Statement of the Case.

event of his election, only the portion of the salary payable out of the state treasury; that he would perform his official duties for such sum and would decline to accept any portion of the statutory portion of the salary payable out of the county treasury. Other statements in the circulars were in support of the combination of the common pleas court with the probate court at a saving of $2,150 to the county by the abolishment of the latter court; and if the courts should not be combined by the popular vote at such election he agreed not to accept the $625 lawfully payable out of the local treasury, nor the additional amount of $1,000 payable from the same source in the event of combination, but to accept only the $3,000 remuneration per annum payable out of the state treasury, and to perform, in the event of his election, his judicial duties for that

sum.

There is no allegation that any or a sufficient number of voters were induced by these alleged promises to avoid the declared result, but the allegation is that these published statements "were used as an argument by said Prentiss and by his friends, at his request, for the purpose of inducing the electors" to vote for him for such office. These circulars were numerous, widely circulated, and contained vigorous attacks upon the judicial salary system and repeated promises to decline all local salaries if the voters should elect him to this office. On November 12, before Prentiss' induction into office, the petition for contest was filed.

On the trial the contestee admitted the authorship of the circulars and testified that he supple

Opinion, per JONES, J.

mented them by similar statements in his campaign speeches.

No evidence was offered that any voter was actually induced to vote by reason of the promises made.

The court of appeals adjudged the election invalid, that Prentiss had no right and title to the office, and ousted him therefrom, and refused to order the induction of the contestor. This proceeding is to reverse that judgment.

Mr. Smith W. Bennett; Messrs. Brown, Hahn & Sanger; Mr. Holland C. Webster and Mr. James Donovan, for plaintiff in error.

Messrs. Smith, Beckwith & Ohlinger; Mr. Alex. L. Smith, and Messrs. Bailey & Leasure, for defendant in error.

JONES, J. Section 26 of the corrupt practices act (102 O. L., 327), now Section 5175-26, General Code, provides that any person is guilty of a corrupt practice if he, in connection with or in respect of any election, contributes or offers to contribute any money or valuable consideration for any other purpose than those detailed therein. It provides further that any offer to contribute or expend any money or thing of value for any purpose whatever, except as therein provided, "is hereby declared to be corrupt practice and invalidates the election of any person guilty thereof."

The acknowledged action of the plaintiff in error in connection with his campaign for common pleas judge of Henry county, in the distribution and cir

Opinion, per JUNES, J.

culation of the circulars in question, fell within the inhibition of that section of the corrupt practices act of this state.

In the event of his election to the office of common pleas judge the law had made express provision for a stipulated salary, part of which was to be paid him by the state and part by the county. It is but little less reprehensible that, for the purpose of inducing election, he should promise to refund to the community as a whole that portion of the salary he should receive from the county than to offer to contribute to the taxpayers individually their pro tanto proportion of the amount of salary forgiven. In the latter event the taxpayer is required to pay less taxes, irrespective of the personal fitness of the candidate.

In The State, ex rel. Bill, v. Elting, 29 Kans., 397, a keen analysis of promises of this character, made for the purpose of inducing election, was made by Judge Brewer, afterwards a member of the supreme court of the United States. He said:

"The theory of popular government is that the most worthy should hold the offices. Personal fitness and in that is included moral character, intellectual ability, social standing, habits of life, and political convictions-is the single test which the law will recognize. That which throws other considerations into the scale, and to that extent tends to weaken the power of personal fitness, should not be tolerated. It tends to turn away the thought of the voter from the one question which should be paramount in his mind when he deposits his ballot. It is in spirit at least, bribery, more insidious, and

Opinion, per JONES, J.

therefore more dangerous, than the grosser form of directly offering money to the voter."

There is a wide difference between a promise of this character and those multifarious pledges made by candidates in the interest of reform, economy and a rigid and effective administration of office in compliance with their official oaths. The latter are made in the public interest and are consistent with personal fitness; the former savors of vicious tendencies, involving a personal pecuniary consideration offered by the candidate in order to accomplish his election, in which the test of fitness is not an element.

At common law, practices involving the sale or purchase of public office were condemned as subversive of government and against public policy. Our legislation, in the interest of purity of elections, has stamped the common-law policy upon our election laws. Promises of a character similar to those made by the plaintiff in error have been held in other jurisdictions to be an offense invalidating the election of the promisor. The State, ex rel., v. Elting, supra; Carrothers v. Russell, 53 Iowa, 346; State, ex rel. Newell, v. Purdy, 36 Wis., 213; Bush v. Head, 154 Cal., 277.

Owing to the severe penalties imposed by the act, inflicting punishment by way of fines and imprisonment, the forfeiture of office and invalidating the election of the person offending, the whole scope and intent of the act is to impose such penalties on those who wilfully commit the offenses named. If intention is absent, no offense has been committed. In the present case the plaintiff in error did wilfully

Opinion, per JONES, J.

offend against the act, and rested his defense on the claim that he had a lawful right to do what he did.

2. It is insisted, however, by counsel for plaintiff in error that the "ground" set forth in the petition for contest is not of such character that may be invoked under the election contest statutes of our state.

Section 5137, General Code, provides for an appeal to the court of appeals from the decision of the convassing board "which finds and declares the result of the election."

Section 5138, General Code, provides that the appeal shall be by petition, which shall set forth "upon what grounds the election is contested."

Section 5143, General Code, provides that the courts shall determine the contest without the intervention of a jury, and may render such judgments and make such orders as the law and facts warrant, including judgment of ouster and induction.

It will be observed that the statutes of this state do not enumerate any specific grounds upon which a contest may be undertaken. Many of the states provide in detail the nature and character of the grounds upon which the contest may be based, but it is not so in this state. However, under the statutes noted, any grounds may be set forth in the petition which have the effect of determining the actual result of the election, in order to determine who received the highest number of votes thereat.

While no provisions have been made in our law as to the specific grounds of contest, their character may be gleaned from those employed in the case of Howard v. Shields, 16 Ohio St., 184. The contest