State ex rel. Walter v. Edgar
| Decision Date | 27 September 1984 |
| Docket Number | No. 84-1348,84-1348 |
| Citation | 469 N.E.2d 842,13 Ohio St.3d 1,13 OBR 377 |
| Parties | , 13 O.B.R. 377 The STATE, ex rel. WALTER et al., v. EDGAR, Auditor. |
| Court | Ohio Supreme Court |
Relators, James J. Walter, Vernon E. Koeper and Arthur R. Brewer, are qualified electors of the non-chartered municipality of St. Marys, Ohio and members of a committee responsible for the circulation and filing of two initiative petitions in that city.
On August 6, 1984, relators filed the petitions with respondent, Pamela J. Edgar, Auditor for the city of St. Marys. The first petition proposes the repeal of city Ordinance No. 84-06, which was an emergency measure passed to transfer urban development bonds formerly issued to St. Marys Foundry Company to its successor, St. Marys Acquisition Corporation. The second proposal would require the city to immediately collect from St. Marys Acquisition Corporation a delinquent account with the city's electric company. Its effect would be to nullify an agreement, by the electric company and approved by St. Marys City Council, to accept delayed payment of the account.
No defects are alleged with respect to the form or sufficiency of the petitions, but respondent has refused to certify the measures to the board of elections alleging that the proposals would be unconstitutional if passed.
Relators then brought this action in mandamus to compel respondent to certify the measures to the board of elections so that they may appear on the ballot for November 6, 1984.
Ellis Jacobs, Dayton, for relators.
Kraig E. Noble, St. Marys, Director of Law, for respondent.
R.C. 731.28 provides, in part:
"When a petition is filed with the city auditor or village clerk, signed by the required number of electors proposing an ordinance or other measure, such auditor or clerk shall, after ten days, certify the text of the proposed ordinance or measure to the board of elections. * * * " (Emphasis added.)
Respondent contends she is not required to certify the proposals because they would be unconstitutional if approved. This argument is without merit. It is well-settled that any claim alleging the unconstitutionality of a proposal prior to its approval is premature. State, ex rel. Cramer, v. Brown (1983), 7 Ohio St.3d 5, 6, 454 N.E.2d 1321, citing Pfeifer v. Graves (1913), 88 Ohio St. 473, 104 N.E. 529; paragraph five of the syllabus; Weinland v. Fulton (1918), 99 Ohio St. 10, 121 N.E. 816; Cincinnati v. Hillenbrand (1921), 103 Ohio St. 286, 133 N.E. 556, paragraph two of the syllabus; State, ex rel. Marcolin, v....
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