Fuldauer v. City of Cleveland

• Decision Date: 07 February 1972
• Citation: 285 N.E.2d 80,30 Ohio App.2d 237
• Parties: , 59 O.O.2d 389 FULDAUER, Appellant, v. CITY OF CLEVELAND et al., Appellees.
• Court: Ohio Court of Appeals

Page 237

30 Ohio App.2d 237

285 N.E.2d 80, 59 O.O.2d 389

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

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 7, 1972.

Syllabus by the Court

1. The charter of a city is the 'organic law' by which the people of a municipality are to be governed. So long as the organic law of the city is amended limiting the exercise of the legislative power of the local city council and the initiative power of the city's electorate, it is constitutional.

2. While it is unconstitutional for the city to delegate its power to make a law, it can make a law to delegate a power to determine some fact upon which that law shall depend. The citizens of Cleveland, through their charter, have chosen the way in which their police and firemen will be paid. The fact is, having determined the fundamental issue, they delegated nothing.

Henry DuLaurence, Cleveland, for appellant.

Clarence L. James, Cleveland, Director of Law, and Squire, Sanders & Dempsey, Cleveland, for appellee City of Cleveland.

Thomas J. Friel, Cleveland, for intervening appellee.

MANOS, Judge.

Sections 198-1 and 198-2 of the charter of the city of Cleveland, hereinafter referred to as the 'charter amendments' or 'amendments,' were adopted by the people of Cleveland on May 7, 1968. Section 198-1, dealing with the annual rate of pay for members of the fire department, was placed on the ballot by initiative petition while Section 198-2, dealing with the annual rate of pay for the police department, was submitted to the electorate by city council's enactment of ordinance No. 547-68.

In substance the two amendments are identical. They provide that the council of the city of Cleveland shall once a year between January 1 and February 15 survey the base rates then paid first grade firemen and policemen in other Ohio cities of 50,000 population or more, and shall no later than June 1 provide compensation by ordinance for police and firemen of first grade at a rate three percent (3%) higher than the highest rate paid of first grade in any city of Ohio with a population of 50,000 or more. In addition such pay ordinance shall include a sixteen percent (16%) differential between the ranks in the police and fire departments.

This case is on appeal from the Court of Common Pleas' denial of plaintiff's request for a declaratory judgment and injunctive relief in which the validity of the charter amendments was sustained.

The thrust of this appeal centers on the issue of whether or not the charter amendments calling for the police and fire departments of the city of Cleveland to be paid three percent (3%) higher than any other municipality in the state of Ohio of 50,000 population or more is an unconstitutional delegation of legislative authority. The wisdom of the amendments is not involved in determining the legal issues.

We find nothing in the Ohio Constitution which establishes the unconstitutionality of the charter amendments. The charter of a city is the 'organic law' by which the people of a municipality are to be governed. So long as the organic law of the city is amended limiting the exercise of the legislative power of the local city council and the initiative power of the city's electorate, it is constitutional.

It is noteworthy that in a similar case the issue of delegation of legislative authority was resolved by the state of California in Kugler v. Yocum (1968), 69 Cal.2d 371, 71 Cal.Rptr. 687, 445 P.2d 303. The court was asked to rule on an initiative ordinance in which the city of Alhambra, California was to establish a pay scale for its fire department. The salaries would equal a sum not less than the average salaries paid to firemen in the city of Los Angeles. The court held that there was no delegation of legislative authority.

'In the instant case, the adoption of the proposed ordinance * * * will constitute the legislative body's resolution of the 'fundamental issue.' Once the legislative body has determined the issue of policy * * * the subsequent filling in of the facts in application and execution of the policy does not constitute delegation. Thus the decision on the legislative policy has not been delegated; the implementation of the policy by reference to Los Angeles salaries is not the delegation of it.' 69 Cal.2d at 377.71 Cal.Rptr. at 690, 445 P.2d 303 at 306-307.

The dissenting opinion doubted the constitutionality of the provision because it was to be accomplished by an initiative ordinance. However, the dissent went on to state that if the people adopted such a plan by charter amendment then 'there would be no question of unlawful delegation of legislative authority.'

While it is unconstitutional for the city to delegate its power to make a law, it can make a law to delegate a power to determine some fact upon which that law shall depend. The citizens of Cleveland, through their charter, have chosen the way in which their police and firemen will be paid. The fact is, having determined the fundamental issue, they delegated nothing. No other community in Ohio of a population of 50,000 or more is asked to legislate for Cleveland. The Cleveland city council in implementing the charter amendments has been given standards to use in determining the wages of police and firemen. They look to other Ohio cities of 50,000 population or more to obtain statistical data only. The primary concern over standards is to protect the public by safeguards against arbitrary actions. See Kugler v. Yocum, supra. Here, the formula contained in the amendments is exact because it provides that no later than the 15th day of February in each year, the Cleveland city council shall survey and certify the rates paid to employees of all Ohio cities of 50,000 population or over, and shall by the 1st of June of each year compensate Cleveland's police and firemen at a rate three percent (3%) higher than any other surveyed Ohio city. The amendments, therefore, contain the essential safeguards vital to the protection against arbitrary actions by those assigned the duty to compute the wages.

There is nothing unique about the problem presented in this case. Analogous law exists in Ohio's 'prevailing wage law' (R.C. 4115.03-4115.09) and in Ohio's minimum fair wage standards (R.C. 4111.01-4111.09) which was held 'not (to) offend or transgress the federal or state constitutions' in Strain v. Southern (1947), 148 Ohio St. 153, 74 N.E.2d 69. Here data is similarly obtained and used to establish wages. Even a more striking analogy is found in Section 191 of the charter of the city of Cleveland which requires council to compensate classified employees in accordance with the prevailing rate of like services. A tradesman employed by the city will receive compensation equal to the rate paid in private industry under union contracts. Since the city is not a party to union collective bargaining, it can hardly be contended that the city has unlawfully delegated the power to establish wages by factors beyond its control. See Adams v. Wolff (1948), 84 Cal.App.2d 435, 190 P.2d 665. There is no meaningful distinction between a situation where a union pay scale is increased and the situation where an Ohio city of 50,000 population or more increases the wages to their policemen and firemen.

Judgment affirmed.

SILBERT, J., concurs.

DAY, Judge (dissenting).

With deference, I dissent. My reasons are elaborated below:

I.

This case comes here on appeal from a decision of the Court of Common Pleas of Cuyahoga County, Ohio, denying plaintiff appellant's request for a declaratory judgment and injunctive relief ¹ and sustaining the validity of Sections 198-1 and 198-2 of the Cleveland city charter. The first, Section 198-1, was submitted to referendum by city council, as required by Section 9, Article XVIII, Ohio Constitution, upon receipt of an initiative petition signed by the required percentage of the electorate of the municipality. The second, Section 198-2, was submitted to the electorate by council without the initiative. This submission also was authorized by Section 9, Article XVIII, Ohio Constitution. Both submissions were adopted by the voters of the city of Cleveland and became charter amendments under the indicated section numbers.

These charter amendments are substantially alike. One, Section 198-1, establishes the annual rate of pay for members of the fire department, and the other, Section 198-2, establishes the annual rate of pay for members of the police department. In their essential terms Sections 198-1 and 198-2 provide for a city council survey of base rates for first grade firemen and patrolmen, respectively, once each year between January 1 and February 15. The survey is carried out in Ohio cities, other than Cleveland, with populations of 50,000 or more. Thereafter, the amendments require that once each year, not later than June 1, city council shall provide by ordinance that firemen and patrolmen of the first grade in the employ of the city of Cleveland shall receive a base rate three percent higher than that paid by such other Ohio cities to their firemen and policemen of the first grade at the time of the counciliar survey. In addition the ordinances establishing the base rates as described shall provide for base rate differentials of sixteen percent between each of the ranks within the fire and police departments.

Hereafter the Sections 198-1 and 198-2 shall be referred to as the 'charter amendments' or the 'amendments' and will be treated together because each issue raised as to one is applicable to the other. For the sake of simplicity, the parties, including the substituted appellant (see fn. 1), and defendants appellees, the city of Cleveland, certain of its officials and intervening members of the division of fire, city of Cleveland, will be designated 'plaintiff' and 'defendants,' or 'defendant city,' and 'defendant city officials' or 'defendant intervenors,' respectively.

II.

Plai...