State ex rel. Barberis v. City of Bay Village

• Decision Date: 09 December 1971
• Docket Number: No. 898018,898018
• Citation: 31 Ohio Misc. 203,59 O.O.2d 366,281 N.E.2d 209
• Parties: , 59 O.O.2d 366, 60 O.O.2d 382 STATE ex rel. Albert E. BARBERIS et al., Relator, v. CITY OF BAY VILLAGE et al., Respondents.
• Court: Ohio Court of Common Pleas

Page 203

31 Ohio Misc. 203

281 N.E.2d 209, 59 O.O.2d 366, 60 O.O.2d 382

STATE ex rel. Albert E. BARBERIS et al., Relator, v. CITY OF BAY VILLAGE et al., Respondents.

No. 898018.

Court of Common Pleas of Ohio, Cuyahoga County.

Dec. 9, 1971.

[281 N.E.2d 210] Thomas B. McGowan, III, Rocky River, for the relator.

Richard J. Giffels, Quandt & Giffels, Cleveland, for the respondents.

MEMORANDUM OF OPINION

HERBERT R. WHITING, Judge.

This is an action in mandamus wherein a citizen and taxpayer of the City of Bay Village seeks to compel City Council to certify a Resolution to the Board of Elections of Cuyahoga County for a referendum election.

Regulations issued under the Housing and Urban Development Act of 1965 authorize payment of subsidies to a qualified owner of low-income housing if, among other things, the project has received 'local official approval' for participation in the Federal rent supplement program. (31 F.R. 7563, May 21, 1966) On June 21, 1971, Council passed a Resolution granting such approval for the Knickerbocker Apartments in Bay Village. Relator then circulated and filed his referendum petition.

Council refused to certify the Resolution to the Board of Elections, whereupon the Relator initiated this proceeding. The grounds upon which Council based its refusal were (1) the Resolution was an administrative act of Council and (2) the City Charter does not provide for the approval or rejection by the electorate of administrative acts of Council. The Court finds Council's refusal to be lawful and proper.

Many actions of a municipal governing body are legislative. Others, however, are administrative. Ordinances and resolutions constituting administrative action are not subject to approval by the electorate in non-chartered municipalities in Ohio. (Myers v. Schiering, 27 Ohio St.2d 11, 271 N.E.2d 864, 1971) but in chartered municipalities may or may not be subject to such approval.

Whether any given action of a municipal council is legislative or administrative is a judicial question which is often difficult to answer. Council's own designation of the action as an ordinance, resolution or otherwise, is not significant. 5 McQuillin, Municipal Corporations, Sec. 16.55. The courts have not agreed upon a definite rule for testing such action in all circumstances. However, one valid and critical test is: does Council's action make a new law or does it execute a law already in existence? In the present case, the law was made by the Congress of the United States in 1965. By Federal Regulation the power to decide whether or not the national purpose thereby indicated is to be locally implemented was delegated not to the local electors, but to appropriate local officials. In 1971, the members of the Council of the City of Bay Village considered the benefits offered by that legislation together with the needs of their community. When they ascertained that the City should have the benefit of the Federal rent supplement program offered by the statute, at least as to the Knickerbocker Apartments, they duly indicated their approval in a manner which they designated as a resolution. Their action, however designated, made no new law. It merely carried into local effect a law previously passed by Congress. It was, therefore, of administrative character. When the only action taken by a local governing body is an exercise of authority, delegated to it under a State or Federal statute, to grant or withhold approval for the local implementation of that statute by the State or Federal government, that action is administrative and not legislative. Housing Authority v. Superior Court, 35 Cal.2d 550, 219 P.2d 457 (1950); 5 McQuillin, Municipal Corporations, Sec. 16.55.

In a charter municipality in Ohio, the peoples' reservation of the power to approve or reject administrative action taken by their governing body must be found in the charter itself. The reservation to the people of 'initiative and referendum powers' by Article II of the Ohio Constitution and the referendum provisions of the Revised Code are limited to legislative action. Myers v. Schiering, 27 Ohio St.2d 11, 271 N.E.2d 864 (1971).

The Charter of the City of Bay Village contains a paragraph designated therein as a 'referendum' provision. By definition, 'referendum' refers only to the submission of legislative action to the voters. Bouvier's Law Dictionary (Baldwin's Century Edition, 1948); Black's Law Dictionary (Revised Fourth Edition, 1968); Webster's Third New International Dictionary (1961). However, the provision itself states that 'the electors of the municipality shall have the power to approve or reject at the polls any ordinance or resolution passed by Council . . .' A question thus arises as to whether the words 'any ordinance or resolution' are intended to include administrative acts of council taken in the form of ordinances and resolutions.

The people of a municipality may, by charter, reserve the power to approve or reject the administrative acts of Council by popular vote. 62 C.J.S. Municipal Corporations § 454b; 5 McGuillin, Municipal Corporations, Sec. 16.55. This right is not one of those guaranteed by the Ohio Constitution (Myers v. Schiering, 27 Ohio St.2d 11, 271 N.E.2d 864, 1971), but at the same time, the Constitution places no restriction upon it. State, ex rel. Snyder v. Board of Elections of Lucas County, 78 Ohio App. 194, 69 N.E.2d 634 (1946). Nevertheless, taking into consideration the inherent nature and purpose of the power, together with the intent indicated by the full...