Cooper v. Kosling

Ohio Supreme Court

Cooper v. Kosling

94 N.E.2d 1, 154 Ohio St. 207, 154 Ohio St. (N.S.) 207, 42 Ohio Op. 306, 1950 Ohio LEXIS 407

CourtOhio Supreme Court

DecidedAugust 23, 1950

Docket32275

StatusPublished

This text of 94 N.E.2d 1 (Cooper v. Kosling) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cooper v. Kosling, 94 N.E.2d 1, 154 Ohio St. 207, 154 Ohio St. (N.S.) 207, 42 Ohio Op. 306, 1950 Ohio LEXIS 407 (Ohio 1950).

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Opinion

By the Court.

The petition fails to state a cause of action for contest of an election. It does not allege that *208 contestee did not receive the largest number of votes or that there was error, fraud or mistake in the tabulation of the votes cast. Contesters having, in effect, attempted, in this action, to have determined the validity or invalidity of the declaration of candidacy, procedure for which is specifically prescribed in Section 4785-70, General Code, have herein pursued the wrong remedy.

It may be noted, however, that the contesters had previously, pursuant to the provisions of Section 4785-70, General Code, filed protests with the board of elections requesting that contestee’s name be not printed on the ballot. The board overruled the protests. The contesters then instituted an action for mandatory injunction prohibiting the board from printing contestee’s name on the ballot. In that case the facts involved in the instant case were presented. Both the Court of Common Pleas and the Court of Appeals denied the relief sought, and this court overruled a motion to certify the record and dismissed the appeal filed as of right (Cooper v. Gorman, 154 Ohio St., 92).

The petition is dismissed.

Petition dismissed.

Weygandt, C. J., Matthias, Hart and Zimmerman, JJ., concur. Stewart, Turner and Taft, JJ., not participating.

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By the Court.

The petition fails to state a cause of action for contest of an election. It does not allege that *208 contestee did not receive the largest number of votes or that there was error, fraud or mistake in the tabulation of the votes cast. Contesters having, in effect, attempted, in this action, to have determined the validity or invalidity of the declaration of candidacy, procedure for which is specifically prescribed in Section 4785-70, General Code, have herein pursued the wrong remedy.

It may be noted, however, that the contesters had previously, pursuant to the provisions of Section 4785-70, General Code, filed protests with the board of elections requesting that contestee’s name be not printed on the ballot. The board overruled the protests. The contesters then instituted an action for mandatory injunction prohibiting the board from printing contestee’s name on the ballot. In that case the facts involved in the instant case were presented. Both the Court of Common Pleas and the Court of Appeals denied the relief sought, and this court overruled a motion to certify the record and dismissed the appeal filed as of right (Cooper v. Gorman, 154 Ohio St., 92).

The petition is dismissed.

Petition dismissed.

Weygandt, C. J., Matthias, Hart and Zimmerman, JJ., concur. Stewart, Turner and Taft, JJ., not participating.

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Bluebook (online)

94 N.E.2d 1, 154 Ohio St. 207, 154 Ohio St. (N.S.) 207, 42 Ohio Op. 306, 1950 Ohio LEXIS 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-kosling-ohio-1950.

Opinion

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