Opinion
No. 28364
Decided September 20, 1940.
Elections — Only state and county officers elected in even-numbered years — Section 1, Article XVII, Constitution — Vacancy in office of municipal judge of Youngstown — Section 1579-174, General Code — Election cannot be held in even-numbered years.
IN MANDAMUS.
This is an original action in mandamus, presented to this court upon petition and answer. The facts are not in dispute.
The office of judge of the Municipal Court of the city of Youngstown became vacant in December 1939, by the resignation of the then incumbent. The vacancy was filled in March 1940, by appointment by the Governor, until a successor should be elected and qualified.
The relator, Joseph N. Higley, Jr., alleges in his petition that on September 6, 1940, he presented to the respondents as members and clerk of the Board of Elections of Mahoning county, his nominating petitions for judge of the Municipal Court of Youngstown, unexpired term ending January 1, 1942; that such petitions were in all respects in conformity with all statutory regulations; that he had accepted the nomination as required by law; and that respondents refused to accept the petitions for filing and to accept the filing fee, thereby refusing to certify the nomination of the relator.
The relator prays for a peremptory writ of mandamus commanding the respondents to accept his nominating petitions and the filing fee, to certify his nomination and place his name on the official ballot as a candidate for such office, to be voted on at the general election to be held November 5, 1940, and to publish due notice of such election for judge for the unexpired term.
Mr. Joseph N. Higley, Jr., and Mr. F.W. Schesler, for relator.
Mr. William A. Ambrose, prosecuting attorney, and Mr. Harold H. Hull, for respondents.
Relator predicates his right to a writ of mandamus upon Section 13, Article IV of the Constitution of Ohio, which reads:
"In case the office of any judge shall become vacant, before the expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the Governor, until a successor is elected and qualified; and such successor shall be elected for the unexpired term, at the first annual election that occurs more than thirty days after the vacancy shall have happened."
The respondents contend that an election to fill a vacancy in the office of municipal judge is controlled by Section 1, Article XVII of the Constitution of Ohio, which provides:
"Elections for state and county officers shall be held on the first Tuesday after the first Monday in November in the even-numbered years; and all elections for all other elective officers shall be held on the first Tuesday after the first Monday in November in the odd-numbered years."
The respondents urge also that by virtue of Section 1 of Article IV of the Constitution, which authorizes the establishment of courts inferior to the Court of Appeals, the Greneral Assembly when creating the Municipal Court of Youngstown was empowered to enact Section 1579-174, General Code, which reads as follows:
"Whenever there shall be a vacancy in the office of any of the judges of the Municipal Court created by this act, the same shall be filled by appointment by the Governor, until a successor is elected and qualified. Every such vacancy shall be filled by election at the first municipal and township election taking place more than thirty days after the vacancy shall have occurred. The person elected shall fill the office for the unexpired term."
Under Section 1 of Article XVII of the Constitution, elections for only state and county officers shall be held in the even-numbered years, and since a municipal judge is neither a state nor county officer the board of elections will not be required by a writ of mandamus to place the name of relator on the ballot at the November election of this year.
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.