An agreed statement of facts and the evidence adduced by way of a deposition in this original action establishes that a referendum petition against ordinance No. 11-1965 of the village of Springdale, Ohio, was submitted to the village clerk, who, after determining the validity of the signatures thereon, transmitted the same to the council. That body held a public hearing on the petition pursuant to the village charter, but refused to transmit the same to the board of elections on the written advice of the village solicitor that the petiion was invalid because the person filing the petition had failed "before circulating such petition * * * [to] file a verified copy of the proposed ordinance * * * with * * * the village clerk," as required by Section 731.32, Revised Code.
Relators, each of whom is "a resident freeholder and elector" of the village, and a circulator of the petition (omitted from the pleadings and the agreed statement of facts but conceded in the briefs of respondents) brought this action for a writ of mandamus to require the council to perform its duty under the charter and certify the petition to the Board of Elections of Hamilton County for submission to the electorate, without first requesting the solicitor to initiate the suit, as directed by Section 733.59, Revised Code.
In a long line of cases,
In this state, Sections 733.56 to 733.61, inclusive, Revised Code, codify this doctrine as to municipal corporations. Relators' rights are derived from the right of the municipal corporation, the enforcement of which is imposed in the first instance by Section 733.58, Revised Code,
That the word, "taxpayer," is employed in the statutes neither assists relators, nor defeats them, as will presently be shown. As resident freeholders and electors, they are necessarily taxpayers. Even if they were permitted to abjure their capacity as resident freeholders which they insist upon doing, it is difficult to see how they can escape the condition precedent in Section 733.59, Revised Code. An "elector" necessarily is a domiciliary and it would be an extreme situation wherein such person might not in fact pay any tax, directly or indirectly, to the political subdivision of his domicile.
But the sounder view is that the word, "taxpayer," is to be construed generally, not literally. It includes, in fact, freeholders and tenants, both resident and nonresident, citizens and electors. It also includes a nonresident and nonfreeholder municipal income taxpayer.
The substantial question then comes down to this: Did the circumstances here show that it would have been unavailing to have made a request upon the solicitor. We think so. The solicitor formalized in writing his opinion that the referendum petition was invalid and presented that opinion to his employers, the council, who refused further action upon it. The lines were drawn, an unalterable stand was made and the gauntlet was thrown down. Thereafter, a request to bring suit in the face of those facts would not only have been in vain but the chain of events was equivalent to a refusal by the village of its consent to be made the party plaintiff and represented by its solicitor in a prospective legal action against its council. Therefore, these relators, on behalf of the public who are the municipal corporation, may maintain this action against the council without compliance with Section 733.59, Revised
On the merits, however, no clear duty on the part of council to take further action on the referendum has been shown and we find for the respondents.
In State, ex rel. Mika, Dir. of Law, v. Lemon, City Clerk, 170 Ohio St. 1, this court held that the requirement of Section 731.32, Revised Code, that the circulator of "a referendum petition against any ordinance * * * shall, before circulating such petition, file a verified copy of the proposed ordinance * * * with the * * * village clerk," is mandatory. An ordinance subject to the referendum is not effective and, hence, remains a "proposed ordinance" until the expiration of the period during which it may be attacked, or if properly attacked by referendum, until the vote is taken. Thus, in the absence of compliance with that statute, no duty devolves upon anyone to take further action on any such petition.
For that reason and for the further reason that there was also a failure here to comply with Section 731.33, Revised Code, it becomes necessary to determine whether that section and Section 731.32 are applicable in Springdale in view of its charter provisions relating to the initiative and referendum, which make but three departures from Sections 731.28 to 731.41, inclusive, Revised Code.
The Springdale charter is silent with respect to language to be contained on a referendum petition or with respect to
Sections 731.32 and 731.33, Revised Code, set forth mandatory requirements clearly relating to the exercise of the referendum power by the people. They are, by express charter provision, the law in Springdale, and Section 731.41, Revised Code,
It is unnecessary, therefore, to inquire whether the council had the right to determine its own jurisdiction of the referendum petition, or whether it had no discretion except to repeal the ordinance or transmit the referendum petition to the board of elections.
TAFT, C. J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and BROWN, JJ., concur.
"Whoever knowingly signs this petition more than once, signs a name other than his own, or signs when not a legal voter is liable to prosecution."
"Such writ shall contain a copy of the petition, verification, and order of allowance."
"1. A referendum petition under the charter must be signed by at last 10% of the number of electors who voted in the preceding election rather than 10% of the electors who voted for Governor at the next preceding general election.
"2. The charter requires the clerk, with whom the petition must be filed, to determine the validity of the petition, before certifying the content thereof to the village council at its regular meeting, while under general law the clerk's duties are merely administrative, his obligation being merely to certify the petition to the board of elections.
"3. The charter specifies that council must hold a hearing, after which it has the option to either repeal the measure under attack or certify it to the board of elections for submission to the electors at the next succeeding primary or general election. The general law specifies no such hearing or action by council."