In re Hearing Johnson

30 Ohio C.C. Dec. 686, 16 Ohio C.C. (n.s.) 148

• Court: Cuyahoga Circuit Court
• Decided: November 1, 1909
• Status: Published

Opinion

MARVIN, J.

This ease is before ns on motion for leave to file a petition in error to a finding of Tom L. Johnson, mayor of Cleveland, on a petition filed with him under the statute found in the 98 O. L., 6S, et seq. This statute provides that after two years from the time when it has been found, by proper proceeding, that the sale of intoxicating liquors within a certain residence district is unlawful, a majority of the qualified 'electors may file a petition wiith the mayor against the prohibition of the sale of intoxicating liquors as a beverage within such district. By an amendment to this act found in the 99 O. L., 52, 53, it is provided that the filing of such petition as has already been mentioned, shall not prevent the filing of a petition for the prohibition of the sale of intoxicating liquors within such district, and it further provides that when two are filed, that which has the signatures of the greatest numbers of electors shall be granted, and that! the territory containing the greatest number of resident electors shall have precedence in the hearing.

By proper proceedings it had been found that in a certain district in the city of Cleveland the sale of intoxicating liquors should be prohibited. After more than two years thereafter, certain electors did file a petition against such prohibition. This was done on February 4, 1909, and the petition was numbered 38. As required by the statute the mayor fixed the time for the hearing of this petition on February 11, 1909. Before February 11, a petition was filed with the mayor by Richard Newton and others, asking for prohibition in this district, and this was numbered 39. The hearing of petition No. 38, was continued from February 11, to February 23, and from then to February 24. Notice of the filing of this petition No. 38, and of the time of its healing was given in the newspapers, as provided by law. On February 24, the vice-mayor heard the petition No. 38, No. 39 being then pending, but not yet heard. The vice-mayor on the hearing on February 24, held petition No. 38 sufficient, and an order to that effect was made. Error ivas prosecuted in this court to this finding and the judgment already made under it was reversed. It was not in terms ordered by the court upon such reversal that the ease be remanded to the mayor for further proceedings, but in the announcement by the court of the reversal, it was so ordered.

The grounds upon which the reversal was placed were that the vice-mayor had no jurisdiction, and that No. 38 could not Le lawfully heard until No. 39 had been heard. Thereafter, the mayor heard No. 39 and found it insufficient, and then on July 21, 1909, he set’ No. 38 for hearing on July 30, and on that day heard it, and found it sufficient, and a petition in error is presented to us with a motion that it may be allowed to- be filed. If error was committed by the mayor and that error is manifest on the record this motion should prevail and we should allow the petition to be filed, but we have reached the conclusion that there is nothing set out in the petition in error which would justify a reversal of the order made by the mayor.

It is said that the mayor lost all control of petition No. 38 when this court reversed the order made by the vice-mayor on that petition, because it is provided by the statute that the circuit court shall have final jurisdiction in the matter. It is manifest that the circuit court by finding that the petition had been prematurely heard, even if heard by the right party, did not undertake to pass upon the merits of the petition; certainly when this court found that the hearing by the vice-mayor was a nullity it did not finally determine whether it should have been granted or not have been granted when heard by the proper officer, so that it is clear that this- petition No. 38 was still before the mayor for hearing- after the action of the circuit court. Before the mayor undertook to hear No. 38, No. 39 was out of the way, so that the objection as to precedence was gone. As to the matter of notice, the mayor had given' the notice required by law for the original hearing. There was no- authority under the statute to give another notice. As a matter of fact, however, Richard Newton, who prosecutes this proceeding in error, had actual notice of the time of the hearing, because he was present at the hearing, as appears by the record.

A further claim is made that as the mayor was without jurisdiction to hear this petition because more than forty days had elapsed from the time of its filing before such hearing was had, and this is based upon the language of the statute which is that:

1 ‘ Such mayor * * * shall cause a certified copy or certificate of his findings together with the original petition to be filed with the clerk of the municipal corporation or counsel in uot less1 than live days -after such findings and not more than forty days from the filing of the petition with the mayor. ’ ’

There can be no doubt that this language is directory and not mandatory. To hold otherwise would put every petition filed by either those desiring to prohibit or those desiring to prevent prohibition in peril, because if the mayor were unable to hear the petition within the time directed by reason of his health, by reason of other duties, or for any other reason that would prevent his hearing the same, the petition was absolutely good for naught.

This clearly was not intended, and we reach the conclusion that this petition in error ought not to be filed, because upon an examination of the case, if it -were permitted to be filed, we should be required to affirm the action of the mayor.

Winch and Henry, JJ., concur.