Opinion
No. 34657
Decided January 25, 1956.
Elections — Nominating petitions of independent candidates — Number of signatures required — Section 3513.256, Revised Code — Constitutionality — Laws to have uniform operation — Statute operating equally on all members of designated class.
IN PROHIBITION.
This action in prohibition, instituted originally in this court, was brought to test the constitutionality of Section 3513.256, Revised Code, as amended effective January 1, 1956 (126 Ohio Laws, S. 220). That section, relating to nominating petitions of independent candidates for county offices, provides in part as follows:
"The nominating petition of independent candidates for the office of representative to the General Assembly, county commissioner, county auditor, prosecuting attorney, clerk of the Court of Common Pleas, sheriff, county recorder, county treasurer, county engineer, coroner, shall be signed by not less than 25 qualified electors of the county, or not less than seven per cent of the number of electors who voted for Governor at the next preceding regular state election in the county, whichever is the greater. The nominating petition of independent candidates for the office of judge of Probate Court, judge of the Court of Common Pleas, and such other courts as are established by statute, shall be signed by qualified electors not less in number than seven per cent of the number of electors who voted for Governor at the next preceding regular state election in the territory over which such court has jurisdiction, or 2,500 electors, whichever is the lesser number." (Emphasis supplied.)
It is alleged by relator that the section is unconstitutional in that it violates Section 26, Article II of the Constitution of Ohio, which provides that "all laws, of a general nature, shall have a uniform operation throughout the state."
Relator contends that the statute is a law of a general nature within the meaning of the above-quoted constitutional provision; that by arbitrary classification it sets up conditions which in application make it impossible for citizens to become independent candidates for ten elective county offices in the large counties and then arbitrarily places judicial candidates in a class where the requirements to become independent candidates are substantially different; and that it arbitrarily and fictitiously creates a class or classification to such extent that it is unconstitutional.
The prayer of the petition is for an order commanding the respondent Secretary of State to withdraw or nullify all petition forms heretofore printed and circulated, based on Section 3513.256, Revised Code, as amended, and to notify each county board of elections to refuse to certify the nomination of any judicial candidate who files an independent-candidate nominating petition containing signatures less in number than seven per cent of the electors who voted for Governor at the next preceding regular election in the territory in which the judicial candidate seeks office.
The cause has been presented on demurrer to the petition, on the ground that it does not state facts which show a cause of action. Counsel concede that the court's ruling thereon will dispose of the case.
Mr. Donald S. McNamara, in propria persona. Mr. C. William O'Neill, attorney general, and Mr. Hugh A. Sherer, for respondent.
The term, "uniform operation," as used in the above-quoted constitutional provision permits the General Assembly to make a reasonable classification of subjects of statutory regulation.
"A statute is general and uniform, within the requirements of the Constitution, if it operates equally upon every person and locality within the circumstances covered by the act, and when a classification has a reasonable basis it is not invalid merely because not made with exactness or because in practice it may result in some inequality." Steele, Hopkins Meredith Co. v. Miller, 92 Ohio St. 115, 110 N.E. 648, L.R.A. 1916C, 1023.
The only classification made by Section 3513.256, Revised Code, supra, in prescribing requirements for nominating petitions is a distinction between candidates for nonjudicial office and candidates for judicial office. The statute operates equally on all members of a designated class. Relator contends that this classification is not based on any real distinction. This contention is answered in the case of State, ex rel. Weinberger, a Taxpayer, v. Miller, 87 Ohio St. 12, 99 N.E. 1078, 44 L.R.A. (N.S.), 712, Ann. Cas. 1913E, 761, which involved the constitutionality of an act to provide for the election of judicial officers by separate ballot. The act was held to be a valid exercise of legislative power and not repugnant to the Constitution. It is stated in the opinion, at page 49:
"* * * there is a substantial difference between the duties of judicial officers and the officers in the other departments of our government, and a consideration of these differences leads to the conclusion that the classification made by the Legislature is a reasonable one. The question of the advisability of making such a classification is one for the Legislature and not for the courts."
In State, ex rel. Newell, Jr., v. Brown, Secy, of State, 162 Ohio St. 147, 122 N.E.2d 105, that portion of Section 3513.256, Revised Code, as amended effective January 1, 1954 (125 Ohio Laws, 783), providing that "in counties having a population of one million or more, the nominating petition of independent candidates for the office of judge * * * shall be signed by qualified electors not less in number than seven percent of the number of electors who voted for Governor at the next preceding regular state election in the territory over which such court has jurisdiction, or 2,500 electors, whichever is the lesser number," was held unconstitutional in that it conflicted with Section 26, Article II of the Constitution. That case is easily distinguishable. Cuyahoga County was the only county in the state having a population of one million or more. At page 156, the opinion states:
"* * * to say that a law has uniform operation, which requires only 2,500 signatures to a nominating petition in Cuyahoga County and nearly ten times that number in Hamilton County and many times that number in several of the other counties of the state with the same problems and the same sort of population as Cuyahoga County, seems to us to be so fantastic as to approach absurdity.
"* * *
"* * * The law does not operate equally upon the members of the class to be affected * * *."
The classification involved in the instant case is reasonable and valid. The demurrer to the petition is sustained and the writ is denied.
Demurrer sustained and writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.