Summary
In Williams, like the present dispute, an election contest petition was signed by the contestor's attorneys rather than by the contestor.
Summary of this case from Hitt v. TresslerOpinion
No. 29847
Decided January 26, 1944.
Contest of election — Political and not judicial matter — General Assembly empowered to determine manner of conducting trial — Section 21, Article II, Constitution — Contest proceedings special and summary — Statutory procedure to be strictly observed, when — Petition to be signed by 25 voters or by defeated candidate — Section 4785-167, General Code.
1. An election contest is a political and not a judicial matter, and under Section 21, Article II of the Constitution of Ohio, the General Assembly is empowered to "determine, by law, before what authority, and in what manner the trial of contested elections shall be conducted." ( Foraker v. Perry Twp. Rural Bd. of Edn., 130 Ohio St. 243, 199 N.E. 74, approved and followed.)
2. Proceedings to contest an election are special and summary in nature, and the procedure prescribed by statute to bring an election contest within the jurisdiction of the specified authority must be strictly observed.
3. Under the mandate of Section 4786-167, General Code, it is necessary that a petition to contest an election be filed within ten days after the results of a recount of votes have been ascertained and announced, "signed by at least twenty-five voters * * * or by the defeated candidate," to give a court jurisdiction over the proceeding.
APPEAL from the Common Pleas Court of Mahoning county.
Arthur H. Williams, the appellant, and Ralph W. O'Neill, the appellee, were candidates for the office of mayor of the city of Youngstown at the 1943 election. It was ascertained and announced by the board of elections that O'Neill was the successful candidate by a margin of six votes. A recount was had, with the result that O'Neill was found to have been elected by a majority of eight votes.
Within ten days Williams, as contester, filed his petition in the Court of Common Pleas of Mahoning county, as authorized by Section 4785-166, General Code, to contest the election. An approved bond in the sum of $4,500 was also filed.
The petition was signed, not by the contester, but by two attorneys at law representing him. Verification was made by the contester personally before a notary public.
Soon after the filing of the petition the contestee interposed a motion to strike the petition from the files and to dismiss the same, for the reason that it had not been signed by the contester or by twenty-five voters as required by Section 4785-167, General Code.
Upon hearing, the trial court sustained the motion, dismissed the petition and entered final judgment for the contestee on the ground that it was without jurisdiction to entertain the proceeding. Permission also was denied the contester, during the hearing, to amend the petition by then affixing his signature thereto.
An appeal brings the matter to this court for decision.
Mr. Fred J. Heim and Mr. W.P. Barnum, for appellant.
Mr. Henry C. Church, Mr. James E. Bennett and Mr. Andrew M. Henderson, for appellee.
It has been definitely held by this court that an election contest is a political and not a judicial matter, and that under Section 21, Article II of the Constitution of Ohio, the General Assembly is empowered to "determine, by law, before what authority, and in what manner, the trial of contested elections shall be conducted." Link v. Karb, Mayor, 89 Ohio St. 326, 104 N.E. 632; Thompson v. Redington, 92 Ohio St. 101, 110 N.E. 652, Ann. Cas. 1918A, 1161; Foraker v. Perry Township Rural School District Board of Education, 130 Ohio St. 243, 199 N.E. 74; Mehling v. Moorehead, 133 Ohio St. 395, 14 N.E.2d 15.
"The failure of the Legislature to provide for a contest confers no jurisdiction upon the courts." State, ex rel. Kautzman, v. Graves, Secretary of State, 91 Ohio St. 113, 122, 110 N.E. 185.
Pursuant to the constitutional authorization, the General Assembly has clearly prescribed the manner in which an election may be contested. Section 4785-167, General Code, as it applies to the present proceeding, stipulates:
"Such a contest shall be commenced by the filing of a petition therefor with the clerk of the appropriate court [a] signed by at least twenty-five voters * * * or by the defeated candidate * * * within ten days after the results of the recount * * * have been ascertained and announced by the proper authority. [b] Such petition shall be verified by the oath of at least two such petitioners, or by the oath of the defeated candidate filing the same, as the case may be, and [c] shall set forth the grounds for such contest. [d] Said petition shall be accompanied by a bond with surety to be approved by the clerk * * *."
The precise question to be determined is whether, as asserted by the contestee, compliance with the mandates of the statute is necessary to give a court jurisdiction to entertain the contest, or whether, as asserted by the contester, the failure to comply with one or more of the steps prescribed is an informality, making no real difference, and is subject to remedy by the amendment of the petition after the time for the filing of such petition has expired.
Referring to election contests, it is said in 18 American Jurisprudence, 361, Section 275:
"* * * Such statutory proceedings are special and summary in their nature. Therefore, as a general rule, a strict observance of the statute is required, so far as regards the steps necessary to give jurisdiction, and the jurisdictional facts must appear on the face of the proceedings. * * *"
Statements of similar import are contained in 29 Corpus Juris Secundum, 355, Section 247.
In Schwartz v. County Court, Garfield County, 14 Colo. 44, 47, 23 P. 84, 85, the court said:
"The proceedings upon an election contest before the county judge, under the statute, are special and summary in their nature; and it is a general rule that a strict observance of the statute, so far as regards the steps necessary to give jurisdiction, must be required in such cases."
In Kuestner v. Boscarell, 5 N.J. Misc., 303, 308, 136 A. 506, 509, the Supreme Court of New Jersey stated:
"The legislature has prescribed a method of procedure to be followed by one who desires to contest the result of the election. To give the court jurisdiction the method prescribed by the legislature must be followed. Courts have no power to change or ignore the procedure fixed by the legislature."
In Gossard v. Vawther, 215 Ind. 581, 584, 21 N.E.2d 416, 417, the court remarked:
"The courts of this country are not entirely agreed as to the effect of the omission of a jurat upon an affidavit, but according to the majority view such omission is not fatal to the validity of the affidavit so long as it appears, either from the instrument itself or from evidence aliunde, that the affidavit was, in fact, duly sworn to before an authorized officer. * * *
"Without doing violence to the prevailing rule stated above, we are of the opinion that it cannot be invoked in aid of the case at bar. This is a special statutory proceeding. The act under which it was brought is specific as to what shall constitute a sufficient petition for a contest or recount. It requires that such petition be verified by the contester. This means, as we understand it, that the petition shall not only be sworn to but that it shall also bear a jurat, that is, a certificate by the officer who administered the oath reciting that fact."
In accord with these holdings, this court announced in the syllabus of In Matter of Contest of Special Election in Village of North Baltimore, Ohio, 136 Ohio St. 278, 25 N.E.2d 458, that —
"1. Under the provisions of Section 4785-167, General Code, relating to the filing an election contest, the petition shall be accompanied by a bond with surety to be approved by the clerk of the appropriate court in a sum sufficient, as determined by him, to pay all the costs of the contest.
"2. In the event of failure of the contestors to comply with the foregoing requirements, the court is without jurisdiction to hear or determine the controversy."
See Pearson v. Alverson, 160 Ala. 265, 49 So. 756; Flake v. Pretzel, 381 Ill. 408, 501, 46 N.E.2d 375, 377; Clee v. Moore, 119 N.J. Law, 215, 195 A. 530; Edwards v. Knight, 8 Ohio, 375; Morrison v. Shealer, 282 Pa. 427, 128 A. 87; Harmon v. Tyler, 112 Tenn. 23, 83 S.W. 1041, citing the Ohio cases of Edwards v. Knight, supra, and Ingerson v. Marlow, 14 Ohio St. 568.
A majority of the court is of the opinion that compliance with the provisions of Section 4785-167, General Code, is a condition precedent to the right to have an election contest heard and determined by a court, and that noncompliance with the statute in one or more of the particulars prescribed is fatal to such right.
Specifically, if a petition to contest an election is not "signed by at least twenty-five voters * * * or by the defeated candidate" as the statute says it must be, an express condition controlling the right to contest has not been met and a court is without authority to assume jurisdiction and proceed.
Attention is directed by the contester to Section 4785-169, General Code, which reads:
"The proceedings shall be similar to those in judicial proceedings, in so far as practicable, and shall be under the control and direction of the court which shall hear and determine the matter without a jury, with power to order or permit amendments to the petition or proceedings as to form or substance * * *."
The quoted statute is, of course, applicable where a court has acquired jurisdiction, but if there is no jurisdiction there is no power to permit amendments. In other words, the statutory thing to be amended must exist before the power of amendment can be exercised.
See Shamokin Bank v. Street, 16 Ohio St. 1, 10.
In a number of cases this court has held that where statutes relating to elections contain specific requirements, such requirements should be accorded full force and effect. See Ingerson v. Marlow, supra ( 14 Ohio St. 568) ; State, ex rel. Cox, v. Payne, 117 Ohio St. 317, 158 N.E. 546; Koehler, Jr., v. Board of Elections of Butler County, 125 Ohio St. 251, 181 N.E. 107; State, ex rel. Raines, v. Tobin et al., Board of Elections of Summit County, 138 Ohio St. 468, 35 N.E.2d 779. The conclusion here reached is in harmony with the cases cited.
Agreeing with the Court of Common Pleas in the disposition of the proceeding, its judgment is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS and TURNER, JJ., concur.
HART, BELL and WILLIAMS, JJ., dissent.
With regret, I am unable to concur in the majority opinion because, it seems to me, it adopts a technical and strained position with reference to the sufficiency of the election-contest petition filed in this case.
The jurisdictional requirements imposed upon the defeated candidate for mayor of a municipality to institute an election contest after a recount are: The filing of a petition with the clerk of the appropriate court signed by the defeated candidate for such election, within ten days after the results of the recount of such election have been ascertained and announced by the proper authority; and that such petition shall be verified by the oath of the defeated candidate filing the same, shall set forth the grounds for such contest and shall be accompanied by a bond with surety to be approved by the clerk of the appropriate court in a sum sufficient, as determined by him, to pay all the costs of the contest. See Section 4785-167, General Code.
The only attack made upon the jurisdictional procedure in this case is the claim that the contester failed to sign the petition in that he did not sign it at the end of the prayer. The contester did sign after the certificate of verification attached to such petition, and it is not denied that the oath was properly taken.
In my opinion, the signatures of the attorneys of the contester following the prayer of the petition were not required, were unnecessary and were surplusage. On the other hand, the statute does not specify where the contester shall sign the petition and does not require his signature to the certificate of verification to make the verification or oath effective. In other words, the signature of the contester was not a necessary part of the verification. The word "verify" is derived from two Latin words, verus, meaning true, and ficare, meaning to declare, or to confirm. In other words, the verifcation is a mere declaration of the truth of the facts stated. It does not require a signature or subscription to make it valid.
If the signatures of the attorneys, which were unnecessary, be eliminated, the paragraph in the petition, next following the prayer, omitting the venue, is as follows:
"Arthur H. Williams, of lawful age, being first duly sworn deposes and says that he is the plaintiff and contester in the foregoing petition; that he has read said petition and that the facts and allegations therein stated and made are true."
"Arthur H. Williams." (Italics mine.)
The signature of the contester to the certificate immediately following the body of the petition and its prayer is to every intent and purpose a part of the petition itself. It serves every purpose and is to the same effect as if the signature had immediately followed the prayer. The contestee had in this petition, signed and certified by the contester, the benefit of every item of information to which he was entitled or which he could require and suffered no prejudice because the signature of the contester was not appended immediately following the prayer of the petition.
The grounds of the motion of the contestee to strike contester's petition from the files is that it was not "signed by the said Arthur H. Williams, the defeated candidate for election." In my opinion, this statement is not supported by the facts as shown on the face of the petition itself. The petition was, in fact, signed.
It is true that in the case of State, ex rel. Raines, v. Tobin et al., Bd. of Elections, Summit Co., 138 Ohio St. 468, 35 N.E.2d 779, this court held that the failure of a candidate to sign his declaration of candidacy immediately following such declaration, a substantial form for which is set out in the statute, rendered the declaration insufficient. That, however, was a mandamus action in which the relator was required to show a clear right to compel the Board of Elections to accept his defective declaration, which the board had, on due consideration, rejected. The matter of the sufficiency of the declaration was before an administrative board where no statutory authority for amendment is provided, and not before a tribunal wherein the right of amendment is specifically provided.
It is also true that in the case of In Matter of Contest of Special Election in Village of North Baltimore, 136 Ohio: St., 279, 25 N.E.2d 458, where no contest bond had been filed within time, which case is cited and quoted from in the majority opinion, this court held that as a matter of jurisdiction in an election-contest case, "the petition shall be accompanied by a bond with surety to be approved by the clerk of the appropriate court in a sum sufficient, as determined by him, to pay all the costs of the contest." But, in the later case of Hannah v. Roche, 138 Ohio St. 449, 35 N.E.2d 838, where in an election-contest case the clerk of courts had failed, as it appeared from the record, to determine the proper amount of the contest bond and had failed to approve the surety thereon as required by Section 4785-167, General Code, this court held that since the bond was executed in the presence of the clerk, was signed by him as one of the witnesses, bore his official filing stamp and there had been entered upon his docket the notation "bond for costs filed," the contesters might offer parol evidence tending to show that the clerk did in fact determine the proper amount of bond furnished by appellants to secure the costs of the contest and did, in fact, approve the surety thereon.
Again, in the case of McClintock v. Sweitzer, 138 Ohio St. 324, 34 N.E.2d 781, where an election-contest bond was attacked because it did not comply with Section 4785-167, General Code, requiring the contester to accompany his petition "by a bond with surety to be approved by the clerk of the appropriate court in a sum sufficient, as determined by him, to pay all the costs of the contest," whereas contester filed a bond conditioned "to pay the costs which may be taxed against the plaintiff in such action," this court held "that there was a substantial compliance with Section 4785-167, and that no error prejudicial to appellee resulted."
Unquestionably, the form and substance of the bond required by statute to accompany the election-contest petition is equally jurisdictional with the form and substance of the petition itself. In any event, substantial compliance, when no prejudice is shown, is sufficient.
Furthermore, Section 4785-169, General Code, was enacted for the purpose of curing technical errors and promoting justice in election-contest cases and provides that "the proceedings shall be similar to those in judicial proceedings, in so far as practicable, * * * [and the court shall have] power to order or permit amendments to the petition or proceedings as to form or substance, * * *." (Italics mine.)
In my opinion, the petition having been filed within the statutory time, bearing the signature of the contester and meeting all other statutory requirements of jurisdiction, may, if necessary, be amended. The judgment of the Court of Common Pleas should be reversed and the case remanded for further proceedings according to law.
BELL and WILLIAMS, JJ., concur in the foregoing dissenting opinion.