State ex rel. Weaver v. Wiethe

• Decision Date: 30 September 1965
• Docket Number: No. 39809,39809
• Citation: State ex rel. Weaver v. Wiethe, 4 Ohio St.2d 1, 210 N.E.2d 881, 33 O.O.2d 1 (Ohio 1965)
• Parties: , 33 O.O.2d 1 The STATE ex rel. WEAVER, v. WIETHE et al., Hamilton County Board of Elections.
• Court: Ohio Supreme Court

Page 1

4 Ohio St.2d 1

210 N.E.2d 881, 33 O.O.2d 1

The STATE ex rel. WEAVER, v. WIETHE et al., Hamilton County Board of Elections.

No. 39809.

Supreme Court of Ohio.

Sept. 30, 1965.

Relator invokes the original jurisdiction of this court by a petition which prays for a writ of mandamus compelling the respondents as members of the Board of Elections of Hamilton County to place his name on the ballot of candidates for the Council of Cincinnati at the municipal election to be held November 2, 1965. Respondents demurred to the petition and the parties have stipulated that a decision on the demurrer will be dispositive of the case.

On August 16, 1965, which was within the 60-day filing period required by the charter of that city, relator filed with respondents a nominating petition consisting of several separate petition papers and containing altogether 562 signatures of purported electors of the city, or 62 more than the required minimum of 500. Three days later, relator was duly notified that only 395 signatures were valid. Thereupon, he sought to withdraw his nominating petition for the purpose of obtaining additional valid signatures on additional petition papers and filing all separate papers as one petition at a later time. Respondents refused this demand.

Subsequently, on August 30th, still within the 60-day deadline, relator presented to respondents additional petition papers containing 199 signatures which would entitle him to be recognized as a candiate provided that (1) 105 of the additional signatures are valid and (2) respondents are required to consider them along with the petition originally filed. After granting relator a hearing on his claims and consulting with counsel, respondents formally rejected relator as a condidate.

Goldman, Cole & Putnick, and Gene I. Mesh, Cincinnati, for relator.

Melvin G. Rueger and Raymond C. Wetherell, Cincinnati, for respondent.

PER CURIAM.

The charter of Cincinnati (Section 4, Article IX) requires that 'all separate papers comprising a nominating petition shall be assembled and filed * * * as one instrument * * *.' (Emphasis supplied.) Confronted with this explicit direction, relator attempted to circumvent it. Learning of the insufficiency of his original petition, he sought to withdraw it so that he might again assemble and file the separate papers thereof, together with other separate papers containing additional signatures sufficient to meet the minimum number required.

Failing this, relator's principal contention now is that by filing a nominating petition at some time before the 60th day prior to the election, a prospective candidate acquires a continuing right to file additional petition papers until the tolling of the filing period and to have the total number of separate papers thus filed considered as 'one instrument.'

Although seemingly consonant with traditional notions of fair play, that contention is without merit because it ignores not only the plain language of the charter but also the burden of...