Opinion
No. CV92 05 0266.
Decided August 11, 1992.
William B. Balyeat, for relator.
Gooding, Huffman, Kelley Becker and John C. Huffman, for respondent.
This matter is before the court upon relator's complaint for a writ of mandamus and respondent's response thereto. After consideration of the oral and written arguments by both parties, the court finds relator's mandamus request not well taken and therefore the writ shall not issue.
Council for the village of Cairo, a municipal corporation, is considering the purchase and construction of a public utility (a sewerage system), a power it possesses pursuant to Section 4, Article XVIII, Ohio Constitution. See State ex rel. Portmann v. Massillon City Councel (1938), 134 Ohio St. 113, 119, 11 O.O. 545, 548, 16 N.E.2d 214, 216. As a check on this power, the citizens of a municipal corporation may petition for a referendum regarding the proposed public utility under Section 5, Article XVIII. See Portmann, id., 134 Ohio St. at 119, 11 O.O. at 548, 16 N.E.2d at 216. While the power of referendum is abundantly clear, a precise definition of an initial ordinance, the vehicle through which a public utility is authorized and subjected to a referendum, is not.
The issue at hand is resolving whether Ordinance Nos. 141 and 145 are initial ordinances. The determination is critical as the power of the referendum is limited to the initial ordinance. State ex rel. Didelius v. Sandusky City Comm. (1936), 131 Ohio St. 356, 6 O.O. 64, 2 N.E.2d 862. All ordinances subsequent or incidental to an initial ordinance are exempt from a referendum, as to terminate or hinder a project once underway would result in waste and inefficiency. Didelius, id., 131 Ohio St. at 363, 6 O.O. at 67, 2 N.E.2d at 865. Therefore, if the constitutional right to a referendum is to have any substance, the citizens cannot afford to "guess wrong." This is exactly what occurred in Didelius; the people petitioned an ordinance which the court determined to be subsequent or incidental to the initial ordinance and consequently no referendum was ordered. Id.
In attempting to clarify the requisite elements of an initial ordinance, respondent cites Middletown v. Middletown City Comm. (1941), 138 Ohio St. 596, 21 O.O. 481, 37 N.E.2d 609. There, in paragraph two of the syllabus, the Ohio Supreme Court declared:
"The municipal ordinance subject to referendum within the contemplation of Section 5, Article XVIII of the Constitution of Ohio, is one which not only declares the necessity for the acquisition or construction of a public utility, but includes or is accompanied by some comprehensible statement of the general plan for financing the project."
Notwithstanding that court's attempt to simplify the issue, an initial ordinance continues to pose problems of interpretation, accompanied by a latent fear that the constitutional right to a referendum may be lost due to overly broad drafting, or intentional deception.
With the foregoing discussion in mind, this court felt it prudent to ascertain for the record whether village of Cairo Ordinance Nos. 141 and 145 were initial or preliminary. Unless the ordinance clearly follows the Middletown language, supra, or is stipulated to by the parties, this court firmly believes an oral hearing should be held to determine the exact nature of the ordinance. The legislative underpinnings of every aspect of this dispute compel this court to refrain from usurping that process by drawing its own conclusions isolated in chambers.
Despite the dearth of recent case law on this issue, the court's concerns after reviewing the parties' briefs were alleviated following oral argument. The record reflects the assent of both parties that relators timely filed petitions for referendum regarding village of Cairo's Ordinance Nos. 141 and 145. Both parties acceded the petitions were in compliance with Ohio law. Ordinance Nos. 141 and 145 address the village council's intent to investigate the feasibility of purchasing and constructing a public utility, to wit: a sewerage system. Respondent emphasized council's position in Ordinance Nos. 141 and 145 as nothing more than whether the village can afford the project, whether federal funds can be acquired, and whether bonds can cover the cost of completion. Respondent emphatically asserted that at the present time, no plans for construction or financing of the sewerage system are on file with the clerk's office and no definite intentions to proceed with construction of the public utility exist with the village council.
The court is satisfied that the record clearly reflects that Ordinance Nos. 141 and 145 are merely preliminary. In no way are they initial ordinances for the construction of a public utility within the contemplation of Section 5, Article XVIII, Ohio Constitution. Respondent conceded on the record that should the village go forward with the project, an ordinance specifying a comprehensive plan for its construction and financing would be required and subject to referendum.
Relator's petitions for referendum are therefore premature, although relator should be commended for his civic action and interest in local affairs. The court agrees with respondent that the interests of all parties are better served by acquiring as much information as possible for a more informed decision regarding the project.
A final issue involves the emergency nature of the ordinances. Nothing in the way of evidence has been brought before the court. Because this dispute can be resolved on other grounds, a discussion of the emergency issue is obviated.
It is therefore ordered, adjudged and decreed that relator's writ shall not issue and is hereby denied.
Writ denied.