
    No. 32
    LEVINE v. STATE EX REL.
    Ohio Supreme Court,
    No. 17361
    June 13, 1922.
    For full opinion see 105 OS., 288.
    ELECTIONS — (1) Marking ballots — Seo. 50C9 GC. is mandatory and ink marked ballots are invalid. (2) Laws, to be directory, must clearly appear so.
    Error to Lucas Court of Appeals.
    Attorneys — Solon T. Klotz, for plaintiff; W. B. Gregg, M. S. Dodd and F. M. Dotson, for defendant.
   WANAMAKER, J.:

Epitomized Opinion.

Thomas C. Devine and W. H. Tucker, Jr., were the only contestants for the office of councilman in a Toledo ward. The returns' made showed that there was a tie. One ballot had been marked with ink, before the name of Tucker, and had not been counted. He asked that the board of election count it in his favor, but it refused. He then brought mandamus to compel the board to count it in his favor. The court of appeals held that the ballot was legal, and should have been counted for Tucker. The Supreme Court decided:

1. That Secs. 5069 et seq GC., as to marking of a ballot by the voter, are clearly mandatory in terms and intention, and should be substantially followed by the voters and the election authorities. It reversed the decision of the court of appeals.

2. An act of the general assembly will not be regarded as directory or discretionary as to those upon whom it is intended to operate, unless such character clearly appears from the entire text ot the act.  