Summary
In Brettell, we held that the alleged misrepresentation of a county clerk about the verification requirement in R.C. 305.33 did not estop the county auditor from insisting on strict compliance with the statute.
Summary of this case from State, ex Rel. Shaw, v. LynchOpinion
No. 87-1050
Decided August 20, 1987.
Mandamus — Elections — Boards of county commissioners — R.C. 305.33 — Referendums — Filing of a "verified" copy of county resolution mandatory — Writ denied.
IN MANDAMUS.
On April 9, 1987, the Board of County Commissioners of Jefferson County adopted Resolutions Nos. 1987-7 and 1987-8, thereby levying an additional one half of one percent sales tax in that county, including an additional tax on the storage, use, or other consumption of motor vehicles in the county. R.C. 305.31 to 305.41 provide a procedure for referendum on such resolutions. On April 14, 1987, relator, John Brettell, obtained copies of these resolutions from the board of county commissioners and filed them with respondent Richard W. Canestraro, the county auditor. Referendum petitions were then circulated among the electors of the county and filed with the auditor on May 22, 1987. However, the auditor has refused to certify the text of the resolutions to the board of elections not later than seventy-five days before the next general election, as required by R.C. 305.31, because he contends that the copies of the resolutions originally filed with him on April 14 do not comply with R.C. 305.33, which states:
"Whoever files a referendum petition against any resolution shall, before circulating such petition, file a verified copy of the resolution with the county auditor."
The copies filed by relator bore only the attestation of the three county commissioners and the clerk of the board of county commissioners, but no additional verification. Relator further alleges that when the copies of the resolutions were obtained from the clerk of the board of county commissioners, the clerk informed him they were "attested to" and refused relator's specific request to have the resolutions sworn to by affidavit. The respondent auditor denies these allegations. The relator requests a writ of mandamus ordering the respondent auditor to certify the text of the resolutions to the respondent board of elections under R.C. 305.31. Respondents have filed a motion to dismiss for failure to state a claim on which relief can be granted. The respondent Secretary of State has filed a motion to dismiss, stating he has no duty to provide any relief requested by relator, and relator has requested none of him.
Twyford Donahey and Thomas L. Twyford, for relator.
Stephen M. Stern, prosecuting attorney, for respondents Jefferson County Auditor and Board of Elections.
Anthony J. Celebrezze, Jr., attorney general, and Andrew I. Sutter, for respondent Secretary of State.
Relator essentially argues that the filing of the "attested" copies of the resolutions with the auditor constitutes substantial compliance with the requirement of R.C. 305.33 to file verified copies, or alternatively, that relator's reliance upon the alleged misrepresentations of the clerk of the board of county commissioners was justifiable and will estop respondents from refusing certification of the resolutions. We refute relator's arguments based, first, on State, ex rel. Clink, v. Smith (1968), 16 Ohio St.2d 1, 2, 45 O.O. 2d 1, 240 N.E.2d 869, 870, in which we held that "verified," as used in R.C. 305.33, "means supported by an affidavit as to the truth of the matters set forth; sworn to." Here, the attestation of the three county commissioners, common to all resolutions and therefore to all copies of resolutions, does not satisfy this requirement.
Second, we reject relator's theory of justifiable reliance on authority of State, ex rel. Svete, v. Bd. of Elections (1965), 4 Ohio St.2d 16, 18, 33 O.O. 2d 139, 140, 212 N.E.2d 420, 421, in which we held that "[m]istaken advise [ sic] or opinion of an agent of a governmental body as to the validity of an instrument does not create an estoppel against a public official to declare the instrument invalid." Similarly, accepting relator's version of the alleged misrepresentations of the clerk of the board of county commissioners, such misrepresentations do not estop the respondent auditor from insisting on compliance with R.C. 305.33.
Thus, relator having failed to demonstrate that he has a clear legal right to the relief requested and that respondents are under a clear legal duty to perform the acts, the writ of mandamus is denied.
Writ denied.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.