Fuldauer v. City of Cleveland

• Decision Date: 13 December 1972
• Docket Number: No. 72-241,72-241
• Citation: 32 Ohio St.2d 114,290 N.E.2d 546,61 O.O. 2d 374
• Parties: , 61 O.O.2d 374 FULDAUER, Appellant, v. CITY OF CLEVELAND et al., Appellees.
• Court: Ohio Supreme Court

Page 114

32 Ohio St.2d 114

290 N.E.2d 546, 61 O.O.2d 374

FULDAUER, Appellant, v. CITY OF CLEVELAND et al., Appellees.

No. 72-241.

Supreme Court of Ohio.

Dec. 13, 1972.

Syllabus by the Court

1. Where a city charter provides that the council shall annually make a survey of policemen's and firemen's salaries in the largest cities of the state and shall by ordinance compensate first grade policemen and firemen at a rate three percent higher than the salary paid to any first grade policeman or fireman in the cities so surveyed, the electors have established the substantive policy and standards governing salaries of policemen and firemen and have directed the manner and method of the council's exercise of legislative power in the furtherance of such policy.

2. The electors of a municipal corporation, in the exercise of their power of local self-government, may by charter impose upon the council the obligation of ascertaining facts upon which a legislative policy established in the charter will be effectuated; and the fact that actions of a third party, whether governmental or private, are surveyed in the implementation of a legislative mandate to annually enact a salary ordinance does not constitute an unlawful delegation of legislative policy.

3. A public officer or employee holds his office as a matter of law and not of contract, nor has such officer or employee a vested interest or private right of property in his office or employment. (Paragraph one of the syllabus in State ex rel. Gordon v. Barthalow, 150 Ohio St. 499, 83 N.E.2d 393, approved and followed.)

4. In the absence of conflict with general law, Section 34, Article II of the Ohio Constitution, has no application to a wage formula established by municipal charter and carried out annually by ordinance of council.

This case was commenced in June 1968 in the Court of Common Pleas of Cuyahoga County as a taxpayer's action for a declaratory judgment and injunctive relief. The gravamen of the complaint was to set aside the action of the electors of the city of Cleveland who amended their city charter ^* on May 7, 1968, and established a formula by which the basic rates of compensation of the members of the fire department and of the members of the police department are to be computed annually.

The Common Pleas Court denied any relief to plaintiff and the Court of Appeals, 30 Ohio App.2d 237, 285 N.E.2d 80, affirmed the judgment of the Common Pleas Court.

The cause is before us pursuant to the allowance of appellant's motion to certify the record.

Motions to intervene have been filed in this court and granted to the Citizens League of Greater Cleveland and to James P. .neelon and Jack Gannon of the Firefighters Union of Cleveland.

Henry DuLaurence, Cleveland, for appellant.

Richard R. Hollington, Jr., director of law, Squire, Sanders & Dempsey, Daniel J. O'Loughlin and Thomas J. Friel, Cleveland, for appellees.

CORRIGAN, Justice.

The issues presented are cognate to the constitutionality of the two charter provisions before us.

As urged by appellant, they are divided into five propositions of law.

I.

It is first asserted that:

'The enactment of municipal charter provisions which permanently destroy the right of franchise or self-determination of a minority, either directly or through its legally elected representatives, and prohibits a voice in the enactment of legislation concerning vital governmental functions, necessary for the maintenance and continuance of its municipal government, destroys the basic constitutional rights of the citizens of self-rule and a republican form of government as provided in Article I, Section 1; Article II, Sections 1 and 10; Article V, Section 1 and Article XVIII, Sections 3 and 7 of the Ohio Constitution, and Section 4 of Article IV of the federal constitution.'

We disagree with this position in its entirety and hold that through the action of electors, in enacting by an overwhelming vote these two amendments to Cleveland's Municipal Charter, those citizens have established the substantive policy and standards governing policemen's and firemen's salaries and have instructed the council as to the manner and method of its exercise of legislative power in furtherance of such policy.

Section 7, 8 and 9 of Article XVIII of the Ohio Constitution provide authority for the citizens of a municipality to adopt and amend their municipal charter and they constitute the ultimate legislative authority therefor.

As this court stated in Cleveland ex rel. Neelon v. Locher (1971), 25 Ohio St.2d 49, 51, 266 N.E.2d 831, 833:

'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 the council to act.'

Section 24 of the charter, which has been in effect since 1931, clearly demonstrates the intent of the people of the city of Cleveland to retain to themselves, to the exclusion of the council, those matters specifically regulated in the charter, wherein it is provided:

'The legislative powers of the city, except as reserved to people by this charter, shall be vested in the council, each member of whom shall be elected from a separate ward. * * *' (Emphasis added.)

In the instant case, the power to change such a charter plan, even if denominated legislative in character, continues to lodge in the municipal corporation; to be changed however, not by the city council but by the city electorate, to whom that particular legislative power has been reserved.

It should be pointed out here that the feasibility or wisdom of these charter amendments is not a matter for our consideration. As we stated in State ex rel. Hackley v. Edmonds (1948), 150 Ohio St. 203, 217, 80 N.E.2d 769, 775:

'* * * But if Section 3 and Section 7 of Article XVIII of the Ohio Constitution are to have any meaning, and are not to be compeltely emasculated and eviscerated, we are constrained to hold that in matters of local concern the municipality has the right, in adopting its charter, to make provisions that may be silly and unwise. If they prove to be so, the remedy is in the hands of the people who have adopted the charter. A majority of them has the power to amend it.'

We reject appellant's contention that these amendments to the charter '* * * destroys the basic constitutional rights of the citizens of self-rule and a republican form of government * * *.'

Such charter provisions have no application to a republican form of government, as this court held in paragraph five of the syllabus in Hile v. Cleveland (1923), 107 Ohio St. 144, 141 N.E. 35, appeal dismissed, 266 U.S. 582, 45 S.Ct. 97, 69 L.Ed. 452, viz.:

'The adoption of the city manager plan of government, together with the Hare System of Proportional Representation, in a city charter, under the home rule amendment to the Ohio Constitution, is not a denial of the republican form of government, IV, of the federal Constitution. Adoption and does not contravene section 4, article of such a form of government raises a political question, and not a judicial question, and cannot be challenged in the courts.'

II.

As Proposition of Law No. 2, appellant avers that:

'Municipalities may not delegate legislative powers albeit to any other department of the city or to any other municipality or board, commission or other body not connected with, part of or outside of the control of such municipality whether such be by ordinance or charter.'

Appellant thus contends that charter amendment Sections 198-1 and 198-2 not only disenfranchise its citizens but constitute an unlawful delegation of power contrary to Sections 3 and 7 of Article XVIII of the Ohio Constitution.

We do not accept that interpretation. By these charter amendments the electors of Cleveland, in the exercise of their power of local self-government, have determined how the wages of their firemen and policemen shall be established and have provided that the city council must adopt the rates established by the wage formula fixed by the procedure described in such sections. These electors, in the two charter amendments, have imposed upon council the obligation of ascertaining certain facts upon which the legislative policy established in the charter will be effectuated.

As cogently reasoned in appellees' brief, the electors of Cleveland in enacting these charter amendments also took care to provide for self-limiting restraints and to eliminate any notion that they were delegating any local sovereignty to other communities in Ohio. The sections clearly provide that an ordinance fixing compensation shall be enacted only once each year, and not until the next calendar year are Cleveland policemen and firemen eligible for further wage considerations. Nothing automatically happens to Cleveland wage rates simply because another community enacts a wage rate for its safety forces different from that in Cleveland. Ordinances fixing wages in Cleveland and appropriations in furtherance thereof continue to be enacted and authorized as before, not by the electors or legislative bodies of other Ohio cities, but on an annual basis by the council of Cleveland. Further, the wages may go up or down, depending on the results of the annual survey.

An almost analogous question was before the Supreme Court of California in Kugler v. Yocum (1968), 69 Cal.2d 371, 71 Cal.Rptr. 687, 445 P.2d 303. That court approved an initiated ordiance of the city of Alhambra which, in effect, provides that on January 1st of each year the city council shall establish the salaries of Alhambra's firemen at an amount not less than the average salaries for comparable grades or ranks paid to members of the fire departments of the City of Los Angeles and the County of Los Angeles. The ordinance was challenged on the principal ground that...