State ex rel. Wesselman v. Board of Elections of Hamilton County, 36265

• Citation: 170 Ohio St. 30,162 N.E.2d 118
• Decision Date: 21 October 1959
• Docket Number: No. 36265,36265
• Parties: , 9 O.O.2d 364 STATE ex rel. WESSELMAN, Appellee, v. BOARD OF ELECTIONS OF HAMILTON COUNTY et al., Appellants.
• Court: United States State Supreme Court of Ohio

Page 30

170 Ohio St. 30

162 N.E.2d 118, 9 O.O.2d 364

STATE ex rel. WESSELMAN, Appellee, v. BOARD OF ELECTIONS OF HAMILTON COUNTY et al., Appellants.

No. 36265.

Supreme Court of Ohio.

Oct. 21, 1959.

Syllabus by Court

1. A citizen has the capacity to maintain a proper action to enforce the performance of a public duty relating to elections and affecting himself and citizens generally, even where such action involves an attack on the constitutionality of a statute.

2. A Court of Appeals that allows a writ of mandamus to a relator does not thereby abuse its discretion merely because such relator also has an adequate remedy in the ordinary course of the law.

3. The provisions of the first sentence of Section 2a of Article V of the Ohio Constitution are self-executing. (State ex rel. Russell v. Bliss, 156 Ohio St. 147, 101 N.E.2d 289, followed.)

4. The amendment to Section 3507.07, Revised Code, as effective October 15, 1959, conflicts with Section 2a of Article V of the Ohio Constitution and is therefore void.

This action was instituted in the Court of Appeals for Hamilton County by the filing of a petition against the board of elections of that county and the Secretary of State, alleging that relator 'is a citizen, taxpayer and qualified elector' of Hamilton County, that the respondents propose to print and arrange the names of candidates on voting machines in accordance with the amendment to Section 3507.07, Revised Code, which will become effective on October 15, 1959, and praying for a writ of mandamus directing respondents to arrange the names of candidates for the general election on November 3, 1959, on voting machines in Hamilton County as required by the provisions of Section 2a of Article V of the Ohio Constitution.

The foregoing statutory amendment reads:

'On each voting machine the names of the candidates of each political party at any general election shall be arranged in a separate horizontal row or vertical column under or opposite the title of the office so that on each voting machine the names of all candidates of each political party will appear in the same horizontal row or vertical column. The order of such rows or columns shall be rotated by precincts in regular serial sequence, so that the names of the candidates of each political party shall appear, in so far as may be reasonably possible, substantially an equal number of times in each of the rows or columns appearing on the voting machines of the voting district under the titles of the offices for which they are candidates. Where there is more than one candidate for the same office of the same political party the names shall be rotated as equally as possible in the bracket [sic] under the title of the office sought.' (Emphasis added.)

Section 2a of Article V of the Constitution of Ohio reads:

'The names of all candidates for an office at any general election shall be arranged in a group under the title of that office, and shall be so alternated that each name shall appear (in so far as may be reasonably possible) substantially an equal number of times at the beginning, at the end, and in each intermediate place, if any, of the group in which such name belongs. Except at a party primary or in a non-partisan election, the name or designation of each candidate's party, if any, shall be printed under or after each candidate's name in lighter and smaller type face than that in which the candidate's name is printed. An elector may vote for candidates (other than candidates for electors of President and Vice-President of the United States) only and in no other way than by indicating his vote for each candidate separately from the indication of his vote for any other candidate.' (Emphasis added.)

The judgment of the Court of Appeals held that the foregoing amendment to Section 3507.07, Revised Code, is unconstitutional and therefore allowed the writ of mandamus prayed for.

The cause is now before this court on appeal from that judgment of the Court of Appeals, pursuant to the provisions of Section 2, Article IV of the Constitution, giving this court 'appellate jurisdiction * * * in cases which originated in the courts of appeals.' ^*

C. Watson Hover, Pros. Atty., Cincinnati, Mark McElroy, Atty. Gen., John A. Hoskins, Columbus, and Gerald J. Celebrezze, Cleveland, for appellants.

Lindhorst & Dreidame, Cincinnati, and G. C. Farris, Columbus, for appellee.

TAFT, Judge.

It is contended that relator, although a citizen, has no standing to bring this action.

However, paragraph one of the syllabus in State ex rel. Newell v. Brown, 162 Ohio St. 147, 122 N.E.2d 105, reads:

'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.'

It may be that this is too broad a statement but that case certainly holds that a citizen has the capacity to maintain a proper action to enforce the performance of a public duty relating to elections and affecting himself and citizens generally, even where such act involves an attack on the constitutionality of a statute. See State ex rel. Skilton v. Miller, 164 Ohio St. 163, 164, 165, 128 N.E.2d 47, 49 A.L.R.2d 1279, and State ex rel. Blackwell v. Bachrach, 166 Ohio St. 301, 143 N.E.2d 127.

It is next contended that relator has an adequate remedy by way of injunction or declaratory judgment to secure the relief sought. This court will ordinarily, in the exercise of its discretion, deny a writ of mandamus where there is a plain and adequate remedy in the ordinary course of the law. However it undoubtedly has the power to allow a writ even in such an instance. See State ex rel. Selected Properties, Inc. v. Gottfried, 163 Ohio St. 469, 478, 127 N.E.2d 371. In the instant case, the Court of Appeals, in the exercise of its discretion, allowed a writ. A Court of Appeals that allows a writ of mandamus to a relator does not thereby abuse its discretion merely because such relator also has an adequate remedy in the ordinary course of the law.

The substantive question to be determined is whether the amendment to Section 3507.07, Revised Code, which is quoted in the statement of the case, is constitutional. This will depend upon whether its provisions conflict with the provisions of Section 2a of Article V of the Constitution. In State ex rel. Russell v. Bliss, 156 Ohio St. 147, 101 N.E.2d 289, which was a unanimous decision by this court, the syllabus reads:

'The provision of Section 2a, Article V of the Ohio Constitution, that 'the names of all candidates for an office at any general election shall be arranged in a group under the title of that office, and shall be so alternated that each name shall appear (in so far as may be reasonably possible) substantially an equal number of times at the beginning, at the end, and in each intermediate place, if any, of the group in which such name belongs,' is self-executing.'

In that case as in this, the relator sought to compel the respondents 'to...