
    The State, ex rel. Hehr, v. Beery et al., Board of Elections of Wyandot County, et al.
    (Decided October 16, 1936.)
    
      Mr. David Creger, for relator.
    
      Mr. A. K. Hall, for respondents.
   By the Court.

Section 2783, General Code, as amended in 116 Ohio Laws, 284, among other things provides that: “In all counties no person shall he eligible as a candidate for the office of county engineer or be elected or appointed thereto, except a registered professional engineer and registered surveyor licensed to practice in the state of Ohio.” Such is a valid exercise of legislative power. Article X, Section 1, Constitution of Ohio, adopted November 7, 1933, State, ex rel. Atty. Genl., v. Covington, 29 Ohio St., 102.

Under the provisions of Section 4785-1 et seq., and other sections of the General Code, no jurisdiction is vested either in the board of elections of a county or in the Secretary of State, as chief election officer of the state, to determine whether a person who has been nominated for an office under authority of Section 4785-87, General Code, and to whom a certificate of nomination has been issued by the board of elections, possesses the qualifications of a candidate for such office; and under the provisions of Sections 4785-86 and 4785-98, neither the board of elections nor the Secretary of State, until such time as a court of competent jurisdiction has held such person to be disqualified, has any authority in the preparation of the ballot to do otherwise than place the name of such person thereon as a candidate at the ensuing general election.

Where, however, a court of competent jurisdiction in an action in mandamus brought for the purpose of compelling a board of elections to omit the name of such candidate from the ballot, on the ground of disqualification of the candidate, determines that the person nominated as above set forth does not possess the qualifications of a candidate for the office for which he is nominated, public interest and the law require that the ballot contain only the names of qualified candidates, and that the name of such disqualified person be omitted by the board of elections from the ballot. The act of the board of elections' in omitting the same is an act which the law then specially enjoins, as a duty resulting from an office (Section 12283, General Code), to compel the performance of which a writ of mandamus will issue. Felt v. Waughop, City Clerk, 193 Cal., 498, 225 P., 862; Donham v. Gross, County Clerk, 210 Cal., 190, 290 P., 884.

Under the allegations of the petition in this case, which are admitted by the demurrer, the respondent Harvey does not possess' the qualifications of a candidate for county engineer prescribed by Section 2783, General Code, and the petition for this reason, and the other reasons hereinbefore mentioned, states a cause of action entitling the relator to a writ of mandamus as prayed for. The demurrer of the respondents will for this reason be overruled, and, the respondents in open court having stated that they do not care to plead further, judgment will be entered in favor of the relator, making permanent the alternative writ of man-damns heretofore issued herein. But as the duty of the respondents to omit the name of the candidate from the ballot did not become fixed until this court in this action determined such candidate to be disqualified, and as the respondents were not, when this suit was begun, in default in the performance of their duty of omitting such name from the ballot, the costs of this action will be assessed against the relator. State, ex rel. Hiett, v. Court of Common Pleas of Hardin County, 102 Ohio St., 40, 130 N. E., 36.

Writ allowed.

Klinger, P. J., Guernsey and Crow, JJ., concur.  