State ex rel. Newell v. Brown

• Decision Date: 07 October 1954
• Citation: 122 N.E.2d 105,162 Ohio St. 147,54 O.O. 392
• Parties: , 54 O.O. 392 The STATE, ex rel. NEWELL, Jr., v. BROWN, Secy. of State et al.
• Court: Ohio Supreme Court

Page 147

162 Ohio St. 147

122 N.E.2d 105, 54 O.O. 392

The STATE, ex rel. NEWELL, Jr., v. BROWN, Secy. of State et al.

Supreme Court of Ohio.

Oct. 7, 1954.

Syllabus by the Court.

1. Ordinarily a person is not authorized to attack the constitutionality of a statute, where his private rights have suffered no interference or impairment, but as a matter of public policy a citizen does have such an interest in his government as to give him capacity to maintain a proper action to enforce the performance of a public duty affecting himself and citizens generally.

2. Prohibition is an appropriate proceeding to prevent the Secretary of State or a board of elections from placing on a ballot the names of candidates, which names may not lawfully be placed thereon. (State ex rel. Stanley v. Bernon, 127 Ohio St. 204, 187 N.E. 733; State ex rel. Smith v. Hummel, 146 Ohio St. 341, 66 N.E.2d 111, approved and followed.)

3. That portion of Section 3513.256, Revised Code, which adds to the election laws the provision that 'in counties having a population of one million or more, the nominating petition of independent candidates for the office of Judge of Probate Court, Judge of the Court of Common Pleas, and such other courts as are established by statute, shall be signed by qualified electors not less in number than seven per cent of the number of electors who voted for Governor at the next preceding state election in the territory over which such court has jurisdiction, or twenty-five hundred electors, whichever is the lesser number,' is unconstitutional and void in that it conflicts with Section 26, Article II of the Constitution of Ohio, which requires that all laws of a general nature shall have a uniform operation throughout the state.

On August 10, 1954, relator, Sterling Newell, Jr., as a citizen, taxpayer and elector of Cleveland Heights in Cuyahoga County, filed a petition in this court for a writ of prohibition against Ted W. Brown, Secretary of State, and the members of the Board of Elections of Cuyahoga County.

In his petition relator alleges that on January 20, 1954, Charles C. Goldman filed a nominating petition with the board of elections for the office of Judge of the Court of Common Pleas of Cuyahoga County for the unexpired term ending January 2, 1957; that on February 3, 1954, John E. Sweeney filed a nominating petition with the board of elections for the office of Judge of the Probate Court for the term ending December 31, 1960; that on February 3, 1954, Robert W. Chamberlin filed a nominating petition for the office of Judge of the Probate Court for the term beginning February 9, 1955; that each of such individuals filed his nominating petition pursuant to the provision of Section 3513.256, Revised Code, 'which relates exclusively to counties having a population of one million or more'; that the nominating petition of each of such individuals contained between 2,500 and 5,000 signatures, which number was less than seven per cent of the number of electors who voted in Cuyahoga County for Governor at the last regular state election; that on June 23, 1954, relator filed with the board of elections a protest challenging the validity of the nominating petitions hereinbefore described and one filed by Laurence W. Marlin, for the reason that Section 3513.256, Revised Code, is unconstitutional as being in conflict with Section 26, Article II of the Ohio Constitution; that the nominating petition of Marlin was declared invalid by the board of elections for reasons other than those set forth in relator's protest; that on July 14, 1954, the board of elections overruled relator's protest and held the nominating petitions of Goldman, Sweeney and Chamberlin to be valid; that the action of the board of elections overruling such protest is a final determination of the validity of such petitions; that relator is without a remedy in the ordinary course of the law; that respondents are about to and will, unless prohibited, certify, print and place the names of Sweeney and Chamberlin as candidates for Judge of the Probate Court of Cuyahoga County, and the name of Goldman as a candidate for the office of Judge of the Court of Common Pleas, on the official ballot at the general election to be held on November 2, 1954; and that such names may not be lawfully placed on such ballot for the reason that such individuals have not been validly nominated in that the provision of Section 3513.256, Revised Code, pursuant to which the nominating petitions were filed, is unconstitutional as being a law of a general nature which is not uniform in its operation and is in conflict with Section 26, Article II of the Ohio Constitution.

Relator prays for a writ of prohibition preventing respondents and each of them from certifying, printing, and placing the names of John E. Sweeney, Robert W. Chamberlin and Charles C. Goldman on said ballot, and from distributing for use at the general election any ballots bearing the names of such individuals.

General demurrers to plaintiff's petition were filed by Ted W. Brown, Secretary of State, and by the members of the Board of Elections of Cuyahoga County, each demurrer alleging that the petition does not state facts which show a cause of action.

W. K. Gardner and Sterling Newell, Jr., Cleveland, for relator.

C. William O'Neill, Atty. Gen., and Joseph S. Gill, Columbus, for respondent Ted W. Brown, Secretary of State.

Frank T. Cullitan, Pros. Atty., and Saul S. Danaceau, Cleveland, for respondent members of the Board of Elections of Cuyahoga County.

Owen C. Neff, Cleveland, for intervening respondent, Robert W. chamberlin.

STEWART, Judge.

Three questions are presented to us in considering whether the demurrers of respondents to relator's petition should be sustained or overruled. They are:

1. Has relator the capacity or qualification which entitles him to maintain this action?

2. Is an action in prohibition a proper remedy for the relief which relator seeks?

3. Is the statute, under and in compliance with which Goldman, Sweeney and Chamberlin admittedly filed their petitions, valid and operative or is it invalid and inoperative as being in conflict with a provision of the Constitution of Ohio?

As to question number one, respondents argue that relator has no authority to maintain this action for the reason that it is axiomatic that to establish a cause of action the plaintiff must allege some right or status of the plaintiff and some action by the defendant which injured or interfered with plaintiff's right; and that relator will not be injured by being presented with a ballot on which a number of names have been placed, pursuant to the statute.

We are in agreement that ordinarily a person is not authorized to attack the constitutionality of a statute, where his private rights have suffered no interference or impairment, but in our opinion, as a matter of public policy, a citizen of a community does have such an interest in his government as to give him capacity to maintain a proper action to enforce the performance of a public duty affecting himself as a citizen and citizens generally.

Where a public right, as distinguished from a purely private right, is involved, a citizen need not show any special interest therein, but he may maintain a proper action predicated on his citizenship relation to such public right. This doctrine has been steadily adhered to be this court over the years. State v. Brown, 38 Ohio St. 344; State v. Henderson, 38 Ohio St. 644, 649; State ex rel. Gregg v. Tanzey, 49 Ohio St. 656, 32 N.E. 750; State ex rel. Trauger v. Nash, 66 Ohio St. 612, 64 N.E. 558; and Brissel v. State ex rel. McCammon, 87 Ohio St. 154, 100 N.E. 348.

The third paragraph of the syllabus in the last-cited case reads:

'In a proceeding in mandamus, where the relief sought is the enforcement of a public duty by a public officer or board, it is sufficient to sustain the right of the relator to maintain the suit that he show that he is a citizen and as such interested in the execution of the laws.'

In our opinion it is clear that relator is qualified to maintain the present action.

As to the second question, respondents argue that prohibition is not a proper remedy to obtain the relief which relator seeks; and that, since respondents are not judicial officers but simply administrative officials, they should not be subject to a writ of prohibition. However, it is relator's claim that respondents are attempting to place upon the ballot the names of men as candidates for judicial office, who are not entitled to have their names on such ballot, and are thus attempting to give life to what is claimed to be an invalid and unconstitutional statute.

In such a situation this court has decided that prohibition is the proper remedy to prevent the Secretary of State or a board of elections from taking any steps to place names of candidates on a ballot, where under the law the names may not properly be placed there. State ex rel. Stanley v. Bernon, 127 Ohio St. 204, 187 N.E. 733, and State ex rel. Smith v. Hummel, 146 Ohio St. 341, 66 N.E.2d 111. In the latter case it is stated in the syllabus:

'A writ of prohibition will issue to prevent placing on he primary ballots candidates' names which may not lawfully be placed there.'

Respondents' objection to prohibition as the remedy in the present situation is not well taken.

We now come to question number three which is the all-important question in the present action.

Section 3513.256, Revised Code, reads:

'The nominating petition of independent candidates for the office of representative to the general assembly, county commissioner, county auditor, prosecuting attorney, clerk of the court of common pleas, sheriff, county recorder, county treasurer, county engineer,...