#### The State, ex rel. Herbert, Atty. Genl., *v.*Mitchell.

(No. 27792

Decided October 4, 1939.)

*4
      *Mr. Thomas J. Herbert,*attorney general, and *Mr. Terry L. Graham,*for relator.

*Mr. E. G. Schuessler*and *Mr. Grary Davis,*for respondent.

By the Court.

The immediate issue is raised by a demurrer to the answer. The principal question concerns the duties of the Secretary of State upon the filing of a petition seeking a referendum on a law enacted by the General Assembly. The issue requires an examination of the provisions of the Constitution as well as of the statutes enacted thereunder.

By reason of his findings the Secretary of State made a determination that the papers filed did not constitute, a valid referendum petition, notified the petitioners’ committee to that effect and refused to send the parts of the petition to the boards of elections of the various counties for canvassing the signatures as provided by Section 4785-178, General Code, which reads in part as follows: “Whenever any such petition shall have been filed with the Secretary of State he shall forthwith separate the parts by counties and transmit such parts to the boards in the respective counties.”

On October 29, 1913, this court decided the case of *State, ex rel. Gongwer,*v. *Graves, Secy. of State, 90*Ohio St., 311, 107 N. E., 1018, holding that the Secretary of State had the authority to determine the suffi*5ciency and validity of all petitions filed with him under the provisions of Section lc of Article II of the Constitution.

Thereafter, on February 3, 1914, Section 5175-29), General Code, was enacted which read as follows: “Not later than forty days before the election, the Secretary of State shall make his decision as to the sufficiency of the petition, giving the reasons for or against its sufficiency. Prior to the decision the Secretary of State shall grant a hearing on the petition and give due public notice of the date thereof, which shall not be later than forty-five days before the election.”

Section 5175-29), General Code, was repealed effective August 17, 1915 (106 Ohio Laws, 295).

On February 3, 1914, former Section *5175-29h,*General Code, was enacted to read substantially as present Section 4785-178, General Code, in respect to transmitting the parts of petitions to the various boards of elections.

Former Section- *5175-29h,*General Code, was construed by this court in 1923 in *State, ex rel. McCrehen,*v. *Brown, Secy. of State,*108 Ohio St., 454, 141 N. E., 69. In the syllabus of that case this court ruled as follows:

“1. Section 1 *g,*Article II of the Constitution of Ohio, and the laws which have been ‘passed to facilitate their operation’ by the General Assembly, confer no power upon the Secretary of State to determine the sufficiency of the referendum petition or any of its parts at the time such petition is filed with the Secretary of State. The Secretary of State has neither express nor implied power to make any determination relative to such petition until after the parts thereof have been transmitted to the boards of deputy state supervisors of elections of the counties from which there appear names of electors on the parts of such petition, and after the same have been returned to the *6Secretary of State "with, certification of the numbers of signatures thereto.

“2. By virtue of the provisions of Section 5175-29/j., General Code, it is the duty of the Secretary of State immediately to transmit the parts of such petition, upon the same being filed in his office, to the boards of deputy state supervisors of elections in the various counties from which there appear' names of electors on the parts of said petition, and such duty is mandatory.”

The history of the foregoing legislation clearly shows the intent of the Legislature to place upon boards of elections the duty of examining signatures.

While a few of the duties of the Secretary of State in respect to elections are found in the Constitution, the great majority thereof are to be found in the statutes. Duties outlined in the Constitution are mandatory and must be followed. Likewise duties prescribed by statutes to facilitate the operation of constitutional amendments and not in conflict therewith must also be followed. The last sentence of Section 1 *g*of Article II of the’ Constitution relating to initiative and referendum powers is as follows: “Laws may be passed to facilitate their operation, but in no way limiting or restricting either such provisions or the powers herein reserved.”

The question then is: Do Sections 4785-178 and 4785-179, General Code, limit or restrict the operation of the powers of the initiative and referendum? To require the Secretary of State forthwith to transmit the parts of the petition to boards of elections for the purpose of- determining the sufficiency of the signatures does not restrict or limit the referendum power. To require the boards of elections in the various counties to canvass the signatures in their own counties does not restrict or limit the referendum power. To require the Secretary of State to use the total number of valid signatures certified by the vari*7eras boards of elections for the purpose of determining the sufficiency of the referendum petition does not restrict or limit the referendum power nor is such requirement in conflict with any constitutional provision. Section 4785-179, General Code, reads in part as follows: “The petition and signatures upon the parts of the petition, properly verified, together with the report of the board, shall be returned to the Secretary of State not less than forty days before the election. The Secretary of State shall use the number of signatures so certified from the several counties to determine the sufficiency of the petitions, and shall notify the chairman of the committee in charge of the circulation as to the sufficiency or insufficiency and the extent of the insufficiency. If the petition is found insufficient because of an insufficient number of valid signatures, such committee shall be allowed ten additional days after such notification by the Secretary of State for the filing of additional signatures to such petition.” Here we have the same ten-day provision for filing additional signatures as found in the Constitution.

We come now to a detailed consideration of the signatures and parts of the petition found invalid by the Secretary of -State and by reason of which he determined that the entire petition filed by the committee for the signers was not a valid referendum petition. We are obliged to modify the decision of the court in *State, ex rel. McCrehen,*v. *Brown, Secy. of State, supra,*in one respect. Section 1 *g*of Article II of the Constitution provides for an affidavit of the circulator of each part of a petition in language as follows: “To each part of such petition shall be attached the affidavit of the person soliciting the signatures to the same, which affidavit shall contain a statement of the number of the signers of such part of such petition and shall state that each of the signatures attached to such part was made in the presence of the affiant, that *8to the best of his knowledge and belief each signature on such part is the genuine signature of the person whose name it purports to be, that he believes the persons who have signed it to be electors, that they so signed said petition with knowledge of the contents thereof, that each signer signed the same on the date stated opposite his name; and no other affidavit thereto shall be required.” It will be noted that the Constitution requires no other affidavit except the one mentioned. Section 1 *g*of Article II continues as follows: “The petition and signatures upon such petitions, *so verified,*shall be presumed to be in all respects sufficient, unless not later than forty days before the election, it shall be otherwise proved and in such event ten additional days shall be allowed for the filing of additional signatures to such petition.” (Italics ours.) The Constitution is explicit that all petitions and parts of petitions *thus verified*according to the Constitution shall be presumed to be in all respects sufficient unless proven to be; otherwise. It is clear, therefore, that the Secretary of State was right in rejecting the parts of the petition containing 207 signatures not verified with an affidavit as provided in the Constitution. In other respects the signatures on the petition are presumed to be sufficient unless proven otherwise according to the procedure outlined in the statutes. Deducting 207 signatures from the total number filed (146,-347) leaves 146,140 signatures, which is not less than six per cent of the total vote cast at the preceding gubernatorial election. The petition therefore meets the requirements of the Constitution' for filing purposes. This number of signatures presumed to be sufficient under the Constitution required the Secretary of State to accept the petition and transmit the parts thereof to the boards of elections in the various counties as provided by law.

The petition meeting the requirements of the Constitution and the law for filing purposes, the effective *9date of the act was postponed and the appointment of the respondent as a member of the Civil Service Commission was void and of no effect. The demurrer to the answer is sustained and an order of ouster is granted.

*Judgment of^ouster.*

Weygandt, C. J., Zimmerman, Williams and Myers, JJ., concur.

Day, Matthias and Hart, JJ.,

dissenting. The pertinent facts stated in the answer of the defendant, which are admitted by the demurrer and thereby conceded to be true are, that on September 5,1939, certain papers were lodged with the Secretary of State of Ohio, attempting to conform with the requirements contained in the Constitution and in Section 4785-176, General Code, purporting to be a petition for a referendum on House Bill No. 14, enacted by the Ninety-third General Assembly; that such purported petition consisted of 3,815 separate and distinct parts upon which appeared a total of 146,347 names from more than one-half of the counties of the state, but that such papers failed to embody the requisites of a petition for a referendum on such House Bill as required by the Constitution and statutes in the following particulars, to wit:

(1) That of the purported signatures appearing thereon 1,593 were not written in ink as required by Section 1 *g*of Article II of the Constitution; (2) that 207 of such signatures appeared on purported parts of such petition forms upon which there was no affidavit of the circulator as required by the same section of the Constitution; (3) that 103 signatures, other than those above noted, were not followed by the date of the alleged signing as required by the same section of the Constitution; and (4) that 5,343 names appeared on petition forms on which the solicitor failed *10to make the statement as to what compensation or (property "he had received or expected to receive for 'his Services in soliciting such signatures, as required by Section 4785-176, General Code, all of which requirements or similar requirements have been held by this qpurt, or other courts, to be mandatory. *Thrailkill*v. *Smith, Secy. of State,*106 Ohio St., 1, 138 N. E., 532; *State, ex rel. Patton,*v. *Myers, Secy. of State,*127 Ohio St., 95, 186 N. E., 872, 90 A. L. R., 570; *State, ex rel. Gongwer,*v. *Graves, Secy. of State,*90 Ohio St., 311, 107 N. E., 1018; *Uhl*v. *Collins,*217 Cal., 1, 17 P. (2d), 99, 85 A. L. R., 1370; *Devine*v. *State, ex rel. Tucker,*105 Ohio St., 288, 136 N. E., 922; *Perkins et al., Bd. of Edn.,*v. *Bright,*109 Ohio St., 14, 141 N. E., 689; *Bd. of Edn. of Ashville Village School Dist.*v. *Briggs, Aud.,*114 Ohio St., 415, 151 N. E., 327.

The answer further alleges that six per cent of the electors of Ohio, the number required by the Constitution'to invoke the referendum machinery, is 144,773; that the papers filed with the Secretary of State do not contain 146,347 signatures, as claimed, but for the reasons before stated, apparent upon the face and without proof *aliunde,*contain but 139,058 signatures; and that the papers so filed, therefore, do not in fact constitute a petition for referendum, which facts were found and determined by the Secretary of State.

Conceding the foregoing facts to be true as they have been conceded by the relator in filing his demurrer to the answer, the inescapable conclusion must be that the so-called petition filed with the Secretary of State clearly appears on its face inadequate and insufficient to constitute a valid referendum petition under the requirements of the Constitution and statutes now in force with reference thereto.

The only question remaining is: Who is to determine in the first instance the adequacy or inadequacy on its face of a petition for a referendum under the Constitution and statutes? Section 4785-7, General *11Code, provides that “It shall be the duty of the Secretary of State * * * to receive and to determine the sufficiency of all initiative and referendum petitions on state questions and issues as hereinafter provided, and, to certify to the sufficiency of such petitions; * * Section 1c of Article II of the Constitution provides that “When [and this must mean only when] a petition, signed by six per centum of the electors of the state [and this must mean signatures valid on their face] and verified as herein provided, shall have been filed with the Secretary of State within ninety days after any law shall have been filed by the Governor in the office of the Secretary of State, ** * **the Secretary of State shall submit to the electors of the state for their approval or rejection such law, ** * **in the manner herein provided * *

The majority bases its conclusion upon the decision of this court in the ease of *State, ex rel. McCrehen,*v. *Brown, Secy. of State,*108 Ohio St., 454, 141 N. E., 69, in which the court differentiated its decision from the decision in the *Graves case, supra,*upon the amendment of the statuté subsequent to the decision of the latter case, which statute, in important respects, vitally modified the power and authority of the Secretary of State. However, we direct attention to the fact that, by the revision and supplementation of the election laws in 1929 (113 Ohio Laws, 307), after the decision of the *Brown case*in 1923, the duties, powers and authority relating to referendum petitions were restored to the Secretary of State substantially the same as they existed at the time of the decision of the *Graves case*.

Section 5175-29), General Code, the repeal of which is given as a basis for the decision of the *Brown case,*provided that after the petitions were returned from the several boards of deputy state supervisors of elections the “Secretary of State shall make his decision as to the sufficiency of the petition, giving the reasons *12for or against its sufficiency. ’ ’ But a similar provision now appears in Section 4785-179, General Code, and further authority in this respect is given by Section 4785-7, General Code, above quoted. Section *5175-291*(repealed 106, Ohio Laws, 295) gave the Secretary of State power, to subpoena and administer oaths to witnesses for the purpose of facilitating such inquiry when necessary, and Section 4785-7, General Code, which is an entirely new section, restores such powers. However in the instant case .no such inquiry is necessary because the defects appear on the face of the alleged referendum petition. Section 5175-29Í, .General Code, was relied upon in the *Brown case*because it contained the provision that the board of deputy state supervisors of elections “shall also scrutinize all parts of the petition * * * for repetition of signatures, illegal signatures *and for the omission of any of the formal or other requisites set forth in the Constitution,,”*(Italics ours.) This section has been repealed (113 Ohio Laws, 307) and the corresponding provision of the General Code, Section 4785-178, provides instead that “The several boards shall proceed at once to ascertain * * * the number of illegal signatures *and the omission of an%y necessary details*re*quired by law.*The board shall make note opposite such signatures, submit a report to the Secretary of State indicating the sufficiency or insufficiency of such signatures * * The italicized portion of old Section 5175-29Í, upon which the court so strongly relied in the *Brown case,*was materially changed. Hence, the present law on this subject, Sections 4785-178, 4785-179 and 4785-179», General Code, limits the consideration and report of the boards of elections to the Secretary of State to the matters named therein.

It must be conceded, as indeed it was conceded in oral argument, that if an alleged petition did not contain signatures in excess of six per cent of the electors of the state, the Secretary of State would not be re*13quired to recognize it or file it as a referendum petition. For the same reason, in our opinion, lie is not obliged to recognize or file it if, after eliminating signatures which, are obviously and clearly illegal and insufficient, there remain less signatures than the number required to make a valid petition. The majority members of this court conceded that .the Secretary of State must reject 207 signatures because the parts of the petition on which they appear were not verified by the circulators as required by the Constitution. By the same token, the Secretary of State is required to reject 5,343 signatures because the parts of petition on which they appear contain no certification on the part of the solicitor as to what compensation or property he had received or expected to receive for his services in soliciting such signatures, as legally required by Section 4785-176, General Code, this being a mandatory requirement of the same character as that of the affidavit above referred to, both deficiencies being equally apparent on the face of the petition.

Aside from his later duty to pass upon the sufficiency of the petition after the parts are returned by the boards of elections, clearly, the Secretary of State, under the Constitution and statutes, must in the first instance make certain observations and some definite findings as to such petition. He must determine whether it is filed within the ninety-day'period; and whether it is apparently signed by six per. cent of the electors; whether the signatures are written in ink or indelible pencil; whether the parts of the petition on which signatures appear were verified by the circulator ; and whether the circulator has certified by his signature as to what compensation or property he has received or expects to receive for his services in soliciting such signatures. In so doing, must the Secretary of State consider signatures clearly illegal and insufficient on the face of the so-called petition? In our opinion to so hold is not only against legal reasoning, *14but against governmental regularity itself, since it ' would permit less than six per cent of the electors of the state, by the filing of a so-called referendum petition, admittedly insufficient on its face, to suspend the operation of an act of the Legislature contrary to the. provisions of the Constitution itself, including the provision that the petition must be filed within the ninety-day period. If the ninety-day constitutional limitation for filing referendum petitions means anything, it must contemplate and require that a petition, *prima facie*valid and sufficient bn its face, be filed within that period.

Under the provisions of the Constitution and statutes, the Secretary of State cannot be regarded as a mere automaton and as such required to accept and treat as valid every so-called referendum petition without question and without respect to its obvious invalidity. We hold that when the Constitution provides that a petition must be filed, it must be a petition having on its face the requisite number of signatures, *prima facie*legal, and that in making such determination the Secretary of State cannot consider signatures, on-their face, clearly illegal.

Under the facts admitted by the demurrer, the conclusion is inevitable that no duty devolved upon the Secretary of State to forward such papers to the various county boards of elections. The demurrer to the answer should be overruled.