
    The State, ex rel. Fowler, v. Board of Elections of Fulton County. 
    (Decided December 19, 1932.)
    
      Messrs. Newcomer $ Parlcer, for relator.
    
      Mr. L. 8. Ward, prosecuting attorney, Mr. C. L. Canfield and Mr. L. E. Eastman, for defendant.
   Lloyd, J.

This is an action for a writ of mandamus brought by the relator, Fred B. Fowler, against the defendant, the Board of Elections of Fulton County, to compel a recount of the votes cast at the general election held November 8, 1932, for the office of judge of the court of common pleas, and is now submitted to the court on demurrer of defendant to the petition of relator. At this election Fred H. Wolf and the relator, Fred B. Fowler, were opposing candidates for the aforesaid office. The official count of the ballots showed that Wolf was elected by a majority of 24, and an official certificate of such election was accordingly issued to him. On November 16th relator made an application in writing to the defendant for a recount of the votes, depositing therewith $165 in cash, or $5 per precinct; there being 33 precincts in the county. The application reads as follows:

“The undersigned, Fred B. Fowler, who was a candidate for election to the office of Judge of the court of common pleas of Fulton County, Ohio, at the recent general election held in said county on the 8th day of November, 1932, hereby makes application and demand of your Board for a recount of the non-partisan ballots respecting the votes cast for Fred H. Wolf and Fred B. Fowler, candidates for said office, and for a fair and lawful determination of the correct and lawful ballots cast for each of said candidates, and for a correction of all errors found or made,' and for a correct determination of all matters involved therein.

“Dated this 15th day of November, 1932.

“Fred B. Fowler.”

When relator presented the application for a recount of the votes he requested of the clerk of defendant that the amount of the bond be fixed, and was told that the defendant would not receive any bond and that a cash deposit of $5 must be made for each precinct in which a recount is demanded; that no bond would be fixed or accepted; and that the defendant had instructed him not to receive any bond for a recount of the ballots in any precinct. The minutes of defendant in this regard are as follows:

“Wauseon, Fulton Co. Nov. 14th, 1932. Present, Robt. Drennan, Chairman, Ed. Scott, Clerk, Gr. W. Lee, W. L. Biddle.

“Anticipating a filing of a recount for common pleas judge and the above members all agreeing that if a recount was asked for a deposit of $5.00 per precinct if whole Co. was to be recounted and set date for recounting Tuesday, Nov. 22nd, 1932.

“Board adjourned to meet on call of Chairman.

“Robert Drennan, Chairman.

“Ed Scott, Clerk.”

The clerk of defendant board refused to accept or file any bond with the application for a recount, and although'told by relator that he was ready, willing and able to file a bond, which relator then offered to file with defendant, the clerk of defendant refused to permit relator to file such bond and stated that a cash deposit of $5 per precinct would be accepted. Upon filing the application, relator paid the $165 fixed by action of the defendant, and received the following receipt:

“The receipt of said One Hundred and Sixty Five Dollars ($165.00) in cash is hereby acknowledged by this Board by the said Fred B. Fowler, this 16th day of Nov. 1932.

“[Signed] Ed. Scott,

“Clerk of said Board.”

Thereafter relator received the following notice from the defendant:

“Mr. Fred B. Fowler,

“Wauseon, Ohio.

“Dear Sir:

“Application for a recount of the Non-Partisan Ballots respecting the votes cast for Fred H. Wolf and Fred B. Fowler, candidates for the office of Judge of the Court of common pleas for Fulton County, Ohio.

“Filed and cash deposits made Nov. 16th, 1932.

“Recount to start Tuesday, Nov. 22nd, 1932, at the Board’s office.

“Yours very truly,

“Ed Scott, Clerk Board of Elections.” “Thereafter the following was received by relator:

“Nov. 19th, 1932.

“Mr. Fred B. Fowler,

“Wauseon, Ohio.

“Dear Sir:

“Recount for Judge to start Tuesday morning 8 A. M. at Board of Elections Office Court House, Wauseon, Ohio.

“Respy. yours,

“Ed. Scott, Clerk, Board of Elections.”

On the day and at the time fixed by said notice to commence said recount, relator was present at the office of defendant and requested defendant to proceed therewith, but defendant refused to do so and adjourned all further proceedings relating thereto until November 25, 1932. On November 25, 1932, relator was present and again requested the defendant to proceed with the recount of the ballots, which defendant again refused to do. Thereafter relator offered and tendered to defendant another $165 in cash to further secure the costs of said recount, but defendant refused to receive said additional deposit. After said refusal relator demanded a recount of each and every precinct separately, which also was refused by defendant. After its refusal to recount any of the ballots in any of said precincts, defendant, without right or authority, dismissed the application of relator. After reciting the foregoing facts, relator in his petition prays that defendant be required to proceed in the manner prescribed by law to recount all of the ballots for the office of judge of the court of common pleas at the November 8th general election and for all proper relief.

The right of relator to the remedy sought is governed by Section 4785-162, General Code (114 Ohio Laws, 708), which reads as follows: “Any candidate voted for at a primary or other election, or any group of five or more qualified electors voting at such election, by making an application in writing to the board of elections, shall be entitled to have the1 votes for any such candidate, or other candidates for the same office, or any such issue, recounted in any or all precincts, upon the following terms and conditions. Such application must be made not later than the fifth day after the certificate of the official count has been made, and by depositing with the application ten' ($10.00) dollars per precinct, or a bond to be approved by the board, to pay the actual cost of such recount, but in no case less than five ($5.00) dollars, and not to exceed ten ($10.00) dollars per precinct, for each precinct in which the recount is desired. If the petitioner or petitioners succeed in establishing error sufficient to change the results in any precinct by at least two per cent (2%) of the total vote cast for * * * and against such issue in such precinct, then the deposit for such precinct shall be refunded, otherwise, the actual cost of such recount shall be paid into the general fund of the county in which such recount is had, provided however, that the minimum charge of such recount shall not be less than five dollars ($5.00) and the maximum more than ten dollars ($10.00) per precinct. If sufficient error is established to change the result of the election, regardless of the error found in any precinct, then the deposit made for all precincts shall be refunded.”

Except for this statute relator would not be entitled to a recount of the votes cast for the office he seeks. The statute prescribes that a candidate voted, for at a primary or other election shall be entitled to have the votes recounted in any or all precincts upon the following terms and conditions: (1) A written application therefor must be made to the Board of Elections not later than the fifth day after the certificate of the official count has been made. (2) With the application must be deposited $10 per precinct, or a bond to be approved by the board to pay the actual cost of such recount. '

The statute seems clearly to provide that the required bond shall be in a sum equal to $10 for each precinct in which a recount is desired by the applicant; the words “but in no case less than five ($5.00) dollars, and not to exceed ten ($10.00) dollars per precinct” referring to the cost of the recount and not to the amount of the bond. This interpretation seems plainly apparent from the further requirement of the statute that “if the petitioner * * * succeed in establishing error sufficient to change the results in any precinct by at least two per cent (2%) of the total vote cast for” such office in such precinct, “then the deposit for such precinct shall be refunded, otherwise, the actual cost of such recount shall be paid into the general fund of the county in which such recount is had, provided however, that the minimum charge of such recount shall not be less than five dollars ($5.00) and the maximum more than ten dollars ($10.00) per precinct.”

In other words, if the actual cost per precinct is $10 or more, then $10 per precinct must be paid; if the actual cost per precinct is $5 or less, then in any event $5 per precinct shall be paid. The statute provides that the petitioner for a recount may deposit with his application $10 in cash for each precinct wherein a recount is requested, or may deposit therewith a bond in like amount, and without dictation from the Board of Elections or any one else may choose which alternative he will pursue. The only prerogative of the board is the approval or the rejection of the bond. The statute is plain in its import and neither the board nor any one else may read into it that which is not there. The petitioner must decide for himself how he will proceed and must proceed strictly in accordance with, the statute which creates the right he seeks to secure. Strict compliance with the statute as to the application for a recount and the giving of security for the cost thereof are mandatory and jurisdictional, and the relator having failed to proceed in the manner therein prescribed, this court must of necessity sustain the demurrer.

Relator may, if he so desires, file an amended petition on or before January 15, 1933. If this is not done, his petition will then be dismissed.

Demurrer sustained.

Richards and Williams, J J., concur.  