State ex rel. Feighan v. Green, 36706

• Citation: 169 N.E.2d 551,171 Ohio St. 263
• Decision Date: 16 September 1960
• Docket Number: No. 36706,36706
• Parties: , 13 O.O.2d 137 STATE ex rel. FEIGHAN, Appellee, v. GREEN et al., Board of Elections, Cuyahoga County, Appellants.
• Court: Ohio Supreme Court

Page 263

171 Ohio St. 263

169 N.E.2d 551, 13 O.O.2d 137

STATE ex rel. FEIGHAN, Appellee, v. GREEN et al., Board of Elections, Cuyahoga County, Appellants.

No. 36706.

Supreme Court of Ohio.

Sept. 16, 1960.

Syllabus by the Court

1. The issuance by a board of elections of an 'appropriate certificate of nomination or election' as provided in Section 3513.22, Revised Code, after the expiration of the time within which applications for recounts of votes may be filed is a ministerial duty which may be compelled by mandamus.

2. Where, in the exercise of its discretionary authority under the pertinent provision of Section 3505.32, Revised Code, a board of elections opens sealed containers of ballots and 'counts' them, and errors are found by it in its declaration of results and abstract previously certified, which errors required the issuance of a corrected declaration and abstract as provided in Section 3513.22, Revised Code, such procedure by the board of elections does not constitute a recount within the meaning of Section 3515.06, Revised Code, authorizing the person not nominated to make application for a recount of additional precincts not theretofore recounted.

3. The provision of Section 3515.06, Revised Code, that 'if a person was declared nominated as a candidate for election to an office * * * and if it subsequently appears by the amended declaration of the results of such election made following a recount of votes cast in such election that such person was not so nominated or elected, such person may within five days after the date of such amended declaration of the results of such election, file an application with the board of elections for a recount,' is not applicable to amended declarations not resulting from recounts as defined and authorized by the provisions of Section 3515.01 et seq., Revised Code.

This is an action in mandamus, originally commenced in the Court of Appeals. The petition seeks a writ of mandamus to issue against the defendants requiring them to issue to the relator a certificate of election as a nominee for the office of state representative on the Democratic ticket in Cuyahoga County and to reject the application for a recount filed by Carl B. Stokes with the defendants and to return Stokes' deposit for refund charges and take no further action thereon.

The members of the board of elections filed a general demurrer to the petition which demurrer was overruled by the Court of Appeals. The defendants not caring to plead further, that court entered final judgment as sought by the relator.

The cause is before this court on appeal as a matter of right.

As recited in the petition, the factual situation out of which this action arose resulted from the primary election held on May 3, 1960. At that election 17 nominees were to be chosen for each major political party as candidates for election in November 1960 to the office of state representative from Cuyahoga County.

Upon completion of the original canvass of votes in the primary election, the abstract certified by the board of elections on May 27 showed relator, William M. Feighan, to have received 26,456 votes, the 17th highest number, and Carl B. Stokes to have received 26,433 votes, the 18th highest number, out of a field of 106 candidates. Stokes then duly made application (June 1) for a recount of 150 specified precincts, upon the completion of which the board of elections, on June 14, made an amended declaration and abstract certifying Stokes as having received 26,445 votes, the 17th largest number, and Feighan as having received 26,426 votes, the 18th largest number.

On June 16, Feighan submitted a written statement to the board of elections alleging that there were certain apparent discrepancies in the precinct tallies in 11 precincts (named in the statement) and asking for correction of errors so that the board could determine the correct result of the election. He did not ask for a recount.

Paragraph 11 of the petition recites:

'The defendants upon a notation in writing made at their direction, and pursuant to the provisions of R.C. 3505.32, ordered the amended abstract to be corrected to accord with the actual tally totals recorded for the city of Cleveland, Ward 33, Precinct PP. They also ordered the totals on the tally sheets for the city of Parma, Ward 6, Precinct H to be corrected to accord with the actual tally markings of votes cast for Carl B. Stokes. They further directed their own inspectors to check the tallies on the voting machines upon which votes were recorded in the city of Cleveland, Ward 33 Precinct BB.'

Paragraph 12 of the petition recites:

'The defendants, acting upon their own motion, pursuant to the provisions of R.C. 3505.32 unanimously adopted a resolution stating, in substance, that the envelopes containing the votes cast for the office of state representative on the Democratic ticket in * * * [8 specified precincts] would be opened on June 17, 1960, in their presence and the relator and Mr. Stokes, and recounted.'

Paragraph 13 of the petition recites:

'On June 17, 1960, following the actions taken as set forth in the next preceding paragraphs 11 and 12, at a special meeting of the board of elections, the defendants, by unanimous vote, directed the amended abstract to be corrected pursuant to the provisions of R.C. 3513.22. As the result of such corrections, the defendnats unanimously declared the result of the election for the office of candidate for state representative on the Democratic ticket, insofar as the total votes cast for your relator and Mr. Stokes, and certified the abstract as follows:

Total votes for William M. Feighan 26,448

Total votes for Carl B. Stokes 26,440

and the defendants declared your relator to be a nominee. The declaration of such result and abstract were certified to the Secretary of State on June 17, 1960.'

On June 22, 1960, Stokes filed his application (with the appropriate deposit) asking for a recount of 150 precincts in addition to those previously recounted. Feighan then demanded that the board of elections declare and certify him to be nominated and to issue him a certificate of nomination. The board accepted Stokes' second application and money deposit but took no further action when this suit was instituted on June 24. The members of the board contend in this appeal that the petition fails to state facts showing any proper right in relator to the relief sought by mandamus.

John T. Corrigan, Pros. Atty., and Frederick W. Frey, Cleveland, for appellants.

Ned L. Mann, Cleveland, for appellee.

HERBERT, Judge.

Apart from the obvious importance of this case to Feighan and Stokes, it has two noteworthy aspects, first the emergency need of an immediate decision and, second, the confusion engendered by the actions of the board and its staff in conducting the recount and their activities subsequent thereto, concluding on the 17th day of June. As a third aspect to be noted, it might also be argued that the relator had other remedies available rather than the remedy of mandamus procedure. Whether an injunction or a declaratory judgment might have been sought by the relator is now beside the point. This court recently held in the case of State, ex rel. Wesselman v. Board of Elections, 170 Ohio St., 30, 162 N.E.2d 118, 119, paragraph two of the syllabus, as follows:

'A Court of Appeals that allows a writ of mandamus to a relator does not thereby abuse its discretion merely because such relator also has an adequate remedy in the ordinary course of the law.'

The issue raised here, as fixed by the petition and the demurrer, finally revolves solely around the question of Stokes' right to an additional recount of precincts not previously recounted. Stokes filed his original application for recount under the authority of Sections 3515.01, 3515.02 and 3515.03 of the Revised Code, and such recount was had and completed June 14 under the provisions of Sections 3515.04 and 3515.05, Revised Code. Section 3515.06, Revised Code, so far as applicable here, provides as follows:

'If a person was declared nominated as a candidate for election to an office or elected to an office or position in an election and if it subsequently appears by the amended declaration of the results of such election made following a recount of votes cast in such election that such person was not so nominated or elected, such person may, within five days after the date of such amended declaration of the results of such election, file an application with the board of elections for a recount of the votes cast at such election for such nomination or election in any precinct, the ballots of which have not been recounted.

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'Sections 3515.01 to 3515.05, inclusive, of the Revised Code are applicable to any...