Opinion
No. 31385
Decided March 10, 1948.
Elections — Member of party county central committee — Section 4785-70, General Code — Declaration of candidacy — Board of elections may determine sufficiency and validity — Section 4785-13, General Code — Duty of candidate to designate precinct — Determination of board of elections final, when — Mandamus not issued to require name to be placed on ballot.
IN MANDAMUS.
The relator filed in this court a petition for a writ of mandamus requiring the respondent board to accept his declaration of candidacy and petition for member of the county central committee of the Democratic party from precinct J, ward 4, Zanesville, Muskingum county, Ohio, and to print his name on the ballot.
The cause was submitted on the petition, answer and agreed statement of facts.
The facts hereinafter stated are epitomized from the agreed statement and exhibit attached thereto. Members of the Muskingum County Democratic Central Committee are elected from precincts and not from wards or townships. The fourth ward is composed of 18 precincts, and the relator resides in precinct J of that ward. He filed a declaration of candidacy for election as member of that committee from the fourth ward and received a receipt reciting that his declaration of candidacy and petition for "Dem. candidate for the position of Co. Cent. Com. 4-J" had been duly filed. The board of elections met, examined all petitions and declarations and rejected the declaration of relator for the reason it did not designate from which precinct he desired to be a candidate. A letter was sent to relator informing him of the latter fact and notifying him of a meeting of the board of elections to be held on February 17, 1948. Three days prior thereto, there was filed a protest to relator's declaration for the reason that it did not designate the precinct but designated the fourth ward only and no committeeman was to be elected from that ward. The board of elections met on the date last mentioned, the relator was represented at the hearing and, after the hearing, the board reaffirmed its rejection of relator's declaration of candidacy. No further action was taken on the protest by reason of the fact that the declaration had been tentatively rejected and the rejection had been reaffirmed at the meeting on February 17.
Attached to the agreed statement of facts as an exhibit is a copy of relator's declaration of candidacy and petition for candidate, prepared on form No. 6 prescribed by the Secretary of State and filed by relator with the board of elections. The declaration of candidacy is blank in the space provided for the designation of the precinct of a candidate's voting residence and the declaration contains only the words "fourth ward" in the space provided on the form for designating the precinct, ward or political subdivision from which a candidate desires to be elected as member of the county central committee. The copy of the petition of candidate contains in the certificate of the five signing electors in blanks provided for the designation of the precinct, ward, city and county of the candidate's voting residence, the items, "J," "fourth ward" and "Muskingum," and contains the names of five electors, each followed by "Muskingum," "Zanesville," "4" and "J," in spaces provided on the form for designating the county, city, ward and precinct of a signer.
Mr. H. Richard McCracken, for relator.
Mr. Clarke B. Barbour, prosecuting attorney, for respondent.
The petition of relator alleges that the "action of the board of elections, was arbitrary, illegal, and an abuse of discretion in that the rejection was for a mere technical defect." Neither fraud nor corruption is alleged.
Paragraph k of Section 4785-13, General Code, authorizes a board of elections "to review, examine and certify the sufficiency and validity of petitions and nomination papers." The tenth paragraph of Section 4785-70, General Code, provides for filing protests against the candidacy of any person filing a declaration of candidacy and for notice of the filing and of a hearing. That section provides also that if the election officials "find that such candidate is not an elector of the * * * political subdivision in which he seeks * * * election to [a] * * * position, or has not fully complied with the law relating to primary elections, his declaration of candidacy and petition shall be determined to be invalid and shall be rejected, otherwise it shall be determined to be valid. Such determination shall be final." (Italics ours.)
Section 4785-63, General Code, authorizes an outgoing county central committee to determine whether members shall be elected from a township, ward or precinct.
Section 4785-71, General Code, prescribes substantially the form for a declaration of candidacy and petition.
The board of elections of Muskingum county was empowered by Section 4785-70, General Code, to determine whether relator had fully complied with the law relating to primary elections and whether his declaration of candidacy was valid. A protest against his candidacy was duly filed and the board complied with the requirements of that section relating to notice and hearing.
It was the obligation of the relator to designate in his declaration of candidacy the precinct in ward 4, which he desired to represent as a member of the county central committee. The selection of a precinct was not the duty of someone who issued a receipt for the board of elections or of the electors who signed relator's petition for candidate.
The action of the board was neither arbitrary, illegal nor an abuse of discretion. See Koehler, Jr., v. Board of Elections of Butler County, 125 Ohio St. 251, 181 N.E. 107, and State, ex rel. Raines, v. Tobin et al., Board of Elections of Summit County, 138 Ohio St. 468, 35 N.E.2d 779.
Counsel for relator contends that the omission of a precinct designation was a mere technicality which should not have been sufficient reason for rejecting relator's declaration of candidacy and he relies on Sullivan v. State, ex rel. O'Connor, 125 Ohio St. 387, 181 N.E. 805. Two facts distinguish that case from the present. First, the claimed irregularities in the Sullivan case were the illegibility of the signature of the notary and his failure to note his official character and to print his name, which alleged defects could not have been charged to the candidate. Second, Section 4785-78, General Code, which at the time of that decision directed that "no declaration of candidacy shall be rejected for mere technical defects," was repealed by Amended Substitute Senate Bill No. 109 (122 Ohio Laws,). However, the rejection of the declaration of the present relator was not for a mere technicality and was authorized by law.
Under Section 4785-70, General Code, the determination of a board of elections is final. Mandamus will not lie to control the exercise of powers by a board of elections in the absence of allegations of fraud, collusion or abuse of discretion.
No duty is specially enjoined by law on the respondent to accept relator's declaration of candidacy and to place his name on the primary ballot. Therefore, a writ of mandamus will be denied to relator.
Writ denied.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.