State ex rel. Hirshler v. Frazier

410 N.E.2d 1253, 63 Ohio St. 2d 333, 17 Ohio Op. 3d 418, 1980 Ohio LEXIS 824

• Court: Ohio Supreme Court
• Decided: September 25, 1980
• Docket: No. 80-1086
• Status: Published

Opinions

Per Curiam.

The primary issue presented for our consideration is whether relators complied with R. C. 731.32, which provides:

“Whoever seeks to propose an ordinance or measure in a municipal corporation by initiative petition or files a referendum petition against any ordinance or measure shall, before circulating such petition, file a verified copy of the proposed ordinance or measure with the city auditor or the village clerk.” (Emphasis added.)

“ ‘Verified’ means supported by an affidavit as to the truth of the matters set forth; sworn to.” State, ex rel. Clink, v. Smith (1968), 16 Ohio St. 2d 1, 2. The village clerk in the instant cause did not “swear” to the authenticity of the ordinance, but did certify that the copy was true and exact. Although the requirement in R. C. 731.32 of filing a verified copy of the proposed ordinance is mandatory, State, ex rel. Mika, v. Lemon (1959), 170 Ohio St. 1, paragraph two of the syllabus, under the facts of this case, we are unable to discern any substantial difference between verification and certification.

“*** [T]he manner of submission of municipal ordinances to a referendum vote should be so construed as to permit rather than preclude the exercise of the right conferred. The object clearly sought to be attained by such provisions [in the Constitution of Ohio] should be promoted rather than prevented or destructed.” State, ex rel. Middletown, v. City Commission of Middletown (1942), 140 Ohio St. 368, paragraph one of the syllabus. See also State, ex rel. Vanderwerf v. Warren (1969), 20 Ohio St. 2d 9, 11. Thus, in the case of this referendum, we allow the writ of mandamus.¹

Relators also request an award of attorney fees pursuant to R. C. 733.61.² Such an award is entirely within the discretion of this court. See State, ex rel. Scott, v. Masterson (1962), 173 Ohio St. 402, 406. In this case, attorney fees will not be awarded to relators since there has not been demonstrated a sufficient benefit, tangible or intangible, bestowed on the public to warrant such an award. See Billington v. Cotner (1974), 37 Ohio St. 2d 17.

Writ allowed.

Celebrezze, C. J., W. Brown, P. Brown, Sweeney, Locher, Holmes and Dowd, JJ., concur.

1 An amicus brief was filed by Robert N. Kent and Gary Price, developers holding options on the property concerned in this action. They contend, inter alia, that ordinance No. 6-80 cannot be subject to a referendum since that ordinance is a result of an administrative action of the Granville city council, and not a legislative action. See Donnelly v. Fairview Park (1968), 13 Ohio St. 2d 1, 4. We disagree and, therefore, reject that argument.

2 R.C. 733.61 provides:

“If the court hearing a case under section 733.59 of the Revised Code is satisfied that the taxpayer had good cause to believe that his allegations were well founded, or if they are sufficient in law, it shall make such order as the equity of the case demands. In such case the taxpayer shall be allowed his costs, and, if judgment is finally ordered in his favor, he may be allowed, as part of the costs, a reasonable compensation for his attorney.”

This action is a taxpayer suit properly brought pursuant to R. C. 733.59.