State ex rel. Hunter v. Erickson

• Citation: 12 Ohio St.2d 116,233 N.E.2d 129
• Decision Date: 27 December 1967
• Docket Number: No. 41003,41003
• Parties: , 41 O.O.2d 417 The STATE ex rel. HUNTER, Appellant, v. ERICKSON, Mayor et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 116

12 Ohio St.2d 116

233 N.E.2d 129, 41 O.O.2d 417

The STATE ex rel. HUNTER, Appellant, v. ERICKSON, Mayor et al., Appellees.

No. 41003.

Supreme Court of Ohio.

Dec. 27, 1967.

Syllabus by the Court

1. The power given to municipalities by Section 3 of Article XVIII to adopt and enforce local police regulations includes the power by such regulations to prohibit (Paragraph two of the syllabus of Village of West Jefferson v. Robinson, 1 Ohio St.2d 113, 205 N.E.2d 382, approved and followed.)

2. The charter of a municipal corporation may lawfully be amended to provide that any ordinance, which regulates the use, sale, advertisement, transfer, listing, assignment, lease, sublease or financing of real property on the basis of race, color, religion, national origin or ancestry, must first be approved by the electors of such municipality, and that any such ordinance in effect at that time of adoption of such a charter amendment shall cease to be effective until approved by such electors even though such voter approval is not required with respect to other kinds of ordinances.

This action in mandamus was instituted in the Court of Appeals for Summit County on February 3, 1965. Relator alleges that she served upon respondents, the mayor and members of the Akron Commission on Equal Opportunity in Housing, 'a copy of an affidavit, alleging * * * that in her efforts to locate desirable housing, relator was discriminated against because of her race, color, and ancestry,' and that the commissioners 'declined to process or handle' her complaint.

An Akron ordinance, passed and amended in July 1964, prohibits such discrimination, and provides in Section 6 thereof that 'a complaint charging a violation of this ordinance may be made * * * by an aggrieved individual,' and that 'the commission shall make a prompt and full investigation of each complaint.'

After providing for an answer to and a hearing on such a complaint, Section 6 of that ordinance provides further:

'(e) If upon all the evidence presented, the commission finds that the respondent has not engaged in any unlawful housing practice, it shall state its findings of fact, dismiss the complaint. If upon all the evidence presented the commission finds that respondent has engaged or is engaging in an unlawful housing practice, it shall state its findings of fact and shall issue such order as the facts warrant.

'(f) In the event the respondent fails to comply with any order issued by the commission, it shall certify the case and the entire record of its proceedings to the city Director of Law for appropriate action to secure enforcement of the commission's order.'

The Court of Appeals sustained the demurrer of respondents and denied the writ.

In so holding, the Court of Appeals followed that part of the decision of this court in Porter v. City of Oberlin (1965), 1 Ohio St.2d 143, 205 N.E.2d 363, which was based upon Judge Guernsey's concurring opinion and which had held invalid (by a vote of 4 to 3) provisions similar to those in Section 6 of the Akron ordinance. However, because one of the members of this court, who had agreed with that part of the decision in Porter v. City of Oberlin, supra, concluded that the respondents had no standing to question the validity of Section 6 of the Akron ordinance, this court by a vote of four to three reversed the judgment of the Court of Appeals. See State ex rel. Hunter v. Erickson, 6 Ohio St.2d 130, 216 N.E.2d 371.

On remand to that court, respondents filed an answer alleging that the voters of Akron had, in November 1964, adopted Section 137 as an amendment to the charter of Akron. That section reads 'Any ordinance enacted by the council of the city of Akron which regulates the use, sale, advertisement, transfer, listing assignment, lease, sublease or financing of real property of any kind or of any interest therein on the basis of race, color, religion, national origin or ancestry must first be approved by a majority of the electors voting on the question at a regular or general election before said ordinance shall be effective. Any such ordinance in effect at the time of the adoption of this section shall cease to be effective until approved by the electors as provided herein.'

Thereafter, relator filed a reply, questioning the validity of that charter amendment, and the cause was submitted on the pleadings and stipulations.

The Court of Appeals held that the hereinbefore referred to ordinance ceased to be effective on adoption of the foregoing amendment to the Akron charter, and therefore its judgment denied relator a writ of mandamus.

The cause is before this court on appeal from that judgment.

Norman Purnell and Bernard R. Roetzel, Akron, for appellant.

William R. Baird, Director of Law, Columbus, and Alvin C. Vinopal, Akron, for appellees.

TAFT, Chief Justice.

It is first contended that the ordinance involved in the instant case is not, within the meaning of Section 137 of the Akron charter, one 'which regulates,' because it prohibits certain acts, including the discrimination against relator that is alleged in the petition. However, as stated in paragraph two of the syllabus of Village of West Jefferson v. Robinson (1965), 1 Ohio St.2d 113, 205 N.E.2d 382: 'The power given to municipalities by Section 3 of Article XVIII to adopt and enforce local police regulations includes the power by such regulations...