O'NEILL, C.J., dissenting.

There are only two issues presented to the court by this case.

The first issue is whether either the agreed statement of facts or the record of testimony in this case:

(A) Raise the issue of whether the legislative authority of the municipal corporation of Wintersville gave the required 30 days' notice of the time and place of a public hearing on the proposed zoning ordinance in accordance with the provisions of R.C. 713.12 before the ordinance was considered and passed; or

(B) Support a ruling that the legislative authority of the municipal corporation of Wintersville failed to give the required 30 days' notice of time and place of a public hearing on the proposed zoning ordinance, in accordance with the provisions of R.C. 713.12 before the ordinance was considered and passed.

The answer to both questions (A) and (B) is no.

The record shows that the 30 days required by R.C. 713.12 elapsed between the time the ordinance was introduced and the time of the third reading when it was considered and passed unanimously.

At the outset, with regard to the publication of the required notice of the time and place of a public hearing, it must be noted that the parties to this case did not raise that issue in the Common Pleas Court, the Court of Appeals or this court. Not only did they not present the issue to any of the courts by brief or argue it orally in this court, but that issue was not decided or referred to in the opinions of the Common Pleas Court or the Court of Appeals.

After oral argument, this court asked counsel for each of the parties to brief the question, including reference to the case of Morris v. Roseman (1954), 162 Ohio St. 447, 123 N.E.2d 419.

Roseman, supra, deals with the requirement for the holding of a public hearing on a zoning ordinance preceded by a 30 day notice of the time and place of such hearing. It does not deal with the effective date of a zoning ordinance properly passed with the required number of votes as an emergency measure.

The answer is that not only are issues (A) and (B) above not raised by the agreed statement of facts or the record of testimony, but, more important, these issues are excluded from the case by the agreed statement of facts and the record of testimony, and in briefs of the appellees, opponents of the ordinance, filed both in the Common Pleas Court and in this court.

An examination of the agreed statement of facts demonstrates conclusively that the only references in that agreed statement are to the publication or posting of notices of the ordinance after it was passed. The issues are framed in that agreed statement of facts and it is unmistakably clear that there is no reference to any fact or to any issue with regard to the notice of the time and place of a public hearing under the provisions of R.C. 713.12.

The defendant-appellees, opponents to the ordinance, make it clear that the notice required by R.C. 713.12 is not an issue in this case by the statement in their brief filed in the Common Pleas Court which states the question in this case, which is as follows:

"An ordinance does not take effect until all requirements are followed and there is no question from the record, from the agreed statement of facts and from the evidence, that there was complete failure, after the ordinance had been passed by council, as to the posting of the ordinance with a map attached and certification." (Emphasis added.)

Likewise, in the defendant-appellees' brief filed in this court, it is made clear that the only issue concerning publication of notice which is in this case is the notice required by R.C. 731.25, after the ordinance is passed. This language in the brief characterizing the issue in this case is stated as follows:

"9. An ordinance does not take effect until all requirements are followed and there is no question from the record, from the agreed statement of facts and from the evidence, that there was complete failure, after the ordinance had been passed by council, as to the posting of the ordinance with a map attached and certification." (Emphasis added.)

A reading of the testimony in the record demonstrates that the sole question at issue before the Court of Common Pleas was whether R.C. 731.21, 731.23 and 731.25, which require the posting of notices after an ordinance is passed, and before it can become effective, were complied with.

Mr. Wilson, who was clerk of the village council in 1957 at the time the ordinance was passed, was examined with regard to that question.

Mr. Wilson's examination began with a presentation of a copy of the ordinance No. 186, which he identified. He then testified that the ordinance was passed while he was clerk of the village of Wintersville, and that the record showed that the ordinance was passed in December 1957. He was then asked:

"Q. And what would be your duty in connection with that ordinance after it was passed?" (Emphasis added.)

He was then asked:

"Q. What — Did you have any duty in connection with that ordinance?

"A. Yes, I was to post these ordinances.

"* * *

" A. I was to post these ordinances at five different places in the village of Wintersville after signed by the mayor and the clerk.

"Q. And do you recall of your own knowledge whether you did so with this ordinance?

"A. I posted all of them.

"* * *

[He then, in answer to questions, stated the places where he posted the ordinances.]

"Q. Do you recall of your own knowledge whether you posted Ordinance 186 in the five places?

"A. As I say, I posted all ordinances. I couldn't tell you by number but I posted all ordinances passed by the Village Council of Wintersville.

"Q. And for what length of time?

"A. Oh, that I'd say 30 days.

"* * *

"Q. Do you recall if anything was attached to that ordinance?

"A. No, the only thing I would say is attached to the ordinance is this little bit of a map. I don't know what it is." (Emphasis added.)

There was then cross-examination concerning the map. Then this question was asked:

"Q. Now, this map that you are talking about was not posted with the ordinance in the five places?

"A. That map wasn't, no.

"Q. Do you recall the date that you posted this? Was that after the first reading?

"A. I didn't post them until after they were passed and signed by the mayor and signed by the clerk; then they were posted." (Emphasis added.)

Even a cursory reading of the testimony of Mr. Wilson makes it unmistakably clear that his testimony was concerned only with the issue of the posting of notices after the ordinance was passed, which posting is required by R.C. 731.25. There is no way that any of the above answers can be construed out of context to have any reference to the statutory requirement of R.C. 713.12 with regard to the posting of notice of time and place of a public hearing to be held upon a proposed ordinance.

The record establishes that there can be no doubt about this when Mr. Stern, representing the appellees, stated, at the conclusion of Mr. Wilson's testimony:

"I think in all honesty, Your Honor, I would like to make a motion in view of the testimony of the elected duly sworn clerk who testified under oath this particular zoning ordinance was posted but no map attached is in clear violation of law and I ask the court to direct a verdict in favor of the defendants and declare it invalid. That's the only question in this case." (Emphasis added.)

The majority opinion correctly characterizes the only testimony of record which is pertinent — that of Mr. Wilson, the clerk of the village council at the time the ordinance was passed in the following language:

"Obviously, the witness was testifying about posting the ordinance in compliance with the provisions of R.C. 731.25 which refers to adoption of ordinances and resolutions of a general nature."

The majority opinion accurately summarizes the record with regard to this issue in the following language:

"There is nothing in the record tending to establish that the village council of Wintersville gave 30 days' notice of the time and place of the hearing as required by R.C. 713.12."

The law, based on the state of this record, is settled.

The controlling rule of law was stated by this court in Smith v. Juillerat (1954), 161 Ohio St. 424, 119 N.E.2d 611, paragraph one of the syllabus, which reads as follows:

"In the absence of evidence to the contrary, it is presumed that the procedure necessary to the legal adoption of legislation by a public legislative body has been followed."

This is a zoning case which arose in Mahoning County, in which the issues are strikingly similar to the issues in the instant case.

The only remaining issue in this case, which is dispositive, may be stated thus: Does a zoning ordinance, which contains an emergency clause and which is passed by the unanimous vote of the elected members of the council and signed by the mayor, take effect immediately?

The answer to this question is "yes," and the authority for it is found in R.C. 731.30, which provides, in pertinent part:

"* * * emergency ordinances or measures necessary for the immediate preservation of the public peace, health or safety in such municipal corporation, shall go into immediate effect. Such emergency ordinances or measures must, upon a yea and nay vote, receive a two-thirds vote of all the members elected to the legislative authority, and the reasons for such necessity shall be set forth in one section of the ordinance or other measure."

Appellees contend that unless the notices required by R.C. 731.21 and R.C. 731.23 are posted in accordance with the provisions of R.C. 731.25, the ordinance is invalid and of no effect.

Appellees rely upon the case of Tirpack v. Maro (1967), 9 Ohio App.2d 76, 222 N.E.2d 830. That case is not controlling. It involved an ordinance which was not enacted as an emergency measure.

R.C. 731.23 provides:

"* * * all ordinances, including emergency ordinances, shall be published in accordance with Section 731.21 of the Revised Code."

R.C. 731.21 provides, in pertinent part:

"All municipal ordinances, * * * required by law or ordinance to be published, shall be published as follows:

"* * *

"(C) * * * or by posting as provided in Section 731.25 of the Revised Code, at the option of the legislative authority of such municipal corporation."

And R.C. 731.25 provides, in pertinent part:

"* * * ordinances * * * required by law or ordinance to be published, shall be published in either of the following methods, to be determined by the legislative authority:

"(A) By posting copies thereof in not less than five of the most public places in the municipal corporation, to be determined by the legislative authority, for a period of not less than fifteen days prior to the taking effect thereof * * *."

The law, as stated in the majority opinion, is that the publication required by R.C. 731.21 and R.C. 731.23, in the form required by R.C. 731.25(A), requires the posting of notices with regard to the passage of an emergency ordinance. However, that requirement has no effect upon the effective date of the ordinance which is controlled by R.C. 731.30 when, as in the instant case, the ordinance is a properly adopted emergency ordinance.

In Vansuch v. State, ex rel. Fetch (1925), 112 Ohio St. 688, 148 N.E. 232, the per curiam opinion states, at page 689:

"It was held by this court in Shryock, a Taxpayer, v. City of Zanesville (1915), 92 Ohio St. 375, 110 N.E. 937, that the council of a municipality is authorized to pass emergency ordinances necessary for the immediate preservation of the public peace, health, and safety. Such ordinances do not require publication, and are not subject to the referendum, but go into immediate effect."

In Holcomb v. State, ex rel. Coxey (1933), 126 Ohio St. 496, 186 N.E. 99, paragraph three of the syllabus reads as follows:

"The duty and responsibility of determining the emergency and the necessity that a measure go into immediate effect are confided to the legislative branch of government. If the prescribed procedure for enactment thereof is followed, such measure goes into effect immediately upon its passage." Shryock v. Zanesville (1915), 92 Ohio St. 375, 110 N.E. 937.

The proper rule of law controlling in this case is:

Emergency ordinances or measures necessary for the immediate preservation of the public peace, health or safety, go into immediate effect, as provided in R.C. 731.30, notwithstanding the provisions of R.C. 731.23 requiring their publication.

R.C. 731.23 and 731.25 require publication of an emergency ordinance after it is passed, but are not controlling as to the effective date of such ordinance.

The judgment of the Court of Appeals should be reversed.

HERBERT and STERN, JJ., concur in the foregoing dissenting opinion.

STERN, J., dissenting.

In addition to concurring in the Chief Justice's dissent, in my view, the narrow issue in this case is whether a noncharter municipality of Ohio may effectively enact an emergency zoning ordinance without complying with R.C. 713.12. In resolving that issue, a discussion of the applicable sections of Article XVIII of the Ohio Constitution is in order.

Article XVIII has been the subject of controversy since its adoption on September 3, 1912, and its effect upon both charter and noncharter municipalities has been the subject of numerous law suits. In Perrysburg v. Ridgway (1923), 108 Ohio St. 245, this court endeavored to put at rest the issue of the authority granted by Section 3 of Article XVIII of the Ohio Constitution, holding in paragraph five of the syllabus that:

"The grant of power in Section 3, Article XVIII, is equally to municipalities that do adopt a charter as well as those that do not adopt a charter, the charter being only the mode provided by the Constitution for a new delegation or distribution of the powers already granted in the Constitution. ( State, ex rel. City of Toledo, v. Lynch, Auditor, 88 Ohio St. 71, 102 N.E. 670, 48 L.R.A. [N.S.], 720, Ann. Cas., 1914D, 949, disapproved upon the proposition that a charter is a prerequisite to the exercise of home-rule powers under Section 3, Article XVIII.)"

In addition to disapproving that prior holding, this court, in paragraphs one, three and four of the syllabus in Perrysburg, supra, provided, as follows:

"1. Since the Constitution of 1912 became operative, all municipalities derive all their 'powers of local self-government' from the Constitution direct, by virtue of Section 3, Article XVIII, thereof.

"* * *

"3. The above constitutional grant of power to municipalities is 'self-executing,' in the sense that no legislative action is necessary in order to make it available to the municipality.

"4. The exercise of 'all powers of local self-government,' as provided in Article XVIII, Section 3, is not in any wise dependent upon or conditioned by Section 7, Article XVIII, which provides that 'a municipality may adopt a charter,' etc."

The holding in Perrysburg remains intact today insofar as it implies that under Section 3 of Article XVIII, both charter and noncharter municipalities "shall have authority to exercise all powers of local self-government," and further that they may "adopt and enforce within their limits such local police, sanitary, and other similar regulations, as are not in conflict with general laws."

In 1954, this court examined the procedural restrictions with which noncharter municipalities must comply, holding in paragraph two of the syllabus in Morris v. Roseman (1954), 162 Ohio St. 447, that:

"An Ohio municipality which has not adopted a charter for its government, as authorized by Section 7, Article XVIII of the Constitution of Ohio, must, in the passage of its legislation, follow the procedure prescribed by the statutes enacted pursuant to the mandate of Section 2, Article XVIII of the Constitution."

With that portion of the syllabus of Morris, supra, I have no quarrel, for, as Justice Zimmerman correctly reasoned therein, there must be procedural guidelines for all municipalities in effecting their local self-government, and Section 2 of Article XVIII placed a mandatory duty upon the General Assembly to enact "general laws * * * to provide for the incorporation and government of cities and villages * * *." Justice Zimmerman then stated that: "If a municipality adopts a charter [under authority of Section 7 of Article XVIII] it thereby and thereunder has the power to enact and enforce ordinances relating to local affairs, but, if it does not, its organization and operation are regulated by the statutory provisions covering the subject." (Emphasis added.)

A noncharter municipality then must comply with the procedural statutory requirements set forth by the General Assembly for the passage of ordinances, but this procedure may differ with regard to the nature of the ordinance being passed.

We are concerned herein with an ordinance passed as emergency legislation, and it should be of no consequence that its subject matter concerns zoning. Municipalities have authority to enact ordinances relating to zoning. ( Pritz v. Messer, 112 Ohio St. 628), and the constitutionality of emergency legislation enacted by municipalities has been upheld. ( Shryock v. Zanesville, 92 Ohio St. 375.)

Further, in Vansuch v. State, ex rel. Fetch (1925), 112 Ohio St. 688, 689, this court, referring to Shryock, stated that:

"* * * the council of the municipality is authorized to pass emergency ordinances necessary for the immediate preservation of the public peace, health and safety. Such ordinances do not require publication, and are not subject to the referendum, but go into immediate effect."

Vansuch involved an emergency ordinance calling for the reorganization of the police department. The court found that the ordinance had been passed as an emergency ordinance in compliance with proper procedure and that there was no evidence of any challenge by any proceeding until the bringing of the suit 60 days subsequent to the passage of the ordinance. The court then concluded, at page 689, that "no action of any kind appears to have been taken within the 30 days prescribed therefor by Section 4227-2, General Code. [R.C. 731.29.] In consequence whereof such ordinance must now be considered effective immediately upon its passage, and the question of its emergency character, determined by the council, will not be inquired into." The emphasis in that case was properly focused upon the nature of the ordinance, i. e., emergency legislation, rather than its subject matter.

We are now involved, as was this court in Morris v. Roseman, supra, with an ordinance of the nature of emergency legislation, having zoning as its subject matter. I reiterate that I do not take exception to the holding in Morris, to the effect that noncharter municipalities must comply with the procedural guidelines set forth by the General Assembly under the authority of Section 2 of Article XVIII of the Constitution, and therefore, were this merely a zoning ordinance, I would agree that the requirements of R.C. Chapter 713 must be met. I do not, however, agree with that holding to the extent that it concludes that zoning ordinances and emergency zoning ordinances are one and the same and that each must be enacted in accordance with the procedure set forth in R.C. Chapter 713.

The General Assembly has adopted specific statutes governing procedures for the enactment, by municipalities, of "emergency ordinances or measures necessary for the immediate preservation of the public peace, health, or safety in such municipal corporation[s]" and that such ordinances "shall go into immediate effect." R.C. 731.30. This section provides further that:

"Such emergency ordinance or measures must, upon a yea and nay vote, receive a two-thirds vote of all the members elected to the legislative authority, and the reasons for such necessity shall be set forth in one section of the ordinance or other measure."

The classification of an ordinance as emergency legislation, then, is left to the discretion of the legislative authority of the municipality, and I see no justification for limiting this discretion on the basis of the subject matter involved in the emergency legislation. Accordingly, I disagree with this court's unsupported analysis of the language of R.C. 713.13 and 713.14, found in Morris, supra, at page 451, and its holding therein in paragraph one of that syllabus, which the majority of this court has upheld today.

It is my opinion that Wintersville Ordinance No. 186 was properly enacted as emergency legislation, and that paragraph one of the syllabus in Morris v. Roseman, supra ( 162 Ohio St. 447), should be overruled.