Decided July 14, 1930.
Municipal corporations — Referendum petitions — Affidavit not vitiated by absence of notary's name on seal — Section 123, General Code — Notary may be attorney of affiant, excepting for judicial affidavits — Petitions not invalidated because circulators paid for securing signatures — Committee representing petitioners not required to sign petition.
1. An affidavit is not vitiated because the seal of the notary public did not conform to the provisions of Section 123, General Code, as amended March 30, 1929 (113 Ohio Laws, 56).
2. All affidavits except those used in judicial proceedings may be made before a notary public, notwithstanding such notary may be the attorney of the affiant.
3. A provision in a city charter, imposing a penalty for employing a person to circulate a referendum petition and paying therefor upon the basis of the number of signatures obtained, does not impose a condition precedent, and petitions obtained in violation of such provision are effective.
4. The members of a committee appointed to represent the petitioners for a referendum need not be subscribers to the petition.
ERROR: Court of Appeals for Gallia county.
Mr. R.M. Switzer, for plaintiff in error.
Mr. Henry W. Cherrington and Mr. Hollis C. Johnston, for defendants in error.
The relators, H.E. Houck and others, filed their petition in the common pleas court of Gallia county against the city commission of Gallipolis, in which they allege that the city commission on November 4, 1929, passed an ordinance determining that it was necessary for the city of Gallipolis to improve and extend a public utility, to wit, a municipal waterworks plant, by purchasing and installing certain machinery and equipment for the same. They further say that 1,001 qualified electors of the city of Gallipolis designated the relators as a committee to represent such electors in all matters with reference to a referendum petition filed with the city commission on the 3rd day of December, 1929, which referendum petition requested the repeal of that ordinance. It is further alleged that said referendum petition contained more than 15 per cent. of the total number of electors in said city, and other averments are made tending to show that said petitions are regular and legal in form. It is further pleaded that the city commission of Gallipolis did not at any time within thirty days after the filing of said referendum petition repeal said ordinance, as requested in said referendum petition, and that on the ___ day of January, 1930, within twenty days after the expiration of said thirty-day period, the relators filed with the clerk of the city commission a request that the commission submit to the electors of the city the question of the proposed repeal of the ordinance. It is further recited that the defendants have refused to submit said ordinance to a vote. The relators prayed that a writ of mandamus issue commanding the city commission to provide for submitting the proposed repeal of said ordinance to the electors in the manner provided by law.
For answer it was alleged that the several parts of the referendum petition were insufficient, because they purport to have been sworn to by the circulators thereof before a notary public whose seal did not have inscribed thereon the name of such notary public, and that the name of said notary public is not printed, typewritten, or stamped on the affidavits, and that the purported affidavits were on that account nullities. It is further alleged that several parts of the referendum petition were insufficient, in that most of the signatures thereon were upon parts which were sworn to by the circulators thereof before a notary public who represents the committee and the petitioners on said referendum as their attorney, and the charge is that the purported affidavits on said parts of such referendum petitions are on that account nullities. It is further averred that none of the relators signed the referendum petitions, and that therefore they do not constitute a committee representing the petitioners within the meaning of Sections 64 and 71 of the city Charter. Finally it is charged that the referendum petition was in fact procured and filed by Henry W. Cherrington and Hollis C. Johnston, and that 922 signatures of the 1,001 signers of said referendum petition were obtained by circulators of such petition who were employed by Mr. Cherrington and Mr. Johnston on the basis of an agreement that said circulators should receive and be paid the sum of 15 cents for each and every name solicited and procured by such circulators; that the solicitation and procurement of signatures by the circulators so paid is in violation of Section 76 of the Charter of the city of Gallipolis. A demurrer was filed to this answer. The demurrer was sustained, and the defendants failing to plead further the trial court awarded a writ of mandamus as prayed for in the petition. To this judgment error is prosecuted to this court.
The first phase of the answer involves the interpretation of Section 123, General Code, as amended March 30, 1929, 113 Ohio Laws, 56. This section now provides that a notarial seal shall contain the name of the notary public as follows:
"Provided, that the name of the notary public may, instead of appearing on the seal, be printed, typewritten, or stamped in legible, printed letters near the signature of such notary on each and every document by him signed."
The principal requirement of this statute is that the notary public shall have a seal of the kind described. The effect of the proviso is that he need not have such seal if his name is stamped or printed on the document in a legible manner. Manifestly, if the seal itself is not required to give effect to the official act of the notary, the requirements of the proviso are not essential. That the absence of a seal does not vitiate an affidavit is well settled in Ohio. 1 Ohio Jurisprudence, 598. The facts pleaded in this behalf, therefore, constituted no defense.
The second phase of the answer is that the notary public who administered the oath to the circulators of the petition was an attorney of the parties seeking the referendum, and that this relationship renders the affidavit on the petition void. This view is sustained by Conroy Brothers, Inc., v. Duggan Brother, 17 Ohio App. 429. An opposing holding is found in the opinion of another Court of Appeals, in Cleveland Building Supply Brick Co. v. Schwartz, 29 O.L.R., 450. As this case must eventuate in a conflict with one or the other of the opinions mentioned a re-examination of the question is justified. There is, of course, nothing pertinent in the charter itself save the simple requirement that to the petition there shall be attached an affidavit by the circulator thereof. Is an affidavit otherwise perfect rendered void by reason of the fact that the notary public administering the same is at the time the attorney of those interested in promoting the petition?
By virtue of Section 126, General Code, all notaries public are given plenary power to administer such oaths as are required by law. This section, with varying language, has been part of the statute law since 1834, when the General Assembly conferred upon notaries public the power "to take affidavits and administer oaths for that purpose." Swan's Statutes (1841), page 601. No statutory definition was provided for the word affidavit. None was needed. The lexicographers united in defining it as a statement in writing under oath. Since 1834, then, a notary public has been authorized to administer the oath to an affidavit, and this power has been plenary except so far as it has been limited by statutes subsequently passed. Two such limitations have been imposed by the Legislature. One in 1850, Swan's Statutes (1854), page 577, now in varied form Section 121, General Code, prohibits bank officers and employees from officiating as notaries in a transaction in which the bank is concerned. The other is the limitation found in the Code of Civil Procedure passed in 1853, Swan's Statutes (1854), page 619, et seq., now relied upon by those who contend that any attorney acting as notary is incapable of administering the oath of any client to any affidavit of any kind. This familiar act was not designed to alter substantive law, or to affect instruments requiring an affidavit, but, as its title imports, was "An act to establish a code of civil procedure." The third chapter of that act was entitled "Modes of taking the testimony of witnesses." Sections 332 and 333 of that chapter were in these words:
"Sec. 332. The testimony of witnesses is taken in three modes:
"1. By affidavit:
"2. By deposition:
"3. By oral examination.
"Sec. 333. An affidavit is a written declaration under oath, made without notice to the adverse party."
These sections are now embraced in almost identical language in Sections 11521 and 11522, General Code. Section 337 of that chapter, Section 11524, General Code, provided that affidavits may be made before any person authorized to take depositions and authenticated in the same way, and Section 340 of that Code, now Section 11529, General Code, conferred the power to administer oaths to such affidavits. Section 342 of the same Code, now Section 11532, General Code, read:
"The officer before whom depositions are taken must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding."
The history of Sections 11521, 11522, 11524, 11529 and 11532, General Code, therefore show that their express purpose was only to define and regulate the taking of affidavits to be used as testimony in a judicial proceeding, and the explicit language of the sections mentioned is in harmony with that purpose. Section 11522 defines this sort of affidavit, i.e., one used as testimony, to be a written declaration under oath without notice to the adverse party. The inhibition against the notary or other official administering the oath found in Section 11532 is that he must not be a relative or attorney of either party. There are, of course, multitudes of instances in which affidavits are required by law which are not taken to be used as testimony in judicial proceedings. The statute on perjury recognizes this. Section 12842, General Code. In all such cases the power of the notary to administer the oath proceeds from Section 126, General Code, and not from Sections 11524 and 11529, General Code, which latter confers the special power and limits its exercise so far as affidavits employed in litigation are concerned. Upon the notary's power to administer oaths to all affidavits not to be used in litigation there is no disqualification save that in Section 126. In an affidavit to a chattel mortgage, mechanic's lien, referendum petition, or like documents, a notary may administer the oath notwithstanding he may be related to or the attorney of the affiant. The fact that the affidavits to the petitions for this referendum were sworn to before a notary who was attorney for the affiants and others interested in promoting the referendum did not vitiate those affidavits, and the averments of the answer to that effect constituted no defense.
A third question raised by the answer is whether the fact that the signatures to the petition were obtained in violation of one of the provisions of the charter renders void the signatures so obtained. This court has heretofore expressed the view that the conditions precedent to a referendum are mandatory and must be fully performed by those who would thus block the usual legislative processes. Ohio Valley Electric Ry. Co. v. Hagerty, Aud., 14 Ohio App. 398. Sections 64 and following of the Charter of Gallipolis prescribe the conditions for filing a petition, including the percentage of electors required, the way in which the petitioner shall sign, the substance of what the petition shall contain, how the signature of the petitioners shall be attested, and when the petition shall be filed. These seem to be the conditions precedent to the referendum, and, except as otherwise touched upon in this opinion, were fully complied with by those who sought the referendum. The Charter, however, contains other provisions defining and penalizing offenses relating to referendum petitions. These provisions are found in Section 76 of the Charter, which reads as follows:
"No person shall falsely impersonate another or purposely write his name or residence falsely in the signing of any petition for initiative, referendum, or forge any name thereto, or sign any such paper with knowledge that he is not a qualified elector of the city. Nor shall any person employ or pay another, or accept employment or payment, for circulating any initiative or referendum petition upon the basis of the number of signatures procured thereto. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor and shall, upon conviction, be fined in any sum not exceeding one hundred dollars and the costs of prosecution. The foregoing provision shall not be held to be exclusive of, but in addition to, all laws of the State of Ohio prescribing penalties for the same offenses or for other offenses relating to the same matter."
An identical provision is found in the charter of the city of Columbus and a similar one in the Sandusky charter. Neither has been judicially construed.
The demurrer to the answer admits that enough of the signatures to the petition now in question were obtained by persons paid to circulate such petitions on the basis condemned by the provision quoted that if such signatures cannot be counted the referendum is not demanded by sufficient petitioners. It follows, therefore, that if these petitions are so tainted by this fact as to require their total rejection, the answer is good and the demurrer should have been overruled.
It was competent, of course, for the framers of the charter to have provided among other conditions precedent to a referendum that no signatures should be counted that were obtained by one paid to secure signatures upon the basis of the number of signatures so procured. For reasons satisfactory to it, the charter commission did not so provide. It perhaps felt that electors should not be deprived of an opportunity to vote upon a public matter notwithstanding their signatures had been solicited by circulators unlawfully employed, and that the public interest would be fully served by the punishment or the threat of punishment of those who employed or accepted employment in violation of the charter provisions. We deem it sufficient to say, when asked to deprive electors of the right of a referendum because interested parties unlawfully employed circulators of petitions, that to do so requires us to read into the charter an effect not written therein by those who drew it.
Another question raised by the answer is that the committee representing the petitioners were not themselves subscribers to the petition. No reason is pointed out why they should have been. The contention is without merit.
The demurrer to the answer was properly sustained, and the judgment is affirmed.
MIDDLETON, P.J., and BLOSSER, J., concur.