Opinion
No. 35796
Decided October 8, 1958.
Elections — Prohibition against board of elections — Laches — Dilatoriness in prosecuting action — Candidate for common pleas judge — Qualifications — Relief denied.
IN PROHIBITION.
On August 23, 1958, relator filed in this court a petition in prohibition in which it is alleged that respondent Anthony Flex is a candidate for the office of Judge of the Common Pleas Court of Stark County for the term commencing January 1, 1959, at the general election to be held on November 4, 1958; that he will not have been admitted to practice as an attorney at law in this state for a period of six years immediately preceding January 1, 1959, the day of the commencement of the term of office for which he was nominated (as required by Section 2301.01, Revised Code); that if elected he will not be qualified to assume the office or perform the duties of such office; and that, unless the respondent board of elections is ordered to omit from the ballot the name of Anthony Flex, the board will cause his name to be printed on the ballot, although he is not qualified and can not qualify to hold such office.
The prayer of the petition is for a writ of prohibition to issue against the respondent board to prevent it from permitting the name of Anthony Flex to be printed on the ballot, and that he be required to set forth any claim he has that he is qualified for the office he seeks.
The respondents have filed separate demurrers to the petition, on the ground that it does not state facts sufficient to show a cause of action.
The case has been submitted on the petition and the demurrers thereto.
Mr. Clyde H. Wright, for relator.
Mr. Norman J. Putman, prosecuting attorney, for respondent Board of Elections of Stark County. Mr. William Saxbe, attorney general, and Mr. Hugh A. Sherer, for respondent Ted W. Brown, Secretary of State.
Mr. Earle E. Wise, for respondent Anthony Flex.
The petition in this case was not filed until August 23, 1958, eight days after the final date on which candidates could voluntarily withdraw, which was August 15, 1958, i. e., "prior to the eightieth day before the day of such general election" (Section 3513.30, Revised Code) and three days after the time during which vacancies could be filled, which was August 20, or "not later than the seventy-sixth day before the day of such general election" (Section 3513.31, Revised Code).
Under such circumstances, the unexplained dilatoriness on the part of relator, where time was an important factor and required his diligence, deprives him of the relief he now seeks. In the event the election result is favorable to Flex, other remedies will be available to relator.
The demurrers to the petition are sustained, and the writ of prohibition is denied. State, ex rel. Winterfeld, v. Board of Elections of Lucas County, 167 Ohio St. 531, 150 N.E.2d 420.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.
Although this case can be concluded on the ground of laches, it seems futile to deny the writ of prohibition and allow the name of the candidate to remain on the ballot when it is conceded that he will not have been admitted to practice as an attorney at law in this state for a period of at least six years immediately preceding the commencement of the term, as provided by Section 2301.01, Revised Code.
STEWART and MATTHIAS, JJ., concur in the foregoing concurring opinion.