State ex rel. Evergreen Co. v. Board of Elections of Franklin County, s. 76-1057 and 76-1083

• Decision Date: 27 October 1976
• Docket Number: Nos. 76-1057 and 76-1083,s. 76-1057 and 76-1083
• Citation: 356 N.E.2d 716,48 Ohio St.2d 29,2 O.O.3d 126
• Parties: , 2 O.O.3d 126 The STATE ex rel. EVERGREEN COMPANY, v. BOARD OF ELECTIONS OF FRANKLIN COUNTY. The STATE ex rel. MUIRFIELD LTD., v. LANCIONE et al.
• Court: Ohio Supreme Court

Page 29

48 Ohio St.2d 29

356 N.E.2d 716, 2 O.O.3d 126

The STATE ex rel. EVERGREEN COMPANY, v. BOARD OF ELECTIONS OF FRANKLIN COUNTY.

The STATE ex rel. MUIRFIELD LTD., v. LANCIONE et al.

Nos. 76-1057 and 76-1083.

Supreme Court of Ohio.

Oct. 27, 1976.

These two causes are original actions in prohibition, and, in each, relator seeks to prevent respondent, the Board of Elections of Franklin County, from placing a zoning ordinance of the village of Dublin on the November 1976 ballot pursuant to referendum petition. The causes present an identical issue of law which is determinative of the actions, and therefore they are consolidated herein for decision.

The complaints allege a deficiency in the referendum petition, i. e., that the petition is invalid due to lack of compliance with R.C. 731.31. Specifically, it is alleged that in the portion of the part-petitions entitled 'Affidavit of Circulator,' there is a signed statement by the circulator that he was 'first duly sworn,' but, in the statement of the notary public on each part-petition following the signed statement of the circulator, it states only that the 'foregoing instrument was acknowledged before me.' It is maintained that such latter statement does not constitute an affidavit as required by R.C. 731.31.

In the case of State ex rel. Evergreen Company v. Board of Elections of Franklin County, with respect to contents of the referendum petition, the agreed statement of facts shows that:

'The notarial clause * * * of each part of the petition which followed the statement entitled 'Affidavit of Circulator' reads as follows:

"The foregoing instrument was acknowledged before me this _ _ day of _ _, 1975, by _ _.

Notary Public"

In the case of State ex rel. Muirfield Ltd. v. Lancione et al., the agreed statement of facts reads, in part:

'The portion of each part of said petition which is entitled 'Affidavit of Circulator' contains a signed written statement of the circulator of said part which includes a statement of the circulator that such circulator was 'first duly sworn,' but the written statement of a notary public which follows the signed written statement of the circulator states only that the 'foregoing instrument was acknowledged before me' by the circulator. * * *'

There is no evidence that the notaries placed the circulators under oath. In fact, affidavits of the notaries, attached to each of the agreed statements of facts, indicate that the circulators were not sworn.

In both causes, Lawrence K. Schaefer, who prepared the petitions at issue, Charles L. Mand and the Independent Residents Association were permitted to intervene as respondents.

Moritz, McClure, Hughes & Hadley, James J. Hughes, Jr. and Thomas E. Moloney, Columbus, for relator Evergreen Co.

Vorys, Sater, Seymour & Pease, Herbert R. Brown and Michael G. Long, Columbus, for relator Muirfield Ltd.

George C. Smith, Pros. Atty., Charles I. Cohen and Frank A. Ray, Columbus, for respondent Board of Elections.

Feibel, Feibel, Shamansky & Rogovin, Richard D. Rogovin and James B. Feibel, Columbus, for respondent intervenors.

PER CURIAM.

R.C. 731.31 provides, in part, that: 'Each part of * * * (a referendum) petition shall contain the affidavit of the person soliciting the signatures thereto, which affidavits shall state the number of signers of each such part and that to the best of his knowledge and belief each of the signatures contained on such part is the genuine signature of the person whose name it purports to be, that he believes such persons are electors of the municipal corporation, and that they signed such petition with knowledge of the contents thereof.'

'An affidavit is a written declaration under oath * * *.' R.C. 2319.02. In contradistinction, the statutory definition (R.C. 147.541) of the words 'acknowledged before me' is that:

'(A) The person acknowledging appeared before the person taking the acknowledgement;

'(B) He acknowledged he executed the instrument * * *.'

Inasmuch as the provisions of R.C. 731.31 require each part-petition to contain an affidavit of the person soliciting the signatures and the facts here show that the circulators were not placed under oath, it follows that there was a failure to comply with R.C. 731.31.

It is a basic principle of law that '* * * election statutes are mandatory and must be strictly complied with.' State ex rel. Abrams v. Bachrach (1963), 175 Ohio St. 257, 259, 193 N.E.2d 517, 519; Cf. State ex rel. Barton v. Bd. of Elections (1975), 44 Ohio St.2d 33, 336 N.E.2d 849; State ex rel. Stillo v. Gwin (1969), 18 Ohio St.2d 66, 247 N.E.2d 481; State ex rel. Janasik v. Sarosy (1967), 12 Ohio St.2d 5, 230 N.E.2d 346.

Respondent-board argues that the omission of the statement that the instrument was 'sworn to' should not invalidate the petition. Citing Stern v. Bd. of Elections (1968), 14 Ohio St.2d 175, 237 N.E.2d 313, respondent asserts that '(N)ot even the omission of the notary's signature and seal invalidates an affidavit of the circulator of a petition.'

Although it is true that in Stern the notary 'inadvertently omitted to subscribe his signature to the jurat along side his printed name, and inadvertently omitted to imprint his metal seal upon the jurat,' it is also true that the circulator therein 'took every action and performed every duty required of him by law' and 'was placed under oath administered by the notary.' (Stern, at pages 178 and 179, 237 N.E.2d at page 315.) Thus, the holding in Stern is not dispositive of the instant causes.

It is the conclusion of this court that the failure to comply with the provisions of R.C. 731.31, requiring each part-petition to contain an 'affidavit of the person soliciting the signatures thereto,' invalidates the referendum petition at issue in each cause.

Writs allowed.

C. WILLIAM O'NEILL, C. J., and J. J. P. CORRIGAN, STERN, WILLIAM B. BROWN and PAUL W. BROWN, JJ., concur.

HERBERT and CELEBREZZE, JJ., dissent.

HERBERT, Justice (dissenting).

The cases at bar present a direct confrontation between a concededly bona fide, good-faith effort by Ohio citizens to...