Opinion
No. 24427
Decided October 27, 1933.
Municipal corporations — Charter initiative and referendum provisions not necessary, but General Code available — Section 1f, Article II, Constitution — City may abolish charter by statutory referendum — Sections 4227-1 to 4227-13, General Code.
1. A charter city is not required to adopt initiative and referendum provision for its own ordinances and other legislative measures. It may adopt the Code provisions for such purpose, and when it does so it is governed by Sections 4227-1 to 4227-13, inclusive, General Code.
2. The power of the Legislature to so legislate and the power of the people of a municipality having a charter form of government to adopt and follow such legislation, is justified by Section 1 f of Article II of the Constitution of Ohio.
3. Under that provision of the Constitution and Sections 4227-1 to 4227-13, General Code, such charter city may abolish its charter.
ERROR to the Court of Appeals of Mahoning county.
The following facts in this case are not disputed:
The city of Youngstown is a municipal corporation, duly organized under constitutional provisions of the state of Ohio, having adopted a home rule charter in accordance with the mandatory procedure set forth in Section 8 of Article XVIII of the Constitution of the state of Ohio. Said charter was duly adopted May 15, 1923, and became effective January 1, 1924, and is at the present time still in full force and effect.
On August 29, 1933, one hundred and thirty-three initiative petitions purporting to contain 5,778 signatures were filed with the city clerk of Youngstown, Ohio. On September 8, 1933, additional petitions purporting to contain 226 signatures were filed with the city clerk. On September 12, 1933, the first initiative petitions were forwarded to the board of elections of Mahoning county, Ohio. On September 19, 1933, the supplemental initiative petitions were also forwarded to the board of elections of Mahoning county.
The defendant board of elections determined that 5,154 signatures appearing on said initiative petitions were genuine.
The initiative petitions referred to provide for the submission to the electors of the following proposal:
"Shall the charter of the city of Youngstown, Ohio, adopted on May 15, 1923, and its amendments be abolished and the city of Youngstown, Ohio, return, effective December 31, 1933, to the same form of government as it had prior to and up to January 1, 1924?"
It is further provided in said initiative petitions that the proposal be submitted to the electors of the city of Youngstown for their approval or rejection, according to the procedure and in the method prescribed by the General Code of the state of Ohio, and in accordance with Section 82 of the Charter of the city of Youngstown and with Sections 4227-1 to 4227-13 of the General Code.
The evidence disclosed during the trial of said cause in the lower court that the defendants threaten to, and will, expend the public moneys in submitting said proposal to the electors, as is contained in said initiative petitions.
The following errors are complained of by plaintiff in error:
1. Said Court of Appeals erred in affirming judgments, orders, and proceedings of the common pleas court in said cause and proceedings set forth and mentioned.
2. Said court erred in deciding and judging that the mandatory provisions of Sections 8 and 9 of Article XVIII of the Constitution of the state of Ohio were not applicable to a proposal to be submitted to the electors of the city of Youngstown, for adoption or rejection, of the question of the abolishment of the Home Rule Charter of the city of Youngstown.
3. Said court erred in deciding and adjudging that proposals, such as contained in initiative petitions filed in this cause, could be properly submitted to the electors in the method and in accordance with Sections 4227-1 to 4227-13, inclusive, General Code, and Section 82 of the Home Rule Charter of the city of Youngstown.
4. Said court erred in deciding and adjudging that the procedure set forth in Sections 8 and 9 of Article XVIII of the Ohio Constitution, requiring the enactment of an ordinance by the legislative authority of the municipality directing the submission of the proposal to the electors for adoption or rejection, was not applicable to proposals as contained in the initiative petitions filed in this cause.
5. Said court erred in deciding and adjudging that the procedure set forth in Section 9 of Article XVIII of the Constitution of the state of Ohio, requiring the mailing of copies of proposed changes or amendments of charters to the electors, was not applicable to proposals such as contained in the initiative petitions in this cause, proposing the abolishment of a home rule charter, as distinguished from an amendment to a charter.
6. Said court erred in deciding and adjudging that the procedure as set forth in Section 9 of Article XVIII of the Constitution, requiring the "setting forth" of any proposed amendment, was not applicable to proposals such as contained in the initiative petitions, which contain merely a brief reference to the form of government proposed to be substituted for the present Home Rule Charter of the city of Youngstown.
7. Said court erred in deciding and adjudging that the procedure as set forth in Section 8 of Article XVIII of the Constitution of the state of Ohio, requiring the submission of amendments to the electors, for adoption or rejection within a time stipulated therein, was not applicable to proposals such as contained in the initiative petitions filed in this cause, proposing an abolishment of the Home Rule Charter of the city of Youngstown.
8. Said court erred in deciding and adjudging that the submission to the electors of the proposal as contained in said initiative petitions, reading as follows, "Shall the charter of the city of Youngstown, Ohio, adopted on May 15, 1923, and its amendments be abolished and the city of Youngstown, Ohio, return, effective December 31, 1933, to the same form of government as it had prior to and up to January 1, 1924," would not tend to mislead or deceive the voters of the city of Youngstown; when, as a matter of fact and law, the transition as proposed could not lawfully become effective on said date of December 31, 1933, as proposed.
9. Said court erred in deciding and adjudging that said initiative petitions were not invalidated by failure to make provision for either the continuation in office of the present officers or providing for the time and manner of electing municipal officers under the proposed statutory form of government.
10. Said court erred in deciding and adjudging that said initiative petitions were not invalidated by failure of the sponsors or circulators of the initiative petitions to file sworn itemized statements as required by Section 4227-9, General Code.
11. Said Court of Appeals erred in rendering judgment affirming the judgments, orders and proceedings of the court of common pleas in this cause, dismissing plaintiff's petition, and denying a permanent injunction as prayed for by plaintiff in error, when said judgments, orders and proceedings of the common pleas court in said cause were and are in violation of the rights of the plaintiff in error under and by virtue of the Constitution of the state of Ohio.
12. Said Court of Appeals erred in deciding and adjudging that the Bill of Rights of the Ohio Constitution, to wit, Section 2 of Article I, gives authority to the people of a municipality to abolish their home rule form of government without regard to the limitations or mandatory procedure, as set forth in Sections 8 and 9 of Article XVIII of the Constitution of the state of Ohio.
13. The judgment and decree of the court is contrary to law.
14. Other errors of law and practice apparent upon the face of the record.
We quite agree with defendants in error that these fourteen assignments of error can be boiled down to five, namely:
First, did the court err in deciding that Sections 8 and 9 of Article XVIII are not applicable to a proposal to be submitted to the electors of the city of Youngstown for abolishment of the Home Rule Charter of the city of Youngstown and the return to government under the General Code?
Second, did the court err in deciding that Section 82 of the Home Rule Charter of the city of Youngstown, together with Sections 4227-1 to 4227-13 of the General Code, provide a method whereby a charter once adopted can be abolished?
Third, did the court err in deciding that the proposal as contained in the initiative petitions filed with the board of elections of Mahoning county and referred to in this case did not tend to mislead or deceive the voters of the city of Youngstown?
Fourth, did the court err in deciding that said initiative petitions are not invalidated by the failure to specifically provide for the continuation in office of the present officers of the city of Youngstown or provide for the time and manner of electing municipal officers under the proposed statutory form of government?
Fifth, did the court err in deciding that said initiative petitions are not invalidated by failure of the sponsors or circulators to file sworn itemized statements as required by Section 4227-9, General Code?
The cause was submitted to the court of common pleas, which court found in favor of the defendants below, defendants in error here. Thereupon error was prosecuted to the Court of Appeals of Mahoning county, which court affirmed the judgment of the court of common pleas, and error is prosecuted here to reverse the judgment of the Court of Appeals.
Mr. U.F. Kistler, director of law, and Mr. Vern B. Thomas, for plaintiff in error.
Mr. J.H. Leighninger, prosecuting attorney, and Mr. H.C. Church, for defendants in error.
The primary question of law involved herein arises from the complaint of plaintiff in error that the method provided and followed for the purpose of abolishing the city charter of the city of Youngstown is not in conformity with Sections 8 and 9 of Article XVIII of the Constitution of Ohio.
It is also insisted that defendants in error have no lawful right to submit the proposal to abolish the city charter in accordance with the provisions of Section 82 of the Charter and Sections 4227-1 to 4227-13, General Code.
Section 82 of the Charter in effect preserves the provisions of the General Code of Ohio as an integral part of the charter, except that the number of electors necessary to initiate a petition is reduced from six per cent. to three per cent.
It further provides that such petitions shall be filed with the city clerk, and that council shall provide, amongst others, forms for the initiative, to be kept by the clerk for the use of the citizens of the city, who are permitted to secure them under reasonable rules and regulations, to be prescribed by council by ordinance.
No provision is made in the city charter for its abolition.
Sections 4227-1 to 4227-13, General Code, Section 82 of the city Charter, and Section 1f of Article II of the Constitution of Ohio, are relied upon as granting plenary powers to the electors of the city of Youngstown to abolish its charter.
The people of Youngstown would be in a sorry plight if the people of the state of Ohio, by constitutional and legislative juggling, have placed them in a position that they cannot abolish their charter, regardless of how odious the charter form of government has become. If such were true, the people of Youngstown would be required to cajole the Legislature into calling a constitutional convention, or wait until 1952, and even at that time they would be at the mercy of the people of the state.
It is the policy of our government, federal and state, to at all times enlarge the powers of the people in matters of local self-government, rather than restrict them.
Section 2 of Article I of the Constitution of the state of Ohio makes this policy manifest in the following words:
"All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary * * *."
It may be argued that this constitutional provision applies to the people of the state as a whole, and not to the people of a municipal corporation. It is quite true that municipal corporations are creatures of the state, having only such powers as are expressly conferred by the state, together with such incidental powers as are necessary to carry the express powers into execution. The state has seen fit, through constitutional provision and legislative enactment, to give to the people of municipal corporations who see fit to take advantage of such provisions the greatest possible quantum of power of self-government.
The delegation of the power to adopt a particular form of self-government would prove a shackle to a free people, if the power to abolish it when it became subversive of the purposes of its adoption was withheld.
When such a question is presented to any court in this country, it is the duty of such court as well to uphold the power of the people to abolish a form of government that has become distasteful to them as to uphold the power to adopt it, if it can be done under the Constitution and the law.
Sections 3, 7, 8 and 9 of Article XVIII of the Constitution of Ohio are cited for what they do not contain in the way of making provision for abolition of the city charter in question; and it must be admitted that these sections bear out the contention of counsel citing them.
Defendants in error in the courts below went to Section 82 of the city Charter, Sections, 4227-1 to 4227-13, General Code, and Section 1 f of Article II of the Constitution of Ohio, for their salvation — and found it.
The question before this court is whether or not these provisions constitute a sufficient warrant in law to uphold the judgments of the courts below.
The charter rededicated itself to the provisions of the General Code of Ohio with the exceptions hereinbefore referred to.
Section 1 f of Article II of the Constitution reads as follows: "The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law."
Here we find a delegation of power to the Legislature to provide how the initiative and referendum powers that were reserved to the people of each municipality may be applied on such questions as they were then or might thereafter be authorized to control by legislative action.
It is insisted that this is not an automatic or self-executing section of the Constitution — and that is correct.
Legislation was necessary, and it was forthcoming in Sections 4227-1 to 4227-13, General Code.
In summing up these sections, we find they were enacted for the very purpose of supplying the needs of a charter city that had through inadvertence or otherwise failed to provide in its charter for its own legislation. This is manifest from Section 4227-12, which provides that Sections 4227-1 to 4227-13, General Code, shall not apply to any municipality that has or may hereafter adopt its own charter which contains an initiative and referendum provision for its own ordinances and other legislative measures.
Under these sections, the city of Youngstown can pass any ordinance, however comprehensive, that it could pass were it not a charter city.
Were it not a charter city, it could by constitutional provision adopt a charter. Being a charter city without an initiative and referendum provision for its own ordinances and other legislative measures, by going to the General Code it can provide the means and method of abolishing such charter.
This contention is strengthened by the fact that the Charter itself, Section 82, adopts these provisions of the General Code.
It is the holding of this court that the people of the city of Youngstown thus had ample power to submit the proposal in question, even though it entails the complete abolition of the city charter; that such action is not in derogation of any provision of the Constitution of the state of Ohio. Neither is the proposal invalidated by reason of its failure to provide for the city government after December 31, 1933.
This holding disposes of all except the eighth, ninth and tenth assignments of error made by the plaintiff in error. We fail to find wherein any deception was practiced upon the signers of the petitions. The learned Court of Appeals passed upon the legal sufficiency of the petitions, and we shall not disturb that finding.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ALLEN, JONES, MATTHIAS, BEVIS and ZIMMERMAN, JJ., Concur.