Opinion
No. 27760
Decided October 4, 1939.
Municipal corporations — Amendments to Portsmouth Charter — Initiative petition to conform to charter requirements — Names and addresses of five electors as committee of petitioners, mandatory — Section 27, Portsmouth Charter.
IN MANDAMUS.
At the election in November of 1928 the city of Portsmouth adopted a charter, composed of 168 sections, which has not been amended, modified or repealed.
Section 27 of the charter, relating to signatures upon initiative, referendum and recall petitions, provides that "There shall appear on each petition paper the names and addresses of five electors of the city, on each paper the names and addresses of the same five electors, who, as a committee of the petitioners, shall be regarded as responsible for the circulation and filing of the petition."
Section 166 provides that amendments to the municipal charter "shall be submitted by the council when a petition signed by ten per centime (10%) of the electors of the city voting at the last general election, setting forth any such proposed amendment, shall have been filed with the election authorities in the manner and form prescribed herein for the submission of ordinances by initiative petition." (Italics ours.)
On May 3, 1939, there was filed with the council an initiative petition requesting council to pass an ordinance submitting to the electors the question of amending Section 5 and repealing Sections 5, 30, 31, 34, 143, 144, 145, 146, 147, 148 and 149 of the charter.
The council referred the initiative petition to its clerk and the legal department of the city for examination and report, a written report was made and filed, and council adopted a resolution rejecting the initiative petition and declaring it invalid "for the reason that the same is not in conformity with Section 27 of the charter of the city of Portsmouth, Ohio, which said section requires and makes mandatory the inclusion in any initiative petition submitted to council the names and addresses of five electors * * * as a committee * * *."
The relators, on behalf of themselves and other signers of the initiative petition, seek from this court a writ of mandamus commanding the council to pass an ordinance to submit to the electors the question of amending the municipal charter.
The mandamus petition of the relators alleges that the initiative petition "did not contain the names and addresses of five or of any electors who, as a committee of the petitioners, should be regarded as responsible for the circulation and filing of said petition."
The cause was submitted after oral argument upon a demurrer to the mandamus petition.
Messrs. Blair Blair, for relators.
Mr. Ernest G. Littleton, city solicitor, and Mr. H.J. Mickelthwaite, for respondent.
Counsel supporting the demurrer predicate their position upon the sole proposition that the absence of the names of a committee of five in the initiative petition makes it fatally defective in view of the mandatory provisions of Section 27 heretofore set forth.
In Dillon v. City of Cleveland, 117 Ohio St. 258, 158 N.E. 606, this court held that where a municipality has adopted a charter containing initiative and referendum provisions which are reasonable and not in contravention of the constitutional provisions relating thereto, such charter procedure must be followed in preparing and filing an initiative or referendum petition. In State, ex rel. Poor, v. Addison et al., Council of City of Columbus, 132 Ohio St. 477, 9 N.E.2d 148, it was held that since the Columbus charter contained no requirement for placing the date of signing, place of residence and ward and precinct of a signer upon an initiative petition, the statutory provisions control. Section 165 of the Portsmouth charter makes applicable general laws of the state not in conflict with the charter or ordinances or resolutions enacted by council.
In the present proceeding there are no statutes which control and the provisions of Section 27 do not conflict with the Constitution, are not unreasonable, and therefore are valid and must govern. It might be observed that the same requirement for a committee in former Section 5000 et seq., now Section 4785-91, General Code, relating to nomination of candidates for offices, was held mandatory in State, ex rel. Bloker, v. Gabel et al., Deputy State Supervisors of Elections, 113 Ohio St. 398, 149 N.E. 403.
Counsel for the relators in their brief contend that Section 27 is neither mandatory nor directory, and maintain, first, that the provision of Section 166 of the charter, requiring a petition to be signed by only 10 per centum of the electors voting at the last general election, contravenes Section 9 of Article XVIII of the Constitution of Ohio, which requires a petition to be signed by 10 per centum of the electors; and, second, that Section 166 of the charter provides that an initiative petition shall be filed with the election authorities, contrary to the holding by this court in State, ex rel. Hinchliffe, v. Gibbons et al., City Council, 116. Ohio St., 390, 156 N.E. 455, that under that section of the Constitution an initiative petition to submit proposed amendments to the Cleveland charter should be filed with the city council and not with the election authorities as provided by that charter.
As to these contentions it is sufficient to say that in the present controversy the initiative petition was not rejected by council because of an insufficient number of signatures or because such petition was not filed with the election authorities as required by Section 166 of the charter, and therefore those questions are not before this court.
The demurrer to the petition is sustained and, relators not desiring to plead further, a writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.