State ex rel. Kay v. Brown

Ohio Supreme Court

State ex rel. Kay v. Brown

264 N.E.2d 908, 24 Ohio St. 2d 105, 53 Ohio Op. 2d 284, 1970 Ohio LEXIS 345

CourtOhio Supreme Court

DecidedDecember 2, 1970

DocketNo. 70-663

StatusPublished

Cited by4 cases

This text of 264 N.E.2d 908 (State ex rel. Kay v. Brown) 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

State ex rel. Kay v. Brown, 264 N.E.2d 908, 24 Ohio St. 2d 105, 53 Ohio Op. 2d 284, 1970 Ohio LEXIS 345 (Ohio 1970).

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Opinion

Per Curiam.

This is an action in mandamus originating in this court. Eelator, a candidate for the United State Senate of the American Independent Party, seeks to prevent respondent, Secretary of State, from counting the votes cast at the November 3, 1970, election for Howard Metzenbaum as a candidate for United States Senate. The cause is before the court on the petition of relator and answer of the respondent.

Eelator alleges that he filed a complaint under E. C. 3517.13, charging Metzenbaum with violation of E. C. 3517.08 through E. C. 3517.12 (Corrupt Practices Act), and seeks to prevent respondent from counting the votes cast for Mr. Metzenbaum.

In this action, relator seeks to obtain a writ of mandamus to prevent respondent from counting the votes. Mandamus is remedial in nature and commands the performance of a duty enjoined by law. Eelator does not seek to compel the performance of a duty, b,ut rather fa preyenf [106]*106respondent from performing an act. Although relator designates his action as one in mandamus, the relief he seeks is injunctive in nature. The original jurisdiction of this court, conferred by the Constitution, extends only to mandamus, quo warranto, habeas corpus, prohibition and procedendo. This court does not have authority to entertain an original action in injunction. State, ex rel. Smith, v. Indus. Comm. (1942), 139 Ohio St. 303.

Further, relator has an adequate remedy at law. If he should prevail in his action under R. C. 3517.13, that section provides that if the candidate is found to have violated those sections such candidate shall forfeit his election to the office.

Finally, the election to which this action is directed has now passed and Metzenbaum was not elected; therefore, the case is now moot.

Writ denied.

O’Neill, C. J., Herbert, Duncan, Corrigan, Stern and Leach, JJ., concur. Schneider, J., concurs in judgment only.

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Per Curiam.

This is an action in mandamus originating in this court. Eelator, a candidate for the United State Senate of the American Independent Party, seeks to prevent respondent, Secretary of State, from counting the votes cast at the November 3, 1970, election for Howard Metzenbaum as a candidate for United States Senate. The cause is before the court on the petition of relator and answer of the respondent.

Eelator alleges that he filed a complaint under E. C. 3517.13, charging Metzenbaum with violation of E. C. 3517.08 through E. C. 3517.12 (Corrupt Practices Act), and seeks to prevent respondent from counting the votes cast for Mr. Metzenbaum.

In this action, relator seeks to obtain a writ of mandamus to prevent respondent from counting the votes. Mandamus is remedial in nature and commands the performance of a duty enjoined by law. Eelator does not seek to compel the performance of a duty, b,ut rather fa preyenf [106]*106respondent from performing an act. Although relator designates his action as one in mandamus, the relief he seeks is injunctive in nature. The original jurisdiction of this court, conferred by the Constitution, extends only to mandamus, quo warranto, habeas corpus, prohibition and procedendo. This court does not have authority to entertain an original action in injunction. State, ex rel. Smith, v. Indus. Comm. (1942), 139 Ohio St. 303.

Further, relator has an adequate remedy at law. If he should prevail in his action under R. C. 3517.13, that section provides that if the candidate is found to have violated those sections such candidate shall forfeit his election to the office.

Finally, the election to which this action is directed has now passed and Metzenbaum was not elected; therefore, the case is now moot.

Writ denied.

O’Neill, C. J., Herbert, Duncan, Corrigan, Stern and Leach, JJ., concur. Schneider, J., concurs in judgment only.

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Bluebook (online)

264 N.E.2d 908, 24 Ohio St. 2d 105, 53 Ohio Op. 2d 284, 1970 Ohio LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-kay-v-brown-ohio-1970.

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