State, Ex Rel. Rose v. Ryan , 119 Ohio App. 363 ( 1963 )

Relator, Fred Rose, filed his petition in this court asking that a writ of mandamus issue to require the respondents, members of the Board of Elections of Franklin County, to provide a paper ballot for the next general municipal election in accordance with the charter provisions of the city of Columbus. Respondents demurred to relator's petition on the ground that the petition does not state facts sufficient to constitute a cause of action.

The petition alleges that relator is "a qualified elector and resident of the city of Columbus," and a candidate for the office of city attorney.

The petition further alleges that the machine-type ballot does not conform to the requirements of the city charter in nine particulars. Specifications for the form of the ballot to be used in municipal elections are found in Sections 201, 210, and 211 of the charter of the city. A part of Section 201 is important to this matter. It is as follows:

"* * * One space shall be left below the printed names of the candidate for each office to be voted for, wherein the voter may write the names of any person for whom he may wish to vote."

Relator urges, in items 4 and 7 of his petition, that the machine-type ballot does not meet the requirements of the city charter as quoted above. The items in the petition are as follows:

"4. The write-in space on said machine type ballot cannot be left below and under the office designated wherein the voter may write the names of any person for whom he may wish to vote."

"7. The machine type ballot contains covered slots at a different location and angle and does not conform with the specific examples set forth in the charter."

The county prosecutor, as counsel for the respondents, urges that certain provisions in the city charter are "antiquated" and that voting machines were not contemplated when the charter provisions were framed. This is obvious when it is recalled that the charter was adopted May 5, 1914, Section 201 still remaining in its original form. Section 210 has not been amended since November 7, 1933.

Attention is directed to State, ex rel. Devine, Pros. Atty., v. Hoermle (1959), 168 Ohio St. 461, in which the court held the Charter of the City of Columbus to be controlling over state statutes in filling vacancies on the city council. Recognizing that there should be some legal method of filling a vacancy, the court still says, with finality, at page 464, as follows:

"* * * However, it is necessary to amend the Columbus charter in order to provide such a legal method. This court has no power or authority to do that."

The position taken by the Supreme Court in that case is followed in State, ex rel. Allison, Pros. Atty., v. Jones (1960),170 Ohio St. 323.

This court held that charter provisions are controlling in a case involving the same parties as in the instant case, in a decision under date of April 2, 1963, State, ex rel. Rose, v.Ryan, 193 N.E.2d 540. This court relied upon and followed the case of State, ex rel. Haffner, v. Green et al., Board ofDeputy State Supervisors and Inspectors of Elections (1953),160 Ohio St. 189, in which the court says, at page 193, as follows:

"* * * a charter city has full authority to provide for the nomination of their elective officers, * * *."

By the same token, the charter city has full authority to prescribe the method of election of its officers.

Section 3507.05 (D), Revised Code, if it were controlling, would help to prevent the demurrer of the respondents from being effective. Requirements for voting machines are set out in the section including the provision as follows:

"It shall permit each voter to deposit, write in, or affix, upon devices provided for that purpose, ballots containing the names of persons for whom he desires to vote, whose names do not appear upon the voting machine. * * *."

That language, together with the provision for alternative ballot devices found in Section 3507.11, Revised Code, suggests that the request for a separate paper ballot for use in the election of a city official, for which office there has been no formal nominations, is sufficiently well founded to require a decision upon the merits and not upon demurrer.

By virtue of the provisions of the Charter of the City of Columbus, which are controlling over statute, and by reason of the support found in the language contained in Sections3507.05(D), 3507.11 and 3507.15, Revised Code, it is clear that the petition of relator states a cause of action sufficient to withstand the demurrer of the respondents.

The demurrer of the respondents is overruled, and respondents are given leave to answer or plead on or before October 4, 1963.

Demurrer overruled.

DUFFEY and TROOP, JJ., concur.