Opinion
No. 37581
Decided October 24, 1962.
Municipal corporations — Ordinances — Council may prevent vote on referendum — Passing emergency ordinances — Repealing ordinance under referendum — Re-enacting ordinance substantially same as repealed.
The council of a noncharter village can prevent the village electorate from voting to approve or reject an ordinance, which was not passed as an emergency ordinance and on which a valid referendum petition has been duly filed, by passing at one session after the filing of the referendum petition two consecutive emergency ordinances, one to repeal the ordinance under referendum and the other to re-enact substantially the same ordinance as repealed; and it can do that although the sole purpose of council in passing the two new ordinances is to prevent a vote by the electorate on the legislation contained in the ordinance with respect to which the referendum petition was filed. (Section 731.34, Revised Code, applied. State, ex rel. City of Fostoria, v. King, Aud., 154 Ohio St. 213, followed.)
APPEAL from the Court of Appeals for Ottawa County.
Relators instituted this mandamus action against the Board of Elections of Ottawa County in the Court of Appeals for Ottawa County by filing a petition alleging that on December 21, 1961, the council of Genoa, a noncharter village, passed ordinance No. 90 to buy certain land for the construction and operation of a sewage disposal system for the village; that that ordinance was not passed as an emergency ordinance; that more than 10 per cent of the electorate, who were opposed to the ordinance because of the use to be made of the land and the waste of village assets, duly filed a valid referendum petition for the purpose of having the ordinance placed on the ballot for acceptance or rejection by the electorate; that on March 1, 1962, the village council, for the sole purpose of preventing a vote by the village electorate on the referendum petition, passed at the same session and as emergency ordinances ordinance No. 14-62, specifically repealing ordinance No. 90, and ordinance No. 15-62, which is substantially the same ordinance as ordinance No. 90; that the village clerk certified the text of original ordinance No. 90 to the board of elections but that the board refused to submit the ordinance to the voters; and that the village solicitor had refused to bring a mandamus action against the board to compel it to do so. The relief prayed for is a writ of mandamus compelling the board to submit ordinance No. 90 to the voters.
The demurrer of the board was overruled and, the board not desiring to plead further, judgment was rendered against it granting the relief prayed for.
The cause is now before this court on appeal from that judgment of the Court of Appeals.
Messrs. Boxwell, Bebout, Torbet Potter, for appellees.
Mr. Leslie E. Meyer, prosecuting attorney, for appellants.
The question to be determined is whether a village council can prevent the village electorate from voting to approve or reject an ordinance, which was not passed as an emergency ordinance and on which a valid referendum petition has been duly filed, by passing at one session after the filing of the referendum petition two consecutive emergency ordinances, one to repeal the ordinance under referendum and the other to re-enact substantially the same ordinance as repealed; and whether it can do that if the sole purpose of council in passing the two new ordinances is to prevent a vote by the electorate on the legislation contained in the ordinance with respect to which the referendum petition was filed.
This question would appear to be partially answered by the portion of Section 731.34, Revised Code, reading:
"If, after a verified referendum petition has been filed against any ordinance or measure, the legislative authority of the municipal corporation repeals such ordinance or measure, or it is held to be invalid, the board of elections shall not submit such ordinance or measure to a vote of the electors."
Appellees argue that, if council can repeal an ordinance as to which a valid referendum petition has been filed and then re-enact substantially the same ordinance for the purpose of preventing a referendum on the legislation contained in those ordinances, the right to a referendum can be seriously impaired. This is probably true. See State, ex rel. Magnella, v. Meining (1916), 133 Minn. 98, 157 N.W. 991. Thus, if ordinance 15-62 had not been passed as an emergency measure, a serious question would be presented. However, our law recognizes the right of a municipal council to defeat the right to a referendum on legislation by enacting such legislation as an emergency measure; and we have held that the question of whether there was an emergency is not subject to review in the courts if council has, by the required vote, determined that there was an emergency. State, ex rel. City of Fostoria, v. King, Aud. (1950), 154 Ohio St. 213, 94 N.E.2d 697.
Since council can defeat the right to a referendum on legislation by enacting it as an emergency measure, we are of the opinion that council cannot be prevented from doing that merely because it previously had enacted the same legislation without declaring an emergency and a referendum petition had been filed against such legislation.
Since the Court of Appeals should have sustained the demurrer, its judgment is reversed.
Judgment reversed.
ZIMMERMAN, MATTHIAS, BRYANT and O'NEILL, JJ., concur.
WEYGANDT, C.J., and GRIFFITH, J., not participating.
BRYANT, J., of the Tenth Appellate District, sitting by designation in the place and stead of HERBERT, J.