Summary
holding that a party's actual intent was irrelevant, and that knowledge merely required that one be aware of existing facts
Summary of this case from In re Jvd. Campaign Comd. Against EmrichOpinion
No. 70-588
Decided October 21, 1970.
Elections — Local option — Petitions — Validity — Circulator permitting person to sign another's name — R.C. 3501.38 — Requirements — Prohibition — Writ allowed, when.
IN PROHIBITION.
This is an action in prohibition originating in this court, in which relators seek to prevent respondents, members of the Board of Elections of Portage County, from submitting to the electors the question of the sale of beer in Ward 4 in the city of Kent.
In August 1970, a petition was filed with the board of elections, requesting an election under R.C. 4305.14 on the question of the sale of beer in Ward 4.
Relators herein filed a protest on the grounds that (1) the oath of the circulator did not comply with R.C. 3501.38, (2) one of the names on one of the part petitions was signed by someone other than the person so named in the presence of and with the knowledge of the circulator and that under the provisions of R.C. 3501.38(F) this invalidated the whole part petition, and (3) the area was not in fact a residential district.
The board overruled the protest and the relators instituted the present action. The cause is before the court on the petition, the answer and a stipulation of facts.
It is stipulated that 279 signatures are required for a valid petition, that the original petitions as filed with the board of elections contained 311 signatures, of which the board found 287 to be valid.
It is stipulated further that the name of Jerry Smith, appearing on one of the part petitions, was signed in his presence and with his consent by his wife, with the knowledge and permission of the circulator. The board found his signature to be invalid but did not invalidate the other 11 signatures appearing on that part petition.
Messrs. Milligan Milligan and Mr. H.W. Kane, for relators.
Mr. R.J. Kane, prosecuting attorney, and Mr. Chester A. Enlow, for respondents.
The first question presented by this case is whether the signing of another's name on an election petition, with the consent of such person and with the knowledge and permission of the circulator, invalidates only that signature or whether such act invalidates the whole part petition?
The determination of that question, and of the validity of that part petition, is controlled by R.C. 3501.38(D) and (F).
Subsection (D) reads as follows:
"No person shall write any name other than his own on any petition. No person may authorize another to sign for him."
That subsection would invalidate the signature itself.
Subsection (F) reads as follows:
"If a circulator knowingly permits an unqualified person to sign a petition paper or permits a person to write a name other than his own on a petition paper, that petition paper is invalid; otherwise the signature of a person not qualified to sign shall be rejected but shall not invalidate the other valid signatures on the paper."
Under that subsection, if the circulator knowingly allows a person to write a name other than his own on the petition, such event invalidates the whole part petition.
Respondent contends that the word "knowingly" imports that such act was done with fraudulent intent, and that in this case no such intent existed.
That subsection is clear on its face and requires no interpretation. It is presumed, in the absence of evidence to the contrary, that a legislative body uses words in their ordinary sense.
The word "knowingly," as used in the statute, is used in its ordinary and common meaning that one is aware of existing facts. The statute clearly prohibits one person from signing the name of another and provides that if this is done with the knowledge of the circulator that whole part petition is invalid.
Thus, regardless of the intent of the circulator or the parties, the signing of another's name with the knowledge of the circulator invalidates that whole part petition.
The determination that this part petition is invalid reduces the number of valid signatures presented to the board to 276, which is less than the necessary number to require the issue to be submitted to the voters.
It is unnecessary to consider the other questions raised by relator, inasmuch as the disqualification of this one part petition prevents the submission of the issue.
Writ allowed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.