Opinion
No. 31410
Decided June 16, 1948.
Mandamus — Writ issued only to command performance of duty specially enjoined — Section 12283, General Code — Writ not granted in anticipation of supposed omission of duty — Discretion not controlled or performance of implied power commanded — Secretary of State — No duty to prepare and have printed nominating-petition forms.
APPEAL from the Court of Appeals for Franklin county.
This proceeding in mandamus originated in the Court of Appeals.
The petition alleges in part that the relator has been duly nominated by the Prohibition Party as its candidate for United States senator in the general and presidential election on November 2, 1948; that in order to secure places on the Ohio ballot for the Prohibition Party candidates for president and vice-president of the United States, relator requested and received from the respondent a newly printed form of nominating petition prescribed by him and entitled "Nominating Petition (Independent Candidates) for Several Candidates or an Entire Ticket. Gen. Code Sees. 4785-91,-92,-99,-101"; that relator duly filed with the respondent written objections to the form of nominating petition, on the ground that the same contains no provisions which will in any way permit relator to vote for the Prohibition Party candidates for president and vice-president of the United States; and that respondent replied to relator that respondent had received a written opinion from the Attorney General of Ohio holding that, since Section 4785-107, General Code, does not provide for the placing on the presidential ballot the names of persons nominated in such manner, candidates for the offices of president and vice-president of the United States may not lawfully be made by independent nominating petitions.
The petition makes other allegations challenging the constitutionality of Sections 4785-99 and 4785-107, General Code, effective January 2, 1948.
The prayer of the petition is for, inter alia, a writ of mandamus commanding the Secretary of State to forthwith prepare and have printed proper forms of nominating petitions, to later prepare ballots in conformity with former Sections 4785-99 and 4785-107, General Code (113 Ohio Laws, 352 and 357), and to thereafter, in the event the relator and those associated with him, duly file with the respondent in accordance with law a nominating petition, have a column printed on the Ohio presidential ballot for the November 1948 general election, showing under the caption of Prohibition Party the names of the persons nominated by that party at its national convention for president and vice-president of the United States.
The respondent filed a demurrer to the petition for the reason that it does not state facts which show a cause of action.
The Court of Appeals sustained the demurrer and dismissed the relator's petition.
Appeal was perfected to this court as of right.
Mr. Frank M. Mecartney and Mr. George S. Hawke, for relator.
Mr. Hugh S. Jenkins, attorney general, and Mr. E.G. Schuessler, for respondent.
The only question presented by briefs in the Court of Appeals was whether the statutes of Ohio enjoin upon the Secretary of State a mandatory duty to prepare and have printed forms of nominating petitions for the offices of president and vice-president of the United States.
Section 12283, General Code, reads:
"Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station."
No statutory provision has been cited specially enjoining upon the Secretary of State the duty to prepare and have printed nominating-petition forms. The per-emptory writ of mandamus was properly denied for that reason. See State, ex rel. Kautzman, v. Graves, Secy. of State, 91 Ohio St. 113, 110 N.E. 185.
As to that portion of the prayer of the petition relating to having a column printed on the ballot, showing the Prohibition Party and its nominees, "mandamus is never granted in anticipation of a supposed omission of duty, however strong the presumption may be that the persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives." 25 Ohio Jurisprudence, 1000, Section 26. High's Extraordinary Legal Remedies, 16, Section 12. See, also, City of Zanesville v. Richards, 5 Ohio St. 590.
Counsel for relator in their brief contend that custom and usage may have the force of law; that Section 4785-7, General Code, grants power to the Secretary of State to furnish "other information and recommendations relative to elections as he may deem desirable"; and that courts will take judicial notice of the fact that it has been the custom of secretaries of state to prescribe and furnish printed forms of petitions to all who apply therefor.
That particular provision of Section 4785-7, General Code, is permissive and not mandatory. A writ of mandamus will not issue to control discretion or to command performance of an "implied" power. State, ex rel. Struble, v. Myers, Secy. of State, 132 Ohio St. 206, 6 N.E.2d 1; State, ex rel. Welsh, v. State Medical Board, 145 Ohio St. 74, 60 N.E.2d 620.
The judgment of the Court of Appeals, dismissing the petition for a writ of mandamus, is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.