#### The State, ex rel. Burgstaller, *v.*Franklin County Board of Elections (Twenty nine other causes.  )

(No. 31352).

(Decided March 10, 1948.)

*194
      *Mr. Arthur L. Rowe, Mr. Stanley Schwartz*and *Mr. Warren A. Smith,*for relator.

*Mr. Ralph J. Bartlett,*prosecuting attorney, *Mr. William C. Bryant,*assistant prosecuting attorney, and *Messrs. Alexander, Ebinger & Wenger,*for respondent.

By The Court.

It is alleged, as grounds for the issuance of the writ, that the refusal of the board to place relator’s name on the primary ballot constituted a failure to perform an official duty; that the action of the board was “arbitrary, illegal and an abuse of discretion, and without authority of law; and * * * relator has no adequate remedy at law.” The relator does not allege fraud or corruption on the part .of the board.

Where a candidate files more than one petition form at the same time and the petition forms in the aggregate contain more than five names, has the candidate complied with Section 4785-70, General Code (122 Ohio Laws,-), effective January 2, 1948, which provides *195the manner a candidate at a primary election for state central or county central committeeman can and must qualify?

The pertinent part of Section 4785-70, General Code, provides as follows:

> “Provided, however, that a petition filed with a declaration of candidacy of a candidate for election as a member of the state central committee or the county central committee of a political party shall be signed by five, but not more than five, qualified electors ■ of the district, county, ward, township or precinct within which electors may vote for such candidate. The electors signing such petition shall be members of the same political party as the political party of which the candidate is a member. They shall sign such petition in the presence of a notary public or other official authorized by law to administer oaths, and such official shall certify thereon that each of such signatures was placed thereon in his presence.”

That section prescribes clearly that such a petition ‘ ‘ shall be signed by five, but not more than five, qualified electors.” For certain offices the General Assembly has allowed a latitude between the minimum number of signatures required and the maximum number permitted, but with regard to state central or county central committeeman, the General Assembly has clearly expressed its intent that such a petition “shall be signed by five, but not more than five, qualified electors.”

The fact that the signatures were on more than one petition form does not affect the issue. All petition forms filed by a candidate are regarded as his petition, whether such petition consists of' one or more than one form. Otherwise, in some instances, where a minimum of 1,000 signatures is required, it would be impossible for a candidate to file one petition form containing the minimum number of signatures because *196the official petition form issued by the Secretary of State provides blank spaces for a maximum of only 25 signatures. Considering, as we must, the two petition forms in the instant case as one petition, it contains more than the statutory maximum of five signatures, and the board, on discovering that fact, rejected the relator’s petition and declaration of candidacy.

However, the relator contends that the board should have selected one of his petition forms and regarded the other as surplusage. The burden of complying with the statute rests on the candidate, and it is his ■duty to decide oh which of several filed petition forms he will stand. Such duty and responsibility cannot be shifted to the board.

With respect to hearings before the board after a protest has been filed against the candidacy of any person filing a declaration of candidacy, Section 4785-70, General Code, provides that the determination of the board “-shall be final.”

In the case of *Sullivan*v. *State, ex rel. O’Connor,*125 Ohio St., 387, 181 N. E., 805, it is stated in the opinion:

> *1 ‘*Through a long line of cases decided by this court it has become the settled principle that elections belong to the political branch of the government, and that therefore they are not *per se*the subject of judicial cognizance, and they have repeatedly been held to be matters for political regulation. * * *

> “By the repeated declarations of this court, allegations of fraud, corruption, or abuse of discretion must be specific. *State, ex rel.,*v. *Eidgenoss, supra*[108 Ohio St., 493, 141 N. E., 277]; *State, ex rel. Maxwell, Pros. Atty.,*v. *Schneider,*103 Ohio St., 492, 134 N. E., 443. It has further been declared repeatedly that notwithstanding the decision of the board is declared to be final, it may nevertheless be reviewed if procured by fraud or corruption, or where there has been a *197flagrant misinterpretation of a statute, or a clear disregard of legal provisions applicable thereto.” See, also, *State, ex rel. Columbus Blank Book Mfg. Co.,*v. *Ayres, Aud.,*142 Ohio St., 216, 51 N. E. (2d), 636; *Koehler*v. *Board of Elections,*125 Ohio St., 251, 181 N. E., 107.

Section 12283, General Code, provides as follows:

> “Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. ”

There is no claim of fraud or corruption 'in this case, and the only possible basis for judicial intervention would be that the board flagrantly misinterpreted the statute, .or clearly disregarded an applicable legal provision. In our opinion, the board took cognizance of the applicable statute and did not disregard it, but, on the contrary, construed and applied it in accordance with its natural and fundamental meaning, thereby fully performing the act which the law specially enjoins as its duty.

We hold, therefore, that because the relator has not established a clear, legal right to the issuance of a writ of mandamus, the demurrer is sustained and the writ denied.

*Writ denied.*

Turner, Matthias, Zimmerman, Sohngen and Stewart, JJ., concur.

Weygandt, C. J., and Hart, J., dissent.

Turner, J.

concurring. While I concur in the *ger curiam*opinion in this case, I believe that the purpose and necessity of the law governing these cases should be dwelled upon more fully.

What the thirty relators urge us to do here is to *198exercise the legislative function in at least three instances, to wit:

1. To amend Section 4785-70, General Code, by reading out of that section the words, “but not more than five. ”

2. By disregarding the further provision of that section that the determination of the board of elections on a protest shall be final.

3. By enlarging the statutory definition of mandamus.

It is axiomatic that this court has no legislative power and we should not do indirectly what we have not the power to do directly. Whether we like the law is immaterial; legislative policy is .a matter solely for the General Assembly.

In order to curb \the encroachment by the courts in the fields of legislation and policy, the Constitution now provides in Section 2, Article IY, in part, as follows :

> “No law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the Court of Appeals declaring a law unconstitutional and void.” ‘

When we are called upon to interpret the mandate of the legislative branch of the government which provides that the decision of a particular board or authority shall be final, we have no right to attempt to set aside a decision made by a board of elections where fraud or gross irregularity has not intervened. This is particularly true where a purely political question is involved.

When it is claimed that compliance with a law is not required for the reason that the provisions of such law are merely directory and not mandatory, we should first find out why the particular law was enacted.

*199The asserted right or power of a court to say that the plain language of an act of the General Assembly is merely directory and that rights may be acquired under such “directory” law, in disregard of the letter thereof, is to flaunt the law and make mockery of our boast that the courts do not legislate.

Our first step in statutory interpretation is to find out, if we can, the purpose of the enactment — what did the General Assembly seek to accomplish by such legislation?

Prior to its repeal, effective January 2, 1948, former Section 4785-70, General Code, provided for a minimum number of signatures on the petitions of candidates to be nominated or elected to various offices. There were no máximums fixed by the old law. The principal change made by the present law (Section 4785-70, General Code, effective January 2, 1948) was to fix a maximum number of signatures which might be submitted to the various election authorities.

We take judicial notice of the fact that in the even-numbered years, prior ..to the repeal of former Section 4785-70, General Code, there might be and usually were filed with the boards of elections (and Secretary of State, who forwarded the various petitions filed with him to the several boards of elections) so many signatures that it made the investigation of such petitions a farce and seriously impeded the work of the boards of elections.

When we stop to think of the number of precincts in each county and of the total in the state (at the last state-wide election, 9,067 precincts), with two political parties selecting their central committees, which may be done either by wards or precincts as the controlling party committee decides, it will be seen that such procedure tended to make impractical and impossible the canvassing of such petitions to determine , that they *200were signed by qualified electors of the two parties, especially when considered in connection with the further duties of the boards that are to be completed within six days (Section 4785-70, General Code). Unless such investigation can be made, there is a possibility of fraud, nay, an invitation to fraud, by which unscrupulous persons may defeat or confuse our two-party management.

In addition to the foregoing, the county central committees of each party must certify to the respective boards of elections, not less than 100 days before the primary in even-numbered years, their respective apportionments of the number of delegates and alternates to be chosen in each ward and township in the county for the respective state conventions.

It is provided in Section 4785-74, General Code, as follows:

> “All laws governing the nomination of persons as candidates at primary elections shall govern the election of persons as delegates or alternates to state conventions, as herein provided for, in the same manner as though the person seeking election as such delegate or alternate were a person seeking a nomination at a primary election.”

This means that declarations of candidacies and petitions in support thereof must be filed with the board of elections within the same limit of time as provided for other candidacies. Then we must consider also the duties of the board in connection with the delegates to the national conventions of the two parties. (Section 4785-80, General Code.)

On top of these very substantial and very important duties pertaining to party organization comes the examination by the board of the numerous petitions for Governor, Lieutenant Governor, Secretary of State, Attorney General, Auditor of State this year, members of Congress, including the senate and house, *201judges, state-wide, district and county, members of the state Senate and House of Representatives as well as the various county offices.

Then we must look to the time schedule within which the board of elections must act. r

Section 4785-70, General Code, provides in part:

> “All petition papers so transmitted to a board of elections, and all petitions accompanying declarations of candidacy filed with such board shall, under proper regulations, be open to public inspection until 6:30 p. m. of the eighty-fifth day before the day of the next primary election. Each board shall, not later than the eighty-fourth day before the day of such primary election examine and determine the validity or invalidity of the signatures on the petition papers so transmitted to, or filed with it and shall return to the Secretary of State all petition papers transmitted to it by the Secretary of State, as hereinabove provided for, together with its certification of its determination as to the validity or invalidity of signatures thereon, and shall return to each other board of elections all petition papers transmitted to it by such board, as hereinabove provided for, together with its certification of its determination as to the validity or invalidity of the signatures thereon.

> “Protests against the candidacy of any person filing a declaration of candidacy for party nomination or for election to an office or position, as herein provided for, may be filed by any qualified elector who is a member of the same political party as the candidate, or by the controlling committee of such party. Such protest must be in writing, and must be filed not later than 6:30 p. m. of the eightieth day before the day of the primary election. Such protest shall be filed with the election officials with whom the declaration of candidacy and petition was filed.”

*202Bearing in mind that the petitions and declarations of candidacy are to he filed not later than ninety days prior to the primary election, the board of elections has but sis days in which to make the examination of the declarations of candidacy and the petitions for all of the various candidates to be voted on at the 1948 and following primary state elections, is there any wonder then that the General Assembly saw fit to limit the number of signatures that might accompany any petition?

The provision of the present law in respect of the petition filed with the declaration of candidacy of a candidate for election as a member of the state central committee or the county central committee of a political party is that such petition “shall be signed by five, but not more than five, qualified electors of the district, county, ward, township or precinct within which electors may vote for such candidate.” (Section 4785-70, General Code.)

It is hardly necessary to point out that, in the present state of public affairs, only members of the respective political parties shall be permitted to vote for candidates for the party-controlling organization. This is shown by the further provision of present Section 4785-70, General Code, that: “they [signers] shall sign such petition in the presence of a notary public or other official authorized by law to administer oaths, and such official shall certify-thereon that each of such signatures was placed thereon in his presence.”

The relators did not comply with the law but filed more than five signatures. They claim and it is admitted that there were but five signatures on each of more than one petition which were simultaneously filed with the board of elections. The board of elections has no duty to pick out one of such petitions and to discard the others.

A wrong approach to the solution of the question *203has been made by relators. Instead of recognizing that the only right they have to become candidates is to follow a duly enacted statute, they have assumed that unless they are forbidden in so many words to file more than one petition they may do so. In their brief they say :

> “ * * * but the board is not prohibited from receiving and filing a petition signed by more than five electors, and there is no express provision as to the effect that more than five signatures shall have as to such declaration of candidacy.”

That is a wrong interpretation of the law.

Because the General Assembly did not prohibit the board from receiving and filing su,ch petitions, this court is asked to issue a writ of mandamus requiring the board to approve the'petitions as filed.

Section 12283, General Code, defining mandamus has been quoted in the *per curiam*opinion. We are asked to disregard or widen that definition. There is no duty enjoined upon the board of elections to accept more than one petition or to select one of more than, one petitions. On the contrary, when the entire election laws are examined one is persuaded that the dear legal duty specially enjoined upon the board of elections is to refuse to accept such petitions.

Relators attempt an argument based upon the finding by the board that the petition and declaration of candidacy of each of the relators was insufficient for the reason that each was signed by more than five electors, contrary to Section 4785-70, General Code. It is asked how the several petitions of the respective candidates can be insufficient when they have more than sufficient signatures. The General Code answers that question. Section 4785-13, paragraph k, General Code, provides the board’s duty “to review, examine and certify the sufficiency and validity of petitions and nomination papers. ’ ’ The sufficiency referred to in the *204foregoing section is the legal sufficiency and not mere numbers. However, if the foregoing is not sufficient answer, we turn to Section 4785-80, General Code,, which provides in part as follows:

> “Primary election ballots shall contain the names-of all persons whose declarations of candidacy and petitions *have been determined, to be valid.”*(Italics ours.)

The board of elections has not determined any one of the declarations of candidacy and petitions to be valid and this court should not in the absence of an allegation and proof of fraud or gross irregularity substitute its judgment for the determination of the-duly authorized authority.

In paragraph two of the syllabus in the case of *Sullivan*v. *State, ex rel. O’Connor,*125 Ohio St., 387, 181 N. E., 805, it was held in respect of challenges of candidacies made in a case with facts analogous to-those of the instant case, as follows:

> “The question is one of political cognizance, and it is the duty of tbo board of elections to conduct a hearing upon such issue, upon notice to parties interested. By virtue of Section 4785-78 the determination of the-board, in the absence of fraud or corruption, is final and is not subject to judicial review.”

The mandatory character of laws pertaining to declarations of candidacy and petitions for primary elections is illustrated by the case of *Koehler, Jr.,*v. *Board of Elections of Butler County,*125 Ohio St., 251,. 181 N. E., 107.

The mandatory character of the election laws is further illustrated in the case of *State, ex rel. Raines,*v. *Tobin et al., Board of Elections of Summit County,*138 Ohio St., 468, 35 N. E. (2d), 779, in which the *per curiam*opinion is as follows:

> “Appellant filed with the Board of Elections of Summit county his declaration of candidacy for nomi*205nation as member of tbe council of Akron at the primary election to be held on August 12, 1941. He accompanied his declaration with the requisite fee and a petition signed by the required number of electors.

> “The board of elections rejected the declaration of candidacy for the sole reason that appellant had not signed and subscribed his name in the blank space at the end of the declaration in substantial conformity with the requirements of Section 4785-71, General Code. The appellant had signed his name when subscribing to and acknowledging the declaration before a notary public.

> “Appellant sought a writ of mandamus in the Court of Appeals to compel the board of elections to print his name on the primary ballot. The cause was heard upon a petition, an answer and a stipulation of facts-which recited that the sole question for determination was the sufficiency of the declaration of candidacy and that there had been a compliance with all other requisite matters. The Court of Appeals, one judge dissenting, denied a writ of mandamus, holding that the defect in the declaration was not merely technical.

> “No duty being specially enjoined by law upon the board of elections to place the name of appellant upon the ballot in the absence of a proper declaration of candidacy, the judgment of the ■ Court of Appeals, denying a writ of mandamus, is affirmed.” The decision received unanimous approval of all participating judges.

In the still more recent case of *Williams*v. O’Neill, 142 Ohio St., 467, 52 N. E. (2d), 858, it was held:

> “An election contest is a political and not a judicial matter, and under Section 21, Article II of the Constitution of Ohio, the General Assembly is empowered to ‘determine, by law, before what authority, and in what manner the trial of contested elections shall be-conducted.’ *(Foraker*v. *Perry Twp. Rural Bd. of*
>       *206
>       *Edn.,*130 Ohio St., 243, 199 N. E., 74, approved and followed.)”

When the General Assembly, in enacting present Section 4785-70, General Code, made the following provision: “provided, however, that a petition filed with a declaration of candidacy of a candidate for election as a member of the state central committee or the county central committee of a political party shall be signed by five, but not more than five, qualified electors of the district, county, ward, township or precinct within which electors may vote for such candidate. The electors signing such petition shall be members of the same political party as the political party of which the candidate is a member. They shall sign such petition in the presence' of a notary public or other official authorized by law to administer oaths, and such official shall certify thereon that each of such signatures was placed thereon in his presence, ’ ’ there was prescribed the only method of becoming a candidate as a member of the state central committee or the county central committee of a political party. The fact that a definite number- of signatures was required in the case of candidates for membership of the state central and county central committees was a matter of concern to the General Assembly only.

The General Assembly inserted in Section 4785-70, General Code, the following:

> “If they [board of elections] find that such candidate * * * has not fully complied with the law relating to primary elections, his declaration of candidacy and petition shall be determined to be invalid and shall be rejected, otherwise it shall be determined to be valid. Such determination shall be final.”

Former Section 4785-78, General Code, which provided the former procedure in respect of protests, contained the phrase, “but no declaration of candidacy phaH be rejected for mere technical defects,” was re*207pealed by the last session of the General Assembly in Amended Substitute Senate Bill No: 109 and the quoted provision was not re-enacted.

Section 4785-70, General Code, is an enabling provision without which one may not become a candidate and does not admit of any qualification or extension whatever.

The respective demurrers are properly sustained.

The limitation of time requires these cases to be decided promptly. If I had more time I could perhaps have written a shorter concurrence.

Weygandt, C. J.,

dissenting. The simple and controlling question of law here involved is whether the new provisions of Section 4785-70, General Code, are mandatory or directory with reference to the maximum number of signatures that may appear on the petition of a candidate for election as a member of the state or county central committee of a political party.

First, it is important to observe that the sole reason for the rejection of the relators’ petitions by the respondent board of elections was that they are “insufficient” for the reason that they contain *too man*signatures. The accepted synonyms for “insufficient” are such words as “deficient,” “lacking,” “scanty” and “inadequate.” Hence, on the conceded facts if is obvious that there was no basis whatsoever for the finding that the petitions are insufficient or lacking in signatures.

But if a petition can somehow be considered as containing insufficient signatures because it contains to© many, there is no apparent reason for holding that the statutory maximum is mandatory. Counsel say that in their research they have been unable to find another instance of a similar statute in which the minimum and the maximum are the same. In Ohio the provision relating to petitions for state-wide candidacies fixes a *208minimum of one thousand signatures and a maximum of five thousand — a leeway of four thousand. As to district candidacies the minimum is one hundred and the maximum is five hundred — a difference of four hundred; and the same figures apply to county-wide candidacies. As to candidacies within a subdivision smaller than a county the minimum is five and the maximum is twenty-five — a difference of twenty. Thus in all these instances the maximum is five times as large as the minimum; and only in the case of a candidacy for state or county central committeeman are the minimum and the maximum the same.

Furthermore, it is significant that as to state-wide, district, county-wide and subdivision candidacies it is expressly provided that if the maximum be exceeded such petition *shall not be accepted or filed,*but there is *no*similar provision relating to candidacies for state ■or county central committeeman. Hence, this court is asked to step out of character and judicially legislate into the statute a provision which the General Assembly itself did not see fit to place there.

Finally, it is urged that the maximum of five must by inference be held mandatory because the General Assembly probably wished to reduce the amount of work required of the boards of elections. However, it would seem that precisely the same result would be obtained by holding this maximum directory and allowing boards of elections to simply disregard excess signatures as mere surplusage. Such a liberal construction would have the double advantage of avoiding the harsh result inherent in a provision allowing no latitude whatsoever, and, furthermore, would facilitate rather than thwart the elective process so important in a democracy.

Hart, J.,

dissenting. In my opinion the forms filed with the board of elections of Franklin county by each *209of the relators aie separate and independent petitions. This is indicated by the specific statutory provisions relating exclusively to nominating petitions to be filed by candidates for state central committeeman or county central committeeman of a political party. All the electors signing such a petition must do so in the presence of a notary public or other officer authorized by law to administer oaths, but all other nominating petitions may be acknowledged by only the circulators. Section 4785-70, G-eneral Code. The fact that the statutes further provide for the consolidation of petition papers into a single petition in cases of candidates whose candidacy is county-wide or wider, and do not make provision for a consolidation of petitions in cases of candidacies for state central committeeman or county central committeeman of a political party' argues strongly that in the latter case the petition papers, if more than one are filed, are not to be consolidated but are to be considered as separate petitions.

There is no statutory prohibition against a candidate for state central committeeman or for county central committeeman from filing petitions the aggregate of the signatures on which is more than the maximum number permitted by statute as there is in the case of candidates for other primary elections. Therefore, there is no statute violated by a candidate for a state or county central committeeman who files more than one petition, each of which contains the signatures of five electors. There is no statutory provision which requires or permits the board of elections to refuse to receive them as there is in the case of candidacies for other primary elections.

If a protest is filed, the board of elections is required to determine whether such petition or petitions fully comply with the law. And the board in determining the sufficiency of such petitions may reject only those which do not comply with the law, and if the board *210finds that a petition complies with tEe law, it must be held to be valid. Section 4785-70, General Code.

What then, is the duty of the board of elections as to such petitions? It is suggested that if more than one petition form is filed by any single candidate for state or county central committeeman, the board is not authorized or required to select any one of those petition forms as the official petition of the candidate. In my opinion the board is not called upon to make any such selection. It is the duty of the board to proceed, and as soon as it finds that any petition of the candidate complies with the requirements of the law it then becomes the duty of the board to accept it as valid and the board need go no farther. The remaining petition form or forms may be disregarded, or the candidate may withdraw them.

Furthermore, even if the petition forms of the relators were considered to be a single consolidated petition, so that there would be an excess of five signatures on the petition, I am of the opinion that the petitions are still sufficient. Unquestionably, the minimum requirement of five signatures on a petition is a mandatory requirement because it goes to the essence of the petition. However, the statutory provision as to the maximum number of signatures on a petition does not go to the essence of the petition, the purpose of such provision being to lessen the administrative burdens of the boards of elections, and is, therefore, directory only. *State, ex rel. Jones,*v. *Farrar, 146*Ohio St., 467, 66 N. E. (2d), 531. An excess of signatures over the required number cannot interfere with or adversely affect the purpose served in requiring candidates to file petitions, and therefore does not operate to make the petition void.

In my opinion, the board of elections could undoubtedly refuse to accept a petition of a candidate for state *211or county central committeeman, containing more than five signatures, but once accepted, the board cannot declare it void.

The rights of candidates to submit their candidacies should not be thwarted by mere technicalities, and, as I see it, the board of elections should be required to go forward in this case and determine whether any petition submitted by a relator in proper form is a valid petition and if one is found to be valid, it should be recognized as such. In my opinion, the writ should be allowed.