State ex rel. Corrigan v. Perk

O’Neill, J.,

dissenting. The sole question in this case may be stated as follows: Where a qualified registered voter signs his name and correct address to a referendum petition, does the fact that the ward and precinct in which he resides do not appear on the petition following his name make his valid signature invalid?

The majority opinion holds that it does, but states no reasons in support of that holding.

I concur in the dissenting opinion of Justice Duncan.

*5The instant action is in prohibition. The relator seeks an order from this court which would deny to the electorate of Cuyahoga County the right to vote on the question of whether local county-wide sales and use taxes, enacted by the county commissioners for local government purposes, shall be imposed upon the citizens of Cuyahoga County.

The sole ground upon which the relator asks this court to deny the electorate of Cuyahoga County their right to vote upon that question is that the wards and precincts in which some of the signers of these referendum petitions reside do not appear upon the petitions.

This is an attempt to deny the right of the people to vote on a local tax for local government purposes, based upon a meaningless super-technicality.

No question is raised about the validity of the signatures upon the petitions, and none is raised about the accuracy of the address of any petition signer. The address of an elector, of course, determines the ward and precinct in which he resides.

No question is raised concerning the Cuyahoga County residence of any petition signer.

It is conceded that the master list kept by the Board of Elections of Cuyahoga County, for the purpose of checking the validity of petitions filed with the board, lists the registered voters of the county alphabetically and not by ward and precinct.

It is conceded that the records of the Board of Elections of Cuyahoga County contain the ward and precinct of each registered voter.

It is conceded that the ward and precinct of the petition signer is not required on the petition in order for the board of elections to check whether the person who signed his name and address on the petition is a registered voter of Cuyahoga County.

It is also conceded that since these petitions seek a referendum upon a county-wide tax, every registered voter of Cuyahoga County, regardless of the ward or precinct in which he resides, is eligible to vote upon the question should it be submitted to the electorate.

There is no question raised concerning the eligibility *6of the circulators of the petitions, the validity of their oaths or signatures, or their conduct in securing signatures on the petitions.

The case of State, ex rel. Patton, v. Myers (1933), 127 Ohio St. 95, was a mandamus action brought to compel the Secretary of State to direct the boards of elections of the 88 counties that signers must personally fill in their wards, townships or precincts on referendum petitions.

The language of the Constitution which was controlling in that case is substantially the same as the language of Section 305.32, Revised Code, which is controlling in the instant case. In that case, this court held that a signer of a referendum petition must personally sign his own name, but need not personally place, on the petition his ward and precinct.

That court did not have before it in that case the question which is before the court in the instant case.

In Stevens v. Board of Elections of Henry County (1957), 108 Ohio App. 37, the Third District Court of Appeals had before it a case similar to the instant case. In that case, the street numbers of the residence of petition signers were omitted from the referendum petition. Paragraph two of the syllabus in that case reads as follows:

“Where a referendum petition signer, an admittedly qualified elector, in a nonregistration area gives after his signature the name of his street but fails to give the number of his residence, such failure does not invalidate his signa-ixire. * *

In State, ex rel. Wolson, v. Kelly (1966), 6 Ohio St. 2d 67, a candidate for Judge of the Court of Appeals of the Sixth Appellate District omitted the precinct in which he resided from his declaration of candidacy. Section 3513.07, Revised Code, sets forth the requirements for such petition. This court stated in the opinion in that case:

“ ‘Voting residence’ is defined by Section 3501.01 (J), Revised Code, as follows:
“ ‘ “Voting residence” means that place of residence of an elector which shall determine the precinct in which he may vote.’
“Here the relator set forth his residence address. That *7residence address determines the precinct in which he can vote.”

This court held the declaration of candidacy valid.

In State, ex rel. Ellis, v. Sulligan (1966), 6 Ohio St. 2d 65, the relator filed a declaration of candidacy and petition for nomination as a candidate for the office of Judge of the Common Pleas Court with the Mahoning County Board of Elections, which petition was rejected as being invalid because the relator, in his declaration of candidacy, failed to indicate the county in which he wished to become a candidate. This court held that the relator had sufficiently complied with the statutory requirements and allowed a writ ordering the board to place his name on the ballot. The same reasoning was used in State, ex rel. Donofrio, v. Henderson (1965), 4 Ohio App. 2d 183.

In the instant case, no question is raised concerning the accuracy of the address which follows each signature on the petitions. The residence address of each petition signer determines the precinct in which he can vote and that precinct and ward are listed in the master list in the records of the board of elections. There is no language in Section 305.32, Revised Code, which states that an otherwise valid signature is to be held invalid because the ward and precinct of the petition signer do not appear on the petition following his signature.

It is admitted that voters do not know the ward and precinct in which they reside.

The position of relator, and respondents Carney and Duffy in their separate answer supporting relator, is that someone — signer, circulator, committee, or designee of a signer, circulator, or committee — must go to the board of elections and engage in the meaningless ritual of copying from the records of the board of elections onto the petitions which are about to be filed with the board of elections, the ward and precinct of the signers of the petitions.

No contention is made that there is any fraud, or that the omission of the ward or precinct on the petition can lead to fraud. No contention is made that the ward or precinct is required in order to check whether the signer is a registered voter of the county. No contention is made *8that the ward or precinct is required by sound public policy. No allegation is made that the requirement of the ward or precinct on the petitions serves any useful purpose. In fact, no reason is advanced in the majority opinion, in the petition or brief of relator, or in the separate answer of respondents Carney and Duffy, as to why such a rule of law is required.

What purpose can possibly be served by requiring such a time-consuming, expensive and meaningless ritual to be engaged in, other than the questionable purpose of preventing a referendum on a local tax issue from being submitted to the electorate and thereby denying to the electorate their right to vote upon that question.

This is an instance where the matter omitted from the petitions is in the records of the board of elections.

See State, ex rel. Buchanon, v. Stillman (1967), 12 Ohio St. 2d 13; State, ex rel. Blackwell, v. Bachrach (1957), 166 Ohio St. 301; State, ex rel. Abrams, v. Bachrach (1963), 175 Ohio St. 257; State, ex rel. Janasik, v. Sarosy (1967), 12 Ohio St. 2d 5.

Under the circumstances of this case, it is not reasonable to hold that the members of the General Assembly intended that a signature on a referendum petition, otherwise valid, should be considered invalid because the ward and precinct of the petition signer do not appear on the petition following the signature.

Members of the General Assembly are familiar with petitions and know that voters do not know the ward and precinct in which they reside.

It is not a reasonable construction of the language used in Section 305.32, Revised Code, to conclude that the members of the General Assembly deliberately included this super-technicality in the law in order to curb the use of the referendum.

The relator and the majority opinion rely upon State, ex rel. Poor, v. Addison (1937), 132 Ohio St. 477, which is cited as authority for the decision in Lynn v. Supple (1957), 166 Ohio St. 154.

A rule of law, however, is not sound unless the reason upon which it is based is sound.

*9The only support in the opinion in Poor, supra, for the holding in that ease is stated at page 480. There, the court states that under the law when a person registers he must state his ward and precinct, and that no person is entitled to vote or sign a referendum petition unless he is a registered elector.

This is an irrelevant, make-weight argument in support of the conclusion in that case. It is a non-sequitur. Lists of registered voters may have been kept by ward and precinct at that time, and it is possible that there was not available a county-wide master list of registered voters which included the ward and precinct of each. In 1937, there may have been some unstated reason for enforcing the super-technicality which the court insisted upon in that case. Today, however, no reason exists. No reason for such a rule is asserted in the petition and brief of relator, or in the answer of respondents Carney and Duffy who support relator’s petition, or in the majority opinion.

The Constitution guarantees the right of referendum to the electorate. Sections 305.31 to 305.41, inclusive, of the Revised Code, were enacted to provide specifically for a referendum with regard to local taxes enacted for local government purposes by county commissioners.

In the absence of any reason being advanced for invalidating an otherwise valid signature upon such a super-technicality, this court should hold that on a referendum petition the omission of the ward and precinct following the signer’s name and correct address does not invalidate that signature.