Opinion Per Curiam. THE STATE, EX REL. CROSSER, v. MCDONOUGH ET AL., DEPUTY STATE SUPERVISORS AND INSPECTORS OF ELECTIONS OF CUYAHOGA COUNTY. Elections-Contest of nomination — Remedies - Statutory provisions exclusive, when — Mandamus to compel election board to rescind action-Writ will not lie, when. (No. 16793- Decided October 5, 1920.) ERROR to the Court of Appeals of Cuyahoga county. Messrs. Henderson, Quail, Siddall & Morgan and Mr. Edward Blythin, for plaintiff in error. Mr. R. A. Baskin and Mr. Albert Lawrence, for defendants in error. BY THE COURT. This was a proceeding in mandamus against the deputy state supervisors and inspectors of elections of Cuyahoga county. The proceeding was brought in the court of appeals of that county and was heard on a demurrer to the amended petition. The demurrer was sustained, judgment was entered for the defendants, and this proceeding is brought to reverse that judgment. After allegations setting out the official position of the defendants, that the relator, Robert Crosser, was a candidate for the Democratic nomination for Congress in the 21st District, that John J. Babka was also a candidate for that nomination, and that following the primary election the defendants announced that Babka had a plurality of one vote over the relator; after alleging with great detail certain irregularities which occurred during the election in different precincts and wards in the district, Opinion Per Curiam. and that certain votes were illegally cast for Babka; and, after further allegations that the declaration of defendants that Babka had a plurality over the relator was untrue and fraudulent, the petition prays for a writ of mandamus commanding the defendants to rescind their action in reference to the different irregularities specifically set out in the petition, to rescind their action declaring said Babka to be the Democratic nominee for Congress in the 21st District, and to place the name of the relator on the ballot as the Democratic candidate for Congress on the regular ticket. Before the writ of mandamus will be issued it must be shown that the act to be required is one especially enjoined by law as a duty resulting from and attaching to the office of the defendants. We think it clear that the case presented by the allegations of the amended petition is one for a contested election, and the general assembly, in obedience to the mandatory provisions of Section 21, Article II of the Constitution, having prescribed the tribunal and the manner in which contested elections may be conducted, the court of appeals correctly sustained the demurrer to the petition, therefore, for the reasons given in the opinion this day filed in State, ex rel. Wood, v. Russell et al., post, 365, the judgment will be affirmed. Judgment affirmed. JONES, MATTHIAS, JOHNSON, WANAMAKER and AVERY, JJ., concur. NICHOLS, C. J., and ROBINSON, J., took no part in the consideration or decision of the case. Opinion Per Curiam. THE STATE, EX REL. WOOD, v. RUSSELL ET AL., DEPUTY STATE SUPERVISORS OF ELECTIONS. Elections-Primary nominations — Jurisdiction of boards of elections or courts-Protest against candidate - Section 4974, General Code (106 O. L., 549) —Recount of ballots - Section 5090-1, General Code (106 O. L., 209) - Contest of election - Section 5148, General Code-Mandamus to compel board to recount ballots. (No. 16795- Decided October 5, 1920.) IN MANDAMUS. Mr. Hollis C. Johnston and Mr. R. M. Switzer, for the relator. Mr. H. W. Cherrington, for the respondents. Mr. D. Curtis Reed and Mr. James I. Boulger, amici curiae. BY THE COURT. This is a proceeding in mandamus to compel the defendants, Deputy State Supervisors of Elections of Gallia county, to open and count the sealed ballots cast at the primary election held on the 10th of August, 1920, for the Republican nomination of a candidate for the office of county commissioner. The petition alleges that the returns, as canvassed by the defendants, purported to show that one Dan Jones was nominated for the office of county commissioner by a majority of one vote over the relator; that the relator duly filed his written protest against and objections to the certification of the nomination of the said Dan Jones; that the votes cast for the nomination of county commissioner, as aforesaid, at that election, were not prop Opinion Per Curiam. erly counted; that the canvass of said primary made by the election judges of the various election precincts of said county did not correctly state the result of the said primary election; that if the ballots and votes cast at said primary had been truly counted and correct returns thereof made they would have shown that the relator, Allen Wood, received a larger number of votes for the nomination to said office than were cast thereat for said Dan Jones; and that relator is informed and believes that two or more ballots in Perry township of said county were illegally counted for said Jones and that two or more ballots were illegally cast in said Perry township at said primary election and illegally counted for said Jones. The petition prays that a writ of mandamus issue commanding the defendants to open the ballot boxes containing the said ballots and to count all of the ballots and votes cast at said primary for said Wood and Jones as candidates for the office of county commissioner, and to certify the relator as the rightful nominee. The case was argued and submitted here on demurrer to the petition. The authority to file a protest in such circumstances as here shown is found in Section 4974, General Code (106 O. L., 549), and the procedure to be followed is defined in that section. Pertinent portions of the section are as follows: "Protests in writing against the candidacy of any person seeking to become a candidate of any political party may be filed only by a recognized member of such party or by the controlling com Opinion Per Curiam. mittee thereof. * * * In the case of protests filed against candidates for county offices * * the same shall be heard and determined by the board of deputy state supervisors of such county and its decision shall be final. * * * If it is found that such candidate is not an elector of the state, or of the district or county in which he seeks to become a candidate, or has not fully complied with the provisions of law as herein provided, his name shall be withdrawn and shall not be printed upon the ballot." Under the provisions of that section the supervisors of elections had authority to withdraw the name of a candidate only when it appeared that he was not an elector of the county or that he had not complied with the provisions of law concerning primary elections. Manifestly these provisions related to the qualifications of the candidate to be a candidate, and to the question whether he himself had done the things which would give him the right to have his name printed on the ballot. No provision of the statute has been called to our attention which confers upon the deputy state supervisors the right to make a recount of the ballots at any election held under their supervision. Section 5148, General Code, provides that the right of a person declared duly elected to any county office, or to the office of probate judge, may be contested by any elector of the county by appeal to the court of common pleas of the county, and Section 5090-1, General Code (106 O. L., 209), provides that in cases of contested elections the |