Opinion
No. 35816
Decided March 25, 1959.
Election contest — Statutory procedure to be strictly followed — Court to set time for hearing — Service on contestee — Section 3515.10, Revised Code — Mandatory requirements precedent to hearing.
1. The procedure prescribed by statute to bring an election contest within the jurisdiction of a judge must be strictly followed.
2. Under the mandatory provisions of Section 3515.10, Revised Code, the hearing of an election contest must be set not more than 30 days after the filing of the petition, and a copy of the petition must be served on the contestee, and, where it is apparent that the hearing was not set in compliance with the statute, that no request for the setting of such hearing was made, and that no copy of the petition was served or was requested to be served on the contestee, the judge with whom the petition was filed has no alternative but to dismiss the same, on motion of the contestee, for lack of jurisdiction and authority to proceed.
APPEAL from the Court of Common Pleas of Brown County.
Certain electors of Eastern Local School District, Brown County, Ohio, which district is comprised of a part of such county and parts of two townships in Highland County, filed their petition in the Court of Common Pleas of Brown County in May of 1958, ostensibly under the provisions of Section 3515.08, Revised Code, challenging the validity of an election held in such school district on May 6, 1958, whereby it was declared, after a recount of the votes, that a bond issue in the sum of $612,000 for the acquisition of land, erection of new school buildings and other related improvements had been duly passed. The petition alleges that and sets forth reasons why such election was invalid, among them being the claim that, since a portion of such school district lies within parts of two townships in Highland County, the electors in that territory should have been supplied with ballots at the election to vote on such bond issue but were not.
Later, a motion was filed by the contestee Board of Education of Eastern Local School District to strike the petition from the files on the ground that the court lacked jurisdiction over the person of the board. Such motion was sustained, whereupon the contesters perfected an appeal to this court on questions of law, as authorized by Section 3515.15, Revised Code.
Mr. Charles H. Wilson and Mr. Angus B. Wilson, for appellants.
Mr. Richard F. Liggett, prosecuting attorney, and Mr. Robert N. Gorman, for appellees.
Counsel for the school board raises the point, and several members of this court agree with them, that because of the geographical territory embraced in the Eastern Local School District the petition to contest the election was improperly and unauthorizedly filed in the Court of Common Pleas of Brown County to be heard by the judge of such court.
That part of Section 3515.08, Revised Code, which is pertinent reads as follows:
"In the case of an office to be filled or an issue to be determined by the voters of the entire state, or for the offices of members of Congress, or for judicial offices higher than that of Court of Common Pleas, or for an office to be filled or an issue to be determined by the voters of a district larger than a county, said contest shall be heard and determined by the Chief Justice of the Supreme Court or a justice of the Supreme Court assigned for that purpose by the Chief Justice * * *.
"In the case of all other offices or issues, except judicial offices, such contests shall be heard and determined by a Judge of the Court of Common Pleas of the county in which the contest arose * * *."
Since a part of Brown County and portions of two townships in Highland County form the Eastern Local School District, is there "a district larger than a county" here involved within the meaning and intendment of the quoted section, whereby the hearing of the contest must be before the Chief Justice or a "Justice" of this court?
Be that as it may, the contesters herein chose as their forum the Court of Common Pleas of Brown County, and, in order to have their petition acted upon there, it was incumbent upon them to meet certain statutory mandates. So far as it is applicable, Section 3515.10, Revised Code, recites:
"The court with which a petition to contest an election is filed shall fix a suitable time for hearing such contest, which shall be not less than 15 nor more than 30 days after the filing of the petition. Such court shall have a copy of the contestor's petition served upon the contestee * * * in the same manner as a summons in a civil action." (Emphasis supplied.)
It is apparent from the record that the trial date of the contest was not set within 30 days after the filing of the petition, there is no showing that any request therefor was made, and the record does not indicate that a copy of the petition was served or was requested to be served on the contestee. This court has held that the procedure prescribed by statute to bring an election contest within the jurisdiction of a court must be strictly followed. Williams v. O'Neill, 142 Ohio St. 467, 52 N.E.2d 858. And this court has often said that election laws generally are to be given a strict construction.
True, Section 3515.10, Revised Code, provides that the court shall have a copy of the contester's petition served upon the contestee in the same manner as a summons in a civil action, but some duty devolves upon the contester, who inaugurates the contest, to see that this is accomplished.
Under the controlling statute, the setting of the hearing of a contested election not more than 30 days after the filing of the petition and the service of a copy of the petition on the contestee are express conditions precedent which must be complied with before the hearing of the contest can be had. Compare In Matter of Contest of Special Election in Village of North Baltimore, Ohio, 136 Ohio St. 279, 25 N.E.2d 458.
In the entry dismissing the petition for lack of jurisdiction, the court states no reason for its action, and whether that dismissal was because the judge decided the petition had been filed in the wrong court or because there was lack of compliance with the mandatory provisions of Section 3515.10, Revised Code, is left in doubt. If the dismissal was for noncompliance with the statute, as is probable, we think such action was proper and finds support under the principle announced and applied in the case of Jenkins v. Hughes, 157 Ohio St. 186, 105 N.E.2d 58.
No constitutional question is discernible in this case.
Therefore, the judgment of the Court of Common Pleas is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TAFT, MATTHIAS and BELL, JJ., concur.
STEWART, J., concurs in the judgment.
HERBERT, J., dissents.
I concur in the judgment for the reason that, in my opinion, the Court of Common Pleas of Brown County was without any jurisdiction to entertain this election contest.
In Section 3515.08, Revised Code, it is provided that, as to an issue to be determined by the voters of a district larger than a county, an election contest shall be heard and determined "by the Chief Justice of the Supreme Court or a Justice of the Supreme Court assigned for that purpose by the Chief Justice."
The only sensible meaning that can be given to the expression, "of a district larger than a county," is "of a district that comprises territory in two or more counties."
Since the issue to be determined by the voters in the present case involved a district, a portion of which is in Highland County and a portion of which is in Brown County, the district is larger than a county as contemplated by the statute. Therefore, only the Chief Justice of the Supreme Court or a "Justice" thereof assigned for that purpose by the Chief Justice has jurisdiction to hear and determine the contest.
Since, under the Constitution of Ohio, the members of the Supreme Court, aside from the Chief Justice, are designated "Judges," technically there is no Justice of the Supreme Court, and, therefore, either the Chief Justice has exclusive jurisdiction to hear an election contest as to an issue to be determined by the voters of a district which extends into two counties or more, or the term, Justice of the Supreme Court, would have to be interpreted as meaning a Judge thereof.
TAFT, MATTHIAS and BELL, JJ., concur in the foregoing concurring opinion.
I dissent for the reasons that the election was held only in the county in which the election contest was brought, and that the record shows no effort on the part of the court to comply with the statutory requirements of service.