State ex rel. Crosser v. McDonough

101 Ohio St. (N.S.) 363

• Court: Ohio Supreme Court
• Decided: October 5, 1920
• Docket: No. 16793
• Status: Published

Opinion

By the Court.

This was a proceeding in mandamus against the deputy state supervisors and inspectors of elections of Cuyahoga county. The proceeding was brought in the court of appeals of that county and was heard on a demurrer to the amended petition. The demurrer was sustained, judgment was entered for the defendants, and this proceeding is brought to reverse that judgment.

After allegations setting out the official position of the defendants, that the relator, Robert Crosser, was a candidate for the Democratic nomination for Congress in the 21st District, that John J. Babka was also a candidate for that nomination, and that following the primary election the defendants announced that Babka had a plurality of one vote over the relator; after alleging with great detail certain irregularities which occurred during the election in different precincts and wards in the district, and that certain votes were illegally cast for Babka ; and, after further allegations that the declaration of defendants that Babka had a plurality over the relator was untrue and fraudulent, the petition prays for a writ of mandamus commanding the defendants to rescind their action in reference to the different irregularities specifically set out in the petition, to rescind their action declaring said Babka to be the Democratic nominee for Congress in the 21st District, and to place the name of the relator on the ballot as the Democratic candidate for Congress on the regular ticket.

Before the writ of mandamus will be issued it must be shown that the act to be required is one especially enjoined by law as a duty resulting from and attaching to the office of the defendants.

We think it clear that the case presented by the allegations of the amended petition is one for a contested election, and the general assembly, in obedience to . the mandatory provisions of Section 21, Article II of the Constitution, having prescribed the tribunal and the manner in which contested elections may be conducted, the court of appeals correctly sustained the demurrer to the petition, therefore, for the reasons given in the opinion this day filed in State, ex rel. Wood, v. Russell et al., post, 365, the judgment will be affirmed.

Judgment affirmed.

Jones, Matthias, Johnson, Wanamaker and Avery, JJ., concur. < Nichols, C. J., and Robinson, J., took no part in the consideration or decision of the case.