State ex rel. O'Grady v. Brown

356 N.E.2d 296, 48 Ohio St. 2d 17, 2 Ohio Op. 3d 94, 1976 Ohio LEXIS 698

Opinion

Per Curiam.

The determinative issue presented in this cause is whether a. writ of prohibition is an available remedy for the relief sought by relators. . .

“It; has long been the law of this state that fhe eon-, ditions which must- exist to support the issuance -of á writ of' prohibition are: (1) The court or officer against whom it is sought must'be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that refusal of the writ would result in injury for which there is no other adequate-remedy. * * *” State, ex rel. Lehmann, v. Cmich (1970), 23 Ohio St. 2d 11. It is the first of the above-stated requisites which is crucial in the instant cause. For rela-tors to prevail there must be a “* # * showing that the- acts [of the Secretary of State] sought to -be prohibited constitute a usurpation of quasi-judicial power. * * *” State, ex rel. Schwarts, v. Brown (1972), 32 Ohio St, 2d 1, 3.

./Section lg, Article II, Ohio Constitution, provides that the Secretary of State “shall cause to be placed upon the ballots’’ any proposed laws or amendments-to the Constitution which are presented by initiative petition;. Although the “*"4' * Secretary of State necessarily will' act in a quasi-judicial capacity in determining- the sufficiency of the petition” (State, ex rel. Patton, v. Myers [1933], 127 Ohio St. 95, 98), the placing of the issues on the ballots is ministerial in nature and not'quasi-judicial. The acts of the Secretary of State herein sought to be prohibited fall squarely within the definition of “ministerial act” found in Black’s Law Dictionary (4 Ed.). That definition, which was quoted approvingly by the court in Maloney v. Rhodes (1976), 45 Ohio St. 2d 319, 323, reads: “One which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal - authority, without regard to or the exei’cise of his own judgment-upon the propriety of the -act being done”’-

’ It Is the conclusion of this court that the placing of the issues in question on the ballots and tabulating the 7votes cast thereon do not constitute the exercise of quasi-judicial power- by the Secretary : of State'. (Therefore, there is “ho-‘showing that" the • acts? sought-to- be prohibited-'constitute a usurpation of qu'ási-judicial power” (Stal'd,'eX rel. Schwartz, v. Brown, supra), and prohibition does not lie.

Although relators’ request for a writ of prohibition must be denied for the reasons expressed above, it is fitting to observe that the delay between the time the Secretary of State informed the leaders of the General Assembly that he could no longer delay the advertising, on September 9, and the time of the filing of relators’ action in this court on September 27, could, in itself,, be sufficient cause to deny relief even if relators were otherwise entitled to it; In election cases “* * *where time is such an important.factor, extreme diligence and the promptest of action * * *"are required, and can result in deprivation of the relief sought. State, ex rel. Schwartz, v. Brown (1964), 176 Ohio St. 91.

Accordingly, the writ of prohibition is denied.

Writ denied.

O’Neill, C. J., Herbert, Corrigan, Stern, Celebrezze, W. Brown and P. Brown, JJ., concur.