concurring. I concur in the judgment but for reasons different from those stated in Judge O’Neill’s opinion.
In my opinion, the failure of the notary to sign his name to the jurat on the circulator’s affidavit on one of the petition papers in the instant case, represents a failure to comply with a requirement that has been specified by the General Assembly as a material requirement for a candidate’s petition. This court so held in State, ex rel. Andrews, v. Board of Elections of Medina County (1963), 175 *185Ohio St. 249, 193 N. E. 2d 390, with only one judge dissenting. See also State, ex rel. Allen, v. Board of Elections of Lake County (1959), 170 Ohio St. 19, 161 N. E. 2d 896, where this court refused to compel a board of elections to accept petitions, where the circulator’s affidavit had been notarized by the candidate, and stated in a per curiam opinion concurred in by six judges:
“ * * * substantial compliance would not warrant complete omission of the jurat of the circulator. Such jurat is a vital and material part of the nominating petition paper, and its inclusion is a condition precedent to the acceptance and validation of a candidate’s nomination petition paper
Such a holding probably follows from Section 3513.07, Revised Code, stating that a petition of the kind here involved “shall be substantially” in the form set out therein, which form expressly provides for the “signature of officer administering oath” to the petition circulator.
I fail to see how State, ex rel. Cline, v. Henderson (1965), 4 Ohio St. 2d 7, 211 N. E. 2d 54, cited by appellant, is relevant in any way to any question involved in the instant case, except as indicating that this court, by exercising its extraordinary powers in mandamus, will protect a candidate from rejection of his petition where he has fully complied with all statutory requirements. There, the notary had properly signed and sealed the jurat to the candidate’s signed declaration on each of six petition papers. The date in the jurat on three was July 22 and the dates on the other three were July 20, 21 and 23. The board rejected the latter three. The court held that the candidate had substantially complied because only one original executed declaration was required by the statute and no one could be mislead by this slight variance in dates on the copies , of that original.
The holding in Sullivan v. State, ex rel. O’Connor (1932), 125 Ohio St. 387, 181 N. E. 805 (that the candidate “had fairly complied with the law” even though the signature of the notary to the circulator’s affidavit “was not signed in a legible manner and * * * he failed to note his *186official character”)» as well as paragraph three of the syllabus of that case, are both based upon the provision in former Section 4785-78, General Code, that “no declaration of candidacy shall be rejected for mere technical defects.” See opinion at page 393. As pointed out in State, ex rel. Lemert, v. Board of Elections of Muskingum, County (1948), 149 Ohio St. 211, 215, 78 N. E. 2d 368, our statutes have since been amended to eliminate any such provision.
As to a protest against a candidacy such as those involved in the instant case, the applicable statute, Section 3513.05, Revised Code, now provides that, if the board of elections finds “that such candidate * * * has not fully complied with Sections 3513.01 to 3513.32 * * * his declaration of candidacy and petition shall be determined to be invalid and shall be rejected, otherwise it shall be determined to be valid.”
In my dissenting opinion in State, ex rel. Allen, v. Board of Elections of Lake County, supra (170 Ohio St. 19), at page 21, I suggested that the only purpose of the circulator’s affidavit was “to provide prima facie evidence of the facts stated in the authorized form of the affidavit” and that no statute indicated “that proof of such facts can be made only by such an affidavit.”
In an apparent answer to that suggestion, the General Assembly thereafter enacted Section 3501.38, which reads in part:
“All * * * nominating petitions * * * shall, in addition to meeting the other specific requirements prescribed in the * * * Revised Code * * * be governed by the following rules:
ff * * *
“(E) Every petition paper shall bear the affidavit of the circulator * * *.
if* * *
“(I) No alterations, corrections, or additions may be made to a petition after it is filed in a public office.”
As hereinbefore mentioned, Section 3513.07, Revised Code, indicates the necessity for the “signature of officer administering oath” to the circulator as a part of the affidavit that is a part of the petition.
*187Thus, if the instant case involved an appeal in the ordinary course of the law from the determination of a hoard of elections, I would be of the opinion that that determination should be reversed. However, after specifying what the Board of Elections should do in making a determination on a protest to a candidacy (the applicable statutory language of Section 3513.05, Eevised Code, is quoted above), the General Assembly specifically stated that “such determination shall be final.”
Thus, there can be no appeal in the ordinary course of the law from that determination.
However, if a candidate’s petition has been rejected by election officials after he has “fully complied” with statutory requirements therefor, courts have given the candidate relief, either by exercising equity power to issue an injunction or prerogative power to issue a writ of mandamus or of prohibition. See, for example, State, ex rel. Cline, v. Henderson, supra (4 Ohio St. 2d 7), and State, ex rel. White, v. Brown (1966), 6 Ohio St. 2d 61, 215 N. E. 2d 717.
On the other hand, where there has not been such compliance with all statutory requirements and the election officials have rejected the candidate’s petitions, the courts have refused to give the candidate relief in equity, prohibition or mandamus. State, ex rel. Kroeger, v. Leonard (1949), 151 Ohio St. 197, 84 N. E. 2d 910; State, ex rel. Andrews, v. Board of Elections of Medina County, supra (175 Ohio St. 249); State, ex rel. Allen, v. Board of Elections of Lake County, supra (170 Ohio St. 19); State, ex rel. Ferguson, v. Brown (1962), 173 Ohio St. 317, 181 N. E. 2d 890. They have done this even though the same courts have refused to disturb determinations of election officials to accept a candidate’s petitions where the candidate has not fully complied with all statutory requirements. See, for example, State, ex rel. Patton, v. Bazzell (1954), 161 Ohio St. 344, 119 N. E. 2d 278 (mandamus denied), and State, ex rel. Hanna, v. Milburn (1959), 170 Ohio St. 9, 161 N. E. 2d 891 (prohibition denied), in each of which facts were substantially the same as in State, ex rel. *188Kroeger, v. Leonard, supra (151 Ohio St. 197). As stated on page 11 of the per curiam opinion in the Milburn case:
“It must be remembered that in the Kroeger case the eonrt was approving a decision of a board of elections * * *. The test for reversing a decision of a board of elections is not necessarily whether this court agrees or disagrees with such decision * *
In the instant case, the appellee herein offered in evidence the transcript of the proceedings before the board of elections, which disclosed that the only failure of the two candidates to comply fully with applicable statutory requirements resulted from their failure to have the notary sign the jurat to the circulator’s affidavit on one petition paper and attach his seal thereto. This record also discloses that, after the reading and the offering in evidence without objection of an affidavit of Saul Stillman, the notary to the circulator’s affidavit, which stated that “all of the legal requirements for such notarization were complied with, that no fraud, deception or illegality occurred in connection with the execution of this affidavit and that the failure of the affiant to affix his signature was due to his oversight,” appellee’s attorney stated:
“I would agree with the statement that there is no fraud, deception or illegality. Knowing Saul, he would never dream of such a thing in his behalf or being done by him.”
The only purpose of a circulator’s affidavit is to provide proof of the facts required to be stated therein. Where, as here, the one protesting the candidacy admits the existence of those facts, it seems to me that a rejection of the petitions for failure to authenticate properly the affidavit would represent an exalting of form over substance.
Injunction is an extraordinary equitable remedy. Perkins v. Quaker City (1956), 165 Ohio St. 120, 133 N. E. 2d 595. It is a familiar maxim of equity that equity regards substance, not form. In giving the extraordinary remedy of injunction in the instant case, it seems to me that the Common Pleas Court and the Court of Appeals have done exactly the opposite. They have regarded form, not *189substance. For this reason, my conclusion is that the judgment of the Court of Appeals should be reversed and the injunction dissolved.
In my opinion, this conclusion is fully supported by our decision and the per curiam opinion in State, ex rel. Hanna, v. Milburn, supra (170 Ohio St. 9).
Thus, a court will not exercise its extraordinary powers in equity, prohibition or mandamus to require a board of elections to adhere to formal requirements which will serve no substantial purpose, although it may, as it did in Andrews v. Board of Elections of Medina County, supra (175 Ohio St. 249), refuse to interfere with the board’s adhering to such requirements.
This does not put a candidate at the mercy of the board of elections. If the candidate fully complies with all statutory requirements and the board determines that his petitions are invalid, the courts will exercise their extraordinary powers in equity, mandamus or prohibition to require the board to hold the petitions valid. State, ex rel. Cline, v. Henderson, supra (4 Ohio St. 2d 7); State, ex rel. White, v. Brown, supra (6 Ohio St. 2d 61).
However, if the candidate does not so comply, he runs a risk that the board may determine to reject his petition; and, in such instance, a court will ordinarily refuse to interfere with that determination, which the General Assembly has specified shall be “final.” That is what this court did in State, ex rel. Andrews, v. Board of Elections of Medina County, supra (175 Ohio St. 249).