Fuldauer v. City of Cleveland

290 N.E.2d 546, 32 Ohio St. 2d 114, 61 Ohio Op. 2d 374, 1972 Ohio LEXIS 369
CourtOhio Supreme Court
DecidedDecember 13, 1972
DocketNo. 72-241
StatusPublished
Cited by36 cases

This text of 290 N.E.2d 546 (Fuldauer v. City of Cleveland) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fuldauer v. City of Cleveland, 290 N.E.2d 546, 32 Ohio St. 2d 114, 61 Ohio Op. 2d 374, 1972 Ohio LEXIS 369 (Ohio 1972).

Opinion

Corrigan, J..

The issues presented are cognate to the constitutionality of the two charter provisions before us.

As urged by appellant, they are divided into five propositions of law.

I.

It is first asserted that:

‘ ‘ The enactment of municipal charter provisions which permanently destroy the right of franchise or self-determination of a minority, either directly or through its legally elected representatives, and prohibits a voice in the enactment of legislation concerning vital governmental functions, necessary for the maintenance and continuance of its municipal government, destroys the basic constitutional rights of the citizens of self-rule and a republican form of government as provided in Article I, Section 1; Article II, Sections 1 and 10; Article V, Section 1 and Article XVIII, Sections 3 and 7 of the Ohio Constitution, and Section 4 of Article IV of the federal constitution.”

We disagree with this position in its entirety and hold that through the action of electors, in enacting by an overwhelming vote these two amendments to Cleveland’s Municipal Charter, those citizens have established the substantive policy and standards governing policemen’s and firemen’s salaries and have instructed the council as to the [118]*118manner and method of its exercise of legislative power in furtherance of such policy.

Sections 7, 8 and 9 of Article XVIII of the Ohio Constitution provide authority for the citizens of a municipality to adopt and amend their municipal charter and they constitute the ultimate legislative authority therefor.

As this court stated in Cleveland, ex rel. Neelon, v. Locher (1971), 25 Ohio St. 2d 49, 51:

1‘ The municipal charter is basically the constitution of the municipality. Here, we have a charter provision which specifically directs that council shall enact appropriate legislation to effectuate the purpose of the charter provision. It is a clear legal mandate which places an affirmative duty on the council to act.”

Section 24 of the charter, which has been in effect since 1931, clearly demonstrates the intent of the people of the city of Cleveland to retain to themselves, to the exclusion of the council, those matters specifically regulated in the charter, wherein it is provided:

“The legislative powers of the city, except as reserved to people by this charter, shall be vested in the council, each member of whom shall be elected from a separate ward. * * *” (Emphasis added.)

In the instant case, the power to change such a charter plan, even if denominated legislative in character, continues to lodge in the municipal corporation; to be changed however, not by the city council but by the city electorate, to whom that particular legislative power has been reserved.

It should be pointed out here that the feasibility or wisdom of these charter amendments is not a matter for our consideration. As we stated in State, ex rel. Hackley, v. Edmonds (1948) , 150 Ohio St. 203, 217:

“* # # But if Section 3 and Section 7 of Article XVIII of the Ohio Constitution are to have any meaning, and are not to be completely emasculated and eviscerated, we are constrained to hold that in matters of local concern the municipality has the right, in adopting its charter, to make pro[119]*119visions that may he silly and unwise. If they prove to he so, the remedy is in the hands of the people who have adopted the charter. A majority of them has the power to amend it.”

We reject appellant’s contention that these amendments to the charter “* * * destroys the basic constitutional rights of the citizens of self-rule and a republican form of government * *

Such charter provisions have no application to a republican form of government, as this court held in paragraph five of the syllabus in Hile v. Cleveland (1923), 107 Ohio St. 144, appeal dismissed, 266 U. S. 582, viz.:

“The adoption of the city manager plan of government, together with the Hare System of Proportional Representation, in a city charter, under the home-rule amendment to the Ohio Constitution, is not a denial of the republican form of government, and does not contravene Section 4, Article TV of the federal Constitution. Adoption of such a form of government raises a political question, and not a judicial question, and cannot be challenged in the courts.”

II.

As Proposition of Law No. 2, appellant avers that:

“Municipalities may not delegate legislative powers albeit to any other department of the city or to any other municipality or board, commission or other body not connected with, part of or outside of the control of such municipality whether such be by ordinance or charter.”

Appellant thus contends that charter amendment Sections 198-1 and 198-2 not only disenfranchise its citizens but constitute an unlawful delegation of power contrary to Sections 3 and 7 of Article XVIII of the Ohio Constitution.

We do not accept that interpretation. By these charter amendments the electors of Cleveland, in the exercise of their power of local self-government, have determined how the wages of their firemen and policemen shall be established and have provided that the city council must adopt the rates established by the wage formula fixed by the pro[120]*120cednre described in such sections. These electors, in the two charter amendments, have imposed upon council the obligation of ascertaining certain facts upon which the legislative policy established in the charter will be effectuated.

As cogently reasoned in appellees’ brief, the electors of Cleveland in enacting these charter amendments also took care to provide for self-limiting restraints and to eliminate any notion that they were delegating any local sovereignty to other communities in Ohio. The sections clearly provide that an ordinance fixing compensation shall be enacted only once each year, and not until the next calendar year are Cleveland policemen and firemen eligible for further wage considerations. Nothing automatically happens to Cleveland wage rates simply because another community enacts a wage rate for its safety forces different from that in Cleveland. Ordinances fixing wages in Cleveland and appropriations in furtherance thereof continue to be enacted and authorized as before, not by the electors or legislative bodies of other Ohio cities, but on an annual basis by the council of Cleveland. Further, the wages may go up or down, depending on the results of the annual survey.

An almost analogous question was before the Supreme Court of California in Kugler v. Yocum (1968), 69 Cal. 2d 371, 445 P. 2d 303. That court approved an initiated ordinance of the city of Alhambra which, in effect, provides that on January 1st of each year the city council shall establish the salaries of Alhambra’s firemen at an amount not less than the average salaries for comparable grades or ranks paid to members of the fire departments of the City of Los Angeles and the County of Los Angeles. The ordinance was challenged on the principal ground that the enactment of the ordinance constituted an unlawful delegation of legislative power.

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Cite This Page — Counsel Stack

Bluebook (online)
290 N.E.2d 546, 32 Ohio St. 2d 114, 61 Ohio Op. 2d 374, 1972 Ohio LEXIS 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuldauer-v-city-of-cleveland-ohio-1972.