Summary
confining review of election contest decisions to instances where board "flagrantly misinterpreted the statute, or clearly disregarded an applicable legal provision"
Summary of this case from Mundo v. Commonwealth Superior CourtOpinion
No. 33934
Decided March 31, 1954.
Elections — Primaries — Declaration of candidacy and petition for candidate — Form and verification — Section 3513-07, Revised Code — Error in acknowledgment — Substantial compliance with statutory requirements.
APPEAL from the Court of Appeals for Hamilton county.
On January 29, 1954, appellant filed with the board of elections of Hamilton county a declaration of candidacy stating his desire to be a candidate of the Democratic Party for election to the office of member of the county central committee from the 26th ward in the city of Cincinnati at the primary election to be held on May 4, 1954. On February 8, 1954, the board of elections wrote to the appellant advising him that at a meeting of the board his declaration of candidacy and petition had been rejected "because the name of William R. Schumacher appears as being sworn on the declaration of candidacy instead of name of candidate."
The declaration of candidacy and petition was made out in accordance with the form provided for by Section 3513.07, Revised Code. It is formally complete and regular in all respects except that the affidavit after the signed declaration, which is provided for in the form specified in that Code section, reads as follows:
"The State of Ohio, County of Hamilton, ss.
" William R. Schumacher, being duly sworn, deposes and says that he is the candidate named in the above declaration of candidacy and that the statements and declarations therein contained are true as he verily believes.
"(signed) Vincent Halpin
"Subscribed and sworn to before me this 28th day of January, 1954.
"(signed) William R. Schumacher
"Notary Public, State of Ohio."
(Emphasis added.)
This action was instituted on the relation of Vincent Halpin in the Court of Appeals for Hamilton county. That court denied the prayer of relator for a writ of mandamus requiring the board of elections to accept and approve his declaration of candidacy and petition, to certify the sufficiency and validity thereof, and to order relator's name to be printed on the primary ballot of the Democratic ballot as a candidate.
The cause is before this court on appeal from the judgment of the Court of Appeals.
Mr. Harry M. Hoffheimer and Mr. Sidney Weil, Jr., for appellant.
Mr. C. Watson Hover, prosecuting attorney, Mr. Carl B. Rubin and Mr. George S. Heitzler, for appellees.
By the provisions of Section 3513.07, Revised Code, "the form of declaration of candidacy and petition of a person desiring to be a candidate for a party nomination or a candidate for election to an office or position to be voted for at a primary election shall be substantially as follows." Then follows the form for declaration of candidacy and petition for candidate.
It is apparent that, in the instant case, the typewritten insertion of the name of the notary in a portion of the form where the name of the candidate should have been inserted was an obvious error. It still appears from the form as executed that the signed declaration was "subscribed and sworn to before" the notary. The only one who subscribed or signed his name anywhere on the form before the signature of the notary was the candidate. He signed on the form at the end of the declaration at the place designated for the signature of the candidate, and again at the place designated for the signature of the candidate before the words, "subscribed and sworn to."
In our opinion, the form of declaration of candidacy and petition here involved was "substantially" as required by the provisions of Section 3513.07, Revised Code.
The judgment of the Court of Appeals is, therefore, reversed and the cause is remanded to that court with instructions to issue the writ as prayed for.
Judgment reversed.
MIDDLETON, TAFT, ZIMMERMAN and LAMNECK, JJ., concur.
WEYGANDT, C.J., HART and STEWART, JJ., dissent.
According to the majority opinion, the judgment of the Court of Appeals is reversed on the ground that the errors in the verification do not prevent it from being a substantial compliance with the statutory requirment.
This view might be tenable if the mistakes were mere ambiguities or omissions. On the contrary, the errors are affirmative and contain statements that concededly are untrue.
It is stated that "William R. Schumacher, being duly sworn." It is conceded that Schumacher was not sworn.
It is stated that "Schumacher * * * deposes and says." Concededly Schumacher deposed and said nothing.
It is stated that "Schumacher * * * is the candidate named in the above declaration of candidacy." And yet it is admitted that he is not the candidate.
Under the circumstances it would seem that the Court of Appeals clearly was correct in holding that these positive errors fall far short of any remote resemblance to a substantial compliance with the plain requirements of the statute.
HART and STEWART, JJ., concur in the foregoing dissenting opinion.