State ex rel. Williamson v. Cuyahoga County Board of Elections

Per Curiam. We must first decide whether the votes cast for Lambros at the November 8, 1983 election may be counted. In Spangler, supra, we held that Lambros was not an eligible candidate at the time of the election. The temporary restraining order issued by the United States District Court was ultimately dissolved and therefore has no effect on the Spangler ruling. Thus, the only eligible candidate on the ballot was relator and only his votes may be counted. We reject as unfounded the Secretary of State’s contention that Williamson must have received a greater number of votes than Lambros in order to win the election. The authority relied upon by respondent is misplaced and in [92] appropriate to the facts under review. Respondent correctly cites the rule that “ ‘[w]here the candidate receiving the highest number of votes is ineligible to election, the candidate receiving the next highest number of votes for the same office is not elected. Only the eligible candidate who receives the highest number of votes for the office for which he stands is elected to such office.’ ” (Emphasis added.) State, ex rel. Halak, v. Cebula (1977), 49 Ohio St. 2d 291, 293 [3 O.O.3d 439]. See, also, State, ex rel. Raff, v. Pask (1933), 126 Ohio St. 633, paragraph three of the syllabus. This rule applies only where, at the time of the election, there was more than one eligible candidate but the candidate receiving the highest number of votes was disqualified or otherwise unable to take office following the election. In the case at bar, relator was the only eligible candidate and respondents are under a clear legal duty to count only the votes cast for relator in the November 8, 1983 election for law director. The second issue raised is whether respondents may be compelled by way of mandamus to certify relator as the winner of the election. Relator argues that since he was the only candidate, he must be certified as the duly elected law director. Respondents assert that relator may not be certified as the duly elected law director unless it is shown that he received the number of votes required by Section 6.01, Article VI of the Charter of the city of Brook Park which provides in relevant part: “* * * Where there is only one candidate for the office of Law Director at the election in the year of 1979 or any subsequent election for said office, the candidate must receive at least fifty percent (50%) plus one (1) of the total votes cast in the General Election. [Emphasis added.] “In the event that no person is elected to the office of Law Director, due to failure to receive the required number of votes or other cause, the Mayor, with the concurrence of a majority vote of Council, shall appoint the Law Director * * This provision is ambiguous because it fails to clearly set forth the basis for determining whether a candidate has obtained the majority required. This ambiguity arises, first, because the charter does not define the words “General Election.” Section 11.02, Article XI of the Charter of the city of Brook Park provides: “A general municipal election for the purpose of the election of officers provided for in this Charter shall be held on the first Tuesday after the first Monday in November in each odd numbered year. Elections so held shall be known as regular municipal elections. All other elections held under the provisions of this Charter or as required by law shall be known as special municipal elections.” (Emphasis added.) Thus, under the charter, the election held on November 8,1983 was not a general election. Moreover, we cannot ascertain whether Section 6.01 requires a candidate to obtain a majority of all votes cast in the election, all votes cast for law [93] director or those cast in some other race. These ambiguities are not resolved by other provisions of the charter. Section 11.07, Article XI of thb Brook Park City Charter provides: “Except as otherwise provided in this Charter, all elections shall be held and conducted and the results thereof ascertained and certified as provided by the general laws of the State of Ohio and by the election authorities therein provided for. * * *.” If the general law applied, declaration of the winner of the election would be governed by R.C. 3505.33 under which the candidate for each office who “received the largest * * * number of votes * * *” is elected to such office. By failing to define the terms used in Section 6.01 of the charter, the city has failed to provide guidelines for the manner in which that provision is to operate. Accordingly we find that provision unenforceable. State, ex rel. Halak, v. Skorepa (1983), 6 Ohio St. 3d 97, 99. The writ is allowed and respondents are ordered to count only the votes cast for relator and to declare relator the duly elected law director as required by R.C. 3505.33. Writ allowed. Celebrezze, C.J., Sweeney, C. Brown and J. P. Celebrezze, JJ., concur. W. Brown, Locher and Holmes, JJ., dissent.