dissenting. On its face, E. C. 3501.07 grants a great deal of discretion to the Secretary of State, but in construing that section, a majority of this court has made that discretion absolute. E. C. 3501.07 provides that a nominee’s qualifications may be proved to overcome the Secretary of State’s adverse action. However, the majority holds that so long as the Secretary of State articulates a reason, which merely reflects his personal views, for not appointing a nominee, the determination based upon that “reason” is, in effect, within the Secretary’s unassailable discretion.
I
State, ex rel. Nolan, v. Brown (1925), 113 Ohio St. 386, involved the precise issues presented by this case. In paragraph three of the syllabus this court held:
“Unless the # * [Secretary of State] establishes in court, by clear and convincing evidence, that the party recommended by the committee is disqualified to hold the. office, it is his duty to make the appointment recommended by the committee. ’ ’
Again, in State, ex rel. Nolan, v. Brown (1926), 115 Ohio St. 1, the Secretary was required to show by clear and convincing evidence that the nominee was unqualified, or to make the appointment as recommended.
O. C. 4785-9 (the predecessor of E. C. 3501.07) was enacted in 1929 (113 Ohio Laws 307, 311), and, by its terms, shifted the burden of proving the nominee’s qualifications from the Secretary of State to the nominating committee. In the first relevant decision after that enactment, State, ex rel. O’Neil, v. Griffith (1940), 136 Ohio St. 526, 531, this court stated: “ # * * it is the duty of the Secretary of State to appoint the person recommended if such person be qualified/’
*170•Thus, the subject of a mandamus action, under R. C. 35.01.07, is the nominee’s “qualifications,” and the object of inquiry is to determine the justness of the Secretary of State’s refusal to appoint the nominee.
Both nominees herein have submitted much evidence as to their “qualifications.” Their years of service on the boards of elections, the facts that they are qualified electors and that they reside in the proper counties, more than satisfy the qualifications required by statute. The statute is silent as to additional qualifications which must be established, and in the absence of specific, lawful disqualification, the nominees are entitled to appointment to the boards of elections.
II
The effect of the majority’s interpretation of R. C. 3501.07 is that the Secretary of State’s finding, that the nominees would not be competent board members, can only be overturned by proof of a negative, i. e., that the nominees are not incompetent or unqualified.
The term “competent” is defined in the American Heritage Dictionary of the English language, as “Legally qualified or fit * * and in Black’s Law Dictionary (Rev. 4 Ed.), at 355, as: “Duly qualified; answering all requirements; having sufficient ability or authority; possessing the requisite natural or legal qualifications; able; adequate; suitable; sufficient; capable; legally fit.”
Prom the foregoing, it appears that a nominee would be a “competent” member of the board if he is a qualified elector and is legally qualified to hold the position. The term “qualified electors” was defined in State, ex rel. Nolan, v. Brown (1926), 115 Ohio St. 1, as “electors possessing all the rights of electors of the county in general and qualified to exercise such rights, and in addition thereto must be qualified, in all other respects, to properly discharge all duties imposed by law upon deputy state supervisors of elections.”
In State, ex rel. Nolan, v. Brown, supra (113 Ohio St. 386), the “qualification” of a person appointed by the exe*171eutive committee was directly in issue. There, the court ruled that the Secretary of State could legally withhold an appointment where the nominee would be ‘ ‘ clearly disqualified for holding the office.” The term “clearly disqualified” was applied in that case to the situation where the nominee had aided and abetted a board member in destroying ballots — a clear statutory violation, for which his accomplice was removed from the board for cause. Thus, the nominee was “incompetent” because he could not be seated on the board even if appointed to it. It is clearly a disability of this type, for which the Secretary of State may legally refuse to appoint a nominee.
Ill
It is clear that respondent, in case No. 74-145, lacks legal basis for refusing to appoint Mr. Boyle. Eespondent applied a great deal of subjectivity in reaching his conclusion that Mr, Boyle is not “competent” because there were reports that Boyle doesn’t get along with board members. No statutory disqualification even approaches the meaning proposed by respondent. Holding that respondent may base his decision on such insubstantial grounds vitiates this court’s rule of reason enunciated in State, ex rel. Nolan, v. Brown, supra (113 Ohio St. 386), at 392: “Surely the Legislature did not intend to substitute the opinion of the * * * [Secretary of State] in place of the opinion of the executive committee, and thereby permit the Secretary of State to arbitrarily overrule the action of the committee.”
The slightest adherence to that rule entitles Mr. Boyle to the subject appointment and to a writ of mandamus in case No. 74-145.
TV
That rule is equally applicable to Mr. G-osney in case No. 74-147.
E. C. 3501.07 requires that the Secretary of State have “reason to believe” that a nominee is incompetent.
Eespondent never questioned Mr. Gosney’s dual capacity as board of election member and secretary to a Con*172gressman until he failed to appoint Gosney early this year. On May 22,1962, respondent wrote a letter in response to an inquiry about Mr. Gosney’s status. The letter reads, in part: “* * * I am unable to see any reason why one person might not hold the two offices mentioned.”
Moreover, an Attorney General’s opinion was solicited in 1964 on Mr. Gosney’s status. Attorney General Saxbe2 unequivocally stated that Gosney’s dual employment created no incompatibility of offices, and' that no conflict of interest was apparent. Opinions of the Attorney General (1964), No. 897. The Attorney General is the only legal counsel respondent may consult in his official business.3 His counsel stated his legal opinion, which is wholly correct upon the precise facts stated therein. Therefore, respondent cannot be acting on anything other than unfettered speculation as to a possible disqualification of a nominee at some remote point in time. To endorse such action is to endow respondent with unbridled discretion.
The frail word “competent” contained in R. C. 3501.07, if subjected to close scrutiny, would disappear altogether unless its clear meaning is applied, and that is: légally qualified.
The majority ably argues the proposition that the Fourteenth Amendment to the United States Constitution does not apply to this case. However, such argument does little to advance the function of this court, which is to administer justice regardless of the legal or political magnitude of an issue. That a controversy does not reach constitutional proportions is no justification for this court to depart from ideals of fundamental fairness.
For the foregoing reasons, I dissent.
The same opinion writer is now the chief law enforcement officer of the United States, i. e., the Attorney General of the United States.
R. C. 109.02 provides in part:
“The Attorney General is the chief law officer for the state and all its departments * * *. No state officer * * * shall employ * * * other counsel or attorneys at law.”