State ex rel. Sagebiel v. Bd. of Elections of Montgomery Cnty., 30166.
| Decision Date | 01 November 1944 |
| Docket Number | No. 30166.,30166. |
| Parties | STATE ex rel. SAGEBIEL v. BOARD OF ELECTIONS OF MONTGOMERY COUNTY et al. |
| Court | Ohio Supreme Court |
STATE ex rel. SAGEBIEL
v.
BOARD OF ELECTIONS OF MONTGOMERY COUNTY et al.
No. 30166.
Supreme Court of Ohio.
Nov. 1, 1944.
There is no duty resting upon a board of elections (though so ordered by the Secretary of State) to prepare a separate ballot for the November 7, 1944, election with party designations but with the name of no candidate thereon, for the purpose of filling a vacancy in the office of county commissioner caused by the death of an incumbent occurring subsequent to July 20, 1944.
BELL, HART, and WILLIAMS, JJ., dissenting.
Original action in mandamus by the State, on the relation of one Sagebiel, against the Board of Elections of Montgomery county, Ohio, and others to compel respondents to obey the order of the Secretary of State as to printing of a separate ballot. On motion to dismiss.-[Editorial Statement.]
Motion to dismiss overruled, peremptory writ of mandamus denied and cause dismissed.
This is an original action in mandamus instituted by one Sagebiel, a citizen, taxpayer and elector of Montgomery county, as relator, against the members of the board of elections of Montgomery county and the clerk of such board, as respondents.
It appears that on August 19, 1944, E. F. Tinnerman, a county commissioner of Montgomery county, died. The term of office for which he was elected will expire on December 31, 1946. An appointment was duly made to fill the vacancy for the unexpired term or until a successor was elected and qualified.
Respondents, members of the board of elections, being equally divided on the question of whether a ballot should be provided containing space for a ‘write-in’ candidate for the unexpired term of Tinnerman at the general election to be held on November 7, 1944, submitted that question to the Secretary of State of the state of Ohio as provided in Section 4785-13, General Code. By written order dated September 18, 1944, based upon an opinion of the Attorney General of Ohio rendered September 12,
[57 N.E.2d 662]
1944, the Secretary of State instructed the respondents ‘to have a separate ballot issued containing space for a write-in candidate for both major political parties for the unexpired term of county commissioner.’
Respondents failing to comply with the described order, the Secretary of State on October 17, 1944, again directed, in writing, compliance with the order of September 18, 1944.
In his petition the relator prays for a writ of mandamus ‘to compel said board, and the members thereof, and the clerk, to obey the order of the Secretary of State, as the chief election officer, as to the printing of a separate ballot, or provide said ballot for the general election to be held Tuesday, November 7, 1944, containing a space for the write-in candidate for both major political parties for the unexpired term of Elmer F. Tinnerman, deceased, for county commissioner.’
Motions to dismiss have been filed on behalf of respondents and answers have been filed.
Robert J. Kelly and Herbert D. Mills, both of Dayton, for relator.
Nicholas F. Nolan, Pros. Atty., and Edward E. Duncan, both of Dayton, for respondent Board of Elections.
Calvin Crawford, John M. Sprigg and R. A. Argabright, all of Dayton, for respondent Albert H. Wetecamp.
TURNER, Judge.
Owing to the emergency nature of this action the court has consented to consider the petition, motions and answers at the same time. The motions question the jurisdiction of this court for the reason that the petition contains no allegation ‘that any express or distinct demand was made by the relator upon the defendants, or any of them.’
Defendants rely for the support of their motions upon 25 Ohio Jurisprudence, 1001, § 27. However, it is to be noted that in this same section it is stated: ‘In this connection, a distinction is made between duties of a public nature, which affect the public at large, and duties of a merely private nature, which affect only the right of individuals. According to the better view, where the duty sought to be enforced is one owing to the public generally, no demand for performance is requisite to place the respondent in default, as a prerequisite to mandamus to compel the performance of the duty; in such cases the law itself stands in lieu of a demand, and the omission to perform the required duty, in place of a refusal.’
The motions of respondents are therefore overruled.
In the answer of respondent Wetecamp it is alleged: ‘Defendant alleges that subsequent to the issuance of said letter by the Secretary of State under date of September 15, 1944, the Common Pleas Court of Montgomery county, Ohio, entered its final order enjoining the Board of Elections of Montgomery county, Ohio, from printing special ‘write-in’ ballots for the unexpired term of Elmer F. Tinnerman, deceased, as county commissioner, for the reason that said ballots could not be issued and distributed in accordance with Am. Sub. [sic] S. B. 284 of the laws of the state of Ohio, which said order is in full force and effect.' The board's answer contains the additional allegation that the injunction was asked to prevent the expenditure of public funds for the purpose.
This same defense was urged in oral argument in behalf of all respondents. Owing to the necessity for a prompt decision in this matter we shall not pass upon the foregoing question for two reasons: (A) The present record is insufficient to determine the question of the jurisdiction of the Common Pleas Court; and (B) it will be our holding that the petition does not state facts sufficient to justify the issuance of a peremptory writ of mandamus.
Section 12283, General Code, provides in part as follows: ‘Mandamus is a writ issued, in the name of the state, * * * commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.’
Relator seeks a peremptory writ to compel the members of the board of elections and its clerk to obey the order of the Secretary of State ‘as to the printing of a separate ballot * * * for the general election to be held...
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