State, Ex Rel., v. Wagner

• Decision Date: 04 October 1933
• Docket Number: 24406
• Citation: 187 N.E. 572,127 Ohio St. 174
• Parties: The State, Ex Rel. Schroy, v. Wagner Et Al.
• Court: Ohio Supreme Court

187 N.E. 572

127 Ohio St. 174

The State, Ex Rel. Schroy, v. Wagner Et Al.

No. 24406

Supreme Court of Ohio

October 4, 1933

Municipal corporations - Elections - Nominating petitions for mayor of Akron - Ten per cent of electors who voted at last election - Number of signatures determined by votes cast, not individual electors voting - Registered elector, qualified to sign petition, although registration not transferred - Election question justiciable, when.

IN MANDAMUS.

This is an action in mandamus filed in this court. The relator is a candidate for the office of mayor in the city of Akron; the respondents are the deputy state supervisors of elections of Summit county, in which the city of Akron is located. The relator asks for a writ of mandamus commanding the respondents to place his name on the official ballot as a candidate for mayor at the municipal election to be held next November.

The defendants demur to the petition on two grounds: (1) That the court has no jurisdiction of the subject of the action; and (2) that the petition does not state facts necessary to show a cause of action.

The following are the salient facts appearing in the petition which, for the purpose of a demurrer, are conceded to be true: At the municipal election in the city of Akron in November, 1931, 51,190 electors voted. In September, 1933 there were filed with the defendants nominating petitions circulated in behalf of relator's candidacy for mayor bearing 8,062 signatures. The defendants, as members of the board of elections, checked the names of the signers upon the nominating petitions, and for various reasons found 2,903 signatures invalid. The invalidity of these signatures is not questioned. The members of the board in checking the names of the signers upon the petitions found that 1,586 electors who had signed the petitions, although duly registered, both now and in 1931, "had not voted at the last regular municipal election of said city at large and therefore refused to count said one thousand five hundred eighty-six signatures to said petitions as valid." They also refused to count 375 names of electors who had signed the petitions, "because the addresses of said electors which appeared upon said petitions were different than the addresses now appearing upon the permanent registration records of said board for said city of Akron because they had not transferred their registration, notwithstanding said persons are now electors of said city of Akron, as shown by said registration records." The petition alleges that, had the board counted said 1,586 signatures of electors, and also the said 375 signatures, these two classes, if validated, in addition to the valid signatures which the board did count, would constitute the number of signatures required by the charter to place the name of the relator on the ballot.

Section 6 of the Akron municipal charter pertaining to the number of signatures required contains the following provision: "Such petition shall be signed by at least ten per centum (10%) of the electors who voted at the last regular municipal election of the city at large."

Messrs. Larabee, Kepler & Wells and Messrs. De Woody & Keeney, for relator.

Mr. Ray B. Watters, prosecuting attorney, and Mr. Clyde. B. Macdonald, for respondents.

JONES J.

Two legal propositions are presented by the general demurrer. It is conceded by the demurrer that the number of signatures to the petitions was sufficient had the board counted as valid the 1,586 signatures of those who had not voted in the municipal election of 1931, and also the 375 signatures of the voters of the municipality, who, though registered upon the permanent registration records, had failed to transfer their registration. If these two classes constitute valid signatures, the general demurrer should be overruled, otherwise it should be sustained.

1. The salient portion of Section 6 of the Akron municipal charter relating to signatures on nominating petitions is as follows: "Such petition shall be signed by at least ten per centum (10%) of the electors who voted at the last regular municipal election of the city at large."

It is conceded that 51,190 electors voted at the last regular municipal election in 1931. The legal contention of the relator is that he is only required to have 10 per cent., or 5,119 signatures, of registered electors, whether such electors did or did not vote at the previous election. The claim of the respondents is, and they so held, that this 10 per cent. must be confined to those electors who actually noted at that election.

While there may be some ambiguity in the language of the charter provisions, it is susceptible of the interpretation that the language employed was intended to...