State ex rel. Sheldon Gas Co. v. Board of Elections of Hancock County

356 N.E.2d 720, 48 Ohio St. 2d 49, 2 Ohio Op. 3d 166, 1976 Ohio LEXIS 702

Opinion

Per Curiam.

This is an original action in which the relator,' Sheldon, Gas Company, seeks to prohibit the respondent Board' of Elections of Hancock County from submitting an ordinance fixing the rates, which relator, ;a public utility, may charge and collect for natural -gatr service in the village of Vanlue, Ohio, to the voters at the November 2, 1976, general election.

The ordinance (No. 1975-6) was enacted by village council oh November 3, 1975, and accepted as a contract by the relator on that date.

On or about December 1, 1975, a referendum petition was filed with the Vanlue village clerk demanding submission of Ordinance No. 1975-6 to a vote of. the village’s electors. The petition was submitted on forms prescribed for compliance with the referendum procedure set forth-in E. C. 731.28 et seq. and was accompanied by instructions to the village clerk to comply with said statutory procedure.

The referendum petition was transmitted directly to the respondent board of elections to be submitted to the village’s electors at the next regularly scheduled general election to be held November 2, 1976.

On' March 1, 1976, relator advised the Yanlue village clerk that it had begun charging the rate increase authorized by the ordinance. Subsequently, relator’s petition for a writ of prohibition was filed with this court:

*

Relator bases its right to relief upon the allegation that the .respondent referendum petitioners, the Vanlue city council^ and the respondent board of elections failed to comply with the mandatory and self-executing provisions of Sections 5 and 8, Article XVIII of the Ohio .Constitution.

This court held, in State, ex rel. Janik, v. Bd. of Elections (1968), 16 Ohio St. 2d 63, 64, that “a referendum on an ordinance of the kind involved * * * [fixing rates which relator could charge for natural gas] is controlled exclusively by the provisions of Sections 5 and 8 of Article XVIII of. the Constitution of Ohio and that those, provisions are self-executing.”

. ■ Respondents admit that the “village council has not determined the sufficiency of the petition nor has it otherwise acted ip accordance. with Article XVIII, .Section 8 of the Ohio Constitution.” They allege that.the provisions of Section 8. of Article XVIII are not applicable here.

Fop the foregoing reasons, the writ of prohibition is allowed.

Writ allowed.

0’Neill, C.. J., HeRbeex, Corrigan, Stern, Celebeezze. W. Bpo'wn and P.,Beown, JJ., concur.

Respondent b:oard of elections does not contest the complaint. Intervening■ 'résporidents aré proponents of the • referendum petition herein. . ' .