State ex rel. Farnsworth v. McCabe

• Decision Date: 23 December 1940
• Citation: 35 N.E.2d 474,66 Ohio App. 482
• Parties: STATE ex rel. FARNSWORTH v. McCABE, Judge.
• Court: Ohio Court of Appeals

35 N.E.2d 474

66 Ohio App. 482

STATE ex rel. FARNSWORTH v. McCABE, Judge.

Court of Appeals of Ohio, Sixth District, Lucas.

December 23, 1940

Syllabus by the Court.

1. A writ of prohibition will be granted to one who was a candidate for representative in the General Assembly in an election to restrain a common pleas judge from interfering by a writ of mandamus with a county board of elections in its certification of the results of that election when it is proceeding in a lawful manner.

2. The fact that a county board of elections, acting under Section 4785-152, General Code, has canvassed and counted the returns from a precinct as made by the precinct officials which on its face shows that the total number of votes cast for the candidates for an office which was listed toward the end of the ballot is substantially less than the total number of votes cast for the candidates for the first office on the ballot does not indicate that the county board has been negligent in canvassing and counting such returns.

3. Section 4785-152, General Code, does not authorize a county board of elections to examine and recount the ballots returned by the precinct officials.

4. The only authority for a county board of elections opening and recounting the ballots from a precinct is, (a) under Section 4785-149, General Code, 'on written demand or any candidate' made while canvass of the returns of that precinct is being made; and (b) under Section 4785-162 General Code, on timely application of any candidate or of five electors who voted at such election, recount of the votes for that candidate or other candidates for the same office may be had on compliance with the conditions prescribed in that and following sections.

5. On an application for a recount as provided for in Section 4785-162, General Code, only the votes for the candidate or candidates demanded in the application can be recounted.

6. On a recount of votes made on an application filed under Section 4785-162, General Code, if errors in the returns from a precinct are discovered in the votes for candidates not specified in the application for the recount, the county board is without authority to change its count made on such returns to correct the error so discovered.

7. A decision of the Secretary of State made under Section 4785-13, General Code, is final, and, in the absence of fraud, a court has no power to interfere with such decision and any order attempting to do so is void and of no effect.

Percy R. Taylor, of Toledo, for relator.

Edwin J. Lynch, of Toledo, for respondent.

CARPENTER Judge.

This is an original action in this court for a writ of prohibition to restrain respondent John M. McCabe, one of the judges of the Court of Common Pleas of Lucas county, Ohio, from proceeding in his court with an action in mandamus filed by six electors of precinct D, ward 4, of Toledo, to compel the respondents therein, the members of the Board of Elections of Lucas county (hereinafter called the board) to count, record and certify the votes cast in that precinct in the general election held November 5, 1940.

To the petition herein, an answer has been filed and to it relator has filed a general demurrer. While the respondent has filed an answer, he claims the petition does not state a cause of action, and as the demurrer searches the record, it tests the sufficiency of the petition first.

The relator, who is not a party to the mandamus action, alleges in his petition that he is a citizen and taxpayer of Lucas county and was a candidate for representative to the General Assembly in that election, and that on the count of votes cast the board announced that he had been elected; that thereafter a committee of five persons representing Louis J Laderman, another candidate for representative duly 'demanded a recount of the votes cast for relator' in that and other precincts of Toledo; that the board recounted the ballots cast for relator in such precinct and being unable to agree as to the results thereof, submitted their findings to the Secretary of State of the state of Ohio; by an amendment filed to the petition, he has attached a copy of questions propounded to the Secretary of State by the board and the answers made to them.

The first question and answer are as follows:

'After a candidate requests a recount of his opponent's vote only, and such recount has been had, and the time for such requests have expired, can such candidate demand a recount of his own vote?

'Section 4785-162, General Code, and those sections immediately following set forth the conditions under which a recount of the ballots cast at an election may be applied for and the manner of conducting same. This section extends to a candidate, or to a group of five or more qualified electors voting at such election, the privilege of having the ballots cast for any candidate, or for all candidates for the same office, recounted in any or all of the precincts in which votes for such candidate or candidates have been cast. The applicant for the recount is accorded the opportunity to determine and set forth in his application the exact privilege which he is seeking. He is not circumscribed in any way with reference to the demands the law permits him to make but the board of elections must limit the scope of their inquiry or investigation to the demands presented in the application for such recount.

'We therefore reach the conclusion with reference to the first question that after a candidate requests a recount of his opponent's votes only, and such recount has been had, and the time for such requests has expired, that such candidate can not demand a recount of his own vote.'

The second question and answer are as follows:

'Under such circumstances, does the board have jurisdiction to conduct such a recount?'

'To this we would reply by saying that the board must confine the recount of ballots to the definite request of the applicant. The presumption is that the applicant has a sufficient reason for presenting the application for the recount as same was submitted.

'We therefore reach a conclusion that under such circumstances the board would not have jurisdiction to conduct such a recount.'

The third question and answer are as follows:

'Does the board have jurisdiction to change the official count so as to defeat a candidate for the state Legislature by adding to the official count votes claimed to belong to such candidate and not counted for him?'

'In reply to this question we will again advise that the privileges sought by an applicant for a recount must be clearly set forth in his application. We recognize that errors do occur in the counting of ballots and also in the certification of the results as set forth in the poll books by precinct officials. We realize that the members of our boards of elections are not infallible in their canvass of these poll books. However, the Legislature has recognized the need of, and has determined time limits within which certain official duties appeartaining to elections must be performed.

'We reach the conclusion therefore that any change to which the official count would be subjected must be made prior to the official certification of the result of an election. Our answer to this question is therefore that the board does not have jurisdiction to thus change the official count.'

The fourth question and answer are as follows:

'Does the board have authority and jurisdiction to add votes to the official count claimed to belong to the Democratic party and not counted for it, without a recount?'

'The statement just made with reference to the other questions presented would probably be accepted as an answer to this. We would, however, again emphasize the fact that it would be impractical to keep open indefinitely the opportunity to check election returns with the idea in view of finding errors, which if applicable, would change the result of an election. The records will always be made available and used as evidence where fraud and corruption is evident. The authority does not rest with the board, under the provisions of Section 4785-149, General Code, to adjust discrepancies which may appear in the poll books even to the extent of opening and recounting the ballots cast in a precinct but this must be done prior to the time of making and certifying the official returns. Having been officially canvassed and officially certified, the records must be accepted as prima facie correct.

'Our answer to this question is therefore that the board does not have authority and jurisdiction to add votes to the official count claimed to belong to a political party and not counted for it without a recount.'

The fifth and final question and answers are:

'Does the board have jurisdiction and authority under such circumstances to recount all votes for the candidates for the state Legislature in the twenty-five precincts which were recounted under the request of Mr. Laderman for Mr. Farnsworth?'

'Insofar as the above observations are applicable, it is quite evident that the recount must be confined to the requests contained in the application. Manifestly, it would be unfair, out of curiosity or for other reasons, to canvass the votes for all candidates for state Legislature unless such recount had been legally applied for. The sections providing for a recount offer the opportunity to include such request if the applicant so desired, but in the absence of such inclusion, the law does not make it possible at a later time to amend the application originally filed.

'We therefore conclude that the board does not have jurisdiction and authority under the circumstances presented to recount all votes for the candidates for the state Legislature in the twenty-five...