Billington v. Cotner
| Decision Date | 24 February 1971 |
| Docket Number | 70-644 and 70-653,Nos. 70-654,s. 70-654 |
| Citation | 267 N.E.2d 410,25 Ohio St.2d 140 |
| Parties | , 54 O.O.2d 270 BILLINGTON, Appellee, v. COTNER, Clerk, et al., Appellees, City of Cleveland, Appellant. The STATE, ex rel. BRENKUS, v. BROWN, Secy. of State, et al. The STATE, ex rel. JAMES, et al., Appellants, v. COTNER, Clerk, et al., Appellees. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. The mayor of a charter municipality has no authority to veto an ordinance submitting a proposed amendment of the charter to the electors.
2. Pursuant to Sections 8 and 9 of Article XVIII of the Ohio Constitution, in order to submit a proposed amendment of the charter of a municipality to the electors at a special election, the legislative authority of the municipality must establish the date for the election.
3. In a municipality where the charter requires that an ordinance enacted by the city council must be authenticated and journalized, a journal entry which complies with such requirement may not be impeached or supplemented by parol evidence.
4. An ordinance enacted by the legislative authority of a municipality, which is authenticated and journalized, to submit a proposed charter amendment at a special election, which ordinance does not set forth the date for the election, does not effectively provide for such election, and parol evidence is not admissible to supply the missing date.
In each of these cases, a determination is sought as to the effectiveness of an ordinance submitting a proposed amendment to the charter of the city of Cleveland to the electors at a special election.
On October 27, 1969, Ordinance No. 1918-69, was first introduced in the City Council of Cleveland as an emergency ordinance. The ordinance reads, in part, as follows:
'An emergency ordinance authorizing submission to the electors of the City of Cleveland of a proposed amendment to the Charter of the City of Cleveland by amending Section 80 thereof, relating to the Board of Control.
'Whereas, this ordinance constitutes an amergency measure providing for the usual daily operation of a municipal department; now, therefore,
'Be it ordained by the Council of the City of Cleveland:
'Section 1. That this Council hereby authorizes the submission to the electors of the City of Cleveland at a special election to be held at the usual places of voting on ..... of a proposed amendment to Section 80 of the Charter of the City of Cleveland to read as follows:
'That the Charter of the City of Cleveland be amended by amending Section 80 thereof to read as herein set forth.
'This amendment, if approved by a majority of the electors voting thereon at a special election to be held on ..... shall take effect and be in force as of the date of the certificate to the Secretary of State by the Board of Elections as provided by law, and Section 80 of the present Charter shall thereby be repealed.
'* * * 'Section 2. That said proposed amendment shall be submitted by ballot to the electors of the City of Cleveland at a special election to be held at the usual places of voting on Tuesday ..... which is also the time of voting at the regular municipal election * * *.
'* * *
'Section 4. That this ordinance is hereby declared to be an emergency measure and, provided it receives the affirmative vote to two-thirds of all the members elected to Council, it shall take effect and be in force immediately upon its passage and approval by the Mayor; otherwise it shall take effect and be in force from and after the earliest period allowed by law.
'Referred to the Director of Law, Committee on Legislation.'
The effect of the proposed amendment would be to change the membership of the city's Board of Control by adding to the board two members of the City Council, and removing all city department directors except the Director of Law and the Director of Finance. 1
The ordinance, without the inclusion of a date for the special election, was enacted by City Council on July 29, 1970. This action appears in the Journal of City Council, as follows:
'SECOND READING EMERGENCY ORDINANCES PASSED
'By Mr. Prince.
'An emergency ordinance authorizing submission to the electors of the City of Cleveland of a proposed amendment to the Charter of the City of Cleveland by amending Section 80 thereof, relating to the Board of Control.
'Approved by the Director of Law, recommended by Committee on Legislation.
The ordinance was returned to City Council on August 6, 1970, together with a letter from the Mayor of the City of Cleveland, vetoing the ordinance.
On September 2, 1970, a motion to reconsider the ordinance was defeated in City Council by failure to receive the required number of 'year' votes. 2
Ordinance 1918-69, as enacted, leaving blank the spaces provided for the date of the election at which the amendment was to be submitted to the electors, was journalized with the authentication of the President of Council and the Clerk of Council. The ordinance in that form was published in the City Record of Cleveland.
On September 3, 1970, the clerk of Council forwarded a printed copy of the ordinance, with the date 'November 3, 1970' inserted in the spaces left blank in the ordinance as journalized and published in the City Record, to the Board of Elections of Cuyahoga County, with the request that it be placed on the ballot and be submitted to the electors of the city of Cleveland on November 3, 1970.
In attempting to determine whether to place the proposed amendment on the ballot for submission to the electors, the Board of Elections' vote resulted in a tie. In accordance with R. C. 3501.11, the Secretary of State cast the deciding vote placing the issue on the ballot.
The amendment to the Charter of the city of Cleveland went before, and was approved by, the voters on November 3, 1970.
Case No. 70-654 originated in the Court of Common Pleas having been commenced when, on September 26, 1970, Glenn E. Billington, a taxpayer, filed a complaint seeking to enjoin the Clerk of Council, Cadillac Press, a printing company, and the city from expending funds for, printing, and mailing, notices of the proposed amendment, and for such other and further relief as he may be entitled to in law or equity. After a hearing, the relief was denied by the Court of Common Pleas. At the hearing, testimony of the President of Council was admitted purportedly for the purpose of showing that the ordinance in question had been amended on the floor of council before its passage on July 29, 1970, to include the date 'November 3, 1970.' That judgment was affirmed by the Court of Appeals, and appellant's motion to certify the record is now pending before us.
On October 15, 1970, Milan C. Brenkus filed an action in this court (No. 70-644), praying for a writ of prohibition to prevent the preparation of ballots, the submission of the proposed amendments to the voters on November 3, 1970, the counting of votes on the amendment, the certifying of the results of the voting on the amendment as official and binding, and for such other and further orders in the premises as the nature of this case may require.
Case No. 70-653 is an action originating in the Court of Appeals wherein appellant, Clarence L. James, Jr., Director of Law of the city of Cleveland, and the city of Cleveland, sought a writ of prohibition forbidding the Clerk of Council and Board of Elections from both mailing the required notices of the special election, and placing the issue before the electors. The Court of Appeals denied the writ of prohibition because of the availability of an adequate remedy at law, i. e., a direct appeal in the Billington case (Case No. 70-654). Case No. 70-653, having originated in the Court of Appeals, is before this court on appeal as a matter of right.
It is noted that all three actions were commenced prior to the November 3, 1970, election.
Fred J. Ball, Cleveland, for appellant Glenn E. Billington in No. 70-654.
Michael A. Sweeney, Cleveland, for appellee Mercedes Cotner, Clerk of Council, in Nos. 70-653 and 70-654.
John T. Corrigan, Pros. Atty., and John L. Dowling, Cleveland, for appellee Bd. of Elections in Nos. 70-653 and 70-654.
Lucien Karlovee, Jr., for appellee Cadillac Press in Nos. 70-653 and 70-654.
Clarence L. James, Jr., Director of Law, John F. Dolan, William D. Moore and Jay L. Loeb, Cleveland, for appellants in Nos. 70-653 and 70-654.
Jones, Day, Cockley & Reavis and George J. Moscarino, Cleveland, for relator in No. 70-644.
Paul W. Brown, Atty. Gen., F. Richard Heath, Asst. Atty. Gen., John T. Corrigan, Pos. Atty., John L. Dowling, Cleveland, and Jeffrey L. Kocian, Asst. County Prosecutor, for respondents in No. 70-644.
Clarence L. James, Jr., Director of Law, John F. Dolan, William D. Moore and Jay L. Loeb, Cleveland, for appellants in No. 70-653.
What is the effect of the Mayor's veto of Ordinance No. 1918-69? Although this question was paramount in appellant Billington's contentions before the Court of Common Pleas, he does not raise that question in this court. Appellees, however, refer to it in brief and argument. In order to make our decision relevant to the entire controversy, we deal with that issue.
Section 9, Article XVIII of the Ohio Constitution, provides that an amendment to a charter of a municipality 'may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority theereof, and, upon petitions signed by ten per centum of the electors of the municipality setting forth any such proposed amendment, shall be submitted by such legislative authority.' The manifest object of this constitutional provision is to provide the procedure for the submission of a charter amendment to electors. The requirements are clear and complete, and are not to be added to or subtracted from.
Section 200 of the Charter of the city of...
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