Wilson v. Kennedy
| Decision Date | 08 June 1949 |
| Docket Number | 31719. |
| Citation | 151 Ohio St. 485,86 N.E.2d 722 |
| Parties | WILSON v. KENNEDY. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
Under Section 4785-144, General Code, 122 Ohio Laws, 353, a name written on a ballot in a blank space provided therefor under the title of the office properly to be voted on at an election shall be counted as a vote for the person whose name is so written for election to the office indicated on the ballot immediately above such blank space.
Appeal from Court of Common Pleas, Brown County.
This is an appeal from a judgment of the Common Pleas Court of Brown county, wherein that court found in favor of the contester, appellee herein, in an election contest case between the only candidates for prosecuting attorney of Brown county and growing out of the general election held November 2, 1948.
The contester was a regularly nominated independent candidate and his name was printed upon the ballot at the general election as an independent candidate. Neither the Republican nor the Democratic party presented any candidate for the office of prosecuting attorney and the space under the heading for that office was left blank on both tickets.
While contestee, appellant herein, received 76 votes at the primary for the nomination to the office of prosecuting attorney on the Democratic ticket (being less than 15 per cent of the total vote at such primary election), it was stipulated that the contestee made no attempt to be a candidate or to solicit votes for herself as a candidate for nomination at the primary election and purposely refrained from seeking nomination for the reason that at the time of the primary election she had not then been admitted to the bar. However, it was stipulated that the contestee, an attorney at law, made a campaign in Brown county before the general election on November 2, 1948, for election to the office of prosecuting attorney of Brown county and that on October 5, 1948, contestee was endorsed for election by the Democratic Central Committee of Brown county. At such latter time she had been admitted to the bar.
It was further stipulated:
'That all ballots which were counted for the contestee were those on which the name of the contestee or a name similar had been written in; that there were no ballots printed containing the printed name of the contestee.'
It was further stipulated: 'It is further stipulated and agreed that the Board of Elections of Brown county, Ohio, in making up its initial canvass of returns of the votes in all the voting places of Brown county, Ohio found and determined that the contestee, Dorothy Kennedy, had received 2016 votes for the office of prosecuting attorney of Brown county, Ohio, and that the contester, Angus B. Wilson, had received 1,272 votes for the office of prosecuting attorney of Brown county, Ohio; that thereupon a request was made, under the provisions of Section 4785-152 of the General Code of Ohio, upon the Board of Elections of Brown County, Ohio, for the opening of the sealed containers containing the ballots from seven of the polling places in said county, which request was granted by said board of elections and that said board of elections proceeded in the absence of either the contester or the contestee or the clerk of courts of Brown county, Ohio, or his deputy, to count the ballots cast in said seven polling places and thereupon after completing said count found and determined that the contestee, Dorothy Kennedy, received 1,415 votes for the office of prosecuting attorney of Brown county, Ohio, and that the contester, Angus B. Wilson, received 1,300 votes for said office.
'It is further stipulated and agreed that the contester, under the provisions of Section 4785-162 of the General Code of Ohio, within the time prescribed by law demanded a recount of the twenty-seven remaining polling places in said county, there being thirty-four polling places in Brown county, Ohio, and that on the 16th day of November, 1948, such recount was had and said board of elections announced that the contestee, Dorothy Kennedy, received 1,367 votes for the office of prosecuting attorney of Brown county, Ohio, and that the contester, Angus B. Wilson, received 1,337 votes for said office; that under the provisions of Section 4785-162 of the General Code of Ohio the contester requested said board of elections to discontinue the recount after twenty-two of the polling places of Brown county, Ohio, had been recounted, and that as a result thereof five of the voting places in said county were not recounted, and that said board of elections announced that said contestee, Dorothy Kennedy, was elected to the office of prosecuting attorney of Brown county, Ohio, by a majority of thirty votes, and did on or about the 9th of December, 1948, issue a certificate of election to said contestee, Dorothy Kennedy, for the office of prosecuting attorney of Brown county, Ohio, which said certificate has been filed with the Secretary of State of the State of Ohio.'
The trial court passed only upon the question involving the 'write-ins.'
Charles H. Wilson, West Union, for appellee.
C. R. Beirne, Cincinnati, for appellant.
This is an appeal from the Court of Common Pleas of Brown county to this court in an election case. The trial court's jurisdiction is to be found in Section 4785-166 et seq., General Code. The appellate jurisdiction of this court is to be found in Section 4785-172, General Code, enacted pursuant to Section 21, Article II of the Ohio Constitution and which provides:
'The person against whom the judgment is rendered may appeal on questions of law, within twenty days, to the supreme court of Ohio; but such appeal shall not supersede the execution of the judgment of the court.
Such appeal shall take precedence over all other causes upon the calender, and shall be set down for hearing and determination at the earliest convenient date. The laws and rules of the court governing appeals shall apply in the appeal of contested election cases. If the judgment of the lower court be affirmed, the supreme court shall order the judgment of such lower court to be enforced, if the party against whom the judgment is rendered is in possession of the office.'
The case was tried on an agreed statement of facts. While there were various grounds upon which the contester claimed to have been elected, the trial court passed upon one question only as shown by the following quotation from the lower court's decision:
'Therefore, my conclusion is that the present election laws contain no provision for the 'write-in' method of voting for a candidate in the general election and none of the votes cast for the contestee for the office of prosecuting attorney, in the general election held in Brown county, November 2, 1948, should have been counted by the board of elections.
'This conclusion is decisive and renders it unnecessary to pass on the other questions presented in this case.'
As this court passes only upon questions of law passed upon by the lower court, we, therefore, have before us only the question of the validity of a name written in on a ballot cast at the general election held November 2, 1948, in other words, was it the duty of the board of elections to count or to disregard a name written in the blank space appearing upon the ballot at a general election where the party tickets contained no printed name for the particular office?
It is said in 15 Ohio Jurisprudence 440, Section 104:
'In a contest proceeding, the action of the election officers in conducting the election, and in making and canvassing the returns and declaring the result thereof, is attended with a prima facie presumption of regularity.'
It is contended by the appellee 'that under the election laws as amended, and effective January 2, 1948, a person can only become a candidate for the office to be filled at the general election by the method set out in the various statutes; and that the so-called 'write-in' campaigns are no longer recognized in the general election.'
No candidate for the office of prosecuting attorney had been nominated by either the Republican or Democratic party at the primary election but appellee's name appeared on the general election ballot as an independent candidate regularly nominated. There was a blank space provided under the ballot title of prosecuting attorney on each of the party columns.
Appellee's contention is based upon the amendment of former Section 4785-131, General Code, which amendment deleted a former provision authorizing the substitution of a name by writing another in black lead pencil and making a cross mark in the blank space at the left of the name so written. Appellant counters with the argument that such vote (write-ins) is still specifically recognized by Section 4785-144, General Code, which it is claimed recognizes the 'write-in' where there is a blank space provided therefor.
Section 4785-144, General Code, 122 Ohio Laws, 353, provides in part as follows:
'No ballot shall be counted which bears any marks other than 'X' marks placed thereon or a name written therein by the voter, in a blank space provided therefor, and the printed or other matter ordered placed thereon for use in such precinct by the board of elections.'
Former Section 4785-144, General Code, provided in part as follows:
'No ballot shall be counted which is marked contrary to law, except that no ballot shall be rejected for any technical error unless it is impossible to determine the voter's choice.'
Appellee argues:
...
To continue reading
Request your trial