
    The State, ex rel. Commissioners of the Sinking Fund et al., v. Brown, Secy. of State.
    (No. 35389
    Decided November 27, 1957.)
    
      
      Mr. William Saxbe, attorney general, Mr. Huntington Carlile and Mr. Hugh A. Sherer, for relators.
    
      Mr. William Saxbe, attorney general, Mr. John M. Tobin and Mr. S. Noel Melvin, for respondent.
   Per Curiam.

Counsel of record agree that the sole question of law presented by the relators’ demurrer to the respondent’s answer is whether the condensed text of the then proposed Section 2e of Article VIII of the Constitution of Ohio, as it appeared on the ballot at the November 8, 1955, election, was such an improper description of the proposed amendment as to void the result of the election with reference thereto. More specifically, the respondent’s single contention is that “the condensed text of the proposed amendment was misleading to the electorate in that it indicated that the obligations therein provided would be payable solely from the proceeds of an additional cigarette tax.” To the contrary the relators insist that the respondent relies entirely on a mere inference which is unwarranted, and that, while the condensed text did mention an excise on cigarettes, the language does not provide that such excise shall be the sole source of revenue for payment of the bonds.

Section 3505.06, Revised Code, reads in part as follows:

“The questions and issues ballot need not contain the full text of the proposal to be voted upon. A condensed text that will properly describe the question, issue, or amendment shall be used as prepared and certified by the Secretary of State for state-wide questions or issues or by the board for local questions or issues. If such condensed text is used, the full text of the proposed question, issue or amendment together with the percentage of affirmative votes necessary for passage as required by law shall be posted in each polling place in some spot that is easily accessible to the voters.”

In their petition the relators allege and in his answer the respondent admits that the full text of the proposed' constitutional amendment was duly published for five weeks in each county of this state, as provided in Section 1 of Article XVI of the Constitution of Ohio, and also was duly posted in each polling place, as required by Section 3505.06, Revised Code, supra.

But did the condensed text on the ballot “properly describe” the question? The question itself read as follows:

“Shall the proposed amendment of Article VIII of the Constitution of the state of Ohio to provide for a long range building program for the purpose of building public buildings, structures, and other public improvements, excluding highways, and for issuance of securities of the state of Ohio in the amount of $150,000,000 to provide the funds therefor; and to provide for an excise tax on cigarettes to pay for such securities and interest thereon, be adopted?”

The additional language of the condensed text on the ballot read in part:

“For the purpose of providing funds to pay all interest, principal, and charges for the issuance and retirement of such bonds and other obligations, there shall be levied an excise tax on sales of cigarettes.”

Was the cumulative effect of the language of the condensed text such as to constitute a misrepresentation that the bonds would be payable solely from the proceeds of an additional cigarette tax?

The phrase “securities of the state of Ohio” clearly indicates a general obligation of the state. But is this destroyed by the additional provision that “for the purpose of providing funds to pay all interest, principal, and charges for the issuance and retirement of such bonds and other obligations, there shall be levied an excise tax on sales of cigarettes”? Does this language mean that the bonds must be paid from the proceeds of the new cigarette excise alone, or does it mean simply that all proceeds of that excise must be applied toward payment of the bonds? This court is of the opinion that the latter is the more logical view. And the possibility of misunderstanding seems remote especially when it is remembered that the full text of the amendment was published in at least one newspaper in each county once a week for five consecutive weeks preceding the election, and that the full text was duly posted in every polling place. Of course a greater degree of accuracy of expression would have resulted if the ballot had contained the lengthy involved technical terms of the entire amendment, but this is the very difficulty sought to be avoided by the statute which expressly states that the “ballot need not contain the full text of the proposal” and that a “condensed text” may be substituted therefor. In criticizing the precis prepared by the respondent Secretary of State, it might be well to recall the wise observation of the noted historian, George Bancroft, in the preface to the last revision of his History of the United States, that “there is no end to the difficulty in choosing language which will awaken in the reader the very same thought that was in the mind of the writer.”

Counsel cite the decision of this court in the case of Beck v. City of Cincinnati, 162 Ohio St., 473, 124 N. E. (2d), 120. In the three paragraphs of the syllabus the court held:

“1. Under the provisions of Section 3505.06, Revised Code, a ballot shall contain a brief title descriptive of the question or issue to which it pertains together with a brief statement of the percentage of affirmative votes necessary for passage.

“2. These provisions do not authorize the insertion of the words ‘If levy passes, there will be no city income tax in 1955 or 1956’ in the caption of a ballot submitting to the electors the question whether there should be an additional tax levy.

“3. Such language is argumentative, misleading and coercive, and its use in the caption of a ballot invalidates the election. ’ ’

The clear distinction between that and the instant case is that the statement there disapproved was mere unauthorized speculation and coercive argumentation.

Also cited is the decision of this court in the case of Thrailkill, a Taxpayer, v. Smith, Secy. of State, 106 Ohio St., 1, 138 N. E., 532. The statutory provision there involved required that “each amendment shall be stated thereon in language sufficient to clearly designate it.” In the third paragraph of the syllabus it was held in part:

“It is one of the purposes of that statute to prevent each proposal on such ballot from becoming confused in the mind of the voter with other proposals concurrently submitted. Neither the letter nor the spirit of the Code provision requires that the title, or text, or a true copy of the proposed amendment, be printed on the ballot.”

However, in addition to the question of the adequacy of the condensed text appearing on the ballot, a further argument is advanced on behalf of the relators.

Although no mention of an election contest is made in either the relators’ petition or the respondent’s answer, it is urged that the respondent’s alleged defense is not available to him in this action. The contention is that his objection could and should have been raised in the form of a contest two years ago at the time of the election. Beliance is placed on the decision of this court in the case of State, ex rel. Shriver, County Engineer, v. Hayes, 148 Ohio St., 681, 76 N. E. (2d), 869, and the other cases cited therein. In the second paragraph of the syllabus it was held:

“'2. An election contest is the specific remedy provided by statute for the correction of all errors, frauds and mistakes which may occur in an election.”

In the opinion it was emphasized that this remedy is specific and exclusive.

The demurrer to the respondent’s answer must be sustained and the writ of mandamus allowed.

Writ allowed.

Weygandt, C. J., Zimmerman and Matthias, JJ., concur on both grounds.

Stewart and Bell, JJ., concur on the second ground of no election contest.

Taft, J., concurs in the judgment.

Herbert, J., dissents.

Taft, J.,

concurring. The question now raised, relative to the condensed text of Section 2e of Article VIII of the Constitution as it appeared on the November 1955 ballot, might have been raised by contesting, in the manner provided for in Section 3515.08 et seq., Bevised Code, the portion of the election wherein the electors apparently approved that proposed constitutional provision. If that question had been so raised, I have grave doubt whether this court could reasonable have sustained the validity of the approval of that constitutional provision by the electors. See Beck v. City of Cincinnati, 162 Ohio St., 473, 124 N. E. (2d), 120; Leach v. Brown, Secy. of State, ante, 1; and Thrailkill, a Taxpayer, v. Smith, Secy. of State, 106 Ohio St., 1, 138 N. E., 532.

However, it would be intolerable if there were no limitation on the right to question whether the electors had approved a proposed constitutional amendment; and especially if there were no limitation upon the time within which such approval might be questioned. In the absence of such limitations, could it ever be determined with any degree of certainty what the provisions of our fundamental law were?

Fortunately, this court has usually recognized that any question, as to the validity of what the electors apparently did in an election, must be raised in the manner and within the time specified by the General Assembly in providing for election contests.

Thus, in Peck v. Weddell, 17 Ohio St., 271, where it was sought to enjoin the clerk of courts from recording the abstract of the vote upon the question of the removal of the county seat from one town to another, it was held upon demurrer “that allegations of fraud and illegality in conducting the election, constitute no sufficient ground for such injunction,” and that “wrongs of such a nature can be inquired into and redressed, only by means of a contest of the election, pursuant to the provisions of the” statutes. To the same effect see Link v. Karb, Mayor, 89 Ohio St., 326, 104 N. E., 632. See also State, ex rel. Ingerson, v. Berry, Clerk, 14 Ohio St., 315; State, ex rel. Grisell, v. Marlow, 15 Ohio St., 114; State, ex rel. Wetmore, v. Stewart, Clerk, 26 Ohio St., 236; State, ex rel. Shriver, County Engineer, v. Hayes, 148 Ohio St., 681, 76 N. E. (2d), 869.

In Beck v. City of Cincinnati, supra, the successful attack on the validity of the election was made in statutory election contest proceedings.

In cases involving the issuance of bonds or the levy of taxes, it may sometimes appear that this court permitted an attack on the validity of an election in other than an election contest. However, in such cases the decision has not resulted from allowance of an election contest in proceedings other than those representing a statutory election contest, but it has resulted from the finding of a failure to do something that the statutes mandatorily required should be done as a condition precedent to the issuance of the bonds or the levy of the tax. See State, ex rel. Board of County Commrs., v. Guckenberger, Aud., 165 Ohio St., 12, 133 N. E. (2d), 323; State, ex rel. Board of Education, v. Wheeler, Clerk, 152 Ohio St., 101, 87 N. E. (2d), 247; State, ex rel. Curren, Dir., v. Rees, Dir., 125 Ohio St., 578, 183 N. E., 432; State, ex rel. Jackson, v. Board of County Commrs., 122 Ohio St., 456, 172 N. E., 154; Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St., 374, 49 N. E., 335.

In the instant case, the question is merely whether Section 2e of Article VIII is now a part of our Constitution. That depends upon whether it was approved by the electors at the November 1955 election (Section 1 of Article XVI of the Constitution), as their votes apparently indicated it was. Since that apparent approval was not even questioned in an election contest, it cannot be collaterally attacked in this proceeding.

Stewart and Bell, JJ., concur in the foregoing concurring opinion.

Herbert, J.,

dissenting. It may be a vain thing to belabor a decision in which six members of this court concur, but, before going into the issue before us, one point not raised by either party and therefore not covered in the per curiam opinion, but a point on which very little light has been shed heretofore, disturbs the writer.

Section 3505.06, Bevised Code, is captioned, “Ballots on Questions and Issues.” It provides in part that there “shall be printed a brief title descriptive of the question or issue below it, such as ‘Proposed Constitutional Amendment,’ ‘Proposed Bond Issue,’ ‘Proposed Annexation of Territory,’ ‘Proposed Increase in Tax Bate,’ or such other brief title as will be descriptive of the question or issue to which it pertains.”

It provides further:

“The questions and issues ballot need not contain the full text of the proposal to be voted upon. A condensed text that will properly describe the question, issue, or amendment shall be used as prepared and certified by the Secretary of State for state-wide questions or issues * * *.”

It then provides that where such condensed text is used the full text shall be posted in each polling place.

Compare the language of this statute with the provisions of Section 1 of Article XVI, Ohio Constitution, the pertinent part of which is:

“* * * if the same shall be agreed to by three-fiftlis of the members elected to each house, such proposed amendments shall be entered on the journals, with the yeas and nays, and shall be submitted to the electors, for their approval or rejection, on a separate ballot without party designation of any kind, at either a special or a general election as the General Assembly may prescribe. Such proposed amendments shall be published once a week for five consecutive weeks preceding such election, in at least one newspaper in each county of the state, where a newspaper is published. If the majority of the electors voting on the same shall adopt such amendments the same shall become a part of the Constitution.” (Emphasis added.)

This court recently held in the case of Leach v. Brown, Secy. of State, ante, 1 (in which the writer dissented), that the provision, “such proposed amendments shall be entered on the journals,” requires strict and literal compliance, and that failure to enter such proposed amendments in full on the respective journal of each house invalidates them.

It is unquestioned here that the General Assembly took the proper steps and that the full text of the proposed constitutional amendment was published as required, but one might pause before the question as to whether the General Assembly has the power to provide by statute for a condensed text on the ballot itself.

Coming then to the requirement of Section 3505.06, Revised Code, that the condensed text properly describe the amendment, the writer does not agree with the view of the majority that this requirement was met here.

The condensation starts out:

“To authorize the issuance of bonds for public buildings and to provide for a cigarette tax to pay for such security for the interest thereon.” (Emphasis added.)

The final paragraph of the condensation states, in part:

“For the purpose of providing funds to pay all interest, principal and charges for the issuance and retirement of such bonds and other obligations, there shall be levied an excise tax on sales of cigarettes * * *.” (Emphasis added.)

Finally, the question as it appeared on the ballot for a yes or no vote reads:

‘4 Shall the proposed amendment of Article VIII of the Constitution of the state of Ohio to provide for a long range building program for the purpose of building public buildings, structures, and other public improvements, excluding highways, and for issuance of securities of the state of Ohio in the amount of $150,000,000 to provide the funds therefor; and to provide for an excise tax on cigarettes to pay for such securities and interest thereon, be adopted?” (Emphasis added.)

In the opinion of the writer, those statements do not constitute a condensed text that properly describes the amendment, to paraphrase the language of Section 3505.06, Bevised Code. Of course, we do not have a misleading description in the same sense as that considered in the case of Beck v. City of Cincinnati, 162 Ohio St., 473, 124 N. E. (2d), 120, but attention is called to paragraph three of the syllabus in that case, which states:

4 4 Such language is argumentative, misleading and coercive, and its use in the caption of a ballot invalidates the election.” It is true that that case was brought as an election contest, which, it is suggested in the per curiam opinion, this action should have been, but note the word, “misleading.”

If the purpose of the condensed text was to acquaint the voter with the substance of the proposed amendment, can it be said now that he was advised he was voting on an issue to pledge the full faith and credit of the state of Ohio behind the bonds subsequently to be issued for the public building program?

Becognizing that it was certainly not the intention of the respondent here to mislead the voter, I cannot escape the conclusion that such was the end result. It may be argued that publication for five weeks of the full text of the proposed amendxnent in daily newspapers in each of the 88 counties and posting of the full text in the polling places were sufficient notice, but it should also be accepted as common knowledge that most voters seeking information on an issue question content themselves with reading the condensed text as it appears on the ballot. Failure to publish the full text as required in the Constitution or failure to post the full text in each polling place as required in Section 3505.06 would undoubtedly be considered fatal. It would seem to follow that the failure to properly describe the issue question in the condensed text should be equally so.

In the opinion in the Beck case (page 475), note the language quoted from the trial court:

“The courts have rather liberally interpreted the laws pertaining to the election of public officials where such election was not attended by fraud or misrepresentation. Trivial nonconformances with the statutes have been overlooked where the purpose of the ballot enabled the voters to clearly reflect their choice of candidates. They will not indulge such liberality of construction of ballots containing unauthorized statements or misrepresentations where bond issues or tax levies are the subject of the ballot. In the latter instance the form of the ballot and all procedural steps are conditions precedent to the validity of the election. The failure to attend the submission of the issue with such procedure is fatal. ’ ’

Following the Beck case, we have the unanimous decision of this court in the case of State, ex rel. Board of County Commrs., v. Guckenberger, Aud., 165 Ohio St., 12, 133 N. E (2d), 323. The Guckenberger case was not an election contest but was an action in mandamus. It did not involve a question of constitutional amendment but merely a proceeding for the issuance of local bonds for the construction, repair and improvement of county roads. In fact, the board of elections there certified the passage of the bond issue. It was only when the county auditor refused to certify the bond resolution passed by the county commissioners subsequent to the election that the action was instituted for a writ of mandamus to require such certification.

As to the argument that two years have elapsed since thi election and no question as to its validity has been raised until now, the answer is apparent. No effort has been made until now to offer to the public bonds issued under the authority of this amendment.

Inasmuch as the question of the power of the General Assembly to enact Section 3505.06, Revised Code, has not been raised in this case and therefore assuming its validity for the purpose of this dissent, it would seem apparent that the requirements of that section are fully as mandatory as were the statutes under consideration in the Guckenberger case, that strict compliance therewith is equally necessary, and that the condensed text in the instant case is misleading and not in strict compliance with its provisions.  