State, Ex Rel., v. Asmann

• Decision Date: 27 October 1925
• Docket Number: 19357
• Parties: The State, Ex Rel. Bowman, v. Asmann Et Al.
• Court: Ohio Supreme Court

149 N.E. 328

113 Ohio St. 394

The State, Ex Rel. Bowman, v. Asmann Et Al.

No. 19357

Supreme Court of Ohio

October 27, 1925

Elections - Mandamus to compel submission of ordinance to referendum - Sufficiency of answer alleging that ordinance would be submitted to electors.

IN MANDAMUS.

Mr Frank K. Bowman, city solicitor, and Mr. L. L. Forchheimer assistant city solicitor, for relator.

Mr Chas. S. Bell, prosecuting attorney, for respondent.

Mr. A Julius Freiberg, amicus curiae.

BY THE COURT.

This is an original action in mandamus, filed in this court, wherein the relator asked that a writ of mandamus issue, compelling the respondents, as members of the board of deputy state supervisors and inspectors of elections of Hamilton county Ohio, to cause a certain ordinance to be submitted to the electors of the city of Cincinnati for their approval or rejection at the ensuing election to be held on November 3,1925. The cause was submitted to this court upon a demurrer to the answer.

The petition alleges that on May 19, 1925, this ordinance was passed over the veto of the mayor, and that thereafter a petition, duly signed by a requisite number of electors, asking for its submission as aforesaid, was filed with the city audi- ________________ Mandamus, 38 C. J., Sec. 612. ________________ tor; that on June 8, 1925, the city auditor certified said petition to the respondents; and that, although all the steps and proceedings required by law for submitting the ordinance were fully taken and complied with, the respondents refused and still refuse to cause the ordinance to be submitted to the electors of the city for their approval or rejection at the election to be held on the date aforesaid.

The respondents' answer substantially admits all the allegations of the petition, but in their answer they say that "they will cause to be printed the necessary ballots, and take the steps necessary to submit to the qualified electors of the city of Cincinnati, in accordance with the terms of the petition heretofore filed with them," the question whether or not such ordinance shall be approved or rejected by the electors at said ensuing election.

Had the respondents in their answer alleged that they had complied with the prayer of the petition, and had taken steps to submit the ordinance to the electors of the city of Cincinnati for their adoption or rejection, manifestly a writ of mandamus would not issue to compel the respondents to perform a legal duty which they had already performed. In such case there would not be a plain dereliction of duty upon the part of the respondents against which the writ would lie. However, in the instant case, it appears by the answer of the respondents that, both at the time of the filing of the petition and at the time of the filing of the answer, the respondents had not complied with or taken any steps to comply with the duty enjoined upon them. The allegation in the answer is that they will cause the necessary steps to be taken for the printing of the ballots and the submission of the question to the electors at some future time. In that aspect of the case, and under the state of the pleadings...