Stern v. Board of Elections of Cuyahoga County

• Decision Date: 30 April 1968
• Docket Number: 68-245,Nos. 68-234,s. 68-234
• Citation: Stern v. Board of Elections of Cuyahoga County, 14 Ohio St.2d 175, 237 N.E.2d 313, 43 O.O.2d 286 (Ohio 1968)
• Parties: , 43 O.O.2d 286 STERN, Appellee, v. BOARD OF ELECTIONS OF CUYAHOGA COUNTY, Ohio et al., Appellants. (Two cases.)
• Court: Ohio Supreme Court

Page 175

14 Ohio St.2d 175

237 N.E.2d 313, 43 O.O.2d 286

STERN, Appellee, v. BOARD OF ELECTIONS OF CUYAHOGA COUNTY, Ohio et al., Appellants. (Two cases.)

Nos. 68-234, 68-245.

Supreme Court of Ohio.

April 30, 1968.

Syllabus by the Court

1. A jurat is not part of an affidavit, but is simply a certificate of the notary public who administered the oath, and is prima facie evidence that the affidavit was properly executed and sworn to before such notary public on the date stated in such affidavit.

2. Where, after the board of elections has conducted a public hearing upon a protest, the undisputed facts are that (1) a valid declaration of candidacy has been properly filed, (2) a proper petition containing a valid affidavit of the circulator of each part-petition has been filed, (3) in the jurat following the circulator's affidavit on one part-petition the notary who administered the oath to the circulator inadvertently omitted his handwritten signature and imprinted seal, (4) such jurat is properly dated and bears and name of the notary who administered the oath, the title of his office, the date his notary commission will expire and the limits of his jurisdiction (such matters having been stamped upon the jurat by the notary at the time he administered the oath to the circulator), a board of elections does not abuse its discretion when it rules that such part-petition is valid on the ground that there is substantial compliance with the form of the declaration of candidacy and petition as required by Section 3513.07, Revised Code.

3. Under such circumstances, an injunction will not issue to declare such part-petition invalid and prohibit the printing on the ballot of the name of the candidate appearing in such petition.

This is an action which seeks to prohibit Frances P. Bolton and A. L. DeMaioribus from having their names printed upon the primary ballot as candidates for election as delegates to the Republican National Convention to be held in 1968. No challenge is made to the sworn statement (affidavit) of the candidates to their declaration of candidacy, nor to the sworn statements (affidavits) of the circulators of the five part-petitions attached to the declaration of candidacy. This action is based upon the technicality that the notary public inadvertently omitted his handwritten signature and the imprint of his seal from the jurat (certificate) which follows the affidavit of the circulator on part-petition No. 5.

This action, brought in the Common Pleas Court of Cuyahoga County, seeks a permanent injunction. In his petition the plaintiff alleges that the board of elections abused its discretion when it found part-petition No. 5 valid. Plaintiff prays that '* * * the declaration of candidacy and primary petitions of Frances P. Bolton and A. L. DeMaioribus be declared insufficient and invalid by striking out in toto part-petition No. 5, which will result in said candidates having only ninety-two (92) (100 valid signatures required by law) valid signatures on their petition; that the members of the board of elections and its director and deputy director be permanently enjoined against submitting the candidacies of Frances P. Bolton and A. L. DeMaioribus for district delegates to the Republican National Convention from the 22nd Congressional District to the Republican electors of the 22nd Congressional District at the primary election on May 7, 1968 * * *.'

The Common Pleas Court granted the injunction. Upon appeal, the Court of Appeals affirmed the judgment of the Common Pleas Court granting the injunction as prayed for by the plaintiff.

This cause is before this court upon the allowance of motions to certify the record.

Paul W. Walter, Sr., Cleveland, for appellee.

Robert B. Krupansky, William J. Kraus and Alvin I. Krenzler, Cleveland, for appellants in case No. 68-234.

John T. Corrigan, Pros. Atty., and John L. Dowling, Cleveland, for appellant in case No. 68-245.

O'NEILL, Judge.

The facts are not in dispute.

Pursuant to Section 3513.07, Revised Code, on February 16, 1968, three days before the February 19, 1968, filing deadline, Frances P. Bolton and A. L. DeMaioribus filed with the Board of Elections of Cuyahoga County a declaration of candidacy, declaring their desire to be candidates for election to the office of delegate from the 22nd Congressional District of Ohio to the Republican National Convention at the primary election to be held on May 7, 1968, and requesting that their names be printed upon the official primary election ballot of the Republican party as candidates for such office. They also filed five part-petitions containing approximately 120 names of qualified electors attesting to the qualifications of Bolton and DeMaioribus to perform the duties of the office, as required by Section 3513.07, Revised Code, which section requires valid signatures of 100 registered electors to place the candidates' names on the primary ballot.

The board of elections certified as valid the said declaration of candidacy and five part-petitions containing approximately 117 valid signatures of registered electors of the 22nd Congressional District.

On February 24, 1968, plaintiff filed a written protest challenging the sufficiency and validity of part-petition No. 5, bearing 26 signatures and circulated by Harry Sanger, on the ground that this part-petition failed to bear the handwritten signature of a notary public in the jurat which appears following the circulator's affidavit.

On March 7, 1968, the Board of Elections of Cuyahoga County conducted a public hearing on that protest and, at the conclusion of the hearing, unanimously rejected the plaintiff's protest and ordered the names of Frances P. Bolton and A. L. DeMaioribus placed upon the Republican primary ballots as candidates for delegates to the Republican National Convention from the 22nd Congressional District in the primary election to he held on May 7, 1968.

It is undisputed that the declaration of candidacy of Bolton and DeMaioribus is proper and valid and that the candidates took every action required of them by law with regard to their declaration of candidacy and petition.

It is undisputed that Harry Sanger, the circulator of the part-petition in question, took every action and performed every duty required of him by law with regard to the declaration of candidacy and petition.

Specifically, it is undisputed that Sanger:

1. Personally appeared before the notary on February 15, 1968;

2. Was placed under oath administered by the notary;

3. Signed his name and address to the petition;

4. Inserted the date in the jurat showing the day on which Stillman, the notary public, administered the required oath to Sanger;

5. Deposed under oath that:

(a) He was the circulator of the petition;

(b) The signatures on the petition were the signatures of the individuals they purported to be;

(c) All signatures were affixed in his presence.

It is undisputed that the notary, Saul G. Stillman, administered the required oath to the circulator, Harry Sanger, on February 15, 1968.

It is likewise undisputed that the notary, Stillman, affixed his stamp to the jurat in question, and thus printed his name, his title of office of notary public, the limitations of his jurisdiction, and the fact that his commission has no expiration date upon the jurat following the affidavit of the circulator, which jurat contains the handwritten proper date of the day upon which the oath was administered. Stillman, 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 undisputed that there was no fraud, deception or illegality in connection with the execution of the affidavit or any part of the declaration of candidacy or petition.

The question which this court must determine is whether a declaration of candidacy and petition of a candidate, which is otherwise proper in every way, substantially complies with the requirements of Section 3513.07, Revised Code, where the notary public who administered the oath to the circulator of one part-petition inadvertently omitted to subscribe his handwritten signature to the jurat along side his printed name which he had stamped on the jurat, and inadvertently omitted to imprint his seal upon such jurat.

The pertinent language of Section 3513.07, Revised Code, reads as follows:

'The form of declaration of candidacy and petition of a person desiring to be * * * a candidate for election to an office * * * to be voted for at a primary election shall be substantially as follows: * * *' (Emphasis added.)

The candidates have performed every duty and act required of them by law. The circulator has performed every act and duty required of him by law. The notary performed every duty and act required of him by law except those admittedly inadvertent omissions.

The appellee makes no contention that the public policy or public interest requires more for substantial compliance than was done here. The appellee does not claim that any fraud or deception occurred in this case, or is likely to occur in the future by reason of such inadvertent omissions.

In his brief, the appellee asserts no logical or reasonable proposition, based upon a public purpose, public policy or public interest for invalidating this part-petition upon this technical ground. The appellee relies upon the case of State ex rel. Andrews v. Board of Elections of Medina County (1963), 175 Ohio St. 249, 193 N.E.2d 390, for his position.

The factual difference between the Andrews case and the instant case is that in Andrews there was no allegation nor any evidence that the part-petition which was challenged contained in the jurat (1) a date, (2) the name or any identification of a notary who might have administered the oath to the circulator of the petition, (3) the identification 'notary public,' (4) the 'limitations of jurisdiction' of a...