942; that the board approved the invoice of relator in the sum of $590.75 for the pollbooks and tally sheets so purchased, which invoice, so approved, was delivered to respondent as auditor of Lorain county; and that respondent refused and still refuses to issue his warrant upon the treasurer of Lorain county for the payment of such sum.
The prayer of the petition is that a writ of mandamus may issue to compel respondent to execute and deliver to relator warrants drawn upon such treasurer for the respective amounts with interest.
The respondent filed a general demurrer to the petition for the reason "that it fails to state a cause of action against the respondent." (Italics ours.)
Mr. Albert M. Calland, Mr. Joseph V. Ralston and Mr. Don W. Myers, for relator.
Mr. William G. Wickens, prosecuting attorney, for respondent.
The sole question for determination is whether the petition is fatally defective in failing to allege that there was attached to the orders certificates of the county auditor as required by Section 5625-33, General Code.
This section, insofar as applicable in the instant case, reads as follows:
"No subdivision or taxing unit shall: * * *
"(d) Make any contract or give any order involving the expenditure of money unless there is attached thereto a certificate of the fiscal officer of the subdivision that the amount required to meet the same * * * has been lawfully appropriated for such purpose and is in the treasury or in process of collection to the credit of an appropriate fund free from any previous encumbrances. Every such contract made without such a certificate shall be void and no warrant shall be issued in payment of any amount due thereon. * * *" (Italics ours.)
Section 5625-33, General Code, is part of the uniform tax levy law (Sections 5625-1 to 5625-39, inclusive, General Code), and it should be noted in passing, has reference only to a subdivision or taxing unit.
Section 5625-1, General Code, defines the terms used in the uniform tax levy law and reads in part as follows:
"The following definitions shall be applied to the terms used in this act:
"(a) 'Subdivision' shall mean any county, school district, except the county school district, municipal corporation or township in the state. * * *
"(i) 'Taxing unit' shall mean any subdivision or other governmental district having authority to levy taxes on the property in such district or issue bonds which constitute a charge against the property of such district including conservancy districts, metropolitan park districts, sanitary districts, road districts and other districts." (Italics ours.)
It is not seriously contended that a board of elections comes within the statutory definition of either a subdivision or a taxing unit.
The argument of respondent is that the members of the board of elections are county officers and that any sums due on contracts made by the board, requiring the expenditure of public funds are paid from the county treasury; therefore such contracts are included within the meaning of Section 5625-33 (d), General Code.
To determine whether members of the board are county officers it is necessary to consider the history and duties of such boards.
Section 1, Article III, and Section 1, Article XVII of the Constitution fix the time of holding elections. Section 2 of Article III fixes the term of office of all executive elective state officials. Section 2 of Article XVIII grants to the General Assembly the power, within specified limits, to fix the terms of all elective county, township, municipal and school officers; further grants to the Governor the power to fill certain specified vacancies; and grants to the General Assembly the power to provide by law the manner of filling vacancies of all other elective offices.
A consideration of the mandatory provisions of Sections 2 and 27 of Article II (legislative), Section 1 of Article III (executive), Section 2 of Article IV (judicial), Sections 1 to 7 of Article V (elective franchise) and Sections 1 and 2 of Article XVII of the Constitution makes it abundantly clear that all matters pertaining to the conduct of elections are state functions.
Pursuant to the constitutional grant of power the General Assembly has enacted the election code. (113 Ohio Laws, 307, Sections 4785-1 to 4785-234, inclusive, General Code.)
In the prior election code the Secretary of State was designated as the "state supervisor and inspector of elections" (Section 4787, General Code of 1910, 97 Ohio Laws, 218), and the boards (now designated as the boards of elections) were designated as boards of "deputy state supervisors and inspectors of elections." (Section 4788, General Code of 1910, 98 Ohio Laws, 288.)
In the present code the General Assembly has changed the name of the boards from deputy state supervisors and inspectors of elections to boards of elections; their duties, however, are prescribed in almost identical language. There is no language in any of the present sections of the code to indicate any legislative intent to make the members of the boards of elections county officers.
Section 4785-6, General Code, provides:
"The Secretary of State, by virtue of his office, shall be the chief election officer of the state, with such powers and duties relating to the registration of voters and the conduct of elections as are prescribed in this act. * * *"
Section 4785-7, General Code, reads in part as follows:
"It shall be the duty of the Secretary of State to appoint, in the manner provided by law, all members of boards of elections, to advise with members of such boards as to the proper methods of conducting elections; to prepare rules, regulations and instructions for the conduct of elections; to publish and furnish to the boards from time to time a sufficient number of indexed copies of all election laws then in force; to edit and issue all pamphlets concerning proposed laws or amendments required by law to be submitted to the voters; to recommend to boards of elections the form of registration cards, blanks and records; to determine, in the manner provided by law, the forms of ballots, the forms of all blanks, cards of instructions, pollbooks, tally sheets, and certificates of election; to prepare the ballot title or statement to be placed on the ballot for any proposed law or amendment to the Constitution to be submitted to the voters of the state; to certify to the several boards the forms of ballots and names of candidates for state offices, and the form and wording of state referendum questions and issues, as they shall appear on the ballot, to the several boards * * *."
Section 4785-8, General Code, provides in part:
"There shall be in each county of the state, a board of elections consisting of four qualified electors of the county, who shall be appointed by the Secretary of State, as representatives of the Secretary of State, to serve for the term of four years and until their successors have been appointed and have qualified." (Italics ours.)
Section 4785-11, General Code, provides in part:
"The Secretary of State may summarily remove any member of a board of elections * * * for neglect of duty, malfeasance, misfeasance, or nonfeasance in office, for any wilful violation of the election laws; or for any any other good and sufficient cause."
Section 4785-13, General Code, defines the duties of the board.
Paragraph f thereof reads:
"To advertise and contract for the printing of all ballots, and other supplies used in registrations and elections." (Italics ours.)
This paragraph made it the mandatory duty of the board to purchase the supplies which were ordered from and supplied by relator.
Section 4785-20, General Code, reads in part:
"* * * Payments shall be made upon vouchers of the board certified to by its chairman or acting chairman and the clerk or deputy clerk, upon warrants of the auditor. * * *"
From a reading of the sections quoted as well as other sections of the election code we think the conclusion is inescapable that members of boards of elections act under the direct control of and are answerable only to the Secretary of State and are in law and fact deputies of the Secretary of State in his capacity as the chief election officer of the state. They perform no county functions and are not county officers.
To sustain the contention of the respondent that the members of the boards of elections are county officers would mean that contracts for all supplies for holding elections come within the meaning of the provisions of Section 5625-33 (d), General Code. By such a holding this court would in effect place in the hands of county officers the power to set at naught the mandatory provisions of Section 2, Article X and Section 1, Article XVII of the Constitution as to the holding of elections. Such a conclusion would do violence to the manifest intent as well as the plain language of the Constitution.
Since 1925 the exact question here presented has been considered four times by the office of the Attorney General. In each instance it was his opinion that Section 5625-33 (d), General Code, had no application to contracts entered into by a board of elections. See Opinions of Attorney General (1925), 479, No. 2638; (1925) 656. No. 2844; Vol. 3 (1928), 2190, No. 2629; Vol. 2 (1930), 887, No. 1961.
These opinions have been acted upon by the public officers for a long period of years, are entitled to serious consideration, and should not be rejected unless such a result is necessary from the plain language of the statute.
We think that under the Constitution and the statutes passed pursuant thereto all matters pertaining to the conduct of elections are state functions; that members of boards of elections perform no county functions and are not county officers; and that contracts entered into by boards of elections pursuant to Section 4785-13, General Code, do not come within the provisions of Section 5625-33 (d), General Code.
It follows, therefore, that the demurrer to the petition should be and hereby is overruled.
Demurrer overruled.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and WILLIAMS, JJ., concur.
TURNER, J., not participating.