State ex rel. Schwartz v. Brown

Leach, J. At the outset, it should be noted that respondent concedes that the proposed amendment of Section 8, Article XII of the Ohio Constitution, if approved by the electorate, will become effective on December 8, 1972, and not on January 1, 1973. Independently of this concession, such a conclusion is compelled by the specific language of Section lb, Article II of the Ohio Constitution which provides that: “Any proposed * * # amendment to the Constitution submitted to the electors as provided in [section] la and lb, if approved by a majority of the electors voting thereon, shall take effect thirty days after the election at which it was approved * *." See, also, State, ex rel. McNamara, v. Campbell (1916), 94 Ohio St. 403, and Euclid v. Heaton (1968), 15 Ohio St. 2d 65. Thus, so far as its effective date be concerned, it now appears that the reference to an effective date of January 1, 1973, in the summary was not correct. One of relators’ contentions appears to be that the present proposal, being effective at a different date than the date specifically contained in the original proposal submitted to the Attorney General and filed with the Secretary of State, as provided by B. C. 3519.01, cannot qualify for voter approval or rejection, even though it complies with all constitutional requirements mandating its placement on the ballot. [8] By the terms of Section 1, Article II of the Ohio Constitution, the people of Ohio “reserve the power * * # independent of the General Assembly to propose amendments to the Constitution, and to adopt or reject the same at the polls.” Section la, Article II, provides that where a petition containing the signatures of ten percentum of the electors has been filed with the Secretary of State “proposing an amendment to the Constitution, the full text of which has been set forth in such petition, the Secretary of State shall submit for the approval or rejection of the electors, the proposed amendment, in the manner hereinafter provided, at the next succeeding regular or general election in any year occurring subsequent to ninety days after the filing of such petition.” Section Ig, Article II, prescribes in some detail the requirements of an initiative petition, requiring that it contain the “title, and text of * * * the * * * proposed amendment to the Constitution.” It also provides that its provisions “shall he self-executing,” hut that “laws may be passed to facilitate their operation, hut in no way limiting or restricting either such provisions or the powers herein reserved.” Here, the full text of the amendment as actually proposed on the part-petitions signed by the requisite ten percentum of the electorate was “set forth in such petition,” as required' by Section la, and such petition did “contain” the title and text of such proposal, as required by Section lg. The terms of such a proposed constitutional amendment are determined under the Constitution, not by the language of a petition submitted for preliminary examination to the Attorney General nor by the language of such a petition filed with the Secretary of State for approval as to form. Such terms are determined by the language of the actual proposed text of the amendment as contained in the part-petitions signed by the requisite number of electors. For reasons hereinafter set forth we do not reach the question of whether R. C. 3519.01 conflicts with the Constitution. [9] 2 We do conclude, however, that any conflict in language or legal effect between any documents submitted or filed under the requirements of E. C. 3519.01 and the text of a proposed constitutional amendment as it actually appears on the initiative petition signed by the required number of electors is governed by such text. Although the proposal might have been considered to be that of the “committee,” provided for in E. C. 3519.02, until such time as an initiative petition containing its full text has been signed by at least ten percentum of the electors, thereafter, under Article II, it becomes the proposal of the electors signing such petition and the specific terms of the proposal are determined by reference to its text. The text of the part-petitions, the language of the newspaper publication, required by Section lg, Article II, to be published for five consecutive weeks preceding the election, and the language of the ballot are consistent. None refers to any effective date, and as heretofore noted, by the [10] provisions of Section lb, Article II, such amendment, if approved, would become effective on December 8, 1972. In the chronology of events the last reference to an effective date of January 1, 1973, is that contained in the summary printed on the initiative petition. Assuming, but not deciding, that such a summary has any legal efficacy and that a conflict between the language of the summary and the language of the text, where both appear on the same initiative petition, would render such petition legally deficient, we are then met by the language of Section lg, Article II, that “the petition * * * shall be presumed to be in all respects sufficient, unless not later than forty days before the election, it shall be otherwise proved. * * *” When this language is read in pari materia with the provision of this same constitutional provision that “no * * * amendment to the Constitution submitted to the electors by initiative * * * petition and receiving an affirmative majority of the votes cast thereon, shall be held unconstitutional or void on account of the insufficiency of the petition by which such submission of the same Avas procured,” we think it clear that the 40-day provision is not limited to signatory insufficiency but extends to any defect of the petition of such character as would render it insufficient to require submission to a vote of the electorate as provided by Section la, Article II. Essentially, the 40-day provision of Section lg, Article II, is a constitutional limitation of action as to any claims that a proposed constitutional amendment should not be submitted to a vote of the electorate based on a claimed defect in the petition. Even if we assume that the erroneous statement as to the effective date contained in the summary printed on the petition would render such petition deficient, so as to authorize an order removing such issue from the ballot had an action asserting such a claim been filed more than 40 days before the election, the action herein was not filed mthin such time. Much of the argument of relators concerned itself with the chaotic tax collection problems which would result from the adoption of such an amendment effective [11] December 8, 1972, and the alleged dire consequences of additional loss of tax revenue to tbe state. As a court we should not be required to say—but in the present posture of this case feel compelled to say—-that our constitutional function in this dispute does not permit us to determine whether the proposed amendment, even with an effective date not originally contemplated by either its advocates or its opponents, is wise or unwise, or with whether an effective date of December 8, 1972, presents fiscal problems which would not have been present had the effective date been January 1, 1973. These arguments must be addressed to the electorate. Our judicial power is limited to determining the issue of whether, in view of the duty imposed upon him by Section la, Article II of the Ohio Constitution, the Secretary of State should be ordered to remove Issue No. 2 from the ballot at the election to be held November 7, 1972. For the reasons heretofore stated, we conclude that he should not. Writ denied. O’Neill, C. J.., Schneider, Herbert, Corrigan and Stern, JJ., concur. Footnotes [2] In State, ex rel. Tulley, v. Brown (1972), 29 Ohio St. 2d 235, a majority of the court reached no conclusion upon that question, neither party having raised or argued that issue. Two members of this court, however, concluded that it was unconstitutional. Justice Schneider concluded that R. C. 3519.01 “conflicts with the plain terms of Section lg, Article II of the Ohio Constitution, which requires the initiative petition to contain the title and text of the proposed amendment and sanctions no such summary of that text.” Justice Brown stated: “In spite of the fact that no party has raised any question as to the constitutionality of R. C. 3519.01, it strikes me as being unconstitutional on its face, since due process of law demands that the public be allowed to rely on the wording of the actual constitutional amendment, instead of a mere summary thereof. Such a summary restricts and circumvents, rather than facilitates, the people’s important right to know what they are actually petitioning for. Section lg, Article II of the Ohio Constitution, provides: “ ‘Any initiative, supplementary or referendum petition may be presented in separate parts, but each part shall contain a full and correct copy of the title and text of the law. * * *’ (Emphasis added.)” In his dissenting opinion herein, however, Justice Brown now appears to have departed from his prior position that “the public be allowed to rely upon the wording of the actual constitutional amendment, instead of a mere summary thereof.”