Opinion
Nos. 72-676 and 72-738
Decided October 20, 1972.
Elections — Initiative petition — Proposed constitutional amendment — Duties of Secretary of State — Mandamus and prohibition — Remedies not available, when — Section 1g, Article II, Constitution.
IN MANDAMUS.
IN PROHIBITION.
These two original actions by relators seeking writs of mandamus and prohibition were each commenced prior to case No. 72-749, State, ex rel. Schwartz, v. Brown, post, 32 Ohio St.2d 4.
In case No. 72-676, relators, as taxpayers and electors, seek to require the respondent, Secretary of State, to recall the initiative petition and all part-petitions, filed with him on August 9, 1972, which he had forwarded to various boards of elections. The initiative petition proposed that a constitutional amendment, pertaining to restriction of taxation of income unless such tax were approved by a majority of electors, be placed on the ballot at the general election to be held on November 7, 1972. Additionally, relators seek generally to prohibit respondent from any action or effort relative to placing the proposed constitutional amendment on the ballot.
Relators' contention, in case No. 72-676, is that the initiative petition constitutes an attempted referendum of a tax levy, in violation of Section 1d, Article II of the Ohio Constitution.
In case No. 72-738, relators also seek writs of prohibition and mandamus. Specifically, they seek to prevent respondent from giving the proponents of the initiative petition an additional ten days for the procurement of additional signatures. It is relators' contention in case No. 72-738 that respondent does not have enough information from which to make a determination that there are insufficient signatures on the original part-petitions.
Relators have moved to consolidate these actions, together with a third action (case No. 72-749), for the reason that they involve the same questions of law and fact.
In cases Nos. 72-676 and 72-738, respondent has answered with the defense that no cause of action has been stated in either prohibition or mandamus.
Messrs. Vorys, Sater, Seymour Pease, Mr. Herbert R. Brown, Mr. Jacob E. Davis, II, and Mr. David S. Cupps, for relators.
Mr. William J. Brown, attorney general, and Mr. Thomas V. Martin, for respondent.
In cases Nos. 72-676 and 72-738, relators' motion for consolidation of the actions is sustained. Case No. 72-749, will be considered separately.
The initiative petition involved herein proposes a constitutional amendment. Although it pertains to the taxation of income, it is not a referendum of a specific tax levy as contended in case No. 72-676, and therefore is not prohibited by Section 1d, Article II of the Ohio Constitution.
As to relators' claim in case No. 72-738, R.C. 3519.15 imposes a duty on the Secretary of State to forward the part-petitions involved herein to the various boards of elections, and authorizes the boards to perform certain duties with respect to the validity of the part-petitions and the signatures thereon. Respondent has properly fulfilled that statutory duty.
Section 1g, Article II of the Ohio Constitution, imposes certain ministerial duties upon the Secretary of State with respect to initiative petitions. There has been no showing here that the Secretary of State is proceeding other than in the performance of such duties, and no showing that the acts sought to be prohibited constitute a usurpation of quasi-judicial power. State, ex rel. Nolan, v. Clen-Dening (1915), 93 Ohio St. 264; State, ex rel. Winnefeld, v. Court of Common Pleas (1953), 159 Ohio St. 225; State, ex rel. Staton, v. Common Pleas Court (1965), 5 Ohio St.2d 17; State, ex rel. Stefanick, v. Municipal Court (1970), 21 Ohio St.2d 102.
For the foregoing reasons, in cases Nos. 72-676 and 72-738, respondent's answers, treated as motions to dismiss, are sustained and the complaints are dismissed.
Complaints dismissed.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN, LEACH and BROWN, JJ., concur.