
    The State, ex rel. Graham, a Taxpayer, v. Pestrak, Mayor, et al.
    (No. 36453
    Decided July 13, 1960.)
    
      Mr. Bruce Birrell, city solicitor, for relator.
    
      Mr. Charles T. Kaps, for respondents.
   Per Curiam.

Section 8, Article XVIII of the Constitution of Ohio, outlines the procedure necessary to frame and adopt a charter for a city or village. Under this constitutional provision, 15 electors are chosen to frame the charter, and “any charter so framed shall be submitted to the electors of the municipality at an election to be held at a time fixed by the charter commission and within one year from the date of its election, provision for which shall be made by the legislative authority of the municipality in so far as not prescribed by general law.”

The pending action was inaugurated in this court less than two months prior to the scheduled special election on April 12, 1960, whereby the electors of the city of Warren were to be afforded the opportunity of adopting or rejecting the charter framed by the charter commission. Such election was not held.

When it was presented to this court on oral argument on April 27, 1960, it became apparent that the matter was not ready for final submission, and counsel were so informed. Thereafter, on May 7, 1960, a stipulation of facts was filed, signed by counsel for relator and for respondents.

On June 1, 1960, the matter was again presented to the court on oral argument, and the situation was then and still is confused.

It is obvious that friction existed between the mayor and certain members of the Warren city council on the one hand and the charter commission on the other. Proposed ordinances for passage by council to place the charter before the electors of the city of Warren for a vote met varying fates. Two of them were enacted and one failed of passage. The one appropriating $5,500 for paying the expenses of the charter commission from unappropriated anticipated receipts of the general funds of the municipality was passed by council but was vetoed by the mayor.

Prom the record before the court, the reasons underlying the actions of council and the mayor are obscure. It is not clear whether those reasons were valid or arbitrary and unfounded.

Section 2731.01, Revised Code, defines “mandamus” as “a writ issued in the name of the state to an inferior tribunal, a corporation, board or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” And the right to the writ must be .clear. '

On the state of the record now before this court, we must decline to issue the writ prayed for. More than one year has elapsed since the election of the members of the charter commission, and the Constitution provides that a charter must be voted on within a one-year period.

Section 8, Article XVIII of the Constitution, is plain. If the majority of the voters in a city or village elect a charter commission to frame a charter, those voters should later be given the opportunity of voting on the charter so framed, and the existing legislative authority of the city or village affected is under the constitutionally enjoined duty to co-operate to that end. Unwarranted, illegal or obstructive tactics are not to be tolerated, and in a clear-cnt case, where the facts are presented in an adequate manner and where it is made to appear that the legislative authority is deliberately and wrongfully attempting to thwart the Constitution and the electorate, an action in mandamus brought before a court of competent jurisdiction is a recognizable and proper remedy to afford relief.

Writ denied.

Weygandt, C. J., Zimmerman, Matthias, Bell, Herbert and Peck, JJ., concur.

Taft, J., dissents.

Weygandt, C. J.,

concurs on the additional ground that according to the dissenting opinion part of the language of a provision of the Constitution is important and mandatory but other language of the same provision is unimportant and meaningless.

Taft, J., dissenting.

Admittedly, as alleged in the petition, a charter commission duly elected on May 5, 1959 pursuant to Section 8 of Article XVIII of the Constitution duly framed a charter for the city of Warren in accordance with that section of the Constitution which reads so far as pertinent to consideration of this case:

‘^Any charter so framed shall be submitted to the electors of the municipality at an election to be held at a time fixed by the charter commission and within one year from the date of its election, provision for ivhich shall be made by the legislative authority of the municipality * * '*. Not less than 30 days prior to such election the clerk of the municipality shall mail a copy of the proposed charter to each elector * * #. If such proposed charter is approved by a majority of the electors voting thereon it shall become the charter of the municipality * * (Emphasis added.)

Admittedly, as alleged in the petition, that charter commission thereafter fixed April 12, 1960 as the time for the election at which that charter should be submitted to the electors of Warren and those facts were made known to respondents, who are “the legislative authority” of Warren, on or before February 5, 1960.

In his petition, relator, after praying (inter alia) “that * * * respondents be * * * ordered * * * to take any * * * steps necessary to submit said proposed charter to the electors of # * * Warren on April 12, I960,” prays “for such other and further relief as may be necessary and proper.”

It is obvious that the foregoing constitutional provisions imposed upon respondents, as the legislative authority of Warren, a mandatory duty (“provision # * * shall be made”) to provide for an election on April 12, 1960 at which the proposed charter should have been (“shall be”) “submitted to the electors” of Warren. As I see it, therefore, the only question before us is whether the fact that April 12, 1960 passed during the pendency of this action without performance by respondents of that mandatory duty relieves respondents of any duty with respect to submission of the proposed charter to the electors of Warren.

The answer to this question necessarily depends upon the intention expressed by the people in the words which they used in Section 8 of Article XVIII of the Constitution. In my opinion, the intention so expressed by the words used was that an election with respect to such a proposed charter should be held, and the specification of the time within which it should be held was of secondary consideration and intended not to limit the power to hold it but to insure that it was held promptly. Robinson v. McGown, 104 S. C., 285, 88 S. E., 807. As suggested in City of Cincinnati v. Hillenbrand et al., Board of Deputy State Supervisors, 103 Ohio St.. 286, 300, 133 N. E., 556, “to hold otherwise * * * would encourage proceedings whose purpose and effect would be to annul the constitutional right” specified in Section 8 of Article XVIII of the Constitution. See also Welfare Finance Corp. v. Estep, 170 Ohio St., 391, 165 N. E. (2d), 789, Cincinnati Traction Co. v. Ruthman, 85 Ohio St., 62, 96 N. E.., 1019, Ann. Cas. 1913A, 911. Cf. Gibson v. City of Oberlin, 171 Ohio St., 1.

We should not be concerned with the fact that the prayer of the petition is for certain specific relief which cannot now or perhaps never should have been given, because that, prayer also includes a prayer for general relief. Thus, as stated in paragraph two of the syllabus of State, ex rel. Blackwell, a Taxpayer, v. Bachrach et al., City Council of Cincinnati, 166 Ohio St., 301, 143 N. E. (2d), 127, “where the allegations of a petition are sufficient to warrant the general relief sought, the form of the prayer is immaterial, and where the prayer is for general relief the court will shape its judgment according to the equity of the case and grant any relief warranted by the allegations of the petition.”

In my opinion, respondents should be ordered to make adequate and necessary provisions for the holding within a reasonable time, such as on or before the date of the next general election, an election at which the foregoing-mentioned proposed charter of Warren “shall be submitted to the electors” of that municipality.  