Opinion
No. 38432
Decided October 23, 1963.
Elections — Qualifications of candidate for Municipal Court judge — Section 1901.06, Revised Code — Constitutionality thereof — Admission to "practice of law" — Contemplates admission as duly licensed attorney at law — Board of elections — Power to determine eligiblity of candidate for office.
IN MANDAMUS.
This is an action in mandamus originating in this court wherein relator, Dale Williams, seeks to compel respondent Board of Elections of Trumbull County to place his name on the ballot as a candidate for judge of the Newton Falls Municipal Court.
The facts are agreed. Relator is not an attorney at law. He has served for eight years as a justice of the peace and as a County Court judge and is presently serving in the latter capacity. The area in which he is serving now falls within the territorial jurisdiction of the newly created Newton Falls Municipal Court.
On August 7, 1963, relator filed his petition as a candidate for municipal judge. A protest was filed to his petition on the ground that he was not qualified for the office of municipal judge under Section 1901.06, Revised Code, in that he had not been admitted to the practice of law in Ohio. The protest was sustained by the board of elections, whereupon the present action in mandamus was instituted.
Mr. Joseph J. Craciun, for relator.
Mr. Lynn B. Griffith, Jr., prosecuting attorney, and Mr. Clarence A. Klinger, for respondents.
Relator contends that a board of elections has no power to determine the eligibility of a candidate for office, and that Section 1901.06, Revised Code, violates the Constitution of Ohio.
Both these questions were determined in State, ex rel. Flynn, v. Board of Elections of Cuyahoga County, 164 Ohio St. 193. In that case it was held that Section 1901.06, Revised Code, is constitutional, and that a board of elections is authorized and required in a protest proceeding to determine whether the candidate is eligible under the statutes for the office which he seeks.
However, relator contends that the action of the board was a determination of the qualifications for this office, and that in determining relator ineligible it exercised a judicial function.
The board in this proceeding was not determining the qualifications for office, but whether the candidate had met the qualifications imposed by the statute. The qualifications themselves are created by statute and not by the board. The statute requires, as one of the qualifications for the office, that the candidate be "admitted to the practice of law in the state." A determination as to whether one has been admitted to the practice of law is clearly a matter of fact. The board found that relator has not been admitted to the practice of law, and this relator admits. He was, therefore, as the board properly determined, not eligible as a candidate for municipal judge.
The phrase, "admitted to the practice of law," as used in Section 1901.06, Revised Code, contemplates that the candidate has conformed not only to the requirements for admission to the bar but also has been admitted to practice as a duly licensed attorney at law. By his own admission relator has not met this qualification, and, therefore, he is not eligible for the office of municipal judge.
Relator having shown no clear legal duty on the part of the board to place his name on the ballot, the writ is denied.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and GIBSON, JJ., concur.
GRIFFITH, J., not participating.