Opinion
No. 35553
Decided April 16, 1958.
Elections — Declaration of candidacy and petition — Residence of candidate — Protest sustained by county board — Decision not disturbed by court, when — Mandamus.
IN MANDAMUS.
The relator herein, Evan P. Ford, instituted this proceeding in mandamus in this court against the respondent, Board of Elections of Pickaway County. In his petition, he alleges that he has been a resident of Madison Township, Pickaway County, since 1954; and that prior to November 6, 1957, he maintained a residence in the city of Columbus, Franklin County, and maintained it as his voting residence, but on and after that date his habitation was and has been fixed at his residence in Madison Township, Pickaway County, which residence he has intended, since November 6, 1957, to be his place of abode and voting residence.
Relator alleges further that on December 18, 1957, and January 29, 1958, he executed declarations of candidacy in which he declared his voting residence to be Madison Township, Pickaway County, and that he desired to be a candidate for nomination as a candidate for the office of Judge of the Court of Common Pleas of Pickaway County at the primary election to be held on May 6, 1958, and in which he requested that his name be printed on the official primary election ballot; that his declarations of candidacy and petitions for nomination were duly filed and validated by the respondent; that thereafter respondent notified relator of a protest against his candidacy, held a hearing and, "in clear disregard of the provisions of law applicable thereto and in gross abuse of the discretion granted them by law, allowed the protest against his candidacy on the sole ground that he was not a resident and qualified elector of Madison Township, Pickaway County"; and that respondent has refused to print his name on the official ballot.
The prayer is for a writ requiring respondent to cause his name to be printed on the official primary election ballot.
The decision of the respondent in sustaining the protest, as it appears in relator's petition, is as follows:
"After reviewing all the evidence in the case, the board is of the opinion, by unanimous vote, that the protest of candidacy should be sustained. The board finds from the testimony of Mr. Ford, together with other witnesses, beyond any doubt, Mr. Ford voted on November 5, 1957, in precinct D, ward 16, city of Columbus, Ohio, and that thereafter there was no intent coupled with an overt action showing upon his part a change in his residence.
"Although the testimony of the witnesses for Mr. Ford and others tended to show that he resided from time to time in Madison Township since 1954, other acts upon his part showed his intention to maintain his residence in Columbus, Ohio. His own testimony shows that he evidenced an intent to change his residence on or about November 1, 1957, and again the day after election, to wit, November 6, 1957. Yet he did nothing by the way of an overt act to carry out his intention, other than acts prior to election, to wit, living from time to time at his place in Madison Township."
To the petition respondent has filed a demurrer on the ground that the petition does not state a cause of action because (1) it does not allege fraud or bad faith on the part of respondent or set forth specific acts of gross abuse of discretion or disregard for law, and (2) the petition admits relator was a qualified elector of Columbus on November 5, 1957, and fails to allege any acts upon his part subsequent to that date showing that he intended to change his residence.
The cause is submitted on the petition and the demurrer thereto.
Messrs. Vorys, Sater, Seymour Pease and Mr. Richard G. Ison, for relator.
Mr. Ray W. Davis, prosecuting attorney, for respondent.
Relator has not set forth in his petition any act or acts of fraud or bad faith on the part of the respondent, or any specific act or acts of gross abuse of discretion or flagrant disregard of applicable provisions of law. "By the repeated declarations of this court allegations of fraud, corruption or abuse of discretion must be specific." Sullivan v. State, ex rel. O'Connor, 125 Ohio St. 387, 392, 181 N.E. 805.
Elections are a function of the political branch of the government, are a matter of political regulation, and are not per se the subject of judicial cognizance. Sullivan v. State, ex rel. O'Connor, supra. Section 3513.05, Revised Code, relative to declarations of candidacy and nominating petitions, provides that the determination by the election officials of the validity or invalidity of a candidate's declaration of candidacy and nominating petition shall be final.
In view of the mandate of the legislative branch of the government that the decision of a particular board or authority shall be final, this court has "no right to attempt to set aside a decision made by a board of elections where fraud or gross irregularity has not intervened. This is particularly true where a purely political question is involved." State, ex rel. Burgstaller, v. Franklin County Board of Elections, 149 Ohio St. 193, 198, 78 N.E.2d 352.
There is no claim of fraud, corruption or clear disregard for law on the part of the respondent, and this court cannot say that the respondent abused its discretion in sustaining the protest. State, ex rel. Flynn, v. Board of Elections of Cuyahoga County, 164 Ohio St. 193, 129 N.E.2d 623; State, ex rel. Klink, v. Eyrich, Jr., 157 Ohio St. 338, 105 N.E.2d 399.
Relator does not even allege that there was no substantial evidence before the respondent that would support its findings of fact.
The petition fails to state facts sufficient to warrant this court in disturbing the decision of the respondent. The demurrer to the petition is sustained and the writ denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.