ILLEGAL EXPENDITURES BY CANDIDATE INVALIDATES HIS ELECTION.

Court of Appeals for Summit County.

#### James J. Baker v. Lewis D. Slusser.*

Decided, April 27, 1917.

*Elections—Construction of Section 29, Corrupt Practices Act—Election of Probate Judge Rendered Void by Violation of Said Act—Conviction Not Necessary for Invalidation of Election.*

1. The provision of the corrupt practices' act, which permits an. expenditure of five dollars for each one hundred votes cast in excess of five thousand at the last preceding state election, is not supplementary to the fixed maximum sums named earlier in the act as the amounts which may be expended by candidates for the several offices designated, and the expenditure by a candidate for probate judge of a sum in excess of five hundred dollars is in violation of that act.

*1982. A prior conviction under the corrupt' practices act is not requisite to a judgment invalidating the election of one shown to have been guilty of expending an unlawful amount of money in promoting his candidacy, but the fact of such violation itself renders the election void,, and a court will so declare.

*8. A. Decker,*for plaintiff in error.

*Musser, Kirnber & Huffman,*contra.

*

Reversing *Balter*v. *Slusser,*19 N.PJN.S.), 523.

*

Judgment of the Court of Appeals reversed and that of the Common Pleas affirmed by the Supreme Court without opinion, July 3, 1917.

Lieghuey, J.

Error to the court of common pleas.

At the August, 1916, primaries, defendant in error, Slusser, • was a candidate, with others, for the office of probate judge of said county. He received the highest number of votes and was declared to be the nominee.

Subsequently and within the required time, he filed his statement of expenditures with the deputy state supervisors of elections, showing an outlay of $746.47.

His name appeared upon the ballot used by the voters at the November, 1916, election as a candidate for probate judge, with others. At said election he received the highest number of votes. Subsequent to the election, but not within the required time, he filed his verified statement of expenses of said election with-the board of elections, showing an additional outlay of $251.09. Thereupon the board of elections declared him elected probate judge and issued to him a certificate of election. From this action of the board the plaintiff in error, as contestor, under favor of Sections 5148 to 5153, General Code, perfected an appeal to the common pleas court, with the object of contesting the election of defendant in error, the eontestee, upon the' claim that the amounts expended. by said eontestee aré in excess of the. amount allowed by law to be expended for the purpose of promoting and securing his election as probate judge, under Section 5175-29, General Code.

'The trial of the appeal in the common pleas court resulted in a dismissal thereof, from which judgment of dismissal error is prosecuted to this court. . '

It is claimed by the-contestor that the court below erred in the following particulars:

*1991st. In sustaining the claim of eontestee that the expenditure of said sums was not a violation of Section 5175-29, 'General Code.

2d. That under the provisions of the act itself a judgment to the effect that his election was invalidated could only be predicated upon a prior conviction under Section 13323-1, General Code. ...

.. Section 26 clearly has for its purpose the enumeration of the various things for which money may be expended by a candidate, directly or indirectly, in promoting his candidacy. Section 29 of the act, by .its express terms, refers to Section 26 and clearly has for its purpose the limitation of the amount which may be expended by a candidate directly or indirectly upon the matters and things enumerated in Section 26. Said Section 29 reads as follows: ‘

“The total amount expended by a candidate for a public office, voted for at an election, by the qualified electors of the state, or any political subdivision thereof, for any of the purposes specified in Section 26 of this act, for contributions to political committees, as that term is defined in Section 1 of this act, or for any purpose tending in any way, directly or indi- , rectly, to promote or aid in securing his - nomination and election, shall not exceed the amount specified herein; by a candidate for governor, the sum of five thousand dollars; by a candidate for other state elective offices the sum of two thousand five hundred dollars; by a candidate for the office of representative in Congress or presidential elector, judge of the court of appeals, the sum of two thousand dollars; by a candidate for the office of state senator, the sum of three hundred dollars in each county of his district; by a candidate for judge of common pleas, probate or insolvency court, the sum of five hundred dollars; by a candidate for the office of state representative the sum, of. three hundred and fifty dollars; by a candidate for any other "public office to be voted for by the qualified electors of a county,-city, town or village, or any part thereof, if the total number- of votes east therein for all candidates for the office -of governor at the last preceding state election, shall be five thousand or less, the sum of three hundred dollars. If the total number of votes cast therein at such last preceding state election .be in excess of five thousand, the sum of five dollars for'each one hundred in excess of such number may be added to the .amounts *200above specified. Any candidate for a public office who shall expend for the purpose above mentioned an amount in excess of the amounts herein specified shall be guilty of a corrupt practice.”

Certain public offices, state, district and county, are specifically mentioned and a limitation of the sum of money that may be expended by any candidate therefor placed opposite each. It is claimed, however, that although the sum fixed for a candidate for the office of probate judge is $500, that the provision permitting the expenditure of $5 per one hundred when the total vote was more than 5,000 at the last preceding state election, is supplementary to the specific provision. After offices and amounts are named, it will be noticed that the section reads “all candidates for any other public office to be voted for by the qualified electors of a county, city, town or village, etc.' ’ This language can convey no other meaning than it would if it had after the word “other” the words “than those above mentioned.”

Next it is claimed that the next to the last sentence of the section beginning with the word “if,” in view of the fact-that the word “amounts” is used, indicates that the intention of the Legislature was to permit the additional sum of $5 per hundred to be expended for election purposes over and above the sums specifically named. If this claimed construction is right, necessarily the sentence qualifies the entire preceding sentence. That method of calculating would permit a candidate for Governor to expend about $37,000; a candidate for this court over $10,-000; a candidate for secretary of state, a two-year term, about $35,000, which is several times his salary for the term; a candidate for common pleas judge in Cuyahoga county over $6,000. Can it be possible that the Legislature intended to put such sinews of war in the hands of a non-partisan judiciary for the purposes of political strife which would necessarily attend the expenditure thereof by the various candidates for judge? We think that this construction is in conflict with the apparent intention of the Legislature in enacting the corrupt practice act, viewed with reference to the trend of public sentiment of late years which eventuated in the enactment of the non-partisan judiciary laws.

*201We think the sentence of Section 29 last above referred, to qualifies only the language after the last semicolon and only those offices and the amounts that may be expended by candidates for those offices which have not been specifically mentioned and opposite which no specific amount has been fixed by the Legislature in the act. In short, we think that by law the. contestee was obliged to confine his expenditures at or below the sum of $500.

The act-was upon the statute books at all times while contestes promoted his candidacy. It was then the law of the state and he was obliged to observe its provisions. His attention was expressly called to the act a short time after, the primaries. He then prepares a brief and mails a copy to the voters seeking' to justify the violation. Can he be permitted to take advantage of his own wrong? He then proceeded to expend a further sum at the election in the promotion and furtherance of his candidacy. We regard the expenditure of the total sum of over $1,000 at the election before mentioned as constituting a viola- . tion of the corrupt practice act. ■ • '

It is urged, however, that even though the expenditure of this sum amounts to a violation of the corrupt practice act, it does not work an invalidation of his election, for the reason that Section 29 which he violated does not expressly provide that a violation of it invalidates the election; that Section 26 only provides for invalidation of the election for a violation of its pro-* visions.

It will be observed that Section 29 expressly refers to Section 26 of the act. Section 26 enumerates for what money may be spent. Section 29, expressly referring to Section 26, provides how much may be spent. Section 29 must be read with reference to Section 26. And one who admits expending a sum in excess of that amount permitted under Section 29 for the purposes expressed in Section 26, is guilty of corrupt practice, and under the provisions of Section 26, invalidates his election.

It is1 further urged that proceedings must be had under Section 13323-1, resulting in conviction of corrupt practice, as a condition precedent to the invalidation of the election therefor. *202We think that all claims made in respect to this assignment of error are completely answered in the case of *Prentiss*v. *Ditmer,*93 O. S., 314, at page 323, *et seq.*

This section, 'now a part of- the criminal code, was in fact Section 32 of the corrupt practice act, and; as stated in the opinion in *Prentiss*v. *Ditmer, supra,*the Legislature evidently intended to provide two distinct remedies. If a; candidate violates Section 29 in and about the promotion and furtherance of his candidacy and election, he thereby invalidates his election, and the remedy is a contest of the election, the proceedings had in the instant case. In this case it is admitted that over $1,000 was spent, and we.hold that that expenditure amounted to a corrupt practice on the part of the contestee; that the same invalidated his election; that he was not and is not the duly elected pz’obate judge of Summit county, Ohio; that under the circumstances in this case no prior conviction is necessary as a condition precedent to a judgment of invalidation of the election.

For the reasons given, said election is held to be invalid; that said contestee, Lewis D. Slusser, has no right and title to the office of probate judge, and a judgment of ouster is hereby entered. 'The costs are assessed against contestee, defendant in error.

Grant, J., and Carpenter, J., concur.