
    The State, ex rel. Ascherl, v. Ujhelyi et al., Board of Elections of Lorain County.
    (No. 34599
    Decided October 21, 1955.)
    
      
      Messrs. Mooney, Halm, Loeser, Keough & Freedheim and Mr. Alan S. Geismer, for relator.
    
      Mr. Paid J. Mikus, prosecuting attorney, and Mr. Andrew J. Warhola, for respondents.
   Per Curiam.

Two questions are presented. The first relates to the defense of laches, respondents contending that relator has delayed seeking relief by way of mandamus for an undue period of time-, and the second involves the construction of Section 3513.261, Bevised Code, relative to the filing of nominating petitions of independent candidates.

As to the defense of laches, this court is of the opinion.that, under the facts and circumstances herein involved, relator did not, in pursuing his administrative remedies, delay seeking his relief by way of mandamus for such an undue period of time as to amount to laches.

The second question was the sole question presented to this court in the case of State, ex rel. Leslie, v. Duffy et al., Board of Elections, ante, 178, and there determined. The writ of mandamus as prayed for by relator is hereby allowed on authority of that case.

Writ allowed.

Weygandt, C. J., Hart, Zimmerman and Stewart, JJ., concur.

Matthias, Bell and Taft, JJ., dissent.

Bell, J.,

dissenting. Pursuant to a notice sent to him on August 15, 1955, the relator appeared at a hearing before the board of elections on August 18. After hearing the testimony of relator, the board, through its chairman, informed relator of its decision that it considered his nominating petition invalid. A written notice of the action of the board was mailed to relator on the same day. On August 20, relator sent a letter to the board requesting information with respect to the particulars in which the board found his petition to be insufficient. By letter dated August 25, the board informed relator that he had been present at the meeting of the board and had, at that time, been advised by the chairman as to the reason for the board’s action.

Fifteen days after receipt of this letter from the board, and 22 days after the board’s action, relator wrote a letter to the Secretary of State requesting further explanation of the adverse ruling of the board concerning his petition. On September 12, the Secretary of State sent a letter to relator explaining his ruling previously given to the board. Twelve days later, on September 24, relator instituted his action in mandamus. Thirty-seven days had elapsed between the meeting of the board and the filing of the petition in mandamus.

The question of laches depends not upon the fact that a certain definite time has elapsed since the cause of action accrued, but upon whether, under all the circumstances, the one seeking relief is chargeable with want, of due diligence in not instituting the proceeding sooner,

In many cases, before the defense of laches can be raised, the delay must be an extended one. In other cases, where the need to act to enforce a right is urgent, a delay of even a very short time may be unreasonable.

It appears to the writer that, under circumstances where the relator knew the necessity for awarding contracts for the printing of ballots and for the urgency of accomplishing the other things required by our election process, a delay of some 37 days shows an unexplained dilatoriness in a situation which not only permited but required his diligence. His failure to act sooner should deprive him of the relief sought herein.

Matthias and Taft, JJ., concur in the foregoing dissenting opinion.  