
    No. 788
    STATE ex LILES v. O’DWYER et
    No. 18728.
    Before the Supreme Court, on error to the decision of the Lucas Appeals,
    docketed July 24, 1924,
    2 Abs. 483.
    448. ELECTIONS — Refusal to certify name on ballot of candidate who voted for opposite party at the primary two years previous.
   This is a proceeding in1 error to reverse a judgment of the Court of Appeals of Lucas County, Ohio, denying a peremptory writ of mandamus against the members of the Board of Deputy State Supervisors and Inspectors of Election, to require them to certify the name of the relator, Maurice A. Liles, upon the ballot as a Democratic candidate for Representative to the General Assembly, to be voted at the primary to be held August 12, 1924.

Liles has duly filed with respondent his declaration of candidacy, which Was in due form. It followed the form prescribed by the statute, stating in substance that relator was a Democrat and would support the candidates and abide by the principles of the party, and that he had voted for' a majority of the candidates of such party, at the preceding general election. His declaration was signed also by five will-known Democrats, who duly certified to these statements.

The protest was filed by the secretary of the Democratic Committee with the Board, alleging that he Was not a Democrat in that he had voted in the Republican primary in 1922. A hearing was had upon this' protest before the Election Board. The protest was not sWorn to and the lady who signed the same did not appear or testify as a witness. Judge Liles was sworn and examined before said Board, admitting that he voted at the Republican primary in 1922.

He testified in court and before the Board that at one time in his life he was a Republican; but that he had gradually been drifting away from the principles of the Republican party and that more than a year ago he had publicly declared his affiliation with the Democratic party; that at the time of filing his declaration of candidacy he was a, Democrat, believed in the principles of his party, intended to support the candidates of the party, and that he had at the last general election voted for a majority of the candidates of that party, and that at the last Presidential Preferential Primary Election he had voted at the Demo-I cratic primary.

Judge Liles says he voted a Republican ballot at the primary election in 1922, because at the general election preceding that primary, he had voted for not all, but for a majority of the candidates of the Republican party, and that under the primary law of this state he was.at that time required to call for a Republican ballot, if he desired to vote at all at said primary -election.

I The' Board denied the right of Judge Liles to have his name placed upon the ballot, based upon the admitted fact that he had voted at said Republican primary two years before.

Attorneys — A. S. Duer, Toledo, for plaintiff; Scott Stahl, Toledo, for Defendant.

The Court of Appeals granted1 the alternative writ, overruled the demurrer, overruled the mlotion to dismiss the case at the close of relator’s evidence- but after respondents had taken the stand and testified they acted in good faith, the court rendered final judgment against Liles.  