Opinion
No. 41003
Decided December 27, 1967.
Municipal corporations — Local police regulations — Power to enforce includes power to prohibit — Ordinance regulating sale or rental of real property — On basis of race or religion — Charter amendment requiring approval by electors — Constitutional law.
1. The power given to municipalities by Section 3 of Article XVIII to adopt and enforce local police regulations includes the power by such regulations to prohibit. (Paragraph two of the syllabus of West Jefferson v. Robinson, 1 Ohio St.2d 113, approved and followed.)
2. The charter of a municipal corporation may lawfully be amended to provide that any ordinance, which regulates the use, sale, advertisement, transfer, listing, assignment, lease, sublease or financing of real property on the basis of race, color, religion, national origin or ancestry, must first be approved by the electors of such municipality, and that any such ordinance in effect at the time of adoption of such a charter amendment shall cease to be effective until approved by such electors even though such voter approval is not required with respect to other kinds of ordinances.
APPEAL from the Court of Appeals for Summit County.
This action in mandamus was instituted in the Court of Appeals for Summit County on February 3, 1965. Relator alleges that she served upon respondents, the mayor and members of the Akron Commission on Equal Opportunity in Housing, "a copy of an affidavit, alleging * * * that in her efforts to locate desirable housing, relator was discriminated against because of her race, color, and ancestry," and that the commissioners "declined to process or handle" her complaint.
An Akron ordinance, passed and amended in July 1964, prohibits such discrimination, and provides in Section 6 thereof that "a complaint charging a violation of this ordinance may be made * * * by an aggrieved individual," and that "the commission shall make a prompt and full investigation of each complaint."
After providing for an answer to and a hearing on such a complaint, Section 6 of that ordinance provides further:
"(e) If upon all the evidence presented, the commission finds that the respondent has not engaged in any unlawful housing practice, it shall state its findings of fact, dismiss the complaint. If upon all the evidence presented the commission finds that respondent has engaged or is engaging in an unlawful housing practice, it shall state its findings of fact and shall issue such order as the facts warrant.
"(f) In the event the respondent fails to comply with any order issued by the commission, it shall certify the case and the entire record of its proceedings to the city Director of Law for appropriate action to secure enforcement of the commission's order."
The Court of Appeals sustained the demurrer of respondents and denied the writ.
In so holding, the Court of Appeals followed that part of the decision of this court in Porter v. Oberlin (1965), 1 Ohio St.2d 143, 205 N.E.2d 363, which was based upon Judge Guernsey's concurring opinion and which had held invalid (by a vote of 4 to 3) provisions similar to those in Section 6 of the Akron ordinance. However, because one of the members of this court, who had agreed with that part of the decision in Porter v. Oberlin, supra, concluded that the respondents had no standing to question the validity of Section 6 of the Akron ordinance, this court by a vote of four to three reversed the judgment of the Court of Appeals. See State, ex rel. Hunter, v. Erickson, 6 Ohio St.2d 130, 216 N.E.2d 371.
On remand to that court, respondents filed an answer alleging that the voters of Akron had, in November 1964, adopted Section 137 as an amendment to the charter of Akron. That section reads:
"Any ordinance enacted by the council of the city of Akron which regulates the use, sale, advertisement, transfer, listing assignment, lease, sublease or financing of real property of any kind or of any interest therein on the basis of race, color, religion, national origin or ancestry must first be approved by a majority of the electors voting on the question at a regular or general election before said ordinance shall be effective. Any such ordinance in effect at the time of the adoption of this section shall cease to be effective until approved by the electors as provided herein."
Thereafter, relator filed a reply, questioning the validity of that charter amendment, and the cause was submitted on the pleadings and stipulations.
The Court of Appeals held that the hereinbefore referred to ordinance ceased to be effective on adoption of the foregoing amendment to the Akron charter, and therefore its judgment denied relator a writ of mandamus.
The cause is before this court on appeal from that judgment.
Mr. Norman Purnell and Mr. Bernard R. Roetzel, for appellant.
Mr William R. Baird, director of law, and Mr. Alvin C. Vinopal, for appellees.
It is first contended that the ordinance involved in the instant case is not, within the meaning of Section 137 of the Akron charter, one "which regulates," because it prohibits certain acts, including the discrimination against relator that is alleged in the petition. However, as stated in paragraph two of the syllabus of West Jefferson v. Robinson (1965), 1 Ohio St.2d 113, 205 N.E.2d 382: "The power given to municipalities by Section 3 of Article XVIII to adopt and enforce local police regulations includes the power by such regulations to prohibit." Actually, if it did not include that power, there would be a very serious question as to whether the prohibitory parts of the ordinance that are relied upon by relator ever had any validity, notwithstanding our holding in Porter v. Oberlin, supra ( 1 Ohio St.2d 143) that similar prohibitory parts of the ordinance there involved were valid.
It is obvious therefore that, if Section 137 of the Akron charter is valid, its words require the conclusion that the ordinance relied upon by relator has ceased to be effective. Admittedly, that ordinance was in effect when that charter section was adopted and that ordinance has never been approved by the electors.
Relator contends that Section 137 of the Akron Charter is invalid by reason of Article XIV of the Amendments to the Constitution of the United States. In support of this contention, relator relies upon Reitman v. Mulkey (1967), 387 U.S. 369, 18 L. Ed. 830, 87 S. Ct. 1627.
That case dealt with a state constitutional provision which prohibited the state or any agency of the state from denying, or limiting "the right of any person * * * to decline to sell, lease or rent * * * property to such person or persons as he, in his absolute discretion, chooses."
Obviously, Section 137 of the Akron Charter does not do this. Notwithstanding its provisions, the legislative authority of Akron may still enact legislation denying or limiting the so-called right referred to in the California constitutional provision, and such legislation would become effective on approval thereof by the electors of Akron.
Under Section 7 of Article XVIII of the Ohio Constitution, a municipality is specifically authorized to "frame and adopt or amend a charter for its government and" to "exercise thereunder all powers of local self-government."
It may reasonably be argued that the equal-protection clause of the Fourteenth Amendment to the Constitution of the United States would prevent Akron by its charter from exercising thereunder powers of local self-government so as to require prior voter approval only with respect to the kind of ordinances described in Section 137 of its charter.
In our opinion, that constitutional provision would not prevent such a charter requirement, if we can reasonably conclude that ordinances of the kind described in Section 137 of the Akron Charter may reasonably require such a different treatment than other ordinances. In other words, the question is whether the classification of such ordinances, so as to require voter approval thereof instead of enabling them to become effective as do other ordinances, represents a reasonable classification. In our opinion, it does. Thus, as stated in the majority opinion in Porter v. Oberlin, supra ( 1 Ohio St.2d 143), at 152:
"Certainly, a legislative body is not unreasonable because it elects to proceed slowly in such an emotionally involved field as race relations." See also Chicago Real Estate Board v. Chicago (1967), 36 Ill.2d 530, 224 N.E.2d 793.
Likewise, since all the legislative power of a municipality is inherent in its people (See Section 2, Article I and Article XVIII of the Ohio Constitution), they are not unreasonable because they elect to proceed slowly in that field.
Thus, our conclusion is that Section 137 of the Akron Charter does not conflict with Article XIV of the Amendments to the Constitution of the United States.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and BROWN, JJ., concur.
SCHNEIDER, J., concurs in the judgment on the basis of Judge Guernsey's concurring opinion in Porter v. Oberlin, 1 Ohio St.2d 143, at page 154.