Argument for Respondents. statute, to all the rights, privileges and advantages of every other nominated candidate. Any statute which attempts to take from him advantages or privileges, which are not taken from other candidates, or to impose burdens, restrictions, conditions, disabilities or disadvantages upon him which are not imposed on others, is unconstitutional. Such a statute attempts to discriminate unjustly and unlawfully between candidates. If "the electors' choice of persons for office, to be effective, must be from party candidates," as this court has said in State, ex rel., v. Felton, 77 Ohio St., 570, then we must have party candidates. Mr. Philip Roettinger and Mr. Thomas Bentham submitted a brief defending the constitutionality of the act in behalf of a committee having in charge the campaign of certain candidates, nominated for judges of the common pleas court by the Hamilton County Bar.-Reporter. In their brief, counsel say: In this connection we call attention to the act passed in 1906 (98 O. L., 116), providing for the election of members of the boards of education by a separate ballot and the fact that the entire state has acquiesced in this law, and likewise the well-known fact that the law has carried out beneficially the intention of the legislature in that regard. The purpose was to eliminate the boards of education from politics and we fail to see why the same purpose should not, even to a greater extent, be carried into effect as to the judiciary. And we further call attention to the fact that the boards of education are not Opinion of the Court. recognized by a separate classification in our constitution as is true of the judiciary. The supreme court of Ohio, in our judgment, has frequently given expression to principles of law which require that the non-partisan judicial ballot should be sustained and the petition of the relators dismissed. Monroe v. Collins, 17 Ohio St., 666; Gentsch v. State, ex rel., 71 Ohio St., 164; State, ex rel., v. Felton et al., 77 Ohio St., 586; Lewis v. McElvain, 16 Ohio, 348. DONAHUE, J. The case of State, ex rel. Weinberger, a Taxpayer, v. Daniel T. Miller et al., is a proceeding in error to reverse the judgment of the circuit court of Cuyahoga county. The case of State, ex rel. Fritch, v. Board of Deputy State Supervisors of Elections for Summit County, et al., is an action in mandamus filed originally in this court, and the only question arising in both of these cases, is the question of the constitutionality of the act of the legislature passed February 17, 1911 (102 O. L., 5), entitled, "An act to provide for the election of judicial officers by separate ballot." It is claimed on the part of the relator, in each of these cases, that this act is unconstitutional for the following reasons: 1. It is in violation of Section 2, of Article V, requiring that all elections shall be by ballot. 2. It is in violation of Section 1, of Article V, providing that all citizens possessed of the requisite qualifications shall be entitled to vote at all elections. 3. It is in violation of Section 26, of Article II, in that it does not operate uniformly upon the subject-matter of elections. Opinion of the Court. Before discussing in detail any of these objections to the validity of this legislation, it might be profitable to consider briefly the right and authority of a court to declare statutes unconstitutional, and when and under what circumstances a court should do so. These subjects have been considered in a great many reported cases in the Supreme Court of the United States, in this court, and in the supreme court of other states of the Union, but nowhere is the principle involved more clearly stated than in the opinion of Chief Justice Marshall in the case of Marbury v. Madison, 1 Cranch, 137. In that case it is said: "That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. * * * The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. * It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it." * * There can be no honest controversy but that the written constitution of the state is the paramount law, and while courts are required to accept the law as given them by the lawmaking power of the state, yet when that law is clearly in conflict with the constitution under authority of which it Opinion of the Court. was enacted, it is the duty of the court to sustain the paramount law and refuse to enforce any and all legislation in contravention thereof. Any other course would lead to the destruction of the constitution, which is the supreme law written by the supreme power of the state, the people themselves. The oath of office administered to every judge requires him to support the Constitution of the United States and the Constitution of the State of Ohio. It follows, therefore, that the question of the constitutionality of an act of the general assembly is a question that appeals to the conscience of the court, as well as the conscience of the individual members of the legislature, and by the very terms of his oath of office it becomes the duty of a judge to refuse to enforce any act of the legislature in conflict with the constitution. It by no means follows, however, that a court should refuse to give full force and effect to an act of the general assembly of the state because its constitutionality is doubtful. Upon this question the same high authority, Chief Justice Marshall, in the case of Fletcher v. Peck, 6 Cranch, 87, declared: "It is not on slight implication and vague conjecture, that the legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the constitution and the laws should be such, that the judge feels a clear and strong conviction of their incompatibility with each other." Judge Ranney in writing the opinion of this court in the case of C. W. & Z. Railroad Co. v. Commissioners, 1 Ohio St., 77, uses this language: "It is never to Opinion of the Court. be forgotten, that the presumption is always in favor of the validity of the law; ard it is only when manifest assumption of authority, and clear incompatibility between the constitution and the law appear, that the judicial power can refuse to execute it. Such interference can never be permitted in a doubtful case. And this results from the very nature of the question involved in the inquiry." In the case of C. C. C. & St. L. Ry. Co. v. Wells, 65 Ohio St., 313, Davis, J., in writing the opinion of this court, epitomizes all the authorities on this question and gives expression to the principle to be deduced therefrom in this clear and forcible language: "It is not the duty of the courts, and they will not make haste, to declare a statute void upon a mere suggestion of conflict with the constitution. On the contrary, it is a principle firmly imbedded in our jurisprudence that it must be a clear infraction of the constitution which will authorize the courts to intervene and overthrow an act of the legislature." This then is the established doctrine in this state, and the discussion or citation of further authorities would be superfluous. But there are some other considerations that now obtain in Ohio that should be given due weight. It is incumbent on each officer of the different departments of our government to perform the duties and exercise the authority of his office without in anywise interfering with the power, discretion, or authority of the officers of either of the other departments. But, it is the duty of each and all to insist vigor |