State ex rel. Ward v. Kennedy, 27252.

• Decision Date: 05 October 1938
• Docket Number: No. 27252.,27252.
• Parties: STATE ex rel. WARD v. KENNEDY, Secretary of State.
• Court: Ohio Supreme Court

134 Ohio St. 348
16 N.E.2d 944

STATE ex rel. WARD
v.
KENNEDY, Secretary of State.

No. 27252.

Supreme Court of Ohio.

Oct. 5, 1938.

Original mandamus proceeding by the State, on the relation of Frank H. Ward, against William J. Kennedy, Secretary of State. On demurrer to petition.-[Editorial Statement.]

Demurrer sustained, and peremptory writ denied.

[16 N.E.2d 944]

This is an action in mandamus in which the relator seeks a peremptory writ compelling the respondent to place the relator's name on the ballot to be used in the election to be held on November 8, 1938.

At the primary on August 9, 1938, the relator, Frank H. Ward, was a candidate for the Republican nomination for judge of the Supreme Court of Ohio for the term ending December 31, 1938. On the face of complete official returns from the 88 counties in the state he received 130,379 votes, G. K. Allen, another Republican candidate, received 132,836 votes, or a plurality of 2,457 votes over relator, and it is alleged in the petition that the respondent, William J. Kennedy, secretary of state, ‘announced said G. K. Allen as nominated.’

Relator contends, however, that he is the Republican nominee because voting machines were used in all precincts in Trumbull county and the names of candidates were not rotated as required by Section 4785-80, General Code, in which county G. K. Allen, whose name appeared first on each ballot for that office, received 3,798 votes but the relator, whose name appeared last on each ballot, received only 524 votes. Relator pleads that because the names of candidates were not rotated on the ballot in that county, the popular will of the electors in that county was not ascertained, their legal expression was frustrated and non-compliance with the law had the effect of preventing a fair vote. He claims the nomination by 817 votes if the alleged illegal and unlawful vote in Trumbull county is not included in the computation by the respondent.

Other facts which are not essential to a decision are pleaded in the petition. This cause is before this court on a demurrer to the petition.

The respondent rests his demurrer upon three propositions:

1. Mandamus will not lie where there is an adequate remedy at law.

2. Mandamus will not lie to compel respondent to place relator's name on the ballot when the official results reveal that relator did not receive the highest number of votes.

3. There is no violation of the election laws of this state by the use of voting machines which do not provide...