WITHDRAWAL OF A WITHDRAWAL OF CANDIDACY FOR PUBLIC OFFICE WITHOUT EFFECT.

Court of Appeals for Montgomery County.-

Judge Houck sitting by designation in place of Judge Ferneding,

#### D. C. Brower et al, v. State of Ohio ex rel Valentine Ritz.*

Decided, July 13, 1920.

*Elections*— Candidate *may "Withdraw but may not "Withdraw his Withdrawal*— Mandamus *Will Not Issue. Unless*— Office *and*Officer— *Section*4976, *General Code.*

1. A writ of mandamus will not issue against a public board or officer to compel certain specific action, in the absence of a clear and mandatory duty imposed by law.

2. A withdrawal of candidacy, if filed in proper time, is recognized by statute and is valid; but a withdrawal of such withdrawal of candi- ' dacy is not.so recognized and may be disregarded by the deputy state supervisors of election.

*Matthews & Matthews, McCray & Dineen*and *Nevin & Kalbfus,*for plaintiff in error.

*McConnaughey & .Shea*and *Turner & Turner,*for defendant in error.

*

Motion for a writ of certiorari overruled by the Supreme Court, July 16, 1920.

By the Court.

(Allread, Houck and Kunkle, JJ., concurring';.

The original action was in mandamus to require the Board of deputy state supervisors to print relator’s name upon the official primary ballot.

Counsel for the respective parties have fairly and ably presented the questions involved.

"We have given the ease the best consideration of which we are capable, and have reached a conclusion based upon what we believe to be a sound construction of the election laws.

*512We base our decision upon tbe undisputed facts.- We are not required to go into the realm of disputed evidence.

Ritz, the relator, duly filed his declaration of candidacy.

June 26th, (forty-five days before the primary election day) Ritz filed with said board a withdrawal of his candidacy.

June 28th, two members of the board of deputy state supervisors of elections accepted relator’s withdrawal of candidacy.

June 29th, the relator filed a withdrawal of his withdrawal o£ candidacy.

June 29th, the Secretary of State approved the action of the two members of said board.

Upon a careful examination of the questions presented we hold:

(1) The relator must show a clear right before he can obtain relief and the duty of the board must be one specially enjoined by law. *State ex rel*v. *Graves.*90 O. S., 324; *State ex rel*v. *Liquor Board,*93 O. S., 375; *State ex rel*v. *Stryker,*95 O. S 104.

(2) Section 4976 General Code, by reasonable construction recognizes the right of a candidate before the primary to withdraw, if such withdrawal is made and filed in proper time. *State ex rel*v. *Taylor,*55 O. S., 385.

(3) The withdrawal of relator’s candidacy, in our judgment, took effect as of the date of the filing thereof with the board of deputy state supervisors, and being filed within proper time, required no further action by the election authorities to maké it effective.

(4) ' The statute does not expressly or by inference recognize a withdrawal of a withdrawal of candidacy. Consequently the law imposés no duty upon such board of deputy state supervisors with respect thereto. Under the well established law governing proceedings in mandamus, such board can not therefore be compelled to act where the statute imposes no duty.

(5) Under the pleadings and undisputed evidence the relator is not entitled to relief and the judgment below should -be reversed, and final judgment.entered for plaintiffs in.error. •

Judgment accordingly.