State Ex Rel. Sharpe v. Hitt

99 N.E.2d 659, 155 Ohio St. 529, 155 Ohio St. (N.S.) 529, 44 Ohio Op. 489, 1951 Ohio LEXIS 608
CourtOhio Supreme Court
DecidedJune 13, 1951
Docket32444
StatusPublished
Cited by35 cases

This text of 99 N.E.2d 659 (State Ex Rel. Sharpe v. Hitt) 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
State Ex Rel. Sharpe v. Hitt, 99 N.E.2d 659, 155 Ohio St. 529, 155 Ohio St. (N.S.) 529, 44 Ohio Op. 489, 1951 Ohio LEXIS 608 (Ohio 1951).

Opinions

Zimmerman, J.

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 [534]*534parking 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 iru'tiative 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 have been filed with the city auditor * * * a petition signed by the aforestated required number of electors proposing an ordinance or other measure, said city auditor * * * shall, after ten days, certify the petition to the board of deputy state supervisors of elections of the county wherein such municipality is located.”

Section 4227-2, General Code, reads in part:

“Any ordinance, or other measure passed by the council of any municipal corporation shall be subject to the referendum except as hereinafter provided. No ordinance or other measure shall go into effect until thirty days after it shall have been filed with the mayor of a city or passed by the council in a village, except as hereinafter provided.”

[535]*535The remainder of the section' last quoted has to do with the requirements for a valid referendum petition, its filing with the designated authority within 30 days after the ordinance or other measure to which it is directed has been filed with the mayor or passed by a village council and with the subsequent disposition of such petition.

Then Section 4227-3, General Code, describes the ordinances which are not subject to referendum, including “emergency ordinances” passed by a two-thirds vote of those comprising the legislative body involved and which go into immediate effect.

This and other courts have declared that constitutional, statutory or charter provisions for municipal initiative or referendum should be liberally construed in favor of the power reserved so as to permit rather than preclude the exercise of such power, and the object clearly sought to be attainéd should be promoted rather than prevented or obstructed. State, ex rel. City of Middletown, v. City Comm. of City of Middletown, 140 Ohio St., 368, 44 N. E. (2d), 459; 62 Corpus Juris Secundum, 870, Municipal Corporations, Section 451 (b).

It is interesting to note that neither the Constitution of Ohio nor the statutes place any definite limitations on the use of the initiative. And the obvious purpose of the initiative as it affects municipalities is to reserve to the people of those municipalities the right to exercise their inherent or political power over the council or other legislative body as to local legislation. Moreover, especially in the light of Section 2, Article I of the Constitution, providing that “all political power is inherent in the people,” the adoption of the initiative and referendum as a part of the Constitution evidenced a firm resolve on the part of the people that the legislative branch of the state or local government shall be subject to the control of the [536]*536people with respect to legislative measures, except as otherwise provided.

It is apparent that the people of the city of Urbana could,have had no referendum on the ordinances relating to the designation of individual parking spaces for vehicles in that city with the installation and use of parking meters in connection therewith, for all such ordinances were enacted as emergency measures becoming immediately operative, and under the decisions of this court the declaration of the existence of an emergency is conclusive and not subject to referendum or judicial review.

Quite recently this court decided that very matter in the case of State, ex rel. City of Fostoria, v. King, And., 154 Ohio St., 213, 94 N. E. (2d), 697. The third and fourth paragraphs of the syllabus thereof read:

“3. An ordinance enacted as an emergency pursuant to the provisions of Section 4227-3, General Code, is not subject to referendum under the provisions of Section 4227-2 et seq., General Code.

“4. The duty and responsibility of determining the emergency and the necessity that a measure go into immediate effect and of giving reasons for such necessity are placed by Section 4227-3, General Code, in the council or other body corresponding to the council of a municipality. Such a determination by a municipal council and the soundness of the reasons stated by such council for such necessity are not subject to review by the courts.”

In adopting the initiative and referendum provisions of Section If, Article II of the Constitution of Ohio, it was certainly not the intention of the people to leave the voters of a municipality powerless to override legislation which might be obnoxious to them. Even though the referendum is not available because an objectionable ordinance was passed as an emergency measure, perhaps arbitrarily, the initiative al[537]*537ways remains as an authorized remedy. Otherwise, the people who elect the members of council and pay their salaries would occupy a place below the council in legislative power. Surely such was not the design and purpose of Section 1f, Article II of the Constitution.

This brings us to a consideration of the case of State, ex rel. Smith, v. City of Fremont, 116 Ohio St., 469, 157 N. E., 318, decided in 1927. It is not unreasonable to suppose that the decision of the majority of the court in that case was influenced to some extent by the facts presented, involving as they did an important question of policy having to do with the public health and welfare. In that case, it is disclosed that a difference of opinion existed among the residents of the city of Fremont as to the desirability of installing a filtration plant for the purification of the city’s existing water supply or of drilling additional wells and constructing an emergency reservoir and equipment.

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Bluebook (online)
99 N.E.2d 659, 155 Ohio St. 529, 155 Ohio St. (N.S.) 529, 44 Ohio Op. 489, 1951 Ohio LEXIS 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-sharpe-v-hitt-ohio-1951.