Fitzgerald v. Cleveland
| Decision Date | 16 August 1913 |
| Docket Number | 14308 |
| Parties | Fitzgerald Et Al., Bd. Of Deputy State Supervisors v. City Of Cleveland. |
| Court | Ohio Supreme Court |
Section 7, Article XVIII of amended Constitution - Authorizes municipalities to frame charter for government - Departmental powers limited by Section 3 of Article XVIII - Officers shall be appointed or elected - Nominations for elective offices may be by prescribed petition - Elections shall be conducted by general laws - Constitutional laws - Self-government of municipalities.
1. The provisions of Section 7, Article xvIIi of the Constitution as amended in September, 1912, authorize any city or village to frame and adopt or amend a charter for its government and it may. prescribe therein the form of the government and define the powers and duties of the different departments, provided they do not exceed the powers granted in Section 3, Article XVIII, nor disregard the limitations imposed in that article or other provisions of the constitution.
2. Under Sections 3 and 7, Article XVIII, as so amended municipalities are authorized to determine what officers shall administer their government, which shall be appointed and which elected, that the nomination of elective officers shall be made by petition by a method prescribed, and elections shall be conducted by the election authorities prescribed by general laws.
The defendant in error filed its petition in the common pleas of Cuyahoga against the plaintiffs in error, the Board of Deputy State Supervisors and Inspectors of Elections for Cuyahoga County, seeking to enjoin them from holding a primary election for the nomination of candidates for the elective municipal offices of the city of Cleveland.
The petition alleges that the defendants below constitute such board of state supervisors and inspectors and have charge of all elections and primaries held in said city of Cleveland that by virtue of Sections 3 and 7 of Article XVIII of the Constitution of Ohio, which became effective November 15 1912, the council of said city passed an ordinance on the 25th of November, 1912, which was signed by the mayor on the 27th of said month, for the submission to the electors of said city of the question: "Shall a commission be chosen to frame a charter;" that at a special election held on the 4th of February, 1913, provided for by said ordinance, a majority of said electors voted on said question in the affirmative; that thereafter a commission chosen by the people prepared a charter for the said city, which was adopted by the electors on July 1, 1913, said charter being thereafter duly certified to the sec- retary of state; that by the terms of the charter it became effective for the nominating and electing of officers, and exercising the powers of the city as provided therein, from the time of its approval by the electors; that for the purpose of establishing departments, divisions and offices and distributing the functions thereof, and for other purposes, it shall take effect January 1, 1914; that since said 4th day of July, 1913, the date of said certificate, the provisions relating to the nomination and election of officers constitute the organic law of the city of Cleveland and supersede all provisions of general law enacted by the general assembly which conflict therewith; that the offices of city solicitor, City auditor and city treasurer, which are by statute elective, are made appointive by said charter, and that the charter provides for the election of a mayor at large and of councilmen from wards; that it provides that all ballots used in elections under the authority of the charter shall be without party mark or designation, and that the mode of nomination of all elective officers provided for by the charter shall be by petition; that full provisions are made in the charter for the nomination and election of officers for the city, for the signatures to the petition, the form of the petition, the filing of the same, the acceptance by candidates, the manner of voting, for the rotation of the names of candidates on the ballot, for space to write in names and for counting the ballots and determining results; that Section 16 of the charter provides that all elections shall be conducted and the results canvassed and announced by the election authorities prescribed by general law, and, except as otherwise provided therein, general laws shall control in all such elections.
The petition further alleges that notwithstanding the provisions of said charter the defendants below will accept nomination papers and make all provisions for holding a primary election for the nomination of candidates for elective municipal offices of said city which are provided for by the charter, on the first Tuesday after the first Monday in September, and a restraining order is asked against defendants to prevent them from holding such primary election.
It is further alleged that the holding of said primary requires the expenditure of public money.
To this petition the defendants below demurred on the ground that said petition does not state facts sufficient to constitute a cause of action.
The demurrer was overruled by the common pleas court and plaintiffs in error not desiring to plead further, final judgment was entered in favor of the defendant in error in accordance with the prayer of the petition.
The modifications which the charter makes in the election laws of the state are as follows: It abolishes nomination by direct primary and provides for the abolition of party mark or emblem on the ballot by which city officials are elected; also, instead of the names of candidates being arranged on the ballot in party columns, they are rotated on the ballot by the same method provided by state law for the rotation of names of candidates for judicial offices, boards of education and quadrennial appraisers; also, it provides for a system of preferential voting. This proceeding is brought to reverse the judgment of the court below.
Mr. Timothy S. Hogan, attorney general; Mr. Robert M. Morgan; Mr. N.J. Weisend; Mr. Frank Davis, Jr., and Mr. Clarence D. Laylin, for plaintiffs in error.
Mr. E. K. Wilcox, city solicitor, and Mr John N. Stockwell, assistant city solicitor, for defendant in error.
The question whether the city of cleveland was empowered to provide in its charter a method of nominating candidates for elective offices, which is different from the method prescribed by the general assembly, involves the construction of Article XVIII and Section 7, Article V of the Constitution, both of which became effective November 15, 1912.
Pertinent parts of Article XVIII are as follows:
In State, ex rel. Toledo, v. Lynch, ante, 71, it was held, that the provisions of Article XVIII continued in force the general laws for the government of cities and villages until the 15th of November, 1912, and thereafter, until changed in one of three modes: First, by the enact- ment of general laws for their amendment; second, by additional laws to be ratified by the electors of the municipality to be affected thereby; third, by the adoption of a charter by the electors of a municipality in the mode pointed out in the article. In that case it was held that no municipality was entitled to exercise the powers referred to in Section 3 until it had adopted a charter.
The people of the city of Cleveland having pursued the third mode pointed out, the question presented here is, whether or not it was within their power to include in the charter adopted a method of nominating candidates such as above referred to.
It is contended by plaintiffs in error that the office of a charter, referred to in Section 7, is merely to provide a form of government and not to prescribe any of its functions. When construed in connection with Section 3 and the rest of the provisions of Article XVIII, and in the light of the manifest objects sought to be attained by their adoption, we think there is no warrant for giving this limited meaning to the language.
McQuillin, in his work on municipal corporations, says at Section 320: "The word `charter,' when used in connection with a municipal corporation, consists of a creative act and all laws in force relating to the corporation, whether in defining its powers or regulating their mode of exercise." Judge Dillon in his work on the same subject at Section 63 says: "The power and authority conferred by the constitution upon cities to frame their own charters extend to all subjects and matters properly belonging to the government of municipalities, and this necessarily includes and subject appropriate to the orderly conduct of municipal affairs"
The same proposition is declared and enforced in Scliigley v. City of Waseca, 106 Minn. 94.
Under Section 7 the powers granted in Section 3 may be vitalized and made active. But, as in preparing a plan to accomplish any undertaking, the thing to be done, the purpose and scope of the plan, must be understood and defined before any adequate conception can be had of the instrumentalities necessary to carry out and accomplish the purpose.
The rational conclusion from our decision that Section 3 is not self-executing, but awaits the adoption of a charter, is that the charter should outline and define the scope of the plan referred to.
Under ...
To continue reading
Request your trial
-
Fitzgerald v. City of Cleveland
...88 Ohio St. 338103 N.E. 512FITZGERALD et al., Board of Deputy State Sup'rs, etc.,v.CITY OF CLEVELAND.Supreme Court of Ohio.Aug. 26, Error to Court of Common Pleas, Cuyahoga County. Action by the City of Cleveland against one Fitzgerald and others, Board of Deputy State Supervisors, etc., to......