Summary
involving R.C. 305.32
Summary of this case from State ex rel. TAM O'Shanter Co. v. Stark Cnty. Bd. of ElectionsOpinion
No. 85-1369
Decided October 10, 1985.
Elections — Referendum on permissive tax resolution — Form of petition — R.C. 305.32 — Full and correct copy of title and text of resolution required — Complaint in prohibition treated as one in mandamus, when.
This action, as determined infra, though styled in prohibition, is properly one in mandamus.
On April 10, 1985, the Belmont County Board of Commissioners levied permissive sales and use taxes pursuant to R.C. 5739.021 and 5741.021. Subsequently, petition papers for the repeal of the permissive tax were circulated. The petition papers were on form No. 6-L prescribed by the Secretary of State. The last paragraph of the printed form read: "The following is a full and correct copy of the title and text of the resolution sought to be repealed: * * *."
What followed, however, was not a resolution sought to be repealed, but a "resolution" by the Belmont County Trustees and Clerks Association demanding that the permissive tax be repealed, and requesting that the issue be placed on the ballot.
On August 23, 1985, relator, a resident and elector of Belmont County, filed a letter with the Belmont County Board of Elections protesting the validity of the referendum petition for the failure of the petition papers to recite the full and correct copy of the title and text of the resolution sought to be repealed. Later that day, the board decided to place the issue on the ballot for the November 5, 1985 general election in Belmont County, Ohio.
Relator then filed this action in prohibition against respondents, the Belmont County Board of Elections and its members, alleging that the petition is invalid for the failure of the petition papers to include the full and correct copy of the title and text of the resolution sought to be repealed; and requesting that a writ issue to prevent the referendum from being placed on the ballot.
Carlile, Patchen, Murphy Allison and Dennis Concilla, for relator.
William Thomas, prosecuting attorney, and Frank Pierce, for respondents.
Costine Costine and J. Mark Costine, urging denial of writ for amicus curiae, Belmont County Township Association.
Rankin M. Gibson Co., L.P.A., and Rankin M. Gibson, urging allowance of writ for amicus curiae, County Commissioners' Association of Ohio.
R.C. 5739.022 authorizes an election, upon referendum petition, to repeal an emergency permissive sales tax levied by a county in accordance with R.C. 5739.021. The form of such a petition is prescribed by R.C. 305.32 as follows:
R.C. 305.42 provides:
"Sections 305.32 to 305.41 and 305.99 of the Revised Code apply to petitions authorized by * * * [section] 5739.022 of the Revised Code."
"Any referendum petition may be presented in separate petition papers, but each petition paper shall contain a full and correct copy of the title and text of the resolution or rule sought to be referred. Referendum petitions shall be governed by the rules of section 3501.38 of the Revised Code. * * *" (Emphasis added.)
It is undisputed that the petition papers at issue herein did not contain the full and correct copy of the title and text of the resolution sought to be referred and were not in compliance with R.C. 305.32. Thus, relator contends that the petition is invalid and the issue cannot be placed on the ballot. His argument is well-founded. This court has consistently held that election statutes are mandatory and must be strictly complied with. Chevalier v. Brown (1985), 17 Ohio St.3d 61, 63; State, ex rel. Senn, v. Bd. of Elections (1977), 51 Ohio St.2d 173, 174 [5 O.O.3d 381]; State, ex rel. Griffin, v. Krumholtz (1982), 70 Ohio St.2d 125, 127 [24 O.O.3d 234].
We do not agree with the assertion of respondents and amicus curiae Belmont County Township Association that the violation herein is a technical one as to form only and does not affect the petition's ability to fairly and substantially present the issue. The statute clearly requires that the full and correct copy of the title and text of the resolution be recited in the petition papers. This failure was in direct violation of statute and could easily be misleading to those who signed the petition.
Accordingly, we find that relator is entitled to the relief prayed for; however, we believe that the complaint was incorrectly styled as one in prohibition. There is some authority for the use of prohibition in a situation such as this. See, e.g., State, ex rel. Sheldon Gas Co., v. Bd. of Elections (1976), 48 Ohio St.2d 49 [2 O.O.3d 166]. Prohibition, however, is only intended to control judicial or quasi-judicial action. In State, ex rel. Williams, v. Brown (1977), 52 Ohio St.2d 13, 16 [6 O.O.3d 79], the court specifically held that the act of placing an issue on the ballot is "`* * * ministerial in nature and not quasi-judicial.'" Thus, the matter is not a proper subject for prohibition. The complaint, though titled incorrectly, does state a claim in mandamus, however, in that respondents are under a clear legal duty to reject petitions which are not in compliance with law and prohibit their placement on the ballot. See, e.g., State, ex rel. Spangler, v. Bd. of Elections (1983), 7 Ohio St.3d 20.
Thus, we will treat relator's complaint in prohibition as one in mandamus, and as such, allow the writ prayed for.
Writ allowed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.