State ex rel. Cullinan v. Board of Elections of Portage County

• Decision Date: 18 September 1968
• Citation: 28 Ohio App.2d 281,277 N.E.2d 448
• Parties: , 57 O.O.2d 443 The STATE ex rel. CULLINAN v. BOARD OF ELECTIONS OF PORTAGE COUNTY et al. The STATE ex rel. CULLINAN v. BOARD OF ELECTIONS OF TRUMBULL COUNTY et al.
• Court: Ohio Court of Appeals

Page 281

28 Ohio App.2d 281

277 N.E.2d 448, 57 O.O.2d 443

The STATE ex rel. CULLINAN v. BOARD OF ELECTIONS OF PORTAGE COUNTY et al.

The STATE ex rel. CULLINAN v. BOARD OF ELECTIONS OF TRUMBULL COUNTY et al.

Court of Appeals of Ohio, Eleventh District, Portage and Trumbull Counties.

Sept. 18, 1968.

Fanyerose G. Cullinan and Jack Nybell, Youngstown, for relator.

George W. Martin, Pros. Atty., Portage County, for respondent Board of Elections of Portage County.

E. W. Mastrangelo, Willoughby, for respondent Richard A. Hoose.

David McLain, Pros. Atty., for respondent Board of Elections of Trumbull County.

PER CURIAM.

These causes were filed originally in the courts of appeals of the counties designated above.

The petition in cause no. 387, the Portage county case, contains a prayer for a writ of mandamus. The petition in cause no. 1814, the Trumbull county case, contains a prayer for a writ of prohibition. Both actions will be considered together in this opinion.

We believe we can readily dispose of cause no. 1814 under the holding of the Supreme Court in State, ex rel. Pressley, v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631. The fourth paragraph of the syllabus is as follows:

'Where a petition filed in the Supreme Court or in the Court of Appeals is in the form of a proceeding in mandamus but the substance of the allegations makes it manifest that the real object of the relator is for an injunction, such a petition does not state a cause of action in mandamus and since neither the Supreme Court nor the Court of Appeals has original jurisdiction in injunction the action must be dismissed for want of jurisdiction * * * (citing cases).'

We are of the opinion that, in cause no. 1814, relator, in substance, is asking for an injunction when she asks for a writ of prohibition and hence under the holding of Pressley this court is without jurisdiction to entertain the action.

R.C. § 3513.22 provides, in part, as follows:

'If, after certifying and sending abstracts and parts thereof, a board finds that any abstract or part thereof is incorrect, it shall promptly prepare, certify, and send a corrected abstract or part thereof to take the place of each incorrest abstract or part thereof theretofore certified and sent.'

In correcting the abstracts, the respondents, in cause no. 387, did exactly what the mandate of the law required. Therefore, to issue the writ of mandamus as requested by relator would prevent respondent board of elections, in cause no. 387, from performing an act especially enjoined on them by law.

Plaintiff has not stated a cause of action in cause no. 387. In fact, she has asked for relief contrary to the provisions of R.C. § 3513.22.

We are also of the opinion that the observations made above apply with equal force to cause no. 1814.

The majority of this court wishes to emphasize that its decision is not based upon a procedural matter as stated in the separate concurring opinion. The holding of Pressley states that neither a court of appeals, nor the Supreme Court has original jurisdiction in the matter under this factual situation. We wish to further emphasize the fact that a court must have jurisdiction of the subject matter and the relator must state a cause of action in order to get into and stay in court. It is the considered opinion of the majority of this court that relator has neither invoked the jurisdiction of the proper court under the holding of Pressley, nor stated a cause of action in either of her petitions. Therefore, relator's petitions must be dismissed.

Petitions dismissed.

BROWN, GRAY and McLAUGHLIN, JJ., concur.

GRAY, J., of the Fourth Appellate District, McLAUGHLIN, J., of the Fifth Appellate District, and BROWN, J., of the Sixth Appellate District, sitting by designation in the Seventh Appellate District.

BROWN, Judge (concurring).

I would add a few observations to the foregoing decision with which I concur.

Even if, for the sake of argument, the Court of Appeals had jurisdiction to maintain an original action in mandamus and in prohibition concerning the subject matter of an election controversy in both cases, the substantive law applicable to the facts stated in both petitions would require a denial of relief to relator in both cases. I prefer to emphasize the substantive law applicable and to predicate our decision entirely upon it rather than upon rles of law delineating and concerning original jurisdiction of the Court of Appeals in mandamus and prohibition which rests on the shifting sands of questionable results in some controlling cases of our highest state court.

In the original mandamus action in the Court of Appeals for Portage County, Case No. 387, the relator, designated plaintiff herein, sought a writ of mandamus primarily to order respondents, designated defendants herein, to proceed with an official recount of ward 3 in Aurora village, Portage county, which relator's opponent, Hoose, had demanded, concerning the Democratic nomination for a six-year term as judge of the Court of Appeals of the Eleventh Appellate District, before making any revision or correction of the official abstract of votes cast in the primary election for that office. Also, it demands that if a revised abstract had been made and certified (which it already had) to the Trumbull county board of elections, the most populous county in the Eleventh Appellate District such official revised abstract should be further amended to conform to the first official abstract issued by the Portage county goard of elections.

The first official abstract made relator the winner in the district by five votes, and the revised or corrected official abstract made her the loser by six votes.

Predicated on the Portage county proceedings, the plaintiff in the original prohibition action in the Court of Appeals for Trumbull county, case no. 1814, sought a writ of prohibition primarily prohibiting the Trumbull county board of elections from canvassing the purported amended official abstract from the Portage county board of elections and from making an amended declaration of the results of such election based on such purported amended abstract.

When the recount hearing for ward 3 in Aurora village was held, all of the marked ballots were missing and could not be found. The hearing developed uncontradicted facts that the ward 3 tally or work sheet, summary statement and report accounting for ballots, and poll book, all prepared by ward 3 election officials in the course of their duties, and the Democratic unofficial count, revealed 40 votes for Hoose and 39 votes for Cullinan. However, without any explanation by anyone concerning the reason for the variance, the Democratic party official count and report by the Portage county board of elections given to Trumbull county for ward 3 in Aurora village, showed 30 votes for Hoose and 39 for Cullinan.

Thereupon, the Portage board recognized the error and discrepancy and In Municipal Court of Toledo et al. v. revised and amended the original Democratic party official abstract to reflect the correct fact that ten votes should be added to the total cast for Hoose in ward 3, Aurora Village. This revision made Hoose the winner of the nomination.

On the basis of the above factual summary, the Portage county board of elections had the mandatory duty to make this corrected abstract by reason of paragraph 5 of R.C. § 3513.22 set out verbatim in the per curiam opinion. For this reason alone, relator's mandamus action in Portage county must fail. The Trumbull county prohibition action, predicated as it is upon the Portage county mandamus action and obtaining relief therein, by a parity of reasoning, must likewise logically fail. Under R.C. § 2731.01, mandamus commands the performance of an act which 'the law specially enjoins as a duty resulting from an office.' The Portage county board of elections and Trumbull county board of elections had 'a duty enjoined by law resulting from their offices' to take official action on a corrected official abstract of votes cast in Portage county-a duty and official action just the opposite of what relator seeks as relief in both legal proceedings.

The statutory recount procedure under R.C. § 3515.04, et seq., initiated by Hoose which could not be completed by physically recounting the marked ballots (by reason of their loss or absence) does not affect or impair another statutory power of the Portage county board of elections to proceed under another chapter of election statutes-chapter 3513, concerning primaries and nominations-specifically paragraph 5, of section 3513.22, hereinabove discussed, which permits the certification of a corrected abstract of vote returns. The two chapters and statutes must be construed in pari materia and as complementing each other, neither chapter embracing all election proceedings, but prescribing different routes or modes of procedure for two separate areas of election subject matter. State, ex rel. Feighan, v. Green (1960), 171 Ohio St. 263, 169 N.E.2d 551, paragraph 2 of the syllabus.

The relator challenges the jurisdiction of the Court of Appeals of Portage county, in case no. 387, to proceed to final judgment in this action after the date respondents filed a notice of appeal to the Ohio Supreme Court from the final order granting a peremptory writ, without hearing, to relator. The Court of Appeals, thereafter, vacated the peremptory writ. Subsequently, this appeal to the Ohio Supreme Court was either dismissed for want of prosecution, or the notice of appeal was removed by order of the Court of Appeals. Relator contends the filing of the notice of appeal directed to the judgment granting a peremptory writ caused the Court of Appeals to lose jurisdiction of the subject matter and it lost the right to make further orders in the case. Such a position is untenable.

An appeal on questions of law does not necessarily bring an entire case before the appellate court, but affects...