Opinion
No. 223110
Decided August 12, 1965.
Elections — Local option — Time for holding — Section 4301.37, Revised Code — "Once in each four years" construed — Action to contest election — Liquor Control Commission not proper party.
1. The Liquor Control Commission is not a proper party to an action to contest the validity of a local option election, since the commission is bound by the certification of the board of elections.
2. A local option election held on the fourth general election day following that on which the previous such election was held does not violate the prohibition in Section 4301.37, Revised Code, against holding such an election more than once in each four years, although the elections are two days less than four calendar years apart.
Mr. James Maxwell, Jr., for plaintiffs.
Mr. William B. Saxbe, attorney general, and Mr. James E. Rattan, for defendants.
This case is before the court on the demurrer of defendants to plaintiffs' petition. The demurrer is predicated upon the assertion that there is a misjoinder of parties defendant, that there is a defect of parties defendant and that the petition does not state facts which show a cause of action.
The petition seeks a declaratory judgment and equitable relief alleging that a controversy exists between the plaintiffs, as operators of premises selling intoxicating liquor within New Albany, Ohio, on the one hand, and the Liquor Control Commission and the Director of Liquor Control on the other hand.
The petition alleges that on November 8, 1960, a local option election was held in the village of New Albany with the result being affirmative. In other words, by the election of November 8, 1960, the sale of intoxicating liquor was permitted. On November 3, 1964, another local option election was held with the result being negative. It is asserted in the petition that the election of November 3, 1964, was null and void for the reason that less than four years had expired since the previous local option election held on November 8, 1960, and that the plaintiffs' permits therefore should not be cancelled by the Liquor Control Commission.
By way of background it should be noted that in case No. 221820 one of the plaintiffs herein, Russell Temple, in November, 1964, subsequent to the election of November 3, 1964, filed suit in which by the second amended petition he sought injunctive relief against both the Franklin County Board of Elections and the Liquor Control Commission on the basis of this same assertion. At that time this court sustained a motion for judgment on the pleadings thereto in a hearing with the understanding made by all parties at such time that final relief was being denied so that an appeal could be accorded. Thereafter an appeal was taken to the Court of Appeals which held that the entry as actually worded was not a final order and therefore not appealable.
Section 4301.37, Revised Code, provides that no local option election shall be held "more than once in each four years." In the opinion of the Court of Appeals in that case (Court of Appeals, No. 7924) the court stated by way of dicta that "It is apparent that on the facts alleged the election was held in violation of the statute and was, therefore, improper and illegal."
As noted however the actual basis for reversal was that the order appealed from was not a final order and therefore not appealable at such time, and the journal entry of the Court of Appeals was based solely upon such fact and the case remanded to this court for further proceedings according to law. Case No. 221820 is still pending in this court.
Thereafter in addition to filing the instant case, Mr. Anthony appealed to this court from the action of the Liquor Control Commission in case No. 223071, and Mr. Temple appealed in case No. 223072. By decision of June 24, 1965, Judge Marshall of this court found the order of the commission to be supported by reliable, probative and substantial evidence and to be in accordance with the law, and affirmed such orders. His conclusion was that the Liquor Control Commission was bound by the certification made to it by the Franklin County Board of Elections and that its cancellation order was a mandatory duty specifically required by law.
We return now to the specific issues involved in this demurrer. Parenthetically we might note that no memoranda contra to the demurrer has been filed by counsel for the plaintiffs.
The first contention made by counsel for the defendants is that there was a misjoinder of parties defendant in that the individual members of the Liquor Control Commission, as well as the Liquor Control Commission itself, and the individual holding the office of Director of Liquor Control as well as the designation "Director of Liquor Control" are named apparently as parties defendant. In our opinion such fact does not require the sustaining of a demurrer for a misjoinder of parties defendant. That portion of the demurrer of defendant therefore is overruled.
The demurrer on the basis of the claim of defect of parties defendant is predicated upon the assertion that neither the Director of the Department of Liquor Control nor the Liquor Control Commission has any discretion in the determination of the validity of the certification by the Board of Elections as to a vote in a local option election. We agree with this contention, this being in effect the same ruling by Judge Marshall in the appeal cases and for such reason the demurrer of the defendants on the basis of defect of parties defendant is sustained.
The claim of the defendant that the petition does not state facts which show a cause of action against either the Liquor Control Commission or the Director of the Department of Liquor Control is predicated upon two different contentions. The first contention in effect is the same contention made in support of the demurrer for defect of parties defendant, that is, that the dispute as to the validity of the election must necessarily exist between the plaintiff and the supervisor of elections, that is the Franklin County Board of Elections, and not between the plaintiffs and the Department of Liquor Control. As heretofore noted with this contention we are in agreement.
The second assertion by counsel for defendants goes to the merits of the entire controversy and presents the basic question as to whether or not a local option election held at the time of the general election of November 3, 1964, is in violation of the provisions of Section 4301.37, Revised Code, where a previous local option election had been held at the general election of November 8, 1960. As heretofore noted Section 4301.37, Revised Code, provides "that no such local option election shall be held in any district more than once in each four years," and as heretofore noted, the opinion of the Court of Appeals in case No. 221820 (Court of Appeals No. 7924) contains dicta to the effect that such election would be "improper and illegal."
Here we have presented a basic question involving the responsibility and duty of a trial judge in the interpretation of law. Had the statement made in the Court of Appeals opinion not been dicta we would have been bound thereby regardless of our individual belief that such statement is clearly erroneous. Being however dicta we do not conclude that we are so bound.
In our opinion the language of Section 4301.37, Revised Code, that "no such local option election shall be held in any district more than once in each four years" has reference to political or election years and not to a computation of 365 days multiplied by four plus 1 (Leap Year), beginning with the date of the last prior local option election. Or, if we consider the fact that in each calendar year there is but one general election and consider the fact that such general election is held on the first Tuesday after the first Monday in November and further consider the fact that under the local option election statutes of Ohio such election may be had only at the time of a general election, we necessarily arrive at the same conclusion.
In Battle Creek Brewing Co. v. Board of Supervisors, 166 Mich. 52, 131 N.W. 160, the Supreme Court of Michigan was considering the validity of a local option election held two days less than two full years after the last previous local option election where the statute provided:
"* * * [S]uch proposition having been once submitted and decided either way, by a majority of votes of the qualified electors in any county in the State, voting thereon, the same shall not be again submitted in such county within a period of two years next thereafter. * * *"
The majority opinion of Blair, J., stated:
"The period of two years mentioned in the proviso to section 5420 is to be interpreted in connection with the amendments fixing the date of the election at the date of the general election for township officers, etc. and the law is to be construed as part of the original act. It was manifestly the intention of the Legislature that the result of the election should not be disturbed for two years; not that it should be final for two years at times and three years at other times, as the time between the first and third general elections might be two years or a day or two less than two years. I am therefore of the opinion that the two years referred to are political years, and not calendar years."
In McNeely v. Commissioners of Morgantown, 125 N.C. 375, 34 S.E. 510, North Carolina's highest court was also considering the validity of a local option election held two days less than two full years after the previous one, where the applicable statute provided that no local option election should be within less than two years of the last previous election. In upholding the validity of the second election the court said:
"But the act provided for the election to be held on the first Monday in May — the same day as election for Municipal officers. We think this controls the time. It is like electing members of the Legislature every two years — elections to be held on the first Tuesday of November, which may not be precisely two years if we count the days. * * *"
In Hops v. Poe, 25 Cal.App. 451, 143 P. 1072, the headnotes (here set out in reverse order) fairly represent the court's reasoning in upholding the validity of a local option election held less than two full years after the last previous such election, and are as follows:
"While the word `year,' when used in a statute, ordinarily means a period of three hundred and sixty-five days, still its meaning is, in all cases, dependent upon the subject matter and the connection in which it is used, and it may stand for a period of time less than three hundred and sixty-five days.
"When the statute used the term `year' in connection with general elections, the political year is clearly contemplated, but in referring to special elections, since no particular day is specified, the intention is to designate the year of three hundred and sixty-five days.
"The provision of the Local Option Law (Stats. 1909, p. 599) that no election shall be held under the act `within two years of any previous election thereunder in the same territory' means that if the question is submitted at a special election, the sense of the electors cannot again be taken on the proposition until two years of three hundred and sixty-five days each have passed, but if the first vote is taken at a general election on the first Tuesday after the first Monday in November, another vote may be taken at the next general election on that day the second year following, although the first election was on November fifth and the second one will be on November third, leaving an interval of less than two years of three hundred and sixty-five days each."
In our consideration of this problem we are in full agreement with the expressions and holdings of the Battle Creek Brewing Company case, the McNeely case and the Hops case and conclude that upon such basis, with all due respect to the dicta contained in the Court of Appeals opinion heretofore referred to, we, in good conscience, cannot do otherwise than interpret the law in accordance with our best understanding and judgment. We, therefore, conclude that the petition fails to state a cause of action for affirmative relief against the defendants for the reason that the local option election held on November 3, 1964, was not in violation of the provisions of Section 4301.37, Revised Code.
Judgment accordingly.