State, Ex Rel. v. Schirmer , 131 Ohio St. 455 ( 1936 )

This cause came on to be heard upon appeal on questions of law from the Court of Appeals of Hamilton county, and was argued by counsel.

Relator-appellant instituted mandamus in the Court of Appeals to compel the respondents-appellees, as members of the Board of Elections, to place his name on the judicial ballot for the Court of Common Pleas at the November 3, 1936, election, for the term beginning February 9, 1937, in pursuance of Section 1532, General Code prior to the repeal of that section by House Bill No. 652 (116 Or. L., pt. 2, page . . . .), the relator-appellant having filed with the Board of Elections a petition for nomination for that office prior to the date of the repeal of that section.

The cause was heard by the Court of Appeals upon the petition, answer, evidence and statements of counsel. Relator disclaimed any desire to seek an office under the amended statute, but maintained that, having perfected his nomination for judge prior to the date when Section 1532, General Code, was repealed, he acquired the right to become a candidate, and that if House Bill 652 be construed to apply to the term of office which he sought it is unconstitutional as retroactive andex post facto.

The Court of Appeals found that relator by reason of filing such petition acquired no vested, constitutional or other right to have his petition considered by respondents for an office provided for by the repealed section; that such office ceased to exist and had been abolished; and that relator's name should not, therefore, be placed upon the ballot for an office which had been abolished subsequent to the filing of his nominating petition and previous to the election covering such office. A writ of mandamus was denied by the Court of Appeals.

On consideration whereof it is ordered and adjudged that the judgment of the Court of Appeals be, and the same hereby is, affirmed on authority of State, ex rel. Gustafson, v. Krause etal., Bd. of Elections, ante, 97.

Judgment affirmed.

WEYGANDT, C.J., STEPHENSON, WILLIAMS, JONES, DAY and ZIMMERMAN, JJ., concur.

MATTHIAS, J., not participating.