Witt v. McDonough , 1 Ohio Law. Abs. 686 ( 1923 )

LEVINE, J.

Epitomized Opinion

Peter Witt, a candidate for council at the City of Cleveland in the November election filed an app’ica-r.on lOi a Wm, oi ma.iUauius aga.,.sc the Board of Deputy State Supervisors and Inspectors of Election for Cuyahoga county. Evidence disclosed that Witt filed with this board a nominating petition containing more than 500 signatures of electors of the first-councilmanic district as established by the charter of Cleveland. This petition was filed on June 23, 1923. Section 160 of the Citv Charter provided that within 10 days after the filing of a nominating petition, the board should notifv the person named therein as a candidate, whether the petition is properly signed, whether the petitioners are eligible persons, etc. GC. 5005 provided that unless objections to the nominating papers were filed within five days after the filin'»- of the petition, the petition should be deemed regular. As the board failed and refused to notify Witt as to whether his petition was satisfactory, he filed an application for a writ of mandamus to compel them to so do. Witt contended that as soon as the petition was presented to the board is should be deemed “filed,” while the board contended that the presentation of the petition was not a filing, and should not be so considered until the Board of Elections accepted it and marked it “filed.” In granting the application for a mandamus, the Court of Appeals held:

1. When a relator presented his nominating petition to the Board of Elections at their .office, it was not within their power to refuse to accept it, but must be deemed to have been filed as of that time.

2. As no objections were filed to the petition within five days, as provided by statute, it was the duty of the board to consider the same valid because in apparent conformity with the provisions of the law a notice of that validity should have been given to the petitioner within 10 days.