Opinion
No. 27252
Decided October 5, 1938.
Elections — Mandamus — Placing name of candidate for Supreme Court on ballot — Contest of election adequate remedy at law — Secretary of State canvasses vote and certifies result — Duty not specifically enjoined to determine legality of votes, when.
IN MANDAMUS.
This is an action in mandamus in which the relator seeks a peremptory writ compelling the respondent to place the relator's name on the ballot to be used in the election to be held on November 8, 1938.
At the primary on August 9, 1938, the relator, Frank H. Ward, was a candidate for the Republican nomination for judge of the Supreme Court of Ohio for the term ending December 31, 1938. On the face of complete official returns from the 88 counties in the state he received 130,379 votes, G.K. Allen, another Republican candidate, received 132,836 votes, or a plurality of 2,457 votes over relator, and it is alleged in the petition that the respondent, William J. Kennedy, secretary of state, "announced said G.K. Allen as nominated."
Relator contends, however, that he is the Republican nominee because voting machines were used in all precincts in Trumbull county and the names of candidates were not rotated as required by Section 4785-80, General Code, in which county G.K. Allen, whose name appeared first on each ballot for that office, received 3,798 votes but the relator, whose name appeared last on each ballot, received only 524 votes. Relator pleads that because the names of candidates were not rotated on the ballot in that county, the popular will of the electors in that county was not ascertained, their legal expression was frustrated and non-compliance with the law had the effect of preventing a fair vote. He claims the nomination by 817 votes if the alleged illegal and unlawful vote in Trumbull county is not included in the computation by the respondent.
Other facts which are not essential to a decision are pleaded in the petition. This cause is before this court on a demurrer to the petition.
The respondent rests his demurrer upon three propositions:
1. Mandamus will not lie where there is an adequate remedy at law.
2. Mandamus will not lie to compel respondent to place relator's name on the ballot when the official results reveal that relator did not receive the highest number of votes.
3. There is no violation of the election laws of this state by the use of voting machines which do not provide for rotation of names of candidates in primary elections.
Mr. Frank H. Ward, for relator.
Mr. Herbert S. Duffy, attorney general, and Mr. Herman G. Kreinberg, for respondent.
It has been repeatedly held by this court that mandamus will not lie where there is a plain and adequate remedy in the ordinary course of law. State, ex rel. Tax Commission, v. Mills, 103 Ohio St. 172, 132 N.E. 727. See also Section 12287, General Code.
The respondent contends that this action is, in effect, a contest of the nomination of G.K. Allen; that the election laws of this state, by virtue of Sections 4785-166 to 4785-174, General Code, provide a definite procedure for the contest of an election; and that, therefore, the relator has a plain and adequate remedy at law. The relator, on the other hand, states: "We are not 'contesting' the election. We admit that Mr. Allen was nominated on the total vote cast; we submit that relator was nominated on the total legal vote cast." Thus the question is squarely presented whether mandamus is the proper way to determine the legality of the votes cast in the Trumbull county primary, or, in other words, whether mandamus may be invoked to test the validity of an election.
The validity of the election is, of course, dependent upon the form of the ballot used in the primary. In the recent case of Mehling v. Moorehead, 133 Ohio St. 395, 14 N.E.2d 15, certain instructions, required by the city charter of Zanesville to be placed on the ballot, were omitted therefrom. An election contest followed. The question was presented in that case whether an election contest was the proper remedy to determine the validity of an election because of the form of the ballot used. This court held it was, saying at page 400 of the opinion: "Since a definite remedy is provided by statute, resort to proceedings in quo warranto is not proper." Resort to mandamus has likewise been held not proper. In State, ex rel. Ingerson, v. Berry, 14 Ohio St. 315, a mandamus action, it was held in the syllabus: "A contest, on appeal to the Court of Common Pleas, is the specific remedy provided by statute for the correction of all errors, frauds and mistakes which may occur in the process of ascertaining and declaring the public will as expressed through the ballot boxes." See also State, ex rel. Wetmore, v. Stewart, Clerk of Court, 26 Ohio St. 216, paragraph two of the syllabus; Howard v. Shields, 16 Ohio St. 184; Prentiss v. Dittmer, 93 Ohio St. 314, at page 322, 112 N.E. 1021, L.R.A. 1917B, 191.
We are of the opinion, therefore, that the relator had a plain and adequate remedy at law by an action to contest the election and that mandamus will not lie.
But there is another reason why mandamus will not lie. Under Section 4785-86, General Code, it is the duty of the Secretary of State to place upon the official ballots for the general election the names of those candidates who received the highest number of votes at the primary election. That section provides in part that the Secretary of State shall canvass all the votes cast for the candidates whose nominating petitions are filed with him "and shall declare the result." Also "He shall, not less than forty days before the election, certify the same, together with a form of official ballot therefor, to the boards of elections in the several counties of the state." No duty is specifically enjoined upon the Secretary of State to determine in this instance the legality of the votes cast in Trumbull county. Mandamus will not, therefore, lie to compel him to make that determination. Selby, Auditor, v. State, ex rel. Smiley, 63 Ohio St. 541, 59 N.E. 218.
The first two propositions of the demurrer being determinative of this proceeding, the third proposition is not decided.
The demurrer to the petition will be sustained, and, relator not desiring to plead further, a peremptory writ will be denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.