
    No. 857
    NOCTOR et al v. STATE, ex rel LINEHAM
    Ohio Supreme Court
    No. 17891.
    Decided June 26, 1923
    To Appear in 108 OS.
    164A. ELECTIONS.
    Mandamus, a proper remedy to compel issue óf a certificate of election to a candidate for city council —Appearance of candidate’s name on two tickets, validity of votes.
   PER CURIAM.

Epitomized Opinion

At an election for Council in Ward 20, Cincinnati, Walter C. Lineman and John C. Sheehan were the regular nominees on the Republican and Democratic tickets, respectively, Sheehan’s name appearing also on the Independent ticket, without objection, under 5005 GC., at any time or by anybody prior to the election.

Attorneys — Simeon M. Johnson, Cincinnati, for Noctor; Charles S. Bell, Pros. Atty., Nelson Schwab and William J. Schick, Cincinnati, for Lineham.

Sheehan received a larger vote than Lineham, but a considerable number of the votes were given him on the Independents’ ticket, and in some instances 'his name appeared upon the ballot in two places. Lineham as relator brought mandamus in the Hamilton Court of Appeals, to compel Noctor et al, the Deputy State Supervisors and Inspectors of Election of the county, to grant him a certificate of election. The writ was allowed by the Appeals Court, whereupon error was prosecuted in the Supreme Court, which held:

1. Since there was no certificate of election issued or declaration of election made, mandamus was a proper remedy.

2. That the other questions presented are similar ■ to those appearing and! decided in Connor v. Noctor, 100 OS. 516, and on the authority of that case the judgment of the Court of Appeals is affirmed.

Robinson, Jones, Matthias and Day, JJ., concurred in this opinion; Marshall and Wanamaker dissented, and in their opinion, included in the case, argue that, apart from the provisions of 5005 GC., a voter who has indicated his choice upon a ballot apparently regular upon its face, cannot be disfranchised because he votes for a candidate nominated by a method unauthorized by law, explaining also that the Connor case, ante, differs from and is not decisive of the instant case.  