State Ex Rel. Wiethe v. Board of Elections

[90] Per Curiam. The first of these actions seeks a writ of mandamus and the second seeks a mandatory injunction to compel the Board of Elections of Hamilton County and its members to place the name of the relator on the ballot as a candidate for member of the central committee of the Democratic Party at the primary election to be held on May 4, 1954. The Common Pleas Court found on the issues raised in favor of the respondents, and entered judgments in their favor. These appeals on questions of law are from those judgments. While disavowing any purpose to charge actual or moral fraud, the issue of technical, legal, or constructive fraud was raised in the trial court and was argued here. We are of the opinion that the record contains no evidence of fraud of any kind. As we view the record, it presents the sole issue of whether the respondents failed in the performance of an act which the law specially enjoined upon them, resulting from the office of the Board of Elections of Hamilton County, Ohio. Relator’s counsel has furnished the court with a copy of the opinion of Judge Weber, which he handed down in deciding the mandamus action. While disagreeing with the conclusion reached, relator’s counsel commended it as an “ excellently considered opinion. ’ ’ We commend counsel’s frankness and concur in his appraisal. We are content to affirm these judgments on the reasoning and authorities contained in Judge Weber’s opinion. There is no doubt that the board of elections would be derelict in its duty if it placed the names of all declarants on the ballot without passing upon their sufficiency as a matter of law. The board must, under the statute, determine that the declaration is sufficient before placing the declarant’s name on the ballot. [91] Of course, one of the essentials of a valid declaration is a correct, unambiguous description of the office sought. A comparison of the form furnished by the Secretary of State with the statute, discloses that it follows closely the language of the statute (Section 3513.07, Revised Code), particularly where it approaches the blank space for the insertion necessary "o complete the title to the office. Precise instructions were found in the footnote as to the title to be inserted. An examination of the declaration of the relator discloses that it is either a declaration for a nonexisting office or an ambiguous declaration for one or another of two offices, or both. This uncertainty relates to the unit of representation which is of the essence of the description. Under such circumstances, we believe it cannot be said that this declaration is free of defects or that it substantially complies with the law. And, for the same reason, it cannot be said that the respondents abused their discretion or failed in the performance of a duty specially enjoined by law in rejecting the declaration. For these reasons, the judgments are affirmed. Judgments affirmed. Matthews, P. J., and Hildebrant, J., concur. (No. 7878 — Decided April 8, 1954.)