Summary
In Wagner, the court considered whether G.C. 4785-34 would permit previously registered electors to list an address other than their registered voting residence on a nominating petition.
Summary of this case from In re Protest Filed by CitizensOpinion
No. 24406
Decided October 4, 1933.
Municipal corporations — Elections — Nominating petitions for mayor of Akron — Ten per cent of electors who voted at last election — Number of signatures determined by votes cast, not individual electors voting — Registered elector, qualified to sign petition, although registration not transferred — Election question justiciable, when.
IN MANDAMUS.
This is an action in mandamus filed in this court. The relator is a candidate for the office of mayor in the city of Akron; the respondents are the deputy state supervisors of elections of Summit county, in which the city of Akron is located. The relator asks for a writ of mandamus commanding the respondents to place his name on the official ballot as a candidate for mayor at the municipal election to be held next November.
The defendants demur to the petition on two grounds: (1) That the court has no jurisdiction of the subject of the action; and (2) that the petition does not state facts necessary to show a cause of action.
The following are the salient facts appearing in the petition, which, for the purpose of a demurrer, are conceded to be true: At the municipal election in the city of Akron in November, 1931, 51,190 electors voted. In September, 1933, there were filed with the defendants nominating petitions circulated in behalf of relator's candidacy for mayor, bearing 8,062 signatures. The defendants, as members of the board of elections, checked the names of the signers upon the nominating petitions, and for various reasons found 2,903 signatures invalid. The invalidity of these signatures is not questioned. The members of the board in checking the names of the signers upon the petitions found that 1,586 electors who had signed the petitions, although duly registered, both now and in 1931, "had not voted at the last regular municipal election of said city at large and therefore refused to count said one thousand five hundred eighty-six signatures to said petitions as valid." They also refused to count 375 names of electors who had signed the petitions, "because the addresses of said electors which appeared upon said petitions were different than the addresses now appearing upon the permanent registration records of said board for said city of Akron because they had not transferred their registration, notwithstanding said persons are now electors of said city of Akron, as shown by said registration records." The petition alleges that, had the board counted said 1,586 signatures of electors, and also the said 375 signatures, these two classes, if validated, in addition to the valid signatures which the board did count, would constitute the number of signatures required by the charter to place the name of the relator on the ballot.
Section 6 of the Akron municipal charter pertaining to the number of signatures required contains the following provision: "Such petition shall be signed by at least ten per centum (10%) of the electors who voted at the last regular municipal election of the city at large."
Messrs. Larabee, Kepler Wells and Messrs. De Woody Keeney, for relator.
Mr. RAY B. Watters, prosecuting attorney, and Mr. Clyde B. Macdonald, for respondents.
Two legal propositions are presented by the general demurrer. It is conceded by the demurrer that the number of signatures to the petitions was sufficient had the board counted as valid the 1,586 signatures of those who had not voted in the municipal election of 1931, and also the 375 signatures of the voters of the municipality, who, though registered upon the permanent registration records, had failed to transfer their registration. If these two classes constitute valid signatures, the general demurrer should he overruled, otherwise it should be sustained.
1. The salient portion of Section 6 of the Akron municipal charter relating to signatures on nominating petitions is as follows: "Such petition shall be signed by at least ten per centum (10%) of the electors who voted at the last regular municipal election of the city at large."
It is conceded that 51,190 electors voted at the last regular municipal election in 1931. The legal contention of the relator is that he is only required to have 10 per cent., or 5,119 signatures, of registered electors, whether such electors did or did not vote at the previous election. The claim of the respondents is, and they so held, that this 10 per cent. must be confined to those electors who actually voted at that election.
While there may be some ambiguity in the language of the charter provisions, it is susceptible of the interpretation that the language employed was intended to mean 10 per cent. of the number of electors who voted at that election. The provision does not stipulate that it must be 10 per cent. of the "identical" electors, or of the "same individual" electors, who voted at such election. And there are many reasons why the interpretation claimed by relator's counsel should be sustained by the court. The number of electors who voted at the prior municipal election is easily ascertainable from the official records of the secretary of state, while the effort to obtain the names of those who actually voted in the several precincts involves a tedious process. Furthermore, unless abridged by constitutional or statutory limitations, the electoral rights of the citizen should be held to be equal, and a liberal interpretation should be given in order to effectuate that purpose. The registered electors in a municipality, whether they did or did not vote at the previous municipal election, are equally interested in the choice of future municipal candidates. The interpretation sought by counsel for the respondents would deny the right of signing to registered electors who, because of sickness or absence, had failed to vote; and also to those who, becoming of age or moving into the city since the last election, had complied with the registration laws. In State, ex rel. Thompson, v. Board of Elections of Montgomery County, 122 Ohio St. 278, 171 N.E. 315, we had before us a statute (Section 4785-70, General Code) involving language very similar to that of the Akron charter. For nominating petitions in counties or districts larger than a county, the statute permitted the optional method of securing signatures either of one hundred electors or of "five per cent of the electors who voted for the party candidate for governor at the next preceding regular state election." The legal question here involved was not there decided, and the case is referred to only for the purpose of showing that legislation of this character may apply to district or state as well as to municipal officers. It will readily be seen that it would be much more difficult to ascertain the percentages were candidates relegated to any method other than one easily ascertainable by the official count.
Judges ALLEN, JONES and MATTHIAS are therefore clearly of the opinion that it was the manifest intention of the charter that the 10 per cent. applied to the number of electors officially found to have voted at the last municipal election, and not to the identical electors who had actually voted, as contended for by counsel for the respondents. With said interpretation Judges WEYGANDT, STEPHENSON and BEVIS do not agree.
2. Three hundred and seventy-five signatures to the petitions, invalidated by the respondents, were signatures of those whose addresses were not the same as appeared upon the permanent registration records; these electors had not transferred their registration as required by statute. Article V, Section 7, of the state Constitution, reads: "All nominations for elective * * * municipal offices shall be made at direct primary elections or by petition as provided by law." This provision of the Constitution was discussed in the case of Fitzgerald v. City of Cleveland, 88 Ohio St. 338, and particularly by Donahue, J., on page 391, 103 N.E. 512, Ann. Cas., 1915B, 106.
The state had an undoubted right to prescribe registration requirements. The state did so, and passed various laws in respect to registration. The city charter contained no provision in respect thereto, and therefore any question of conflict between the charter and state law does not arise. Section 4785-34, General Code. (144 Ohio Laws, 686), provides: "No person residing in any registration precinct shall be entitled to vote at any election, or to sign any declaration of candidacy, nominating, initiative, referendum or recall petition unless he is duly registered as an elector in the manner provided herein." Other section of the statute permit changes of registration by transfer, previous to an ensuing election. Those electors whose signature were invalidated were duly registered as electors upon the permanent registration lists, and in that respect had fully complied with the statute; for the statute merely prescribes that they be "duly registered as an elector" and contains no specific stipulation in respect to transfer.
Judges ALLEN, BEVIS, JONES and MATTHIAS are therefore of the opinion that an elector, otherwise qualified, whose name appears upon the permanent registration list, may sign a petition for nomination, although at the time he has not transferred his registration on the permanent lists; they are of opinion that said signatures were valid and the petition sufficient.
It is claimed by the respondents that these questions are not justiciable. It may be conceded that elections belong to the political branch of the government and are not of judicial cognizance, but are matters for political regulation. However, if officials of the political department of the government are guilty of fraud, corruption or gross abuse of discretion, or if they misinterpret the provisions of the constitution, or of a statute or municipal charter, affecting the status of a candidate or of an elector, the six judges participating in this case are of the opinion that such a case becomes one of judicial cognizance. While this phase has not heretofore been directly decided, this court has taken judicial cognizance where the cause necessitated the interpretation of our Constitution and laws. State, ex rel. Graves, v. Bernon et al., Bd. of Elections, 124 Ohio St. 294, 178 N.E. 267; State, ex rel. Patton, v. Myers, Secy. of State, ante, 95, 186 N.E. 872; State, ex rel. Donnelly, v. Myers, Secy. of State, ante, 104, 186 N.E. 918.
Since but six judges participated in the hearing of this case, three being in favor of allowing, and three in favor of denying, the writ, it becomes manifest that the writ must be denied.
Writ denied.