Opinion
No. 34742
Decided October 17, 1956.
Municipal corporations — Charter city — Initiative petition — Proposed ordinance provisions conflicting with charter provisions — Such proposal not submissible to electors, when.
APPEAL from the Court of Appeals for Lucas County.
By this proceeding in mandamus instituted in the Court of Appeals, relator seeks a writ requiring the clerk of council of the city of Toledo to deliver to the board of elections a petition to initiate and propose the passing by city council of an ordinance, to be titled "Working Hours and Compensation in Division of Police," for the purpose of checking as to the authenticity and sufficiency of the signatures affixed to the petition, and further requiring the clerk to submit the proposed ordinance to city council following the completion of the checking.
Respondent, by answer, states that such initiative petition "is insufficient and illegal in that it provides for the setting of salaries and wages and other working conditions of the members of the division of police by the enactment of an ordinance by the initiative petition although the charter * * * specifically provides that `the council shall fix, by ordinance, the salary or compensation of all officers and employees of the city.'" Respondent prays that the court find the proposed initiative petition to be in contravention of the provisions of the city charter, and that the court order relator's petition to be dismissed.
The cause was submitted on the petition, answer, reply and a stipulation of facts.
The Court of Appeals, finding that the relator failed to show a clear right to the relief sought, denied the writ.
An appeal as of right brings the cause to this court for review.
Mr. Wm. Kent Fenton, for appellant.
Mr. Charles T. Lawton, director of law, and Mr. William D. Driscoll, for appellee.
The question presented is whether the proposed ordinance fixing the working hours and compensation in the division of police shall be submitted to the electors of the city by way of initiative petition when the city charter provides that city council shall fix the compensation of all city employees.
This case is controlled by the decision in the case of State, ex rel. Werner, v. Koontz et al., Council of City of Columbus, 153 Ohio St. 325, 91 N.E.2d 473, the syllabus of which reads in part:
"A proposal designated as a proposed ordinance, the provisions of which are contrary to provisions of the charter, does not constitute an ordinance properly submissible to the electors of the city of Columbus under the initiative and referendum provisions * * * of the charter, and in such a situation a writ of mandamus will not be issued to compel the council of the city to certify such a proposal to the board of elections for submission to the electors."
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.