
    No. 920
    STATE ex rel Conner v. NOCTOR
    Ohio Supreme Court,
    106 OS. 516
    No. 17273.
    Decided May 16, 1922.
    On Rehearing Dec. 29, 1922.
    164A. ELECTIONS.
    Statutory election machinery held valid, but not to provide for nomination of candidates by petition for offices in towns of 2,000 population or more.
   HOUGH, J.

Epitomized Opinion of Case for Rehearing

Suit in which relator seeks a writ of mandamus to compel the Board of State Supervisors and Inspectors of Elections to count in his favor seven ballots for the office of councilman in the twenty-third ward in the city of Cincinnati, the counting of which would give the relator a majority of one over his opponent. On the ballots the name of the relator appears in two places, on the Democratic ticket and on the Independent ticket, with a cross mark in front of relator’s name in both places on each of the seven ballots. It was contended in opposition that the placing of the Independent ticket on all the ballots (which was done by petition) was illegal and void and therefore all of the 645 Independent votes .cast were void and the counting or failure to count the seven ballots in question would not effect the result of the 'elee-iton. Held:

Attorneys — Simeon M. Johnson, Cincinnati, for relator; Louis H. Capelle, Pros., and Chas. S. Bell, both of Cincinnati, for defendants.

1. While the voting for the same person twice on each of the seven ballots was an irregularity in itself, yet one vote on each of the ballots should have been counted for the relator since the intention of the voter was clear.

2. The placing of the Independent ticket on the ballots was illegal. Sec. 7, Art. 5, of the Ohio Constitution provides that nomination for municipal offices shall be by direct primary election “or by petition as provided by law.” By 4976 GC. the Legislature provided for the nomination of munici-i^fcpfficers by petition in municipalities of a popu-SBffn of less than 2,000. The Legislature failed to provide for the nomination of such candidates in municipalities having a population of 2,000 or more. Application denied.

Robinson, Jones, Matthias and Clark, JJ., concur.

Marshall, C. J., and Wanamaker, J., wrote dissenting opinions.  