State ex rel. Smith v. Hummel
| Decision Date | 27 March 1946 |
| Docket Number | 30629. |
| Citation | 66 N.E.2d 111,146 Ohio St. 341 |
| Parties | STATE ex rel. SMITH v. HUMMEL, Secretary of State, et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
Until his death on December 16, 1944, O was the duly elected qualified and acting sheriff of Summit county for the term of four years beginning Monday, January 6, 1941. At the general election on November 7, 1944, he was re-elected for a term of four years beginning Monday, January 1, 1945. A vacancy having resulted from O's death, S became his duly appointed and qualified successor on December 21, 1944, and continued to hold the office thereafter. On February 13 1945, S resigned, the next day he was reappointed and he still holds the office. R, M and S have filed declarations and petitions as candidates for nomination for the office of sheriff of such county at the primary election to be held May 7, 1946. S brings this proceeding in prohibition to prevent the placing of the names of those candidates on the party ballots for such primary election. Held:
1. A writ of prohibition will issue to prevent placing on the primary ballots candidates' names which may not lawfully be placed there.
2. By S's original appointment as sheriff, he held the office for the unexpired term which ended December 31, 1944, and thereafter until the election and qualification of his successor.
3. By his resignation and reappointment, S did not acquire any right to tenure that he did not have Before, and he continues to hold the office until his successor is elected at the general election to be held on the first Tuesday after the first Monday in November 1946 and qualified.
This proceeding in prohibition was brought originally in this court on February 11, 1946 against the Secretary of State and the Board of Elections of Summit county. The relator, Robert L. Smith, seeks a writ of prohibition to restrain the printing of the names of candidates for the office of sheriff of Summit county on the official primary ballots at the primary election to be held the 7th day of May 1946.
An agreed statement of facts has been filed herein and consequently the facts are not in dispute. On November 5, 1940, Walter P. O'Neil was re-elected to the office of sheriff of Summit county for a term of four years commencing Monday, January 6, 1941. He qualified for the office and, on November 7, 1944, was again re-elected for a term of four years, commencing on Monday, January 1, 1945. O'Neil died December 16, 1944, without qualifying for the new term. On December 19, 1944, the relator, Smith, was appointed to fill the vacancy in the old term--the term O'Neil was filling at the time of his death. On December 21, 1944, a commission was issued to Smith by the Governor of the state of Ohio, in which it was declared that Smith 'has been duly appointed to the office of sheriff for the unexpired term of Walter P. O'Neil, deceased' and that the 'term will expire when successor has been elected and qualified.' Smith duly qualified for the office. On February 13, 1945, the Board of County Commissioners of Summit county declared the office of sheriff vacant for the reason that the person elected as sheriff at the November 7, 1944, election, namely O'Neil, did not give bond on or before the first day of January 1945. On February 13, 1945, the board of county commissioners accepted the resignation of Smith, and on the next day again appointed Smith to fill the so-called vacancy in the office of sheriff and to hold the office during the unexpired term, to wit, until the first Monday of January 1949. On February 14, 1945, the Governor issued a commission which recited that Smith had been appointed to the office of sheriff for the unexpired term of O'Neil deceased, and that Smith's term would expire the day before the first Monday in January 1949. Walter B. Rice has filed a declaration of candidacy and petitions for nomination for sheriff for the unexpired term, as a Republican candidate, to which office O'Neil had bee nelected. Likewise, John H. Mihaly and the relator Smith have filed declarations and petitions for nomination as Democratic candidates for the same term on the May primary ballot. Smith forwarded a letter to the board of elections in which he stated that he claimed to hold the office of sheriff for the remainder of the term which expires the day before the first Monday in January 1949, and advised the board in substance that he had filed his declaration and petitions as a matter of precaution.
Slabaugh, Guinther, Jeter & Pflueger, of Akron, for relator.
Hugh S. Jenkins, Atty. Gen., and E. G. Schuessler, of Cincinnati, for respondent Edward J. Hummel.
Alva J. Russell, Pros. Atty., and W. A. Spencer, both of Akron, for respondent, Board of Elections of Summit County.
Weick & Mason, of Akron, for respondents Ray Bliss, A. S. Helpbringer, and Walter B. Rice.
The first question presented is whether a writ of prohibition is the proper remedy. In the case of State ex rel. Stanley v. Bernon et al., Bd. of Elections of Cuyahoga County, 127 Ohio St. 204, 187 N.E. 733, it was held that such a writ will lie to prevent a board of elections from placing on a ballot the names of the candidates whose nominating petitions have not been filed within the time prescribed by statute. In the instant case the writ is sought to prevent placing the names of candidates for nomination for sheriff of Summit county for the unexpired term on the primary ballot, upon the claimed ground that the relator, the present incumbent, under his reappointment as sheriff holds until the end of the current term which does not expire until the day before the first Monday in January 1949. In principle there is no distinction between the two situations. The writ lies to prevent the 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. There writ of prohibition is the proper remedy. See, also, State, ex rel. Patton v. Myers, Secy. of State, 127 Ohio St. 95, 186 N.E. 872, 90 A.L.R. 570; State ex rel. Donnelly v. Myers, Secy. of State, 127 Ohio St. 104, 186 N.E. 918; State ex rel. Patton v. Myers, Secy. of State, 127 Ohio St. 169, 187 N.E. 241.
The second question is whether the relator held by his first appointment the office of sheriff for the unexpired term which ended December 31, 1944 (which was the day before the first Monday in January 1945), and thereafter until the election and qualification of his successor.
Section 2828, General Code (84 Ohio Laws, 208), prior to its amendment (121 Ohio Laws, 343, effective October 11, 1945), provided in its material part as follows:
That section, however, must be weighed in the light of Section 10, General Code (amended 117 Ohio Laws, 346, effective August 11, 1937), which reads as follows:
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