State ex rel. Carter v. Celebrezze

Per Curiam. The determinative issue before this court is whether the two divergent sets of part-petitions represent different proposed amendments, in which case neither has sufficient signatures to qualify for acceptance by respondent, or whether they should be considered as one, thus containing in excess of the number of signatures required. This court has stated that “***the terms of a proposed constitutional amendment are determined by reference to the text of such proposal as contained on the initiative petition and part-petitions signed by the requisite number of electors.” State, ex rel. Schwartz, v. Brown (1972), 32 Ohio St. 2d 4, paragraph two of the syllabus. Relators contend that the identicalness of part-petitions is not required, that the irregularities herein are superficial, and that there was no intent to remove the deleted language from the proposed amendment to the Constitution. This court finds no authorization in the Constitution or in the statutes for respondent to ignore the nondisclosure of presently existing language from the proposed amendment which is intended to continue in effect, or for respondent to assume that those electors who signed the part-petitions with the omitted language knew such language to be there or to be superficial in nature. The statements of Judge Johnson in State, ex rel. Greenland, v. Fulton (1919), 99 Ohio St. 168, at pages 179-180, are applicable herein: “Then there is the use of the word ‘amendment’ as related to some particular article or some section of the constitution, and it is then used to indicate an addition to, the striking out, or some change in that particular section.***[I]t may be essential for the elector to have before him the section which is proposed to be added to, or subtracted from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he would be required to vote in the dark. But when the particular section, with the additions or subtractions shown therein, is before the elector, this completed result becomes the amendment upon which he expresses his choice.” Relators maintain further that respondent was procedurally incorrect in not forwarding the part-petitions to the various county boards of elections and then advising relators of [329] the insufficiency of signatures. Relators rely principally upon State, ex rel. McCrehen, v. Brown (1923), 108 Ohio St. 454, which holds that Section lg, Article II of the Ohio Constitution, confers no power upon respondent to determine the sufficiency of referendum (and, presumably, initiative) petitions. However, under Section la of Article II, the verification process provided for in Section lg is not operative until “ * * * a petition signed by * * * [ten percentum of the electors] shall have been filed with the secretary***.” If no petition bearing the requisite number of electors’ signatures is presented, i.e., if the part-petitions represent two different proposed amendments, respondent has no duties under Section lg. Since ten percentum of the electorate have not signed either set of part-petitions herein, the part-petitions do not qualify for acceptance by respondent. Accordingly, the writ of mandamus is denied. Writ denied. Celebrezze, C. J., W. Brown, Sweeney and Locher, JJ., concur. P. Brown, Holmes and Dowd, JJ., dissent.