
    The State, ex rel. Bowman, v. Asmann et al.
    
      Elections — Mandamus to compel submission of ordinance to referendum — Sufficiency of answer alleging that ordinance would be submitted to electors.
    
    Mandamus, 38 C. J., Sec. 612.
    (No. 19357
    Decided October 27, 1925.)
    In Mandamus.
    
      Mr. Frank K. Bowman, city solicitor, and Mr. L. L. Forchkeimer, assistant city solicitor, for relator.
    
      Mr. Chas. 8. Bell, prosecuting attorney, for respondent.
    
      Mr. A. Julius Freiberg, amicus curiae.
    
   By the C'ourt.

This is an original action in mandamus, filed in this court, wherein the relator asked that a writ of mandamus issue, compelling the respondents, as members of the board of deputy state supervisors and inspectors of elections of Hamilton county, Ohio, to cause a certain ordinance to be submitted to the electors of the city of Cincinnati for their approval or rejection at the ensuing election to be held on November 3, 1925. The cause was submitted to this court upon a demurrer to the answer.

The petition alleges that on, May 19, 1925, this ■ordinance was passed over the veto of the mayor, and that thereafter a petition, duly signed by á requisite number of electors, asking for its submission as aforesaid, was filed with the city auditor; that on June 8, 1925, the city auditor certified said petition to the respondents; and that, although all the steps and proceedings required by law for submitting the ordinance were fully taken and complied with, the respondents refused and still refuse to cause the ordinance to be submitted to the electors of the city for their approval or rejection at the election to be held on the date aforesaid.

The respondents’ answer substantially admits all the allegations of the petition, but in their answer they say that “they will cause to be printed the necessary ballots, and take the steps necessary to submit to the qualified electors of the city of Cincinnati, in accordance with the terms of the petition heretofore filed with them,” the question whether or not such ordinance shall be approved or rejected by the electors at said ensuing election.

Had the respondents in their answer alleged that they had complied with the prayer of the petition, and had taken steps to submit the ordinance to the electors of the city of Cincinnati for their adoption or rejection, manifestly a writ of mandamus would not issue to compel the respondents to perform a legal duty which they had already performed. In such case there would not be a plain dereliction of duty upon the part of the respondents against which the writ would lie. However,- in the instant ease, it appears by the answer of the respondents that, -both at the time of the filing of the petition and at the time of the filing of the answer, the respondents had not complied with or taken any steps to comply with the duty enjoined upon them. The allegation in the answer is that they will cause the necessary steps to be taken for the printing of the ballots and the submission of the question to the electors at some future time. In that aspect of the case, and under the state of the pleadings as they were presented to this court, the demurrer to the answer will be sustained.

Forty-eight hours leave is given the respondents to file an amended answer, if they so desire.

Dewmrmr sustained.

Marshall, C. J., Jones, Matthias, Day, Allen and Kinkade, JJ., concur.

Robinson, J., not participating.

(October 29, 1925.)

Since the rendition of the judgment of this court upon the demurrer to the respondents’ answer, the respondents have filed their amended answer, which contains the following allegations:

“Respondents say they have caused to be printed the necessary ballots and have taken the steps necessary to submit to the qualified electors of the city of 'Cincinnati, in accordance with the terms of the petition heretofore filed with them,1 the question of whether or not Ordinance No. 182-1925 shall be approved or rejected by said electors at the general election to be held on Tuesday, November 3, 1925, and that said question will be submitted on said day.
“Respondents further say they have permitted certain electors qualifying under the absent voters law to vote on the question and have received and will count such ballots as provided by law.”

In view of said allegations contained in said amended answer, the relator will be given leave to file a reply thereto within twenty-fonr hours; failing to do so the petition will be dismissed at the costs of the respondents,

Jones, Matthias, Day and Robinson, JJ., concur.

Marshall, C. J., Allen and Kinkade, JJ., dissent.

(October 30, 1925.)

This day the relator appeared in open court and stated that the respondents had fully complied with their duties in respect to the submission of said ordinance as alleged in their amended answer, and that he had no doubt of the good faith of the respondents and of the prosecuting attorney as to their continued compliance with respect to such submission. Because of the statements so made in open court and for the further reason that the relator stated that he did not desire to reply to the amended answer, it is therefore ordered by this court that the petition be dismissed at the cost of the respondents.

Jones, Matthias, Day and Robinson, JJ., concur.

Marshall, C. J., Allen and Kinkade, JJ., dissent.  