Koehler v. Bd. Of Elections

• Citation: 125 Ohio St. 251,181 N.E. 107
• Decision Date: 14 April 1932
• Docket Number: 23520
• Parties: Koehler, Jr., v. Board Of Elections Of Butler County Et Al.
• Court: United States State Supreme Court of Ohio

181 N.E. 107

125 Ohio St. 251

Koehler, Jr., v. Board Of Elections Of Butler County Et Al.

No. 23520

Supreme Court of Ohio

April 14, 1932

Elections - Declaration of candidacy and petition for candidate - Statutory requirements mandatory - Signatures, oath and acknowledgment - Section 4755-70 et seq., General Code - Defective declaration or petition, void - Omissions cannot be corrected after filing date.

1. The provisions of Sections 4755-70 and 4755-71, General Code that a candidate who files a declaration of candidacy must subscribe, swear to and acknowledge the same, are mandatory.

2. The provision of Section 4755-72, General Code, that an elector who signs a petition for a candidate for member of a party controlling committee must subscribe and swear to or affirm the same before any person authorized by law to administer an oath or take an affirmation, is mandatory.

3. A declaration of candidacy or a petition for a candidate which is not subscribed and sworn to or affirmed, as required by the foregoing sections, is void.

4. When a declaration of candidacy or a petition is void under Sections 4755-70, 4755-71 or 4755-72, General Code, because of lack of subscription, oath or affirmation, it cannot be cured subsequent to the statutory date for filing the same and the board of elections must reject such declaration or petition.

The facts are stated in the opinion.

Mr Harry J. Koehler, Jr., Mr. W. C. Shepherd and Mr. Walter S Harlan, for plaintiff in error.

Mr. Robert M. Sohngen and Mr. Z. G. Morgenthaler, for defendants in error.

ALLEN J.

This case arose as an application for an injunction to restrain the board of elections of Butler county, Ohio, from placing upon the ballot for the primary election to be held on May 10, 1932, the names of thirteen persons as candidates for election as members of the Butler County Democratic Central Committee. The case was heard in the court of common pleas of Butler county, Ohio, from which court, after rendering of judgment, an appeal was prosecuted to the Court of Appeals of Butler county. That court entered a decree denying the relief asked, and dismissed plaintiff's petition.

The Court of Appeals entered the following decree and finding:

"This cause came on to be heard upon an appeal from the Court of Common Pleas, Butler County, Ohio, and was submitted to the Court upon the pleadings and the evidence and argument of Counsel, and Plaintiff having requested a separate finding of the conclusions of Law and Fact, the Court finds as a conclusion of Fact--

"That none of the Declarations of Candidacy nor the Petitions of Candidates were subscribed by the signers thereof before the Notary, whose certification is attached to said Declarations of Candidacy and Petitions of Candidates, with the exception of the Declaration of Candidacy of E. O. Haldeman, who did subscribe and swear to said Declaration of Candidacy before the Notary, whose certificate is attached thereto. But that the signers of the Petition accompanying said Declaration of Candidacy of said E. O. Haldeman, did not subscribe nor swear to or affirm the same before the Notary, whose certificate is attached thereto.

"The Court further finds that all petitions were signed by a sufficient number of electors and that their signatures were genuine.

"The Court further finds that all of said Declarations of Candidacy and Petitions were filed with the Board of Elections of Butler County, Ohio, on the 11th day of March, 1932; that afterwards on the 15th day of March, 1932, a Protest and Objection to said Declarations of Candidacy and Petitions of Candidates were filed with said Board of Elections. That afterwards, and before said Protest and Objection were heard by said Board, all of the signers of said Declarations of Candidacy with the exception of one of the signers of the Petition of Carl J. Rosmarin and the five signers of the Petition of E. O. Haldeman, appeared before the notary, whose certificate was attached to said Petitions and Declarations of Candidacy, and acknowledged the same.

"That afterwards, upon hearing of said Protest and Objection, said Board of Elections found against said Protests and Objections and ordered said names of said candidates printed upon the ballots.

"The Court further finds that the signers of the Petition of E. O. Haldeman and one of the signers of the Petition of Carl J. Rosmarin, at no time appeared before the Notary, whose certificate is attached thereto, and acknowledged or swore to or affirmed the same.

"The Court further finds that said Declarations of Candidacy and Petitions of the Candidates were, as to form, in exact compliance with the forms set forth in and required by the Statute, and signed and sealed by a Notary.

"As a conclusion of Law in this cause, based upon the foregoing conclusion of Fact, the Court finds-

"1. That the action of said Board of Elections in ordering said names of Candidates printed upon the ballots was final.

"2. That said defects of said Petitions and Declarations of Candidacy are mere technical defects.

"It is therefore, ordered and decreed by the Court that the relief prayed for be denied, and that the Petition of Plaintiff be dismissed."

It will therefore be seen that there are two legal problems presented by this error proceeding. The statutory date for filing the declarations of candidacy and the petitions was March 11 1932, and in each case the attempted amendment of the declarations and the petitions was made after that statutory period had expired. In the case of twelve of the candidates, the facts present exactly the same legal question, namely, whether an elector who, within the statutory period, has...