Opinion
No. 23403
Decided March 30, 1932.
Municipal corporations — Columbus charter — Initiative and referendum inapplicable to resolution — State laws may be invoked in street improvement proceedings, when — Resolution of necessity is first measure to improve street — Section 4227-3, General Code — Initiative and referendum inapplicable to subsequent measures, when — Initiated resolution of necessity adopted by voters — Referendum not entertained on ordinance to proceed with street improvement.
1. The city charter of the city of Columbus does not provide for the submission of a resolution by initiative petition, nor for its submission to a referendum.
2. In the absence of such provisions in the city charter, the city had a right to proceed under the general laws of the state to improve its streets.
3. A resolution of necessity is the first measure taken by the city in the process of legislation, under the general laws of the state, to improve a street as defined by Section 4227-3, General Code. ( Heffner v. Krinn, 98 Ohio St. 1, 120 N.E. 221, approved and followed.)
4. When, in connection with the proposed improvement of a city street under the general laws of the state, the resolution of necessity is proposed by an initiative petition containing the requisite number of signers, is submitted to the voters of the city for approval and is approved by such voters, the law relative to initiative and referendum shall have no application to subsequent ordinances or other measures relating thereto.
5. A referendum petition addressed to the ordinance to proceed with such improvement, passed immediately after the approval of the resolution of necessity, can not be entertained.
IN MANDAMUS.
The relator herein states by way of petition that on May 5, 1914, the city of Columbus, Ohio, adopted a charter. This charter, with the amendments, remains in full force and effect.
On September 18, 1931, an initiative was filed as required by law, proposing to the electors of the city of Columbus, for their approval or rejection at the next regular election to be held on November 3, 1931, a resolution declaring it necessary to improve East Broad street from Fourth street to Parsons avenue. At the November election, 1931, this resolution was submitted to the electors of the city and was adopted by a majority of the voters voting at such election. The result of the election was certified to the city engineer, who thereupon made an estimated assessment report and filed same with the city clerk. Thereafter notice was given to abutting property owners, as provided by the charter of the city and the laws of Ohio, and the assessments were adjusted. On January 11, 1932, the city council adopted an ordinance determining to proceed with the improvement, in which ordinance it was provided that claims for damages should be judicially inquired into after the completion of the improvement. This ordinance provided for the issuance of notes of the city in anticipation of the collection of the special assessments by George F. Ketterer, Wyatt L. Milliken and Herbert Dailey, as the committee on finance of the council of the city; that they should sell such notes and deposit the proceeds in the city treasury to the credit of the fund named in the ordinance. This committee prepared and executed the notes and offered them at par and accrued interest to the trustees of the sinking fund and the treasury investment board of the city, and each of them rejected the notes. The committee on finance refuses to offer the notes for private sale or to advertise them for public sale.
The relator prays for a writ of mandamus against George F. Ketterer, Wyatt L. Milliken and Herbert Dailey, as the committee on finance of the city council, commanding them to offer said notes for sale at private sale, or to advertise them for sale and to sell them to the highest bidder according to law and deposit the proceeds in the city treasury to the credit of the proper fund; and, further, that a writ of mandamus issue against William F. Halenkamp, director of public service of the city, requiring him to advertise for bids for the construction of the improvement and to make and execute a contract for such construction with the lowest and best bidder, according to law.
Each and all the defendants answering plaintiff's petition admit all the allegations of such petition, but by way of avoidance state, in short, that all the legislation and proceedings, including the initiative petition, were had under and by virtue of the general laws of the state of Ohio and for that reason are void; that as to all such procedure, the city charter is exclusive.
Defendants further allege that on February 8, 1932, a referendum petition was filed in the office of the city clerk under the provisions of the city charter, purporting to be signed by more than twelve per cent. of the registered electors of the city, requesting that the ordinance (Ordinance No. 455-31) determining to proceed with the proposed improvement be repealed or submitted to a vote of the electors of the city.
To this answer, plaintiffs have interposed a general demurrer.
Mr. James I. Boulger and Mr. Joseph S. Platt, for plaintiff.
Mr. John L. Davies, city attorney, and Mr. Don W. Wiper, for defendants.
With the propriety or impropriety of this proposed improvement, this court has nothing to do. This question was determined by the voters of the city of Columbus at the November, 1931, election. The sole question presented to this court is whether or not at the present time it is sufficiently averred by the pleadings herein that the committee on finance of the city council of the city of Columbus owes a legal duty to the city to proceed to sell the notes heretofore issued by it at private sale, or, after legal advertisement, to the highest bidder, and to cover the proceeds into the proper fund, and whether or not the director of public service owes a legal duty to the city to advertise for bids for the construction of the proposed improvement and to make and execute a contract therefor with the lowest and best bidder.
This being a case in which the court has original jurisdiction, the facts must be considered in order to determine whether or not the procedure as outlined by the city charter or the general law of the state should have been followed, and whether or not the proposed referendum to the resolution to proceed with the improvement should have been submitted to a vote of the people.
Defendants admit the allegations of plaintiff's petition, and plaintiff for the purposes of this demurrer admits all of defendants' well-pleaded facts.
The questions presented will be considered in their inverse order.
When a city council contemplates an improvement, the introductory legislation is the passage of a resolution of necessity. Defendants insist that the city charter makes ample provision for the initiative and referendum on resolutions. A careful examination of the city charter does not sustain this contention. Sections 36 to 47, inclusive, contain all the provisions relative to the initiative, and Sections 49 to 52, inclusive, are the referendum sections.
All of these sections are specific. They deal with ordinances and not resolutions. Defendants insist that the word "ordinance" as used in the charter is generic and includes "resolution." If such were the legislative intent we would have to so hold; but giving to this charter the most liberal construction, considering context, subject-matter, and the reason for the law, we fail to find such legislative intent. Rather we find the converse. Resolutions seem to have been studiously avoided. There is a vast difference between an ordinary and a resolution, and we must assume that the lawmaking body of the city must have had this difference in mind when the city charter was adopted.
Counsel on both sides insist that the doctrine of "Expressio unius est exclusio alterius" applies in this case, and this court is in complete accord with that contention. Ordinance is expressed; resolution is not; consequently, because of the marked legal distinction between them, we must conclude that by expressing ordinances, resolutions were excluded, and that neither the initiative nor referendum as provided for in the charter applies.
The charter being silent, those interested certainly had the right to proceed under the general law of the state that saved to the people their right of initiative and referendum. And they were not driven to Sections 4 and 5 of Article XVIII of the Constitution, as those provisions relate solely to the acquirement of a public utility by the municipality. State, ex rel. Diehl, v. Abele, 119 Ohio St. 210, 162 N.E. 807.
The city did proceed under Sections 4227-1 to 4227-13, General Code.
The resolution of necessity was presented by initiative petition, was voted upon, approved and adopted. This was surely "the first measure" as provided for in Section 4227-3, General Code. Subsequently the ordinance to proceed with the improvement was passed. Within thirty days thereafter a referendum petition was filed, asking that such ordinance be repealed or submitted to a popular vote. Can this referendum petition be given legal countenance in the face of the original initiative petition? We think not.
If the city in such proceeding was seeking to acquire a public utility, we would say, "Yes, it can."
The people have expressed themselves once, and such expression was in consonance with the general law as interpreted by Judge Donahue in the second and third paragraphs of the syllabus in the case of Heffner, a Taxpayer, v. Krinn, 98 Ohio St. 1, 120 N.E. 221. To permit another expression by the people would be farcical in the extreme.
We may say, in passing, that if the city charter contained the same provision with reference to resolutions as is therein applied to ordinances, the city could not proceed either way it chose in the matter of street improvements, that is to say, under the charter or the general law. It would have to follow the charter. And this is true regardless of Section 232 of the city charter, which reads as follows: "All general laws of the state applicable to municipal corporations, now or hereafter enacted, and which are not in conflict with the provisions of this charter, or with ordinances or resolutions hereafter enacted by the city council, shall be applicable to this city; provided, however, that nothing contained in this charter shall be construed as limiting the power of the city council to enact any ordinance or resolution not in conflict with the constitution of the state or with the express provisions of this charter."
And this is true for the reason that the city charter is in unquestionable conflict with the general law on the question of the referendum, as regards street improvements. And that is not all. It would run counter to Section 4227-12, General Code of Ohio, which reads as follows: "The provisions of Sections 4227-1 to 4227-13 inclusive 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."
For the reason that we can not read into the city charter of the city of Columbus the word "resolution" when it is not there, and in the place it should occupy, the demurrer to the answer will be sustained.
Demurrer sustained and writ allowed.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.