State ex rel. Babcock v. Perkins

• Decision Date: 20 April 1956
• Docket Number: No. 34700,34700
• Citation: 59 O.O. 258,165 Ohio St. 185,134 N.E.2d 839
• Parties: , 59 O.O. 258 The STATE ex rel. BABCOCK, Appellant, v. PERKINS et al., Stark County Board of Elections, Appellees.
• Court: Ohio Supreme Court

Page 185

165 Ohio St. 185

134 N.E.2d 839, 59 O.O. 258

The STATE ex rel. BABCOCK, Appellant, v. PERKINS et al., Stark County Board of Elections, Appellees.

No. 34700.

Supreme Court of Ohio.

April 20, 1956.

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 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. 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.

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' 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 must comply with applicable statutory requirements.

In Section 2731.01, Revised Code, mandamus is defined as 'a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.'

So, the ultimate question for decision here is whether respondents, composing the board of elections, failed to perform an act specially enjoined by law.

Section 3515.03, Revised Code, provides in part:

'Each application for recount shall separately list each precinct as to which a recount of the votes therein is requested, and the person filing an application shall at the same time deposit with the board of elections ten dollars in currency or certified check for each precinct so listed in such application as security for the payment of charges for making the recount therein applied for, which charges shall be fixed by the board as provided in section 3515.07 of the Revised Code.'

It will be noted that such section expressly requires the deposit of cash or, in the alternative, a certified check.

Relator chose to tender a 'bank money order.' A bank money order, which is equivalent to a cashier's check, and a certified check are not identical. The former is an instrument issued by an authorized officer of a bank and directed to another, evidencing the fact that the payee may demand and receive upon endorsement and presentation to the bank the amount stated on the face of the instrument. Such an instrument is paid from the bank's funds, and liability for payment rests solely on the issuing bank.

On the other hand, a certified check is an ordinary bill of exchange drawn on a bank by a depositor and recognized and accepted by a proper officer of the bank as an appropriation of the amount specified therein to the named payee. It may also be described as a check drawn by a depositor on funds to his credit in a bank and which a proper officer of the bank certifies in writing on the check will be honored when duly presented for payment. However, such certification does not relieve the drawer of the check from personal liability thereon.

A case directly in point in principle is that of Beecher v. Morse, 286 Mich. 513, 516, 282 N.W. 226, 227, where the court stated in the course of its opinion:

'In order that plaintiff comply with the terms of the option, it was necessary that he tender the agreed amount either in cash or by certified check prior to the expiration of the time specified. He did neither, but...