Opinion
Nos. 23513, 23514, 23515, 23516, 23517, 23518 and 23519
Decided April 21, 1932.
Elections — Members of controlling committees of political parties — Candidates shall be members of party — Party affiliation may be challenged, how — Sections 4785-63 and 4785-78, General Code — Protests present political question, and determination of election board final, when — Compliance with mandatory provisions of statute, required — Nominating petitions not invalidated by technical defects — Notary's signature not legible, and official designation and printed name omitted.
1. Section 4785-63, General Code, provides that candidates to become members of controlling party committees shall be members of the party of whose organization they seek to become a part. By virtue of Section 4785-78, the party affiliation of such candidates may be challenged by a member of such party, and such issue must be determined in the case of county committees by the county board of elections.
2. The question is one of political cognizance, and it is the duty of the board of elections to conduct a hearing upon such issue, upon notice to parties interested. By virtue of Section 4785-78 the determination of the board, in the absence of fraud or corruption, is final and is not subject to judicial review.
3. Candidates for nomination to offices on county committees are required to comply with all mandatory provisions of the statute, and having so complied by producing petitioners who are of the same political party as the candidate, and such petitioners having acknowledged and made the oath required, the failure of the officer who takes the acknowledgment and administers the oath to petitioners, to legibly sign his name and to print his name below his signature and to give his official designation as such officer, are technical defects which will not invalidate such petition.
ERROR to the Court of Appeals of Lucas county.
The facts are stated in the opinion.
Mr. Harry S. Commager, Mr. Percy R. Taylor and Mr. J.O. Eppstein, for plaintiffs in error.
Mr. Edward P. Buckenmyer, Mr. Frank Aigrisse and Mr. Thomas J. O'Connor, for defendants in error.
These causes originated in the Court of Appeals of Lucas county, Ohio, as suits in mandamus invoking the original jurisdiction of that court. The various petitions in mandamus alleged that the plaintiffs, present defendants in error, had filed in the office of the board of elections of Lucas county, Ohio, petitions and declarations of candidacy for the so-called office of Democratic committeeman in their respective wards and townships, subject to the will of the primary election to be held May 10, 1932; that their respective petitions were regular on their face, and six of them indicated that all legal formalities had been fully complied with. Within the time limited, protests were filed as to all the relators except Thomas J. O'Connor, on the ground that the several relators were not Democrats. In the case of O'Connor the protest was on the ground that the petition had not been properly executed in that it was not sworn to before an officer authorized to administer oaths; that the signature of the name of the officer who administered the oath was illegible and not dated; that no signature was printed or stamped beneath the signature, where the officer should have signed as required by law; and that there was no indication of the official capacity of the officer other than that a notarial seal was imprinted thereon.
The pleadings raise no issue as to whether O'Connor was a Democrat. The evidence discloses without contradiction that the signers of his petition had signed, acknowledged and verified their signatures before Ed. P. Buckenmyer; that the declaration in the petition was signed prior to its filing on March 11, 1932, viz. February 23, 1932. The only claimed irregularity in O'Connor's case is that Buckenmyer's signature was illegible, that he had not given his official designation, and that he had not printed his name below his signature.
A hearing was conducted before the board of elections on the question of the politics of each of the relators, and the board of elections unanimously found that all the relators other than O'Connor were not Democrats, and therefore refused to certify those relators for places on the ballot. As to O'Connor, he was refused a certificate on the ground of the aforesaid irregularity in his petition. Thereupon these actions were begun in the Court of Appeals, praying writs of mandamus. A full hearing was given in that court, and so far as we can learn the same evidence was introduced in that court that had theretofore been adduced before the board of elections. The court reached the conclusion that all relators were Democrats, and that the petition of O'Connor was only technically irregular, and awarded writs of mandamus in all cases. The causes have been filed in this court by the board of elections as of right, on the ground that the causes originated in the Court of Appeals.
As grounds for the applications for writs of mandamus it is alleged that the refusal of the board of elections to certify the name of relators as eligible for printing upon the ballot is a failure to perform the official duty of the board members, and that the action of the board is "arbitrary, illegal, and an abuse of discretion, and without authority of law." The relators did not allege fraud on the part of the board members; neither did they allege a failure to comply with any positive provisions of the election laws, except in the case of O'Connor. The allegation that the act of the board was arbitrary, illegal, and an abuse of discretion did not in detail specify in what respect it was arbitrary or illegal, and most of these allegations are the statements of conclusions. The word "arbitrary" cannot be said to be the synonym of the word "fraudulent." The action cannot be said to be arbitrary in the sense that the board acted without giving the relators a hearing, because the record shows that a full hearing was granted. As to the six relators no apparent legal question was involved. True, the law is very definite in requiring that all candidates for Democratic committeeman must he Democrats. The board was not required to interpret that law. Or, if they did interpret it, it must be said that they interpreted it correctly. That is to say, the board determined that the petitioners must be Democrats. Having reached that determination, the board proceeded to conduct a hearing to determine whether they were in fact Democrats. The question before the board was purely one of fact, and its processes were clearly those of fact finding. Unless fraud entered into the action of the board, this court may not properly seek to determine whether the facts were correctly found. Neither was it the province of the Court of Appeals to determine that question of fact. Within similar limitations, Section 4785-13, paragraph k, General Code, enjoins upon the board of elections the power and the duty to "review, examine and certify the sufficiency and validity of petitions and nomination papers." Section 4785-78 provides that a member of the same party as relator may protest in writing against the candidacy of any person seeking to become a candidate for nomination, and further provides "in the case of protests filed against candidates for county offices or offices of a district lying within a county, the same shall be heard and determined by the board of such county and its decision shall be final." The board, therefore, in all the cases except that of O'Connor, was charged with the duty of determining whether relators were Democrats, and in his case was required to determine whether his petition was regular as to legal formalities. The problem before the Court of Appeals, and the problem of this court upon review of its judgments, must be whether the hearing before the board of elections and its conclusions upon the questions presented to it were of such character as to be within the exclusive province of the board, and therefore whether its orders are final.
Through a long line of cases decided by this court it has become the settled principle that elections belong to the political branch of the government, and that therefore they are not per se the subject of judicial cognizance, and they have repeatedly been held to be matters for political regulation. Chapman v. Miller, 52 Ohio St. 166, 39 N.E. 24; Randall v. State, ex rel. Hunter, 64 Ohio St. 57, 59 N.E. 742; State, ex rel. Hildebrandt, v. Stewart, 71 Ohio St. 55, 72 N.E. 307; State, ex rel. Buel, v. Joyce, 87 Ohio St. 126, 100 N.E. 325; Link v. Karb, Mayor, 89 Ohio St. 326, 104 N.E. 632; State, ex rel. Gongwer, v. Graves, Secy. of State, 90 Ohio St. 311, 107 N.E. 1018; State, ex rel. Crull, v. Eidgenoss, 108 Ohio St. 493, 141 N.E. 277; State, ex rel. Kauffmann, v. Brown, Secy. of State, 111 Ohio St. 289, 145 N.E. 329; State, ex rel. Waltz, v. Michell, 124 Ohio St. 161, 177 N.E. 214.
By the repeated declarations of this court, allegations of fraud, corruption, or abuse of discretion must be specific. State, ex rel., v. Eidgenoss, supra; State, ex rel. Maxwell, Pros. Atty., v. Schneider, 103 Ohio St. 492, 134 N.E. 443. It has further been declared repeatedly that notwithstanding the decision of the board is declared to be final, it may nevertheless be reviewed if procured by fraud or corruption, or where there has been a flagrant misinterpretation of a statute, or a clear disregard of legal provisions applicable thereto.
In six of these cases, without any claim of fraud or corruption, the board has made a finding of fact that the relators are not Democrats. This conclusion was reached by a board composed of two Republicans and two Democrats. Whether or not a court, hearing the same evidence, would have reached a different conclusion is beside the point. The determination of the facts involved was committed by the Legislature to the board of elections. If there ever was any question of the power of the Legislature to repose that authority in the board, that question is no longer debatable. We are of the opinion that the allegations of the various petitions did not invoke the jurisdiction of the Court of Appeals in mandamus. We are also of the opinion that however erroneous the conclusions of the board may possibly have been in matters of judgment, it proceeded in the regular way to determine a question properly within its cognizance. No fraud intervened, and its findings of fact may not be disturbed by judicial authority.
As to cause No. 23513, in which O'Connor was relator, we are of the opinion that O'Connor had fairly complied with the law, and that the alleged irregularities were not of that character which justified the board of elections in determining a fatal irregularity. In reaching this conclusion we call attention to the fact that Section 4785-78, General Code, concludes with these words, "but no declaration of candidacy shall be rejected for more technical defects." O'Connor bad been properly sworn. His petitioners had been properly sworn. They had properly signed before being sworn. The fact that Buckenmyer's name was not signed in a legible manner, and that he failed to note his official character, is not fatal, because it is unquestioned that he was in fact a notary public, and that he in fact administered the oath, and that he in fact signed his name thereto. The defects of execution must be held to be of that character which would be subject to amendment, upon the same principle that a return of a sheriff can be corrected to show the facts of proper service, if in fact proper service had been made.
We would not be understood as holding that this notarial certificate is a model of artistic execution. Neither should the conclusions we have reached be taken as a precedent in cases which involve oaths and acknowledgments in other proceedings. In cases involving elections, where it is particularly provided that technical defects shall not cause a declaration to be rejected, the inquiry relates to what the candidate and his petitioners may have done, rather than to the technical manner of proving what they may have done or not have done. This case is wholly different from that of Koehler, Jr., v. Board of Elections of Butler County, ante, 251, 181 N.E. 107, which has recently been decided by this court on error proceedings from the Court of Appeals of Butler county. In that case the issue was whether the candidate and his petitioners had done what the law required. It was shown that while it appeared on the face of the petitions that the law had been complied with, the evidence clearly disclosed that the parties had not so done. In this case it is exactly the reverse. The candidate and his petitioners have done all that the law requires, but there is a technical defect in the certificate of the notary. This should not be held to render the petition and the declaration void.
Inasmuch as causes Nos. 23514 to 23519, both inclusive, make no definite charges of fraud or violation of statutes, the Court of Appeals was without jurisdiction to grant the mandamus directed to the board of elections, and the judgments of the Court of Appeals in those causes will be reversed.
In cause No. 23513 the petition on the relation of O'Connor does not allege fraud, neither is it necessary that it should do so, because it has an equally potent allegation that the action of the board was an abuse of discretion and without authority of law. The petition in that case differs from the other petitions in that it very definitely sets forth the matters which constitute the abuse of discretion and the lack of legal authority. In that case the Court of Appeals did have jurisdiction to review the action of the board of elections, and its judgment awarding the writ of mandamus will be affirmed.
Judgment affirmed in cause No. 23513.
JONES, MATTHIAS, DAY, ALLEN, KINKADE and STEPHENSON, JJ., concur.
Judgments reversed in causes Nos. 23514 to 23519, both inclusive.
MATTHIAS, DAY, KINKADE and STEPHENSON, JJ., concur.
I concur in the judgment in the case of Sullivan et al. v. State, ex rel. O'Connor, upon the ground that the failure of the notary public, who took the acknowledgment of O'Connor and administered the oath to the petitioners, legibly to sign his name and print his name below the signature, was a technical defect which did not invalidate the petition. I dissent, however, in the companion cases, Sullivan et al. v. State, ex rel. Bringman, Sullivan et al. v. State, ex re. Callahan, Sullivan et al. v. State, ex rel. Fall, Sullivan et al. v. State, ex rel. Haas, Sullivan et al. v. State, ex rel. Huber, and Sullivan et al. v. State, ex rel. Kilcorse, both upon the facts presented in the record and upon the law laid down by this court as applicable to those facts.
It is significant that none of the material facts as to these six cases are given in the majority opinion. The opinion declares that the law requires that candidates for Democratic committeemen must be Democrats, and that if the board interpreted the law, it interpreted it correctly. Five of these relators, Bringman, Fall, Haas, Huber and Kilcorse, had their petitions rejected by the board of elections of Lucas county on the ground that they themselves were not Democrats. Yet The statement is made by all five of these relators, and nowhere denied, that they are life-long members of the Democratic party. The record shows that each one of them voted for a majority of the Democratic party in the election of 1930, and this fact is not disputed. Two of these relators, Fall and Kilcorse, are Democratic booth officials. Fall has been for 26 years a booth official of the Democratic party. In the Callahan case, the board of elections rejected Callahan's petition, not upon the ground that he himself was not a Democrat, but upon the ground that the petition did not contain the signatures of five qualified Democratic electors, as required by statute. The petition was signed by eight electors purporting to be Democrats. Four of them are conceded by counsel for the board of elections to be Democrats, and otherwise qualified. Two of the signers of this petition, Buchholtz and Ziervogel, were eliminated upon the ground that they were not Democrats because they had voted at the Republican primary in 1930. They testified, and this fact was not. denied, that they voted for a majority of the Democratic candidates in the general election of 1930. Hence the Callahan case, in addition to presenting certain other questions which it is not necessary to discuss here, raises the same legal question as the Haas and Huber cases. Haas and Huber were candidates whose petitions were rejected on the ground that they were not Democrats. They each voted in the Republican primary of 1930, but the fact that in the general election of 1930 they voted for a majority of Democratic candidates is not denied, nor is their testimony as to this fact impeached in any way.
The Legislature could have made voting in the party primary in 1930 the test of party membership in 1932, but as a matter of fact the Legislature did not. The only test enjoined by the statute is that found in Section 4785-82, General Code, which is that party affiliations shall be determined by the largest number of candidates of any one party voted for by the electors at the last general election held in an even numbered year. Measured by this test, every one of the five candidates for nomination, rejected upon the ground that they themselves were not Democrats, is a Democrat, and Ziervogel and Buchholtz, who signed the Callahan petition, are Democrats, for there is not in this record anywhere any testimony even tending to contradict their declaration that they voted for the majority of Democrats in the last general election held in 1930, that is, in an even numbered year.
The cases of Bringman, Fall and Kilcorse are even stronger than those of Haas and Huber. They did not vote in the Republican primary. They simply signed certain petitions for Republican candidates. It was stated by Bringman, Fall and Kilcorse, and not denied, that each of them inadvertently signed Republican petitions. Fall stated that he did not know the candidate whose petition be signed, nor his politics. Kilcorse stated that he did not think anything about it. Bringman said that he did not intentionally sign any Republican petition, and could not remember the exact time when this happened.
If the inadvertent signing of a petition, without knowing who is the candidate whose petition is being signed, or what is his party, disqualifies a man who admittedly is a life-long member of a party from candidacy in that party, and if this court continues to hold that the decision of the county board of elections upon such point is final, regardless of such evidence as that here presented, then indeed freedom of candidacy is eliminated in this state.
In the case of Hayes v. Kentucky Joint Stock Land Bank, ante, 359, 181 N.E. 542, recently decided by this court, Marshall, C.J., makes certain pertinent statements which I paraphrase here. The positive statement of these relators is not contradicted by any other witness or by any other circumstance. Standing uncontradicted, it must be accepted as proof in the absence of any testimony or circumstance from which a contrary inference can be drawn. The record discloses none. Paraphrasing again, from the opinion in the Hayes case, supra, if another witness had given testimony which contradicted these relators or these petition signers upon essential points, or if they had contradicted themselves or had made admissions which tended to support the proposition that they voted for a majority of other than Democratic candidates in the year 1930, a wholly different situation would be presented. The board of elections could not wholly disregard their testimony, neither could it draw inferences directly contrary to their affirmative statements. The fact of requesting a Republican primary ballot in the primary, the fact of inadvertently signing a Republican petition, had no probative value, because the test established by the Legislature is that party affiliations shall be determined by the largest number of candidates of any one party voted for by the electors at the last general election held in even numbered years.
The statement of these relators as to that fact could be impeached. If, for instance, any one of them had stated subsequent to the general election of 1930 that he had voted for a majority of Republican candidates at such election, such testimony would have been competent, material, and highly probative, upon the question of party affiliation. The record presents no such testimony.
Certainly the facts above set forth constitute abuse of discretion, to remedy which the Court of Appeals rightly issued the writ of mandamus. The majority opinion avoids this issue by saying that allegations of abuse of discretion must be specific. What more specific allegation of abuse of discretion could be made than to state the above facts?
But I question far more seriously that section of the syllabus which holds that this record is not subject to judicial review. Conceding that no fraud or corruption is shown, a finding of fact was made by the board of elections contrary to the uncontradieted facts. Have the courts no power under such circumstances?
The establishment of autocratic boards which control our industrial, governmental and political functions presents a sinister phase of the drift in American group life. To turn over to the board of elections in every county power to disqualify candidates under circumstances such as those set forth in this record, where there is no testimony controverting the statement of these men that they voted for a majority of Democratic candidates in the last general election, where there is no material testimony controverting the statement of five of them that they are lifelong Democrats, where two of them are recognized as such by being Democratic booth officials, shows how far the courts have gone in ceasing to protect purity of elections.