Opinion
No. 32121
Decided March 8, 1950.
Elections — Declaration of candidacy at party primary and petition for candidate — Sections 4785-71 and 4785-72, General Code — Candidate's completed affidavit to appear on separate petition papers before electors sign — Writ of mandamus denied — Secretary of State not required to place candidate's name on ballot.
IN MANDAMUS.
Relator filed his petition originally in this court praying for a writ of mandamus commanding respondent to include within the list of names of candidates to be printed on the official ballots to be used at the primary election to be held May 2, 1950, to be certified by him to each board of elections in this state, the name of the relator as the same appears on the declaration of candidacy filed by him.
In his petition, relator alleges that he tendered for filing with respondent a petition consisting of 102 separate petition papers and signed by more than 1,000 and less than 5,000 qualified Republican voters from 35 counties; that respondent transmitted such petition papers to the boards of elections of such 35 counties; and that such boards of elections determined such petition papers contained 1,743 valid signatures.
Relator alleges also that there was filed with respondent a written protest against the candidacy of relator; that the protest was heard by the respondent on February 14, 1950; and that following the hearing the respondent determined that the declaration of candidacy and the accompanying petition filed by relator, as aforesaid, was invalid in that the declaration of candidacy and the petition did not contain at least 1,000 qualified electors from one-third of the counties of the state.
Relator alleges further that, unless respondent is ordered by this court to do so, he will not include in his certification of the names of the candidates to be printed on the official ballot to be used at the primary election to be held May 2, 1950, the name of the relator.
In his answer respondent, admitting most of the allegations of relator's petition, said:
"* * * that of the 102 petition papers from thirty-five counties filed by relator on February 1, 1950, twenty such petition papers from eight counties were insufficient, invalid, void, and of no effect, for the reason as shown on the face thereof that the affidavit attached to the declaration of candidacy was subscribed and executed on January 31, 1950, whereas the names of electors as signers of the petitions were affixed thereto and the affidavit of the circulator was executed from six to fourteen days prior thereto. Respondent says that there remained, after the elimination of the said invalid petition papers, valid petition papers from only twenty-seven counties in this state, rendering the declaration of candidacy and petitions of the said relator wholly insufficient under the election laws of this state."
In his second defense, respondent alleges:
"* * * that in case of all but three of the 102 petition papers filed by relator as his declaration of candidacy and petition, the petition papers were invalid, insufficient, void and of no effect, for the reason that on the said 99 petition papers the affidavit of the said candidate to his declaration of candidacy was in blank and was not executed either in original or by way of a copy at the time the names of the electors of the state were affixed to the petitions on the said petition papers, contrary to the provisions of law applicable thereto."
Respondent admits in his answer:
"* * * that unless he is ordered so to do by this court he will not include in his certification the name of relator as a candidate for the office as alleged in the petition."
The following stipulation was entered into:
"The parties hereto, by their counsel, stipulate as follows:
"1. The 102 separate petition papers comprising the petition attached to the declaration of candidacy filed with the respondent on February 1, 1950, are attached hereto and marked exhibits 1 to 102, inclusive.
"2. The certificates of the 35 boards of elections to which such separate petition papers were transmitted for examination and determination as to the validity or invalidity of the signatures thereon, which certificates set out the determination of such boards of elections are attached hereto and identified as exhibits A1 to A35, inclusive.
"3. Louis Vinocur, 2026 East 107th street, Cleveland, Ohio was at all times pertinent to this action, a member of the Republican party, a qualified elector and eligible to vote for relator herein. The protest of the said Louis Vinocur duly filed with the respondent herein is attached hereto and marked `exhibit B.'
"4. That after the filing of the said protest, due notice thereof and of a hearing thereon was given in due form by the respondent to all interested parties and that a hearing was held thereon on February 14, 1950 at which the said protester, Louis Vinocur, was personally present and the said relator was represented by his counsel, E.G. Schuessler, attorney at law, Columbus, Ohio.
"5. That the notice of the determination of the protest in which respondent found the declaration and petitions of relator invalid was in form and substance as shown in `exhibit C' attached hereto, dated February 21, 1950.
"6. The separate petition papers held to be invalid by the respondent are as follows:
" No. of Separate| " County Petition Papers Exhibit Clinton 1 4 Fairfield 1 19 Mahoning 4 70 to 73 inclusive Morrow 1 77 Portage 1 81 Ross 1 82 Summit 10 90 to 99 inclusive Warren 1 101
"7. All of the above exhibits were before the respondent for consideration at the hearing conducted by him on February 14, 1950, pursuant to the protest filed with him.
"8. An exact copy of the form of declaration of candidacy and petition for candidate filled in in the exact manner as when submitted to the electors for their signatures in case of all but three of the separate petition papers is attached hereto and marked `exhibit D.' The three separate petition papers above referred to are identified as exhibits 5, 6 and 15 which, when submitted to electors for signature of the petition, were filled in as they now appear.
"9. The total number of signatures certified as valid by the various boards of elections was 1,743; the number of signatures determined to be invalid by the respondent was 588; respondent found and determined that the part-petition papers filed by the relator contained 1,155 valid signatures from 27 counties."
Mr. E.G. Schuessler, for relator.
Mr. Herbert S. Duffy, attorney general, and Mr. William C. Bryant, for respondent.
The question presented is well stated in relator's brief as follows:
"The single question presented is whether a declaration of candidacy and the petition consisting of a number of separate part-petitions, filed therewith, meet the requirements of law if such declaration of candidacy is filed and the statements made therein are sworn to by the candidate on only one of such separate petition papers, and such declaration of candidacy so filed is copied on each of the other separate petition papers before the signatures of electors are placed thereon. Stated otherwise, the question is whether each separate petition paper is required to have the completed affidavit, attached to the original declaration of candidacy, copied thereon."
The decision in this case depends upon the proper interpretation of Sections 4785-71 and 4785-72, General Code.
In Section 4785-71, General Code, there is prescribed a form for declaration of candidacy and petition. As a part of the declaration of candidacy there is prescribed the following:
"The State of Ohio
"County of . . . . .
"_____(Name of candidate), 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.
"_____
"(Signature of candidate)
"Subscribed and sworn to before me this . . . . day of_____, 19. .
"_____
"(Signature of officer administering oath)
"_____
"(Title of officer)"
Section 4785-72, General Code, provides:
"If the petition required by law to be filed with a declaration of candidacy should consist of more than one separate petition paper the declaration of candidacy of the candidate named in the petition need be signed by the candidate and his affidavit thereto need be subscribed by him and executed on only one of such separate petition papers, but the declaration of candidacy so signed, subscribed and executed shall be copied on each other separate petition paper before the signatures of electors are placed thereon. * * *"
It is argued by relator that the elimination of the word, "affidavit," in the part to be copied on the other separate petition papers is significant, and the affidavit on such other papers is unnecessary.
The respondent, on the contrary, argues that as the affidavit is a part of the form of the declaration of candidacy prescribed in Section 4785-71, General Code, it was intended by the General Assembly that the entire form as outlined in Section 4785-71, General Code, including the affidavit, should be copied in full. This seems a reasonable requirement to the end that the person asked to sign the petition may have the assurance under oath that the facts recited in the foregoing declaration of candidacy are true.
Therefore, the writ of mandamus should be, and hereby is denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.