State ex rel. Buchanon v. Stillman, 41272

• Decision Date: 01 November 1967
• Docket Number: No. 41272,41272
• Citation: 41 O.O.2d 151,12 Ohio St.2d 13,231 N.E.2d 61
• Parties: , 41 O.O.2d 151 The STATE ex rel. BUCHANON, v. STILLMAN et al., Cuyahoga County Board of Elections.
• Court: Ohio Supreme Court

Page 13

12 Ohio St.2d 13

231 N.E.2d 61, 41 O.O.2d 151

The STATE ex rel. BUCHANON, v. STILLMAN et al., Cuyahoga County Board of Elections.

No. 41272.

Supreme Court of Ohio.

Nov. 1, 1967.

Syllabus by the Court

Where a board of elections has checked the signatures on petitions and determined that there are a sufficient number thereof that are valid, it may determine that such petitions are valid if the only protest against the petitions is based solely upon the failure of the circulator's affidavit to state 'that all signers were to the best of his knowledge and belief qualified to sign.' (Section 3501.38(E), Revised Code, construed and applied; State ex rel. Blackwell v. Bachrach, 166 Ohio St. 301, 143 N.E.2d 127, followed; State ex rel. Abrams v. Bachrach,175 Ohio St. 257, 193 N.E.2d 517, and State ex rel. Janasik v. Sarosy, 12 Ohio St.2d 5, 230 N.E.2d 346, distinguished.)

This is an action in prohibition originating in this court. Relator seeks to prevent the respondent, Cuyahoga County Board of Elections, from placing certain local option issues on the November ballot.

The board of elections had held a hearing on relator's protest against the petitions and found the petitions valid.

Relator contends that the circulators' affidavits on the petitions do not comply with Section 3501.38(E), Revised Code, because they do not contain a statement 'that to the best of his (the circulator's) knowledge and belief all signers of said petition were qualified to sign the same.'

Section 3501.38, Revised Code, reads, so far as pertinent:

'All declarations of candidacy, nominating petitions, or other petitions presented to or filed with the secretary of state or a board of elections of with any other public office for the purpose of becoming a candidate for any nomination or office or for the holding of an election on any issue shall, in addition to meeting the other specific requirements prescribed in the sectioins of the Revised Code relating thereto, be governed by the following rules:

'* * *

'(E) Every petition paper shall bear the affidavit of the circulator that he witnessed the affixing of every signature, that all signers were to the best of his knowledge and belief qualified to sign, and that every signature is to the best of his knowledge and belief the signature of the person whose signature it purports to be.'

The affidavits on these petitions read as follows:

'(Name of circulator), being duly sworn, deposes and says that he is the circulator of the foregoing petition paper containing (number of) signatures, and that the signatures thereon were placed thereon in his presence and that they are the signatures of the persons whose signatures they purport to be.'

In its answer, the board of elections stated 'that all signatures of all of the herein concerned petitions for a local option election were carefully checked by said board of elections and that more than the legally required numbers of said signers were found to be legally and properly qualified to sign said petition.'

No pleading denying the foregoing statement has been filed.

Kinchen, Matia & Mays and Elliot M. Kaufman, Cleveland, for relator.

John T. Corrigan, Pros. Atty., and Frederick W. Frey, Cleveland, for respondents.

TAFT, Chief Justice.

Section 3501.38(E), Revised Code, provides that '(e)very petition paper shall bear the affidavit of the circulator * * * that all signers were to the best of his knowledge and belief qualified to sign.' Therefore, where the circulators' affidavits to such petitions do not contain such statements, the board of elections can for that reason determine that the petitions are invalid, and it can thereby save the time and expense of checking the signatures and of determining that the signers thereof were qualified to sign.

Where the board of elections has not relied upon the fact, that such statement was omitted in the circulators' affidavits, as excusing it from checking the signatures of signers and determining whether they were qualified to sign the petitions and has determined that a sufficient number of signers were so qualified, such a statement by the circulator can no longer serve any useful purpose.

In our opinion, the only purpose of the General Assembly in requiring this sworn statement by the circulator was to provide protection for the board of elections,-not to provide a weapon for those who desired to attack the petitions where the board of elections did not take advantage of the protection provided for it.

In State ex rel. Blackwell v. Bachrach (1957), 166 Ohio St. 301, 143 N.E.2d 127, the petitions had been rejected because the affidavits of the circulators thereof did not contain the statement required by Section 731.31, Revised Code, that the circulator 'believes' the signers thereof 'are electors of the municipal corporation' involved.

In that case, the affidavit attached to each petition stated that it contained a certain number of signatures of 'electors.' Although the affidavit did not state that the...