Opinion
No. 24086
Decided May 31, 1933.
Elections — Recount — Compliance with statute necessary — Application, $10 per precinct or cost bond within five days — Section 4785-162, General Code.
ERROR to the Court of Appeals of Fulton county.
This is a proceeding in error, seeking to reverse the Court of Appeals of Fulton county. The action originated in the Court of Appeals of that county by the filing of a petition in mandamus. The Court of Appeals sustained a demurrer to the petition and granted leave to plead. Fred H. Wolf and the clerk of the board of elections of Fulton county, Ohio, were made defendants. Each of the three defendants filed general demurrers to the amended petition, which had been duly filed. The Court of Appeals sustained the demurrers to the amended petition, and, the plaintiff not desiring to plead further, judgment was entered against him in the Court of Appeals. This proceeding in error is brought here to reverse the judgment of the Court of Appeals. It therefore becomes necessary to briefly summarize the material facts averred in the amended petition:
1. That at the November, 1932, election, relator was a candidate for common pleas judge of Fulton county; that he was voted for as a candidate for such office; that on November 11th the respondent board of elections issued its certificate of the official count.
2. That on November 12, 1932, relator told one of the members of the board of elections that he intended to file an application and bond for a recount, and asked that the board fix the amount of the bond.
3. That on November 16th relator filed his written application, which is copied in full in the amended petition, demanding a recount of the ballots cast in each of the thirty-three precincts of the county for the two candidates for common pleas judge, Fred H. Wolf and relator; such application having been made not later than the fifth day after the certificate of the official count had been made.
4. That on November 15th relator presented his application to the clerk of the board and asked that the amount of the bond be fixed; that the clerk told him that the board had met on November 14th and had taken action anticipating the matter, had instructed the clerk to notify relator that no bond would be received or accepted, but that a cash deposit of $5 per precinct was demanded for each precinct in which a recount was to be had; that the board by action ordered the clerk to demand and accept $5 per precinct, but not to accept any bond.
5. That relator told the clerk of the board that he was ready, willing and able to file a bond to the approval of the board, "and offered to file a bond with said board of elections to the approval of said board of elections," but that the clerk refused to permit the relator to file a bond; that relator was prevented by the board and the clerk from filing a bond; that he was then and is now ready, willing and able to furnish a bond and attaches to his amended petition a bond which he now tenders.
6. That relator deposited with the board the sum of $5 for each of the thirty-three precincts in said county, or a total sum of $165; that the board fixed November 22d as the time for the recount to begin; that relator was present and that on said date Fred H. Wolf appeared and filed a written motion, copy of which is set forth in the amended petition, objecting to the jurisdiction of the board, and moving for a dismissal of the proceeding; that the board adjourned to November 25th.
7. That on November 25th relator demanded the board to proceed to recount each and all of such thirty-three precincts separately, which was refused; that relator thereupon offered and tendered the additional sum of $5 per precinct, or an additional $165, which was also refused; and that thereupon said application was dismissed by the board.
8. That relator avers he is entitled to have the board fix the amount of the bond for such recount, to pass upon the sufficiency of the sureties and to proceed with the recount, but that the board refuses to perform its official duties in refusing to fix the amount of the bond, etc.
The relator prays that a writ of mandamus issue commanding said board of elections to proceed in the manner provided by law to fix the amount of the bond to be filed by relator to secure a recount of such ballots; to act by approving or disapproving the sureties on the bond tendered by the relator; upon the approval of such bond to file the same; to proceed with the recount of all the ballots cast for the candidates for judge of the court of common pleas of Fulton county, Ohio, at the November, 1932, election; and for such other proper relief to which he may be entitled.
As heretofore noted, the Court of Appeals having sustained the demurrer to the amended petition, its judgment entered in the case is before this court for review.
Messrs. Newcomer Parker and Mr. Fred R. Fowler, for plaintiff in error.
Mr. F. Mercer Pugh, prosecuting attorney, Mr. Clyde L. Canfield, Mr. Leroy E. Eastman and Mr. Frederic E. Wolf, for defendants in error.
The controversy in the present instance must be determined upon the construction of Section 4785-162, General Code (114 Ohio Laws, 708), providing for recounts at a primary or other election. This section provides, in part, as follows: "Any candidate voted for at a primary or other election, * * * by making an application in writing to the board of elections, shall be entitled to have the votes for any such candidate, or other candidates for the same office * * * recounted in any or all precincts, upon the following terms and conditions. Such application must be made not later than the fifth day after the certificate of the official count has been made, and by depositing with the application ten ($10.00) dollars per precinct, or a bond to be approved by the board, to pay the actual cost of such recount, but in no case less than five ($5.00) dollars, and not to exceed ten ($10.00) dollars per precinct, for each precinct in which the recount is desired."
The rights of the relator must be measured by the requirements of this statute. An analysis thereof shows: First, the application, in writing, to the board of elections in order to entitle the candidate making the same to the recount, is coupled with "the following terms and conditions," so that the terms and conditions referred to in Section 4785-162 are as essential as the application in writing.
The first condition is that the application must be made not later than the fifth day after the certificate of the official count has been made. The second condition is that such application, by the terms of the statute, is coupled with the language " and by depositing with the application" (a) ten dollars per precinct, or (b) a bond, to be approved by the board, to pay the actual cost of such recount, such bond to be to the approval of the board and in no case less than five dollars per precinct, and not to exceed ten dollars per precinct. That is to say, the terms of the statute require that the bond shall protect the cost of the recount up to ten dollars, and in no case less than five dollars, per precinct.
This provision as to the bond refers to the cost of the recount and not to the amount of the bond as such, because the statute, Section 4785-162, General Code, further provides that: "If the petitioner * * * succeed in establishing error sufficient to change the results * * * then the deposit for such precinct shall be refunded, otherwise, the actual cost of such recount shall be paid into the general fund of the county in which such recount is had * * *."
The record in the present case discloses that the relator, before the expiration of the fifth day after the making of the certificate of the official count, having filed his application in writing for a recount, failed to deposit the ten dollars in cash per precinct, but deposited only one-half of that amount, it being necessary to recount the entire county, the election involved being one for a common pleas judgeship; and while the amended petition shows that he was ready and willing to give a bond, no actual tender of a bond appears of record until the filing of the petition herein, which was beyond the period of time fixed by the statute.
This record showing that there has not been a compliance with the statute in providing for a recount, it follows that the Court of Appeals was right in its conclusion in sustaining the demurrer to the amended petition, and its judgment in so doing is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, ALLEN, STEPHENSON, JONES and MATTHIAS, JJ., concur.