State ex rel. Bramblette v. Yordy

• Citation: 53 O.O.2d 348,265 N.E.2d 273,24 Ohio St.2d 147
• Decision Date: 23 December 1970
• Docket Number: No. 70-465,70-465
• Parties: , 53 O.O.2d 348 The STATE ex rel. BRAMBLETTE et al., v. YORDY, Auditor, et al.
• Court: United States State Supreme Court of Ohio

Page 147

24 Ohio St.2d 147

265 N.E.2d 273, 53 O.O.2d 348

The STATE ex rel. BRAMBLETTE et al., v. YORDY, Auditor, et al.

No. 70-465.

Supreme Court of Ohio.

Dec. 23, 1970.

Syllabus by the Court

A provision of a charter of a municipal corporation that ordinances providing 'for raising revenue * * * shall not be subject to referendum' is constitutional as applied to an ordinance levying a municipal income tax, and where such a charter provision exists, there is no duty on the part of municipal officers to certify such income tax ordinance to a board of elections for referendum vote.

IN MANDAMUS.

In an action in mandamus, originating in this court, relators seek to compel the respondents to certify an ordinance of the village of Oxford to the Board of Elections of Butler County for a referendum election.

The facts may be simply stated. The village council passed an income tax ordinance, without an emergency clause. Relators thereupon circulated and then filed with respondent Yordy, as village auditor, a petition for referendum. It is agreed that all procedural steps required for such a referendum petition were followed.

Respondent Yordy has refused to certify the ordinance to the board of elections on the basis that Section 3.03 of the Charter of the village of Oxford provides that 'Ordinances providing * * * for raising revenue * * * shall become effective immediately upon passage or at such later date as may be provided therein, and such ordinances shall not be subject to referendum.'

Williams & Williams and Robert L. Williams, Oxford, for relators.

Henry A. Masana, Hamilton, for respondents.

LEACH, Justice.

The basic issue presented here is whether a municipal corporation may, by charter, exempt ordinances providing for raising revenue from those subject to referendum.

Relators assert that such a provision is in conflict with Section 1f of Article II of the Ohio Constitution, which 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.'

A superficial examination of that section might lead to the conclusion that referendum may not be denied as to any municipal legislative action, the section reserving to the people such power on 'all questions which such municipalities may * * * control by legislative action * * *.' (Emphasis added.)

Such a conclusion, however, uniformly has been rejected by this court. Shryock v. Zanesville (1915), 92 Ohio St. 375, 110 N.E. 937; Dillon v. Cleveland (1927), 117 Ohio St. 258, 158 N.E. 606; James v. Ketterer (1932), 125 Ohio St. 165, 180 N.E. 704; Dubyak v. Kovach (1955), 164 Ohio St. 247, 129 N.E. 809.

Essentially, we have held that Section 1f of Article II (as contrasted to Section 1d of Article II) is not 'self-executing'; that either the General Assembly, by the enactment of statutory 'law,' or the people of the municipality, by the adoption of charter 'law' under the 'homerule' provisions of the Constitution, may exempt certain classes of laws from the operation of the referendum, if 'the laws so to be exempted comply as to their character to the provisions of section 1d of article 2' (Shryock, supra, page 384, 110 N.E. at 939); that charter provisions, if so adopted, will apply (Dillon, supra, paragraph three of the syllabus); R.C. § 731.41 ¹; and that where there are no charter provisions the exercise of such power is only as provided for by the General Assembly (Dubyak, supra, paragraph one of the syllabus).

Our decision in Shryock was made within less than three years of the adoption of the constitutional provisions there interpreted. It specifically upheld the constitutionality of statutory exemption of emergency legislation from referendum.

Such a statutory provision, now R.C. § 731.30, specifically exempts three classes of ordinances from the operation of the referendum: (1) Those providing for appropriation for current expense, (2) those providing for street improvements petitioned for by the owners of a majority of the front feet of the property benefited and to be especially assessed for the cost thereof, and (3) emergency ordinances necessary for the immediate preservation of the public peace, health or safety. That statute provides also that whenever the legislative authority is required to pass more than one ordinance or measure to complete the legislation necessary to make and pay for any public improvement, only the first ordinance or other measure required to be passed is subject to referendum. ²

Section 1d of Article II of the Ohio Constitution specifically exempts from referendum three classes of laws: (1) those providing for tax levies, (2) appropriations for current expenses of the state government and state institutions, and (3) emergency laws necessary for the immediate preservation of the public peace, health or safety.

It will be observed that, although Section 1d of Article II exempts state laws levying taxes from the referendum, R.C. § 731.30 contains no comparable provision as to municipal ordinances. Although it would clearly appear that, by the application of the rationale heretofore referred to, the General Assembly constitutionally could have so provided, it has not done so.

In providing for referendum, however, a municipal charter is not restricted to the adoption of the same provisions enacted by the General Assembly. It may be less restrictive as to use of...