Opinion
No. 26866
Decided July 6, 1938.
Municipal corporations — Referendum on public utility contract — Submission of referendum and circulation and filing of petitions — Sections 5 and 8, Article XVIII, Constitution.
While the submission of a referendum on a municipal contract authorizing the purchase of public utility products or service is had under the provisions of Section 8 of Article XVIII, of the Ohio Constitution, the circulation and filing of referendum petitions are governed by the provisions of Section 5 of Article XVIII.
IN MANDAMUS.
This is an action in mandamus originating in this court praying that the respondents, as members of Council of the city of Massillon, provide by ordinance for the submission at a special referendum election, of the question of the approval or rejection of Ordinance No. 3812, adopted on November 15, 1937. The matter is submitted on the pleadings, agreed statement of facts and numerous depositions.
The facts raising the essential legal questions in controversy are not in serious dispute.
On November 15, 1937, the Council of the city of Massillon adopted an ordinance fixing the rates to be charged by the Ohio Public Service Company for electricity furnished domestic and commercial consumers in that city for a period of ten years, commencing December 20, 1937. The ordinance was approved by the mayor, and its terms and conditions were accepted by the Ohio Public Service Company.
On December 14 and 15, 1937, there was filed with the mayor, as the executive official of the city, a purported referendum petition containing separate parts sponsored by the relator asking that an election be held on the ordinance. Previously, on December 9, 1937, the relator had filed with the city auditor, a copy of the proposed referendum petition.
On December 20, 1937, the mayor submitted the petition, consisting of eighty-one parts, to the city council, and on that day a committee consisting of councilman Schnierle, as chairman, councilmen Hall and Maxson, clerk of council Jones, and city solicitor Hardman, was appointed to check the petition.
On December 29, 1937, the committee submitted the following report:
"Hon. City Council of Massillon, Ohio
"Dear Sirs:
"We the undersigned committee of the Massillon City Council, heretofore appointed to check the sufficiency of the referendum petition on Ordinance No. 3812 report as follows:
"Total names checked................................... 1996 "Names found invalid............ 335 "Names withdrawn................ 641 976 ---- "Less duplicate invalid names................. 60 ---- "Total names deducted.................................. 916 ---- "Names left on petition................................ 1080
"There being more valid names than is necessary, your committee reports favorably on the sufficiency of the petition.
"We admit that there are possible slight errors in our computations but lack of time has prevented us from rechecking the figures and it would make little difference in our report.
"Technical questions have been raised by members of the committee relative to various parts of this referendum petition but these we did not feel we were legally authorized to consider.
"Respectfully submitted,
"G.F. Schnierle "Richard B. Hardman "Richard A. Jones"
The minutes of council show the following occurred after the report was submitted:
"Councilman Cecil wanted to know if this report could be held in abeyance to give them more time to consider it.
"At this time Attorney Emmett Graybill addressed council and gave his views on the referendum petition, and told council there was a legal question as to the legality of the affidavits signed by the circulators of the 81 parts of the petition. He also said council did not have a right to adopt this petition until the legality of the petitions have been passed on.
"Councilman Hall said he was one of the members of the committee to check this petition, but due to his office duties, was not able to give his time on the committee.
"Councilman Schnierle said the committee only checked the names and not the legality of the petition.
"Councilman Cecil said he did not feel like passing on this report until the legality of the petition has been settled.
"Councilman Fricker said as far as legality is concerned, he did not understand that part of the petition, but said that until the city solicitor passes on the legality of the petition, or parts of the petition, he is not in favor of accepting the report.
"Councilman Hall said we will have to be guided by the city solicitor.
"Councilman Maxson wanted to know that if the report was accepted, would it mean there would be a vote on the referendum and the city solicitor Hardman said that if it was not attached [ sic] by other parties, there would be.
"President Leisy said he thought the report should be accepted, and that the technicalities and legalities were up to the courts to settle.
"A motion was made by councilman Hodgson, and seconded by councilman Maxson to adopt the report.
"Councilman Schnierle said that the report from the committee is only on the names as checked against the poll books and not the legality of the affidavits.
"Councilman Fricker said as far as he can see there are too many legal questions and he is not in favor of accepting the report until the legal questions have been passed upon by the city solicitor.
"The city solicitor made the statement that the committee was not passing final judgment on the legality of the petition, but only as to its sufficiency for the purpose of holding a referendum and that the petition was still open to the attack of other parties.
"At this time the chair called for yeas and nays. Not being satisfied as to the division of the yeas and nays the president then called for a roll call vote. Roll call vote was then taken.
"Those voting yean — councilmen Hall, Hodgson, Maxson and Schnierle. Walter and Walker being absent.
"Those voting nay — councilmen Brenner, Cecil and Fricker. Councilmen Walker and Walter being absent.
"Report adopted. Four yeas and three nays."
Thereafter changes in the personnel of council took place on January 1, 1938, and a new solicitor likewise took office.
On January 3, 1938, Ordinance No. 3824 was proposed to provide for a referendum election on Ordinance No. 3812. The vote upon a motion to suspend the rule requiring three separate readings was a tie, and inasmuch as three-fourths of the members did not concur, the motion was lost. At the same meeting, a motion was carried instructing the city solicitor to furnish an opinion on the legality of the referendum petition. On January 6, 1938, the relator filed this action in this court and in his petition alleged that on January 3, 1938, "Council refused to place said ordinance before said council on the question of its passage."
On January 12, 1938, a report and opinion of the city solicitor was received, in which he ruled there were not sufficient signatures. This report was adopted by council.
On January 12, 1938, council again refused to suspend the rules and on February 7, 1938, the ordinance was defeated by a vote of 4 to 5.
This matter is to be determined, therefore, on the petition filed January 6, 1938, pleadings, agreed statement of facts, and depositions filed in this court.
Mr. Lewis C. Wiggins, Mr. Perry A. Kuhn and Mr. Jack Roesch, for relator.
Mr. Emmett D. Graybill, city solicitor, and Mr. Elson Wefler, for respondent.
The claim is made that this action, being filed on January 6, 1938, was prematurely instituted because at that time Council of the city of Massillon had not definitely rejected Ordinance No. 3824 which proposed the referendum election upon Ordinance No. 3812. The court might entertain serious doubts as to the propriety of the action at the time it was filed were it not for the admissions contained in the answer filed by the city solicitor on behalf of the council. Contained therein we find this statement:
"Respondents admit that thereafter, upon the dates alleged in the petition, that these respondents were qualified as councilmen; that Ordinance No. 3824 was introduced to council at the first regular meeting thereof but that council refused to suspend the rules requiring three separate readings thereon and refused to take any further action thereon because of the legal insufficiency of said referendum petitions." (Italics ours.)
By reason of such an admission we are confronted with but one question: Was the referendum petition, filed with the mayor and approved as to sufficiency in number by council on December 29, 1937, legally sufficient to compel the council to submit the provisions of Ordinance No. 3812 to a vote of the people? If it was, the writ should be granted. If it was not, the writ should be denied.
Ordinance No. 3812 is one which provides for the purchase of electric current, a public utility product. As such, it is subject to the referendum provisions of Section 5 of Article XVIII of the Ohio Constitution. Ohio River Power Co. v. City of Steubenville, 99 Ohio St. 421, 124 N.E. 246.
It is claimed by respondents that referendum provisions relating to ordinances for products of public utilities are subject to Section 8 of Article XVIII of the Ohio Constitution, which provides the manner in which a municipal charter may be adopted. We have held that petitions in the nature of an initiative, not a referendum, to amend a municipal charter should comply with the statutory provisions contained in Sections 4227-1 et seq., General Code, if not inconsistent with the provisions of the Constitution. State, ex rel. Poor, v. Addison et al., Council, 132 Ohio St. 477, 9 N.E.2d 148.
By analogous reasoning, respondents contend that the referendum provisions contained in these statutes supplement the constitutional provisions and are applicable in the case of a referendum on an ordinance fixing utility rates.
Such reasoning loses sight of the express wording of the Constitution which definitely makes a distinction between municipal charters and public utility contracts.
The provisions of Sections 4 and 5 of Article XVIII specifically state that a referendum petition on a utility ordinance shall be filed with the executive authority by ten per centum of the electors within thirty days after the passage of the ordinance. Following the case of Ohio River Power Co. v. City of Steubenville, supra, this court held that these provisions were self-executing and controlling over any contained in the statutes. See State, ex rel. City of Toledo, v. Weiler, 101 Ohio St. 123, 128 N.E. 88; Link v. Public Utilities Commission, 102 Ohio St. 336, 338, 131 N.E. 796; State, ex rel. Sweeney, v. Michell et al., Council, 128 Ohio St. 266, 191 N.E. 98; State, ex rel. Reeves, v. Hillyer, Aud., 128 Ohio St. 294, 191 N.E. 2.
In the very recent case of State, ex rel. Mitchell, v. Council of Village of Milan, 133 Ohio St. 499, the court held that Section 5 of Article XVIII was self-executing and required no assistance of any statute to give it effect and operation. Its provisions governed to the exclusion of those contained in Section 4227-2 et seq, General Code.
This was directly in accord with the view that no legislative act can in any wise modify or restrict the power conferred by constitutional provision.
It is said, however, that Section 1 f of Article II gave power to municipalities to adopt supplementary legislation. That section referred only to those questions "which such municipalities may now or hereafter be authorized by law to control by legislative action."
The powers of municipalities in reference to public utilities contained in Section 4 of Article XVIII of the Ohio Constitution, were granted expressly in 1912. Therefore, the power of referendum over utility products contracts had to be and was granted expressly under Section 5 of Article XVIII, which provisions of necessity became self-executing. See State, ex rel. Didelius, City Solicitor, v. City Commission of City of Sandusky, 131 Ohio St. 356, 362, 363, 2 N.E.2d 862.
The contention of respondent, however, cannot be upheld for another reason. Section 5 of Article XVIII merely provides that " the submission of any such question shall be governed by all the provisions of Section 8 of this Article as to the submission of the question of choosing a charter commission." (Italics ours.) Section 8 would be controlling in reference to the mandatory necessity of adopting an ordinance fixing the time and place of an election, the mailing of notices, the form of ballot used, and the like, after a valid petition has been filed. The provisions of Section 8 would not be controlling in reference to the sufficiency of the petition except by a strained construction of the term "submission" of the question.
In accordance with past decisions, the court holds that while the statutory provisions relating to the referenda apply to the adoption of municipal charters, where not inconsistent with the Constitution, nevertheless such laws are not applicable to a referendum upon an ordinance providing for a contract for the product of a public utility since Sections 4 and 5 of Article XVIII are exclusive and self-executing. Section 8 of that Article controls only in regard to the submission of the question and not to the sufficiency of referendum petitions. This distinction was aptly pointed out in James v. Ketterer, 125 Ohio St. 165, 180 N.E. 704.
Nowhere in the Constitution do we find any provision for the verification of petitions by circulators in the case of a referendum such as is now before the court. Since the constitutional provisions are exclusive and self-executing, we conclude none is required.
Council having passed on the sufficiency of the number of signers of the petition as required by the Constitution (See State, ex rel. Hinchliffe, v. Gibbons et al., Council, 116 Ohio St. 390, 156 N.E. 455; State, ex rel. Waltz, v. Michell, 124 Ohio St. 161, 177 N.E. 214), the claim that there was an improper verification must be rejected. No legal obstacle confronted council to prevent the adoption of Ordinance No. 3824, and its refusal to adopt legislation providing for a referendum after the petition was found to be sufficient was without legal sanction. The writ of mandamus ordering Council of the city of Massillon to adopt an ordinance providing for a referendum election upon the provisions of Ordinance No. 3812 is hereby granted.
Writ allowed.
WEYGANDT, C.J., MATTHIAS, DAY and WILLIAMS, JJ., concur.
I am unable to agree with the majority opinion for the reason that the petition did not conform to Section 4227-4, General Code. In the instant case I agree that the provisions of the Constitution are self-executing insofar as they provide the machinery for the purpose intended. Article II, Section 1 f of the Constitution is 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." Sections 4227-1 to 4227-13 inclusive, General Code, were enacted to provide by general law for the manner in which the initiative and referendum powers of a municipality shall be exercised. A municipality having a home rule charter may provide in such charter the manner in which the initiative and referendum may be exercised. See Section 7, Article XVIII of the Constitution and also Section 4227-12, General Code. The municipality here involved has no home rule charter.
Section 5, of Article XVIII of the Constitution, provides that the submission of such a question, shall be governed by the provisions of Section 8 of Article XVIII. Section 8 sets forth in general terms the manner in which such a referendum shall be conducted and then states that provision for the election "shall be made by the legislative authority of the municipality insofar as not prescribed by general law." In this instance provision was made by general law to carry out the spirit as well as the letter of this section and also Section 1 f, of Article II of the Constitution.
ZIMMERMAN, J., concurs in the foregoing dissenting opinion.