Opinion
No. 28357
Decided September 20, 1940.
Elections — Separate national party column ballot — Section 4785-99, General Code (118 Ohio Laws, 748) — Circle required at head of ballot for voting straight ticket — Section 4785-105, General Code — Presidential ballot a party column ballot.
IN MANDAMUS.
This is an action in mandamus originating in this court and heard on demurrer to the petition.
The petition of relator, Charles Sawyer, alleges that the respondent, George M. Neffner, secretary of state, has threatened to omit from the official national party column ballot the circle beneath the device and above the name of the party at the head of the ticket, and to substitute therefor a national party column ballot with but one enclosed rectangular space at the left of the names of the candidates for President and Vice President of the United States on the respective Democratic and Republican tickets; and that respondent has had such a form of ballot printed and has threatened to make his official recommendation and give his official approval to such form to the boards of elections in the respective counties of the state.
The petition then sets forth those provisions of Section 4785-105, General Code, which require such circle, used in voting a straight ticket, to be placed on the ballot. It is then alleged that Section 4785-105, General Code (113 Ohio Laws, 355), was not repealed, either directly or by implication, by the amendment to Section 4785-99, General Code (118 Ohio Laws, 748), effective June 22, 1940, separating the state from the national party column ballot.
The petition further alleges that it is the duty of the respondent to approve the form of ballot and to order the respective boards of elections to print the same as directed by him.
The prayer of the petition is that a writ of mandamus issue to compel the respondent to place upon all the national party column ballots for voting for President and Vice President at the November 5, 1940, election such circle for voting straight party tickets.
Mr. Robert N. Gorman, Mr. Simeon M. Johnson and Mr. John F. Ward for relator.
Mr. Thomas J. Herbert, attorney general, Mr. E.G. Schuessler and Mr. Aubrey A. Wendt, for respondent.
By the amendment to Section 4785-99, General Code, separation of the state and national party column ballots is required. It contains no provision whatever relating to the form of the ballots as separated. The act amending Section 4785-99, General Code, did not directly or by implication repeal the express provision of Section 4785-105, General Code, which requires a circle at the head of party column ballots.
The presidential ballot is a party column ballot and therefore comes within the provisions of Section 4785-105, General Code.
The demurrer to the petition is overruled and, respondent not desiring to plead further, a writ of mandamus is allowed.
Writ allowed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.