
    Spahr v. Brown, Secy. of State.
    
      Referendum — Taxpayer may enjoin submission, when — Motive in instituting action immaterial, when — Ninety-day limitation for filing supplemental petitions mandatory — Decision of secretary of state not conclusive, when — Indefinite postponement of initiated bill constitutes rejection b'y general assembly, when — Limitation for filing . supplemental petitions starts, when — Time not extended by mfitions for re- ' consideration or suspension of rules, when — Secretary of state enjoined from proceeding with proposed referendum.
    
    1. A taxpayer’s action lies to enjoin expenditures arising out of the submission of a referendum where the referendum proceedings are vitally defective.
    2. The (motive of the taxpayer in bringing the action, if not of itself illegal, is not material if his cause of action is sufficient.
    3. The 90-day limitation provided 'by the Constitution for filing the supplementary .petition upon an initiated bill is mandatory, the decision of the secretary of state thereon ■is not conclusive, and resort may be had to the courts for final decision.
    4. Where an initiated bill in the course of proceeding before the House of Representatives is indefinitely postponed, and no further action by the house is had thereon, such action, under the rules of the house, amounts to a rejection of the bill, within the meaning of the Constitution, and the 90-day period for the filing of the supplemental petition begins to run from such date.
    5. Where a motion for reconsideration of such indefinite postponement, made by a member of the house more than two legislative days thereafter, is ruled out of order by the speaker, and a motion to suspend the rules in respect thereto is voted down by the house, such facts do not operate to extend the time for filing the supplementary petition.
    [1] Injunctions, 32 C. J. §425; [2] Actions, 1 C. J. §66; [3] Statutes, 36 Cyc. p. 942 (Anno.); [4] Id.; [5] Id.
    
      6. The supplementary petition upon such initiated bill having been filed more than 90 days after the bill was rejected by the House of Representatives, there would be no basis for the proposed referendum, and the action of the secretary of state in proceeding with the referendum must be enjoined.
    [6] Statutes, 36 Cyc. p. 942 (Anno.).
    (Decided August 1, 1925.)
    Appeal: (Court of Appeals for Franklin county.
    
      Messrs. Vorys, Safer, Seymour & Pease, for plaintiff.
    
      Mr. G. G. Crabbe, attorney general, Mr. R. R. Zurmehly and Mr. Fred C. Rector, for the defendant, Thad H. Brown, as Secretary of State and State Supervisor and Inspector of Elections.
   By the Court.

The plaintiff, as a citizen and taxpayer, brought this action in the Court of Common Pleas to enjoin the secretary of state from submitting the referendum upon house bill Number 10 to establish a State Chiropractic Board. The bill was proposed by initiative petitions, under Section lb, Article II of the Constitution. No question is made as to the regularity of the initiating petitions.

The initiated bill was duly presented by the sec retary of state to the General Assembly, and became in the lower branch “House Bill Number 10.” In the course of proceeding in the House of Representatives, the committee on public health, to which the bill was referred, on February 25, 1925, recommended indefinite postponement. By direction of the house, the chairman of the committee reported the action of the committee. The house journal shows, under date of February 26, 1925, in reference to the bill:

“The report was agreed to and said House Bill Number 10 was indefinitely postponed.”

March 3, 1925, a motion to reconsider was made by a member of the house and the motion was ruled out of order by the speaker. Thereupon, a motion to suspend the rules was made and rejected by the house.

The supplementary petition provided fpr under Section lb, Article II of the Constitution, to secure a referendum on house bill Number 10 was filed on May 29, which was ninety-two days after the indefinite postponement of the bill ordered by the house. The question, therefore, is whether the supplementary petition was filed within time, and whether the action of the secretary of state in ordering the referendum was invalid. A demurrer was presented to the petition in the lower court. The case was submitted there upon demurrer to the petition and also upon certain supplementary facts agreed to. The ease has been appealed to this court and is now presented in the same manner here. We have considered the case broadly upon the pleadings and agreed statement of facts.

Certain preliminary questions are raised as to the propriety of the citizen and taxpayer’s action. It is urged that a, citizen and taxpayer will not be heard to invoke jurisdiction to review the action of the secretary of state, and the propriety of his action is also questioned because he brought the action at the instance of the State Medical Society and under an agreement for reimbursement of the expenses of the suit by such society. Neither of these questions is new.

Upon the first question, it may be observed that the ninety-day provision is a constitutional limitation binding alike upon the parties interested in the bill and the secretary of state. The ninety-day limitation is a jurisdictional provision, and if the proponents of the bill did not comply with this provision jurisdiction is lost, and no action by the secretary of state can confer jurisdiction as against the limitation expressly provided for in the 'Constitution. It is undoubtedly true that referendum provisions shall be liberally construed by the courts, and in matters wherein there is no express limitation the action of the secretary of state would not be questioned by the courts, unless it should be found that there was an abuse of discretion. If it should clearly appear that the supplementary petition was not filed within ninety days after the rejection of the bill by the house, the courts will review the action of the secretary of state and enjoin proceedings under the referendum. That a citizen and taxpayer in a proper action may enjoin the secretary of state from submitting a referendum, we think was decided and recognized in the following cases: City of Cincinnati v. Hillebrand, 103 Ohio St., 286; Thrailkill, a Taxpayer, v. Smith, Secy. of State, 106 Ohio St., 1, and Hawke v. Smith, 253 U. S., 221, 231.

We think it clear from the reported oases in this state, some of which have been approved by the Supreme Court, that the motive of the citizen and taxpayer, resulting from his relationship with the State Medical Society, does not ba,r his right to prosecute this action, so long as the motive is not illegal or contrary to public policy. Raynolds v. Cleveland, 2 C. C. (N. S,), 139, 14 C. D., 215; McClain v. McKisson, 15 C. C., 517, 8 C. D., 357, and Vadakin v. Crilly, 7 C. C. (N. S.), 341, 18 C D., 634, affirmed 73 Ohio St., 380.

The final question therefore is whether the supplementary petition was filed within ninety days after the rejection of the initiated hill by the House of Representatives. This question involves:

(a) The effect of the indefinite postponement of the bill by the house.

(b) The effect of the motion for reconsideration. >

Section lb, Article II of the Constitution, being the “Initiative and Referendum” section, is somewhat lengthy. After the initiated bill is received by the General Assembly there are three alternatives upon which the referendum may be had. These are:

1. If the bill shall not be passed.

2. If .it shall be passed in an amended form.

3. If no action shall be taken thereon within four months from the time the bill is received.

The concrete question is whether indefinite postponement amounts to a rejection of the bill. If so, then the supplementary petitions must be filed within ninety days thereafter. Indefinite postponement has a legislative meaning according to the rules of the House of Representatives. Hughes’ American Parliamentary Guide for the Ohio General Assembly is recognized by Rule 107 of the house, and shall control in all cases not otherwise provided for. Section 206 of this authority states that the motion for indefinite postponement is “an adverse motion used to suppress or reject.” The report of the committee for indefinite postponement of the bill was properly brought before the house, and the house had jurisdiction over the bill. The action of the house approving the report of the committee and also providing for the indefinite postponement of the bill was, in our judgment, under the rules of the house, a rejection of the bill. There was a final disposition of the bill by said action of the house. The fact that the action of the house might be reconsidered would not change the result unless the house had actually reconsidered the bill. The motion to reconsider was made on March 3, and was ruled out of order by the speaker, because more than two legislative days had passed. No appeal was taken from the action of the speaker, and the motion to suspend the rules was lost, consequently the motion to reconsider did not suspend or change the final rejection of the bill made by the house on February '26.

We therefore reach the conclusion that the secretary of state was without jurisdiction in the premises and should be enjoined from proceeding with the referendum.

Decree accordingly.

Allread, Ferneding and Kunkle, JJ., concur.  