Myers v. Schiering, 70-370

• Decision Date: 30 June 1971
• Docket Number: No. 70-370,70-370
• Citation: 271 N.E.2d 864,27 Ohio St.2d 11
• Parties: , 56 O.O.2d 6 MYERS, Appellee, v. SCHIERING, Auditor, City of Fairfield, Maupin, Appellant.
• Court: Ohio Supreme Court

Page 11

27 Ohio St.2d 11

271 N.E.2d 864, 56 O.O.2d 6

MYERS, Appellee, v. SCHIERING, Auditor, City of Fairfield, Maupin, Appellant.

No. 70-370.

Supreme Court of Ohio.

June 30, 1971.

Syllabus by the Court

1. Under Section 1f of Article II of the Ohio Constitution, municipal referendum powers are limited to questions which municipalities are 'authorized by law to control by legislative action.'

2. The passage by a city council of a resolution granting a permit for the operation of a sanitary landfill, pursuant to an existing zoning regulation, constitutes administrative action and is not subject to referendum proceedings.

The city council of the city of Fairfield adopted a resolution providing for the granting of a permit 'for the use of a part of Lot No. 62 in the city of Fairfield * * * for the purposes of operating a sanitary landfill.'

A referendum petition was filed with the city auditor requesting him to certify the resolution to the county board of elections for the purpose of submitting the resolution to the electors at the next general election.

Plaintiff-appellee, Elmer Myers, filed an action in the Court of Common Pleas to enjoin the city auditor from certifying the resolution to the board of elections.

The cause was submitted to the trial court on motions for summary judgment by plaintiff and defendnat. That court found in favor of plaintiff and granted an order restraining the city auditor from certifying the referendum petition to the board of elections.

The Court of Appeals affirmed the judgment, and the cause is before this court following the allowance of a motion to certify the record.

Maxwell N. Wear, Fairfield, for appellee.

Carl Morgenstern, Hamilton, for appellant.

C. WILLIAM O'NEILL, Chief Justice.

The issue to be decided in this appeal is whether the resolution granting the permit for the operation of the sanitary landfill is subject to referendum proceedings.

It is appellant's position that, pursuant to Section 1f of Article II of the Ohio Constitution, and R.C. § 731.29 and § 731.30, the resolution is subject to referendum.

Section 1f of Article II reads:

'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.' (Emphasis added.)

R.C. § 731.29 provides, in part:

'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. * * *'

R.C. § 731.30 provides exceptions as follows:

'Whenever the legislative authority of a municipal corporation is required to pass more than one ordinance or other measure to complete the legislation necessary to make and pay for any public improvement, sections 731.28 to 731.41, inclusive, of the Revised Code shall apply only to the first ordinance or other measure required to be passed and not to any subsequent ordinances and other measures relating thereto. Ordinances or other measures providing for appropriations for the current expenses of any municipal corporation, or for street improvements petitioned for by the owners of a majority of the feet front of the property benefited and to be especially assessed for the cost thereof, and emergency ordinances or measures necessary for the immediate preservation of the public peace, health, or safety in such municipal corporation, shall go into immediate effect. Such emergency ordinances or measures must, upon a yea and nay vote, receive a two-thirds vote of all the members elected to the legislative authority, and the reasons for such necessity shall be set forth in one section of the ordinance or other measure.'

Although Section 1f of Article II of the Constitution specifies that referendum is applicable only to questions which municipalities are 'authorized by law to control by ...