
    The State, ex rel. Bloker, v. Gabel et al., Deputy State Supervisors of Elections. The State, ex rel. Diment, v. Gabel et al., Deputy State Supervisors of Elections.
    
      Elections — Members of county boards of education — Section j v £728-1, General Code — Petitions must comply with Code provisions for nomination of candidates — Sections 5000 to 5008, General Code — Another nominating petition filed to correct deficiencies — Later petition held to be amendment although not so designated.
    
    Petitions for nominations of candidates for members of the county board of education under favor of Section 4728-1, General Code, must comply with the pertinent provisions of chapter 7 of title XIV relating to nomination of candidates, and a failure to comply with Sections 5000, 5001, 5002 and 5003 of the General Code renders such petitions invalid, and the deputy state supervisors of elections may properly refuse to print upon the ballots the names of persons thus sought to be nominated.
    (Nos. 19364 and 19365
    Decided October 6, 1925.)
    In Mandamus.
    Both of these actions are original suits in mandamus in this court to compel the defendants, as deputy state supervisors of elections for San-dusky county, Ohio, to place the names of plaintiffs upon the official ballot in Sandusky county as candidates for positions as members of the county board of education of that county, to be voted upon at the general election to be held on November 3, 1925. Tbe petitions in both cases allege that nominating petitions were filed, duly signed by a sufficient number of qualified electors, such petitions being in all respects in conformity with Section 4728-1, General Code, as amended 109 Ohio Laws, 242; that protests were filed challenging the sufficiency of such petitions and after a full hearing before the board of elections that board ruled that the petitions were insufficient, and refused to order the names printed upon the ballots. The board of elections found that both petitions were deficient, in that the signers to the nomination! papers did not insert therein the names and addresses of persons as a committee to fill vacancies caused by death or withdrawal, as required 'by 'Section 5000, General Code.
    The board of elections further found, relative to the nominating petition of the relator Lloyd Diment, that the nominating petitions on his behalf failed to comply with Sections 5001, 5002 and 5003, and that they were deficient in other respects.
    It is admitted in the petition filed in this court that neither of the nominating petitions complied with Section 5000, and it is also admitted that the nominating petition of Diment did not comply with Sections 5001, 5002, and 5003, General Code.
    The case was heard upon a demurrer to the petition.
    
      Mr. H. |G. De Ran, for relators.
    
      Mr. Geo., C. Sheffler, prosecuting attorney, and Mr. A. V. Baumann, for defendants.
   Marshall, C. J.

Inasmuch as both cases involve the element of the necessity of compliance with Section 5000 of the General Code, we will first dispose of that proposition. This feature of the case, and the question of compliance with Sections 5001, 5002, and 5003, as well, turns upon the proper interpretation of other sections of the Code. It is conceded that Section 4728-1, General Oode, is the one. which makes provision for nomination of candidates for the county board of education. That section reads:

“Candidates for members of the county board of education shall be nominated by petition. Shell nomination papers shall be signed by petitioners, who shall be qualified electors residing in the county school district, not less in number than one per cent, of the electors voting at the last preceding election for members of local boards of education in the districts within the county school district; provided, however, that in no case shall the number of petitioners be fewer than twenty-five. The election for members of the county board of education shall be conducted in the same manner as are elections for other boards of education except as herein otherwise provided, and the returns thereof made to the board of deputy state supervisors of elections of the county, who shall canvass, the same and issue a certificate of election to each member so elected.”

It is contended by relators that above section is complete and that no other section need be looked to to find authority for making nominations for such offices. In support of this view, we are cited to Section 4951-1, a supplementary section to Section 4951, enacted at a recent session of the Legislature, 110 Ohio Laws, 144, which reads as follows:

“The provisions of this chapter shall not extend nor he applicable to the nomination of candidates for boards of education.”

It is claimed by relators that this section makes it unnecessary to look to Sections 5000, 5001, 5002 and 5003, General C!ode.

It will be observed that the foregoing supplementary section only places a limitation upon “this chapter,” and the chapter referred to must necessarily be the chapter in which Section 4951 is found. Section 4951 is found in chapter 6 of title XIV of the General Code, relating to “public elections,” and chapter 6 contains Code Sections 4948 to 4991-1, both inclusive. It is contended by relators, that, notwithstanding this plain limitation to chapter 6 of title XIV, it was intended by the Legislature to exclude all statutes of the state except (Section 4728-1, General Code. It is further found that (Section 4728-1, General Code, is not contained in title XTV, relating to public elections., but is found in title XIII relating to “public school districts.” And chapter 6 of title XIV relates to “primary elections.” It therefore seems more reasonable to adopt the view that the Legislature intended that no candidates for board of education should be nominated at a primary election. It requires no strained interpretation or unusual meaning to be given to words to reach this conclusion, because this is in accord with the plain language of the amendment. Having removed boards of education from primary elections, it necessarily remained that nominations must be made by the only other course available, to-wit, by petition, and this subject comes clearly within the provisions of chapter 7 of title XIV.

The authority for filing nomination petitions for members of the county board of education is found in Section 4728-1, G-eneral 'Oode, but that section makes no provision for the machinery of preparing and filing such petitions; neither does that section make any limitation upon other sections, and it' must therefore be concluded that that section is in pari materia with other sections pertaining to the same subject-matter, found in chapter 7 of title XIV. There is nothing inconsistent between them, but on the contrary the sections found in chapter 7 are supplementary and regulate the mode and manner of filing the petitions and of providing the necessary formalities to safeguard against fraud. Manifestly it is just as important that some provision be made for filling vacancies for the board of education on the ballot after the time for making nominations has closed as it is that such action be taken in regard to any other office, where nominations may be made either at the primary or by petition. The language of Sections 5000, 5001, 5002 and 5003 is in general terms, and must be held to have application to all nominating petitions. If these regulations apply, they may not be disregarded.

Having found that they apply, and having further found, by the admissions of counsel, that they have been disregarded, we are of the opinion that the board of elections did not err in excluding the petitions and in refusing to print the names of relators upon the ballots.

It is not quite clear from the petition and the admissions of counsel to what extent the nominating petitions were deficient, as measured by Sections 5001, 5002, and 5003, but having found that they were clearly defective in having failed to comply with Section 5000, General Code, it is unnecessary to discuss the facts relating to the later sections.

The demurrers, to the petitions will therefore be sustained in both cases, and leave given to amend if desired.

Demurrers sustained.

J ones, Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.

Additional Opinion.

(October 20, 1925.)

Marshall, C. J.

The demurrer to the original petition in this cause having been sustained, and leave having been given to file an amended petition, an answer was filed to the amended petition, and the cause further heard upon the amended petition, the answer, and the stipulation of facts. By the further pleadings in the cause, it appears that, after the board of elections had ruled the nominating petition of the relator to be insufficient, and within the time limited therefor by Section 5010, General Code, the relator filed another nominating petition, designed to correct the insufficiencies of the one first filed, and it is admitted that in form said petition met all the requirements of the statute, including a committee, as required by Section 5000 of tbe General Code. There was nothing upon the petition itself to indicate that it was an amendment of the former petition, and the board of elections ruled that it was not a compliance with ¡Section 5010, General Oode, because it was not designated as an amended petition; that it should be treated as an original petition, and was therefore insufficient, because it was not filed within the time limited for the filing of original petitions. It appears, however, that the petition was signed by each and every one of the 62 persons who had signed the original petition, and that it was also signed by more than 62 additional electors. If the petition shall be held to be an amendment of the original petition, and properly to be considered as such, it is admitted that Section 5010 is authority for filing such amendment, and that it was filed in time. The objection that it was not tendered as an amended petition, and that there was nothing on the petition itself to indicate that it was an amendment rather than an original petition, seems to be purely technical. The fact that the original petition had been before the board of elections for its consideration, that the second petition was signed by all of the same persons who had signed the original petition, and that both petitions were all the time on file with the board of elections, must be held to be sufficient notice that the second petition was filed by way of correction of the first, and that it was submitted as an amendment thereto, even though nothing appears upon the second petition to indicate that fact, and even though nothing was said by the person who tendered the second petition to the hoard of elections. We' have therefore reached the conclusion that the petition was properly amended and within the time limited for a corrected certificate, and judgment must therefore he awarded in favor of the relator.

Writ allowed.

Jones, Matthias, Day, Allen and Kinkade, JJ., concur.  