Dubyak v. Kovach

• Decision Date: 04 November 1955
• Docket Number: No. 34386,34386
• Citation: 164 Ohio St. 247,129 N.E.2d 809
• Parties: , 58 O.O. 1 DUBYAK, Jr., Appellee, v. KOVACH, Mayor, et al., Appellants.
• Court: Ohio Supreme Court

Page 247

164 Ohio St. 247

129 N.E.2d 809, 58 O.O. 1

DUBYAK, Jr., Appellee, v. KOVACH, Mayor, et al., Appellants.

No. 34386.

Supreme Court of Ohio.

Nov. 4, 1955.

Syllabus by the Court

1. Where a municipality has not adopted a charter providing a method of initiative and referendum of its own, the sole authorization for initiative and referendum as to such municipality is found in Section 1f, Article II of the Constitution of Ohio.

2. Such constitutional provision is not self-executing, and the initiative and referendum power of municipalities without charter provisions for the exercise of such power is only such as is provided for by the General Assembly.

3. Section 731.29, Revised Code, provides the sole method by which a referendum petition may be filed in a municipality without its own initiative and referendum provisions.

4. Section 731.29, requires that a referendum petition be filed upon any ordinance or any measure passed by a city council, within 30 days from the presentation of such ordinance or other measure to the mayor of the city and makes no provision for a later filing, even though it becomes impracticable to file the petition within the prescribed time; any hardship resulting from such a situation is a matter for legislative and not judicial action.

Paul R. Van Such, Youngstown, for appellants.

Jesse H. Leighninger, Youngstown, for appellee.

The facts in the present case are stipulated.

Appellee, John Dubyak, Jr., hereinafter designated plaintiff, has been for 16 years and is now a member of the police department of the city of Campbell and for more than 31 months has been a sergeant therein.

Appellants, Michael J. Kovach, John V. DeMart, John Putko and William Glass, hereinafter designated defendants, are, respectively, the Major, Director of Public Service and Safety, Chief of Police, and Auditor of the City of Compbell.

On September 16, 1954, the council of the city of Campbell, by ordinance, abolished the position of sergeant in the police department. The abolition ordinance was filed with defendant mayor on September 18, 1954. The mayor vetoed the ordinance on September 24, 1954, and returned it to council with his objections and without his approval.

In a special meeting held on October 18, 1954, the council reconsidered the ordinance and approved it by vote of two-thirds of the members.

A referendum petition containing more than the number of names required by Section 731.29, Revised Code, was filed with defendant auditor on November 12, 1954, which petition purported to require and order such ordinance to be submitted to the electors of the city of Campbell for their approval or rejection at the next general election to be held therein.

After the filing of the referendum petition, the solicitor of the city of Campbell advised defendants, who in turn advised plaintiff, that such ordinance would become effective on November 18, 1954, and that plaintiff would be reduced in rank from sergeant to patrolman and his salary reduced $20 per month.

On November 17, 1954, plaintiff brought an action against defendants in the Court of Common Pleas of Mahoning County, praying for an order restraining defendants and each of them 'from considering the said city ordinance No. 54-2075 entitled, 'Abolishing the Position of Sergeant in the Police Department of the City of Campbell, Ohio,' as becoming effective as of November 18, 1954; from reducing the said appellee, John Dubyak, Jr., from his status as sergeant to that of patrolman on the police force of the city of Campbell, Ohio; from reducing his pay or in any wise interfering with the conduct of his duties as said sergeant of the police department of the city of Campbell, Ohio, and for such further orders as the court may deem in the premises equitable and just; and that, upon final hearing, the said restraining order shall be made permanent.'

The trial judge allowed a temporary restraining order but upon final hearing dissolved the same and dismissed plaintiff's petition.

Upon appeal on questions of law and fact, the Court of Appeals rendered judgment for the plaintiff.

The cause is before this court upon the allowance of a motion to certify the record.

STEWART, Judge.

All parties to this controversy agree that the sole question to be determined is, was the referendum petition filed with the city auditor within the time required by law?

Initiative and referendum procedures in Ohio are governed by Article II of the Constitution of the state, and, so far as they apply to state laws, the provisions in Article II are self-executing.

Certain laws, such as those providing for tax levies and appropriations for current expenses of the state government, and emergency laws necessary for the immediate preservation of the public peace, health, or safety go into immediate effect upon passage and are not subject to referendum.

With reference to the initiative and referendum power of municipalities, Section 1f, Article II of the Constitution, provides:

'The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law.'

This provision of the constitution is not self-executing, Shryock v. City of Zanesville, 92 Ohio St. 375, 383, 110 N.E. 937; City of Youngstown v. Craver, 127 Ohio St. 195, 203, 187 N.E. 715, and, therefore, where a municipality has not adopted its own system for the initiative and referendum, which under the home-rule provisions of the Constitution it may do, it is limited in the exercise of the initiative and referendum power to the provisions of the Revised Code. Cf. State ex rel. Huckestein v. Poulsen, 140 Or. 623, 15 P.2d 372; Whitson v. City of Kingfisher, 176 Okl. 145, 54 P.2d 616; and Seufert v. Stadelman, 178 Or. 646, 167 P.2d 936.

The provisions enacted by the General Assembly with reference to the initiative and referendum in municipal corporations are contained in Sections 731.28 to 731.41, inclusive, Revised Code, and where a municipality has not adopted its own charter containing an initiative and referendum provision for its ordinances and other legislative measures, as provided in Section 731.41, Revised Code, and since Section 1f, Article II of the Constitution of Ohio, is not self-executing, such municipality has no referendum power beyond that provided for by the General Assembly.

Section 731.29, Revised Code, provides in part as follows:

'Any ordinance or other measure passed by the legislative authority of a municipal corporation shall be subject to the referendum except as provided by section 731.30 of the Revised Code. [Section 731.30 exempts certain ordinances from the referendum, to wit, emergency ordinances and those providing for appropriations for current expenses of the municipal corporation and for certain street improvements.] No ordinance or other measure shall go into effect until thirty days after it is filed with the mayor of a city or passed by the legislative authority in a village, except as provided by such section.

'When a petition, signed by ten per cent of the number of electors who voted for governor at the next preceding general election for the office of governor in the municipal corporation, is filed with the city auditor or village clerk within thirty days after any ordinance or other measure is filed with the mayor or passed by the legislative authority of a village, ordering that such ordinance or measure be submitted to the electors of such municipal corporation for their approval or rejection, such auditor or clerk shall, after ten days, and not later than four p. m. of the ninetieth day before the day of the election, certify the petition to the board of elections. The board shall submit the...