Opinion
No. 35637
Decided May 2, 1958.
Laches — Dilatoriness in prosecuting action — Prohibition against board of elections — Annexation to municipality — Submission of question to electors — Relief denied.
APPEAL from the Court of Appeals for Lucas County.
On March 17, 1958, the council of the city of Toledo, by resolution, requested respondent Board of Elections of Lucas County, an appellee herein, to submit to the electors of Adams Township, Lucas County, at the primary election on May 6, 1958, a proposed annexation of part of Adams Township. Such resolution was the culmination of action begun by the city council on September 24, 1957, in contemplation of the annexation of the territory involved.
On April 18, 1958, 32 days later, an action for a writ of prohibition was instituted by relators, appellants herein, in the Court of Appeals for Lucas County, which court sustained a demurrer to the petition and dismissed the action.
An appeal was perfected to this court, and briefs were filed on April 29 and 30, 1958. The case was argued before this court on May 1, 1958.
Messrs. Eastman, Stichter Smith and Mr. Jamille G. Jamra, for appellants.
Mr. Harry Friberg, prosecuting attorney, Mr. Charles T. Lawton, director of law, and Mr. Robert Dorrell, for appellees.
The issues involved herein are such that this court can not, and will not, dispose of them without adequate consideration. The time between which this matter was argued and the primary election on May 6 obviously does not permit that consideration.
Under circumstances where the relators knew the necessity of determining the questions involved, prior to the time when the election is to be conducted, a delay of 32 days shows an unexplained dilatoriness in a situation which not only permitted but required their diligence. Particularly in view of the fact that absentee ballots have not only already been distributed but have unquestionably been marked, relators' failure to act sooner should deprive them of the relief sought herein.
Although it is unfortunate that the important questions raised by the appeal herein could not have been fully considered by this court, we are of the opinion that relators' rights have not been substantially curtailed. In the event of an election result unfavorable to the wishes of relators, they may yet avail themselves of other remedies.
For the reasons stated, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MATTHIAS, BELL and HERBERT, JJ., concur.