As I view it, the purpose of a petition is to set forth the claims, allegations and contentions of the plaintiff or relator with sufficient definiteness and clarity to show, among other things, the operative facts giving rise to the jurisdiction of the court, the capacity or relation of the parties to the litigation, the acts or failures to act which give rise to the suit and the remedy or relief which is sought.
At the time of the argument of this case, counsel for the board of elections stated, and it was also stated in the brief on behalf of the board, that the petition of the relator contains defects which could be raised by motion but which defects were specifically waived on behalf of the board.
It seems obvious to me that the relator herein, who is an attorney at law admitted to practice in the courts of Ohio, seeks to bring this suit as a write-in candidate for the office of city attorney and that he seeks to call attention to what he claims are improper, insufficient or illegal steps taken and preparations made by the board of elections for write-in votes for the office of City Attorney of the City of Columbus.
It is equally obvious that no person can qualify as a candidate, write-in or otherwise, for the office of City Attorney of the City of Columbus unless he is an attorney at law, for the very simple reason that Section 66 of the city charter expressly and clearly provides that the City Attorney of Columbus "shall be an attorney-at-law, admitted to practice in the state of Ohio." Relator is in fact such an attorney at law, and the petition should have so alleged but it did not. It merely said he was a candidate and an elector.
If it be the position of the relator herein that he brings *Page 367 this action as a qualified write-in candidate for city attorney, it would seem that it was both proper and necessary to make an affirmative allegation of the fact in the petition. A careful examination of that document fails to disclose any reference to relator's professional qualifications. I repeat, it is assumed, and nowhere questioned, that relator is in fact a duly qualifiedattorney at law within the meaning of Section 66 of the citycharter.
My point is that, no reference or allegation having been made to this fact, it would appear difficult to consider this cause of action as asserting the special and direct interest, if any, of one of the several write-in candidates for the office of city attorney without such allegation being set forth in the petition.
I make no statement and express no opinion with reference to the question as to what such rights, if any, may be, as compared to the general rights possessed by an elector, reserving that for consideration at the appropriate time.
(Decided October 14, 1963.) ON the merits.
DUFFEY, J. This is an action in mandamus filed in this court on September 13 against the respondents as members of the Franklin County Board of Elections. Prior to trial, the Secretary of State was made a party and has participated in the trial and filed briefs. The case is before the court upon the pleadings, evidence, stipulations of the parties and briefs.
Pursuant to Section 200 of the Columbus City Charter, the next regular municipal election will be held on November 5, 1963. This is also the date established by state statute for the election of certain nonmunicipal offices and for certain nonmunicipal issues.
The relator is a resident and elector of the city and is a candidate for the office of city attorney. Under Section 202 of the charter, that contest is by write-in vote only. State, exrel. Rose, v. Ryan, 193 N.E.2d 540 (April 2, 1963). This is the first such municipal contest since the advent of voting machines in Franklin County. The respondent board of elections has prepared a proposed ballot, combining the contests for *Page 368 municipal and nonmunicipal offices and issues, there being no provision in the Columbus Charter requiring separate ballots. Compare Section 3505.04, Revised Code, paragraph 1, and Section3505.07, Revised Code. The ballot utilizes the voting machine.
In the approximate middle of the machine ballot there is a horizontal row containing printed titles for the various offices. The title for the city attorney contest is in the third position. Another row below the title row contains the names of nominated candidates in direct alignment with the titles. In the city attorney position no names appear. The voting levers for that contest are permanently locked and rendered unusable by a metal fixture. Just above the titles there is a row containing the issues. Approximately 10 inches above the title row there are a number of slots in the machine face with sliding metal covers. The slots and the titles are numbered but they are not in direct alignment. Pushing up the cover of a slot reveals a paper on a roll upon which a name may be written. The movement of the metal cover also locks the voting lever in the candidate row at the corresponding numbered position. On the exhibit introduced by the parties there is one large slot about three by two inches, which is numbered to correspond with the mayor's position in the title and candidate rows. For the other municipal contests the slots measured two by one-half inches. There is no title or other printed matter above any of the slots. However, at the time of trial, the respondent board of elections altered the format by adding a printed pointing-hand and a statement identifying the slots as write-in spaces. This was placed at the left of the slots. This is also the only indication on the ballot face of the existence of a write-in only contest for city attorney, or of the right to vote a write-in on other municipal contests.
The petition attacks the ballot as improper on a number of grounds. However, the evidence and argument have narrowed relator's challenge. The primary contention goes to forms of the ballot, especially the location of the write-in space in relation to the title for the contest. That relator has the standing to sue and challenge the format is established.State, ex rel. Wesselman, v. Board of Elections of HamiltonCounty (1959), 170 Ohio St. 30, paragraph one of the syllabus.
The respondent board of elections has filed an answer *Page 369 containing four defenses, which answer has been adopted by the Secretary of State. The first defense is, in effect, a general denial of any violation of law, alleging that the proposed ballot is a proper ballot. The second defense alleges laches. The third alleges that to provide a paper ballot for the municipal election would be "an unjust burden" because it would cost money and result in "chaos and confusion." The fourth defense is that the Secretary of State has issued an order to the board that the election be held on voting machines. The brief of the Secretary of State raises a fifth point. This is the flat contention that the board of elections has no legal duty, as opposed to discretionary right, to conduct a municipal election in a charter municipality. This contention is a challenge to the sufficiency of the cause of action, and we shall therefore consider it regardless of the failure to allege it in the answer.
Does the proposed ballot violate any specific requirement of law as to format and, in particular, relative to the location of title and voting space? To deal with that question, it is obviously necessary to first determine what law controls the format of the ballot.
The brief of the Attorney General and that of the prosecuting attorney both candidly concede that by virtue of Article XVIII of the Constitution a charter municipality has full authority to provide for and control its municipal elections. Such a charter provision is paramount and superior to a state election statute and is subject only to applicable constitutional limitations. The case authorities are numerous and commence as early asFitzgerald et al., Board of Deputy State Supervisors, v. City ofCleveland (1913), 88 Ohio St. 338, decided within months of the adoption of Article XVIII. Attention is directed, in general, to the recent cases of State, ex rel. Devine, Pros. Atty., v.Hoermle (1959), 168 Ohio St. 461, and State, ex rel. Allison,Pros. Atty., v. Jones (1960), 170 Ohio St. 323. With respect to municipal elections, the authorities are also numerous. Attention is directed in particular to State, ex rel. Haffner, v.Green et al., Board of Deputy State Supervisors and Inspectorsof Elections (1953), 160 Ohio St. 189; State, ex rel. Sherrill, v. Brown, Secy. of State (1951), 155 Ohio St. 607; State, exrel. Rose, v. Ryan, 193 N.E.2d 540, rendered April 2, 1963; and the decision in the instant case on demurrer to the petition at page 364 herein. *Page 370
Thus, a charter can prescribe the qualifications of electors and candidates, the time of holding the municipal election, and the method, manner and procedure for conducting such elections. There is and can be no controversy on the proposition that the Columbus Charter may establish specifications as to the form, make-up and format of the ballot for its municipal offices, and such specifications control over any provisions of state statutes to the contrary.
Of course, a charter can, and in practice many do, adopt and incorporate substantial portions of the state statutes. See Reed v. City of Youngstown (1962), 173 Ohio St. 265. Under those circumstances, the statute becomes a part of the charter. As applied to municipal affairs, the statute then derives its efficacy as law from the charter and not from the authority of the General Assembly. Section 200 of the Columbus Charter is of this type, adopting state election statutes "except as otherwise provided in this charter." See, also, Section 232 of the charter.
Section 201 of the charter requires a nonpartisan ballot. Together with provisions elsewhere, it requires a "printed" ballot. A machine is, of course, a ballot. State, ex rel.Automatic Registering Machine Co., v. Green, Dir. of Finance (1929), 121 Ohio St. 301. It is also, in our opinion, a printed ballot — notwithstanding the fact that the paper ballot is printed and then attached to a machine. The section also requires the rotation of names. No attack has been made on the ability to comply. It requires that the ballots be combined into tablets. However, ballots so combined must, of course, be separated before use by the voter. The printed matter for the present ballot could, if necessary, be combined in such series, then separated and placed on the machine.
The last provision of Section 201 of the Columbus City Charter must be read in conjunction with Section 210. The latter requires that on a municipal ballot "the names of candidates for each office shall be arranged under the title thereof ashereinbefore provided." (Emphasis added.) The last sentence of Section 201 provides:
"One space shall be left below the printed names of the candidate for each office to be voted for, wherein the voter may write the names of any person for whom he may wish to vote." *Page 371
The charter clearly requires that a write-in vote be permitted for each and every municipal office, a provision in direct contradiction to state statute. See Section 3505.03, Revised Code, paragraph 8, and Section 3505.04, Revised Code, paragraph 9. These sections are general statutes with respect to ballots, and are made applicable to voting machines under Section3507.15, Revised Code. The respondent board has recognized that this charter requirement controls since the proposed ballot does provide for write-in votes on all municipal offices.
We think it equally apparent that these provisions of the charter also specify that the space for a write-in vote be provided "below" the printed names of candidates and "under" the titles. On the proposed ballot this space is above the printed names — some 10 inches above and not in direct alignment.
Respondent has argued that this is an antiquated requirement, and that the ballot is a substantial compliance with the charter. In the context of the charter, below can only mean below. An examination of the state election statutes is also instructive. Repeatedly, throughout Title XXXV of the Revised Code, the statutes explicitly specify the location of titles, names and spaces. Nor are such detailed specifications surprising. Anyone familiar with elections is aware of the numerous abuses, advantages and unfair effects that can be obtained through the manipulations of a ballot. Nor is it surprising to this court to find that detailed specifications can become troublesome. Human lack of foresight and failure to maintain currency in specifications may be deplored but are frequently encountered. Compare the statutory specifications for legislative printing considered by this court in Columbus Blank Book Co. v.Maloon, Dir. (1963), 116 Ohio App. 393. Nor does the fact that a requirement is troublesome, or thought by many to be undesirable, make it a "technical" rather than a substantive requirement. It is the purpose of the requirement and not its wisdom that is relevant. In our opinion, specifications on format are not mere technicalities. The Supreme Court has repeatedly held that requirements of election laws are mandatory and must be strictly complied with. Pierce v. Brushart et al.,Board of Elections of Scioto County (1950), 153 Ohio St. 372, at page 378; see, also, State, ex rel. McGinley, *Page 372 v. Bliss et al., Board of Elections of Summit County (1948),149 Ohio St. 329; State, ex rel. Fowler, v. Board of Elections ofFulton County (1933), 126 Ohio St. 582; Koehler, Jr., v. Boardof Elections of Butler County (1932), 125 Ohio St. 251, and especially at page 256. While the temptation is sometimes great, a court is not entitled to ignore the plain meaning of a positive law simply because as written, together with the failure to amend it, there may be what many consider to be an undesirable result. This is particularly true of a fundamental instrument such as a charter which the people have adopted.
We have noted the views of the Montana court in State, exrel. Fenner, v. Keating, 53 Mont. 371, 163 P. 1156. We doubt that we would subscribe to such a position on the prerogatives of a court. However, the court there was dealing with the state Constitution, the amendment of which is a difficult undertaking. We think that the ability of the proper authorities, and particularly the people of Columbus, to readily correct their own enactments, is an important factor in determining whether a court is "interpreting" or "legislating" a provision of law. This court and the Supreme Court have on several occasions most pointedly observed that the Columbus Charter does contain "antiquated" provisions and deficiencies.
We have also considered the fact that as to the city attorney contest there are no printed names. However, the two sections of the charter clearly define the format of the ballot and, in our opinion, clearly cover the matter. Should it be assumed that the charter is silent as to a strict write-in contest, then state statutes would apply by virtue of Section 2, Article XVIII of the Constitution, and Section 200 of the Columbus Charter. In that regard, Chapter 3505 of the Revised Code contains the basic provisions with respect to ballots. Chapter 3507 of the Revised Code covers only certain special aspects peculiar to voting machines. Section 3507.07, Revised Code, provides that the names of candidates shall be "under the title of the office sought." A similar provision is found in the last paragraph of that section, held unconstitutional under Section 2a, Article V of the Constitution. State, ex rel. Wesselman, v. Board ofElections of Hamilton County (1959), 170 Ohio St. 30. No mention is made anywhere in Chapter 3507 as to the location *Page 373 of write-in spaces. However, Section 3507.15, Revised Code, provides:
"* * * The provisions of Title XXXV of the Revised Code, not inconsistent with the provisions relating to voting machines, apply in any county or municipal corporation using the voting machine."
Section 3505.04, Revised Code, provides:
"* * *
"* * * if no candidate has been nominated for an office for which an election is to be held, blank spaces shall be provided under the title of said office equal in number to the number of persons to be elected to such office."
See, also, Section 3505.03, Revised Code. We note that an Attorney General's opinion interpreting this statute uses the words "below" and "underneath." (Opinions of Attorney General [1949], 487, No. 806.) Perhaps it should be observed that the voting machine chapter was not drafted with the same careful attention to detail found in the older, more tested provisions of the general ballot requirements in Chapter 3505.
What has already been said adequately disposes of the first defense. It also disposes of the fourth defense relating to the order of the Secretary of State. No such order could justify a ballot which violates a charter provision.
The second defense is laches. Relator has attacked the format of the ballot. This is the first such contest in a Columbus municipal election since the adoption of voting machines in Franklin County. The suit was filed September 13, 1963. Unfortunately, the parties were not ready to submit it to the court until October 10, 1963. We think it took considerable diligence by relator to determine exactly what type of ballot and what format the board proposed to use. Sample ballots were not delivered to the Courthouse Annex until September 16, 1963. The board has changed the format in at least one respect as late as Monday, October 7, 1963. Relator cannot be fairly accused of a failure to make timely objection.
The third defense relates to the "unjust burden" and cost of complying with the charter. A careful review of the evidence shows much vagueness and considerable conflict in estimates of cost. Respondents' principal witness assumed paper ballots *Page 374 would be necessary — a point we consider infra. Even so, he admitted that no inquiry had been made as to rental costs, or even as to availability of equipment. He included stalls, although it is conceded that the machine stall complies with the law. The measurements of paper ballots and the space available on the ledge of the machine indicate that the machine stall may be entirely usable. In any event, there is absolutely no evidence that the board could not provide all things necessary within its present budget. Nor is there evidence that additional money is not available. Nor is there evidence that the county commissioners would not appropriate moneys. Finally, attention is directed to Section 3501.17, Revised Code, relating to the failure of county commissioners to appropriate sufficient funds. Respondents were provided with a full trial and full opportunity to present evidence. In an apparent misstatement, one brief refers to the "record made at pre-trial conference." A pre-trial conference was held Monday morning, October 7. At the conclusion, the presiding judge asked if the parties could present their evidence at 2:00 p. m. that afternoon. All parties agreed. No objections were made then or later. No continuances were requested. After presenting evidence, all parties rested. Accordingly, if such a defense has any legal significance, the respondents have failed to establish any facts in support of their allegations.
The final issue presented is the contention of the Secretary of State that while he and the board have discretion and authority to conduct a charter municipal election, there is no legal obligation upon them to do so.
The state of Ohio and its municipalities can, and in the public interest should, co-operate in the conduct of elections. Both have basic laws to accomplish that result. It is, of course, clear that the Secretary of State is an officer and the board of elections is an agency of the state of Ohio. See Section 3501.06, Revised Code; State, ex rel. The Columbus Blank Book Mfg. Co., v.Ayres, Auditor (1943), 142 Ohio St. 216. They obtain authority from and incur duties under state statutes. On the other hand, a municipality can authorize state officials and agencies to undertake municipal administrative functions. The Columbus Charter does so authorize the respondents by its adoption of state election statutes. Thus, the authority of *Page 375 these officials with respect to such a municipal election is the product or combined effect of state law and city charter. Clearly, too, while a charter can authorize, it cannot require state officials to act. But it is most patently true that theGeneral Assembly can require them to perform that which they are authorized to do!
The Secretary of State's contention, therefore, is simply a proposition that the statutes authorize the conduct of such elections but do not require it. The answer to that proposition necessarily turns upon the statutes.
Under Section 3501.01, Revised Code, a "general election" specifically includes a regular municipal election such as provided for in the Columbus Charter. Any other municipal election would be a "special election." Throughout Title XXXV the statutes refer to "elections."
Section 3501.05, Revised Code, provides:
"The Secretary of State shall:
"* * *
"(G) Determine and prescribe the forms of ballots * * * required by law for use by candidates, committees, and boards;"
In the context of this statute, and the whole of Title XXXV, the word "law" cannot be confined to state statutes.
In Section 3501.11, Revised Code, the duties of the board are also stated as "shall" and relate to "elections." Attention is also directed, in particular, to Section 3505.01, Revised Code, that the secretary "shall" certify the forms of ballots to be used at a "general election." Section 3505.04, Revised Code, provides for nonpartisan ballots for "municipal corporations," including those having "charters which provide for separate ballots for elections for such municipal offices."
We consider respondents' extensive protests about cost allocation and charge back to be most anomalous. The main theme of this line of argument is the financial burden cast on the "county" if it must conduct "city" elections. It is well to remember that the municipalities are in the counties, and the municipal residents pay county and state taxes — frequently the major share of such taxes. An adequate analysis of the tax equity in the raising of the funds expended on elections would require considerable economic analysis of the incidence of the taxes. That the expenditures are for a public purpose and *Page 376 within the power of the General Assembly to authorize and require is apparent. That the equalization and equitable distribution of such costs between taxpayers and governmental units is a matter for the General Assembly is equally obvious. We note that in Section 3501.17, Revised Code, specific provision is made for apportionment of costs, and that further provisions are made elsewhere in the statutes. Whether these are adequate is a matter of opinion, and not a matter for judicial inquiry. Thus, we find nothing horrendous in the fact that such expenses as may result will partially fall upon the county.
We see no point in reviewing the numerous provisions and context of the phrases in Title XXXV. Suffice it to say that, in our opinion, the statutes quite clearly and wisely require the respondents to conduct such elections wherever they are authorized to do so.
There is ample statutory authority for the use of paper ballots, either for a single contest or for the entire municipal election. Such ballots can readily conform to the charter. However, the function of this court is to determine in what manner the proposed ballot fails to conform to law, and to order a proper ballot. The respondents must determine how best to meet that requirement. Relator has requested relief only as to the contest for city attorney. Whether it is feasible to change the format of the machine ballot for that contest only, is a matter for the respondents to decide.
The mandate of this court will be limited to requiring a proper ballot, in conformance to this opinion, in the contest for city attorney of Columbus. A writ of mandamus so providing may be submitted.
Judgment for relator.
BRYANT and TROOP, JJ., concur.