Opinion
No. 31992
Decided December 14, 1949.
Constitutional law — Initiated proposal to adopt Section 2a, Article V, Constitution — Effective 30 days after approval by majority of electors voting thereon — Section 1b, Article II, Constitution — Summary, schedule and ballots of proposal claimed to conflict therewith — By providing for majority of electors voting at election — Massachusetts ballot form — Names of candidates at general election arranged in group under office.
IN MANDAMUS.
This is an action in mandamus originating in this court and brought by the Attorney General to compel the Secretary of State to declare the passage of and to publish an amendment to Article V of the Constitution of Ohio.
A proposed amendment to Article V was properly placed on the ballot at the general election on November 8, 1949, as a result of the circulation, and filing with the Secretary of State, of initiative petitions in the manner provided by the Constitution and laws.
The total number of electors voting "yes" on the proposal was 1,007,693 and the total voting "no" was 750,206. Since a total of 2,303,860 electors voted at the general election, it is obvious that a substantial number did not vote either "yes" or "no" on this particular proposal.
Respondent refused to declare the passage and adoption of this proposed amendment and refused to publish it as a part of the Constitution on the ground that it did not receive a majority of the votes of those who voted at the general election of November 8, 1949.
The text of the proposed amendment appeared on the reverse side of each of the initiative petitions under the heading "Text of Proposed Constitutional Amendment" and read as follows:
"Be it resolved by the people of the state of Ohio:
"That the Constitution of the state of Ohio be amended by adopting a section to be designated as Section 2 a of Article V thereof, to read as follows:
"ARTICLE V"Section 2 a. The names of all candidates for an office at any general election shall be arranged in a group under the title of that office, and shall be so alternated that each name shall appear (in so far as may be reasonably possible) substantially an equal number of times at the beginning, at the end, and in each intermediate place, if any, of the group in which such name belongs. Except at a party primary or in a nonpartisan election, the name or designation of each candidate's party, if any, shall be printed under or after each candidate's name in lighter and smaller type face than that in which the candidate's name is printed. An elector may vote for candidates (other than candidates for electors of President and Vice-President of the United States) only and in no other way than by indicating his vote for each candidate separately from the indication of his vote for any other candidate.
"SCHEDULE"The provisions of the foregoing amendment shall become effective immediately upon certification of the Secretary of State that a majority of the electors voting at the general elections of November 8, 1949, have cast their ballots in favor of such amendment."
On the front of each of the initiative petitions, under the heading "Summary" appeared the following:
"SUMMARY"The summary of said proposed constitutional amendment is as follows: an amendment adopting a new section to be known as Section 2 a of Article V of the Constitution of Ohio providing; (1) That an elector may vote for candidates only by separately indicating his vote for each candidate; (2) That names of candidates shall be arranged in a group under the title of the office, with an indication as to each candidate of the name or designation of his party (except in the case of party primary elections and nonpartisan elections); (3) That names of candidates for each office shall be arranged in rotation; (4) That this amendment become effective immediately upon certification by the Secretary of State that it has been approved by a majority of the electors voting at the general elections of November 8, 1949."
The portion of the ballot submitting this proposed amendment to the voters was as follows:
PROPOSED AMENDMENT TO THE CONSTITUTION OF OHIO (Proposed by Initiative Petition)To provide that all Candidates for an Office, at any General Election, shall be arranged in a group under that office and each Candidate must be voted for separately.
A majority vote of the electors voting at the Election held November 8, 1949, is necessary for passage.
Proposing to amend Article V of the constitution of the State of Ohio by adopting Section 2a to provide that electors of the State of Ohio may vote for candidates only by separately indicating their vote for each candidate.
The proposed amendment provides that the names of all candidates for an office at any general election shall be arranged in a group under the title of that office, and that such names in each group shall be rotated. Except at a party primary or in a non-partisan election, the name or designation of each candidate's party, if any, shall be printed under or after each candidate's name in lighter and smaller type face than that in which the candidate's name is printed. An elector may vote for candidates (other than candidates for President and Vice-President of the United States) only and in no other way than by indicating his vote for each candidate separately from the indication of his vote for any other candidate.
SCHEDULEThe provisions of the foregoing amendment shall become effective immediately upon certification of the Secretary of State that a majority of the electors voting at the General Election of November 8, 1949, have cast their ballots in favor of such amendment.
SHALL THE PROPOSED AMENDMENT OF YES ARTICLE V OF THE CONSTITUTION OF OHIO, TO PROVIDE THAT ELECTORS OF THE STATE OF OHIO MAY VOTE FOR CANDIDATES ONLY BY SEPARATELY INDICATING NO THEIR VOTE FOR EACH CANDIDATE, BE ADOPTED?
Mr. Herbert S. Duffy, attorney general, Mr. William C. Bryant and Mr. Ivan L. Smith, for relator.
Mr. Herbert S. Duffy, attorney general, Mr. Nelson Lancione and Mr. Charles A. Linch, for respondent.
Section 1 b, Article II of the Constitution of Ohio, reads in part:
"Any proposed law or amendment to the Constitution submitted to the electors as provided in Section 1 a and Section 1 b, if approved by a majority of the electors voting thereon, shall take effect thirty days after the election at which it was approved and shall be published by the Secretary of State."
Using the words of the Constitution, this amendment was "approved by a majority of the electors voting thereon" and it "shall take effect thirty days after the election at which it was approved."
Obviously, nothing in the schedule to this proposed amendment can have any operative effect as a part of the law of this state unless and until the amendment has taken effect and become a part of the Constitution, pursuant to the above-quoted existing and self-executing provisions of the Constitution. In other words, this schedule can be given legal effect only if it is a part of an amendment which has become effective. See State, ex rel. McNamara, v. Campbell, 94 Ohio St. 403, 115 N.E. 29.
If "a majority of the electors voting at the general elections of November 8, 1949" had voted in favor of the amendment and the Secretary of State had certified to that fact prior to December 8, 1949, the provisions of Section 2 a would not have become effective immediately, because the Constitution (Section 1 b) provides that an amendment becomes effective thirty days after the election at which it is approved, not before then. The schedule cannot provide for an earlier effective date than that provided in the existing constitutional provisions.
The schedule does not expressly say that Section 2 a shall become effective "only upon" or "immediately and only upon" the certification described; it uses the words "immediately upon."
Therefore, in effect, respondent asks us to imply from the language of the schedule an intention to have the provisions of Section 2 a become effective "only" upon such certification. It is certainly not necessary to imply such an intention from the language used. In our opinion it would not be reasonable to imply such an intention because the Constitution also specifically provides when an amendment shall become effective. As a result, language such as this in a schedule, providing for the amendment becoming effective on the happening of some specific event, will not be interpreted as providing the only time for its becoming effective unless such a meaning is clearly expressed or necessarily inferrable from the words used. See Switzer v. State, ex rel. Silvey, 103 Ohio St. 306, 133 N.E. 552.
Respondent argues that the entire vote on the issue must be held invalid because the ballot, in two places, contained words to the effect that a majority vote of the electors voting at the election was necessary for adoption of the proposed amendment. For the reasons hereinbefore stated, we do not believe the words printed on the ballot under the heading "Schedule," after the description of the proposed amendment, are susceptible of such interpretation. However, assuming to act pursuant to Section 4785-103, General Code (123 Ohio Laws), respondent placed on the ballot, following a brief description of the question submitted, the words "a majority vote of the electors voting at the election held November 8, 1949, is necessary for passage."
Such a statement obviously had no bearing upon the desirability or undesirability of the proposed amendment. Voters should not be penalized for such an irregularity where there is no showing that the result of the election was in any way affected by reason of the irregularity, especially where an objection to the irregularity could have been made seasonably but was not made at all before the election. State, ex rel. Whetsel, v. Murphy, 122 Ohio St. 620, 174 N.E. 252; Mehling v. Moorehead, 133 Ohio St. 395, 407, 14 N.E.2d 15.
Our conclusion is that Section 2 a became effective as a part of Article V of the Constitution of Ohio on December 8, 1949, by reason of the self-executing provisions heretofore quoted from Section 1 b, Article II.
The Secretary of State must declare the passage of the proposed amendment and publish Section 2 a of Article V as an amendment to the Constitution of Ohio.
Writ allowed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.