City of Cleveland ex rel. Neelon v. Locher
| Decision Date | 10 February 1971 |
| Docket Number | No. 69-590,69-590 |
| Parties | , 54 O.O.2d 189 CITY OF CLEVELAND, ex rel. NEELON, Appellant, v. LOCHER et al., Appellees. * |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. Where a constitution or a city charter imposes a mandatory duty upon a legislative body to enact legislation to give life to a particular provision of such constitution or charter, a court may compel the legislative body to act, but it can not direct the course of action.
2. Where a city charter provides that the city council shall by ordinance provide for the enforcement or execution of a particular charter provision, a mandatory duty is placed upon the council to comply with the terms of the charter, and mandamus will lie to compel the council to act.
This is an action in mandamus which originated in the Court of Appeals. The Court of Appeals denied the writ and the cause is now before this court on an appeal as a matter of right.
In this action relator seeks to compel respondents, the mayor, safety director and council of the city of Cleveland, to comply with a provision of the city charter that city employees shall have a work week which shall not exceed 48 hours.
The applicable charter provision, Section 196 of the Cleveland City Charter, reads as follows:
Since that charter provision is not sele-executing, relator is basically seeking to compel the city council to enact ordinances for the enforcement of the maximum 8 hour day and the maximum 48-hour work week provision of the charter.
It is stipulated by the parties that firemen work fifty-six hours per week.
Thomas J. Friel, Cleveland and John G. Gill, for appellant.
Clarence J. James, Jr., director of law, Robert S. Wilson, Jr., and Lloyd B. Silverman, Cleveland Heights, for appellees.
The basic question raised by this case is as follows:
Where a plain and unmistakably clear provision in a city charter is not self-executing, but is followed by a provision that council shall, by ordinance, provide for the enforcement of such provision, does mandamus lie to compel the council to enact such an ordinance?
It should be pointed out that city firemen are city employees and have a direct interest in this matter. It must be further noted that the appointment of such municipal employees is a matter of local self-government. State ex rel. Canada v. Phillips (1958), 168 Ohio St. 191, 151 N.E.2d 722.
It is argued that firemen's hours are controlled by R.C. 4115.02 (formerly G.C. 17-1a) which was held valid in State ex rel. Strain v. Houston (1941), 138 Ohio St. 203, 34 N.E.2d 219. It is not necessary in the present case to consider how such decision may have been affected by our subsequent decision in State ex rel. Lynch v. Cleveland (1956), 164 Ohio St. 437, 132 N.E.2d 118; State ex rel. Canada v. Phillips (1958), 168 Ohio St. 191, 151 N.E.2d 722; or Village of West Jefferson v. Robinson (1965), 1 Ohio St.2d 113, 205 N.E.2d 382; or the applicability of such section in relation to charter cites.
It is also unnecessary to consider whether a state law may be enacted under Section 34, Article II of the Ohio Constitution, which would establish the actual working hours of firemen.
R.C. 4115.02 does not attempt to establish the actual working hours of firemen as such. Such section merely establishes the maximum number of hours that a fireman may be compelled to work. It does not, by its own terms, compel that the hours set forth therein be worked, nor does it prohibit a schedule of work for a lesser number of hours.
The charter provision with which we are presently concerned provides for a lesser number of hours for city employees and does not except from its terms firemen, and, thus, it does not conflict with the provisions of R.C. 4115.02.
This brings us to a consideration of whether this court will issue a writ of mandamus to compel a city council to enact legislation.
The extraordinary remedy of mandamus will lie to compel the performance of a duty specifically enjoined by law. State ex rel. Brophy v. Crawford (1934), 127 Ohio St. 580, 190 N.E. 221; State ex rel. Selected Properties v. Gottfried (1955), 163 Ohio St. 469, 127 N.E.2d 371. While it does not lie to control discretion, it does lie to compel the exercise of discretion. State ex rel. Brophy v. Crawford, supra; State ex rel. Masters v. Beamer (1923), 109 Ohio St. 133, 141 N.E. 851.
The municipal charter is basically the constitution of the municipality. Here, we have a charter provision which specifically directs that council shall enact appropriate legislation to effectuate the purpose of the charter provision. It is a clear legal mandate which places an affirmative duty on...
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