Opinion
No. 38011
Decided May 15, 1963.
Initiative and referendum — County zoning amendment — Referendum petition — Petitioner may withdraw signature before official action taken thereon — What constitutes "official action."
IN MANDAMUS.
The respondent, the Board of County Commissioners of Hamilton County, adopted a zoning amendment changing certain property in the unincorporated area of Anderson Township from residence "A" to residence "B" district.
Within 30 days after the passage of such amendment, a referendum petition, authorized by Section 303.12, Revised Code, was filed, containing more than the required number of signatures (eight per cent) and requesting the respondent to submit the zoning amendment to the electors of the area at the next primary or general election. After the 30-day period had elapsed, but before any action had been taken by respondent, counterpetitions were filed requesting that the signatures of the signers appearing thereon be withdrawn from the referendum petition. The withdrawal of these signatures reduced the number of valid signatures on the referendum petition to less than the eight per cent required by Section 303.12, Revised Code.
Thereafter the respondent, at a regular meeting, determined that the referendum petition, with the signatures appearing on the counterpetitions subtracted therefrom, did not, under the provisions of Section 303.12, Revised Code, contain the signatures of the required eight per cent of the qualified voters of the unincorporated area of Anderson Township, denied the petition, and held it to be without effect.
The relators herein, qualified electors of the unincorporated area of Anderson Township, instituted this action in mandamus in this court, seeking a writ requiring the respondent to cause the question whether the zoning amendment shall become effective to be submitted to the electors for approval or rejection at the next primary or general election.
Relators contend that, since the referendum petition, at the end of the 30-day period provided for in Section 303.12, Revised Code, contained the requisite number of signatures, the respondent was required to cause the zoning amendment to be submitted to the voters; that the electors could not withdraw their signatures after the 30-day period; and that the respondent had no authority to consider the counterpetitions filed after the 30-day period.
The respondent contends that it does have authority to consider the counterpetitions filed after the 30-day period; that the electors may withdraw their signatures from the referendum petition even after the lapse of the 30-day period so long as respondent has not taken official action with respect to the zoning amendment; and that certification of the issue to the board of elections is the official action which terminates the right to withdraw signatures from a referendum petition.
Messrs. Frost Jacobs, Mr. Francis L. Dale and Mr. Sherman E. Unger, for relators.
Mr. Raymond E. Shannon, prosecuting attorney, and Mr. Raymond C. Wetherell, for respondent.
In the absence of statutory provisions to the contrary, an elector signing a referendum petition authorized by law has a right to withdraw his signature from such petition at any time before official action has been taken thereon and before an action in mandamus has been properly commenced to compel the taking of such action, even though after the time within which such petition is required by law to be filed and after it actually has been filed. State, ex rel. Kahle, v. Rupert, Aud., 99 Ohio St. 17; Lynn v. Supple, Clerk, 166 Ohio St. 154.
"Official action" in the instant case would be the certification of the issue by the respondent to the board of elections.
The writ of mandamus is denied.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.