
    In re Special Election for Seven-Mill Operating Levy for the Gorham-Fayette Local School District.
    
      (No. 15959
    Decided July 18, 1969.)
    Common Pleas Court of Fulton County.
    
      Mr. Bichará B. McQuade, Jr., prosecuting attorney, for Board of Elections.
    
      Mr. Gloyce E. Storrs, for Board of Education.
   The Pacts

Ham, J.

The following facts are stipulated:

1. On June 17, 1969, a special election was held in the G-orham-Fayette Local School District, at which election there was submitted for approval or rejection a 7-mill operating levy for said district.

2. Said election resulted in 310 votes being cast in favor of, and 333 votes being cast against, said levy.

3. At least thirty-eight qualified electors in said school district appeared at the several polling places within the district but were denied the opportunity to vote because the supply of ballots was exhausted.

4. In the general election of November 8, 1966, the following numbers of votes were cast, in the precincts involved, for the office of governor:

Fayette Bast: O 03 H
Fayette West: H Cft H
Franklin Township: lO CO H
Gorham Township: rl C3 (M
Total votes east : N Oi

5. The Board of Elections of Fulton County ordered and received for use in the special election of June 17, 1969 for the precincts involved, ballots in the following amounts:

Fayette East: C3 H
Fayette West: t>-rH
Franklin Township: C3 t — i
Gorham Township: l>H
Absentee ballots: iO
Total Ballots: lO 05

No comparable figures for the general election of November 5, 1968, were furnished the court.

6. A petition signed by twenty-five electors who voted at the special election of June 17, 1969, and asking that said election be declared void and the results set aside, was timely filed. A preliminary hearing was held July 8, 1969, and a final hearing on July 21, 1969. Notice of the time and place of both said hearings was served upon the Fulton County Board of Elections and upon the Board of Education of Gorham-Fayette Local School District, and published in the Fayette Review, a newspaper published and of general circulation within the school district involved.

The Law

The question before the court is whether the failure to furnish sufficient ballots so that all qualified electors who desired to vote could do so nullifies the election. This court concludes that it does.

“The ballots, with the stubs attached, shall be bound into tablets for each precinct, which tablets shall contain at least ten per cent more ballots than there were votes cast for the office of governor in such precinct at the last preceding general election. * * *” Section 3505.11, Revised Code.

“As used in the sections of the Eevised Code relating to elections:

“(A) ‘General election’ means any election held on the first Tuesday after the first Monday in November.” Section 3501.01, Eevised Code.

The predecessor to Section 3505.11, Eevised Code, which is unchanged in its present form, was enacted in 1929 and became effective January 1,1930. Section 4785-111, General Code, 113 Laws of Ohio 307, 358. At that time, the term of office of the Governor of Ohio was two years. In 1954, the term of office of the Governor was extended from two to four years. Ohio Constitution, Art. Ill, Sec. 2; Art. XVII, Sec. 2.

The last preceding general election at which any votes were cast for the office of governor was held November 8, 1966. Obviously, which was not “the last preceding general election,” inasmuch as a presidential election was held November 5,1968.

Confronted by this apparent inconsistency in the language of the statutes, the court is constrained to adopt a construction which comports with the manifest intention of the legislature, and which, if at all possible, sustains the statutes in question A construction consonant with both the spirit and intent of the statute would read into the provisions of Section 3505.11, Eevised Code, the words: “* * * the last preceding general election for the office of governor * * *” or words of similar import.

Construing the statutory language thus would then fasten the court’s attention upon the statistics of the general election of Novemer 8,1966, and the conclusion inevitably follows that the numbers of ballots furnished each precinct fell short of the statutorily required minimum.

But assuming the adoption of a different construction or another election date as a standard, so the court might find that the statute had been followed, it seems to me that this ease presents a question of constitutional proportions, far transcending questions of statutory compliance.

The Constitution of Ohio, Article V, Section 1, provides in pertinent part:

Sec. 1. "Who may vote. Every citizen of the United States of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the connty, township, or ward, in which he resides, snch times as may be provided by law, shall have the qualifications of an elector, and he entitled to vote at all elections(Emphasis added.)

The Constitution is the supreme law, written by the supreme power of the state, the people themselves. It must be interpreted and given effect as the paramount law of the land, equally obligatory upon all departments of the government and individual citizens. 1 Ohio Jurisprudence 2d, page 175, Section 89.

The Board of Elections defends on the basis that it acted upon the advice of its chief election officer, the Secretary of State of Ohio. No evidence has been proffered, no suggestion has been made, that the members of the Board of Elections acted other than in the best of faith. But bona tides is not the test. No individual, no government officer or body, by executive fiat or legislative enactment, can disfranchise a constitutionally qualified elector. The Constitution does not impose upon an elector the burden of rushing to the polls before the ballots are all gone, lest he lose his entitlement to vote.

Thirty-eight constitutionally qualified electors presented themselves seasonably at their proper precincts and were denied the privilege of voting. Why they were refused or how they would have voted is of no moment. They were unconstitutionally disfranchised.

For the reasons given, the court finds that the special election held in the Gorham-Fayette Local School District on June 17, 1969, is void, and the results of the same are hereby set aside, at the cost of Fulton County. Bond discharged.

Judgment for petitioners.  