Opinion
No. 36479
Decided April 13, 1960.
Elections — Prohibition proper to prevent placing of candidate's name on ballot, when — Determination by board of elections — As to validity of declaration of candidacy — May be reversed by court, when — Section 3513.07, Revised Code — Sworn statement by candidate as to "voting residence" — Declaration of candidacy may be rejected at hearing, when.
1. Prohibition is an appropriate proceeding to prevent a board of elections from placing a candidate's name on a ballot where such name may not lawfully be placed thereon. (Paragraph two of the syllabus of State, ex rel. Newell, Jr., v. Brown, Secy. of State, 162 Ohio St. 147, followed.)
2. In such a prohibition proceeding, notwithstanding the provisions of Section 3513.05, Revised Code, that the determination of a board of elections as to the validity of a declaration of candidacy "shall be final," a court may in effect reverse such a decision where the undisputed facts are such as to require a different decision as a matter of law.
3. The form of declaration of candidacy provided for by Section 3513.07, Revised Code, indicates a legislative intention to require therein a sworn statement from the candidate that his "voting residence is in" a specified precinct and that he is a qualified elector in such specified precinct; and that statement relates to the time the declaration of candidacy is signed and sworn to.
4. The affidavit of a candidate in his declaration of candidacy is required so that the person asked to sign the petition may have the assurance under oath that the facts recited in the declaration of candidacy are true.
5. Where a candidate states under oath in the declaration of candidacy required by Section 3513.07, Revised Code, that his voting residence is in a particular registration precinct and that he is a qualified elector in such precinct, when at the time of such sworn statement the candidate is not residing in such precinct, has not resided there for 40 or more days and has not even attempted to register as an elector therein, there is such a failure to fully comply with Sections 3513.05 and 3513.07, Revised Code, as to require, at a hearing on a protest against the candidacy of such candidate, a determination that his declaration of candidacy be rejected.
IN PROHIBITION.
Relators seek a writ of prohibition to prevent respondents, the Secretary of State and the four members of the Board of
Elections of Cuyahoga County (said members herein collectively being referred to as the board) from certifying, printing, and placing the name of Thomas P. Burke (herein referred to as Burke) on the Democratic ballot for the May 3, 1960 primary election as a candidate for the office of delegate to the Democratic National Convention from the 23rd Congressional District.
The amended petition alleges the following facts:
1. On January 30, 1960, Burke signed and swore to his declaration of candidacy which certified that his "voting residence" was then in a precinct within the 23rd Congressional District and he was then a qualified elector in that 23rd district precinct.
2. On February 3, 1960, Burke filed his declaration of candidacy and petition with the board.
3. Burke did not reside in that 23rd district on January 30, 1960, he had not resided therein either on that date or on February 3, 1960 for 40 or more days, and he did not transfer his registration with the board from without to within that district until February 1, 1960.
4. On February 13, 1960, relators filed protests with the board challenging the candidacy of Burke but the board thereafter overruled those protests.
Section 3513.12, Revised Code, provides that delegates to national conventions from districts within the state shall be chosen "in the manner prescribed in Sections 3513.01 to 3513.32 * * * for the nomination of candidates for district offices."
The Revised Code further reads, with emphasis added, so far as pertinent:
3513.05. "Each person desiring to become a candidate for a party nomination or for election to an office or position to be voted for at a primary election shall, not later than * * * the 90th day before the day of such * * * election, file a declaration of candidacy and petition * * *.
"* * *
"Protests against the candidacy of any person filing a declaration of candidacy * * * may be filed * * * not later than * * * the 80th day before the day of the primary election. * * * such election officials shall hear the protest and determine the validity or invalidity of the declaration of candidacy and petition. If they find that such candidate is not an elector of the state, district, county, or political subdivision in which he seeks a party nomination or election to an office or position, or has not fully complied with Sections 3513.01 to 3513.32 inclusive, of the Revised Code, his declaration of candidacy and petition shall be determined to be invalid and shall be rejected, otherwise it shall be determined to be valid. Such determination shall be final."
3513.07. "The form of declaration of candidacy and petition of a person desiring to be a candidate for a party nomination or a candidate for election to an office or position to be voted for at a primary election shall be substantially as follows:
"DECLARATION OF CANDIDACY PARTY PRIMARY ELECTION
"I, (Name of candidate), the undersigned, hereby declare that my voting residence is in precinct of the (township) or (ward and city or village) in the county of , Ohio; that my postoffice address is * * *: that I am a qualified elector in the precinct in which my voting residence is located. * * *
"* * *
"Dated this ___ day of ___ 19__.
_____
"(Signature of candidate)
"The state of Ohio)
"County of _____)
"_____ (Name of candidate), being duly sworn, deposes and says that he is the candidate named in the above declaration of candidacy and that the statements and declarations therein contained are true as he verily believes.
_____
"(Signature of candidate)
"Subscribed and sworn to before me this ___ day of _____, 19__.
_____
"(Signature of officer administering oath)
_____
"(Title of officer)" 3503.01. "Every citizen of the United States who is of the age of 21 years or over and who has been a resident * * * of the county 40 days, and of the voting precinct 40 days next preceding the election at which he offers to vote has the qualifications of an elector and may vote at all elections, provided that any qualified elector who in good faith moves his residence * * * from one precinct to another precinct in the same county at any time subsequent to the 40th day preceding an election may vote at such election in the precinct from which he moved wherein his voting residence had been legally established. * * *"
3503.06. "No person residing in any registration precinct shall be entitled to vote at any election, or to sign any declaration of candidacy or any nominating * * * petition, unless he is registered as an elector."
3503.07. "Each person * * * who, if he continues to reside in the precinct until the next election, will at that time have fulfilled all the requirements as to length of residence to qualify him as an elector shall, unless otherwise disqualified, be entitled to be registered as an elector in such precinct. * * *"
3503.11. "Persons * * * may register or change their registration * * * except after * * * the 41st day preceding a primary or general election, or after * * * the 11th day preceding a special election held on * * * other than a primary or general election day and ten days following a * * * election. Any registered elector who removed from one precinct to another in the same political subdivision or from one county to another * * * after the close of such registration period may vote at the next succeeding election in the precinct from which he moved, wherein he was legally registered."
All parties apparently concede that no cause of action is stated against the Secretary of State. Hence his demurrer to the petition must be sustained and a judgment denying allowance of any writ against him must be rendered.
The cause is therefore now before this court for consideration only on the demurrer to the petition filed by the board.
Messrs. Rudd, Ober, Finley Miller, Mr. James W. Shocknessy and Mr. Howard M. Metzenbaum, for relators. Mr. Mark McElroy, attorney general, Mr. Gerald J. Celebrezze and Mr. John F. O'Brien, for respondent Secretary of State.
Mr. John T. Corrigan, prosecuting attorney, Mr. A.M. Braun and Mr. Frederick W. Frey, for respondent Board of Elections of Cuyahoga County.
Prohibition is an appropriate proceeding to prevent a board of elections from placing a candidate's name on a ballot where such name may not lawfully be placed thereon. State, ex rel. Newell, Jr., v. Brown, Secy. of State, 162 Ohio St. 147, 122 N.E.2d 105. Furthermore, in such a prohibition proceeding, notwithstanding the provisions of Section 3513.05, Revised Code, that the determination of a board of elections as to the validity of a declaration of candidacy "shall be final," a court may in effect reverse such a decision where the undisputed facts are such as to require a different decision as a matter of law. See State, ex rel. Hanna, v. Milburn et al., Lake County Board of Elections, 170 Ohio St. 9, 15, 16, 161 N.E.2d 891.
The form of declaration of candidacy provided for by Section 3513.07, Revised Code, certainly indicates a legislative intention to require therein a sworn statement from the candidate that his "voting residence is in" a specified precinct and that he is ("I am") a qualified elector in such specified precinct. State, ex rel. Allen, v. Board of Elections of Lake County, 170 Ohio St. 19, 161 N.E.2d 896. There is, under the statutory words, only one time to which the required statement can relate, i.e., the time the declaration of candidacy is signed and sworn to. This conclusion necessarily results from the words "is in" and "I am" specified for the statutory form. If the General Assembly intended some other time it could readily have so indicated, as by using words such as "is to be" or "will be" either on filing the declaration or at the time of the primary election.
As this court unanimously indicated in its per curiam opinion in State, ex rel. Marshall, v. Sweeney, Secy. of State, 153 Ohio St. 208, 214, 90 N.E.2d 869, the affidavit of the candidate in his declaration of candidacy is required so "that the person asked to sign the petition may have the assurance under oath that the facts recited in the foregoing declaration of candidacy are true." (Emphasis added.) If it would be sufficient to have "the facts recited in the * * * declaration of candidacy * * * true" merely when the petition was filed, "the person asked to sign the petition," who will always have been asked to sign before the petition was filed, would have no such "assurance."
In State, ex rel. Ehring, v. Bliss et al., Board of Elections of Summit County, 155 Ohio St. 99, 97 N.E.2d 671, this court held that a declaration of candidacy was valid although it specified a "voting residence" from which the candidate had moved within 40 days preceding its filing because, under the proviso in what is now Section 3503.01, Revised Code, the candidate could have voted at his old address when he filed his declaration. It is obvious that the candidate also could have voted at that former address at any earlier date upon which he may have signed and sworn to his declaration. Certainly, this court had no occasion to and did not consider in that case whether the sworn affidavit speaks as of the time the declaration is filed rather than at the earlier time it is signed and sworn to.
In the instant case, Burke's voting residence could not have been a precinct in the 23rd district on January 30, 1960 because it is admitted by the demurrer to the amended petition that (1) Burke had not on January 30, 1960 resided for 40 or more days in any such 23rd district precinct (see Section 3503.01, Revised Code) and (2) he was not then registered in any such 23rd district precinct (see Section 3503.06, Revised Code). Since, as admitted by the demurrer to the amended petition, Burke did not reside in any precinct in the 23rd district on January 30, 1960, Burke could not even have registered on that day as an elector in any such precinct for the purpose of becoming qualified as an elector in such precinct for the May 3, 1960 primary election. See Section 3503.07, Revised Code.
In spite of the foregoing facts, as admitted by the demurrer to the amended petition, Burke on January 30, 1960 stated under oath in his declaration of candidacy that his voting residence was then in a 23rd district precinct and that he was then a qualified elector in that 23rd district precinct.
In our opinion, where a candidate states under oath in the declaration of candidacy required by Section 3513.07, Revised Code, that his voting residence is in a particular registration precinct and that he is a qualified elector in such precinct when at the time of such sworn statement the candidate is not residing in such precinct, has not resided there for 40 or more days and has not even attempted to register as an elector therein, there is such a failure to fully comply with Sections 3513.05 and 3513.07, Revised Code, as to require, at a hearing on a protest against the candidacy of such candidate, a determination that his declaration of candidacy be rejected.
In State, ex rel. Woods, v. Eyrich, Jr., et al., Board of Elections of Hamilton County, 157 Ohio St. 326, 105 N.E.2d 393, this court did hold that a declaration of candidacy was valid although the candidate had not resided at the voting address specified therein for 40 days preceding the time that "the candidate signed his declaration" as well as for 40 days preceding the time of its filing. It is not clear from the report whether any contention was made that the candidate was not qualified because he had not resided for 40 days at that voting address as required by what is now Section 3503.01, Revised Code. The report tends to indicate that the only question presented for consideration was whether the candidate had effected a transfer in his registration prior to the execution of his declaration of candidacy, as this court held he had. In any event, the candidate in that case did reside at the address specified in his declaration when he signed it, had resided there for a substantial time and had then (in accordance with statutory authority allowing a registration therein for the next election before 40 days residence, see Section 3503.07, Revised Code) effected a transfer of his registration to that address. In the instant case, Burke had (on the allegations of the amended petition admitted by the demurrer) never even resided at or endeavored to transfer his registration to the precinct specified in his declaration of candidacy when he signed and swore to the statement in that declaration that that precinct was then his voting residence and that he was then a qualified elector therein.
The board relies upon that part of the decision of the majority of this court in State, ex rel. Schroy, v. Wagner, 127 Ohio St. 174, 187 N.E. 572, which held that "an elector, otherwise qualified, whose name appears upon the permanent registration list, may sign a petition * * * although at the time he has not transferred his registration" to a new residence to which he should have transferred it. In reaching that conclusion, this court relied upon the provisions of what is now Section 3503.06, Revised Code, reading that "no person * * * shall be entitled * * * to sign any declaration of candidacy, nominating * * * petition, unless he is duly registered as an elector," and apparently upon the provisions of what is now Section 3503.07, Revised Code, for permanency of registration and of what is now Section 3503.16, Revised Code, for transfer of registration. The argument of the board seems to be that if, by reason of his previous permanent registration in a precinct outside of the 23rd district, Burke could have signed a nominating petition without transferring his registration, he could likewise sign a declaration of candidacy. If we assume that this argument is sound, it does not follow that Burke could, in stating under oath as required by Section 3513.07, Revised Code, that his voting residence was in a certain precinct and that he was a qualified elector in that precinct, make untrue statements without thereby failing, within the meaning of Section 3513.05, Revised Code, to fully comply with Section 3513.07, Revised Code. Section 3513.04, Revised Code, specifically contemplates and requires full compliance by a candidate with Sections 3513.01 to 3513.32, Revised Code, but does not suggest the necessity of any such compliance on the part of a signer of such a candidate's petition. Cf. State, ex rel. Bass, v. Board of Elections of Summit County, 157 Ohio St. 345, 105 N.E.2d 414, denying a collateral attack on the qualifications of a registered circulator of a petition.
From what we have said, it is apparent that the demurrer must be overruled; and, since the parties have agreed that the ruling on the demurrer will be dispositive of the cause, the writ prayed for is allowed. Hence, it is unnecessary to consider the other reasons advanced by relators for allowance of the writ.
Demurrer of Ted W. Brown, Secretary of State, to amended petition sustained and allowance of writ against him denied.
Demurrer of members of Board of Elections of Cuyahoga County overruled and writ allowed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL and PECK, JJ., concur.
HERBERT, J., concurs in paragraphs one and two of the syllabus and in the judgment but dissents from paragraphs three, four and five of the syllabus.