Johnson, P. J.
The case appears before this court as an appeal on questions of law. It is from an order of the Common Pleas Court of Mahoning County. In that court the appellant’s petition for writ of mandamus was dismissed for want of jurisdiction.
On February 2, 1965, Mr, Donofrio filed with the board of
elections 53 nominating petitions containing, in all, 736 signatures. The petitions were intended to establish him as a candidate for the office of Judge of the Municipal Court of the city of Youngstown, Ohio, for the full term commencing January 2, 1966.
On July 15, 1965, the hoard notified Mr. Donofrio that his nominating petition was rejected for the following reason: “Insufficient signatures.” On July 30, 1965, Judge Don Hanni filed a protest before the board of elections claiming in substance that there were additional invalid signatures contained in the Donofrio nominating petition. Two days later Mr. Donofrio filed a petition for writ of mandamus in Mahoning County Court of Common Pleas. He asked that court to order the election board to place his name on the ballot as above mentioned. After the protest hearing, the election board reduced the number of signatures allowed; there remained at that point only 327 valid signatures. Based on the second decision of the election board, Mr. Donofrio filed a supplemental petition for writ of mandamus. The petition was dismissed by the trial court, and an appeal was timely filed in this court. It is agreed by both parties that 551 valid signatures are required in order that Mr. Donofrio may successfully have his name on the November 2 ballot.
Mr. Donofrio asks this court to do that which he honestly feels the trial court should have done and failed to do,
i.e.,
grant the writ of mandamus which would order the Board of Elections of Mahoning County to place his name on the ballot November 2, 1965.
The principles governing the issuance of this writ are the same as in those eases that are seemingly less dramatic and of less public interest. The law is quite explicit. There must be a clear right to the relief sought.
The trial court dismissed the petition for the reason that the allegations, as set forth in the petition, under the Ohio law did not give the Common Pleas Court jurisdiction to review the election board’s multitudinous findings. The dismissal was based upon the reasoning that the allegations in the petition did not specifically allege that the acts of the board of elections were performed capriciously and in bad faith. The court noted that the allegations in the petition must be specific as to the
facts constituting the alleged abuse of discretion.
(State, ex rel. Maxwell, Pros. Atty.,
v.
Schneider,
103 Ohio St. 492, at 498;
Sullivan
v.
State, ex rel. O’Connor,
125 Ohio St. 387;
Marlin
v.
Bd. of Election of Cuyahoga County,
68 Ohio Law Abs. 539.)
It is from this dismissal order that Mr. Donofrio appeals and assigns as error:
“The court below erred in refusing to assume jurisdiction and to issue a writ of mandamus requiring respondent to place relator’s name on the ballot for November 2, 1965, general election, as a candidate for the office of Municipal Judge for the city of Youngstown, Ohio.”
At the time of the trial court’s decision, the state of the law was such that the trial judge had authority for his decision. It has been held that if the relator intended to attack a factual determination it was required that he allege in his petition that the findings by the board of elections on these matters were the result of fraud or corruption.
State, ex rel. Waltz, a Taxpayer,
v.
Michell,
124 Ohio St. 161.
Further, it has been held that if the relator intended to attack a legal determination he had to allege in his petition that thé findings by the election board on these matters were the result of flagrant misinterpretation of a statute or a clear disregard of legal provisions applicable thereto.
State, ex rel. Hanna,
v.
Milburn,
170 Ohio St. 9. See, also,
Sullivan
v.
State, ex rel. O’Connor,
125 Ohio St. 387, 392.
Since the time of the lower court’s determination, the Ohio Supreme Court has announced its decision in
State, ex rel. Cline,
v.
Henderson
(October 5, 1965), 4 Ohio St. 2d 7, which was a mandamus action to compel the Board of Elections of Mahoning County to certify the validity of relator’s nominating petition and to place his name on the ballot as a candidate for the office of township trustee. The question of jurisdiction was raised by the respondents’ filing of a demurrer to the relator’s petition. Counsel for Cline are also counsel for Mr. Donofrio, and it is of interest to note that the jurisdictional allegations in both cases are identical, to wit:
“In so finding the board failed in the performance of its legal duty to count all valid signatures on said petition and acted unlawfully, arbitrarily and abused its discretion. ’ ’
Therefore, on the basis of the
Cline case,
we hold that the
jurisdiction of the Common Pleas Court was invoked in this ease.
Under the circumstances, we feel that justice demands that relator be given an opportunity for a court review of what he contends is a clear disregard or misinterpretation of the statutory law by respondents in refusing to place his name on the ballot. The only explanation given by respondents to relator that his nominating petitions were insufficient was “insufficient signatures,” and respondents had no legal duty to furnish relator with any further explanation. To compel relator to state the specific facts charging either the misinterpretation or clear disregard of the statutory law or abuse of discretion on the part of respondents, when respondents had given no explanation of the reasons why they invalidated a considerable number of signatures on relator’s petition, would have the effect of denying him any effective legal remedy to challenge the actions of the respondents.
This case can be distinguished from
Sullivan
v.
State, ex rel. O’Connor,
125 Ohio St. 387, and
Marlin
v.
Board of Elections,
68 Ohio Law Abs. 539, because both the
Sullivan
and
Marlin cases
are challenging the fact finding authority of the boards of elections, while relator in this case is either accepting the facts found by the respondents but is challenging the application of the statutory law as to the facts or contending that respondents had no facts before them to arrive at their conclusions.
Bespondents invalidated six petitions containing ninety signatures because the statements of candidacy therein were notarized by a different notary public than the statements of candidacy contained in the other forty-seven petitions. This was done on authority of a letter from Mr. Ted W. Brown, Secretary of State, who referred to
State, ex rel. Ferguson,
v.
Brown, Secretary of State,
173 Ohio St. 317, in which appears the following statement on pages 319-320:
“Petition paper No. 9722 from Jackson County was rejected by respondent for the reason that relator’s declaration of candidacy thereon is not the same as the ones appearing on other petition papers, in that the name and signature of the notary public administering the oath to relator are completely missing.
“In the opinion of a majority of this court, the statutes of
Ohio relating to elections contemplate essentially
one
declaration of candidacy which shall be
uniform
and
complete
in accordance with the statutory mandates. Such declaration may be an original one at the head of each petition paper circulated, signed by the candidate individually and sworn to, or there may be a single complete original declaration with identical copies thereof heading all other separate nominating petition papers placed in circulation (Section 3513.09, Revised Code), but there may not be a number of declarations varying in substance and form and with material omissions. Surely, the signers of the nominating petition papers have a right to be uniformly advised as to what the candidate has declared concerning his candidacy under oath.”
In
State, ex rel. Cline,
v.
Henderson,
4 Ohio St. 2d 7, Cline filed a nominating petition consisting of six part-petition papers, each of which contained an identical declaration of candidacy and an affidavit supporting it. The jurat of all statements of candidacy was executed by the same notary public, but there was a variance in the dates in the notary public’s jurat. The Ohio Supreme Court issued a writ of mandamus ordering the board of elections to place relator’s name on the ballot and stated as follows, at page 8:
“In the
Ferguson case
one petition was rejected by this court on the ground that the political affiliation of the circulator was not stated in the circulator’s affidavit. (This involved a party primary election.) A second petition was rejected by this court for the reason that relator’s declaration of candidacy was not the same as the declaration of candidacy appearing on other part-petition papers in that the name and signature of the notary administering the oath to the relator was omitted. The third part-petition paper was rejected because, when compared to the other part-petition papers filed, it was apparent that the affidavit in this part-petition paper was signed by the candidate on a different date and the oath thereon was administered by a different notary public.
“It is clear that the material differences occurring in these part-petition papers which were rejected in the
Ferguson case
are of greater substance than the admitted technicality which is raised in the instant case.
“The court, in the
Ferguson case,
said, at page 320:
tt
i *
* * bfrg signers of the nominating petition papers have a right to be uniformly advised as to what the candidate has declared concerning his candidacy under oath.’
“In the instant case, the statement of candidacy which appeared on each part-petition paper, under oath,, was uniform. The only deviation that appears in the part-petition papers is a variance in the dates inserted, by mistake or inadvertence, in the notary’s jurats.
“In the instant case, the only variance from the original was in the dates in the jurats of the notary public. This would not mislead anyone signing the petition. To disqualify a candidate from seeking public office on such a minor technicality, which could easily occur by mistake or inadvertence, would serve no public purpose.”
On the basis of the
Cline case,
we hold that the fact that relator’s statements of candidacy were notarized by two different notaries would not mislead anyone signing the petition and it would serve no public purpose to invalidate these six petitions. We, therefore, hold that the valid signatures on the six petitions where the statement of candidacy was notarized by Robert G. Gilbert should be counted.
Respondents invalidated numerous signatures on the petitions of relator on the basis that some one other than the signer wrote the address or date of signing or placed ditto marks for “Youngstown” or the date.
There is no question that respondents acted in good faith in doing this, because they had received a letter dated June 7, 1965, from Ted W. Brown, Secretary of State, with the following instruction:
“ * * * As to placing the date of signing after the signature, Section 3501.38 (C) provides that each signer is to place on the petition after his name the date of signing. Since this is a mandatory statute, any signature not followed by the date of signing is not a valid signature. Furthermore, no other person can fill the deficiency. Each signer must write his own name and address and date of signing. * #
Section 3501.38 (C), Revised Code, provides as follows:
“(C) Each signer shall place on the petition after his name the date of signing and the location of his voting residence, in-
eluding the street and number if in a municipal corporation or the rural route number, post office address, or township if outside a municipal corporation.”
While we respect Ted W. Brown as a conscientious public official who has ably performed his duties as chief election officer of Ohio, we have to recognize that he is not the final authority on election laws. The ultimate authority on election laws in Ohio is the Supreme Court, and in the case of
State, ex rel. Patton,
v.
Myers, Secy, of State,
127 Ohio St. 95, the court construed the language of Section 1
g,
Article II of the Constitution of Ohio, concerning initiative and referendum petitions which contains similar language to Section 3501.38 (C) and stated as follows on pages 96-97:
“These provisions seem to the majority of the court conclusive. They require the names of all signers to be written in ink, ‘each signer for himself,’ and hence signify that the name can be signed by no one except the elector sponsoring the petition. With reference to the township and the county, the municipality, the street number, the ward and precinct, Section 1
g
simply requires that the signer shall ‘state’ or ‘place’ on the petition this information. This ‘stating’ or ‘placing’ is sharply distinguished both in word and in meaning from the signing of the name by ‘each signer for himself.’ Hence we hold in the mandamus action that it is not necessary for an elector himself to write out the date, his place of residence, the township and county, the municipality, the street number, or the ward or precinct. He is required to sign his own name, and if the other information called for is properly filled in by some one else, at the direction and with the authority of the elector signing the petition, the Constitution has been complied with. * *
Since this is a decision of our Supreme Court, it is the law of Ohio, and we are bound by it. We are glad to follow it, because we feel that it is sound law. This case is an example of what happens if someone other than the signer fills in the place of residence or the date of signing with the permission of the signer. Electors who have difficulty in writing, such as old people or naturalized citizens of limited education, would, for all practical purposes, be eliminated as possible signers of nominating petitions.
We feel that the public purpose of nominating petitions is to limit the number of candidates being placed on the ballot to those who have sufficient support from other electors to justify the expense of permitting them a place on the ballot. In this case, the Legislature has prescribed a formula in which relator must produce 551 valid signatures. We feel that the fact that a registered voter signed the petition is sufficient proof that he is interested in the candidate being on the ballot. However, the legislation requires that the date of signing and the location of his voting residence be “placed” on the petition. We feel that the public purpose of this requirement is to enable the board of elections to determine whether the signer of the petition timely signed the petition and is a registered voter.
We, therefore, hold that it is not necessary for an elector himself to write out the date of signing and the location of his voting residence. He is required to sign his own name, and if the other information called for, such as date of signing and location of his voting residence, is properly filled in by some one else, at the direction and with the authority of the elector signing the petition, Section 3501.38 (C) has been complied with.
We further hold that under Section 3501.38 (C), Revised Code, a signer of a nominating petition or some other person, under his authority and direction, may use ditto marks to indicate the date of signing or location of his voting residence.
Several circulators testified in the hearing before respondents, and they all testified that whenever the address or date of signing were filled in it was done with the permission of the signer.
We, therefore, hold that the following signatures, previously invalidated by respondents, are valid as a matter of law because they were filled in with the consent of the signer :
Ditto marks under Youngstown 55
Ditto marks under date 13
Street address written in 10
Date written in 23
Total 101
One of the most difficult and perplexing problems raised by relator is the claimed abuse of discretion of the board of
elections wherein all the signatures on a petition were invalidated by reason of the fact of a circulator’s affidavit having been found by the board to be fraudulent.
This question has from time to time been litigated in the courts of Ohio. A cursory reading and comparison of the cases might lead one to the conclusion that some of the most cited cases are inconsistent. In the opinion of this court, however, there is a clear thread of consistency to be found in all of them.
Before discussing the disputed facts relative to the invalidated petitions at issue herein, it would be well to discuss the principal cases set out by both respondents and relator in their respective briefs, in view of the fact that in some instances the parties are citing these cases as authority for diametrically opposed points of view.
Most decisions as to the fraudulent affidavits of circulators are predicated on the fundamentals set out in
State, ex rel. Gongwer,
v.
Graves, Secretary of State,
90 Ohio St. 311, wherein at page 324 may be found the following:
“It is not sufficient that some of the signatures on some of the parts of a petition are genuine, nor is it absolutely necessary to the validity of the petition or any part thereof that every signature thereon should be genuine; but it is absolutely necessary to the validity of the petition or any part thereof that the circulator, when he makes affidavit certifying the signatures on these petitions, should believe that he is stating the truth.
If it later appear that some one has imposed upon him and signed or forged the name of another, the circulator may still believe in the truth of his affidavit and it will support every genuine signature upon it, and only the ones not genuine will be stricken therefrom. But if the circulator knew that a signature appearing on such part of a petition was not genuine; if he knew that such signature was not written on the petition in his presence ; if he knew that the person whose signature it purports to be was not an elector; if he knew that the person signing said petition did not sign it with knowledge of its contents,
yet, notwithstanding his knowledge, he wilfully, corruptly and intentionally makes a false and perjured affidavit to the contrary,
then such affidavit is worthless and the petition or part of a petition to which it is attached does not fill the requirement of the Consti
tution, and the genuine signatures thereon cannot be counted for the reason that that part of the petition lacks the affidavit required by the Constitution.” (Emphasis added.)
In
State, ex rel. Pucel,
v.
Green,
101 Ohio App. 531 (judgment affirmed 165 Ohio St. 175), the following facts existed. Two petitions submitted by a candidate for Delegate to the Democratic National Convention were invalidated by the Cuyahoga County Board of Elections. The first, or Antoni petition as we will hereafter refer to it, was invalidated for the reason that the board found that Mary Antoni’s name had been signed by her husband, and thus the circulator’s affidavit was false and all fifty-six signatures had to be invalidated. The board arrived at this decision by a comparison of both Antoni signatures with others which were previously signed to deeds, escrow agreements, notes, etc., which were conceded to be genuine. It is interesting to note that the board never made any inquiry of the
circulator
nor was he called to testify. The court reversed the board’s finding, holding at page 533:
í¡* # * tpkg in coming to its conclusion, must have completely disregarded the sworn testimony of witnesses, such testimony being uncontroverted in the record except for a comparison of handwriting (where neither of those whose signatures are challenged were requested to sign the name of the other for comparison with a genuine signature), # * *. The board, therefore, committed an abuse of discretion in excluding exhibit No. A-2 and holding that the signature thereon could not be counted in considering the sufficiency of relator’s nominating petition. * #
At this point the court had determined that relator now had sufficient valid signatures to be entitled to be placed on the ballot, but the court was still concerned with the board’s ruling as to the second petition, which we shall call the Martin petition, which had also been invalidated.
The facts as to the Martin petition were in substance as follows: The circulator presented the petition in the Martin home for Mrs. Martin to sign. She did so in the presence of the circulator and her husband. Her husband was asked to sign, but because he did not have his glasses he asked his wife to sign his name, which she did. Because the circulator’s affidavit
was to the effect that each signer had signed the petition, and in fact Mr. Martin had not done so, the board vitiated the entire petition of thirty-nine signatures.
In reversing the board the court had this to say at page 536 : “* * * Under like circumstances under the law of contracts if this procedure had been followed in signing an agreement the husband would, without the slightest doubt, be completely bound. Here he adopted the signature written for him in his presence as his. A technical interpretation of the election laws might justify a crossing out of the signature of Robert Martin, but there is no justification for striking out the whole petition because of the claim that the affidavit of the circulator was fraudulently made.
There is not the slightest suggestion of fraud, chargeable to Robert Martin,
in the signing of the relator’s nominating petition
or on the part of the circulator
in signing the affidavit, whereby this case is clearly distinguishable from the case of
State, ex rel. Gongwer,
v.
Graves, supra
(90 Ohio St. 311), which was decided on the basis of fraud on the part of circulators of the petitions filed.” (Emphasis added.)
It is claimed by the respondents herein that the court’s remarks in the
Pucel case
as to the Martin petition are merely
dicta
and were so labeled by the court. However, paragraph two of the syllabus, which stands as part of the law of that case, reads as follows:
“Where a wife signs her husband’s name on a nominating petition, at his request and in his presence and in the presence of the circulator thereof, and where there is not the slightest suggestion of fraud on the part of the husband or on the part of the circulator of the petition in signing the affidavit attached thereto, there is no justification for invalidating the entire petition because of the claim that such affidavit was fraudulently made. ’ ’
Clearly this syllabus was framed with solely the Martin fact situation in mind.
Upon appeal to the Ohio Supreme Court, that court adopted verbatim the finding of the Court of Appeals relative to the Antoni petition, and did not consider the Martin petition since the signatures contained thereon would be surplusage.
Of special import is the following quotation which was used by the Court of Appeals and adopted by the Supreme Court at page 176:
“ ‘In dealing with this question the election board was acting in a
quasi-judicial capacity.
Its function was to determine the validity of the petitions offered by the relator with impartiality and fairness
both to the candidate and to the electors of the county. *
# *.’ ” (Emphasis added.)
At this point a pertinent observation is in order and should be emphasized. Even though it was clear that the circulator of the Martin petition
knew
that Mr. Martin had not signed his own name, this fact alone,
unless accompanied by evidence of fraud on the part of the husband or the circulator,
is not sufficient to invalidate the whole petition on the basis of a fraudulent circulator’s affidavit.
Intent
and
knowledge
are the gravamen of the fraud, and the language in paragraph six of the syllabus of
State, ex rel. Gongwer,
v.
Graves, Secretary of State,
90 Ohio St. 311, is to that effect:
“An affidavit
intentionally
and
knowingly
false, attached to any part of a petition, is not a compliance with the provisions of Section
Ig
of Article II of the Constitution of the state, and the part of a petition, to which such false affidavit is attached, must be rejected entirely, the same as a part to which no affidavit is attached, whether it contains genuine names or not, for the reason that it lacks the affidavit required by the Constitution.” (Emphasis added.)
It is strongly urged by the respondents that since the ruling in the
Pucel case, supra,
the same Judges of the Eighth District Court of Appeals (Cuyahoga County) have ruled differently from their ruling in the
Pucel case,
and have in effect reversed themselves in the case of
Simon
v.
Board of Elections of Cuyahoga County, 87
Ohio Law Abs. 594.
Respondents claim the ruling of the
Simon case
is applicable to the case at bar in that the issues are substantially the same.
Judge Kovachy, at page 595, in the
Simon case,
sets out the following salient facts:
“The transcript of the proceedings before the board discloses
undisputed
evidence that signatures were affixed to petition paper numbers 206, 209, and 191 not in the presence of the persons signing them as circulators. These petition papers had 59 signatures on them.
“Notwithstanding such evidence before it, the resolution entered by the board shows that the protest against these petition papers was disallowed.
“The resolution also shows that the protest against 21 petition papers
containing signatures in the same handwriting
was allowed only as to the signatures so affixed, 40 in number, and declared such signatures void but disallowed the protest as to the remaining signatures. The total number of signatures on these petition papers was 421.” (Emphasis added in part.)
In its application of the law to this state of facts, the Eighth District Court of Appeals, quoting from
State, ex rel. Waltz,
v.
Michell,
124 Ohio St. 161, said at page 596:
“ ‘Other petition papers which were rejected had signatures in the same handwriting and therefore, the affidavit of the circulator that the signatures were made in his presence and were the genuine signatures of the persons whose names they purported to be could not have been true. We are of the opinion that the city council was correct in its holding that the requirement that the name of the signer to such petition be written by himself is mandatory, and that signing petitions by proxy is not permissible. In each of these instances the affidavits must have been
intentionally
and
Imowingly
false, and under the
Graves case, supra,
their rejection was warranted.’ ” (Emphasis added.)
In kindness, a court might conclude that the Simon signatures were signed by proxy. Harsh truth could lead to the conclusion that they were forged.
Under the facts of that case the court was in no way inconsistent with its prior holding in the
Pucel case.
Under the facts of the Simon petitions it was perfectly proper to reject the petitions containing “proxy” signatures in toto. Clearly, knowledge and intention are self-evident.
In the instant case, we are concerned with neither proxy nor forged signatures. In both the
Graves case
and the
Simon case
the petitions were replete with forged or “proxy” signatures. Such is not the finding of the board in regard to the petitions filed by Mr. Donofrio. One Donofrio circulator testified that he telephoned his parents for permission to sign their names to his petition. Permission granted, he did so, stating at the protest hearing he thought this was permissible. Likewise, the same circulator, with telephone permission, wrote in the name of two friends. On this testimony, the board invalidated the entire petition, and the relator herein concedes that this
petition should not he considered. In two other instances the hoard, by reference to the registration cards on file, concluded that the signatures were not genuine. These instances are later discussed. But for these exceptions there is no question as to the genuineness of all other signatures submitted, and nowhere does the record disclose two or more signatures in the same handwriting.
As has been previously pointed out in
State, ex rel. Pucel,
v.
Green,
165 Ohio St. 175, at page 176, a board of elections sits as a quasi-judicial body in determining the validity of petitions filed with it. As such it must of necessity exercise its discretion in the factual determinations it is called upon to make, and in the proper application of the law to factual determinations its findings should remain undisturbed. However, the misapplication of law to the facts is subject to judicial review.
Petition number 2 has previously been determined to be valid even though it was notarized by a different notary. The
amicus curiae
brief indicates that additional action was taken by the board on this petition, to wit:
“Following the protest hearing, the board examined this petition paper and it was then decided by the board that this petition paper also contained a fraudulent signature, to wit: Signature No. 15 Mary Ann Santore, 710 Cassius Avenue, Youngstown, Ohio. The board came to this conclusion by comparing the aforementioned signature No. 15 with the signature of Mary Ann Santore, 710 Cassius Ave., Youngstown, Ohio, as it appeared on her official registration card * *
A reading of the record of the protest hearing does not disclose how the board reached this conclusion. The only reference to be found is on respondents’ Exhibit No. 4 which notes “F. S. No. 15.” Conceding for the purposes of argument that the board proceeded as outlined by counsel for
amicus curiae,
it does not follow that such a finding would invalidate the other thirteen signatures on the petition (number 6 not being a registered elector).
The board did not subpoena the suspect elector to inquire as to whether she did sign the petition, and the testimony of the circulator was clearly to the effect that every signature was affixed in his presence. Merely by a comparison of signatures did the board conclude that the circulator’s oath was fraudulent.
This clearly is contrary to the law in the
Pucel case, supra.
The board in its discretion could refuse to count the questioned signature, but in imputing a fraudulent oath to the circulator on such facts, it was clearly in error. The thirteen valid signatures on this petition should have been counted, and we so hold.
Petition number 4, circulated by one George Gallo, was invalidated for the reason that the board found the affidavit of the circulator, relative to signature No. 2, was fraudulent.
A reading of the protest hearing of the board of elections does not disclose one iota of evidence that Gallo knowingly and intentionally signed a false affidavit. Gallo was intensively interrogated by the members of the board and by counsel for both the respondents and the relator. Signer No. 2, Mrs. Tony Matsi, was not called by the board to testify. The board found that her name was in fact signed by her husband. The circulator testified that all signatures were made in his presence. No additional testimony as to the facts involving this petition is to be found in the record taken before the board of elections. The clerk of the board testified before the
trial court
relative to this petition:
“Q. * * *Let’s come to petition No. 4 now. That is a petition which was circulated by a man by the name of Gallo, and you have in this tabulation of yours invalidated. You invalidated every signature on that petition upon the basis that Mr. Gallo was guilty of some kind of a fraud, isn’t that right? A. That is right.
“Q. The board did that? A. That is right.
“Q. Now what was his fraud? A. If you’ll look at signature No. 2 which is Mrs. Tony Matsi, 124 E. Midlothian Boulevard, and if he said that he saw all of these people sign it, this is in fact Tony’s signature.
“Q. When was that brought out? A. What do you mean, ‘when was that brought out’?
“Q. Not in the Hanni hearing. A. It wasn’t brought out in the Hanni hearing.
“Q. Well, did you invalidate it before the Hanni hearing? A. No, sir.
“Q. Well then you have knocked down every signature on this petition without giving Mr. Donofrio an opportunity to be heard in any respect about the validity of this signature, haven’t you? A. Mr. Eanz, I think that the law gives Mr. Donofrio all
the opportunity in the world to be heard. As a matter of fact, Mr. Donofrio had an opportunity to come down to the board of elections after the first determination, and come in and question the board as to whether or not they were right in their first determination. This he failed to do after the protest hearing of Mr. Hanni. Then it was mandatory on the board to make a final determination on these particular petitions and this is exactly what sheet Exhibit 4 shows.
“Q. Are you saying to this court that after this Hanni hearing was over, and without giving Mr. Donofrio an opportunity to be heard in the matter, that you invalidated this petition No. 4? A. We gave Mr. Donofrio every opportunity to come to the board of elections. We did not deny Mr. Donofrio any right to come into the board of elections and check this out.
“Q. Did Judge Hanni claim that this signature No. 2 on this petition was invalid? A. I don’t know.
‘ ‘ Q. Well you know that there was no claim by him at all in this hearing that there was anything invalid about that petition, don’t you? A. There was no question in the hearing about it.
“Q. That’s right. A. That is correct.
‘ ‘ Q. And the board on its own after this hearing was over, invalidated this signature? A. That is correct.”
We cannot question the board’s determination relative to the Matsi signature. That decision of fact was solely within its province. But the inference drawn, that a fraudulent affidavit was made on the evidence adduced, was a clear abuse of discretion and a misapplication of the law set out in
Pucel, supra.
We find that the petition was proper and the remaining fourteen signatures thereon are valid.
Petition number 10 was circulated by Joseph Guerriero. The circulator went to the home of one Milford Cole, whom he did not know. Mrs. Cole signed the petition. She then asked the circulator if she could take the petition upstairs for her husband to sign, he being ill in bed. She did so, and Mr. Cole signed in his room, not in the presence of the circulator. The circulator readily admitted these facts before the board, saying he thought that this was proper. On this evidence, the board invalidated the entire petition and disallowed all fifteen names. Under the rule of the
Pucel case, supra,
this clearly was an abuse of discretion, for “there is not the slightest suggestion of
fraud on the part of the husband or of the circulator of the petition in signing the affidavit attached thereto.” A technical interpretation of the election law would justify the board’s crossing out the signature of Milford Cole, but the other fourteen signatures on the petition are valid and should be counted. The board in this instance abused its discretion in failing to so rule.
Petition No. 22 was circulated by one Eeginald Melia. Three witnesses in addition to Mr. Melia testified relative to this petition. The entire petition was excluded by reason of the purportedly fraudulent affidavit of the circulator. In addition, the board questioned electors Yanek and Botsco relative to the word “Youngstown” and the date, which were inserted opposite their signatures in handwriting other than their own. Both testified they had signed their names and addresses. Melia testified he was given permission to insert the above words. Mr. Yanek did not remember whether he had given permission. Mrs. Botsco said she had not given permission. Under the previously discussed ruling of
State, ex rel. Patton,
v.
Myers,
127 Ohio St. 95, in its quasi-judicial capacity the board could properly, in its discretion, have invalidated the signatures of both of these electors, but nowhere is there any evidence that Melia knowingly and intentially made a fraudulent oath as to their signatures.
In the same petition are to be found the names of Ambrose Dragoui and Katherine Dragoui. The signatures and addresses and date were in the handwriting of Mr. and Mrs. Dragoui. The testimony of Mr. Dragoui was to the effect that he had been asked by a boy by the name of Dapolito to sign the petition. Young Dapolito was a friend of the signer’s son. As to the question of whether Melia was present when Dragoui and his wife signed, Melia testified that he and young Dapolito had worked together on some of the petitions he had circulated, and he (Melia) saw both sign this one while sitting in their car. Dragoui testified that Mr. Melia could have been close by the car but that he doubted if he (Melia) was close enough to actually see him sign. In answer to a question proposed Mr. Gragoui’s testimony was as follows:
“Mr. Henderson: When you say he was not there, what do you mean? A. He wasn’t there to see me put my signature on the ballot. He could have been behind me or in front of me, that I don’t know. He claimed that he come with the petition. It
wasn’t him, he wasn’t there when I signed this petition. But I do not deny that he was somewhere in the vicinity, that I agree, because these young boys, these football players, he might have come up and said, ‘here, run and get that guy for me.’ That’s a practice.”
The board held the oath taken by Melia was fraudulent and rejected the entire petition. In addition, the board held that the signature of one Rose Miller was invalid because she was not a registered voter.
It is not the function of this court to question the findings of fact made by the board of elections relative to this petition. To exclude the genuine signatures of Botsco, Yanek and Mr. and Mrs. Dragoui as well as that of Rose Miller was properly within its discretion. To conclude from such evidence, however, that Melia knowingly and intentionally made a fraudulent oath and that, therefore, all other signatures were void, is clearly an abuse of discretion and a misapplication of the election laws. The ten valid signatures should properly have been counted.
Relator claims that in addition to the petitions hereinbefore considered there are other valid signatures contained in the petions he has filed with the board of elections. Whether this contention is true or not is of no moment to this decision by reason of the fact that we have concluded that 551 signatures have already been demonstrated to be valid, and there is no reason to further extend an already lengthy opinion.
Having submitted the required 551 signatures necessary to place his name in nomination for the office which he seeks, a journal entry will be drawn by the relator in accordance with this opinion, directing the respondent board of elections to post his name as a candidate for the office of Municipal Judge of the city of Youngstown for the term commencing January 2, 1966, and to place the same on the ballot in accordance with law for consideration by the electorate in the Youngstown municipal election on November 2, 1965.
The judgment of the trial court is reversed. Writ of mandamus allowed.
Judgment reversed.
Lynch, J., concurs.