Opinion
No. 39340
Decided June 9, 1965.
Elections — Auditor of State — Unexpired term — To be held in even-numbered years, only.
IN MANDAMUS.
By this action in mandamus, originating in this court, the relator, Thomas E. Ferguson, seeks to compel the respondent, the Secretary of State, to accept for filing relator's declaration of candidacy and nominating petition as a candidate for the unexpired term of Auditor of State in the general election to be held on November 2, 1965. Intervening respondent, John D. Herbert, filed a cross-petition seeking similar relief.
The respondent refused to accept and file such declarations of candidacy and petitions on the ground that the Constitution and laws of Ohio do not permit the holding of an election to elect the Auditor of State in 1965, an odd-numbered year.
The respondent demurred to the petition and cross-petition on the ground that they do not state a cause of action in mandamus.
Mr. Nelson Lancione, for relator.
Mr. William B. Saxbe, attorney general, and Mr. Clark G. Redick, for respondent.
Messrs. George, Greek, King McMahon and Mr. Kiehner Johnson, for intervening respondent.
The sole question presented is whether, under the constitutional and statutory provisions, an election for Auditor of State can be held in 1965, an odd-numbered year.
Section 1 of Article XVII of the Constitution provides that "elections for state and county officers shall be held on the first Tuesday after the first Monday in November in the even-numbered years; and all elections for all other elective officers shall be held on the first Tuesday after the first Monday in November in the odd-numbered years."
Section 2 of Article XVII provides that "every such vacancy [Auditor of State] shall be filled by election at the first general election for the office which is vacant."
Section 18, Article III, provides: "Should the office of auditor * * * become vacant * * * Every such vacancy shall be filled by election, at the first general election that occurs more than thirty days after it shall have happened * * *." (Emphasis added.)
The determinative issue is the meaning of the phrase, "at the first general election." The phrase, "first general election," in relation to state offices, means the general election which, under Section 1 of Article XVII, occurs in the even-numbered years.
The demurrer to the petition and cross-petition is sustained, and the writ is denied on authority of State, ex rel. Grace, v. Broad of Elections of Franklin County, 149 Ohio St. 173.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.