Opinion
Nos. 34934 and 34950
Decided October 4, 1956.
Elections — Nominating petition — Affidavit of circulator — Candidate acting as notary — Petition invalid.
Where, under the provisions of Section 3513.261, Revised Code, requiring that, in order to validate nominating petitions of candidates for public office, the circulator of any such petition must make an affidavit, before an officer authorized by law to administer an oath, to the effect that the signatures to such petition were written in the circulator's presence and are the signatures of the persons whose signatures they purport to be, the candidate named in such petition acts as a notary public in administering the oath as to such affidavit, the affidavit is insufficient and by reason of such insufficiency the petition is invalid.
IN MANDAMUS.
These cases were heard and considered together since similar questions are involved.
In case No. 34934, the relator is an independent candidate for the office of prosecuting attorney of Pike County and brings this action to require the members of the Board of Elections of Pike County and the clerk of such board to place relator's name upon the ballot for that office in the election to be held on November 6, 1956.
The petition of the relator, after alleging that he is qualified for the office which he seeks, states that the respondent members of the board of elections and clerk accepted for filing his nominating petition in the form prescribed by the Secretary of State and containing the signatures of 567 purported registered electors of Pike County, which number is more than seven per cent of the number of electors who voted for Governor in Pike County in the 1954 general election, 406 names being necessary; and that on July 13, 1956, the respondent members of the board of elections met and considered the statement of candidacy and petition papers of the relator for sufficiency and validity. Two respondent members of the board of elections held that, since the relator had improperly notarized the affidavits of certain circulators of petition papers containing the signatures of 178 registered electors, the number of valid signatures was reduced to 378, less than the number required by law. The other two respondent members held that the notarization by the relator of the affidavits of these circulators did not invalidate the petition papers, and that the petition contains more signatures of registered electors than required by law.
The respondent clerk forwarded the minutes of said meeting to the Secretary of State of Ohio for the purpose of having him break the tie vote. The Secretary of State cast his vote in favor of the invalidity of the nominating petition, and by reason thereof the respondent members of the board of elections refused to place the relator's name on the ballot as a candidate for the office of prosecuting attorney of Pike County.
Relator alleges that such action was an abuse of discretion and a clear disregard of applicable statutes and legal provisions and prays for a writ of mandamus requiring the respondents to place his name upon the ballot.
An answer was filed by the respondents admitting substantially the allegations of the relator's petition other than the allegation of abuse of discretion and violation of applicable statutes.
The answer alleges that the petition of the relator contains, as a member of the sponsoring committee of five persons named by relator to represent him, the name of the respondent Russell Malrick, a member of the Board of Elections of Pike County; that said Malrick participated in the meetings of the board of elections on July 13, 1956, and voted in favor of the validity of the nominating petition; and that by reason thereof the nominating petition is invalid in its entirety.
The answer alleges also that some nominating petition papers are invalid because the affidavits of the circulators thereof were taken by the respondent John Sword, a member of the Board of Elections of Pike County; that Sword is one of the officials charged with the duty of determining the sufficiency of the nominating petition; and that by reason thereof the 149 signatures on such nominating petition papers are invalid, further reducing the number of valid signatures submitted by the relator.
The prayer of the answer is that the relator's petition be dismissed.
Relator filed a reply putting in issue the facts alleged by the respondents in the answer and alleging that these questions had been raised by the present prosecuting attorney of Pike County, candidate for re-election, whose protests had been withdrawn, and that at the time the petition papers of the relator were notarized by John Sword he was not a member of the board of elections.
The facts pleaded were stipulated by the parties as set forth above, and the case is before this court upon the pleadings and the stipulation.
In case No. 34950, the relator is an independent candidate for Judge of the Court of Appeals of the Fourth Appellate District. The respondents are the members of the Board of Elections of Scioto County.
Relator's petition for a writ of mandamus sets forth that on February 7, 1956, he filed with the Board of Elections of Scioto County 161 separate nominating petition papers and statements of candidacy, seeking election to such office at the election to be held on November 6, 1956. It is alleged that each of the nominating petition papers and statements of candidacy is in proper form, signed by the circulator and sworn to by him before a notary public.
Relator says that these petition papers were filed with the Board of Elections of Scioto County, said county being the most populous county in the Fourth Appellate District, which board of elections transmitted to each board of elections of the other counties within said district the separate petition papers of the relator as purport to contain signatures of electors in the county of such board; that on or about July 15, 1956, each such separate board of elections, having examined and determined the sufficiency of the signatures on such papers, returned to the Board of Elections of Scioto County all petition papers transmitted to it by said board of elections with its certification that it had found the same to be sufficient and valid; and that the number of valid signatures found by such separate boards of elections totaled 2,995, being not less than 50 valid signatures from more than one-half of the several counties constituting such district.
Relator says further that on July 27, 1956, the Board of Elections of Scioto County, of its own volition, found and determined that relator's nominating petition is insufficient in that 514 signatures are invalid due to false affidavits; that 1,217 signatures are invalid due to the circulator's oath being taken by an unauthorized notary public; and that 73 signatures are invalid for other reasons, leaving the relator a net total of 1,677 valid signatures, whereas 2,500 are required to qualify him.
Relator says that 62 petition papers filed with said board and containing 1,217 signatures were verified by the oaths of the circulators and were signed and sworn to by them before the relator as a notary public; that the relator was duly authorized as such notary at that time; and that the rejection of these signatures alone reduced the total number of electors' signatures found valid on his nominating petition below 2,500, which is the minimum number required by law.
Relator says that the rejection of these 62 petition papers was an abuse of discretion by the board of elections and contrary to law, and that the respondents as members of the board of elections have refused to include his name on the ballot.
Relator prays for a writ of mandamus requiring them to certify his name and place it on the ballot for said office.
An answer was filed on behalf of the respondents which sets forth their proceedings, substantially as claimed by the relator, and details their findings in relation to each of the nominating petition papers on which they ruled. The answer sets forth that the relator acted as notary in taking the acknowledgment of the circulators of some of his petition papers and alleges also that at that time he had failed to register his current notary commission with the clerk of courts of Jackson County as required by Section 147.05, Revised Code. All other allegations in the relator's petition which are not restated in the answer are generally denied.
The relator filed a demurrer to the answer of the respondents, specially to the allegation that he was not qualified as a notary and generally to the answer of the respondents on the ground that it does not constitute a defense to the petition.
This case is before this court upon such demurrer and the pleadings.
Mr. Joseph Deutschle, Jr., and Mr. W.T. Reed, for relator in case No. 34934.
Mr. Wray Bevens, prosecuting attorney, and Mr. Wm. E. Knepper, for respondents in case No. 34934.
Mr. Richard C. Addison and Mr. Frank Delay, for relator in case No. 34950.
Mr. Everett Burton, Jr., prosecuting attorney, for respondents in case No. 34950.
Common to both cases here considered is the issue whether the affidavits of the circulators of a nominating petition of an independent candidate for an elective office in this state, required by Section 3513.261, Revised Code, are ineffective for the sole reason that the candidate, as a notary public, administered the oaths to the circulators of his own petition.
In both cases, the respective boards of elections in control held that certain of the petition papers in each instance are insufficient because they were notarized by the respective relator candidates, leaving an insufficient number of valid signatures to each of the petitions and making such petitions invalid. The facts as to this branch of the two cases are not in dispute.
The Revised Code provides that a nominating petition must be signed by qualified electors of a county before a circulator, and that the circulator of each petition shall make an affidavit in the following form before an officer authorized by law to administer an oath:
". . . . ., 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."
Section 147.07, Revised Code, grants certain official authority to a notary public, the pertinent part of which is as follows:
"A notary public may, within the county for which he is appointed or if commissioned for the whole state, throughout the state, administer oaths required or authorized by law, take and certify depositions, take and certify acknowledgments of deeds, mortgages, liens, powers of attorney, and other instruments of writing * * *."
The only present statutory limitation upon the general powers of a notary public to administer oaths is found in Section 2319.01 et seq., Revised Code, entitled Modes of Taking Testimony. Section 2319.02, Revised Code, defines an affidavit as "a written declaration under oath, made without notice to the adverse party," and Section 2319.10, Revised Code, provides that a notary public may take a deposition for use in judicial proceedings. Section 2319.13, Revised Code, provides that "the officer before whom depositions are taken must not be a relative or attorney of either party, or otherwise interested in the outcome of the action or proceedings."
The specific question here presented has not been heretofore determined by this court. In the case of Amick v. Woodworth, 58 Ohio St. 86, 50 N.E. 437, this court held that a mortgage witnessed by and acknowledged before the named mortgagee as a notary public is invalid. In the case of Read, Assignee, v. Toledo Loan Co., 68 Ohio St. 280, 67 N.E. 729, 96 Am. St. Rep., 663, 62 L.R.A., 790, this court distinguished it from the case of Amick v. Woodworth, supra, and held:
"A mortgage executed agreeably to the provisions of Section 4106, Revised Statutes of Ohio, and attested and acknowledged as therein provided, is not invalid and cannot be impeached, in the absence of fraud and undue advantage, merely because the witnesses who attest the signature of the mortgagor and the notary public taking his acknowledgment are stockholders of, but not otherwise interested in the corporation named in said mortgage as grantee."
Our attention is also called to the case of Pfau v. Butterfield (decided in 1932 by the Common Pleas Court of Hamilton County), 29 N.P. (N.S.), 285, wherein it was held:
"Where the persons signing a petition of candidacy for public office make their acknowledgment before the candidate himself as notary, the petition is invalid."
The relators take the position that the oath taken by the circulator of a nominating petition is an affidavit and not an acknowledgment; that by Section 147.07, Revised Code, creating the office of notary public, the notary is given plenary power to administer oaths unless specifically limited by statute; that the election laws of this state impose no such limitation; and that the limitation imposed by Section 2319.13, Revised Code, to the effect that an officer before whom depositions are taken must not be a relative or attorney of either party or interested in the outcome of the action or proceeding, applies only to affidavits to be used in litigation or judicial proceedings, and relators cite as authority for this position the opinion of Judge Mauck in the case of City Commissioner of Gallipolis v. State, ex rel. Houck, 36 Ohio App. 258, 173 N.E. 36, wherein he stated that the fact that affidavits to certain referendum petitions were sworn to before a notary public who was attorney for the affiants and others interested in the proposed referendum did not disqualify the notary and invalidate the petitions.
Legal authorities throughout the country have often considered phases of this matter from the standpoint of public policy and have applied as a test the rule that a notary public should be disqualified to administer an oath to a party where he, the notary, is directly interested, legally or materially, in the validation of the instrument which the oath accomplishes.
Here, the relators were directly interested legally and materially in the validation of their own nominating petitions which they attempted to validate by administering the oaths to the circulators. The oaths taken in these instances were in the nature of acknowledgments validating the instruments beneficial to the relators. As was said by Judge Darby in Pfau v. Butterfield, supra:
"This is not a case in which the attorney for an interested party may take an affidavit, but it is a case of the interested party himself acting as notary public.
"It was never within the contemplation of the Legislature in authorizing commissions to be issued to notaries public, that they should act in their own cases, and there is nothing in the election law to indicate that."
A case directly in point is that of Schirmer v. Myrick, Secy. of State, 111 Vt. 255, 20 A.2d 125, which holds, as expressed in the A.2d headnotes:
"A notary public, presenting certificates of his nomination as party candidate for office of Representative in Congress to Secretary of State, had such beneficial interest in the execution of certificates as to disqualify him from administering oaths to signers thereof, so that secretary committed no error in refusing to receive and file petitions on ground that they were not in `apparent conformity to law.'"
In the course of the opinion in that case the court said:
"* * * Although the administration of an oath is a ministerial act ( Coolbeth v. Gove, 108 Vt. 499, 501, 189 A. 858), it has been generally held that, whether ministerial or quasi-judicial in nature, public policy forbids it to be done by one who has either a financial or a beneficial interest in the proceeding. This principle has been often applied where an acknowledgment to a deed or other instrument has been taken and certified by one who, although he was an officer legally authorized to perform the act, is a party to such deed or instrument, or otherwise interested therein. Among other decisions, reference may be made to Green v. Abraham, 43 Ark. 420, 422; Hayes v. Southern Home Bldg. Loan Assn., 124 Ala. 663, 26 So. 527, 82 Am. St. Rep., 216, 218; Lee v. Murphy, 119 Cal. 364, 51 P. 549, 551, 555; Wilson v. Traer Co., 20 Iowa 231, 233, 234; Amick v. Woodworth, 58 Ohio St. 86, 50 N.E. 437, 440; Beaman v. Whitney, 20 Me. 413, 420; Grossbeck v. Seeley, 13 Mich. 329, 345; Armstrong v. Combs, 15 App. Div. 246, 44 N.Y.S., 171, 173; Ogden Bldg. etc., Assn. v. Mensch, 196 Ill. 554, 63 N.E. 1049, 89 Am. St. Rep., 330, 336. And while it may be possible to draw a distinction between an acknowledgment and an affidavit, in both cases the same reason forbids official action by one who is benefited thereby. Smalley v. Bodinus, 120 Mich. 363, 79 N.W. 567, 77 Am. St. Rep., 602."
This court concludes that the practice here adopted by the relators can not, under the authorities and under good public policy, be approved. This position is consistent with the restrictions imposed by statute upon notaries in the exercise of their authority in taking depositions. The evil to be avoided by this restriction is the same in both instances.
Some question is made by the relator in case No. 34950 that the Board of Elections of Scioto County did not have authority to find invalid the petition papers signed by him as notary. However, that issue is not controlling since the court finds that relator's petition in any event is insufficient to validate his candidacy.
In case No. 34934, the writ of mandamus is denied, and, in case No. 34950, the demurrer to the answer of respondents is overruled and the writ denied.
Writs denied.
WEYGANDT, C.J., ZIMMERMAN and BELL, JJ., concur.