State Ex Rel. Patterson v. Schirmer

By the Court. This is an original action in mandamus in this court. The relator, Alex Patterson, was a candidate for County Recorder on the Republican ticket at the August, 1934, primary. Leo H. Beckman was nominated for the same office at the Democratic primary, and was also thereafter nominated by petition on the Citizens ticket. Thereafter, on September 11, 1934, Alvin H. Rowe, a citizen and elector of Hamilton county, filed objections with the Board of Elections of Hamilton county against said nominating petition, on the ground that Beckman had theretofore been nominated as a Democratic candidate in the primary. These objections were overruled by the Board of Elections on September 17, 1934. The name of Leo H. Beckman was printed on the official ballots, both on the Democratic ticket and the Citizens ticket, and at the election Beckman received 64,334 votes on the Democratic ticket and 38,411 votes on the Citizens ticket, while Alex Patterson received 92,775 votes on the Republican ticket. The relator seeks a writ of mandamus commanding the members of the Board of Elections to declare him elected to the office of County Recorder and to issue to him a certificate of election to such office. Issue was made by demurrer to the petition. At the threshold of the consideration of relator’s demand he is confronted by the doctrine of laches. The nominating petition challenged was filed with the Board of Elections September 5,1934. Under the provisions of Section 4785-92, General Code, objection *145 thereto may be made within five days. The ballots were not printed until thirty days thereafter, and the election was more than sixty days subsequent to the filing of the petition in question. Though an elector protested, the relator filed no objection until after the election and the ascertainment of the result thereof and then, without previous challenge of the nominating petition of his opponent by the relator, this effort is made to contest the election by proceeding in mandamus. What the result would have been had Beckman’s name appeared on but one ballot is entirely a matter of conjecture. Relator elected to take that chance, and the court will not now entertain his application for a writ of mandamus. Though a proceeding for mandamus was entertained in the cases cited (State, ex rel. Conner, v. Noctor, 106 Ohio St., 516, 140 N. E., 878, and Noctor v. State, ex rel. Linehan, 108 Ohio St., 404, 140 N. E., 894), as there pointed out and emphasized, a total want of authority to make nominations by petition was asserted, and that claim was maintained. We'decline to further extend the use of the writ of mandamus in such cases. The demurrer is therefore sustained and the writ of mandamus is denied. Writ denied. Weygandt, O. J., Garver, Hart, Stephenson, Williams, Jones and Matthias, JJ., concur.