
    The State, ex rel. Wetecamp, v. Brown, Secy. of State.
    (No. 32985
    Decided April 2, 1952.)
    
      Mr. Victor Jacobs and Mr. Boy G. Fitzgerald, for relator.
    
      Mr. C. William O’Neill, attorney general, and Mr. Joseph S. Gill, for respondent.
   Per Curiam.

The relator, Albert H. Wetecamp, has invoked the original jurisdiction of this court to obtain a writ of mandamus to require respondent, the Secretary of State, to appoint relator as a member of the Montgomery County Board of Elections. The petition alleges that the county executive committee recommended relator to be a member of the county board of elections, that the recommendation was forwarded to respondent, and that respondent has refused to make such appointment.

Respondent filed a demurrer to the petition on the ground of defect of parties, in that relator has no authority to maintain the action.

Section 4785-9, General Code, provides that the county executive committee may file with the Secretary of State a recommendation for appointment to the county board of elections and that the Secretary of State shall appoint such recommended person unless he has reason to believe such person would not be a competent member, in which ease “he shall so state in writing to the chairman of such county executive committee, with the reasons therefor, and such committee may either recommend another elector, or may apply for a writ of mandamus to the Supreme Court of Ohio to compel the Secretary of State to appoint the elector so recommended; and in such action the burden of proof to show the qualifications of the person so recommended shall be on the committee.” (Emphasis supplied.)

The provision that the action shall be by the committee has not been complied with. The committee may avail itself of the alternative provisions of the statute above quoted.

The issue of capacity of parties relator was not presented or decided in State, ex rel. O’Neil, v. Griffith, Secy, of State, 136 Ohio St., 526, 27 N. E. (2d), 142, cited by relator herein.

The demurrer to the petition is sustained.

Demurrer sustained.

Weygandt, C. J., Zimmerman, Stewart, Middleton, Taft, Matthias and Hart, JJ., concur.  