Opinion
No. 36263
Decided October 21, 1959.
Elections — Voting machines — Arrangement of names of candidates — Ballot labels — Amended Section 3507.07, Revised Code, void — Conflict with Section 2a, Article V, Constitution — Mandamus.
CERTIFIED by the Court of Appeals for Franklin County.
This action was instituted in the Court of Appeals for Franklin County by the filing of a petition against the Secretary of State and the board of elections of that county. The petition contains substantially the same allegations and prayer for relief described in the report of State, ex rel. Wesselman, v. Board of Elections of Hamilton County, ante, 30. The Court of Appeals determined that the amendment to Section 3507.07, Revised Code, which became effective on October 15, 1959, is constitutional, sustained a demurrer to the amended petition and rendered judgment for respondents.
The cause is before this court on appeal from that judgment.
Messrs. Bradley Farris, for appellant.
Mr. Mark McElroy, attorney general, Mr. John A. Hoskins, Mr. Gerald J. Celebrezze, Mr. Earl W. Allison, prosecuting attorney, and Mr. Chester Hummell, for appellees.
The judgment is reversed on authority of State, ex rel. Wesselman, v. Board of Elections of Hamilton County, ante, 30, and the cause is remanded for further proceedings in accordance with the opinion of this court in that case.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.
Although we did not concur in the judgment in State, ex rel. Wesselman, v. Board of Elections of Hamilton County, ante, 30, the doctrine of stare decisis impels us to concur herein. To do otherwise would result in the ridiculous situation of this statute being unconstitutional in Hamilton County by virtue of the affirmance of the judgment of the Court of Appeals by a majority of this court but constitutional in Franklin County because fewer than six judges of the court believe it to be unconstitutional. Section 2, Article IV, Constitution. See Johnson v. O'Hara, 156 Ohio St. 117, 100 N.E.2d 223, and Mele v. Mason, 156 Ohio St. 118, 100 N.E.2d 224.