
    The State, ex rel. Allen, v. Board of Elections of Lake County et al.
    (No. 38222
    Decided October 15, 1959.)
    
      Mr. Robert A. Clair, Mr. E. W. Masirangelo and Mr. Nelson Lancione, for relator.
    
      Mr. Edward R. Ostrander, prosecuting attorney, and Mr. John F. Clair, Jr., for respondents.
   Per Curiam.

The issue presented by this case is whether relator’s act resulted in making his nominating petition insufficient and, if so, whether such insufficiency could be cured after the filing date.

In the first paragraph of the syllabus of State, ex rel. Reed, v. Malrick et al., Board of Elections of Pike County, 165 Ohio St., 483, 137 N. E. (2d), 560, this court said:

“Where, under the provisions of Section 3513.261, Revised Code, requiring that, in order to validate nominating petitions of candidates for public office, the circulator of any such petition must make an affidavit, before an officer authorized by law to administer an oath, to the effect that the signatures to such petition were written in the circulator’s presence and are the signatures of the persons whose signatures they purport to be, the candidate named in such petition acts as a notary public in administering the oath as to such affidavit, the affidavit is insufficient and by reason of such insufficiency the petition is invalid.”

We completely fail to comprehend a rationale which would allow this court to find that a board of elections abused its discretion by following to the letter a prior ruling of this court in making a decision with respect to facts which are identical with those upon which this court’s ruling was based.

Relator contends, however, that, since the only requirement for a circulator’s affidavit appears in the statutory form and that the statute requires only that a nominating petition form shall be substantially the same as the statutory form, the circulator’s oath is not an essential part of the petition paper.

Substantial compliance does not contemplate complete omission. The statutory form, like any suggested statutory form, need not be followed absolutely as to its wording. The statute itself provides for only substantial compliance. However, as we have said, substantial compliance would not warrant complete omission of the jurat of the circulator. Such jurat is a vital and material part of the nominating petition paper, and its inclusion is a condition precedent to the acceptance and validation of a candidate’s nominating petition paper by a board of elections.

The final argument of relator is that, on the broad grounds of the overriding public policy of free and competitive elections, his petition should be held sufficient since after the hearing on the protests (after the filing date of the petition) new affidavits were filed by the circulators. His contention is that his act constituted a mere technical error which could be corrected even though the time for filing had passed.

It is seen that, by virtue of the Reed case, supra, the fact that a candidate takes .the acknowledgment of his circulator renders such acknowledgment insufficient and makes the petition paper void for the lack of a valid jurat.

In the fourth paragraph of the syllabus of Koehler v. Board of Elections of Butler County, 125 Ohio St., 251, 181 N. E., 107, this court said:

“4. When a declaration of candidacy or a petition is void under Sections 4785-70, 4785-71 or 4785-72, General Code, because of lack of subscription, oath or affirmation, it cannot be cured subsequent to the statutory date for filing the same, and the board of elections must reject such declaration or petition.”

From that it is apparent that the defect in the instant petition is incurable after the statutory filing date.

For the reasons set out herein, the writ of mandamus is denied.

Writ denied.

Weygandt, C. J., Zimmerman, Matthias, Bell, Herbert and Peck, JJ., concur.

Taft, J.,

dissenting. The form of circulator’s affidavit provided for by Section 3513.261, Revised Code, does indicate a legislative intent to require proof as to the name and address of the circulator of the petition, as to the number of signatures secured by such circulator on the petition, as to such circulator being a qualified elector of the state, as to such petition having been actually circulated by such elector, as to signatures on the petition having been written in his presence, and as to those signatures being the signatures of the persons whose signatures they purport to be. However, although that statute specifically states that ‘ ‘ each nominating petition shall contain a statement of candidacy which shall be subscribed and sworn to by the candidate,” there is nothing in that or any other statute as to the necessity of anyone signing or swearing to the circulator’s affidavit. Hence, it is apparent that the only purpose of that affidavit is to provide prima facie evidence of the facts stated in the authorized form of the affidavit. In other words, the presence of that form of circulator’s affidavit after the prescribed form of petition indicates only a legislative intention as to what facts must be proved and a legislative intention to authorize prima facie proof thereof by such an affidavit; and there is no statute that indicates by inference or otherwise that proof of such facts can be made only by such an affidavit. On at least three occasions, this court has recognized that proof of those facts can be supplied by other evidence even though furnished after the filing and after expiration of the time for filing of the petition.

Thus, in Sullivan v. State, ex rel. O’Connor, 125 Ohio St., 387, 181 N. E., 805, where the unanimous decision of this court in effect reversed a decision of a board of elections that had held a petition fatally defective, paragraph three of the syllabus reads so far as pertinent:

“ * * * petitioners having acknowledged and made the oath required, the failure of the officer who takes the acknowledgment and administers the oath to‘petitioners, to legibly sign his name and to print his name below his signature and to give his official designation as such officer, are technical defects which will not invalidate such petition. ’ ’

In the opinion at page 393 it is said:

<< * * * q>}ae faet that Buckenmyer’s name was not signed in a legible manner, and that he failed to note his official character, is not fatal, because it is unquestioned that he was in fact a notary public, and that he in fact administered the oath, and that he in fact signed his name thereto. The defects of execution must be held to be of that character which would be subject to amendment, upon the same principle that a return of a sheriff can be corrected to show the facts of proper service, if in fact proper service had been made.

‘ ‘ * * * In cases involving elections * * * the inquiry relates to what the candidate and his petitioners may have done, rather than to the technical manner of proving what they may have done or not have done. This case is wholly different from Koehler, Jr., v. Board of Elections of Butler County, ante, 251 * * *. In that case the issue was whether the candidate and his petitioners had done what the law required. It was shown that while it appeared on the face of the petitions that the law had been complied with, the evidence clearly disclosed that the parties had not so done. In this case it is exactly the reverse. The candidate and his petitioners have done all that the law requires, but there is a technical defect in the certificate of the notary. This should not be held to render the petition and the declaration void. ’ ’

In State, ex rel. Patton, v. Bazzell et al., Board of Elections of Lawrence County, 161 Ohio St., 344, 119 N. E. (2d), 278, a petition (notwithstanding the form specified in Section 3513.07, Revised Code, which was the applicable statute) did not (1) contain the name of the candidate (2) have a certificate that the signers thereof were members of any party or (3) state that the candidate wms a member of any party. This court approved a decision of a board of elections on a hearing on a protest against the candidacy which apparently permitted other proof of those matters as the basis for a determination that the petition was valid.

See also State, ex rel. Hanna, v. Lake County Board of Elections, ante, 9.

In Koehler, Jr., v. Board of Elections of Butler County, 125 Ohio St., 251, 181 N. E., 107, cited in the majority opinion, the defects involved were (1) the failure of a candidate to subscribe, swear to and acknowledge his declaration of candidacy (as specifically required by the applicable statute) and (2) the failure of electors who signed a petition for a candidate for member of a party controlling committee to subscribe and swear to or affirm the same (as specifically required by the applicable statute). In both instances, the applicable statutes expressly required such signing and swearing. There are no comparable words in any statute applicable in the instant case which expressly require the circulator of the kind of petition involved in the instant case to sign or swear to the authorized circulator’s affidavit.

In the instant case, the undisputed evidence before the board of elections (wholly apart from any affidavits notarized by the candidate) discloses that the circulators complied in every respect with all the legislative requirements that may be inferred from the authorized form of circulator’s affidavit specified in Section 3513.261, Revised Code. No such evidence was before the board of elections in State, ex rel. Reed, v. Malrick et al., Board of Elections of Pike County, 165 Ohio St., 483, 137 N. E. (2d), 560.  