Opinion
No. 34588
Decided October 5, 1955.
Elections — Independent candidate — Statement of candidacy — Time for signing — Section 3513.261, Revised Code — Nominating petition complete when filed — Board of elections not authorized to reject.
Under the provisions of Section 3513.261, Revised Code, where an independent candidate, prior to the circulation of his nominating petition, completely fills out the entire statement of candidacy down to the date of his signature, as well as the entire preamble of the petition preceding the signatures of electors, and where, prior to filing such petition, the candidate signs the statement of candidacy and swears to the same before a person authorized to administer oaths, and such petition at the time of filing is complete in accord with the provisions of such statute, a board of elections is not authorized to reject the petition.
IN MANDAMUS.
The present case is an original action in mandamus in which Frank T. Leslie is relator, and Dan W. Duffy, A.L. DeMaioribus, Ben C. Green and Philmore J. Haber, constituting the Board of Elections of Cuyahoga County, are respondents.
In his petition relator alleges that he is an elector of the village of Brook Park; that on August 10, 1955, which was not later than the ninetieth day before the general election to be held on November 8, 1955, he filed with respondents two nominating petitions nominating him as a candidate for election to the office of mayor of the village of Brook Park for a full two-year term commencing January 1, 1956; that the nominating petitions contain the requisite number of signatures as provided in Section 3513.251, Revised Code; that he paid the required filing fee; that, prior to the time that the signature of any elector was obtained on either of such petitions, all the blanks in the portion of each "statement of candidacy," preceding the phrase, "dated this .... day of .... 19 .... ," had been filled in by the relator; that all blanks in the portion of each "nominating petition," preceding the spaces for the signatures of the electors, had been filled in by relator; that from July 26, 1955, to August 8, 1955, appearing after the names of the electors whose signatures appear on the nominating petitions, was the time within which such electors respectively signed the nominating petitions, and that August 8, 1955, was the date upon which relator signed the statements of candidacy and the date upon which the affidavit at the end of each of such statements of candidacy was executed by relator and by the officer who administered the oath; that on August 19, 1955, a qualified elector of the village of Brook Park filed with respondents a written protest against the nominating petitions of relator, such protest being for the reason that the signature of relator, both as to that portion of the petition titled "statement of candidacy" and "declaration of candidacy," was not executed until August 8, 1955; and that respondents held a hearing on such protest and thereafter notified relator that such protest had been allowed and that relator's name would not appear on the ballot at the election on November 8, 1955.
Relator prays for a writ of mandamus directed to respondents, ordering them to execute a certificate of validity upon the nominating petitions of relator to have the name of relator as candidate for mayor for a full term commencing January 1, 1956, printed and placed on the official ballot of the village of Brook Park for the next ensuing general election to be held on November 8, 1955, and for all other and proper relief, including his costs.
Respondents demurred to relator's petition for the reason that it does not state facts sufficient to constitute a cause of action.
Messrs. Mooney, Hahn, Loeser, Keough Freedheim and Mr. Alan S. Geismer, for relator.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Sheldon Clark, for respondents.
The sole question presented to us is the interpretation of Section 3513.261, Revised Code, which governs the filing of nominating petitions as to independent candidates for office.
The pertinent part of such section, upon the interpretation of which the parties disagree, is:
"Each nominating petition shall contain a statement of candidacy which shall be subscribed and sworn to by the candidate named therein. Such statement of candidacy shall contain a declaration that the candidate desires to be a candidate for the office named therein, and that he is an elector qualified to vote for the office he seeks.
"The form of the nominating petition and statement of candidacy shall be substantially as follows:
"STATEMENT OF CANDIDACY
"I, _____ (Name of candidate), the undersigned, hereby state 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 _____ (Street and Number, if any, or Rural Route and Number) of the _____ (City, Village, or Postoffice) of _____, Ohio; that I am a qualified elector in the precinct in which my voting residence is located. I hereby declare that I desire to be a candidate for election to the office of _____ in the _____ (State, District, County, City, Village, Township, or School District) for the _____ (Full term or unexpired term ending _____) at the General Election to be held on the _____ day of _____, 19__.
"I further declare that I am an elector qualified to vote for the office I seek. 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 statement 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)
"I, _____, hereby constitute the persons named below a committee to represent me:
"Name Residence
__________
__________
__________
__________
__________
"NOMINATING PETITION
"We, the undersigned, qualified electors of the state of Ohio, hereby nominate _____ as a candidate for election to the office of _____ in the _____ (State, District, County, City, Village, Township, or School District) for the _____ (Full term or unexpired term ending _____) to be voted for at the general election next hereafter to be held. We individually pledge that we will support and vote for the above proposed candidate at said election, and that we have not signed the nominating petitions of more candidates for said office than the number to be elected to said office.
"Signature Street City,
Address Village or Date of
Township Ward Precinct County Signing
__________
__________
__________
"The State of Ohio)
"County of _____)
"_____, being duly sworn, deposes and says that he is the circulator of the foregoing petition paper containing _____ signatures; that said signatures were written in his presence and are the signatures of the persons whose signatures they purport to be; and that he resides at the address appearing below his signature hereto.
"Signature of circulator _____
"Address _____
"Subscribed and sworn to before me this _____ day of _____, 19__.
__________
(Signature of officer administering oath)
__________
(Title of officer)"
Respondents maintain that the candidate must sign and swear to the statement of candidacy prior to obtaining the signatures of the electors, whereas the relator maintains that so long as the statement of candidacy and the nominating petition are accurately filled in in every blank space, except the signature of the candidate and the jurat, it is necessary to have only such signature and jurat upon such statement of candidacy at the time it is filed.
Respondents base their contention upon the fact that Sections 3513.07 and 3513.09, Revised Code, which govern the declaration of candidacy and signature and affidavit of the candidate as to a person desiring to be a candidate for a party nomination to be voted on at a primary election, require that such declaration of candidacy and the affidavit thereto must be signed and sworn to before the signatures of electors are placed thereon. They contend that there is no reason to suppose that the General Assembly had any notion of providing a different rule as to independent candidates for office, and that, since Section 3513.261 provides a form of nominating petition and statement of candidacy which appears prior to the signatures of the electors, the General Assembly must have intended that such statement of candidacy be signed and sworn to prior to the circulation of the petition.
The short and simple answer to such a contention is that the General Assembly did not provide for such signature and oath prior to the circulation of a nominating petition for an independent candidate, as it did in Sections 3513.07 and 3513.09, Revised Code, as to a party candidate in a primary election.
Undoubtedly within constitutional limitations the General Assembly may provide for the conduct of elections and the qualification of candidates, and in doing so it naturally follows that many highly technical requirements in election laws exist.
It is essential, of course, to protect the purity of elections, the cornerstone of free institutions. However, since this condition is inevitable, courts should be careful not to read requirements into election laws which are not specifically there.
Where there is mandatory language in an election statute requiring a proposed candidate to do certain things before his name can be placed upon a ballot, those things must be done in accordance with the statute before such proposed candidate is eligible to have his name placed on the ballot. On the other hand, where a proposed candidate strictly follows all the requirements stated in the statute governing his candidacy, he is not required to do things required by another statute concerned with a different class of candidates.
Nowhere in Section 3513.261, Revised Code, is there a provision that the statement of candidacy be signed and sworn to by the candidate prior to its circulation among the electors.
Originally the idea with reference to the nomination of an independent candidate was that he be nominated by electors without any active declaration or statement on his part. Until January 1, 1954, an independent candidate did not file an announcement of candidacy; such a candidate merely signed an "acceptance of candidacy," as required by Section 4785-92, General Code.
As we have stated, Sections 3513.07 and 3513.09, Revised Code, with reference to party candidates in primary elections, provide for the filing of a "declaration of candidacy" as distinguished from a "statement of candidacy" in Section 3513.261, Revised Code. Likewise, the former sections provide that the declaration of candidacy need be signed and sworn to upon only one petition paper and may be copied on additional petition papers before being submitted to electors. There is no such provision in the latter section, and so the "statement of candidacy" must be signed and sworn to upon each of the petition papers. Furthermore, by the former sections, in the petition for candidacy the electors allege simply that the candidate is a member of a party and is well qualified to perform the duties of the office to which he desires to be elected, whereas, by the latter section, the electors nominate the proposed candidate as a candidate for election and they individually pledge that they will support and work for the "proposed candidate" at such election.
It seems to us that this difference in language is quite significant. In the case of the party candidate he makes a declaration of candidacy and those electors signing his petition certify that he belongs to a certain party and that they believe he is qualified to perform the duties of the office he seeks, whereas in the case of an independent candidate the electors signing his petition nominate him as a candidate for election and individually pledge that they will support and vote for him as a "proposed candidate." Such language certainly contemplates that he has not actually made a declaration of candidacy but that the electors are nominating and proposing him as a candidate and that they will support and vote for him when he becomes a genuine candidate.
In the present case, every blank on the nominating petition and statement of candidacy, except as to the signature and oath of relator, was correctly filled in before any elector signed the petition, so that when any such signature was obtained all the information with reference to relator was apparent. The electors nominated relator by name for the fully described term and individually pledged their support for relator as a proposed candidate. Therefore, it would seem that, after the nominating petition and statement of candidacy had been signed by the electors, and thereupon the statement of candidacy which had been entirely completed before the circulation of the nominating petition had been signed and sworn to by relator prior to the filing of the nominating petition and statement of candidacy, everything required by Section 3513.261, Revised Code, had been completely complied with by relator, and respondents were in error in rejecting the nominating petitions.
The case of State, ex rel. Marshall, v. Sweeney, Secy. of State, 153 Ohio St. 208, 90 N.E.2d 869, so strongly relied upon by respondents, has no application to the facts of the present case.
In the Marshall case this court held simply that, with reference to a petition for a party candidate, a copy of the "declaration of candidacy," required to be placed on additional separate petition papers "before the signatures of electors are placed thereon," must include a copy of the affidavit at the end of the declaration. That case related to party candidates who, as we have said, are governed by entirely different statutes from those governing independent candidates.
Doubtless the General Assembly could have made the same provisions with reference to party candidates in a primary and independent candidates in a general election, but a perusal and comparison of the statutes indicate that the General Assembly did not do so.
For the reasons given, the demurrer to the petition must be, and it hereby is, overruled, and, since all parties agree that the ruling on the demurrer will be decisive, the writ of mandamus as prayed for by relator must be, and it hereby is, allowed.
Writ allowed.
WEYGANDT, C.J., HART, ZIMMERMAN and TAFT, JJ., concur.
MATTHIAS and BELL, JJ., dissent.
Amended Senate Bill No. 242, which contains the sections of the Revised Code under consideration herein, was enacted in a special session of the General Assembly in July 1953 and was effective January 1, 1954. The title of the act specifies, among other intentions, an intent "to correct technical errors and inconsistencies in the election laws in order to provide for a more uniform operation of these laws throughout the state."
Without attempting a detailed comparison of the sections, it is apparent, from reading together the sections pertaining to candidacy for a party nomination and those pertaining to independent candidacy, that an attempt was made by the General Assembly to harmonize the two procedures. In the respective sections, provisions for filing fees, for declaring candidacy, and for time of filing are almost identical.
It is contended by relator, which contention is accepted by the majority herein, that the General Assembly provided for two separate and distinct procedures. And since Section 3513.09, Revised Code, requires that the declaration of candidacy for a party nomination must be signed prior to the circulation of the petition, if the petition consists of more than one petition paper, and since nothing is said in Section 3513.261 about signing the declaration prior to placing signatures on the nominating petition, there is no requirement that the latter be signed prior to the signatures on the petition.
Such an interpretation appears to the writer to be out of harmony with the expressed intention of the Legislature to provide for a more uniform operation of the election laws.
Section 3513.261, Revised Code, recognizes that the petition filed by an independent candidate may consist of more than one petition paper. Can it be contended seriously that the provision of Section 3513.09, regarding the signing of only one of such petition papers, would not apply to the independent candidate's petition? If the two sections may be read in pari materia for one purpose, should they not be so read for all purposes?
Sections 4785-91 and 4785-92, General Code, provided for the nomination of an independent candidate followed by a separate written acceptance thereof by the candidate. The form prescribed by the Legislature was a nominating petition only. In 1954, Section 3513.261, Revised Code, changed that procedure. It provides for a statement of candidacy first, and then the nominating signatures. And that order appears to the writer to be the logical one. How can one be a candidate prior to his signing a declaration of candidacy?
If the signature space for the candidate may be left blank until after the petition is signed, why, then, may not the space for the name of the office be left blank, or the term, in the event it is a judicial office? Assuming a member of a court should run independently, could he declare his candidacy "for the full term" and later, after his petition is signed and after he has determined who his opponent will be, fill in the particular term? It may be argued that this situation could not arise because both the name and office must be written in the heading to the petition. It is to be noted, however, that there is no affidavit following the petition which pertains to either the name or the office and no resultant penalty would accompany the changing of either the name or the office after the nominating signatures had been affixed.
It appears obvious to me that the Legislature intended that the signing and subscribing of the declaration of candidacy on the independent nominating petition should precede the obtaining of nominating signatures. The action of the board of elections in refusing to certify relator's candidacy should be approved, and the demurrer to the petition should be sustained.
MATTHIAS, J., concurs in the foregoing dissenting opinion.