
    The City of Cincinnati v. Hillenbrand et al., Board of Deputy State Supervisors, etc.
    
      Initiative and referendum — Injunction — Expenditures for election — Compliance with mandatory provisions — Constitutionality of proposal not determined, when — Municipal initiative and referendum— Section if, Article II, Constitution — Power to be exercised, how — Sections 4227-1 to 4227-12, General Code — Petitions to contain ordinances, etc. — Section 4227-4, General Code.
    
    1. Injunction is the proper remedy to prevent the expenditure of public money by a board of deputy state supervisors of elections in submitting to the electors a statute or ordinance pursuant to an initiative petition, where mandatory provisions of the constitution or statute prescribing the necessary preliminary steps to authorize such submission have not been complied with.
    2. This court has no authority to pronounce a judgment or decree upon the question whether a proposed law or ordinance will be ■ valid and constitutional if enacted by a legislative body or adopted by the electors. And where the mandatory provisions of the constitution or statute prescribing the necessary preliminary steps to authorize the submission to the electors of an initiative statute or ordinance have been complied with the submission will not be enjoined. (Pfeifer v. Graves, Secretary of State, 88 Ohio St., 473, approved and followed.)
    3. Section If, Article II of the Constitution, especially reserves the initiative and referendum powers to the people of each municipality on all questions which municipalities are now, or hereafter may be, authorized by law to control by legislative action, and provides “that such powers shall be exercised in the manner now or hereafter provided by law.” Sections 4227-1 to 4227-12, General Code, inclusive, prescribe the manner in which such powers shall be exercised.
    4. Section 4227-4, General Code, provides that .any initiative or referendum petition may be presented in separate parts but each part of any initiative petition shall contain a full and correct copy of the title and text of the proposed ordinance or other measure. An initiative petition which includes a correct copy of the title and text of a proposed ordinance is sufficient to authorize the. submission thereof to the people if the requirements of the statute in other respects are complied with.
    No. 17004
    Decided September 27, 1921.)
    Error to the Court of Appeals of Hamilton county.
    This was an action brought by the city of Cincinnati in the court of common pleas of Hamilton county seeking an injunction to restrain the defendants from submitting to the electors of the city at a special election a certain ordinance proposed by initiative petitions.
    The petition in the court of common pleas avers the corporate capacity of the city and that the defendants are duly qualified and acting members of the board of deputy state supervisors of elections of Hamilton county; that on March 4, 1921, certain initiative petitions proposing an ordinance were filed by certain parties named, with the city auditor of the city, said parties claiming to be a committee designated for that purpose, and the petitions purporting to contain 22,271 signatures, the petitioners setting forth that they were proceeding in the manner required by law to secure the submission of said ordinance to the voters. A copy of the initiative petition and the ordinance proposed is set forth in the petition for injunction. A copy of the proposed ordinance is as follows:
    “Amendment to Ordinance No. 253-1918, passed August 23, A. D. 1918, proposed by initiative petition to be submitted directly to the electors of the City of Cincinnati, State of Ohio:
    
      “Be it ordained by the people of the city of Cincinnati, State of Ohio:
    “Sec. (1). That The Cincinnati Street Railway Company and The Cincinnati Traction Company, their successors and assigns, be and they are hereby ordered to extend the tracks of the said East End route as follows:
    “Beginning at the intersection of Eastern avenue and Stanley avenue; thence in a southerly direction along and in the center of said Stanley avenue and along the Interurban Railway Terminal Company tracks; thence along the said I. R. T. tracks in an easterly direction to the corporate limits of the City of Cincinnati opposite entrance to the Coney Island Company park.
    “Said companies are hereby ordered to construct, maintain and operate along said route and along said I. R. & T. tracks, double tracks, including all poles, wirés, cross-overs, switches, loops, wyes, overhead electric construction, and appliances necessary for the continuous operation of said electric street railway extension. The said companies are further ordered’ to bring whatever condemnation proceedings or other proceedings as may be necessary either in or out of court for the purpose of securing such rights of way as may be necessary over the said route and over the said I. R. T. tracks.
    “The said companies are to operate cars of the usual standard type now operated or which may be operated in the future by the said companies over any of their other present routes, and further the said companies are ordered to operate said cars at an interval of not less than one-half hour apart.
    
      “Said companies are ordered to commence the construction of said extension within thirty (30) days after the passage of this ordinance and to complete said extension to the corporate limits of the City of Cincinnati opposite the entrance to the Coney Island Park as aforesaid in not to exceed three (3) months from the beginning of said work, the location of the tracks and appurtenances and the manner of construction to be approved by the director of public service.
    “That the -aforesaid extension shall be known and the cars thereof marked California Line.
    “This grant shall be subject to each and all the terms and conditions of the resolution adopted by the Board of Administration of the City of Cincinnati on August the 13th, 1896,-granting an extension of time, etc., to the Cincinnati Street Railway Company and subject to each and all the terms and conditions of Ordinance No. 253-1918, passed by the Council of the City of Cincinnati, August 23, 1918, and further providing that said Ordinance No. 253-1918, shall remain in full force and effect and shall in no way be changed by this ordinance except as shall be necessary for the carrying out of this initiative ordinance.
    “This grant shall further be subject to all the resolutions and ordinances of the City of Cincinnati, and the General Street Railway Ordinances of the City of Cincinnati, and as provided by law.” The petition further avers that on August 13, 1896, the board of administration of the city of Cincinnati, under and by virtue of the act passed by the general assembly on April 22, 1896, known as the Rogers law, adopted a resolution extending the term of the franchise of the Cincinnati Street Railway Company for a period of fifty years from and after the date of the passage of the act, and that the resolution provided the terms and conditions upon which said extension was granted to said street railway company; that in Section 2505<i of the Rogers law it is provided as follows, “And provided further that the municipal corporation in which such street railroad is situated shall have the power at the end of twenty years from the passage of this act, and every fifteen years thereafter, to fix the rates of fare, car license fees and percentage tax on gross earnings, transfers and all other terms and conditions on which such railroad is operated in said city. The said term shall be fixed by the Board of Administration, if there be such a board, and if there be none, then by the common council or legislative body of the municipal corporation, and must be approved and confirmed in the manner which at the time may be required for other acts of such municipal corporation;” and that immediately upon the adoption of the resolution said street railway company accepted the same in writing, and by reason of this adoption and written acceptance the same resulted in a valid and binding contract between the city and the company, its successors and assigns.
    Plaintiff says that said ordinance No. 253-1918, which is sought to be amended by the proposed initiative ordinance, constitutes and is the revision authorized to be made by the council of the city at the end of twenty years from the passage of the Rogers law and said resolution. Then follows the title of ordinance No. 253-1918, passed August 23, 1918, referred to.
    It is further averred that it is provided in Section 15, Article II of the Constitution of Ohio, providing for legislation by initiative petition, that the full text of the proposed law shall be set forth in' such petition; that in Section 16, Article II of the Constitution, it is provided that no law shall be revived or amended unless the new act contains the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed; and that in Section 4226, General Code, it is provided that “No by-law or ordinance, or section thereof, • shall be revived or amended, unless the new by-law or ordinance contains the entire by-law or ordinance, or section revived or amended, and the by-law or ordinance, section or sections so amended shall be repealed.”
    It is further averred that the ordinance in the initiative petition seeks to amend the ordinance No. 253-1918 without containing in full the entire text of the ordinance which it seeks to amend and revive, etc.; that by reason of these facts said initiative petitions are insufficient in law to warrant the defendants in submitting the proposed ordinance to the electors of the city.
    It is further averred that the ordinance so proposed by initiative petition seeks to require the extension of the East End street railway route in the city of Cincinnati, from the intersection of Eastern avenue and Stanley avenue, in an easterly direction to the corporate limits of the city of Cincinnati, opposite the entrance to the Coney Island Park, and it is averred that at a prior election in November, 1920, a similar ordinance was presented to the electors and defeated. It is averred that the submission of the ordinance at a special election would cost at least fifty thousand dollars and that it would be a wastage of public funds.
    It is further averred that the owners of more than one-half of the feet front of the lots and lands abutting on the streets and public ways on which it is proposed to extend said railway have not consented in writing to the construction of same, nor has the city planning commission of Cincinnati approved its construction, extension or operation; that because of the facts above alleged said initiative petitions áre null and void.
    It is further averred that the defendants threaten to and will unless restrained by the court submit the proposed ordinance to the electors of the city at a special election to be held on the fifth Tuesday after the filing of the petition, and will use and expend the public moneys of the city for defraying the cost and expenses of holding said election, to the irreparable injúry of the city.
    Wherefore the plaintiff prays the injunction as stated.
    The defendants demurred to the petition on the ground that the court had no jurisdiction of the subject' of the action, that the action was not brought within the time limited by the-law for the commencement of such actions, and that the petition did not - state facts sufficient to constitute a cause of action.
    The court of common pleas overruled the demurrer, and entered judgment for the plaintiff. The cause was appealed to the court of appeals, and that court sustained the demurrer and dismissed the petition of the plaintiff.
    This proceeding is brought to reverse the judgment of the court of appeals and affirm that of the court of common pleas.
    
      Mr. Saul Zielonka, city solicitor, and Mr. William Jerome Kuertz, for plaintiff in error.
    
      Mr. Louis H. Capelle, prosecuting attorney; Mr. C. S. Durr and Mr. Chas. S. Bell,, for defendants in error.
   Johnson, J.

It is contended by the plaintiff in error that the demurrer to the petition should have been overruled by the court of appeals because the ordinance proposed by the initiative petition failed to comply with certain jurisdictional prerequisites to the holding of an election thereon, in that it sought to amend ordinance No. 253-1918, passed by the city council, without containing in full the entire text of that ordinance, or the entire section or sections of that ordinance which it sought to amend, and without containing a repeal of such section or sections of said ordinance; further, in that there was not filed with the auditor of the city of Cincinnati, nor with the council of the city, at the time of the filing of the initiative petition, the consents in writing of the owners of more than one-half of the feet front of lots and lands abutting on the streets on which it is proposed to extend the street railway route; and, further, that the city planning commission had not approved of the same.

Defendants in error urge that the .judicial branch of the government has no authority to enjoin the legislative branch from exercising its right to legislate and they urge that the proceedings sought to be enjoined are steps authorized by the constitution, by which the people of the state and of the municipalities participate in legislation. They rely upon the case of Pfeifer v. Graves, Secretary of State, 88 Ohio St., 473, in which it is held that “This court has no authority to pronounce an opinion, a judgment or a decree upon a mere moot question as to whether a proposed law will conflict with the Constitution, if it shall be enacted by the general assembly, or be adopted by the people.” There is no doubt concerning that proposition. However, the contention here not only involves the validity of proposed legislation, if enacted, and as to this injunction will not lie, but presents the question whether those desiring to initiate certain municipal legislation have complied with preliminary prerequisites necessary to be fulfilled before an initiative ordinance, valid or invalid, may be submitted to the electors. Such preliminary steps are specifically prescribed by statute, Section 4227-1 et seq.

The petition in this case avers that the board of deputy supervisors are about to proceed with the expenditure of a large amount of public money in submitting to the electors an ordinance as to which necessary preliminary steps to authorize such submission have not been taken in accordance with law. There is thus presented a different question than was presented in the case cited, and we are clear in the opinion that where the board of elections is about to expend the public money in the holding of a special election, for which the necessary preliminary steps have not been taken in accordance with mandatory provisions of the constitution or the statute, injunction is a proper remedy. (Green v. State Civil Service Commission, 90 Ohio St., 252, and Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St., 374, 383.) But the question remains: Did the initiative petitioners in this case fail to fulfill the necessary preliminary steps in order to authorize the submission of the proposed initiative ordinance to the electors?

It will be observed that the original resolution was passed by the city board of administration and accepted by the street railway company in August, 1896, and that a revision thereof was made in 1918 by the city council, in accordance with the provisions of Section 2505d of the Rogers law in which section it is provided that the “municipal corporation shall have the power at the end of the twenty years from the passage of this act, and every fifteen years thereafter, to fix the rate of fare, car license fees and percentage tax on gross earnings, transfers and all other terms and conditions on which such railroad is operated in said city,” and that “the term shall be fixed by the Board of Administration, if there be such a board, and if there be none, then by the common council or legislative body of the municipal corporation.”

Section 1f, Article II of the Constitution, provides : “The initiative 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.”

It is contended that Section 4226, General Code, controls in this case and lays down the manner in which “such powers shall be exercised.” That section provides that no ordinance or by-law shall contain more than one subject, which shall be clearly expressed in its title; that “no by-law or ordinance, or section thereof, shall be revived or amended, unless the new by-law or ordinance contains the entire by-law or ordinance, or section revived or amended, and the by-law or ordinance, section or sections so amended shall be repealed. Each such by-law, resolution and ordinance shall be adopted or passed by a separate vote of the council and the yeas and nays shall be entered upon the journal.”

The ordinance in the proposed initiative petition does not purport to alter or make any change whatever in the original ordinance, as revised in 1918, being ordinance No. 253-1918. The proposed initiative ordinance leaves ordinance No. 253-1918 precisely as it is, but proposes to make an amendment or supplement to that ordinance by an extension along the route in the manner stated in the initiative ordinance. But does Section 4226, General Code, apply to the question before us ?

Section 1f, Article II of the Constitution, quoted above, which reserves the initiative powers to the people of the municipality, provides that “such powers shall be exercised in the manner now or hereafter provided by law.”

The section relied on by the plaintiff in error, which we have quoted above, Section 4226, General Code, manifestly contemplates an ordinance or resolution or by-law which has been introduced and is adopted or passed by the council of the city, and provides for a yea and nay vote to be entered on the journal. It does not purport to provide the manner in which “such powers shall be exercised under the initiative and referendum provision.” But the legislature has provided for the exercise of the initiative and referendum powers by provisions which are found in Sections 4227-1 to 4227-12, inclusive, General Code.

Section 4227-4, General Code, provides that “Any initiative or referendum petition may be presented in separate parts but each part of any initiative petition shall contain a full and correct copy of the title and text of the proposed ordinance or other measure and each part of any referendum petition shall contain the number and a full and correct copy of the title of the ordinance or other measure sought to be referred.” A reading of the petition discloses that this requirement was complied with in this case.

The purpose of the statute was to carefully provide that there should be placed before the voters the full text of the particular thing upon which they were to vote. It would be manifestly cumbersome and difficult of practical operation in many cases where the people desire to supplement an' ordinance already in existence, 'such as an extensive franchise-ordinance, to set out the full text of the ordinance which it is desired to supplement. The proposed initiative petition must in all cases “contain a full and correct copy of the title and text of the proposed ordinance” in order to comply with the above section. The constitutional provision cited in the briefs of counsel for the plaintiff in error, Section 16, Article II, which provides that “no law shall be revived, or amended unless the new act contains the entire' act revived, or the section or sections amended, and the section or sections so amended shall be repealed,” can have no application here, bec'aúse in this case it is the ordinance of a city that is being dealt with and there is no constitutional provision with reference to municipal ordinances similar to the one relating to statutes.

Section 1f, Article II, is a comprehensive grant of power to the people of municipalities, and the legislation with reference to its exercise is obviously such legislation as is found in the provisions of Section 4227-1 et seq., to which we have referred. We think this proposed initiative ordinance is a substantial compliance with the statutory provisions which have been passed to provide for the exercise of such power.

It is further contended that the demurrer should have been overruled because of the averment in the petition that there were not filed with the auditor the consents in writing to the proposed street railway 'extension of the owners of more than one-half of the feet front of the lots and lands abutting on the streets, and that the city planning commission had not approved of the same.

The section of the General Code touching this matter is 9105, which provides that “No such grant shall, be made until there is produced to council * * * the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way.”

It is stated by counsel for the defendants in error that since the beginning of this case the initiative committee has secured the written consents of more than one-half of such abutting property owners to the proposed extension.

It will be observed that the statute does not require the securing of such consents as a condition precedent to the introduction of such an ordinance. into the council. The provision is that the grant shall not be made until they are produced. Of course if the council, or the people, should adopt such an ordinance without any necessary preliminary requisite, it would not be valid. If there have been, however, as counsel state, the necessary written consents filed, that objection will be obviated. And as held in Pfeifer v. Graves, supra, this court will not pass upon its validity in anticipation of its adoption.

It is also contended by the plaintiff in error that the acceptance by the street railway .company in 1896 of the resolution passed by the city through its board of administration constituted a contract between them, and that this contract cannot be impaired during its legal existence by the city or the people without violating the federal and state constitutions, and this is true. (City of Cincinnati v. Public Utilities Commission, 98 Ohio St., 320.) But the question whether the proposed initiative ordinance would if adopted violate the provisions of the Rogers law, or impair a valid and legal contract made pursuant thereto, is a question that goes to the validity of the legislation itself. Under the well-settled rule stated in Pfeifer v. Graves, supra, if such an ordinance were introduced and pending in the city council “the court.would not pronounce a judgment or decree” on the question whether it would be constitutional if passed, and the same rule applies under the same authority when the legislation is pending before the electors. Of course if the electors adopt legislation which violates the constitution it will be invalid and all parties injuriously affected thereby will be protected by the courts.

It is also contended that the time having expired which is fixed by the statute for an election to be held after the initiated petition was filed, there is no power now to fix a time for such an election. Of course it is conceded that this time has expired by reason of the pendency of these injunction proceedings. We are convinced that the time which has been so occupied should not be counted in arriving at the period referred to. To hold otherwise would not only permit parties to benefit by their own unfounded actions, but would encourage pro-cedings whose purpose and effect would be to annul the constitutional .right reserved to the people.

The judgment of the court of appeals will be affirmed and this cause will be remanded to that court for such order in the premises as is proper and in accordance with this opinion.

Judgment affirmed.

Marshall, C. J., Hough, Wanamaker, Robinson, Jones and Matthias, JJ., concur.  