The opinion
Patton, J.,
dissenting. I must respectfully dissent from the majority’s issuance of a writ of mandamus.
Relator seeks an order from this court which would prevent the Cuyahoga County Board of Elections from counting the votes of the electorate in the local-option election regarding relator’s liquor permit. An action in mandamus, however, does not lie.
In
State, ex rel. Byrd,
v.
Summit Cty. Bd. of Elections
(1981), 65 Ohio St. 2d 40 , 19 O.O. 3d 230, 417 N.E. 2d 1375 , the Supreme Court held in paragraph one of the syllabus:
“Mandamus and
quo warranto
will not lie to compel the withdrawal of a certificate of election issued following an election, and cannot be substituted in lieu of a request for a recount pursuant to R.C. 3515.02, or a contest of election pursuant to R.C. 3515.09. These sections provide the exclusive remedy for a recounting of the votes, or a correction of all errors, frauds, and mistakes which may occur at an election.
(State, ex rel. Daoust,
v.
Smith,
52 Ohio St. 2d 199 , approved and followed.)”
Similarly, this court has held that the remedies of recount under R.C. 3515.02 and
election contest
under R.C. 3515.09 are available to the holder of a liquor permit whose permit is cancelled pursuant to the results of a local-option election.
Walt’s Friendly Tavern
v.
Dept. of Liquor Control
(1983), 11 Ohio App. 3d 277 , 11 OBR 457, 464 N.E. 2d 610 .
Relator clearly has a plain and adequate remedy under R.C. Chapter 3515. Mandamus, therefore, does not lie in this case.
Nevertheless, relator would have this court issue an order which would prohibit the board of elections from so much as counting the votes cast in the local-option election. That is, relator would have this court silence the voice of the electorate, in spite of the fact that there exists at least the possibility that a majority of the voters may not have voted to cancel relator’s permit. Of course, even if a majority of the voters favored cancellation of relator’s permit, the remedies of recount
and election
contest remain open to relator under R.C. Chapter 3515.
Accordingly, the General Assembly has provided a plain and adequate remedy at law. Under these circumstances, this court should not preempt the expression of the will of the electorate. The issuance of a writ of mandamus preventing the board of elections from certifying the results of this local-option is error. As a consequence, I dissent.