STATE, EX REL. CLAY v. MADIGAN

Elections — Primary nominations for Lima city commissioner — Mandamus lies to place candidate's name on ballot, when — Abuse of discretion by deputy supervisors in refusing to place name upon ballot — Demurrer to petition admits well pleaded facts — Four candidates names to be placed upon ballot for two vacancies — Section 78, Lima City Charter — Candidate receiving fourth highest vote ineligible and resigned as commissioner — Candidate receiving fifth highest primary vote to be placed on ballot.

1. Though under Section 4974, General Code, decision of board of deputy supervisors of elections on protest filed against candidate for office within county is final, yet if action in refusing to place name of candidate on ballot amounts to an abuse of discretion, writ of mandamus will lie.

2. In determining sufficiency of petition for mandamus on demurrer thereto, facts well pleaded are assumed to be true.

3. Under Lima City Charter, Section 78, board of state supervisors of election was required to place on ballot names of candidates for city commission receiving greatest number of votes at primary, not exceeding four, where there were two vacancies to be filled.

4. Where candidate receiving fourth largest number of votes for city commission was ineligible for office and resigned, his name could not lawfully be considered by board of election supervisors in determining four candidates receiving greatest number of votes at primary election entitled to be placed on ballot to fill two vacancies, and refusal by board of elections to place name of relator standing fifth in primary on ballot for election as one of four receiving greatest number of votes was abuse of discretion for which writ of mandamus would lie.

WILLIAMS, J.

This is an original proceeding in mandamus, in which the relator, Frank C. Clay, seeks to compel the defendants James M. Madigan, H.E. Garling, M.M. Bogart, and William Roeger, as members of the board of deputy state supervisors of elections of Allen county, Ohio, to place relator's name upon the ballot at the November election as a candidate for member of the city commission of the city of Lima, Ohio.

The petition is demurred to on the ground that it does not state facts sufficient to constitute a cause of action. The sole question for our determination is whether or not the petition is demurrable.

The petition alleges that the relator is a citizen and elector of the city of Lima, that that city is a charter city under the Constitution and laws of the state of Ohio, and that at the August primary in 1927 the five candidates receiving the highest number of votes for members of the city commission, with the vote received, were as follows:

Edwin Blank ............................................ 1,219 John A. Harley ......................................... 908 John T. Rankin ......................................... 860 H.L. Breckenridge ...................................... 856 Frank C. Clay .......................................... 666

The petition also states that on September 1, 1927, H.L. Breckenridge resigned as a candidate for member of the city commission aforesaid, and that the board refused to certify and place relator's name upon the ballot.

The petition also alleges facts that show that H.L. Breckenridge never has been a citizen of the United States, but is, and always has been, a subject of Great Britain, and that there are two vacancies on the city commission to be filled at the November election.

The petition also sets out various provisions of the charter of the city of Lima which show the creation of a city commission, to consist of five electors of the city, and among other provisions it sets out verbatim Section 78, which, in so far as it is material, is as follows:

"Section 78. The candidates for nomination to the office of city commissioner who shall receive the greatest number of votes in such primary election shall be placed on the ballot at the next regular municipal election in number not to exceed twice the number of vacancies in the city commission to be filled, and the candidates at the regular municipal election, equal in number to the places to be filled, who shall receive the highest number of votes at such regular municipal election, shall be declared elected."

Under Section 4974, General Code, the decision of the board of deputy state supervisors of a county, upon a protest filed against a candidate for an office of a district lying within the county, is final.

While it is true that, ordinarily, in matters of that kind the decision of the board is final, yet, if the action in refusing to place the name of relator on the ballot amounted to an abuse of discretion, a writ of mandamus would lie. State, ex rel. Smith, v. Smith, Secy. of State, 101 Ohio St. 358, 129 N.E. 879; State, ex rel. Gongwer, v. Graves, Secy. of State, 90 Ohio St. 311, 107 N.E. 1018.

In determining the sufficiency of the petition, we must assume the facts well pleaded to be true, and under that part of Section 78 above quoted it was the duty of the board to place upon the ballot at the November election the candidates who received the greatest number of votes in the primary election, not to exceed twice the number of vacancies to be filled. The board was required to place upon the ballot the names of the candidates receiving the greatest number of votes not exceeding four, as there were two vacancies to be filled. As Breckinridge was ineligible for the office, not being an elector, and had, in addition thereto, resigned, his name could not lawfully be considered in determining those who received the greatest number of votes. If the name of Breckenridge were excluded from consideration, the relator would be one of the four having the greatest number of votes at the primaries, and it was an abuse of discretion upon the part of the board to refuse to put relator's name upon the ballot for the November election. The demurrer should therefore be overruled.

As the defendants have indicated that in case the demurrer should be overruled they would not desire to plead further, final judgment will be entered in favor of the plaintiff, allowing the writ of mandamus as prayed for.

Writ allowed.

RICHARDS and HUGHES, JJ., concur.

Judges RICHARDS and WILLIAMS of the Sixth Appellate District sitting in place of Judges CROW and JUSTICE of the Third Appellate District.