Opinion
No. 34930
Decided May 1, 1957.
Mandamus — Relator may maintain action, when — Pleading — Petition — Form of prayer immaterial, when — Judgment awarded for relief warranted by allegations of petition — Elections — Initiative petition — Proposed amendment to city charter — Sufficiency of affidavit — Duty of legislative authority when petition submitted to it — Section 9, Article XVIII, Constitution — Petition filed with auditor or clerk — Sections 731.28 and 731.32, Revised Code, inapplicable, when — Number of valid signatures to petition ascertained, how.
1. An action in mandamus, where the relief sought is the enforcement of a public duty by a public officer or board, may be maintained by the relator, where he shows that he is a citizen and as such is interested in the execution of the laws.
2. Where the allegations of a petition are sufficient to warrant the general relief sought, the form of the prayer is immaterial, and where the prayer is for general relief the court will shape its judgment according to the equity of the case and grant any relief warranted by the allegations of the petition.
3. Where an intiative petition is captioned "Petition of Electors of the City of Cincinnati," a part petition containing an affidavit which recites that such part petition contains the signatures of a specified number of "electors" is not rendered defective by the fact alone that the affidavit does not also recite that such electors are electors of the city of Cincinnati.
4. Under the provisions of Section 9, Article XVIII, Constitution of Ohio, an initiative petition to amend a city charter must be submitted to the legislative authority of the city, whereupon it is the duty of such legislative authority to determine the validity of the petition and, where it finds the petition valid, to submit the question to the electors.
5. The provisions of Sections 731.28 and 731.32, Revised Code, relative to the filing of an intiative petition with the city auditor or village clerk and to the certification of the ordinance or measure by such auditor or clerk to the board of elections do not apply to an initiative petition to amend a city charter, filed pursuant to Section 9, Article XVIII, Constitution of Ohio.
6. In ascertaining the number of valid signatures on an initiative petition, the number of signatures actually found to be invalid, after a complete and final examination, is deducted from the total number of signatures on the entire petition, and any signatures which, for any reason, have not been examined are presumed to be valid.
APPEAL from the Court of Appeals for Hamilton County.
Relator's petition in mandamus, filed in the Common Pleas Court of Hamilton County, alleges, in substance, that there were filed with the city council of Cincinnati, 777 part petitions containing signatures in excess of 10 per cent of the electors of the city and petitioning the council to submit to the electors, pursuant to Section 9, Article XVIII of the Constitution, a proposed amendment to the city charter, effecting a change in the method of electing members of the council.
Relator alleges further that the council of the city of Cincinnati refused to certify the question to the Board of Elections of Hamilton County.
Respondents' amended answer admits the filing of the part petitions with the clerk of council but denies that council found a sufficient number of valid signatures thereon. The amended answer also sets out five additional defenses: (1) That relator is not a proper party to bring the action; (2) that the court has no power to grant the relief prayed for inasmuch as the petition seeks an order fixing a specific date for the election; (3) that relator failed to file a verified copy of the proposed measure with the finance director of the city prior to circulating the initiative petition; (4) that the affidavits of the solicitors of signatures do not state, as required by law, that such solicitors believe the persons signing are electors of the city; and (5) that a special committee of city council found that the number of valid signatures is insufficient, and that council, pursuant to the report of such special committee, refused to certify the question to the board of elections.
Relator's reply is a general denial.
The Common Pleas Court granted the prayer of the petition, and, pursuant to an order therefor, a peremptory writ of mandamus was issued.
An appeal was perfected to the Court of Appeals for Hamilton County, which court, with one judge dissenting, reversed the judgment of the Court of Common Pleas and ordered the petition of relator dismissed.
The cause is before this court as an appeal of right and upon the allowance of relator's motion to certify the record.
Mr. Sol Goodman and Mr. Stanley Goodman, for appellant.
Mr. Henry M. Bruestle, city solicitor, Mr. Ed F. Alexander, Mr. Robert P. Goldman, Mr. C. Watson Hover, prosecuting attorney, and Mr. Carl Rubin, for appellees.
The capacity of relator as a taxpayer to maintain this action was decided by both courts below in relator's favor, and we believe properly so. Brissel et al., Commrs., v. State, ex rel. McCammon, 87 Ohio St. 154, 100 N.E. 348. See, also, the distinction between the enforcement of private rights and that of public rights as delineated by Longworth, J., in State, ex rel., v. Henderson, 38 Ohio St. 644, 648.
We are also of the opinion that the courts below were correct in holding that relator should not be denied relief for the sole reason that the prayer of his petition seeks an election on a particular day. The prayer of the petition asks also "for all other relief that is proper in such cases, either at equity or law." Neither the relator nor the court can compel council to fix a particular date for holding an election. Where the allegations of a petition are sufficient to warrant the general relief sought, the form of the prayer is immaterial, and, where the prayer is for general relief, the court will shape its judgment according to the equity of the case and grant any relief warranted by the allegations of the petition. Riddle v. Roll, 24 Ohio St. 572; State, ex rel. Keyser, v. Babst, 101 Ohio St. 275, 128 N.E. 140; State, ex rel. Masters, v. Beamer et al., Board of Education, 109 Ohio St. 133, 141 N.E. 851.
Respondents contend, and a majority of the Court of Appeals held, that the entire initiative petition filed by relator is defective because the affidavit accompanying each part petition does not recite that the circulator believes each signer thereof is an elector of the city of Cincinnati, as required by Section 731.31, Revised Code. The affidavit recites in part: "The foregoing petition containing the signatures of . . . . electors." However, at the top of the petition, printed in large bold type, appears the following language: "Petition of electors of the city of Cincinnati * * *."
We are in accord with the reasoning of Judge Weber of the Common Pleas Court and approve the following language used by him in regard to identification of the signers:
"If the above parts of the form of the petition used in this case are read together and it is also taken into consideration that the precinct and ward of the signer must be given and is easily checked, the conclusion must be reached that adding the words `of the city of Cincinnati' after the word `electors' in the affidavit, would in no way furnish protection against fraudulent or otherwise legal faults in the petition. To invalidate the entire petition, containing more than 32,000 names, for this cause would be an unwarranted effort to prevent rather than promote the exercise of the constitutional right to initiate this amendment to the charter."
Section 731.32, Revised Code, provides:
"Whoever seeks to propose an ordinance or measure in a municipal corporation by initiative petition or files a referendum petition against any ordinance or measure shall, before circulating such petition, file a verified copy of the proposed ordinance or measure with the city auditor or the village clerk."
Although the city of Cincinnati has neither an auditor nor clerk, the finance director of Cincinnati performs the duties customarily performed by such designated officials. Respondents contend, and a majority of the Court of Appeals held, that, because a verified copy of the "proposed ordinance or measure" was not filed, before circulating the petition, with the finance director, the petition is invalid. This position is fortified by the decision of this court in State, ex rel. Poor, v. Addison et al., Council, 132 Ohio St. 477, 9 N.E.2d 148, which held that "the proposed amendments to the charter of Columbus under consideration in the case at bar come within the term `other measures' in the foregoing section [Section 4227-1, General Code; now Section 731.28, Revised Code]."
Although the writer of this opinion entertains some doubt as to the soundness of the decision in the Poor case if applied as broadly as it was by the majority of the Court of Appeals in this case, he is willing to concede that under that decision certain sections of the Revised Code may apply to proposed charter amendments to the extent, at least, that they do not conflict with provisions of the Constitution. And this court rightly found in the Poor case that there is no conflict between the provisions of the Constitution and the statutory requirement of placing the ward and precinct after the name of a signer of an initiative petition.
Section 1 f, Article II of the Constitution, insures the right of initiative and referendum as follows:
"The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law."
This court has recently held that this constitutional provision is not self-executing, and that the procedure incident to the exercise of the right must be set out by statute. Dubyak, Jr., v. Kovach, Mayor, 164 Ohio St. 247, 129 N.E.2d 809. See, also, Shryock, a Taxpayer, v. City of Zanesville, 92 Ohio St. 375, 110 N.E. 937; Dillon v. City of Cleveland, 117 Ohio St. 258, 158 N.E. 606.
Section 3, Article II of the Charter of the City of Cincinnati, provides that "the initiative and referendum powers * * * shall be exercised in the manner provided by the laws of the state of Ohio." Respondents contend that, under this provision of the charter, the state statute requiring submission of the proposed ordinance or measure to the city auditor or village clerk (finance director) must be applied. This position is tenable only if the statute (Section 731.32, Revised Code) and the constitutional provisions involved are not in conflict. See State, ex rel. Portmann, v. City Council of City of Massillon, 134 Ohio St. 113, 16 N.E.2d 214, where, in the opinion by Gorman, J., it is said: "We have held that petitions in the nature of an initiative, not a referendum, to amend a municipal charter should comply with the statutory provisions contained in Section 4227-1 et seq., General Code, if not inconsistent with the provisions of the Constitution. State, ex rel. Poor, v. Addison et al., Council, 132 Ohio St. 477, 9 N.E.2d 148." (Emphasis added.)
The constitutional provisions for adopting and amending city charters are found in Sections 8 and 9 of Article XVIII.
Section 8 provides, in part:
"The legislative authority of any city or village may by a two-thirds vote of its members, and upon petition of ten per centum of the electors shall forthwith, provide by ordinance for the submission to the electors, of the question, `shall a commission be chosen to frame a charter.'"
Section 9 provides, in part:
"Amendments to any charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof, and, upon petitions signed by ten per centum of the electors of the municipality setting forth any such proposed amendment, shall be submitted by such legislative authority. The submission of proposed amendments to the electors shall be governed by the requirements of Section 8 as to the submission of the question of choosing a charter commission * * *."
This court held in State, ex rel. Hinchliffe, v. Gibbons et al., City Council, 116 Ohio St. 390, 156 N.E. 455, that a petition proposing an amendment to the charter of a city, under the provisions of Section 9, Article XVIII, must be submitted to the city council, and that it is the duty of council to determine the validity of the petition. See, also, State, ex rel. Waltz, a Taxpayer, v. Michell, 124 Ohio St. 161, 177 N.E. 214.
The very plain wording of Section 9, Article XVIII, places the duty to submit a proposed amendment to the electors upon the council and the council alone. It provides further that the submission shall be governed by the requirement of Section 8, Article XVIII, that the council shall provide by ordinance for the submission to the electors. It is clear that once a petition for a charter amendment containing sufficient valid signatures is filed with the council, the only body or person thereafter charged with any duty of submitting the question to the electors is the city council.
Let us now consider Section 731.32, Revised Code, and related sections, in the light of the provisions of Section 9, Article XVIII of the Constitution.
Section 731.32, Revised Code, provides that a verified copy of the proposed ordinance or measure must be filed with the city auditor or village clerk prior to circulating the petition. Section 731.28, Revised Code, provides that, when a petition signed by the required number of electors is filed with such auditor or clerk, he shall after ten days certify the proposed ordinance or measure to the board of elections.
If the provisions of these sections are applied to a proposed amendment to a city charter, a conflict with Sections 8 and 9, Article XVIII of the Constitution, is readily apparent. Under the provisions of the Constitution, the petition is filed with the council; the auditor or clerk never sees it and has no duty to perform in regard to it. Under the provisions of the statute, the petition is filed with the auditor or clerk who retains it; the council never sees it and has no duty to perform in regard to it.
Under the Constitution and the Hinchliffe case, supra, the council determines the validity of the petition, and, where it determines the petition to be valid, council has a mandatory duty to submit the question to the electors. Under the statutory provisions the text of the proposed ordinance or measure must be certified to the board of elections by the auditor or clerk; it is then the mandatory duty of the board of elections and not council to submit the question to the electors.
Because of this conflict between the constitutional and statutory provisions, we are of the opinion that a failure to comply with the requirement of Section 731.32, Revised Code, that the proposed charter amendment be filed with the city auditor or village clerk (finance director) prior to circulating the initiative petition, does not invalidate the petition.
The only remaining question is whether the petition filed with the city council contains a sufficient number of signatures.
Following the decision of this court in the Waltz case, supra, the General Assembly added the following language to Section 4227-4, General Code (Section 731.31, Revised Code):
"In determining the sufficiency [later changed to "validity"] of any such petition all signatures which are found to be irregular shall be rejected, but no petition shall be declared invalid in its entirety when one or more signatures are found to be invalid, except when the number of valid signatures shall be found to be less than the total number required."
It is obvious, under this language, that no signature can be rejected without a finding that it is invalid. It was aptly stated by Judge Weber:
"* * * a finding means that there must be some final determination, after examination, that the signature is infected with some plausible legal defect. And considered, as it must be, in connection with the sentence which immediately follows that, `the petitions and the signatures upon such petitions shall be prima facie presumed to be in all respects sufficient.'
"The added provision certainly means that there can be no assumption that any signature not completely and finally examined is invalid. On the contrary, any signature which is not examined and rejected for some plausible legal defect must be presumed to be valid and counted as such. It certainly does not mean that only part of the signatures can be examined and then by deducting those actually found to be invalid from the number of those examined it can be concluded that the difference is all of the valid signatures. On the contrary, to ascertain the number of valid signatures, the number of signatures actually found to be invalid, after a complete and final examination, must be deducted from the total number of signatures on the entire petition; the signatures which, for any reason, have not been examined must be presumed to be valid."
From the maze of figures appearing in the record, it can be concluded that from 9,000 signatures appearing on 228 part petitions to 10,790 appearing on 237 part petitions were not examined by city council. Giving to those not examined the prima facie presumption of validity required by Section 731.31, Revised Code, and adding them to the number of valid signatures found by council, the number of signatures aggregates far more than that required to impose upon the city council the mandatory duty of submitting the question to the electors.
For the foregoing reasons, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, SKEEL, MATTHIAS and HERBERT, JJ., concur.
in paragraphs two through six of the syllabus and in the judgment. In my opinion, paragraph one of the syllabus is not only inconsistent with the decision in State, ex rel. Skilton, v. Miller, Judge, 164 Ohio St. 163, 128 N.E.2d 47 (a decision with which I did not concur) but also is not applicable to the facts of this case. The petition does not allege that relator is a citizen or even that he is a resident of Cincinnati. The caption, which gives a Cincinnati address for him, is not a part of the petition supported by the required affidavit relative to the allegations in the petition. However, the petition does allege that relator is a taxpayer of Cincinnati; and that fact is admitted by the amended answer; and, as such taxpayer and in view of other allegations of the petition which are fully supported by the evidence, relator was specifically authorized by statute to bring an action of this kind. Sections 733.58 and 733.59, Revised Code. Those statutes were not applicable in State, ex rel. Masterson, a Taxpayer, v. Ohio State Racing Commission, 162 Ohio St. 366, 123 N.E.2d 1. In State, ex rel. Brophy, v. City of Cleveland, 141 Ohio St. 518, 49 N.E.2d 175, it did not appear that relator was a taxpayer. Hence, I agree with the conclusion stated in the majority opinion of the Court of Appeals "that the trial court did not err in its judgment that the relator could maintain this action as a taxpayer."
SKEEL, J., of the Court of Appeals of the Eighth Appellate District, sitting by designation in the place and stead of STEWART, J., pursuant to Section 2, Article IV of the Constitution.