State ex rel. DeBrosse v. Cool

Decision Date16 September 1999
Docket NumberNo. 99-1430.,99-1430.
PartiesTHE STATE EX REL. DEBROSSE ET AL. v. COOL, PIQUA CITY CLERK, ET AL.
CourtOhio Supreme Court

Donald J. McTigue, for relators.

Stephen E. Klein, Piqua Director of Law, for respondents.

Per Curiam.

S.Ct.Prac.R. X(5) Standards; Expedited Consideration

Under S.Ct.Prac.R. X(5), we must now determine whether dismissal, an alternative writ, or a peremptory writ is appropriate. We apply the following standards to render this determination:

"`Under S.Ct.Prac.R. X(5), dismissal is appropriate if it appears beyond doubt, after presuming the truth of all material factual allegations and making all reasonable inferences in favor of relator, that relator is not entitled to the requested extraordinary relief. If, on the other hand, the complaint may have merit, an alternative writ should issue. Finally, if it appears beyond doubt that relator is entitled to the requested extraordinary relief, a peremptory writ should issue.'" (Citations omitted.) State ex rel. Dist. 1199, Health Care & Social Serv. Union, AFL-CIO v. Lawrence Cty. Gen. Hosp. (1998), 83 Ohio St.3d 351, 352-353, 699 N.E.2d 1281, 1282, quoting State ex rel. Stern v. Mascio (1998), 81 Ohio St.3d 297, 298, 691 N.E.2d 253, 254.

With the foregoing guidelines in mind, we now proceed with our determination under S.Ct.Prac.R. X(5).

Mandamus; Peremptory Writ

Relators assert that they are entitled to the requested writ based on the pertinent initiative provisions of the charter:

"Section 15 Consideration of Initiated Ordinance by Commission.

"If an initiative petition or amended petition be found sufficient by the city clerk he shall immediately so certify and promptly submit the proposed ordinance therein set forth to the commission which shall at once read it and refer it to an appropriate committee, which may be a committee of the whole. Provision shall be made for public hearings upon the proposed ordinance before the committee to which it is referred. Thereafter the committee shall report the proposed ordinance to the commission, with its recommendations thereon, not later than sixty days after the date on which it was submitted to the commission by the city clerk. Upon receiving the proposed ordinance from the committee the commission shall proceed at once to consider it and to take final action thereon within thirty days from the date of such committee report.

"Section 16 Submission of Initiated Ordinance to Electors.

"If the commission fails to pass an ordinance proposed by initiative petition or passes it in a form different from that set forth in the petition therefor, the committee of the petitioners hereinafter provided for may require that it be submitted to a vote of the electors either in its original form or with any change or amendment presented in writing either at a public hearing before the committee to which the proposed ordinance was referred or during the consideration thereof by the commission. If the committee of petitioners require the submission of a proposed ordinance to a vote of the electors they shall certify that fact to the city clerk, and file in his office a certified copy of the proposed ordinance in the form in which it is to be submitted, within ten days after final action on such proposed ordinance by the commission.

"Section 17 Election on Initiated Ordinance.

"Upon receipt of the certified copy of a proposed ordinance from the committee of the petitioners, the city clerk shall certify that fact to the commission at the next regular meeting. If any election is to be held not more than one year nor less than thirty days after the receipt of the clerk's certificate by the commission, the proposed ordinance shall be submitted to a vote of the electors at the first such election unless the commission provides for submitting it to the electors at a special election to be held within the time aforesaid. If no other election is to be held within one year and not less than thirty days after the receipt of the clerk's certificate as aforesaid, the commission shall provide for submitting the proposed ordinance to the electors at a special election to be held within that time. If, when submitted to the electors, a majority of those voting on a proposed ordinance vote in favor thereof, it shall be an ordinance of the city. Initiated ordinances adopted by the electors shall be published, and may be amended or repealed by the commission, as in the case of other ordinances."

After Piqua Clerk Cool certified the sufficiency of the petition, she failed to submit it to the commission, and the commission refused to follow the procedures specified in Section 15 of the Piqua Charter. Thereafter, by certification pursuant to Section 16, relators required the submission to a vote of electors of the proposed ordinance. Respondents Cool and the commission failed to act on relators' certification as required by Section 17 of the charter.

Respondents refused to proceed in accordance with Sections 15, 16, and 17 of the charter based on their claims that the initiative petition was excepted from the charter initiative provisions as an appropriation ordinance, or that the proposed ordinance would require an illegal expenditure without an appropriation, and that the proposed ordinance addressed a nonlegislative matter. Respondents' claims lack merit.

Respondents first contend that the proposed ordinance is excepted from the charter initiative provisions because it is an appropriation ordinance. Section 14 of the Piqua Charter specifies that "[t]he electors shall have power to propose any ordinance except an appropriation ordinance, and to adopt or reject the same at the polls, such power being known as the initiative." (Emphasis added.) The charter, however, does not define "appropriation ordinance." Undefined language used in a municipal charter should be construed according to its ordinary and common usage. State ex rel. Fattlar v. Boyle (1998), 83 Ohio St.3d 123, 127, 698 N.E.2d 987, 990; State ex rel. Minor v. Eschen (1995), 74 Ohio St.3d 134, 138, 656 N.E.2d 940, 944.

We have held that the ordinary and common meaning of the comparable phrase "appropriation bill" is a "measure before a legislative body which authorizes `the expenditure of public moneys and stipulat[es] the amount, manner, and purpose of the various items of expenditure.'" State ex rel. Akron Edn. Assn. v. Essex (1976), 47 Ohio St.2d 47, 49, 1 O.O.3d 28, 30, 351 N.E.2d 118, 119-120, quoting Webster's New International Dictionary (2 Ed.); see, also, Black's Law Dictionary (6 Ed.1990) 102; Risser v. Klauser (1997), 207 Wis.2d 176, 192, 558 N.W.2d 108, 115. An appropriation bill must "contain, somewhere within its four corners, a specific appropriation in money." State ex rel. Akron Edn. Assn., 47 Ohio St.2d at 50, 1 O.O.3d at 30, 351 N.E.2d at 120.

The ordinance proposed by relators in their initiative petition is not an appropriation ordinance because it contains no specific appropriation of money and fails to stipulate any amount associated with the employment of independent legal counsel authorized therein. There is consequently nothing to support respondents' claims that the proposed ordinance is an appropriation ordinance excepted from the charter initiative provisions under Section 14 of the charter. See State ex rel. King v. Portsmouth (1986), 27 Ohio St.3d 1, 4, 27 OBR 73, 75, 497 N.E.2d 1126, 1128. Respondents' reliance on the R.C. 131.01(F) definition of "appropriation" is misplaced because that definition does not apply to municipal ordinances. R.C. 131.01(F) limits the applicability of the definition to statutes enacted by the General Assembly. Respondents next contend that the proposed ordinance is not subject to initiative because it is substantively illegal under Section 53 of the Piqua Charter, which provides that "[n]o money shall be drawn from the treasury of the city, nor shall any obligation for the expenditure of money be incurred excepting pursuance of the annual appropriation ordinance, any preliminary appropriation ordinance passed in accordance with Section 50 of this Charter, or of the annual appropriation ordinance when changed as authorized by Section 51 hereof."

We need not address this contention because it does not bar an election on the proposed initiative ordinance. Any claims alleging the unconstitutionality or illegality of the substance of the proposed ordinance, or actions to be...

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