State ex rel. Beckstedt v. Eyrich

• Decision Date: 16 October 1963
• Citation: 29 O.O.2d 170,120 Ohio App. 338,195 N.E.2d 371
• Parties: , 29 O.O.2d 170 STATE of Ohio on the relation of Robert A. BECKSTEDT et al., Plaintiffs- Relators. v. George F. EYRICH, Jr., et al., Defendants-Respondents.
• Court: Ohio Court of Appeals

Page 338

120 Ohio App. 338

195 N.E.2d 371, 29 O.O.2d 170

STATE of Ohio on the relation of Robert A. BECKSTEDT et al., Plaintiffs- Relators. v. George F. EYRICH, Jr., et al., Defendants-Respondents.

Court of Appeals of Ohio, First District, Hamilton County.

Oct. 16, 1963.

Edward P. Reeder, John L. Gerdsen and Andrew O. Haefner, Cincinnati, for plaintiffs-relators.

Raymond E. Shannon, Raymond C. Wetherell and Arthur Ney, Cincinnati, for defendants-respondents.

John A. Lloyd, Jr., of Lioyd, Ferguson & Rielly, Cincinnati, for Park G. Dunigan, defendant.

HOVER, Presiding Judge.

STATEMENT OF THE CASE.

Relators, as taxpayers of the City of Norwood and as a committee designated by the signers of an 'Initiative Petition' to effect the filing thereof and to represent the signers, bring this action in mandamus seeking an order of the Hamilton County Board of Elections to submit the question proposed by the petition to the electors of the City of Norwood at the general election to be held November 5, 1963.

The Respondent Board, by answer, bases its refusal to submit the question on the ground that the required statutory certification of the issue to it by the City Auditor was not effected within the time required by law,--to-wit: ninety (90) days before the election date above.

The numerical sufficiency of the petitions and the validity of the signatures thereon is not in issue.

The Respondent, Dunigan, as a taxpayer, had filed an action in the Court of Common Pleas against the Respondent Board seeking to prevent the submission of the same application to this Court he was admitted application to this Court he was admitted as an additional respondent. By answer, Dunigan raises the additional issue by way of defense to the requested writ that the proposal is not a proper subject for an initiative petition because (1), it fails to require the adoption of any specific legislation and (2), the City Council had already adopted various ordinances covering the same subject matter looking forward to the Urban Renewal program which the petitions seek to have undertaken. Relators' demurrer to this answer was overruled, as was also the Relators' motion to dismiss the answer as a moot question on the ground that Relators had undertaken to guarantee the necessary election expense and thus save the city taxpayers harmless regardless of the official status of the question proposed.

By reply, Relators claim that any statutory limitation on 'questions' proposed by initiative petition is unconstitutional; that the Respondent Dunigan failed to make a request that the City Solicitor bring the action in his behalf; that the cause is pending before another court of competent jurisdiction; and that this Court lacks authority to consider the effect of the question, if approved by the voters, on present legislation on the same subject or the possible unenforceability of future legislation arising out of the initiated proposal.

By the rules of code pleading in civil matters, the affirmative allegations of the reply will be deemed denied. The Court will address itself first to certain of the above allegations in the Relators' reply. This Court is not concerned with the question of whether or not Respondent made a seasonable request or any request at all upon the City Solicitor of the City of Norwood to bring the action which the taxpayer instituted in the court below seeking to enjoin the Board of Elections from submitting the issue to the voters. By admitting the Respondent Dunigan as a party to this case for the sake of litigating all of the questions raised in regard to this petition, the court exercised its authority to admit new or proper or appropriate parties to an action for the sake of litigating all of the alleged issues in one case. The claim that the same question is the subject matter of litigation in the Court of Common Pleas is not warranted since the fact is that the Board of Elections has officially refused to perform the act for which an injunction is sought in the court below. This Court agrees with Relators that it lacks authority to determine whether or not legislation presently not in existence, but which might evolve from an affirmative vote on the initiated measure, would repeal existing legislation on the same subject matter or might by speculation be unenforceable or unresponsive. Neither of these propositions is in issue here.

FACTS.

The facts surrounding the filing and subsequent handling of the various separate papers constituting the proposed initiative petition are before the Court in the form of various exhibits and stipulations. From them it appears that petition papers containing a sufficient number of valid signatures were filed with the Auditor of the City of Norwood on July 26, 1963. The initiative petition reads as follows:

'We, the undersigned, being with the signers of other separate parts of this petition more than the (10%) per cent of the electors of the City of Norwood, Hamilton County, Ohio, a municipal corporation, hereby petition and request that the following measure: 'Shall Norwood City Council undertake an Urban Renewal program which includes federal financial assistance?'

'A duly verified copy of such proposed measure has been filed with the City Auditor of Norwood, Ohio, before circulation of said initiative petition, as required by law, be submitted to the electors of said City of Norwood, Ohio, for their approval or rejection in accordance with the law in such case made and provided.'

The above sentences viewed literally have no meaning. However, giving the apparent intention of the petitioners the most liberal possible construction and indulging in some transposition of phraseology, it would seem that the purport of the petition is to request 'that the following measure: 'Shall Norwood City Council undertake an Urban Renewal program which includes federal financial assistance?' be submitted to the electors of the City of Norwood, Ohio, for their approval or rejection in accordance with the law in such case made and provided.' Only as so interposed and interpreted does the petition provide anything whatsoever. For the purpose of this Opinion, the Court will adopt this version of the obscure terminology.

On the tenth day after filing, to-wit: August 5, 1963, the City Auditor delivered the petition papers to the Board of Elections where he had a conversation with a deputy clerk of the Respondent Board. The exact nature of the conversation is disputed; the Auditor stating that he told the clerk that he, the Auditor, was required to certify the petitions; did not know how to do it and requested help in the matter. He stated that his purpose in taking the petitions to the Board was to certify them. The deputy clerk, on the other hand, stated that no letter accompanied the petitions and that he, the clerk, asked the Auditor if the Auditor wished the clerk to dictate a letter with regard to them. Accordingly a letter was dictated, signed by the Auditor and left with the clerk of the Board. As a result of the receipt of the letter and the petitions, the Board of Elections checked the signatures on the petitions to determine whether or not they appeared to be valid signatures of registered electors. On August 6, 1963, the Board completed its check of the names; called the Auditor and so advised him, and the Auditor had the petitions taken from the office of the Board and returned to him.

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