State ex rel. Schwarz v. Hamilton County Bd. of Elections

• Decision Date: 20 April 1962
• Docket Number: No. 37523,37523
• Citation: State ex rel. Schwarz v. Hamilton County Bd. of Elections, 181 N.E.2d 888, 173 Ohio St. 321 (Ohio 1962)
• Parties: , 19 O.O.2d 229 The STATE ex rel. SCHWARZ, Appellant, v. HAMILTON COUNTY BOARD OF ELECTIONS et al., Appellees.
• Court: Ohio Supreme Court

Page 321

173 Ohio St. 321

181 N.E.2d 888, 19 O.O.2d 229

The STATE ex rel. SCHWARZ, Appellant, v.HAMILTON COUNTY BOARD OF ELECTIONS et al., Appellees.

No. 37523.

Supreme Court of Ohio.

April 20, 1962.

Walter A. Kelley and E. Ronald Gross-heim, Cincinnati, for appellant.

C. Watson Hover, Prosecuting Attorney, George S. Heitzler and Robert O. Lilley, Cincinnati, for appellees.

PER CURIAM.

It is conceded that the relator filed with respondent valid nominating petition papers containing 80 valid signatures.A valid petition or petition papers containing 100 valid signatures are necessary to place relator's name on the ballot at the 1962 primary election.Section 3513.05, Revised Code.

Directly in issue here is relator's nominating petition paper marked 'exhibit D.'If it is good, there are enough valid signatures to supply the number of signatures relator needs to place his name no the ballot.

Although the disputed petition contains 28 names, its circulator swore in his affidavit that the number was 27.Respondent being in doubt concerning this petition requested the opinion of the Secretary of State of Ohio.In a letter, the secretary replied as follows: 'The * * * petition contains 28 signatures while the circulator has sworn that 27 of the signatures were placed thereon in his presence.Without any indication of which one was placed on the petition outside his presence they must all be considered invalid.'

Respondent accepted the opinion of the Secretary of State and notified relator by letter that the petition was rejected and that his name would 'not appear on the May 1962 primary election ballot as a candidate for Cemocratic State Representative.'

Thereafter a hearing was requested by relator, and the same was held before the respondent.At such hearing, the circulator of the petition in question appeared, was sworn and testified.He stated that all 28 signatures on the petition were signed in his presence, but that, since one of them was by an individual from Preble County, he knew that such signature would not count, and for such reason the number, '27,' was inserted by the notary public who administered the oath to him.This was the only testimony presented at the hearing.

A motion was made, seconded and carried that the opinion theretofore expressed by the Secretary of State be approved and the petition rejected.

However, at the time the Secretary of State was contacted and gave his opinion, it was based on the facts then before him as presented by respondent.Subsequently an uncontradicted and plausible explanation under oath was made to respondent, and, with the information it then had, it, by its members, was under the duty to make an independent decision.The duties of boards of elections are prescribed by statute.Section 3501.11, Revised Code, recites in part:

'Each board of elections shall exercise * * * all powers granted to such board * * * shall perform all the...