State ex rel. Evergreen Co. v. Board of Elections of Franklin County

356 N.E.2d 716, 48 Ohio St. 2d 29, 2 Ohio Op. 3d 126, 1976 Ohio LEXIS 706

• Court: Ohio Supreme Court
• Decided: October 27, 1976
• Docket: Nos. 76-1057 and 76-1083
• Status: Published

Opinions

Per Curiam.

R. C. 731.31 provides, in part, that: “Each part of * * * [a referendum] petition shall contain the affidavit of the person soliciting the signatures thereto, which affidavits shall state the number of signers of each sueh part and that to the best of his knowledge and belief each of the signatures contained on such part is the genuine signature of the person whose name it purports to be, that he believes such persons are electors of the municipal corporation, and that they signed such petition with knowledge of the contents thereof.

“An affidavit is a written declaration under oath * * R. C. 2319.02. In contradistinction, the statutory definition (R. C. 147.541) of the words “acknowledged before me” is that:

“(A) The person acknowledging appeared before the person taldng the acknowledgement;

“ (B) He acknowledged he executed the instrument * * *.”

Inasmuch as the provisions of R. C. 731.31 require each part-petition to contain an affidavit of the person soliciting the signatures and the facts here show that the circulators were not placed under oath, it follows that there was a failure to comply with R. C. 731.31.

It is a basic principle of law that “* * * election statutes are mandatory and must be strictly complied with.” State, ex rel. Abrams, v. Bachrach (1963), 175 Ohio St. 257, 259. Cf. State, ex rel. Barton, v. Bd. of Elections (1975), 44 Ohio St. 2d 33; State, ex rel. Stillo, v. Gwin (1969), 18 Ohio St. 2d 66; State, ex rel. Janasik, v. Sarosy (1967), 12 Ohio St. 2d 5.

Respondent-board argues that the omission of the statement that the instrument was “sworn to” should not invalidate the petition. Citing Stern v. Bd. of Elections (1968), 14 Ohio St. 2d 175, respondent asserts that “[n]ot even the omission of the notary’s signature and seal invalidates an affidavit of the circulator of a petition.”

Although it is true that in Stern the notary “inadvertently omitted to subscribe his signature to the jurat along side his printed name, and inadvertently omitted to imprint bis metal seal upon the jurat,” it is also true that the circulator therein “took every action and performed every duty required of him by law” and “was placed under oath administered by the notary.” (Stern, at pages 178 and 179.) Thus, the holding in Stern is not dispositive of the instant causes.

It is the conclusion of this court that the failure to comply with the provisions of R. C. 731.31, requiring each part-petition to contain an “affidavit of the person soliciting the signatures thereto,” invalidates the referendum petition at issue in each cause.

Writs allowed.

0’Neill, C. J., Corriga^, Sterüt, W. BrowN and P. BrowN, JJ., concur. Herbert and Celebrezze, JJ., dissent.