Opinion
No. 74-1045
Decided June 11, 1975.
Municipal corporations — Zoning ordinance — Referendum — Charter provision for filing verified copy of ordinance — Filing copy not compliance — Mandamus.
APPEAL from the Court of Appeals for Cuyahoga County.
This cause arises out of an attempt by Robert Bry, appellant herein, to have put to referendum a zoning ordinance adopted by the Rocky River city council which changed the zoning of a residential neighborhood from "one-family" to "townhouse."
Section 1, Article VIII of the Rocky River charter, provides that such ordinances are subject to referendum in accordance with the laws of the state of Ohio.
The pertinent state statute is R.C. 731.32, which reads:
"Whoever seeks to propose an ordinance or measure in a municipal corporation by initiative petition or files a referendum petition against any ordinance or measure shall, before circulating such petition, file a verified copy of the proposed ordinance or measure with the city auditor or the village clerk." (Emphasis ours.)
Section 3, Article IV of the Rocky River charter, provides that the city's director of finance is to perform the duties imposed by state law upon city auditors or treasurers.
Appellant allegedly filed certain papers with Robert L. Renouard, director of finance, and Elizabeth F. Kirk, clerk of city council, appellees herein. After the time expired in which referendum procedures might be instituted, Renouard notified appellant that the text of the ordinance would not be certified to the board of elections.
Appellant instituted the instant mandamus action in the Court of Appeals, requesting that appellees be directed to certify the ordinance. Appellant filed a motion for summary judgment and appellees filed alternative motions for summary judgment or for dismissal based upon appellant's failure to state a claim. The court denied appellant's motion for summary judgment, granted appellees' motion to dismiss, and dismissed the complaint.
The cause is now before this court upon an appeal as a matter of right.
Messrs. McNamara, Gemperline Wagner and Mr. John G. Salmon, for appellant.
Messrs. Kelley, McCann Livingstone, Mr. Walter C. Kelley and Mr. Stephen M. O'Bryan, for appellees.
In his complaint for a writ of mandamus, appellant avers that the provisions of R.C. 731.32, supra, and 731.29 had been complied with; that he had filed "the necessary documents" with both appellees; and that both appellees had signed, on June 13, 1974, a receipt for a "verification copy of the proposed ordinance."
However, construing the evidence of record most strongly in favor of appellant discloses that Mr. Bry prepared a xerographic copy of a verified copy of the proposed ordinance and other documents required to be filed with appellees, placed them in an envelope, and instructed his wife to take the envelope to city officials the next day for filing. Mrs. Bry merely delivered the envelope to the office of appellee Kirk at a time when appellee Renouard was on vacation. Five city employees had occasion to review the contents thereof and each individual, including appellee Kirk, affirmed under oath that no ordinance or copy thereof was contained in the envelope. Thomas E. Allen, Director of Law for Rocky River, publicly explained at a July 1 council meeting that the referendum petitions had not been properly filed.
Appellant contends that his allegation of proper filing precludes a dismissal of the mandamus action.
On the other hand, appellees contend, in effect, that the Court of Appeals was correct in not granting a writ of mandamus because the evidence conclusively establishes that a verified copy of the proposed ordinance was never filed in accordance with R.C. 731.32. See State, ex rel. Clink, v. Smith (1968), 16 Ohio St.2d 1.
This court agrees with both contentions. The allegation of proper filing should prevent a dismissal inasmuch as a cause of action has been "stated." Civ. R. 9(C). However, where evidence shows such allegation to be false or frivolous, a summary judgment may properly issue. Civ. R. 56(C) and (G).
After correctly determining that a writ of mandamus should not issue, the Court of Appeals should have entered summary judgment for respondents rather than dismissing the complaint.
Although this court does not condone such erroneous disposition, in the interest of judicial economy, the judgment of that court is affirmed insofar as it refused to issue the writ of mandamus.
Judgment accordingly.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
CORRIGAN, J., dissents.