Opinion
No. 33774
Decided March 10, 1954.
Elections — State Senator and Representatives — Special election to fill vacancies — Time fixed by Governor discretionary — Exercise of discretion not subject to judicial control — Mandamus.
IN MANDAMUS.
By this proceeding in mandamus relator seeks a writ requiring the Governor to call a special election in Cuyahoga county to fill vacancies in the offices of state Senator and state Representative for that county, as required by Section 3521.03, Revised Code.
Respondent in his answer alleges that he has fully performed the mandatory duty imposed by the statute by directing that a special election be held on the regular election day, November 2, 1954, to fill such vacancies, and by fixing the day of the primary election for such special election as May 4, 1954.
Relator alleges in his reply that the answer does not state a good defense.
The cause is now before the court on respondent's motion for judgment on the pleadings.
Mr. Richard B. Kay, in propria persona. Mr. C. William O'Neill, attorney general, and Mr. Robert E. Leach, for respondent.
The respondent has performed his mandatory duty by ordering that a special election be held and by setting a time therefor. The time for holding such election is discretionary with the Governor, and that discretion is not subject to judicial control in the absence of an abuse thereof. State, ex rel. Armstrong, v. Davey, Governor, 130 Ohio St. 160, 198 N.E. 180.
The motion for judgment is allowed and a writ is denied.
Writ denied.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.