Opinion
No. 32444
Decided June 13, 1951.
Municipal corporations — Initiative and referendum — Powers reserved to control legislative action — Section 1f, Article 11, Constitution — Councilmanic parking-meter ordinance subject to initiative and referendum — Municipal electors may initiate measure conflicting with councilmanic ordinance, when — Councilmanic parking-meter ordinance passed as emergency measure — Electors may initiate ordinance repealing such legislation, when — Section 4227-1 et seq., General Code — Certification of initiative petition to board of elections — Mandamus.
1. Under Section 1 f, Article II of the Constitution of Ohio, both the initiative and referendum powers are reserved to the people of Ohio municipalities "on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action."
2. An ordinance passed by the council of an Ohio noncharter municipality designating parking spaces for vehicles with the installation and use of mechanical parking meters in connection with such spaces is a legislative measure subject to the initiative and referendum within the contemplation of Section 1 f, Article II of the Constitution of Ohio.
3. The electors of a municipality may by the initiative enact a measure conflicting with or repealing legislation previously passed by the municipal council, so long as the subject matter of such initiative ordinance is within the powers of the municipality to control by legislative procedure.
4. Where an ordinance relating to parking spaces and the installation and use of parking meters in connection therewith is passed by a municipal council, even though enacted as an emergency measure effective immediately and thereby not subject to the referendum, the electors of the municipality may initiate an ordinance for the repeal of such legislation, and where the initiative petition prepared and formulated for such purpose is in conformity with the provisions of Section 4227-1, General Code, and is duly filed with the city auditor, that official is under the mandatory duty to certify such petition to the board of elections. ( State, ex rel. Smith, v. City of Fremont, 116 Ohio St. 469, overruled.)
APPEAL from the Court of Appeals for Champaign county.
This action in mandamus, now here on an appeal as of right, originated in the Court of Appeals for Champaign county. It was brought by Clark B. Sharpe and Clinton E. Boyer against Joe W. Hitt, auditor of the city of Urbana, Ohio, to require the latter to certify an initiative petition to the Board of Elections of Champaign County.
Such initiative petition, in its formal parts, reads as follows:
"To the city auditor of the city of Urbana, Champaign county, Ohio.
"We, the undersigned electors of the city of Urbana, Ohio, respectfully propose to the electors of said city for their approval or rejection at the regular election to be held on the 7th day of November, 1950, the following ordinance.
"The following is a full and correct copy of the title and text of the proposed ordinance.
"Ordinance "No. . . .
"Repealing ordinance No. 1570 as amended on the 15th day of April 1947, and repealing any and all legislation enacted by council of the city of Urbana, Ohio, heretofore authorizing the installation and use of parking meters in the said city of Urbana.
"Whereas, it is deemed to be to the best interest of the public of the city of Urbana, and those of the public at large who make use of the said streets of the city of Urbana, that the parking meters now installed and in use on the streets of the said city of Urbana, be removed.
"Now therefore, be it ordained, by the council of the city of Urbana, state of Ohio, three-fourths of its members elected or appointed thereto concurring:
"Section I: That ordinance No. 1570 as amended by ordinance No. 1658 on the 15th day of April 1947, and in addition thereto, any and all further legislation not herein specifically quoted or designated by number but having reference to installation and use of parking meters in said city of Urbana, be, and the same hereby are, repealed.
"Section II: That all of the parking meters now installed and in use in the city of Urbana as authorized, heretofore, by the council of the city of Urbana be removed from the streets of the said city of Urbana.
"Section III: That this ordinance shall take effect and be in force from and after the earliest period allowed by law."
The petition filed in the Court of Appeals alleges that the city of Urbana is an Ohio municipal corporation having no charter and is operated under the general provisions of the General Code of Ohio relative to municipalities; that at all times in issue the respondent was the duly elected, qualified and acting auditor of such city; that relators are electors and taxpayers of such city, reside therein and bring their action on behalf of the city; that on September 19, 1944, the council of such city passed ordinance No. 1570 relating to the designation of individual parking spaces for vehicles in certain congested areas of the city and for the use of mechanical parking time indicators in conjunction with such spaces; that such ordinance was duly filed with the mayor and approved by him; that on April 15, 1947, the council of such city amended section II of ordinance No. 1570 and such amended ordinance was duly filed with and approved by the mayor; that relators are two members of a committee designated to prepare, circulate and file such initiative petition; that on September 13, 1950, prior to the circulation of such initiative petition relators caused to be filed with respondent a copy thereof; that thereafter such initiative petition was placed in circulation and that on September 18, 1950, relators filed with respondent such initiative petition in six parts and containing the signatures of 424 electors of such city, being more than ten per cent of the electors thereof; that each part of such initiative petition is in due form and contains the prescribed affidavit of the person who solicited the signatures; that on September 29, 1950, respondent, after request, refused to certify such initiative petition to the Board of Elections of Champaign County; that on October 2, 1950, relator Sharpe, notified in writing the solicitor of the city of Urbana of the failure and refusal of the respondent to certify the petition to the board of elections and on the following day the solicitor refused to apply to a court of competent jurisdiction for a writ of mandamus to compel respondent to certify such petition to such board of elections; and that relators have no plain and adequate remedy at law.
In his amended answer, respondent admits most of the material allegations of the petition. Further answering, the respondent states that ordinance No. 1570 and other later ordinances amending the same were all passed as emergency measures and were not subject to referendum or to repeal by initiative petition; and that the initiative petition filed with respondent is in truth a referendum on the legislation enacted by the council of the city of Urbana and respondent refused to certify same to the board of elections for the reason that it was not timely filed.
"Wherefore, respondent prays that the petition of the relators be dismissed, that a peremptory writ of mandamus be refused, that the alternative writ of mandamus be rescinded and disallowed; that this respondent be permitted to go hence without day, and for his costs herein."
Forthwith after the filing of the amended answer, the Court of Appeals entered the following judgment:
"This cause came on for hearing on the petition of the relators and the answer of the respondent filed herein, was argued by counsel for relators and counsel for respondent and was submitted to the court; and, on consideration thereof, the court finds that the facts do not warrant the allowance of the peremptory writ of mandamus compelling the respondent Joe W. Hitt, auditor of the city of Urbana, Ohio to certify the initiative petition to the Board of Elections of Champaign County, Ohio as prayed for in the petition.
"It is therefore ordered by the court that the peremptory writ of mandamus as prayed for be denied, that the alternative writ heretofore issued by this court be rescinded and revoked, and that respondent recover costs herein.
"To all of which * * * [findings], judgment and order of this court the relators by their counsel hereby except."
Mr. Arthur W. Gurklies, for appellants.
Mr. Clifford R. Wagner, for appellee.
As has been noted in the statement of the case, this controversy was decided by the Court of Appeals upon the petition and the amended answer. The allegations of the petition and the admissions of the amended answer clearly show that the initiative petition placed in the hands of respondent city auditor met the requirements of a valid petition of that kind within the rules prescribed in Section 4227-1 et seq., General Code, which sections pertain to the initiative and referendum as they may be used with respect to municipal ordinances.
Therefore, the controlling question in this case is whether the respondent was justified in refusing to certify to the Champaign county board of elections the initiative petition filed with him by the relators to repeal the existing municipal ordinances covering the parking of vehicles with the installation and use of parking meters and to enact a new measure removing from the streets of the city all the parking meters "now installed and in use."
Section 1 f, Article II of the Constitution of Ohio, adopted in 1912, provides:
"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."
Section 4227-1, General Code, as amended in 1914, recites in part:
"Ordinances and other measures providing for the exercise of any and all powers of government granted by the Constitution or now delegated or hereafter delegated to any municipal corporation, by the General Assembly, may be proposed by initiative petition. Such initiative petition must contain the signatures of not less than ten percentum of the electors of such municipal corporation.
"When there shall have been filed with the city auditor * * * a petition signed by the aforestated required number of electors proposing an ordinance or other measure, said city auditor * * * shall, after ten days, certify the petition to the board of deputy state supervisors of elections of the county wherein such municipality is located."
Section 4227-2, General Code, reads in part:
"Any ordinance, or other measure passed by the council of any municipal corporation shall be subject to the referendum except as hereinafter provided. No ordinance or other measure shall go into effect until thirty days after it shall have been filed with the mayor of a city or passed by the council in a village, except as hereinafter provided."
The remainder of the section last quoted has to do with the requirements for a valid referendum petition, its filing with the designated authority within 30 days after the ordinance or other measure to which it is directed has been filed with the mayor or passed by a village council and with the subsequent disposition of such petition.
Then Section 4227-3, General Code, describes the ordinances which are not subject to referendum, including "emergency ordinances" passed by a two-thirds vote of those comprising the legislative body involved and which go into immediate effect.
This and other courts have declared that constitutional, statutory or charter provisions for municipal initiative or referendum should be liberally construed in favor of the power reserved so as to permit rather than preclude the exercise of such power, and the object clearly sought to be attained should be promoted rather than prevented or obstructed. State, ex rel. City of Middletown, v. City Comm. of City of Middletown, 140 Ohio St. 368, 44 N.E.2d 459; 62 Corpus Juris Secundum, 870, Municipal Corporations, Section 451 (b).
It is interesting to note that neither the Constitution of Ohio nor the statutes place any definite limitations on the use of the initiative. And the obvious purpose of the initiative as it affects municipalities is to reserve to the people of those municipalities the right to exercise their inherent or political power over the council or other legislative body as to local legislation. Moreover, especially in the light of Section 2, Article I of the Constitution, providing that "all political power is inherent in the people," the adoption of the initiative and referendum as a part of the Constitution evidenced a firm resolve on the part of the people that the legislative branch of the state or local government shall be subject to the control of the people with respect to legislative measures, except as otherwise provided.
It is apparent that the people of the city of Urbana could have had no referendum on the ordinances relating to the designation of individual parking spaces for vehicles in that city with the installation and use of parking meters in connection therewith, for all such ordinances were enacted as emergency measures becoming immediately operative, and under the decisions of this court the declaration of the existence of an emergency is conclusive and not subject to referendum or judicial review.
Quite recently this court decided that very matter in the case of State, ex rel. City of Fostoria, v. King, Aud., 154 Ohio St. 213, 94 N.E.2d 697. The third and fourth paragraphs of the syllabus thereof read:
"3. An ordinance enacted as an emergency pursuant to the provisions of Section 4227-3, General Code, is not subject to referendum under the provisions of Section 4227-2 et seq., General Code.
"4. The duty and responsibility of determining the emergency and the necessity that a measure go into immediate effect and of giving reasons for such necessity are placed by Section 4227-3, General Code, in the council or other body corresponding to the council of a municipality. Such a determination by a municipal council and the soundness of the reasons stated by such council for such necessity are not subject to review by the courts.
In adopting the initiative and referendum provisions of Section 1 f, Article II of the Constitution of Ohio, it was certainly not the intention of the people to leave the voters of a municipality powerless to override legislation which might be obnoxious to them. Even though the referendum is not available because an objectionable ordinance was passed as an emergency measure, perhaps arbitrarily, the initiative always remains as an authorized remedy. Otherwise, the people who elect the members of council and pay their salaries would occupy a place below the council in legislative power. Surely such was not the design and purpose of Section 1 f, Article II of the Constitution.
This brings us to a consideration of the case of State, ex rel. Smith, v. City of Fremont, 116 Ohio St. 469, 157 N.E. 318, decided in 1927. It is not unreasonable to suppose that the decision of the majority of the court in that case was influenced to some extent by the facts presented, involving as they did an important question of policy having to do with the public health and welfare. In that case, it is disclosed that a difference of opinion existed among the residents of the city of Fremont as to the desirability of installing a filtration plant for the purification of the city's existing water supply or of drilling additional wells and constructing an emergency reservoir and equipment. The council of the municipality favored the former plan, had already taken steps to accomplish it and passed an emergency ordinance to carry it into effect. This latter action was met by an initiative petition providing for the drilling of additional deep wells and of securing a water supply from these wells and from others then in existence. The initiative petition was submitted to the electors at a general election and was adopted by the required number of votes. An action in mandamus was then instituted to require the city to proceed in accordance with the initiative ordinance as approved by the electors. In denying the writ the majority of this court said in its per curiam opinion:
"The filing of the initiative petition on June 28, 1926, was simply an effort to nullify the action of the city council in respect to its policy relating to the construction of a filtration plant. The only method by which the legislation of the city council could be annulled, under our present Constitution, would be by the employment of the referendum, not the initiative. However, since the city council declared the measure to be an emergency and in the interest of public health and safety, and that is conceded, there could be no referendum. The effect of the initiative petition and its subsequent adoption by the people would be nothing less than a referendum upon the measure adopted by the city council. It is the invoking of initiative legislation as a substitute for and in lieu of a referendum; it is an attempt to repeal legislative action by invoking initiative action."
Judge Allen wrote a vigorous dissenting opinion concurred in by Chief Justice Marshall. To the writer, at least, the propositions advanced in the dissent are unanswerable. Judge Allen stated that the effect of the majority opinion was to limit the subjects upon which the electors of a municipality could take initiative legislative action to subjects which had not already been treated by council in a contrary manner. She then pointed out that there is not only no provision of law restricting the use of the initiative but under the express language of Section 1 f, Article II of the Constitution, both the initiative and referendum powers are reserved to the people "on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action."
Next she asserted that undoubtedly the city council itself could have initiated and passed an ordinance in conformity with the one contained in the initiative petition, which, without an express repeal of the initial ordinace on the same subject, would have operated to supersede and nullify such initial ordinance. In other words, a repeal by implication would thus have been brought about. The conclusion is then reached that under the precise phrasing of Section 1 f, Article II, the people of a municipality can, through the initiative, enact a measure conflicting with legislation previously passed by council even though they thereby nullify the action of council, so long as the question upon which they enact such an initiative ordinance is within the power of the municipality to control by legislative procedure. The holding of the majority of the court is termed "a drastic invasion of the unlimited legislative power reserved by the people of municipalities by the amendments of 1912."
Judge Allen next commented on the fact that, since the people in a municipality are precluded from having a referendum on an emergency ordinance and since the declaration of an emergency in an ordinance may not be judicially reviewed, the council of a municipality could arbitrarily deny the people a voice in legislative matters, and that such a situation would be repugnant to the purposes sought to be accomplished by the people in adopting the initiative and referendum. According to Judge Allen, "it was not the intention of the framers of the constitutional amendments of 1912 when they provided for the initiative in municipalities that the subjects upon which the initiative could be exercised should be limited to those not subject to the referendum. The very wording of Article II, Section 1 f, refutes the idea. The Constitutional Convention and the electors who enacted the amendments of 1912 meant the voters themselves to have the power to enact legislation as a part of the legislative power, subject to no limitations excepting those specifically expressed in the Constitution itself."
This court, as now constituted, agrees with the reasoning of the dissenting opinion in State, ex rel. Smith, v. City of Fremont, supra, and, since the majority holding in that case is contrary to the position presently taken in this opinion, the same is overruled.
Even though this opinion suggests an overlapping use of the initiative and referendum, we are confident it sustains the intentions and purposes of the people in making the initiative and referendum a part of their organic law. Of course, the referendum is not as wide in scope or range as the initiative, the former, by its very name, being restricted to the referring of legislative measures to the electors for their acceptance or rejection.
Supporting inferentially at least the conclusion we have reached is the case of City of Youngstown v. Craver et al., Board of Elections, 127 Ohio St. 195, 187 N.E. 715, wherein it was held that the adopted charter of a municipality may be abolished by the use of the initiative.
There is a dearth of authority on the precise question raised in the instant litigation. The case of Bachmann v. Goodwin (1939), 121 W. Va. 303, 3 S.E.2d 532, corresponds with our view of the matter, whereas Commonwealth, ex rel. Heinly, v. Marks (1915), 248 Pa. 518, 94 A. 191, is opposed.
Upon the basis of what has been said, the judgment of the Court of Appeals is reversed and the respondent is directed to certify the initiative petition filed with him by relators to the Board of Elections of Champaign County, in accordance with Section 4227-1, General Code.
Judgment reversed.
WEYGANDT, C.J., STEWART, MIDDLETON, TAFT and HART, JJ., concur.
I concur in the judgment. However, I am of the opinion that the decision in State, ex rel. Smith, v. City of Fremont, 116 Ohio St. 469, 157 N.E. 318, was correct upon the facts presented by the record in that case, and that the overruling thereof is unnecessary and unwarranted.