Opinion
Nos. 27794, 27796 and 27797
Decided October 18, 1939.
Elections — Judge of Cleveland Municipal Court — Time for filing nominating petitions — Section 1579-5, General Code — Petitions valid although signatures not accompanied by date of signing, when — Section 6, Cleveland Charter — Objections not filed with board of elections — Section 4785-92, General Code — Mandamus — Res judicata — Writ not substitute for appeal.
1. The date on or before which nominating petitions for the office of judge of the Municipal Court of the city of Cleveland must be filed is determined by the provisions of the charter of the city and Section 1579-5, General Code, as being seventy-five days before the general election occurring on the first Tuesday after the first Monday of November in odd numbered years, and not sixty days before the date of such general election as provided for the filing of nominating petitions of candidates generally under Section 4785-92, General Code.
2. Where a nominating petition of a candidate for judge of the Municipal Court of the city of Cleveland, containing sufficient valid signatures of electors and otherwise substantially in form required by law, has been seasonably filed with the board of elections and no objections have been made thereto as provided for by Section 4785-92, General Code, a writ of prohibition will not issue against such board of elections to require it to reject such petition, even though the date upon which the several signatures were attached thereto does not appear thereon as directed by Section 6 of the municipal charter of the city of Cleveland.
IN MANDAMUS.
APPEAL from the Court of Appeals of Cuyahoga county.
IN PROHIBITION.
The three above-named cases, presenting common legal problems, were heard together in this court.
In case No. 27794, the relators, Charles H. Hubbell and another, filed their petition, as an original action in this court, seeking a writ of mandamus against the members of the Board of Elections of Cuyahoga county to compel them, as respondents, to accept the nominating petition of Charles H. Hubbell as a candidate for the office of judge of the Municipal Court of Cleveland for the term beginning January 3, 1940, and to print his name on the ballot to be used at the election to be held November 7, 1939.
The petition alleges that the relator Hubbell, on September 8, 1939, filed nominating petition, to which were affixed more than the required number of signatures of electors of the city of Cleveland, with the respondent board of elections, but that the latter refused to accept and file such petition, holding that the final date for filing petitions for such office was August 23, 1939, as required by the charter of the city of Cleveland.
To this petition the respondents filed an answer alleging that relator Hubbell had, on September 18, 1939, filed a similar petition in mandamus in the Court of Appeals of Cuyahoga county setting forth the same facts and issues made by the petition in this case, being cause No. 17573 in that court; that the cause was determined in the Court of Appeals on September 28, 1939, against the relator, denying the prayer of his petition; and that the judgment and order of the Court of Appeals has not been reversed, modified or vacated. The answer also alleges, as a second defense, that the nominating petition of relator was not filed within the time required by law. No reply was filed by the relators. The case was heard by this court on the pleadings.
In case No. 27796, the relator instituted his action in mandamus in the Court of Appeals of Cuyahoga county, setting out in his petition a set of facts similar to those above recited in case No. 27794, involving the question as to the time within which he must file his nominating petition for judge of the Municipal Court of Cleveland, and praying for a writ of mandamus. The Court of Appeals denied the writ and the case is now in this court on appeal.
In case No. 27797, the relator filed in this court a petition praying for a writ of prohibition to require the Board of Elections of Cuyahoga county to refuse to accept the petitions of certain other candidates for judge of the Municipal Court of the city of Cleveland, and to require the board to desist from printing the names of such persons on the ballot to be used at the general election to be held November 7, 1939.
The petition recites that relator Thornton had filed a petition as candidate for judge of the Municipal Court with the board of elections on September 8, 1939, but that the board had rejected his petition on the ground that it was not filed within the time required by law, and further sets out certain claimed irregularities in the nominating petitions of such other candidates for the same office, whose petitions were filed on or before August 23, 1939, and were accepted as sufficient by the board of elections. Relator prays that the petitions of these candidates be rejected as was his own, so that he and they may be placed on an equality as to the presentation of their respective candidacies at the ensuing election.
The respondents filed an answer in which they allege that the forms of the petitions of candidates, other than the relator's were approved by the respondents and by the Secretary of State, although such forms did not provide for a space wherein each signer of the petitions might affix the date of his signature, but that no protest against the sufficiency of the petitions of such candidates was made prior to the service of summons on the petition in this case, which service of summons was made after the primary election held in the city of Cleveland on October 3, 1939, and that such petitions were substantially in the form required by law for nominating petitions of other nominees for public office in the city of Cleveland; and that the form of nominating petitions provided by Section 7 of the charter of the city of Cleveland, requiring the insertion of the date of each signature to such petition, relates to the nominating petitions of mayor and councilman and does not apply to nominating petitions of candidates for the office of judge of the Municipal Court. This case was submitted to this court on the pleadings.
Mr. Charles H. Hubbell and Mr. George Mayer, for relators, in cause No. 27794.
Mr. Joseph F. Smith and Mr. George J. McFadden, for appellant, in cause No. 27796.
Mr. Kenneth W. Thornton, for relator, in cause No. 27797.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Saul S. Danaceau, for respondents and appellees.
The writ of mandamus must be denied in case No. 27794 for the reason that the same issues, involving the same parties, were presented to the Court of Appeals of Cuyahoga county, and, on hearing by that court, determined adversely to the relators. No appeal from the judgment and order of that court has been taken, and the doctrine of res judicata applies. Furthermore, mandamus cannot be invoked to subserve the purpose of an appeal. 25 Ohio Jurisprudence, 1013, Section 34; State, ex rel. Cook, v. Ottinger, Clerk, 43 Ohio St. 457, 3 N.E. 298.
Aside from this issue, there is presented in cases Nos. 27794 and 27796, the further question as to within what time nominating petitions for judge of the Municipal Court of the city of Cleveland must be filed. The office in question was created by the Municipal Court Act of the city of Cleveland, being Section 1579-1 et seq., General Code. Section 1579-5, relating to the nomination of municipal judges by petition, provides in part:
"The judges of the Municipal Court including the chief justice shall be nominated by petition. Such petition shall be signed by at least twenty-five hundred electors of the city of Cleveland. It shall be in general form and shall be signed, verified and filed in the manner and within the time required by law for nominating petitions of other nominees for public office in the city of Cleveland." (Italics ours.)
Incidentally, in the case of State, ex rel. Stanley, v. Bernon et al., Board of Elections of Cuyahoga County, 127 Ohio St. 204, 187 N.E. 733, this court held that under Sections 3 and 7 of Article XVIII of the Constitution of Ohio, municipalities have authority to provide by charter for the nomination of their elective officers.
The "other nominees for public office in the city of Cleveland," referred to in Section 1579-5, General Code, must be the mayor and members of the city council who are the only officers whose nomination and election are specifically referred to and provided for in the municipal charter of the city of Cleveland. Section 3 of the Cleveland city charter provides that "a general election for the choice of elective officers provided for in this charter shall be held on the first Tuesday after the first Monday in November in odd numbered years." Section 4 of the charter provides that "candidates for all offices to be voted for at any municipal election under the provisions of this charter shall be nominated at a non-partisan primary election to be held on the fifth Tuesday prior to such municipal election," which, in 1939, was October 3. Section 8 of the charter provides that "all * * * papers comprising a nominating petition shall be * * * filed with the election authorities * * * at least forty days prior to the day of primary election," which, in 1939, was August 23. This date, under the charter, is clearly the date on or before which "nominating petitions of other nominees for public office in the city of Cleveland" (Section 1579-5, General Code), must be filed for the 1939 general election.
The relators claim that this matter is governed by Section 4785-92, General Code, which provides that nominating petitions of candidates shall be filed with the election authorities not later than the sixtieth day prior to the date of election, which was September 8 in this year. This court does not concur in this view, but holds that the provisions of Section 1579-5, General Code, and the provisions of the charter of the city of Cleveland, above noted, are controlling.
Since there were no objections or protests filed Within the time fixed by Section 4785-92, General Code, to the petitions of the other candidates named in relator's petition in case No. 27797, and since the petitions in question substantially comply with the statutory and charter provisions relating to nominating petitions, the relator in the last named case is not entitled to the relief prayed for by him.
The writ of mandamus is denied in case No. 27794; the judgment of the Court of Appeals is affirmed in case No. 27796; and the writ of prohibition is denied in case No. 27797.
Writ denied in cause No. 27794. Judgment affirmed in cause No. 27796. Writ denied in cause No. 27797.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS and MATTHIAS, JJ., concur.
MYERS, J., not participating.