In Heidtman v. City of Shaker Heights, 163 Ohio St. 109, 126 N.E.2d 138, the question was whether city firemen were taking part in "politics" when they circulated parts of an initiative petition seeking enactment of an ordinance to establish the three platoon system in the fire department.Summary of this case from Hudson v. Gray
Decided April 13, 1955.
Civil service — Classified employees — Taking part in politics forbidden — Section 486-23, General Code — "Politics" construed — Circulating initiative petition seeking enactment of ordinance — Statutory construction — Words with wide and restricted meanings.
1. Where a statute is silent as to the meaning of a word contained therein and that word has both a wide and a restricted meaning, courts in interpreting such a statute must give such word a meaning consistent with other provisions of the statute and the objective to be achieved thereby.
2. The word, "politics," as used in Section 486-23, General Code (Section 143.41, Revised Code), must be defined as politics in its narrower partisan sense, and activities of municipal employees in the classified service in circulating an initiative petition seeking enactment of an ordinance relating to their employment do not constitute a taking part in politics as that term is used in such section.
APPEAL from the Court of Appeals for Cuyahoga County.
On March 27, 1953, Alvin R. Heidtman, Frank J. Schieferstein, John J. Rafter, and Shaker Heights Fire Fighters Association, Local No. 516, International Association of Fire Fighters, A.F.L., filed a petition in the Common Pleas Court of Cuyahoga County for a declaratory judgment and other relief against the city of Shaker Heights, John W. Barkley, Mayor, Robert D. Templeman, Wilson D. Stapleton, John H. Lansdale, Jr., R. Scott Mueller, Joseph R. Fawcett, Robert B. Denison, and William R. Van Aken, Members of Council, Ralph W. Jones, Director of Law, and Thomas E. Cook, Director of Finance and Auditor, of the city of Shaker Heights.
In the Court of Common Pleas, the fire fighters association was dismissed as a party by the court, which dismissal was affirmed by the Court of Appeals. With reference to such dismissal, there is no appeal before us.
Plaintiffs allege that they bring the action on behalf of themselves and others who are so numerous as to make it impracticable to bring them all before the court, but who have a common interest with plaintiffs to determine "whether an initiative petition seeking enactment of an ordinance to establish the three-platoon system in the fire department and filed in accordance with the general laws of Ohio and the charter provisions of the defendant city of Shaker Heights, properly may be rejected as defective by the officials and council of the defendant city on the ground that the circulation of the initiative petition and parts thereof by the members of its fire department constituted political activity in violation of Section 486-23 of the General Code of Ohio."
Plaintiffs pray that the court entertain the action; that it enter a judgment declaring the legal rights, status and relations of the plaintiffs as affected by Section 486-23, General Code; and that the court declare that such section does not render invalid an initiative petition circulated by employees of the city in its classified service in the fire department, that the initiative petition, proper as to form and content and filed in accordance with the general laws of Ohio and the charter provisions of the city, require the city council, in accordance with the provisions of the city's charter, to refer the petition to a committee for public hearing on the proposed ordinance and final action, all in accordance with the provisions of section 1, article III of the charter of the city, that it is the duty of defendant officials to grant, allow and make proper provisions to accord to plaintiffs their rights established in said section 1, article III, to enforce the performance of the duties enjoined by such charter by appropriate writ, and that plaintiffs have such other and further relief as to the court seems appropriate under the circumstances.
All the defendants filed an amended joint answer and cross-petition, to which amended answer plaintiffs filed an amended reply, and to which amended cross-petition plaintiffs filed an amended answer.
An agreed statement of facts was filed in the Common Pleas Court, which is in part as follows:
"The foregoing cause having been submitted to the Court of Common Pleas on the pleadings, argument of counsel and oral representations of counsel for all parties that the allegations of the petition seeking a declaratory judgment were not controverted by defendants' amended joint answer and cross-petition, all as more fully set forth in the journal entry of the Court of Common Pleas, filed November 27, 1953, counsel for the respective parties now submit this agreed statement of facts which may be filed as part of the original papers in the above-entitled cause.
"(1) Plaintiffs Heidtman, Schieferstein and Rafter are employees of the city of Shaker Heights, Ohio, employed in the classified service of said city as firemen in its fire department and constituted a committee of petitioners who as residents, registered voters and taxpayers of the city of Shaker Heights caused to be circulated an initiative petition seeking enactment by ordinance of the three-platoon system for firemen. Shaker Heights Fire Fighters Association, Local No. 516, International Association of Fire Fighters, American Federation of Labor, is an unincorporated association with which the individual plaintiffs are affiliated as members.
"(2) The defendant city of Shaker Heights is a municipal corporation and the individual defendants are the councilmen and officers of the city of Shaker Heights.
"(3) The Charter of the City of Shaker Heights contains the following provisions respecting initiative:"Article III.
"Section 1. Initiative. The electors of the city shall have power to propose any ordinance or resolution, except an ordinance for the appropriation of money or an ordinance making a tax levy, and to adopt or reject the same at the polls, such power being known as the initiative. An initiated ordinance or resolution may be submitted to the council by petition signed by at least five per cent (5 per cent) of the registered electors of the city. When so submitted, the council shall forthwith determine the sufficiency of the petition and if found sufficient, shall at once have the proposed ordinance or resolution read and referred to an appropriate committee which may be a committee of the whole. Provision shall be made for public hearings on the proposed ordinance or resolution not later than 30 days after the date on which such ordinance or resolution was submitted to the council. The council shall within 40 days after such ordinance or resolution is submitted, take final action thereon, either enacting or rejecting the proposed ordinance or resolution. If the council fails or refuses to pass such proposed ordinance or resolution or passes it in some form different from that set forth in the petition thereof, the committee of the petitioners may require that it be submitted to a vote of the electors either in its original form or in the amended form, by filing with the council an additional petition signed by at least two per cent (2 per cent) of registered electors of the city, and if said additional petition is signed by at least five per cent (5 per cent) of such registered electors, the date of the election may be fixed therein, not less than 60 days from the time of filing such additional petition. Such additional petition shall be filed within 10 days after the final action on such ordinance or resolution by the council. The council shall thereupon provide for submitting such ordinance or resolution to the vote of the electors at the date so fixed, or at the next general election occurring more than 60 days from the filing of such additional petition, if no date be so fixed therein.
"* * *
"Section 3. Petitions. An initiative or referendum petition may be circulated in separate parts; but each part shall contain a full and correct copy of the title and text of the proposed or referred ordinance or resolution, and the separate parts shall be bound together and presented as one instrument. Each signer shall be a registered elector of this city and shall sign his name in ink or indelible pencil and shall place on the petition his name, his place of residence by street and number, and the date of signing the petition. The form of affidavit provided for nominating petitions by general law, and the other requirements of general law regulating nominating, initiative and referendum petitions shall apply in the case of initiative and referendum in this city.
"(4) Plaintiffs Heidtman, Schieferstein and Rafter, constituting the committee of petitioners did on January 17, 1953, file with Thomas E. Cook, Director of the Finance Department and city Auditor of said city of Shaker Heights, a duly verified copy of the title and text of a proposed ordinance, a true copy of which was attached to the original petition on file in this cause, and thereafter an initiative petition was distributed and circulated as parts thereof by firemen, members of the plaintiff association, all employees in the classified service of the Fire Department of the City of Shaker Heights, Ohio.
"(5) On January 26, 1953, plaintiffs Heidtman, Schieferstein and Rafter, constituting the committee of petitioners, filed with Thomas E. Cook, an initiative petition in 50 parts, in accordance with the provisions of Article III, Sections 1 and 3 of the aforesaid Charter of the City of Shaker Heights, each part petition containing a full and correct copy of the title and text of the proposed ordinance. A true copy of the initiative petition as circulated was attached to the original petition on file in this cause.
"(6) Plaintiffs Heidtman, Schieferstein and Rafter on January 29, 1953, filed with Thomas E. Cook, in accordance with the provisions of Section 4227-9 General Code of Ohio (Revised Code 731.35) their sworn statement as circulators.
"(7) The Board of Elections of Cuyahoga County, state of Ohio, having had referred to it by defendants, the initiative petition to determine the sufficiency of the signatures thereon, reported thereafter to the defendants that the petitions contained 2,132 signatures which could be certified as being genuine signatures of registered electors of the city of Shaker Heights. As of February 2, 1953, there were 19,107 registered electors in the city of Shaker Heights and 2,132 valid signatures fulfilled the requirements respecting the number of valid signatures, in accordance with Article III, Section 1, of the Charter of the City of Shaker Heights.
"(8) On February 2, 1953, at a meeting of the Council of the City of Shaker Heights it was reported that, although there were sufficient valid signatures under the provisions of the charter, the ordinance was not properly proposed by the circulators thereof for the reason that the separate part petitions were submitted by members of the Fire Department of the City of Shaker Heights and that in doing so the circulators of the petition had violated Section 426-23 of the General Code of Ohio (Revised Code 143.41) which reads in part as follows: '* * * nor shall any officer or employee in the classified service of the state, the several counties, cities, and city school districts thereof, be an officer in any political organization or take part in politics other than to vote as he pleases and to express freely his political opinions,' and that in circulating the part petitions, members of the plaintiff association, including the individual plaintiffs had engaged in politics and that the petitions having been circulated in violation of law, it was recommended by Ralph W. Jones that the Council of the City of Shaker Heights had neither the duty nor the right to proceed further with the petition and the city council of Shaker Heights by an affirmative majority vote rejected the petition."
The Court of Common Pleas held that there is an actual controversy existing between plaintiffs Heidtman, Schieferstein and Rafter and the defendants; that the court has jurisdiction to render a declaratory judgment; that the action and conduct of such plaintiffs and 54 other firemen in the classified civil service of the defendant city constituted a taking part in politics in violation of law, particularly Section 486-23, General Code, but that neither the initiative petition nor the proposed ordinance was rendered illegal or void by the action and conduct of plaintiffs and other members of the fire department; and that the defendants could not refuse to recognize the validity of the initiative petition and improperly failed to process and continue proceedings on the petition, in violation of the city charter provisions.
Upon appeals to the Court of Appeals by both plaintiffs and defendants, that court, with one judge dissenting, reversed the judgment of the Court of Common Pleas so far as it held that the individual plaintiffs in the classified civil service of the city, in seeking enactment of an ordinance to establish the three-platoon system in the fire department, engaged in political activity in violation of Section 486-23, and affirmed the judgment so far as it held that neither the inititive petition nor the proposed ordinance was illegal or void, and that the council of the city had the duty to declare the initiative petition sufficient and to have the proposed ordinance read and referred to the appropriate committee provided for in section 1, article III of the charter of the city.
The Court of Appeals remanded the cause to the Court of Common Pleas to carry such judgment into effect.
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Smoot Riemer, for appellees.
Mr. Ralph W. Jones, director of law, for appellants.
From the foregoing statement of facts, it is apparent that the questions which confront us are, one, were the plaintiffs taking part in politics when they circulated the parts of the initiative petition? two, if they were taking part in politics, did that vitiate the petition which otherwise conformed fully to the laws of Ohio and the charter of Shaker Heights? and, three, was the determination by the council of the city that the parts of the petition, having been circulated in violation of law, final as to the rights of plaintiffs to have council proceed further with the petition in accordance with the steps provided in the city charter?
As we have said, the Court of Common Pleas determined that the plaintiffs were taking part in politics when they circulated the parts of the petition but that their actions did not invalidate it, and that the defendants improperly failed to process and continue the proceedings in accordance with the charter.
Defendants argue that the decision of the Common Pleas Court is erroneous for the reason that under the charter if the council rejects the proposed ordinance the committee of the petitioners will be compelled to file an additional petition signed by at least two per cent of the registered electors of the city in order to secure a vote upon the ordinance, and that this will mean that plaintiffs will be required to further breach the law in order to accomplish their purpose.
However, in view of the conclusion to which we have come, it is not necessary for us to consider the second question.
Were plaintiffs taking part in politics when they circulated the parts of the petition?
Section 486-23, General Code (Section 143.41, Revised Code), reads as follows:
"Political activity prohibited. No officer, employee, or subordinate in the classified service of the state, the several counties, cities and city school districts thereof, shall directly or indirectly, orally or by letter, solicit or receive, or be in any manner concerned in soliciting or receiving any assessment, subscription or contribution for any political party or for any candidate for public office; nor shall any person solicit directly or indirectly, orally or by letter, or be in any manner concerned in soliciting any such assessment, contribution or payment from any officer, employee or subordinate in the classified service of the state, the several counties, cities or city school districts thereof; nor shall any officer or employee in the classified service of the state, the several counties, cities, and city school districts thereof be an officer in any political organization or take part in politics other than to vote as he pleases and to express freely his political opinions."
It will be observed that in the foregoing statute the first thing that is prohibited is the soliciting of contributions for a political party or a candidate for public office. This seems to indicate that the statute has reference to partisan politics, whether Republican, Democratic, independent, or otherwise. The latter part of the statute prohibits one in the classified service from being an officer in a political organization or taking part in politics, and the query is, is taking part in politics confined to partisan politics or is there a broader meaning so as to cover the activities of plaintiffs in the present case?
The word, "politics," has two different definitions. In Funk Wagnalls New Standard Dictionary (1952), the word, "politics," is defined as "1 — the branch of civics that treats of the principles of civil government and the conduct of state affairs; the administration of public affairs in the interest of peace, prosperity and safety of the state; statecraft; political science; in a wide sense embracing the science of government and civil polity; (2) political affairs in a party sense; the administration of public affairs or the conduct of political matters so as to carry elections and secure public office; party intrigues; political wirepulling; trickery."
The first definition above covers the activities of plaintiffs, but the second does not.
The statute does not define what it means by "politics" except that, since it refers to solicitations for political parties or for candidates for public office, and also to political organizations, it seems that the expression, "take part in politics," was intended to cover only the activities embraced in the second definition. Then, too, when we consider the purpose of the legislation, it seems to be concerned only with partisan politics.
It is a matter of common knowledge that before civil service legislation was enacted, police and fire departments were exclusively under "political" control. The party in power could hire or fire at will in those departments, without any particular regard to fitness or any other characteristic except the partisan political activity and services of those who were to make up the personnel of the departments. Because such a system was deemed to be a great evil and prevented the building up of police and fire departments based upon fitness, security of tenure of position, and freedom from political control, civil service legislation was passed not only to insure such latter objectives but also to prevent those in classified civil service employment from being in any way obligated to political parties or civic officers for civil service positions, or from having the power to ingratiate themselves with the parties or elected officials by political activity.
Where legislation is silent as to the meaning of a word contained therein, and that word has both a wide and a restricted meaning, courts, in interpreting such legislation, must give such word a meaning consistent with other provisions of the legislation and of the objective to be achieved thereby. Under such logic, the word, "politics," as used in Section 486-23 must be defined as politics in its narrower partisan sense, and, therefore, the activities of plaintiffs in circulating the parts of the initiative petition did not constitute taking part in politics as that term is used in the statute.
It follows that there is now on file with the city council of Shaker Heights an entirely proper and legal petition for the initiation of an ordinance.
Defendants' counsel admitted in open court that, if the petition had been circulated by citizens not in the service of the city, the council would unquestionably have had the proposed ordinance read and referred to an appropriate committee and further processed in conformance with section 1, article III of the city charter.
The remaining question before us is whether the action of the city council in rejecting the petition is final.
Defendants maintain that the case of State, ex rel. Gongwer, v. Graves, Secy. of State, 90 Ohio St. 311, 107 N.E. 1018, is dispositive of that question. The third paragraph of the syllabus in that case reads as follows:
"The Secretary of State, when acting as state supervisor of elections, has the authority to hear and determine the sufficiency and validity of all petitions filed with him under the provisions of Section 1 c of Article II of the Constitution of this state, and his decision thereon is final, unless such decision has been fraudulently or corruptly made or procured, or unless he has been guilty of an abuse of discretion."
That paragraph of the syllabus must be read in connection with the facts of the case in which it was pronounced.
The circulators of the parts of the petition with which the Gongwer case was concerned were guilty of such a systematic course of fraud and forgery in procuring and writing names thereon and of wilfully and intentionally swearing to false affidavits attached thereto, and genuine names were proffered so shortly before the date of the next general election, that the question of their correctness could not be heard and determined in time to submit the question with which the petition was concerned to the electors of the state at such election, and, therefore, the court was powerless to afford the relator relief, even though the Secretary of State had abused his discretion in rejecting the additional names.
In the present case, where it is conceded that the petition is in every way sufficient to conform to the law and was rejected only because of what we decide was an error upon the part of the council as to the law, it would seem a matter of grave injustice if plaintiffs, through no fault of their own, were precluded from their rights under the law and charter of the city.
It is true that in the absence of fraud or gross abuse of discretion, ordinarily a determination by a legislative authority of a municipality as to the sufficiency of signatures on a petition is conclusive. State, ex rel. Kittel, a Taxpayer, v. Bigelow et al., Council, 138 Ohio St. 497, 37 N.E.2d 41. However, in the present case there is no difference of opinion as to the absolute correctness of the petition filed by plaintiffs, and it would seem, therefore, that it would be at least a technical abuse of discretion if the city council now refused to further process the petition, an abuse of discretion in no way reprehensible or involving wrong motives.
For the reasons stated, the judgment of the Court of Appeals must be, and it hereby is, affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and BELL, JJ., concur.