The jury selected to try a contested election case instituted by a rival candidate against one who has, by the proper authority, been declared duly elected to the office of mayor at a regular municipal election, is authorized to decide, and should determine which of the candidates was elected, or, that there was no valid election of either, as the fact may warrant; a finding that the contestee did not receive a majority of all the legal votes cast at that election, and a decision that, therefore, he was not elected to the office, is incomplete, and insufficient to defeat his title to the office.

A mayor of a municipal corporation who has been regularly elected to the office, is entitled to serve until his successor is qualified; and while he continues to so serve on account of the failure to elect his successor there is no vacancy in the office nor is the council authorized to make an appointment thereto: State ex rel. v. Wright, 56 O. S. 540.

Sec. 5117. Returns of Election and Certificates for Judges of Superior Court. In elections for judges of the superior court of Cincinnati, held within such city, the poll books shall be returned and abstracts and certificates made, as provided for municipal elections. Such certificates shall be transmitted by the officer making them to the governor who shall issue commissions to the persons elected. History:-52 v. 34.

Sec. 5118. Result of Election of Justice of the Peace; How Certified. In case of an election of a justice of the peace, the township clerk or auditor of the municipality, as the case may be, shall certify the result of such election to the board of deputy state supervisors.

History-89 v. 459; 90 v. 266; 97 v. 223.

Sec. 5120. Canvass of Vote in School Elections. In school elections, the returns shall be made by the judges and clerks of each precinct to the clerk of the board of education of the district, not less than five days after the election. Such board shall canvass such returns at a meeting to be held on the second Monday after the election, and the result thereof shall be entered upon the records of the board.

History:-91 v. 182; 97 v. 354.

The vote at a special election at which is submitted a proposition for the issuance of bonds for the erection of a school house, is governed by section 5120, G. C., and should be canvassed by the board of education of the district as therein provided. Op. Atty. Gen. (1915), p. 72.

No compensation is authorized by law to be paid to election officers for making returns to the clerk of the board of education in school elections. Op. Atty. Gen. (1915), p. 253.

Though section 5120, General Code, is directory in so far as it prescribes the time at which a board of education must canvass the result of an election on the question of issuing bonds, the provisions of said section imposing the duty of making such canvass is mandatory, and such canvass must be made and the result thereof entered on the records of the school district in pursuance to such election. Op. Atty. Gen. (1917), p. 773.

Sections 7626 and 7627, relating to the authority of the board of education to issue bonds for school purposes voted by the electors of the school district under section 7625, General Code, should be read in connection with the provisions of section 5120, General Code providing for the canvass by the board of education of the votes of the electors on the proposition of such bond issue, and the board of education should not provide for the issue of said bonds until such vote has been canvassed and the board has thereby determined that a majority of the electors voting on the proposition voted in favor thereof. Op. Atty. Gen. (1917), p. 1849.

Under section 5120, G. C., it is the duty of the election officers of each precinct to make returns, to the clerk of the board of education of the district in which such precinct is situated, of the election for school purposes held therein, but the election officer so making such returns is not entitled to compensation therefor under section 5043 or other sections of the General Code. Op. Atty. Gen. (1917), p. 2185.

The canvass of the returns of the vote at an election in a registration city on the proposition of a bond issue submitted by the board of education of the city school district is governed by the provisions of section 5120, General Code, and the canvass of the returns of the vote at such election should be made by the board of education in the manner therein provided and the result entered on the records of such board. The provisions of section 5115, General Code, do not apply to the canvass of the returns of the vote at such election. Op. Atty. Gen. (1918), p. 215.

See Opinions of the Attorney General (1915), p. 2197, cited under Sec. 5003.

Sec. 5121. How Result Determined in Certain Cases. In the canvass of the vote for members of the board of education, or assessors of real property, the person having the highest number of votes shall be declared elected, and the next highest, and so on, until the number required to be elected shall have been selected from the number having the highest number of votes. If any number of persons greater than the number to be elected at such election have the highest and an equal number of votes, the board making the canvass shall determine by lot which of the persons shall be duly elected.

History:-91 v. 182; 97 v. 354; 98 v. 116; 100 v. 81.

Sec. 5122. Number of Votes Necessary When Statute is Silent. Where it is provided by statute that a question shall be submitted to the qualified voters of a county, township, city or village, and such statute is silent as to the number of votes necessary to authorize the performance of the act voted upon, such statute shall mean that a majority of all the qualified voters voting at such election must vote in favor thereof, in order to authorize such act.

History:-90 v. 130.

As to definition of term "majority" as applied to special election: State ex rel. v. Amlin, 13 O. D. 334.

As to the method of counting votes upon the question of construction, reconstruction, enlargement or repair of bridges, see Walbridge v. Jones, 22 C. C.

682.

As to majority of votes requisite at an election, and otherwise, the trustees of a township to levy a special tax, see Enyart et al. v. Trustees, 25 O. S. 618.

Sec. 5123. Want of Form Shall Not Invalidate Poll Books. No election shall be set aside for want of form in the poll books, provided they contain the substance.

History-50 v. 311.

Sec. 5123-1. Returns of votes cast for and Against Constitutional Amendments. Amendments to the constitution which have been or may hereafter be proposed to be submitted to the electors, may be submitted at any regular election or at a special election, as prescribed by the general assembly in the resolution proposing such amendment, and the judges and clerks of election in each township, ward and precinct, shall, in addition to the returns provided by law for any other

election held therein on the same day, at the same time make return to the deputy state supervisors of elections of the vote cast for or against any proposed amendments to the constitution of Ohio that may be submitted to the voters of the state for adoption or rejection at such election.

History:-103 v. 724; 106 v. 479; 108 v. Pt. I, 693.

Sec. 5123-2. Returns Certified to State Supervisor of Elections Within Ten Days; Opening and Canvassing Returns. A return of the votes cast for and against any such proposed amendment or amendments shall be certified and made by the deputy state supervisors of elections of each county to the state supervisor of elections, within ten days after said election; and within thirty days after such election the governor, secretary of state and attorney general shall open and canvass said returns, and ascertain whether or not a majority of the electors voting on each several amendment have voted in favor thereof and if the majority of the electors voting on any amendment shall have voted in favor thereof, the governor shall make proclamation thereof without delay and such amendment shall become a part of the constitution.

History:-103 v. 724.

Sec. 5123-3. Publication of Proposed Amendments by State Supervisor of Public Printing. The secretary of state shall cause amendments to the constitution proposed by the general assembly to be published once a week for five consecutive weeks preceding such election, in at least one newspaper in each county of the state, where a newspaper is published.

History:-103 v. 725; 108 v. Pt. I, 693.

Sec. 5123-4. Charges for Publication. The charges for publication shall not exceed fifty per cent. of the rates established in section 6251 of the General Code for legal advertising. Such cost of publication shall be paid out of the state treasury upon the warrant of the auditor of state, upon vouchers approved by the supervisor of public printing who shall make legal measurement of the matter published.

History:-103 v. 725.

The rate of payment fixed in section 5123-4, G. C., applies only to the publication of proposed amendments to the constitution of Ohio, submitted at the November, 1913, election. Op. Atty. Gen. (1919), p. 326.

Section 4 of the act passed April 28, 1913 (103 O. L. 724), and designated as section 5123-4 of the General Code, applied only to charges for publishing amendments to the state constitution which were proposed by the 80th general assembly and submitted to the electors at the November, 1913, election, and not to proposed amendments generally.

The costs of publishing proposed amendments to the state constitution. other than those proposed by the 80th general assembly, should be paid by the secretary of state at the rates prescribed by section 6251, G. C. Op. Atty. Gen. (1920), 117.

Sec. 5124. Presidential Electors. Any qualified voter may contest the election of the electors of president and vice president of the United States, or any of them, by serving notice upon each contestee in the manner and time prescribed in case of contest of the election of county officers, and filing a copy of such notice with the governor within five days after the mailing by him of the certificates of election of such electors. The provisions of law relating to the taking of testimony in contest of elections of county officers shall apply to such contest, except that all testimony taken and all matters relating to the contest shall be sent to and filed with the secretary of state before the day appointed by the governor for the hearing. Such contest shall be heard and determined as hereinafter provided.

History:-85 v. 26.

A petition averring irregularities and illegalities in the conduct of an election, at which a proposition to issue bonds is submitted to the electors of a city, presents no question of equitable jurisdiction whatever. The issue so tendered is no more or less than a contest of election, and upon the determi nation of this contest of election depends the right of the petitioner to relief. The fact that the prayer is for equitable relief does not change the nature of the issue tendered: Link v. Karb, 89 O. S. 326 [affirming court of appeals, which affirmed, Link v. Karb, 14 O. N. P. (N. S.) 244, 24 O. D. (N. P.) 221].

Elections belong to the political branch of the government. The authority conferred by the general assembly of Ohio in pursuance to § 21, of Art. II, of the constitution, to try contested elections is not judicial power within the meaning of § 1, of Art. IV, of the constitution which requires the judicial power of the state to be vested in the courts: Link v. Karb, 89 O. S. 326 [affirming court of appeals, which affirmed, Link v. Karb, 14 O. N. P. (N. S.) 244, 24 O. D. (N. P.) 221].

Elections belong to the political branch of the government. Therefore a petition averring irregularities and illegalities in an election presents no case authorizing a court of equity to interfere by injunction against the acts resulting from such election; such petition presents no question of equitable jurisdiction whatever: Hockett v. Liquor License Board, 16 O. N. P. (N. S.) 417, 25 O. D. (N. P.) 117 [affirmed by the court of appeals, which was affirmed, Hockett v. Liquor Licensing Board, 91 0. S. 176; and following and applying Link v. Karb, 89 O. S. 21].

The statutes of Ohio do not enumerate the specific grounds for which an election may be contested: Prentiss v. Dittmer, 93 O. S. 314.

A successful proceeding to contest an election renders the election as to the defeated party invalid, but it does not invest the contesting party with a majority of the legal votes cast: Prentiss v. Dittmer, 93 O. S. 314.

Neither quo warranto nor mandamus can ordinarily be invoked to deter mine the issue involved in an election contest; since such issue involves the validity of the election and not the title to the office: Prentiss v. Dittmer, 93 O S. 314.

Sec. 5125. Commission to Hear Contest. Upon the filing of a copy of such notice with the governor, he shall within five days appoint four judges of the court of appeals, not more than two of whom