Opinion
No. 83-1626
Decided November 3, 1983.
Elections — Mandamus to compel county auditor to certify referendum petition to board of elections — Writ denied, when — R.C. 305.31 — Unreasonable time elapsed before action brought.
IN MANDAMUS.
On March 29, 1983, the Clark County Board of Commissioners, pursuant to R.C. 5739.021 and 5741.021, adopted two resolutions imposing additional sales and use taxes in Clark County. Relator, Frank R. Lightle, as a citizen and a taxpayer of Clark County and a member of the Committee for More Effective Taxation ("CMET"), participated in the circulation of a petition seeking to submit these resolutions to a referendum as provided by R.C. 305.31. On April 28, 1983, a petition containing several part petitions was submitted to respondent, Clark County Auditor.
The petition remained in respondent's hands without event until August 5, 1983, when certain Clark County taxpayers filed a complaint for a writ of prohibition in the Court of Appeals for Clark County, seeking to prohibit respondent from certifying the resolutions subject to the petition to the Clark County Board of Elections ("board of elections") on the ground that the petition was invalid. CMET participated in the action as amicus curiae.
On October 5, 1983, the court of appeals held that the petition was defective, but refused to issue the writ of prohibition on the ground that it sought to control a discretionary act. The court held that it was within respondent's discretion to evaluate the petition's validity and act accordingly. State, ex rel. Suver, v. Glass (Oct. 5, 1983), Clark App. No. 1875, unreported.
On October 7, 1983, respondent announced that the petition did not comply with R.C. 305.32 or 305.33. He refused to certify the petition to the board of elections.
On October 18, 1983, relator filed an original action in mandamus in this court seeking to compel respondent to certify the texts of the resolutions to the board of elections ostensibly to be placed on the ballot for November 8, 1983.
Messrs. Spater, Gittes Terzian, Mr. Frederick M. Gittes and Mr. Gordon G. Hobson, for relator.
Mr. James A. Berry, prosecuting attorney, Mr. Kenneth M. Elder and Mr. Thomas W. Wilson, for respondent.
R.C. 305.31 states in part that the "county auditor shall, after ten days, and not later than * * * the seventy-fifth day before the day of election, certify the text of the resolution * * *." (Emphasis added.) Applying this time frame to the facts of the instant case it can be seen that if respondent has a clear legal duty, the time during which he should have performed it was somewhere between May 9, 1983 and August 25, 1983. Relator's right, if one exists, ripened on August 25, 1983. He nevertheless waited more than fifty days to exercise his right.
In State, ex rel. Friedlander, v. Myers (1934), 128 Ohio St. 568 [1 O.O. 167], this court was faced with a case similar to the instant case where the relator had filed his complaint only days before the general election seeking to compel a change in the ballot. In that case this court stated that, "[t]he issuance of the extraordinary writ of mandamus rests in the sound discretion of the court, which may refuse to issue the writ in favor of a relator who has allowed an unreasonable time to elapse before bringing his action. * * * [Citations omitted]." Id. at 569. This reasoning applies equally to the instant case.
R.C. 305.31 further states that, "[t]he board shall submit the resolution * * * to such electors * * * at the next succeeding * * * election * * * occurring subsequent to seventy-five days after the certifying of such petition to the board of elections."
It is clear that it would be impossible to meet the requirements of R.C. 305.31 and place the resolutions on the November 8, 1983 ballot. Relator has allowed an unreasonable time to elapse before bringing this action.
Accordingly the issuance of a writ of mandamus is denied.
Writ denied.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.