Opinion
No. 27282
Decided October 5, 1938.
Elections — Mandamus — Placing names of candidates for county engineer on ballot — Secretary of State not proper party — Prosecuting attorney directed by board of elections not to: defend.
IN MANDAMUS.
Mr. W.O. Wallace and Messrs. Metzger, McCorkhill Metzger, for relators.
Mr. Harbert S. Duffy, attorney general, and Mr. Herman G. Kreinberg, for respondent, Secretary of State.
The relators, Charles O. Snyder and Robert S. Wheatley, filed in this court their petition in mandamus to compel the Secretary of State and the respondent members of the Board of Elections of Columbiana county to cause the names of relators, who had been duly certified as the Republican and Democratic nominees for the office of County Engineer of that county, to be printed upon the ballots to be voted at the general election to be held on November 8, 1938, to select a successor to Lloyd C. Kirk, whose term expired on January 3, 1937, and is holding office as a hold-over until his successor is elected and qualified. An alternative writ was issued and made returnable.
A demurrer by the Secretary of State was sustained upon the ground of misjoinder of parties, as that official is not required by Section 4785-86, General Code, or any other provision of law, to certify to the several boards of elections the names of candidates for county offices.
The prosecuting attorney, upon being notified of the date of hearing of the cause upon oral argument, advised this court that the board of elections had adopted a resolution notifying him, as legal adviser of that board under Section 2917-1, General Code, that the board of elections did not desire to defend the action and that the board desired the writ to issue if the court so instructed.
In State, ex rel. Kirk, v. Wheatley, 133 Ohio St. 164, 12 N.E.2d 491, this court held that Kirk continued to hold over in office until his successor is elected and qualified. Opportunity for such election is provided at the general election to be held on November 8, 1938.
Writ allowed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.