Northern Ohio Patrolmen's Benev. Assn v. City of Parma

• Decision Date: 26 March 1980
• Docket Number: No. 79-369,79-369
• Citation: 61 Ohio St.2d 375,15 O.O.3d 450,402 N.E.2d 519
• Parties: , 15 O.O.3d 450 NORTHERN OHIO PATROLMEN'S BENEVOLENT ASSN. et al., Appellees, v. CITY OF PARMA et al., Appellants.
• Court: Ohio Supreme Court

Page 375

61 Ohio St.2d 375

402 N.E.2d 519, 15 O.O.3d 450

NORTHERN OHIO PATROLMEN'S BENEVOLENT ASSN. et al., Appellees, v. CITY OF PARMA et al., Appellants.

No. 79-369.

Supreme Court of Ohio.

March 26, 1980.

Syllabus by the Court

1. An Ohio municipality which has not adopted a charter for its government, as authorized by Section 7 of Article XVIII of the Constitution of Ohio, must, in the passage of legislation, follow the procedure prescribed by statutes enacted pursuant to the mandate of Section 2 of Article XVIII of the Constitution. (Paragraph two of the syllabus in Morris v. Roseman, 162 Ohio St. 447, 123 N.E.2d 419, and paragraph one of the syllabus in Wintersville v. Argo Sales Co., 35 Ohio St.2d 148, 299 N.E.2d 269, approved and followed.)

2. Pursuant to Sections 2 and 3 of Article XVIII of the Constitution of Ohio, a non-chartered municipality has the power to mandate by ordinance the amount of compensation paid to its employees who are on leave of absence as members of the armed forces reserve.

On October 4, 1976, the city of Parma passed ordinance No. 83-73, which provides that all city employees who are members of reserve components of the armed forces are entitled to 31 days of leave of absence each calendar year for field training or active duty. Further, the ordinance provides that "(i)f a city employee's military pay or compensation during such period of leave of absence is less than his city pay would have been for such period, he shall be paid by the city the difference in money between the city pay and his military pay for such period."

On April 15, 1977, appellees, Northern Ohio Patrolmen's Benevolent Association and five members of the Parma Police Department, filed an action against the city, its mayor and its council president (appellants herein), and the state Attorney General, seeking declaratory relief and money damages.

This action challenged the validity of the Parma ordinance and the authority of the city, a non-chartered municipality, to adopt such an ordinance which is alleged to be at variance with R.C. 5923.05.

Appellees, under the purview of R.C. 5923.05, allege that they are entitled to a leave of absence from their respective duties without loss of pay for such time as they are in the military service on field training or active duty for periods not to exceed 31 days in any calendar year. In essence, appellees maintain that, by virtue of R.C. 5923.05, which permits municipal employees a military leave of absence without loss of pay, they are entitled to their full salaries during such leave, notwithstanding the ordinance, which provides that the city should pay only the difference between the city pay and the military pay for such periods.

On May 4, 1977, the city responded by filing a motion to dismiss appellees' complaint, alleging that the statute and ordinance are not in conflict and, alternatively, that the city has the authority to adopt conflicting legislation under its Home Rule power, Section 3 of Article XVIII of the Ohio Constitution.

Appellees filed an answer brief in opposition to the motion to dismiss, and the city filed a reply brief. On August 1, 1977, the trial court held that the ordinance "is not unconstitutional, nor is it in conflict with Ohio Revised Code Section 5923.05."

On August 11, 1977, appellees timely filed a notice of appeal in the Court of Appeals. On February 8, 1979, the appellate court reversed the decision of the trial court and remanded this matter to that court for disposition of appellees' money damages claim, which was never ruled on by the trial court.

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

Climaco, Goldberg, Boukalik & Seminatore and Paul S. Lefkowitz, Cleveland, for appellees.

Andrew Boyko, Law Director, and Stephen P. Bond, Parma, for appellants.

LOCHER, Justice.

Appellants, in their first proposition of law, assert that R.C. 5923.05 and Parma ordinance No. 83-73 are not in conflict.

It is firmly established that legislative enactments, whether of a municipality or state, have a strong presumption of constitutionality. Xenia v. Schmidt (1920), 101 Ohio St. 437, 130 N.E. 24, paragraph one of the syllabus; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372, 373, 358 N.E.2d 610; State, ex rel. Taft v. Campanella (1977), 50 Ohio St.2d 242, 246, 364 N.E.2d 21. Further, it is noted that, "when it is possible * * * to harmonize the general law and municipal ordinances, the same should be done." Coshocton v. Saba (1936), 55 Ohio App. 40, 43, 8 N.E.2d 572. However, such is not the case herein.

In the instant cause, R.C. 5923.05 mandates that the city pay each employee on military leave of absence his or her full salary for a maximum of 31 days every calendar year irrespective of any monetary compensation awarded to such employee from the military. The Parma ordinance provides that the city shall pay the employee only the difference between the employee's city salary and any monetary compensation from the military. In essence, under R.C. 5923.05, the employee would receive a full city salary plus a military salary, whereas, according to the ordinance, the employee receives only the equivalent of the city salary.

The statute and the ordinance seek to legislate on the same subject matter, the same individuals, and for the same period of time but at different rates of payment. The two enactments are in direct conflict.

In Mullen v. Akron (1962), 116 Ohio App. 417, 188 N.E.2d 607, the court in ruling upon R.C. 5923.05 and a similarly enacted ordinance, determined that a clear conflict did exist. The court, in Mullen, stated, at page 419, 188 N.E.2d at page 609:

"It appears obvious that the city ordinance and the state law are in conflict in the matter of pay to the city employee-soldier; and our question reduced to its simplest terms is, Which one must be applied?"

Agreeing with the above, we find that R.C. 5923.05 and Parma ordinance No. 83-73 are in direct conflict and not capable of a reasonable construction which will harmonize the two. Accordingly, appellants' first proposition of law is without merit.

II.

Appellants, in their second proposition of law, assert that a non-chartered municipality has authority, pursuant to its Home Rule powers, to enact an ordinance which conflicts with the general laws of the state when the ordinance is limited to a matter of substantive local self-government, such as the wages to be paid to its employees.

It is axiomatic that an ordinance, similar to the one at bar, if enacted by a chartered municipality, would prevail over the state law irrespective of any conflict. Mullen v. Akron, supra (116 Ohio App. 417, 188 N.E.2d 607).

The critical issue to be determined is whether a non-chartered municipality has similar powers to enact an ordinance in matters of local self-government which are at variance with state law.

The Court of Appeals, relying on the decision in Leavers v. Canton (1964), 1 Ohio St.2d 33, 203 N.E.2d 354, and to a lesser degree on State ex rel. Petit v. Wagner (1960), 170 Ohio St. 297, 164 N.E.2d 574, and Vair v. Ravenna (1972), 29 Ohio St.2d 135, 279 N.E.2d 884, ruled that a non-chartered municipality may not enact an ordinance at variance with a state statute. For the reasons hereinafter more fully explained, we disagree with such a summary dismissal of appellants' claim. A non-chartered municipality may enact an ordinance which is at variance with state law in matters of substantive local self-government. Accordingly, Parma ordinance No. 83-73 is constitutional and valid.

A historical analysis of the constitutional Home Rule provisions is essential to determine the improper exodus of power from, and limitations imposed upon, Parma and all non-chartered municipalities in matters of substantive local self-government.

Prior to 1912, the thrust of municipal powers, with a few exceptions, was limited to a strict rule commonly referred to as the Dillon Rule. In essence, the Dillon Rule awarded the municipal corporations only such authority as expressly granted or clearly implied by the General Assembly and no more. By 1912, local self-government interests pioneered the adoption of Article XVIII of the Ohio Constitution. The concept of Home Rule allows municipal corporations to become autonomous governmental units. ¹

The most relevant amendments and sections concerning the instant cause are Sections 2, 3 and 7 of Article XVIII of the Ohio Constitution. These sections read as follows:

Section 2:

"General laws shall be passed to provide for the incorporation and government of cities and villages; and additional laws may also be passed for the government of municipalities adopting the same * * *."

Section 3:

"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."

Section 7:

"Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government."

Despite the intent to confer powers on municipalities over local affairs, this court, in State, ex rel. Toledo v. Lynch (1913), 88 Ohio St. 71, 102 N.E. 670, interpreted the newly enacted amendments by determining that the adoption of a charter was a prerequisite for upholding a municipal ordinance which was at variance with a state statute. ² This same inflexible approach requiring a municipality to adopt a charter if it desires to have control over local affairs is the same rationale espoused in Leavers, supra, which, as noted previously, is the controlling case for the Court of Appeals' determination that the Parma ordinance is invalid.

Within ten years of the Lynch decision, this court, in Perrysburg v. Ridgway (1923), 108 Ohio St. 245, ...