Switzer v. State

• Decision Date: 29 September 1921
• Docket Number: 17245
• Citation: Switzer v. State, 103 Ohio St. 306, 133 N.E. 552 (Ohio 1921)
• Parties: Switzer Et Al., Etc., v. The State, Ex Rel. Silvey, Et Al.
• Court: Ohio Supreme Court

133 N.E. 552

103 Ohio St. 306

Switzer Et Al., Etc., v. The State, Ex Rel. Silvey, Et Al.

No. 17245

Supreme Court of Ohio

September 29, 1921

Constitutional law - Amendments or changes effected, how - municipal corporations - Plans of government - Adoption or change of plan - Section 3515-I et seq., General Code - Sections 2, 7 and 8, Article XVI/I, Constitution.

1. Constitutions, whether state, federal or municipal, can be changed or amended only as provided in such constitutions.

2. The provisions of such constitutions as to change or amendment in government are mandatory and exclusive, unless the contrary clearly appears. (State, ex rel. Greenlund, v. Fulton, Secy.

of State, 99 Ohio St. 168, approved and followed.)

3. The act of the general assembly passed April 28, 1913 (103 O. L 767), purporting to provide optional forms of municipal government, expressly pursuant to Section 2, Article XVIII of the Constitution, and providing for the adoption of any one of them by referendum vote, has no application to the municipalities of Ohio that have adopted a charter form of government under Sections 7 and 8, Article XVIII of the Constitution of Ohio.

-

This action was originally begun in the court of appeals of Montgomery county, Ohio, praying, in the words Of the petition, for a writ of mandamus "Commanding defendants [Switzer et al.] as the Commission of the City of Dayton, Ohio, to provide for submitting the question of Organizing the government of the City of Dayton, Ohio, under the 'Federal' plan of city government and changing from the 'Commission Manager' plan as it now exists in the City of Dayton, Ohio, at a special election, as provided in the General Laws of Ohio, and to order and conduct said special election as set forth in the petition to said Board of Deputy State Supervisors and Inspectors * * * to appropriate whatever money may be necessary," etc.

Upon hearing in the court of appeals a judgment in favor of the relators was entered by a divided court.

Error is now prosecuted to this court to reverse that judgment.

Mr. John B. Harshman and Mr. Walter V. Snyder, for plaintiffs in error.

Mr. Alexander R. Hawthorne, for defendants in error.

WANAMAKER J.

The main question in this case is not whether the people of a municipality under the Constitution of 1912 have the right of referendum vote to adopt their own form of government and to amend the same from time to time, agreeable to the constitution. All parties concede the soundness of that general proposition. The question is whether a municipality that has adopted a charter, agreeable to the Constitution of 1912, can amend that charter by any other method than the one appointed in the Constitution of Ohio in Article XVIII, relating to municipal corporations, and particularly whether or not said charter may be amended, as claimed by the relators, pursuant to an act passed by the general assembly of the state of Ohio, as set forth in the petition filed in the court of appeals, which act is referred to in the court of appeals as Exhibit A and adopted as a part of the petition. This act (Section 3515-1 et seq., General Code) was passed April 28, 1913, and is found in 103 Ohio Laws, pages 767 to 786, inclusive, the "Federal Plan" being provided for in Sections 1 to 16, Article V of the act.

In short, the relators have proceeded with their petition for a referendum election wholly under said act of the general assembly, holding evidently that the act applies to the government of the city of Dayton, Ohio, which proposition last stated is denied by plaintiff in error. This issue is the leading and crucial one before this court.

Has the act in question, passed April 28, 1913, any application whatsoever to the government of the city of Dayton, touching its governmental plan, or the amendment thereof? We hold that the statute in question has no application whatsoever to the government of the city of Dayton, for the following reasons:

1. It is conceded by the relators that on August 12, 1913, the inhabitants of the city of Dayton "adopted a charter."

It has been settled in the Lynch case, from Toledo, State, ex rel. City of Toledo, v. Lynch, Auditor, 88 Ohio St. 71, that in order that a municipality may avail itself of home-rule powers powers Article XVIII it is necessary that it adopt a charter, and that until such charter is adopted the municipality is subject to the general laws of the state. By the adoption of the charter, however, it is under such decision given "immunity" from general laws touching the governments of municipal- ities generally, such as the act here in question, passed in 1913.

Judge Shauck, in his opinion, touching this principle, uses this language, at page 93:

"This article [Article XVIII] provides two modes of securing the permitted immunity from the operation of the uniform laws which the legislature is required to pass. One of them is defined in the second section, and manifestly it is not self executing, for it expressly authorizes the legislature to pass 'additional laws,' that is, laws additional to the general laws which the legislature is required to pass, such additional laws to become operative in a municipality only after their submission to the electors thereof and affirmance by a majority of those voting thereon. The other mode is defined in the revisions of the later sections relating to the adoption of charters."

That doctrine announced in this case, as to which there was unanimity among the judges, has been followed by numerous other decisions to the same effect.

2. The act itself in its title contains this language:

"To provide optional plans of government for municipalities and permitting the adoption thereof by popular vote in accordance with article XVIII,section 2, of the constitution of Ohio."

Now, the city of Dayton never proceeded or attempted to proceed under Section 2 or the statute enacted pursuant thereto. It did proceed, however, according to Sections 7 and 8 of Article XVIII of the Constitution. Section 7, Article XVIII, reads:

"Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government."

Section 8 immediately follows with the provisions as to choosing a commission and framing and adopting a charter.

The very fact that the title of the act itself shows that it was enacted pursuant to Section 2, Article XVIII of the Constitution, excludes any application of this act or any of its parts to any other section of Article XVIII, upon the principle that the expression of one section is the exclusion of all others, unless the contrary clearly appears.

Clearly, then, the statute can have no reference or application to the amendment of any city charter adopted pursuant to Section 8, Article XVIII of the Constitution.

3. The optional plans formulated in the above act of the general assembly (Section 3515-1 et seq., General Code) are designated in the act as follows: (a) Commission Plan. (b) City Manager Plan. (c) Federal Plan.

It is conceded that the city of Dayton has neither one of these plans, but has adopted through its charter a modified plan, being possibly a combination of certain portions of the commission plan and the city manager plan, which combination as framed by the charter commission of the city of Dayton, under the constitution, is denominated in the charter itself the "Commission Manager" plan. Hence it is obvious that the form of government adopted by the city of Dayton is not identical with any one of the plans mentioned in the statute; and again we must conclude that the statute has no application.

4. The optional plan of government contains the following provision (Section 3515-69, General Code) touching the abandonment of plan:

"Abandonment of plan. Any municipality which shall have operated for five years under any plan provided in this act may abandon such organization, and may adopt any organization or form of government provided by this act and designated in the petition by proceeding as follows." (Then follow the steps in detail for making such change.)

It should be clearly noted that the relators in the prosecution of this suit have undertaken to proceed under this statute, and this particular part thereof, and their briefs and arguments in court clearly and unmistakably show this fact. They treat the adoption of the charter as if it were a formal adoption under the statute of one of the optional plans, and five years having elapsed, as provided in the statute, they undertake to change the plan theretofore adopted to the federal plan, which is one of the plans suggested and described in the statute. But the clear and express language of the statute itself shows that this change of plan can only be made when the municipality "shall have operated for five years under any plan provided in this act." The city of Dayton never having operated under the act is in no wise governed or controlled by the act. The relators have clearly mistaken their course of procedure for amendment of the charter. Dayton having operated under a charter framed by its own commission, of its own choosing, instead of under a plan framed by the general assembly, is, under the authority of the Lynch case, supra, and many other cases affirming the same principle, immune or exempt from the operation of the statute.

5. There is another reason why the city of Dayton was not operating under the "optional plan', act, and that is that the act was not a valid law at the time the city of Dayton adopted its "Commission\Manager Plan." Under the constitution the statute could not go into effect until at least ninety days had elapsed from the time of passage,...