
    The State, ex rel. Portmann, v. City Council of City of Massillon, etc.
    (No. 26866
    Decided July 6, 1938.)
    
      
      Mr. Lewis C. Wiggins, Mr. Perry A. Kuhn and Mr. Jack Roesch, for relator.
    
      Mr. Emmett D. Graybill, city solicitor, and Mr. Elson Wefler, for respondent.
   Gorman, J.

The claim is made that this action, being filed on January 6, 1938, was prematurely instituted because at that time Council of the city of Massillon had not definitely rejected Ordinance No. 3824 which proposed the referendum election upon Ordinance No. 3812. The court might entertain serious doubts as to the propriety of the action at the time it was filed were it not for the admissions contained in the answer filed by the city solicitor on behalf of the council. Contained therein we find this statement:

“Respondents admit that thereafter, upon the dates alleged in the petition, that these respondents were qualified as councilmen; that Ordinance No. 3824 was introduced to council at the first regular meeting thereof but that council refused to suspend the rules requiring three separate readings thereon and refused to take any further action thereon because of the legal insufficiency of said referendum petitions.” (Italics ours.)

By reason of such an admission we are confronted with but one question: Was the referendum petition, filed with the mayor and approved as to sufficiency in number by council on December 29, 1937, legally sufficient to compel the council to submit the provisions of Ordinance No. 3812 to a vote of the people? If it was, the writ should be granted. If it was not, the writ should be denied.

Ordinance No. 3812 is one which provides for the purchase of electric current, a public utility product. As such, it is subject to the reférendum provisions of Section 5 of Article XVIII of the Ohio Constitution. Ohio River Power Co. v. City of Steubenville, 99 Ohio St., 421, 124 N. E., 246.

It is claimed by respondents that referendum provisions relating to ordinances for products of public utilities are subject to Section 8 of Article XVIII of the Ohio Constitution, which provides the manner in which a municipal charter may be adopted. We have held that petitions in the nature of an‘initiative, not a referendum, to amend a municipal charter should comply with the statutory provisions contained in Sections 4227-1 et seq., General Code, if not inconsistent with the provisions of the Constitution. State, ex rel. Poor, v. Addison et al., Council, 132 Ohio St., 477, 9 N. E. (2d), 148.

By analogous reasoning, respondents contend that the referendum provisions contained in these statutes supplement the constitutional provisions and are applicable in the case of a referendum on an ordinance fixing utility rates.

Such reasoning loses sight of the express wording of the Constitution which definitely makes a distinction between municipal charters and public utility contracts.

The provisions of Sections 4 and 5 of Article XVIII specifically state that a referendum petition on a utility ordinance shall be filed with the executive authority by ten per centum of the electors within thirty days after the passage of the ordinance. Following the case of Ohio River Power Co. v. City of Steubenville, supra, this court held that these provisions were self-executing and controlling over any contained in the' statutes. See State, ex rel. City of Toledo, v. Weiler, 101 Ohio St., 123, 128 N. E., 88; Link v. Public Utilities Commission, 102 Ohio St., 336, 338, 131 N. E., 796; State, ex rel. Sweeney, v. Michell et al., Council, 128 Ohio St., 266, 191 N. E., 98; State, ex rel. Reeves, v. Hillyer, Aud., 128 Ohio St., 294, 191 N. E., 2.

In the very recent case of State, ex rel. Mitchell, v. Council of Village of Milan, 133 Ohio St., 499, the court held that Section 5 of Article XVIII was self-executing and required no assistance of any statute to give it effect and operation. Its provisions governed to the exclusion of those contained in Section 4227-2 et seq, General Code.

This was directly in accord with the view that no legislative act can in any wise modify or restrict the power conferred by constitutional provision.

It is said, however, that Section 1/ of Article II gave power to municipalities to adopt supplementary legislation. That section referred only to those questions “which such municipalities may now or hereafter be authorized by law to control by legislative action.”

The powers of municipalities in reference to public utilities contained in Section 4 of Article XVIII of the Ohio Constitution, were granted expressly in 1912. Therefore, the power of referendum over utility products contracts had to be and was granted expressly under Section 5 of Article XVIII, which provisions of necessity became self-executing. See State, ex rel. Didelius, City Solicitor, v. City Commission of City of Sandusky, 131 Ohio St., 356, 362, 363, 2 N. E. (2d), 862.

The contention of respondent, however, cannot be upheld for another reason. Section 5 of Article XVIII merely provides that “the submission of any such question shall be governed by all the provisions of Section 8 of this Article as to the submission of the question of choosing a charter commission.” (Italics ours.) Section 8 would be controlling in reference to the mandatory necessity of adopting an ordinance fixing the time and place of an election, the mailing of notices, the form of ballot used, and the like, after a valid petition has been filed. The provisions of Section 8 would not be controlling in reference to the sufficiency of the petition except by a strained construction of the term “submission” of the question.

In accordance with past decisions, .the court holds that while the statutory provisions relating to the referenda apply to the adoption of municipal charters, where not inconsistent with the Constitution, nevertheless such laws are not applicable to a referendum upon an ordinance providing for a contract for the product of a public utility since Sections 4 and 5 of Article XVIII are exclusive and self-executing. Section 8 of that Article controls only in regard to the submission of the question and not to the sufficiency of referendum petitions. This distinction was aptly pointed out in James v. Ketterer, 125 Ohio St., 165, 180 N. E., 704.

Nowhere in the Constitution do we find any provision for the verification of petitions by circulators in the case of a referendum such as is now before the court. Since the constitutional provisions are exclusive and self-executing, we conclude none is required.

Council having passed on the sufficiency of the number of signers of the petition as required by the Constitution (See State, ex rel. Hinchliffe, v. Gibbons et al., Council, 116 Ohio St., 390, 156 N. E., 455; State, ex rel. Waltz, v. Michell, 124 Ohio St., 161, 177 N. E., 214), the claim that there was an improper verification must he rejected. No legal obstacle confronted council to prevent the adoption of Ordinance No. 3824, and its refusal to adopt legislation providing for a referendum after the petition was found to be sufficient was without legal sanction. The writ of mandamus ordering Council of the city of Massillon to adopt an ordinance providing for a referendum election upon the provisions of Ordinance No. 3812 is hereby granted.

Writ allowed.

Weygandt, C. J., Matthias, Day and Williams, JJ., concur.

Myers, J.,

dissenting. I am unable to agree with the majority opinion for the reason that the petition did not conform to Section 4227-4, General Code. In the instant case I agree that the provisions of the Constitution are self-executing insofar as they provide the machinery for the purpose intended. Article II, Section 1f of the Constitution is as follows: “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.” Sections 4227-1 to 4227-13 inclusive, General Code, were enacted to provide by general law for the manner in which the initiative and referendum powers of a municipality shall be exercised. A municipality having a home rule charter may provide in such charter the manner in which the initiative and referendum may be exercised. See Section. 7, Article XVIII of the Constitution and also Section 4227-12, General Code. The municipality here involved has no home rule charter.

Section 5, of Article XVIII of the Constitution, provides that the submission of such a question, shall be governed by' the provisions of Section 8 of Article XVIII. Section 8 sets forth in general terms the manner in which such a referendum shall be conducted and then states that provision for the election “shall be made by the legislative authority of the municipality insofar as not prescribed by general law.” In this instance provision was made by general law to carry out the spirit as well as the letter of this section and also Section If; of Article II of the Constitution.

Zimmerman, J., concurs in the foregoing dissenting opinion.  