State ex rel. Blackwell v. Bachrach

• Decision Date: 01 May 1957
• Docket Number: No. 34930,34930
• Citation: 2 O.O.2d 219,143 N.E.2d 127,166 Ohio St. 301
• Parties: , 2 O.O.2d 219 The STATE, ex rel. BLACKWELL, a Taxpayer, Appellant, v. BACHRACH et al., City Council of Cincinnati, Appellees.
• Court: Ohio Supreme Court

Page 301

166 Ohio St. 301

143 N.E.2d 127, 2 O.O.2d 219

The STATE, ex rel. BLACKWELL, a Taxpayer, Appellant, v. BACHRACH et al., City Council of Cincinnati, Appellees.

No. 34930.

Supreme Court of Ohio.

May 1, 1957.

Syllabus by the Court.

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 initiative 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 if 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 initiative 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.

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.

Sol Goodman and Stanley Goodman, Cincinnati, for appellant.

Henry M. Bruestle, City Solicitor, Ed F. Alexander, Robert P. Goldman, C. Watson Hover, Prosecuting Attorney, and Carl Rubin, Cincinnati, for appellees.

BELL, Judge.

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 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 not 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, 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, 132 Ohio St. 477, 9 N.E.2d 148, 149, 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 1f, 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 v. Kovach, 164 Ohio St. 247, 129 N.E.2d 809. See, also, Shryock 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...