Opinion
No. 38708
Decided March 23, 1964.
Elections — Prohibition to prevent placing of candidate's name on ballot — Sworn statement by candidate as to "voting residence" — Validity of declaration of candidacy — Determination by board of elections — Reversal by court.
IN PROHIBITION.
By this proceeding in prohibition, instituted in this court, relator seeks to enjoin the respondent board of elections from certifying, printing and placing the name of one John J. Foley, Sr., on the ballot for the May 5, 1964, primary election as candidate for the office of state Senator.
Relator alleges in his petition that Foley, in his declaration of candidacy, gave, under oath, false information as to his postoffice address; that he is not a qualified elector in the ward and precinct which he gave as his voting residence; and that the respondent board, at a protest hearing, abused its discretion in holding the declaration and petition to be legally sufficient.
Mr. Joseph Waterman, in propria persona. Mr. Earl W. Allison, Jr., prosecuting attorney, for respondent Franklin County Board of Elections and others.
Mr. William B. Saxbe, attorney general, and Mrs. Joanne Wharton, for respondent Ted W. Brown, secretary of state.
It appears that the address given by Foley is that of his divorced wife; and that, at the time the divorce was granted to his wife, about a year ago, he was enjoined from going into or near the home of his wife and from all visitation with his children. There is no evidence that he has established a voting residence elsewhere in the precinct.
The candidate, having been divorced from his wife and having been enjoined from going into or near the residence of his former wife, cannot properly say that he resides there.
The writ of prohibition is allowed on authority of State, ex rel. Higgins, v. Brown, Secy. of State, 170 Ohio St. 511.
Writ allowed.
TAFT, C.J., ZIMMERMAN, YOUNGER, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.
YOUNGER, J., of the Third Appellate District, sitting by designation in the place and stead of MATTHIAS, J.