Summary
concluding that "the deposit of the cash under circumstances [presented] was in no sense a compliance with this statute"
Summary of this case from In re Appeal in the Cnty. DitchOpinion
No. 27768
Decided February 14, 1940.
Elections — Contest — Section 4785-167, General Code — Bond to accompany petition — Court without jurisdiction when contestors fail to comply with statutory requirements.
1. Under the provisions of Section 4785-167, General Code, relating to the filing of an election contest, the petition shall be accompanied by a bond with surety to be approved by the clerk of the appropriate court in a sum sufficient, as determined by him, to pay all the costs of the contest.
2. In the event of failure of the contestors to comply with the foregoing requirements, the court is without jurisdiction to hear or determine the controversy.
APPEAL from Common Pleas Court of Wood county.
This proceeding was instituted in the Court of Common Pleas of Wood county by twenty-five electors of the village of North Baltimore, Ohio, under the provisions of Section 4785-166 et seq., General Code, to contest a constitutional referendum election specially held in that municipality February 14, 1939.
Submitted at the special election were three resolutions and one ordinance. All four of these related to the plan of the village to purchase or construct and operate an electric light and power plant and distribution system. The ballots were counted and also recounted. The announced result was that all four measures had been approved by majorities ranging from forty-one to fifty-seven votes respectively.
The trial court first overruled the motion of the contestees to dismiss the proceeding for want of jurisdiction. Then it held that the three resolutions were merely incidental to the project and therefore not subject to a referendum. The ordinance, however, was held to be the basic legislative act necessary for the exercise of this power, and therefore properly submitted to the electorate. The court rendered judgment for the contestees in language worded in part as follows:
"This cause came on to be heard upon the pleadings and the evidence.
"The court finds that Ordinance No. 387 was duly approved by the voters of North Baltimore, Ohio, by the vote of 664 'yes' votes and 615 'no' votes at the election held at North Baltimore, Ohio, on February 14, 1939, and that said Ordinance No. 387 was the only issue which could be legally acted upon by the electors of North Baltimore at said election.
"The court further finds that at the election on February 14, 1939, there was no issue to be determined by the electors of North Baltimore, Ohio, as to whether or not bonds of any kind or description were to be issued.
"The court further finds that it is without jurisdiction to determine the percentage necessary of the total number of votes cast at said election for the approval or rejection of the issue submitted at said election to the voters of North Baltimore, to which finding the contestees except. The court further finds that the bond filed by the contestors and the amendment thereto was in conformity under the law, to which finding the contestees except. The court further finds that no notice was mailed by the clerk of the municipality not less than thirty days prior to the date of the election, to wit, February 14, 1939, of the issues to be voted upon by the electors and that said notice was not required for a valid election. The court further finds that there was no evidence as to irregularities, fraud, misconduct, or any error which would have changed any vote or the result of the election.
"It is therefore the judgment, order, and decree of the court that Ordinance No. 387 was duly approved by the voters of North Baltimore, Ohio, by the vote of 664 'yes' votes and 615 'no' votes at the election held in North Baltimore, Ohio, February 14, 1939, said Ordinance No. 387 being the only issue which could be voted therefor."
The case is in this court for a direct review upon the allowance of the motion of the contestors for leave to appeal under favor of Section 4785-172, General Code.
Messrs. Miles O'Brien, Mr. Ray D. Avery, Mr. Kenneth Adams and Mr. Walter S. Jackson, for appellants.
Messrs. Reddin Reddin and Messrs. Newcomer Parker, for appellees.
As stated in the per curiam opinions in the cases of Mehling v. Moorehead, 133 Ohio St. 395, 14 N.E.2d 15, and Jolly v. Deeds, 135 Ohio St. 369, 21 N.E.2d 108, a majority of this court is of the view that Section 4795-172, General Code, is a valid exercise of the grant of legislative power expressed in Section 21 of Article II of the Constitution of Ohio, and that direct appeals from the Court of Common Pleas are therefore procedurally proper inasmuch as they are addressed to the political rather than the judicial power of this court in cases contesting the validity of elections.
The first question now requiring consideration by this court is likewise procedural. It relates to the bond required by Section 4785-167, General Code, which reads in part as follows:
"Said petition shall be accompanied by a bond with surety to be approved by the clerk of the appropriate court in a sum sufficient, as determined by him, to pay all the costs of the contest."
At the hearing the contestees insisted that compliance with this statutory provision is mandatory and that since no bond accompanied the filing of the petition, the Court of Common Pleas was therefore without jurisdiction to hear or determine the controversy.
The record discloses that the petition was filed March 3, 1939. On that date the contestors deposited the sum of $25 in cash with the clerk of the court. The trial began April 20, 1939, at which time the contestors filed two bonds to secure the payment of "all costs which may be adjudged against said petitioners." However, the contestees contend that these acts did not meet the requirements of the statute.
Assuming without deciding that this statute permits a cash deposit in lieu of a cost bond, the record fails to show that the clerk of the court approved this action. Nor is it shown that at that time the clerk determined or even was requested to determine "a sum sufficient * * * to pay all the costs of the contest." Hence the deposit of the cash under such circumstances was in no sense a compliance with this statute.
Similar fatal difficulties are encountered with reference to the two bonds. In the first place they did not accompany the petition but were filed 48 days later. Secondly, no sum is mentioned in either bond. Then too, the record does not disclose that the clerk of the court ever determined or was asked to determine a sum for such a bond or bonds. Possibly it should be added that in its opinion, which is not a part of the record, the trial court says it undertook to grant the contestors leave to file a bond during the trial; but however that may be, the journal of the court is silent on that point, and it is of course still the law that a court speaks through its journal. And finally it must be observed that neither of the two bonds is conditioned "to pay all the costs of the contest," as is expressly required by the statute.
In view of this combination of circumstances this court experiences no difficulty in reaching the conclusion that the contestors wholly failed to comply with the above quoted provisions of Section 4785-167, General Code. Consequently the Court of Common Pleas was without jurisdiction to hear or determine the controversy and should have granted the motion of the contestees to dismiss the proceeding. It is unnecessary to discuss the remaining questions which now become moot.
The judgment of the Court of Common Pleas must be reversed in this respect, and final judgment is rendered for the contestees dismissing the proceeding.
Judgment reversed.
DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.