Thrailkill v. Smith
| Decision Date | 18 October 1922 |
| Docket Number | No. 17728.,17728. |
| Citation | 106 Ohio St. 1,138 N.E. 532 |
| Parties | THRAILKILL et al. v. SMITH, Secretary of State. |
| Court | Ohio Supreme Court |
THRAILKILL et al.
v.
SMITH, Secretary of State.
No. 17728.
Supreme Court of Ohio.
Oct. 18, 1922.
Error to Court of Appeals, Franklin County.
Suit by one Thrailkill, a taxpayer, and others, against Harvey C. Smith, Secretary of State, for an injunction. A judgment for defendant was affirmed by the Court of Appeals, and plaintiffs bring error. Affirmed.
Section 1g, article II, of the Ohio Constitution, provides that the names of signers to initiative, supplementary, or referendum petitions shall be written in ink. This provision is complied with if the required number of names is written in indelible pencil.
Section 1a, article II, provides that when a petition is filed with the secretary of state proposing an amendment to the Constitution the same shall be submitted at the next succeeding regular or general election occurring subsequent to 90 days after the filing of such petition. In calculating such 90-day period the day of filing shall be included and the election day shall be excluded.
In submitting to the voters proposals for amendments to the Constitution, the ballots shall be prepared in form and substance as required by section 5019, General Code, and that section is complied with if such amendments are submitted upon a separate ballot with the words ‘Proposed Amendments to the Constitution’ printed at the top thereof, and each particular proposal is so stated as to identify and clearly designate such proposal. It is one of the purposes of that statute to prevent each proposal on such ballot from becoming confused in the mind of the voter with other proposals concurrently submitted. Neither the letter nor the spirit of the Code provision requires that the title, or text, or a true copy of the proposed amendment, be printed on the ballot.
Section 1e, article II, of the Constitution, does not forbid the employment of the initiative in proposing an amendment to the Constitution, which authorizes legislation providing for classification of property for the purpose of levying different rates of taxation thereon.
[138 N.E. 533]
[Ohio St. 2]L. D. Johnson, C. H. Duncan, and M. E. Thrailkill, all of Columbus, for plaintiffs in error.
John G. Price, Atty. Gen., and Clarence D. Laylin and R. R. Zurmehly, both of Columbus, for defendant in error.
Alfred Bettman, of Cincinnati, for proponents of amendments.
[Ohio St. 3]MARSHALL, C. J.
This cause comes to this court on error from the Court of Appeals of Franklin county. It was originally begun in the court of common pleas, and the sole relief prayed for was that the secretary of state be enjoined from submitting to the electors of the state of Ohio, at the election to be held November 7, 1922, a proposed amendment to the Constitution, which proposed amendment, among other provisions, relates to the classification of property for purposes of taxation.
Four principal grounds are set out in two separate causes of action:
First, it is urged that the petitions which have been filed in the office of the secretary of state, while containing the requisite number of signatures, do not contain a sufficient number of signatures written in ink, as required by section 1g, article 2, of the Ohio Constitution.
Second, that the petitions were not filed in the office of the secretary of state 90 days before the November election.
Third, that the matter contained in the synopsis of the proposed amendment furnished by the secretary of state and printed upon the ballot is misleading, and constitutes a gross abuse of discretion upon the part of the secretary of state.
Fourth, that by virtue of the provisions of section 1e, article 2, of the Constitution, the initiative and referendum provisions cannot be employed for the purpose of proposing an amendment to the Constitution authorizing classification of property for the purpose of levying different rates of taxation thereon.
[Ohio St. 4]These questions will be briefly disposed of in the order above named.
[1] First. Is there a sufficient number of signatures written in ink? It is conceded that if signatures written by means of an indelible pencil are lawful, the number of signatures is sufficient, not only as to the total number required, but also as to the necessary percentage of signatures from each of one-half the counties of the state. The constitutional provision requiring construction is found in section 1g, article 2, as follows: ‘The names of all signers to such petitions shall be written in ink, each signer for himself.’ The petition alleges the insufficiency of the petitions on the ground that the greater number of signatures was written in indelible pencil. The question therefore is squarely presented whether the use of indelible pencil is a compliance with the above-quoted provision of the Constitution. The demurrer to the petition admits the truth of this allegation of the petition, and this court, in order to find the petitions sufficient, must therefore not only determine that indelible pencil is ink, but is also required to take judicial notice of that fact. It is a rule of law, which has been declared by the federal courts, in which rule we concur, that courts may take judicial notice of any scientific fact which may be ascertained by reference to a standard dictionary. By reference to dictionaries and other standard scientific treatises we are not able to find that ink must be manufactured from any particular ingredients, and in fact it is a matter of common knowledge that ink can be manufactured from a great variety of substances. By reference to Funk & Wagnalls' Standard Dictionary we find the only information[Ohio St. 5]which seems to have any direct bearing upon this subject, where ink-pencil is defined as ‘a pencil in which a solid indelible pigment takes the place of the usual lead.’ It is not denied that the pencil which was in fact used by the signers to these petitions is indelible, and that it therefore contains the pigment which distinguishes an ink-pencil from the ordinary lead pencil. We cannot therefore say as a matter of law that an indelible pencil is not ink. We are the more impelled to this conclusion because of the extreme difficulties which would be placed in the way of circulating such petitions if it were necessary to use pen and ink instead of an ink-pencil. Inasmuch as the constitutional framers provided that laws may be passed to facilitate the operation of the constitutional provisions, it is the plain duty of the courts in construing the constitutional provisions to give them such construction as will facilitate rather than obstruct their...
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