Blacker v. Wiethe, 68-165

• Decision Date: 11 December 1968
• Docket Number: No. 68-165,68-165
• Citation: 16 Ohio St.2d 65,242 N.E.2d 655,45 O.O.2d 367
• Parties: , 45 O.O.2d 367 BLACKER et al., Appellees, v. WIETHE et al., Board of Elections of Hamilton County, Appellants.
• Court: Ohio Supreme Court

Page 65

16 Ohio St.2d 65

242 N.E.2d 655, 45 O.O.2d 367

BLACKER et al., Appellees, v. WIETHE et al., Board of Elections of Hamilton County, Appellants.

No. 68-165.

Supreme Court of Ohio.

Decided Dec. 11, 1968.

Syllabus by the Court

1. Section 1 of Article X of the Ohio Constitution authorizes the General Assembly by general law to delegate to boards of county commissioners limited legislative power relative to the government of counties and, to the extent that it does, it is not unconstitutional on its face.

2. In providing for the government of counties, the General Assembly may, under Section 1 of Article X of the Ohio Constitution, authorize the board of county commissioners to fix the salary of a county officer, and, in a case where it does so and the board of county commissioners has fixed such salary, such case is one 'provided for in' the Ohio Constitution within the meaning of those words as used in Section 20 of Article II thereof.

3. Sections 3 and 4 of Article X of the Ohio Constitution do not constitute a limitation on the power of the General Assembly under Section 1 of that article by general laws to provide 'for the * * * government of counties' and for 'alternative forms of county government' for submission to the electors of a county and approval by a majority of those voting thereon.

This action originated in the Common Pleas Court of Hamilton County with the filing of a petition on October 30, 1967, seeking an injunction against submission to the voters of that county at the November 7, 1967, election of the question of adopting the alternative form of county government, as described in Chapter 302, Revised Code, and known as 'the appointive county executive plan.' See Section 302.02, Revised Code.

On November 1, 1967, the Common Pleas Court rendered a judgment, permanently enjoining the submission of that question.

On November 3, 1967, the Court of Appeals suspended the injunction of the Common Pleas Court against submission of that question to the voters, but enjoined the counting of the ballots and ordered that they should be impounded until this cause was finally determined.

Thereafter, on February 27, 1968, the Court of Appeals rendered a judgment affirming the judgment of the Common Pleas Court and continuing its order against the counting and providing for the impounding of the ballots.

The cause is now before this court upon appeal from the judgment of the Court of Appeals, both as an appeal involving substantial constitutional questions and pursuant to the allowance of a motion to certify the record.

John A. Lloyd, Jr., and David N. Gorman, Cincinnati, for appellees.

Melvin G. Rueger, Pros. Atty., and John A. Gehrig, Cincinnati, for appellants.

TAFT, Chief Justice.

In support of the judgment of the Court of Appeals, it is contended that Section 302.13(M), Revised Code, represents a standardless delegation of legislative power, in violation of Section 1 of Article II of the Ohio Constitution.

Section 302.13, Revised Code, reads, so far as pertinent:

'Pursuant to and in conformity with the constitution of Ohio and without limiting the powers and duties otherwise vested in the board of county commissioners, the board may:

'(M) By ordinance or resolution make any rule, or act in any matter not specifically prohibited by general law; provided that, in the case of conflict between the exercise of powers pursuant to division (M) of this section and the exercise of powers by a municipality or township, the exercise of power by the municipality or township shall prevail, and further provided that the board may levy only taxes authorized by general law.'

Section 1 of Article II of the Ohio Constitution reads, so far as pertinent:

'The legislative power of the state shall be vested in a general assembly * * *.'

However, the Ohio Constitution also provides in Section 1 of Article X, so far as pertinent:

'The general assembly shall provide by general law for the organization and government of counties, and may provide by general law alternative forms of county government. No alternative form shall become operative in any county until submitted to the electors thereof and approved by a majority of those voting thereon under regulations provided by law. Municipalities and townships shall have authority, with the consent of the county, to transfer to the county any of their powers or to revoke the transfer of any such power, under regulations provided by general law * * *.'

We agree that Section 302.13(M), Revised Code, purports to grant legislative power to a board of county commissioners acting under the alternative form of government proposed in the instant case.

We do not agree with the argument that it purports to grant limitless legislative power. As indicated by the statutory language, this power may be exercised only 'pursuant to and in conformity with the Constitution of Ohio.' As indicated by the first sentence of Section 1 of Article X, the legislative power that can be granted is only such as relates to government of the county; and, as indicated by the third sentence of that section, such county legislative power may not conflict with any legislative power of a municipality or township not transferred by such municipality or township to the county. Also, the legislative power to levy taxes is specifically limited by the words of Section 302.13(M) to what is 'authorized by general law.'

Section 1 of Article X gives the General Assembly the authority to provide not only 'forms of county government' but in doing so to provide for the 'government of counties.' One of the powers of government is the power to legislate. Also, under the third sentence of Section 1 of Article X a municipality can transfer to a county 'any' of its 'powers.' Certainly, a municipality has legislative power. (See Sections 3 and 7 of Article XVIII of the Ohio Constitution.) Thus, we conclude that Section 1 of Article X authorizes the General Assembly by general law to...