Opinion
No. 74-973
Decided May 28, 1975.
Elections — City charter amendments — Properly proposed, when — Prohibition denied.
APPEAL from the Court of Appeals for Cuyahoga County.
The Charter of Broadview Heights established a Charter Review Committee to recommend charter amendments to the city council for submission to the voters of Broadview Heights.
Article XIII, Charter of Broadview Heights.
"In the month of January, 1966, and at least every four (4) years thereafter in the month of January, the mayor shall appoint a committee * * *. Such committee shall review and recommend to council not less than one hundred twenty (120) days prior to the next November election, any * * * amendments to this Charter as in its judgment seem advisable. The council shall submit to the electors any such proposed * * * amendments to the charter at the next regular November election. * * *"
On July 22, 1974, Ordinance No. 69-74, submitting charter amendments to the voters, was introduced to the council of Broadview Heights which passed a motion declaring the ordinance an emergency measure and authorizing it to be read twice by title and once in its entirety. After the third reading, a vote was taken and the ordinance failed to receive the necessary five affirmative votes to pass as an emergency measure, but passed by a vote of 4-to-3 and was ruled adopted.
After signing by the mayor, Ordinance No. 69-74 was forwarded to the Cuyahoga County Board of Elections.
Relator, Willis T. Rosch, then filed the instant action in the Court of Appeals for Cuyahoga County for the issuance of a writ of prohibition to prevent respondents, the Cuyahoga County Board of Elections, its director, chairman and members, and the mayor, clerk and council of Broadview Heights, "from taking any steps of further steps to carry out * * * Ordinance No. 69-74 and placing the charter amendments attached thereto on the ballot * * *." On the same day, an alternative writ was issued by the Court of Appeals.
Following respondents' answers, the Court of Appeals denied the writ on October 22, 1974.
The Court of Appeals wrote no opinion. Its entry simply recites "Writ denied." The reason for the denial is not set out.
The cause is now before this court by virtue of relator's appeal as of right.
Messrs. Cain Lobo and Mr. Arthur L. Cain, for appellant.
Mr. John T. Corrigan, prosecuting attorney, Mr. John L. Dowling and Mr. Thomas P. Gill, for appellee Cuyahoga County Board of Elections.
Mr. Cecil P. Mauk, director of law, for appellees Donald A. Faulhaber, Mayor, and others.
Relator argues, primarily, that because the ordinance failed to pass as an emergency measure at council's July 22 meeting it also failed as "an ordinary or regular measure as it was not read at three separate meetings," which, he contends, is necessary to the validity of nonemergency legislation.
In this case, however, the Charter of Broadview Heights requires its council to submit to the electors any amendments proposed to the charter by the review committee. The action of council in submitting the proposed charter amendments to the board of elections was administrative. Neither the form nor the manner of such submission is set out in Article XIII which, in this instance, takes precedence over any other charter provision in relation to the submission of proposed charter amendments to the electors. The charter does not require that such submission be by way of an "ordinance" enacted only after council follows the procedures outlined in any other articles of the charter for the enactment of "ordinances or resolutions."
Article IX.
The proposed charter amendments were properly submitted to the electors of Broadview Heights.
The electors of Broadview Heights have voted on the submitted charter amendments and their votes have been counted
Accordingly, the judgment of the Court of Appeals, denying the writ of prohibition, is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.