State ex rel. Tulley v. Brown, 72-196

• Citation: 29 Ohio St.2d 235,281 N.E.2d 187,58 O.O.2d 489
• Decision Date: 24 March 1972
• Docket Number: No. 72-196,72-196
• Parties: , 58 O.O.2d 489 The STATE ex rel. TULLEY et al. v. BROWN, Atty. Gen., et al.
• Court: United States State Supreme Court of Ohio

Page 235

29 Ohio St.2d 235

281 N.E.2d 187, 58 O.O.2d 489

The STATE ex rel. TULLEY et al. v. BROWN, Atty. Gen., et al.

No. 72-196.

Supreme Court of Ohio.

March 24, 1972.

Graham & Dutro, and James L. Graham, Columbus, for relators.

William J. Brown, Atty. Gen., Donald B. Leach and James P. Bally, Columbus, for respondents.

PER CURIAM.

At the outset, it should be noted that the parties neither raised nor argued any constitutional objections ³ to the overall concept of the Attorney General's statutory power of preliminary examination concerning proposed constitutional amendments under R.C. Chapter 3519. Thus, and since it is neither necessary to our resolution of the matter before us nor determinative of our jurisdiction to act, a majority of the court reaches no conclusion upon that question.

We note jurisdiction of this matter upon the basis of State ex rel. Riley Constr. Co. v. East Liverpool etc. Bd. of Edn. (1967), 10 Ohio St.2d 25, 225 N.E.2d 246; and State ex rel. Foreman v. Brown (1967), 10 Ohio St.2d 139, 226 N.E.2d 116. The sole fact that an action is pending in an inferior court of this state does not, ipso facto, deprive this court of jurisdiction to hear and decide a complaint in mandamus. Further, by its own order, the Common Pleas Court of Franklin County has, in effect, withheld the exercise of its subject matter jurisdiction pending our decision.

Respondents contend that the relators are not entitled to a writ of mandamus because the pending trial court action constitutes a plain and adequate remedy in the ordinary course of the law. They orally argue that an action in mandamus could be instituted in this court after the lower court has determined all of the issues before it, and also urge that the instant relators could still file a cross-complaint in the trial court and therein seek the relief requested in the case at bar.

The 'ordinary course of the law' doctrine does not comprehend that a relator in a mandamus action be obliged to follow the suicidal course of filing a cross-complaint in his opponent's different action in another court which would foreclose his own suit in mandamus. Additionally, as was conceded by respondents in oral argument, once an appeal was commenced by respondents from an adverse decision in the trial court, respondents' present argument would necessarily obtain in resistance to a complaint in mandamus being considered during the pendency of that appeal.

Mandamus lies to compel the performance of an act which is clearly enjoined by law upon a respondent. State ex rel. Freeman v. Valentine (1971), 25 Ohio St.2d 184, 267 N.E.2d 594; State ex rel. Pistillo v. Shaker Heights (1971), 26 Ohio St.2d 85, 269 N.E.2d 42. Under the facts at bar, the only incumbency enjoined upon the Attorney General by R.C. Chapter 3519 is the specific duty contained in R.C. § 3519.01:

'* * * If in the opinion of the attorney general the summary is a fair and truthful statement of the proposed law, constitutional amendment, or measure to be referred, he shall so certify. * * *'

In the instant case, the Attorney General has unequivocally stated that he finds the summary in question 'fair and truthful' under R.C. § 3519.01 and stands ready to certify.

We find that relators herein have met their burden in all respects concerning this writ. Requested relief involving the Secretary of State is premature.

Upon the basis stated, the writ of mandamus is allowed.

Writ allowed.

C. WILLIAM O'NEILL, C. J., and HERBERT, CORRIGAN, STERN and LEACH, JJ., concur.

SCHNEIDER and BROWN, JJ., dissent.

SCHNEIDER, Justice (dissenting).

I would deny the writ for the reason that R.C. § 3519.01, requiring a 'preliminary' petition for the consideration of a summary of a proposed constitutional amendment by initiative for the purpose of including that summary on the initiative petition itself (see R.C. § 3519.05), conflicts with the plain terms of Section 1g, Article II of the Ohio Constitution, which requires the initiative petition to contain the title and text of the proposed amendment and sanctions no such summary of that text.

Section 1g provides further that its provisions 'shall be self-executing, except' that the General Assembly may pass laws 'to facilitate their operation, but in no way limiting or restricting . . . such provisions. . . .' (Emphasis supplied.) I cannot help but conclude that the statutory provisions for a 'preliminary' petition, a summary and its approval by the Attorney General, without any time limitations placed thereon, impede and confuse rather than facilitate the precious right of initiative.

Section 1, Article II, fortifies this conclusion. It provides in no uncertain terms that the people 'reserve the power . . . independent of the general assembly to propose amendments to the constitution and to adopt or reject the same at the polls.' (Emphasis supplied.)

The initiative provisions in state-wide matters are self-executing and any meddling therewith by the General Assembly should be viewed with distrust unless unmistakably supportive and expeditious. See Shryock v. Zanesville (1915), 92 Ohio St. 375, at pages 384, 385, 110 N.E. 937.

It is true that the foregoing question was not briefed. Relators' counsel was questioned on the point from the bench in oral argument. He acceded to the question but indicated that relators had determined to follow R.C. § 3519.01 et seq. and were not now in a position to gainsay that determination. Respondents did not argue the point. However, this case has been decided and announced within two weeks of its commencement and time has not permitted a thorough consideration of the question. But the writ of mandamus is addressed...