Opinion
No. 38387
Decided October 18, 1963.
Elections — Nominating petition — Affidavit of circulator — Signature and seal of notary not affixed — Petition invalid.
IN MANDAMUS.
This action in mandamus, instituted in this court, seeks a writ requiring the respondent board of elections to certify the nominating petition of relator and place his name on the ballot for the office of member of the Board of Education of Medina City School District.
Three petition papers were filed by relator. The respondent board found that two of the petition papers contained a total of 31 valid signatures. Forty valid signatures were the minimum number required for the nomination.
The third petition paper filed by relator was not canvassed by the board for valid signatures because the signature and seal of the notary public before whom the circulator of the paper allegedly appeared were not affixed to the petition.
Subsequent to the filing of the petition and as soon as the fact of the omission of the notary's signature and seal from one of the papers was made known to the notary, an affidavit was furnished by the notary that the circulator did in fact appear before the notary and signed his name and wrote his address and after being sworn deposed that he was the circulator of the petition, that the 25 signatures thereon were the signatures they purported to be, and that the signatures were written in the presence of the circulator, but through omission the notary failed to affix his signature and seal.
On September 25, 1963, judgment was entered for relator by default.
Respondents have filed a motion to vacate such default judgment.
Mr. Neil W. Whitfield, for relator.
Mr. James W. Foreman, prosecuting attorney, for respondents.
As to the third petition paper above referred to, there has not been a substantial compliance with the mandatory requirements of the statute (Section 3513.261, Revised Code). The motion by respondents to vacate the default judgment heretofore entered is sustained and a writ of mandamus is denied. See State, ex rel. Allen, v. Board of Elections of Lake County, 170 Ohio St. 19; State, ex rel. Ferguson, v. Brown, Secy. of State, 173 Ohio St. 317.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH and GIBSON, JJ., concur.
HERBERT, J., dissents.