Opinion
No. 80-1086
Decided September 25, 1980.
Elections — Referendum — Filing of ordinance with clerk of council — R.C. 731.32 — Requirements — "Verification," construed — Mandamus — Writ allowed, when — Attorney fees — Denied, when.
IN MANDAMUS.
On April 2, 1980, the council of the village of Granville passed ordinance No. 6-80, entitled "An Ordinance Approving A Development Plan For Granville Woods Addition." Thereafter a citizens' group, The Granville Woods Referendum Committee, undertook to place ordinance No. 6-80 as a referendum on the November 4, 1980, ballot.
On or about April 14, 1980, members of the citizens' group approached the clerk of council of Granville to discuss the procedure for placing the referendum on the ballot. A copy of the ordinance was filed with the village clerk, on which the clerk of council certified "that the foregoing Ordinance is a true and exact copy of Ordinance No. 6-80."
Thereafter, referendum part-petitions were circulated and a sufficient number of signatures were collected. On April 29, the part-petitions were filed with the village clerk. On May 30, the law director notified the citizens' group that there was an objection to the form of the subject ordinance since the copy of the ordinance had been certified as a true and exact copy of the subject ordinance, but had not been verified.
At several subsequent council meetings, the citizens' group requested that council certify the referendum petitions to the board of elections. At each meeting, council voted not to certify the referendum petitions to the board of elections.
Relators, citizens and taxpayers of Granville, filed this action in mandamus in this court requesting that respondents, the mayor, council members, and clerk of council of Granville, be compelled to certify the text of ordinance No. 6-80 to the board of elections. Also, relators requested attorney fees.
Messrs. Sanford, Fisher, Fahey, Boyland, Schwarzwalder, Mr. Theodore G. Fisher and Mr. Richard P. Fahey, for relators.
Mr. Robert N. Drake, law director, and Mr. Christopher R. Mayer, for respondents.
The primary issue presented for our consideration is whether relators complied with R.C. 731.32, which provides:
"Whoever seeks to propose an ordinance or measure in a municipal corporation by initiative petition or files a referendum petition against any ordinance or measure shall, before circulating such petition, file a verified copy of the proposed ordinance or measure with the city auditor or the village clerk." (Emphasis added.)
"`Verified' means supported by an affidavit as to the truth of the matters set forth; sworn to." State, ex rel. Clink, v. Smith (1968), 16 Ohio St.2d 1, 2. The village clerk in the instant cause did not "swear" to the authenticity of the ordinance, but did certify that the copy was true and exact. Although the requirement in R.C. 731.32 of filing a verified copy of the proposed ordinance is mandatory, State, ex rel. Mika, v. Lemon (1959), 170 Ohio St. 1, paragraph two of the syllabus, under the facts of this case, we are unable to discern any substantial difference between verification and certification.
"***[T]he manner of submission of municipal ordinances to a referendum vote should be so construed as to permit rather than preclude the exercise of the right conferred. The object clearly sought to be attained by such provisions [in the Constitution of Ohio] should be promoted rather than prevented or destructed." State, ex rel. Middletown, v. City Commission of Middletown (1942), 140 Ohio St. 368, paragraph one of the syllabus. See also State, ex rel. Vanderwerf, v. Warren (1969), 20 Ohio St.2d 9, 11. Thus, in the case of this referendum, we allow the writ of mandamus.
An amicus brief was filed by Robert N. Kent and Gary Price, developers holding options on the property concerned in this action. They contend, inter alia, that ordinance No. 6-80 cannot be subject to a referendum since that ordinance is a result of an administrative action of the Granville city council, and not a legislative action. See Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 4. We disagree and, therefore, reject that argument.
Relators also request an award of attorney fees pursuant to R.C. 733.61. Such an award is entirely within the discretion of this court. See State, ex rel. Scott, v. Masterson (1962), 173 Ohio St. 402, 406. In this case, attorney fees will not be awarded to relators since there has not been demonstrated a sufficient benefit, tangible or intangible, bestowed on the public to warrant such an award. See Billington v. Cotner (1974), 37 Ohio St.2d 17.
R.C. 733.61 provides:
"If the court hearing a case under section 733.59 of the Revised Code is satisfied that the taxpayer had good cause to believe that his allegations were well founded, or if they are sufficient in law, it shall make such order as the equity of the case demands. In such case the taxpayer shall be allowed his costs, and, if judgment is finally ordered in his favor, he may be allowed, as part of the costs, a reasonable compensation for his attorney."
This action is a taxpayer suit properly brought pursuant to R.C. 733.59.
Writ allowed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and DOWD, JJ., concur.
I concur in the judgment and opinion of the per curiam decision and assert a further consideration therefor.
Pursuant to R.C. 731.29, this legislative amendment, Ordinance No. 6-80, would automatically have full force and effect 30 days after it was filed with the mayor of Granville if no valid referendum petition were submitted. Therefore, in a referendum matter, when time is of the essence and no other recourse is available to place this matter before the electorate, the granting of the writ is proper.
In fact, the question presented arises from the issuance of a certified rather than a verified copy of the ordinance from the clerk of council, who is a respondent herein.
The issuance of extraordinary writs should be granted circumspectly, but all factors considered in this case, the issuance of the extraordinary writ of mandamus is proper.