Rеlators argue that Wheeler’s death must be considered an involuntary withdrawal of a candidate for which the law permits a substitution. Respondent Secretary of State
R.C. 3513.17 requires removal from the primary ballot of the name of a candidаte for county office who dies more than five days before the primary election. For other cаndidates, it requires removal of the name if death occurs more than ten days before the electiоn. R.C. 3513.17 then concludes:
“In no case shall votes cast for a deceased candidate be counted or recorded.”
The Secretary of State contends that this is a comprehensive prohibition applicable to all deceased candidates and that, since Wheeler was a deceased candidate on and after election day, votes for him may not be counted or recorded.
R.C. 3513.31 provides in part:
“If a рerson nominated in a primary election as a party candidate for election at the next gеneral election dies, the vacancy so created may be filled by the same committee in the sаme manner as provided in this section for the filling of similar vacancies created by withdrawals * *
The Secrеtary of State contends that since Wheeler’s votes could not be counted or recorded pursuаnt to R.C. 3513.17, he was not a “person nominated in a primary election” whose vacancy could be filled undеr R.C. 3513.31.
Relators argue that the public policy favoring freely competitive elections should prevent such a result. They rely on State, ex rel. Flex, v. Gwin (1969),
We note that the prohibition of R.C. 3513.17, that “[i]n no case shаll votes cast for a deceased candidate be counted or recorded,” is ambiguous as applied to deceased candidates for whom absentee votes have been cast before their death. Such votes, when cast, were not cast for a deceased candidate. R.C. 1.49 provides in pertinent part: “If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters * * * (E) [t]he consequences of a particular construction * * The consequences of construing R.C. 3513.17 as the Secretary of State contends would be to preclude a freely competitive general election in November because an untimely death had occurred in May. We reject this cоnstruction and construe the prohibition of R.C. 3513.17 narrowly, to apply only to votes cast after a candidate dies.
We note from the certification of the board of elections that absent voters’ ballots containing votes for Wheeler were received before his death. We hold that these votes were nоt cast for a deceased candidate when cast and therefore must be counted and recоrded. Wheeler having thus received votes in an uncontested primary, we hold that the respondents have а clear duty to declare him the nominee.
The Secretary of State also argues that Ashbrook’s appointment should be prohibited because the notice of the meeting to fill the vacancy was vaguе and not in compliance with the notice requirements of R.C. 3513.31. We have examined the notice and find
Mandamus will issue if the court finds that thе relator has a clear legal right to the relief prayed for, the respondent is under a clear legal duty to perform the requested act, and the relator has no plain and adequate remedy at law. State, ex rel. Westchester, v. Bacon (1980),
Writ granted.