Opinion
No. 36188
Decided October 7, 1959.
Municipal corporations — Initiative and referendum — Method not fixed by charter — Time within which to file referendum petition — Copy of proposed ordinance to be filed — Section 731.32, Revised Code — Statutory requirement mandatory.
1. Where a city does not have charter provisions fixing its own methods of initiative and referendum, a referendum petition may be filed as to an ordinance or measure, passed by the council of such city, within 30 days from the presentation of such ordinance to the mayor of the city as provided in Section 731.29, Revised Code, pursuant to Section 1 f, Article II of the Constitution of Ohio.
2. The requirement of Section 731.32, Revised Code, that whoever seeks to propose an ordinance in a municipal corporation by initiative petition or files a referendum petition against any ordinance shall before circulating such petition file a verified copy of the proposed ordinance or measure with the city auditor or village clerk, is mandatory, and in the absence of compliance therewith no duty falls upon the city clerk to receive and file with the board of elections a referendum petition otherwise valid.
IN MANDAMUS.
This is an original action in mandamus in which the relator, the Director of Law of the City of Youngstown, filed a petition to require the City Clerk of the City of Youngstown to certify a certain referendum petition to the board of elections.
The mandamus petition recites that the action is brought in compliance with the written demand of Joseph W. Gottlieb, a taxpayer of the city of Youngstown, to commence the action in relator's official capacity.
On June 17, 1959, the Council of the City of Youngstown passed an ordinance providing for the issuance of first mortgage sewerage-system revenue bonds in an amount not in excess of $10,000,000 for the purpose of constructing a new sewage treatment plant, effective 30 days from the date of passage, as provided in Section 11 of the Charter of the City of Youngstown, subject to referendum. This ordinance was filed with the mayor on June 18, 1959, and approved by him on the same day.
Relator states that the taxpayer, having secured a supply of blank referendum petition parts from the city clerk, filed with the clerk on June 23, 1959, a sample copy of a referendum petition before circulating the same, such copy having printed on it the number and caption of the ordinance and names of members of the committee in charge of circulating such petition.
The mandamus petition further recites that on July 17, 1959, Gottlieb, designated a member of the referendum committee, presented to the city clerk for filing (presumably with the board of elections) referendum petition parts containing signatures of a sufficient number of electors of the city of Youngstown, all of such petition parts being in proper form as required by statute. On the same day, the city clerk, by letter to Gottlieb, refused to accept said petition on the ground that the legal requirements had not been complied with, enclosing with his letter a copy of the law director's opinion with respect to the same. Following a further demand by Gottlieb upon the city clerk that he certify the referendum petition to the board of elections, which further demand was likewise refused, Gottlieb made a demand upon the relator to bring an action in mandamus to compel the city clerk to so certify the referendum petition. In accordance with the demand of the taxpayer, Gottlieb, relator filed the petition here, following which a demurrer to the petition was filed on behalf of the respondent city clerk on the ground that the petition does not state facts sufficient to entitle relator to a writ of mandamus.
It is agreed between counsel that a decision on the demurrer will dispose of the case.
Mr. Felix S. Mika, in propria persona. Mr. Joseph L. Hefferman, for respondent.
The respondent raises two questions in his brief on the demurrer which may be restated as follows:
(1) Was the proffer on July 17 of the referendum petition for filing made in time? (2) Is it mandatory to file a verified copy of the ordinance on which referendum is sought before circulating the referendum petition?
Section 11 of the city charter provides:
"All ordinances and resolutions shall be in effect from and after thirty (30) days from the date of their passage by the council except as otherwise provided by this charter."
The only provision of the charter relating to the initiative and referendum is section 82 which reads:
"The provisions of the General Code as to the initiative and referendum shall remain in full force and effect, except that the number of electors necessary for an initiative petition shall be three per cent and for a referendum petition six per cent and such petition shall be filed with the city clerk."
We are, therefore, brought to a consideration of the applicable statutes.
Section 731.29 et seq., Revised Code, contain substantially the same provisions as their predecessors, Section 4227-2 et seq., General Code, and must be construed to be the controlling sections even though section 82 of the Youngstown charter has not been amended since the adoption of the Revised Code. In passing, it may also be noted, that the words, "any ordinance, or other measure passed by the council of any municipal corporation shall be subject to the referendum," as they appeared at the beginning of Section 4227-2, General Code, were changed in the successor Section 731.29, Revised Code, to read, "any ordinance or other measure passed by the legislative authority of a municipal corporation shall be subject to the referendum." (Emphasis supplied.)
It is undisputed here that the proffer of the referendum petition was made to the city clerk on the 17th day of July which was the 30th day following the passage by the city council of the ordinance on June 17 and the 29th day after the presentation to the mayor, so that the demurrer cannot be sustained on the first point raised by the respondent. Where a city does not have charter provisions fixing its own methods of initiative and referendum, a referendum petition may be filed as to an ordinance or measure, passed by the council of such city, within 30 days from the presentation of such ordinance to the mayor of the city as provided in Section 731.29, Revised Code, pursuant to Section 1 f, Article II of the Constitution of Ohio.
Coming to the second point, the petition is silent regarding it, but it is agreed that Gottlieb did not file with the city auditor or clerk a verified copy of the ordinance on which referendum was sought before circulating his referendum petition which was proffered for filing on July 17.
Section 731.32, Revised Code, formerly Section 4227-6, General Code, reads as follows:
"Whoever seeks to propose an ordinance or measure in a municipal corporation by initiative petition or files a referendum petition against any ordinance or measure shall, before circulating such petition, file a verified copy of the proposed ordinance or measure with the city auditor or the village clerk."
This legislative requirement does not distinguish between an initiative and a referendum petition. On the other hand, Section 731.31, Revised Code, provides:
"Any initiative or referendum petition may be presented in separate parts, but each part of any initiative petition shall contain a full and correct copy of the title and text of the proposed ordinance or other measure, and each part of any referendum petition shall contain the number and a full and correct copy of the title of the ordinance or other measure sought to be referred. * * *"
It is easily understandable why the full text of a proposed ordinance is required on each part of an initiative petition while only the title is required on each part of a referendum petition.
An examination of the history of these two sections shows that the provisions now contained in Section 731.31, Revised Code, that an initiative petition shall contain a full and correct copy of the text of a proposed ordinance, while requiring a referendum petition to contain only the number and a full and correct copy of the title of the ordinance sought to be referred, were first enacted in 1913 (103 Ohio Laws, 212), while the provisions now contained in Section 731.32, Revised Code, were first enacted in 1914 (104 Ohio Laws, 240). These provisions have remained substantially unchanged since their original enactment. It also may be noted that the words, "the city auditor or the village clerk," in Section 731.32 have remained unchanged since 1914, although many cities no longer have city auditors, as is the case with Youngstown.
A comparable situation in this respect arose in the case of State, ex rel. Blackwell, a Taxpayer, v. Bachrach et al., City Council of Cincinnati, 166 Ohio St. 301, 143 N.E.2d 127. Even though in that case Section 731.32, Revised Code, was held to be inapplicable where an initiative petition involved a proposed charter amendment, Bell, J., noted in the opinion (page 304):
"Although the city of Cincinnati has neither an auditor nor clerk, the finance director of Cincinnati performs the duties customarily performed by such designated officials."
Here, it has been stipulated that the City Clerk of the City of Youngstown performs the duties customarily performed by the officials designated in Section 731.32, Revised Code.
It is not within the province of this court to consider the wisdom of this blanket requirement fixed in Section 731.32, as compared to the distinction in the provisions of Section 731.31 requiring the full text on initiative petition parts and titles only on referendum petition parts, as that is a matter entirely within the discretion of the Legislature to determine.
We conclude, therefore, that the requirement of Section 731.32, Revised Code, that whoever seeks to propose an ordinance in a municipal corporation by initiative petition or files a referendum petition against any ordinance shall before circulating such petition file a verified copy of the proposed ordinance or measure with the city auditor or the village clerk, is mandatory, and in the absence of compliance therewith no duty falls upon the city clerk to receive and file with the board of elections a referendum petition otherwise valid.
Accordingly, the demurrer to the petition is sustained and the petition is dismissed.
Demurrer sustained and petition dismissed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL and PECK, JJ., concur.
TAFT, J., concurs in paragraph two of the syllabus and in the judgment.