Opinion
No. 33866
Decided April 23, 1954.
Elections — Contest — Form and contents of ballot — Statutory requirements not strictly complied with — Voters not misled — Contesters failing to raise objection before election — Estopped to attack its validity, when.
APPEAL from the Court of Appeals for Scioto county.
A vacancy having occurred in the office of judge of the Portsmouth Municipal Court, appellant Davis was appointed to fill the vacancy until a successor was elected and qualified. At the November 1953 election, there were two candidates for the office, the then incumbent Davis and appellee Thompson. Thompson received 6,550 votes and Davis 4,499 votes. The board of elections certified that Thompson was elected, and he qualified and has held the office since that time.
Proceedings to contest the election were instituted and consolidated in the Court of Appeals, appellants contending the election was void in that the nonpartisan ballot did not list the office of judge of the Municipal Court ahead of municipal offices and office of member of the board of education; that there were not printed on the ballot words to indicate that the election for municipal judge was for an unexpired term and to indicate the date of its termination; and that printed proofs of the official ballot were not posted in a public place in the office of the board of elections; all of which were required by statute.
The Court of Appeals dismissed the petitions with prejudice and rendered judgment for the contestees.
An appeal as of right brings the cause to this court for review.
Mr. edgar H. Hale, for appellants.
Mr. Chester P. Fitch, Mr. Aronhold C. Schapiro and Mr. William L. Howland, for appellee Lowell C. Thompson.
Mr. William H. Harsha, Jr., prosecuting attorney, for appellee Board of Elections, Scioto County.
There was no evidence of fraud in the election. The voters could not have been misled as there was but one judicial office on the ballot to be filled and the successful candidate could not have been elected for other than the unexpired term. Although proofs of the official ballot were not posted on the wall of the office of the board of elections, the record discloses that proofs were available for inspection at that office.
The record discloses further that Davis and her committee distributed to the electors, by mail and otherwise, 25,000 copies of a sample ballot, which were in precisely the same form as the official ballot, with no indication that the election was for an unexpired term and listing the offices in the same order in which they were listed on the official ballot. Thereafter, on behalf of Davis there was caused to be published in a Portsmouth newspaper of general circulation a copy of the sample ballot in the same form.
The appellants, having raised no objection to the form or insufficiency of the official ballot before the election, although proofs thereof were available to them, cannot, after the election and the determination of its result, be heard to attack the validity of the election for insufficiency in the form of the ballot.
"Strictly speaking, all provisions of the election laws are mandatory in the sense that they impose the duty of obedience upon those who come within their purview, but irregularities, which were not caused by fraud and which have not interfered with a full and fair expression of the voters' choice, should not effect a disfranchisement of the voters." Mehling v. Moorehead, 133 Ohio St. 395, 406, 14 N.E.2d 15.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.