State ex rel. Ward v. Kennedy

• Decision Date: 05 October 1938
• Docket Number: 27252.
• Citation: 134 Ohio St. 348,16 N.E.2d 944
• Parties: STATE ex rel. WARD v. KENNEDY, Secretary of State.
• Court: Ohio Supreme Court

16 N.E.2d 944

134 Ohio St. 348

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

No. 27252.

Supreme Court of Ohio

October 5, 1938

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 for rotation of names of candidates in primary elections.

Frank H. Ward, of Columbus, for relator.

Herbert S. Duffy, Atty. Gen., and Herman G. Kreinberg, of Cleveland for respondent.

BY THE COURT.

It has been repeatedly held by this court that mandamus will not lie where there is a plain and adequate remedy in the ordinary course of law. State ex rel. Tax Commission v Mills, 103 Ohio St. 172, 132 N.E. 727. See, also Section 12287, General Code.

The respondent contends that this action is, in effect, a contest of the nomination of G. K. Allen; that the election laws of this state, by virtue of Sections 4785-166 to 4785-174, General Code, provide a definite procedure for the contest of an election; and that, therefore, the relator has a plain and adequate remedy at law. The relator, on the other hand, states: 'We are not 'contesting' the election. We admit that Mr. Allen was nominated on the total vote cast; we submit that relator was nominated on the total legal vote cast.' Thus the question is squarely presented whether mandamus is the proper way to determine the legality of the votes cast in the Trumbull county primary, or, in other words, whether mandamus may be invoked to test the validity of an election.

The validity of the election...