State ex rel. Babcock v. Perkins, No. 34700
| Court | United States State Supreme Court of Ohio |
| Writing for the Court | ZIMMERMAN; WEYGANDT; TAFT |
| Citation | 59 O.O. 258,165 Ohio St. 185,134 N.E.2d 839 |
| Decision Date | 20 April 1956 |
| Docket Number | No. 34700 |
| Parties | , 59 O.O. 258 The STATE ex rel. BABCOCK, Appellant, v. PERKINS et al., Stark County Board of Elections, Appellees. |
Page 185
v.
PERKINS et al., Stark County Board of Elections, Appellees.
[134 N.E.2d 840] Syllabus by the Court.
1. Section 3515.03, Revised Code, expressly provides that a candidate defeated at an election who applies to the board of elections for a recount of the votes cast shall deposit with the board ten dollars in currency or a certified check for each precinct in which a recount is desired.
2. A certified check and a bank money order are instruments which differ in material respects, and, where a defeated candidate applying for a recount deposits with [134 N.E.2d 841] the board of elections a bank money order instead of a certified check, he may not successfully prosecute an action in mandamus to compel the board to accept the money order and proceed with the recount.
3. Where an appeal on questions of law is taken to the Supreme Court from the Court of Appeals, which latter court had jurisdiction of the subject matter of and the parties to the action, the Supreme Court will not consider or determine claimed errors which were not raised and preserved in the Court of Appeals.
The action now under scrutiny by this court is one in mandamus brought originally in the Court of Appeals for Stark County by Charles L. Babcock to require the members of the Board of Elections of Stark County to order and conduct a recount of the votes cast in the election for the office of Mayor of the City of Canton on November 8, 1955. An alternative writ of mandamus was issued bearing the signatures of the three judges of the Court of Appeals.
Page 185
Later, a demurrer to the petition was sustained, an application for leave to amend the petition was denied, and final judgment was entered for the respondents.An appeal as of right brings the cause here for review and final determination.
Page 186
The petition with its several attached and incorporated exhibits discloses the following:
At the general election on November 8, 1955, relator was a candidate for election to the office of Mayor of the City of Canton.
On November 17, 1955, the respondents as members of the board of elections declared the official results of such election, which showed the relator to have been defeated.
On November 19, 1955, relator filed with the respondents a written application for a recount of the votes in such election for all candidates for the office of mayor, listed the precincts where the recount was desired, and deposited with them an instrument in the following form:
'Bank Money Order
'Canton, Ohio, Nov. 18, 1955
'Remitter Chas L. Babcock
'Pay to the order of Stark County Board of Elections $1,390.00
'Peoples Bank $1,390 and 00 cts dollars
'The Peoples Bank
'Canton, Ohio
'A. P. Strickertz,
'Authorized signature'
Shortly thereafter, relator filed with respondents the following letter:
'The Peoples Bank, Canton, Ohio
November 21, 1955
'The Stark County Board of Elections
'Canton, Ohio
'Gentlemen:
'This letter is to certify that on November 18, 1955, we issued a bank money order No. A 66173, in the amount of $1,390, the purchaser being Charles L. Babcock. We further certify that Mr. Babcock left on deposit with us cash in this amount and that the bank money order mentioned above will be paid by our bank on presentation when properly endorsed.
'Very truly yours,
'L. E. Decker
'Assistant cashier'
Page 187
At first, respondents granted relator's application for a recount and so notified him in writing, but at a meeting held on November 25 they rescinded their previous action granting the recount, which precipitated this action.
Louis H. Khourey, Canton, for appellant.
John Rossetti, Prosecuting Attorney, Canton, for appellees.
ZIMMERMAN, Judge.
County boards of elections are of statutory creation, and the members thereof in the performance of their duties...
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