Summary
In Maranze v. Bd. of Elections (1958), 167 Ohio St. 323, the relator therein contended that the nominating petitions of certain candidates were void because they were violative of that portion of R.C. 3513.251 which provides that no nominating petition shall be accepted for filing by a board of elections if it contains more than twice the minimum aggregate number of signatures required.
Summary of this case from State, ex Rel. Lippitt, v. Bd. of ElectionsOpinion
No. 35469
Decided February 26, 1958.
Mandamus — To declare void certificate of election — Election held — Candidates elected — Moot question — Quo warranto — Questioning eligibility of candidates — Petition subject to demurrer, when — Action brought in name of individual.
APPEAL from the Court of Appeals for Montgomery County.
On October 29, 1957, Maranze filed in the Court of Appeals a petition against the Montgomery County Board of Elections, seeking a writ of mandamus "to declare null and void" certificates of nomination tendered to certain candidates, or in the alternative a writ of quo warranto to test the eligibility of certain candidates for the office of Commissioner of the City of Dayton at the election to be held on November 5, 1957. Maranze contends that the nominating petitions of certain candidates, without naming them, were void because they violated that portion of Section 3513.251, Revised Code, which provides that no such nominating petition shall be accepted for filing if it contains more than twice the minimum aggregate number of signatures required. At the time the petition herein was filed no request for an alternative writ was made.
On November 12, the board of elections filed a motion to dismiss that part of the petition wherein a writ of mandamus is prayed for, on the ground that, the election having been held and the electorate having made its choice of city commissioners, the question presented is moot.
On the same day, the board filed a demurrer to that part of the petition wherein the special remedy of quo warranto is prayed for, for the reasons that the petition contains the name of no person or persons who might then be holding public office unlawfully, and that the action was brought in the same of an individual instead of in the name of the state.
The case was submitted on the petition, the motion and the demurrer.
The Court of Appeals sustained the motion to dismiss and the demurrer.
An appeal as of right brings the cause to this court for review.
Mr. Julius Maranze, in propria persona. Mr. Mathias H. Heck, prosecuting attorney, and Mr. W. Edmund Shea, for appellee.
The case has been submitted on the board's motion to dismiss the appeal. Two grounds for the motion are that the question presented has become moot, and that Maranze brought the action in his own name rather than in the name of the state.
The election having been held on November 5, 1957, and commissioners having been elected, the question presented in the petition with respect to mandamus has become moot.
Furthermore, Maranze, having failed to exhaust his statutory administrative remedy of filing a protest to the nominating petitions (see Section 3513.262 et seq., Revised Code), cannot maintain this action as to mandamus. State, ex rel. Lieux, v. Village of Westlake, 154 Ohio St. 412, 96 N.E.2d 414.
As to quo warranto, the action should have been brought in the name of the state, not in the name of an individual. Section 2733.01, Revised Code; State, ex rel. Hogan, Atty. Genl., v. Hunt, Pros. Atty., 84 Ohio St. 143, 95 N.E. 666; State, ex rel. Heer, v. Butterfield, 92 Ohio St. 428, 111 N.E. 279. Furthermore, Section 2733.06, Revised Code, permitting a private person to bring an action in quo warranto is not applicable to the instant case as Maranze is not "claiming to be entitled to a public office unlawfully held and exercised by another."
The motion to dismiss the appeal is, therefore, sustained, and the appeal is dismissed.
Appeal dismissed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.