94 N.E.2d 1
No. 32275Supreme Court of Ohio.
Decided August 23, 1950.
Elections — Qualifications of candidates — Contest of elections — Not proper remedy to determine, when.
CONTEST OF ELECTION.
This action originated in this court as a contest of election proceeding under the provisions of Section 4785-166 et seq., General Code.
The petition alleges that at the primary election held on May 2, 1950, contestee’s name was on the ballot for nomination for representative in Congress although he was not a legally qualified candidate by reason of the facts that he was not, on the day of the election, a qualified elector in the state, that he “got his name on the ballot * * * by conspiracy of fraud and perjury,” and that contestee therefore received no legal vote; yet the board of elections issued to him a certificate of election.
The prayer of the petition is that the court declare invalid the nomination of contestee and the certificate of election for the nomination issued to him by the board of elections, and that the court declare one of the contesters to be nominee.
The answer denies that the contestee was not a legally qualified candidate, that he received no legal vote, that he was not a qualified elector, and “that he got his name on the ballot * * * by conspiracy of fraud and perjury.” The prayer of the answer is that the petition be dismissed.
Mr. Locke Miller, in propria persona.
Messrs. Jenkins, Schuessler, Wendit Gill, for contestee.
BY THE COURT.
The petition fails to state a cause of action for contest of an election. It does not allege that
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contestee did not receive the largest number of votes or that there was error, fraud or mistake in the tabulation of the votes cast. Contesters having, in effect, attempted, in this action, to have determined the validity or invalidity of the declaration of candidacy, procedure for which is specifically prescribed in Section 4785-70, General Code, have herein pursued the wrong remedy.
It may be noted, however, that the contesters had previously, pursuant to the provisions of Section 4785-70, General Code, filed protests with the board of elections requesting that contestee’s name be not printed on the ballot. The board overruled the protests. The contesters then instituted an action for mandatory injunction prohibiting the board from printing contestee’s name on the ballot. In that case the facts involved in the instant case were presented. Both the Court of Common Pleas and the Court of Appeals denied the relief sought, and this court overruled a motion to certify the record and dismissed the appeal filed as of right (Cooper v. Gorman, 154 Ohio St. 92).
The petition is dismissed.
Petition dismissed.
WEYGANDT, C.J., MATTHIAS, HART and ZIMMERMAN, JJ., concur.
STEWART, TURNER and TAFT, JJ., not participating.
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