The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1886-11-11
And a Mandamus Proceeding is Entered in
Court Against Him
BY Mr.. Crawford and an Array Of Repub-
llCan Lawyers.
Text of the Clerks Decision, Showing
Legal and Statutory Reasons for Not
Counting the Vote---The Off,
oIal Count PrOest ding,

ana Interested B0OG Oh R61Gl6mtu
thrOnged about the east jury room off
from Court Room No. l, awaiting the de-
cisiOn Of Clerk Of Courts McGregOr, in
relation to the counting Of the votes for
Richard B. Crawford for Sheriff, the
discussion Of which sUt jact was fully
reported In Saturdays DEMOCRAT,
Upon the assembling OF the Board to
conclude the official count Of the votes
cast at the election Of last Tuesday,
which was commenced Saturday after
noon, Clerk McGregor decided not to
count the votes cast for Mr.. Crawford.
Following is the complete text
Of his decision, which, 1t will
be readily seen Is thoroughly non. .pRrti.
san and is simply the plain duty of the
Clerk as provided for by the Ohio State
Statutes:
CLERK M'GREGoR's DECISION.
GENTLEMEN:-In the matter of the
question raised, as to whether | should
count the votes cast for Richard Craw-
ford for Sheriff, and objected to by MIR.
Welty, will say:
1t is frat asked whether the Clerk only
has the power to decide the question,
or whether the Justices Of the Peace he
takes to his assistance, have voice iu
the matter. Sec. 1880 R. 8. says: "Oa
the sixth day after the election, or
sooner, In case the returns are made,
the Clsrk Of the Court of Common Pleas,
taking to his assistance two Justices of
the Peace Of the county, shall proceed
to open the several returns made to his
Office, g."
This section very clearly makes 1t the
duty of the Clerk to decide on such
questions as may arise in canVassing
the vote and that the two Justices of the
Peace are only assistants in the count.
Now then, as to cOunting the vote the
first question raised was that the Sheriff
did not notify the electors by prOclama-
tiOn, Of an election for Sheriff. Now, if
the Sheriff fails to notify the electors of
an election for an Cffice to be filled, any
eIectOr has the right and 1t Is his duty,
to compel the Sheriff to give such
notice by proceedings In mRndamus.
(88 o. 8. 344 State va BrOWn.)
Numerous cases have been cited by
council for Mr.. Crawford viz: The Dal.
| ton case 43 o. 8. 652; the IngersOn case
IA o. 8. 3l5-321; the Schroeder case 28
o. 8. $40.
These cases are not parallel cases, but
In each case there was an actual va.
Csncy to be filled, or the election was
for officers whose terms had actually
expired, and the election was regular IN
every respect and so conceded.
Judge Owen In rendering his decision
In the Dalton case says: 43 O. s. 658, in
fegaTdto the Board Of Canvassers, "AlI
we can do Is to require 1t to do what the
law requires Of It," Now, assuredly
the law does not require us to count
votes for offices not to be filled, for II
such were the case, there would be no
end Of trouble and vexatiOn to the
Board Of Canvassers. Suppose for in
stance, there had been one thousand
votes cast for John Doe and Richard
Roe for members Of the Legislature,
would 1t be expected Of this Board to
count the same, when we are cognizsnt
Of the fact there are no such tffices to
be filled. Assuredly not. Again, sup
pose large number Of electors would
vote for offices such as are not rec0gniz
ed by our constitution and laws, would
It be expected we should count them2 /
apprehend not.
In the case of IngersOn vs.. Barry, 43 0.
8. 1928, Judge Scott says: "The law does
not require the performance of things
which are either impossible or useless
It certainly Is useless to count votes for
an office not to be filed.
We have q knowledge Of the fact that
by the act Of the Commissioners In Rc.
e0rdance with Sec. 1908 B. g., the office
Of Sheriff has been filled with, accord
ing to the words Of the statute, "sOme
suitable person to ill the vacancy In the
Office of Sheriff who shall give bond and
take the oath of Office prescribed for the
Sheriff and hold his office for and dur
Ing the unexpired term Of the Sheriff
whose place he fills"
Y That this has been done no one will
4 deny. The action Of the Commissioners
" has been confirmed by the Court of
common Pleas In approving and con.
sirmiDg the appointments Of deputy
lsheriffs made by Sheriff Leininger, as
= well as, all and singular, other acts and
deeds done by the Sheriff since his ap-
pOintmeat.
In 1857, the Commissioners Of this
county divided Paris township into two
precincts. A difficulty arose In that town
lship as to the proper place for holding
the election, one party holding at the
place designated by the Commissioners
and the other party holding at the old
place. When the vote was returned to
the Clerk he recognized only the polls
as designated by the Commissioner
and 80 counted, recognizing the fact
that the act Of the Commissioners was
legal and binding. The matter, OF
course, led to q contest, because 1t was
for an office that was to be filled, and 1t
was the regular election for that office.
H will then hold that the action Of the
X 4 Commissioners is valid and In full force
and effect, and that there is no vacancy
Rpa In the Sheriff's Office, and no election has
4 been held for that tffice, l shall decide
mot to count any votes for the office of
1 Sheriff. Respectfully,
II JOHN MCGREGOR, Clerk.
WI At the conclusion Of the decision ex-
lJudge Frease, on behalf Of Mr.. Craw-
IL nn1ford, inquired whether the decision ap-
la1plied to all the votes cast for Mr.. Craw-
'EG,1 ford. Clerk Nc CGreyor responded Yes,
\ WhereupOn Mr.. Frease entered a protest
against the decision and demanded the
e0unting Of the votes.
The Clerk and his assistants, Justices
Ho;sIer and Fulmey, then proceeded
y with the work Of counting the votes,
M Eiia asi-,sSs