Summary
In Pierce, the question before this court was whether a person's use of two names "for many years both before and after the enactment of Sections 4785-70a, 4785-90a and 4785-98a, General Code, and more than ten years before the filing of his declaration of candidacy and petition * * * constitute[d] a change of name within the purview and meaning of such statutes."
Summary of this case from State ex rel. Gold v. Wash. Cnty. Bd. of Elections.Opinion
No. 32170
Decided April 19, 1950.
Elections — Declaration of candidacy and petition valid — Finding of board of elections — Courts will not override when — No fraud and no timely protest — Long use of two names by declarant for candidacy — No change of name within meaning of statute, when — Sections 4785-70a, 4785-90a and 4785-98a, General Code.
1. In the absence of fraud or bad faith, the courts may not override a finding of a board of elections, having jurisdiction of the subject matter, to the effect that a declaration of candidacy and petition of a candidate for nomination to a public office is valid, where no protest against such declaration and petition was filed with such board within the time required by statute.
2. Where a person, in the signing of a declaration of candidacy and petition for nomination to a public office, used a name which he had adopted and by which he had been generally known in the community in which he resided for many years both before and after the enactment of Sections 4785-70 a and 4785-90 a, General Code, and for more than 10 years before the filing of such declaration of candidacy and petition, the fact that during the same period of time he used another name on certain occasions does not make such signing a change of name within the purview and meaning of such sections.
APPEAL from the Court of Appeals for Scioto county.
The plaintiff instituted this action to enjoin the members of the Board of Elections of Scioto County from printing the name of Hubert Phillips on the ballot and to enjoin Hubert R. Carrington, also known as Hubert Phillips, from becoming a candidate for state senator.
The case was heard in the Common Pleas Court of Scioto County upon a stipulation of facts submitted by the parties as follows:
"It is stipulated by counsel for the plaintiff and counsel for defendant designated in the petition as `Hubert R. Carrington,' also known as Hubert Phillips and hereinafter designated `candidate,' that the allegations of the petition concerning the residency and status of the plaintiff are true, and that it is further stipulated that the candidate filed his declaration of candidacy as a candidate for state senator for the seventh and eighth districts of Ohio under the name of Hubert Phillips; that said petition was filed on the 1st day of February, 1950, and said petition was thereafter determined valid by the Board of Elections of Scioto County, Ohio, the most populous county of said seventh and eighth districts, and that thereafter the plaintiff, after the date fixed by statute for the filing of protest, filed an objection and protest to the Board of Elections of Scioto County, Ohio to the declaration of candidacy of the candidate filed as aforesaid on the ground that Hubert Phillips was not the correct name of the candidate and that his real name was Hubert Carrington.
"It is further stipulated and agreed that the defendant, Board of Elections of Scioto County, Ohio, refused to take any further action against the petition of the candidate on the grounds that the time within which protest could be filed had expired at the time of said protest by the plaintiff.
"It is further stipulated that the candidate resides at Black Fork, Ohio; that the name of the father of the candidate was Hubert Carrington, and that the candidate was married under the name of Hubert Carrington.
"It is further stipulated that the candidate has been employed under the name of Carrington and his present social security number lists his name as Carrington.
"It is further stipulated and agreed that the candidate in filing his petition as a candidate for senator for the state of Ohio under the name of Hubert Phillips, had full knowledge that his father's name was Carrington and that his own family name was Carrington.
"It is further stipulated that the wife of the candidate owns real estate which is carried on the tax duplicate under the name of Carrington and that the candidate has never had a change of name made pursuant to Section 12209 of the General Code of Ohio.
"It is further stipulated that when the candidate was about seven years of age his mother married a man by the name of Harry Phillips and that thereafter the candidate's friends and associates started calling him Hubert Phillips. That during all the years since the candidate was about seven years old, he has been generally known among the people with whom he has associated as Hubert Phillips and has not been generally known as Hubert Carrington; that the candidate in about 1913 registered at school at Portsmouth, Ohio under the name of Hubert Phillips; that on November 9, 1931, he was elected township clerk of Washington township in Lawrence county, Ohio as Hubert Phillips; and that he has served as clerk of said township during all the years since January, 1932 under the name of Hubert Phillips; that he owns real estate in Washington township, section 12, Lawrence county, Ohio in the name of Hubert Phillips and pays his taxes in the name of Hubert Phillips.
"It is further stipulated by the parties hereto that this cause may be considered on the merits and be received by this court as a final submission of this cause subject to the right of counsel for the candidate to file for record purposes such answer as may be considered proper."
The Common Pleas Court granted a permanent injunction as prayed for in the petition, enjoining the board of elections from allowing or permitting the name of Hubert Phillips to appear on the ballot at the primary election to be held in Scioto county on May 2, 1950, and requiring such board to certify to the other counties of the senatorial districts the invalidity of the declaration of candidacy and petition for state senator under the name of Hubert Phillips and enjoining the defendant Hubert Carrington from seeking nomination for the office of state senator from the seventh and eighth senatorial districts of the state of Ohio.
The candidate appealed to the Court of Appeals on questions of law and fact, but that court held that the case should be heard on questions of law on an agreed statement of facts contained in the record as stipulations of the parties to be considered in lieu of a bill of exceptions, with an additional stipulation of facts agreed upon by the parties in the Court of Appeals.
The additional stipulation of facts is as follows:
"It is stipulated by counsel for the appellant and appellee that this appeal be finally submitted to the court on the following agreed statement of facts and upon the pleadings and stipulation of fact contained in the transcript of the proceedings in the Common Pleas Court:
"It further stipulated that the declaration of candidacy and petition of the appellant referred to in the pleadings and stipulations herein did not contain any name except that of Hubert Phillips as referring to or designating the appellant as a candidate for the office of state senator from the seventh and eighth Ohio districts.
"It is further stipulated that the name of Hubert Carrington referred to in the answer of appellant as one of his two names was used by the appellant when he registered for United States army service in 1942 and that appellant has used both the names Hubert Carrington and Hubert Phillips on his income tax returns during all the years since he begun paying income tax and in particular during years 1947, 1948 and 1949 said returns were made `Hubert Carrington also known as Hubert Phillips.'
"It is further stipulated that the candidate was married under the name of Hubert Carrington on May 15, 1925, and that during all the years since he has engaged in public employment he has alternated between the names of Hubert Phillips and Hubert Carrington, using the name Hubert Phillips during part of the time and Hubert Carrington during the balance of the time.
"It is further stipulated that the candidate received a deed for real estate and recorded the same under date of March 27, 1933, with the County Recorder of Lawrence County, Ohio, in Deed Book 140, page 250, Lawrence County Deed Records, and that the name of one of the grantees in said deed was Hubert Phillips."
The Court of Appeals affirmed the judgment of the Common Pleas Court.
The case is now in this court for review by reason of the allowance of a motion to certify the record.
Mr. Ernest G. Littleton, for appellee.
Mr. J. Earl Pratt, for appellant.
This court is first called upon to determine whether in the absence of fraud or bad faith the courts may override a finding of a board of elections having jurisdiction of the subject matter to the effect that a declaration of candidacy and petition of a candidate for nomination to a public office is valid where no protest against such declaration of candidacy and petition has been filed with such board within the time required by statute.
The pertinent portions of Section 4785-92, General Code, read as follows:
"All separate petition papers comprising the nominating petition of a candidate for election at a general election shall be filed at the same time as one instrument not later than 6:30 p.m. of the ninetieth day before the day of such general election, and shall be accompanied by the written acceptance of nomination by the nominee named in such petition. * * *
"* * * If the petition nominates a candidate whose election is to be determined by the electors of a district comprised of more than one county but less than all of the counties of the state, it shall be filed with the board of elections of the most populous county in such district. * * *
"All petition papers so transmitted to a board of elections, and all nominating petitions filed with a board of elections, shall, under proper regulations, be open to public inspection until 6:30 p.m. of the eighty-fifth day before the day of such general election.
"* * *
"Protests against nominating petitions may be filed by any qualified elector eligible to vote for the candidate whose nominating petition he objects to, not later than 6:30 p.m. of the eightieth day before the day of such general election. Such protests shall be filed with the election officials with whom the nominating petition was filed. Upon the filing of such protest, the election officials with whom it is filed shall promptly fix the time for hearing same, and shall forthwith mail notice of the filing of such protest and the time for hearing same to the person whose nomination is protested. * * * At the time so fixed such election officials shall hear the protest and determine the validity or invalidity of the petition. Such determination shall be final."
This court has repeatedly held that the requirements of the state election statutes are mandatory and must be strictly complied with. Koehler, Jr., v. Board of Elections of Butler County, 125 Ohio St. 251, 181 N.E. 107; State, ex rel. Fowler, v. Board of Elections of Fulton County, 126 Ohio St. 582, 186 N.E. 446; State, ex rel. McGinley, v. Bliss et al., Board of Elections of Summit County, 149 Ohio St. 329, 78 N.E.2d 715.
Although a board of elections may declare a declaration of candidacy and petition invalid where such declaration and petition does not conform to requirements specified by law, even though no protests were filed to such declaration and petition or were not filed within the time required by law, because of the board's inherent power to determine the validity of the declaration and petition, yet where a protest is not filed with the board of elections before the required day prior to the election, it is too late to be effective and the board of elections may disregard it as it did in the instant case. State, ex rel. Cassidy, v. Zaller et al., Board of Elections of Cuyahoga County, 142 Ohio St. 186, 50 N.E.2d 991.
This court has also held that where a candidate has complied with the provisions of law with regard to the preparation and filing of the declaration of candidacy and petition, the board of elections has no discretion in the matter but a ministerial duty to certify the candidate's name to be printed on the ballot and may be compelled by mandamus to perform that duty. State, ex rel. Smith, v. Smith, Secy. of State, 101 Ohio St. 358, 129 N.E. 879.
In the opinion of the court, the filing of the protest in the instant case after the time designated in the statute was a nullity and the board was warranted in disregarding it. Since there was no protest seasonably filed with the board of elections and since the board found the candidate's declaration and petition valid, were the courts warranted in enjoining the board from permitting the name of Hubert Phillips to appear on the ballot?
Sections 5004 to 5007, inclusive, General Code, in force prior to 1912, were analogous to present Section 4785-92, General Code, and contained the provision that the findings of the Secretary of State, State Supervisor of Elections and deputy state supervisors as to the sufficiency of certificates of nomination and nomination papers were final.
In the case of State, ex rel. Buel, v. Joyce et al., Deputy State Supervisors, 87 Ohio St. 126, 100 N.E. 325, this court said:
"The sections of the election laws which are now numbered Sections 5005, 5006 and 5007, General Code, have been under consideration by this court several times; and it has been uniformly held that the decision of the Secretary of State, when acting in the capacity of State Supervisor of Elections, upon written objections to certificates of nomination and nomination papers or upon other questions arising in the course of nomination of candidates, is final. Chapman v. Miller, 52 Ohio St. 166; Randall v. State, ex rel., 64 Ohio St. 57; State, ex rel., v. Stewart, 71 Ohio St. 55. The statute so declares; and as at present advised, this court is of the opinion that those matters are not per se the subject of judicial cognizance, but are matters for political regulation and well within the legislative power." See, also, State, ex rel. Gongwer, v. Graves, Secy. of State, 90 Ohio St. 311, 107 N.E. 1018; State, ex rel. Crull, v. Eidgenoss et al., Deputy State Supervisor of Elections, 108 Ohio St. 493, 141 N.E. 277; State, ex rel. Burgstaller, v. Franklin County Board of Elections, 149 Ohio St. 193, 196, 78 N.E.2d 352.
The second question raised is whether, where a person has been using two names for many years both before and after the enactment of Sections 4785-70 a, 4785-90 a and 4785-98 a, General Code, and more than ten years before the filing of his declaration of candidacy and petition, the use of either of such names in such declaration and petition constitutes a change of name within the purview and meaning of such statutes.
It is universally recognized that a person may adopt any name he may choose so long as such change is not made for fraudulent purposes.
On this subject 38 American Jurisprudence, 610, Section 28, states:
"In the absence of a statute to the contrary, a person may ordinarily change his name at will, without any legal proceedings, merely by adopting another name. He may not do so, however, for fraudulent purposes. In most jurisdictions, a change of one's name is regulated by statutes which prescribe the proceedings by which such change is to be accomplished."
And it has been held that where a person is as well known by one name as by another, the use of either name is sufficient. Gillespie v. Rogers, 146 Mass. 610, 16 N.E. 711.
The Court of Appeals seems to have taken the position that if a candidate has two names he must use both in his declaration of candidacy and petition and, consequently, on the ballot. The statute applies only where the candidate has changed his name within 10 years next preceding the filing of his declaration of candidacy and petition, or next preceding his nomination by petition. In the opinion of this court, under the factual situation, neither the letter nor the spirit of the statute has been violated by the candidate. The clear purpose of the statute is to prevent a candidate from changing his name to another to avoid an unfavorable result in the use of the abandoned name or to secure advantage by the use of such other name.
In the present case, the candidate has used both names continuously from childhood under the circumstances and for the reasons set out in the stipulated facts, and there has been no change in that practice.
It is the opinion of this court that the statutes in question have no application to the situation or status of the candidate, and that the board of elections was justified in approving as valid his declaration of candidacy and petition for nomination.
The judgment of the Court of Appeals is reversed and final judgment is entered for the defendants.
Judgment reversed.
MATTHIAS, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.
WEYGANDT, C.J., dissents.