In the much discussed case of State ex rel. Fowler v. Board of Elections where, discussing the facts, the court said, ‘and the relator having failed to proceed in the manner therein prescribed, this court must of necessity sustain the demurrer.’ And the Supreme Court, in affirming the judgment in the Fowler case held that the Court of Appeals was right in sustaining the demurrer.
Of course, the situation is not exactly parallel, because the Fowler case was an action in mandamus, but, nevertheless, the court accepts and adheres to the proposition that under given conditions the powers of a court may be invoked. In the recent cases of State ex rel. Burgstaller v. Board of Elections and State ex rel. Lemert v. Board of Elections, the same principle was recognized. Furthermore, in those cases there was asserted the same principle announced by Chief Justice Marshall in the case of Sullivan v. State ex rel. O’Connor, where, in discussing the absence of fraud alleged or proved–and that is the situation in the instant case–he said: ‘the petition on the relation of O’Connor does not allege fraud, neither is it necessary that it should do so, because it has an equally potent allegation that the action of the board was an abuse of discretion and without authority of law.’
We come, therefore, to a discussion of the second proposition advanced by France, that the judgment of the lower court was contrary to law. Upon such proposition the court rendered a very able opinion, upon which we might without impropriety rely without further observation.
The General Code in part, provides: ‘Each application for recount shall separately list each precinct as to which a recount of the votes therein is requested, and the person or persons filing an application for a recount shall at the same time deposit with the board of elections ten dollars for each precinct so listed in such application as security for the payment of charges for making the recount therein applied for, which charges shall be fixed by the board as hereinafter provided.’
The fourth paragraph of the syllabus in the Fowler case (Court of Appeals), supra, is: ‘Strict compliance with statute respecting application for recount and giving security by cash deposit or bond for cost thereof is mandatory and jurisdictional.’
