Opinion
No. 34612
Decided October 27, 1955.
Elections — Primaries — Nomination of municipal officers — Charter municipality may prescribe manner — Candidate at primary receiving majority vote — Only candidate to appear on ballot at regular election — Constitutional law.
IN MANDAMUS.
The relator, in his petition in mandamus filed originally in this court, alleges that he qualified as a candidate for the office of city councilman for the 25th ward of the city of Cleveland; that at the primary election he received the second highest number of votes in a field of three candidates; that another candidate received more than a majority of all votes cast in the ward for candidates for such office; and that the respondents, members of the Board of Elections of Cuyahoga County, refuse to certify relator as having been nominated and to have his name printed on the ballot to be used in the regular municipal election to be held on November 8, 1955.
The prayer of the petition is for a writ directing respondents to certify relator as a candidate nominated at the primary election and to order his name printed on the ballot to be used at the regular municipal election.
Respondents, in their answer, admit that at the nonpartisan primary election relator received the second highest number of votes in a field of three candidates, and that another candidate, one Jaffe, received more than a majority of all votes cast in the ward for all candidates for nomination for the office.
Respondents then quote, as follows, portions of the Charter of the City of Cleveland:
"3. Elections. A general election for the choice of elective officers provided for in this charter shall be held on the first Tuesday after the first Monday in November in odd numbered years. Elections so held shall be known as regular municipal elections. Such other elections shall be held as may be required by law, or provided for in this charter.
"4. Nominations. Candidates for all offices to be voted for at any municipal election under the provisions of this charter shall be nominated at a nonpartisan primary election to be held on the fifth Tuesday prior to such municipal election.
"* * *
"10. Selection of Candidates. The number of candidates for any office at any regular municipal election, in the city at large or in each ward, as the case may be, shall be the two candidates on the primary election ballot receiving the highest number of votes at the primary election. Provided that if any candidate at a primary election shall have received a majority of all of the votes cast for such office at the primary election he shall be the candidate for such office at the regular municipal election. In case there shall not be for any office more than two persons who shall have filed petitions as provided for in this charter, the said persons shall be the candidates at the regular municipal election and the primary for that particular office shall not be held.
"The name of each person who is nominated in compliance herewith shall be printed on the official ballot at the general election, and the names of no other candidates shall be printed thereon.
"* * *
"13. Blank Spaces on Ballots. One blank space shall be left at the end of the list of candidates for each office in which the elector may insert by writing, stamping or pasting the name of any eligible person, not printed on the ballot, for whom he desires to vote for such office, and votes cast for such person shall be counted and entered on the tally sheet."
Respondents allege further that, by reason of the fact that Jaffe received a majority of all votes cast for nomination for the office of councilman for the 25th ward, he was the only candidate nominated for such office; that, in accordance with the provisions of section 10 of the charter, the name of Jaffe shall be printed on the official ballot for the general election and the names of no other candidates shall be printed thereon; and that the petition does not state facts which show a cause of action in mandamus. Respondents pray that the petition be dismissed.
Relator filed a demurrer to the answer.
Mr. Alexander Martin, Jr., and Mr. Albert R. Gamble, for relator.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Saul S. Danaceau, for respondents.
This case presents for determination the construction and constitutionality of section 10 of the charter, hereinbefore quoted, relator contending that the application of section 10, as construed by respondents, is violative of Section 1 of Article XVII of the Constitution.
Under the home-rule provision of the Constitution (Section 7, Article XVIII), a municipality which has adopted a charter form of government has the power to prescribe the manner of nominating its purely local officers. State, ex rel. Hackley, v. Edmonds, Clerk, 150 Ohio St. 203, 80 N.E.2d 769.
The provisions of section 10 of the charter deal only with nominations. Section 1 of Article XVII of the Constitution does not deal with the subject of nominations.
The provision of section 10 of the charter, that if a candidate at a primary election shall receive the majority of votes cast he shall be the candidate for office at the regular municipal election, does not have the effect of providing for the election of such candidate to the office, as contended by relator, but merely determines the number of candidates for office at the general election and does not prevent electors from writing in the name of any person qualified for the office.
This court is of the opinion that Section 10 of the Charter of the City of Cleveland is not violative of Section 1, Article XVII of the Constitution.
The demurrer to the answer is overruled, and a writ of mandamus is denied.
Demurrer overruled and writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.