State ex rel. Klink v. Eyrich, 32996

• Decision Date: 02 April 1952
• Docket Number: No. 32996,32996
• Parties: , 47 O.O. 198 STATE ex rel. KLINK v. EYRICH et al.
• Court: Ohio Supreme Court

Page 338

157 Ohio St. 338

105 N.E.2d 399, 47 O.O. 198

STATE ex rel. KLINK v. EYRICH et al.

No. 32996.

Supreme Court of Ohio.

April 2, 1952.

Ed D. Schorr filed with the Board of Elections of Hamilton County a declaration of candidacy and petition for the position of delegate from the Second Congressional District to a national convention and requested that his name be placed on the primary ballot. His declaration of candidacy and petition were accepted and approved by the board.

The relator, Edward A. Klink, also a candidate for the same position, filed a formal protest against Schorr's candidacy, on the ground that he was not a resident and qualified elector of the Second Congressional District.

A hearing on the protest was held before the board of elections and at the conclusion of the evidence the approval of the declaration of candidacy and petition was reaffirmed.

John A. Benjamin and Orville M. Tate, Cincinnati, for relator.

C. Watson Hover, Prosecuting Atty., William J. Schmid and Carl B. Rubin, Cincinnati, for respondents.

PER CURIAM.

The instant action originated in this court by relator filing a 'petition for writ of prohibition or mandamus.' The petition alleges that Schorr is not a qualified elector of Hamilton county and that 'without good and sufficient reasons, respondents have failed, neglected and refused to cause said Ed D. Schorr to be disqualified as a candidate for a delegate and propose to place his name on said ballot for the May 6, 1952, primary election.' The prayer of the petition is for a 'writ of prohibition or mandamus' prohibiting respondents from placing such candidate's name on the ballot.

The record of the hearing before the board discloses substantial evidence supporting the finding of the board, and such finding will not be disturbed by this court.

The writ is denied.

Writ denied.

WEYGANDT, C. J., and ZIMMERMAN, STEWART, MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.

TAFT, Judge (concurring).

Unless the evidence before the board was such as to require as a matter of law a determination that Mr. Schorr's voting residence was not as stated in his declaration of candidacy, then the decision of the board must be sustained. In other words, if there was substantial evidence to sustain that decision, the writ requested must be denied. In such an instance where there is no claim of any fraud or corruption on the part of the board, this court cannot say that the board abused its discretion. State ex rel. Burgstaller v. Franklin County Board of Elections, 149 Ohio St. 193, 78 N.E.2d 352.

In order to determine whether there was substantial evidence to sustain the decision of the board that Mr. Schorr's voting residence was as stated in his declaration of candidacy, it is first essential to determine how the law defines the term, voting residence.

In order to vote in a particular precinct and county, Section 4785-30, General Code, requires that a person be a 'resident' of that precinct and county.

Section 4785-31, General Code, then provides:

'All registrars and judges of elections, in determining the residence of a person offering to register or vote, shall be governed by the following rules, so far as they may be applicable:

'a. That place shall be considered the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning.

'b. A person shall not be considered to have lost his residence who leaves his home and goes into another state or county of this state, for temporary purposes only, with the intention of returning.

'c. A person shall not be considered to have gained a residence in any county of this state, into which he comes for temporary purposes only, without the intention of making such county his permanent place of abode.

'd. The place where the family of a married man or woman resides shall be considered and held to be his or her place of residence; except that where the husband and wife have separated and live apart, the place where he or she resides the length of time required by the provisions of this act to entitle a person to vote, shall be considered and held to be his or her place of residence.

'e. If a person remove to another state with the intention of making such state his permanent residence he shall be considered to have lost his residence in this state.

'f. If a person remove to another state with the intention of remaining there an indefinite time and making such state his place of residence, he shall be considered to have lost his residence in this state, notwithstanding he may entertain an intention to return at some future period.

'g. If a person remove to the District of Columbia, or other federal territory, to engage in the government service, he shall not be considered to have lost his residence in this state during the period of such service, and likewise should he enter the employment of the state, the place where such person resided at the time of his removal shall be considered and held to be his place of residence.

'h. If a person goes into another state, and while there exercises the right of a citizen by voting, he shall be considered to have lost his residence in this state.

'i. All questions of the right to vote shall, except as otherwise provided herein, be heard and determined by the judges of election in the precinct where the question arises.

'j. The term 'temporary purposes,' as used in this section, shall be construed to permit a period of absence not in excess of three years.'

Admittedly, Mr. Schorr is a married man. The evidence in the instant case requires the conclusion, as a matter of law, that 'the place where * * * [his] family * * * resides' is in Franklin county. The question remains whether Mr. Schorr can vote only in Franklin county because paragraph d of the statute provides that such place 'shall be considered and held to be his * * * place of residence'. This court approached near to deciding but apparently did not actually decide that question in Jolly v. Deeds, Chairman, 135 Ohio St. 369, 21 N.E.2d 108, 109. That case is distinguishable from the instant case, because Mr. Schorr does still have a place of habitation at his Cincinnati address and receives some mail there. In the Jolly case, while Mrs. Cottrill 'and her family wanted to move back into the village at some future time', she and they no longer had any place of habitation in the village.

The board relies principally on paragraphs a, b,...