State ex rel. Mika v. Lemon, 36188

• Decision Date: 07 October 1959
• Docket Number: No. 36188,36188
• Citation: 9 O.O.2d 304,170 Ohio St. 1,161 N.E.2d 488
• Parties: , 9 O.O.2d 304 STATE et rel. MIKA, Director of Law, v. LEMON, City Clerk.
• Court: Ohio Supreme Court

Page 1

170 Ohio St. 1

161 N.E.2d 488, 9 O.O.2d 304

STATE et rel. MIKA, Director of Law, v. LEMON, City Clerk.

No. 36188.

Supreme Court of Ohio.

Oct. 7, 1959.

Syllabus by the Court.

1. Where a city does not have charter provisions fixing its own methods of initiative and referendum, a referendum petition may be filed as to an ordinance or measure, passed by the council of such city, within 30 days from the presentation of such ordinance to the mayor of the city as provided in Section 731.29, Revised Code, pursuant to Section 1f, Article II of the Constitution of Ohio.

2. The requirement of Section 731.32, Revised Code, that whoever seeks to propose an ordinance in a municipal corporation by initiative petition or files a referendum petition against any ordinance shall before dirculating such petition file a verified copy of the proposed ordinance or measure with the city auditor or village clerk, is mandatory, and in the absence of compliance therewith no duty falls upon the city clerk to receive and file with the board of elections a referendum petition otherwise valid.

This is an original action in mandamus in which the relator, the Director of Law of the City of Youngstown, filed a petition to require the City Clerk of the City of Youngstown to certify a certain referendum petition to the board of elections.

The mandamus petition recites that the action is brought in compliance with the written demand of Joseph W. Gottlieb, a taxpayer of the city of Youngstown, to commence the action in relator's official capacity.

On June 17, 1959, the Council of the City of Youngstown passed an ordinance providing for the issuance of first mortgage sewerage-system revenue bonds in an amount not in excess of $10,000,000 for the purpose of constructing a new sewage treatment plant, effective 30 days from the date of passage, as provided in Section 11 of the Charter of the City of Youngstown, subject to referendum. This ordinance was filed with the mayor on June 18, 1959, and approved by him on the same day.

Relator states that the taxpayer, having secured a supply of blank referendum petition parts from the city clerk, filed with the clerk on June 23, 1959, a sample copy of a referendum petition before circulating the same, such copy having printed on it the number and caption of the ordinance and names of members of the committee in charge of circulating such petition.

The mandamus petition further recites that on July 17, 1959, Gottlieb, designated a member of the referendum committee, presented to the city clerk for filing (presumably with the board of elections) referendum petition parts containing signatures of a sufficient number of electors of the city of Youngstown, all of such petition parts being in proper form as required by statute. On the same day, the city clerk, by letter to Gottlieb, refused to accept said petition on the ground that the legal requirements had not been complied with, enclosing with his letter a copy of the law director's opinion with respect to the same. Following a further demand by Gottlieb upon the city clerk that he certify the referendum petition to the board of elections, which further demand was likewise refused, Gottlieb made a demand upon the relator to bring an action in mandamus to compel the city clerk to so certify the referendum petition. In accordance with the demand of the taxpayer, Gottlieb, relator filed the petition here, following which a demurrer to the petition was filed on behalf of the respondent city clerk on the ground that the petition does not state facts sufficient to entitle relator to a writ of mandamus.

It is agreed between counsel that a decision on the demurrer will dispose of the case.

Felix S. Mika, Youngstown, in pro. per.

Joseph L. Heffernan, Youngstown, for respondent.

HERBERT, Judge.

The respondent raises two questions in his brief on the demurrer which may be restated as follows:

(1) Was the proffer on July 17 of the referendum petition for filing made in time? (2) Is it mandatory to file a verified copy of the ordinance on which referendum is sought before circulating the referendum petition?

Section 11 of the city charter provides:

'All ordinances and resolutions shall be in effect from and after thirty (30) days from the date of their passage by the council except as otherwise provided by this charter.'

The only provision of the charter relating to the initiative and referendum is section 82 which reads:

'The provisions of the General Code as to the initiative and referendum shall remain in full force and effect, except that the number of electors necessary for an initiative petition shall be three per cent and for a referendum petition six per cent and such petition shall be filed with the city clerk.'

We are, therefore, brought to a consideration of the applicable statutes.

Section 731.29 et seq., Revised Code, contain substantially the same provisions as their predecessors, Section 4227-2 et seq., General Code, and must be construed to be the controlling sections even though section 82 of the Youngstown charter has not been amended since the adoption of the Revised Code. In passing, it may also be noted, that the words, 'any ordinance, or other measure passed by the council of any municipal corporation shall be subject to the referendum,' as they appeared at the beginning...