Summary
ordering Clerk of the Toledo City Council to correct initiative proposition to allow inclusion on ballot, because existing statutory procedures did not authorize appellant board of elections to make corrections
Summary of this case from State v. SteffenOpinion
No. 72-796
Decided February 8, 1973.
Municipal corporations — City council — Charter amendment — Petition not invalidated by technical errors — Duty of city council to certify to board of elections — Mandamus — Writ allowed.
APPEAL from the Court of Appeals for Lucas County.
In March 1972, certain citizens, including appellee Olga Polcyn, began the circulation of a petition to amend the Charter of the city of Toledo to provide for the election of ten-members to city council, each councilman to be elected from one of ten separate geographic districts of approximately equal population, in place of the existent charter provisions providing for the election of eight councilmen-at-large. In August 1972, the petition, containing the requisite number of electors' signatures, was filed with city council pursuant to the Charter and the Constitution of the state of Ohio. Council forwarded it to John J. Burkhart, Chief Counsel of the City Law Department, for study.
Careful scrutiny revealed that the petition contained a number of errors in the metes and bounds descriptions of the proposed districts. Specifically, 57.5 uninhabited acres, which were outside the limits of the city of Toledo, were improperly included in what was designated as District No. 4; the word "Southeasterly" was used once in the text of the description of District No. 2 where "Southwesterly" was intended; in two instances, in the description of District No. 2, "Center Road" was used as a reference point when the center lines of two respective roads were intended, and, also as to District No. 2, an error was made in the description of directional lines along certain rights-of-way.
Upon the basis of those errors, city council refused to certify the petition to the board of elections for placement of the charter amendment issue on the ballot in Toledo, alleging that the errors rendered the petition "invalid on its face."
Appellees responded by filing a complaint for a writ of mandamus in the Court of Appeals for Lucas County to compel certification of the proposed amendment, so that the issue could be submitted to the electorate. They contended that the legislative authority of a municipality, under Section 9, Article XVIII of the Ohio Constitution, had no legal right to pass upon the "substantive" sufficiency of the petition. The Court of Appeals granted the writ, finding among other things that the errors were not apparent on the face of the petition. The cause is before this court pursuant to an appeal as of right from the judgment granting the writ.
Messrs. Wilkowski Bloom and Mr. Arthur Wilkowski, for appellees.
Mr. John J. Burkhart and Mr. John H. Harpen, for appellants.
Appellants' main contention is that the Toledo City Council is not required to submit to the electorate a proposed amendment to the Charter of the city of Toledo if, in Council's opinion, the substantive content of the proposed amendment is "invalid on its face," even though there are a sufficient number of valid signatures on the petition proposing such an amendment.
Section 9, Article XVIII of the Ohio Constitution, provides, in part:
"Amendments to any charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof, and, upon petitions signed by ten per centum of the electors of the municipality setting forth any such proposed amendment, shall be submitted by such legislative authority. The submission of proposed amendments to the electors shall be governed by the requirements of Section 8 * * *."
Appellants contend that two opinions of this court construing that section are supportive of their position. In State, ex rel. Hinchliffe, v. Gibbons (1927), 116 Ohio St. 390, 156 N.E. 455, the court considered whether Section 9 permitted the filing of initiative petitions with "election authorities," as opposed to city council, and determined that it did not. As stated in the opinion, at pages 394 and 395, the Constitution "clearly implies, if it does not definitely express, that some power and some duty is intrusted to * * * [the] legislative authority," not to "an arm of the executive branch, viz. the board of elections." However, the court also said that the legislative authority need not submit the petition to the electorate unless satisfied that the petitions "are sufficient in form and substance and all statutory requirements calling for the submission have fairly been met." (Emphasis added.)
The court below dismissed this latter language as obiter dicta, and appellees point out that the question of whether city council's power extended that far was not before the court in Hinchliffe and was not a basis for the holding in that case. Furthermore, we think that subsequent decisions of the court, based upon Hinchliffe, leave little doubt that appellants' interpretation of Section 9 was never intended. For example, it was held that a municipal legislative body could properly refuse to certify a petition for the ballot where the signatures on certain petitions appeared to be invalid ( State, ex rel. Waltz, v. Michell, 124 Ohio St. 161, 177 N.E. 214); where the petition did not contain a sufficient number of valid signatures ( State, ex rel. Poor, v. Addison, 132 Ohio St. 477, 9 N.E.2d 148); and where the petitions did not disclose the identity of the committee of five petitioners responsible for the circulation and filing of the petitions ( State, ex rel. Daniels, v. Portsmouth, 136 Ohio St. 15, 22 N.E.2d 913). As can be seen from the consistency of result in the foregoing cases, council's power to examine initiative petitions for sufficiency has not been declared by this court to extend beyond matters of form, or "administrative determinations" concerning the number of vaalid signatures. State, ex rel. Kittel, v. Bigelow (1941), 138 Ohio St. 497, 503, 37 N.E.2d 41.
Appellants also urge that their position is buttressed by the opinion in State, ex rel. Werner, v. Koontz (1950), 153 Ohio St. 325, 91 N.E.2d 473. In that case, the Columbus City Council was permitted to withhold a proposal from the electors of Columbus because it did not "constitute an ordinance properly submissible to the electors * * * under the initiative and referendum provisions * * * of the charter * * *."
Koontz involved an attempt to amend a city charter through utilization of the provisions of the charter relating to the enactment or amendment of city ordinances. A reading of the opinion discloses that the provisions relating to ordinances only required, inter alia, that petitions be signed by five percent of the electors, while those concerning a charter amendment, in accordance with the Constitution, required ten percent of the electors to be signatories. Moreover, the petitioners failed to demonstrate that they had obtained more than the stated five percent. Other procedural requirements for charter amendment were also ignored, they having been confused with those for ordinances. Thus, Koontz belongs in that category of cases, to which we alluded earlier, where the city council found either procedural inadequacies or insufficient signatures. None of the cases decided by this court, which are cited by appellants, should be construed to invest municipal legislative authorities with the power to determine what substantive errors, if any, are grave enough to warrant the withdrawal of a whole issue from the electorate, whether they appear "on the face" of the petitions or not. That is a judicial function, and Section 9, Article XVIII, does not contemplate that legislative authorities be clothed with that prerogative.
Appellants' second contention is that the alleged substantive errors in the descriptive language of the petition do, in fact, render the petition invalid on its face. Although our above-stated conclusions deplete the relevance of that proposition, the court below considered such errors, and declared that they "are minimal; the descriptions * * * clear, the intent unmistakable."
The "test," regarding alleged textual deficiencies in petitions such as the one at bar, was stated in Markus v. Bd. of Elections (1970), 22 Ohio St.2d 197, 259 N.E.2d 501. That case held that the text "must fairly and accurately present the question or issue to be decided in order to assure a free, intelligent and informed * * * [decision] by the average citizen affected." In the case at bar, the question is whether a drastic alteration in the form of city government in Toledo is to be effected. We agree with the Court of Appeals that such issue is fairly and accurately presented by the language of the instant petition, and that the average citizen will understand the question before him. Significantly, at no place in this litigation has it been argued that any petition signer has been misled by these errors.
We view the mistakes complained of as technicalities which are readily correctible. See State, ex rel. Moore, v. Trustees of Weathersfield Township (1954), 161 Ohio St. 38, 117 N.E.2d 433. Errors which have not misled petition signers should be correctible by the board of elections during preparation of the ballot statement. The courts are open to test legitimate disagreements concerning a purported misinforming of such signers, just as they are for clear violations of statutes regarding referendum submission to the voters. Cf. Markus v. Bd. of Elections, supra. However, boards of elections may perform only such acts as are reasonably authorized by statute, and despite the broad powers presently devolving upon them in the performance of their statutory duties, none appears to permit the process needed here.
Therefore, we hold that the responsibility to make these ministerial corrections to the initiative proposition in this cause falls upon the Clerk of the Toledo City Council. The errors are certain, known to all parties and inconsequential to the fairness of the instant electoral process. Pursuant to Section 2(B)( 1)(f) of Article IV of the Constitution of Ohio, the clerk is ordered to forthwith correct the boundary errors briefed and argued in this litigation.
Since the test will then be accurate, and since the parties have stipulated that the petition involved here is "sufficient as to form and as to number [of signatures]," we cannot perceive any justification for further withholding this matter from the ballot. See Switzer v. State, ex rel. Silvey (1921), 103 Ohio St. 306, 319, 133 N.E. 552.
Accordingly, in conjunction with our foregoing order, the judgment of the Court of Appeals, ordering that a writ of mandamus issue directing appellants to submit the proposed charter amendment to the electorate, is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN, and GRAY, JJ., concur.
GRAY, J., of the Fourth Appellate District, sitting for P. BROWN, J.