State ex rel. Sharpe v. Hitt

• Decision Date: 13 June 1951
• Docket Number: No. 32444,32444
• Citation: 155 Ohio St. 529,99 N.E.2d 659
• Parties: , 44 O.O. 489 STATE ex rel. SHARPE et al. v. HITT, Auditor.
• Court: Ohio Supreme Court

Page 529

155 Ohio St. 529

99 N.E.2d 659, 44 O.O. 489

STATE ex rel. SHARPE et al. v. HITT, Auditor.

No. 32444.

Supreme Court of Ohio.

June 13, 1951.

Syllabus by the Court

1. Under Section 1f, Article II of the Constitution of Ohio, both the initiative and referendum powers are reserved to the people of Ohio municipalities 'on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action.'

2. An ordinance passed by the council of an Ohio noncharter municipality designating parking spaces for vehicles with the installation and use of mechanical parking meters in connection with such spaces is a legislative measure subject to the initiative and referendum within the contemplation of Section 1f, Article II of the Constitution of Ohio.

3. The electors of a municipality may by the initiative enact a measure conflicting with or repealing legislation previously passed by the municipal council, so long as the subject matter of such initiative ordinance is within the powers of the municipality to control by legislative procedure.

4. Where an ordinance relating to parking spaces and the installation and use of parking meters in connection therewith is passed by a municipal council, even though enacted as an emergency measure effective immediately and thereby not subject to the referendum, the electors of the municipality may initiate an ordinance for the repeal of such legislation, and where the initiative petition prepared and formulated for such purpose is in conformity with the provisions of Section 4227-1, General Code, and is duly filed with the city auditor, that official is under the mandatory duty to certify such petition to the board of elections. (State ex rel. Smith, v. City of Fremont, 116 Ohio, St. 469, 157 N.E. 318, overruled.)

This action in mandamus, now here on an appeal as of right, originated in the Court of Appeals for Champaign County. It was brought by Clark B. Sharpe and Clinton E. Boyer against Joe W. Hitt, auditor of the city of Urbana, Ohio, to require the latter to certify an initiative petition to the Board of Elections of Champaign County.

Such initiative petition, in its formal parts, reads as follows:

'To the city auditor of the city of Urbana, Champaign county, Ohio.

'We, the undersigned electors of the city of Urbana, Ohio, respectfully propose to the electors of said city for their approval or rejection at the regular election to be held on the 7th day of November, 1950, the following ordinance.

'The following is a full and correct copy of the title and text of the proposed ordinance.

'Ordinance

'No. * * *

'Repealing ordinance No. 1570 as amended on the 15th day of April 1947, and repealing any and all legislation enacted by council of the city of Urbana, Ohio, heretofore authorizing the installation and use of parking meters in the said city of Urbana.

'Whereas, it is deemed to be to the best interest of the public of the city of Urbana, and those of the public at large who make use of the said streets of the city of Urbana, that the parking meters now installed and in use on the streets of the said city of Urbana, be removed.

'Now therefore, be it ordained, by the council of the city of Urbana, state of Ohio, three-fourths of its members elected or appointed thereto concurring:

'Section I: That ordinance No. 1570 as amended by ordinance No. 1658 on the 15th day of April 1947, and in addition thereto, any and all further legislation not herein specifically quoted or designated by number but having reference to installation and use of parking meters in said city of Urbana, be, and the same hereby are, repealed.

'Section II. That all of the parking meters now installed and in use in the city of Urbana as authorized, heretofore, by the council of the city of Urbana be removed from the streets of the said city of Urbana.

'Section III: That this ordinance shall take effect and be in force from and after the earliest period allowed by law.'

The petition filed in the Court of Appeals alleges that the city of Urbana is an Ohio municipal corporation having no charter and is operated under the general provisions of the General Code of Ohio relative to municipalities; that at all times in issue the respondent was the duly elected, qualified and acting auditor of such city; that relators are electors and taxpayers of such city, reside therein and bring their action on behalf of the city; that on September 19, 1944, the council of such city passed ordinance No. 1570 relating to the designation of individual parking spaces for vehicles in certain congested areas of the city and for the use of mechanical parking time indicators in conjunction with such spaces; that such ordinance was duly filed with the mayor and approved by him; that on April 15, 1947, the council of such city amended section II of ordinance No. 1570 and such amended ordinance was duly filed with and approved by the mayor; that relators are two members of a committee designated to prepare, circulate and file such initiative petition; that on September 13, 1950, prior to the circulation of such initiative petition relators caused to be filed with respondent a copy thereof; that thereafter such initiative petition was placed in circulation and that on September 18, 1950, relators filed with respondent such initiative petition in six parts and containing the signatures of 424 electors of such city, being more than ten per cent of the electors thereof; that each part of such initiative petition is in due form and contains the prescribed affidavit of the person who solicited the signatures; that on September 29, 1950, respondent, after request, refused to certify such initiative petition to the Board of Elections of Champaign County; that on October 2, 1950, relator Sharpe, notified in writing the solicitor of the city of Urbana of the failure and refusal of the respondent to certify the petition to the board of elections and on the following day the solicitor refused to apply to a court of competent jurisdiction for a writ of mandamus to compel respondent to certify such petition to such board of elections; and that relators have no plain and adequate remedy at law.

In his amended answer, respondent admits most of the material allegations of the petition. Further answering the respondent states that ordinance No. 1570 and other later ordinances amending the same were all passed as emergency measures and were not subject to referendum or to repeal by initiative petition; and that the initiative petition filed with respondent is in truth a referendum on the legislation enacted by the council of the city of Urbana and respondent refused to certify same to the board of elections for the reason that it was not timely filed.

'Wherefore, respondent prays that the petition of the relators be dismissed, that a peremptory writ of mandamus be refused, that the alternative writ of mandamus be rescinded and disallowed; that this respondent be permitted to go hence without day, and for his costs herein.'

Forthwith after the filing of the amended answer, the Court of Appeals entered the following judgment:

'This cause came on for hearing on the petition of the relators and the answer of the respondent filed herein, was argued by counsel for relators and counsel for respondent and was submitted to the court; and, on consideration thereof, the court finds that the facts do not warrant the allowance of the peremptory writ of mandamus compelling the respondent Joe W. Hitt, auditor of the city of Urbana, Ohio, to certify the initiative petition to the Board of Elections of Champaign County, Ohio as prayed for in the petition.

'It is therefore ordered by the court that the peremptory writ of mandamus as prayed for be denied, that the alternative writ heretofore issued by this court be rescinded and revoked, and that respondent recover costs herein.

'To all of which * * * [findings], judgment and order of this court the relators by their counsel hereby except.'

Arthur W. Gurklies, Urbana, for appellants.

Clifford R. Wagner, Rubana, for appellee.

ZIMMERMAN, Judge.

As has been noted in the statement of the case, this controversy was decided by the Court of Appeals upon the petition and the amended answer. The allegations of the petition and the admissions of the amended answer clearly show that the initiative petition placed in the hands of respondent city auditor met the requirements of a valid petition of that kind within the rules prescribed in Section 4227-1 et seq., General Code, which sections pertain to the initiative and referendum as they may be used with respect to municipal ordinances.

Therefore, the controlling question in this case is whether the respondent was justified in refusing to certify to the Champaign county board of elections the initiative petition filed with him by the relators to repeal the existing municipal ordinances covering the parkig of vehicles with the installation and use of parking meters and to enact a new measure removing from the streets of the city all the parking meters 'now installed and in use.'

Section 1f, Article II of the Constitution of Ohio, adopted in 1912, provides: '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.'

Section 4227-1, General Code, as amended in 1914, recites in part:

'Ordinances and other measures providing for the exercise of any and all powers of government granted by the constitution or now delegated or hereafter delegated to any municipal corporation, by the general assembly, may be proposed by initiative petition. Such initiative petition must contain the signatures of not less than ten percentum of the electors of such municipal corporation.

'When there shall...