Perrysburg journal. (Perrysburg, Wood Co., O. [Ohio]) 186?-1965, 1881-04-15
WOOD COUNTY SEAT CONTEST.
state OF ohio OF Relation ot John
q. Hoffnnn, ct AL, vs..
Andrew d. stewart, ns clerk OF
Wood County.
Decision Given in District court.


| Cision IN the wood county-sent case would
be rendered was the principal cause of at
traction, much interest being felt therein
The decision WINS given by Judge Barber,
and Is as follows.
This case comes .ato this court by remo-
val from the District Court Of Wood conn.
ty. II isa motion for mandamus to com.
pei the clerk OF Wood county to perform
a purely ministerial duty cnjoined on him
by law, which il is charged lie has neglect
ed and refused to perform. The duty he
hns neglected and refused TO perform, MS
charged, Is 10 count the vote of fPerrysbnrg
Township, voting precinct in Wood
county, cast at general election, held ac-
cording TO law, October IL, 1875.
The question of removal of the county
seat of Wood county from Bowling Green
TO Perrysburg was, by u special act of the
Legislature, submitted to the voters of
Wood county ut that election, and it is to
compel the counting Of the votes on that
question that this motion is made
An alternative writ Of mandamus was
duly issued by Judge of the District
Court Of Wood county, which was duly
served upon the respondent, and he has re.
turned the writ with his nrswer thereto.
In his answer the respondent admits
TINT he was Clerk of Wood county at the
Zine named, and that lie wns required by
law, with the aid of two Justices of the
Peace, To canvass and count the votes cast
in the different voting precincts OF Wood
| county, at that election, and says lie did
perform all the duties required OF him by
law In relation 10 the counting, abstracling,
| certifying and recording all votes cast, IN
all the voting precincts of Wood county,
at said election, except that lie and the
| said Justices, refused TO count The votes re-
turned on the poll.books and tally.sheets
OF Perrysburg township, and that they
were thrown out and not counted, for the
reason that the poll books of that voting
precinct contained over 5000 names MS the
names Of persons having voted IN that pre-
cinct, Mt that election, when, in fact, there
were not over 1890 voters all told, in the
precinct; that the poll books were fraud
and that he and the Justices refused to be
| party to the fraud, and for that reason
threw them out and refused TO count
| them.
The writ and the answer were the only
| pleadings allowed by law Mt the time this
| writ was issued. a motion is now made
Tor n peremptory mandamus ON the answer
| Of the respondent. II IL admitted that il
this motion should not he granted, the
Court may find the fact to lie as alleged by
the respondent in his answer no far as the
poll books and votes of nll precincts, ex-
cept Perrysburg township, are concerned,
AMI the case submitted and fully disposed
OF by the Court on the facts az they ap-
pear in such findings and in the papers
filed in the case.
The statute expressly provides that this
writ OF mandanlus may not be issued in
any case where there is plain and ade-
quate remedy in the ordinary course of the
| law. The respondents claim that having
performed their duty MS cnnvassing board,
lie and the justices disbanded and separa-
ted and that he has no power now to call
the board together again to canvass the
votes OF this precinct, If the court should
be OF the opinion that the vote OF that pre-
cinct should have been counted by the
board; that the REALTORS have plain and
adequate remedy ut law, by a contest of the
election under the statute providing for
contesting the validity of the vote given
upon the question OF adopting a law for
the removal OF county. sent.
The REALTORS claim they have no such
adequate remedy at law, and that the re-
spondent, having admitted he has not per.
formed his duty, they nre entitled 10 have
the vote counted, and if the validity of the
vote, when the vote OF this precinct is
counted, is to be contested, it must be done
by those claiming it's invalidity.
The question, as we view il, depends up
on the decision we make as to whether or
not the REALTORS have plain and adea uate
remedy at law. a case similar to this has
been decided by The Supreme Court, Wet
more vs.. Stewart, see o. State 2l61 brought
ON relation OF candidate for IL county
office against the same clerk TO compel him
to count the votes cast on the county tick
ct in this same precinct at the same cleo
ton. II was held by the Supreme Court
in that cause, that the relator had plain
and adequate remedy at law by contest
OF the election in the mode provided by
statute, and mandamus would not lie The
REALTORS claim that that case decides moth
ing as to the questions before us, because
the mode provided by law for this contest
is not the same in the two cases the con
test of the vote for county Office is by ap-
peal that the result of the election is va.
Gated by this appeal when it is perfected,
and that remedy in that case may be ade-
guate as the whole question may be tried
de noro before the Appellate Count.
But they claim that in this case the REM
edy provided by law is not adequate for
reason that IL is not an appenl-the result
of the election as recorded by the clerk is
not vacated, and that the burden is east
upon them OF showing the ilIegaity of the
clerks action and the validity Of the whole
vote, and that before a non judicial officer
when the burden should be cast on those
who clam the vote was illegal.
II is conceded by all parties, ard has
been decided by the Supreme Court that
it was the plain duty of the clerk TO count
the votes of all the precincts in his county
and that he was guilty of neglect OF duty
and OF an illegal act when he threw oul
the vote OF Perrysbnrg, even though every
thing he alleges in regard to it il true. But
the question now IL what ia the remedy OF
rather, can l. be remedied by mandamus.
In our opinion, the statute in regard tt
contesting elections in force ut that time
which ia the same rs the one now in force
furnishes the only remedy that can be re
sorted to, to redress the grievance com
/, planned OF by the relators.
Article III, Section 81 Of the Constitution
provides that the General Assembly shal
determine by law before what aulhorit,
. and in what manner the trial OF contested
elections shall be conducted. The Genera
Assembly has provided by n general ac
Rev. Stat, Secs. 3,0l5 to 3,022 inclnsive)
whicl, provides tribunal and mode o
procedure ior the contest OF elections fol
the removal OF county seats, and, in oul
opinion, il is plain and adequate remed,
for the very grievances complained OF i
this writ.
Secs. 3,0l5, 3,Ol6 and 3,017 provide fol
the practice IN perlecting the appeal.
Sec. 30l7 requires the Governor, on re
ceiving due notice that the appeal il per
fected. and the proper person having beer
named by him, TO appoint disinlereslet
, person to act as Commissioner.
See. 3,0lS prescribes his duties, among
which are TO examine all such wilnesse,
as are prodnee,l or brought before him
and take testimony in writing touching
the validity Of the yo,es east for suel
election npon the question Of the adoption
OF the law and touching the validity OF the
result Of the election upon the question
And he IL armed with full power to com.
pei the attendance Of witnesses and 10 Sc
cure their testimony.