State ex rel. Lemaitre v. City of Clyde

453 N.E.2d 644, 6 Ohio St. 3d 344, 6 Ohio B. 399, 1983 Ohio LEXIS 834

• Court: Ohio Supreme Court
• Decided: August 31, 1983
• Docket: No. 82-1513
• Status: Published

Opinions

Per Curiam.

Following the stipulations by the parties at the trial level, the only issue for determination is whether the ordinance passed by the city council was a subject matter which by its nature is excluded from the provisions providing for the passage of emergency ordinances by the Charter of the city of Clyde.

Appellants assert that the ordinance is subject to enactment as an emergency ordinance based upon two grounds: (1) that the prohibition in Section 4-6 applies only to regulation of rates charged by privately owned public utilities and that a municipally owned water treatment plant is not a public utility within the contemplation of the section; and (2) that the ordinance does not directly regulate the “rate to be charged for public utility service,” in that it merely grants the power to do so to the city manager. Appellants rely on Columbus, ex rel. Willits, v. Creaman (1971), 27 Ohio App. 2d 137 [56 O.O.2d 310], for their contention that a municipally owned water treatment plant is not within the purview of city charter Section 4-6. In Willits, the Court of Appeals for Franklin County was called upon to construe a Columbus City Charter provision similar to the one in the present case. That court held in paragraph two of the syllabus, that:

“A provision in a city charter prohibiting a ‘public utility’ from enacting legislation of an emergency nature regulating the rate to be charged for its service does not apply to the increasing of sewer rates of a municipally owned utility by a city council.”

The court of appeals noted a distinction existed between privately and publicly owned public utilities in the Columbus City Charter.

No such distinction exists in the Charter of the city of Clyde. The charter makes no other mention of public utilities outside the bounds of Section 4-6. The court of appeals, in the present case, correctly pointed out that the language construed in Willits did not involve the words “public utility service,” but rather the words “public utility.” The use of the term “public utility service” connotes a broader spectrum of inclusion by the provisions of Section 4-6, in the present case, than by the charter provision construed in Willits. For these reasons Willits can be distinguished on its facts.

This court expressed in Britt v. Columbus (1974), 38 Ohio St. 2d 1 [67 O.O.2d 1], at paragraph two of the syllabus, that:

“A sewerage system owned and operated by a municipality for the benefit of its inhabitants is embraced within the term ‘public utility’ * *

In light of the foregoing, this court finds that the term “public utility” includes both publicly and privately owned utilities. Applying this finding to Section 4-6, we conclude the terms of the section excluding ordinances dealing with the regulation of rates “to be charged for public utility service” from the provisions of an emergency ordinance must be honored. The right of referendum⁴ is a primary right of the citizenry of Ohio for the redress of their grievances against the governmental bodies which regulate their freedoms. As such, the right must be accorded the utmost protection, and any conflicts which arise concerning the availability of referendum, in relation to a particular ordinance, should be resolved in favor of preserving the right of referendum. In the present case, the court is compelled to interpret Section 4-6 as a conscious preservation of the right of referendum by the electorate of Clyde, which must be read in its literal sense, as a bar to the emergency passage of Ordinance No. 1981-68.

As to appellants’ argument that the ordinance is not a regulation of the utility rates, which is barred by Section 4-6, but a mere grant of power to the city manager to regulate rates in the future, this court agrees with the trial court that such argument is “* * * really a distinction without a difference.” Thus an action in mandamus is proper to compel the filing of the referendum petitions presented by appellees to appellant Scheer.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

Celebrezze, C.J., W. Brown, Sweeney, Holmes, C. Brown and J. P. Celebrezze, JJ., concur. Locher, J., dissents.

4 See Section If, Article II of the Constitution of Ohio, and R.C. Chapter 731.