State ex rel. Polcyn v. Burkhart
292 N.E.2d 883
Ohio
1973
Check Treatment
Per Curiam.

Appellants’ main contention is that the Toledo City Council is not required to submit to the electorate a proposed amendment to the Charter of the city of Toledo if, in Council’s opinion, the substantive content of the proposed amendment is “invalid on its face,” even though there are a suffiсient number of valid signatures on the petition proposing such an amendment.

Section 9, Article XVIII of the Ohio Constitution, provides, in part:

“Amendments 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 *9thereof, and, upon petitions signed by ten per centum of the electors of the municipality setting forth any such proposed amendment, shall be submitted by such legislative authority. The submission of proposed amendments to the electors shall be governed by the requirements of Section 8 * * * ”

Appellants contend that two opinions of this court construing ‍​​‌​​​​​​​‌‌‌‌‌​​​​​​‌​​‌​​​‌‌‌‌‌​‌​‌​​‌‌​‌‌​​‌​‍that section are supportive of their position. In State, ex rel. Hinchliffe, v. Gibbons (1927), 116 Ohio St. 390, 156 N. E. 455, the court considered whether Section 9 permitted the filing of initiative petitions with “election authorities,” as opposed to city council, and determined that it did not. As stated in the opinion, at pages 394 and 395, the Constitution “clearly implies, if it does not definitely express, that some power and some duty is intrusted to # * * [the] legislative authority,” not to “an arm of the executive branch, viz. the board of elections.” However, the court also said that the legislative authority need not submit the рetition to the electorate unless satisfied that the petitions “are sufficient in form and substance and all statutory requirements calling for the submission have fairly bеen met.” (Emphasis added.)

The court below dismissed this latter language as obiter dicta, and appellees point out that the question of whether city council’s power extended that far was not beforе the court in Hinchliffe and was not a basis for the holding in that case. Furthermore, we think that subsequent decisions of the court, based upon Hinchliffe, leave little doubt that аppellants’ interpretation of Section 9 was never intended. For example, it was held that a municipal legislative ‍​​‌​​​​​​​‌‌‌‌‌​​​​​​‌​​‌​​​‌‌‌‌‌​‌​‌​​‌‌​‌‌​​‌​‍body could propеrly refuse to certify a petition for the ballot where the signatures on certain petitions appeared to be invalid (State, ex rel. Waltz, v. Michell [1931], 124 Ohio St. 161, 177 N. E. 214); where the petition did not contain a sufficient number of valid signatures (State, ex rel. Poor, v. Addison [1937], 132 Ohio St. 477, 9 N. E. 2d 148); and where the petitions did not disclose the identity of the committee of five petitioners responsible *10for the circulation and filing of the petitions (State, ex rel. Daniels, v. Portsmouth [1939], 136 Ohio St. 15, 22 N. E. 2d 913). As can he seen from the consistency of result in the foregoing cases, council’s power to examine initiative petitions for sufficiency has not been declared by this court to extend beyond matters of form, or “administrative determinations” concerning the number of valid signatures. State, ex rel. Kittel, v. Bigelow (1941), 138 Ohio St. 497, 503, 37 N. E. 2d 41.

Appellants also urge that their position is buttressed by the opinion in State, ex rel. Werner, v. Koontz (1950), 153 Ohio St. 325, 91 N. E. 2d 473. In that case, the Columbus City Council was permitted to withhold a proposal from the electors of Columbus because it did not “constitute an ordinance properly submissible to the electors * * * under the initiative and referendum provisions * * * of the charter * *

Koontz involved an attempt to amend a city charter through utilization of the provisions of the charter relating to the enactment or ‍​​‌​​​​​​​‌‌‌‌‌​​​​​​‌​​‌​​​‌‌‌‌‌​‌​‌​​‌‌​‌‌​​‌​‍аmendment of city ordinances. A reading of the opinion discloses that the provisions relating to ordinances only required, inter alia, that petitions be signed by five percent of the electors, while those concerning a charter amendment, in accordance with the Constitution, required ten percent of the electors to be signatories. Moreover, the petitioners failed to'demonstrate that they had obtained more than the statеd five percent. Other procedural requirements for charter amendment were also ignored, they having been confused with those for ordinances. Thus, Koontz belongs in that category of cases, to which we alluded earlier, where the city council found either procedural inadequacies or insufficient signatures. None of the cases decided by this court, which are cited by appellants, should be construed to invest municipal legislative authorities with the power to determine what substantive errors, if any, are grave enough to warrant the withdrawal of a whole issue from the electоrate, whether they appear “on the face” of the petitions or not. That is *11a judicial function, and Section 9, Article XVIII, does not contеmplate that legislative authorities he clothed with that prerogative.

Appellants’ second contention is that the alleged substantive errоrs in the descriptive language of the petition do, in fact, render the petition invalid on its face. Although our above-stated conclusions deрlete the relevance of that proposition, the court below considered such errors, and declared that they “are minimal; the desсriptions * * * clear, the intent unmistakable.”

The “test,” regarding alleged textual deficiencies in petitions such as the one at bar, was stated in Markus v. Bd. of Elections (1970), 22 Ohio St. 2d 197, 259 N. E. 2d 501. That case held that the text “must fairly and accurately present the question or issue to be decided in order to assure a free, intelligent and informed # * [deсision] by the average citizen affected.” In the case at bar, the question is whether a drastic alteration in the form of city government in Toledo is to be effected. ‍​​‌​​​​​​​‌‌‌‌‌​​​​​​‌​​‌​​​‌‌‌‌‌​‌​‌​​‌‌​‌‌​​‌​‍We agree with the Court of Appeals that such issue is fairly and accurately presented by the language of the instant pеtition, and that the average citizen will understand the question before him. Significantly, at no place in this litigation has it been argued that any petition signer has been misled by these errors.

We view the mistakes complained of as technicalities which are readily correctible. See State, ex rel. Moore, v. Trustees of Weathersfield Township (1954), 161 Ohio St. 38, 117 N, E. 2d 433. Errors which have not misled petition signers should be correctible by the board of elections during preparation of the ballot statement. The courts are оpen to test legitimate disagreements concerning a purported misinforming of such signers, just as they are for clear violations of statutes regаrding referendum submission to the voters. Cf. Markus v. Bd. of Elections, supra. However, boards of elections may perform only such acts as are reasonably authorized by statute, and despite the broad powers presently devolving upon them in the per*12formance of their statutory duties, none appears to permit the рrocess needed here.

Therefore, we hold that the responsibility to make these ministerial corrections to the initiative propositiоn in this cause falls upon the Clerk of the Toledo City Council. The errors are certain, known to all parties and inconsequential to the fairness of the instant electoral process. Pursuant to Section 2(B)(1)(f) of Article IV of the Constitution of Ohio, the clerk is ordered to forthwith correct the boundary errors briefed and argued in this litigation.

Since the text will then be accurate, and since the parties ‍​​‌​​​​​​​‌‌‌‌‌​​​​​​‌​​‌​​​‌‌‌‌‌​‌​‌​​‌‌​‌‌​​‌​‍have stipulated that the petition involved hеre is ‘ ‘ sufficient as to form and as to number [of signatures],” we cannot perceive any justification for further withholding this matter from the ballot. See Switzer v. State, ex rel. Silvey (1921), 103 Ohio St. 306, 319, 133 N. E. 552.

Accordingly, in conjunction with our foregoing order, the judgment of the Court of Appeals, ordering that a writ of mandamus issue directing appellants to submit the proposed charter amendment to the electorate, is affirmed.

Judgment affirmed.

O’Neill, C. J., Herbert, Corrigan, Stern, Celebrezze, W. Brown, and Gray, JJ., concur. Gray, J., of the Fourth Appellate District, sitting for P. Brown, J.