Markus v. Trumbull County Bd. of Elections
| Decision Date | 27 May 1970 |
| Docket Number | No. 69-491,69-491 |
| Parties | , 51 O.O.2d 277 MARKUS et al., Appellees, v. TRUMBULL COUNTY BOARD OF ELECTIONS et al., Loncar et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. The requirements of Section 1g of Article II of the Ohio Constitution do not apply to a referendum zoning petition filed under R.C. § 519.12.
2. Where statutory provisions relative to the submission of a referendum to the voters have not been complied with, that submission may be enjoined.
3. The ballot statement resulting from a referendum petition is crucial to the integrity of the constitutional safeguard of referendum.
4. The text of a ballot statement resulting from a referendum petition must fairly and accurately present the question or issue to be decided in order to assure a free, intelligent and informed vote by the average citizen affected.
This matter had its inception when appellees filed an application for zoning change with the Howland Township zoning commission, requesting a zoning classification change from 'residential' to 'business and commercial,' for certain real estate owned by them on Elm Road in Howland Township, Trumbull County. After modifying the proposed zone change, the Howland Township zoning commission recommended appellees' request to the Howland Township trustees.
On January 17, 1968, pursuant to R.C. § 519.12, the Howland Township trustees held a public meeting upon the proposed zone change. On February 5, 1968, the trustees voted 2 to 1 to deny the zone change. However, because the trustees did not unanimously reject the recommendation of the zoning commission, the recommendation in favor of the zone change would have become effective 30 days after the action of the township trustees unless, in accordance with R.C. § 519.12, a referendum petition was presented to the township trustees within that time.
Appellants circulated referendum petitions and secured the signatures of approximately 24 per cent of the eligible voters of Howland Township.
The referendum petitions were accepted for certification to the Trumbull County Board of Elections by the Howland Township trustees. The certification was submitted to the board of elections, with a proposed zoning amendment, notice and form of ballot to be used by the voters at the polls.
Appellees then filed in the Court of Common Pleas of Trumbull County a petition to enjoin and restrain the Trumbull County Board of Elections from placing the zoning issue on the November 1968 ballot. The cause was submitted on the pleadings, a stipulation of facts and stipulated exhibits. The trial court issued a permanent injunction restraining the board of elections from placing the issue on the ballot, declaring the referendum petitions and the form of the ballot null and void.
The Court of Appeals affirmed the judgment of the trial court, and the cause is now before this court pursuant to the allowance of a motion to certify the record.
Frank R. Bodor, Warren, for appellees.
John A. Leopardi and John DePietro, Warren, for appellants, referendum petition signers.
Where statutory provisions relative to the submission of a referendum to the voters have not been complied with, that submission may be enjoined. Cf. City of Cincinnati v. Hillenbrand (1921), 103 Ohio St. 286, 133 N.E. 556; Pfeifer v. Graves (1913), 88 Ohio St. 473, 104 N.E. 529.
The petitions involved in this case were filed pursuant to R.C. § 519.12, which requires that they be filed with the board of township trustees within 30 days after the adoption of the zoning amendment, that they be 'signed by a number of qualified voters residing in the unincorporated area of the township or part thereof included in the zoning plan equal to not less than eight per cent of the total vote cast for all candidates for Governor in such area at the last preceding general election at which a Governor was elected,' and that they request 'the board of township trustees to submit the amendment or supplement to the electors of such area for approval or rejection at the next primary or general elections.'
R.C. § 3501.38 is applicable to all petitions for referendum filed pursuant to R.C. § 519.12 (State ex rel. Stillo v. Gwin (1969), 18 Ohio St.2d 66, 247 N.E.2d 481), and it is agreed in this case that the requirements imposed by those sections must be fulfilled. Moreover, it is established that Section 1g of Article II of the Ohio Constitution and R.C. § 3519.01 et seq. apply only to a state-wide referendum. Dillon v. City of Cleveland (1927), 117 Ohio St. 258, 158 N.E. 606. See Shyrock v. City of Zanesville (1915), 92 Ohio St. 375, 110 N.E. 937; State ex rel. Poor v. Addison (1937), 132 Ohio St. 477, 9 N.E.2d 148. Thus, in the case at bar, the first question presented is whether all the steps required by R.C. § 3501.38 and § 519.12, to authorize an issue to be submitted to the voters, have been fulfilled.
The requirements for referendum petitions provide the mechanics for securing the ultimate and important goal of the legitimate obtaining of a voted expression of the will of the electorate. Courts should strive to nurture and preserve the integrity of the right of referendum. However, even under the most liberal construction, the record in this case indicates that the petitions circulated by the appellants were prepared in a manner which failed to meet the petition form requirements contained in R.C. § 519.12, and that the petitions could have substantially misled those persons who signed them.
Prior to appellees' application for a zoning change, part of the property was zoned business and commercial and the remainder of the property was zoned residential. The application for zone change which was submitted to and approved by the Howland Township zoning commission sought only to increase the size of the present business and commercial zone.
The petitions circulated were entitled 'Request For Referendum' and stated in pertinent part:
'Reference: Resolution of the Howland Township trustees, dated February 5, 1968, by which the trustees voted upon without modifying or reversing, the recommendation of the Howland Township zoning commission, granting a zoning amendment from 'residential' use to 'business and commercial' use, pursuant to an Application for Zoning Change filed by * * * (the appellees) in connection with real estate owned by them and situated on Elm Road N. E., Howland Township, Ohio (see exhibit A for complete description of property, which exhibit is incorporated into and made a part of this petition as...
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