State ex rel. Lippincott v. Metzger

• Decision Date: 20 September 1940
• Docket Number: 28356.
• Citation: 137 Ohio St. 307,29 N.E.2d 361
• Parties: STATE ex rel. LIPPINCOTT v. METZGER et al., Board of Elections, et al.
• Court: Ohio Supreme Court

29 N.E.2d 361

137 Ohio St. 307

STATE ex rel. LIPPINCOTT v. METZGER et al., Board of Elections, et al.

No. 28356.

Supreme Court of Ohio

September 20, 1940

This cause was submitted for final determination by the court upon the petition and the demurrers of the respondents who are members of the Board of Elections of Clinton county and the probate judge of that county.

It is alleged in the petition that respondent, Hugh J. Wright has continuously served as probate judge since February 9 1933; that he was nominated for judge of the Probate Court at the primary held May 14, 1940, for the term commencing February 9, 1941, and the board of elections issued to him a certificate of nomination; that respondent Wright has not been admitted to practice as an attorney and counsellor at law in this state; and that he connot be so admitted prior to the date of the election on November 5, 1940.

The relator, as an elector and taxpayer, seeks from this court a writ prohibiting the board of elections from printing causing or permitting to be printed the name of respondent Wright on the official ballot at the forthcoming election.

Ralph G. Martin, of Columbus, for relator.

G L. Schilling, Pros. Atty., of Wilmington, for respondents Harry A. Metzger and others, Board of Elections.

James N. Linton and Henry J. Linton, both of Columbus, and Rogers, Smith & Kirk, of Wilmington, for respondent Hugh J. Wright.

PER CURIAM.

Prior to September 4, 1935, probate judges were not required to be admitted to the practice of law, but on that date amended Section 10501-1, General Code (116 Ohio Laws, 481), becamse effective. It reads as follows:

'Quadrennially in each county having a separate probate court, one probate judge shall be elected who shall have been admitted to practice as attorney and counsellor at law in this state, or who shall have previously served as probate judge immediately prior to his election. He shall hold his office for a term of four years, commencing on the ninth day of February next following his election.' (Italics ours.)

It is the contention of the relator that the foregoing clause relating to those who have previously served as probate judge is unconstitutional as violating Section 26, Article II of the Ohio Constitution, requiring that 'All laws, of a general nature, shall have a uniform operation throughout the State,' and Section 1 of Article XIV, Amendments to the United States...