State ex rel. Kennedy v. Cuyahoga County Board of Elections

Per Curiam.

Appellant contends that Section 2, Article X of the Fáirview Park charter, which makes' provision for the filing of referendum petitions in that municipality, is in conflict'with R. C. 3501.11 (K), and therefore controlling, because it concerns a matter of local self-government. See Fitzgerald v. Cleveland (1913), 88 Ohio St. 338 , and progeny. It is appellant’s position that because Section, 2, Article X requires the clerk of council to determine the sufficiency of a referendum petition, the board of elections is thereafter without power to do so, and acts in a purely ministerial cápácity to place the referendum on the ballot. *

*39 Wé disagree..

Section 2, Article X, provides, in part:

“* * * When said petition is filed the clerk of the-council shall first ascertain the sufficiency of the petition, and, if found sufficient, the council shall thereupon, -within thirty (30) days of the filing of such petition reconsider such ordinance or resolution. If council fails tó repeal! said ordinance o;f resolution within thirty (30) days the ccíünci] shall submit it to a vote of the electors at the next general, or regular municipal election occurring more than ninety (90) days after the filing of such petition ***.”-'

R. C: 3501.11 provides:

“Each board of elections shall * * * a * * *

“ (K) Review, examine, and certify the sufficiency and validity of petitions and nomination papers [.] ” ;

In clear language, Section 2, Article X of the Fairview Park charter-requires the clerk of council to determine the sufficiency of a1 referendum petition prior to action thereon by council. R. C. 3501.11 (K) imposes upon the board of elections the subsequent responsibility to review, examine* and certify the sufficiency and validity of the petition. The Fairview'Park charter makes no reference to the board of elections, nor purports to negate duties imposed upon the board by R; C: 3501.11 (K). Thus, we fail to see a conflict bétween-these provisions.

In State ex rel. Janasik, v. Sarosy (1967), 12 Ohio St. 2d 5 , the Telator sought to prohibit the board of - eléctions from placing a referendum on the ballot. The board-denied that it had -a duty to ascertain the válidity of - the1 petitions, becaúsé'thát was the responsibility of the village clerk.' Wé held: b ’

*40 “ * * * [E]ven though such petitions are retained by the clerk and the initial duty is on such clerk to determine the validity' of the petition, if a protest is madé to the board ás to the validity of the petitions it is incumbent on the board to examine and determine the validity of the petitions. ’■’

'■ Previously, in State, ex rel. Ehring, v. Bliss (1951), 155 Ohio St. 99 , we stated, in paragraph one of the syllabus: 1 ‘Under the provisions of Section 4785-13^ .General Code [now R. C. 3501.11], and cognate sections, a county board of elections is authorized to review, examine and certify the sufficiency and validity of petitions and-nominating papers oven in the absence of a protest thereto. (State, ex rel. McGinley, v. Bliss et al., Board of Elections, 149 Ohio St. 329 , approved and followed.) ”

Appellant asserts that Sarosy is inapposite, because it concerned a non-charter municipality, and because the village clerk therein, pursuant to R. C. 731.29, was not specifically required to determine the sufficiency of the petition, but only to accept its filing, and certify the text of the ordinance, or measure to the board of elections. R. C. 731.29- further states, however, that the “* * * clerk shall retain the petition.” Implicit in this statute1, as we recognized in Sarosy , is the requirement that the village clerk make an initial determination as to the sufficiency of the petition. Thereafter, pursuant to R. C. 3501.11(K), the board of elections must make its own determination. In its procedural aspects, Sarosy is indistinguishable from, and therefore governs, this cause.

Because the complaint in mandamus herein challenges the fact bf the board’s discretion, not an abuse thereof, the Court of Appeals properly granted the motion to dismiss appellant’s complaint. A writ of mandamus will not issue to control judicial or quasi-judicial discretion.' Judgment affirmed.

O’NeUíL, C. J., Corrigan, Stern, Ceuebrezze, W. Brown and P. Brown, JJ., concur. Herbert, J., concurs except for the footnote.

Appellant, citing State, ex rel. Kittel, v. Bigelow (1941), 138 Ohio St. 497 ,- also- asserts that once- the clerk of council has determined a referendum .petition to be sufficient, and council has ¡accepted that determination by passing a resolution submitting the, referendum to a vote of the city's electors, the board of elections has po ..authority to reverse the finding of sufficiency. .......

In Kittél, petitions to place a proposed charter "amendment on the ballot -were circulated and filed. Thereafter, council • voted unanimously to submit the proposed amendment to the electors.- -The .sufficiency of the, petitions was challenged. Interpreting Section 9, ¡Article XVIII of the Ohio Constitution, which provides that “[a]mendm,ents to any charter framed and adopted as herein provided may-be submitted to' the electors of a municipality by a two-thirds vote' of the legislative authority thereof '* * this court, in paragraph two; of the syllabus, held that when “the legislative. authority in fact passes an ordinance of submission by :,a vote of two-thirds or more of .its, members, any defects in the filing or signing of the petition become immaterial * *

. Therefore,' appellant’s reliance upon paragraph three of the syllabus in; Kittel, Which states' that a eouncilmanic determination of the sufficiency of á' petition is “conclusive” in the absence-of fraud, or gross abuse of discretion, is misplaced, since the sufficiency or insufficiency of the petitions in Kittel was irrelevant, and the language in paragraph *39 three dictum. See. State, ex rel. Bd. of Edn., v. Morton (1975), 44. Ohio St. 2d 151, 153-154.

■- Moreover, our’ decision in Kittel was in no way concerned with .the duty imposed by statute upon a board of elections to determine the suffi'cieh'cy''''óf' petitions. That is to sáy, G. -C. 4785-13k" -(how .ft. C. 3501.11(K)), which imposes the duty upon the-board to determiné 'sufficiency and validity, was not discussed or involved. ■ , .