Opinion · Ohlaw Ohio
STATE EX REL. v. APPEL, 165 Ohio St. 498 (1956)
STATE, EX REL. BARKLOW, APPELLEE v. APPEL ET AL., Bd. OF ELECTIONS OFSCIOTO COUNTY, ET AL., APPELLANTS., 137 N.E.2d 674 (Ohio 1956)
- Type
- Opinion
- Court
- Ohlaw Ohio
- Jurisdiction
- Ohlaw
- Date
- 1956-10-17
- Topic
- general
STATE EX REL. v. APPEL, 165 Ohio St. 498 (1956) 137 N.E.2d 674 THE STATE, EX REL. BARKLOW, APPELLEE v. APPEL ET AL., BOARD OF ELECTIONS OFSCIOTO COUNTY, ET AL., APPELLANTS. No. 34970Supreme Court of Ohio.
Citator
UpLaw has not yet analyzed STATE EX REL. v. APPEL, 165 Ohio St. 498 (1956). The absence of a flag is not a finding that it is good law.
STATE EX REL. v. APPEL,165 Ohio St. 498(1956)
137 N.E.2d 674
THE STATE, EX REL. BARKLOW, APPELLEE v. APPEL ET AL., BOARD OF ELECTIONS OF
SCIOTO COUNTY, ET AL., APPELLANTS.
No. 34970
Supreme Court of Ohio.
Decided October 17, 1956.
This is an action in mandamus instituted originally in the Court of Appeals for Scioto County. The respondents, Carl W. Appel, Frank Purdy, Landon L. Ball and Daniel E. Brushart, members of the Board of Elections of Scioto County, hereinafter called members, and Floyd Hillman, are appellants herein, and relator, O. Carson Barklow, is the appellee.
The relator is a candidate for the office of county engineer of Scioto County at the election to be held November 6, 1956, and prior to the institution of this action had filed a protest with the Board of Elections of Scioto county against the issuance of a certificate of nomination to Hillman, claiming that Hillman up to and including August 1, 1956, was not a registered professional surveyor under the laws of Ohio and was not licensed to practice surveying in this state, and that Hillman is, therefore, ineligible as a candidate for the office of county engineer of Scioto County.
A hearing was held by the board of elections on the relator's protest. The members were equally divided on the question of the issuance of a certificate of nomination, and the transcript with the issues involved was sent to the Secretary of State of Ohio. This action in mandamus was thereupon commenced in the Court of Appeals for Scioto County. Subsequently the Secretary of State cast his vote in favor of the issuance of the certificate of nomination, and the certificate was thereupon issued on August 17, 1956.
A hearing was held before the Court of Appeals. The evidence discloses that the relator is a resident elector and taxpayer of Scioto County and holds the office of county engineer of that county; that at the primary election held on May 8, 1956, the name of Hillman was written in by 3,001 electors upon thePage 499Republican ticket; and that on June 6, 1956, Hillman paid the filing fee as a candidate for the office of county engineer and on June 7, 1956, filed his expense accounts in connection with such nomination.
The evidence shows that Hillman since 1941 has been a professional engineer entitled to practice under a certificate issued by the state of Ohio, but that he did not secure a license as a registered surveyor until August 6, 1956, which certificate was issued to him as the result of an application filed March 9, 1956, and an examination conducted by the Ohio Board of Registration for Professional Engineers and Surveyors on July 6 and 7, 1956.
There is substantially no conflict in the evidence. Upon the submission of the issues, the Court of Appeals found on the pleadings and evidence that Hillman "failed to meet the requirements of a candidate for the office of county engineer and that, therefore, the action of the respondents, as members of the Board of Elections of Scioto County, Ohio, was in disregard of the provisions of laws applicable in the state of Ohio."
A peremptory writ of mandamus was issued against the members that they "cause to be printed and issued a ballot for the general election to be held on the 6th day of November 1956, within Scioto County, Ohio, omitting therefrom the name of Floyd Hillman as a candidate for the office of county engineer of Scioto County, Ohio."
The cause is before this court on appeal from the judgment of the Court of Appeals.
Respondents claim that it was error to grant a writ of mandamus in this case, for the reason that the decision of the boardPage 500of elections resulted from a tie-breaking vote cast by the Secretary of State, whose decision under Section3501.11, Revised Code, is final. This section provides in part as follows.
"In all cases of a tie vote or a disagreement in the board, if no decision can be arrived at, the clerk shall submit the matter in controversy to the Secretary of State, who shall summarily decide the question and his decision shall be final."
Numerous decisions of this court have established the rule that, "notwithstanding the decision of the board [of elections] is declared by statute to be final, it may nevertheless be reviewed if procured by fraud or corruption, or where there has been a flagrant misinterpretation of a statute, or a clear disregard of legal provisions applicable thereto." SeeState, exrel. Flynn, v.Board of Elections of Cuyahoga County,164 Ohio St. 193,129 N.E.2d 623. As disclosed in that case, the use of mandamus in like actions has been approved in prior cases decided by this court.
The gist of respondents' claims relates to the finding of the Court of Appeals that Hillman did not possess the statutory qualifications to be a candidate for the office of county engineer.
Section315.02, Revised Code, relating to the eligibility of a candidate for the office of county engineer, is as follows:
"No person holding the office of Clerk of the Court of Common Pleas, sheriff, county treasurer, or county recorder is eligible to hold the office of county engineer. No person is eligible in any county as a candidate for such office or shall be elected or appointed thereto unless he is a registered professional engineer and a registered surveyor, licensed to practice in this state, or unless he has previously served as county engineer immediately prior to his election to such office."
Compliance with this provision is mandatory, as is disclosed by the third paragraph of the syllabus ofState, ex rel. Kirk, v.Wheatley,133 Ohio St. 164,12 N.E.2d 491, which is as follows:
"The provisions of Section 2783, General Code [Section315.02, Revised Code], are mandatory, and one who is not a registered professional engineer and registered surveyor licensed to practice in the state of Ohiois not eligible as a candidatefor the office of county engineer or to be elected or appointedPage 501thereto unless he shall have previously served as county engineer immediately prior to his election." (Emphasis added.)
We find that Hillman was a candidate and was required to meet the eligibility requirements of a candidate, under the above statute and case, at least when he paid his filing fee and filed his expense accounts as a candidate.
He paid the filing fee as a candidate for county engineer on June 6, 1956, and on June 7, 1956, as such candidate he filed his expense accounts. The evidence is clear and undisputed and shows that he did not meet the qualifications of the office of county engineer and, therefore, was not eligible as a candidate at the time he acknowledged his candidacy by paying such filing fee and filing such expense accounts.
We hold, therefore, that, since Hillman was not a registered surveyor at the time he paid his filing fee and filed his expense accounts as a candidate for county engineer, he did not meet the mandatory qualifications of Section315.02, Revised Code, and is not eligible as a candidate for the office.Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART and TAFT, JJ., concur.
BELL, J., not participating.