State ex rel. King v. City of Portsmouth

• Decision Date: 07 October 1986
• Docket Number: No. 86-973,86-973
• Citation: State ex rel. King v. City of Portsmouth, 497 N.E.2d 1126, 27 Ohio St.3d 1, 27 OBR 73 (Ohio 1986)
• Parties: , 27 O.B.R. 73 The STATE ex rel. KING v. The CITY OF PORTSMOUTH, Ohio, et al.
• Court: Ohio Supreme Court

Page 1

27 Ohio St.3d 1

497 N.E.2d 1126, 27 O.B.R. 73

The STATE ex rel. KING v. The CITY OF PORTSMOUTH, Ohio, et al.

No. 86-973.

Supreme Court of Ohio.

Oct. 7, 1986.

David W. Kuhn, Portsmouth, for relator.

Richard T. Schisler, City Sol., for respondents.

PER CURIAM.

The Portsmouth City Charter provides:

"SECTION 20. POWER OF REFERENDUM.

"The electors shall have power to approve or reject at the polls any ordinance passed by the Council, or submitted by the Council to a vote of the electors, except an appropriation ordinance, such power being known as the referendum. * * *.

"SECTION 21. REFERENDUM PETITION.

"Within thirty days after the final passage by the Council of an ordinance which is subject to referendum, a petition signed by the electors of the City equal in number to at least ten per centum (10%) of those who voted at the last preceding regular municipal election may be filed with the City Clerk requesting that such ordinance, or any specified part thereof, be either repealed or submitted to a vote of the electors. Referendum petition papers circulated with respect to said ordinance, or part of an ordinance, or part thereof, repeal of which is sought, but need not contain the text thereof. [sic]

"SECTION 22, CONSIDERATION OF REFERRED ORDINANCE BY COUNCIL REFERENDUM ELECTION.

"If a referendum petition, or amended petition, be found sufficient by the City Clerk he shall certify that fact to the Council at its next regular meeting and the ordinance or part thereof specified in the petition shall not go into effect, or further action thereunder shall be suspended if it shall have gone into effect, until approved by the electors as hereinafter provided. Upon receipt of the Clerk's certificate the Council shall proceed to reconsider the ordinance or part thereof, and its final vote upon such reconsideration shall be upon the question, "Shall the ordinance (or part of the ordinance) set forth in the referendum petition be repealed?" If upon such reconsideration the ordinance, or part thereof, be not repealed it shall be submitted to the electors at the next succeeding regular or general election held not less than thirty days after such final vote by the Council. The Council by vote of not less than all of the members elected to Council less two may submit the ordinance, or part thereof, to the electors at a special election to be held not sooner than the time aforesaid. * * * "

The only issue presented for our review is whether Ordinance No. 23 is an appropriation ordinance and not subject to the referendum. Respondents contend that it is, and thus claim they are not required to act further on the petition. Relator disagrees, contending that the funds in question were appropriated to the contingent fund at the time of the appropriation ordinance on January 14, 1986. He characterizes this ordinance authorizing a payment from the fund as only an expenditure from funds which have already been appropriated.

Relator argues that the charter distinguishes between an expenditure and an appropriation. That a distinction was intended is apparent from the charter. For instance, Section 53 is entitled, "Expenditures only Pursuant to Appropriations," and goes on to provide:

"No money shall be drawn from the Treasury to the City, nor shall any obligation for the expenditure of money be incurred except in 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 * * *."

Although the words "expenditure" and "appropriation" are not defined in the Charter, it is the City's practice that once a fund is...