Summary
finding it "apparent" that the charter provisions apply, not the statutes
Summary of this case from State ex rel. Bartlett v. CollierOpinion
No. 78-405
Decided June 21, 1978.
Municipal corporations — Initiative and referendum — Sufficiency of petition — Charter provisions to be followed, when — Statutes not controlling, when.
IN PROHIBITION. ON MOTION to dismiss.
The relator, Ohio National Bank ("ONB"), is trustee of trusts created by the wills of Leslie L. and Elsa LeVeque and, as such, owns and manages real property in Columbus. On January 9, 1978, the Columbus city council in Ordinance No. 2329-77 rezoned an 11-acre tract of land owned by relator on North High Street from "* * * AR-1, Apartment Residential, R-4, Residential, and C-4, Commercial * * *" to "CPD, Commercial Planned Development * * *."
On February 6, 1978, within 30 days following the passage and approval of Ordinance No. 2329-77, a referendum petition was filed in several parts with the city clerk pursuant to Section 48 of the Charter of the city of Columbus requesting that Ordinance No. 2329-77 be repealed by council or submitted to the electors of the city for their approval or rejection.
Relator objected to the sufficiency and validity of the referendum petition on several grounds, but the respondents found that the petition was valid and determined to submit the ordinance to the electors of Columbus for their approval or rejection at an election to be held on June 6, 1978.
Relator then brought this action to prohibit respondents, acting as the Board of Elections of Franklin County, from submitting to the electors of the city of Columbus a referendum concerning Ordinance No. 2329-77.
Respondents have filed a motion to dismiss for failure to state a claim upon which relief can be granted.
Messrs. Vorys, Sater, Seymour Pease, Mr. Robert E. Leach and Mr. Richard R. Stedman, for relator.
Mr. George C. Smith, prosecuting attorney, and Mr. James R. Kirk, for respondents.
The relator questions the sufficiency and validity of the referendum petition and its several parts. Primarily, ONB complains that the part petitions are not in conformity with R.C. 3501.38(E) and (J) and R.C. 731.29 to 731.40.
R.C. 731.41 specifically excludes municipalities which have adopted charter provisions for initiative and referendum procedures applicable to their own legislative measures from compliance with R.C. 731.28 to 731.41. R.C. 731.41 is a codification of the "home-rule" provision of the Ohio Constitution (Article XVIII), and has been so recognized by this court in Dillon v. Cleveland (1927), 117 Ohio St. 258.
The Columbus City Charter contains comprehensive provisions relating to referendum procedures.
Sections 48 to 51 of the Columbus City Charter provide as follows:
"Sec. 48. The Referendum. No ordinance passed by the council except as otherwise provided by this charter, shall go into effect until thirty days after its final passage by the council. If at any time within said thirty days, a petition signed by registered electors of the city, not less in number than five percent of the total vote cast at the last preceding general municipal election be filed with the city clerk requesting that any such ordinance be repealed or submitted to a vote of the electors of the city, it shall not become operative until the steps indicated herein have been taken. All petition papers circulated with respect to the repeal of any such ordinance shall be uniform in character and have printed thereon the names and addresses of at least five electors of the city who shall be officially regarded as filing the petition. (Adopted Nov. 7, 1933.)
"Sec. 49. [Signatures for referendum.] All signatures appended to any such petition shall be written in ink or indelible pencil, and each signer shall place thereon the place of residence of such elector so signing by street and number and date of signing. The signatures to any such petition need not all be appended to one paper, but to each such paper there shall be attached an affidavit by the circulator thereof stating the number of signers to such part of the petition and that such signatures were appended thereto in the presence of affiant. The petition and signatures thereto appended, so verified, shall be presumed to be in all respects sufficient, unless within fifteen days after the filing of any such petition it shall be otherwise proven. (Adopted Nov. 7, 1933.)
"Sec. 50. [Action by clerk and council on petition.] All papers compromising any such petition shall be assembled and filed with the city clerk as one instrument. The city clerk shall, within ten days after the filing thereof, certify thereon the number of signatures thereto appended, and shall submit the petition to the council on the date of its next regular meeting. If the petition contains the required number of signers, the council shall, within thirty days after the date of filing such referendum petition by the city clerk, repeal the ordinance therein sought to be repealed, or shall order and provide for the submission of such ordinance to vote of the electors of the city at an election to be held not less than sixty days thereafter.
"Sec. 51. [Referendum petition regulations; ballots.] Referendum petitions need not contain the text of the ordinance, the repeal of which is sought, but shall refer to such ordinance by its title, number and date of passage. They shall be subject in all other respects to the requirements for petitions submitting proposed ordinances to the council. Ballots used in referendum elections shall conform in all respects to those provided for in Section 46 of this charter."
It is apparent, therefore, that the circulators need not be in compliance with R.C. 731.29 to 731.40, or other provisions of the Revised Code relating to a referendum, but must be in compliance with the city charter. There is no contention by relator that the circulators were not in compliance with the charter, and, therefore, the referendum issue was properly placed on the June ballot by respondents. The motion of the respondents is well taken.
Motion sustained and cause dismissed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.