State, Ex Rel., v. Gibbons
| Decision Date | 22 April 1927 |
| Docket Number | 20406 |
| Citation | 116 Ohio St. 390,156 N.E. 455 |
| Parties | The State, Ex Rel. Hinchliffe Et Al., v. Gibbons Et Al., City Council Of Cleveland. |
| Court | Ohio Supreme Court |
Municipal corporations - Amendments to Cleveland municipal charter - Initiative petitions to submit proposed amendments - To be filed with city council and not election board - Section 182 Cleveland Charter - Section 9, Article XVIII, Constitution.
IN MANDAMUS.
Messrs Gaughan & Collins and Mr. Walter D. Meals, for plaintiffs.
Mr Carl F. Shuler, director of law, and Mr. Alfred Clum, for defendants.
This is an original suit in this court praying a writ of mandamus against the members of the city council of Cleveland, Ohio to compel legislative action on the part of the council in the matter of submitting to the electors of the city of Cleveland at a special election the question of certain amendments to the charter of the city of Cleveland.
Section 9 of Article XVIII of the Ohio Constitution provides that proposed amendments to a city charter shall be submitted to the electors by the legislative authority of the city, upon petition signed by 10 per cent. of the electors of the municipality, setting forth such proposed amendments. The charter of the city of Cleveland already existing, in Section 182 thereof, provides that, when such petitions are filed with the election authorities, the same shall be submitted by the council. That section of the charter further provides:
"The ordinance providing for the submission of any such amendment shall be submitted to the electors at the next regular municipal election if one shall occur not less than sixty (60) nor more than one hundred and twenty (120) days after its passage; otherwise it shall provide for the submission of the amendment at a special election to be called and held within the time aforesaid."
Sections 30 and 31 of the Cleveland Charter provide that initiative, referendum, or recall petitions shall be filed with the city clerk, and that within ten days thereafter the clerk shall determine whether there is a sufficient number of signers and attach a certificate showing the result of his examination.
Relators further allege that petitions in all respects sufficient and regular, and containing three times as many signatures as were necessary, proposing charter amendments, were filed with the board of elections on February 11, 1927, and on March 14, 1927, they advised the council of the city of Cleveland of that fact and requested the introduction and passage of an ordinance to fiX a day for a special election sufficiently in advance of the regular municipal election to be held in November, 1927, in order that, if said proposed amendments should be approved, the said regular municipal election might be conducted in accordance therewith. It is further alleged that no ordinance has been introduced for that purpose and no further steps of any kind taken looking to a special election.
The petition in this cause was filed March 23, 1927, and the alternative writ of mandamus was allowed by one of the members of this court, returnable April 12th. An answer, however, was filed March 28th by the city council denying any official knowledge of any such petition having been filed, and stating that none was filed with the council of said city, and that said council had no knowledge as to whether or not there was a sufficient number of signatures, or as to their genuineness or as to the persons who had circulated said petitions, or what oath had been made thereto, and that their only knowledge of the same was from rumor or hearsay. They deny having any purpose to delay the relators in holding a special election.
Subsequently to the filing of that answer, to wit, on April 12, 1927, a supplement was filed to the petition, alleging that a communication was sent on March 21, 1927, by the election authorities to the city council, stating that a petition had been filed with the board of elections on February 11, 1927, and further advising that the petition contained 31,747 signatures, being more than the required number. The supplemental pleading further states that the communication was received by the city council and read at the regular meeting of the council on April 4, 1927, and that the communication was referred to the committee on judiciary.
Thereupon a demurrer was filed by the city council to the petition and the supplement, and at the same time relators filed a motion for judgment upon the...
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