Opinion
No. 32427
Decided May 31, 1951.
Municipal corporations — Initiative ordinance — Initiative petition rejected by city commission — Invalid for insufficient signatures — Not cured by surplusage of signatures on second petition — No further official duty required — Mandamus — To compel action pursuant to charter provisions — Relator cannot attack provisions.
1. In an action in mandamus to compel city officials and a board of elections to take certain action pursuant to provisions of a city charter, the relator has no standing to attack the constitutional validity of those provisions.
2. Where the initiative provisions of a city charter require the filing of a petition signed by at least five per cent of the total number of registered voters in the municipality and provide that, if the city commission rejects the proposed ordinance, a second petition may then be filed bearing additional signatures of five per cent of the electors of the city, none of whom were signers of the first petition, and that after such second petition has been filed the clerk shall cause notice of its filing to be published and shall certify the proposed ordinance to the election officials, invalidity of the first petition by reason of its bearing valid signatures of less than five per cent of the total registered voters in the municipality is not cured by a surplusage of valid signatures on the second petition. If the first petition so filed is invalid for lack of the required number of signatures and is rejected by the city commission for that reason, neither the city officials nor the election officials are under any duty or obligation to take further action with respect to the ordinance proposed by the petition.
IN MANDAMUS.
This is an action in mandamus originating in this court to compel the clerk of the City Commission of the City of Springfield and the Clark County Board of Elections to submit to the electors of the city of Springfield an ordinance proposed by initiative petition to amend and supplement an existing ordinance. The ordinance which was proposed to be amended had been passed by the city commission of Springfield on May 24, 1948, was known as ordinance No. 4741 and became effective July 1, 1948. It provided for a tax of one per cent on certain specified types of income. The amending ordinance proposed by initiative would reduce the rate of the tax to one-half of one per cent and make certain provisions for exemptions. The charter of the city of Springfield contains comprehensive provisions authorizing the initiative, including the following:
Section 53. "Any proposed ordinances, including ordinances for the repeal or amendment of an ordinance then in effect, may be submitted to the city commission by petition signed by at least five per cent of the total number of registered voters in the municipality. All petitions circulated with respect to any proposed ordinance shall be uniform in character, shall contain the proposed ordinance in full, and shall have printed or written thereon the names and addresses of at least five electors, who shall be officially regarded as filing the petition and shall constitute a committee of the petitioners for the purpose hereinafter named.
"Each signer of a petition shall sign his name in ink or indelible pencil and shall place on the petition, opposite his name, the date of his signature and his place of residence by voting precinct and by street and number. The signatures to any such petition need not all be appended to one paper, but to each such paper there shall be attached an affidavit by the circulator thereof, stating the number of signers to such part of the petition and that each signature appended to the paper is the genuine signature of the person whose name it purports to be, and that it was made in the presence of the affiant and on the date indicated."
Section 54. "All papers comprising a petition shall be assembled and filed with the clerk of the city commission as one instrument, within one hundred and twenty days from the date of the first signature thereon, and when so filed, the clerk shall submit the same to the city commission at its next regular meeting and provision shall be made for public hearings upon the proposed ordinance."
Petitions were circulated between May 4, 1950, and August 21, 1950, on which latter date they were filed with the clerk of the city commission as one consolidated petition. On the evening of August 21, 1950, the petition was submitted to the city commission in regular session. The commission ordered its clerk to have the petition checked to determine its adequacy, sufficiency and validity and authorized the clerk to utilize the facilities of the Clark County Board of Elections and such other means as were necessary and proper for the accomplishment of that purpose.
At the time said petition was so filed there were in the city of Springfield 31,345 registered voters. Five per cent of the registered voters was 1,568. The initiative petition contained 1,810 names. The check of the petition made by the clerk of the city commission with the assistance of the board of elections and certain others indicated that many signatures on the petition were invalid or irregular and that the number of valid signatures thereon was less than the required number of 1,568. The city commission accepted the report of the check of the petition and on September 20, 1950, formally rejected the petition by ordinance declaring it to be insufficient, inadequate and invalid for the reasons therein set forth.
Section 55 of the charter provides in substance that if the city commission rejects a proposed ordinance the petitioners by written demand filed within 20 days after such final action may require that the proposed ordinance be submitted to a vote of the electors in its original form "if, with or prior to such demand, a petition for such election, signed after the final action or inaction of the city commission, is filed with such clerk bearing additional signatures of five per cent of the electors of the city, none of whom were signers of the first petition." That section then continues: "Such clerk shall forthwith cause notice of the filing of such demand and petition to be published in some newspaper of general circulation in the city, and shall also within five days certify to the officers having control of elections the proposed ordinance, stating whether or not a special election is demanded in the petitions, the percentage of registered voters who signed the two petitions in the aggregate, and the date on which he published the notice last mentioned."
On October 3, 1950, the petitioners did file with the city commission a second petition purporting to contain 2,574 additional signatures. Some check was made of the names appearing upon the second petition but notice of the filing of such demand and petition was not published in any newspaper and no certificate was issued to the board of elections with respect to placing the petition upon the ballot at any election.
This action in mandamus was instituted on October 17, 1950. The prayer of the petition is:
"Relator prays that a peremptory writ of mandamus be issued directing the defendant herein, Mrs. M. Lucille Shaffer, clerk of the City Commission of Springfield, Ohio, to comply with her mandatory obligation to cause notice of filing of this demand to be published in some newspaper of general circulation in the said city and also to certify to the officers having control of elections the proposed ordinance, that a special election is demanded, the percentage of registered voters who signed the two petitions in the aggregate and the date on which she published the notice last mentioned."
The petition also prays for an alternative writ requiring the board of elections to place the initiated ordinance on the ballot for the election of November 7, 1950.
Messrs. Seip Seip, for relator.
Mr. Thos. D. Hodge, Mr. Robert C. Acton, Mr. Richard T. Cole, Mr. Stanley N. Husted, prosecuting attorney, and Mr. Glenn E. Detling, for respondents.
Several legal questions are raised by the relator in argument. Some of them are not controlling and need not be discussed.
It is argued that all the initiative sections of the charter are unconstitutional because of the requirement that the number of signatures be based upon the number of electors registered at the county board of elections on the day the petition is filed. Such provision is not unreasonable and is not in conflict with any provision of the Ohio Constitution. Furthermore, the relator has no standing to challenge the constitutionality of the initiative provisions of the city charter while seeking to compel the city officials and board of elections to effectuate those provisions. State, ex rel. Synod of Ohio of United Lutheran Church in America, v. Joseph et al., Comm. of Village of Upper Arlington, 139 Ohio St. 229, 39 N.E.2d 515, 138 A.L.R., 1274.
The relator contends that the city commission had no right to determine the validity of the signatures on the petition. It was not only the right but the duty of the commission to have the signatures on the petition checked under its supervision. Although there is vested in the citizens of the city of Springfield the right to propose legislation by initiative petition, such right must be exercised in conformity with the provisions of the city charter and it is the duty of the commission to determine that this has been done. State, ex rel. Hinchliffe, v. Gibbons et al., City Council of Cleveland, 116 Ohio St. 390, 156 N.E. 455; State, ex rel. Waltz, a Taxpayer, v. Michell, 124 Ohio St. 161, 177 N.E. 214; State, ex rel. Kittel, a Taxpayer, v. Bigelow et al., Council of City of Cincinnati, 138 Ohio St. 497, 37 N.E.2d 41.
Any question as to whether the proposal of an ordinance by initiative in a charter city is governed by the provisions of the city charter or by the initiative provisions of the General Code is settled by Section 4227-12, General Code, which provides:
"The provisions of Sections 4227-1 to 4227-13 inclusive shall not apply to any municipality that has or may hereafter adopt its own charter which contains an initiative and referendum provision for its own ordinances and other legislative measures."
The remaining important question to be determined by this court is the sufficiency of the initiative petition filed August 21, 1950. The city charter clearly requires that the petition be signed by at least five per cent of the total number of registered voters in the municipality. There were 31,345 registered voters. Five per cent thereof is 1,568. Following the filing of the petition for mandamus herein depositions were taken on behalf of both relator and respondents for the purpose of testing by evidence the check made of the signatures upon the first petition and the validity of the signatures appearing thereon. A careful study and analysis of the evidence so produced in deposition form convince this court that the petition filed August 21, 1950, contained fewer than the required 1,568 valid signatures of registered voters of the city of Springfield.
This court finds upon the evidence as follows:
Eight signatures appearing on the petition were those of nonresidents of the city of Springfield.
One hundred and seventy signatures are found to be those of persons who were not registered voters. These signatures are invalidated both by the provisions of the city charter and by the terms of Section 4785-34, General Code.
Thirty-four signatures were not written in ink or indelible pencil as required by the city charter. A similar requirement, in connection with proposals of state legislation or constitutional amendments, is set forth in Section 1 g, Article II of the Constitution of Ohio, which provides that "the names of all signers to such petitions shall be written in ink, each signer for himself." In construing that section of the Constitution this court held the use of an indelible pencil to be the equivalent of signing in ink. Thrailkill, a Taxpayer, v. Smith, Secy. of State, 106 Ohio St. 1, 138 N.E. 532. That each signature must be in ink or indelible pencil is mandatory. State, ex rel. Smith, v. Lloyd et al., Board of Deputy State Supervisors and Inspectors of Elections, 93 Ohio St. 20, 112 N.E. 141.
Four signatures were duplications and, therefore, invalid.
Forty-two signatures were found not to be the genuine signatures of the persons whose names appeared on the petition. The city charter requires that "each signer of a petition shall sign his name in ink or indelible pencil." (Emphasis supplied.) This requires that each person affix his own signature and invalidates those not so affixed.
In connection with three signatures, fictitious addresses were given. The charter requires that correct addresses be stated.
The foregoing list of invalid signatures totals 261. The validity of many other signatures is questioned but it is unnecessary to consider them.
The foregoing demonstrates conclusively that the city commission was justified in rejecting the petition on the ground that it did not contain the required number of valid signatures.
The provisions of section 55 of the city charter which create certain rights in petitioners upon the filing of a second petition after rejection of "the proposed ordinance" become operative only upon condition that the first petition conforms in all respects to the requirements of the charter and is valid. In this instance we do not have a situation where a valid and sufficient petition was filed and the ordinance proposed by that petition was rejected. On the contrary, an insufficient petition was filed and was rejected by the city commission because of its insufficiency. The invalidity of the first petition was not and could not be cured by the filing of a second petition, even though the second petition might have contained a sufficient surplus of valid signatures to make up the deficiency in signatures on the first petition.
Under the circumstances as above stated, the clerk of the city commission was under no obligation to cause notice of filing of the demand for publication made by the relator or to certify the proposed ordinance to the board of elections, nor was the board of elections obligated to cause the proposed ordinance to be placed upon the ballot at any future election, regular or special.
The petition for writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., STEWART, TAFT, MATTHIAS and HART, JJ., concur.
ZIMMERMAN, J., not participating.