PAYNE v. STATE Ex Guitteau

Ohio Court of Appeals

PAYNE v. STATE Ex Guitteau

166 N.E. 907, 32 Ohio App. 189, 6 Ohio Law. Abs. 690, 1928 Ohio App. LEXIS 372

CourtOhio Court of Appeals

DecidedSeptember 27, 1928

Docket2130

StatusPublished

Cited by3 cases

This text of 166 N.E. 907 (PAYNE v. STATE Ex Guitteau) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

PAYNE v. STATE Ex Guitteau, 166 N.E. 907, 32 Ohio App. 189, 6 Ohio Law. Abs. 690, 1928 Ohio App. LEXIS 372 (Ohio Ct. App. 1928).

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Opinion

WILLIAMS, J.

There is no question that the charter of the City of Toledo, which became effective January 1, 1916, requires the ordinances passed by the Council to be submitted to the Mayor for approval and gives him the veto power. We think it is obvious, however, that the city charter can not enlarge the provisions of the Constitution of Ohio with reference to ah amendment to such charter and that the matter is fully 'covered by that part of Section 9 of Article XVIII of the Constitution of Ohio which reads as follows:

“Amendments to any • charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof.”

The contention of the plaintiff in error is that the words “legislative authority” include not only the exercise of legislative power by the municipal council but the approval or rejection of the ordinance by the mayor. The contention can not be sustained and such a construction would be a strained one. By the plain terms of the Constitution the council may submit to the electors of a municipality an amendment to the charter by the vote of two-thirds or more of its members, and that when the council takes such action the electors of the municipality have the right to determine the question, and the approval of the mayor is not required, nor can the mayor take that right away by an exercise of the veto power.

As the Clerk of the Council had complied with the command contained in the writ of mandamus before the commencement of this proceeding in error, there is some question whether or not the matter presented is a1 moot question. We have found, however, no difficulty in deciding the case upon its merits.

Finding no error in the record prejudicial to the plaintiff in error, the judgment will be affirmed.

(Richards and Lloyd, JJ., concur.)

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WILLIAMS, J.

There is no question that the charter of the City of Toledo, which became effective January 1, 1916, requires the ordinances passed by the Council to be submitted to the Mayor for approval and gives him the veto power. We think it is obvious, however, that the city charter can not enlarge the provisions of the Constitution of Ohio with reference to ah amendment to such charter and that the matter is fully 'covered by that part of Section 9 of Article XVIII of the Constitution of Ohio which reads as follows:

“Amendments to any • charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof.”

The contention of the plaintiff in error is that the words “legislative authority” include not only the exercise of legislative power by the municipal council but the approval or rejection of the ordinance by the mayor. The contention can not be sustained and such a construction would be a strained one. By the plain terms of the Constitution the council may submit to the electors of a municipality an amendment to the charter by the vote of two-thirds or more of its members, and that when the council takes such action the electors of the municipality have the right to determine the question, and the approval of the mayor is not required, nor can the mayor take that right away by an exercise of the veto power.

As the Clerk of the Council had complied with the command contained in the writ of mandamus before the commencement of this proceeding in error, there is some question whether or not the matter presented is a1 moot question. We have found, however, no difficulty in deciding the case upon its merits.

Finding no error in the record prejudicial to the plaintiff in error, the judgment will be affirmed.

(Richards and Lloyd, JJ., concur.)

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Bluebook (online)

166 N.E. 907, 32 Ohio App. 189, 6 Ohio Law. Abs. 690, 1928 Ohio App. LEXIS 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payne-v-state-ex-guitteau-ohioctapp-1928.

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